EAPIL blog

This is the second and final part of a post contributed by Estelle Gallant, regarding the provisions on parentage in the proposed codification of French PIL. The first part can be found here. 

As explained in the first part of this post, the French draft code of private international law devotes an entire sub-section to parentage. After the presentation of the general choice of law rule related to biological parentage (Article 59), it is proposed to shed light on the two special rules in the same matter (Articles 60 and 61).

As regard the general rule codified in Article 59, the substitution of the national law of the child for the national law of the mother is the most positive contribution of the draft. By contrast, the two special rules of the draft, namely Articles 60 and 61, fall short of expectations, not always providing the expected simplifications or clarifications.

Special Rule on Voluntary Acknowledgement of Children (Article 60)

While innovative in certain respects, Article 60 of the draft Code is – for the most part – a reworking of positive law, resulting from a combination of Article 311-17 of the Civil Code and its interpretation by the courts. Although some of the difficulties pointed out in the literature and not necessarily resolved in the case law have been resolved by the draft, not all have been.

Specifically devoted to the voluntary acknowledgement of a child (i.e. declaration of a person that s/he is the parent of the relevant child), whether paternal or maternal, Article 60 distinguishes between substantive validity and formal validity of the acknowledgement, which is a novelty compared with the current system.

Substantive Validity of Voluntary Acknowledgement

Article 60(1) is innovative since it presents itself as an exception to the general provisions.

The solution of the derogation closes a doctrinal controversy that concerned both the methodological nature of the rule in Article 311-17 of the Civil Code and its scope of application. By making the rule on voluntary acknowledgement a derogation from the general rule, it follows that the general rule is purely and simply put aside as soon as an acknowledgement of a child is concerned. This solution is problematic under the current regime because it contributes to putting aside the law of the mother which may validate voluntary acknowledgement, but it is no longer problematic in the context of the draft: even by derogating from the general rule, the special rule merely offers an additional alternative connecting factor to that contained in the general rule. The derogation thus no longer seems to be contrary to the spirit of favouring the establishment of parentage out of marriage which is the overarching principle of the provisions on voluntary acknowledgement.

The conflict-of-laws rule (Article 60(1)) contains an alternative connecting factor to validate the acknowledgement of a child: the national law of the person making the acknowledgement or the national law of the child on the day of the acknowledgement. This is the same rule as the one currently found in the civil code (Article 311-17). The methodological nature of this rule is unclear: is it a “substance-oriented” choice of law rule, a rule of necessary application, a substantive domestic rule ordering the taking into consideration of foreign laws or perhaps even a rule of recognition of a situation? The drafters of the draft Code have remained deaf to these questions and have reproduced the provision almost identically. This being said, the methodological nature of the text is less important once its scope is clearly established and its implementation clarified.

The draft Code contains (in Article 60(4)) what may again be analysed as a special public policy clause, allowing recourse to French law in cases where neither of the two national laws referred to in Art 60(1) allows the validation of the acknowledgement. The purpose of the provision is to further strengthen the principle of favouring the establishment of parentage by voluntary acknowledgement. The provision is similar to the one that is proposed under Article 59, but the triggering factor is different. In the case of acknowledgement, French law will displace the foreign law that does not allow acknowledgement only in the event that the child is domiciled in France.

Lastly, it is regrettable that the draft code has not cared to define the notion of voluntary acknowledgement of children. Case law has revealed a difficulty of characterisation in situations that would have deserved particular attention, such as the case where the child has a birth certificate mentioning the mother’s name or the father’s name (Civ. 1ère, 28 May 2015, no. 14-18.100). Such cases have been dealt with under Article 311-17 of the Civil Code, whereas such a solution would certainly be worth discussing.

Challenges to Voluntary Acknowledgement

Following on from Article 60(1), Article 60(2) codifies judge made rules accepted since 1999 (Civ. 1ère, 6 July 1999, no. 97-19.453).  Disputes as to the truthfulness of the acknowledgement or to its validity, are subject cumulatively to the national law of the author and the national law of the child on the day of the acknowledgement. While acknowledgement is favoured by alternative connecting factors and the requirement that only one of these laws validates the acknowledgement, challenges to acknowledgements are disfavoured by the requirement that the requirements of two laws are applied cumulatively. Since the solution is not without criticism (in particular, why should preventing a child from destroying a parentage be more protective than the reverse?), it is regrettable that it has not been rethought.

Formal Validity of the Act of Voluntary Acknowledgement.

Article 60(3) provides a rule concerning the conditions of form for validly registering of voluntary acknowledgement of a child.  It adds to the two alternative connecting factors already provided for the substantive conditions of acknowledgement, a third connecting factor involving the law of the State in whose territory the act of acknowledgement is drawn up. This is a traditional solution as regards the form of documents and makes it possible not to penalise excessively for reasons of form a document which would otherwise be valid in substance.

Substantive Rule

As indicated earlier in the commentary on Article 59, Article 60(5) contains a substantive rule specific to conflicts of filiation/parentage and, more specifically, to conflicts of acknowledgements. Based on a chronological principle, the text indicates that “an acknowledgement, as long as it is not annulled, deprives of effect any subsequent acknowledgement of the child in the same line”. It is thus understood that in the presence of two voluntary acknowledgements established in two different States, the first should first be contested in order to be able to rely on the second. The solution is to be approved; it might have deserved to be generalised to all modes of establishment of filiation.

Special Rule on Enjoyment of a Status (Article 61)

Article 61 of the draft code of private international law more or less reproduces the current Article 311-15 of the Civil Code by giving effect to the substantive provisions of domestic law relating to “enjoyment on a status” (possession d’état) a concept specific to French law which draw consequences from the fact that a person raises a child as if s/he was his own. However, two clarifications are made by the draft text.

On the one hand, it limits the scope by referring only to provisions concerning the establishment of filiation (for example, Article 314 of the Civil Code, which allows the restoration of the presumption of paternity of the husband).

On the other hand, it indicates that the provision applies only by way of derogation from the preceding provisions, i.e. both with regard to the general rule and with regard to the special rule on voluntary acknowledgement. The clarification regarding the scope of the exception is interesting, as the solution contradicts that adopted very recently by the Court of Cassation. In a judgment of 23 March 2022, the Court of Cassation ruled that Article 311-15 of the Civil Code constituted a derogation only from Article 311-14 and not from the rule in Article 311-17. In other words, according to this judgment, as soon as Article 311-17 is applicable, it excludes Article 311-15 of the Civil Code.

Even if it has been cleaned up in this way, it is surprising that this provision relating to the French rules on enjoyment of a status has been retained in the draft Code: the complexity of the rule has been denounced many times, its application is extremely rare and its usefulness is unconvincing.

This November, more precisely on Tuesday 15, The Court will hand down the decision in C-646/20, Senatsverwaltung für Inneres und Sport, a request from the German Bundesgerichtshof on the Brussels II bis Regulation. The issue is whether a private divorce granted in Italy further to concurring statements by the spouses before the civil registrar can be recorded in the German register of marriages without any additional recognition procedure. Here the questions referred to the Court of Justice:

Is the dissolution of a marriage on the basis of Article 12 of Decreto Legge (Italian Decree-Law) No 132 of 12 September 2014 (‘DL No 132/2014’) a divorce within the meaning of the Brussels IIa Regulation?

If Question 1 is answered in the negative: Is the dissolution of a marriage on the basis of Article 12 of DL No 132/2014 to be treated in accordance with the rule in Article 46 of the Brussels IIa Regulation on authentic instruments and agreements?

A short description of the facts can be read here.

As our editor Martina Mantovani has already reported, the case is one of few on PIL allocated to the Grand Chamber (Lenaerts, Bay Larsen, Arabadjiev, Prechal, Regan, Rodin, Jarukaitis, Ilešič, Bonichot, Safjan, Kumin, Arastey Sahún, Gavalec, Csehi, Spineanu-Matei, and Safjan as reporting judge). Advocate General Collins’s opinion was delivered on 5 May 2022. In his view,

The dissolution of a marriage by a legally ordained procedure whereby spouses each make a personal declaration that they wish to divorce before a civil registrar, who confirms that agreement in their presence not less than 30 days later after having verified that the conditions required by law for the dissolution of the marriage have been met, namely that the spouses do not have minor children or adult children who are incapacitated or severely disabled or economically dependent and the agreement between them does not contain terms concerning the transfer of assets, is a divorce judgment for the purposes of Council Regulation (EC) No 2201/2003.

For a short comment on the Opinion see Francesca Maoli in this blog.

A second decision will be handed down on Thursday 24, on C-358/21, Tilman. Tilman SA, a company governed by Belgian law, concluded in 2010 with Unilever Supply Chain Company AG, a company governed by Swiss law, an agreement by which the appellant undertook to wrap and package boxes of tea bags for a fixed price. In 2011, the parties signed a second agreement amending the price agreed. A dispute arose later in relation to the increase in the price charged by the appellant; the respondent paid the invoices only in part. The appellant brought proceedings in Belgium for payment of the outstanding amounts.

Before the court of first instance, the respondent contended that, in accordance with its general terms and conditions, only the English courts have jurisdiction to hear and determine the dispute. By judgment of 12 August 2015, the court of first instance ruled that the Belgian courts have jurisdiction to hear and determine the dispute, but that the contract is governed by, and must be interpreted in accordance with, English law.

The appellant lodged an appeal against that judgment. In its view, the contract must be governed by, and interpreted in accordance with Belgian law. The respondent brought a cross appeal, claiming that it is not the Belgian courts which have jurisdiction but rather the English courts.

The judgment delivered on 12 February 2020 by the Cour d’appel de Liège (Court of Appeal, Liège) (‘the judgment under appeal’)  upheld the plea alleging a lack of jurisdiction raised by the respondent and held that, pursuant to the clause conferring jurisdiction contained in the respondent’s general terms and conditions, the Belgian courts have no jurisdiction to hear and determine the dispute.

Before the Court of Cassation, the appellant does not contest that it signed a contract containing a reference to the respondent’s general terms and conditions, which are available on the latter’s website. By contrast, it claims that the judgment under appeal wrongly treats the agreement at issue in the same way as a ‘contract concluded online’ in the context of which the buyer is required ‘to tick a box indicating (that he) accepts the seller’s general terms and conditions before being able to finalise his purchase’. The appellant was in no way prompted to accept the respondent’s general terms and conditions formally by clicking on the corresponding box on the latter’s website. It therefore concludes that the judgment under appeal is not legally justified: it fails to ensure that the conditions, in particular the jurisdiction clause, were actually communicated to the appellant and that it expressly agreed to them.

The Belgium court has referred the following question on the 2007 Lugano Convention to the Court of Justice:

Are the requirements under Article 23(1)(a) and (2) of the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed in Lugano on 30 October 2007, satisfied where a clause conferring jurisdiction is contained in general terms and conditions to which a contract concluded in writing refers by providing the hypertext link to a website, access to which allows those general terms and conditions to be viewed, downloaded and printed, without the party against whom that clause is enforced having been asked to accept those general terms and conditions by ticking a box on that website?

The case has been assigned to a chamber of three judges (Arastey Sahún, Passer,  Biltgen – as reporting judge). It did not required the AG’s opinion.

