EAPIL blog

Marco Biasi (Università degli Studi di Milano) has published Decent Work and the Virtual Dimension: Reflections about the Regulation of Work in the Metaverse in Lavoro Diritti Europa 2023/1. The article (written in Italian) deals with conflict-of-laws and substantive law issues of working in the virtual world.
What is the Metaverse?

The metaverse is more than the eponymous project of Facebook, which has recently rebranded itself as “Meta”. The term was first mentioned in 1992 in the novel “Snow Crash” by Neal Stephenson, and describes a virtual space in which participants are fully immersed and can interact with each other almost as in real life. In essence, the metaverse is thus a special type of computer programme which allows people to interact in digital space. To do so, they need equipment, in particular a virtual reality headset and controllers, which are readily available today at a relatively affordable price. Nowadays, a multitude of projects exist aiming to create such a metaverse. Well-known projects in this field are Decentraland and The Sandbox, and of course the ”Metaverse” developed by Meta.

What Kind of Disputes Could Arise?

In the metaverse, various forms of activity can be performed, such as office work, reunions, sales meetings, education – under an employment agreement. As such, disputes between employers and employees will soon emerge, and with them, the question which law applies to work performed. The problem of connecting a metaverse to the labour law of a particular nation state is as obvious as it is baffling.

Where is Work in the Metaverse Habitually Carried Out?

In the European Union, according to Article 8 Rome I Regulation, the country from which or in which the work is habitually performed is of particular importance for determining the law applicable to a contract of employment, irrespective of whether there is a choice of law. Although Article 8(1) Rome I Regulation follows the principle of party autonomy by allowing the parties to choose the applicable law, this choice is limited by the mandatory rules of the country in or from which the work is habitually carried out.
At first sight, both connecting factors seem to lead nowhere given that the work is performed in the virtual space. But Marco Biasi rightly distinguishes the situation of metaverse workers from that of posted workers and pulls us down to a more realistic view point: an employee who sits in their home in country X with a headset and a controller in fact performs their work in this country, and nowhere else.

Labour Law as Overriding Mandatory Rules

This seems to settle the question, yet it would provide very strong incentives for metaverse employers to pick and choose employees living in countries with the lowest labour law standards possible. One way of avoiding this problem could be to assume a closer connection between the contract and the country of establishment of the employer under Art 8(4) Rome I. Marco Biasi suggests, however, another solution: if the employees themselves were to bring a claim in the country of domicile or seat of the employer, the courts there could apply the provisions of their national labour law as overriding mandatory rules (Art 9 Rome I Regulation).

The (possibly) too lenient rules of the place of habitual residence of the worker could thus be overcome and fairness between employer and employee could be re-established. In this way, a nucleus of essential workers protections could be preserved, e.g. the maximum working hours, the minimum wage, and health and safety rules.

There are, however, two problems with this suggestion: First, the employee would have to make the effort of bringing a suit in the country of the employer, which will often be fraught with difficulties such as distance, language, and costs. Second, the suggestion presupposes that mandatory labour law rules could be applied via Article 9 Rome I, even though Article 8 Rome I seems to conclusively determine their application. While many authors indeed are of this view, it is in no way the subject of consensus.

Going Further

Marco Biasi assumes that, in any event, the protection of the employee will be incomplete and differ from country to country. Therefore, he suggests introducing international rules (such as a convention) on the rights of metaverse employees. Some problems will be hard to solve, though; trade negotiations on behalf of a class of workers scattered around the planet will be particularly challenging. There remain, therefore, enough problems to think about even after this first in-depth study of labour law in the metaverse.

On 9 March 2023, the Court will deliver the judgment in C-177/22, Wurth Automotive. The Landesgericht Salzburg (Austria) referred the following (extremely case-specific) questions on the interpretation of the Brussels I bis Regulation and the consumers’ heads of jurisdiction:

1. Does the assessment of whether the applicant is a consumer within the meaning of Articles 17 and 18 of Regulation (EU) No 1215/2012 depend on

a) whether the applicant pursued the activity of a graphic and web designer declared by her in the proceedings only as an employed person or, at least in part, also in the context of a freelance activity at the time of concluding the contract of sale and immediately thereafter and

b) the purpose for which the applicant acquired the vehicle, that is to say solely for the purpose of satisfying her own needs in terms of private consumption or also in connection with a current or future trade or professional activity or purpose?

2. Would the applicant no longer be able to rely on her status as a consumer if she had resold the passenger car in August 2019, and would any profit made in the process be relevant?

3. Must the applicant be considered not to be a consumer merely because she signed a standard contract of sale prepared by the defendant, the printed form of which designated the buyer as a ‘company’ and contained the text ‘business-to-business/no return, no warranty/delivery only after receipt of money’ under the heading ‘special agreements’ in a smaller font, without objecting to this and referring to the fact that she was a consumer?

4. Must the applicant accept responsibility for the conduct of her partner, who acted as a car dealer in arranging the purchase, from which the defendant could have concluded that the applicant was a trader?

5. Is it to the detriment of the applicant in the assessment of whether she is a consumer if the court of first instance was unable to determine why the written contract of sale differed from the preceding offer by the applicant’s partner in terms of the designation of the buyer or what was discussed in that regard during the telephone calls between the applicant’s partner and one of the defendant’s salespeople?

6. Is it relevant to the applicant’s status as a consumer if the applicant’s partner telephoned the defendant several weeks after taking delivery of the vehicle to enquire whether it was possible to state the VAT on the invoice?

The case has been allocated to a chamber of three judges (L.S. Rossi, J.C. Bonichot, O. Spineanu-Matei as reporting judge). No opinion was requested.

All remaining PIL-related events will take place on Thursday 23 March. A hearing is scheduled on case C-90/22, Gjensidige, also regarding the Brussels I bis Regulation, this time in relation to the CMR (Convention on the contract for the international carriage of goods by road, Geneva, 19 May 1956). The main proceedings concern a claim for compensation of loss on the basis of subrogation. In cassation, the Lietuvos Aukščiausiasis Teismas (Lithuania) is asking the Court of Justice:

1. Can Article 71 of Regulation No 1215/2012, having regard to Articles 25, 29 and 31 and recitals 21 and 22 thereof, be interpreted as permitting the application of Article 31 of the CMR Convention also in cases where a dispute falling within the scope of both those legal instruments is the subject of an agreement conferring jurisdiction?
2. Having regard to the legislature’s intention to strengthen the protection of agreements conferring jurisdiction in the European Union, can Article 45(1)(e)(ii) of Regulation No 1215/2012 be interpreted more broadly, as covering not only Section 6 of Chapter II of that regulation but also Section 7 thereof?
3. After assessment of the specific features of the situation and the resulting legal consequences, can the term ‘public policy’ used in Regulation No 1215/2012 be interpreted as covering the ground for deciding not to recognise a judgment of another Member State where the application of a specialised convention, such as the CMR Convention, creates a legal situation in which both the agreement conferring jurisdiction and the agreement on the applicable law are not observed in the same case?

The deciding chamber is composed of judges A. Arabadjiev, P.G. Xuereb, T. von Danwitz, A. Kumin (as reporting judge), and I. Ziemele. On the occasion of the hearing, AG N. Emiliou will indicate the date he will publish his opinion.

The same day the Court will publish the opinions on cases C-590/21, Charles Taylor Adjusting, and C-832/21, Beverage City Polska, both by AG J. Richard de la Tour; C-21/22 OP, by AG M. Campos Sánchez-Bordona; and C-87/22, TT (Déplacement illicite de l’enfant), by AG P. Pikamäe.

In C-590/21, Charles Taylor Adjusting (on which I already reported here) the Court has been asked whether injunctions of a court capable of hindering  the continuation of proceedings pending before the jurisdiction of another State, in particular by awarding compensation to cover the costs of the defendants before that jurisdiction, are contrary to the public policy of the European Union in the sense of Article 34(1) of Regulation  44/2001. The referring court – the Greek Areios Pagos- is asking :

(I)      Is the expression ‘manifestly contrary to public policy’ in the EU and, by extension, to domestic public policy, which constitutes a ground for non-recognition and non-enforcement pursuant to point 1 of Article 34 and Article 45(1) of Regulation No 44/2001, to be understood as meaning that it extends beyond explicit anti-suit injunctions prohibiting the commencement and continuation of proceedings before a court of another Member State to judgments or orders delivered by courts of Member States where: (i) they impede or prevent the claimant in obtaining judicial protection by the court of another Member State or from continuing proceedings already commenced before it; and (ii) is that form of interference in the jurisdiction of a court of another Member State to adjudicate a dispute of which it has already been seised, and which it has admitted, compatible with public policy in the EU? In particular, is it contrary to public policy in the EU within the meaning of point 1 of Article 34 and Article 45(1) of Regulation No 44/2001, to recognise and/or declare enforceable a judgment or order of a court of a Member State awarding provisional damages to claimants seeking recognition and a declaration of enforceability in respect of the costs and expenses incurred by them in bringing an action or continuing proceedings before the court of another Member State, where the reasons given are that: (a) it follows from an examination of that action that the case is covered by a settlement duly established and ratified by the court of the Member State delivering the judgment (or order); and (b) the court of the other Member State seised in a fresh action by the party against which the judgment or order was delivered lacks jurisdiction by virtue of a clause conferring exclusive jurisdiction?

(II)    If the first question is answered in the negative, is point 1 of Article 34 of Regulation No 44/2001, as interpreted by the Court of Justice of the European Union, to be understood as constituting a ground for non-recognition and non-enforcement in Greece of the judgment and orders delivered by a court of another Member State (the United Kingdom), as described under (I) above, where they are directly and manifestly contrary to national public policy in accordance with fundamental social and legal perceptions which prevail in Greece and the fundamental provisions of Greek law that lie at the very heart of the right to judicial protection (Articles 8 and 20 of the Greek Constitution, Article 33 of the Greek Civil Code and the principle of protection of that right that underpins the entire system of Greek procedural law, as laid down in Articles 176, 173(1) to (3), 185, 205 and 191 of the Greek Code of Civil Procedure cited in paragraph 6 of the statement of reasons) and Article 6(1) of the [European Convention on Human Rights], such that, in that case, it is permissible to disapply the principle of EU law on the free movement of judgments, and is the non-recognition resulting  therefrom compatible with the views that assimilate and promote the European perspective?

The case has been assigned to a chamber of five judges (K. Jürimäe, M. Safjan, N. Piçarra, M. Gavalec, N. Jääskinen reporting).

