EAPIL blog

On 15 November 2021, the JURI committee of the European Parliament held a hearing on EU Private International Law. The focus was on issues that would need to be addressed in a review of the current rules, including as regards Corporate Due Diligence and SLAPPs (Strategic Lawsuits Against Public Participation).

Giesela Rühl (Humboldt University of Berlin, and Secretary General of EAPIL), Geert Van Calster (Leuven University), and Olivera Boskovic (Université Paris Déscartes) took part in the hearing.

The video recording of the hearing can be found here.

On 1 December 2021, at 3 pm CET, the University of Catania will host a webinar, in French, titled Différences culturelles et droit international privé de la famille (Cultural differences and Private International Law in Family Matters), organised by Pasquale Pirrone.

The main speakers are Jean-Yves Carlier (Catholic University of Louvain) and Léna Gannagé (Saint Joseph University, Beirut). Fabrizio Marongiu Buonaiuti (University of Macerata) and Roberto Baratta (Roma Tre University), among others, will also intervene.

Attendance is free, via Teams. Further details here.

On 11 November 2021, the Court of Justice of the European Union delivered its judgment in Bank Sepah v. Overseas Financial Limited (case C‑340/20).

The judgment clarifies the effect of the freezing of assets pursuant to European (and U.N.) sanctions on the right of creditors to attach the said assets.

In this case, the sanctions were the restrictive measures against Iran  implemented by Regulation (EC) No 423/2007 of 19 April 2007 and several subsequent regulations replacing it (‘the Regulations’). Regulation 423/2007 froze the assets and resources of certain listed entities. One of them was Iranian bank Sepah.

Article 1 (h) and (j) of Regulation 423/2007 provided:

‘freezing of funds’ means preventing any moving, transfer, alteration, use of, access to, or dealing with funds in any way that would result in any change in their volume, amount, location, ownership, possession, character, destination or other change that would enable the funds to be used, including portfolio management;

‘freezing of economic resources’ means preventing the use of economic resources to obtain funds, goods or services in any way, including, but not limited to, by selling, hiring or mortgaging them;

The issue was whether attaching preventively assets subject to such sanctions fell within these definitions and was thus forbidden. In this case, U.S. creditors were seeking to enforce a French judgment against bank Sepah and had sought enforcement and conservative measures. In a judgment of July 10th, 2020, the French supreme court for civil and criminal matters (Cour de cassation) considered that the situation was clear enough for enforcement measures, but asked the CJUE whether the Regulations prevented granting conservative measures as well.

The US creditors were Delaware companies Overseas Financial Limited and Oaktree Finance Limited. They were seeking to enfore a French judgment against Bank Sepah, a company established in Iran.

After obtaining partial payments made between 2007 and 2011, Overseas Financial and Oaktree Finance on 2 December 2007 requested that the French Minister for the Economy authorise the release of the outstanding amount pursuant to Article 8 of Regulation No 423/2007. Overseas Financial and Oaktree Finance brought an action for annulment against the implicit rejection of their request before the Administrative Court of Paris, which dismissed that action by judgment of 21 October 2013.

On 17 May 2016, Overseas Financial and Oaktree Finance issued formal notices of attachment and sale against Bank Sepah before attaching, on 5 July 2016, receivables, shareholder rights and transferable securities held by a French bank. By judgment of 9 January 2017, the enforcement court of Paris confirmed those attachments and their amount, including the interest provided for by the judgment of the Court of Appeal of Paris of 26 April 2007. While Bank Sepah accepted that it was required to pay the principal amounts ordered against it, it argued that it was not liable for the interest and it therefore contested the enforcement measures before that enforcement court. It inter alia argued that it could not be held liable for interest, taking the view that it had been prevented from paying its debt by a case of force majeure arising from the freezing of its assets by Regulation No 423/2007, which had the effect of suspending the running of that interest.

The French Cour de cassation referred two questions to the CJEU.

The first was concerned with the meaning of the concept of changing the ‘destination’ of the frozen funds under Article 1(h). The referring Court wondered whether a subsequent freeze of the assets by a national conservative measure amounted to such a change.

More specifically, the Cour de cassation ruled that, while it thought it likely that an enforcement measure transferring the ownership of the frozen asset would change its destination, it was less clear for conservative measures, which would not result in such a transfer to the benefit of the creditor.

The Cour de cassation insisted on particular feature of French conservative measures: they not only freeze assets, but they also grant an in rem right to the creditor, and thus a right to paid in priority over the relevant funds.

The second question was whether the origin of the claim that the creditor sought to enforce was relevant. In the case at hand, the claims of the U.S. creditors were unconnected to the Nuclear Programme of Iran, or any other activity which justified the sanctions.

As to the first question, the CJEU responded that the freezing of assets under the Regulations do prevent further attachement, even if such attachements are not enforcement measures.

46 In terms of measures such as those at issue in the main proceedings, which establish a right to be paid on a priority basis over other creditors in favour of the creditor concerned, it must be stated, as the Advocate General observed in points 55 to 61 of his Opinion, that such measures have the effect of changing the destination of frozen funds and are liable to permit the use of frozen economic resources to obtain funds, goods or services.

47 It follows that such measures fall within the concepts of ‘freezing of funds’ and ‘freezing of economic resources’ within the meaning of Article 1(h) and (j) and Article 7(1) of Regulation No 423/2007.

48 The fact that such measures do not have the effect of removing assets from the debtor’s estate cannot call that conclusion into question.

49 (…) the concept of ‘freezing of funds’ encompasses any use of funds which results, inter alia, in a change in the destination of those funds, even if such use of the funds does not have the effect of removing assets from the debtor’s estate.

As to the second question, the CJEU noted that the Regulations made no such distinction, and held that it should not be relevant for determining the scope, and effect, of the freezing of funds and resources.

The judgment is essentially an exercise of construction of the relevant regulations. Given the very broad language used by the European lawmaker, such exercise was bound to result in an inclusion of the relevant measures in the forbidden uses of the funds. The court does not conduct any purposive interpretation.

While conservative measures grant in rem rights under French, they do not under the law of other Member States. The CJEU responded to the question as framed, but it insisted that the issue was the change of ‘destination’. It seems, therefore, that conservative measures should be considered as falling within the scope of the freezing of funds irrespective of whether they grant in rem rights or not.

In October 2021, the Spanish Supreme Court had the opportunity to show its willingness to follow the Court of Justice and to give an example of a good practice in a matter related to the application of Article 7(2) of the Brussels I bis Regulation.

The order (auto) of 7 October 2021, was delivered by the Plenary of the Civil Chamber, with M. Ignacio Sancho Gargallo as reporting judge, against the background of an action for damages suffered as a result of an infringement of competition law.

In the case at hand, the Spanish company Garutrans Gasteiz S.L. filed a claim against Paccar Inc. and its subsidiary DAF Trucks NV, domiciled, according to the lawsuit, in San Fernando de Henares (Spain). The case was assigned to the Commercial Court No. 3 of Madrid, which declared the application admissible. After the attempts to serve the process at the address indicated in the claim failed, the plaintiff indicated two new addresses, one in the United States and another in the Netherlands.

The Madrid court, by order of 18 January 2021, declared ex officio its lack of territorial jurisdiction and pointed to the commercial courts of Vitoria as competent, arguing the defendants have their registered office outside of Spain and the DAF trucks were acquired in Vitoria, where the plaintiff is domiciled.

By order of 12 April 2021, however, the Commercial Court No. 1 of Vitoria declared itself incompetent as well on the basis that three of the four trucks had been acquired in Navarra. The situation was therefore one of a negative conflict of jurisdiction.

The Supreme Court ruled that the Madrid court’s declaration of incompetence was premature, since according to Article 28, para. 1, of the Brussels I bis Regulation it should have summoned the defendants (NoA: the Regulation imposes such duty only in relation to defendants domiciled in a Member State other than the one where the judge seats; nothing is said about other defendants), so as to give them the possibility of appearing and accepting jurisdiction in accordance with Article 26 of the Regulation, or rejecting it through the procedural tool to the purpose. Only after, and only provided the defendant(s) does not appear, the court seised is entitled to analyse its jurisdiction and to declare ex officio it has none.

What is interesting about the order of the Supreme Court, however, is not the final conclusion, but the Court’s statements showing its awareness and disposition to follow the Court of Justice’s decision C 30/20, Volvo, in order to identify the place of the damage in the framework of Article 7(2) of the Brussels I bis Regulation.

The Volvo ruling corresponds to a request from a Madrid Court. There, the Court of Justice explicitly asserts that Article 7(2) of the Regulation determines both international and territorial jurisdiction. Moreover, the Court recalls that the centralisation of jurisdiction before a single specialised court may be justified in the interests of the sound administration of justice: as AG Richard de la Tour had suggested in his opinion, the technical complexity of the rules applicable to actions for damages for infringements of competition law provisions may militate in favour of such a centralisation of jurisdiction. In its absence, the courts of the place where the goods were acquired are territorially competent. This notwithstanding, should the buyer not have purchased the goods affected by the collusive arrangements in question within the jurisdiction of a single court, territorial jurisdiction is conferred on the courts of the place where the undertaking harmed has its registered office.

As already said, the Spanish Supreme Court did not need to apply the above-mentioned solutions to the case at hand, but profited from the occasion to endorse them and to explicitly revoke its previous understanding of Article 7(2) of the Brussels I bis Regulation.

The University of Toulouse (France) will host a conference on Notary’s Role in Private International Law (L’office du notaire en droit international privé) organised by Estelle Gallant, on 25-26 November 2021.

The conference will include sessions on the role of notary as competent authority in the field of private international law, the reception and circulation of public documents, the drawing up of deeds by notaries as well as roundtables on divorce by mutual consent, property regime of couples and international successions.

