EAPIL blog

Ludovic Pailler (University of Lyon 3)  has just published a monograph on respect for the Charter of Fundamental Rights of the European Union in the European judicial area in civil and commercial matters, based on his doctoral thesis: Le respect de la charte des droits fondamentaux de l’Union européenne dans l’espace judiciaire européen en matière civile et commerciale, Pedone, 2021.

The author has provided the following abstract in English:

When the Treaty of Lisbon gave the Charter of Fundamental Rights of the European Union its legally binding force, it gave rise, in article 67, paragraph 1, of the Treaty on the Functioning of the European Union, to a legal obligation to respect fundamental rights while building the Freedom, Security and Justice Area. As this legal obligation concerns all the rules of this space, it raises questions in the European Judicial Area in civil and commercial matter where rules coordinating national legal systems are partially resistant to the influence of fundamental rights. Polysemy of the notion of respect make it possible to consider different ways for the Charter and the European Judicial Area law to interact. If the hierarchical principle seems to be the most obvious way to ensure the respect of the Charter, it transpires to be inappropriate by itself and because of the specific context fort the application of the Charter commanded by the European Judicial Area. So, it would be more convenient to substitute the hierarchical principle with a more supple way of interaction, the combination, so as to conform the studied space to the article 67, paragraph 1, of the Treaty on the Functioning of the European Union.

More details are available here, including a foreword by Fabien Marchadier (University of Poitiers) and Eric Garaud (University of Limoges) and the table of contents (here).

 

On 12 May, 2021, Advocate General Hogan delivered his opinion in Case C‑124/20 Bank Melli Iran v. Telekom Deutschland GmbH on the interpretation of the EU blocking statute (Regulation 2271/96 of 22 November 1996 protecting against the effects of the extraterritorial application of legislation adopted by a third country).

The context of the case was the newly reinstated sanctions of the U.S. against Iran. The main issue raised in the case was that of the impact of Article 5 of the blocking statute on the right of EU businesses to terminate private contracts.

Article 5 reads:

No person referred to in Article 11 shall comply, whether directly or through a subsidiary or other intermediary person, actively or by deliberate omission, with any requirement or prohibition, including requests of foreign courts, based on or resulting, directly or indirectly, from the laws specified in the Annex or from actions based thereon or resulting therefrom.

Persons may be authorised, in accordance with the procedures provided in Articles 7 and 8, to comply fully or partially (…).

Background

The German branch of Bank Melli Iran had entered into a framework contract with Telekom Deutschland GmbH which allowed Bank Melli to group all its company connections at various sites in Germany under one contract. In the context of this contractual relationship, Bank Melli ordered different services which formed the exclusive basis of its internal and external communication structures in Germany and were therefore indispensable to its business activities.

After the Trump administration decided that the U.S. would withdraw from the 2015 Joint Comprehensive Plan of Action aimed at controlling Iran’s nuclear programme and lifting economic sanctions against Iran, the U.S. reinstated sanctions against Iran in 2018.

In November 2018, ten days after the new U.S. sanctions entered into force, Telekom Deutschland GmbH terminated its contract with Bank Melli. It gave similar notice to four other German based entities with connections with Iran.

Bank Melli brought proceedings against Telekom Deutschland GmbH in a German court based on the infringement of the EU blocking statute and requesting performance of the contract.

Obligation to Give Reasons to Terminate Contracts

The most far reaching proposition of A.G. Hogan is to consider that the effet utile of Article 5 of the Blocking Statute requires a redistribution of the burden of proof. He opined that private parties terminating contracts in circumstances where they might be subject to foreign sanctions should have a duty to demonstrate that they did not do so because of the said sanctions.

Article 5 would therefore establish a duty to give the reasons for terminating the contract. Article 5 would also require that the reason be precise and objective, so that it could be verified that it was not to comply with the foreign sanction legislation.

AG Hogan explained:

89. (…) it (…) follows from the uncompromising terms of the first paragraph of Article 5 of the EU blocking statute that – in principle, at least – an undertaking seeking to terminate an otherwise valid contract with an Iranian entity subject to the US sanctions must demonstrate to the satisfaction of the referring court that it did not do so by reason of its desire to comply with those sanctions.

Should the CJEU follow A.G. Hogan, a first consequence would be that persons subject to the EU regulation could not rely on their freedom of terminate contracts without giving reasons under the law governing the contract. Article 5 of the blocking statute would establish an obligation to give a reason for terminating, or refusing to enter into, a contractual relationship with a person sanctioned by the relevant foreign legislation.

A second consequence would be that contractual clauses granting broad discretion to a contractual party to terminate the contract on vague regulatory grounds would be unenforceable. A.G. Hogan explained:

In particular, in my view, a person referred to in Article 11 of that statute should not be able to invoke a termination clause for force majeure to justify the termination of the contractual relationship without at least demonstrating that the event constituting force majeure is unrelated to the US sanctions legislation listed in the annex to that statute.

Sanctions: Punishing vs Redressing

Article 5 does not provide sanctions for the obligations that it establishes.

A.G. Hogan concluded that, in principle, it was for each Member State to lay down sanctions for infringements of the provision, and that their margin of discretion would be wide as far as punitive sanctions are concerned.

However, he opined that the margin of discretion of Member States would be very limited for civil sanctions, and that they would be bound to provide full effect to the provision by offering remedies which would put right-holders in the situation they would have been in in the absence of that unlawfulness.

108. Accordingly, I consider that, in the event of a breach of a provision prescribing a rule of conduct which must be complied with on a continuing basis (such as here), the national courts are required to order the infringer to put an end to the breach, on pain of a periodic penalty payment or other appropriate sanction, since only then can the continuing effects of the unlawfulness committed be brought to an end and compliance with EU law fully guaranteed.