C-832/21, Beverage City Polska (hearing last January was announced here) concerns the interpretation of Article 8(1) of the Brussels I bis Regulation, in particular the condition of a close relationship (‘so closely connected’) required for the purposes of applying the head of international judicial jurisdiction in a situation which, potentially, could amount to “forum shopping”. The request has been referred by the Oberlandesgericht Düsseldorf (Germany), in proceedings brought by the proprietor of a number of EU trade marks including: an application for injunction throughout the territory of the Union, and an application (limited to acts in Germany) for information, the disclosure of accounts and a declaration of liability for damages. They are both directed against a German company and a Polish company as well as against two natural persons, in a personal capacity and as managers of these companies. The question referred reads:

Are claims ‘so closely connected’ that it is expedient to hear and determine them together to prevent irreconcilable judgments, within the meaning of Article 8(1) of the Brussels Ia Regulation, where, in infringement proceedings for infringement of an EU trade mark, the connection consists in the fact that the defendant domiciled in a Member State (here, Poland) supplied the goods which infringe an EU trade mark to a defendant domiciled in another Member State (here, Germany) whose legal representative, against whom infringement proceedings have also been brought, is the anchor defendant, if the parties are connected to each other only through the mere supply relationship beyond which there is no legal or factual connection?

Judges E. Regan, D. Gratsias, I. Jarukaitis, Z. Csehi and M. Ilešič (reporting) will decide on the requested interpretation.

C-21/22, OP (Choix du droit d’un État tiers pour la succession), is a request from the Sąd Okręgowy w Opolu (Poland), on appeal lodged against the refusal by a notary practising in Poland to draw up a notarial will on behalf on an Ukrainian national; the will would contain a clause stipulating that the law applicable to all matters relating to the succession and modification of the legal order of succession would be Ukrainian law. The questions referred require the interpretation of the Succession Regulation and the ascertainment of its relationship to bilateral conventions between Member States and third States:

1. Must Article 22 [of Regulation No 650/2012] be interpreted as meaning that a person who is not a citizen of the European Union is entitled to choose the law of his or her native country as the law governing all matters relating to succession?
2. Must Article 75, in conjunction with Article 22, of Regulation No 650/2012 be interpreted as meaning that, in the case where a bilateral agreement between a Member State and a third country does not govern the choice of law applicable to a case involving succession but indicates the law applicable to that case involving succession, a national of that third country residing in a Member State bound by that bilateral agreement may make a choice of law?

Judges K. Jürimäe, M. Safjan, N.J. Piçarra,  M. Gavalec and N. Jääskinen (reporting) will decide on the matter.

Finally, in C-87/22, TT (Déplacement illicite de l’enfant), the Landesgericht Korneuburg (Austria) is asking about the scope of Article 15 of Regulation 2201/2003 (Brussels II bis), the conditions of application of that article and its relationship with Article 10 of that regulation.

1. Must Article 15 of [the Brussels II bis Regulation], be interpreted as meaning that the courts of a Member State having jurisdiction as to the substance of the matter, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, may request such a court to assume jurisdiction even in the case where that other Member State has become the place of habitual residence of the child following wrongful removal?
2. If Question 1 is answered in the affirmative: Must Article 15 of [the Brussels II bis Regulation], be interpreted as meaning that the criteria for the transfer of jurisdiction that are set out in that article are regulated exhaustively, without the need to consider further criteria in the light of proceedings initiated under Article 8(f) of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction?

The request has been attributed to judges C. Lycourgos, K. Lenaerts, J.C. Bonichot, O. Spineanu-Matei, and L.S. Rossi (reporting).

Nikitas Hatzimihail (University of Cyprus) has published on SSRN an article titled Private International Law Matters involving Non-Recognized States: The View from Cyprus.

The abstract reads as follows:

This essay examines how private-law matters involving non-recognised States and territories under de facto administration from the post-Soviet space are dealt with in Cyprus – a jurisdiction of interest, whose approach is influenced by the existence of a Turkish-controlled de facto administration in its north. The chapter proposes a distinction between cases concerning the establishment of forum jurisdiction over a private party, cases which potentially involve the application of law, or legal actions, in or regarding, the contested space and cases in which the forum may be seen as called to acknowledge, explicitly or implicitly, the political entity itself. The article advocates an approach of principled pragmatism, which takes into account both the legitimate private interests and the political repercussions of any legal decision.

The article is to be published in Alexander Trunk et al (eds.), Legal Position of Non-Recognized States in the Post-Soviet Space under International Trade Law, Private International Law and International Civil Procedure, Springer Science: 2022.

A conference of the same title as the above-mentioned volume was organized in July 2018 in Bordesholm and Kiel. The programme and some of presentations may be downloaded from the website of the conference.

The 2023 special issue of the open-access journal Papers di diritto europeo collects the proceedings of the conference organized in the framework of the “Identities on the move. Documents cross borders – DxB” project (see this post).

Opened by a foreword by Maria Caterina Baruffi and Laura Calafà, the issue features the following papers.

Małgorzata Balwicka-Szczyrba, Anna Sylwestrzak and Dominik Damian Mielewczyk, Transcription of foreign civil status documents of children of same-sex parents in Polish law

In the Polish legal system marriage is a formal union of a man and a woman. Due to a different definition of marriage in some foreign legislations doubts arise as to the transcription of foreign civil status records in which spouses or same-sex parents are registered. Entry in the Polish register has far-reaching consequences, both public law and private law. Civil status records constitute the sole evidence of the events contained therein, and their incompatibility may be proven in court proceedings and sometimes by administrative action. Civil status records are intrinsically linked to personal and family law, and any refusal to transcribe them will have consequences in terms of the legal situation of the person concerned.
The study analyses the positions of jurisprudence and doctrine relating to the problem under examination. It was found that on the basis of applications for the transcription of birth certificates of children of same-sex parents, two disputable positions have developed in the jurisprudence. Public administration bodies and administrative courts generally refuse the transcription. However, 2018 marked a break in the previous line of rulings of the Supreme Administrative Court, which allowed for such a possibility. However, the reasoning raised in the justification of the court’s decision attracted widespread criticism, which resulted in the lack of consolidation of this view.
The research carried out into the problem of the transcription of foreign civil status documents of children of same-sex parents under Polish law has shown that the Polish legal system is not adapted to the transcription of foreign civil status documents of children of same-sex parents.
In conclusion, it should be stated that in view of the noticeable conflict between the fundamental principles of the Polish legal system (including the public order clause) and the rights of the child (including personal rights), the lack of the possibility of making transcriptions of foreign civil status documents of children of same-sex parents unduly violates the principle of the welfare of the child. In particular, it results in a far-reaching diminution of the rights of the child, i.a. due to the impossibility of obtaining an identity card. This state of affairs requires urgent intervention either through a change in the direction of interpretation of the existing provisions of the Act on Civil Status Records, or through amendments to this Act.

Matteo Caldironi, The circulation of the child’s legal status in Italy: open issues

The essay aims to deepen the theme of the circulation of the legal status of minors, with reference to those conceived using ART (artificial reproductive technologies). It will focus on the prejudice to the rights of minors and the downgrading of their status caused by the lack of homogeneous recognition of the phenomena of social parenthood in EU countries. The analysis will start with two pronouncements of the Italian Constitutional Court (nos. 32 and 33 of 2021) that have dealt with the recognition of the parental relationship with the intentional parents in two cases of ART carried out abroad, where the practices are prohibited in our country. The first case involved the practice of heterologous fertilization carried out by a female couple and the second involved surrogacy. Among the many issues addressed, it is particularly interesting that it was found impossible to recognize the foreign provision of the filiation relationship due to the existence of public order obstacles presented by the criminal prohibition of surrogacy in Italy. However, also due to the lack of other adequate instruments of recognition under domestic law, the Court finds a void of protection that, even if «intolerable», must be resolved by the national legislator. In other words, the Constitutional judge notes that the «best interest of the child» cannot be automatically prejudiced by the other interests at stake, but the most appropriate balance is left to the exercise of legislative discretion.
It will then be shown how an attempt has been made at a European level to respond to the same problems. In its recent judgment (14 December 2021) the Court of Justice ruled that Member States (MS) are required to recognize the filiation relationship with both parents (even if the parental relationship with the intended parent is not recognized by the MS) at least to allow the child to exercise, together with each of their two parents, their right to free movement. On the other hand, both parents must have a document authorizing them to travel with that child. Indeed, while it is true that the status of persons falls within the competence of the MS, they are free to provide or not, in their national law, for same-sex marriage and social parenthood. However, in exercising this competence, each Member State must respect Union law and the provisions of the Treaty relating to freedom of movement and residence for citizens of the Union, recognizing, to this end, the status of persons established in another Member State in accordance with the law of that State.
In conclusion, the paper will show how Regulation (EU) 2016/1191 can eventually hypothesize an alternative instrument such as common European civil status framework to recognize a «unique» legal status that thus best protects the best interest of the child in a broader context.

Cristina Campiglio, «Recognition» of civil status records in the aftermath of Regulation (EU) 2016/1191 on public documents: a new functional identity for EU citizens

Regulation (EU) 2016/1191 sets the objective of ensuring the free movement of persons through the free circulation of public documents establishing «facts» standing for legally defined and relevant situations (name, marriage, parenthood, etc.). As the aim of this Regulation «is not to change the substantive law of the Member States», the interpreter is confronted with notions whose meaning is liable to vary from State to State. The lack of harmonization of the notions of «marriage» and «parenthood», in particular, re-proposes the characterization problems already encountered with regard to the EU Citizens’ Free Movement Directive 2004/38/EC, which includes spouses and direct descendants among the family members, although without providing a definition. Regulation (EU) 2016/1191 is expressly not intended to apply «to the recognition in a Member State of legal effects relating to the content of public documents issued by the authorities of another Member State» (Art. 2(4)). In other words, the document certifying the existence of a marriage or parenthood guarantees the spouse or parent/child of an EU citizen free movement to another Member State, regardless of whether the marriage or parenthood at issue may be recognised in that State. In line with the Regulation,in the 2018 Coman judgmentthe Court of Justice – applying the principle of mutual recognition – stated that, in the name of the right to free movement, a Member State cannot refuse the EU citizen’s same-sex spouse a right of residence on the ground that the law of that Member State does not provide for marriage between persons of the same sex. Given the limited effects of the recognition of this marriage, the Court has found no evidence of an attack on national identity (Art. 4(2) TEU) and consequently of a threat to public order of the Member State concerned. The same conclusion has been reached by the Court of Justice in the 2021 Pancharevo case, regarding a child born through medically assisted procreation. Birth certificates drawn up in a Member State shall be recognized by the other Member States as part of the exercise of the rights under Art. 21 TFEU. On the contrary, there is no obligation for other Member States to recognize that filiation relationship for other purposes, since respect for national identity (and public policy) may be invoked in this regard. In summary, the recognition of personal status appears now to be heading towards a double track: with no control for the sole purpose of enabling such persons to exercise the rights they enjoy under EU law, and still subject to the traditional limit of public policy for the purpose of exercising the rights conferred under national law. As a consequence, the same person may be considered married or parent for the purposes of circulation within the EU, while unmarried or not parent for civil purposes. Beyond practical utility, the compatibility of such a split personal identity – one merely functional to circulation, while the other one to its full extent – with the EU Charter of Fundamental Rights principles may be called into question.