Speakers will include numerous PIL specialists:

• Scholars : Hugues Kenkack (Toulouse), Fabienne Jault-Seseke (Paris-Saclay), Patrick Wautelet (Liège), Pierre Callé (Paris-Saclay), Christine Bidaud (Lyon 3), Hugues Fulchiron (Lyon 3), Eric Fongaro (Bordeaux), Michel Farge (Grenoble-Alpes), Hélène Péroz (Nantes), Nathalie Joubert (Bourgogne-Dijon), Sara Godechot-Patris (Paris-Est Créteil), Sandrine Clavel (Paris-Saclay), Marc Nicod (Toulouse), Lukas Rass-Masson (Toulouse), Estelle Gallant (Toulouse) & Cyril Nourissat (Lyon 3)
• Notaries: Caroline Deneuville (Paris), Richard Crône (Paris) and François Tremosa (Toulouse) & Jean-Christophe Rega (Mission Europe du CSN),
• Legal practionners working with notaries : Mariel Revillard, Marion Nadaud (Bordeaux) & Sophie Chalas-Kudelko (Lyon)

The full programme is available here. Online registration is open here.

It is common practice for children to be registered in the country where they are born or where they hold nationality. But what if these countries fail to do so? A judgment of 18 October 2021 rendered by a judge of first instance in Montilla (Spain) gives an answer, which was reported in the blog run by José Carlos Fernández Rozas and on the webpage of the Consejo General del Poder Judicial. The judgment can still be appealed.

A child was born in March 2020 in Oran (Algeria) to a national of Cameron; the father is unknown. The Algerian authorities failed to register the child. One year later, mother and child entered Spanish territory, where they have been living since in a refugee centre in Montilla.

The judge decided that the child should be registered in the Spanish civil register, despite the absence of a previous registration in the country of its birth or nationality.

The Spanish judge stressed that competence for registering the child’s birth lay first and foremost with Algeria, the place of its birth, and with Cameron, the country of its nationality. Since these countries failed to exercise their competence, the judge found that Spain had both the right and the duty to register the child. The legal basis for doing so would be Article 9(2) of the Spanish Act on the Civil Register (Ley 20/2011, de 21 de julio, del Registro Civil), which provides that events and acts that have taken place outside Spain shall be registered in the Spanish register when required by Spanish law.

Most interesting is where the judge found the requirement to register the event of the child’s birth. In this regard, he referred to the highest-ranking legal sources available. In particular, he cited the Universal Declaration of Human Rights, and the various rights it grants to the individual. The judge used these sources to formulate some very far-reaching and important legal propositions. He emphasised that the registration of a person’s identity is “one of the most essential manifestations of the recognition of the individual as such”. It would be “the only form by which society and the law accept its existence”, and it would “facilitate the exercise of all of the rights that the law bestows from the time of birth”. Without an entry in the civil register, there would be no liberty to respect, and no right to recognise.

On a more technical level, the judge referred to Article 6 of the Universal Declaration of Human Rights, which says that “Everyone has the right to recognition everywhere as a person before the law”. He also referred to the UN Convention on the Rights of the Child, which had been signed and ratified by Spain, Article 7(1) of which sets out that “[t]he child shall be registered immediately after birth …”.

The judge considered Article 7(1) of the Convention to be of direct and immediate effect because of its clear, precise and unconditional formulation. This was despite Article 7(2) of the Convention, under which the states party to the Convention shall implement the obligation to register, “in particular where the child would otherwise be stateless”. The judge argued that Article 7(2) was mainly focused on avoiding situations of statelessness, and that the registration was a condition prior to the granting of nationality because only persons recognised as having legal personality could be considered as nationals. In other words, the child had to be registered somewhere before nationality could be granted. Article 7(1) of the Convention would thus contain a binding obligation for Spanish tribunals to this effect.

The judge cited various other provisions, especially of the Spanish Constitution. Inter alia, Article 39(4) of the Constitution provides that “Children shall enjoy the protection provided for in the international agreements which safeguard their rights”.  He also referred to Article 96(1) of the Constitution, according to which validly concluded international treaties, once officially published in Spain, shall form part of the internal legal order.

The judgment requires the registration of children by local authorities where a child has been born abroad but not registered there. This is a significant principle that should also be followed by other nations. As a legal basis, they could use either the UN Convention on the Rights of the Child or, if they have not signed it, the Universal Declaration of Human Rights, which applies as customary international law.

Nevertheless, the judgment should not be overinterpreted. Even where a child has not been registered, it is entitled the plenitude of human rights, which exist from birth and are not preconditioned on registration. However, without being officially registered, the child (and also its mother) will encounter many difficulties in practical life. This is why registration is so important that it may be considered even as a human right that can be invoked everywhere.

— Special thanks to José Carlos Fernandez Rozas for his contribution to this post.

In a judgment of 9 November 2020, the Greek Supreme Court discussed a highly interesting issue, which is not often dealt with in practice. The question is whether foreign law (English law, in the circumstances) may apply to procedural acts due to take place in the forum (Greece), affecting directly the limitation of the action. Specifically, the issue had arisen of the consequences of the waiver of the lawsuit by the claimant/appellant, and the repercussions of its examination pursuant to either Greek or English law.

An insurance company, seated in the UK, provided insurance in connection with the contract for the sale of fuel concluded among the insured one and a ship carrier having seat in Greece. Due to an accident at sea, the insurance company reimbursed the insured one and, by endorsement, was handed over the bills of lading, which included a choice of English law. The insurance company, then, initiated proceedings against the carrier (which was also at the same time the shipowner) in Greece. Service of process took place on 7 July 2008, but on 16 February 2010 the claimant proceeded to the discontinuance of the action pursuant to Article 294 Greek Code of Civil Procedure. Ten days later, the insurance company filed a new action against the defendant, adding this time as defendant another company – notably the new shipowner – to which the ship was in the meantime sold and which incorporated the first one in its capacity of shipowner, succeeding in the related rights and obligations.

In the ensuing hearing before the Piraeus Court of first instance, both defendants pleaded that the action was time-barred, relying upon Article III(6) of the Hague-Visby Rules, which reads as follows:

Subject to paragraph 6bis the carrier and the ship shall in any event be discharged from all liability whatsoever in respect of the goods, unless suit is brought within one year of their delivery or of the date when they should have been delivered. This period, may however, be extended if the parties so agree after the cause of action has arisen.

The claimant countered that the first claim was filed within one year of the supposed delivery (which failed because of the accident). The discontinuance was made with the intention to correct some parts of the claim. The claimant supported that Greek law should apply. This would lead to the application of Article 263(2) Greek Civil Code, which allows the claimant to file a new claim within six months following the waiver of action. Should this happen, the interruption of limitation goes back to the filing of the initial action. Hence, in accordance with Greek law, this procedural act may not be interpreted as a complete and solemn waiver of the action.

On the contrary, the defendant, the first one, insisted, through all stages of the proceedings, that the choice agreed in favor of English law encompasses the interruption of limitation issue too (the outcome of the case with respect to the second defendant is not related to the matter discussed here).

The Supreme Court ruled in favor of the defendant/appellee. It underlined that the Hague-Visby Rules stipulate the one-year limitation; however, they do not address other issues connected to it, such as interruption and suspension. Consequently, the above matters should be examined by the proper law of the contract, i.e., English law, as evidenced in the bills of lading. Therefore, Greek law, and most importantly, Article 263 Greek Civil Code, may not be applied in the case at hand.

Following the above, the Supreme Court referred extensively to pertinent provisions of the Civil Procedure Rules (CPR) i.e. Parts 17.4 (Amendments to statements of case after the end of a relevant limitation period), 19.5 (Special provisions about adding or substituting parties after the end of a relevant limitation period), 38.2 (Right to discontinue claim), and 38.7 (Discontinuance and subsequent proceedings). It concluded that, pursuant to English law, the discontinuance of the claim can bring all or part of the proceedings instigated to an end by serving a formal notice of discontinuance. In other words, there is no such thing as a revival of the proceedings by means of a new claim filed within a specific period of time, similar to what is provided for by Article 263 Greek Civil Code.

The judgment was mostly based on the legal information related to the CPR, delivered by the Hellenic Institute of Comparative Law, which was requested to be furnished before the first instance court. In addition, the judgment gave very convincing answers to the appellant’s assertions, unknowingly following the same path taken by courts in other jurisdictions (see below, the second next paragraph).

It is necessary to underline the legal framework surrounding the case. The Supreme Court correctly applied Article 3(1) of the 1980 Rome Convention on the law applicable to contractual obligations. However, no further reference to other provisions of the convention is to be found in the text. Articles 1(2)h and 10(1)d were also pertinent to the case.

Article 1(2)h: The rules of this Convention “shall not apply to: […] (h) evidence and procedure, without prejudice to Article 14”.

Article 10(1):  “The law applicable to a contract by virtue of Articles 3 to 6 and 12 of this Convention shall govern in particular: […] (d) the various ways of extinguishing obligations, and prescription and limitation of actions.”

Additionally, reference could be made to Article 21 (Relationship with other conventions), where it is clearly stated that the Rome Convention “shall not prejudice the application of international conventions to which a Contracting State is, or becomes, a party”, for sufficiently justifying the application of Article 3 Hague-Visby Rules.

In light of the above, the answer to the question depends on the interpretation given under the aforementioned provisions of the Rome Convention. Put differently, the crucial issues are, whether the interruption of limitation is covered by the wording of Article 10(1)d, and whether the discontinuance and the subsequent filing of the claim should be considered as procedural matters, therefore not covered by the Rome Convention pursuant to Article 1(2)h.

The situation is similar under the Rome I Regulation on the law applicable to contractual obligations, see Articles 12(1)d and 1(3). So far, no preliminary reference has been submitted concerning the questions above. The general trend is to include all aspects of limitation within the scope of the Regulation (interruption, suspension, commencement), even if they are carried out by procedural means. The procedural nature attributed to limitation by virtue of domestic law (here: UK) does not affect the proper application of the Rome I Regulation. In any case, procedural rules related to limitation must be considered as part of the applicable law of the contract (in German: Vertragsstatut).

