EAPIL blog

The European Association of Private International Law learnt with great sadness the passing of Peter Mankowski. The editors of the EAPIL Blog are most grateful to Ulrich Magnus for contributing the in memoriam published earlier today.

While none of us knew Peter Mankowski as well as Ulrich Magnus, some of the Editors of this blog were on personal terms with him, while others were involved in projects he led and had planned. Peter Mankowski was a great scholar. Not only did he write a staggering amount of publications, but he was also an avid reader of everything published on private international law. in addition, he provided very useful feedback and encouraging comments to other authors.

The Editors of the Blog greatly appreciated his willingness to participate in the online symposia that they organised, often on a (very) short notice, on important decisions of the CJEU with scholars from other European jurisdictions. Peter was always enthusiastic about these online symposia.

One of the last in which he participated was about the CJEU decision in Hrvatske Šume at the start of 2022. He kicked off our online symposium on the case with a lucid analysis, perhaps one of the last works of his busy life.

Reading it again lets us remember why we loved Peter: His text is full of ideas, provides ample references, and testifies of his broad view of international law.

In retrospect, it was only logical that Peter Mankowski would be interested in sharing and debating with other European scholars.

He and Ulrich Magnus were instrumental in the development of a transeuropean dialogue on private international law. We are of course referring to the groundbreaking series of European commentaries on private international law. Magnus and Mankowski were the first to gather teams of European scholars to offer systematic commentaries of the most important European regulations on private international law.

Establishing a truly pan-European forum to discuss issues of private international law is the main goal of the European Association of Private International Law. Peter Mankowski (and Ulrich Magnus) were precursors in this respect. They blazed the trail on which we walk.

This memorial was contributed by Prof. Dr. Ulrich Magnus.

On 10 February 2022 Peter Mankowski passed away, entirely unexpected at the age of only 55. The European community of scholars of Private Law and in particular Private International Law lost one of its most brilliant and productive minds. He leaves behind the almost unbelievable number of about 1500 publications, not few of them counting 1000 and more pages. Even his annotations on court decisions were frequently longer and more intensely documented than many ordinary articles. And his footnotes! He truly used the entire legal materials (legislation, decisions, scholarly works and articles) accessible in Europe and he did not do it for ‘ornamenting’ his considerations but really delved into the sources and brought to the surface what was helpful for the solution of the concrete legal problem.

To this end, his education at the Johanneum, the renowned Hamburg Gelehrtenschule, laid the foundation with Greek and Latin. His study in at the law faculty in Hamburg, the two states exams there, a longer stay in London added to his abilities. Shortly after his habilitation at the University of Osnabrück with Prof. Dr. Christian von Bar he got his first chair: In 2001 he became professor for civil law, comparative law and private international and procedural law at the University of Hamburg. All he needed to become an outstanding scholar he brought with him: besides an excellent knowledge of law and procedure and the language skills the bright mind, the curiosity for new and complicated problems, the creativity and ability to solve them, his unbelievable spirit and endurance to work hard. And besides that, he was a wonderful colleague and friend, with wit and a very good sense of humour but also with great empathy if others faced serious problems. He himself had to undergo a heart-transplantation in 2012 and in 2014 a transplantation of a kidney which his mother sacrificed. I never heard him ever complain about his health problems. Not only in this respect he was incredibly brave and fearless. Peter leaves behind his parents. So many will miss him so much.

Rhona Schuz (Bar-Ilan University) has published an article Comparative Law and the Work of The Hague Conference on Private International Law in relation to Family Law in Ius Comparatum 2022. Ius Comparatum is an open access research series published under the auspices of the International Academy of Comparative Law (IACL).

The paper is a written version of the inaugural lecture given by Rhona Schuz during the first day of the Online Week on Comparative Family Law Methodology organized by IACL and Bucerius Law School back in October 2021. The lecture may be watched here.

The abstract reads as follows:

This lecture highlights the importance of comparative law in the work of the Hague Conference on Private International Law in the field of family law, both in the process of drafting Conventions and in monitoring the implementation of Conventions after they have come into force. Examples are given of the ways in which different types of comparative law studies have been used to inform the work of preparing Conventions and the various comparative law tools which have been adopted in post-Convention efforts to promote uniform implementation. The significance of the post-Convention comparative work is underlined by a brief discussion of the importance of uniform application of Conventions and the real risks of lack of uniformity. Finally, attention is drawn to a few methodological issues which arise in connection with the comparative law work discussed.

The first issue of the Journal du droit international for 2022 has just been released. It contains three articles and several case notes relating to private international law issues.

In the first article, Gian Paolo Romano (University of Geneva) revisits the interplay between “private” international law and “public” international law (Droit international dit « privé » et droit international dit « public » : éléments d’une théorie unitaire et humanisée du droit international).

The English abstract reads :

The doctrine of private international law and the doctrine of public international law rely on two supposedly self-standing theories whose independence is justified by the difference in their subject-matter : public international law mainly deals with relations between States and the international organizations they form, while private international law deals with relations between private individuals and corporations. However, each of these theories comes up against multiple paradoxes and unresolved problems that their specialists candidly acknowledge. The author argues that a unified and human-centered theory of international law promises to overcome such difficulties, to give a more accurate account of the contemporary law of international relations and to facilitate its further progress.

In a second article, Alejandra Blanquet (Catholic Institute of Paris) focuses on the issue of international child abductions in Japan under the 1980 Hague Convention (Le risque juridique au sein de la Convention de La Haye de 1980 : le cas des enlèvements internationaux d’enfants au Japon – À propos de l’arrêt de la première chambre civile de la Cour de cassation du 28 janvier 2021).

The English abstract reads:

When a French judge confirms that a wrongful removal or a retention of a child have taken place, he must apply The Hague Convention of 1980 and order the child’s return to the place of his habitual residence. The only exception accepted to this solution is the fulfillment of one of the situations described on the text, especially the one exposed in Article 13. Exceptional in nature, these situations also received a restrictive interpretation preventing French jurisdictions from taking legal risk into consideration. This concept may be defined, in our opinion, as the danger derived from the content of foreign law, specifically the one from the country of habitual residence of the child, and which application could lead to negative consequences for the child in the event of a return. By excluding its consideration, the Court of Cassation confirms its preference for a restrictive interpretation of Article 13.b while she closes the door to a possible adaptation of the Convention’s solutions that may be useful to face the particular problem of Japanese kidnappings.

In the third article, Élodie Kleider (PhD, Strasbourg & Bâle Universities) discusses the scope and interpretation of the Lugano Convention based on Norwegian and Swiss case law (Convention de Lugano, États tiers et CJUE : entre influence et ignorance, exemples venus de Suisse et de Norvège).

The English abstract reads:

Only a few non-Member States of the European Union benefit from the Lugano Convention of October 30th, 2007. The United Kingdom hoped to join them after the Brexit. Such a position is advantageous : thanks to the convention, the third country enjoys the benefits of the European judicial area, while keeping great flexibility. Jurisdictions of those countries tend to comply with the judgments of the ECJ, but sometimes clearly deviate. Some Swiss and Norwegian decisions will prove it.

The provisions of the Brussels I bis Regulation on insurance matters (Articles 10-16) are complex and often misunderstood. Now the CJEU has clarified their scope in an important judgment.

A British domiciliary, BT, had an accident on a Spanish property. He brought a suit in Britain against not only the Spanish insurer of the property (Seguros Catalana Occidente), but also against the insured landlord (BE). BE, being domiciled in the Republic of Ireland, objected to the jurisdiction of the British courts.

Incidentally, this was one of the last preliminary references submitted by a British court before Brexit. The County Court at Birkenhead sought clarification on the meaning of Art 13(3) Brussels Ibis, which gives parallel jurisdiction over the injured party and the insured where the applicable law allows the latter to be joined as a party (which apparently English law does).

Disputes over liability in insurance matters usually involve three parties: the victim (the “injured party” in the terminology of Section 3 of the Brussels I bis Regulation), the tortfeasor (the “insured person” in the terminology of the same section), and the tortfeasor’s insurer. Hence, the issue in the present case was whether Article 13(3) Brussels I bis allows the injured party to sue the insured party and the insurer in the same court under the special jurisdiction rules of Section 3.

The CJEU’s answer is negative. It ruled that the insured person could not be joined to the claim brought by the injured party against the insurer in the court conferred special jurisdiction in a matter relating to insurance. That meant that the County Court at Birkenhead did not have jurisdiction over BT’s claim against BE, but only over BT’s claim against Seguros Catalana Occidente.

This scission of jurisdiction between the dispute against the insured party and the insurer may seem surprising at first, as it appears inefficient and at odds with the principle of the sound administration of justice. Yet the decision of the CJEU is to be applauded.