Mădălina Cocoșatu and Claudia Elena Marinică, Case law of the European Court of Justice on free movement of persons and public documents: focus on Romania

Free movement of persons in the European Union, a foundation of European Union citizenship which implies an increase in the movement and cross-border nature of public documents, is a topic that has become part of the discussions in the European Union and in the member states in recent years, that are known for their commitment to help regulate a regional order regarding the mobility of citizens in an area without borders. It was therefore not at all surprising that Regulation (EU) 2016/1191 on the promotion of free movement of citizens was adopted and entered into force by simplifying the requirements for the presentation of certain public documents in the EU, as a facilitator and accelerator factor for enforcing cross-border free movement, so that now, five years after its adoption, its effects are increasingly visible.
The purpose of this article is to encourage the analysis and reflection at the level of the European Union and at national level (in Romania) on a series of challenges determined by the jurisprudence of the Court of Justice of the European Union, which seeks to ensure compliance with the provisions of the Treaties, the Charter of Fundamental Rights, as well as all other legislative acts in force. Such an approach cannot be taken out of the context of public and private international law applicable in this field and of treaties, conventions or agreements to which Member States are a part of, in particular the Convention concerning the abolishing of the Requirement of Legalisation for Foreign Public Documents, signed in The Hague on 5 October 1961 (Apostille Convention) regarding public documents and their authenticity but it should only be regarded as a supplement.
The article will focus on the case law of the Court of Justice of the European Union related to the scope of Regulation (EU) 2016/1191, in cases concerning citizenship and a number of family law issues that have a direct impact on public documents and the free movement of persons, without bringing prejudice to the national identity or public policy of the Member States. The analysis mainly concerns the different legislative regulations of the Member States and how to use their common points that should follow the provisions of Regulation (EU) 2016/1191, for the most efficient free movement of persons and public documents in order to ensure the predictability of EU freedoms in cases with a cross-border impact. The conclusions drawn from this analysis emphasize the need for collaboration between theoretical and practical aspects, taking into account the considerable impact on the authenticity, recognition and legal security of these documents that are meant to create the facilitation of free movement in the European Union, while respecting EU law and the material law of the Member States.

Ester di Napoli, Giacomo Biagioni, Ornella Feraci, Renzo Calvigioni e Paolo Pasqualis, La circolazione dello status dei minori attraverso le «frontiere» d’Europa: intersezioni tra diritto dell’Unione e diritto internazionale privato alla luce della sentenza Pancharevo

The paper moves from the judgment issued by the Court of Justice of the European Union in the Pancharevo case to reflect on the repercussions, in the context of the intra-EU circulation of the status of children created abroad, on the level of substantive European Union Law, and of Private International Law, as well as in the practical perspective of those professionals, such as the registrar and notary, are closely engaged with the recognition of personal and family status, and its respective implications, in the requested Member State.

Marco Gerbaudo, Public documents on the move in the Area of Freedom, Security and Justice: uniformisation or free circulation?

The maintenance of the Area of Freedom, Security and Justice (AFSJ), introduced with the Amsterdam Treaty, is one of the main challenges of EU legislation on freedom of movement and external migration. An impressive body of legislation has been adopted to «achieve», «create», «maintain» and «develop» such an area. In 2016, Regulation 2016/1191 was added to the group. The simplification of the requirements for presenting certain public documents is indeed purposed to ease free movement and, consequently, maintain the AFSJ.
The circulation of public documents is an important issue also in the other pillar of the Area: external migration. Contrary to freedom of movement, migration from third countries is neither free nor communitarised, as Member States retain a great degree of discretion in regulating migration flows. At the same time, once entered the AFSJ, third-country nationals are entitled to a certain degree of intra-EU mobility. To better control and facilitate such mobility, the format of migration-related public documents, such as residence permits and visas, has been uniformised across the EU. These legal acts are expressively purposed to «establish progressively» an Area of Freedom, Security and Justice.
This paper aims to compare administrative cooperation on public documents in the field of free movement, on one side, and external migration and intra-EU mobility, on the other. Through the analysis of primary sources, Regulation 2016/1191 will be compared with Regulation 1030/2002 (uniform format for residence permits) and Regulation 1683/95 (uniform format for visas). Differences and similarities between uniform formats and multilingual standard forms will be assessed. Also, the respective provisions on anti-fraud and data collection on IT databases will be analysed.
The free circulation of public documents is an often overlooked yet critical component of the AFSJ. It is thanks to these practicalities that values such as freedom of movement and common policies as migration become (or not) a reality. Many elements of Regulation 2016/1191 are an advancement if compared to the provisions governing the uniformisation of visas and residence permits. However, if compared to the uniformisation process of migration-related documents, free circulation of EU public documents still maintains several flaws and imperfections.
KEYWORDS: Area of Freedom, Security and Justice; civil status records; visa; residence permit; uniformisation; free circulation.

Marion Ho-Dac, Elsa Bernard, Susanne Lilian Gössl, Martina Melcher and Nicolas Nord, Reassessing Regulation (EU) 2016/1191 on public documents in the light of EU citizenship

The contribution aims to analyse the effects of cross-border circulation of public documents under EU law (i.e. mere circulation of the instrumentum, exclusive to any recognition of the negotium), following a twofold approach based on legal methodology (i.e. EU free movement law and private international law techniques) and legal policy (i.e. EU integration and functionalism).
The starting point of the analysis is the current contradiction/tension within the EU legal order between, on the one hand, the need to ensure the permanence of the personal status of individuals and families (such as family name, parentage or marital status) on the basis of EU citizenship (Arts. 18 to 21 TFEU) and, on the other hand, the limited scope and effects of the legal instruments in force in EU law, i.e. Regulation 2016/1191 on public documents, complemented by international conventions in force within all or some Member States, such as the HCCH Apostille Convention of 1961 and ICCS Convention (No 16).
In this context, the article proposes to explain this contradiction, to assess it and finally to submit legal ways to overcome it, while considering the restraints of political feasibility. It provides for a cross-cutting analysis of the (above-mentioned) legal frameworks, complemented by relevant case law of the CJEU, of the ECtHR and of national courts of the Member States, under this specific perspective.

Fabienne Jault-Seseke, Right to identity and undocumented migrants

In various cases, migrants have no documents or no valid documents. Their right to identity is therefore threatened. There are various solutions to combat this risk. On the one hand, the improvement of civil status services in countries of origin, namely through digitalization or biometric techniques, is to be explored. On the other, reconstitution of civil identity in transit and host countries should also be considered.

Eva Kaseva, The scope of Regulation (EU) 2016/1191 in the light of Bulgarian domestic law

This paper is focused on the Regulation (EU) 2016/1191 – Public Documents Regulation. In particular, it concerns the general characteristic of the Regulation, the conditions to be met in order to apply the Regulation, and its scope of application. The analysis addresses specifically the documents that can be issued in the Republic of Bulgaria under its domestic law to certify the facts included in the scope of Regulation under Art. 2(1)(a)-(m). It is indicated which national act settles each document and clarified which are the requirements to be issued.

Francesca Maoli, Civil status and circulation of public documents in EU and worldwide: the need for a European common framework for third countries

While the EU fosters and protects the right of free movement of its citizens, it is necessarily concerned by the reception of third-country nationals. Migration issues are among the EU competences in the area of freedom, security and justice. In both scenarios – i.e. intra-EU movements and immigration from outside the EU – there is a need to ensure the continuity of personal and family status: this represents a condition of effectiveness, as concerns the enjoyment of rights. With specific reference to third country nationals, the implementation of the European migration rules requires the resolution of civil status issues for which there is no common approach so far. However, the simplifications introduced by the EU Regulation 2016/1191 do not work for documents from third countries. The EU rules coexist with the fragmented (yet, in some cases, more advanced) regime contained in international conventions. However, this does not mean that the EU cannot have uniform rules to deal with such documents (compare with foreign judgments and the ratification of the 2019 Hague Convention). Common rules for public documents on civil status would reinforce the coherence of the EU migration law.
The need for a common legal framework is the focus of the present paper, which highlights the opportunity for the EU to act in synergy with the Hague Conference on Private International Law and the International Commission on Civil Status.

Guillermo Palao, Challenges to the codification of cross-border dimension of the digitalization of civil status records and registers

The increase of internationalisation and digitalisation are two essential elements deeply affecting the current activity of civil status registers. The incorporation of new technological tools in the management of civil status registers has proved to be highly beneficial, affecting also to their international dimension and the cross-border circulation of civil status records. As a result, an intense codification effort has taken place at the national, regional and international levels over the last few years, to promote the digitisation and the international circulation of civil status documents. The global challenges faced by this matter call for the need of supra-national responses, although the high level of complexity deriving from the plurality of codification venues and applicable legal sources, as well as the limited and fragmentary nature of the normative solutions contained in such instruments. Three are the main international codification venues whose normative results should be analysed from the perspective of the digitisation and the internationalisation of the activity of civil status registers: the HCCH, the ICCS/ CIEC and the EU. In this respect, despite of the undeniable efforts made in the different codification centres, it is advisable to reconsider the current model, with the aim of taking full advantage of the opportunities offered by ICTs and reducing the legal obstacles that the current situation generates in the international mobility of persons. Therefore, this would require, a deepening of dialogue and constructive cooperation between the different institutions involved in this area and to take advantage of the strengths offered by the various codification initiatives.
KEYWORDS: Civil status registers; digital civil status records; cross-border circulation of public documents; private international law; Hague Conference on Private International Law; International Commission on Civil Status; European Union.

Stefania Pia Perrino, «If you are a parent in one country, you are a parent in every country»: is it true for social parenthood?

Parenthood is the legal relationship between a child and the child’s parents and recently EU citizens are establishing this relationship through consent or intended parent agreements, without any genetic link. The new concept is known in case law as social parenthood and can be traced in different scenarios: same sex couples’ adoption; artificial reproduction; surrogacy; post mortem fertilization.
The paper will investigate if the lack of a common notion of social parenthood can constitute an obstacle for the free movement of citizens and analyze the recent case Pancharevo of the Court of Justice of the European Union.

