EAPIL blog

This post was contributed by Caroline Sophie Rupp, who is a professor at the University of Kiel.

Credit: dpa

To vary an adage, “sad cases make sad law“. The case at hand, regarding the return of a child to its father in Spain after being brought to Germany by its mother, illustrates this.

After a lengthy legal battle, a Spanish judgment ordered the return of the child. Having unsuccessfully attempted to have the enforcement in Germany (based on a certificate according to Article 42 of the Brussels II bis Regulation) temporarily stayed with the enforcement court, the mother applied to the German Constitutional Court (Bundesverfassungsgericht, hereinafter: BVerfG) for interim relief. This was granted – temporarily – on August 1, 2022 by the 3rd chamber of the BVerfG’s First Senate (1 BvQ 50/22, ECLI:DE:BVerfG:2022:qk20220801.1bvq005022). However, the story is far from over. There have been several extensions of this interim relief, and a constitutional complaint has been lodged in the name of the child.

The history of the case is as long as it is complicated (part I), eventually leading to the BVerfG’s decision (part II). A selection of the many issues touched upon by the case will then be highlighted (part III).

I. A Legal Odyssey

In August 2013, a son was born in Madrid to unmarried parents. After their separation in March 2014, the mother took the child with her to Germany without the father’s knowledge or permission. Living in Germany ever since, the son – now nine years old – speaks only German, goes to school and is fully integrated socially in Germany (including a good relationship with the German citizen the mother married in July 2014 and his family, even after a subsequent divorce).

The custody proceedings initiated by the father in Madrid resulted in a (default) decision in June 2015 which granted him custody of the son as well as the right to decide on his residence. In February 2016, the father applied to a German family court (Amtsgericht als Familiengericht) in Bamberg for an order for the immediate return of the child to Spain according to the 1980 Hague Convention on Child Abduction.

The family court rejected this application on the grounds that the child had indeed been wrongfully removed from Spain to Germany by its mother, but that more than a year had passed (Article 12 para. 1 Hague Convention on Child Abduction) and the child was settled in its new environment (Article 12 para. 2 Hague Convention on Child Abduction).

The father’s appeal to the Higher Regional Court (Oberlandesgericht Bamberg, hereinafter: OLG) was dismissed in June 2016, on the ground that taking the child out of its social environment would not be in its best interest.

In December 2016, the mother applied to the German family court for sole custody. The family court declined to decide as German courts lacked jurisdiction. The father had lodged a request for return within a year of his learning of the child’s whereabouts, so international jurisdiction remained with the Spanish courts (Article 10 lit. b) no. i) Brussels II bis). This was upheld on appeal in April 2018. However, when the mother requested the Madrid court to amend its decision of June 2015 and grant her custody in January 2019, this was equally declined due to a lack of jurisdiction. The Madrid court considered the Spanish courts to have lost jurisdiction as the child had established habitual residence in Germany, ending the applicability of the Hague Convention on Child Abduction and leading to the German courts’ international competence according to Article 61 Brussels II bis. Subsequently, a Spanish criminal court condemned the mother to a 3-year prison sentence as well as the loss of custody rights for seven years because of child abduction.

In July 2019, the mother applied to the German family court for sole custody again. This time, her request was granted: The court took the view that the previous decline of jurisdiction by both German and Spanish courts and the fact that the father had never exercised the sole custody granted to him in 2015 necessitated action. While none of the exceptions listed in Article 10 lit. b) Brussels II bis was directly fulfilled, the non-application of Article 10 Brussels II bis was considered possible through the analogous application of lit. b) no. iv). This reasoning was however rejected on the father’s appeal. The OLG considered Article 10 Brussels II bis to be applicable still, with no possibility for interpretation beyond its wording regarding a “cut-off date”. Rather, it pointed to the possibility to transfer a case to a better-placed court under Article 15 Brussels II bis as a well-balanced remedy for problems arising from the perpetuated international competence of the Member State of origin. The result in October 2021 was – again – German courts declining jurisdiction.

Meanwhile, in June 2020 the father had applied to the German family court in Nuremberg, demanding the (immediate) return of the child by way of provisional measures. The evaluation of the child’s situation showed that transferring him to Spain into the custody of a father he hardly knew (and did not even share a common language with) was likely to result in a severe traumatisation. With regard to the child’s best interest, the family court dismissed the father’s application for (interim) return in September 2020. This decision was upheld on appeal in November 2020 by the Higher Regional Court (OLG) Nuremberg, which additionally pointed out that provisional measures under Article 20 Brussels II bis could not be used to make up for the failure of the previous return application under Article 12 para. 2 Hague Convention on Child Abduction (in 2016).

Not to be deterred, the father then applied to a Madrid court for return of the child. While the mother made use of her opportunity to participate in the proceedings (only) by way of a written statement, the child was apparently neither heard nor represented. In September 2021, the Madrid court ordered the child’s return to Spain and to his father, not taking into consideration that the child had no relationship with the father and spoke no Spanish. It also pointed out that due to the criminal sentence against the mother, a warrant for her arrest had been issued. In February 2022, the Madrid court issued a certificate for the cross-border recognition and enforcement of this judgment under Article 42 para. 2 Brussels II bis.

Presenting this certificate to the German family court, the father demanded enforcement of the return decision. In March 2022, the family court, considering it immediately enforceable in Germany, ordered the mother to promptly return the child. However, on the same day the German court contacted the Madrid court through the European Judicial Network and requested it to revoke the certificate, pointing out that the conditions for issuing a certificate under Article 42 para. 2 Brussels II bis had not been met. The German decision denying the return of the child in 2016 had been rendered according to Article 12 para. 2 and not Article 13 Hague Convention on Child Abduction.

On the mother’s appeal against the enforcement order, in June 2022 the OLG (regional court of appeal) confirmed that the return decision remained enforceable as the father had presented a certificate by the Madrid court of origin according to Article 42 para. 2 Brussels II bis and Article 42 para. 1 Brussels II bis does not foresee any possibility for opposition to the judgment or the certificate before the court of enforcement (in another Member State) – all objections against the return of the child or the procedure leading to the return judgment have to be brought solely before the court of origin. According to the OLG, this includes a review of whether the conditions for issuing a certificate under Article 42 para. 2 Brussels II bis had been met. While the German family court had suggested referring this point to the ECJ for clarification, the OLG considered it already clarified by Zarraga (ECJ C-491/10 PPU) and refrained from a referral. Thus, even though in this case the certificate had been issued wrongly, the OLG saw no grounds for the German family court to refuse enforcement.

In view of this, the mother applied to the Madrid court in June 2022 requesting an amendment of this certificate, arguing especially that the child’s interest had not been regarded in the proceedings. She also requested a temporary stay of enforcement in Germany until the Spanish courts had reached a decision regarding the amendment of the certificate. The family court rejected this, as according to the ECJ (as quoted by the OLG) the existence of the certificate prevented any examination on the merits. The mother lodged an immediate appeal, claiming that the child’s transfer to Spain would result in a massive threat to his welfare. The OLG rejected this as it considered an examination on the merits to be the exclusive domain of the (Spanish) original court. Very unusually, the OLG then addressed both parents, admonishing the father to consider the child’s best interests and not insist on his immediate transfer to Spain, and the mother to accept the legal situation and not aggravate it further for her son.

In this situation, the mother applied to the German Constitutional Court (BVerfG), requesting interim measures to stay the enforcement of the child’s return to Spain until the Spanish courts had reached a decision regarding the amendment of the certificate.

II. The Decision by the Bundesverfassungsgericht

The BVerfG granted the mother’s application and ordered a temporary stay of enforcement regarding the return decision – initially, until August 11, 2022. Due to the particular urgency of the matter, the father was not heard in the interim proceedings.

Granting such a temporary injunction requires that a (future) constitutional complaint (Verfassungsbeschwerde) in the main proceedings would be neither inadmissible nor obviously unjustified. On the basis of a summary assessment, the BVerfG was satisfied that this was the case. The time limit for a constitutional complaint against the German courts’ decisions of March 2022 and June 2022 had not yet expired. Such a complaint by the mother herself could be based on her constitutional parental rights (Article 6 para. 2 s. 1 Grundgesetz). A constitutional complaint by the child was considered envisageable as well – however, due to the mother’s lack of custody it would need to be raised by a guardian ad litem.

According to the BVerfG, it was not to be ruled out that the interpretation and application of Article 42 Brussels II bis by the family court and the OLG had led to unjustifiable impairments of the mother’s and the child’s fundamental rights. The German courts had been aware of the danger an immediate return to Spain would pose to the child’s welfare; however, they had considered themselves unable to take into account the child’s and the mother’s constitutional rights. In their opinion, Article 42 Brussels II bis (as interpreted in accordance with the ECJ) prevented them from considering these “substantial” aspects of the child’s welfare in the enforcement proceedings based on a certificate from another Member State, EU law barring an examination on the merits under all circumstances.

The BVerfG, however, pointed out that in this case, Article 42 Brussels II bis did not necessarily impede such an examination as it was not applicable: The certificate had been wrongly issued as the situation did not fall within its scope (as shown by the family court in its March 2022 decision). As Article 42 Brussels II bis can prevent an examination on the merits by the enforcement court only when it is applicable, under these circumstances a review, especially with regard to fundamental rights, under general rules would have remained possible.

The family court and the OLG had assumed that the presentation of a certificate prevented the enforcement court from even examining whether Article 42 Brussels II bis was applicable in the first place. Such a far-reaching interpretation needs to be considered also in light of European fundamental rights. It could lead to disregarding grounds for non-enforcement intended to protect the child, although the prerequisites for such an exclusion under Article 42 Brussels II bis are not fulfilled. On the other hand, an examination by the enforcement court limited to the question of the applicability of Article 42 Brussels II bis would not be contrary to the ECJ’s position established in Zarraga, as it would not extend to an examination of Article 42 Brussels II bis “in substance”. Such an approach would then, in case the enforcement court determines Article 42 Brussels II bis to be inapplicable, open the door for considering in how far a forced return of the child would infringe fundamental rights. Not taking these considerations into account, the decisions by the family court and the OLG constitute possible violations of fundamental rights, making a future constitutional complaint potentially successful. (The BVerfG thus can leave open the question whether the child’s EU fundamental rights might demand an examination on the merits by the enforcement court and an interpretation of EU law allowing for it when there are no other possibilities to avoid massive fundamental rights infringements, and whether in case of a lack of such a fundamental rights protection on the European level the German Grundgesetz might impose such an examination on German courts in exceptional circumstances.)

Weighing the consequences of not granting interim measures and later success of the constitutional complaint against the consequences of granting interim measures and later non-success of the constitutional complaint, the BVerfG granted the temporary injunction in order to avert serious disadvantages. Not granting interim measures would result in the child’s return to his father who could immediately take him to Spain, posing a grave and irreversible danger to the child’s welfare and blatantly contradicting the child’s best interest, as also stressed in the various family court and OLG decisions – with a potential second enforced return back to Germany after the constitutional complaint proceedings. Granting interim measures and conserving the status quo would result in a (further) delay of the child’s return to his father, perpetuating the wrong against the father but hardly disadvantaging the child.

The BVerfG thus granted the temporary injunction, limiting it initially until the end of the deadline for lodging a constitutional complaint (by the mother) and pointing out that if such a complaint was admissible, a further stay of enforcement could be extended until the Madrid court reached a decision regarding the mother’s request for amendment of the certificate. After a guardian ad litem had been appointed for the child (enabling a constitutional complaint by the child also), the BVerfG reissued the temporary injunction and extended it until the end of the deadline for the initiation of such proceedings (BVerfG August 10, 2022). A constitutional complaint having been lodged in the child’s name, the BVerfG granted another stay of enforcement until a decision regarding this constitutional complaint had been reached, but limited to six months (BVerfG 1 BvR 1691/22, September 1, 2022, ECLI:DE:BVerfG:2022:rk20220901.1bvr169122). It pointed out that a decision reached in July 2022 by the Madrid court did not address the concerns raised regarding the fulfilment of the requirements for the certificate, and could hence not alter the balance of the weighing of interests.

III. More Questions Raised than Answered

The BVerfG judgment is – both in form and in content – no more than a stay in proceedings. It is not for interim measures to reach a final verdict regarding the infringement of (German) fundamental rights. In how far fundamental rights have indeed been violated by the German courts’ enforcement decisions will remain to be decided in the main constitutional proceedings which have been brought by the child (the mother has, apparently, limited herself to the ”isolated” interim measures procedure without proceeding to a constitutional complaint).

It is also not for the German Constitutional Court to decide on the interpretation of EU regulations on international civil procedure. With regard to the interpretation of Article 42 Brussels II bis, the BVerfG offers no more than an option – albeit one that provides an elegant solution for the case at hand (and beyond). The potential violation of fundamental rights by the German enforcement courts does however not stem from a “wrong” interpretation of Article 42 Brussels II bis, but from their disregard of the potential line of interpretation proposed by the BVerfG,  (an examination limited to the applicability of Article 42 Brussels II bis, non-applicability allowing for a review under general rules). Their duty to explore it (aiming at an interpretation safeguarding fundamental rights) would probably have led to a referral to the ECJ, as initially suggested by the family court. Such a referral would have been desirable on several counts. Firstly, only the ECJ can provide the much-needed clarity regarding the interpretation and scope of Article 42 Brussels II bis, especially whether it truly comprehensively precludes any examination by the enforcement court, even restricted to the preliminary matter of its scope of application. Secondly, a referral would have allowed the ECJ to temper the strict principles established in Zarraga with a more differentiated approach, specifically taking into account the child’s right to be heard in court and its fundamental rights (as granted by the EU Charter of Fundamental Rights). Thirdly, the ECJ’s position regarding the potential infringement of European fundamental rights would have provided more than welcome guidance for future child return cases under the Brussels regime, for both courts of origin and enforcement courts.

A need for clarification will persist under the Brussels II ter regime. Its rules on certificates for privileged decisions (Article 47 et seq. Brussels II ter) aim to clarify the relationship with the Hague Convention on Child Abduction and to clearly outline the conditions for issuing a certificate – including the opportunity for the child to express his or her views (Article 47 para. 3 lit. b)). Their fulfilment has to be certified by the court of origin using the form provided in Annex VI. These new safeguards are intended to avoid situations like the present case, in which a certificate is issued although the requirements for it are not met, and they will hopefully improve the situation somewhat. However, they cannot guarantee that the problem of wrongly issued certificates will be a thing of the past – and for such cases, Brussels II ter does not provide a remedy at the enforcement level either. As the problem of the possibility of “wrongful immediate enforcement” persists under the new rules, the solution of an “applicability control” seems attractive also for the future. If it is rejected, it seems well possible that – at least in exceptional cases – a need for review by the enforcement court may flow directly from (European and/or Member States) fundamental rights, as the BVerfG points out.

Apart from this, the case has highlighted a number of open issues – some old acquaintances, some fairly new on the scene. The interplay between the Brussels regime and the Hague Convention on Child Abduction is less complicated than the infamously difficult relationship between the Brussels regime and the 1996 Hague Convention on Child Protection. Nevertheless, it is not always easy in theory, and not always free of error in practice – as the choice of the wrong enforcement mechanism by the Spanish court shows (the certificate only being available for decisions under Article 13 Hague Convention on Child Abduction). Difficulties in coordinating the Brussels and Hague regimes also became apparent in the context of jurisdiction: The Madrid court declined jurisdiction on the ground that the Hague Convention on Child Abduction was no longer applicable, and on Article 61 Brussels II bis (which, however, addresses the relationship between Brussels II bis and the Hague Convention on Child Protection, not the Hague Convention on Child Abduction).