Other Issues

The conclusions are long and address a number of other issues.

A.G. Hogan concluded by the following summary:

1) The first paragraph of Article 5 of Council Regulation (EC) No 2271/96 … is to be interpreted as not applying only where an administrative or judicial authority of a country whose laws and regulations are listed in the annex to that regulation has addressed, directly or indirectly, some instructions to a person referred to in Article 11 of that regulation. The prohibition contained in this provision accordingly applies even in the event that an operator complies with such legislation without first having been compelled by a foreign administrative or judicial agency to do so.

2) The first paragraph of Article 5 of Regulation No 2271/96 is to be interpreted as precluding an interpretation of national law under which a person referred to in Article 11 of that regulation may terminate a continuing contractual obligation with a contracting party named on the Specially Designated Nationals and Blocked Persons List held by the US Office of Foreign Assets Control, without ever having to justify its decision to terminate those contracts.

3) The first paragraph of Article 5 of Regulation No 2271/96 is to be interpreted as meaning that, in the event of a failure to comply with the provisions of that article, the national court seised by a contracting party subject to primary sanctions is required to order a person referred to in Article 11 of that regulation to maintain that contractual relationship, even though, first, the second paragraph of Article 5 should be interpreted restrictively, secondly, such an injunction measure is liable to infringe Article 16 of the Charter of Fundamental Rights of the European Union and, thirdly, such a person is therefore liable to be severely penalised by the authorities responsible for applying one of the laws referred to in the annex to that regulation.

For several years, Greek scholars and practitioners had no access to a periodical in Greek specialized in Private International Law and International Civil Litigation.

Upon the initiative of Prof. Vrellis, a Private International Law Review [Κοινοδίκιον = Koinodikion] was published biannually between 1995-2003. Since then, conflict of laws issues were hosted in law reviews which were concerned generally with civil, commercial and civil procedure law.

Those days are now over! A new quarterly has just been launched by Sakkoulas Publications. ‘Lex & Forum’ is a brand new review, focusing on civil and commercial cross border matters from a European or international perspective.

Lex & Forum will host articles, notes, comments and book reviews in Greek and major European languages; it will publish rulings of international and national courts alike, not limited to the Greek legal order; finally, it will cover developments and report on news in the field of Private International Law.

The first issue contains an article by the Greek Judge at the CJEU, Michail Vilaras, and an extensive focus on judicial cooperation after Brexit, reflecting a webinar, organized earlier this year. The issue also comes with comments on recent rulings rendered by the CJEU (namely C-500/18, Reliantco, C-774/19, Personal Exchange, and C-272/18, VKI), as well as by Greek courts (among them, Supreme Court No 662/2020, and Court of Appeal of Piraeus No 120/2021, reported in this blog here, and here), UK courts [High Court of Justice, Gategroup Guarantee, EWHC 304(Ch)2021], and Swiss courts (Bezirksgericht Zürich, 24 February  2021).

The first issue contains an introductory note drafted by the scientific directors, Mr Arvanitakis, Ordinary Professor at the law faculty of the Aristotle University, Thessaloniki, and Mr Kranis, former Vice President of Areios Pagos, the Hellenic Supreme Court, and ex Vice Minister of Justice. The team of editors consists of academics, judges, staff members of the Ministry of Justice, lawyers, and Phd candidates in the field.

On 17 May 2021 (from 5 to 7 pm CET), the French Supreme Court in civil and criminal matters (Cour de cassation) will host an online seminar (in French) on the respective roles of the court and the parties in the application of conflict-of-laws rules (L’office du juge et la règle de conflit de lois).

The chairmen are François Ancel (President of the International Commercial Chamber of the Paris Court of Appeal, ICCP-CA) and Gustavo Cerqueira (Professor at the University of Nîmes).

Speakers include Gian-Paolo Romano (Professor at the University of Geneva and co-director of the Yearbook of International Private Law), Nicolas Nord (Associate Professor at the University fo Strasbourg and Secretary General of the ICCS), Lukas Rass-Masson (Professor at the University of Toulouse 1, Director of the European school of law Toulouse) and François Mélin (Counsellor at the Paris Cour of Appeal).

The seminar will be streamed live on the website of the French Supreme Court (here).

It is part of a conference series dedicated to the office (role) of courts in different legal contexts and from a multidisciplinary approach.

The Department of Juridical Sciences of the University of Bologna (Italy), Ravenna Campus, is organising a Summer School on Transnational jurisdiction: current issues in civil and commercial matters. This will be held in Ravenna (and online) between 19-23 July 2021.

Given the growing relevance of cross-border litigation, the Summer School is looking to address a variety of issues from a comparative perspective combining theoretical and practical approaches. The topics address issues of jurisdiction, various aspects of private international law (e.g. cross-border service of documents, taking of evidence, arbitration agreements, Brexit, applicable law in non-contractual obligations, corporate social responsibility), available remedies, and the harmonisation of procedural rules.

The Director of the School, Prof. Michele Angelo Lupoi, has invited experts from different jurisdiction (see here) to lecture on several aspects of private international and procedural law. The programme of the Summer School is available here.

The Summer School is aimed at law students as well as law graduates and law practitioners who want to obtain a specialised knowledge in the complex and fascinating area of international civil procedure.

The lectures are likely to be held in a hybrid form – in presence and online – in respect of the applicable rules and advice.

More information about the Summer School and the registration can he found here.

This post was contributed by Dr Nicolas Kyriakides, who is a practising lawyer in Cyprus and an Adjunct Faculty at the University of Nicosia, and Ms Yomna Zentani (LLM, Cantab – Cambridge Trust scholar), who is a future Trainee Solicitor at Clifford Chance LLP.