As the CJEU correctly points out, Section 3 of the Brussels I bis Regulation only deals with “Jurisdiction in matters relating to insurance”, as indicated by its heading. The action of BT against EB is not an insurance suit, but rather a typical claim in contract or tort, which is governed by the special jurisdiction rules in Section 2 of the Regulation. This approach of the CJEU draws upon classic arguments arising from the Regulation’s text and structure.

Second, the Court also makes a teleological or purposive argument by stressing that the rules of Section 3 seek to correct a certain imbalance in power between either the injured and/or the insured as the weaker party, and the insurer as the supposedly stronger party. Such imbalance does not exist where neither party to the action is an insurer, like in the case of BT’s claim against BE.

Finally, and perhaps most importantly, the CJEU had recourse to the legislative history: According to the Jenard Report (p. 32), Article 13(3) of the Brussels I bis Regulation was enacted to give the insurer the possibility of joining the insured as a third party to proceedings between the insurer and the injured person. It was not intended to give the injured person the right to join the insured party to a suit against the insurer. The latter will usually be brought in the home jurisdiction of the injured person, which is allowed under Article 13(2) in conjunction with Article 11(1)(b) of Brussels I bis (see CJEU Case C-463/06 FBTO Schadeverzekeringen NV v. Jack Odenbreit). The CJEU is correct to stress that allowing the injured person to join the claim against the insured person would open the doors to all sorts of manipulation. For instance, the party injured by a tort could bring an action against the insurer and join the tortfeasor to the dispute instead of using the rules on general and on special jurisdiction (Articles 4, 7(2) of Brussels I bis).

In sum, injured persons cannot join insured persons to direct claims they bring against the insured person’s insurer. They have to bring the two actions separately, and possibly in different courts. BT would thus have to sue EB either in Ireland, EB’s country of domicile (Article 4(1) of the Brussels I bis Regulation), or in Spain as the place where the alleged harm occurred (Article 7(2)). This seems correct as EB is not an insurer and should thus not be subject to the special jurisdiction rules for matters relating to insurance.

— Many thanks to Amy Held, Felix Krysa and Verena Wodniansky-Wildenfeld for their comments on the draft post.

Giesela Rühl (Humboldt University of Berlin) has posted on SSRN a preview of her chapter on ‘Cross-Border Protection of Human Rights: The 2021 German Supply Chain Due Diligence Act’. The paper is forthcoming in 2022 in a German edited volume in honour of Jonathan Fitchen, who passed away last year (see here).

The abstract reads as follows:

In the summer of 2021, after long and heated debates, the German legislature has adopted the Act on Corporate Due Diligence Obligations for the Prevention of Human Rights Violations in Global Supply Chains, also known as the Supply Chain Due Diligence Act (Lieferkettensorg-faltspflichtengesetz – LkSG). Following the footsteps of other European countries, notably France, the new law establishes mandatory human rights due diligence obligations and, hence, requires German companies – for the first time – to protect human rights in their supply chains. The Act has, therefore, rightly been described as a “milestone”.

However, in addition to praise the new law has also attracted a lot of criticism and not only by opponents of mandatory human rights due diligence obligations, but also by supporters: While they welcome the establishment of a legally binding framework to better protect human rights in global supply chains, they argue that the reach of the Act is too limited. In particular, they be-moan that the Act relies on public enforcement mechanisms only and refrains from imposing any civil liability on companies for violations of the newly established due diligence obligations.

The following chapter takes this criticism – and the adoption of the German Supply Chain Act more broadly – as an occasion to take a closer look at the newly created obligations to better protect human rights in global supply chains. In particular, it sheds light on the effects of the Act under private law and discusses whether private international law may (or may not) help to effectuate the new provisions in a cross-border context.

On 5 April 2021, the Greek Supreme Court issued a judgment relating to a dispute between two German companies. The case revolved around the interpretation of Article 14 of the Service Regulation, according to which “Each Member State shall be free to effect service of judicial documents directly by postal services on persons residing in another Member State by registered letter with acknowledgement of receipt or equivalent”. The document introducing the proceedings had been served by mail by the lawyer of the appellant. The Supreme Court ruled that a certificate of the Greek post authority is an equivalent document for the purposes of Article 14. The Court referred to the judgment of the CJEU in Andrew Marcus Henderson v Novo Banco SA. A closer look at the facts reveals however some flaws.

It is not common for litigation to occur in Greece between parties that are all based outside Greece. The following circumstances explain why this happened. The appellant was originally the defendant in proceedings  brought by a Greek company in Thessaloniki. In the course of the proceedings, the defendant – a German company – filed an action on a warranty against another German company in accordance Article 6(2) of the Brussels I Regulation (now Article 8(2) of the Brussels I bis Regulation). The latter company challenged the jurisdiction of the seised court on the ground that it had entered into a choice of court agreement with the Greek whereby jurisdiction had been conferred on the courts of Cologne. The court upheld the choice of court and dismissed the claim for lack of jurisdiction (Court of First instance Thessaloniki 2063/2010, published in: Armenopoulos 2014, pp. 785 et seq).

The case was later abandoned by the Greek company, not by the German company. An appeal on a point of law (which in Greece is known as αναίρεση, i.e., cassation) was then lodged before the Supreme Court. The appellee did not appear in the hearing.

Before entering into the examination of the grounds of cassation, the court chose to verify the propriety of notification to Germany. The court referred for this to the judgment of the CJEU in Henderson, stating the following:

The service of a document instituting proceedings by post is valid, even if the acknowledgment of receipt of the registered letter was replaced by another document, however, upon the condition that such document provides equivalent guarantees as regards information provided and evidence.

On the facts, the Supreme Court ruled that:

By virtue of the receipt of the registered letter, dated from 15-07-2019, issued by the post office (in Thessaloniki), the petition, dated from 22-11-2019, to trace the acknowledgment of receipt, and the reply of the Hellenic Post, dated from 17-12-2019, which certifies that the registered letter was delivered to the recipient on the 19 July 2019, and to which a copy of the recipient’s signature is attached, it is evidenced that a true copy of the appeal, duly translated in the German language, and to which a summons is attached, has been duly and timely served by post to the appellee.

In Henderson, the CJEU was confronted with almost the same facts; the sole difference concerned the nature of the recipient, which in the case at hand was a legal entity, not a natural person. The CJEUD was called on to interpret Article 14 of the Service Regulation, and focused on three aspects: the equivalence of the document produced; the person receiving the document, other than the recipient; the gravity of the standard form set out in Annex II of the Service Regulation.

I will attempt to juxtapose the interpretation given by the CJEU to the findings of the Supreme Court.

The Supreme Court ruled that service was good, based mainly on the confirmation letter issued by the Hellenic Post. Indeed, the latter gave clear information with respect to the document served, and the place and time it was served. However, no reference is made to the person receiving the document.

The CJEU ruled in this respect the following:

… a registered letter allows tracing of the various stages of its route to the addressee. As regards the acknowledgment of receipt, which is completed when that addressee, or, where appropriate, his representative, receives the letter, it indicates the date of delivery, the place of the delivery and the qualities and signature of the person who received that letter … (para 76).

It added:

In those circumstances, if a third party can validly accept a judicial document in the name and on behalf of the addressee, that possibility must nevertheless be reserved for clearly defined situations, to ensure that the rights of the defence of that addressee are observed as fully as possible (para 93).

Hence, an equivalent document lacking any reference to the capacity under which a person received the document on behalf of the party, is no good service. Even more, when the defendant is a legal entity, a sheer reference that the document was served to the recipient, is again no good service: it is impossible to serve directly to the company. The equivalent document must have been received by a person, whose name is stated in the document, acting as an authorized representative.

The Supreme Court ruled that service was good, without confirming that the standard form under Annex II was handed over to the recipient, or included in the file. It did mention though, that the appeal was translated in German.

The CJEU ruled in this respect the following:

As regards the scope which must be given to that standard form, the Court has already held that Regulation No 1393/2007 does not contain any exceptions to its use (para 55).

It went on to say:

From that consideration and the aim pursued by the standard form set out in Annex II to Regulation No 1393/2007…, the Court has inferred that the receiving agency is required, in all circumstances and without it having a margin of discretion in that regard, to inform the addressee of a document of his right to refuse to accept that document, by using systematically for that purpose that standard form (para 56).

It concluded:

Consequently, the lack of information resulting from that omission can only be validly remedied by the delivery, as soon as possible and in accordance with the provisions of Regulation No 1393/2007, of the standard form set out in Annex II thereto (para 65).

Hence, the non-production of the standard form by the appellant should have led to a stay of proceedings, until the Receiving Agency remedies the omission. This was not taken into account by the Supreme Court, which presumably considered that the attached translation makes the standard form redundant.