The Rome II Regulation on the law applicable to non-contractual obligations contains similar provisions, namely Articles 1(3) and 15(h). However, there are visible differences in the wording of the latter provision. Article 15(h) is more precise. It stipulates that the law specified under the Regulation provides, among other things, the rules relating to the commencement, interruption and suspension of a period of prescription or limitation.

Two judgments issued by English courts shed light to the issue: Pandya v Intersalonika General Insurance Co SA,  [2020] EWHC 273 (QB) (the text is not yet accessible on open sources), and Johnson v Berentzen & Anor [2021] EWHC 1042 (QB) (26 April 2021).These cases relate to car accidents with cross-border element.

In the first case, a UK citizen was injured by a Greek national on the island of Kos. The claim against the Greek insurance company was filed in England. The action was registered with the court; however, service was not effectuated within 5 years following the accident, which renders the action time-barred pursuant to Greek law. The claimant considered that the application of Greek law for the service of process by an English court is absurd. The court had a different view: it ruled that the procedural nature of service forms here part of the interruption of limitation issue. The resemblance to the ruling of the Greek Supreme Court is evident. A right to appeal was refused.

In the second case, the accident occurred on Scottish soil. The perpetrator was domiciled in Germany, whereas the victim in England. The issue revolved again around belated service of the claim. The attempt of the claimant to deconstruct the judgment of the court in the Pandya v Intersalonika case remained unsuccessful. Nevertheless, the court granted the request of the claimant to proceed out of time, by providing an extension in accordance with Scottish law.

A webinar in English on The resolution of the Institut de Droit International on Human Rights and Private International Law will take place on 12 November 2021, from 16.30 to 18.30 CET, organised by the Interest Group on Private International Law of the Italian Society of International Law (SIDI).

The speakers will be Fausto Pocar and Patrick Kinsch.

Attendance is free. Those wishing to join the webinar are invited to send an e-mail to sidigdipp@gmail.com.

A new issue of the online Belgian Revue de droit international prive / Tijdschrift voor internationaal privaatrecht is now available.

The issue features a rich selection of case law. It includes rulings given by the European Court of Human Rights (on family matters and surrogacy), the Court of Justice of the European Union (on succession, the taking of evidence, parental responsibility, employment contracts and torts matters).

Also included are rulings of the Belgian Constitutional Court and Court of Cassation, as well as the Court of Appeal of Antwerp and the Council for Immigration Disputes. The topics covered include matters of citizenship, rectification of birth certificate, service of judicial decisions, choice of jurisdiction clause in the context of the Lugano Convention, marriage, cross-border insolvency, and international protection of minors requesting humanitarian visa.

The section dedicated to doctrinal views contains a scholarly article by Annekatrien Lenaerts analysing a decision of the Belgian Court of Cassation issued on 18 June 2021 dealing with the communication of a court decision following the service of another judicial document on the basis of national procedural law and the European Service Regulation.

The decision has a particular importance according to the author as it is the first decision ruling that the addition of a copy of a judicial decision to the documents to be communicated to the party after service of one or more procedural documents does not amount to a valid service in accordance with the provisions of the Service Regulation, nor does it lead to the running of the appeal period according to Article 1051(1) of the Belgian Judicial Code.

The Court held that a judicial decision is only validly served at national level if it is expressly mentioned in the bailiff’s writ as the subject of the service. Further, it clarifies that a legally valid service at EU level requires that the decision to be mentioned as the document to be served, both in the application for service by the transmitting agency on the receiving agency using the standard form provided for that purpose and in the receiving agency’s notice of service, as well as in the form for the addressee stating that he has the right to refuse to receive this document.

The author concludes that although this solution may seem strict or formalistic at first glance, it is the only appropriate option in view of the protection of the addressee’s rights of defence. Only if a document is actually and expressly brought to the defendant’s attention in a way that allows the party to truly understand its content and purport, can the addressee effectively know his rights with regard to that document and institute a useful legal remedy against it.

Finally, the last part of the review is dedicated to legislative developments in the area of private international law.

The previous issues of the journal may be freely accessed here.

Marco Pasqua, who has been serving as the social media manager of the European Association of Private International Law, is now also an editor of the blog. His first post, on the 2022 Work Programme of the Commission, has just been published and can be found here.

Marco is a PhD student at the Catholic University of Milan.

On 19 October 2021, the European Commission adopted its 2022 Work Programme, setting out its key initiatives and the next steps in the agenda for the year ahead towards a post-COVID-19 Europe greener, fairer, more digital and more resilient.

The Commission Work Programme, by informing how political priorities will be coped to turn them into concrete action, is composed of four Annexes: the first addresses new policy and legislative initiatives; then, the second is in charge of simplifying existing legislation; it follows the third, focused on pending priority legislative files the Commission would the co-legislators to take the swiftest action on; finally, as consequence of the previous ones, the forth, based on intended withdrawals of pending proposals.

Among the new policy initiatives under the Annex I, the one dealing with private international law and having Article 81 TFUE as legal basis to be relied upon relates to the recognition of parenthood between Member States.

While the establishment of this civil status governing the legal relationship between a child and another person is disciplined by the domestic family law, the recognition of the parenthood already established abroad, crucial in cases of acquisition of nationality, residence, EU citizenship, maintenance and succession, is dealt with by private international law rules. Because currently parenthood established in one Member State may not be recognised in another, problems when travelling or moving to another Member State arise, endangering the child’s rights resulting from parenthood.

This is why, in the absence of uniform private international law rules on this issue, both on applicable law and on procedures for the recognition of judgments, a Commission Proposal aimed to ensure that parenthood, as established in one Member State, is to be recognised across the EU is expected in the 2022, so that children maintain their rights in cross-border situations, in particular when their families travel or move within the Union. Surely, if this initiative combines the work to ensure that the Union of equality becomes a reality for all and the need for a less bureaucracy, in so far as promoting the free movement of public documents and recognition of the effects of civil status records, the crux of the matter, politically speaking, will relate to the recognition obstacles new forms of parenthood day-by-day face in the EU when exercising their parenthood-based rights. A tough challenge? Yes, but the Union is full of colors and “if you are parent in one country, you are parent in every country” is urgent to come a reality from a legal point of view too.

Another private international law issue pointed out to be dealt with will be to strengthen judicial cooperation on the protection of vulnerable adults in cross-border situations.

The absence of uniform private international law rules on this field of law, the diversity of Member States’ law on jurisdiction, applicable law and the recognition and enforcement of protection measures, and the limited accessions to the key international instrument in this area, mainly represented by the Hague Convention of 13 January 2000 on the international Protection of Adults, raise considerable problems. However, it remains to be discovered how this will be pursued since no specific legislative initiative is expected to be addressed in the 2022, at least at EU level by the European Commission. A missed opportunity? Given the need, it seems so.

Finally, the new policy initiatives across the six headline ambitions put forward by the President von der Leyen in the Political Guidelines, building on her 2021 State of the Union speech (i.e. “The European Green Deal”, “A Europe fit for the digital age”, “An economy that works for people”, “A stronger Europe in the world”, “Promoting our European way of life”, “A new push for European democracy”) will affect lots fields of law, private international law included; on the other, Annexes II, III and IV will not.

Therefore, the European Commission will start discussions with the Parliament and Council to establish a Joint Declaration on the EU’s legislative priorities the co-legislators agree upon to take swift action.

The Research Center on Private International Law (EDIEC – EA 4185) of the University of Lyon III – Jean Moulin (France) will host a three-day conference to understand whether EU Private International Law should be considered as a comprehensive system (Existe-t-il un système de droit international privé de l’Union européenne?), organised by Ludovic Pailler and Cyril Nourissat, on 17 to 19 November 2021.

The presentation of the conference reads as follows:

The ambitious program proposed by the organizers does not only aim to take stock of a vicennial construction of the law of judicial cooperation in civil matters. It should also allow the speakers to assess whether this field of Union law is merely a pile of autonomous texts (at most likely to constitute a few large blocks – family, obligations, etc.) or whether, beyond that, a comprehensive work is taking shape, a true “system” of private international law, in particular thanks to the many judgments handed down by the Court of Justice of the European Union. This event will also be an opportunity to question the necessity of a system of private international law in order to constitute the area of civil justice called for by the European Commission. In order to take up this major scientific challenge, the colloquium brings together eminent European authors, specialists in Private international law and Union law. Their analysis will be usefully completed by a comparative approach from points of view from outside the Union (China, Maghreb, USA) and by the intervention of practitioners (lawyers, bailiffs, notaries), better able to evaluate the usefulness of a system for their daily work.

Speakers include numerous PIL specialists, scholars as well as senior officials and practitioners:

Louis d’Avout (Paris II Panthéon-Assas), Etienne Farnoux (Strasbourg), Marie Vautravers (European Commission), Tania Jewczuk (French Ministry of Justice) Sandrine Clavel (Paris Saclay), Laurence Idot (Paris II Panthéon-Assas), Edouard Treppoz (Paris 1 Panthéon-Sorbonne), Yves El Hage (Lyon 3), Hélène Gaudin (Toulouse 1 Capitole), Bernard Haftel (Sorbonne Paris Nord), Lukas Rass-Masson (Toulouse 1 Capitole), Carine Brière (Rouen), Jean-Baptiste Racine (Paris II Panthéon-Assas), Malik Laazouzi (Paris II Panthéon-Assas), Emmanuelle Bonifay (Aix-Marseille), Mathias Audit (Paris 1 Panthéon-Sorbonne), Johanna Guillaumé (Rouen), Marie-Elodie Ancel (Paris II Panthéon-Assas), Stéphanie Francq (UCLouvain), Samuel Fulli-Lemaire (Strasbourg), Amélie Panet (Lyon 3), Marion Ho-Dac (Artois), Laurence Usunier (Cergy-Pontoise), Kamalia Metiyeha (Paris 1 Panthéon-Sorbonne), Pierre Callé (Paris-Saclay), Fabienne Jault-Seseke (Paris-Saclay), Michael Wilderspin (former administrator, European Commission), Blandine de Clavière (Lyon 3), Sylvaine Poillot Peruzzetto (French Cour de Cassation), Alain Devers (Lyon 3), Marc Cagniart (Notary, Paris), Alice Meier-Bourdeau (Lawyer, Paris Bar), Mathieu Chardon (Baillif), Emmanuel Guinchard (Liverpool), Sami Bostanji (Tunis), Claudia Lima Marques (Porta Alegre), Gustavo Cerqueira (Nîmes), Nicolas Nord (Strasbourg), Fabien Marchadier (Poitiers) and Jérémy Heymann (Lyon 3).

