EAPIL blog

A book titled Domestic Violence and Parental Child Abduction. The Protection of Abducting Mothers in Return Proceedings edited by Katarina Trimmings, Anatol Dutta, Constanza Honorati and Mirela Župan has been published recently by Intesentia.

The book has been prepared under the auspices of the EU-sponsored POAM project and, therefore, is available not only for purchase in paper format, but also in open access in e-book formats and online.

The POAM was a collaborative research project which has explored the intersection between domestic violence and international parental child abduction within the European Union. The project was concerned with the protection of abducting mothers who have been involved in return proceedings under the 1980 Hague Abduction Convention and the Brussels IIa Regulation, in circumstances where the child abduction had been motivated by acts of domestic violence from the left-behind father. The POAM examines the usefulness of the Protection Measures Regulation and the European Protection Order Directive in the context of such return proceedings. The POAM project was led by the University of Aberdeen and involved three partner institutions – the Ludwig Maximilians University of Munich, the Milano-Bicocca University and the University of Osijek.

The abstract of the book reads as follows:

This book focuses on the protection of abducting mothers who have been subject to return proceedings under the 1980 Hague Abduction Convention and the Brussels IIa Regulation, in circumstances where the child abduction has been motivated by acts of domestic violence from the left-behind father. The utility of Regulation 606/2013 on mutual recognition of protection measures in civil matters and Directive 2011/99/EU on the European Protection Order, and how protection measures can be used to protect abducting mothers, are examined within this context. Both instruments allow cross-border circulation of protection measures but, so far, have not attracted much attention in practice. This book aims to fill that gap (…) The book offers a unique perspective on the problem of international parental child abductions committed against the background of domestic violence. Given its practical focus, it will appeal not only to an academic audience but also to judges, legal practitioners and other professionals working in the area of parental child abduction.

The French Ministry of Justice has launched a series of podcasts titled Droit vers l’Europe, presenting key-aspects of EU Judicial Cooperation in civil and commercial matters (in French) for judges and legal practioners.

The objective is to improve their understanding of EU instruments of private international law and thus facilitate their application in cross-border cases.

The introduction of the series reads as follows:

You are a legal professional and you are confronted with a European problem in a family, civil or commercial case? “Droit vers l’Europe” gives you the keys to apply the instruments of EU judicial cooperation. In each episode, an expert sheds light on a specific issue. This podcast will enable you to develop the right practices in the implementation of EU regulations.

The main topics of the series include the following regulations: Brussels I bis Regulation; European order for payment; European account preservation order; Taking of evidence and Service of documents; Circulation of authentic instruments; Handling of international successions; Brussels II bis Regulation and its recast; Applicable law to matrimonial property regimes of international couples; Applicable law to divorce and legal separation; Recovery of maintenance claims; Access to legal aid in cross-border cases.

The initiative is co-funded by the EU.

More information is available here.

Oxford University Press has recently published the secondo edition of European Cross-Border Insolvency Law, by Reinhard Bork and Renato Mangano.

The blurb reads:

The first edition of this textbook was published in 2016, but since then the legal and factual scenario of European cross-border insolvency law has changed dramatically. In particular, three main events have occurred. First of all, the prescriptions of Regulation (EU) 2015/848 (Recast) have become applicable; second, the UK has left the European Union, without this completely reducing the meaning of the regulation for the UK though; and third, the European Union has enacted Directive (EU) 2019/1023 on preventive restructuring and insolvency. Moreover, since 2016, the Court of Justice of the European Union (CJEU) has delivered significant new judgments, albeit regarding the Regulation (EU) 1346/2000; national courts have started applying the prescriptions of Regulation (EU) 2015/848; scholars have produced numerous papers and commentaries on Regulation (EU) 2015/848; and the United Nations Commission on International Trade Law (UNCITRAL) has issued relevant new documents such as the 2018 ‘Model Law on Recognition and Enforcement of Insolvency-Related Judgments’ and the 2019 ‘Model Law on Enterprise Group Insolvency’. The second edition of this textbook maintains its original purpose of providing readers with a user-friendly framework so that they may understand the rationale of Regulation (EU) 2015/848 and be consistent in their application of its prescriptions. However, in order to analyse the impact of the new events and discuss the most recent interpretations of judges and scholars, each chapter has been given new bibliographical references, supplemented with further observations, and, in some cases, even reorganised.

Further information can be found here.

On 25 May 2022, the European Commission published a set of Questions and Answers (Q&As) to clarify the practical implementation of the new sets of Standard Contractual Clauses (SCCs), adopted in June 2021 (Decision 914/2021/EU). Contracts based on the earlier sets of SCCs will no longer be a lawful basis for international data transfers after 27 December 2022 (Q&A No. 22).

As a reminder, SCCs are standardised and pre-approved model data protection clauses that allow controllers and processors to comply with their obligations under EU data protection law. They are based on a triangular relationship, whereby the obligations assumed by the data importer and the data exporter (the parties to the contract) by virtue of their contractual agreement can be enforced by the data subject, acting as a third-party beneficiary.

SCCs are, by definition, incorporated within an international contract between a controller/processor of personal data established in the EU (or subject to the GDPR pursuant to Article 3(2) thereof) and a controller/processor established in a third country and placed beyond the scope of application of the GDPR (cf Q&A No. 24). Owing to their congenital “foreign element”, these contracts must speak the language of private international law (PIL), at least in cases where they are concluded between two commercial entities (see Q&A No. 2 for the potential range of users of the SCCs). In this respect, the Commission’s Q&As bring along welcome clarifications concerning some of most recurrent PIL issues arising out of these clauses, such as those regarding the contents and limits of conflict-of-laws party autonomy and the interplay between these contracts and the legal order (notably, the overriding mandatory rules) of the receiving third country.

While being of certain interest for the private international lawyer, the relationship between local laws (objectively applicable to the data importer) and the SCCs remains extremely complex and it deserves its own blogpost. For this reason, Section A of this blogpost will briefly present the major “PIL innovations” brought along by the 2021 SCCs, focusing solely on choice of law and choice of court clauses. Section B will then point to some unresolved issues that presently find no answer in the Commission’s Q&A (nor elsewhere).

The first and most evident innovation brought along in 2021 consists in an attempt at simplification of the regulatory environment. The three distinct sets of SCCs adopted under Directive 95/46 [Decision 2001/497/EC (SCCs for controller to controller transfers), Decision 2004/915/EC (alternative set of SCCs for controller to controller transfers) and Decision 2010/87/EU (transfer of personal data to processors established in third countries)] have been replaced by two sets of SCCs: one concerning the relationship between controllers and processors to fulfil the requirements in Article 28(3) and (4) of the GDPR; one dealing with SCCs as a tool for the transfer of data outside the EEA. The latter present an innovative modular structure consisting of 4 “modules”, covering four transfer scenarios (cf Q&A Nos 21 and 27): transfer from EU-based Controller to Non EU-based Controller (Module 1); transfer from EU-based Controller to Non EU-based Processor (Module 2); transfer from EU-based Processor to Non EU-based Processor (Module 3); transfer from EU-based Processor to Non EU-based Controller (Module 4).

The parties have to combine “general clauses” (that are applicable regardless of the specific transfer scenario) with the module(s) that applies to their specific situation.

For the purposes of the present blogpost, only the SCCs as a tool for the transfer of data outside the EEA will be considered, as specifically concerns the Clauses dealing with applicable law (A.1) and jurisdiction over remedies (A.2).

The regime governing the choice of the applicable law has undergone significant modifications in the 2021 restyling. To fully grasp these innovations, it is useful to briefly present, at the outset, the previous regime(s) established by the SCCs adopted under Directive 95/46/EC.

Concerning applicable law, the previous sets of SCCs clearly regarded international data transfers as a dynamic process, consisting of three distinct strands.

First, the processing of personal data by the data exporter, including the transfer itself, were governed, up to the moment of the transfer, by the objectively applicable data protection law [clause 4 of the SCCs set out by Decision 2001/497/EC; clause I(a) of the SCCs set out by Decision 2004/915/EC; clause 4 of the SCCs set out by Decision 2010/87/EU]. The “objectively applicable data protection law” is, in this context, the Member State law applicable to the EU-established controller by virtue of EU law itself (ie the law determined pursuant to Article 4 of Directive 95/46/EC until 23 May 2016, and by Article 3 GDPR after this date. This law now includes the GDPR-complementing provisions issued by the Member States based on the opening clauses scattered throughout the GDPR, whose spatial scope of application remains uncertain in current law).