As of today, a hearing is foreseen in C-658/22, Rzecznik Praw Dziecka et Prokurator Generalny, on child abduction, for early December; it may take place earlier, though. The referring court is the Sąd Apelacyjny w Warszawie ((Court of Appeal, Warsaw, Poland). In the main dispute, the Prokurator Generalny (Public Prosecutor General) and the Rzecznik Praw Dziecka (Commissioner for Children’s Rights) are seeking the suspension of the enforcement of the final order given by the Regional Court of Wrocław on 15 June 2022, and of the final order given by the Sąd Apelacyjny w Warszawie on 21 September 2022 in the action brought by T.C., with M.C. as an intervening party, to obtain an order requiring children to be returned to Ireland, and the application lodged by T.C. seeking a declaration stating that the final decision is enforceable.

This post, written by Estelle Gallant, who is a Professor at the University of Toulouse Capitole, is the sixth in a series of posts concerning the proposed codification of French Private International Law. It is split into two parts: part one appears below, whereas part two will be published tomorrow. Previous posts relating to the French Draft Code addressed the issues of renvoi, foreign law, the recognition of marriages and companies. A German perspective on the draft was also offered here.

The French draft code of private international law devotes an entire sub-section to parentage, comprising five subdivisions (labelled ‘paragraphes’ in French). They distinguish various aspects of international parentage, which is certainly a good initiative: biological parentage, medically assisted parentage with a third-party donor, surrogate motherhood carried out abroad, the effects of parentage and adoption are thus covered by Articles 59 to 70 of the draft code.

Currently, the French Civil Code contains fragmented provisions on biological filiation (Articles 311-14 to 311-17), on the one hand, and adoption, on the other (Articles 370-3 to 370-5). Case law has supplemented these provisions.

The draft Code devotes a first subdivision to biological parentage, containing three articles articulated around a general rule (Article 59 of the draft Code) and two special rules (Articles 60 and 61 of the draft Code). These three provisions are presented by the drafters (see page 35 of the report on the draft code) as a recast of the existing system (see above, Articles 311-14 to 311-17 Civil Code). Indeed, analysis shows that the draft takes up the existing legal structure and system. Only the general rule is really recast, the two special rules being merely reworded and clarified at the margin.

This commentary will briefly present the general rule on biological parentage pursuant to Article 59 of the draft code; the special rules laid down in Articles 60 and 61 will be analysed in a later post. Within the general rule, the replacement of the national law of the mother by the national law of the child is the most positive contribution of the draft (see infra).

By stating that “unless the present Code provides otherwise, the establishment and contesting of parentage” are governed by the national law of the child, the rule in Article 59 is presented as a general  principle. It means that the rule applies in the absence of a special rule.

Scope of Article 59

Article 59(1) of the draft Code refers to “the establishment and contesting of parentage”, whereas the provision currently in force refers to “parentage”. The clarification is useful in that it improves the readability of the provisions.

The text contains an unprecedented clarification as regards the inclusion in the scope of the article of the settlement of conflicts of parentage (Article 59(2)). The solution is marked by a certain logic and has to be combined with the special rule in Article 60. This latter provision is specifically concerned with voluntary acknowledgements of children (ie declaration by a person that he is the parent (typically father) of the child) and will be analysed in a later post.

New Connecting Factor

The current Article 311-14 of the Civil Code, by designating the national law of the mother on the day of the child’s birth to govern his or her filiation, is now the subject of unanimous criticism, in particular for its unequal and unspecific nature. The draft thus seeks to respond to the criticism by designating the child’s national law, a proposal that had been made by scholars as early as 1972. That said, the solution will remain relatively isolated, since in comparative private international law it is the connection to the child’s habitual residence that is generally retained.

Like the current text, the draft provides a solution to the change of nationality (conflit mobile) by fixing the connection to the child’s nationality on the day of birth. The solution is to be approved.

Public Policy Clause

One of the strongest criticisms levelled at the connection to the mother’s nationality was that it had the defect of preventing the establishment of the paternal parentage when the mother was of a personal status prohibiting the establishment of paternal parentage out of marriage, even in the presence of a French defendant or a French child or a child residing in France. Although the public policy exception may have been used by case law to cancel this result, its systematic use in such cases is only recent (Civ. 1ère, 26 October 2011, no. 09-71.369 ; Civ. 1ère,  27 September 2017, no. 16-19.654 ; Civ. 1ère, 16 December 2020, no. 19-20.948).

It may be noted that the draft Code provides for precisely this hypothesis in Article 59(3):

If, by reason of discrimination related to the circumstances of his or her birth, the [applicable] law denies the child the right to establish his or her filiation, French law shall apply, provided that the French courts have jurisdiction under the present Code.

The rule can be analysed as a special public policy clause allowing French law to be substituted for the prohibitive foreign law, if the French courts are seised. The link required between the situation and the territory of the forum for the exception to be triggered is fulfilled if French courts have jurisdiction under French rules of international jurisdiction. Pursuant to Article 34 of the draft Code, the courts with jurisdiction in matters of filiation are those of the place of domicile or habitual residence of the child.

The alignment between the criterion of jurisdiction and the criterion of triggering public policy is interesting and will make it possible, more than in the past, to cover all situations that are likely to trigger the public policy exception, i.e in case of strong proximity to France (e.g. French child or child residing in France, but also, above all, French defendant or defendant residing in France).

Diego Zambrano, Mariah Mastrodimos and Sergio Valente (Stanford Law School) have posted The Full Faith and Credit Clause and the Puzzle of Abortion Laws on SSRN.

The abstract reads:

Even before Dobbs overturned Roe v. Wade, states and legal observers were debating the constitutionality of another abortion-related law: Texas SB8. In mid-2021, Texas adopted a powerful new anti-abortion bill that barred anyone from performing abortions in the state of Texas starting at six weeks of pregnancy. But instead of empowering government officials to enforce its provisions, SB8 relied entirely on private lawsuits. The Texas abortion law triggered a discussion over the use of private enforcement actions to attack federal constitutional rights. Critics argued that Texas indirectly nullified the then-established constitutional right to abortion, that the Supreme Court surrendered traditional tools to review state legislation, and that SB8’s private enforcement regime was a procedural Frankenstein that violated due process norms. These discussions remain relevant even after the Supreme Court’s overturning of Roe because blue counties with elected prosecutors may refuse to enforce state criminal abortion laws, and states will continue to consider private enforcement schemes to regulate abortion, interstate travel, and other individual rights. Indeed, California recently adopted a gun control statute that is modeled on SB8’s private enforcement scheme.

Most importantly, for our purposes, some states like California have countered SB8 with legal provisions that seek to shield in-state residents from out-of-state claims and even prohibit the enforcement of SB8 awards. The question, then, is not only whether new private enforcement schemes can survive constitutional challenges but whether other states can respond by shielding their own residents.

In this essay we focus on the constitutionality of one legislative response to SB8 adopted by California—AB 1666, a law that seeks to shield in-state medical providers from SB8-style actions by prohibiting California courts from serving as a venue for SB8 claims and barring enforcement of Texas SB8 judgments. California’s main concern was that California doctors could face crippling liability under SB8 for prescribing abortion pills via telemedicine to patients in Texas. The Constitutional problem, however, is that AB1666’s provisions will face challenges under the Full Faith and Credit Clause of Article IV (the “FFC”). This raises a wealth of questions about conflict of laws, interstate relations, horizontal federalism, and the federal Constitution.

In a sense, the FFC is the unheralded workhorse of the original constitution, single-handedly maintaining a system of federalism in which states are obligated to recognize and enforce other states’ laws and judgments. Without it, states would be free to ignore each other’s’ laws, weakening any semblance of a national union and lending a hand to political polarization. Indeed, growing polarization will increase pressure on the FFC, as states seek ways to battle each other over topics like abortion, guns, and LGBTQ related laws.

Focusing specifically on the interaction of California’s AB1666, Texas SB8, and the FFC, we argue that California will probably be able to take advantage of exceptions to the FFC to defend its pro-choice laws. An analysis of recent doctrine demonstrates that California’s venue bar is likely constitutional. The judgment enforcement provision, however, will face trickier challenges and its constitutionality under the FFC is too close to call. The central question going forward is whether courts will interpret the FFC in a flexible and pragmatic manner—allowing for capacious exceptions—or will, by contrast, apply a tight leash on state legislative schemes.

Prompted by a kind invitation to participate in the International Weekend  of ABILA (American Branch of the International Law Association, NY, 20-22 October 2022), I took a moment to reflect about past achievements and future challenges for private international law (PIL) in the European Union.

We were three speakers in the panel (Karin Kizer and David W. Rivkin  also took part), introduced and moderated by Ronald A. Brand, Michael S. Coffee and Louise Ellen Teitz. The description of the panel read:

This panel will focus on the institutions, players, and issues that are important in the global development of rules of private international law. The panelists will include a global representation of institutional and practitioner perspectives. The discussion will be built around a set of questions dealing with both current practical issues raised by private international law developments and projections for the future.

We were asked to include arbitration in the presentations.

The assignment proved not easy. I confess I got stuck at the very first stage, i.e., how to define ‘achievements’ and ‘challenges’ in PIL: are they different when the ‘PIL’ under examination is of European source?  I guess the answer is that, indeed, EU instruments and case law (of the Court of Justice) in PIL exist as part of a bigger plan: they serve European integration. By way of consequence, assessing PIL developments requires evaluating whether they promote integration or, on the contrary, act as a hindrance to it.

The next question would then be what ‘integration’ entails, how to measure recent PIL contributions of the EU legislature and of the Court thereto, and what future challenges to integration, posed specifically in the area of judicial cooperation in civil and judicial matters, can be predicted at this stage.

As fascinating as (for instance) the impact on mutual trust of the threats to courts and judges’ independence in some EU countries may be, or whether imposing informational obligations to the Member States creates more transparency or is rather counterproductive, upon reflection a pure ‘European-integration’ approach seemed unfit for the purposes of the ABILA invitation. I gave it up; the topic may still be worth for further thought in another context. Considering the likely (American) audience attending the ILW of ABILA, a walk through the latest developments in EU law and the case law of the Court of Justice looked more appropriate – and already proved too much for the time I had .

From this point of departure, I was happy to report that the political attention to judicial cooperation in civil and commercial matters has not declined in the last years. The legislature has obliged adopting new regulations (Regulation 2016/1103 on matrimonial property regimes; Regulation 2016/1104 on the property consequences of registered partnerships), amending  existing ones (Regulation 2015/2421 amending the Regulations on the small claims and the order for payment procedures), and also recasting some (Regulation 2015/848 on insolvency proceedings; Regulation 2019/1111 on matrimonial matters and matters of parental responsibility; Regulation 2020/1783 on taking of evidence; Regulation 2020/1784 of the European Parliament on service of documents).

Indeed, most of the legislative activity of the last decade in the field of PIL is inward-looking. It focuses on strengthening judicial cooperation in the ‘inner circle’ composed of Member States: the task is far from being complete.

From a purely legal (as opposed to political) standpoint, a little bit more surprising is that in some legal instruments a concern for the EU-citizens is made explicit, even where the rules at hand would apply almost equally to non-EU-rooted claimants or defendants: see recital 1 of Regulation 2019/1111; or recitals 8, 32 or 35 of Regulation 2016/1103.