The full programme is available here.

For registration, please write to marie.brossard@univ-lyon3.fr

It had to be anticipated that Brexit would have detrimental consequences for private litigants. Some have nurtured the hope, however, that the UK-EU Trade and Cooperation Agreement would mitigate some of the damage. This idea was dealt a blow by a recent judgment by the Higher Regional Court (Court of Appeal) of Munich. The court dismissed a suit brought by a British Private Limited Company (Ltd.) for the company’s supposed lack of legal personality.

A UK Ltd. based in Berlin sought injunctive relief for alleged price fixing against a German competitor before the courts of Munich. While the Munich Regional Court (LG München I), as the lower court, in its decision (LG München I, 37 O 3787/21) ruled on the merits of the case, the Munich Higher Regional Court (OLG München), in a non-appealable ruling at second instance (OLG München, 29 U 2411/21 Kart), squarely denied the capacity of the Ltd. to be a party of the proceedings.

The Court of Appeal argued as follows: Since the UK Ltd. as the claimant was not incorporated in an EU Member State, its legal capacity was to be assessed under German international company law using the real seat theory, according to which a company is subject to the law of the place of its headquarters. This was German law since the Ltd. had its basis in Berlin according to the court’s assessment.

After the Munich court had clarified the applicability of German substantive company law to non-EU companies based in Germany, it further ruled that the UK Ltd. would be legally non-existent as such since it does not fulfill the conditions of any of the corporate forms provided by German law. These corporate forms are exhaustive because of the principle of numerus clausus, and they do not include a Ltd.

The court admitted that a Ltd. based in Germany may have to be considered as a partnership under German law (Gesellschaft bürgerlichen Rechts or offene Handelsgesellschaft), or in the case of a single shareholder, as a merchant. Nevertheless, it rejected the action brought by the Ltd. as inadmissible because of its non-existence as a Ltd.

Some German authors had opined that the Trade and Cooperation Agreement between the EU and the UK would call for a different conclusion.  Particularly the clauses on national and most-favoured-nation treatment therein would require the recognition of companies incorporated under English law.

Not so, said the Munich court. It stressed that Articles 128(b), 129 and 130 of the Trade and Cooperation Agreement merely guarantee the free movement of trade goods and services, capital and investment, but not the freedom of establishment. It also pointed to Annex 20 Headnotes No. 9 of the Agreement, according to which the obligation of national treatment does not extend to legal persons incorporated in the UK and having their seat in the EU (paras. 21-22).

The judgment seems particularly stern, rigid, and ultimately misguided. Already the indiscriminate application of the real seat theory to all third countries is debatable: Some German authors rightly question whether the non-recognition of companies incorporated in such evolved legal systems as the Swiss or the British is indeed justified.

But it is even more wrong to reject such recognition under the EU-UK Trade and Cooperation Agreement. The freedom to provide goods and services explicitly guaranteed in this Agreement is hardly worth anything if the provider will not be legally recognised and cannot assert its rights in court. How should it bring a claim e.g. for an unpaid service?

The fact that the principle of national treatment does not apply to companies based in the EU does not suggest otherwise. It may justify a different treatment for companies incorporated in the UK and based in the EU with regard to the applicable corporate law rules. For example, the liability of shareholders or the rights of management could be subject to the law of the member state in which the company has its seat. But the principle of national treatment certainly does not permit the outright rejection of actions brought by UK companies based in the EU.

The decision of the Munich Higher Regional Court shows the unforeseeable consequences that Brexit may have, even for persons situated within the European Union. The model of operating as a Ltd., which was popular for a while in Germany, especially among small companies, harbours far-reaching dangers and can become a boomerang for many of the companies incorporated in this way, which were supposed to shield the shareholders from personal liability.

It would have been desirable if the Munich Higher Regional Court had removed further uncertainties by departing from the seat theory for British companies and granted these companies legal capacity. At least the Court should have given the Ltd. the chance to correct its corporate denomination in the action and bring the claim as a partnership or merchant. Under German procedural law, the Court is obliged to inform the party about this possibility, and it is unclear whether it has done so.  Outrightly rejecting the claim amounts to barring access to court. Such practice could be questioned under Article 6 of the ECHR.

In November 2021 the activity of the Court of Justice in the field of Private International Law appears to be limited to two decisions, both expected on the 25.

The first judgement corresponds to the request for a preliminary ruling from the Paris Court of Appeal in C- 289/20, IB, on Article 3 of Regulation Brussels II bis:

Where, as in the present case, it is apparent from the factual circumstances that one of the spouses divides his time between two Member States, is it permissible to conclude, in accordance with and for the purposes of the application of Article 3 of Regulation 2201/2003, that he or she is habitually resident in two Member States, such that, if the conditions listed in that article are met in two Member States, the courts of those two States have equal jurisdiction to rule on the divorce?

AG Campos Sánchez-Bordona’s opinion was published on 8 July 2021. It is not yet available in English. My translation:

Article 3, paragraph 1, letter a), of Council Regulation (EC) No. 2201/2003 (…) must be interpreted in the sense that, for the purposes of the attribution of jurisdiction, only one habitual residence of each spouse can be recognized.

When a spouse shares his life between two or more Member States in such a way that it is not possible, in any way, to identify one of them as that of his habitual residence within the meaning of Article 3 (1) (a) of the Regulation No. 2201/2003, international jurisdiction will have to be determined in accordance with other criteria of the Regulation and, where appropriate, the residuals fora in force in the Member States.

In the same hypothesis, and provided the application of Regulation No. 2201/2003 and the residual fora above-mentioned does not confer international jurisdiction to any Member State, jurisdiction may be exceptionally attributed to the courts of the Member States of a non-habitual residence of a spouse.

The judgement is to be delivered by a chamber of five judges – A. Prechal, J. Passer, F. Biltgen, N. Wahl and S. Rossi, the latter as reporting judge.

The decision on C-25/20, Alpine Bau, corresponds to a request by the Višje sodišče v Ljubljani (Slovenia), on Article 32(2) of the old insolvency regulation:

Is Article 32(2) of Regulation No 1346/2000 to be interpreted as meaning that the rules on the time limits for lodging creditors’ claims, and the consequences of lodging claims out of time under the law of the State in which the secondary proceedings are being conducted, apply to the lodgement of claims in secondary proceedings by the liquidator in the main insolvency proceedings?

Last May, AG Campos Sánchez-Bordona had proposed the following answer:

Article 32(2) of … Regulation (EC) No 1346/2000 … is to be interpreted as meaning that where the liquidator for the main insolvency proceedings lodges claims in secondary proceedings, the time limits for the lodgement of those claims, and the consequences of lodging claims out of time, are governed by the law of the State in which the secondary proceedings were opened.

The judgement will be delivered by judges K. Jürimäe (acting as juge rapporteur), S. Rodin and N. Piçarra.

This post was written by Thomas Mastrullo, Associate Professor at University of Luxembourg.

The European Commission has for several years expressed its desire to increase the range of supranational structures. Thus, the creation of a European Association has been considered since the beginning of the 2000s (Communication from the Commission to the Council and the European Parliament, Modernising Company Law and Enhancing Corporate Governance in the European Union – A Plan to Move Forward, p. 26).

This project, which has made no progress in 20 years, has now been given new relevance.

Indeed, on 15 September 2021, the European Parliament has published a Draft Report with recommendations to the Commission on a statute for European cross-border associations and non-profit organisations. This Proposal of Regulation on a statute for a European Association is furthermore complemented by a Proposal for a directive on common minimum standards for non-profit organisations in the EU (so called “Minimum standards” Directive).

This initiative is part of a wider project of integration and development of democracy in the European Union.

According to the Proposal, cross-border projects and other forms of cooperation involving civil society in particular contribute in a decisive way to the achievement of the Union’s objectives. In these conditions, the Proposal of Regulation seeks to promote cooperation across borders between citizens and representative associations because such a cooperation is “essential for creating an overarching European civil society, which is an important element of European democracy and European integration” (Prop. Reg., Recital 1 and 2).

More widely, European Parliament wants to incitate citizens to “actively participate in the democratic life of the Union” thanks to Associations which “play a key role in helping and encouraging individuals” (Prop. Reg., Recital 5).

However, economic considerations are also present in the Proposal of Regulation: European Parliament points out that “many associations play a significant role in the economy and in the development of the internal market, by engaging on a regular basis in economic activity” (Prop. Reg., Recital 3).

The main objective of the Proposal of Regulation is therefore to provide a supranational instrument to facilitate the pursuit of transnational objectives and activities by associations within the internal market.

Several reasons explain why this proposal is now being made.

Firstly, a legal policy element: the need to defend associations and associative freedom in the Union, at a time when these may appear to be under threat from the governments of some Member States. In this sense, the Proposal of Regulation expressly refers to the Judgment of the Court of Justice of 18 June 2020, C-78/18, European Commission v Hungary, from which it follows that Article 63 TFEU and Articles 7, 8 and 12 of the Charter of Fundamental Rights of the European Union protect non-profit organisations against discriminatory, unnecessary and unjustified restrictions to access to resources and the free movement of capital within the Union.