Second, the processing of personal data by the data importer, occurring after the transfer to the third country, was seen as a separate processing operation, placed beyond the scope of the direct application of EU law, and governed by the law chosen by the parties to the SCCs. There was not, however, an unrestricted freedom of choice, which was limited to:

(1) the law of the Member State where the data exporter was established [clause 5 (b) first indent of the SCCs set out by Decision 2001/497/EC; clause II(h)(i) of the SCCs set out by Decision 2004/915/EC];

(2) the provisions of an adequacy decision applicable to the third country where the data importer is established, even if such adequacy decision was not applicable ratione materiae to this importer, provided that such provisions were of a nature which made them applicable in the sector of that transfer [cf. Clause 5 (b) second indent of the SCCs set out by Decision 2001/497/EC; clause II (h)(ii) of the SCCs set out by Decision 2004/915/EC];

(3) a (more or less) extensive set of “mandatory data protection principles”, set out in the annexes of the SCCs [clause 5 (b) indent of the SCCs set out by Decision 2001/497/EC; clause II(h)(iii) of the SCCs set out by Decision 2004/915/EC].

Evidently, it is not possible to qualify the choices made under (2) or (3) as a veritable “choice of governing law”: said provisions or principles would have been applied in conjunction with a national law (objectively) applicable to the data importer under local PIL.

Finally, all three sets of SCCs contained a provision entitled “governing law”, whereby “the Clauses shall be governed by the law of the Member State in which the data exporter is established” (respectively clauses 10, IV and 9). The actual scope of this choice of law clause shall be read in the light of what has been said regarding the first two strands of the data processing operation: vis-à-vis the first step, there is no room for party autonomy and the chosen law cannot directly govern the processing operations carried out by the exporter within the EU, including the transfer. The processing of the transferred data by the importer in the third country must also be excluded from the scope of the chosen “governing law”, otherwise the (different) choice eventually made under (2) or (3) above would have been deprived of practical significance. In essence, the law appointed under the clause entitled “governing law” was therefore limited to the “contractual issues” posed by the SCCs (validity, form, nullity, consequences of the total or partial breach etc).

The 2021 SCCs did not change the approach with respect to the first strand of the data transfer operation, which remains subject to the “objectively applicable law”, ie the GDPR as eventually complemented by the applicable Member State law (see Clause 2).

With respect to the second strand, the new SCCs took away the possibility of choosing between different alternatives as regards the legal regime applicable to the processing operations carried out by the importer in the third state. The obligations of this party vis-à-vis the exporter and the data subjects are now set out in greater detail in the SCCs themselves, without any specific reference to a national governing law. Clause 4 specifies, in any event, that the SCCs shall “be read and interpreted in the light of the provisions of Regulation (EU) 2016/679”.

Finally, there is, just as in the previous sets of SCCs, a clause (Clause 17) titled “Governing law”, which is quite innovative as compared to its predecessors. Consistently with the “modular structure” of the SCCs, this clause presents different wordings depending on the specific transfer operation at stake.

• For transfers from controller to controller (Module 1), the parties are free to choose the law of one of the EU Member States, subject to the sole requirement that such law allows for third-party beneficiary rights. In particular, neither the clause itself nor the Q&A require an objective connection between the chosen Member State and the transfer operation: the laws of the Member States are deemed perfectly fungible in this respect.
• This unrestricted freedom of choice disappears for Modules 2 (transfer from controller to processor) and 3 (transfers between processors): the law of the Member State where the exporter is established applies in principle, unless it does not allow for third parties beneficiary rights. In that case, the parties must choose the law of another Member States that allows for such rights (again, no objective connection is required).
• Module 4 (transfers from processor to controller) deals with the situation of a non EU-established controller that transfers data to a EU-established processor (eg. outsourcing of payroll services to a EU company). This transfer comes under the scope of EU law once the EU-based processor sends the data back to its controller, established outside the EEA. Given that this data was originally placed under a different (and possibly less protective) legal regime, EU law relaxes some of its requirements and the SCCs allow, in this case, for an unrestricted choice of applicable law (cf. Q&A No. 37). It is uncertain as to whether this unrestricted freedom of choice continues to exist if the data transferred by the processor partially originates in the EU: in this case, in fact, the Q&As specify that the relaxation of other requirements no longer applies (cf. Q&A 44). Despite the silence of the Q&As on this specific point, the same solution seems required as concerns the governing law.

A lingering uncertainty concerns the scope of the governing law and, in particular, the question as to whether it extends to directly regulating the processing operations carried out by the data importer in the third country. According to Q&A No. 37, this law “will govern the application of the SCCs”. It is also stressed that Clause 17 shall be read in conjunction with Clause 4, whereby the interpretation and application of the SCCs should conform to, and should not contradict, the GDPR. Nonetheless, throughout the Q&A, the governing law is mentioned with respect to marginal contractual issues such as formal requirements (Q&A No. 6); the formalisation of the parties’ consent within the docking clause (Q&A No 12); the time limits (Q&A No. 37).

With respect to jurisdiction for remedies, the previous sets of SCCs were consistent in that they enabled the data subject who invoked third-party beneficiary rights to sue one or both parties to the contract in the Member State where the data exporter was established, without prejudice to any other substantive or procedural rights he may have had under national or international law.

The new SCCs (Clause 18) are, at once, more detailed and more liberal on this point, insofar as they set out, concerning modules 1, 2 and 3, the general principle whereby “any dispute arising from these Clauses shall be resolved by the courts of an EU Member State”. This provision is particularly important from a systemic point of view, as it makes sure that, irrespective of the law governing the processing activities carried out by the importer, the most important principles of EU data protection law would be enforced in any case as overriding mandatory provisions of the forum.

Clause 18 then requires the parties to expressly designate the court of a Member State: again, the freedom of choice seems unrestricted and no longer dependent on the existence of an objective connection between forum and dispute. Letter (c) of that Clause adds the most important innovation, insofar as it allows the data subject to bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence. This choice of court agreement extends the procedural rights granted to the data subject by Article 79 GDPR, a provision that opens a ground of jurisdiction solely with respect to actions brought against the EU-established data exporter, jurisdiction for any action brought against the third-country data importer being left, under than provision, to national PIL.

It must be stressed on that Q&A No. 33 contains a somewhat confusing reference to national law, as it states, concerning the forum opened by letter (c), that “such actions can be brought before the competent court of the EEA country (as determined by national law) in which you live …”. Nonetheless, the data subject’s possibility of suing the data importer in the Member State of his/her habitual residence should depend not on the (dubious) existence, in national law, of a forum actoris, but rather on the choice of court agreement resulting from the combined reading of letters (c) and (d) of Clause 18 (the latter stating that “[t]he Parties agree to submit themselves to the jurisdiction of such courts”). A totally different question is knowing whether, and under which conditions, the designated court will enforce this choice of court agreement: in case the Brussels I bis Regulation is not deemed applicable to these contracts (see Section B), the answer to this question will indeed depend on the (non uniform and potentially inconsistent) national laws of the Member States.

A derogatory regime is set in place for Module 4, which allows the parties to designate any court, ie even the court(s) of a third country. In this respect, however, Q&A No. 33 specifies that this shall not affect the procedural rights conferred to the data subject vis-à-vis the data exporter under Article 79 GDPR

Despite the useful clarifications brought along by the Commission Q&As, concerning notably the room for manoeuvre given to the parties to the SCCs regarding choice of law and choice of court agreements, there still exists some major open questions regarding the practical operation of these PIL devices, that are liable to impinge on the effectiveness of SCCs as a tool for the effective protection of European personal data in case of extra-EEA transfers.

It must be remembered that the main purpose of the SCCs is to “provide a comprehensive data protection framework that has been developed to ensure continuity of protection in case of data transfers to data importers that are not subject to the GDPR” (Q&A No. 24). Within this framework, the third-party beneficiary rights granted to the data subject play a pivotal role, as evidenced by the importance attached to them during the choice of the governing law (supra, Section A.1). Third-party beneficiary rights are a key-element of the so-called “private enforcement” of EU data protection law, insofar as they allow the data subject to directly invoke the protection vested by the GDPR and the SCCs both against the importer and the exporter, and to do so before a court in the EU.