In comparison, the outward-looking activity of the EU lawmaker remains restricted. That is not to say that it has not progressed, both in quantity (meaning, accession to international conventions on PIL, as well as decisions on acceptance of accession of other countries), and in approach. When adopting new legal acts, in addition to resorting to laconic compatibility clauses, the EU legislature keeps an eye on being consistent with existing international conventions: Regulation 2019/1111 is a proof. A wish for judicial cooperation in civil and commercial matters appears in (some) agreements of a general scope, such as the Framework Agreement between the European Union and its member States, of the one part, and Australia, of the other part, in force since 22 October 2022: see its Article 32, comprising a specific mention to facilitating and encouraging the arbitral resolution of international civil and private commercial disputes.

That attention has been given to the civil prong of the European area of justice must be taken as good news.

Visiting the EU Parliament Legislative Train Schedule, the future looks not so promising. And yet there is much to do. There is definitely no PIL legislative overproduction in the Union; however, already with what exist it is easy to get lost.

One of the greatest difficulties in presenting European PIL as a true system to a third-State audience derives from the asymmetries of the instruments as regards geographical scope. The fact that there are several ‘Europes’ in Europe does not only impact on the practical manageability of the rules; it also jeopardizes declared valuable objectives, such as the concentration of closely related claims before the courts of a single Member State. This puzzling situation resulting from a variety of political motives affects above all family matters (in a large sense), but not only. The state of affairs is not likely to change any soon. For the future, the lawmaker should at least take care of making it visible. Sometimes he already does: because of the particular position of Denmark, Article 122, para 3, of the 2017 EU Trademark Regulation clarifies that reference to the Brussels regulation shall include, where appropriate, the Agreement between the European Community and the Kingdom of Denmark. Sometimes he does not: a provision similar to the one just referred to is missing in the GDPR.

Moving to the rules themselves, the newest ones on jurisdiction show an increasing degree of sophistication.

To ABILA I mentioned, by way of example, the provisions allowing for the limitation of proceedings (ad. ex., Article 13 of Regulation 2016/1103), which I see as a ‘distant cousin’ of the forum non conveniens doctrine. I also described the EU fora as being predictable, an assertion which was met with some skepticism in the panel. It is understandable. On paper, all grounds for jurisdiction in the European instruments obey to typical values (certainty, proximity) and reflect the outcome of balances (between the right of access to court of the claimant, and the right to a due process of defendant, with the necessary bias to protect one of the parties or to promote a particular substantive policy, as the case may be). In practice, reality beats the imagination of the legislator and puts the system continuously to a test.

Faced with a problem common to all legal systems, what still makes the European Union unique is the preliminary ruling mechanism (beyond the rightness or wrongfulness of the rulings: the Court can’t please everyone). Its very existence opens up the possibility of reacting to changes uniformly and in a relative short time. When requested by a national jurisdiction, no matter whether first instance, first or second appeal, the Court of Justice’s intervention to adjust the written rules or to shed light on their limits is not a choice – no certiorari.

In civil and commercial matters, the prototypical example of a need for constant adaptation are torts in the internet. Strings of requests for preliminary rulings get to Luxembourg based on variations of very similar facts, pushing the task of the Court of Justice to the verge of the distinction between interpretation and application of the European rules (see C-172/18, AMS Neve, and C-104/22, Lännen, as an example). That the workload of the Court does not decrease, but just the opposite, is to me a sign of trust and of good health of the system, thus an achievement.

In the area of enforcement there is much pending. The big European accomplishments in the last years remain confined to the free movement of titles from and to Member States. The (partial) abolition of exequatur, the possibility to ask for a European account preservation order, the availability of certificates and standards forms to  ease and speed the application for enforcement in a country other than that of delivery of the judgement… benefit Member States’ decisions.

Creditors should be aware that the recent ruling of the Court of Justice in C-568/20, H Limited, does not open wide a door to titles from third States. In my reading of the Court’s decision (which may be wrong), the Brussels I bis Regulation is still limited to the recognition and enforcement in a Member State of decisions of other Member States. It applies, after a foreign judgement has been recognized, to the steps following said recognition, such as an order for payment (if adopted in full compliance with the conditions set forth in the EU regime). The entry into force of the 2019 Hague Convention, when it takes place, will ease the enforcement of non-European titles only to some extent. No doubt there is room for improvement.

Finally, there was, of course, arbitration. In the panel, the discussion revolved around arbitration in the aftermath of the Achmea (C-284/16) and Komstroy (C-741/19) rulings.

I fail to see a difference for commercial arbitration in the pre- and post-Achmea scenarios (in this line, para 54 of C-284/16, resumed in C-741/19): at least, in theory. In any event, decisions such as C-700/20, London Steam-Ship Owners’ Mutual Insurance Association and earlier ones indicate that the main game is played elsewhere.

Among the many doctrinal suggestions for the recast of the Brussels I bis Regulation some focus on arbitration. Personally, I doubt the Commission wants to engage once again in the debate. Whatever the outcome of the ongoing revision of the Regulation, I presume Article 73, para 2, will remain. If this is so, a general line of reasoning of the Court regarding compatibility clauses is worth recalling: said clauses ‘cannot have a purport that conflicts with the principles underlying the legislation of which [they are] part’ (C‑533/08, TNT Express Nederland, at 51, and C- 452/12, Nipponkoa, at 37, on the relationship of the Brussels regime and the Convention on the Contract for the International Carriage of Goods by Road (CMR)). Difficult to imagine that Article 73 could constitute an exception in this regard, or the reasons why.

I did not have the time to present these thoughts in detail, nor other reflections regarding, among other, conflict of law rules. In exchange, I had the pleasure to listen to my two co-panelists on developments in the US and, quite intensively, in the already mentioned concerns of the arbitration world. A summary by S. Labi can be found in Oil-Gas-Energy-Mining-Infrastructure Dispute Management (OGEMID).

The author of this post is Lydia Lundstedt, who is a Senior Lecturer at the Stockholm University.

On 20 October 2022, Advocate General Szpunar delivered his opinion (not yet available in English) in Grand Production (C-423/21) on the interpretation of Article 3(1) of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society.

Marta Requejo Isidro reported on the questions referred by Oberster Gerichtshof (Austria) here.

In essence, the first question in the case is whether a streaming platform operator that retransmits tv broadcasts can be said to communicate works contained in those broadcast to the public in the meaning of Article 3(1) when internet users circumvent geo-blocking measures that the operator put into place to block access to the EU territory. Article 3(1) reads:

Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.

Background

The plaintiff, Grand Production d.o.o., a company incorporated under Serbian law, produces audio-visual entertainment programmes which are broadcast on Serbian territory by a Serbian broadcaster. The third defendant, GO4YU d.o.o Beograd (hereinafter GO4YU), also incorporated under Serbian law, has an agreement with the Serbian broadcaster to retransmit the broadcasts on its streaming platform. GO4YU Belgrade does not have the right however to retransmit Grand Production’s programmes outside Serbia and Montenegro and must block access to these programmes outside these territories. GO4YU’s platform is otherwise available both inside and outside Serbia. The first and fourth defendants are Austrian companies related to GO4YO that market the platform and conclude contracts with subscribers of the platform and the second defendant is a chairman of the board and sole shareholder of one of these related companies.

Grand Production claims that the defendants are infringing its copyright because its programmes are accessible on GO4YU’s platform to users worldwide. It claims that users can circumvent GO4YO’s geo-blocking measures and that GO4YO is aware of this. Grand Production applied to the Austrian courts for world-wide interlocutory measures against all defendants but only succeeded in obtaining an order against GO4YU Belgrade limited to the territory of Austria. Grand Production appealed to the referring court.

Platform Operator Infringes if Works are Accessible in the EU …

AG Szpunar opined that concept of ‘communication to the public’ within the meaning of Article 3(1) applies to a situation where the operator of a streaming platform retransmits works contained in a television broadcast originally made outside the EU, when the works are accessible without restriction within the EU (paras 22-26).  Szpunar explained that the CJEU’s decision in ITV Broadcasting (C-607/11) made clear that Article 3(1) covers a retransmission of works in a television broadcast where the retransmission is made by an organisation other than the original broadcaster, over the internet, even though the other organization’s subscribers are within the reception area of the television broadcast and may lawfully receive the broadcast on their televisions (para 22).

Szpunar explained that the fact that the subscribers in the ITV case were in the reception area of the television broadcast did not mean that the ITV case did not apply in a situation where the subscribers were not in reception area of the television broadcast. Szpunar noted that the CJEU made this clarification to respond to the argument that there was no “new public”, that is, a public different from the public to which the original television broadcast was directed. The CJEU held that the new public criterion was not relevant where the internet retransmission was made by different technical means from the original television broadcast.

The AG concluded that if an internet retransmission is also available outside the territory in which the original television broadcast was received, it is necessarily addressed to a wider audience than that of the television broadcast in question and therefore a fortiori constitutes a communication to the public within the meaning of Article 3(1) (para 23).

Szpunar also explained that the fact that the original television broadcast is directed at a territory outside the EU does not preclude a retransmission of that broadcast on the internet from being regarded as a communication to the public within the meaning of Article 3(1), ‘in so far as that retransmission is available in the territory to which the [Infosoc] directive applies.’ (para 25).

… unless the Operator Uses Geo-blocking Measures

AG Szpunar opined however that if an operator of a streaming platform that retransmits television broadcasts containing works uses geo-blocking measures, it does not infringe the communication to the public right in Article 3(1), even though users circumvent these measures to access the works on the territory of the EU (para 45).

AG Szpunar explained that pursuant to CJEU case law, digital rights management tools which include geo-blocking can give rise to legal effects under EU law (para 31). AG Szpunar referred inter alia to the CJEU’s decisions in Svensson (C-466/12) and VG Bild-Kunst (C-392/19), where the CJEU explained that the operator of a website could use access restrictions and anti-embedding measures to limit the public to which the works contained therein are communicated and that anyone circumventing these restrictions would communicate the works to a new public. AG Szpunar maintained that similar reasoning could be applied to geo-blocking measures such as those at issue in the case at hand:

If the copyright owner (or its licensee) has applied such a blocking measure, its transmission is directed only to the circle of persons who access the protected content from the territory defined by the copyright owner (i.e. the territory where access is not blocked). The rightholder therefore does not make any communication to the public in other territories.

If Grand Production’s entertainment programmes on GO4YU Belgrade’s streaming platform are subject to geo-blocking in such a way that access to them can in principle be obtained only from Serbia and Montenegro, GO4YU Belgrade does not carry out any communication of these programmes to the public within the European Union. (para 36-37) (my translation).

AG Szpunar explained that the mere fact that the operator of the platform is aware that users might circumvent the geo-blocking measures is not sufficient for holding the operator responsible, but that the situation would be different if the operator had “deliberately applied ineffective” geo-blocking measures (42-44).

With respect to the second question which concerned whether the related companies could be directly liable for the communication to the public, AG Szpunar opined that companies that have no influence on either the content made available on the platform or on the geo-blocking measures do not themselves communicate the works to the public within the meaning of Article 3(1) (46-53).

Side-steps whether the “Centre of Interests” Basis for Jurisdiction Applies to Copyright Infringements on the Internet

AG Szpunar proposed that the referring court’s third question on the interpretation of Article 7(2) of the Brussels I bis Regulation be dismissed because it was not relevant to the outcome of the dispute in the case at hand.