Secondly, an element of legal technique is invoked: the existing supranational structures, i.e. the European Company (SE) based on Regulation (EC) No. 2157/2001, the European Cooperatives Society (SCE) based on Regulation (EC) n° 1435/2003, the European grouping of territorial cooperation (EGTC) based on Regulation (EC) No. 1082/2006 and European Economic Interest Grouping (EEIG) provided by Regulation (EEC) No. 2137/85 either do not address associations, or do not meet the specific needs of civil society associations.

Hence the need, for the European Parliament, to establish at Union level appropriate rules which will permit the creation of European Associations.

The Regulation would lay down the conditions and procedures governing the formation, governance, registration and regulation of legal entities in the form of a European Association (Prop. Reg., Article 1).

The European Association would be defined as “an independent and self-governed cross-border entity established on a permanent basis within the territory of the Union by voluntary agreement between natural or legal persons for a common non-profit purpose” (Prop. Reg., Article 1(2)).

Several key notions would be clarified (Prop. Reg., Article 2). For instance, “non-profit” purpose would mean that “it is not the primary aim of the association to generate a profit, while it may still exercise economic activities”. And when profit would be generated, it would not be distributed among members, founders or private parties but invested in the organisation for the pursuit of its objectives. Another example: the “independence” would mean that the European Association must be free from State interference and not part of government or administrative structure.

In a general way, The European Association would be governed by freedom in the frame of European requirements:  freedom to determine its objectives and activities, provided that respect and support the promotion of the objectives and values on which the Union is founded; freedom to determine its membership in respect of the principle of non-discrimination (Prop. Reg., Article 1(3) to (5)).

Concerning the applicable law, Proposal of Regulation is based on a classical combination between material rules laid down at the European level and conflict-of-law rules designating national applicable law. Thus, on the well-known model of European entities such as SE, European Association would be ruled in priority by Regulation’provisions. For matters not dealt with the Regulation, it would be governed by the law of the Member State in which the European Association would have its registered office (Reg., Article 3(1)). As a consequence, Member States would have to identify the legal entity or the category of legal entities to which a European Association would be deemed (Prop. Reg., Article 3(2)). Therefore, like the others European structures, European Association would be conceived as a hybrid entity.

The application of the Regulation, and thus the regime of European Association, would be monitored by two authorities.

First, at a national level, the Regulation would provide the creation of a national supervisory authority defined as “an independent public authority” designated by each Member States. The aim of the authority would be to protect the fundamental rights and freedoms of European Associations while acting across borders (Prop. Reg., Article 4). These supervisory authorities would cooperate within the framework of a European Association Authority.

Second, at a supranational level, the Regulation would create a European Association Authority (Prop. Reg., Article 5). Certainly, it is one of the most remarkable provision of the Proposal. European Association Authority would be thought as a body of the Union with legal personality. The role of the European Association Authority would be to ensure that the Regulation is applied “in a consistent manner”.

Several important tasks would be given to the European Association Authority, such as (Prop. Reg., Article 5(6)):

• develop a single e-registration procedure for European Associations and manage a digital e-Registry of European Associations at Union level;
• process notices of registration, dissolution and other relevant decisions concerning European Associations for the purpose of publication in the Official Journal of the European Union;
• process applications for the granting of “public benefit status” (cf. infra Reg., Article 19);
• assess the adequacy of the identification of the comparable legal entities by the Member States concerning the applicable law (cf. supra Reg., Article 3(2));
• receive, examine and follow-up on complaints concerning the application of the Regulation
• take binding decisions;
• examine any question relating to the application of this Regulation and issue guidelines, recommendations and best practices for national supervisory authorities and European Associations;
• advise the Commission on any issue related to European Associations;
• consult the Commission regarding structuring and operationalising funds aimed at financing civil society as well as protecting and promoting Union rights and values, sustaining and furthering the development of open, rights-based, democratic, equal and inclusive societies based on the rule of law;
• promote the cooperation and the effective bilateral and multilateral exchange of information and best practices between national supervisory authorities and with the European Associations Authority;
• promote common training programmes and facilitate personnel exchanges between national supervisory authorities.

The dialogue and exchanges between national supervisory authority and the European Association Authority would be one of the main features of the new status of European Associations.

A European Association would be formed by three means, either contractual or corporate. In all cases, the European Association should have a strong legal link with the EU (Prop. Reg., Article 6). That is said, the European Association would be created:

• by agreement of at least three founding members. The founding members would be natural persons, that are citizens or residents of at least two Member States, or legal persons that have their registered office in at least two Member States, or
• by a conversion into a European Association of an existing entity formed under the law of a Member State and which would have its registered office within the Union, or
• by a merger between at least two entities belonging to the categories identified pursuant to Article 3(2) of the Regulation proposed (cf. supra). These entities would have to be formed under the laws of Member States and would have to have their registered office within the Union, provided that at least two of them would be governed by the law of different Member States.

The formation of the European Association would need the signature of statutes whose mentions of the statutes would be listed by the Regulation (Prop. Reg., Article 8). The statutes would provide, inter alia, for the rights and obligations of members (Prop. Reg., Article 7)

Concerning the registered office of a European Association, two conditions would be required: on a formal aspect, the place of the registered office would be indicated in the statutes; on a material aspect, the registered office would be within the territory of Union. Moreover, following the material rule providing by model of the European company, the registered office would be located at the place where the European Association has its central administration (Prop. Reg., Article 9).

For registration of a European Association, the Regulation would rely on digital tools. Within 30 days of the date of its formation, a European Association would submit an application for registration in the digital e-Registry of European Associations (Prop. Reg., Article 10). Registration would occur via a standardised registration procedure to be developed and set up by the European Associations Authority. Besides, the registration procedure would be electronic and free of charge. The applicants would be allowed to use the official language or one of the official languages of the Member State where the European Association would have its registered office. A national “registering authority” would be designated by each Member States for processing applications for registration of European Associations that have their registered office in its territory.

European Association would be given two main prerogatives. First, on the model of others European entities, it would be able to transfer its registered office without creation of a new legal person to change its applicable law (Prop. Reg. Article 11). Second, it would have the legal personality acquired on the day of the publication of its registration as a European Association in the Official Journal of the European Union (Prop. Reg. Article 12). This legal personality would give European Associations “the capacity to exercise, in their own name, the powers, rights and obligations that are necessary for the pursuit of their objectives”, under the same conditions as a legal entity among those identified pursuant to Article 3(2) of the Regulation and formed in conformity with the law of the Member State in which the European Association would have its registered office. But some prerogatives would be expressly guaranteed at the European Level, no matter where the registered office is located, such as: conclude contracts, receive donations and legacies, employ staff, be a party to a legal proceedings and access financial services.

A European Association would be free to determine its internal management structures and governance in its statutes, provided that it would be rule by at least two bodies (Prop. Reg., Article 13): the Board of Directors, which would manage the European Association in the interests of the European Association and in pursuit of its objectives (Prop. Reg., Article 14), and the General Assembly which would gather all members (Prop. Reg., Article 15) and would be competent for amendments of the statutes (Prop. Reg., Article 17).

To pursue its objectives within Union, and give a real supranational dimension to its activities, a European would be able to have regional chapters which would not be considered as possessing a distinct legal personality but could organize and manage activities on behalf of the association (Prop. Reg., Article 16).

The treatment of European Associations in Member States is framed by several cardinal principles.

Firstly, the principle of non-discrimination from which it follows that any discrimination based on the place where the European Association would have its registered office would be prohibited and that (Prop. Reg., Article 18).

Secondly, a European Association could be granted public benefit status if four conditions would be met (Prop. Reg., Article 19):

• the organisation’s purpose and actual activities would pursue a public benefit objective which would serve the welfare of society or of part of it, and is thus beneficial for the public good (arts, culture, environmental protection, social justice, humanitarian assistance, protection of animals, science, research and innovation, education and training, protection of health, consumer protection, amateur sports, for instance);
• surplus from any economic or other income-earning activity generated by the non- profit organisation would be used solely to promote the organisation’s public benefit objectives;
• in the case of dissolution of the non-profit organisations, statutory safeguards would guarantee that all assets would continue to serve public benefit objectives;
• members of the organisation’s governing structures that are not employed as staff would be not eligible to remuneration beyond adequate expense allowance.

Thirdly, the principle of national treatment, from which it follows that European Association registered in a Member State would be subject to the provisions applicable to the legal entity or the category of legal entities to which a European Association would be deemed comparable by the Member State in application of Article 3-2 (Prop. Reg., Article 20). This principle seems very close to the principle of non-discrimination.

Fourthly, the principle of non-arbitrary treatment from which it follows that A European Association “would not be subjected to differential treatment by Member States based solely on the political desirability of its purpose, field of activities or sources of financing” (Prop. Reg., Article 21).

Two texts are dedicated to this issue.

The first text concerns the fundraising and free use of assets (Prop. Reg., Article 22). It is provided that European Associations would be able to solicit, receive, dispose of or donate any resources, and solicit and receive human resources, from or to any source (public bodies, private individuals or private bodies, in any Member State of the Union and in third countries). In return, European Associations would be subject to the provisions of Union and national law concerning customs, foreign exchange, money laundering and terrorist financing, as well as to the rules regulating the funding of elections and political parties. We can see here that Democratic considerations are at the heart of the Proposal of Regulation’s preoccupations.