On 21 April 2021, the English High examined the interplay between the Brussels Recast Regulation (BRR) and the principle of ‘modified universalism’ in international insolvency proceedings in WWRT Ltd v Tyshchenko & Anor ([2021] EWHC 939 (Ch)). It particularly addressed whether proceedings can be stayed on the grounds of modified universalism, despite jurisdiction having been established by Article 4 of the BRR (see also the previous report of G. van Calster).

Background

The claimant, WWRT, brought proceedings against the defendants, Mr Serhiy Tyshchenko and his ex-wife Mrs Olena Tyschchenko on the grounds that they had both carried out extensive fraud on the Ukrainian Bank, JSC Fortuna Bank which was owned by Mr Tyschenko between the years 2011 and 2014. The fraud consisted of the granting of numerous loans to companies with limited commercial activity who had no intention of repaying these loans. This then led to the bank declaring insolvency and being liquidated by which a package of assets consisting of also the disputed loans, was sold to Star Investment One LLC, a Ukrainian Company. The package, along with the rights to them were sold to WWRT in March 2020. WWRT argued that it had now acquired the rights to bring the claim relied upon in the present proceedings and obtained ex parte a worldwide freezing order. Mr and Mrs Tyschenko were both served in England within the court’s jurisdiction.

One of the main arguments centred around Mr Tyschenko’s objection to the court’s jurisdiction. He argued that WWRT’s claims should be stayed under common law so as to prevent WWRT from circumventing the Ukrainian insolvency proceedings opened on 9 December. He submitted that under Ukrainian law, claims such as the one contested in this case should only be adjudicated within the proceedings opened in December and thus must be stayed on the principle of “modified universalism.” The discussion surrounding this principle is of particular interest in this case.

Modified Universalism and Owusu

As potentially one of the final cases concerning the Brussels Regulation in England and Wales, we are reminded of the importance of the CJEU judgment in the case of Owusu v Jackson which set out that a finding of jurisdiction under Article 4 would exclude any challenge on forum non conveniens grounds.

Mr Tyschenko was found to be domiciled in England for the purposes of Article 4, however, a further argument was advanced on whether the court may stay these proceedings on the principle of modified universalism. Whilst accepting that Article 4 jurisdiction could not be challenged, a further argument was made by Mr Tyschenko’s legal representation, stating that the court in Owusu did not address the question of whether “…a domestic court could nevertheless stay its proceedings in favour of insolvency proceedings that had already commenced in another Member State.” He went on to state (at [52]) that the principle at work in such a case was not one of forum non conveniens but rather the common law principle of modified universalism, which carries with it the requirement to provide assistance to foreign insolvency proceedings. As stated by Lord Sumption in Singularis Holdings v PriceWaterhouseCoopers [2015], the principle is founded on

the public interest in the ability of foreign courts exercising insolvency jurisdiction in the place of the company’s incorporation to conduct an orderly winding up of its affairs on a worldwide basis, notwithstanding the territorial limits of their jurisdiction.

It was undisputed that a stay on this principle is conceptually different from a stay on forum non conveniens grounds. However, the question that the court had to address was whether this particular distinction could allow the present situation to be distinguished from the rule set out in Owusu and thus allowing a stay of proceedings, despite jurisdiction being founded on Article 4 (formerly Article 2 when Owusu was decided). In other words, whether the particular nature of insolvency proceedings require a different approach to the rule.

The decision on Owusu was reached out of respect for the principle of legal certainty, which the BRR (formerly the Brussels Convention) was built upon and the mandatory nature of Article 4. Allowing a deviation of this rule on the basis of forum non conveniens would have greatly undermined the predictability of the rules of jurisdiction as laid down by the Convention.

Further, insolvency proceedings and their peculiarities were taken out of the scope of the BRR altogether and reflected in other legislation, namely the Recast Insolvency Regulation and the UNICTRAL Model Law on cross-border insolvency. As such, the court reaffirmed the significance of Article 4 and held that a stay could not be granted on the basis of modified universalism. The court subsequently upheld the worldwide freezing injunction.

Analogous Application of Article 34 BRR?

In the alternative, the defendant suggested that a stay could be granted by the reflexive or analogous application of Article 34 of the BRR. This Article provides that:

1. Where jurisdiction is based on Article 4 … and an action is pending before a court of a third State at the time when a court in a Member State is seized of an action which is related to the action in the court of the third State, the court of the Member State may stay the proceedings if:

(a)  it is expedient to hear and determine the related actions together to avoid the risk of irreconcilable judgments resulting from separate proceedings;

(b)  it is expected that the court of the third State will give a judgment capable of recognition and, where applicable, of enforcement in that Member State; and

(c)  the court of the Member State is satisfied that a stay is necessary for the proper administration of justice.

The defendant accepted that “[…] the bankruptcy exclusion in Article 1 of the BRR precludes the express application of Article 34 if the pending action in the third State is in the nature of bankruptcy or insolvency proceedings.” However, he nevertheless contented that the Article could be applied by analogy to this case similarly to how Article 28 of the Lugano Convention was applied by analogy or reflexively to pending proceedings in JSC, Commercial Bank v Kolomoisky [2019] EWCA Civ 1708 §§159-181.

However, the court was not satisfied that the present proceedings were in anyway related to the pending insolvency proceedings in Ukraine (those opened on the 9th of December), to the effect that they would create a risk of irreconcilable judgments. Distinguishing Kolomoisky, the court stated that Article 28 was only given reflexive or analogous effect to the pending proceedings in Ukraine in that particular case in order to “[…] address the problem of the lacuna that would otherwise have arisen from the fact that Article 28 expressly applies only to related actions pending in the courts of different States bound by the Convention.” (at [91])

The reflexive application in Kolomoisky would not subvert the objectives of the Convention but would further its purposes by achieving legal certainty and ensuring that the risk of inconsistent judgments is avoided.