The question has popped up more than 15 years ago, again in the course of Greek proceedings involving litigants domiciled in Germany. According to the prevailing view in Germany, postal service may only be effected by a Transmitting Authority declared officially by the Member State in question. Given that Greece has declared the courts as the sole Transmitting Authorities, postal service by a private person, most of the times the lawyer representing the claimant, is deemed to be improper. In addition, by allowing this kind of service, Article 15 of the Service Regulation would be circumvented, and direct service would be introduced to Germany through the backdoor (Germany opposed to this form of service).

The question led to contradicting rulings in Trier and Cologne courts. Burkhard Hess supported a more liberal view, by allowing postal service made by private persons. The issue was finally solved by pertinent legislation. However, the new wording in Article 18 of the Service Recast Regulation nr. 2020/1784 is expected to change the scene: The reference to each Member State has been deleted.

Gilles Cuniberti (University of Luxembourg) and Sara Migliorini (University of Macau) have published a commentary in French on Regulation 655/2014 establishing a European Account Preservation Order (EAPO).

The book offers a comprehensive article per article commentary of the EAPO Regulation with a focus on its implementation and operation in the three French speaking Members States of the EU, Belgium, France and Luxembourg. Some aspects of the implementation of the Regulation are addressed by implementing legislation, which the book reproduces and discusses.

On certain issues, the implementation of the Regulation has varied a great deal in these three countries (and more widely in the EU).

An interesting example is the information gathering remedy which Article 14 of the EAPO Regulation requires all Member States to establish. Each Member State is meant to offer a procedure for finding information on bank accounts that the debtor might hold in the relevant Member State. France already had such procedure that it simply made applicable in the context of the EAPO Regulation. In contrast, no such procedure existed in Luxembourg and Belgium. Luxembourg established one for the purpose of the Regulation. So did Belgium, but it did not limit the scope of the said procedure to request made under Article 14 and has introduced a new remedy in Belgian law available outside the scope of the EAPO Regulation.

More information on the book can be found here. The table of contents is available here.

Francesco Parisi (Professor of Law at the University of Minnesota, Law School and a Professor of Economics at the University of Bologna), Daniel Pi (Assistant Professor at University of Maine School of Law) and Alice Guerra (Assistant Professor at the University of Bologna) wrote an interesting article using a law and economics approach to compare access to evidence in the US and EU. The article, entitled Access to Evidence in Private International Law, is forthcoming in 2022 in volume 23 of Theoretical Inquiries in Law.

The authors focus their analysis on how a misalignment of the burden of proof and evidentiary rules can frustrate the production of evidence and undermine care incentives when these are applied cross-border tort cases.

The abstract reads as follows:

This Article analyzes the interaction between the burden of proof and evidentiary discovery rules. Both sets of rules can affect incentives for prospective injurers to invest in evidence technology (i.e., ex ante investments that increase the quantity and quality of evidence in case an accident occurs). This interaction becomes acutely important in the private international law setting, where jurisdictions are split on the question whether the burden of proof should be treated as a substantive or procedural matter. When a tort occurs in Europe, but the case is litigated in American courts, treating the burden of proof as a procedural matter preserves the complementarity of incentives created by the burden of proof and evidentiary rules. Conversely, treating the burden of proof as a substantive matter creates a mismatch in incentives created by the burden of proof and evidentiary rules.

The article is structured in three parts. The first part of the article provides a theoretical insight into the interaction of presumptions and discovery rules using an economic approach. The second part offers a short overview of the way American and European law deal with the burden of proof and evidentiary discovery. In the third part the authors discuss how dissonant incentives can arise when tort cases are adjudicated in American courts using European legal rules. The various case law of American jurisdictions are split on the question whether the burden of proof should be regarded as substantive or procedural. The authors ultimately suggest that the US should treat presumption of negligence as a procedural rule to promote efficient incentives. They conclude that such a rule counterintuitively results in better outcomes in cases of private international law tort cases where, with a proper alignment of presumptions and discoverability rules, defendants would face incentives to invest in evidence technology even when knowing that the evidence could be used against them.

Jean-Sylvestre Bergé who is a law professor at Université Côte d’Azur (CNRS GREDEG) and a former member of the Institut Universitaire de France has recently published a new open access essay titled Rethinking Flow Beyond Control – An Outreach Legal Essay (ed. DICE, coll. Confluence des droits collection, 2021, 154 p., already announced here).

This work is the continuum of his previous legal essay titled “Situations in Motion and The Law – A Pragmatic Epistemology” (Les situations en mouvement et le droit – Essai d’une épistémologie pragmatique, Dalloz, 2021, announced here) which examines a number of legal constructs in national, international or European contexts and the way they respond each time they are faced with “situations in motion”. As explained by the author, “it was an attempt at deconstruction and reconstruction with the aim of offering a series of tools that could improve our understanding of both ordinary and complex circulation phenomena”.

Since the very inspiring work of Jean-Sylvestre Bergé is about circulation across territories, following a global approach, I have interviewed Jean-Sylvestre to know more about his new essay from a private international law perspective.

 — Can you share with us the central idea of your work? 

First of all, I would like to make it clear that this book is written for a wide audience, not just lawyers, and writing it in English allows me to capture all the exchanges I had during its preparation and now to share them as widely as possible.

The book is divided in two parts.

The first part is an epistemological analysis of circulation and law through the lens of circulation. The approach is therefore different from the one traditionally chosen, particularly by private international law scholars, who study the “law of circulation” (e.g. legal aspects of movement of goods or persons). I reverse the perspective: how does the phenomenon of circulation question the constructions of law and in particular those of private international law?

For example, when we study the cross-border circulation of judgments or civil status documents, there is a disciplinary pre-understanding. The analysis is made under the rules and methods of the subject. The book proposes to “decompartmentalize” knowledge and analysis, by taking various examples in several disciplinary fields.

The second part of the book aims at characterising circulation and pushing it to a point of paroxysm: this is the figure of “rupture” that I call the “total loss of control in circulation”. I think about flows produced by all of us in the everyday life and the loss of control of the stakeholders, such as a family, a company or even the whole world. This figure of loss of control is interesting because it is a “clash of the titans” with the law. Law is dominated by the control of situations and, for my part, I work on the loss of control of flows. This is not an unknown object of study, but lawyers find it difficult to accept! Think of the nuclear risk and its legal treatment. Control is certainly not total…

 — If we take the example of cross-border circulation of civil status documents, when do we reach a situation of “loss of control”? Can private international law regulate the situation “beyond control”?

Let’s take the specific case of children born of surrogate motherhood abroad (where it is legal), and then the request for transcription of the child’s birth certificate in the country where the parents live and which prohibits this method of procreation, such as France. In this context, the core issue could be the circulation of the child. There are mechanisms that allow for the circulation of the child; consequently, this infers all subsequent constructions, including those of private international law, which deal with and regulate the circulation of civil status records of these children born of surrogate motherhood.

In France, this circulation was liberated by the “Taubira” circular concerning travel documents allowing the child to leave his/her State of birth for France, even though surrogate motherhood is prohibited in France. If we want to fight surrogate motherhood (from the point of view of its opponents), we must attack the circulation, block it, prohibit it… Can we ban these children from circulation and how can we do it? There is a “reading template” to respect, starting with the respect of the fundamental rights of the child with regard to circulation or non-circulation.

This is another way of considering this topic, renewing the usual debate on the prohibition (or not) of this mode of procreation and the cross-border “recognition” of the parent-child relationship; it is the prism of circulation beyond control, following an epistemological approach of private international law.

 — What is the main contribution of your work to private international law theory and practice?

The book invites us to revisit the legal acquis (including private international law acquis) by using the language of an epistemology of circulation and of a total loss of control, such as internationality, extraneity, mobility or relocation (see the index of the book). There are well-known concepts in private international law that could allow the issue of circulation to be brought back to the center of the proposed analysis. For example, in France, the “Matter doctrine” according to which a contract is international if it involves the interests of international trade through the ebb and flow of financial values across borders.  In my opinion, this doctrine is not sufficient to consider that the issue of the international dimension of a situation is settled. It has not provided for a conceptual framework for circulation phenomena under private international law. It can usefully be rethought through the concept of flow in the context of situations in motion.

To this end, I propose new notions, such as a distinction between cases in which the law tackles situations in motion from a “consequential perspective” (i.e. looking at its causes and effects) or “in and of itself” (i.e. from end to end). This distinction is very interesting because it allows to study mechanisms of private international law to see whether they deal with mobility from beginning to end or, on the contrary, whether they only deal with its causes or effects. It is often the latter answer that prevails because it is the easiest way for the law in general. Let us think of the expulsion of an individual from a territory: it is a question of apprehending an incoming flow. There is a legal apparatus that deals with the issue only by its causes or effects in this case.

In contrast, the law can grasp the movement in its entirety, from start to finish: this is the case in extradition conventions, in the mechanism of the European arrest warrant, or in private international law of the legal regime for the return of illegally displaced children, in the Hague Convention on international child abduction. This text puts in place a very sophisticated mechanism based on a very high level of cooperation between public authorities, which makes it possible to apprehend the circulation and return of the child with immediate effect.