Marco Poli, Quo vadis mater? Motherhood, freedom of movement, and the circulation of documents

Building on the Court of Justice of the European Union (CJEU) judgment on the case C-490/20, V.M.A. v. Stolichna obshtina, rayon Pancharevo, this paper considers the circulation of birth certificates under Regulation (EU) 2016/1191 investigating its effects on the legal notion of motherhood.
Developing reproductive technology and social changes impacted differently on the EU Member States’ national law on parentage and motherhood. In this sense, as seen in the aforementioned CJEU judgment, some legal scenarios, such as the Bulgarian one, recognise the legal effects of the sole biological tie between the child and their mother, clinging on to a monist notion of mother. Differently, other national laws opened up to a pluralist concept of motherhood: indeed, in addition to childbirth, intent gives rise to the legal status of mother. For example, under Spanish law, both the woman who delivered the baby and the female social parent are recognised the status of mother. In such a diverse lawscape, free movement and respect for human rights have made motherhood accessible to a wider group of people. What happens then when a monist legal system deals with a birth certificate issued for one of its citizens by another Member State recognizing intent-based motherhood? Answering this question will help us get closer to understanding quo vadis mater?.
In order to do so, this paper primarily explores whether the circulation of birth certificates implies circulation of status as well. As explicitly stated in Recital 18, the aim of Regulation 2016/1191 is not to change substantive law relating to parenthood. Furthermore, the same recital provides that the Regulation should not affect the recognition in one Member State of legal effects relating to the content of a public document issued in another Member State. Secondly, the paper aims at investigating to what extent, if any, the circulation of public documents under Regulation 2016/1191 makes a contribution to the shaping the legal notion of motherhood. Despite the EU Court of Justice’s use of gender-neutral language concerning parentage (i.e., parents, instead of mothers), this work aims at exploring the impact of legal developments concerning the circulation of birth certificates on motherhood.

Irena Ryšánková, Die Verordnung im Vergleich zu den Übereinkommen der CIEC und anderen relevanten internationalen Übereinkommen (z.B. Haager Apostille-Übereinkommen (1961))

The present article gives a brief overview of how cross-border movement of public documents is regulated in different instruments of International and European Civil Procedure. After explaining the role of legalisation, it then focuses on the Regulation (EU) 2016/1191 and compares its dispositions with the 1961 Hague Convention, the Convention of 25 May 1987 abolishing the legalisation of documents in the Member States of the European Union and some relevant conventions of the ICCS.

Brody Warren and Nicole Sims, The changing nature of trust: the Apostille Convention, digital public documents, and the chain of authentication

The Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (Apostille Convention) was developed in response to an increasing number of public documents circulating around the world and forged a new path in the authentication of foreign public documents. At its core, the Convention established a simplified mechanism by which contracting parties could trust that the documents they were receiving were authentic. The essence of this solution was the Apostille certificate and the authorities designated as competent for its issuance.
More recently, the European Union (EU) has attempted to further simplify the circulation of public documents between its member states, most notably through Regulation (EU) 2016/1191. While the Regulation relies on the inherent trust between EU Member States to better the approach used by the Convention, its goal is the same: to abolish the authentication requirements for presenting public documents abroad.
Over sixty years on from the adoption of the Apostille Convention, public documents are increasingly executed in digital rather than paper form. This rapidly evolving technological landscape inspired the establishment of the electronic Apostille Programme (e-APP), to promote and encourage the digitalisation of the Apostille process. In comparison, the Regulation has not needed any special programme or initiative to operate in a digital context, as it was developed with the realities of digital public documents in mind.
As the digital transition intensifies, both the Convention and the Regulation face similar challenges in overcoming the hesitation of authorities and individuals with respect to digital public documents. However, as governments and citizens become more comfortable with the technology, and more importantly the security underlying it, the Regulation may be able to reach its full potential and the issuance of Apostilles under the Convention may become entirely unnecessary.
Against this background, this paper considers how the pursuit of trust in the authentication process has shaped the development of the Apostille Convention. The authors also consider the EU Regulation, as it follows in the footsteps of an instrument 50 years its senior. With the digital environment in mind, the paper concludes that technology will eventually enable ultimate trust in the authentication of public documents.

The new edition of the Commentary on the Brussels I bis Regulation, edited by Ulrich Magnus and the late Peter Mankowski, part of the European Commentaries on Private International Law series published by Otto Schmidt, has recently been released.

The list of authors includes Alfonso Luis Calvo Caravaca, Javier Carrascosa González, Gilles Cuniberti, Carlos Esplugues Mota, Richard G. Fentiman, Stephanie Francq, Thomas Garber, Mizuki Hashiguchi, Helmut Heiss, Xandra Ellen Kramer, Luís Pedro Rocha de Lima Pinheiro, Ulrich Magnus, Peter Mankowski, Louise Merrett, Horatia Muir Watt, Sarada Nateshan, Guillermo Palao Moreno, Ilaria Queirolo, Pippa Rogerson, Didimi Sturua, Paul Vlas and Patrick Wautelet.

See here for further information.

On 13 April 2023, the University Paris Dauphine will host a conference on State Immunity from Enforcement (L’immunité d’exécution de l’Etat).

The conference will be divided in four parts. The first will discuss the interaction of the various sources of the immunity from enforcement. The second will discuss the influence of human rights and arbitration. The third part will be a round table offering comparative insights from England, Italy and Canada. Finally, the fourth part will discuss the scope of the immunity, with a panel composed of academics and a second panel composed of judges and practitioners.

Speakers will include Philippe Thery, Catherine Kessedjian, Louis Perreau Perreau-Saussine, Juliette Morel-Maroger, Sophie Lemaire, Arnaud De Nanteuil, Louis d’Avout, Duncan Fairgrieve, David Pavot, Mathias Audit, Jérôme Chacornac, Helene Tissandier, Etienne Farnoux, Renaud Salomon, Jérôme Ortscheidt, Guillaume Tapie,  Victor Grandaubert, Francoise Moneger, Gilles Cuniberti, Fabrizio Marrella and Jacques Alexandre Genet.

The full programme of the conference can be found here.

The conference will be held in the context of the 150th anniversary of the International Law Association.

Participation is free, but registration is compulsory.

As the Matrimonial Property Regimes Regulation and the Property Regimes of Registered Partnerships have celebrated their fourth anniversary of application recently (namely on 27 January 2023), it might be a good occasion to mention three publications devoted to them, all available in open access.

All three books are the product of the EU-funded project EU-Fam Pro.

The first book, edited by L. Ruggeri, A. Limantė and N. Pogorelčnik Vogrinc, is titled The EU Regulations on Matrimonial Property and Property of Registered Partnerships, and was published by Intersentia in 2022.

The book may be downloaded from the website of the publisher. Translations of the book into Lithuanian, Italian, Spanish, Slovenian and Croatian may be downloaded from the website of the project.

As the editors explain

This book presents an in-depth analysis of these instruments, revealing the substance of the provisions in the regulations and exploring their practical implications in EU family law by discussing questions that are closely related to matrimonial and partnership property regimes. The contributors also cover the relevant CJEU case law and, where available, the national case law of the EU countries. Case studies are used to interrogate the potentialities of these new instruments.

The second book was authored by L. Ruggeri and M.J. Cazorla González, and comes under the title Cross-Border Couples Property Regimes in Action Before Courts. Understanding the EU Regulations 1103 and 1104/2016 in Practice. It was published by Dykinson in 2022.

The book may be downloaded from the website of the publisher.

As stated in the foreword:

This book has the prime purpose of analysing practice through European and national case law from the entry into force of the Twin Regulations, adding hypothetical cases (…)

The objective of all the authors in this volume is to facilitate understanding of and the application of the Twin Regulations. For this purpose, the editors have divided the content into two parts.

In the first, several authors analyse general questions such as the determination of the habitual residence of cross-border partners (…), and four EU Court of Justice judgments (…). The second part considers the application of the Twin Regulations in some Member States, presenting the case law and case studies from selected countries participating in the enhanced cooperation.

Finally, the third book was edited by L. Ruggeri and R. Garetto and is titled European Family Property Relations Article by Article. Commentary on EU Regulations 1103 and 1104/2016. It was published in 2021 by Edizioni Scientifiche Italiane.

The book may be downloaded from the website of the publisher.

The blurb informs that:

This Commentary would offer a path to know and better understand article-by-article the two Regulations.

A team of law experts, among them lawyers, notaries and scholars, analyses through a synoptic view the text of each article of each Regulation. The authors focus on the new provisions as well as on the existing case law by the European Court of Justice and courts of the Member States

The latest issue of the RabelsZ (Rabels Zeitschrift für ausländisches und internationales Privatrecht) has been published. As always, it contains a number of insightful articles, this time also many in English language. Here are the authors, titles and abstracts:

Holger Fleischer, Große Debatten im Gesellschaftsrecht: Fiktionstheorie versus Theorie der realen Verbandspersönlichkeit im internationalen Diskurs (Great Debates in Company Law: The International Discourse on Fiction Theory versus Real Entity Theory)

This article opens a new line of research on great debates in domestic and foreign company law. It uses as a touchstone the classical debate on the nature of legal personhood, which was moribund for a time but has recently experienced an unexpected renaissance. The article traces the scholarly fate of fiction theory and real entity theory over time and across jurisdictions. It describes the origins of both theories, explores the processes of their reception in foreign legal systems, and through selected case studies illustrates the areas in which both courts and doctrine to this day have continued to draw on their body of arguments.

Sabine Corneloup, Migrants in Transit or Under Temporary Protection – How Can Private International Law Deal with Provisional Presence?

An increasing number of migrants are provisionally present in the territory of a State other than their State of origin, be it because they are granted temporary protection until they can return to their country of origin or because migration policies– notably externalization measures– prevent them from accessing the territory of their State of destination. As a result, many migrants are stuck for months, if not years, in transit countries at the external borders of Europe before being able to resume their migratory route. Their provisional presence, which initially was meant to remain transitional and short-term, often becomes indefinite. In the meantime, life goes on: children are born, couples marry and divorce, parental child abductions take place, etc. How can private international law deal with these situations? The 1951 Geneva Refugee Convention, which requires that the personal status of refugees be governed by the law of domicile or residence, does not provide an answer to all difficulties. The paper aims to explore PIL connecting factors, such as nationality, habitual residence, and mere presence, and assess their appropriateness for migrants on the move or under temporary protection.

Hannes Wais, Digitale Persönlichkeitsrechtsverletzungen und anwendbares Recht (Digital Infringement of Personality Rights and the Applicable Law)

Under art. 4 para. 1 Rome II Regulation, the law applicable to torts is the law of the state in which the damage occurred. With respect to the violation of personality rights, however, art. 40 para. 1 EGBGB points to the law of the place where the event giving rise to the damage occurred (sent. 1) or, should the victim so decide, the place where the damage occurred (sent. 2). This essay demonstrates that this approach entails an element of unequal treatment and is inconsistent with German substantive law, which tends to favour the tortfeasor over the victim in personality rights cases. These findings give reason to subject the German conflict-of-law rules regarding the infringement of personality rights (which almost exclusively take place online) to an expansive review. The article first discusses the exclusion of personality rights infringements in art. 1 para. 2 lit. g Rome II Regulation and the dormant reform initiative, followed by an analysis of the shortcomings of the solution laid down in art. 40 para. 1 EGBGB. Alternative approaches are subsequently discussed before concluding with a proposal de lege ferenda.