In essence, the national court asked whether the CJEU’s case law on violations of personality rights on the internet should be applied to copyright infringements on the internet. The referring court noted that the CJEU’s case law on the application of Article 7(2) to copyright infringement on the internet had been criticized. Pursuant to this case law (Pinckney (C-170/12) and  Pez Hejduk (C‑441/13)), the CJEU held that given the territorial nature of copyright protection, a court seised on the basis of the occurrence of damage within its territory has jurisdiction to rule only on the damage caused within its own territory and that the courts of other Member States retain jurisdiction to rule on the damage to copyright caused in their respective territories.

This is in contrast to the Court’s case in Bolagsupplysningen and Ilsjan (C-194/16) and eDate Advertising and others (C-509/09 and C-161/10) on violations of personality right on the internet, where the courts of the Member State where the victim has its centre of interests has jurisdiction to rule on all damage and can hear actions for rectification and removal of unlawful content.

AG Szpunar explained however that Article 7(2) of the Brussels I bis Regulation is not applicable to the case at hand. The third defendant is domiciled outside the EU (in Serbia) so in accordance with Article 6(1) of the Brussels Recast, the Austrian courts are to apply their national rules on jurisdiction. The other three defendants are domiciled in Austria so in accordance with Article 4 of the Brussels Recast, the Austrian courts’ jurisdiction is not territorially limited. Moreover, AG Szpunar noted that there is no indication that Grand Production (the would-be victim) has its centre of interest in Austria.

Comment

I was surprised that AG Szpunar did not refer to the CJEU case law in Football Dataco (C‑173/11) concerning an infringement of a sui generis database right and L’Oréal (C-324/09) concerning trade mark infringement where the Court held that the mere fact that a website containing protected content (e.g. data or a trademark) is accessible in a particular Member State is not sufficient for concluding that the operator of the website is infringing in that Member State (see Football Dataco (C‑173/11), para 36-41 and L’Oréal (C-324/09), para 64-67).

The CJEU explained that if mere accessibility was sufficient, websites, although obviously targeting persons outside the territory of a Member State, but nevertheless technically accessible in that State, would wrongly be subject to the application of that Member State’s laws. The CJEU held that it was up to the national courts to assess on a case-by-case basis whether there is evidence that discloses an intention on the part of the operator to target persons in that Member State (or the EU in the case on an EU trademark).

According to the CJEU, some factors that could disclose such an intention were whether the content of the website was of particular interest to users in the Member State, whether the website operator’s renumeration was based on the number of users from that Member State, whether the Top-Level Domain was a country code of the Member State. I agree with AG Szpunar’s conclusion that an operator that uses effective geo-blocking measures does not disclose an intention to target persons in the blocked Member State. That said, the mere fact that a website operator neglects to use such measures should not automatically lead to the conclusion that the operator infringes in every Member State where the website is technically accessible.

With respect to question about the interpretation of Article 7(2), I think the CJEU’s case law is clear that the centre of interest basis of jurisdiction does not apply to infringements of intellectual property rights due to the territorial nature of protection. This is certainly the case for the economic right associated with copyright. The situation might be different however if an author alleged an infringement of moral rights. This was however not the case here. Moreover, as AG Szpunar rightly explained, Article 7(2) was not applicable to the case.

This post was written by Hans van Loon.

As reported in this blog before the European Commission on 23 February 2022 adopted a proposal for a directive on corporate sustainability due diligence.

At its annual meeting in 2021, the European Group for Private International Law (GEDIP) had adopted a Recommendation to the EU Commission concerning the PIL aspects of corporate due diligence and corporate accountability. The EAPIL blog covered this development, too.

While some of the recommendations proposed by GEDIP are reflected in the Draft Directive, the Draft fails to take into account several crucial recommendations concerning judicial jurisdiction and applicable law. This will detract from its effectiveness.

In particular:

• The Proposal, while extending to third country companies lacks a provision on judicial jurisdiction in respect of such companies;
• The Proposal, while extending a company’s liability to the activities of its subsidiaries and to value chain co-operations carried out by entities “with which the company has a well-established business relationship”, lacks a provision dealing with the limitation of the provision on co-defendants in the Brussels I bis Regulation (Article 8(1)) to those domiciled in the EU;
• The Proposal lacks a provision allowing a victim of a violation of human rights to invoke, similar to a victim of a violation of environmental damage under Article 7 of Regulation 864/2007 (Rome II), also the law of the country in which the event giving rise to the damage occurred, and does not prevent companies from invoking a less strict rule of safety or conduct within the meaning of Article 17 of Rome II;
• The provision of the Proposal on the mandatory nature of the provisions of national law transposing the Directive (Article 22 (5)) is insufficient because (1) the words “in cases where the law applicable to actions for damages to this effect is not that of a Member State” are redundant and (2) all these provisions of national law transposing the Directive should apply irrespective of the law applicable to companies, contractual obligations or non-contractual obligations.

GEDIP therefore, on the occasion of its meeting in Oslo, 9-11 September 2022 adopted a Recommendation concerning the Proposal for a directive of 23 February 2022 on Corporate Sustainability Due Diligence, following up on its Recommendation to the Commission of 8 October 2021. The text of the Recommendation can be found here.

Jonathan Harris and Campbell McLachlan are the editors of Essays in International Litigation for Lord Collins (OUP, 2022). As its title makes clear, this is a collection of essays written to honour Lawrence Collins, who was a leading practitioner (partner at Herbert Smith, then judge, eventually on the UK Supreme Court), but also the general editor of the leading English work on private international law, Dicey, Morris and Collins on the Conflict of Laws.

This book contains a collection of essays written by many jurists who have been privileged to count Lawrence Collins as friend, mentor, and colleague over the course of a remarkable career of more than fifty years in practice and at the Bench. Lawrence’s own contribution is coincident with the rising importance in practice of issues in the conduct of international litigation. It also considers cross-border litigation as it is developing globally and the role of the national judiciary in international cases. The book highlights the reshaping of English private international law, particularly following the withdrawal of the United Kingdom from the European Union. It also discusses the development of international arbitration and the impact of public international law.

The contributors include Jonathan Harris, Horatia Muir Watt, Fausto Pocar, Hans van Loon, Elizabeth Gloster, Campbell McLachlan, David Lloyd Jones, Richard Aikens, Andrew Dickinson, Trevor Hartley, Alex Mills, Jonathan Mance, Linda Silberman, Frank Iacobucci, David McClean and Peter North.

More information can be found here.

In its judgment in the case of ROI Land Investments, C-604/20, rendered on 20 October 2022, the CJEU discussed two key features of the employment protection mechanisms of the Brussels I bis Regulation.

Firstly the Court clarified who is to be considered an employer by holding that the employer is not necessarily the entity that formally concluded the employment contract with the employee. Secondly, the CJEU held that the Regulation’s rules on jurisdiction over defendants domiciled outside the EU are mandatory and exclusive. More favourable national jurisdictional rules for the employee do not trump the rules of the Brussels I bis Regulation.

Legal Background

Employment contracts are subject to special jurisdiction rules in the Brussels I bis Regulation in order to protect the employee as being the typically weaker party. The employment protection mechanisms of the Regulation give an employee more forum shopping opportunities than an employer as well as limit the possibility to include forum selection clauses in employment contracts. Also, the special jurisdictional rule that gives the employee a chance to initiate proceedings in the member state where he or she habitually carries out work is one of the extraordinary rules of the Regulation that applies regardless of whether the defendant is domiciled in an EU member state or elsewhere.

Facts

In November 2016, a German labour court held that the termination of an employment contract between a German employee and a Swiss company was unlawful. According to the judgment, the employer should pay the former employee outstanding remuneration amounting to 442 500 USD. Shortly after the judgment, the Swiss company went bankrupt.

As the former employee had not received the outstanding remuneration from the Swiss company, he filed a lawsuit against the Canadian parent company, ROI Land Investments, on the grounds of a “patron agreement”. In the patron agreement, the Canadian parent company had assured liability for the obligations of the Swiss subsidiary. In addition to the patron agreement, the employee had actually initially been hired directly by the Canadian parent company before his employment contract was transferred to the Swiss subsidiary.

When suing the Canadian company in German courts, issues of how the patron agreement was to be characterized under the Brussels I bis Regulation arose. The former employee argued that German courts should have jurisdiction under the Brussels I bis Regulation’s rules on either employment contracts or the rules on consumer contracts. Whereas the court of first instance concluded that there was German jurisdiction, the court of appeal came to a contrary conclusion even if the patron agreement was characterized as a consumer contract.

In its request for a preliminary ruling from the CJEU, the German Supreme Labour Court (Bundesarbeitsgericht) presented a third way of characterizing the patron agreement by noting that it under German law, it would be considered a surety bond (Bürgschaft). On the other hand, the Bundesarbeitsgericht noted that no employment contract would have been made without the patron agreement from the Canadian parent company. In essence, the main legal issues can be summarized as regarding whether the patron agreement should be characterized as an employment contract and if the jurisdictional rules of the Brussels I bis Regulation must be applied in relation to a defendant domiciled outside the EU.

Who is an Employer?

The first question that the CJEU interpreted in its judgment was whether the patron agreement could consitute an employment relation that triggers the special jursidictional rules for such contracts found in section 5 of the regulation. In the case at hand, the answer to that question boiled down to whether the Canadian mother company could be seen as an “employer”.

Previously, the CJEU has ruled on the employee notion under the Brussels I bis Regulation. First, in Holterman Ferho Exploitate, C-47/14, the Court held that also a CEO could be considered an employee if he “for a certain period of time performed services for and under the direction of that company in return for which he received remuneration”. According to the CJEU, the subordination prerequisite (“for and under the direction of that company”), could be met also for persons in management positions as long as their ability to influence the actual governing body of the employer corporation is “not negligible” (Holterman Ferho Exploitate, p. 47).

A few years after the Holterman Ferho Exploitate judgment, the CJEU was given an opportunity to develop what was meant by a not negligible influence under the equivalent rules in the Lugano II Convention in Bosworth and Hurley, C-603/17. Here, the CJEU held that even if the shareholders of the employer company have the power to terminate the contract for a CEO, the CEO is not to be considered an employee if “that person is able to determine or does determine the terms of that contract and has control and autonomy over the day-to-day operation of that company’s business and the performance of his own duties”.

ROI Land Investments, completes the notion of employment relation under EU private international law by clarifying that not only the formal employer, but also the actual employer may be sought under the special jurisdictional rules for employment contracts. Both the court and the Advocate General came to the same conclusion in this part, but their arguments differ. Advocate General Jean Richard de la Tour proposed in his opinion, which is not yet available in English, that a third party who was directly benefitting from the work performed by the employee (“un intérêt direct à la bonne exécution dudit contrat”) should be considered an employer. In practice, the Advocate General’s and the Court’s solutions are probably not very different, but from a system-logical perspective, it is satisfactory that the Court sticks to the existing employee notion instead of inventing a new prerequiste. Now, the chosen employer notion mirrors the employee notion by focusing on the subordination relation.