In the current case, the court held that the problem that was trying to be avoided in Kolomoisky when applying Article 28 reflexively, did not arise in this instance. This is because Article 34 of the BRR now specifically addresses proceedings in third States. The defendant’s argument thus attempted to advance a different proposition, distinct from what was advanced in Kolomoisky. The court held that the defendant’s apparent extension of Article 34, namely that it should be applied to proceedings which the defendant accepts as expressly excluded from the scope of the BRR, is not a proper one. The court continued that even in the event Article 34 could be applied by analogy or reflexively, it was not satisfied that the pending insolvency proceedings in Kyiv were related to the extent that they could create a risk of irreconcilable judgments.

Consequently, the proceedings were not stayed on the basis of this argument and the court subsequently upheld the worldwide freezing injunction.

As reported by Pietro Franzina last January, the Standing International Forum of Commercial Courts (SIFoCC), which brings together the commercial courts of several countries across the world, launched the second edition of its Multilateral Memorandum on Enforcement of Commercial Judgments for Money.  Last April, SIFoCC’s Second International Working Group, co-chaired by Sir William Blair and Judge François Ancel, has produced a Commentary to accompany the Multilateral Memorandum setting out an understanding of the procedures for the enforcement of a money judgment by the courts of one jurisdiction obtained in the courts of another jurisdiction, written by judiciaries from across the world.

The Multilateral Memorandum with the commentary is available here. The non-binding character of the Memorandum is highlighted from the outset; so is its purpose , which does not intend to “signal” the enforceability of the judgments of commercial courts, but to explain to how the courts which have contributed to the Memorandum approach requests for the enforcement of judgments of other courts. In turn, the commentary added to the second edition does not purport to state common principles arising form the contributions (see the statement in para. 31, “this seems unnecessary now that the Hague Conference has concluded its work on the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”); it rather describes common themes that arise from the contributions, identifying significant differences of approach and indicating how far the contributions appear to show a tendency towards convergence.

An interesting reading by all means.

On 12 April 2021, the Family Court of Namur, Belgium, applied the doctrine of renvoi under Article 34 of the Succession Regulation (the judgment and the commentary of Prof. Jean-Louis Van Boxstael – in French – are available here).

Background

The deceased was born in 1931 in Belgium, but was living in South Korea when he died in 2019. He held both Belgian and Korean nationalities. In 2001, the deceased wrote a will in which he declared that a (Belgian?) foundation would receive all his assets after his death. The plaintiff owned a building in Belgium and had monies on bank accounts. It does not seem that he had children.

The Belgian court was petitioned by the foundation in 2021.

Judgment

The court found that the deceased was resident in Korea. It retained jurisdiction, however, under Article 10(1) of the Succession Regulation, which provides that where the deceased was not habitually resident in a Member State, jurisdiction can be founded on the nationality of the deceased.

The court found that the deceased being a Belgian national, the court could retain jurisdiction.

Under Article 21 of the Succession Regulation, the applicable law should be, in principle, the law of the last habitual residence of the deceased. The court found that it was Korea. However, it noted that, under Art. 49 of the Korean Conflict of Laws Act, a Korean court would apply the law of the nationality of the deceased.

The deceased, however, was a dual national. The Belgian court referred to Art. 3(2) of the Belgian Code of Private International Law which provides that, in case of dual nationality, Belgian nationality prevails. It thus considered that the deceased was a Belgian national, and that Belgian law was applicable by renvoi from Korean law.

Assessment

The most interesting issue raised by the case was that of handling the dual nationality of the deceased.

For jurisdiction purposes, Art. 10 provides:

1.   Where the habitual residence of the deceased at the time of death is not located in a Member State, the courts of a Member State in which assets of the estate are located shall nevertheless have jurisdiction to rule on the succession as a whole in so far as: (a) the deceased had the nationality of that Member State at the time of death…

The rule does not refer to the “nationality of the deceased” in general. It refers to a person who has the nationality of a particular Member State. This resolves the issue of dual nationality where one of the nationalities is that of a third state. A rule of the forum provides taking into account the nationality of the relevant Member State. This implicitly excludes taking into account the nationality of the third state, or whether it might be more effective.

For choice of law purposes, Art. 34 provides:

1.   The application of the law of any third State specified by this Regulation shall mean the application of the rules of law in force in that State, including its rules of private international law in so far as those rules make a renvoi: (a) to the law of a Member State

The rule does not address the issue of dual nationality. It only provides to apply foreign choice of law rules if they refer to the law of a Member State.

So, the critical question is to determine the content of the foreign choice of law rule and ascertain whether the foreign rule designates the law of a Member State. It is therefore for the foreign legal system to say how it addresses dual nationality. If, under foreign private international law, local nationality prevails, this means that the foreign choice of law rule does not designate the law of a Member State.

In this case, the Belgian court should have wondered whether a Korean court would prefer Belgian nationality over Korean nationality. Instead, the Belgian court applied Belgian principles.

Maybe the Belgian court should have read the entirety of the Korean Conflict of Laws Act, a translation of which is freely available on the internet. Article 3 of the Act provides:

(1) In case the law of nationality of a party shall govern, if the party has two or more nationalities, the law of the country, which is most closely connected with the party, shall be the law of nationality: if one of the nationalities is the Republic of Korea, then the law of the Republic of Korea shall be the law of nationality…

So it seems that a Korean court would not have applied Belgian law: it would have applied Korean law. The Belgian court rewrote Korean private international law and invented a renvoi which did not exist.

In a judgment dated 10 December 2020, the German Federal Court restricted the provision tax advice on German soil. The court ruled that advice to German clients cannot be rendered on a permanent basis through a subsidiary unless the partners possess the necessary qualifications under the German Code on Tax Consultancy. Although the case in question concerned a British LLP, it is not limited to them but applies to all partnerships from EU Member States.