The second text concerns accounting and auditing (Prop. Reg., Article 23). It provides that rules on accounting would be regulated by the statutes, subject to the provisions of the Regulation and to the provisions applicable to the legal entities identified pursuant to Article 3(2) in the Member State in which the European Association would have its registered office. Besides, the Regulation would demand that European Association draws up at least once a year: annual accounts, consolidated accounts, if any, and a budget estimate for the forthcoming financial year. This text underline the hybrid nature of the European Association which would be governed by the Regulation, its statutes and the law of the Member State where its registered office would be located. It confirms also that Proposal of Regulation is based on a combination between material rules and conflict-of-law rules.

The supervision of a European Association would be assumed by a national supervision authority within the framework of European Associations Authority (Prop. Reg., Article 24). The Proposal of Regulation draws up a complete scheme of supervision. The supervisory authority would consult the supervisory authorities of other Member States within the framework of the European Associations Authority on any substantial issues regarding the lawfulness and liability of European Associations registered in the Member State’s territory. The recommendations of supervisory authorities would be communicated and reviewed by the European Associations Authority. If the supervisory authority would fail to reconsider its recommendation in the light of the European Associations Authority’s recommendation, the European Associations Authority could adopt a binding decision. In case of the supervisory authority would fail to comply with a decision taken by the European Associations Authority, the latest would inform the European Commission, which would take action as appropriate. European Associations would have the possibility to obtain judicial review of any decisions taken by the supervisory authority.

Concerning liability, Proposal of Regulation provides once again a combination between of a conflict-of-law rule and a material rule. On a conflictual point of view, the liability of the European Association would be governed by the provisions applicable to the legal entities deemed comparable in application of Article 3(2) by Member State in which the European Association would have its registered office. On a material point of view, the Proposal of Regulation states that the members of the Board would be jointly and severally liable for loss or damage sustained by the European Association as a result of a breach of the obligations attaching to their functions. Proceedings against the members of the Board would be laid down by the statutes.

First of all, the Proposal of Regulation provides a voluntary dissolution (Prop. Reg., Article 26). More precisely, the European Association could be dissolved by decision of the Board pursuant to provisions in the European Association’s statutes, with the agreement of the General Assembly, or by decision of the General Assembly – with a possibility to annul such decision before any dissolution or liquidation of a European Association. The supervisory authority would inform the European Associations Authority of any dissolution and The European Associations Authority would, immediately after such notification, publish a notice of dissolution of the European Association in the Official Journal of the European Union and remove the European Association from the digital e-Registry of the Union.

The Regulation would also lay down an involuntary dissolution (Prop. Reg., Article 27). In that circumstance, the dissolution would result from a binding decision of the European Associations Authority, taken on its own initiative or at the request of the supervisory authority of the Member State in which the European Association would have its registered office. Three kind of circumstances could justify such a binding decision: the transfer of the registered office outside the territory of the Union; the conditions for the formation of the European Association, as set out in the Regulation, would be no longer fulfilled; the activities of the European Association would cease to be compatible with the objectives and values of the Union or would “pose a serious threat to public policy, public security or public order”. The binding decision would be taken after the national supervisory authority has communicated a reasoned opinion concerning the European Association’s dissolution. The European Association would be granted a “reasonable period of time” to regularize its position before the decision takes effect. The decision to dissolve the European Association would be reflected in the digital e-Registry of European Associations and publish it in the Official Journal of the European Union.

Finally, the Proposal of Regulation deals with liquidation and insolvency of European Associations (Prop. Reg., Article 28). The Proposal states that the winding up of a European Association would entail its liquidation. Such liquidation would be governed by the law applicable to the legal entities identified pursuant to Article 3(2) in the Member State in which the European Association would have its registered office.

The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published.

It contains a number of insightful articles and case comments, whose abstracts are provided below.

T. Maxian Rusche, Available actions in the German courts against the abuse of intra-EU investor-State arbitration proceedings

The Court of Justice of the European Union ruled in Achmea that intra-EU investment arbitration violates fundamental rules of EU law. However, arbitration tribunals have revolted against that judgment, and consider in constant manner that they remain competent to decide cases brought by EU investors against EU Member States. German law offers an interesting option for States to defend themselves against new intra-EU investment arbitration cases. Based on § 1032 paragraph 2 Civil Procedure Code, the German judge can decide on the validity of the arbitration agreement if a case is brought prior to the constitution of the arbitration tribunal. Recently, Croatia has successfully used that possibility in an UNCITRAL arbitration initiated by an Austrian investor on the basis of the Croatia-Austria BIT. The Netherlands have recently brought two cases in ICSID arbitrations based on the Energy Charter Treaty. If the investor refuses to comply with a finding that there is no valid arbitration agreement, Member States can seek an anti-arbitration injunction.

F.M. Wilke, German Conflict of Laws Rules for Electronic Securities

In June 2021, Germany introduced the option of electronic securities, doing away with the traditional principle that securities must be incorporated in a piece of paper. The blockchain-ready Electronic Securities Act (Gesetz über elektronische Wertpapiere: eWpG) comes with its own conflict of laws provision. This paper addresses the subject matter, connecting factors, and questions of the applicable law of said rule. One main challenge consists in reconciling the new rule with an existing (much-discussed, yet still quite opaque) conflict of laws provision in the Securities Account Act. While the connecting factor of state supervision of an electronic securities register may appear relatively straightforward, it is shown that it can actually lead to gaps or an accumulation of applicable laws. While the Electronic Securities Act contains a solution for the former issue, the latter proves more complicated. Finally, it is not obvious whether the new rule allows a renvoi. The author tentatively suggests a positive answer in this regard.

M. Pika, The Choice of Law for Arbitration Agreements

Ever since 2009, when the German choice-of-law provisions for contracts were removed and the Rome I Regulation with its carve-out for arbitration agreements entered into force, the choice of law for arbitration agreements has been debated in Germany. On 26 November 2020, the German Federal Court of Justice addressed this matter, albeit inconclusively. The court held that the enforcement provision Article V (1) lit. a New York Convention applies already before or during arbitral proceedings. Pursuant to this provision, the arbitration agreement is governed by the law chosen by the parties and, subsidiarily, the law of the seat. This leads to an internationally well-known follow-up problem: whether the parties, when choosing the law applicable to the main contract, have impliedly chosen the law applicable to the arbitration agreement. This matter was left open by the Federal Court of Justice.

F. Rieländer, Joinder of proceedings and international jurisdiction over consumer contracts: A complex interplay between the Brussels Regime and domestic law of civil procedure

Whether the “international nature” of a contractual relationship between two parties to a dispute established in the same Member State might possibly stem from a separate contract between the claimant and a foreign party, for the purposes of determining jurisdiction according to the Brussels Ibis Regulation, continues to be a contentious issue ever since the ECJ ruling on the Maletic case (C-478/12). Particularly illuminating are two recent decisions given by the Bayerisches Oberstes Landesgericht. Whilst the Court, understandably enough, did not wish to deviate from the case law of the ECJ, it probably unnecessarily extended the purview of the dubious Maletic judgment in Case 1 AR 31/20. With regard to division of labour on part of the defendants there is no need for an overly expansive interpretation of the term “other contracting party” within the meaning of Article 18(1) Brussels Ibis Regulation because the “international element” of a contractual relationship between a consumer and a trader established in the Member State of the consumer’s domicile simply derives from the subject-matter of the proceedings where the contractual obligation of the trader is to be performed in another State. Taken in conjunction with its decision in Case 1 AR 56/20, the Court seemingly favours a subject-matter-related test of “international character”, while the Court at the same time, in Case 1 AR 31/20, respectfully adopts the authoritative interpretation of the ECJ in Maletic. Simply for the sake of clarity, it should be mentioned that even if the legal relationship between a consumer and one of the defendants, considered alone, bears no international character, a subsequent joinder of proceedings at the legal venue of the consumer’s place of residence is nonetheless possible pursuant to § 36(1) No 3 ZPO (German Code of Civil Procedure) if jurisdiction is established in relation to at least one of the defendants according to Article 18(1) Brussels Ibis Regulation and the general place of jurisdiction of all other defendants is situated in the Federal Republic of Germany.

M. Andrae, For the application of Art. 13 (3) No. 2 EGBGB, taking into account the spirit and purpose of the law against child marriage

Art. 13 (3) No. 2 EGBGB (Introductory Law to the Civil Code) stipulates that a marriage can be annulled under German law if the person engaged to be married was 16 but not 18 years of age at the time of the marriage. The legal norm relates to a marriage where foreign law governs the ability to marry and where the marriage has been effectively concluded under this law. The rule has rightly been heavily criticized in the scientific literature. As long as the legal norm is applicable law, it should be interpreted in a restrictive manner, as far as the wording and the purpose of the law against child marriage allow. The article focuses on the intertemporal problem. In addition, it is discussed whether the legal norm is to be applied universally or only if there is a sufficient domestic reference. The article follows the restrictive interpretation of the BGH of Section 1314 (1) No. 1 BGB, insofar as it concerns marriages that are covered by Art. 13 (3) No. 2 EGBGB. According to this, the court can reject the annulment of the marriage in individual cases, if all aspects of the protection of minors speak against it.

D. Looschelders, Cross-border enforcement of agreements on the Islamic dower (mahr) and recognition of family court rulings in German-Iranian legal relations

The cross-border enforcement of agreements on the Islamic dower (mahr) can present significant difficulties in German-Iranian legal relations. These difficulties are compounded by the fact that mutual recognition of family court rulings is not readily guaranteed. Against this background, the decision of the Higher Regional Court of Celle deals with the recognition of an Iranian family court ruling concerning a claim for recovery of the Islamic dower. The Higher Regional Court of Hamburg on the other hand discusses in its decision whether a husband can sue his wife for participation in a divorce under Iranian religious law as contained in their divorce settlement agreement on the occasion of a divorce by a German court. The recognition of a judicial divorce is not per se excluded in Iran; however, the husband required his wife’s participation due to Iranian religious laws in order for her waiver on the Islamic dower to gain legal effectiveness under Iranian law. The court rejected the claim as it drew upon the state divorce monopoly contained in Art. 17 (3) EGBGB (Introductory Act to the German Civil Code) and § 1564 BGB (German Civil Code). Consequently, despite the waiver declared in Germany, the respondent is free to assert her claim for recovery of the Islamic dower in Iran.