A more fundamental problem with regard to jurisdiction lies in the lack of an efficient solution for the (wrongful) decline of jurisdiction. Brussels II bis allowed no possibility for German courts to take on jurisdiction after the Spanish courts had declined it. The transfer procedure envisaged in Article 15 Brussels II bis and considered solely pertinent by the OLG was of no help, as the (Spanish) court which could have initiated such a transfer had instead declared itself not internationally competent, and the (German) court considering itself better placed could not initiate the transfer itself. Thankfully, such as possibility has now been introduced by Article 13 Brussels II ter. It is highly regrettable that it was not available in the case at hand, as a cooperative and clear allocation of jurisdiction to the courts of one country would certainly have avoided a half-decade-long “game of jurisdiction ping-pong”, and possibly (in case of German courts’ jurisdiction) cross-border hearing and enforcement issues – ultimately furthering the child’s best interest. Hopefully, both versions of the transfer mechanism will be  used in the future to avoid similar pitfalls of (lack of)jurisdiction.

The limits of what is possible with regard to coordination and cooperation are also at the core of the questions raised with regard to the enforcement mechanism under Article 42 Brussels II bis. The model of immediately enforcing “privileged decisions” without a declaration of enforceability and without a possibility to oppose their recognition is based on the mutual trust between the Member States – the waiver of control by the enforcing state is not only grounded in a desire for simplification and acceleration, but mainly in the confidence that another Member State’s court has correctly applied all procedural and substantive rules. Mutually renouncing exequatur and révision au fond in favour of cooperative mechanisms is considered one of the greatest achievements of European civil procedure.

However, the current case illustrates that when something has gone wrong in the original proceedings, cooperative rectification may take its time, and immediate enforcement may bring more harm than good. The competence to rectify the wrongfully issued certificate lies with the Spanish court – which was directly contacted by the German court, in addition to being applied to by the mother, so that an examination (and possibly revocation) procedure was pending. While the certificate’s fate is thus suspended, its enforcement entails the danger of creating a situation which will soon have to be reversed. Especially as some of the enforcement consequences with regard to the child’s welfare are likely to be irreversible, proceeding to enforcement under these circumstances seems reckless and hardly in the best interest of the child. Prohibiting the enforcement court from temporarily staying enforcement proceedings in order to allow the court of origin to make the necessary corrections to the judgment means forcing it to perpetuate and deepen legal mistakes through enforcement with its eyes open. It seems very doubtful that this should be intended by the Brussels regime, or in keeping with European values and fundamental rights. On the other hand, a temporary stay of enforcement combined with a request for rectification allows the court of origin to re-examine and correct its own judgment without being prejudiced by enforcement considerations.

The final, and most far-reaching, point to be briefly addressed here is the matter of the child’s right to be heard. The child’s involvement in the proceedings has been problematic in this case in several regards. In the Spanish proceedings leading to the return judgment, the child was neither heard directly nor through a (court-appointed) representative. Already problematic in itself, this disregard of procedural requirements is aggravated by the fact that the Madrid court’s judgment does not address the central aspects of child welfare which would have argued against the child’s return to Spain. In view of the importance accorded to the child’s right to be heard (exemplified by the explicit inclusion of the courts’ duty to allow the child to express his or her views in Article 21 Brussels II ter), such an omission has to be viewed as a blatant disregard of (European) procedural rules, and a potential violation of fundamental rights. Enforcing a judgment rendered in such a way as a “privileged decision” without any possibility for control seems highly problematic (even if the requirements for this enforcement mechanism have been met). It might ultimately compel Member States to enforce judgments which, due to their procedural defaults, are clearly contrary to their own ordre public and to European fundamental rights and values – and in doing so, violate fundamental rights themselves. An exception from the “no examination” rule for cases of obvious breaches of European procedural rules might be considered to be, on the whole, more conducive to creating a “European area of justice”.

As a side note, it also proved difficult for the child to initiate a constitutional complaint before the BVerfG, as there are no clear rules in German law providing for the appointment of a guardian ad litem in situations such as this. Thankfully, this issue has been quickly and pragmatically addressed in the case at hand. Nevertheless, the non-appointment of a representative by the Spanish court and the technical difficulties in appointing a guardian ad litem for the German constitutional complaint proceedings illustrate the importance of establishing clear and efficient rules for the legal representation of children when their parents are unable to or fail to act on their behalf.

All in all, in the wake of the BVerfG decision more questions are left open than answered – in casu and in general. This particular legal battle will continue to be fought for some time and in several theatres of war. Apart from German and Spanish family and constitutional courts, the ECJ and ultimately the European Court of Human Rights might be involved. Even if a solution is reached before the child concerned reaches the age of majority, it is likely to leave all family members exhausted, alienated and traumatized. But especially as a good outcome for the individuals concerned seems impossible and a further legal dispute unavoidable, the case’s potential for the development of the interpretation of EU law should be exploited fully. Hopefully, further decisions on this matter will help to establish guidelines for similar situations, use the opportunities to clarify further aspects of the functioning and remedies of the Brussels regime, and aid in applying it in keeping with national and European fundamental rights and values. In this way, a sad case might at least contribute to making good law.

Symeon Symeonides (Alex L. Parks Distinguished Professor of Law at Willamette University – College of Law) has made available on SSRN a draft of his paper on An Outsider’s View of the Brussels Ia, Rome I, and Rome II Regulations that is being published on Lex & Forum in 2023.

The abstract of the article reads as follows:

This is an invited essay for a conference on “European Private International and Procedural Law and Third Countries” that was held in Greece on September 29, 2022. It focuses on certain aspects of three European Union “Regulations,” which have “federalized” the Private International Law or Conflict of Laws of the Member-States: (1) the “Brussels Ia” Regulation on Jurisdiction and Recognition and Enforcement of Judgments in Civil and Commercial Matters of 2012; (2) the “Rome I” Regulation on the Law Applicable to Contractual Obligations of 2008; and (3) The “Rome II” Regulation on the Law Applicable to Non Contractual Obligations of 2007.
The first part of the essay criticizes the discriminatory treatment of defendants domiciled outside the EU by Brussels Ia, and its lack of deference toward the exclusive jurisdiction rules of third countries or toward choice-of-court agreements choosing the courts of third countries. It praises the Brussels Ia provisions on lis pendens and its protection of consumers and employees against unfavorable pre-dispute choice-of-court agreements.
The second part praises the protection Rome I provides for consumers and employees against unfavorable choice-of-law agreements, but also explains why the protection provided for passengers and insureds is often ineffective. It criticizes the lack of protection for other weak parties in commercial contracts, such as franchises, and explains how an article of Rome II that allows pre-dispute choice-of-law agreements for non-contractual claims in those contracts exacerbates this problem.
The third part of the essay criticizes the way in which Rome II resolves cross-border torts other than environmental torts, especially cross-border violations of human rights. It proposes a specific amendment to the relevant article of Rome II and argues that this amendment will provide better solutions not only in human rights cases but also in other conflicts arising from cross-border torts.

In the space of two weeks, two doctoral theses on arbitral jurisdiction will be publicly defended at the Stockholm University. First, on 21 November 2022, Fabricio Fortese defended a thesis titled Early Determination of Arbitral Jurisdiction – Balancing efficacy, efficiency, and legitimacy of arbitration. On 2 December 2022, Monica Seifert will defend a thesis on Arbitral Jurisdiction in Multi-Contract Relations ­­– A Comparative Study of Swedish, Swiss and English Law.

Fortese’s thesis examines the timing of judicial determination of jurisdictional disputes under Article 8 (1) of the UNCITRAL Model Law on International Commercial Arbitration and Article II (3) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The thesis argues that Article 8 of the Model Law does not require that national courts undertake either a limited (prima facie) or a full review of an arbitration agreement and objections to an arbitral tribunal’s jurisdiction. Fortese holds, as the main finding of his dissertation, that both approaches are permitted under the Model Law. The application of one or the other is “a matter of judgment (rather than opinion), based on the particularities of the case, and aiming to achieve the fair and efficient resolution of the jurisdictional and substantive dispute” (p. 282). Professor George A. Bermann of Columbia Law School acted as opponent at the public defense. A full abstract of the thesis can be read here.

The research question for Seifert’s thesis is whether an arbitration agreement contained in one contract can be considered to apply to disputes concerning other contracts between the same parties. For the analysis, the thesis focuses on the international arbitration prerequisites of (1) a defined legal relationship, (2) the scope of the arbitration agreement and (3) the identity of the matter in dispute. According to the abstract, “[t]he thesis concludes that the legal systems under analysis, despite their largely different procedural and contractual settings, have proven to be sensitive to the pressures of globalization and to the demand for more generous access to arbitration”. In the conclusions, Seifert stresses the importance of the seat of arbitration as it is the procedural law of this country that ultimately will determine arbitral jurisdiction (p. 285). Professor Giuditta Cordero-Moss of Oslo University will act as opponent at the public defense. A full abstract of the thesis can be read here.

Dominique Bureau (University of Paris II Panthéon Assas) and Horatia Muir Watt (Sciences Po Law school) have published earlier this week in La Semaine Juridique (édition générale) a critique of the desirability of codifying private international law at national level in a field dominated by EU and international norms (Codifier à contretemps… À propos d’un projet français de codification du droit international privé).

The English summary of the article reads:

After the failure of various initiatives towards national codification of private international law in France in the course the first part of the 20th century, a new project was commissioned recently by the ministry of justice and is now (very briefly) open to public comment. Curiously, then, the spectre of a national code has resurfaced once again in an entirely new context – that is, at a time when the majority of rules of the conflict of laws, jurisdiction and judgments currently in force in Member States have been unified by the European Union (largely successfully). Quite apart from any quality assessment of the various substantive provisions thus proposed in the draft text, some of which would no doubt be useful interstitially in the spaces still left to the competence of national authorities, and indeed beyond the symbolic signification of an inward-local turn in an area designed emblematically to respond to the transnational, the main flaw in this proposal is the erroneous nature of its own premises. There is a real discrepancy between the draft text and the very objectives it is designed to pursue : it is far from making the state of the law more manageable for the courts, as it claims to do. Indeed, in the epistemological terms of the French legal tradition, the very phenomenon of a national code suggests that it contains a complete set of legal tools for solving issues that arise in transnational litigation. However the proposal itself reminds its users that it is applicable by default, while leaving the frontiers of local law very unclear. Surprisingly, it has generated very little academic opposition, but even as the short parliamentary deadline approaches, it is still not too late to do nothing..

The journal and article can be accessed here.

A recent Briefing paper titled Updating the European digital identity framework, authored by Mar Negreiro and Maria Niestadt (from the European Parliamentary Research Services), may be of interest to the readers of this blog.

It deals with the proposal of the European Commission, released in June 2021, to create a “European Digital Identity” (EDI) and a dedicated “Wallet” for citizens and businesses in the European Union (hereafter ‘EDI Regulation proposal’).

General Background of a ‘European Digital Identity’ and its Dedicated ‘Wallet’

The ‘European Digital Identity Wallet’ (EDIW) aims to allow people and companies based in the EU, to store person identification data (e.g. name, address, gender, civil status) and electronic attestations of attributes (e.g. bank account, birth certificate, diploma, company statute) for cross-border use. It should also allow users to authenticate and access online public or private services (Article 6a of the EDI Regulation proposal). According to the European Commission, by means of this digital wallet, proving your identity and sharing electronic official documents across the EU Member States will be possible with ‘one click’ on your smartphone!

This legislative proposal surely is a coherent and necessary continuum of the digitalisation momentum in the Union, both in its economic (i.e. internal market policy) and judicial (i.e. judicial cooperation in civil and criminal) dimension. One of its main political objective is for the Member States and the Union to regain control over the identity of European citizens in the digital ecosystem. Indeed, the dominant tech platforms have been developing private forms of ‘digital ID’, competing with national legal identification schemes. Under the EDI Regulation proposal, the digital wallet should only be issued under the supervision of Member States (i.e. directly by the State or based on a mandate/recognition requirements from the State). The project also aims to support the empowerments of ‘EU digital citizens’ in the same vein as the Declaration on European Digital Rights and Principles recently put forward by the European Commission to ensure a human-centred digital transformation in the Union. Users should be “in full control” of the wallet (Article 6a (7) of the EDI Regulation proposal) based on the key-principles of the GDPR, such as the requirement of data minimisation.

However, the proposal also raises several concerns about, inter alia, the effectivity of data protection, the risk of exclusion of parts of European society, the system’s vulnerability to fraud and data loss. I propose to add to that list uncertainties with regard to private international law rules and their implementation in ‘EDIW context’. The first question that occurs to me is as follows: what will be the legal scope of the cross-border portability of the information contained in this digital wallet?

Legal Outlines of the European Digital Identity Wallet The Acquis based on the eDIAS Regulation

The EDIW proposal builds on the acquis of the eIDAS Regulation on electronic identification and trust services for electronic transactions in the internal market. This latter lays down the conditions for the mutual recognition, between EU Member States, of electronic identification means of natural and legal persons, based on national notified electronic identification schemes (Article 6). By consequence, the identity – unique by essence – of citizens and businesses based in a Member State can be established throughout the Union (or, at least, in the other Member States that have notified such schemes). Concretely, it should for instance allow a person, domiciled in one Member State, to open a bank account in another Member State remotely, via an electronic identification (eID). The bank should be able to verify the age and the legal identity of the client, his/her financial records and the paperwork could be signed online using e-signatures (see here for other ‘promotional’ examples).

For the proper functioning of the mutual recognition principle, the eIDAS Regulation provides for three “assurance levels” applicable to the electronic identification schemes; they characterise “the degree of confidence in electronic identification means in establishing the identity of a person” (see Recital 16 and Article 8). Against this background, mutual recognition of electronic identification means – used for authentication for an online service – is mandatory for the ‘host State’ only when the public body of the ‘home State’ uses the “substantial” or “high” assurance levels for accessing that service online (Article 6).

‘European Digital Identity Wallet’: What Does It Mean?

The EDI Regulation proposal goes further than the current eIDAS Regulation in making mandatory for all Member States to provide electronic identification means and to recognise the notified electronic identification schemes (eDIs) of other Member States. In that respect, it lays down common requirements for the issuing of European Digital Identity Wallets (EDIW) by Member States (Article 6a of the EDI Regulation proposal). These wallets are understood as “electronic identification means […] containing person identification data and which is used for authentication for an online or offline service” (see Article 1, (3) (a) (2) of the proposal, with the understanding that ‘authentication’ enables the electronic identification as well as the origin and integrity of data in electronic form to be confirmed).

By comparison with a more familiar concept, ID cards issued by EU Member States (following the implementation of Regulation 2019/1157 on strengthening the security of identity cards of Union citizens) are also characterised as ‘electronic identification means’ under the eIDAS Regulation and the EDI Regulation proposal. But the future EDIW is much more than a mere digital ID card. It is both “a product and service” that allows the user “to store identity data, credentials and attributes linked to her/his identity, to provide them to relying parties on request and to use them for authentication, online and offline, for a service […] and to create qualified electronic signatures and seals” (Article 1, (3) (i) point 42 of the proposal).

Legal Scope of the European Digital Identity Wallet

The digital wallet should, inter alia, allow the “validation” of person identification data and electronic attestations of attributes by relying parties. More widely, Member States should provide “validation mechanisms” to ensure that the “authenticity and validity” of the digital wallet can be verified. In that respect, the EDIW should meet the “high level of assurance”, by reference to the eIDAS Regulation (see above), in particular with regard to “identity proofing and verification” requirements. The high level of assurance is based on technical specifications, standards and procedures “the purpose of which is to prevent misuse or alteration of the identity” (Article 8, (2), c).

It is also worth mentioning that the EDI Regulation proposal lays down a minimum list of attributes (e.g. address, age, civil status, family composition, financial and company data), the authenticity of which should be verifiable electronically, at the request of the user, by qualified providers of electronic attestations of attributes, against the relevant authentic source at national level (Article 45d and Annex VI).

Eventually, the proposed EDIW framework does not appear very clear about the normative scope of trans-European data flows via the digital wallet, between (presumption of) authenticity and validity.