A Highly Disputed Case

The ruling is especially remarkable given that the Commission had not only criticized the German Code in a letter for limiting the freedom of establishment (Article 49 TFEU), but even started legal proceedings against Germany for violation of the Treaties. The Federal Court was unmoved. It saw no incompatibility with EU law, nor a need to submit a preliminary question on its interpretation to the CJEU.

On Fundamental Freedoms

In the Federal Court’s view, a tax adviser seeking to offer consultancy services on German tax law must have the qualifications required under German law. Such restriction of the freedom of establishment (Article 49 TFEU) was justifiable by the public interest in the quality of such advice. German law would not violate Art 5(2) of the Directive on the recognition of professional qualifications either, given that the provision of services through a subsidiary is not merely “temporary and on an occasional basis”.

The Federal Court considered the German rules to be coherent and systematic, despite the many exceptions it provides for other professions, such as German notaries or banks. The Federal Court saw the latter as justified because of their limitation to ancillary services, whereas the provision of tax advice through a subsidiary would amount to a main service that required a specialisation in German tax law.

On the Conflict of Laws

From the point of view of private international law, the most remarkable part of the judgment concerns liability. The suit was brought by one of the LLP’s German competitors against one of the partners personally and sought injunctive relief in the form of ceasing and desisting from advertisements for the LLP’s subsidiary’s tax consultancy services, including its entry into the German partnership register. The Federal Court ruled that the partner could indeed be personally liable under sec. 8 of the German Act Against Unfair Competition given that he was one of the applicants of the entry into the register and had publicly advertised with it.

Assessment

The Federal Court’s ruling on EU law is to be criticised. The compatibility of the German rules on tax advice with the freedom to establishment is not as clear as outlined by the Federal Court, as highlighted by the Commission’s action against Germany. The least the Federal Court should have done is to submit a preliminary question to the CJEU.

The conflict-of-laws component demonstrates the danger partners of LLPs or similar entities run in Germany and other EU Member States. They may be personally liable for the breach of regulatory duties and the resulting violations of the law of unfair competition. In particular, this is not excluded by the limitation of liability provided under the applicable partnership law and agreed in the articles of the partnership.

The case is also interesting from a doctrinal perspective. It demonstrates that the law of unfair competition and corporate law use different connecting factors. Moreover, the issue whether regulatory duties have been violated is a “preliminary question” which is subject to a wholly different conflicts approach.

A joint publication of the Secretariats of UNCITRAL, UNIDROIT and the HCCH, titled Legal Guide to Uniform Instruments in the Area of International Commercial Contracts, with a Focus on Sales, has just been released.

As explained on the HCCH website, the Legal Guide “offers an overview of the principal legislative texts prepared by each organisation, such as the United Nations Convention on Contracts for the International Sale of Goods, the HCCH Principles on Choice of Law in International Commercial Contacts and the UNIDROIT Principles on International Commercial Contracts. It also illustrates how these texts interact to achieve the shared goals of predictability and flexibility. The Legal Guide will be a user-friendly resource for those interested in the adoption, application, and interpretation of uniform contract law.”

Following the UNIDROIT website, “it aims at creating a roadmap to the existing uniform law texts in the area of international sales law prepared by each organization […]. It is an effort to clarify the relationship among them, promoting uniformity, certainty and clarity in this area of the law”.

A significant contribution towards the preparation of the Legal Guide is due to Professors Neil Cohen (USA), Lauro da Gama e Souza Jr (Brazil), Hiroo Sono (Japan), Pilar Perales Viscasillas (Spain) and Stefan Vogenauer (Germany).

The Legal Guide is available in English and will soon be released in other United Nations languages (as it is the case of the previous joint publication of the three organisations on Security Interests, 2012).

More information on the Legal Guide here (video announcement) and here (recording of the International Conference on the forthcoming Tripartite Legal Guide, 22 September 2020).

On 26 April 2021, the European Parliament adopted a legislative resolution on the Council position at first reading in a view to the adoption of a regulation of the European Parliament and of the Council establishing the Justice Programme 2021-2027, repealing Regulation 1382/2013. After the parliamentary debate on 27 April, the final act was signed on 28 April.

The (future) regulation (see here the version of the outcome of the trilogue), based on Articles 81(1) and 82(1) TFEU, lays down the objectives of the Justice Programme for the period 2021-2027, the dedicated European budget, the forms of Union funding and the rules for providing such funding (see Article 1). It is part of the 2021-2027 Multiannual Financial Framework.

This regulation is of great interest for Private International Law (PIL) experts since it sketches the key-orientations of the European Justice policy – including its cross-border dimension – for the coming years. Therefore, it should be a source of inspiration for scholars drafting research projects in the field and applying for EU funding.

Background: The 2018 Proposal of the Commission

 In its interim evaluation of the implementation of the (previous) Justice Programme for the period 2014-2020 (published in June 2018 here), the European Commission stated that the Programme – and the funds invested – contributed “to upholding EU values (such as the rule of law, the independence of the judiciary and the effectiveness of the justice) and to supporting Member States to achieve more effective justice systems”. This observation clearly underpinned the proposalmade by the Commission in May 2018 for the regulation establishing the new Justice Programme. Indeed, as underlying by the European Parliamentary Research Service in a recent briefing, the promotion of the rule of law as one of the EU’s founding values pursuant to Article 2 TEU lies at the heart of the proposal. Other key-aspects of the future regulation are the promotion of (gender) equality and the protection of vulnerable individuals such as children.

Looking ahead, these are main avenues for PIL researchers to be explored.