Intuitively, the effective ability of the data subject to ground the jurisdiction of such courts and to invoke the application of said law will depend on the procedural treatment of these choice-of-law and choice-of-court agreements in the seised/designated courts. In this respect, the applicability of both the Brussels Ibis and the Rome I Regulations to the SCCs remains controversial, and finds no clarification in the Commission’s Q&As. Conversely, both the SCCs and the Q&As seem to simply assume that these choice-of-law and choice-of-court agreements will be enforced by any court in the EU.

The Brussels I bis and the Rome I Regulations (as well as the Hague Convention on Choice of Court Agreements) apply in “civil and commercial matters”. A recent and exhaustive summary of the (uniform) meaning of this expression in EU PIL can be found in the Opinion of AG Szpunar and the judgment rendered by the ECJ in Rina. Regard should be had, in particular, to the need of ensuring that the Regulations are broad in scope (§ 31 of the judgment in Rina) and to the “the elements which characterise the nature of the legal relationships between the parties to the dispute or the subject matter thereof” (§ 32). This assessment aims at excluding that one of the parties (or both) is acting in the exercise of “public” powers, ie “powers falling outside the scope of the ordinary legal rules applicable to relationships between private individuals” (§ 34).

Against this backdrop, it is worth stressing that the SCCs set up by the Commission can be used by the parties (which, in most cases, will be private commercial operators) without the prior approval by a public authority, the competent DPA. The triangular relationship between the data importer, the data exporter and the data subject heavily relies of private contract law. If it is true that these are all factors that may vouch for the inclusion of SCCs within the scope of “civil and commercial matters”, the fact remains that the Commission’s Q&As stress, on many occasions, the specific “nature” of the SCCs and the ensuing limits placed on the parties’ substantive party autonomy: “if the parties change the text of the SCCs themselves (beyond the adaptations mentioned below) they cannot rely on the legal certainty offered by an EU act” (Q&A No. 7, emphasis added). It will likely be for the ECJ to determine whether the specific nature of “EU act” attached to the SCCs and the limitations it entails for ordinary contract law are enough to exclude a characterisation as “civil and commercial matters” for the purposes of EU PIL.

If the Brussels 1bis Regulation was deemed applicable ratione materiae, it would ensure the effectiveness of the above-mentioned choice-of-court agreements throughout the EU. The fact that said agreements are invoked by a third-party beneficiary should not pose any problem in the light of the Gerling case law. Clearly, the Brussels Ibis Regulation would not be applicable to choice of court agreements concluded under Module 4, in cases where jurisdiction is conferred upon a third-state court.

The applicability of the Rome I Regulation to the SCCs elicits more substantial doubts.

To begin with, it is uncertain as to whether the choice of law made by the parties under current Clause 17 can be deemed “free” in the sense of Article 3 thereof. Setting aside the non-problematic case of the (unrestricted) freedom of choice available for Module 4, Module 2 and 3 confer very limited leeway: the parties must choose the law of the Member State where the data exporter is established, deviations being admissible solely if this law does not allow for third-party beneficiary rights (it must be added that the unrestricted freedom of choice which follows from this circumstance is at odds with the limitation set by the general rule: a “cascade” list of options or, even better, a rule turned around a “close(st?) connection” with another Member State would have been a more logical complement to the general rule).

As concerns the requirement that the choice of law made under Article 3 of the Rome I Regulation shall be “free”, it is worth stressing that both the Opinion of AG Campos Sánchez-Bordona and the judgment of the Court in Gruber Logistics started from the assumption that a “choice” of law which is actually imposed by law would be incompatible with this provision (respectively, §§ 97-101 of the Opinion and § 39 of the judgment). In the same case, the Court clarified that regulation does not prohibit the use of standard clauses which are pre-formulated by one of the parties (or, it must be assumed, by a third party). In such a case, freedom of choice, within the meaning of Article 3, can be exercised by consenting to such a clause and is not called into question solely because that choice is made on the basis of a pre-formulated clause.

The compatibility of Clause 17 of the SCCs with the Rome I Regulation teeters along the fine line which separates an ex lege imposition of an applicable law and the sheer pre-drafting by the Commission. It must be stressed, in this respect, that SCCs are established through an Implementing Decision of the Commission, but they can be used by the parties on a voluntary basis to demonstrate compliance with data protection requirements (Q&A No. 1). Nonetheless, if the parties choose to resort to these standard clauses, they are not free to amend the wording of Clause 17, besides the exercise of the freedom of choice (if any) explicitly allowed under that provision. If this provision is amended, the parties need to submit their contract to the DPA for prior approval, to be able to proceed with the transfer. It is highly doubtful that a DPA would approve a contract containing, for example, a choice of third-country law for the transfer scenarios corresponding to Modules 1, 2 and 3. In fact, in the Schrems II, the ECJ attached great importance to the safeguards following from the application of the law of the Member State where the exporter is established, when assessing if the protection granted by the former SCCs was “essentially equivalent” to that guaranteed within the Union (§ 138).

More fundamentally, it must be determined whether the Rome I Regulation is compatible with the “geographical” restriction of the parties’ freedom of choosing the applicable law. This problem is shared by Modules 1, 2 and 3: the chosen law shall be, in all of these cases, the law of a Member State, whereas a choice of third-country law would be totally admissible under the combined reading of Articles 2 and 3 of the Rome I Regulation. From the standpoint of the general theory of PIL, behind this asymmetry lie irreconcilable philosophical stances as concerns the international interchangeability of (private) laws. The Rome I Regulation starts from the assumption of a perfect interchangeability between all the (private) laws of this world, irrespective of their specific contents, and subject to a sheer ex post control through the gateway of the public policy exception. Conversely, the Commission’s SCCs (and probably the GDPR itself) adopt a more prudential approach based on an ex ante pre-selection of laws (those of the Member States of the EU) which, because of their contents, can be deemed “essentially equivalent” in terms of the protection granted to personal data. Again, this is a thorny issue that the ECJ might likely have to resolve in the near future, considering that, according to the Commission, SCCs are, at present, “the most popular tool” for transferring personal data outside the EEA in accordance with the GDPR (Q&A No. 3).

The Academy of European Law (ERA) will held its Annual Conference on European Family Law on 22-23 September 2022 .

The conference will deal with the new Brussels II Regulation, which is applicable from 1 August 2022, hearing of the child, parentage, surrogacy and double motherhood, as well as recent CJEU case law on international family law.

Speakers include Véronique Chauveau, Dagmar Coester-Waltjen, Gilles Cuniberti, Joanna Guttzeit, Frank Klinkhammer, Carlos de Melo Marinho, James Netto, Marta Requejo Isidro, Caroline Rupp, Nadia Rusinova and Andrea Schulz.

For further information, see here.

On 13 September 2022, the French Société de législation comparée will hold a conference on ascertainment of foreign law under the French Draft Code of Private International Law. The full programme of the conference can be found here.

The speakers will discuss the provisions of the draft code on ex officio application and proof of foreign law, which were presented on this blog here.

The new provisions are an attempt to reform proof of foreign law before French courts by seeking inspiration from foreign models, in particular models which involve academic institutions to report to the court on the content of foreign law and models which allow cross examination of expert witnesses on foreign law.

The conference could have been a great opportunity to confront the new provisions with foreign models which do rely on academic institutions or cross examine witnesses in court, but most unfortunately virtually all speakers are French academics and practitioners (the only exception being the director of the Swiss institute of comparative law).

The conference will take place 60 boulevard de la Tour-Maubourg, 75007 Paris, from 5 until 7:30 pm. Attendance is free, but registration is required at emmanuelle.bouvier@legiscompare.com.

In spite of the vacation period, several judgments have been handed down on 1 August 2022.

One of them concerns the interpretation of PIL instruments, namely Regulation (EC) No 2201/2003 and Regulation (EC) No 4/2009. The request from the Audiencia Provincial de de Barcelona leading to Case C-501/20, MPA (Habitual residence – Third State), on the hearing of which I reported here, as well as here as regards AG Spuznar’s opinion of last February, has been decided as follows:

1. Article 3(1)(a) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, and Article 3(a) and (b) of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations must be interpreted as meaning that the status of the spouses concerned as members of the contract staff of the European Union, working in the latter’s delegation to a third country and in respect of whom it is claimed that they enjoy diplomatic status in that third State, is not capable of constituting a decisive factor for the purposes of determining habitual residence, within the meaning of those provisions.