Some Private International Law Issues Raised by the EDIW The Legal Implication of the Mutual Recognition Technique

Beyond the strengthening of a common ‘technological infrastructure’, the ultimate goal of the ‘European Digital Identity Wallet’ (EDIW) is to ensure the cross-border recognition of Europeans’ legal identity and additional information about them (i.e. attestation of attributes such as certificates of birth or diplomas). This brings us to more familiar territory, starting with the core question of the legal significance of the mutual recognition technique in this specific context.

Mutual recognition should provide for a cross-border portability of the data stored within the digital wallet, such as age, gender, nationality or company data. In that respect, the relevant methodology may be based on the international circulation of foreign public documents that have consolidated a legal situation in a first Member State and whose legal consequences are expected in the host Member State (cf. the inspiring work of Professor Ch. Pamboukis). In the case of ‘non-decisional’ public documents (e.g. a professional qualification or a driving licence, ‘crystallised’ in the digital wallet issued by the State of origin), these documents should produce non-normative procedural effects of an evidentiary nature. The data stored in the digital wallet may also be presumed to be formally valid, which allows them to flow across legal borders: the person concerned may use them in the ‘host State digital jurisdiction’ in the same way as in his/her State of origin.

When the data contained in the digital wallet are no longer related to administrative/public aspects (e.g. diploma or driving licence mentioned above) but to personal status and individuality (e.g. name, domicile, civil status, family composition), the mutual recognition technique could take on a different meaning. Indeed, the public documents in question are no longer limited to ‘establishing’ a situation certified by a public authority but are of a ‘receptive’ type. The public authority issuing the public document has ‘received’ the private will expressed by the parties in order to authenticate it. In this context, it could be argued that the digital circulation of such a public document (e.g. a marriage or a name certificate) carries a presumption of validity of the legal situation (i.e. negotium) contained in it (i.e. instrumentum). This distinction is well-known among private international law experts and the suggested reasoning should be the same whether the information is ‘digitised’ or formalised in a paper document. Indeed, electronic attestation of attributes should have “the equivalent legal effect of lawfully issued attestations in paper form”, pursuant to the EDI Regulation proposal (Recital 27).

Critical Assessment

The future ‘European Digital Identity Wallet’ could have a real impact on the international recognition of personal and family status in the Union. The same could be said for the status of legal persons. For citizens and businesses, intra-European free movement would be strengthened and, in practice, greatly simplified.

The main methodological consequence from the private international law perspective should be the ‘eviction’ of the conflict-of-laws rules and reasoning. This is understandable insofar as, in practice, the presumption of probative value of a foreign public document, on the basis of mutual recognition, implies, in our view, a presumption of validity of the legal situation it contains (cf. here).

In the European context, this statement should be even more accurate, because of the remarkable influence of EU citizenship and fundamental rights (such as the right to privacy which applies to the identity of individuals) on conflict-of-laws. Several examples may be found in the caselaw of the CJEU, such as the recent Pancharevo judgment (commented on the blog) raising exactly this issue. For part of scholars and many Member States, this is however the pitfall to be avoided. But actually, the intra-European digital flow of personal data, via this European digital wallet, should instead reinforce this trend.

The Interplay Between the EDIW and Other Legal Instruments

It is important to note that the EDI Regulation proposal, like the current eIDAS Regulation, gives priority to other rules of EU and national law on specific sectors. In that respect, the proposal lays down that the (future) regulation “does not affect national or Union law related to the conclusion and validity of contracts or other legal or procedural obligations relating to sector specific requirements as regards form with underlying legal effects” (Article 2, §3). The issue of normative interplay between the EDIW framework and other important instruments will be crucial. This will be the case, inter alia, in the field of personal status, regarding Regulation 2019/1191 on Public Documents but probably also some ICCS conventions (such as Convention n°34 recently entered into force), as well as national rules on the international legal effects of public documents. This is also true for EU instruments which support the cross-border cooperation between public national authorities and the free movement of citizens and businesses, i.e. the IMI System and the Single Digital Gateway.

The ‘One-click EU Recognition’ is not yet ready to be the revolutionary new tool for private international law partitioners, but the European Digital Identity Wallet is definitively a topic for us!

This is the last post in the series dedicated to the empirical analysis of the ECJ’s case law in the field of EUPIL. The previous posts can be found here and here.

This post is slightly different from its predecessors, as the angle of analysis is reversed. Rather than (just) analysing the characteristics of the ECJ’s case law in the field of EUPIL, this post purports to use such case law as an indicator of the transformations in the working methods of the ECJ itself. I refer back to my previous posts as concerns the methodology and definitions upon which this research is based.

The starting point of my analysis is the objective set out by Recital 6 of the Court’s Rules of Procedure (RoP): these aim at “maintain[ing] the Court’s capacity, in the face of an ever-increasing caseload, to dispose within a reasonable period of time of the cases brought before it”.

Chart 1  below shows, in this respect, that this objective is being pursued by the Court in a rather effective manner.

Chart 1

The red line in Chart 1 indicates the evolution over time of the Court of Justice’s overall workload (and not only of preliminary reference procedures). The numbers on the vertical axis shall therefore be interpreted as indicating the total amount of cases filed each year. As I could not find any official statistics pertaining to the 70s, 80s and early 90s, this data was obtained very pragmatically. I used the “advanced search” form on Curia.eu: for each year since 1976, I selected the time frame 01/01 to 31/12, filtering the results based on the type of court (Court of Justice), and the type of date (date of the lodging of the application initiating the proceedings). The red line portrays the results thus obtained. For the sake of consistency, I used this methodology for all the years between 1976 and 2022, even if official statistics are available since 1997. The divergence between the two sets of data (official and unofficial) is negligible (< 5 per year).

What happened in 1979? I am actually not sure. It looks like a huge number of cases on the status, remuneration and benefits of officials were filed that year. For most of these cases, there is no judgment, which probably means they were withdrawn at some point. Their effective impact on the workload of the ECJ remains therefore undetermined.

The line in dark green shows the average length (expressed in calendar days) of preliminary reference procedures in the field of EUPIL (this data is global, as it refers to cases decided with and without an Opinion of the AG, as well as cases that have been withdrawn and removed from the register).

The line in lighter green (which overlaps with the former until 2001) portrays the average length of preliminary references decided with an Opinion of the AG, the line in blue those which dispensed with it. The interruptions in the latter mean that there were no cases decided without an AG’s Opinion in the corresponding years.

Finally, the line in violet represents the average length of urgent preliminary reference procedures (PPUs) in the field of EUPIL. These cases, all dealing with family law, are decided with the support of the AG Opinion (formerly, a View) and a hearing. The average length of the proceedings remains remarkably low: to the present days, 80 calendar days (on this topic, see also this document).

Against this backdrop, the objective set out by Recital 6 seems met: the average length of (ordinary) preliminary reference procedures has been following, over the last years, a decreasing trend. How could the Court manage such result, despite its increasing workload?

Of course, there have been important institutional changes over these four decades: the progressive enlargements of the EU, the devolution of certain competences to the General Court and to the Civil Servant Tribunal (and back again) have all had an indisputable impact on the Court of Justice’s caseload. The purpose of this post, however, is to demonstrate that much was done also from the standpoint of internal (re)organization and working methods. In this respect, the analysis of the procedural treatment reserved over time to EUPIL preliminary references shows the noteworthy adaptability of the Court of Justice’s internal functioning and its ability to optimize the use of its resources. As we will see, there have been significant transformations as concerns the use of judicial formations (A), of the AGs’ Opinions (B) and of hearings (C). This will also be the opportunity to come back on the issue of informal specialization of the Members of the Court, which I remarked in my first post (D).

 A. The Transformations of Judicial Formations

Two important observations can be drawn from the stock chart below: first, EUPIL preliminary references have always represented a negligible part of the ECJ’s total caseload, having amounted to less than ten cases per year until the early 2000s. Second, there has been a considerable shift, over the years, as concerns the judicial formation adopted by the ECJ to decide on the questions raised by these cases.

Chart 2

In the early days of the ECJ’s activity under the 1971 Protocol on the interpretation of the 1968 Brussels Convention, most of the EUPIL preliminary references were decided by the full court. It must be assumed this was a clear and conscious stance taken by that Court with respect to EUPIL cases, and not just the indirect result of a different era, when the ECJ, counted only nine Members and had a very limited caseload, thus having the opportunity to resort to the plenum as the default judicial formation. To the contrary, it is apparent from the judgment rendered in Tessili that the Court could already operate in smaller deciding panels (two “Presidents of Chambers” are mentioned in the part of the decision listing the composition of the court).

The preference for the Full Court, manifested by this early case law, should come as no surprise: the cases decided by this formation between 1976 and 1980 (De Bloos, Mines des Potasse, LTU, to name a few) laid the foundations of modern EUPIL, defining extremely important methodological and terminological issues that still shape today’s way of approaching the new generation of EUPIL Regulations.

What was that “Full Court”, however? It was certainly nothing similar to today’s Full Court, regulated by Article 60 RoP and Article 16 of the Statute. It was admittedly surprising to note that the Full Court of the early days consisted of sometimes 9, sometimes 7 judges, following patterns whose underpinning logic is not immediately perceivable by the external observer. It looks like this “Full Court” was indeed a rather flexible judicial formation, counting a “bigger” and a “smaller” plenum, corresponding in essence to what we call today Full Court and Grand Chamber (I am drawing this information by this scholarly article of 2001).

With the exception of the initial period going from mid-70s until the 80s and another intermission in the early 90s, Chambers of five judges have remained the most common judicial formation for EUPIL cases. The first EUPIL preliminary reference deferred a Chamber of three judges was case 120/79, on maintenance obligations. Since then, this judicial formation has been seldom employed throughout three decades, having become more recurrent over the last years. This can be seen as an integral part of the ECJ’s overall attempt to optimize the use of its resources, including its personnel. Only 6 (7,6 %) of the cases deferred to a Chamber of three since 2003 was decided with the support of the Opinion (2003 being the point in time when the AG’s Opinion was no longer systematically required for all cases: see infra Section B). In practice, this means that these cases did not raise legal questions that, owing to their novelty, importance or technical complexity, called for the advisory intervention of the AG. A Chamber of three is overall more efficient when deciding this type of cases, insofar as the average length of the proceedings before it is 337 calendar days, compared to 437 calendar days that are needed, on average, by a Chamber of five to adjudicate without an Opinion.

A final word on the Grand Chamber which, as we know it, was created in 2003. Owusu was the first EUPIL preliminary reference assigned to this judicial formation, which has been used rather sparingly over time (only 3.8 % of EUPIL preliminary references were assigned to it). The period between 2006 and 2009 was marked, however, by a veritable boom of Grand Chamber cases. This was, after all, an “era of first times”: the first ever preliminary references on the Brussels IIbis Regulation (C-405/06) and on the 1980 Rome Convention (cases ICF and Koelzsch), as well as the first occasion for the ECJ to test the Brussels regime against the challenges brought along by the Internet (cases Pammer and Alpenhof, eDate).

B. The Opinion of the AG

Speaking of eDate, have you ever noticed that its “ancestor”, Shevill, has not one, but two Opinions, delivered by two different AGs? Same things for Marinari, also filed in 1993. As correctly indicated by AG Léger, it could “infrequently happe[n]…, by reason of the reopening of the oral procedure and as a result of happenstance in the order of business of the Court”, that two Opinions are delivered in the same case. The Shevill judgment explains, in this respect, that the case was initially assigned to the Sixth Chamber of the Court (chamber of five) and referred, after hearing the Opinion of AG Darmon in July 1994, « back to the Court », meaning the Full Court. The oral phase of the procedure was consequently reopened before this bigger judicial formation, and a new Opinion was delivered by a different AG, Mr. Léger. In Marinari, the issue was, again, the reopening of the oral phase of the procedure, without any referral to a different judicial formation. Again, two different AGs delivered an Opinion in the case. The fact triggering the second intervention of the AG is, therefore, the reopening of the oral phase of the procedure as such, and not the referral to a different judicial formation.

While the merits of having two different AGs delivering an Opinion in the same case could lie in the potentially different point of view introduced into the debate, thanks to a “fresh start” to the study of the case file, this working method could be deemed inefficient insofar as at least four different persons (the two AGs and their respective référendaires) are called to work on the same case from scratch (in practice, the two AGs adopted the same stance in both Marinari and Shevill).

The reopening of the oral procedure is only ordered in exceptional circumstances and is not a common occurrence. This has not happened again in EUPIL cases since 1993, but it could potentially happen. The new RoP provide, in Article 83, that the Court may at any time order the opening or reopening of the oral part of the procedure, in particular if it considers that it lacks sufficient information or where a party has submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court, or where the case must be decided on the basis of an argument which has not been debated between the parties or the interested persons referred to in Article 23 of the Statute. It is worth noting, however, that today the reopening of the oral phase of the procedure no longer entails the intervention of two different Advocates General. I can mention two cases, both outside the field of EUPIL, where an order under Article 83 RoP was adopted: C-168/16 and, more recently, C-530/20. In both, a single AG delivered two subsequent Opinions. It seems therefore that the Court is nowadays favouring efficiency over the plurality of views, consistently with the general objective of reducing the length of the proceedings set out in Recital 6 RoP. Also noteworthy is that the involvement of a single AG in each case is now provided also for the delivery of Opinions (in French, Avis) requested in accordance with Article 218 (11) TFEU (Recital 5 RoP).

The biggest innovation concerning the role of the AG –  also made in the attempt to increasing the ECJ’s overall efficiency – happened in 2003. Before this date, the AG had to deliver an Opinion for all preliminary references brought before the Court. This explains why, up to that moment, 100% of the EUPIL preliminary references decided by a chamber of three judges came with an Opinion, whereas only the 7,6 % of the cases assigned to such judicial formation after 2003 called for the AG’s advisory intervention.

Nonetheless, Chart 3 below demonstrates that the great majority of EUPIL preliminary references is decided, even after 2003, with the support of the AG’s Opinion.

Chart 3

Of all EUPIL cases having dispensed with an Opinion, 60 % have been assigned to a chamber of three, and 40 % to a chamber of five. 16% have been decided through a reasoned order under Article 99 RoP (all of them adopted by a Chamber of three, except for C-518/99). The possibility to define a case by means of a reasoned order explains the existence of a certain number of cases decided without an Opinion even before 2003.

C. Hearings

Another area where the Court has striven to increase its efficiency concerns the holding of hearings. According to Recital 6 to the RoP, “in order to maintain the Court’s capacity, in the face of an ever-increasing caseload, to dispose within a reasonable period of time of the cases brought before it, it is also necessary to continue the efforts made to reduce the duration of proceedings before the Court, in particular by … providing for the Court to be able to rule without a hearing if it considers that it has sufficient information on the basis of all the written observations lodged in a case”. As I mentioned in my previous post, a hearing shall be held, according to Article 76 RoP, when it has been requested by an interested person that has not participated in the written phase of the procedure.

Chart 4 below shows the evolution in the use of hearings in EUPIL preliminary reference procedures.

Chart 4

The analysis of more than forty years of case law in a given field of law is also a journey through different drafting styles, used by the Court in its judgments. This is why, in a certain number of cases, it was not possible to determine whether or not a hearing was held. This concerns, in particular, the cases filed between 1984 and 1985. More recently, a certain number of judgments only mention the observations of the parties, without referring either to a “written procedure” or, more explicitly, to “a hearing”. Where there was no AG Opinion, or when this did not clarify this point, these cases were also classified in the “unsettled” category.