Achievements: The 2020 Amended Regulation

The European Parliament proposed a number of amendments to the EC proposal aiming at strengthening social inclusion within the European Justice system (see the first reading version here). In that sense, the Parliament successfully drafted a “mainstreaming clause” laying down that “in the implementation of all of its actions, the Programme shall seek to promote gender equality, the rights of the child, inter alia by means of child-friendly justice, the protection of victims and the effective application of the principle of equal rights and non-discrimination based on any of the grounds listed in Article 21 of the Charter, in accordance with and within the limits set by Article 51 of the Charter”.

Best Interests of the child and PIL

The great attention drawn to the child within the European Justice system “in progress” is certainly to be read with recent developments of EU PIL, such as the recent recast of the Brussels II Regulation which refers, several times, to the best interests of the child regarding, for instance, the grounds of jurisdiction in matters of parental responsibility,  the hearing of the child or the decision on the placement of a child… But also with forthcoming legislation, such as the preparation of a proposal for a regulation on the recognition of parenthood between Member States.

As argued by the European Commission, “the goal of this initiative is to ensure that children will maintain their rights in cross-border situations, in particular where families travel or move within the Union” and the proposal “will be guided by the best interests of the child as its paramount consideration” (see the call for application for the selection of members of the expert group on the recognition of parenthood between member states). As reported in this blog (here), the Court of Justice is also dealing with this topical issue. The main target objective is that the rights derived by children from European Union law following Article 3, (3) 2 in fine TEU and article 24 of the Charter of Fundamental Rights ought to be safeguarded under domestic law – including PIL – within national Justice systems of the Member States.

LGB People and PIL

In addition, the Parliament successfully proposed to specifically refer to LGBTQI people, beside other vulnerable individuals within the Justice system, in the preamble of the regulation. Pursuant to recital 10, “[training] activities should also include training courses for judges, lawyers and prosecutors in relation to the challenges and obstacles experienced by people who frequently face discrimination or are in a vulnerable situation, such as women, children, minorities, LGBTIQ persons, persons with disabilities, and victims of gender-based violence, domestic violence or violence in intimate relationships, and other forms of interpersonal violence”.

Such an amendment echoes recent European legal developments with obvious PIL dimensions. First, the Commission adopted few month ago a communication titled LGBTIQ Equality Strategy 2020-2025. Among various issues to be addressed, the communication highlights the legal difficulties for trans, non-binary and intersex people to be “recognised in law or in practice […] including in cross border situations”, affecting both their private and family life (see point 3). Following a transnational analytical approach, links may be made with ongoing academic research on Gender and Private International Law (see the project conducted at the MPI for comparative and international private Law).

Second, the European Parliament’s Committee on Petitions requested, few months ago, a study in the broader context of free movement of LGB persons within the European Union, authored by Alina Tryfonidou (University of Reading) and Robert Wintemute (King’s College London). It states that “in many cases, when a border between EU Member States is crossed, the [rainbow] couple ceases to be legally a couple, becoming instead two unrelated individuals, and their child or children go from having two legal parents to only one legal parent or (in a few cases involving surrogacy) no legal parents” (page 9). One recommendation made by the authors is for the Commission to propose a legislation “requiring all Member States to recognise the adults listed in a child’s birth certificate as the legal parents of the child, regardless of the adults’ sexes or marital status” (page 98). As mentioned above, the Commission is following this path.

The Rule of Law and PIL

Finally, the Justice Programme aims at supporting “the further development of a Union area of justice based on the rule of law, the independence and impartiality of the judiciary, mutual recognition and mutual trust, access to justice and cross-border cooperation” (see Recital 2 and Article 3). In that sense, the amended regulation expressly refers to the newly adopted rule of law conditionality regulation (December 2020, reported here). In simple words, under this legal framework, payments from the EU budget can be interrupted, reduced, or suspended in case of breaches of the principles of the rule of law by an EU Member State. The conditionality regulation will be applicable in the implementation of the new Justice Programme (see Recital 30 of the future regulation).

Under a PIL perspective, respecting the rule of law in the Member States is crucial for ensuring mutual trust between national Justice systems and allowing mutual recognition of decisions in civil matters. Then, from a broader analytical view, one key-issue for PIL experts could certainly be the interrelation between PIL (i.e. its rules, methodology and objectives) and the rule of law, within the European judicial area and beyond. This reflection is in line with the recent caselaw of the Court of justice assessing the conformity with EU law of provisions of national law which are liable to affect the requirements of effective judicial protection, pursuant to Articles 2 and 19 TEU, combined with Article 47 of the Charter of Fundamental Rights (see the CJEU judgment in Repubblika reported here).

In this context, in case of serious doubts of domestic judicial independence in a given Member State, one could ask whether (and under which conditions) article 47 of the Charter, which enshrines the right to an effective remedy before a tribunal for every person whose rights guaranteed by EU law are infringed, may be duly invoked by a litigant to remove the application of a ground of jurisdiction laying down by EU PIL (see the CJUE judgements in PARKING and more recently in Obala i lučice and para. 129 of the opinion of Advocate General M. Bobek). Or to rely on the public policy exception in a cross-border enforcement proceedings (see already the CJUE judgement in Donnellan)?

New kinds of breach of effective judicial protection in cross-border litigation may also occur in the near future, notably in the “digitalised” judicial system promoted by the EU (as reported here).

On May 4th, 2021, the European Commission issued a Communication offering its Assessment on the application of the United Kingdom of Great Britain and Northern Ireland to accede to the 2007 Lugano Convention.

The Communication offers the Commission’s analysis on the application and explains why it considers that the EU should not give its consent to the accession of the United Kingdom to the Lugano Convention.