2. Article 8(1) of Regulation No 2201/2003 must be interpreted as meaning that, for the purposes of determining a child’s habitual residence, the connecting factor of the mother’s nationality and her residence, prior to the marriage, in the Member State of the court seised of an application relating to parental responsibility is irrelevant, whereas the fact that the minor children were born in that Member State and hold the nationality of that Member State is insufficient.

3. Where no court of a Member State has jurisdiction to rule on an application for the dissolution of matrimonial ties pursuant to Articles 3 to 5 of Regulation No 2201/2003, Article 7 of that regulation, read in conjunction with Article 6 thereof, must be interpreted as meaning that the fact that the respondent in the main proceedings is a national of a Member State other than that of the court seised prevents the application of the clause relating to residual jurisdiction laid down in Article 7 to establish the jurisdiction of that court without, however, preventing the courts of the Member State of which the respondent is a national from having jurisdiction to hear such an application pursuant to the latter Member State’s national rules on jurisdiction.

Where no court of a Member State has jurisdiction to rule on an application relating to parental responsibility pursuant to Articles 8 to 13 of Regulation No 2201/2003, Article 14 of that regulation must be interpreted as meaning that the fact that the respondent in the main proceedings is a national of a Member State other than that of the court seised does not preclude the application of the clause relating to residual jurisdiction laid down in Article 14 of that regulation.

4. Article 7 of Regulation No 4/2009 must be interpreted as meaning that:

–        where the habitual residence of all the parties to the dispute in matters relating to maintenance obligations is not in a Member State, jurisdiction founded, on an exceptional basis, on the forum necessitatis referred to in Article 7 may be established if no court of a Member State has jurisdiction under Articles 3 to 6 of that regulation, if the proceedings cannot reasonably be brought or conducted in the third State with which the dispute is closely connected, or proves to be impossible, and there is a sufficient connection between the dispute and the court seised;

–        in order to find, on an exceptional basis, that proceedings cannot reasonably be brought or conducted in a third State, it is important that, following an analysis of the evidence put forward in each individual case, access to justice in that third State is, in law or in fact, hindered, in particular by the application of procedural conditions that are discriminatory or contrary to the fundamental guarantees of a fair trial, without there being any requirement that the party relying on Article 7 demonstrate that he or she has been unsuccessful in bringing or has attempted to bring the proceedings in question before the courts of the third State concerned; and

–        in order to consider that a dispute must have a sufficient connection with the Member State of the court seised, it is possible to rely on the nationality of one of the parties.

So far, the decision is available in seven official languages of the EU, although some versions are still labeled as provisional.

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

Jürgen Basedow, Ulrich Drobnig *25.11.1928 †2.3.2022

Daniel Gruenbaum, From Statehood to Effectiveness: The Law of Unrecognised States in Private International Law

One of the functions of private international law (PIL) is to determine the law that governs a legal relationship. Yet what occurs when the rules designated by PIL emanate from an entity that has not been recognised as a state by the government of the forum? This article aims firstly to identify and describe the major prevailing approaches to applying the law of unrecognised states in contemporary PIL practice. It then critically appraises the principal reasons justifying the application of foreign law despite it emanating from unrecognised states. The article finally argues that applying the law of unrecognised states reveals the potential for PIL to grapple with non-state rules and with interactions of normative orders of all different sorts, regardless of their state pedigree.

Matthias Fervers, Die Drittwirkungen der Forderungsabtretung im Internationalen Privatrecht (Third-Party Effects of Assignments of Claims in Private International Law)

Although Art. 14 Rome I Regulation addresses the relationship between the assignor and the assignee as well as the relationship between the assignee and the debtor, there is still no provision as to the third-party effects of assignments. The question of what law should govern these third-party effects is, correspondingly, a subject of considerable discussion. While some propose that the law governing the assigned claim should be applicable, others suggest that third-party effects should be governed by the law that applies to the contract between the assignor and the assignee; the current prevailing opinion assumes that third-party effects should be governed by the law of the habitual residence of the assignor. This article demonstrates that a limited possibility for a choice of law for assignor and assignee is the most appropriate solution.

Christoph Wendelstein, Der Handel von Kryptowährungen aus der Perspektive des europäischen Internationalen Privatrechts (The Trading of Cryptocurrencies from the Perspective of European Private International Law)

The rules in the Rome I Regulation are used to ascertain the applicable law in cases of trades in cryptocurrencies. However, these are only partially appropriate for a predictable determination of the applicable law. While in B2B and C2C cases of “stationary” trading of cryptocurrencies via Crypto-ATMs the law at the location of the ATM still provides a predictable legal system, this is not the case for online trading with crypto-brokers or via crypto exchanges. Especially in cases of online trading via crypto exchanges, a further complication results from the fact that such platforms allow their users to trade legally under a pseudonym – in line with the historical notion of cryptocurrencies. This may complicate or even prevent the determination of the applicable law. The resulting “vacuum” is to some extent filled by the technical design of the transaction through the use of smart contracts. However, this does not dispense with the question of applicable law. The article examines these and other questions and points out possible solutions de lege lata.

The table of contents in German is available here.

Professor Maarit Jänterä-Jareborg has retired after having been professor in private international law at Uppsala University in Sweden for 23 years. To pay her tribute, the anthology Festskrift till Maarit Jänterä-Jareborg (“Essays in Honour of Maarit Jänterä-Jareborg”) has been edited by Margareta Brattström, Marie Linton, Mosa Sayed and Anna Singer.

The anthology contains 22 contributions as well as a bibliography of Jänterä-Jareborg’s extensive writings over the last four decades. Of the essays in the anthology, eleven are written in English, six in Swedish, four in Norwegian and one in French.

Most of the essays deal with private international law issues. Michael Bogdan and Giuditta Cordero-Moss have both written contributions on different aspects of recognition of foreign marriages. Christina Gonzáles Beilfluss and Nigel Lowe have written essays dealing with the new Brussels II Regulation (2019/1111). In addition to the four mentioned contributions, the book contains several more essays dealing with private international law issues.

A sample read including the full table of contents and the Swedish preface written by the editors can be accessed and read here.

The new issue of the International & Comparative Law Quarterly (Volume 71, Issue 3) is out. As usually, some of articles concern directly or indirectly questions of private international law. A selection of abstracts is provided below.

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

Richard Garnett, Determining the appropriate forum by the applicable law, pp. 589-626

The concepts of jurisdiction and applicable law have been traditionally regarded as separate inquiries in private international law: a court only considers the applicable law once it has decided to adjudicate a matter. While such an approach still generally applies in civil law jurisdictions, in common law countries the concepts are increasingly intertwined. This article examines the relationship between jurisdiction and applicable law in two key areas: applications to stay proceedings on the ground of forum non conveniens and to enforce foreign exclusive jurisdiction agreements. While courts generally apply the principle that jurisdiction and applicable law should coincide where possible, there are circumstances where a court may retain jurisdiction despite a foreign governing law or may ‘trust’ a foreign tribunal to apply the law of the forum. This article seeks to establish a framework by which courts may assess the role of the applicable law in forum determinations.

Ardavan Arzandeh, Brownlie II and the Service-Out Jurisdiction under English Law, pp. 727-741.

FS Cairo (Nile Plaza) LLC v Brownlie (Brownlie II) is arguably the United Kingdom’s highest appellate court’s most significant decision this century on a private international law question. The judgment has ended nearly two decades of debate about the meaning of ‘damage’ sustained in England for the purpose of paragraph 3.1(9)(a) of Practice Direction 6B of the Civil Procedure Rules. In a four-to-one majority ruling, the Supreme Court decided that the provision was to be interpreted widely, such that, in a personal injury claim, any significant harm of any kind suffered by a claimant in England could provide a basis for the service of proceedings on a foreign-based defendant. The article is critical of the majority’s decision, as it is liable to create both immediate and long-term problems in the context of the service-out jurisdiction in England. It also examines the court’s pronouncements on the other question before it concerning proof of foreign law.

This post was written by Paul Lorenz Eichmüller, Vienna.

After the Austrian Supreme Court had filed a reference for a preliminary ruling to the CJEU (see here) in a matter concerning the definition of “judgments” in the Brussels I bis Regulation’s provisions on recognition and enforcement, the CJEU rendered its decision in its much discussed case of H Limited. Now that the Court of Justice has spoken, the matter was back in the Austrian Supreme Court – which has just rendered its final decision.

After Jordanian courts had ordered the borrower J (= Jabra Sharbain) to reimburse a loan to H (= HSBC Bank Middle East) Limited, the latter presented the Jordanian judgment to the English High Court, which issued a so-called merger decision. This type of judgment is not just a mere recognition but a new decision on the merits, albeit based on the foreign judgment’s payment order. It therefore contains a separate order against the defendant to pay the owed amount of money.