This said, it must be noted that the recent trend goes, quite indisputably, towards reducing the number of hearings held in EUPIL cases. Intuitively, holding a hearing will delay the procedure, and it makes sense to limit this effect to the cases where an oral procedure is necessary for the correct understanding of either the legal questions referred to the Court or of the context in which they were raised, as well as in the cases where it serves to preserve the right to be heard of the parties and the interested persons listed in Art. 23 of the Statute. Overall, hearings have been held in 14% of the cases assigned to a Chamber of three and in 62% of the cases decided by a Chamber of five. This percentage drops to 54.6 % in cases decided by a Chamber of five after the current RoP have come into force. There is, however, a certain number of EUPIL cases decided before 2012, whose judgment only contains references to the written phase of the procedure. It must be assumed that, therein, a hearing was not held, and that the possibility to dispense with the oral procedure existed also under the previous RoP.

D. The Specialization of Judges and AGs

To conclude this survey of the transformations made, in the quest for more efficiency, to the working methods of the ECJ, I wish to come back to the issue of informal specialization of judges and AGs, which I remarked in my first post, focusing solely on the 2015-2022 time frame.

I came back to this issue with ambivalent feelings, and I do not have any conclusive opinion on this topic, although I am keen on confirming my initial impression. Chart 5, below, shows the rate of intervention of different AGs in EUPIL cases since 1976.

Chart 5

The picture is indeed quite fragmented, but two observations are in order. First, just eight AGs have been in charge of 50% of the total EUPIL cases (right side of the pie chart), whereas the other 50% of cases is shared between 51 different AGs. Second, the eight AGs on the right side of the chart have all exercised their functions in recent times (late AG Bot, who was the first among them to arrive at the Court, was appointed in 2006). It could therefore be concluded that specialization of AGs – if any – is a relatively recent trend, with the last 15 years testifying of a certain tendency to see a smaller number of AGs systematically involved in EUPIL cases.

Chart 6 below is a variation of Chart 5, taking into account the evolution over time of appointments of AGs to EUPIL preliminary references (click here for a slightly larger picture).

Chart 6

In the attempt to increase the readability of the chart, only AGs having been appointed in more than five EUPIL cases have been named. The category “others”, in yellow, accounts for the remaining cases and groups 27 different AGs (for 74 cases). As remarked above, the specialization appears stronger in recent times, with the yellow category disappearing completely between 2011 and 2017. The recent spike in the yellow category has a clear explanation. AGs Jääskinen, Saugmandsgaard Øe and Bobek, who have been highly active in the field of EUPIL, have ceased their functions in 2019 and 2021 respectively. We are now, it seems, in a phase of transition, where new AGs have taken over and might develop, in the coming months/years, a similar informal specialization in EUPIL cases. Quite remarkable is, in this respect, AG Pikamäe, who already appears in the Chart despite his recent appointment.

The exact same situation exists with respect to Reporting Judges, with the notable difference that only two of the judges appearing on the right side of the pie chart are presently still working at the Court. In this domain domain, the turnover effect will be even higher in the coming months.

Chart 7

Chart 8. Click here for a slightly larger picture.

 

As I already mentioned, the specialization of AGs and Reporting Judges, if any, is purely informal, and should be taken as an objective data emerging from the analysis of existing case law: some among them have simply dealt with EUPIL cases more often than others. This approach could favour internal efficiency, since prior dealings with a certain subject matter could reduce the time needed for assessing the case and take a stance on the legal question it raises. It remains, at the same time, flexible enough to ensure the correct functioning of the Court (for example in terms of equitable distribution of cases among judges/AGs and the prompt dealing of PPUs and PPAs). A more rigid approach to specialization (such as the formal institution of specialized chambers) might jeopardize the achievement of this second “organizational” objective.

This post was written by Pietro Franzina and Thalia Kruger, and is being published simultaneously on Conflictoflaws.net and on the EAPIL blog.

The delegations of more than thirty Member States of the Hague Conference on Private International Law attended the first meeting of the Special Commission charged with reviewing the operation of the Hague Convention of 13 January 2000 on the international protection of adults. The meeting took place in The Hague and online from 9 to 11 November 2022 (for a presentation of the meeting, see this post on Conflictoflaws.net and this one on the EAPIL blog). A dozen organisations, governmental and non-governmental (including the Council of the Notariats of the European Union, the Groupe Européen de Droit International Privé and the European Association of Private International Law), were also in attendance.

The discussion covered a broad range of topics, leading to the conclusions and recommendation that can be found on the website of the Hague Conference (see here). The main takeaways from the meeting, as the authors of this post see them, are as follows.

The Hague Adults Convention Works Well in Practice

To begin with, the Special Commission affirmed that the Convention works well in practice. No major difficulties have been reported either by central authorities instituted under the Convention itself or by practitioners.

Doubts occasionally appear with respect to some provisions. Article 22 for example provides that measures of protection taken by the authorities of a Contracting State “shall be recognised by operation of law in all other Contracting States”, unless a ground for refusal among those listed in the same provisions arises. A declaration of enforceability, as stipulated in Article 25, is only necessary where measures “require enforcement” in a Contracting State other than the State of origin.

Apparently, some authorities and private entities (e.g., banks) are reluctant to give effect to measures of protection that clearly do not require enforcement, such as a judicial measure under which a person is appointed to assist and represent the adult, unless that measure has been declared enforceable in the State where the powers of the appointed person are relied upon. The Special Commission’s conclusions and recommendations address some of these hesitations, so that they should now prove easier to overcome. Regarding exequatur, see para. 33, noting that “measures for the protection of an adult only exceptionally require enforcement under Article 25”, adding that this may occur, for instance, “where a decision is taken by a competent authority to place the adult in an establishment or to authorise a specific intervention by health care practitioners or medical staff”, such as tests or treatments. Other doubts are dealt with in the practical handbook prepared by the Working Group created within the Hague Conference in view of the meeting of the Special Commission. The draft handbook (see here the first version publicly available), which the Special Commission has approved “in principle”, will be reviewed in the coming weeks in light of the exchanges that occurred at the meeting, and submitted to the Council on the General Affairs and Policy of the Conference for endorsement in March 2023).

Situations Exist in the Field of Adults’ Protection that Are Not (Fully) Regulated by the Convention

The Convention deals with measures of protection taken by judicial and administrative authorities, and with powers of representation conferred by an adult, either by contract or by a unilateral act, in contemplation of incapacity. By contrast, nothing is said in the Convention concerning ex lege powers of representation. These are powers of representation that the law of some States (Germany, Austria and Switzerland, for example) confers on the spouse of the adult or a close relative or family member, for the purpose of protecting the adult. Their operation is generally confined to situations for which no measures have been taken and no powers of representation have been conferred by the adult.

The Special Commission acknowledged that ex lege powers of representation fall under the general scope of the Convention, but noted that no provision is found in the Convention that deals specifically with such powers. In practice, ex lege powers of representation may be the subject of cooperation between the authorities of Contracting Parties (notably as provided for under Chapter V), but, where the issue arises of the existence, the extent and the exercise of such powers, the courts and other authorities of Contracting States will rely on their own law, including, where appropriate, their conflict-of-laws rules.

There is yet another gap that the Special Commission discussed. The Commission observed that instructions given and wishes made by an adult in anticipation of a future impairment of their personal faculties (e.g., in the form of advance directives), similarly fall within the general scope of the Convention and are subject, as such, to the cooperation provisions in Chapter V. Whether or not a particular anticipatory act constitutes a power of representation for the purposes of Articles 15 and 16, on powers of representation conferred by the adult, is to be determined on a case-by-case basis. Some unilateral acts plainly come within the purview of Articles 15 and 16, as they actually include a conferral of powers on other persons. Others do not, and may accordingly be dealt with by each Contracting State in conformity with their own law.

States Do Not Currently See an Interest in Modifying the Convention

The question has been raised in preparation of the Special Commission whether the Convention ought to be amended, namely by a protocol to be negotiated and adopted in the framework of the Hague Conference on Private International Law. In principle, a protocol would have provided the States with the opportunity to fill the gaps described above, and address other concerns. However, under international law only those Contracting States that ratify the protocol would be bound by the modifications.

The Special Commission witnessed that, at this stage, no State appears to see an amendment as necessary.

Only one issue remains to be decided in this respect, namely whether the Convention should be modified in such a way as to include a REIO clause, that is, a clause aimed at enabling organisations of regional economic integration, such as the European Union, to join the Convention in their own right. The matter will be discussed at the Council on the General Affairs and Policy of the Conference of March 2023.

The decision lies, in fact, in the hands of the Union and its Member States, as this is currently the only Regional Economic Integration Organisation concerned by such a clause. Their decision will likely be affected by the approach that should be taken in the coming weeks concerning the proposal for a regulation on the protection of adults that the Commission is expected to present in the first half of 2023.

Efforts Should Now Be Deployed Towards Increasing the Number of Contracting Parties

The main problem with the Convention lies in the fact that only relatively few States (fourteen, to be precise) have joined it, so far. Several States stressed the importance of further promoting ratification of, or accession to, the Convention.

It is worth emphasising in this respect that the Hague Adults Convention builds, to a very large extent, on cooperation between Contracting States. This means that a State cannot fully benefit from the advantages of the Convention by simply copying the rules of the Convention into its own legislation, or by relying on such rules on grounds of judicial discretion (as it occurs in the Netherlands and to a large extent in England and Wales), but should rather become a party to it.

Various States expressed an interest in the Convention. The responses to the questionnaires circulated in preparation of the meeting of the Special Commission suggest that at least five States are actively contemplating ratification (Hungary, Italy, Luxembourg, Mexico and Sweden), and that others have considered ratification (Slovakia) or are considering it (Argentina). For its part, Malta signed the Convention on the occasion of the meeting of the Special Commission, and will likely ratify it in the not too distant future.

Tools to Enhance the Successful Operation of the Convention

Some of the practitioners present drew the participants’ attention to practical difficulties in the cross-border protection of adults. To minimise practical difficulties, the Permanent Bureau, in some instances together with the Working Group on the Adults Convention, developed a number of tools.

The first is an extensive country profile, to be completed by Contracting States and made available on the website of the Hague Conference. This profile includes various matters of national law, such as names and content of measures of protection, jurisdiction of courts or other authorities to issue these measures, transfer of jurisdiction, and names, forms and extent of powers of representation.

The second is a toolkit on powers of representation, which contains detailed information about the national laws of States that provided responses, on for instance who can be granted powers of representation, how this granting must take place, and the permitted extent of the representation.

Concluding Remarks

All in all, the issue of the cross-border protection of Adults has rightly gained attention over the past ten years. While States amend their domestic legislation to be in conformity with the UN Convention on the Rights of Persons with Disabilities, they seem to be increasingly aware of the importance of ensuring cross-border continuity. This includes continuity of measures of protection issued by authorities such as courts, as well as the powers of representation granted by adults themselves. These matters of private international law require dialogue on the international and European Union level, more States to join the Convention, and tools to assist practice.

As announced in the first post in this series, I will continue my empirical analysis of the ECJ’s case law in the field of EUPIL. I refer back to that blog post as concerns the definition of “EUPIL” and the general methodological framework upon which this research is based.

The focus of this second post is on the participation of States, parties and, more generally, institutions in (EUPIL) preliminary reference procedures. I will first summarize the legal framework governing the observations filed with the ECJ (A) and give some additional information on the collection of data on this topic, which is essential to the correct interpretation of the Charts presented hereunder (B). After some brief considerations on the practical importance of observations in EUPIL cases (C), I will present the collected data from a double perspective: a general one, which looks at the overall level of engagement of States with preliminary references procedures on EUPIL instruments (D); and a subject-specific one, that accounts for the peculiar sectorial interests of some States (E).

A. General Legal Framework for Filing Observations with the ECJ

The participation of States, parties and institutions in the preliminary reference procedure can take the form of either written observations, lodged with the Registrar, or oral submissions at the hearing before the Court.

The legal framework applicable to the filing of written observations is set out by Articles 23 and 23a of the ECJ’s Statute and complemented by its Rules of Procedure (Rop), notably by Article 96. In short, upon reception of a request for a preliminary ruling, the ECJ’s Registrar notifies the order issued by the referring court to the Member States and to the Commission, as well as to the institution, body, office or agency of the Union which adopted the act the validity or interpretation of which is in dispute. All of these, in addition to the parties to the main proceedings pending before the referring court, are entitled to file written observations (Article 96 RoP). Moreover, said notification is sent to the States, other than the Member States, which are parties to the EEA Agreement, to the EFTA Surveillance Authority and to non-Member States which are parties to an agreement relating to a specific subject-matter, where a question concerning one of the fields of application of those Agreements is referred for a preliminary ruling. These (non-Member) States are also entitled to submit written observations.

In any case, non-participation in the written part of the procedure does not preclude participation in the hearing during the oral part of the procedure.

Not all preliminary reference proceedings encompass an oral procedure: according to Article 76 RoP, the ECJ may decide not to hold a hearing if it considers, on reading the written pleadings or observations lodged during the written part of the procedure, that it has sufficient information to give a ruling. Nonetheless, a hearing shall be held if it is requested by a party or an interested person referred to in Article 23 of the Statute, who did not participate in the written part of the procedure.

Special rules, relating to both written and oral participation, apply to the expedited (PPA) and urgent (PPU) preliminary reference procedures.

The former provides for derogatory rules in relation both to the time limits for filing observations and the scope of the subject-matter addressed thereby, that could be limited to “the essential points of law” raised by the request for a preliminary ruling (Article 105 RoP).

The latter follows a special regime that limits participation into the written part of the procedure: the order of the referring court is notified solely to the Member State from which the reference is made (and not to all Member States), to the European Commission and to the institution which adopted the act the validity or interpretation of which is in dispute (Article 109 (2) RoP). In cases of “extreme urgency”, the written part of the procedure can even be completely omitted (Article 111 RoP).  The other interested persons referred to in Article 23 of the Statute will just receive a communication of the request for a preliminary ruling and of the date of the hearing, with a view to enable their eventual participation into the oral procedure.

B. Methodological Issues Relating to the Collection of Data on Observations Filed in EUPIL Cases

This blog post builds on data collected based on the information systematically included in all ECJ’s judgments. In this respect, it is important to note that the drafting style adopted by the ECJ provides a consistent framework for all decisions issued by the Court. Against this backdrop, the first part of judgments and orders currently lists the submissions made with the Court, without nonetheless distinguishing between oral and written observations. If it is true that certain AGs are systematically introducing this distinction in their Opinions, the fact remains that, nowadays, a) not all the AGs consistently follow this practice and b) not all cases are decided with the support of an Opinion (while a hearing could be held even in cases with no Opinion: see, as an example C-436/13). As a result, the distinction between oral and written submissions could not be correctly apprehended based on the available public data. The limitations to the participation in the written part of the procedure, which are inherent to PPU cases, have therefore no impact on the statistical results presented in this blog post.

The Charts presented below will refer to States’ participation to the preliminary ruling proceedings in general, without distinguishing between oral and written part of the procedure.

C. The Practical Usefulness of Observations in EUPIL Cases

Concerning the objectives pursued through the filing of observations, EUPIL cases are no different from other preliminary references procedures. Nonetheless, this section will be the opportunity to present some preliminary statistical data which are specific to EUPIL cases.

According to point 11 of the ECJ’s Practice directions to parties concerning cases brought before the Court, written observations are a way for the interested persons referred to in Article 23 of the Statute to “set out their point of view on the request made by the referring court or tribunal” and to “help clarify for … the scope of that request, and above all the answers to be provided to the questions referred” by the domestic court. Therefore, States’ observations are, first and foremost, a tool for enlarging the circle of participants in the legal debate before the ECJ. Far from being a face-to-face conversation between the Luxembourg and the referring court, the preliminary reference procedure seeks to involve a larger number of institutional subjects. This approach is consistent with the wide-ranging effects of the judgment rendered by the ECJ at the end of such procedure, stemming from the precedential value of preliminary rulings.