M. Andrae, HMP: Maintenance Obligations between ex-spouses if the parties lived together as an unmarried couple for a long time before the marriage

The main focus is on the relationship between Art. 3 (general rule on applicable law) and Art. 5. (special rule with respect to spouses and ex-spouses) of the 2007 Hague Maintenance Protocol. The following legal issues are discussed: Are maintenance obligations arising out of unmarried relationships included within scope of the HMP? Is Art. 5 HMP to be interpreted as an exception in relation to Art. 3 HMP? How is the phrase “closer connection with the marriage” in the Art. 5 HMP to be interpreted? Should a period of time in an unmarried relationship before a marriage be taken into account in relation to Art. 5 HUP? What is the significance of the last common habitual residence during the marriage with regard to the escape clause if the parties previously lived in different countries for professional reasons?

C. von Bary, Recognition of a Foreign Adoption of an Adult

In its decision on the recognition of a foreign adoption of an adult, the German Federal Court of Justice addresses questions concerning procedure and public policy. The special provisions for proceedings in adoption matters do not apply in recognition proceedings, which has consequences for the remedies available. Considering the effect on the ground for refusal of recognition due to a lack of participation (§ 109(1) No. 2 FamFG), courts only have to hear the other children of the adopting person rather than them being a party to the proceedings. The Court also sets strict criteria for a violation of public policy in the case of a foreign adoption of an adult. It only amounts to a violation of public policy when the parties deliberately seek to evade the prerequisites under German law by going abroad, which seems to imply that there are no fundamental principles specific to the adoption of an adult.

H. Roth, Enforcement issues due to a decision repealed in the State of origin

The decision of the German Federal Court of Justice was handed down pursuant to intertemporal civil procedure law and also to the Brussels I Regulation, which requires a declaration of enforceability for enforcement in another Member State. The court rightly upheld its settled case-law that a decision subsequently repealed in the State of origin cannot be authorized for enforcement. The ruling of the German Federal Court of Justice has significance for future cases examined on the basis of the new Brussels Ia Regulation, which states that enforcement can occur in another Member State without a declaration of enforceability. If the decision in the State of origin is subsequently repealed, a debtor in the executing State can choose for this fact to be taken into account either in the refusal of enforcement proceedings pursuant to Articles 46 et seq. Brussels Ia Regulation or in the execution itself by the competent executing body pursuant to Section 1116 of the German Code of Civil Procedure (ZPO).

O. Remien, Étroitement liée? – On jurisdiction for a damages action against an arbitrator after setting-aside of the award and artt. 1 (2) (d) and 7 (1) (b) Brussels Ibis-Regulation

In Saad Buzwair Automotive Co, Cour d’appel and Tribunal Judiciaire de Paris were of opposite opinions on the question which courts are competent to decide on a damages action against an arbitrator after setting-aside of the award. In an ICC arbitration with seat in Paris but hearings and domicile of the three arbitrators in Germany, the Qatari claimant had been unsuccessful against the Emirati respondent, but later the award had been set aside by the Cour d’appel de Paris and this setting-aside been confirmed by the Cour de cassation. The Qatari company sued one of the German arbitrators for damages before the Paris courts. The first instance Tribunal Judiciaire found that the arbitration exception of art. 1 (2) (d) Brussels Ibis did not apply to the action for damages based on an alleged breach of the arbitrator’s contract; further, it held that the place of performance under art. 7 (1) (b) Brussels Ibis was in Germany where the arbitrators lived and had acted. The Cour d’appel disagreed, the leitmotiv being that the damages action is closely connected (étroitement liée) to the arbitration. It found that the arbitration exception applied, so that the Brussels Ibis Regulation was inapplicable, and that under the autonomous French place of performance rule the place of performance was in Paris. After recalling the importance of the arbitrator’s contract this note distinguishes the damages action against the arbitrator from the arbitration between the original parties, points out that the courts of the seat of the arbitration are not necessarily competent for damages actions against an arbitrator and stresses the negative consequence of the ruling of the Cour d’appel – an eventual judgment awarding damages would not fall under the Brussels Ibis Regulation and thus not necessarily be enforceable in other Member States! Further, it is unclear whether the arbitration exception would also apply to an action for payment of the arbitrator’s fees. Finally, the situation where an arbitral award is not set-aside, perhaps even cannot be set aside, by the courts of the seat but where its enforcement is denied in another state is taken account of and can in case of a damages action lead to the competence of a court other than that of the seat of the arbitration. As to the place of performance, the two courts apply similar autonomous French respectively EU-rules, but with diverging results: the Cour d’appel stressing again the close connection, the Tribunal Judiciaire applying a more concrete fact-based approach. In sum, there are good arguments in favour of the decision of the Tribunal Judiciaire and a judgment of the ECJ on these questions would be welcome.

The table of contents of the issue is available here.

On 27 October 2021, the Supreme Court of the United Kingdom delivered its ruling in Kabab-Ji SAL (Lebanon) (Appellant) v Kout Food Group (Kuwait) (Respondent) ([2021] UKSC 48).

At issue was again the law applicable to arbitration agreements. In Enka Insaat Ve Sanayi AS v OOO “Insurance Company Chubb“, the court had addressed the issue of the law governing the validity and scope of an arbitration agreement before any arbitration had taken place. This case is concerned with the question of which law governs the validity of the arbitration agreement in the different context where the arbitration has already taken place and enforcement proceedings are brought in England.

The appellant (“Kabab-Ji”), a Lebanese company, entered into a Franchise Development Agreement (“FDA”) with Al Homaizi Foodstuff Company (“Al Homaizi”), a Kuwaiti company, granting Al Homaizi a licence to operate its restaurant franchise in Kuwait for ten years. In 2005, Al Homaizi became a subsidiary of the respondent, Kout Food Group (“KFG”), following a corporate reorganisation. A dispute arose under the FDA and linked Franchise Agreements, which Kabab-Ji referred to arbitration under the rules of the International Chamber of Commerce in Paris. The arbitration was commenced against KFG only, not Al Homaizi.

KFG argued that it was not a party to the FDA, the arbitration agreements contained in the FDA, or the Franchise Agreements, and that they took part in the arbitration under protest. The majority arbitrators found that, applying French law, KFG was a party to the arbitration agreements. They also found that, applying English law, KFG was an additional party to the FDA by “novation by addition” and was in breach of the FDA and linked agreements. They made an award against KFG for unpaid licence fees and damages in the principal sum of US$6.7 million. KFG applied to the Paris Court of Appeal to set aside the award. Soon afterwards, Kabab-Ji issued proceedings in the Commercial Court in London to enforce the award. KFG made a cross application for an order that recognition and enforcement be refused.

On a trial of preliminary issues relating to the FDA (which would be determinative of the like issues arising under the linked agreements), the Commercial Court held that the validity of the arbitration agreement in the FDA was governed by English law and that, subject to a point left open, as a matter of English law KFG was not a party to the FDA or the arbitration agreement. The court postponed making a final decision on enforcement pending the decision of the Paris Court of Appeal. Both parties appealed to the Court of Appeal which upheld the judge’s decision, save that it held that the judge should have made a final determination. It held that that there was no real prospect of it being shown that KFG became a party to the arbitration agreement and that summary judgment should be given refusing recognition and enforcement of the award.

Kabab-Ji appeals to the Supreme Court.

The Supreme Court unanimously dismisses the appeal on all issues. It holds: (i) that the arbitration agreement is governed by English law (the “choice of law issue”); (ii) that in English law there is no real prospect of a court finding that KFG became a party to the arbitration agreement (the “party issue”); and (iii) that, procedurally, the Court of Appeal was right to give summary judgment refusing recognition and enforcement of the award (the “procedural issue”). Lord Hamblen and Lord Leggatt give the sole joint judgment, with which the other Justices agree.

On the choice of law issue, the Court rules that the recognition and enforcement of foreign arbitral awards is governed by the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“the Convention”), which contains provisions that have been transposed into English law by Part II of the Arbitration Act 1996 (the “1996 Act”). This provides a limited and exclusive list of grounds on which the recognition and enforcement of an award may be refused. The grounds relevant to this case are (i) that the award is based on an invalid arbitration agreement and (ii) that the award has been set aside or suspended by the competent authority of the country in which, or under the law of which, it was made. Because the Paris Court of Appeal, the competent authority in this case, has not annulled the award, KFG’s only ground for resisting enforcement is the alleged invalidity of the arbitration agreement [10]-[16].

As discussed in the Supreme Court’s recent judgment in Enka Insaat Ve Sanayi AS v OOO “Insurance Company Chubb“ [2020] USKC 38 at para 128, Article V(1)(a) of the Convention establishes two uniform international conflict of laws rules. First, that the validity of the arbitration agreement is governed by “the law to which the parties subjected it” – i.e. the law chosen by the parties. Second, where no law is chosen, the applicable law is that of “the country where the award was made” – generally the place of the arbitration seat. When assessing whether an agreement exists or is valid the Court uses the law that would apply if it exists or is valid [26]-[27]. As stated in Enka at para 129, a general choice of law to govern a contract containing an arbitration clause will normally be a sufficient “indication” of the law to which the parties subjected the arbitration agreement for the purposes of Article V(1)(a) [35]-[36]. The principles for identifying the applicable law should be the same whether the question is raised before or after an award has been made.

Applying these principles to the present case, the effect of the relevant clauses in the FDA is plain. The FDA’s governing law clause provides that “this Agreement” shall be governed by English law and this clearly extends to the arbitration agreement [39].