HSBC then tried to enforce the English decision in Austria under the Brussels I bis Regulation. Sharbain argued that a judgment that is based on a foreign decision should not be enforced according to the rules of Chapter III of the Regulation in another EU member state in order not to circumvent the Member States’ rules on recognition and enforcement of third-country judgments. However, the courts of first and second instance allowed for enforcement, arguing that the English merger decision was issued on the basis of adversarial proceedings where both parties could supposedly defend their side and should therefore qualify as a judgment in the sense of Article 36 et seq Brussels I bis Regulation. When the matter reached the Austrian Supreme Court, it sent a reference for a preliminary ruling to Luxembourg.

In its judgment, the CJEU shared the opinion of the Austrian courts: whether the basis for the judgment is a decision of third country is irrelevant for the purposes of the recognition and enforcement under the Brussels Regime. While the other member states in principle have to recognize such a merger decision, the CJEU specifically pointed to the fact that the ordre public could be used to resist enforcement (CJEU, C-568/20, H Limited para 41–46). It was left up to the deciding national court to reach a final decision on this matter.

After the CJEU explicitly left the question of the ordre public open, the Austrian Supreme Court was tasked with determining whether the English merger decision was contrary to Austrian public policy. Sharbain argued that the recognition and enforcement of merger decisions in general would infringe public policy, as there is no possibility for a review on the merits of the third-country decision. This lack of defence opportunities would trigger the public policy exception in Art 45(1)(a) Brussels Ibis Regulation. However, the Austrian Supreme Court dismissed this argument and stated that general considerations could not be regarded when assessing the ordre public. Only the proceedings in question could give rise to a public policy infringement – and in the case at hand, the court of first instance had found that the English High Court had actually given Sharbain the opportunity to oppose the claims from the Jordanian judgment. Thus, public policy could not be invoked and the English merger decision can be enforced in Austria.

Evaluation

Although the CJEU has left the back door of the ordre public open for the member states, it is good to see that, at least in Austria, it will only be used cautiously – not because double exequatur or the way around it with merger decisions is something to aspire to, but rather due to reasons of legal certainty and uniformity. If Member States were to invoke their public policy too loosely, the decision of the CJEU would mean a step backwards rather than forwards in the uniform recognition and enforcement of judgments in the EU. Ordre public is not and should not be a reason for generally denying the recognition and enforcement of certain types of judgments instead of looking at the specific circumstances and the final outcomes of the individual case.

While the Austrian Supreme Court was bound by the findings of the court of first instance regarding the extent to which the specific defendant had an adequate possibility to make his case and thus could not raise this question again, it is doubtful whether this was actually the case: the English High court explicitly stated that “A foreign judgment for a definite sum, which is final and conclusive on the merits, is enforceable by claim, and is unimpeachable (as to the matters adjudicated on) for error of law or fact” (JSC VTB Bank v Skurikhin & Ors [2014] EWHC 271 (Comm) at para 18, referred to in Arab Jordan Investment Bank Plc & Anor v Sharbain [2019] EWHC 860 (Comm) at para 14). There are only four exceptions to this rule, namely: 1) fraud, 2) public policy, 3) natural justice and 4) penalties. Whether that is indeed enough for a proper defence is not quite as clear. Thus, one must still wait for further cases to determine as to what extent a party must be given the opportunity to oppose the third-country judgment.

The EAPIL blog won’t stop running during the Summer, but new posts will come out at a slower pace in the coming weeks.

Business as usual will resume at the beginning of September.

Meanwhile, guest posts are always welcome. Those wishing to submit a piece, are invited to get in touch with the managing editor, Pietro Franzina, at blog@eapil.org.

Enjoy the Summer break!

The Permanent Bureau is looking for one intern for the period September to December 2022 or September 2022 to February 2023 to work on the 1993 Adoption Convention and the Parentage / Surrogacy Project. Applications will be accepted until 18:00 hours (CEST), Friday 29 July 2022.

Prospective applicants should complete an online application form and submit the supporting documentation described here.

In a judgment of 16 June 2022 (case T 3379-21) the Swedish Supreme Court held that the United Nation’s 1956 Convention on the Contract for the International Carriage of Goods by Road (CMR) takes precedence over the Rome I Regulation on the law applicable to contractual obligations and that the Convention shall be applied as implemented in the forum State.

CMR contains uniform substantive rules for transport contracts and is applied by all EU member states as well as several other states around the world. Article 1 of the CMR states that the Convention is applicable to international road transport agreements when either the state from where the goods is transported or the state that is designated for delivery is a CMR state. In practice, the CMR applies to a very large share of road transport contracts in the EU. Nonetheless, it is not exactly clear what relation the CMR and the Rome I Regulation have with each other. Shall the CMR be applied “directly” without the application of the Rome I Regulation or must first the law applicable according to the Rome I Regulation be determined to see e.g. with what potential national reservations the CMR shall be applied?

This issue arose for the Swedish Supreme Court in a dispute over a carrier’s liability for a transport of cigarettes that were stolen during a transit storage. As the theft triggered Swedish excise duty on tobacco for the sending party, the substantive issue was whether the excise duty expenses should be reimbursed by the carrier. It is here noteworthy that out of the 154.565 euros that the dispute was about, 135 325 euros were compensation for excise duty and 19.240 euros were compensation for the loss of the goods.

The extent of the carrier’s liability is regulated in Article 23 of the CMR. According to a compilation of international case law made in the Swedish court of appeal’s judgment, this carrier liability has been interpreted differently in contracting states. Whereas e.g. the UK and Denmark have held carriers to compensate also for excise duties, Germany and the Netherlands have applied a more restrictive approach only allowing for compensation that directly relates to the transport (not including tax levied after theft). In this perspective, an application of the CMR under Dutch law would most probably follow the restrictive approach applied by the Dutch courts. If the CMR was to be applied under Swedish law, the liability issue was more unclear.

In its judgment, the Swedish Supreme Court noted that it normally is the Rome I Regulation that determines the law applicable for contractual disputes in Swedish courts. For the relation between the Rome I Regulation and international conventions, Article 25(1) of the Regulation contains a special conflict rule that gives precedence for multilateral conventions that were already in force when the regulation was adopted under the condition that the convention “lay down conflict-of-law rules relating to contractual obligations”. As the CMR is a multilateral convention that existed when the Rome I Regulation entered into force, a question for the Swedish Supreme Court was whether it also contained a conflict of law rule relating to contractual obligations.

Article 1(1) of the CMR contains a rule on the scope of application for the convention. This rule states that the convention shall be applied to

every contract for the carriage of goods by road in vehicles for reward, when the place of taking over of the goods and the place designated for delivery, as specified in the contract, are situated in two different countries, of which at least one is a contracting country, irrespective of the place of residence and the nationality of the parties.

With references to the Swedish preparatory works from the 1960s and 1970s relating to the Swedish accession to the CMR, the Supreme Court noted that the Swedish legislator had understood the named article as a conflict-of-law rule. The Supreme Court concurred to the legislator’s understanding and added that Article 1 of the CMR can be seen as a unilateral conflict-of-law rule. The fact that not a single member state notified the CMR as such a convention that could have precedence under Article 25 of the Rome I Regulation back in 2009 when the Regulation was to enter into force, was not mentioned by the court.

Regardless of whether unilateral conflict-of-law rules take precedence according to Article 25, the Supreme Court referred to the CJEU’s judgment in TNT Express Nederland to interpret the meaning of Article 25 in the Rome I Regulation.

In TNT Express Nederland, the CJEU ruled on Article 71 of the old Brussels I Regulation (44/2001), which concerns that regulation’s relationship with international conventions. The CJEU held then that the lis pendens rules in the CMR could take precedence over the Brussels I Regulation on the ground that the lis pendens rules of the Convention

are highly predictable, facilitate the sound administration of justice and enable the risk of concurrent proceedings to be minimized and that they ensure, under conditions at least as favourable as those provided for by the regulation, the free movement of judgments in civil and commercial matters and mutual trust in the administration of justice in the European Union.

Clearly inspired by the TNT Express Nederland judgment, the Swedish Supreme Court held that also the conflict-of-law rules in a convention shall have precedence over the Rome I Regulation if that leads to a high degree of predictability, facilitate the sound administration of justice and ascertains the EU goals on free movement and mutual trust between the judicial authorities under conditions at least as favourable as those provided for by the Rome I Regulation.