According to the judgment, a patron agreement is not not necessarily in itself enough to stretch the employer notion (p. 33). To assess actual subordination between the presumptive employer and the employee, a national court must look into the employment history and, if there is e.g. a patron agreement, consider what that has meant for the employment relation (p. 35). In the case at hand, the patron agreement was a presumption for the entrance of the employment contract. Such a situation indicates that there is an employment relation.

Must the Jurisdictional Rules Apply when the Defendant is Domiciled Outside the EU?

Regarding the application of the Brussels I bis Regulation in relation to a defendant domiciled outside the EU, the CJEU noted that the clear exceptions in Article 6 trump national jurisdictional rules. As the rule in Article 21 p. 2 stating that an employee may initiate proceedings in the Member State where he or she habitually works is one of those, it shall be applied in the member states regardless of whether national rules would have been more favourable to the employee.

Consumer Contract?

As there had also been doubts in the national procedure if the patron agreement could be characterized as a consumer contract, the CJEU ruled also over this issue. Just in line with the wording of the consumer notion in Article 17 of the Brussels I bis Regulation, the court held that a prerequisite is that the contract is entered for purposes outside someone’s trade or profession. The court stressed that this is not only applicable for self-employed business owners, but also for employees (p. 55). According to the court, a patron agreement entered into between an employee and a third party not mentioned in the formal employment contract, cannot be considered to be outside the employee’s profession.

Conclusion

In a world where complex employment contract relations are common, the judgment may possibly hinder bad faith international outsourcing by giving employees the chance to claim liability from the actual employer. Still, the very special circumstances in the case make it a little hard to generalize how far the employer notion can be drawn in the future.

The infamous Wirecard scandal, which involved a German public limited company (AG) reporting non-existing assets and earnings to the tune of several billions of euros, has triggered a wave of litigation not only in Germany, but in several countries.

Facts

One such action was brought in an Austrian court by an Austrian investor against the German auditor of Wirecard AG. Simultaneously, he sued a member of Wirecard’s supervisory board domiciled in Austria (the Aufsichtsrat in the two-tier system of German corporate law). This happened to be the only member of the supervisory board living in the court’s district; the action did not include any other of the board members, who lived elsewhere.

Issue

Absent any other connection to Austria, it was disputed whether the Austrian court had jurisdiction over the German auditor of Wirecard on the basis of Article 8(1) of the Brussels I bis Regulation, which allows to combine several actions in one court. This presupposes that “the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments”.

Holding

The Austrian Supreme Court (OGH) held that the conditions of Article 8(1) of the Brussels I bis Regulation were met, and that consequently the Austrian court had jurisdiction over both the member of Wirecard’s supervisory board and the German auditor.

Rationale

The OGH underlines that the damage suffered by the claimant was allegedly caused through violations of duties by both defendants. It also stresses that the same remedy is sought against both of them.

In the eyes of the OGH, the fact that both actions are based on very different legal foundations would not matter. In this respect, the OGH refers to the CJEU‘s decision in Freeport, where the Court ruled that Article 8(1) of the Brussels I bis Regulation allows bringing two claims with different legal bases in the same forum (id., para 47).

The auditor alleged that the claimant had artificially created a situation to fulfil the conditions for the applicability of Article 8(1) and that the court should therefore reject the provision’s application in line with CJEU, Cartel Damage Claims (CDC) Hydrogen Peroxide, paras 32–33. However, the OGH held that the defendant did not provide any evidence for such fraus legis, and therefore considered Article 8(1) to apply.

Assessment

The decision stretches Article 8(1) of the Brussels I bis Regulation way beyond its limits.

The two actions barely had any connection with each other. The auditor and the supervisory board are not only entirely independent of each other and have very different relationships with the Wirecard AG and the claimant, they also have entirely different duties: While the auditor is required to provide a report about the financial situation of the client, the board has a duty to supervise the board of directors. The auditor’s report helps it in the exercise of this function and provides factual data for it. While it is true that both the auditor and the supervisory board must check the financial condition of the company, the supervisory board can generally rely on the auditor’s work and only has to check its overall soundness and consistency; on the other hand, it must also take into account other information than the report provided by the auditor. The court could thus come to the conclusion that the auditor is liable, but the supervisory board not, or vice versa. There is thus no danger of irreconcilable judgments, as required by Article 8(1).

Even more worrying is that the OGH closes its eyes to the claimant’s manipulation to fulfil the conditions of the provision. That the OGH requires concrete evidence from the claimant seems overly demanding; the facts already known speak for themselves. The action was directed against the only board member that was domiciled in Austria, and not against any other. Bringing this action was thus quite obviously nothing more than a thinly veiled scheme to drag the German auditor into an Austrian court. Nevertheless, the OGH chooses to ignore this reality and even refuses to submit a preliminary question to the CJEU as the Austrian court’s jurisdiction seems so clear.

The decision is an extreme example but may be illustrative of similar developments in other Member States. It is to be feared that Article 8(1) of the Brussels I bis Regulation may be abused for more schemes to create artificial bases of jurisdiction where none exists. The CJEU must close this door to such manipulations by making the conditions of the provision and the requirements for their disproof more explicit.

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 Choice of Law in Torts Arising from Infringement of Personality Rights that is being published in the 6th issue of the Revue de droit des affaires internationales/ International Business Law Journal.

The abstract of the article reads as follows:

This Article is a contribution to a conference held at the University of Paris-V on the localization of injuries in international or multistate torts, including those arising from cross-border infringements of personality rights, such as defamation or invasion of privacy.

The Article necessarily takes for granted the European Union’s rules on jurisdiction and choice-of-law and proposes a new choice-of-law rule for infringement of personality conflicts, which were excluded from the scope of the Rome II Regulation of 2007.

The proposed rule would amend Article 7 of Rome II, which at present covers only environmental torts. The amendment would reverse the starting point of the choice-of-law process by making the lex loci commissi the default rule, calling for the application of the law of the state of the injurious conduct or omission. However, the amendment would also authorize the application of the law of the state of the resulting injury (lex loci damni) if: (a) the occurrence in that state was objectively foreseeable, and (b) the claimant formally and timely requests the application of that law.

The paper focuses particularly on infringements committed through the internet. These are seen as difficult because of the ubiquity and borderlessness of the internet and a number of additional factors, which include considerable differences among various countries substantive law, jurisdiction, and choice of law.

Symeonides is arguing that in the localization of damage in cross-border torts concerning infringement of personality rights the localization of the injury should not be the only determinative factor in choice-of-law decisions in these conflicts. According to the author a number of additional factors besides the locus of the injury should guide these decisions. These are the place of the injurious conduct, the parties’ domiciles, the place of their relationship if any, and the content of the laws of each contact state (for more sophisticated enquiries). Several objections can be raised against these additional factors given that they cannot be easily compressed into simple black-letter rules that would be in line with the aim of the Rome II to deliver legal certainty and predictability in the EU. The author discusses them in relation to each additional factor. However, the approach followed by Article 7 Rome II for environmental damages may present the legislator with this possibility given that several EU Member States follow it for choice-of-law rules concerning infringement of personality rights giving the victim the possibility to choose between two to four applicable laws. For the time being, Rome II expressly excluded from its scope non-contractual obligations arising out of “violations of privacy and rights relating to personality, including defamation” (Article 1(2) letter (g) Rome II).

The last part of the paper provides suggestion for replacing the present wording of Article 7 Rome II with a provision that would be broader and would cover cross-border torts such as human rights violations, infringement of personality rights as well as all other torts not covered by special provisions of Rome II.

Luís de Lima Pinheiro (University of Lisbon) has posted The Spatial Reach of Injunctions for Privacy and Personal Data Protection on the Internet Revisited on SSRN.

The abstract reads:

This study deals with the spatial reach of injunctions addressed to online intermediaries for removal, blocking or delisting of content for the protection of the right of privacy, including data protection. It complements a previous essay published in Ius Vivum: Kunst – Internationales – Persönlichkeit. Festschrift für Haimo Schack zum 70. Geburtstag, summarizing its conclusions, providing the clarification of some issues and adding further comments.

It is advocated that while the limits set by Public International Law to the jurisdiction of the States must be taken into account, the spatial reach of these injunctions should be mainly determined through a Private International Law approach, based upon a substantive characterization of the issue.

Społeczna Inicjatywa Narkopolityki – SIN (Civil Society Drug Policy Initiative) is a A Polish association that conducts educational activities on the consequences of drugs use. In 2018 SIN’s Facebook and Instagram accounts were removed as “in violation of Community Standards”.

In May 2019 SIN filed a lawsuit against Facebook (namely, Facebook Ireland Limited seated in Ireland, which later changed its name to Metaplatforms Ireland Limited) demanding inter alia restoration of the removed accounts, as well as granting interim measures in that respect.

The case, which is still pending before Polish courts, has interesting private international law aspects.

Jurisdiction

In its decision of June 2019 Sąd Okręgowy w Warszawie (Regional Court in Warsaw) granted interim measures by ordering Facebook to restore and stop blocking / removing SIN’ accounts while the case is pending. Facebook appealed the decision. It was upheld by the decision of May 2021.

In the decision on interim measures of June 2019, the Court discussed the existence of its jurisdiction as to the merits of the case. The Court referred to Article 7(2) of the Brussels I bis Regulation and the jurisprudence of the Court of Justice of the EU in eDate case (C-509/09) and explained that

Although the present case does not concern infringement of personal rights by posting infringing content online, but – infringement of personal rights by removing content from the internet, the existance of the jurisdiction of the Polish court based on Article 7(2) is justified by the following reasons.

Both parties have their seats in EU Member States, the claimant conducts its business activity in Poland, thus the center of its interests lies within the jurisdiction of this Court. The widespread availability of content posted online means that this content is also available at the claimant’s center of interest. Moreover, the claimant directs the content to persons residing in Poland, as the content is posted mainly in the Polish language. Therefore, the removal of content uploaded by the claimant with the suggestion that the content is harmful and poses a threat to the safety of users means that the effects of the infringement of the freedom of expression in the form of blocking sites and groups also occurred at the claimant’s place of business and the effects of the infringement of the reputation of the uploader also occurred at the claimant’s place of business.

The above led the Court to the conclusion that it does have jurisdiction to hear SIN’s claim.

In its appeal agains this decision, Facebook raised lack of jurisdiction of Polish courts pursuant to Article 25 of the Brussels I bis Regulation pointing to the existence of a prorogation clause, which covers also claims based on violation of personality rights. In its response to the appeal, SIN submitted that the jurisdiction to grant interim measures exists on the basis of Article 35 of the Brussels I bis Regulation, and therefore, Facebook might not ask for lifting of the interim measures submitting lack of jurisdiction.

In the decision of May 2021 in which the first decision on interim measures was upheld, the Court analysed the existence of jurisdiction as to the merits of the case and as to interim measures. Interestingly, it first cited the provisions on jurisdiction contained in domestic law (namely, Article 11037(2) of the Code of Civil Procedure), to later conclude that  Article 7(2) of the Brussels I bis Regulation “is similar to 11037(2) of the Code of Civil Procedure”. The Court then referred to the jurisprudence of the Court of Justice of the EU, in particular in e-Date case and stated that

(…) Undoubtedly, the infringement of personal rights in the form described by the claimant took place in Poland (…)

Indeed, infringement of personal rights on the Internet is a so-called  multi-state tort, the effects of which arise not only at the place where the server containing the data is located or where the company infringing personal rights is established, but also at the center of the life interests of the recipient of such infringement and of the more broadly, the public who may come into contact with such a violation of personal rights by using the portal in question.