In addition to this more general function, the observations filed by the subjects identified by Article 23 of the Statute and Article 96 RoP have a remarkable practical importance for the correct assessment and understanding of the preliminary questions referred in the specific case. Again, according to the aforementioned Practice directions, observations play “an essential role” in the ECJ’s understanding of the legal problem at stake, as it can thus acquire a detailed and accurate idea of the issues raised by the referred case. In my view, it is useful to distinguish, in this respect, between:

1. the observations filed by the parties to the domestic proceedings;
2. the observations filed by the government of the State to which belongs the referring court;
3. the observations of the Commission;
4. the observations filed by States other than the forum State.

The observations of the parties to the main proceedings could be extremely helpful in clarifying the factual context in which the dispute arose. While, in EUPIL cases, the ECJ does not adjudicate on facts, these remain extremely important for the correct understanding of the legal questions submitted to the Court. Facts may also help the ECJ in fulfilling its institutional mission, that is making sure that the answer provided to the referring court is as useful as possible for the solution of the problems raised by the dispute pending before it, without nonetheless venturing in factual determinations and legal assessments that rest solely with domestic courts. From this standpoint, the parties to the main proceedings could either complement, specify or even contest the description of the facts made by the referring court. It is  interesting to note that in 79 % of the inventoried EUPIL cases, at least one of the parties to the main proceedings has presented written and/or oral observations before the ECJ. This percentage drops to 67 % in family law cases and 42 % in succession cases.

The observations of the government of the State to which belong the referring court can be equally useful to clarify the factual background of the disputes, especially where one of its public bodies is involved. The point of view of the forum state is also particularly important for clarifying the content and interpretation of the domestic legal framework (procedural or substantive) applicable the specific case. Overall, the forum State has filed observations in 64% of the inventoried EUPIL cases. More detailed data on this aspect will be presented in section D.

The observations of the Commission may provide for an “institutional” point of view on the interpretation of a provision of EU Law. They may also offer interesting insights on the legislative history of the provision or instrument subject to interpretation. Albeit arguably institutional, this point of view is never binding for the Court. The Commission has systematically filed written and oral observations in all EUPIL preliminary references for which there has been a written procedure (this excludes, in practice, most of the cases decided with a reasoned order ex Article 99 RoP and some of the cases that have been deemed inadmissible ex Article 53 (2)). The observations filed by the institution, body, office or agency of the Union which adopted the act the validity or interpretation of which is in dispute pursue a similar purpose. Admittedly, these are not very common in the field of EUPIL. I could only find 4 of such cases: C-501/20 and C-522/20, with observations by the Council of the EU, as well as joined Cases C-453/18 and C-494/18 with observations of both the EU Parliament and the Council of the EU.

As concerns the observations of States other than the forum State, they mostly serve to introduce multiple points of view into the debate before the ECJ. It is very difficult, if not impossible, to gauge all the possible reasons that may prompt one of these States to participate in the preliminary reference procedure. Intuitively, the objective or subjective connections with one of the “foreign elements” of the dispute at stake might play a role. For example, Cyprus only ever participated twice in a EUPIL preliminary reference procedure: once as the forum State (C-519/13) and once in the Apostolides case, referred by a British court with respect to facts which largely occurred in Cyprus and upon which the courts of this country had adjudicated. C-157/12 is the only EUPIL case where Romania has intervened in a preliminary reference procedure not triggered by its own domestic courts. The case originated from Germany and concerned a dispute between two companies, one of which established in Romania, the courts of this country having also rendered the judgment whose recognition was a stake. The nationality of the parties, or other relatable interests, may also play a role (for example, Greece also submitted observations in Apostolides, the applicant being a member of the Greek Cypriot community). Any further discussion on the reasons behind States’ interventions would be entirely speculative in nature: any of the States identified by Article 23 of the Statute is free to participate in the procedure before the ECJ to submit its own point of view on the interpretative solution to be given to the preliminary questions, without having to substantiate a specific interest to these purposes.

D. Data from Existing Case Law

Coming to the concrete results of my analysis, the review of 46 years of ECJ case law on EUPIL instruments evidences a remarkable engagement of States with such preliminary reference procedures. Only 8 % of the total cases have elicited no observations from the side of at least one State.

In Chart 1 below, States on the y axis are ordered based on the total number of observations filed in EUPIL cases (orange column).

Chart 1

The blue column on the left indicates the total number of EUPIL preliminary references raised by the domestic courts of the concerned country. This datum should be read in conjunction with that portrayed by the gray column, showing the number of observations submitted by the government of each State in cases referred by its own domestic courts. The yellow column on the right show the number of observations filed by each government in EUPIL cases referred by courts of other Member States.

With the sole exceptions of the Netherlands, Belgium, Cyprus and Bulgaria, the orange column (which corresponds to the sum of the gray and yellow columns) is systematically taller than the blue one, showing that national governments tend to be more engaged in the dialogue with the ECJ than their domestic courts are. Particularly remarkable are the results pertaining to the Czech Republic, Spain and Portugal: despite the low number of EUPIL referrals raised by their respective national courts, the governments of these countries have consistently intervened in cases filed by other Member States’ courts in a variety of legal fields (cf. Charts 5, 6, 7 and 8 below).

Chart 2 is a specification of the relationship between the blue and the gray columns of Chart 1. It expresses, in percentage value, the rate of participation of each national government in the cases referred by its own domestic courts.

Chart 2

Incidentally, the States with the highest intervention rate (100%) are those whose domestic courts have been only moderately active in referring EUPIL cases to the ECJ, as evidenced by the blue columns of Chart 1 above. This may suggest that States with a higher number of domestic referrals might have to optimize the use of their resources, by choosing a participation strategy that contemplates no systematic engagement with “domestic” cases, this being forsaken where the legal question raised therein is not deemed sufficiently important or significant. This could explain, for example, the relatively low engagement of the Austrian and German governments with domestic cases.

Concerning the continuity of  States’ engagement over time, the analysis of a sample of States (the three States having filed the highest number of observations) evidence that it tends to be relatively constant, with a slight drop towards the end of the last decade. The line in orange, which is constant in the three countries, indicates the temporal progression of the totality of EUPIL preliminary rulings requested from the ECJ.

Chart 3

 

As mentioned in my previous post, the UK began to participate in preliminary reference procedures relating to the 1968 Convention even before it formally became a Party to that international treaty. This was justified in the light of the obligation to ratify that Convention upon accession to the EU, set out by its Article 63, and the prospective precedential value that the ECJ’s judgments would have acquired in the domestic legal system. To the contrary, the Swiss government submitted its first observations in case C-133/11, lodged on 18 March 2011. The Lugano II Convention entered into force for Switzerland on 1 January 2011. From that moment onward, the Swiss government has been quite active before the ECJ (all of its observations concern the Brussels-Lugano regime, except for one case on the Service Regulation), its overall engagement with EUPIL cases having nonetheless dropped in recent years.

Chart 4

 

E. States’ Sectorial Interests

It is noteworthy that the States’ engagement with EUPIL cases tends to be sector-specific. Charts 5, 6 and 7 8 are breakdowns of Chart 1, accounting for the number of observations filed by each national government in four macro-areas: the Brussels-Lugano regime (Chart 5), which comprises the 1968 Brussels Convention, the Lugano II Convention and Regulations 44/2001 and 1215/2012; family law (Chart 6), composed by Regulations 1347/2000, 2201/2003,  4/2009 and 1259/2010 ; successions (Chart 7), ie Regulation 650/2012 and the “smaller”/procedural regulations (EAPO, EPO, EEO, ESC Regulations; Chart 8).

Chart 5

Chart 6

Chart 7

Chart 8

See here for additional charts and data relating to the observations filed in cases on the Rome regime (the 1980 Rome Convention and Regulations 593/2008, 864/2007) and the Service and Evidence Regulations.

Again, the Member States on the y axis are ordered based on the overall number of the observations filed in each domain, and the logic behind the columns’ colours is the same as that described in relation to Chart 1. It is very apparent that the balances of forces among States vary considerably from one domain to the other, following a logic that is not always perceivable by the external observer. Quite remarkable, in this respect, are the attitudes of Spain and Hungary under the Succession Regulation. These Member States have systematically filed observations in this domain, despite the absolute lack of domestic referrals. In fact, Oberle is the only (admissible) succession case where the Spanish government did not file observations. Lacking any other self-evident explanation, it must assumed that this sectorial engagement is tied with domestic policies in the concerned area of law.

The fourth issue of the Journal du droit international for 2022 has just been released. While it contains a number of case notes relating to private international law issues, it is mainly conceived as a tribute to the late Emmanuel Gaillard and publishes a number of contributions to the conference Emmanuel Gaillard Theory in Action which held last spring in Paris (see also the announcement on this blog).

Most of the articles discuss the contributions of Gaillard to international arbitration.

One of them, however, discusses more specifically the contribution of Gaillard to private international law (by Jean-Michel Jacquet, IHEID Geneva). The English summary reads:

The contribution of Emmanuel Gaillard’s thought to the law of international arbitration has been considerable. Throughout his career, Emmanuel Gaillard has sought to establish the philosophical foundations of international arbitration. He has also contributed to search of the most appropriate rules and solutions to the many questions raised by international arbitration. In this perspective, the question of the role played by private international law arises. In Emmanuel Gaillard’s thinking this role differs according to the angle from which international arbitration law is considered. When it comes to understanding the arbitral phenomenon, the proposals of private international law do not seem to provide the best insight into the question. When it comes to understanding the arbitral process, private international law is back in the picture. But the arbitrator’s point of view cannot be that of a judge. Thus, to a certain extent, a private international law of the arbitrator is developing. But the latter must also take into account the « private international law of others ».

Also of interest for the readers of this blog might the contribution of Eric Loquin (University of Dijon) on the arbitral legal order. The English summary reads:

This article aims to analyse the concept of an arbitral legal order as conceived by Emmanuel Gaillard in his famous special course given at The Hague Academy of International Law in 2007, entitled « Legal Theory of International Arbitration ». This concept is based on the observation that the binding nature of international arbitration is not anchored in a single state legal order, but in a third one, characterised as the arbitral legal order. This legal order was intended and created by the international community of states who were favourable to the resolution of international commercial disputes through arbitral, and whose laws have recognised the autonomy of arbitration towards state legal orders.

The article explores the objections and discussions that have been initiated by this concept regarding both its nature and its existence. One view would be that the arbitral legal order results from the private nature of arbitration rather than the actions of the states, thus making arbitration a non-state phenomenon but a legal order subject to natural law and freed from positive law. Another view of international arbitration would deny that it exists as an autonomous legal system and would consider it as a tool created by the states to be used by private transnational legal orders as their adjudicating body (such as the international community of merchants’ legal order, or the transnational sports legal order). International arbitration would thus be used as an instrument for the coordination of these legal orders and that of the international community of states.

Finally, the issue offers one article unrelated to the conference in which Dr. Estelle Fohrer-Dedeurwaerder (University of Toulouse) explores the effects of Brexit on the recognition and enforcement of English judgments on both sides of the channel (L’effet du Brexit sur la reconnaissance et l’exécution des jugements des deux côtés de la Manche). The English summary reads:

The Brexit has put an end to any judicial cooperation in civil and commercial matters between the UK and the EU as the Trade and Cooperation Agreement contains no provision on this point. Despite the desire of some to re-implement the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, and the steps taken by the UK to accede to the 2007 Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, neither of these two conventions will find application in Anglo-European relations. However, judicial cooperation between the United Kingdom and the Member States is not excluded if bilateral conventions concluded before the 1957 Treaty of Rome (or before accession to the EEC or EC), such as the 1934 Franco-British Convention, become fully effective as a result of Brexit. Their conciliation with the Treaties having the same object, in particular with the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on the Recognition and Enforcement of Judgments in Civil and Commercial Matters, will then arise, unless States refuse to revive them, in which case their common law will be implemented. However, the latter scenario is not desirable if the density of socio-economic exchanges between France and the United Kingdom is to be maintained.

The table of contents of the issue can be accessed here.

Aygun Mammadzada (Swansea University) will be the main speaker at the upcoming MECSI Seminar, scheduled to take place on 22 November 2022, at the Catholic University of the Sacred Heart in Milan.

The title of the seminar is The Relationship between the Hague Choice of Court and the Hague Judgments Convention – A Major International Breakthrough?

Zeno Crespi Reghizzi (University of Milan) will serve as discussant.

Attendance is free, on site and on line (via MS Teams). Further information, including the link to join the seminar on line, are found here.

For queries, write an e-mail to pietro.franzina@unicatt.it.

I am coming back to the topic of a recent post published on this blog, where I analyzed the trends emerging from seven years (2015-2022) of ECJ case law in the field of judicial cooperation in civil matters.

I would like to thank the readers of this blog, who gave me feedback and ideas for new research directions. Building on these suggestions, I purport to write a series of related posts on specific aspects of EU Private International Law (EUPIL) cases brought before the Luxembourg Court.

The planned posts aim to promote a more comprehensive understanding of the ECJ’s rulings on EUPIL instruments, by bringing attention on the very first part of the judgment: despite being often overlooked by legal scholars, this can be quite interesting in its own way.

The present post, the first in the series, will focus on the origin of the EUPIL preliminary references brought before the ECJ (third red box in order of appearance).

The second post in the series will look into the role of States within the preliminary reference procedure and their respective level of “engagement” with EUPIL cases, as evidenced by the observations filed with the ECJ pursuant to Article 23 of its Statute (eighth red box in order of appearance; I am very grateful to Martin Margonski for the suggestion).

A third post will use the case law in EUPIL to highlight the internal transformation of a Court – the ECJ – that has seen its caseload increase by more than 450% since 1976, while succeeding in keeping the average length of proceedings more or less constant over the last two decades. Against this backdrop, the analysis of the case law in the field of EUPIL demonstrates the ECJ’s great adaptability to an ever-increasing demand for preliminary rulings and the efforts made for ensuring a more rational use of its own human and material resources.  This concerned, in particular, the use of judicial formations, AGs’ Opinions and hearings (first, seventh and ninth red boxes in order of appearance).

A. Methodology

All these research questions presuppose a “dynamic” analysis of the evolution of the ECJ’s case law in the field EUPIL over time. Because of this, it was no longer possible to exclude from the analysis the (substantial) case law developed under the 1968 Convention, at the risk of altering the statistical validity of the conclusions drawn from the collected data.

For this reason, these new blog posts are based on a larger database, and ‘EUPIL’ is now understood as encompassing also the 1968 Brussels Convention and the 1980 Rome Convention,  in addition to the instruments already included in the scope of the pre-existing analysis. As a reminder, these are Regulations 44/2001 and 1215/2012, the Lugano II Convention, Regulation 1347/2000, Regulation 2201/2003 (since no cases have yet been filed under the new Brussels II-ter Regulation); Regulation  4/2009; the Rome Regulations (593/2008, 864/2007 and 1259/2010); the Succession Regulation and the ‘smaller’ Regulations (EAPO, EPO, EEO, ESC, Service and Evidence I Regulations). The Regulations on matrimonial and registered partnership property issues have been taken into account, but there is currently no request for interpretation concerning them.

The time frame covered by the research is consequently no longer limited to the last seven years, taking into account the totality of the ECJ’s case law in EUPIL since 1976, when the first cases on the interpretation of the 1968 Brussels Convention were filed.

B. The Origin of Preliminary References in EUPIL Cases.

As announced above, this first post deals with the origin of requests for preliminary rulings on EUPIL instruments. “Origin” is understood in a twofold way: first, as geographic origin (1) and, second, as “procedural” origin, meaning by this the status and ranking of the domestic court making the referral (2).

1.  The Geographic Origin of Preliminary References in EUPIL.

Where are the requests for preliminary rulings in EUPIL coming from? Does this have an impact on the substance of the legal solution shaped by the ECJ?

The first question is relatively easy to answer. The referring court is identified in the very first lines of the judgment. When taken individually, this datum might not be overly significant. Conversely, a systematic compilation of the origin of all the preliminary references raised in the field of EUPIL could reveal interesting trends and national attitudes towards this area of EU law.