Kabab-Ji advanced two arguments against this conclusion. First, that a reference in the FDA to the arbitrator applying “principles of law generally recognised in international transactions” (i.e. UNIDROIT Principles of International Commercial Contracts) meant that the arbitration clause was governed by a composite of national law and international principles, which did not qualify as “law” for the purposes of the Convention and the 1996 Act. The present case, however, is concerned with what law governs the validity of the arbitration agreement, not the rules of law to be applied by the arbitrators to the merits of the dispute [40-48]. Second, that because the parties should be presumed to intend that the arbitration agreement will be valid and effective, where applying English law would invalidate that agreement, one should infer that the choice of English law does not extend to it. The validation principle, however, is a principle of contractual interpretation which presupposes that an agreement has been made. It does not apply to questions of validity in the expanded sense in which that concept is used in article V(1)(a) of the Convention and section 103(2)(b) of the 1996 Act to include an issue about whether any contract was ever made between the parties to the dispute [49-52].

Magdalena Pfeiffer, Jan Brodec, Petr Bříza and Marta Zavadilová have edited a collection of essays in honour of professor Monika Pauknerová, recently published by Wolters Kluwer.

The 47 contributions in this liber amicorum cover a broad range of issues in the field of private international law and international trade law. Some are written in English, others in Czech and in Slovak.

Contributos include Nadia de Araujo and Marcelo De Nardi, Jürgen Basedow, Paul Beaumont and Jayne Holliday, Alexander J. Bělohlávek, Karel Beran, Michael Bogdan, Jan Brodec, Petr Bříza, Giuditta Cordero-Moss, Elizabeth B. Crawford and Janeen M. Carruthers, Stanislava Černá, Lucie Dolanská Bányaiová, Kateřina Eichlerová, Richard Fentiman, Zuzana Fišerová, Cristina González Beilfuss, Trevor Hartley, Elena Júdová, Zdeněk Kapitán, Catherine Kessedjian, Zdeněk Kühn, Ivana Kunda, Tuula Linna, Alena Macková and Filip Crnčević, Peter Mankowski, Milan Müller, Hans Ulrich Jessurun d’Oliveira, Jan Ondřej, Daniel Patěk, Marta Pertegás Sender, Magdalena Pfeiffer, Fausto Pocar, Helena Prášková, Ilaria Pretelli, Elena Rodríguez Pineau, Naděžda Rozehnalová, Květoslav Růžička, Pavel Simon, Michal Skřejpek, Josef Staša, Pavel Svoboda, Pavel Šturma, Zbyněk Švarc, Michal Tomášek, Aukje A.H. van Hoek, Spyridon Vrellis, and Marta Zavadilová.

The full table of contents can be found here.

See here for more information.

This post was written by Felix M. Wilke, University of Bayreuth, Germany.

The most relevant aspects were squarely in the sights of European Court of Justice. As it states in para 53 of the judgment: “relating to the predictability of the rules of jurisdiction and to the risk that consumers might ‘take the forum of protection with them’, it must be borne in mind that…” But the Court proceeds to brush aside these valid concerns in merely one and a half, partially enigmatic sentences. The rest of the judgment consists in more formal arguments that fail to engage with the interests at stake.

But let us start at the beginning. Case C-296/20, Commerzbank v. E.O., started in German courts in 2016 when a consumer had not settled his current account with a branch of Commerzbank in Dresden (Germany). The bank alleged a debit balance in its favour of almost 5,000 € and sued the consumer before the Local Court of Dresden. At the time of conclusion of the contract, the consumer had had his domicile in Dresden as well. In the meantime, however, he had moved to Switzerland. The Local Court dismissed the action due to lack of jurisdiction. The Regional Court of Dresden upheld this judgment. On appeal, the German Federal Supreme Court decided to refer two questions to the Court of Justice regarding the application of the rules for jurisdiction over consumer contracts of the Lugano II Convention in situations where a consumer relocates to another State bound by the Convention after the conclusion of a contract. The Federal Supreme Court later withdrew one of the questions in light of the Court of Justice’s decision in mBank.

The case, thus, essentially is about whether (or, at least, under which additional conditions) a consumer can rely on the forum of protection of Art. 16(2) Lugano II even after moving abroad after the conclusion of the contract. Under that provision, which of course corresponds to Art. 18(2) Brussels Ibis Regulation, the courts of the State in which the consumer is domiciled have exclusive jurisdiction concerning contracts meeting the requirements of Art. 15 Lugano II. “Domicile” in Art. 18(2) Brussels Ibis/Art. 16(2) Lugano II designates the consumer’s domicile at the date on which the court action is brought (mBank). Hence, a change of the consumer’s domicile would force the other party to sue wherever the consumer’s new domicile is, as, in particular, the application of Art. 5(1) Lugano II/Art. 7(1) Brussels Ibis would be barred. In this sense, consumers would not only take their belongings with them when they move, but also the forum of protection.

For jurisdictional instruments based on the idea of predictability, this consequence is not obviously appropriate. The only way to avoid it seems to lie in Art. 15 Lugano II, as the temporal dimension of Art. 16(2) Lugano II had already been set in stone in mBank. The German Federal Supreme Court indicated that it wanted to read Art. 15(1)(c) Lugano II – the category of contracts where the trader “pursues” or “directs” its activities in/to the State of the consumer’s domicile – in such a way as to condition its application on the trader’s intention to establish commercial relations with consumers from one or more other States. In situations where the trader and the consumer have a domicile in the same State at the conclusion of the contract, Art. 15 Lugano II would not (regularly) apply. It should be noted that this approach would not help traders who do conclude a consumer contract in a cross-border situation and whose contractual partner then relocates to yet another (Contracting/Member) State. A more general way out would have been to condition Art. 16(2) Lugano II upon the trader pursuing his trade or profession in the State of the consumer’s new domicile or directing this activity to it. This, in fact, was the gist of the question withdrawn later because of mBank. In my opinion, however, the answer was not necessarily preordained – a view apparently shared by Advocate General Campos Sánchez-Bordona. He proposed a quite similar additional criterion as an alternative to his main opinion in Commerzbank, having pointed out that the Court had avoided to face this issue by reformulating the questions in mBank in a rather restrictive manner.

The Court now seems to close the door to such approaches. The judgment is limited to the interpretation of Art. 15(1)(c) Lugano II for situations of initially purely internal consumer contracts. The proposal by the Advocate General just mentioned does not appear anywhere. The Court relies, first, on the wording of the provision, noting that it contains no indication of any additional condition. This comes as no surprise, for otherwise there would not really have been much to refer to the Court. Second, the Court talks about its case-law concerning consumer jurisdiction pursuant to Brussels I(bis), including mBank. Indeed, the Court appears to have had no qualms about applying the pertinent provisions to circumstances that began as purely internal situations. But it never faced the present question head-on because it was always concerned with special features of the other cases.

The Court also refers to Art. 17(3) Lugano II, noting that it presupposes a purely internal situation at the time of the conclusion of the contract. The nod to the Advocate’s General opinion in this context (para 51) strikes me as disingenuous (or sloppy), though. For the Advocate General actually concluded that Art. 17(3) Lugano II cannot be used as an argument in favour of the interpretation preferred by the Court.

Finally, the Court addresses the lingering issue of predictability. I am at a loss what to make of its point that “the rule of the jurisdiction of the court [actually: the courts of the State] of the consumer’s domicile, notwithstanding any change of domicile, is … the result of the process of legislative integration”. It seems to be an obvious petition principii. By the way, the German version has “normative integration” here, which arguably is less circular but also opaquer. The following argument is much easier to understand and somewhat more persuasive: International jurisdiction of the courts of the consumer’s (current) domicile corresponds to the general rule of Art. 2(1) Lugano II (Art. 4(1) Brussels Ibis). The Court seems to say that having to sue at the defendant’s domicile can never be an unpredictable rule as actor sequitur forum rei is the basic principle of Lugano II. Yet the Court fails to mention that Art. 2(1) Lugano II does not exclude jurisdiction under Art. 5 Lugano II as Art. 16(2) Lugano II does. This could be a relevant difference.

Even if one accepts this final line of reasoning and thus considers Commerzbank to have come out the right way, there is one more layer to the problem: Art. 16(1) Lugano II. Here, the consumer has a forum actoris. Arguments referring to Art. 2(1) Lugano II do not work in this context. How should a trader foresee that a consumer can sue him before the courts of the latter’s new domicile? I still think the answer should be: only if the trader pursues his trade or profession in the State of the consumer’s new domicile or directs this activity to it. Then, the trader at least has an abstract idea that, one day, he might have to appear before the Courts of that State. But, after Commerzbank, this would mean to interpret Art. 15(1)(c), 16(1) Lugano II differently than Art. 15(1)(c), 16(2) Lugano II. In light of the Court’s arguments outlined above, this has not exactly become more likely.

Under the auspices of the project “Time to Become Digital in Law” (DIGInLaw), funded by the Erasmus+ Partnerships for Digital Education Readiness, the University of Aberdeen organizes a PhD Book Club titled European Private International Law in a Digital World, in collaboration with the Universities of Osijek, Zagreb, and Milan.

The PhD Book Club will be held online on 8 December 2021. The goal of the book club is to raise awareness and expand knowledge through a discussion on contemporary private international law issues that stem from digitalization.

Participants can choose among the following discussion panels:

• Topic 1 – Jurisdiction in Digital World: Focus on the Extraterritorial Effects of the General Data Protection Regulation and the EU Commission’s Proposal AI Act: 10.00 – 11.30 UK time
• Topic 2 – Cross-Border Family Law in Digital World: Judicial & Administrative Co-operation and the Use of High-Risk AI Tools in Cross-Border Family Litigation: 12.30 – 14.00 UK time

The reading list will be distributed in advance to allow participants to prepare for discussion, which will be moderated by law professors and lecturers from the above-mentioned universities. All PhD researchers are eligible to apply. Please follow the registration link available on the event webpage here.