With this, in my opinion, somewhat bold analogy from the TNT Express Nederland case, the Supreme Court concluded that CMR takes precedence over the Rome I Regulation and that CMR shall be applied as it has been implemented according to lex fori. In other words, the Swedish Supreme Court applied the CMR without determining the law applicable according to the Rome I Regulation.

In substance, the choice-of-law matter did not affect the liability issue. Just like what was reported to be the case in the Netherlands, also the Swedish Supreme Court embraced the restrictive approach when interpreting Article 23 of the CMR. Therefore, the carrier was not held liable to pay the expenses for the excise duty on tobacco. Even if that conclusion might have been the same under Dutch law, this conflict of public and private international law raises issues that are not just theoretically interesting.

In the Swedish Supreme Court’s case the matter was clearly at heart of the substantive rules of the CMR. However, conventions tend often not to be so thorough that there are no gaps that need to be filled out. Also states ratify conventions with different reservations. In my opinion, these aspects call for at least a subsidiary application of the private international choice-of-law rules.

To me, it is unfortunate that the CJEU was not given a chance to have a say on the interplay between conventions and the Rome I Regulation. A clarifying judgment on this matter would improve predictability for international civil and commercial matters in the EU.

The Law Faculty at University of Antwerp is offering a full-time doctoral scholarship in EU Private International Law with a focus on EU citizenship and its interaction with conflict of laws.

The chosen candidate is expected to:

• work actively on the preparation and defence of a PhD thesis, written in English or in Dutch, on the topic of “Continuity of civil status for mobile citizens in a diverse European Union”. Within this framework, the candidate is expected to examine how EU law can ensure Union citizens’ status continuity while ensuring a right balance between freedom of movement, fundamental rights, and respect for the competences and national identities of the Member States. The innovative research will have to entail a full and systematically integrated analysis of both Union citizens’ rights and EU Member States’ rights and competences, and take into account the characteristics of the EU’s so-called “area of freedom, security and justice”. The research is expected to stretch beyond the analysis of the current EU Treaties and case law in order to examine the adoption of new legislation and/or possible amendments to the EU Treaties.
• publish scientific articles related to the topic of the PhD project.
• carry out a limited number of teaching and research support tasks for the University of Antwerp’s Faculty of Law and its research group Government and Law.

The research activities will be supervised by dr. Johan Meeusen

Profile requirements for the candidates:

• holding a Master’s degree in Law. Students in the final year of their degree can also apply. This is a condition of admissibility.
• outstanding academic results.
• demonstrating excellent legal research and writing skills.
• having a particular interest, and having obtained excellent study results in European Union law and Private International Law.
• acting in accordance with the University of Antwerp’s Mission statement
• research qualities that are in line with the faculty and university research policies.
• showing attention to quality, integrity, creativity, and cooperation.
• excellent language skills that permit high-level academic research in EU law and Private International Law. Apart from active and passive knowledge of English, the candidate has to have at least a passive knowledge of French and, preferably, of German as well as of other languages.

The Faculty of Law is offering:

• a doctoral scholarship for a period of two years. Following a positive evaluation, the scholarship can be renewed once for another two-year period.
• starting date is 1 October 2022 or as soon as possible thereafter.
• the monthly scholarship amount is calculated according to the scholarship amounts for doctoral scholarship holders on the pay scales for Contract Research Staff (Dutch: Bijzonder Academisch Personeel, BAP).
• ecocheques, Internet-connectivity allowance and a bicycle allowance or a full reimbursement of public transport costs for commuting.
• to work at the UAntwerp City Campus, in a dynamic and stimulating working environment, in the research group Government and Law.

How to apply:

• You can apply for this vacancy through the University of Antwerp’s online job application platform up to and including 8 August 2022 (CET). Applications submitted after this deadline or not containing all requested documents, will be declared inadmissible. Together with the complete the online application form you will have to include the following documents, in English:
  • motivation letter;
  • CV;
  • a detailed account of your study results;
  • a document of maximum 2 pages explaining the research approach and methodology that you consider the most appropriate for the successful and timely completion of this research project.

A preselection will be made from amongst the submitted applications. The preselected candidates will be informed of their selection at the latest on Thursday 25 August 2022 . The interviews of preselected candidates will take place, on campus or online, on Tuesday 30 August 2022.

For any questions about the online application form, check the frequently asked questions or send an email to jobs@uantwerpen.be. If you have any questions about the job itself, please contact dr. Johan Meeusen.

More information on the academic environment and scientific research at the University of Antwerp is available here. More information about working at the University of Antwerp is available here.

The yearly seminar on European and Comparative law  organized by the Centre of European Legal Studies (CELS) in Urbino (Italy) will take place this summer from 22 August to 3 September 2022.

The Seminar aims to develop knowledge of European and International law as well as to facilitate exchanges between lawyers, officials of the European Communities, professors, judges and advanced students.

The list of speakers for 2022 includes Marie-Elodie Ancel (University of Paris-Panthéon-Assas), Robert Bray (former Head of Unit of the Secretariat of the Legal Affairs Committee of the European Parliament), Georges Cavalier (University of Lyon 3), Ilaria Pretelli (Swiss Institute of Comparative Law), Tuto Rossi (University of Fribourg), Martin Svatos (Charles University), Alessandro Bondi (University of Urbino Carlo Bo), Fabrizio Marrella (University of Venezia Ca’ Foscari), Rosa Maria Emilia Palavera (University of Urbino Carlo Bo), Jens Karsten (Lawyer), Edoardo Alberto Rossi (University of Urbino Carlo Bo), Helmut Satzger (Ludwig-Maximilians-University Munich).

The programme is available here and enrollment information here.

This is the most important take of the judgment delivered on 7 July 2022 in LKW WALTER Internationale Transportorganisation AG (Case C-7/21) (see already the report of K. Pacula here).

Under Article 12 of the Service Regulation Recast (formerly Article 8 of Regulation 1393/2007), the addressee of a document has a right to refuse to accept the document on the ground that it was not translated in a language that he understands or an official language of the place of service. The time limit for so doing is now 2 weeks. The CJEU rules that national time limits may not run during this time limit (which was only one week under former Art. 8), and must therefore begin to run after the expiry of the time limit in the Service Regulation.

The case was concerned with proceedings in Slovenia involving an Austrian company. A judgment rendered by the Slovenian court was served on the Austrian party (for more details, see the reports of K. Pacula). Under Slovenian law, a time limit to object to the judgment starts running from the date of service (as under the law of many Member States).

As a result, two time limits started to run at the same time: one to exercise the right of refusal under the Service Regulation, and another to object to the judgment. In addition, the time limits, which were the same, and thus overlapped, were short: 8 days. But it does not seem that the shortness of the time limit mattered for the CJEU. It ruled:

41 The effectiveness of the right to refuse to accept a document to be served requires (…) that [the addressee] has the full one-week period to assess whether it is appropriate to accept or refuse to accept service of the document and, in the event of refusal, to return it.

So, addressees should be able to enjoy fully the period afforded by the Service Regulation (which is now 2 weeks) to determine whether to refuse the document. As a result:

46 (…) the starting point of the period within which a right of appeal is to be exercised in accordance with the legislation of the Member State of the authority which issued the document (…) in principle must begin to run after the expiry of the one-week period referred to in Article 8(1) of the Charter (sic) [Regulation].

The proposition that you need the full time period to assess whether the document is written in a language that you understand is a bit surprising. As everybody knows, it takes anybody a few minutes to realise that.

What might take much longer is to seek legal advice to know about your rights with respect to the document. The right of refusal, however, is explained on a form which must be served to the addressee with the relevant document(s).

Interestingly, this case was actually an action against the Austrian lawyers of the applicant. They had received the documents from the client indicating when they had been received. It does not seem that they advised the client to refuse to accept service. They filed an objection on behalf of the client, but missed the Slovenian deadline by a few days. As a result, the client sued them for professional negligence. It could have been that the client would have trusted his lawyers to understand the document, and that the full time period would indeed have been useful, but this was not the case here. Neither the client, nor the lawyers seem to have an issue with Slovenian. In any case, the issue is not whether the lawyers of the addressee understand the relevant language, but the addressee itself.

Another issue with the effect given by the CJEU to the time period in the Service Regulation is that it will benefit to addressees who perfectly understand the relevant language, or to addressees served with documents written in an official language of the place where they live, and who thus may not refuse to accept service. It seems that it is exactly what happened in this case.