There is no doubt that the public debate on Polish public affairs that takes place on the Internet, despite its virtual character, takes place on the territory of Poland. Therefore, it should be considered that the consequences of infringement of personal rights also take place in Poland.

When it comes to jurisdiction to grant interim measures the Court confirmed that it does exist, referring only to domestic law (Article 1110³(2) of the Code of Civil Procedure), instead of Brussels I bis Regulation.   

Applicable Law

In Poland, Article 16(1) of the 2011 Act on Private International Law, provides that the personal rights of a natural person are governed by the law of his / her nationality. Pursuant to Article 16(2) of this Act, natural person whose personal rights were threatened or infringed may claim protection under the law of the state where the event giving rise to a threat or infringement has occurred, or under the law of the state where the consequences of the infringement occurred. In accordance with Article 20, the above mutatis mutandis applies to the protection of the personal rights of legal persons.

Having cited these provisions, the Court very briefly concluded in the decision of June 2019 that

Since the claimant links the effects of the infringement of personal rights to the territory of Poland, the applicable law is Polish law.

Please note that English translation of Polish 2011 Act on PIL is available online in volume XIII of the Yearbook of Private International Law at p. 641.

Service of Documents

Facebook refused to accept SIN’s claim which was written in Polish language. Hence, the Court decided on translation of court documents into English and summoned SIN to pay an advanced payment for this translation.

Referring to Service Regulation SIN appealed this decision, arguing that Facebook directs its services to Polish users. There are approximately 16 000 000 Polish users of Facebook. All documents regulating the use of the platform are available in Polish language. After their acceptance they constitute contracts which are concluded by Facebook with its customers. This means that Facebook is party to millions of contracts written in Polish language. As a result, one might not argue that Facebook does not understand this language.

Irrespective of SIN’s arguments an appeal to the decision on advanced payment for translation was dismissed by a decision of March 2022. Hence, SIN had to pay for the translation.

News on SIN’s case are published in Polish and English and may be followed here.

Sierd J. Schaafsma (Justice of the Supreme Court of the Netherlands) is the author of Intellectual Property in the Conflict of Laws – The Hidden Conflict-of-law Rule in the Principle of National Treatment, published by Edward Elgar.

The world of intellectual property (patents, trade marks, copyrights, et cetera) is becoming increasingly international. More and more frequently, disputes about intellectual property have an international character. This inevitably raises questions of private international law: which national court is competent to adjudicate an international dispute of this kind? And which national law should be applied to an international case of this kind? Since the 1990s, the first question in particular has attracted attention; in recent years, the focus has shifted to the second question: which national law is applicable? Opinions differ widely on this matter today. The controversy focuses on the question whether the Berne Convention and the Paris Convention, the two most important treaties on intellectual property, contain a rule that designates the applicable law. In other words: do these treaties contain a ‘conflict-of-law rule’ as it is called? This question, which concerns nearly all countries in the world, is nowadays considered to be ‘heftig umstritten’ (fiercely contested) and ‘très difficile’ (very difficult). And that is where we come across something strange: today it may be fiercely contested whether these treaties contain a conflict-of-law rule, but in the past, for the nineteenth-century authors of these treaties, it was perfectly self-evident that these treaties contain a conflict-of-law rule, namely in the ‘principle of national treatment’ as it is called. How is that possible? These are the fundamental questions at the heart of this book: does the principle of national treatment in the Berne Convention and the Paris Convention contain a conflict-of-law rule? And if so, why do we no longer understand this conflict-of-law rule today?

This book is an English translation of Sierd J. Schaafsma’s groundbreaking book, which appeared in Dutch in 2009 (now updated with the most significant case law and legislation).

Further information available here.

The author of this post is Michele Casi, Post-doc, DILHPS Università degli Studi di Milano, and researcher involved in the EFFORTS (Towards more EFfective enFORcemenT of claimS in civil and commercial matters within the EU) project.

The Final Conference of the EFFORTS Project (JUST-JCOO-AG-2019-881802) took place on 30 September 2022 at the Sala Napoleonica of the Università degli Studi di Milano. More than 160 participants attended the Conference, either online and in presence.

Francesca Villata, Coordinator of the Project, opened the conference by outlining the scope, the objectives, and the results of the EFFORTS Project.

The challenges that the EFFORTS Project has aimed at addressing include gaps and divergences in Member States implementing legislation and enforcement procedures, the lack of transparency in the overall system of cross-border enforcement, the lack of (mutual) trust, and the limited use of the EFFORTS Regulations. The objectives of the Project have been tackled by dialoguing with operators, sharing good practices, drafting analytical activities and testing the outcomes, with the help of the Academic Advisory Board, the Stakeholders Cross-Border Committee, the National Working Groups and a Professional Evaluator.

At its core, the Project has produced a wide variety of outputs that:

(i) identify the difficulties users encounter and how the practice is addressing them (seven Reports on national implementing rules, seven Reports on national case-law, seven National Exchange Seminars, one International Exchange Seminar, one Report on practices in comparative and cross-border perspective, and one Report on the digitalization of the enforcement procedures and of cross-border cooperation);

(ii) provide support and guidance (Bilingual Practice Guides for the application of the EFFORTS Regulations in the targeted Member States, complemented by Annexes on national enforcement procedures, for a total of 35 Guides and seven Annexes, seven Policy Recommendations for national legislators and one EU Policy Guidelines); and

(iii) spread awareness, knowledge and trust (see further the Project’s website, the Project LinkedIn and Facebook accounts, the Final Conference, the Final Study (soon available on the website) and the EFFORTS Network).

The presentations of the Final Conference were divided into three panels, respectively chaired by Ilaria Viarengo (Director of the Department of International, Legal, Historical and Political Studies of the Università degli Studi di Milano), Burkhard Hess (Director of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law), and Fausto Pocar, (Emeritus of International Law, Private International Law and European Law at the Università degli Studi di Milano).

During the conference, the speakers discussed a wide variety of topics relating to the cross-border enforcement of claims in civil and commercial matters within the EU, concerning the EFFORTS Regulations – Regulation (EU) No 1215/2012 (Brussels I bis), Regulation (EC) No 805/2004 on the European Enforcement Order (EEO), Regulation (EC) No 1896/2006 on the European Payment Order (EOP), Regulation (EC) 861/2007 on the European Small Claims Procedure (ESCP), and Regulation (EU) 655/2014 on the European Account Preservation Order (EAPO) – such as: the certification of judgments, the effectiveness of the regulations on cross-border enforcement and national implementing rules, the suspension of the enforcement proceedings under the Regulations, the digitalization of cross-border enforcement procedures, cross-border provisional measures and the European Account Preservation Order, policy options for the re-drafting of the EFFORTS Regulations, and many others.

The discussion benefited from the interaction between national legislators, judges, lawyers, academics, in-house counsels, notaries and enforcing agents, showing once again the EFFORTS Project’s practice-driven approach and the interest of various professionals. In fact, to give one example, during the final debate the case of a lawyer working in the field of commercial cross-border transactions was brought up. The case concerned the payment of invoices, and the lawyer would advise his client to proceed in obtaining an Italian decreto ingiuntivo di pagamento rather than using the EOP procedure. According to the discussion, the Italian order for payment would be more convenient considering that the procedure is more familiar to practitioners and could be later certified for enforcement under one of the other EFFORTS Regulations (under Article 53 Brussles I-bis or as an EEO).

This observation meets, at its core, one of the issues that have been discussed amongst the EFFORTS research groups, and has been reflected in the EFFORTS EU Policy Guidelines: i.e. the differentiation among the existing Regulations. In order to expand ‘the role of uniform European procedures in this area of the law‘, it has been observed, ‘domestic orders for payment procedures would need to be excluded from the scope of the BI bis (n.n. Brussels I bis) and EEO Regulations – a solution which would at the same time reduce the difficulties related to the existence of a wide variety of simplified procedures across the different Member States and encourage economic operators to turn themselves to the EPO and the ESCP‘ (page 28 of the Report). This has further confirmed the practice-driven approach that has shaped the EFFORTS Project’s objectives and results during its implementation.

The activities of the conference lasted the entire day and included several presentations as well as formal and informal discussions and Q&A from the participants, showing that the topics presented at the Conference have captured the attention and the interest of the public.

The contents extensively discussed at the Final Conference will be reflected in the upcoming and conclusive deliverables of the Project: the EU and national Policy Recommendations and the Final Study, soon to be published on the Project’s website.

This post was contributed by Jeremy Heymann, who is Professor of Law at Université Jean Moulin Lyon 3.

On 29 June 2022, the French Court of cassation ruled on the interplay between national exorbitant rules of jurisdiction and those contained in the recast Brussels I Regulation. As is well known, Article 6(2) of the Regulation provides that “any person domiciled in a Member State may, whatever his nationality, avail himself in that Member State of the rules of jurisdiction there in force, and in particular those of which the Member States are to notify the Commission pursuant to point (a) of Article 76(1), in the same way as nationals of that Member State”, against a defendant who is not domiciled in a Member State.

French Legal Background

In France, such exorbitant rules of jurisdiction are to be found in Articles 14 and 15 of the French civil Code. Article 14 provides especially that “an alien, even if not residing in France, may be cited before French courts for the performance of obligations contracted by him in France with a French person”. He also “may be brought before the courts of France for obligations contracted by him in a foreign country towards French persons”. Even if the provision seems to be, in its wording, limited to contracts, it has been interpreted by the French courts to cover all claims (with very few exceptions).

First Case – The Facts

In one of the two cases (no 21-10.106), the plaintiff was a Congolese who was employed in the Democratic Republic of Congo by a Congolese company, before he had to flee his country and seek to obtain refugee status in France, alleging that he had been pressured and threatened with death by his superiors in order to force him to take part in granting loans under illegal conditions. Once the refugee status obtained, the plaintiff brought an action in tort before the French courts against his former employer and its parent company.

On the merits of the case, on appeal, the Court of appeal of Paris declared that French courts lacked jurisdiction, on the grounds that the equality of treatment between nationals and refugees, provided for in Article 16 of the 1951 Refugee Convention, refers only to the rules of enjoyment of rights and not to the rules of jurisdiction. It therefore held that such a provision could not lead to the extension of the jurisdiction of a French court to the detriment of that of a foreign court.

The First Ruling

The French Court of Cassation rightfully quashed such a ruling, holding that pursuant to Article 6(2) of the recast Brussels I Regulation, a foreigner may avail himself of Article 14 of the French Civil code (i.e. a rule of jurisdiction in force in France and notified as such to the European Commission pursuant to point [a] of Article 76[1]), under the sole condition that he is domiciled in France and the defendant is domiciled outside a Member State of the European Union (para. 12 of the ruling). In so ruling, the Court of cassation criticizes the Parisian Court of appeal for not having ensured the application of Article 14 of the French civil Code in the light of the recast Regulation. According to the Court of cassation, it is indeed up to the courts of the Member States to ensure the legal protection of litigants resulting from the direct effect of European Union Law (para. 10 of the ruling). Therefore, and even if Article 14 of the French civil Code is only intended for French nationals, the legal protection enshrined in Article 6(2) of the recast Brussels I Regulation prevails and makes the application of Article 14 of the French civil Code dependent on the conditions that it sets out. In other words, only the domicile of the plaintiff was relevant in this case, not his nationality.