In this contrasting context, the question is which path the law chooses to take in its legal treatment of circulation? This is a legal policy choice with varying levels of construction. End-to-end mechanisms are fragile, often held in check and more complex to set up and implement because they require an understanding across territories of the complete mechanisms. The treatment of the subject by its causes or effects is easier, the law knows how to “receive” or “send” a situation in motion. It is a much more unilateral rationale and, whatever one may say, unilateralism is a key-component of private international law…

 — The book also develops a “modal analysis of circulations”, distinguishing between the forms of circulations that lead to different legal regimes.

Yes, this approach is well-known in transport law: depending on the type of transport by air, sea or road, there are adapted legal regimes. We can use this rationale to analyse some mechanisms of private international law.

For example, circulation in law is consubstantial with its subject. In private international law, is the person consubstantial with its object? People should be allowed to circulate without losing their status. This question has already been examined but the analysis can be renewed. We know that we cannot let everyone circulate freely. So as soon as we deal with movement, it is because we have the right to control it; if we deal with controlling movement, it is because movement is not free. In law, we do not talk about movement when it is free; if the law talks about it, it is because it controls it. Hence my counterpoint: loss of control!

 — The book proposes another concept, which could be very useful for international lawyers, that of the “normative space of flows”. Can you tell us more about it?

I start from the idea that it is the flow that designates the perimeter of actors in a field with cross-border implications, and brings them into contact (e.g. a buyer and a seller in an international contract). This flow is composed of a set of factual and legal data. Sometimes, this can give rise to collateral damage that is difficult to grasp and that draws new, global perspectives. In this context, my theoretical proposal is to say that the flow creates its own space and that this space is capable of producing its own law.

For example, a transatlantic air flight is a normative space of flow; it should be possible to study it as the ephemeral constitution of a legal order that federates around its object the movement of the plane from Paris to Toronto, a set of rules of private law, public law, soft law, hard law, requirements on corporate social responsibility, etc… All these rules have the flow as their object. If I put the flow back at the center of the legal order, I redraw the relationships between the legal norms at the start of the flow.

There are a large number of possible examples.

To return to the example of surrogate motherhood in an international context, the circulation of the child is a normative space of flows that disrupts the classic legal framework for understanding this phenomenon.

 — In this normative space of flows, where does control lie? Is the circulation always “beyond control”?

It depends! Circulation can be under control or beyond control for the law in a normative space of flows. In the hypothesis of a plane accident, its legal treatment can be analysed through the normative space of flows but the law will have difficulty in regaining control of the situation, given the complexity of the cross-border legal treatment of the situation (i.e. compensation for material and physical damage, search for the responsibilities of the parties involved, etc.).

The problem is that there is no “meta rule” of private international law to seize one single court with a unique applicable law at the global level. In the example of an air crash, there is inevitably a scattering of the procedure with victims who are culturally different, the evidence is spread over several territories, the area of the accident may even be a-national (on the high seas), etc.

Finally, we may wonder if the law – including private international law – is capable of dealing with the phenomenon of circulation. The answer is difficult. When it circulates, the answer is positive, but when the circulation is difficult or when there is no circulation at all, we wonder. This brings us to the limits of the legal treatment of situations in motion. Why is this so? Because the flow cannot produce its own normative space.

 — What about EU private international law? In what way does the unification of PIL rules in the European area contribute to the discourse on situations in motion and its legal treatment?

The European system of private international law is a normative space of flows. This may seem obvious, but it is no small thing to say! It is a legal system that modifies the reference system of private international law. This is huge! It was originally the (national) forum and sometimes we looked a little at the lex causae, but that remained rare. And now we have a supranational construction that anchors a space that is not a territory as a point of reference. This changes everything: it is a normative space of flows like a national forum.

In this context, the book proposes that lawyers and lawmakers take the flow as the object of normative construction. This could perhaps make it possible to overcome certain failures of the law to embrace situations in motion. But there is strong resistance because each legal order wants to keep its perimeter, its control and deal with the situation alone, even if it goes beyond its borders…

In conclusion, I would like to thank Jean-Sylvestre for this fascinating analysis of situations in motion, based on the concept of flow, and this invitation for lawyers, including experts in private international law, to rethink the “applicable law” (i.e. from its conception to its implementation).

In a judgment of 23 November 2021, the Paris Court of Appeal ruled that the French provisions implementing the 1986 Agency Directive are not overriding mandatory provisions, and thus do not define French public policy.

It is hard to reconcile this judgment with the Ingmar case of the European Court of Justice.

Swiss company Guess Europe entered into an agency contract with a French company to market its products in France. The agency contract provided for the application of Swiss law and, it seems, arbitration in Switzerland.

After the French agent did not meet its target, Guess terminated the contract without paying any indemnity for termination. It then initiated arbitration proceedings seeking, inter alia, that it did not owe anything under the agency contract. Guess partly prevailed: the arbitrator ordered Guess to pay certain commissions, but ruled that it did not owe anything else.

In parallel, the French agent initiated proceedings before French courts against the French subsidiary of Guess seeking payment of commissions and production of certain documents for the purpose of determining the amount of its indemnity after termination. The action was dismissed on an unknown ground. The parties debated whether Guess France could be characterised as principal before both fora, so it is possible that the agent lost on the ground that Guess France was not concerned with these claims.

Guess Europe obtained a declaration of enforceability of the arbitral award in France. The French agent appealed and argued that the award was contrary to French public policy.

The main argument of the French agent was obviously that the European Court of Justice held in Ingmar v. Eaton (C-381/98) that

Articles 17 and 18 of Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents, which guarantee certain rights to commercial agents after termination of agency contracts, must be applied where the commercial agent carried on his activity in a Member State although the principal is established in a non-member country and a clause of the contract stipulates that the contract is to be governed by the law of that country.

This strongly suggested that these provisions of the Agency Directive should be considered as overriding mandatory provisions by the Member States.

If so, it would also seem that these provisions should define the public policy of the Member States.

The Paris Court of Appeal, however, ruled that the French provisions implementing the Agency Directive (articles L. 134-1 et seq. of the French Commercial Code) do not define French international public policy. It held:

an internal mandatory rule, even if it is the result of the transposition of a European directive, the imperative nature of which has been recalled by the Court of Justice of the European Union, is only likely to come under the French concept of international public policy if, after having verified its applicability to the dispute, its disregard violates this concept, that is to say the set of rules and values whose disregard cannot be tolerated by the French legal order, even in international matters (§29).

The Court found, however, that the dispute fell within the scope of the Directive. But it then ruled that the purpose of the Directive is not to define the most essential values and principles which should trigger the public policy exception.

The Court ruled that the provisions of European Union law

even if they are described as mandatory, do not all pursue objectives aimed at guaranteeing essential principles or values whose disregard by the Member States cannot be tolerated in an international context (§ 39)

and that this was not the purpose of the aforementioned directive and its transposition, the objective of which

is essentially to harmonize and approximate the laws of the Member States with regard to the defence of the private interests of commercial agents without the protection of vital interests of those same Member States being at stake, or even if it is clear from such provisions that they are necessary for the implementation of a compelling policy of defending freedom of establishment or undistorted competition (§40).

The Court of Appeal relied on two judgments of the Cour de cassation in support of its position. One is pretty unclear, but the other one had indeed ruled that the French implementing provision was a domestic mandatory rule and thus not an overriding mandatory provision.

The debate in this case, however, was not whether French law should be applied to displace the application of the law of a third State, but whether it should be applied to displace the application of German law.

The Paris Court of Appeal certainly has a point. The reasons given by the ECJ to justify its decision show that its goal was not to assess whether the Directive serves the crucial interests of the Member States. Rather, the Court wanted to advance its own agenda of creating a single market, and used strategically private international law to that end.

This being said, there is a precedent, and it is binding on the Member States.

The CJEU has been very generous with airline passengers when it comes to applying the rules on jurisdiction in the Brussels I bis Regulation, especially with regard to indemnity for cancelled or delayed flights.

In Rehder v Air Baltic, it had famously ruled that the passenger can actually choose between the place of departure and the place of arrival when bringing a claim against the airline. Later decisions have extended this choice to cases of combined flights, with the CJEU ruling that the passenger can bring the claim against the airline at the place of departure of the first leg or the place of arrival of the last leg, provided that both legs of the flight have been booked together (see for instance Flightright v Iberia, Air Nostrum and my previous post on EAPIL).

The claim in JW et al. v LOT also concerned a combined flight. However, the passenger had brought the claim neither at the place of departure (in Warsaw) nor at the final destination (on the Maldives) but rather at the place of an infamous stopover (Frankfurt am Main). This choice seems surprising given that both the passenger as well as the operating airline were domiciled in Warsaw. The idea might have been that the delay at the root of the action occurred at this place, but it would still have been more practical to sue in Warsaw.