Zheng Sophia TANG, Smart Courts in Cross-Border Litigation

Smart courts use modern technology to improve the efficiency of trials, enabling the parties to access court proceedings from a distance. This advantage is particularly important in cross-border litigation, which is characterised by the cost and inconvenience for at least one party to take part in proceedings abroad. However, although technology can significantly improve procedural efficiency, legal obstacles make efficiency impossible to achieve. This article uses service of proceedings, collecting evidence and virtual hearing as examples to show how the current law, especially the old-fashioned concept of sovereignty, hampers the functioning of technology. In the age of technology, it is necessary to reconceptualise sovereignty. This article argues that private autonomy may be utilised to reshape sovereignty in cross-border litigation procedures and reconcile the conflict between sovereignty and technology.

The table of contents in German is available here.

This is the and final part of a post collectively written by Marion Ho-Dac and Matthias Lehmann. Part one is found here.

The previous post has underlined the DSA’s indifference to PIL. In this post, we will take the example of “illegal content” to illustrate the need for a conflict-of-laws approach.

DSA Regulation of Illegal Content and Conflicts of Laws

The DSA obliges intermediaries to inform the authorities of any effect given to their orders regarding illegal content “on the basis of the applicable Union law or national law in compliance with Union law” (Article 9(1) DSA). This formulation echoes the very definition of illegal content described as “any information … that is not in compliance with Union law or the law of any Member State which is in compliance with Union law” (Article 3 (h) DSA). The Act avoids the – quite arduous – problem how the applicable law shall be identified.  And, more broadly, it demonstrates its indifference to the mere distinction between public and private law issues, by stating that the characterisation of the illegality of the said contents, at the origin of the orders, is based on the applicable law regardless of “the precise nature or subject matter … of the law in question” (Recital 12 in fine DSA).

The same pattern reoccurs with regard to the intermediaries’ obligation to inform the authorities about individual recipients of their services (Article 10(1) DSA). The DSA simply assumes that orders requiring such information will be issued “on the basis of the applicable Union law or national law in compliance with Union law”, without detailing which national law actually is governing.

At the bottom of this method is the assumption that Union law or the national law will identify itself as applicable. Thereby, legal unilateralism is not only embraced, but also reinforced because orders based on unilateralist Union law or national law are strengthened. There are little limits the Act poses on national authorities, except that the territorial scope of their orders must be in compliance with Union law, including the EU Charter of Fundamental Rights, and – “where relevant” – general principles of international law and the principle of proportionality (see Article 9(2)(b) DSA). Interestingly, Recital 36 makes the (exceptional) extraterritoriality of the orders mainly conditional upon the EU legal basis of the illegality of the content, or requires “the interests of international comity” to be taken into account.

The problem with such unilateralism “set in stone” is that it does not overcome conflicts of laws, but exacerbates them. The law of the Member State having the strictest rules with the widest scope of application will be given preference over those who take a more liberal, balanced or nuanced approach.

Additionally, this ‘regulatory competition’ effectively suspends the country-of-origin principle laid down in Article 3(1) e-commerce Directive, which gives exclusive competence to the Member State in which the service provider addressed is established (see Recital 38 DSA). The orders regarding illegal content can be issued by the authorities of any Member State. This can be justified by Article 3(4), though, which provides a public policy exception.

The DSA’s Reason for Indifference to PIL

The reason why this road was taken is, quite obviously, the difficulties to overcome the entrenched divergences between national laws with overlapping scope. For this reason, the EU legislator decided to pass over this problem and place its rules on a different level. Conflicts of laws will be managed, not solved. This is in line with the “procedure over substance” philosophy of the Act, which has been criticised by others.

True, the illegality of internet content is often patently obvious, making the search for the applicable law a redundant exercise. Child pornography, hate speech, details of crimes or private photos do not justify long legal analysis. The DSA calls this “manifestly illegal content” and allows particularly strict measures in their regard, such as the suspension of services to their senders (Article 23(1) DSA). Still, the issue of legality or illegality may not always be so obvious, for instance when it comes to copyright infringements, the offering of accommodation services or the sale of live animals (examples taken from Recital 12), which is regulated quite differently in the Member States, not to speak of betting and gaming or the clash between privacy rights and free speech/freedom of the press that is resolved differently in different countries.

The Limits of Conflicts of Laws

In these instances, and in many others, it would have been preferable to have clear-cut rules that allow to identify the applicable rules. However, and from a more operational perspective, common substantive rules, rather than bilateral conflict-of-laws rules, should have been adopted where Union law is silent on what is illegal content. This would help to preserve individual freedom and to avoid contradicting orders between different Member States. In the absence of a political agreement between Member States on this question, the DSA opts instead for cooperation between regulators, especially the “Digital Services Coordinators” of the various Member State. However, without any clear guidance on whose laws governs, they may lack the means to solve these disputes in a matter that is legally certain, foreseeable and compatible with fundamental rights.

Moreover, the European digital environment will remain fragmented and there may be a risk that “illegal content havens” emerge (in the same way as tax havens in corporate matters). On the one hand, it can be expected that non-EU-based online platforms will choose a legal representative established in a Member State (Article 13 DSA) that is liberal in matters such as freedom of expression and privacy issues. On the other hand, one can imagine these platforms to strategically and systematically invoke their European “law of origin” (i.e. that of the Member State of establishment of their legal representative) in application of the internal market clause of the e-commerce Directive in the event of a civil liability action brought against them. Eventually, it will be for the national court of the Member States to navigate within this regulatory maze, with the sole help of the CJEU.

We guess national judges would rather favour their own law. Indeed, the law of the forum has several reasons to apply here, i.e. as the law governing the illegality of the content, the law of the place where the damages occurred and, more broadly, the law of the place of “use” of the content. This will reinforce the unilateralist tendencies that characterises the whole Act.

The author of this post is Uglješa Grušić, Associate Professor at the Faculty of Laws of the University College London.

As reported on this blog on 13 February 2023, the EAPIL Working Group on the Reform of the Brussels I bis Regulation has issued a preliminary position paper formulating proposals for reforming the Regulation. This is an important document, which gives the members of EAPIL and the readers of this blog a lot of food for thought.

The preliminary position paper, however, does not propose any reform to the Regulation’s rules of jurisdiction in employment matters. I believe that these rules are defective in several respects and that the EAPIL Working Group and, ultimately, the EU legislator should take note of these defects and amend the Regulation accordingly. Here, I want to outline these defects, formulate my proposal for reforming the Regulation in this respect and consider whether my proposal is consistent with those advanced in the preliminary position paper.

Five Defects

The rules of jurisdiction in employment matters of Brussels I bis suffer from five weaknesses that undermine the proclaimed goal of these rules, namely the goal of the protection of employees as weaker parties.

As is well-known, Recital 18 provides that ‘In relation to … employment contracts, the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules.’ Paradoxically, two changes that Brussels I bis introduced in 2012 with the aim of advancing the goal of employee protection are, in some circumstances, less favourable to the interests of employees than the general rules.

Article 20(2) extends the concept of the domicile of the employer, which now covers employers not domiciled within the EU pursuant to Article 63, but which have a branch, agency or other establishment in the EU in relation to disputes arising out of the operations of the establishment. This rule may disfavour claimant employees because, when it applies, national jurisdictional rules, which may be more favourable to employees than the jurisdictional rules of Brussels I bis, do not.

While, pursuant to Article 6(1), persons domiciled outside the EU can, generally speaking, be sued in the Member State courts under national jurisdictional rules, Article 21 provides that employers domiciled outside the EU can only be sued in the courts for the habitual place of work or, absent a habitual place of work, in the courts for the engaging place of business if the habitual place of work/engaging place of business is located in the EU. The CJEU has confirmed, in Case C-604/20 ROI Land Investments Ltd v FD, that such employers cannot be sued in the Member State courts under national jurisdictional rules. This makes little sense from the perspective of employee protection because it puts claimant employees in a significant jurisdictional disadvantage in comparison to claimants in general.

The third and fourth defects are related to the use of the connecting factor of the engaging place of business in Article 21(1)(b)(ii). The rule of jurisdiction based on this connecting factor is not only practically useless, but also leads to considerable legal uncertainty and unforeseeability and undermines the goals of employee protection and proximity. I have presented my objections to this rule of jurisdiction in terms of legal uncertainty, unforeseeability, employee protection and proximity elsewhere, and I will not rehearse those arguments again. Here, I want to focus on the practical uselessness of this rule of jurisdiction.

The rule of jurisdiction based on the connecting factor of the engaging place of business is only applicable if there is no habitual place of work (Article 21(1)(b)(i)). The CJEU has interpreted the connecting factor of the habitual place of work very broadly in its case law on this point that covers so many different kinds of transnational employment relationships (ie itinerant commercial representatives (here and here), workers working offshore, posted workers (hereand here), lorry drivers, seamen, aircrew and agency workers). In fact, the CJEU has interpreted this connecting factor so broadly that there is very little, if any, room left for the connecting factor of the engaging place of business. This means that there is little reason to keep the jurisdictional rule based on the connecting factor of the engaging place of business. This is even more true if Advocate General Øe was correct to find in Case C-804/19 BU v Markt24 GmbH that ‘the forum established in Article 7(5) of the Brussels Ia Regulation is, in principle, the same as that for the “business which engaged the employee”, within the meaning of Article 21(1)(b)(ii) of that regulation’ ([90], fn 68) and to suggest that Article 7(5) applied even if the establishment in question no longer existed at the moment of commencement of proceedings ([93]).

The CJEU held in Case 32/88 Six Constructions Ltd v Humbert that, if the habitual place of work is outside the EU, the jurisdictional rule based on the connecting factor of the engaging place of business is inapplicable. Article 21, therefore, fails to offer any favourable treatment to employees engaged in the EU to habitually work outside the EU. If my proposal to abolish the jurisdictional rule based on the connecting factor of the engaging place of business is not accepted, then at least the relationship between Article 21(1)(b)(i) and Article 21(1)(b)(ii), as interpreted in Six Constructions, should be reformed.

The fifth defect concerns the use of arbitration agreements contained in individual employment contracts. It is unclear if such arbitration agreements should only be enforced under the same or similar conditions that apply to jurisdiction agreements. This problem arises because, on the one hand, arbitration is expressly excluded from the subject-matter scope of Brussels I bis (Article 1(2)(d)), but, on the other hand, arbitration agreements, if effective, deprive employees of the regulation’s jurisdictional protection. There is evidence that digital platforms are taking advantage of this legal uncertainty and inserting arbitration agreements in contracts with their workers (see, for example, Aslam v Uber BV in the English employment tribunal at [35]).