Nature of the Lugano Convention

The Communication explains that the Lugano Convention represents an essential feature of a common area of justice and is a flanking measure for the EU’s economic relations with the EFTA/EEA countries.  Thus, the Lugano Convention supports the EU’s relationship with third countries which have a particularly close regulatory integration with the EU, including by aligning with (parts of) the EU acquis. Though the Convention is, in principle, open to accession of “any other State” upon invitation from the Depositary upon unanimous agreement of the Contracting Parties, it is not the appropriate general framework for judicial cooperation with any given third country. The Convention is based on a high level of mutual trust among the Contracting Parties and represents an essential feature of a common area of justice commensurate to the high degree of economic interconnection based on the applicability of the four freedoms.

International framework for the EU’s civil justice cooperation with third countries

As a consequence, the European Commission argues that the appropriate framework for cooperation with third countries in the field of civil judicial cooperation is provided by the multilateral Hague Conventions, i.e. the 2005 Hague Choice of Court Convention and the 2019 Hague Judgments Convention.

Conclusion

The Commission concludes:

In view of the above, the Commission takes the view that the European Union should not give its consent to the accession of the United Kingdom to the 2007 Lugano Convention. For the European Union, the Lugano Convention is a flanking measure of the internal market and relates to the EU-EFTA/EEA context. In relation to all other third countries the consistent policy of the European Union is to promote cooperation within the framework of the multilateral Hague Conventions. The United Kingdom is a third country without a special link to the internal market. Therefore, there is no reason for the European Union to depart from its general approach in relation to the United Kingdom. Consequently, the Hague Conventions should provide the framework for future cooperation between the European Union and the United Kingdom in the field of civil judicial cooperation.

The Commission then advises:

Stakeholders concerned, and in particular practitioners engaged in cross-border contractual matters involving the European Union, should take this into account when making a choice of international jurisdiction.

The new issue of the AJ Contrat (12/2020) offers a series of articles (in French) compiled by Gustavo Cerqueira (University of Nîmes, France), concerning the CISG on the occasion of its 40th anniversary. 

The dossier contains the following articles:

The challenge of uniform interpretation, by Claude Witz (Saarland University) 

The CISG’s articulation with the European Union Law, by Cyril Nourissat (University of Lyon 3)

Back on the parties’ silence about the GISG’s application, by Gustavo Cerqueira (University of Nîmes) and Nicolas Nord (University of Strasbourg)

The Vienna Convention and the action directe: back on dangerous liaisons, by Etienne Farnoux (University of Strasbourg)

The links between the foreclosure period and the deadline prescription period (about CISG’s Article 39), by Marc Mignot (University of Strasbourg)

The issue of interest rates on arrears, by Franco Ferrari (New York University)

For a reinterpretation of the concept of impediment to perform, by Ludovic Pailler (University of Lyon 3)

The full table of contents is available here.

The European Group of Private International Law (EGPIL-GEDIP) has published the minutes (in French) of its 2020 Meeting.

The topics discussed during the meeting included a proposal for a regulation concerning the applicable law to in rem rights, the codification of the general part of EU private international law and the accession of the European Union to the Hague Judgments Convention.

The EGPIL has also published separately a draft proposal for a regulation on the law applicable to rights in rem in tangible assets and Observations on the possible accession of the European Union to the Hague Convention of 2 July 2019 on the Recognition of Foreign Judgments.

In May 2021 the activity of the CJEU regarding PIL will focus on insolvency and civil and commercial matters.

The decision in C- 709/19, Vereniging van Effectenbezitters (first chamber: J.L. Bonichot, L. Bay Larsen, C. Toader, N. Jääskinen, and M. Safjan as reporting judge) will be delivered on May 12th. AG Campos Sánchez-Bordona’s Opinion was published last December. To the first question, once again on Article 7(2) Brussels Ibis Regulation and the Erfolgsort in a case of purely financial damage, he had proposed to drop the approach holding the location of an investment account as the place of the damage, and requiring particular circumstances to concur for jurisdiction to be established at that place. Moreover, he had provided a separate analysis of the fact that the claim had been filed by a Stichting under Article 3:305a Dutch civil code for merely declaratory purposes (the only possibility open at the time). NoA: A similar request for a preliminary judgment is currently pending before the Court, see C-498/20. Recent examples of claim-bundling strategy following the Dutch model, apt to raise (should they get to court) doubts relating to jurisdiction, can be found in the press: see, recently, FAZ.

A second PIL-related decision will be published on May 20. In Case C-913/19, CNP, the referring court asked several questions to the CJEU on section 3 of Chapter II of the Brussels Ibis Regulation and Articles 7(2) and 7(5) of said Regulation. AG Campos Sánchez-Bordona’s Opinion, delivered last January, follows closely the case law of the CJEU on Article 7(5); it additionally analyses its relationship to Articles 145 and 152 of the Directive 2009/138/EC, on the taking-up and pursuit of the business of insurance and reinsurance. The case has been allocated to the third chamber (S. Prechal, N. Wahl, F. Biltgen, J. Passer, L.S. Rossi as reporting judge).

On the same day, the Opinion of AG Campos’s in C-25/20, Alpine Bau, will also be published. Here, the Višje sodišče v Ljubljani (Slovenia) asks the CJEU whether Article 32(2) of Regulation 1346/2000 is 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 proceeding.

No other PIL-related decisions, conclusions or hearings are scheduled so far. Case C-124/20, Bank Melli Iran, might nevertheless be of interest, in that it relates to commercial policies and the protection against the effects of the extraterritorial application of a third State legislation. AG Hogan’s Opinion will be published on May 12th.

Monika Zalnieriute (University of New South Wales) has posted Data Transfers after Schrems II: The EU-US Disagreements Over Data Privacy and National Security on SSRN.