As it turned out, it was also legally unwise to sue at the stopover, since the CJEU actually rejects the jurisdiction of the courts there. The Court rules that the place of performance of service contracts in the sense of Article 7(1)(b) of the Brussels I bis Regulation is where the “the main provision of services is to be carried out”. In its previous case law, the CJEU had considered only the place of departure and the final destination as such points. While the Court acknowledges that this list is a “non-exhaustive illustration” (see para 23), it balks at including the stopover in it.

Exactly why is difficult to tell. Objectively, it can hardly be denied that many of the essential flight services are performed at the stopover. Among them are the boarding of the passengers, their reception by the crew and their disembarkation as well as the transport of luggage. Nevertheless, the Court had already mentioned in Rehder that “places where the aircraft may stop over also do not have a sufficient link to the essential nature of the services resulting from that contract” (Rehder para 40).

This obiter dictum has now been turned into a binding ruling in JW et al. v LOT.

Apparently, the Court wants to restrict the possible places where suits against airlines can be brought. It also invokes, to this effect, the objectives of proximity and of the sound administration of justice and the need for predictability of the competent tribunal (JW et al. v LOT, paras 25 and 26). However, a suit at the place of the stopover is not completely unforeseeable for the airline, especially where the delay occurred there, such as in the present case. Nor would it run against the objectives of proximity and the sound administration of justice if the court there were to hear the dispute.

It remains to be seen whether this case law will also be applied to flights with the place of departure and final destination in third countries and a mere stopover in the EU. It needs to be borne in mind that these flights also fall under the purview of the Passenger Regulation as long as they are operated by an EU airline (see Article 3(1) of the Flight Compensation Regulation). In such cases, the Court may find it convenient to offer the passenger a jurisdiction at the place of the stopover and not only at the airline’s headquarters or place of statutory seat, which could be in a different Member State.

— Thanks to Verena Wodniansky-Wildenfeld for her help in preparing this post.

The European Commission has launched a public consultation on the prospect of an EU-wide protection for vulnerable adults, i.e., persons aged 18 or more who are unable to protect their interests because of an impairment or insufficiency of their personal faculties.

In the document presenting the initiative, the Commission notes that vulnerable adults, together with their legal representatives, “currently face multiple barriers when they move abroad, buy or sell properties, or just manage their bank account in another Member State”. This is so, “because the rules governing cross-border cases (private international law rules) differ from one Member State to another”.

Actually, none of the legislative measures enacted  so far by the Union on the basis of Article 81 TFEU deals with the support that vulnerable needs may need to access to exercise their legal capacity.

The aim of the consultation is to “gather evidence on the problem and its consequences and to give all interested parties the opportunity to share their views on the possible policy options”.

The deadline for contributing to the consultation is 29 March 2022.

The Scientific Council of the European Association of Private International Law has approved a proposal for the creation of a Working Group charged with drafting a response to the consultation on behalf of the Association.

The members of the group are Pietro Franzina (co-chair), Estelle Gallant, Cristina González Beilfuss (co-chair), Katja Karjalainen, Thalia Kruger, Tamás Szabados and Jan von Hein.

The Working Group plans to hold a webinar in the coming weeks in order to publicly present a preliminary draft and collect the views of experts and stakeholders.

Further details will be made available in the Group’s dedicated page.

For information: pietro.franzina@unicatt.it.

Marc Schmitz, President of the International Union of Judicial Officers (UIHJ) and Patrick Gielen, Chairman of the joint appointment commissions of the Bailiffs, have edited a book, published by Bruylant, on service of judicial and extrajudicial documents in Europe (La signification des actes judiciaires et extrajudiciaires en Europe). It aims at preparing legal professionals to the recast of the Service Regulation (announced here).

The European Union of Judicial Officers (UEHJ) gathered a panel of experts to propose a first analysis of the main changes provided by the Regulation (EU) 2020/1784 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters and which will enter into force on 1 July 2022.

It is worth mentioning that the European Commission, through its e-Justice service, offers an unpublished analysis (in French and English) of the secure and reliable decentralised computer system, known as e-CODEX, which is to be set up to facilitate the electronic exchange of data between Member States (recently mentioned here).

Covered topics include: European Case Law on Regulation (EC) No 1393/2007 of 13 November 2007; Service Regulation: Implementation, Applications and Belgian Interpretations; The new Regulation (EU) 2020/1784 presented to practitioners; The e-Codex and the European platform for the transmission of documents.

Contributors include: Marc Schmitz, Patrick Gielen, Guillaume Payan, Léonard Maistriaux, Mathieau Chardon, Nicolau Cristian, Serba, Dragos, Koit Haldi

Full table of contents here and more information here.

This post was written by Johan Meeusen, who is a professor at the University of Antwerp and a Member of the Scientific Council of EAPIL. The post was posted first on the site of GEDIP.

The judgment of the Court of Justice of the European Union (CJEU) in the Pancharevo case (CJEU 14 December 2021, V.M.A./Stolichna obshtina, rayon ‘Pancharevo’, C-490/20) was eagerly awaited. A few years ago, in Coman (judgment of 5 June 2018, C-673/16), the Court had obliged Romania on the basis of Article 21(1) TFEU to recognise, solely for residence purposes, the same-sex marriage that its national Coman and his American partner Hamilton had contracted in Belgium. In Pancharevo, the Court was confronted with the – perhaps even more sensitive – issue of same-sex parenthood, again in the context of the mobility rights that Union citizens derive from Article 21(1) TFEU, interpreted in the light of fundamental rights on the one hand, and considerations of national identity and public policy of the Member State concerned on the other.

V.M.A. is a Bulgarian national and K.D.K. is a United Kingdom national. Both women have lived in Spain since 2015 and were married in Gibraltar in 2018. In December 2019, V.M.A. and K.D.K. had a daughter, S.D.K.A., who was born and resides with both parents in Spain. Her birth certificate, issued by the Spanish authorities, refers to V.M.A. as ‘Mother A’ and to K.D.K. as ‘Mother’ of the child. V.М.А. applied to the Sofia municipality for a birth certificate for S.D.K.A. to be issued to her, the certificate being necessary, inter alia, for the issue of a Bulgarian identity document. However, the Sofia municipality instructed V.M.A. to provide evidence of the parentage of S.D.K.A., with respect to the identity of her biological mother, as the Bulgarian model birth certificate has only one box for the ‘mother’ and another for the ‘father’, and only one name may appear in each box. After V.М.А. replied that she was not required to provide the information requested, the Sofia municipality refused the application for a birth certificate. The reasons given for that refusal decision were: the lack of information concerning the identity of the child’s biological mother and the fact that a reference to two female parents on a birth certificate was contrary to the public policy of the Republic of Bulgaria, which does not permit marriage between two persons of the same sex.

V.M.A. brought an action against that refusal decision before the Administrativen sad Sofia-grad (the Administrative Court of the City of Sofia, Bulgaria). That court states that, notwithstanding the fact that S.D.K.A. does not have a birth certificate issued by the Bulgarian authorities, she has the Bulgarian nationality under Bulgarian law. The court has doubts, however, as to whether the refusal by the Bulgarian authorities to register the birth of a Bulgarian national, which occurred in another Member State and has been attested by a birth certificate that mentions two mothers and was issued by the competent authorities of the latter Member State, infringes the rights conferred on such a national in the Treaty provisions on Union citizenship and the Charter of Fundamental Rights of the European Union (hereinafter: the Charter). The Bulgarian authorities’ refusal to issue a birth certificate is, after all, liable to make it more difficult for a Bulgarian identity document to be issued and, therefore, to hinder that child’s exercise of the right of free movement and thus full enjoyment of her rights as a Union citizen. The Bulgarian court therefore refers four questions to the Court of Justice for a preliminary ruling. These questions seek to ascertain whether EU law obliges a Member State to issue a birth certificate – in order for an identity document to be obtained according to the legislation of that State – for a child, a national of that Member State, whose birth in another Member State is attested by a birth certificate that has been drawn up by the authorities of that other Member State in accordance with the national law of that other State, and which designates, as the mothers of that child, a national of the first of those Member States and her wife, without specifying which of the two women gave birth to that child. If the answer is in the affirmative, the referring court asks whether EU law requires such a certificate to state, in the same way as the certificate drawn up by the authorities of the Member State in which the child was born, the names of those two women in their capacity as mothers.

The Court answers the questions referred for a preliminary ruling in a fairly short judgment which, in line with and with frequent reference to its earlier Coman judgment, is characterised by a functional approach designed to ensure that the Union citizens concerned can exercise their rights of free movement without requiring Bulgaria to recognise same-sex parenthood for wider purposes, let alone to incorporate it into its legislation, or to issue a birth certificate to that effect itself.