Proposal for Reform

My proposal for reforming the rules of jurisdiction in employment matters of Brussels I bis contains three elements.

First, the international scope of application of these rules should be reconsidered. The goal of employee protection would be better satisfied if the rule extending the concept of the employer’s domicile applied without prejudice to the right of claimant employees to rely on national jurisdictional rules against employers not domiciled within the EU pursuant to Article 63, even if they have an establishment in the EU. Similarly, the availability of the courts for the habitual place of work or, absent a habitual place of work, of the courts for the engaging place of business should not prejudice the right of claimant employees to sue employers domiciled outside the EU under national jurisdictional rules.

Second, the rule of jurisdiction based on the connecting factor of the engaging place of business should be reformed in one of the following two ways. The considerations of effectiveness, legal certainty, foreseeability, employee protection and proximity speak in favour of abolishing this jurisdictional rule. If this were to happen, a new rule could be introduced instead of it, which, by analogy with the jurisdictional rule over contracts for the provision of services (Art 7(1)(b) second indent, as interpreted in cases like Case C-204/08 Rehder v Air Baltic Corporation), would, absent a habitual place of work, give jurisdiction to the courts for each place where some significant work was carried out.

Alternatively, if the abolition of the rule of jurisdiction based on the connecting factor of the engaging place of business is consider too radical, the goal of employee protection would be better satisfied if this rule were available in two situations: where there is not a habitual place of work at all or where the habitual place of work is outside the EU.

Third, a recital should be introduced that would clarify that arbitration agreements cannot undermine the jurisdictional protection provided to employees.

Consistency with the Preliminary Position Paper

The preliminary position paper contains two relevant proposals.

Proposal 11 is that the EU lawmaker should extend Article 7(1) and 7(5) of Brussels I bis to defendants domiciled in third states. The proposal, however, does not clarify whether the application of Article 7(1) and 7(5) to defendants domiciled in third states would lead to a disapplication of national jurisdictional rules. I believe that the drafters of the preliminary position paper should clarify whether they perceive this inevitable consequence of their proposal (see Case C-604/20 ROI Land Investments Ltd v FD) as a welcome development. But even if they do, the objective of employee protection would still point towards the extension of the concept of the employer’s domicile and of the extension of the rules based on the connecting factors of the habitual place of work and the engaging place of business without prejudice to the right of claimant employees to rely on national jurisdictional rules.

Another proposal is that the rules of jurisdiction for consumer contracts should cover tort claims. The UK Supreme Court had asked the CJEU in Case C-603/17 Bosworth and Hurley v Arcadia Petroleum Limited whether a claim not arising directly out of an employment contract or the applicable employment legislation, but in relation to the employment contract (ie a claim in fraud or conspiracy), triggered the application of the protective jurisdictional rules. Advocate General Øe adopted a wide definition of the concept of ‘matters relating to individual contracts of employment’. Since the CJEU found in Bosworth that there was no relationship of subordination, it did not deal with this question asked by the UKSC. If the EU legislator accepts the preliminary position paper’s proposal, it should further be clarified that the concept of ‘matters relating to individual contracts of employment’ is of equally wide scope.

Finally, my proposal for reforming the international scope of application of the rules of jurisdiction in employment matters and the effect of arbitration agreements contained in individual employment contracts can be extended to contracts involving other weaker parties contracts and, therefore, considered in any reform proposal of the rules of jurisdiction for weaker parties of Brussels I bis.

This post was collectively written by Marion Ho-Dac and Matthias Lehmann. It consists of two parts. Part two will be published on 24 February 2023.

The Digital Services Act (DSA) is a landmark legislation in many respects, also regarding its volume (102 pages in the O.J., no less than 156 Recitals). It will force online platforms such as Youtube, Google or Amazon to be more responsible for the contents posted on them. It has been adopted on 19 October 2022 and will (mainly) be applicable from 17 February 2024 (Article 93(2) DSA). Inter alia, it partially amends the e-commerce Directive (Art. 89 DSA) but preserves its famous “internal market clause”.

The DSA’s Indifference to PIL

The DSA states that it applies “without prejudice to Union rules on private international law” (Recital 10 DSA). However, the text deals with the provision of “intermediary services” within the broader concept of “information society services” (i.e. digital services). These virtually always raise cross-border private-law issues (cf. also Recital 2 DSA). A basic example is a legal action by a user in the EU to request the removal of (allegedly) defamatory online content. The question of the competent court will be resolved by the Brussels I bis Regulation – but what about the applicable law?

The DSA does not resolve such conflicts of laws, but pretends they do not exist. Time and time again, it refers to the “applicable national law”, without giving any indication how this law is to be determined. The Act flies in a high legal stratosphere, hovering over any differences between Member State and other national laws.

Yet, there are instances in which conflicts of laws play a role when applying the DSA (as in all EU regulations dealing with private law issues). The first will be studied in this post and concerns the determination of the applicability of the DSA. The second instance is where the DSA makes reference to a national legal system, for instance with regard to illegal content. This will be the subject of another post.

DSA Scope of Application

In the global digital ecosystem, the application of the DSA, as a uniform body of rules, requires that EU law as such is applicable. This is far from obvious since the vast majority of online platforms are based outside the EU. The DSA’s scope of application focuses on the recipients of the intermediary service – their establishment or location in the EU – “irrespective of where the providers […] have their place of establishment” (Article 2(1) DSA). The recipients are those who simply “use” intermediary services, “in particular for the purposes of seeking information or making it accessible” (Article 3(b) DSA).

The provision on the scope of the DSA presupposes that the providers are “offering” their services to recipients in the EU. Characterising the offering to users in a given territory is a well-known difficulty in private international law. But here the issue is more sensitive than e.g. in Article 17(1)(c) Brussels I bis Regulation as it relates to the scope of the DSA’s regulatory regime.

If the text stopped there, the DSA would have a “global vocation”. Such an approach, which could be described as a kind of “maximalist European unilateralism”, is however unpalatable. It would have large extraterritorial effects, create tensions with third countries and, in practice, would probably be unworkable given the limited capacities of European market supervision.

But the DSA is much more cautious and imposes a “substantial connection” with the EU (Article 3(e) DSA). This is de jure the case when the provider of intermediary services is established in the Union. Otherwise, the text requires that either the provider has a “significant number of recipients of the service” in the EU, or that it “targets” recipients in the EU. The first criterion is based on the economic and societal weight of the foreign operator, the latter on its behaviour. Ultimately, these criteria attenuate the European unilateralist approach and thus make it acceptable on a global scale.

Impact on Conflicts of Laws

The applicability of the DSA has consequences for conflicts of laws in case of international private disputes that fall within its scope. The national law of a third State which would be designated as applicable will be set aside in favour of its provisions, which qualify as overriding mandatory rules. Though the text is silent on this, the DSA certainly is regarded as crucial by the EU for safeguarding its public interests, such as its political, social or economic organisation (cf Article 9(1) Rome I). The DSA thus belongs to the European public policy, which is part of the public policy of the Member States.

Although many of its provisions are of a procedural nature, others may have an incidence on the level of substantive law, for instance tort law. This is in particular the case for those rules that concern liability. They operate in a double-edged sword by excluding liability but only under certain conditions. Where these conditions are not fulfilled, the “free pass” on liability under EU law is suspended.

To illustrate, Art 6 DSA exempts hosting services from liability for the hosted content, but only under certain conditions. One of them is that the provider, upon obtaining knowledge or awareness of illegal content, acts expeditiously to remove or to disable access to it (Article 6(1)(b) DSA). In other words, where the hosting provider does not act expeditiously, the way to liability under the applicable law is open.

Although the rule does not impose liability itself, the underlying policy is that the EU will not countenance hosting service providers that do not honour their duties to remove illegal content expeditiously. This could be interpreted as an overriding mandatory rule, which supersedes foreign rules that give a free pass to all hosting service providers. Of course, this interpretation still needs to be tested in court.

In a judgment of 11 January 2023, the French supreme court for private and criminal matters (Cour de cassation) ruled that enforcement measures can be validly carried out 5 minutes after the certificate provided for in Article 53 of the Brussels I bis Regulation was served on the judgment debtor.

I have already reported on this judgment which also addressed the issue of the scope of the exclusive jurisdiction in Article 24(3).

Background

The case was primarily concerned with the enforcement of an English money judgment rendered in 2012 and thus subject to the Brussels I Regulation. However, the English court delivered an order in 2018 which ruled that the shares owned by the wife of the judgment debtor in a French company were only held fictitiously by the wife, and that they should be considered as actually owned by the debtor, her husband. The 2018 English order was subject to the Brussels I bis Regulation.

The judgment creditor initiated enforcement proceedings in France over the shares on the basis of both the 2012 judgment and the 2018 order.

Requirements for Enforcing the English Decisions in France

There was no issue that the 2012 judgment was enforceable in France: the creditor had obtained a declaration of enforceability from the competent French authority, pursuant to the Brussels I Regulation shortly after obtaining the judgment.

However, in order to enforce the 2018 order, it was necessary to obtain an Article 53 certificate from the court of origin, and serve it on the debtor “before the first enforcement measure”, pursuant to Article 43(1) of the Brussels I bis Regulation.

Article 43 does not say how long in advance the certificate should be served on the debtor, but Recital 32 explains that service should be effected “in a reasonable time” before the first enforcement measure.

In that case, the creditor served the certificate on the debtor at 2:55 pm. Then, it carried out the attachment of the shares at 3 pm.

The debtor applied for the attachment to be lifted on a number of grounds, including that the attachment had not been carried out in a reasonable time after service of the certificate.

Judgment

The argument was not formulated very clearly at the early stages of the proceedings. The court of appeal only underscored that service of the certificate was the only requirement for enforcing the 2018 order, and that service had been made at 2:55 pm, before the attachment.

In contrast, the argument was perfectly formulated in the appeal before the Supreme Court, with a direct reference to Recital 32 and to the claim that 5 minutes was not a reasonable time.

The Cour de cassation dismissed the appeal and thus validated the attachment.

Unfortunately, while it did answer the argument on the jurisdiction of the English Court, it did not give any reason to dismiss the argument on the time of service of the Article 53 certificate, except that it was manifestly wrong. It held:

Sur les premier et deuxième moyens et sur le troisième moyen, pris en seconde branche, ci-après annexés

En application de l’article 1014, alinéa 2, du code de procédure civile, il n’y a pas lieu de statuer par une décision spécialement motivée sur ces griefs qui ne sont manifestement pas de nature à entraîner la cassation.

And that’s it !