The ruling of the Court of cassation is more than welcome to remind French courts that even though the plaintiff is a foreigner and the defendant domiciled outside a Member State, the recast Regulation may be applicable and command the application of the said Article 14.

Second Case – The Facts

In the other case (no. 21-11.722), the plaintiff was also a Congolese who was employed in the Democratic Republic of Congo by a Congolese company, before he had to flee his country and seek to obtain refugee status in France, alleging that he had been pressured and threatened with death by his superior. Once the refugee status obtained, this plaintiff also brought an action in tort before the French courts against his former employer and its parent company.

Unlike in the previous case, the Court of Appeal of Paris found Article 14 of the French civil Code applicable in this case and thus ruled that French courts had jurisdiction. The grounds of such an application were nonetheless debatable, as the Court relied on the provisions of the 1951 Refugee Convention and held that Article 16(2) of this Convention should be interpreted as establishing equal treatment between a French national and a refugee with regard to Article 14 of the French civil Code.

The Second Ruling

To uphold the ruling, the French Court of Cassation had to proceed to a substitution of grounds, as the Court of Appeal of Paris did not base its decision on the provisions of the recast Brussels I Regulation. To do so, the Court of Cassation argued once again that the courts of the Member States must ensure the legal protection of litigants resulting from the direct effect of European Union Law (para. 5 of the ruling), before holding that it follows from the combination of Article 6 and 21 of the Recast Brussels I Regulation and Article 14 of the French civil Code that, where neither the domicile of the defendant, nor the place of performance of the work nor the place where the establishment that hired the employee is located is situated in the territory of a Member State, the applicable rules of jurisdiction are the ones that have been notified to the European Commission, among which is Article 14 of the civil Code. The foreigners domiciled in the forum State may therefore avail themselves of the latter provision in the same way as French nationals (para. 9). Hence, as the Court of appeal noted that the plaintiff was domiciled in France and the defendants outside the European Union, and that the former had been hired in the Democratic Republic of Congo where his professional activity took place, the Court of Cassation deduced that, irrespective of his refugee status, the plaintiff could invoke Article 14 of the French civil Code (para. 10).

General Assessment

Although the line of reasoning and deduction of the French Cour de cassation appear to be valid, they remain however questionable. One may indeed wonder whether Article 6 of the recast Brussels I Regulation should find application where Article 21(2) cannot. Even if it is true that Article 20(1), provides that “[i]n matters relating to individual contracts of employment, jurisdiction shall be determined by th[e] Section [dedicated to such contracts], without prejudice to Article 6 […]”, such a reservation was already provided for in the former Brussels I Regulation, when the rule of jurisdiction provided for in Article 21(2) did not exist. The line of reasoning followed by the Court of cassation would have therefore been perfectly consistent with the facts at issue. Under the current recast Brussels I Regulation, one should yet remind that Article 6, par. 1, provides that, in the case where “the defendant is not domiciled in a Member State, the jurisdiction of the courts of each Member State shall, subject to […] Article 21(2) […], be determined by the law of that Member State” (emphasis added). Thus, can national courts apply Article 6 of the recast Brussels I Regulation, and French courts apply in particular Article 14 of the French civil Code by way of consequence, when the criteria provided for in Article 21(2) are not met? The Court of Cassation has considered that the answer must be affirmative.

One could nonetheless argue that there may have been room on this matter for a request for a preliminary ruling to the European Court of Justice, in particular with a view to ascertaining the exact scope of Article 21(2) of the recast Regulation, as well as, more generally, the spatial scope of that instrument and the empire claimed by its own rules of jurisdiction.

On Friday, 2 December 2022, at 4 pm, EAPIL will hold an online seminar on the Rome II Regulation.

The seminar will shed light on the Study that was prepared in 2021 by the British Institute of International and Comparative Law (BIICL) in consortium with Civic Consulting to support
the preparation of the report on the application of the Rome II
Regulation.

The speakers will be: Eva Lein (BIICL / University of Lausanne), Constanze Bonzé (BIICL), Xandra Kramer (University of Rotterdam), Martin Ebers (University of Tartu), Marie Louise Kinsler (2 Temple Gardens, London).

More information (including a detailed program and registration
information) will be made public on this blog in November.

On 15 September 2022, the CJEU ruled in Uniqa Versicherungen AG v. VU (Case C‑18/21) that national COVID legislation postponing time limits may affect uniform time limits provided by the European Payment Order Regulation (EOP Regulation).

Background

The case was a request for preliminary ruling from the Austrian Oberster Gerichtshof (Supreme Court). The request concerned a European Order for Payment (EOP) that was issued at the request of an Austrian insurance company, Uniqa Versicherungen AG, against a natural person, VU, resident in Germany. The EOP was served on VU on 4 April 2020, and the statement of opposition was lodged with the Bezirksgericht für Handelssachen Wien (Vienna District Court for Commercial Matters) by a letter posted on 18 May 2020. This meant that the opposition was made after the period of 30 days set by the European Payment Order Regulation (EOP Regulation) lapsed.

According to Article 16(2) EOP Regulation, a statement of opposition has to be lodged by the defendant contesting the claim within 30 days from the moment the party was notified of the EOP being issued against it. At first glance, considering the dates of the service of the EOP on VU and of the letter containing the opposition statement, the opposition was lodged too late. However, during the first period of the COVID-19 pandemic Austria adopted a special law that interrupted time limits in civil cases because of that limitation of activities of the courts and quarantine measures.

The Austrian Law on COVID-19 Paragraph 1(1) provided that all national procedural time limits for civil cases were postponed by five weeks between 22 March and 30 April 2020. The measure applied to all procedural periods that had not yet expired at its entry into force. This was the case for the concerned judgment. In consideration of this legislation, the decision of the first instance court was appealed by VU. The Appeal Court (Handelsgericht Wien) set aside the EOP on the basis of Paragraph 1(1) Austrian Law on COVID-19. Uniqa appealed the decision with the Oberster Gerichtshof (Supreme Court) on a point of law seeking the EOP to be restored.

The Supreme Court stayed national proceedings and made a request to the CJEU seeking to find out whether the national legislation – Austrian Law on COVID-19 – was applicable to the EOP. The court asked if Article 20 and 26 EOP Regulation precluded an interruption of the 30-day time limit for lodging a statement of opposition to a EOP, as provided for in Article 16(2) of that regulation, by Paragraph 1(1) Austrian Law on COVID-19.

The EOP Opposition and Review Mechanisms

The EOP being a single-sided not adversarial procedure until the order is served on the defendant provides for some mechanisms for the debtor to subsequently challenge the EOP and, hence, the initial claim submitted by the creditor. These mechanisms are the opposition (Article 16 EOP Regulation) and the review (Article 20 EOP Regulation).

The opposition is an essential mechanism for the defendant to terminate the EOP procedure and for the right to a fair trial (Uniqa, paragraph 25), but it has to be used within 30 days from the moment the EOP was served on the defendant. This can be done via a standard form (Form F EOP Regulation). One of the results of its lodgings is preventing the EOP from becoming enforceable. However, if an opposition is not lodged in time, the defendant will only be entitled to a review within the situations exhaustively listed in Article 20 EOP Regulation.

Thus, in the framework of the EOP procedure, the opposition is the ‘standard mechanism’ to contest the order (see also paragraph 27 of the Opinion of the Advocate General), while the review is intended to be an exceptional means to supplement the opposition as the way to challenge the EOP (see Recital 25 EOP Regulation and Uniqa paragraph 25).

The CJEU was asked to interpret Article 20 EOP Regulation on several occasions, and in particular paragraphs (1)(b) and (2), and it did so strictly (see Thomas Cook, Case C-245/14; eco cosmetics, Joint Cases C‑119/13 and C‑120/13; Novotech-Zala, Order C-324/12). The Court never agreed to an application by analogy of Article 20 EOP Regulation in order to safeguard the right of defense, and this path was followed also in Uniqa.

The Interplay Between European and National Procedural Rules

In the EOP procedure, the interplay between the provisions of the Regulation and national procedural rules comes up at different levels in the proceedings. As it happened in the Uniqa case, this can create uncertainties at times. The challenge comes from the fact the EOP Regulation establishes the main structure of the procedure and the minimum standards to be observed to guarantee a fair trial for the parties (see Flight Refund, case C-94/14 and Uniqa, paragraph 28), but national procedural rules are called to fill in the gaps where necessary.

For a number of procedural aspects, the Regulation refers expressly to national legislation for supplementing the European procedure rules (e.g. Articles 13 and 14 on service, Article 18(2) and Article 21(1) on enforceability requirements and procedures, Article 25 on court fees). Together with this, for matters that are not expressly dealt with by the Regulation, Article 26 EOP Regulation relies on the applicable national procedural law. For this second situation, based on previous CJEU case-law, such examples include national rules determining the national courts competent to handle the proceedings following an opposition (see Flight Refund), and the mechanism available to raise irregularities of service (see eco cosmetics). Another example is the calculation of the procedural deadlines of the time limits within the EOP procedure. As pointed out in paragraph 38 of the Opinion of the Advocate General Collins, the calculation of the time limit for the lodging of a statement of opposition can differ across the Member States. According to Regulation (EEC, Euratom) No 1182/71 determining the rules applicable to periods, in normal circumstances that have nothing to do with emergencies such as COVID-19 pandemic, procedural time limits may lapse at different moments across Member States. This is because the public holidays are not harmonized across the EU, and public holidays can lead to the prorogation of procedural deadlines until the first useful working day following the holiday. This applies when procedural deadline would fall during a free day. If the 30-day deadline for submission of the opposition mechanism established by Article 16(2) EOP Regulation would fall during a public holiday, the deadline would be extended until the next working day.

The interplay between European and national procedural rules for a number of aspects means that the application of national procedural rules will allow for diverse solutions within the framework of a uniform European procedure. And, these differences are not always immediately visible to the users.

Decision of the CJEU

The Court ruled that Articles 16, 20 and 26 EOP Regulation do not preclude the application of national legislation adopted during COVID‑19 pandemic (Austrian Law on COVID-19) which interrupted the procedural periods in civil matters including the 30-day time limit laid down by Article 16(2) for the defendant to lodge a statement of opposition to a EOP.

Assessment

The uncertainty in the case was related to whether reliance should be made on Article 20(1)(b) or Article 26 EOP Regulation to deal with a statement of opposition filed after the lapse of the 30-day period established by the Regulation.

The CJEU had two options:

• reliance on Article 26 EOP Regulation would involve the application of the national legislation adopted as a consequence of the COVID-19 pandemic to interrupt the procedural periods in civil matters for a determined period of time; consequently, the opposition time frame would have still been applicable, and the defendant would be able to make use of the general mechanism to contest the order. This approach follows the line of interpretation established by the CJEU in earlier judgments (i.e. eco cosmetic, Flight Refund), and maintains an interplay between European and national procedural rules that may result in diverse solutions within the framework of a uniform European procedure. Or,
• the alternative of Article 20(1)(b) EOP Regulation concerning ‘exceptional circumstances’ that would lead to a uniform rule being applicable.