On basis of the findings of the referring court, which it says alone has jurisdiction in that regard, the Court considers that S.D.K.A. has Bulgarian nationality and hence is a Union citizen. It confirms that a Union citizen who has made use of his or her freedom to move and reside within a Member State other than his or her Member State of origin may rely on the rights pertaining to that status, including against his or her Member State of origin. This also applies to Union citizens who were born in the host Member State of their parents and who have never made use of their right to freedom of movement. Relevant in this regard is the right to move and reside provided for in Article 21(1) TFEU and Article 4(3) of Citizens’ Rights Directive 2004/38, which requires Member States to issue to their own nationals an identity card or passport stating their nationality in order to enable them to exercise this right. The Bulgarian authorities are therefore required to issue to S.D.K.A. an identity document, regardless of whether a Bulgarian birth certificate has been drawn up for her.

Next, the Court recalls its consideration in Coman that the rights which Union citizens enjoy under Article 21(1) TFEU include the right to lead a normal family life, together with their family members, both in their host Member State and in the Member State of which they are nationals when they return to the territory of that Member State. In more concrete terms, since the Spanish authorities lawfully established that there was a parent-child relationship, biological or legal, between S.D.K.A. and her two parents, V.M.A. and K.D.K., the latter must, therefore, be recognised by all Member States as having  the right to accompany that child when her right to move and reside freely within the territory of the Member States is being exercised. Accordingly, the Bulgarian authorities are required, as are the authorities of any other Member State, to recognise that parent-child relationship for the purposes of permitting S.D.K.A. to exercise without impediment, with each of her two parents, her right to move and reside freely within the territory of the Member States as guaranteed in Article 21(1) TFEU. To that end, V.M.A. and K.D.K. must have a document which mentions them as being persons entitled to travel with that child. In this case, the authorities of the host Member State, Spain, are best placed to draw up such a document, which may consist in a birth certificate. The other Member States are obliged to recognise that document.

According to the Court, that does not detract from the competence of the Member States with regard to a person’s status. After all, it is established case law that each Member State must comply with EU law when exercising its competence. In addition, the obligation to issue an identity card or a passport to S.D.K.A. and to recognise the parent-child relationship between her and her two mothers does not undermine the national identity or pose a threat to the public policy of Bulgaria, since it does not require Bulgaria to provide, in its national law, for the parenthood of persons of the same sex, or to recognise, for purposes other than the exercise of the rights which S.D.K.A. derives from EU law, the parent-child relationship between herself and the persons mentioned on the birth certificate drawn up by the Spanish authorities.

Referring to the interpretation by the European Court of Human Rights of Article 8 of the ECHR and to the relevant provisions of the Convention on the Rights of the Child, the Court considers lastly that it would be contrary to Articles 7 and 24 of the Charter to deprive S.D.K.A. of the relationship with one of her parents when exercising her right to move and reside freely within the territory of the Member States or for her exercise of that right to be made impossible or excessively difficult in practice on the ground that her parents are of the same sex.

In the final paragraphs of the judgment, the Court examines the hypothesis that S.D.K.A. is not of Bulgarian nationality and sees in this no reason to rule otherwise. K.D.K. and S.D.K.A., irrespective of their nationality, must be regarded by all the Member States as being, respectively, the spouse and the direct descendant within the meaning of Article 2(2)(a) and (c) of Directive 2004/38 and, therefore, as being V.M.A.’s family members. They are thus ‘beneficiaries’ within the meaning of the Citizens’ Rights Directive (cf. Art.3(1)) with the derived right of free movement and residence attached to that status.

In the light of the foregoing, the Court rules that the provisions of EU law under examination must be interpreted as meaning that, in the case of a child, being a minor, who is a Union citizen and whose birth certificate, issued by the competent authorities of the host Member State (in this case, Spain), designates as that child’s parents two persons of the same sex, the Member State of which that child is a national (in this case, Bulgaria) is obliged (i) to issue to that child an identity card or a passport without requiring a birth certificate to be drawn up beforehand by its national authorities, and (ii) to recognise, as is any other Member State, the document from the host Member State that permits that child to exercise, with each of those two persons, the child’s right to move and reside freely within the territory of the Member States.

In Pancharevo, the Court guarantees the freedom of movement and the fundamental rights of Union citizens in a way that, on the one hand, accommodates their personal and family interests and, on the other hand, respects both the competence of the Member States regarding the status of the person and the societal sensitivities – in this case, Bulgarian – involved. The judgment is remarkable for several reasons.

Firstly, this case provides an excellent illustration of the conflict between the claims of mobile Union citizens, who do not want to be restricted in their cross-border activities, and the different values and legislation of the Member States. Pancharevo is the logical next step after Coman and shows once more that the status and family law of the Member States, at least as regards its choice-of-law aspects, can no longer be seen as separate from the impact of EU law.

Secondly, the Court ensures continuity with its ruling in Coman. In the latter ruling, the Court did not oblige Romania in any way to introduce same-sex marriage or to give general recognition to the same-sex marriage contracted by a Romanian or a Union citizen in another Member State. On the contrary, the Court stressed several times that it was only a question of recognition ‘solely for the purpose of granting a derived right of residence to a third-country national’ (in that case, the American spouse of the Romanian Coman). The Court continues this strictly functional approach in Pancharevo. As such, the Court explicitly states that, since EU law does not affect the competence of the Member States regarding the status of persons, ‘the Member States are thus free to decide whether or not to allow marriage and parenthood for persons of the same sex under their national law’ (paragraph 52). Furthermore, the Court’s interpretation of the obligation of Member States to recognise the civil status of persons established in another Member State systematically relates to the right to freedom of movement and, precisely for that reason, does not pose a threat to the public policy or the national identity of Bulgaria: it is merely a question of recognising the filiation of the child ‘in the context of the child’s exercise of her rights under Article 21 TFEU and secondary legislation relating thereto’ (paragraph 56). Hence, as the Court adds, that does not mean that Bulgaria is required ‘to provide, in its national law, for the parenthood of persons of the same sex, or to recognise, for purposes other than the exercise of the rights which that child derives from EU law, the parent-child relationship between that child and the persons mentioned on the birth certificate drawn up by the authorities of the host Member State as being the child’s parents’ (paragraph 57).

Thirdly, it is also noteworthy that, in paragraph 57, the Court does not refer (solely) to the right of the Union citizen to move and reside freely, but more widely to ‘the exercise of the rights which that child derives from EU law’. The Court, which used similar wording in Coman, does not elaborate on this, and the question therefore remains to what extent the aforementioned ‘functional’ approach will remain tenable in the future. Will it really be possible for Romania, in the wake of Coman, to limit the effects of the recognition of the marriage to the residence status of Coman’s American husband Hamilton? Will this couple not want to (and be allowed to?) invoke their marriage status, which is recognised for the purposes of residence, for other legal purposes in Romania as well – tax, filiation, relational aspects of property, inheritance law, etc. – on the grounds that a refusal to do so also infringes the right to freedom of movement and residence and/or the right to private and family life guaranteed by the Charter? And can the same happen in the aftermath of Pancharevo, where, moreover, the rights of the child, protected by Article 24 of the Charter, are at stake? Will the impact of EU law on the recognition of parentage effectively be limited to the provision of an identity document and the recognition of the foreign birth certificate for the purpose of exercising the right to freedom of movement? In fact, even before Pancharevo, the Commission had already planned a legislative initiative in 2022, based on Article 81(3) TFEU, aimed at the mutual recognition of parenthood between Member States in accordance with the motto stated by Commission President von der Leyen in her ‘State of the Union’ of 16 September 2020: ‘If you are parent in one country, you are parent in every country’.

Fourthly, it is noteworthy that the Court briefly discusses the situation where, if checks so should reveal, it would appear that S.D.K.A. does not have Bulgarian nationality. In this case, it relies on V.M.A.’s Bulgarian nationality and categorizes her partner K.D.K. and daughter S.D.K.A. as, respectively, spouse and direct descendant within the meaning of Article 2(2)(a) and (c) of the Citizens’ Rights Directive 2004/38. The latter are then ‘beneficiaries’ within the meaning of the Directive and enjoy derived rights of movement and residence. The Court adds to this that ‘a child, being a minor, whose status as a Union citizen is not established and whose birth certificate, issued by the competent authorities of a Member State, designates as her parents two persons of the same sex, one of whom is a Union citizen, must be considered, by all Member States, a direct descendant of that Union citizen within the meaning of Directive 2004/38 for the purposes of the exercise of the rights conferred in Article 21(1) TFEU and the secondary legislation relating thereto’ (paragraph 68). In this respect, the Court follows the line taken in Coman, which combined recognition of the competence of the Member States in relation to personal status with a (partially) autonomous interpretation of the concept of ‘spouse’ used in Article 2(2)(a) of Directive 2004/38, in the sense that it refers to a person who is a person joined to another person by the bonds of marriage regardless of their sex. Pancharevo also recognises, on the one hand, the substantive competence of the Member States, but, on the other, gives a specific Union law interpretation to the concept of ‘direct descendant’ used in the same directive: the relationship referred to in Article 2(2)(c) of the directive is not necessarily based on a biological relationship. Thus, if parentage has been validly established in an official birth certificate of a Member State, more traditional conceptions of biological kinship between parent and child in the host Member State cannot preclude the status of the latter as ‘direct descendant’. On this last point, the Court follows the path it had already set in SM (judgment of 26 March 2019, C-129/18).