The CJEU explains, however, that it did not want to introduce a discrimination between addressees who do not need the time period, and who could thus immediately dedicate their time to the assessment of their rights under national law (i.e. whether to appeal) and others, who need first to assess their rights under the Service Regulation. As a consequence, the CJEU explains that it fears that it would give an incentive to addressees based in other Member States to refuse to accept service, and decides to eliminate the problem by putting all addressees in the same situation.

One can only applaud the court for taking into consideration the potential effect of its judgment on the behaviour of parties, and assess whether such behaviour would be desirable.

This being said, it is unclear whether the Service Regulation really offers avenues for strategic behaviour and thus incentives for parties to use their right of refusal strategically. If a foreign based addressee assesses that it understands the relevant language, that addressee may not refuse to accept the document. If it does so, it will generate useless legal debates on the issue, but will ultimately lose. It will be found that service was proper since the start, and the refusal will have no impact.

It might be that, under certain circumstances, the demonstration of whether the addressee understands the relevant language will be difficult, and that it could not be assessed with certainty whether s/he is entitled to refuse. Maybe then the addressee could decide, after carefully weighing his options (and thus using fully the time period under the Regulation), not to refuse and to focus directly on the merits of the case.

On 23 June 2022, the Lisbon Guidelines on Privacy, drawn up by the ILA Committee on the Protection of Privacy in Private International and Procedural Law, have been formally endorsed by the International Law Association at the 80th ILA Biennial Conference, hosted in Lisbon (Portugal).

The Committee was established further to a proposal by Prof. Dr. Dres h.c. Burkhard Hess to create a forum on the protection of privacy in the context of private international and procedural law. It comprised experts from Austria, Belgium, Brazil, France, Germany, Italy, Japan, Luxembourg, Portugal, Spain, the United Kingdom, and the United States of America. Prof. Hess chaired the Committee; Prof. Jan von Hein and Dr. Cristina M. Mariottini were the co-rapporteurs. The documents of the meetings held by the Committee in the past years, and of the Guidelines and commentary as presented in Lisbon, are publicly available here. A related publication on ssrn and in the MPI Luxembourg’s Working Paper Series will follow.

The creation of the Committee was triggered by a simple factual evidence, which is described in the Conception Paper. By reason of the rapid computerisation and automatisation in the handling of personal information, traditional expectations for the protection of one’s privacy have undergone major changes. The dynamics and the dimension of the potential intrusions into one’s personal life have been significantly transformed, bringing forth new challenges for legislators, courts and practitioners. Questions arise concerning jurisdiction, applicable law, recognition and enforcement of judgments, but also legal standing, protection of vulnerable parties, and remedies, among others. Intuitively, it was felt that simply adapting the existing general rules on torts and contracts would not provide satisfactory answers to the new setting. Hence, exploring private international and procedural law issues was considered of utmost significance, with a view to (i) providing a set of principles/framework for regulating privacy in private international and procedural law, and (ii) developing concepts that could constitute a point of reference for legislators, the judiciary and legal counsels.

The document submitted for endorsement in Lisbon is the outcome of several meetings  of experts at ILA conferences (Johannesburg and Sydney) and in-between (Luxembourg), and of many on-line exchanges. It consists of two parts. The introductory one describes the scope and objectives of the Committee and the methodology followed. Then, the Guidelines themselves follow in the form of a Preamble and of 13 so-called articles, each accompanied by a thorough explanatory comment with references to pertinent legal acts and case law of different jurisdictions. The provisions are distributed under the headings General Part (Articles 1 and 2); Jurisdiction (Articles 3 to 6); Applicable Law (Articles 7 to 11); and Recognition and Enforcement of Foreign Judgments (Article 12 and 13).

The Guidelines define their nature and aims in the Preamble: their purpose is multifold in the sense that they may be used as a model for national, regional or international instruments (thus the word “article” in the operative text), but also simply to interpret, supplement or develop rules of private international law.

From the point of view of the scope, it is of interest to highlight that the Guidelines focus only on privacy: after careful reflection (and a conference organized by the Brussels Privacy Hub in collaboration with the MPI Luxembourg, held in Luxembourg in 2017) data protection-related issues were deliberately excluded. Also worth mentioning is the fact that the Committee did not intend to address all procedural and private international law concerns arising out of cross-border litigation in relation to privacy. It preferred rather to concentrate on those aspects which appeared to be more relevant under several considerations, one of them being exclusion from PIL international conventions (the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, Article 2, k) and l)) or regional instruments (the Rome II Regulation, see Article 1, paragraph 2, g)). Against this background, the Guidelines provide rules on jurisdiction, applicable law and the recognition and enforcement of judgments regarding compensatory and injunctive relief (to the exclusion of negative declaration actions), as well as provisional measures, both in contractual and non-contractual claims.

Very briefly, I would like to recall some points of the contents of the Guidelines, which are too rich to be commented in a single post. Most notably, as far as jurisdiction and applicable law are concerned two basic principles permeate the solutions chosen, namely (i) foreseeability, and (ii) parallelism between jurisdiction and applicable law. The limited heads of jurisdiction and the decision to repudiate the so-called Mosaïc principle under Article 3, as well as the forum-ius rule of Article 7, clearly correspond to those principles. In the same lines, choice of court is accepted and presumed to be exclusive except in case the parties agreed to the contrary. Specific attention is paid to provisional measures, with a solution in Article 6 deviating from the Brussels I bis Regulation and the Court of Justice decision in C-581/20, Toto. The choice of the applicable law is also permitted; here, a particular answer is given to the case of disputes among users of social media. In addition, for conflict of law purposes, the right of reply is addressed separately under Article 10. Article 11 allows resorting to the ordre public exception to refuse the application of the law designated under the Guidelines, in particular when the effects of applying said law would be manifestly incompatible with fundamental principles of the forum as regards freedom of expression and information, as well as the protection of privacy and human dignity.

It is clear that some of the solutions finally adopted by the Committee will not be fully convincing from a European perspective, especially against the backdrop of statutory prescriptions currently in force. However, one should not forget that the Guidelines represent a compromise among experts of different legal backgrounds, and that they are meant to talk to a public not necessarily rooted in the European Union. At the same time, they can perfectly work here as a model where no rules exist at all, or where there is a window open to amending partially dysfunctional rules (as it may be contended is the case of Article 7, paragraph 2, of the Brussels I bis Regulation). In this regard, it is submitted that none of the Guidelines run contrary to fundamental principles or values of the European Union, and that all of them have been carefully drafted with a view to their usability in practice – a precious quality in our too much technical field of law.

The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) will be published on 1 July 2022. It contains a number of interesting articles and case comments regarding issues of jurisdiction and applicable law. The table of contents is available here. The following abstracts have been kindly provided to us.

R. Wolfram, Achmea – Neglecting of International Public Law – Some Afterthoughts

This contribution is not meant to assess the Achmea judgment of the European Court of Justice. It intends instead to throw some light on the rules of public international law on the termination of international treaties, which have not fully been taken into account by those who attempted to implement the Achmea judgment. At the core of is the question whether the incompatibility of a treaty under international law with another international law treaty leads to the automatic non-applicability of the former. The contribution concludes this is not generally the case under the Vienna Convention on the Law of Treaties.

P. Schlosser, Jurisdiction Agreements and other Agreements integrally Covered by European Law

Certain contracts are particularly close to the law of the European Union. They include international jurisdiction agreements, contracts creating an exception in European law, to generally prohibited contracts, and contracts providing the use of European Trademarks and other European rights valid even against third persons. The fundamental proposal of the author is, that the legal effects of the violation of rights, provided by such contracts, must be found in European, rather than in national law. That law is particularly concerned about its effectiveness, if needed by a creative approach. In German law the legal consequences of such a violation must include, inspired by French law, an indemnification of a lost chance and a more liberal approach to moral (immaterial) damage.

S. Schwemmer, A Conflict of Laws Doctrine for the Transfer of Bitcoin, Crypto Securities and Other Crypto Assets

Cryptoassets like Bitcoin are entries in a distributed ledger. As such, they do not fall within any of the traditional categories of property. However, most jurisdictions are slowly working their way to recognize them as property. Even German law now allows for tokenized bearer bonds and defines special transfer requirements. On the level of conflict of laws, this results in a growing need to define the applicable law relating to the assignment of cryptoassets. These questions are not regulated by the written general conflict of laws rules under German law. While § 32 eWpG now provides a special conflict of laws rule for electronic securities, there is still a regulatory gap for other types of tokens. The article discusses possible solutions for the different types of cryptoassets.