The Court followed on its established practice of relying on Article 26 rather than Article 20 EOP Regulation, but with a different approach than in previous cases.

The judgment reaffirmed the strict interpretation of the ‘extraordinary circumstances’. Additionally, it developed the previous reasoning in relation to the concept of ‘extraordinary circumstances’ by explicating that such circumstances have to ‘correspond to circumstances specific to the individual situation of the defendant concerned’ such as if VU would have been hospitalized because of COVID-19 and that would have prevented him from exercising his right to opposition (paragraph 32). By giving this example, different to previous case law, the Court in Uniqa positively qualifies what would be an ‘extraordinary circumstance’ for the purpose of Article 20. Until Uniqa the CJEU only identified situations which did not qualify as an ‘extraordinary circumstance’ (see Thomas Cook, eco cosmetics, Novotech-Zala). The factual situation in the case was created by a systemic failure of the justice system in Austria due to the pandemic, thus, based on the logic of the Court, the framework provided by Article 20 would not be applicable as it did not concern an ‘individual situation of the defendant’.

Although the application of an uniform rule provided by Article 20 EOP Regulation may appear a desirable approach, in this particular case it would not have been the just solution to adopt. Rightfully so, the court did not prioritise it as it would have led to a discriminatory outcome between parties relying on national procedures and benefiting from a suspension of the procedural time and parties choosing to use a European procedure who would have been sanctioned by the limitation of the activities of the courts during a period of five weeks. The exclusion of the EOP from the effects of Paragraph 1(1) Austrian Law on COVID-19, and the limitation of the available mechanisms for VU to contest the EOP would mean that he would only have the very limited option of the review to deal with the consequences of the order. Additionally, the situations covered by Article 20 EOP Regulation are strictly interpreted (see section on The EOP opposition and review mechanisms). All in all, such interpretation would have resulted in a limitation of VU’s right to access to justice.

Furthermore, Paragraph 1(1) Austrian Law on COVID-19 did not make any distinction between national and cross-border procedures in civil cases (principle of equivalence), nor did compliance with the rule undermined in any way the balance that the EOP Regulation creates between the rights of both parties (principle of effectiveness) during the period of the pandemic addressed by the Austrian law. The guarantees put in place by the EOP Regulation for the defendant remained available, as well as the possibility the Regulation created for the applicant seeking to obtain an order for an uncontested claim. The period of suspension of procedural timeframe was clearly indicated, this was limited to a period of the national emergency, and the difference in lapse of procedural time was not necessarily an unexpected outcome in the EOP procedure given the logic of the Regulation (EEC, Euratom) No 1182/71 determining the rules applicable to periods, although in this case it involved a longer than usual period of time that was related to the COVID-19 pandemic.

According to Article 7 point 1 of the Brussels I bis Regulation, proceedings in matters relating to a contract may be brought in the courts for the place of performance of the obligation in question.

For the rule to be applied, it needs to be a matter relating to a contract. The issue of whether there was a contractual relation or not arose before Danish courts in a case between a Swedish and a Danish company.

In a judgment of 27 September 2022, the Danish Supreme Court held that the existence of a contract must be made “sufficiently probable”.

The background to the case was that the two companies, both in the real estate sector, had had informal cooperation with each other. In an exchange of e-mails representatives for the companies discussed future businesses. The Danish company meant that the exchange of e-mails constituted contractual obligations for the Swedish company under the Brussels I bis Regulation. As arguments for this understanding, the Danish company meant that there was an agreement on payment for the potential broking of a deal. On the other hand, the Swedish company meant that the parties traditionally had had a “friendly relation”, in which they had helped each other without the payment of any fees.

The Danish Supreme Court held that according to established Danish case law, the legal burden of proof in those matters is that the existence of a contract must be “sufficiently probable” (“tilstrækkeligt sandsynliggjort”). The court held that this burden of proof was met as the e-mails indicated that the Swedish company was willing to pay a broker’s fee if it could establish contact with a buyer of its Swedish property portfolio. Hence, the court concluded that the relation between the companies had a contractual ground and that it was a service agreement in the meaning of the simplification rule in article 7 point 1, lit. (b). As the place of performance for such contracts is in the country where the services are provided, Danish courts should have jurisdiction according to the Supreme Court.

It is notable that the Danish Supreme Court referred to Danish case law instead for CJEU case law for the issue of whether a tacit contractual relationship existed. Older CJEU case law indicated that the issue was to be done according to national law (see e.g. Effer SpA v. Kantner, C-38/81 para 7). However, in its more modern case law, the CJEU has given more detailed instructions for how a tacit contractual relation should be proven. In the CJEU judgment Granarolo, C-196/15, the CJEU held that

[d]emonstration of the existence of a tacit contractual relationship of that kind must be based on a body of consistent evidence, which may include in particular the existence of a long-standing business relationship, the good faith between the parties, the regularity of the transactions and their development over time expressed in terms of quantity and value, any agreements as to prices charged and/or discounts granted, and the correspondence exchanged.

Even if the Danish burden of proof rule seems to be compatible with the Granarolo test, it would have been preferable if the Danish Supreme Court expressly recognized the modern developments of the CJEU by referring to the CJEU case law and applying the criteria set out there.

The second issue of 2022 of the Journal of Private International Law is out. It contains the following articles:

Thalia Kruger, Laura Carpaneto, Francesca Maoli, Sara Lembrechts, Tine Van Hof, Giovanni Sciaccaluga, Current-day international child abduction: does Brussels IIb live up to the challenges?

Regulation 2019/1111 tries to tackle the new challenges arising from societal changes and legal developments in international child abduction. The result is a sophisticated set of rules centred on the child and aimed at enhancing their protection. The Regulation provides for the hearing of the child and for speedy and efficient proceedings. In it the EU acknowledges its role in the protection of human and children’s rights and sets goals towards de-escalating family conflicts. The new EU child abduction regime is at the same time more flexible than its predecessor allowing consideration of the circumstances characterising each single case in the different stages of the child abduction procedure.

Omar Vanin, Assisted suicide from the standpoint of EU private international law

The article discusses the conflict-of-laws issues raised by such compensatory claims as may be brought against health professionals and medical facilities involved in end-of-life procedures. The issues are addressed from the standpoint of EU private international law. The paper highlights the lack of international legal instruments on assisted-suicide procedures. It is argued that the European Convention on Human Rights requires that States provide a clear legal framework concerning those procedures. The author contends that the said obligation has an impact on the interpretation of the relevant conflict-of-laws provisions of the EU.

Shahar Avraham-Giller, The court’s discretionary power to enforce valid jurisdiction clauses: time for a change?

The paper challenges the well-rooted principle in the Anglo-American legal tradition that courts have discretion whether they should enforce a valid jurisdiction clause. The paper highlights the ambiguity and uncertainty that accompany this discretionary power, which raises a serious analytical problem. The paper then analyses two factors that shaped this discretionary power – jurisdictional theories and the general principle of party autonomy in contracts. Based on the analysis, the paper argues that the time has come to end the courts’ discretionary power with respect to the limited context of the enforcement of valid jurisdiction clauses. The proposal relies on a number of foundations: contractual considerations that relate to autonomy and efficiency; jurisdictional and procedural considerations, including the consent of a party to the jurisdiction of the court by general appearance; the increasing power of parties to re-order procedure; the more appropriate expression of the forum’s public interests and institutional considerations through overriding mandatory provisions; and finally the legal position regarding arbitration agreements and the willingness of a common law legal system such as the United Kingdom to accede to the Hague Convention on Choice of Court Agreements.

Thu Thuy Nguyen, Transnational corporations and environmental pollution in Vietnam – realising the potential of private international law in environmental protection

Many transnational corporations have been operating in Vietnam, contributing to economic and social development in this country. However, these actors have caused a number of high-profile environmental incidents in Vietnam through the activities of their local subsidiaries, injuring the local community and destroying the natural ecosystem. This paper discloses the causes of corporate environmental irresponsibility in Vietnam. Additionally, this paper argues that Vietnam’s private international law fails to combat pollution in this country. To promote environmental sustainability, Vietnam should improve ex-ante regulations to prevent and tackle ecological degradation effectively. Additionally, this paper suggests that Vietnam should remedy its national private international law rules to facilitate transnational liability litigation as an ex-post measure to address the harmful conducts against the natural ecosystem of international business.

Daria Levina, Jurisdiction at the place of performance of a contract revisited: a case for the theory of characteristic performance in EU civil procedure

The article revisits jurisdiction in the courts for the place of performance of a contract under Article 7(1) of the Brussels Ia Regulation. It proposes a new framework for understanding jurisdiction in contractual matters by offering a comparative and historical analysis of both the place of performance as a ground for jurisdiction and its conceptual counterpart, the place of performance as a connecting factor in conflict of laws. The analysis reveals that jurisdiction in the courts for the place of performance is largely a repetition of the same problematic patterns previously associated with the place of performance as a connecting factor. The article asserts that the persisting problems with Article 7(1) of the Brussels Ia Regulation are due to the inadequacy of the place of performance as a ground for jurisdiction and advocates for the transition to the theory of characteristic performance in EU civil procedure.

Tobias Bachmeier, Martin Freytag, Discretional elements in the Brussels Ia Regulation

Following continental European traditions, the Brussels Ia Regulation forms a rigid regime of mandatory heads of jurisdiction, generally not providing jurisdictional discretion. Nonetheless, to some limited extent, the Brussels regime includes discretional elements, in particular when it comes to lis pendens (see Articles 30, 33 and 34 of Brussels Ia). Reconsidering the strong scepticism towards forum non conveniens stipulated by the CJEU in its Owusu case, the fundamental question arises whether a substantial form of discretion concerning jurisdictional competence might be (in)compatible with the core principles of the Brussels regime.

Piotr Mostowik, Edyta Figura-Góralczyk, Ordre public and non-enforcement of judgments in intra-EU civil matters: remarks on some recent Polish-German cases

The article discusses the enforcement of foreign judgments within the European Union and the public policy (ordre public) exception. It is mainly focused on some recent judgments of Polish and German courts. On 22nd December 2016 and 23rd of March 2021 rulings in cases of infringement of personality rights were issued by the Court of Appeal in Cracow (ordering an apology and correction). The enforcement of the former ruling was dismissed by the German Supreme Court (Bundesgerichtshof, BGH) (IX ZB 10/18) on 19th July 2018. The non-enforcement was justified by invoking German ordre public and “freedom of opinion” as a constitutional right stipulated in Article 5 of the German Constitution (Grundgesetz). A reference to the CJEU ruling of 17 June 2021 is also presented.
After presenting the issue of ordre public in the context of enforcement of foreign judgments within the EU, the authors evaluate as questionable the argumentation of the BGH in its 2018 judgment. The Polish ruling ordering the defendant to correct and apologise for the false statement was included by the BGH in the category of “opinion” (Meinung) protected by the German Constitution. Enforcement of the judgment of the Polish court in Germany was held to be contrary to this German constitutional right and the enforceability of the Polish judgment was denied as being manifestly contrary to German public policy.
The authors support the functioning of the ordre public clause in intra-EU relations. It is justified inter alia by the large differences in EU legal systems and future possible changes. However, the common standards of the ECHR should be particularly taken into consideration when applying the public policy clause, because they co-shape the EU legal systems.