Last but not least, Pancharevo will undoubtedly stimulate the debate among conflicts scholars on the precise significance of the so-called ‘recognition method’ as an alternative choice-of-law method. As was the case with Coman as well, the Court in Pancharevo interprets EU law but its judgment profoundly impacts the recognition of personal status from the perspective of conflict of laws as well. While the Court’s approach is characterized by a functional, hence cautious approach, an essential question is whether this restraint is really tenable, given the far-reaching impact of both EU free movement and fundamental rights law… The significance of Pancharevo for EU conflict of laws in particular will be further examined by GEDIP. The group currently discusses a European codification of the general part of private international law, working inter alia in that context on the recognition of situations validly established abroad. The sub-group which examines the latter issue obviously will take into account the CJEU’s judgment in Pancharevo when preparing its report for the next GEDIP meeting, scheduled to take place in Oslo in September.

With its purposive interpretation of Union citizenship, invariably described as ‘destined to be the fundamental status of nationals of the Member States’, the Court of Justice ensures the mobility of Union citizens. In a diverse European Union based on the protection of fundamental rights, in which the personal status of the individual still is a competence of the Member States, this implies openness to diversity. With its balanced and well-founded Pancharevo judgment, in which the functional recognition of the parentage relationship and the broad interpretation of the concept of ‘direct descendant’ stand out, the Court ensures both the effectiveness of the rights of Union citizens, including the protection of fundamental rights, and respect for the competence and national identity of the Member States. Nevertheless, it is clear that with its judgments in Coman, SM and now Pancharevo, the CJEU has embarked on a progressive path, with openness to diversity and new family forms, for the benefit of mobile Union citizens.

Due to the ‘semaine blanche’, February is usually a short month at the Court of Justice. However, several PIL-related activities are worth noting this particular February. They start this Thursday with the judgment in C-20/21, LOT Polish Airlines. A chamber of three judges (Rodin, Bonichot, Spineanu-Matei) will decide on the request by the Regional Court, Frankfurt am Main, addressing jurisdiction under Article 7(1), of the Brussels I bis Regulation:

Must Article 7(1)(b) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters be interpreted as meaning that the place of performance, within the meaning of that provision, in respect of a flight consisting of a confirmed single booking for the entire journey and divided into two or more legs, can also be the place of arrival of the first leg of the journey where transport on those legs of the journey is performed by two separate air carriers and the claim for compensation brought on the basis of Regulation (EC) No 261/2004 arises from the delay of the first leg of the journey and is brought against the operating air carrier of that first leg?

An advocate general’s opinion was deemed not necessary.

A public hearing in case C-646/20, Senatsverwaltung für Inneres und Sport, will take place on Tuesday 8th. The request focuses on Regulation Brussels II bis. The main proceedings concern the question of 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.

The Bundesgerichtshof is asking the Court of Justice two short, straight-forward questions:

1. 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?
2. 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?

The reporting judge is M. Safjan, for the Grand Chamber (Lenaerts, Bay Larsen, Arabadjiev, Prechal, Regan, Rodin, Jarukaitis, Ilešič, Bonichot, Safjan, Kumin, Arastey Sahún, Gavalec, Csehi, Spineanu-Matei). After the hearing, Advocate General Collins will announce the date of publication of his opinion.

Two days later (10 February), the Court will hand down the judgment in the case of C-595/20, ShareWood Switzerland, on the interpretation of the Rome I Regulation. The requesting court is the Austrian Oberster Gerichtshof:

Is Article 6(4)(c) of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations to be interpreted as meaning that a contract for the purchase of teak and balsa trees between an undertaking and a consumer, which is intended to confer ownership of the trees, which are then managed, harvested and sold for profit, and which includes for that purpose a lease agreement and a service agreement, is to be regarded as ‘a contract relating to a right in rem in immovable property or a tenancy of immovable property’ within the meaning of that provision?

Once again M. Safjian is the reporting judge, sitting with judges Jääskinen and Gavalec. The preliminary ruling will be taken without opinion.

On the same day, a chamber composed by judges Prechal, Passer, Biltgen, Wahl and Rossi (reporting), will rule on C-522/20, OE. The referring court – the Oberster Gerichtshof, Austria, acting as Court of Cassation in a matter of divorce- has asked the following to the Court in Luxembourg:

1. Does the sixth indent of Article 3[(1)](a) of Council Regulation (EC) No 2201/2003 of 27 November 2003 infringe the prohibition of discrimination in Article 18 TFEU on the ground that it provides, as a precondition to the jurisdiction of the courts of the State of residence, depending on the nationality of the applicant, for a shorter period of residence than the fifth indent of Article 3[(1)](a) of Council Regulation (EC) No 2201/2003 of 27 November 2003?
2. If the answer to Question 1 is in the affirmative: Does that infringement of the prohibition of discrimination mean that, based on the fundamental rule laid down in the fifth indent of Article 3[(1)](a) of Council Regulation (EC) No 2201/2003 of 27 November 2003, a period of residence of 12 months is required for all applicants, irrespective of their nationality, in order to rely upon the jurisdiction of the courts in the place of residence or is it to be assumed that a period of 6 months’ residence is the precondition for all applicants?

Among other, the applicant submits that under fifth and sixth indents of Article 3[(1)](a) of Regulation No 2201/2003 (Brussels II bis), jurisdiction for divorce proceedings is established for nationals of the forum State after just 6 months’ residence in that State, whereas nationals of other Member States must have been resident for at least 1 year; that this is unequal treatment solely on grounds of nationality and therefore infringes Article 18 TFEU.

No advocate general’s opinion has been asked for.

Finally, on 24 February Advocate General Szpunar will deliver his opinion in the case of C-501/20, M P A, giving us his views on habitual residence, forum necessitatiss and denial of justice in family matters. The request to the Court comes from the Audiencia Provincial of Barcelona; it relates to divorce proceedings of spouses who happen to be employees of the European Commission in its delegation in Togo. At stake are as well the dissolution of the matrimonial property regime, the determination of the regime and procedures for exercising custody and parental responsibility over the minor children, the grant of a maintenance allowance for the children and rules for the use of the family home in Togo. The interpretation requested affect the Brussels II bis Regulation, Regulation No 4/2009, and Article 47 of the Charter of Fundamental Rights of the European Union.

The questions are:

1. How is the term ‘habitual residence’ in Article 3 of Regulation No 2201/2003 and Article 3 of Regulation No 4/2009 to be interpreted in the case of the nationals of a Member State who are staying in a non-Member State by reason of the duties conferred on them as members of the contract staff of the European Union and who, in the non-Member State, are recognised as members of the diplomatic staff of the European Union, when their stay in that State is linked to the performance of their duties for the European Union?
2. If, for the purposes of Article 3 of Regulation No 2201/2003 and Article 3 of Regulation No 4/2009, the determination of the habitual residence of the spouses depended on their status as EU contract staff in a non-Member State, how would this affect the determination of the habitual residence of the minor children in accordance with Article 8 of Regulation No 2201/2003?
3. In the event that the children are not regarded as habitually resident in the non-Member State, can the connecting factor of the mother’s nationality, her residence in Spain prior to the marriage, the Spanish nationality of the minor children and their birth in Spain be taken into account for the purposes of determining habitual residence in accordance with Article 8 of Regulation No 2201/2003?
4. If it is established that the parents and children are not habitually resident in a Member State, given that, under Regulation No 2201/2003 there is no other Member State with jurisdiction to decide on the applications, does the fact that the defendant is a national of a Member State preclude the application of the residual clause contained in Articles 7 and 14 of Regulation No 2201/2003?
5. If it is established that the parents and children are not habitually resident in a Member State for the purpose of determining child maintenance, how is the forum necessitatis in Article 7 of Regulation No 4/2009 to be interpreted and, in particular, what are the requirements for considering that proceedings cannot reasonably be brought or enforced or prove impossible in a non-Member State with which the dispute is closely connected (in this case, Togo)? Must the party have initiated or attempted to initiate proceedings in that State with a negative result and does the nationality of one of the parties to the dispute constitute a sufficient connection with the Member State?
6. In a case like this, where the spouses have strong links with Member States (nationality, former residence), is it contrary to Article 47 of the Charter of Fundamental Rights if no Member State is considered to have jurisdiction under the provisions of the Regulations?