The French Cour de cassation has long been famous for delivering cryptic decisions, offering reasons in a couple of sentences. In recent years, however, the Court has realised that it had to make efforts and give more reasons in order to improve the accessibility of its judgments and of the law generally. The Court entered into a new era of motivation enrichie (enriched reasons), or motivation développée.

Well, so much for motivation enrichie and developpée.

We are back to the days of guessing what the court meant. What we know, however, is that the challenge against the enforcement measure has now been finally dismissed, and that the argument that the certificated was served 5 minutes before the enforcement measure was rejected, and that it was considered “manifestly” wrong.

Assessment

The requirement that the art 53 certificate was introduced in 2012. While the European lawmaker was completing its project of abolishing all intermediate measures to enforce foreign judgments within the EU (initiated in Tampere in 1999), it reintroduced one with Art. 43(1): the requirement only applies to the enforcement foreign jugdments, and is thus an additional delay and cost for the creditor. Just as good old exequatur.

The goal is to offer an additional protection to the debtor by informing him of the intention of the creditor to initiate enforcement proceedings in another Member State. But one wonders why the debtor should receive any additional protection. By definition, he was ordered to pay the monies by an enforceable judgment, which means that he could not convince the foreign court. He still does not want to pay, which forces the creditor to initiate enforcement proceedings. Finally, the debtor may be taking step to dispose of his assets, which is exactly what the debtor had done in this case, by transferring his assets to his wife. This all begs the question of why EU law should afford him any additional protection. Have we not reached the stage where the right to enforcement of the creditor should simply prevail?

It is therefore submitted that this judgment of the Cour de cassation is excellent, and that Article 43(1) of the Brussels I bis Regulation should be abolished, as the EAPIL Working Group on the Reform of the Brussels I bis Regulation will hopefully propose.

Distinguishing Enforceability and Enforcement of Judgments

If we leave aside policy and get back to law, there are several grounds which could be put forward to justify the outcome of this judgment.

Let’s first insist that the measures carried out over the shares at 3 pm were enforcement measures, aiming at transferring their ownership to the creditor. They were not protective measures, to which Article 43(1) does not apply (see Article 43(3)). Unfortunately, the judgment mentions at the beginning that the measure was a “saisie conservatoire“. This is simply a mistake (!), and art. 43(3) was never raised at any point of the proceedings.

The best rationale for the outcome of the judgment is that the proceedings were concerned with the validity of the French enforcement measure over the shares. As the CJEU has repeatedly held, however, the Brussels I bis Regulation only governs the conditions at which foreign judgments become enforceable in other Member States, but does not govern enforcement per se. The validity of French enforcement measures is only governed by French law. The requirement that the Article 53 certificate be served could not, therefore, impact the validity of an enforcement measure. It could only limit the enforceability of the foreign judgment. But there is no indication in the Brussels I bis Regulation that service of the certificate is a requirement for extending the enforceability of judgments in other Member States.

Finally, one wonders whether it was necessary to enforce the 2018 English order in the first place. The money judgment was the 2012 judgment. The 2018 order did not really need to be enforced. It only declared who the owner of the relevant assets was. Arguably, it would have been enough to recognise the 2018 order. And for that purpose, Article 43(1) does not require service of the Article 53 certificate.

The editors of the European Yearbook of International Economic Law (EYIEL) welcome abstracts from scholars and practitioners at all stages of their career for the EYIEL 2023. This year’s focus section will be on European and International (Public) Procurement and Competition Law. Next to this, in Part II the EYIEL will consider Current Challenges, Developments and Events in European and International Economic Law.

For the General Section, abstracts shall address topics which are currently of relevance in the context of European and International Economic Law. Similarly, reviews of case-law or practices and developments in the context of international organisations are encouraged. For the Focus Section, abstracts may cover any topic relating to (public) procurement and competition law in the field of European and international economic law, though preference is given to topics focusing on the international perspective.

Abstracts should not exceed 500 words. Abstracts together with a short bionote may be submitted until 28 February 2023 via e-mail to eyiel@leuphana.de.

For all the relevant information, see here.

The Hague Conference on Private International Law (HCCH) has recently published the new edition of the Practical Handbook on the Operation of the Apostille Convention.

The Handbook provides guidance on the practical implementation and operation of the HCCH Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents, applied tens of millions of times every year to the benefit of individuals, families, and businesses from across the world.

This second edition provides updated information and resources in response to the latest developments in relation to the Convention, including by incorporating advice from recent meetings and reflecting on the experiences of the growing number of Contracting Parties. Key changes include a greater focus on the electronic Apostille Programme (e-APP), further explanation of the role of diplomatic missions, and the incorporation of outcomes of the Working Group on the Authentication of Documents Generated by Supranational and Intergovernmental Organisations, the Experts’ Group on the e-APP and New Technologies, as well as the most recent meetings of the International Forum on the e-APP and the Special Commission on the practical operation of the Apostille Convention.

The Handbook is available here in English, French and Spanish.

The INSOL Europe Academic Forum (IEAF) is inviting submission for its 19th annual conference, taking place on 11-12 October 2023 in Amsterdam. Expressions of interest are invited for the delivery of research papers within the overall theme of the academic conference The Perpetual Renewal of European Insolvency Law.

Submissions are welcome dealing, for instance, with (i) Public and social policy and the impact on corporate rescue, and vice versa, (ii) Pre-packs rehabilitated, (iii) Modern issues surrounding directors’ duties to file for insolvency and (iv) EU Preventive Restructuring Directive and European Insolvency Regulation.

Expressions of interest in delivering a paper should be sent by email on or before 1 March 2023 to the IEAF’s Deputy Chair, Dr. Jennifer Gant, at jenniferl.l.gant@gmail.com by using the form available here.

The call for papers is available here. For further information on the conference, see here.

The number of States which, pressed by the need to relieve and speed up the work of the courts, have de-judicialised the dissolution of the marriage bond and assigned the responsibility thereto to various extrajudicial authorities (Civil Registrars, notaries, mayors, etc.), has considerably increased in recent times.

This has been the case in Spain, where, following the entry into force of Law 15/2015 of 2 July 2015 on Voluntary Jurisdiction, Spanish notarial authorities are competent to grant divorces (Articles 81, 82 and 87 of the Civil Code). Examples exist as well in Latin America (Cuba, Mexico, Brazil, Colombia, Ecuador, Costa Rica, Peru, Bolivia and Nicaragua), Europe (Italy, France, Portugal, Italy, Denmark, Norway, Greece, Russia, Latvia, Estonia, Ukraine, Moldova and Romania), Asia and Euro-Asia (Japan, Kyrgyzstan, China, Armenia).

In fact, a thorough examination of comparative law shows that the regulation of non-judicial divorce is very diverse, even in countries belonging to the same geographical area. Not in all cases does an authority intervene, nor, when it does, does it perform identical functions or is vested with the same competences. With this in mind, a monograph by Nuria Marchal Escalona, titled El Divorcio No Judicial en Derecho Internacional Privado (Thomson Reuters Aranzadi, 2022), analyses the private international law-related problems Spanish notaries face when authorizing a public deed of divorce in cross-border cases. It further deals with the difficulties foreign extrajudicial divorces meet to produce effect in Spain. The study of a per se intricate subject matter becomes even more complex due to the number of legal sources in Spanish private international law in the field.

The monograph addresses, in the first place, jurisdiction – international and territorial – to grant a public deed of divorce. At a second stage, it examines the law applicable both to the dissolution of the marriage and to the issues necessarily associated thereto, such  as the use of the family home, financial regime of the marriage, or maintenance. Lastly, it deals with the problems foreign non-judicial divorces run into to be effective in Spain. In particular regarding the latter point, the analysis is highly topical for three reasons: firstly, due to the  judgment in Case C-646/20, where the CJEU ruled that a divorce certificate issued by a civil registry official constitutes (subject to conditions) a “judicial decision”; by way of consequence, under Regulation 2201/2003 such divorces are to be recognized like a judicial decision. Secondly, Article 65 of Regulation 2019/1111 introduces a relevant novelty in the field, since, in contrast to the twofold combination of judicial decision (Art. 21) and public document (Article 46) of the Brussels I bis Regulation, it also allows for the effectiveness of registered private agreements. Finally, Article 96, paragraph 3, of the Spanish Civil Register Act extends the legal regime it itself accords to foreign judgments to decisions delivered by foreign non-judicial authorities in matters which, under to Spanish law, belong to the remit of judges and courts.

The monograph aims at offering a complete vision of the Spanish private international law rules regarding non-judicial divorce in a clear, praxis-oriented way, with an exhaustive analysis of comparative and case law. Above all, it provides the legal professionals essential guidance to overcome the fragmentation of sources in order to ascertain the rules pertinent to each individual case.

Burcu Yüksel Ripley (University of Aberdeen) has posted on SSRN a paper titled Cryptocurrency Transfers in Distributed Ledger Technology-Based Systems and Their Characterisation in Conflict of Laws. The final version will appear in an edited collection in honour of Jonathan Fitchen titled From Theory to Practice in Private International Law: Gedächtnisschrift for Professor Jonathan Fitchen (Hart, forthcoming).

The abstract reads as follows:

In modern payment systems that are used today, non-cash payments are predominantly executed by banks, acting as an intermediary between payers and payees, in the form of bank-to-bank (interbank) funds transfers through bank accounts. A fundamental structural change has been introduced to this method of making payments with the emergence of cryptocurrencies underpinned by distributed ledger technology (DLT). This has enabled that non-cash payments can be made outside of the banking system directly from payer to payee and secure digital records can be held independently of the usual central trusted authorities such as banks. This global paradigm shift, starting with the possibilities of cryptocurrencies in payments, has introduced new challenges for private international law. The issue of characterisation of cryptocurrency transfers in DLT-based systems is at the heart of the some of the key private international law questions, including the determination of the law applicable to cryptocurrency transfers. The efforts have thus far mainly focused on characterising cryptocurrencies themselves as money, property or claims and a discussion around the application of the lex situs as the predominant connecting factor in international property law and the consideration of the relevant conflict of laws rules regarding the transfer of intangibles for cryptocurrency transfers. The purpose of this chapter is to offer a new perspective on the characterisation of cryptocurrency transfers taking place within DLT-based cryptocurrency systems by utilising an analogy to electronic funds transfers and funds transfer systems under unitary and segmented approaches and consider the potential effects of both approaches on the law applicable to cryptocurrency transfers.

Morten Midtgaard Fogt (Aarhus University, Denmark) has had a book titled Choices, Limits and Consequences of Harmonisation of Commercial Law published. The abstract of the book reads as follows.