In my previous post, the analysis of the last seven years of case law  evidenced remarkable differences in the amount of preliminary rulings requested by each Member State. The new survey, based on a broader database, just confirms these conclusions. It also confirms Germany’s leading role as undisputed propeller of EUPIL case law before the ECJ.

Chart 1

The chart above shows the number of referrals under the Brussels-Lugano regime in shades of blue, the Rome regime in shades of green, the referrals in the field of family law in shades of red, successions in black and “smaller” procedural regulations in shades of yellow. Evidence and Service have their own distinctive colours.

It is apparent that there still exist considerable differences among the Member States. Nonetheless, in assessing Chart 1, due regard should be paid to the seniority of EU Membership: clearly, national courts belonging to the Member States who joined the EU at an earlier date had, over the last 46 years, more opportunities to refer cases, including EUPIL cases,  than those who joined in the 2004, 2007 or 2013 enlargements. I created the chart below in the attempt of obtaining a better picture of the “chronological evolution” of the Member States’ requests for preliminary rulings on EUPIL instruments (click here to enlarge the picture).

Chart 2

The colours used should give a more immediate understanding of the changing balances, over time, between “elder” and “younger” Member States: the shades of blue indicate founding Member States; the shades of pink those which joined in 1973; the shades of orange/yellow designate the Iberian enlargement; the shades of brown the 1995 accession; the shades of green the biggest expansion so far, occurred in 2004. Black and dark grey are used, respectively, for Romania and Bulgaria, which joined in 2007. Greece (1981) and Croatia (2013) have their own distinctive colours (violet and red).

It must be stressed that each country’s contribution is calculated not according to the number of cases referred to Luxembourg, but rather on the number of interpretations requested with respect to the EUPIL instruments mentioned above. For example, in case C-307/19, the referring Croatian court requested the interpretation of the Service Regulation, the Brussels Ibis Regulation, the Rome I and the Rome II Regulations. This case is therefore counted 4 times in the chart above (which explains the big red smear corresponding to 2015). Here, an amended version of the chart, showing the number of cases filed with the ECJ, regardless of the number of EUPIL instruments involved in each of them.

Seniority alone cannot explain the considerable differences in the amount of preliminary rulings referred by Member States of comparable size and seniority (eg. France and Germany), or between countries which are very dissimilar in both respects (eg. Italy and Austria). Spain is another good example of the relative unimportance of the seniority factor: a Member State since 1985, this country is a late bloomer when it comes to preliminary references in the field of EUPIL, the first Spanish referrals dating of 2014 (two cases on the Service Regulation).

It can be assumed that, in today’s cosmopolitan world, all Member States are exposed to international commerce and cross-border mobility of people, even if maybe not equally so. As a result, their domestic courts will naturally come in contact with (EU)PIL cases and might find themselves in the position of harboring a “reasonable doubt” on the interpretation of one of the instruments mentioned in Section A. Under those circumstances, said courts should (or shall, depending on their status) refer a preliminary question to the Court of Justice. Seen from this standpoint, the results presented in Charts 1 and 2 are particularly interesting, insofar as they trigger further questions as to (a) the effective impact, if any, of the geographic origin of the preliminary reference on the solution given by the ECJ to the legal questions submitted to its consideration; and (b) the underlying reasons for the greater activism of certain Member States’ courts.

(a) The (Ir)Relevance of the Geographical Origin of the Preliminary Reference

As for the first question, it could be very tempting to answer in the affirmative: the geographic origin of the preliminary reference might play a role. After all, the referring court belongs to a given legal system and, in the decision raising its interpretive doubts, it will logically present the problem from the standpoint of its national law. This circumstance could, hypothetically, introduce a national bias in the reasoning of the ECJ and influence the result of the preliminary reference procedure.

Nonetheless, there are, in my view, two arguments that vouch for the dismissal of such fears.

The first argument profits from the benefit of hindsight: a closer look at the ECJ’s case law reveals that it has always endeavoured to “detach” its interpretation of the legal concepts used by EUPIL instruments from the meaning they acquire under the national law(s) of the Member States, according to the well-known principle of autonomous interpretation. It can be added that, in the more complicated cases, the ECJ has the possibility of asking its Research Department for a comparative study on the meaning of a given legal concept in the Member States (these notes are sometimes published on the Court’s website). There is, therefore, a concrete effort to go beyond the specific circumstances of the case, including its geographic origin, with a view to shaping an interpretive solution that could easily be transposed and implemented in any Member State.

The second argument is based on a more pragmatic consideration: the fact that some national courts engage the Luxembourg Court more often than others does not limit, in any event, the (geographic) scope of the legal debate. The dialogue triggered by the preliminary reference procedure is never a one-to-one conversation between the ECJ and the referring court. To the contrary, all Member States (and even some non-Member States) can take part to the discussion by submitting written and oral observations pursuant to Article 23 of the ECJ’s Statute. As I have already announced, there will be a separate post on this topic and it makes no sense to go deeper into it now. It suffices to say that these observations can be a way, for each State, of introducing a “national perspective” on the desirable approach to the solution of a preliminary question, regardless of its contingent origin.

It shall also be added that Member States have made (and still make) extensive use of this instrument. Particularly telling are, in this respect, the very first cases addressed by the ECJ, the (in)famous Tessili and De Bloos, both decided in 1976. The judgments rendered therein testify of the firm resolution of the UK to submit its observations on those questions, despite not even being, at that time, a Party to the 1968 Convention. In the next post, it will also be shown that some national governments have been considerably active, over the years, in filing written and oral observations in the cases brought before the ECJ (by courts of other Member States), despite the relatively low direct engagement of their own national courts with the preliminary reference procedure.

(b) The Reasons Behind the Differential Engagement of Member States’ Courts with Luxembourg

As I mentioned above, courts in Member States should/shall refer a preliminary reference to the ECJ when they are faced with a reasonable doubt on the interpretation of a EUPIL instrument. It would be simply illogical and totally out of touch with reality to explain the result presented in Chart 1 as the consequence of a lack of self-assurance of German and Austrian courts.

The causes of the differential engagement of Member States’ courts with the preliminary reference procedure must be sought elsewhere, and are multi-factorial at best.

It is safe to assume that some non-legal, but rather socio-economic criteria will also play a role (for example, the attitudes and dispositions of the local population towards court litigation, which is a conditio sine qua non of the preliminary reference procedure). The comprehensive identification of these factors remains extremely difficult and is beyond the purpose of this blog post. Nonetheless, based on an open-ended, experimental approach to this research, I tried to compare the data on the geographic origin concerning the preliminary references on EUPIL instruments and those raised in “related” matters, such as judicial cooperation in criminal matters or public procurement, the latter being understood as the “public counterpart” of private law contracts. The ECJ’s case law in the field of public procurement is, in this respect, particularly revealing, insofar as it shows opposite trends as compared to the case of EUPIL, with a striking and overwhelming activism of Italian (administrative) courts and a very low rate of engagement of their German and Austrian counterparts.  It must be concluded that there are considerable variations in the geographic origin of preliminary references  across the different branches of EU law. This circumstance offers no further explanation to the results presented in Chart 1, but warns against too quick or too broad generalizations about the existence of national “attitudes” or “prejudices” towards the procedure under Article 267 TFEU.

Coming back to the field of EUPIL, a combined reading of the data concerning the geographic and the procedural origin of the preliminary references raised in this subject-matter might pave the way to some additional (and highly speculative) explanations of the results presented in Chart 1.

2. The Procedural Origin of Preliminary References in EUPIL.

Over the last 46 years, almost a half of the preliminary questions raised in relation to EUPIL instruments came from the Member States’ Supreme Courts, followed by first instance courts as a distant second.

Chart 3

There could be, in my view, two explanations of this result.

The first one is grounded in the Member States’ procedural laws: some of them may provide for the possibility of leapfrog appeals to the Supreme Court, with a view to conclusively settling procedural issues (such as international jurisdiction) at an early stage of the proceedings (see, for example, the mechanism set out by Article 41 of the Italian Code of Civil Procedure). While the existence of such procedural devices could in principle offer an explanation to the data portrayed in Chart 3, the persuasiveness of this hypothesis will finally depend on how frequent and available such mechanisms are at the national level, which is for a comprehensive study in comparative procedural law to determine.

A second explanation, which I personally find more convincing and of more general application, is based on the CILFIT criteria. Said otherwise, Supreme Courts tend to raise preliminary questions more frequently than lower courts simply because they are under the legal obligation to refer when faced with a reasonable doubt on the interpretation of a EUPIL instrument, unless this doubt can be solved with the application of the acte clair or éclairé doctrines. Conversely, lower courts retain the discretion, and not the obligation, of referring the case to Luxembourg when faced with a comparable doubt (unless they are acting as a court of last resort in a given matter).

In my opinion, this result could be combined with the data on the geographic origin in two ways.

(a) Divergent National Interpretations of the CILFIT Criteria

First, it must be remembered that the CILFIT criteria provide domestic courts with “general guidance”, that could be subject to different interpretations. A research note commissioned in 2019 to the Research Department of the ECJ confirms that the understandings and practical applications of those criteria vary considerably among Member States. It is also noteworthy that, while this research note was not requested with specific reference to the field of EUPIL, it mentions on several occasions its instruments when providing for concrete examples of the divergent applications of the acte clair or éclairé doctrines by national Supreme Courts.

In a 2001 case relating to jurisdiction over insurance contracts under the 1968 Brussels Convention, the Irish Supreme Court sought guidance in the Schlosser Report and concluded that “there [was not] any necessity for a reference to the Court of Justice of the EC pursuant to the 1971 Protocol to the Convention”. The Joint Chambers of the Italian Court of Cassation seem to consider, in a rather general statement, that the line separating the scope of application of the Brussels I and the Insolvency Regulations is an acte clair (despite the huge ECJ case law on this point), not subject to the obligation of a referral to Luxembourg (Order No. 10233 of  26 April 2017). Further examples of the acte clair and acte éclairé doctrines can be found in a Maltese and in two Latvian Supreme Court cases on the recognition and enforcement of judgments in civil and commercial matters (respectively, GIE Pari Mutuel Urbain (PMU) v Bell Med Ltd & Computer Aided Technologies Ltd, 224/2006/1 and judgments SKC-771/2018 (C30672916) and SKC-414/2017 (C30465614)) and in a Slovenian Supreme Court case on the temporal scope of application of the Brussels I Regulation ( Order III Ips 164/2008 of 3rd February 2009). In a Romanian EUPIL case, the domestic court refused the referral to Luxembourg owing to the expiration of the deadline set by national procedural law for the inter partes phase of the proceedings, marking the beginning of the deliberation phase in which no referrals to the ECJ should be allowed (decision 786/CM/2011 of the Curtea de Apel de Constanța).

There are, moreover, plenty of examples where domestic Supreme Courts have not referred a preliminary question under Regulation 2201/2003, based on diverse considerations relating to the inherent characteristics of the procedure before the ECJ. For example, the Lithuanian Supreme Court did not raise a question on an inconsistency in the Lithuanian text of Article 12 of Regulation 2201/2003. This Court feared, in particular, that a referral from its side would have prompted similar initiatives from other Member States’ courts and would have, finally, increased the workload of the ECJ to the detriment of the prompt decision of preliminary references in matters of family law (decision no e3K-3-426-969/2016). Both in Malta and in the UK, the seized courts expressed reasonable doubts as to the correct interpretation of a provision of the Brussels IIbis Regulation, but refused a referral to the ECJ fearing undesirable delays to the national procedure (case 35/16/1JVC, decided on 6 January 2018 (Malta) and case In the matter of N (Children) [2016] UKSC 15 (UK)). I just remark, in relation to the British case, that the average length of a PPU procedure before the ECJ is 80 calendar days (60, a couple of years back) and, within this time frame, the cases are decided with a hearing and an Opinion of the AG.

There is no need of entering into the merits of these national interpretations of the CILFIT criteria. It suffices to say that divergent national interpretations of the obligation to refer could provide for a (certainly partial) explanation of the uneven geographic distribution of preliminary references in EUPIL cases.

(b) The Practical Effects of the Application of the CILFIT Criteria and National Procedural Law

Second, the fact that the majority of EUPIL preliminary questions are referred by Supreme Courts can have important practical reverberations for the parties to these disputes. These parties might have to sit through three court instances before having a definite answer on issues, such as jurisdiction or applicable law, that should usually be defined in limine litis. This means lengthy litigation, especially in those Member States where the Supreme Court might not have the power to decide the case itself, in conformity with the ECJ’s ruling, having conversely to remit the case to the lower court(s). Lengthy litigation entails, in turn, high(er) costs, that might be an incentive to desist or to settle the case at an earlier stage, before a referral to Luxembourg becomes mandatory.

These remarks may open a new perspective on the interpretation of the data on the geographic origin of the preliminary references. The costs relating to access to justice and, more generally, to court litigation, the availability of funding, the existence of collective redress procedures in a given legal system might be among the (legal) factors behind the uneven distribution of EUPIL referrals among Member States, insofar as these features of domestic procedural law might increase the likelihood of bringing a case as far as the court of last resort.

3. Final Remarks on the Procedural and Geographic Origin of EUPIL Preliminary References.

It should finally be noted that, albeit general, the leading role of Supreme Courts does not equally characterize all Member States. In some of them, the trend is actually reversed, with first and second instance courts taking up the most prominent role.

Chart 4

Also noteworthy is the temporal dimension of the involvement of Supreme Courts. Data from Germany and Austria are consistent in showing a greater activism of first and second instance courts between 2008 and 2018.

Chart 5

Incidentally, this time frame corresponds to the point in time where the ECJ’s case law in the field of EUPIL starts to get more diversified. In fact, the first request for a preliminary ruling that does not concern the Brussels-Lugano regime dates of 2006 and concerns Regulation 2201/2003. Non-Brussels/Lugano cases have become recurrent in the following years.

Chart 6 below is a breakdown of Chart 3. It considers the procedural origin of the referrals raised in the different subject-matters (grouped by macro-areas) covered by EUPIL instruments.

Chart 6

This result needs little explanation: in family law (Regulation 2201/2003, Regulation 4/2009, Regulation 1259/2010), successions, applicable law (Regulations 864/2007 and 593/2008, as well as the Rome Convention)  and in the “smaller Regulations”, the role played by Supreme Courts is not as prominent as in the field jurisdiction, recognition and enforcement of foreign judgments in civil and commercial matters.

This might mean that lower courts could be more keen on using their discretionary power to refer when dealing with an sub-field of EUPIL lacking the support of a longstanding and well-established supranational case law, or, alternatively, when a fundamental interest of the person is at stake. Significant, in this last respect, is the fact that only 5 of the 17 PPU cases thus far decided by the ECJ in the domain of EUPIL were referred by a Supreme Court. These cases all dealt with parental responsibility, abduction and maintenance in situations involving a minor.

Advocate General Szpunar’s opinion on C-651/21 – М. Ya. M. (Renonciation à la succession d’un cohéritier) was  published last Thursday. The request, from the Sofiyski rayonen sad (Bulgaria) relates to Article 13 of Regulation 650/2012 on matters of succession.

In the case at hand, M. T. G., a Bulgarian national who died in Greece, designated as heirs her daughter, her husband – the Greek national H. H. –, and her grandson – the applicant M. Ya. M. The applicant requests that the court register the waiver of the succession by H. H. A record of the civil case of the Magistrate’s Court, Athens, Hellenic Republic, was submitted in the proceedings, stating that H.H. appeared before that court on 28 June 2019 and declared his waiver of the succession. According to the request, H.H. stated that the deceased last resided in the town of H., region of Attica, Greece.