The case has been entrusted to Judges Prechal, Passer, Biltgen, Wahl, and Rossi (reporting).

The new issue of International & Comparative Law Quarterly (Volume 71, Issue 1) is out. Some of articles concern directly or indirectly questions of private international law. Their abstracts are provided below.

The whole issue is available here. Some of articles are published in open access.

F. Rielaender, Aligning the Brussels Regime with the Representative Actions Directive

European private international law has long been recognised as improperly set up to deal with cross-border collective redress. In light of this shortcoming, it seems unfortunate that the private international law implications of the Representative Actions Directive (Directive (EU) No 2020/1828) have not yet been addressed coherently by the European legislator. This article examines to what extent the policy of promoting collective redress can be supported, even if only partially, through a reinterpretation of the jurisdictional rules of the Brussels Ia Regulation. Furthermore, it discusses which legislative measures need to be adopted to better accommodate collective redress mechanisms within the Brussels regime.

M. Risvas, International Law as the Basis for Extending Arbitration Agreements Concluded by States or State Entities to Non-Signatories

This article explores the role of international law in relation to the extension of arbitration agreements contained in contracts concluded by States (or State entities) with non-signatory State entities (or States). As contract-based arbitrations involving States or State entities are on the rise, identifying the legal framework governing which parties are covered by the relevant arbitration agreements is of practical importance. The analysis demonstrates that international law forms part of the relevant law, alongside other applicable laws including law of contract, law of the seat and transnational law, concerning the extension of arbitration agreements concluded by States or State entities to non-signatories. Previous analyses have neglected the role of international law by not distinguishing contract-based arbitrations involving private parties from contract-based arbitrations involving States or State entities. Public international law recognises that arbitration agreements can be extended to non-signatories on the basis of implied consent, or abuse of separate legal personality and estoppel. Therefore, foreign investors can rely on international law to extend arbitration agreements to non-signatories in arbitrations conducted under investment contracts concluded by States or State entities, even if the relevant domestic law is agnostic or hostile to this. This has significant legal, and practical, importance.

T. Hartley, Basic Principles of Jurisdiction in Private International Law: The European Union, the United States and England

This article consists of a comparative study of the basic principles underlying the rules of jurisdiction in private international law in commercial cases in the law of the European Union, the United States and England. It considers the objectives which these rules seek to achieve (protection of the rights of the parties and respect for the interests of foreign States) and the extent to which these objectives are attained. It takes tort claims, especially in the field of products-liability, as an example and considers which system has the most exorbitant rules. It suggests explanations for the differences found.

Giovanni Zarra (University of Naples) authored a book titled Imperativeness in Private International Law – A View from Europe, with Springer/T.M.C. Asser Press.

This book centres on the ways in which the concept of imperativeness has found expression in private international law (PIL) and discusses “imperative norms”, and “imperativeness” as their intrinsic quality, examining the rules or principles that protect fundamental interests and/or the values of a state so as to require their application at any cost and without exceptions.

Discussing imperative norms in PIL means referring to international public policy and overriding mandatory rules: in this book the origins, content, scope and effects of both these forms of imperativeness are analyzed in depth. This is a subject deserving further study, considering that very divergent opinions are still emerging within academia and case law regarding the differences between international public policy and overriding mandatory rules as well as with regard to their way of functioning.

By using an approach mainly based on an analysis of the case law of the CJEU and of the courts of the various European countries, the book delves into the origin of imperativeness since Roman law, explains how imperative norms have evolved in the different conceptions of private international law, and clarifies the foundation of the differences between international public policy and overriding mandatory rules and how these concepts are used in EU Regulations on PIL (and in the practice related to these sources of law).

Finally, the work discusses the influence of EU and public international law sources on the concept of imperativeness within the legal systems of European countries and whether a minimum content of imperativeness – mainly aimed at ensuring the protection of fundamental human rights in transnational relationships – between these countries has emerged.

The book will prove an essential tool for academics with an interest in the analysis of these general concepts and practitioners having to deal with the functioning of imperative norms in litigation cases and in the drafting of international contracts.

The table of contents can be accessed here.

Annexes A and B to the insolvency Regulation list, respectively, the national insolvency proceedings and national insolvency practitioners (as notified by Member States) to which that Regulation applies. They have been replaced by Regulation (EU) 2021/2260 of 15 December 2021.

The new Annexes are operative as of 9 January 2022

The reasons for the amendment are explained given in Recital 2 of the Regulation:

In October 2020, the Netherlands notified the Commission of recent changes in its national insolvency law which introduced a new preventive insolvency scheme, as well as new types of insolvency practitioners. That notification was followed in December 2020 by notifications from Italy, Lithuania, Cyprus and Poland relating to recent changes in their national law which introduced new types of insolvency proceedings or insolvency practitioners. Following the submission by the Commission of its proposal for an amending Regulation, further notifications were received from Germany, Hungary and Austria relating to recent changes in their national law which introduced new types of insolvency proceedings or insolvency practitioners. Subsequently, Italy clarified the date of entry into force of its new provisions on insolvency and restructuring which it had notified to the Commission in December 2020, and notified an amendment to a previous notification. Those new types of insolvency proceedings and insolvency practitioners comply with.

Neither Ireland nor Denmark are taking part in the adoption of the Regulation. Accordingly, they are not bound by it or subject to its application.

The new issue of the Revue Critique de Droit International Privé (4/2021) is out. It contains four articles and numerous case notes.

The editorial by Horatia Muir Watt (Sciences Po), Dominique Bureau (University of Paris II) and Sabine Corneloup (University of Paris II) will soon be available in English on Dalloz website (Autour de l’enfant. Interpréter les signes : retour au calme ou déraison du monde ?).

In the first article, Etienne Pataut (University of Paris 1, Sorbonne Law School) discusses the (changing) role of effectiveness in nationality matter (Contrôle de l’État ou protection de l’individu ? Remarques sur l’effectivité de la nationalité).

Effectiveness of nationality seems to be changing. Its traditional role, in the matter of conflicts of nationalities and the international opposability of nationality, seems indeed contested and effectiveness does not seem in a position to oppose the more attentive consideration of the subjective rights of individuals. Conversely, this concern could reinforce the consideration of effectiveness when it makes it possible to demonstrate the existence of a link between the individual and the State which could lead to a challenge to a measure of deprivation of nationality. This development could bear witness to a profound change in the nationality itself.

In the second article, Sabine Corneloup (University of Paris II) analyses the parallel application of the 1980 Hague Child Abduction Convention and the 1951 Geneva Refugee Convention in the context of a recent decision of the UK Supreme Court (Demande de retour d’un enfant enlevé et principe de non-refoulement des réfugiés : lorsque la Convention de La Haye de 1980 rencontre la Convention de Genève de 1951).

Over the past years, there has been an increase in the number of applications for a return of abducted children within families applying for asylum. The parallel application of the 1980 Hague Child Abduction Convention and the 1951 Geneva Refugee Convention may prove to be problematic. Whereas the objective of the former is to ensure the child’s prompt return, the latter establishes the fundamental principle of non-refoulement to the State from which the refugee fled. In France, no case law has emerged so far, making the decision rendered by the UK Supreme Court on 19 March 2021 in G v. G even more interesting, not only as a source of inspiration, but also for the parts raising strong concern. In summary, the Supreme Court ruled that a child named as a dependant on her parent’s asylum request has protection from refoulement pending the determination of that application so that until then a return order in the 1980 Hague Convention proceedings cannot be implemented. In the relationships between two EU Member States, the conflict of the rationales underpinning the regulations Brussels II and Dublin III appears less acute as, in principle, the asylum applicant has no fear of persecution in any of these countries, but difficulties of articulation exist nevertheless, as the recent decision of the Court of Justice of 2 August 2021 in A v. B demonstrates.

In the third article, Rachel Pougnet (Bristol & Manchester Universities) examines a recent decision of the UK Supreme Court in the field of deprivation of nationality (La déchéance de nationalité devant la Cour suprême du Royaume-Uni : déférence judiciaire et sécurité nationale).

For the third time in ten years, the UK Supreme Court has been confronted with a deprivation of nationality order issued by the UK government. In this “Begum” decision of February 2021, the Supreme Court decided that Shamima Begum should not be allowed back into the country to conduct her appeal against the deprivation of her citizenship. The Court enshrined wide deference to the executive on national security grounds. Indeed, the court granted a wide margin of appreciation to the government when exercising its discretion to implement a deprivation order, due to the proximity of the measure with national security interests. In “Begum”, the Supreme Court also put the right to a fair trial on balance with security arguments.

In the fourth article, Christelle Chalas (University of Lille) analyses several rulings of the French Cour de Cassation in the specific context of international child abductions within Franco-Japanese families (La convention de La Haye du 25 octobre 1980 à l’épreuve de l’enlèvement international d’enfants franco-japonais).