B. Heiderhoff and E. Yalcin, International Jurisdiction in Cases Where Services are Provided in Several Member States

The determination of international jurisdiction under Article 7(1)(b), second indent, of the Brussels Ia Regulation is highly difficult in cases where services are provided in different Member States. The decision of the OLG München (Higher Regional Court of Munich) regarding a brokerage contract shows that it is not always possible to determine the place of main performance. This article discusses if, in such cases, the place where the service provider is domiciled should be considered as the place of performance. The authors conclude that this approach only fits if at least a part of the service was provided at the service provider’s domicile.

W. Hau, International Jurisdiction Based on Nationality in European Family Law

For almost a quarter of a century, there has been an intensive debate on whether the European legislator is allowed to open international jurisdiction in matrimonial matters for nationals of the forum state earlier than for nationals of other Member States. Now the CJEU has taken the view that such a rule is in line with the prohibition of discrimination provided for in Article 18 TFEU. The reasoning given for this is not particularly profound and leaves some questions unanswered, but it may at least contribute to a welcome reassurance in the area of European family law, in which very deep differences between the legal policy positions of the Member States have become apparent in recent years.

C. González Beilfuss, Forum Non Conveniens in a European Way: A Failed Dialogue

In the decision commented on here, the CJEU decided for the first time on the interaction of Article 6(a) and Article 7(a) of the Succession Regulation and emphasized the binding effect of the decision to decline jurisdiction for the court later seized. The second court is not permitted to review the decision to decline jurisdiction by the first court. This article analyzes the decision in particular with regard to the lack of communication between the courts, which would have facilitated the smooth interplay between both jurisdiction rules.

B. Hess, Exequatur sur exequatur vaut? The CJEU Enlarges the Free Movement of Decisions Coming from Third States under the Brussels I bis Regulation

In the judgment C-568/20, the CJEU held that a decision of a court of an EU Member State which merges a judgment of a third state is enforceable under Articles 39 ss of the Brussels Ibis Regulation. The Third Chamber argued that the concept of “judgment” in Articles 2(a) and 39 of the Brussels Ibis Regulation refers to the different procedural laws of EU Member States. Burkhard Hess criticizes this deviation from the uniform and autonomous interpretation of the Brussels Ibis Regulation. The solution of the Third Chamber is not compatible with the principle “exequatur sur exequatur ne vaut”.

C. Thole, The Law Applicable to Voidable Payments by Third Parties Under Article 16 EIR

In its judgment of 22 April 2021 the ECJ decided that Article 16 EIR must be interpreted as meaning that the law applicable to the contract also governs the payment made by a third party in performance of a contracting party’s contractual payment obligation, where, in insolvency proceedings, that payment is challenged as an act detrimental to all the creditors. The following article explains the decision and its consequences for cross-border avoidance claims.

D. Wiedemann, Lex successionis or Lex fori: On the Classification of Judicial Measures in the Event of Uncertain Inheritance Relationships

The decision concerns a classical question of classification: the delimitation of succession law from procedural law. The classification of judicial measures in the event of uncertain inheritance relationships, e.g. the appointment of a curator, decides whether such measures are to be assessed according to the procedural law of the lex fori or according to the lex successionis. That a classification is not predetermined can be inferred from different locations: While Germany regulates judicial measures regarding uncertain inheritance relationships in its substantive law (Sections 1960–1962 German Civil Code), other EU Member States and Brazil mainly address this problem in their procedural laws. In the EU, the Succession Regulation No. 650/2012 defines the boundary between succession law and procedure. It will be argued that measures only securing the estate are to be classified as procedural aspects. Measures that also involve the administration of the estate are governed by the Regulation’s choice of law rules.

R. de Barros Fritz, The Characterization of Gifts Causa Mortis under the European Succession Regulation

One of the most debated questions since the enactment of the European Succession Regulation has been the question of the proper characterization of gifts causa mortis. The UM case presented the first opportunity for the CJEU to address this issue. The following case note will discuss the court’s decision and show that, even after the court’s ruling, many open questions remain as to the characterization of gifts causa mortis.

C. Thomale, Circumventing Member State Co-determination Rules with the Societas Europaea

Since its introduction, the supranational legal form of the SE, provided by EU law, has been widely used to circumvent national co-determination law. The case note dicusses two German decisions, which highlight the specific arbitrage potential lying in the national component of the company law and co-determination law of the SE as well as in its autonomous co-determination rules.

D. Looschelders, Characterization of German Joint Wills under the EU Succession Regulation – The Austrian Perspective

Whether the binding effects of a joint will underlie German or Austrian law is of great practical importance when successions are connected to both jurisdictions. While under German law the revocation right of an interrelated disposition lapses upon death of the other spouse, Austrian law enables the surviving spouse to revoke his interrelated disposition even after death of the other spouse. Against this background, the subsequently discussed ruling by the Austrian Supreme Court (OGH) deals with the crucial question regarding the connecting factor for binding effects, namely whether joint wills under German law have to be characterized as “dispositions of property upon death other than agreements as to succession” (Article 24 EU Succession Regulation) or as “agreements as to succession” (Article 25 EU Succession Regulation). The OGH declared itself in favour of applying Article 25 EU Succession Regulation.

F. Eichel, International Enforcement of Judgments Subject to a Condition – Exequatur Proceedings and International Jurisdiction

The article deals with the international enforcement of judgments which are subject to a condition. Against the background of the exequatur proceedings, it sheds light on the question in which proceedings and in which state it is examined whether the condition has occurred. German, Austrian and Swiss procedural law is taken into account. Furthermore, the article examines the scope of the enforcement jurisdiction (Article 24(5) Brussels Ibis Regulation/Article 22(5) Lugano Convention) for these kinds of proceedings and agrees with the decision of the Austrian Supreme Court (OGH, 7.6.2017 – 3 Ob 89/17k). The OGH held that the Austrian claim to examine the occurence of the condition falls within the scope of the enforcement jurisdiction. However, the article criticises that the OGH did not take into account the limited res iudicata-effect of the Austrian claim which should be decisive in determining whether the enforcement jurisdiction is applicable or not.

A. Kirchhefer-Lauber, Private Law Systems with an Interpersonal Division of Law Always Pose Special Challenges for Conflict of Laws

The article deals with the interplay between autonomous German PIL and the internal conflict of laws of a multi-jurisdictional state using the example of Lebanon, which is home to a total of 18 partial religious legal systems in addition to a “civil legal system”. The author analyses, among other things, court decisions in which the distinction between constitutive religious marriage and civil documentation of marriage in Lebanon plays a central role. She also addresses the fact that the possibility of an ordre public violation in legal systems with a division of laws exists on two levels. Firstly, regarding the internal conflict of laws of the multi-jurisdictional state itself and secondly, with regard to the results through the application of a partial legal system. Finally, she highlights that the interpretative method of comparative law between civil and religious partial legal orders requires a special awareness of the importance of the culture-bound nature of law.

After more than 3 years of active involvement in the EAPIL Young Research Network, which she had co-founded together with Susanne Gössl in 2019, Martina Melcher has handed over the responsibility as one of the Network’s three chairpersons to Dora Zgrabljić Rotar.

The Association is grateful to Martina for her work for, and continued commitment to, the success of the Young Research Network.

The Network is rapidly growing (membership currently stands at 75). This led the members of the Network itself to elect a Secretary. The position will inaugurally be assumed by Marco Pasqua. In case your personal details (including, most importantly, your e-mail address) change or if you want to reach out to one or several members of the Network, please feel free to contact Marco Pasqua at youngresearch@eapil.org.

The activities that the Network is conducting are being worked on. In relation to the current third research project the Network has been dealing with, which focuses on the domestic rules on international jurisdiction in light of Article 79 of the Brussels I bis and the possible extension of the Regulation to defendants without a domicile in an EU Member State, results will be published in a dedicated volume of the Hart Studies in Private International Law series.

In addition, opportunities to discuss the findings directly with the EU Commission and the Working Group on Jurisdiction of the Hague Conference are currently being scheduled. The future fourth research project is being defined after the summer break. The focus could shift to the recognition and enforcement issue, quite similar to the jurisdiction one in the sense that it is partly governed by the Brussels I bis Regulation and partly governed by national law.