The referring court considers there is a ‘conflict of jurisdictions’ (sic), since, under the general rules of the regulation, jurisdiction is determined by the habitual residence of the deceased and not by that of the heirs. Subject to certain conditions, the latter courts have jurisdiction to receive waivers and acceptances; however, (under the regulation) they are under no procedural obligation to notify the court having jurisdiction in principle of such waivers or acceptances. In light of it, the referring court is uncertain as to the nature of the proceedings before it. In addition, it submits that the applicant in the proceedings at hand does not wish to have his own waiver of the succession of the deceased registered, but that of one of the other heirs, and that Bulgarian law does not provide for such a procedure. The principle of personal protection of rights before a court does not permit the registration of declarations of other persons eihter.

The national court has referred the following questions to the Court of Justice of the European Union:

(1) Is Article 13 of Regulation (EU) No 650/2012 […], read in conjunction with the principle of the protection of legal certainty, to be interpreted as precluding, after an heir has already had registered with a court of the State in which he or she is habitually resident his or her acceptance or waiver of the succession of a deceased person who was habitually resident in another State of the European Union at the time of his or her death, a request to have that waiver or acceptance subsequently registered in the latter State?

(2) If the answer to the first question is that such registration is permissible, is Article 13 of Regulation (EU) No 650/2012 […], read in conjunction with the principles of the protection of legal certainty and the effective implementation of EU law, and the obligation of cooperation between States under Article 4(3) [TEU], to be interpreted as permitting a request for the registration of a waiver of the succession of a deceased person effected by an heir in the State in which he or she is habitually resident by another heir residing in the State in which the deceased was habitually resident at the time of his or her death, irrespective of the fact that the procedural law of the latter State does not provide for the possibility to have a waiver of a succession registered on behalf of another person?

The case has been assigned to a chamber of three judges (M. Ilešič, reporting, together with I. Jarukaitis and Z. Csehi).

The Hague Academy of International Law has made known the programme of the summer course of Private International Law of 2023.

The course will be opened by Maarit Jänterä-Jareborg (Uppsala University) with a lecture on Women’s Rights in a World in Transition: The Challenges of Private International Law.

The general course, titled Responses to a Legally Fragmented World: A Private Law Perspective, will be given by Francisco Garcimartín (Autonomous University of Madrid).

The special courses will be as follows: Olivera Boskovic (Université Paris Cité), Tortious Liability in Contemporary Private International Law; Matthias Lehmann (University of Vienna), Crypto Economy and International Law;  Pedro J. Martinez-Fraga (New York University – School of Law), Evidence-Gathering, Transparency, and Risk Assessment in International Commercial Arbitration; Anselmo Reyes (Singapore International Commercial Court), The Use of Domestic Law to Regulate the Conduct of Individuals, Corporations and Governments Extra-Territorially; Geneviève Saumier (McGill University), Specialised National Courts and International Business Disputes;  Maja Stanivuković (University of Novi Sad), Property Rights of Individuals After Changes of Territorial Sovereignty.

The directors of studies will be Philippa Webb (King’s College London) and Verónica Ruiz Abou-Nigm (University of Edinburgh) for the English-speaking section, Lucie Delabie (Université de Picardie Jules Verne) and Malik Laazouzi (Université Paris 2 – Panthéon-Assas) for the French-speaking session.

All applicants are required to register online. A limited amount of scholarships is available. Registration period for full fee, scholarship, doctoral scholarship and Directed Studies applicants is between 1 November 2022 and 31 January 2023. Attendees will also be able to participate in the doctoral networking sessions coordinated by Vaios Koutroulis (Univesité libre de Bruxelles) and Alexia Pato (University of Girona), additional afternoon lectures, embassy visits and other social activities.

More information on the Academy’s programmes, including the upcoming Winter Course, may be found here.

As noted earlier on this blog, on 2 December 2022, from 4 pm to 5.30 pm (MET), EAPIL will hold a joint Seminar with the British Institute of International and Comparative Law (BIICL). The Seminar will focus on the review of the Rome II Regulation and will, in this context, shed light on the Study that was prepared in 2021 by BIICL and Civic Consulting to support the preparation of the Commission report on the Regulation’s application. The seminar will focus on general issues as well as a selection of specific subjects.

The Seminar will take place via Zoom. If you wish to join, please register here by 30 November 2022 at noon. Registered participants will receive the details to join the Seminar on 1 December 2022.

The Seminar’s programme is as follows:

4.00 pm
Introduction: Overview of the Study
Constance Bonzé, BIICL (UK)
Eva Lein, BIICL (UK)/University of Lausanne (Switzerland)

— FOCUS I

4.15 pm
Financial Loss
Xandra Kramer, University of Rotterdam (Netherlands)

— FOCUS II

4.25 pm
Artificial Intelligence
Martin Ebers, University of Tartu (Estonia)

—

4.35 pm
A View from Practice
Marie Louise Kinsler, KC, 2 Temple Gardens, London (UK)

—

4.45 pm
Discussion

For more information, please write an e-mail to secretary.general@eapil.org.

It is becoming a tradition for the EAPIL blog to announce the publication of the PAX Moot. It is now just around two weeks that the case has been published for the students who are keen to take part in a yearly moot competition on Private International Law.

This time the Pax Moot Round is dedicated to the memory of Peter Nygh, a leading international lawyer, former judge of the Family Court of Australia, co-rapporteur on The Hague ‘judgment project’, and representative for Australia in the negotiations of the Convention on the Protection of Children.

The Peter Nygh Round of the competition will require participants to deal with the complexities of Private International Law in a global setting: European, African and American incorporated companies, Panamanian-flag vessel, and health injuries to employees from Philippines. The factual situation in the case is set around a series of international transactions and situations related to the refueling of a vessel in the port of Antwerp. The this, the insolvency procedure of one of the subsidiary companies involved in the arrangement of the refueling further complicates the situation of the parties.

The students participating in the 2023 PAX Moot are required to address matters of jurisdiction, the relevance of the insolvency proceedings for the pending claims, the possibility of appointing an expert to investigate factual situations in another country, and determining the applicable law.

Student teams from all over the world will be able to register for the competition from 2 November 2022. This can be done via an online form available here.

The moot comprises a written and an oral round. More information about the competition and its timetable are available here.

On 18 October 2022, the European Commission adopted its 2023 Work Programme. As explained in the press release that accompanies the document, the programme aims to set out a bold and transformative agenda in the face of Russia’s aggression against Ukraine, rising energy prices and the knock-on effects on the economy, while defending Europe’s democratic values and pursuing long-term goals and interests.

The initiatives that the Commission plans to take, or pursue with particular interest, in the course of 2023 are listed in three annexes.

Annex I is concerned with the new policy and legislative initiatives that the Commission intends to propose. None of the items in this Annex is based on Article 81 TFUE, on judicial cooperation in civil matters. No reference is made in the document to two topics that formed (and still form) the object of discussion among academics and stakeholder, namely the recognition of parenthood and the protection of vulnerable adults.

Annex II, on REFIT initiatives (i.e., initiatives aimed at making EU law simpler, less costly and future proof), contemplates, among other things, a revision of alternative dispute resolution and online dispute resolution framework to improve enforcement of consumer law is expected. A strong alternative dispute resolution (ADR) framework will enable consumers and businesses to solve their disputes rapidly and at a low cost, out-of-court. The increase in online shopping during the pandemic has shown that there is room for overall simplification notably in cross-border disputes and cost-effective measures, e.g., through digital tools and collective ADR disputes mechanisms. The idea is to modernise the ADR framework in view of the rapid development of online markets and advertising and the need to ensure that consumers have access to fair, neutral and efficient dispute resolution systems.

Various procedures involving aspects of private international law are featured in Annex III, about the pending procedures that the Commission regards as a priority.

The proposed Directive on adapting non-contractual civil liability rules to artificial intelligence (the AI Liability Directive) appears in this list. Liability ranked amongst the top barriers to the use of AI by European companies. This is so because current national liability rules, in particular based on fault, are not suited to handling liability claims for damage caused by AI-enabled products and services. Under such rules, victims need to prove a wrongful action or omission by a person who caused the damage. The specific characteristics of AI, including complexity, autonomy and opacity (the so-called “black box” effect), may make it difficult or prohibitively expensive for victims to identify the liable person and prove the requirements for a successful liability claim. In particular, when claiming compensation, victims could incur very high up-front costs and face significantly longer legal proceedings, compared to cases not involving AI. Victims may therefore be deterred from claiming compensation altogether. Therefore, the objective of this proposal is to promote the rollout of trustworthy AI to harvest its full benefits for the internal market. It does so by ensuring victims of damage caused by AI obtain equivalent protection to victims of damage caused by products in general. It also reduces legal uncertainty of businesses developing or using AI regarding their possible exposure to liability and prevents the emergence of fragmented AI-specific adaptations of national civil liability rules. From a private international law perspective, the impact of the Directive and the (possible) future implementation in national rules and the relationship with the Rome II Regulation shall be investigated.

The list of priority pending procedures also include the proposed Directive on liability for defective products. Directive 85/374/EEC, which the proposal aims to repeal, has the objective to provide an EU-level system for compensating people who suffer physical injury or damage to property due to defective products. Since its adoption in 1985, there have been significant changes in the way products are produced, distributed and operated, including the modernisation of product safety and market surveillance rules. The green and digital transitions are underway and bring with them enormous benefits for Europe’s society and economy, be it by extending the life of materials and products, e.g. through remanufacturing, or by increasing productivity and convenience thanks to smart products and artificial intelligence. Therefore, the revision of the Directive seeks to ensure the functioning of the internal market, free movement of goods, undistorted competition between market operators, and a high level of protection of consumers’ health and property. In particular, it aims to: ensure liability rules reflecting the nature and risks of products in the digital age and circular economy; ensure there is always a business based in the EU that can be held liable for defective products bought directly from manufacturers outside the EU; ease the burden of proof in complex cases and ease restrictions on making claims, while ensuring a fair balance between the legitimate interests of manufacturers, injured persons and consumers in general; ensure legal certainty.

Also in the list of the Commission’s priorities is the proposed Directive on Corporate Sustainability Due Diligence. An overview of the Commission proposal has already appeared on this blog. As suggested in a recommendation of GEDIP that has recently been brought to the attention of the readers of this blog (see here), the Proposal may need to be reconsidered and improved in various respects.

Another priority pending procedure is the proposed Directive on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against public participation”, or SLAPPs). The initiative has been the object of a dedicated post on this blog.

Finally, the Commission intends to include among its priorities the initiatives it has taken regarding the digitalisation of judicial cooperation in cross-border civil and commercial matters, i.e., the proposed Directive on digitalisation of judicial cooperation and the proposed Regulation on the digitalisation of judicial cooperation and access to justice in cross-border civil, commercial and criminal matters. An illustration is found in this post.

The proposed Directive on consumer credits and the proposed Regulation on the law applicable to the third-party effects of assignments of claims equally feature in the list of the priority pending legislative proposals.

This post, written by Pascal de Vareilles Sommières, who is a Professor at the University of Paris 1 Panthéon-Sorbonne, is the seventh in a series concerning the proposed codification of French Private International Law. Previous posts relating to the French Draft Code addressed the issues of renvoi, foreign law, the recognition of marriages, companies and parentage. A German perspective on the draft was also offered here.

Article 15 is the first provision in the title II of the French Project of Code of Private International Law (the Code project), on “Jurisdiction of courts”. It reads as follows:

Unless provided otherwise in this code, jurisdiction of French courts results from the rules on venue in domestic procedural law, which are extended to international matter – subject to their adjustment as it may be required for that matter –, especially the rule on venue based on the domicile or on the habitual residence of the defendant.

Overview of Article 15

Under Article 15, legal bases for jurisdiction of French courts over cross-border disputes are basically to be found in the French rules on venue (place of the lawsuit) as they apply in domestic proceedings, except if a specific rule on jurisdiction has been codified and applies to the case. A striking feature of this rule is that it does not address the jurisdictional issue by itself, but by reference to other rules that were made for domestic litigation. It has been coined as a default rule – or a “principle” in the words of the Report to the Minister of Justice on the project of Code of Private International Law (the Report), recalling (p. 15) that it comes from a former ruling by the Cour de cassation (see the Report, p. 15 at footnote 5, referring to Cass. Civ. 19 October 1959 Pelassa, and Cass. Civ. 30 October 1962 Scheffel). As a default rule, the rule applies in any particular case with the proviso that the case is not covered by a specific rule on jurisdiction within the Code project. As such, it has the importance of a general principle: exceptions may exist, but they keep the status of exceptions, inspired by data specific to the category for which they are provided, and applying only to cases falling in that category.

One particular jurisdiction basis for French courts that draws on this rule is where the domicile or the habitual residence of the defendant is in France: Article 15 expressly mentions the extension of the corresponding venue rule (French Code of civil procedure, Article 42) to disputes arising in an international setting. Such a jurisdiction rule (well known in Latin: Actor sequitur forum rei), is classical in comparative private international law and consequently gained its status as a principle in EU jurisdiction rules in civil and commercial matters (Article 4 of the Brussels I bis Regulation). Needless to say, Actor sequitur… is not the only rule on venue in the French Code of civil procedure, and, under Article 15 of the Code project, others shall extend to international litigation before French courts – at least, each time they are not ruled out by a specific provision on jurisdiction that the Code project enacts.

In some cases, the Code project sets up straightforward specific rules on jurisdiction for international litigation before French courts, as in the field of personal status, where Article 34 provides for jurisdiction of French courts if the domicile or habitual residence of the person whose status is at stake is located in France at the time when the dispute is introduced before the court.

Rules on jurisdiction in the field of contractual and non-contractual obligations (Articles 88 and 91) are good examples of less straightforward jurisdiction rules laid down by the Code project. On the one hand, they draw on rules of venue applying to domestic litigation (French Code of civil procedure, Article 46) and, to that extent, they belong to these venue rules adjusted to international litigation mentioned by Article 15 (see the Report, p. 16). On the other hand, they appear within the Code project as specific legal rules (Article 88 §2; Article 91 §2), proper to international disputes. Under these provisions, in contractual matters, legal bases for jurisdiction of French courts are the place of delivery of the goods and the place of provision of the service; in extra-contractual matters, legal bases for jurisdiction of French courts are the place of the harmful event and the place where the damage is suffered. Of course, in both fields, French rules on jurisdiction apply subject to international convention or EU law (Article 88 §1; Article 91 §1); and we all know that EU law in civil and commercial matters does not rule out the rules on jurisdiction of Member State courts, if the defendant is domiciled in a country which is not a EU Member State (Article 6 of the Brussels I bis Regulation).

General Assessment of Article 15

Is the rule laid down by the Code project in Article 15 a satisfactory one? We must confess our frowning on reading it. The reason is that, in our opinion, the reference to rules on venue in domestic disputes, as default rules on jurisdiction issues in international litigation, made by Article 15 of the Code project, falls beside the point.

The mere fact for the Report to emphasize that the general rule provided by Article 15 belongs to those provisions, in the Code project, intending to consolidate advances previously gained (“acquis”), or to maintain traditional solutions in spite of scholarly criticism (p. 15), remains unsatisfactory to us.

A first reason for scepticism is that the extension of domestic rules on venue to international litigation, when it comes to determining legal bases of jurisdiction of a country’s courts, is enshrined in the Code project, even though this extension principle is said to fall under criticism of commentators: one expects a response to that criticism by the drafters of the Code project prior to have it set aside. A second reason is that it is awkward for the Code project drafters to set up, as a default rule or principle on jurisdiction of courts in international disputes, a mere reference to rules on venue  made for domestic disputes, especially when it is simultaneously admitted that “no one today denies the specificity” of the nature of international jurisdiction of a country’s courts and of the rules laid down to fix it, compared to domestic venue (see the Report, p. 15).