The harmonisation of private commercial law and the application of the various instruments of harmonisation are becoming increasingly complex. New formal or informal means of harmonisation are added to the panorama of harmonisation instruments and new actors, be it at global, regional or national level, are introduced as well. Regional harmonisation sets its footprint both internally and externally. Innovative (or reintroduced) methods and phenomena for the harmonisation of commercial law have been suggested. Still, the most important and dominant means of harmonisation are the traditional multilateral conventions, the flexibility of which have been improved by different types of reservations and review and/or revision clauses. Taken together, the harmonisation process with its various and different means constitutes a circle of law harmonisation, in which circle there is an interaction between, and reciprocal influence of, all the various formal or informal means of harmonisation.

This book analyses the process of law harmonisation with the focus on choices, limits and consequences and uses in particular the CISG and Cape Town Conventions as examples. It takes into account means, methods, role of old and new actors, principles of interpretation and gap-filling, impact of judicial bodies and their lawfinding and possible law-making function.

An important issue, which transcends the work, is how to strike the balance between the harmonisation by formal means of legislation and the creative law-making role of jurisprudence and doctrine in order to accommodate the promotion of a dynamic and continued progress in the harmonisation, the necessary degree of predictability and legal certainty, and a clear distinction from the otherwise non-harmonised applicable national law.

The EAPIL Working Group on the Reform of the Brussels I bis Regulation has issued a preliminary position paper formulating proposals for reforming the Regulation.

The proposals are based on the opinions expressed by the members of the working group and the participants at the conference held at the Max Planck Institute Luxembourg in September 2022. The proposals of the members of the Members Consultative Committee were also forwarded to the drafters of the position paper.

The chairs of the Working Group (Burkhard Hess and Geert van Calster) now invite all interested members of EAPIL and readers of the blog to participate in a survey on the proposals formulated in the position paper until 13 March 2023. The survey can be accessed here.

This post has been written by Silvana Canales Gutiérrez, who is a Postdoctoral Researcher at Rovira i Virgili University (Tarragona).

The “First International Seminar on rights in rem in the European Union: General Aspects and International Jurisdiction”, directed by Georgina Garriga (Universitat de Barcelona) and Maria Font (Universitat Rovira i Virgili), took place at the Faculty of Legal Sciences of the Universitat Rovira i Virgili in Tarragona, on 10 and 11 November 2022.

The conference focused on rights in rem, approached from the standpoint of EU private international law (EUPIL) and comparative law, trying to identify the problematic aspects of the “in rem” qualification under the regulatory instruments applicable in the EU (mainly, Regulation (EU) 1215/2012), as well as under Spanish domestic law, owing to the plurilegislative nature of its legal system.

A. The Contents of Rights in Rem from a Comparative Law Perspective

The conference was permeated by an analytical and comparative approach that began with the presentation by Héctor Simón Moreno (Universitat Rovira i Virgili) on “Rights In Rem in Europe: A Comparative Perspective”.  The speaker explained the essential differences in the conception of rights in rem existing in common law and civil law legal systems. He argued that these differences affect the dimension of these rights and directly influence their material content, as well as the ways of acquiring, transmitting, or losing these rights, their effects on third parties and the legal actions for claiming them, which can change from system to system.

In the same line of thought, Francisco J. Garcimartín Alférez (Universidad Autónoma de Madrid) pointed to the difficulties in delineating rights in rem in the EU legal order. These difficulties stem from the uncertainties that surround the definition and the terminology relating to this subject-matter both in the normative instruments and in the case law of the EU. However, the speaker deemed it possible to identify certain “key points” of rights in rem, such as the right of ownership and their enforceability against third parties. It is even possible to shape a relatively consistent general definition of rights in rem: although such exact definition cannot be directly extracted from normative texts, it is possible to identify the essential attributes of these rights, that could help in their characterization.

Eva-Maria Kieninger (Julius-Maximilians-Universität Würzburg), addressed the traditional distinction between rights in rem on movable and immovable property. The speaker explained that the general idea of rights in rem existing only on immovable property can also be extended to movable property, through a legal fiction which portrays them not only as an accessory, but also as an integral part of a piece of land. In this regard, the speaker gave the example of solar panels: according to Dutch case law, if their vocation is to remain in the real estate, they can change their status of movable property and become part of the land where they are located. However, the criterion to determine the legal conversion of movable property into real estate presents difficulties in the EU, taking into account that there are neither proposals for unification of the Member States’ land laws, nor domestic proposals within each State to define or regulate such conversion. To solve this legal vacuum at a global level, UNIDROIT developed a proposal for a convention that was adopted in 2019, the “Protocol to the convention on international interests in mobile equipment on matters specific to mining, agricultural and construction equipment” (MAC protocols), which, as of 20 September 2022, has only been signed by six countries and has been ratified by none.

B. The Contents of Rights in Rem in Plurilegislative Legal Systems

From a comparative perspective, rights in rem can be regulated in different ways, especially when dealing with plurilegislative legal systems. This premise was developed by Ángel Serrano Nicolás (Notary in Barcelona), who presented a comparative analysis of the different legal systems coexisting in Spain to regulate rights in rem. In particular, he explained the differences between the Spanish Civil Code and the foral civil regulations of Catalonia, the Basque Country and Navarra, in relation to legal institutions such as usucapio, surface rights, easements, the right of withdrawal and first refusal, and the right of use and habitation, among others.

In the same line of argument, but from a conflict-of-laws perspective, Albert Font i Segura (Universitat Pompeu Fabra) highlighted the exclusive competence of the State in registry matters. This exclusive competence unifies the access, publicity and regulation of rights in rem, facilitating their homogeneity of treatment despite the diversity existing in the Spanish civil regulations. This diversity impacts, in particular, on the regulation of inter-local conflicts (Basque Country), on the administrative control of the registry qualification, on procedural legislation and on the guarantees of the rights in rem. The application of one regulation or another is not easy to establish and this problem cannot always be avoided by means of an agreement on the applicable law. These legal frictions create an inter-regional conflict of laws that is at least debatable, and which has been the subject of decisions by the Constitutional Court on several occasions.

The analysis of the current situation of rights in rem within this panel revealed that there are different ways of conceiving their constituent elements. At the same time, it is not possible to say that there are currently new rights in rem, which are excluded from the applicable regulations, even where they involve electronic contracting with innvoative elements, such as transactions with cryptocurrencies or 3D property rights.

C. International Jurisdiction

Moving on to the subject of international jurisdiction, specifically on Regulation (EU) 1215/2012, the remaining speakers analyzed the most important aspects of this Regulation, pointing to the problems of application of certain of its articles, the alternative interpretations of some of its provisions and, in some cases, making proposals on how to improve its wording or application to meet its objectives in the light of the new challenges facing EUPIL.

Ilaria Pretelli (Institut Suisse de Droit Comparé) began by explaining that the maxim forum rei sitae applies when it comes to actions related to determining the extent, content, ownership or possession of property. This classic relationship between jurisdiction and the place where the property is located is justified by the fact that, for evidentiary purposes, it is necessary to carry out verifications, investigations and expert opinions in the place where the property is located, provided that the claim involves an assessment strictly linked to such place, in accordance with the doctrine developed by the CJEU. However, as regards mixed actions, these may generate a conflict of jurisdictions when they involve a personal right and a right in rem, taking into account that these actions are predominantly in personam. The fact that the contract in dispute concerns immovable property is irrelevant, the immovable nature of the subject matter of the contract being of marginal importance only (e.g. Case C-417/15). This being so, it may be necessary to reconsider the applicability of the forum rei sitae rule in cases where the main object of the action is the claim of a personal right and not of a right in rem.

Ivana Kunda (University of Rijeka) gave an interesting explanation on the recovery of cultural objects under Regulation (EU) 1215/2012. The speaker explained that cultural objects have a special protection, as they are part of the heritage and history of mankind, which means that they do not theoretically belong to a State, but are goods of interest to the society as a whole. Taking the above into consideration, art. 7.4 of Regulation (EU) 1215/2012, whose intention is to protect cultural objects located in the Member States by establishing a specific forum to recover them, has a limitation that is not in line with the objectives of the special protection needed by  this type of property. In fact, this provision requires both the defendant and the cultural object to be located in the Member States for the Regulation to be applicable. The speaker proposed a change of this provision, modeled on other RBIbis protective fora, in which the defendant is not required to be domiciled in the Member States in order to be sued in the EU. This same model could be replicated for Art. 7.4 of the Regulation.

Cristina González Beilfuss (Universitat de Barcelona) focused on the problematic assimilation (for civil law) of the trust. In English and Anglo-American law, it is not clear whether the trust is a right in rem: while being included within the property right, there is a split between the rights of the beneficiary and those of the trustee. In contrast, in civil law, the property right is absolute, which makes it necessary to adapt the trust. These different understandings of the trust in civil and common law systems have an impact on the determination of international jurisdiction, since it must be established whether it is an action related to a  right in rem, or whether the subject matter of the claim falls under the scope of personal rights. This distinction affects the determination of the forum (Articles 7 and 25 of Regulation (EU) 1215/2012). Additionally, other interpretative doubts arise, concerning, for example, the lack of uniformity and the difficulties in determining the domicile of the trust, or the application of Regulation (EU) 1215/2012 to testamentary trusts (considering that wills are excluded from the scope of application of the Regulation).

Carmen Parra Rodríguez (Universitat Abat Oliba CEU) put forth a proposal for improving Regulation (EU) 1215/2012 as concerns rights in rem over movable property. The speaker remarked that the concept of movable property is not defined in this Regulation, which does not contemplate a specific forum in this respect. Due to this, there are proposals that regard the forum rei sitae as a potential alternative for actions involving movable property, although the mobility of such assets generally makes it difficult to definitively determine the place where they are located. Thus, other fora may be more appropriate to the nature of movable property, such as the defendant’s domicile, the place where the property is registered, the court with the closest ties, or determining jurisdiction by express or implied submission.

Josep Maria Fontanellas Morell (Universitat de Lleida), argued for a relaxation of the exclusive forum of Article 24 of Regulation (EU) 1215/2012. The speaker argued, on the one hand, that the qualification adopted by the CJEU in this respect needs clarification, insofar as it should better delimit the category to distinguish it from other adjacent ones, such as contractual obligations or delictual or quasi-delictual matters. On the other hand, the arguments that justified, at the time, the creation of an exclusive forum should be reconsidered, as they have now partly lost their raison d’être.

D. Future Events

The ideas put forward in the Seminar are the beginning of a debate on the Private International Law of rights in rem, which will continue in the near future. Two other events (open to the general public) on this same subject are scheduled: the first is especially devoted to the perspective of the Spanish and European notary’s office and it will be held (in Spanish) on 13 and 14 June 2023 at the College of Notaries of Catalonia (Barcelona, Spain). The second will be focused on a future instrument on the law applicable to rights in rem. It will take place in 2024 at the University of Barcelona and it will be held entirely in English.