Everyone interested in EU law on jurisdiction in civil and commercial matters knows the huge amount of dissatisfaction left in practice by criteria like the place of performance of obligation, the place of delivery of goods, and the place of provision of service, as grounds for jurisdiction in the field of contracts. The same dissatisfaction stems from criteria like the place of the harmful event and the place of damages, used for the same purpose in the field of torts. Having them endorsed by French rules on international litigation just because they are used as venue grounds in domestic proceedings is at least questionable, as is questionable the assertion by the Report that “the extension principle [of domestic venue provisions] has the advantage that it provides for a connecting factor easy to implement each time one cannot find in the Code project a specific rule for the relevant matter” (p. 15). The sentence would be more correct saying “easy to find” rather than “easy to implement”. But the mere fact, for a criterium used by a provision addressing a given issue, to be easy to find does not make this criterium reasonable and reliable when drafting another provision on a different issue.

So, if the point is to avail of default rules proper to answer the question whether or not a particular case falls within the jurisdiction of French courts (so that they may handle the jurisdiction issue even though there is no jurisdiction rule specific to the matter to which that case belongs), it is suggested here that a good approach would have been to listen to scholarly criticism and to assess counterproposals. Unfortunately, space lacks – due to the format of this blog – to develop here on this issue. This quick overview will only express our disappointment that the only other idea mentioned in the Report (and actually used in the Code project), for assertion of jurisdiction by French court where no ground specific to the matter can be found, is about resorting to the “natural judge theory” (doctrine du juge naturel) and consequently sticking to the French citizenship as a default basis for jurisdiction of French courts (see Code project, art. 17, and the Report, p. 16 to 18).

A Few Suggestions

Beside the well-known usual criticism under which citizenship/nationality of one of the litigants falls as a ground of jurisdiction in civil and commercial matters, another remark finds its way here: why did the Report and the Code project give short shrift to other possible solutions?

Extension of Brussels I reg. recast (2012) rules on jurisdiction, especially where the defendant is not domiciled in a EU Member State, could have been explored: there are pros and cons.

How about the forum legis jurisdiction? Comparative private international law shows a tendency for this ground of jurisdiction, formerly unfashionable, to come back to the forefront. EU jurisdiction law shows that providing for jurisdiction of the courts of a given country over a case, where the law of that country is applicable to that case, may well prove satisfactory (Articles 5 to 7 of Regulation No 650/2012 in matters of succession). An article recently published depicted quite clearly the influence, before common law courts, of the idea that, for a court, applicability of the law in force in its forum is a relevant basis for the jurisdiction of that court (R. Garnett, “Determining the Appropriate Forum by the Applicable Law”, [ICLQ vol 71, July 2022 pp 589–626]). Even in France, voices make the case for a better relation between forum and jus in private international law (see, among others, S. Corneloup, « Les liens entre forum et ius : réflexions sur quelques tendances en droit international privé contemporain », in Mélanges B. Ancel, LGDJ/IPROLEX, 2018, p. 461-475). This tendency probably finds its rationale in this idea that where a country claims applicability of its law through its choice-of-law rule, the best way to increase efficiency of this claim is to support it by an additional claim, made by that country through its choice-of-court rules, that its courts have jurisdiction. This jurisdiction should certainly not be exclusive of jurisdiction of the courts of any other country (at least in principle), but making it available to the parties is good for them, in terms of predictability, and good for the country whose law claims to be applicable, in terms of authoritativeness of its law.

Whether this point is decisive is open to debate, but one may expect from a lawmaker that it addresses such an issue when codifying its private international law.

This post was written by Verena Wodniansky-Wildenfeld, Vienna.

The Austrian Constitutional Court proceeds further on the way to equal treatment of heterosexual and homosexual couples. In its decision of 30 June 2022, it ruled that the requirements for establishing parenthood of same-sex partners must not be stricter than the ones for opposite-sex partners.

Facts of the Case

Two women lived together as registered partners with a child. After the child’s birth, the partner of the mother sought to be legally registered as the child’s parent. This request was refused by the authorities, as she could not be considered the “father” in the sense of the law and the child had been conceived naturally and not through artificial insemination, as required for the registration as a co-mother. Thereupon, she filed a complaint with the Austrian Constitutional Court on the grounds of the discriminatory nature of the legal provisions applied in the case at hand.

Legal Problem

Under the current Austrian statutory law, the registered female partner of the biological mother can be considered as the “other parent” only in the case of medically assisted reproduction (Section 144(2) ABGB).

In cases where the biological mother and her female partner are married to each other, as well as in cases where the birth was not preceded by medically assisted procreation, Austrian law does not provide any possibility for the acknowledgement of parenthood.

In order to legally become the “other parent”, the only way left is via “stepchild adoption” (section 197(4) ABGB), which is neither a duty nor a right. This situation differs from the case of heterosexual spouses: the man who is married to the mother at the time of the child’s birth is ex lege considered to be its father, never mind how the child is conceived. Moreover, a man may acknowledge fatherhood even if the child was conceived by someone else (whether through natural or medically assisted reproduction). Neither of these options are available to the wife or female partner of the biological mother.

Decision

The Austrian Constitutional Court considers this statutory situation as an unjustified unequal treatment of the mother’s female partner with regard to her legal status as “other parent” in comparison to a man in the same constellation. The court invoked in particular the right to private life and the principle of equality (Articles 14 and 8 ECHR, which form an integral part of Austrian constitutional law). Furthermore, it referred to the legal interest of the child (particularly Article 8 ECHR and the implementation of the UN Charter on the Rights of the Child) and that of a legal parent who wants to take responsibility for the child.

The Constitutional Court rejects the objections by the Federal Government, who argued that the unequal treatment under the law would be justified. According to the Court, a man’s fundamental aptitude for natural procreation is not sufficient to tie paternity to less stringent conditions than the parenthood of a woman who cannot have “fathered” the child. The Court was moreover not persuaded by the approval of the German legal situation by the ECtHR, which puts same-sex couples in a significantly worse position than the Austrian one due to the mere possibility of adopting the child.

Assessment

Following the decision concerning the implementation of marriage for homosexual couples, the direction the Constitutional Court has taken this time is hardly surprising. In stating that the unequal treatment of homosexual and heterosexual couples cannot be justified, the Court finds itself in agreement with large parts of the Austrian literature. Certainly, the Court does not deny the existence of factual differences between men and women with respect to natural procreative capacity. The prohibition of discrimination, however, prevents the legislature from attaching different legal consequences to this gender-specific distinction and the sexual orientation. The provision of the ABGB was therefore repealed as unconstitutional and as further consequence, will be ceased to be in force by the end of 2023.

The question arises which implications the decision will have for national conflict-of-law rules. De lege lata, the latter only explicitly governs descent from the father. A possible solution would be to apply the general clause in Section 1(1) IPRG and thus extend the rule on paternity to co-motherhood. Accordingly, the common nationality of both married parents or that of the child in the case of unmarried parents would determine the applicable law. Nevertheless, a clear solution would be preferable also in this matter.

It remains to be seen whether the Austrian legislator will find a solution that does justice to the desire for permanence of parenthood, the protection of the social family, and the best interests of the child.

Filip Šaranović (Queen Mary University of London) is the author of Freezing Injunctions in Private International Law, recently published by Cambridge University Press.

The blurb reads:

The extent of available pre-judgment asset preservation relief is widely regarded as a unique characteristic of English law and one of the key factors attracting international commercial litigation to the English courts. By taking a novel view of the theoretical foundations of a freezing injunction, this book challenges the long-established view that such an injunction is an in personam form of relief whose sole purpose is to prevent unscrupulous defendants from making themselves judgment-proof. Dr Šaranović combines historical and comparative perspectives to identify several theoretical flaws in the court’s jurisdiction to grant this popular form of interim relief. The book demonstrates that the current application of private international law rules in this field leads to inequality among litigants and illegitimate encroachment upon the sovereignty of foreign states. It proposes a range of possible solutions to alleviate concerns about the scope of freezing injunctions both in the domestic and international arena.

Further information available here.

On 9, 10 and 11 November 2022, a Special Commission devoted to the Hague Convention of 13 January 2000 on the international protection of adults will meet in the Hague.

The Hague Adults Convention applies in international situations to the protection of persons aged 18 or more who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their interests. It lays down a comprehensive set of private international law rules in this area: rules on jurisdiction to give measures of protection, on the law applicable both to measures of protection and powers of representation conferred by an adult in contemplation of a possible loss of autonomy, on the recognition and enforcement of measures of protection across Contracting States, and on cooperation between the authorities of such States.

Today, fourteen States are bound by the Hague Adults Convention, the latest to join being Greece (actually, the Convention entered into force for Greece yesterday, 1 November 2022).

Why a Special Commission, and How It’s Been Prepared

While the Hague Adults Convention has generally proved to work well in practice, the Council on General of Affairs and Policy of the Hague Conference on Private International Law considered, in 2019, that the time had come to convene a Special Commission for the purpose of reviewing the practical operation of this instrument.

Preparation work began shortly afterwards, with a questionnaire addressed to States aimed to determine the issues that the Special Commission ought to address (the responses are found here), followed by a questionnaire on the practical operation of the Convention (see here the responses).

Since April 2021, a working group constituted for this purpose has been meeting regularly with the aim to draft a Practical Handbook on the Convention and, more generally, to discuss the various documents that the Special Commission will consider in its meeting (or serve as a background to it). As a member of the working group, the author of this post enjoyed the intense and fruitful exchanges that occurred among the members, and witnessed the amazing job carried out by the Permanent Bureau to assist the group and, generally, to get everything ready for the Special Commission.

The meeting of the Special Commission will only open to delegates designated by States and invited observers (by the way, the European Association of Private International is among the observers: as the readers of the blog may recall, EAPIL received a similar invitation in May 2022 to attend the first meeting of the Special Commission on the Hague Maintenance Convention and Protocol). Of course, the Conclusions that the Special Commission will adopt will be made available once the meeting is over.

What to Expect from the Meeting (1): A Substantial Contribution to the Understanding of the Convention

The November 2022 meeting is the first such meeting devoted to the Hague Adults Convention. In fact, the work carried in preparation of the Special Commission over the last year and a half, and its finalisation by the Special Commission, represents the first major collective exercise of this kind regarding the Convention.

This is in itself remarkable, especially if one considers that, over the years, several Special Commission meetings have taken place to discuss the operation of other Hague instruments. For instance, the Special Commission charged with reviewing the operation of the Hague Convention of 1980 on the civil aspects of international child abduction has met seven times, and the next meeting – due to take place in October 2023 – is already under preparation.

As a matter of fact, some practically important issues regarding the Hague Adults Convention had not been the object of detailed analysis before the working group and the Permanent Bureau engaged in this exercise.

One such issue is whether, and in which manner, the Convention applies to ex lege powers of representation, that is powers of representation that, according to the law of some States, a person close to the adult (e.g., their spouse) is entitled to exercise for the purposes of protecting them. A preliminary document, drawn up by the Permanent Bureau with the assistance of the working group provides an account of the questions that surround these powers, and discusses how they could (or should) be dealt with under the Convention.

Doubts have been raised in literature and among practitioners as regards the way in which the Hague Adults Convention deals with advance directives concerning matters of health, welfare and other personal matters. This topic, too, is the object of a preliminary document.

The Special Commission will offer a unique opportunity to collect the views of States and observers on these and several other issues. The finalised Practical Handbook (the latest revised draft is available here) will eventually help shape a common understanding of the operation of the Convention, notably as regards the issues that have prompted doubts and disputes.

While the Practical Handbook and the Conclusions of the Special Commission will not be formally binding on State courts and other authorities, the consensus that the Commission will be able to record on the various topics under discussion will in fact serve as a guideline for anybody having to do with the Convention.

What to Expect from the Meeting (2): A New Wave of Ratifications

One recurring criticism concerning the Hague Adults Convention is that it is in force only for relatively few States. Admittedly, the pace of ratifications has been disappointing.

Experts generally agree that the Convention significantly facilitates the handling of cross-border cases, and authorities in Contracting States frequently report about the benefits offered by the Convention in cases governed by its rules, compared with cases for which the Convention is of no avail (e.g., when the need arises to coordinate proceedings before local courts with proceedings in a State that is not bound by the Convention). Yet, several States have apparently never considered joining the Convention, and many among those that have expressed an interest in ratifying the Convention have so far contented themselves with taking preliminary steps in that direction.

The Special Commission of November 2022 is likely to encourage new ratifications and accessions. There are various reasons for that.

To begin with, the Convention has slowly come under the limelight, these last years. There has been an increase in the number of scholarly writings and academic initiatives regarding the protection of adults, and the practical importance of the topic is no longer challenged. The Special Commission itself is meant, inter alia, to draw the attention of States and stakeholders on the problems surrounding the international protection of adults, and will further increase the visibility of the Convention. All this will plausibly lead more States to consider joining the Convention, or work at its ratification.

Secondly, the Special Commission will enable States to develop a more thorough understanding of the Convention. The benefits of ratification should in fact prove easier to assess based on the information collected in preparation of the Special Commission. The work that individual Contracting States are expected to carry out in the future should also be of help in this respect. Reference is made to the “Country Profiles” that States are invited to prepare in accordance with a draft that the Commission will discuss. The States that will join the Convention in the future will thus be able to rely on a rich collection of data produced both by the Hague Conference and by the current parties. The will not bear the price, in terms of information, that “pioneer” States must face when joining a uniform regime whose actual functioning has not been fully tested or is not thoroughly documented.

What to Expect from the Meeting (3): A Step Towards a Limited Amendment to the Convention Itself?

So far, the Hague Adults Convention has been ratified only by European States. Apart from Switzerland, Monaco and the UK, all of the States parties to the Convention are also Members of the European Union.

As the readers of this blog know, EU institutions have on various occasions expressed the view that the protection of adults in cross-border deserves greater attention on the part of Member States and the Union itself.

Building on the conclusions adopted by the Council in June 2021, the European Commission launched a public consultation in December 2021 on the measures that the Union should adopt in this field (EAPIL issued a position paper in response to that consultation), and published a study on the matter. The Commission is reportedly working at an impact assessment study that would accompany a possible proposal for a regulation.

One of the hurdles that the Union faces in this area is that the EU cannot itself become a party to the Hague Adults Convention, for this is only open to States. This means that the EU could, at best, authorise the Member States that have not yet done so to ratify the Convention “in the interest of the Union”, as it occurred with the Hague Convention of 19 October 1996 on the protection of children.

At a workshop organised by the Czech Presidency of the Council of the EU in September 2022, the question has been put forward by the First Secretary of the Hague Conference, Philippe Lortie, of whether it would make sense to amend the Convention so as to include a “REIO clause”, i.e., a clause that would enable regional economic integration organisations, such as the EU, to join the Convention. Other provisions in the Convention could be amended on the same occasion: these additional changes would not alter the substance of the Convention, but rather clarify the meaning of provisions whose uniform interpretation could otherwise be difficult to achieve. The possible scope of the various amendments, together with the issues that this move would entail, are outlined in a dedicated preliminary document that has also been prepared in view of the Special Commission.

The prospect of a direct involvement of the EU as a party to the Hague Convention raises some politically sensitive questions, both for the Member States (external action by the Union is a delicate subject) and for the Union itself. One should consider, among other things, that an amendment to the Convention would take several months to complete: if that path were to be taken, the plans of the European Commission regarding new legislation in this area would likely need to be put on hold for some time, and adapted to the changed context.

The implications of the Union becoming a party to the Convention, however, would also be practically significant. Among other things, the Court of Justice would find itself in a position to issue preliminary rulings on the Convention, thereby in fact playing a key role in the uniform interpretation of its provisions.

It remains unclear whether States (not just EU Member States) may in fact have an appetite for this and/or other changes to the Convention. The Special Commission will provide a first opportunity to discuss this prospect. The topic, however, will likely be rediscussed in the broader context of the next meeting of the Council on General Affairs and Policy of the Conference, due to be held in March 2023.