In the long-awaited Schrems II decision, the Court of Justice of the European Union (CJEU) took a radical, although not an unexpected, step in invalidating the Privacy Shield Agreement which facilitated the European Union – United States data transfers. Schrems II illuminates the long-lasting international disagreements between the EU and USA over data protection, national security, and the fundamental differences between the public and private approaches to protection of human rights in data-driven economy and modern state. This article approaches the decision via an interdisciplinary lens of international law and international relations and situates it in a broader historical context. In particular, I rely on the historical institutionalist approach which emphasizes the importance of time and timing (also called sequencing) as well as institutional preferences of different actors to demonstrate that Schrems II decision further solidifies and cements CJEU’s principled approach to data protection, rejecting data securitization and surveillance in the post-Snowden era. Schrems II aims to re-balance the terms of international cooperation in data-sharing across the Atlantic and beyond. It is the outcome that the US tech companies and the government feared. Yet, they are not the only actors displeased with the decision. An institutionalist emphasis enables us to see that the EU is not a monolithic block, and Schrems II outcome is also contrary to the strategy and preferences of the EU Commission. The invalidation of the Privacy Shield will now (again) require either a reorientation of EU policy and priorities, or accommodation of the institutional preferences of its powerful political ally – the USA. The CJEU decision goes against the European Data Strategy, and places a $7.1 trillion transatlantic economic relationship at risk. Historical institutional analysis suggests the structural changes in the US legal system to address the inadequacies in the Schrems II judgment are unlikely. Therefore, the EU Commission will act quick to create a solution – another quick contractual ‘fix’ – to accommodate US exceptionalism and gloss over the decades of disagreement between the EU and USA over data protection, national security and privacy. When two powerful actors are unwilling to change their institutional preferences, ‘contracting out’ the protection of human rights in international law is the most convenient option.

The paper is forthcoming in the Vanderbilt Journal of Transnational Law.

As the dust settles, the consequences of the British departure from the EU are becoming clearer, including those for British parties litigating on the Continent. Two of Germany’s highest courts have recently ordered litigants with a habitual residence in the UK to provide security for the likely costs of the defendants, which the claimants would have to pay under the German loser pays-system. The decision was taken by both the Federal Supreme Court on 1 March 2021 and by the Federal Patent Court on 15 March 2021. Both rulings have been discussed on the Dispute Resolution Germany blog by Peter Bert here and here.

Duty to Provide Security for Costs under German Procedural Law

Although German procedural law in principle envisages the possibility of an obligation to provide security if demanded by the defendant (see e.g. sec. 110 of the German Code of Civil Procedure and sec. 81(6) of the German Patent Code), the requirement for a UK resident claimant to post security for costs had been illegal as long as the UK was part of the EU. Already in 1997, the ECJ outlawed such demands by German courts in case C-323/95, David Charles Hayes and Jeannette Karen Hayes v Kronenberger GmbH. This decision was based on the prohibition of discrimination on the grounds of nationality (today Art 18 TFEU, ex Art 12 TEC).

As a consequence, litigants with a residence in the EU or the wider EEA have been exempted from the requirement to provide security for costs under sec. 110 of the German Code of Civil Procedure. With Britain now having left the EU and the the transition period having expired, it is reasonably clear the exemption no longer covers UK based claimants, who as of 1 January 2021 may need to provide security for costs upfront.

Exceptions to the Obligation to Provide Security for Legal Costs

Sec. 110(2) no 1 of the German Code of Civil Procedure and by reference also sec. 81(6) 1 German Patent Code provides an exception from the claimant’s obligation to post security for costs where “due to international Treaties, no such security deposit may be demanded”. This exception caused the Federal Patent Court to examine more deeply the legal relations between the UK and Germany post-Brexit.

The Court first analyses the Hague Convention on Civil Procedure 1954, which bans   security for costs in Art. 17. This Convention has however not been signed by the UK.

Next, the Federal Patent Court mentions the 1928 Convention Between His Majesty and the President of the German Reich regarding Legal Proceedings in Civil and Commercial Matters. Besides matters such as cross-border service and taking of evidence, the Convention also provides in its Art. 14 that the subjects or citizens of one contracting party “shall not be compelled to give security for costs in any case where a subject or citizen of such other Contracting Party would not be so compelled”. Yet this clause applies only under the proviso “that they are resident in any such territory”, which means the territory of the contracting party where a claim is brought. Since the British claimants in the cases at hand were not resident in Germany, they could not rely on this clause.

The Court further analyses the European Convention on Establishment, which was concluded under the auspices of the Council of Europe in 1955 and binds a number of states, including Germany and the UK. Its Art. 9 and 30 set out exceptions from the requirement to post security for costs. Yet these provisions are limited to natural persons, whereas the claimant in the case discussed was a corporation.

Finally, the Federal Patent Court also discusses the Trade and Corporation Agreement concluded between the EU and the UK on Christmas Eve 2020. Its Art. IP.6 provides for some special rules with regard to the protection of IP rights. But they only cover the “availability, acquisition, scope, maintenance, and enforcement of intellectual property rights” as well as matters affecting the use of intellectual property rights specifically addressed in the TCA. Security for costs is not among them.

Since there was thus no international treaty in the sense of sec. 110(2) no 1 of the German Code of Civil Procedure, the Federal Patent Court decided that the British claimant had to provide security for costs.

The Relevance of the Brussels Convention 1968

Peter Bert discusses in the Dispute Resolution Germany Blog whether the continued applicability of the Brussels Convention 1968, which has been debated various times in this blog, might change the outcome. From my point of view, this is not the case, as the Convention does not address the issue of security for costs but is focused on issues of jurisdiction as well as recognition and enforcement of judgments.

Conclusion

The two German court decisions illustrate the complexity of international litigation post-Brexit. Courts and parties need to deal with a plethora of often dated international conventions concluded before the UK’s accession to the EU. The decisions clearly show the weaknesses of the lack of international agreements and the disadvantages of Brexit for claimants in Germany who are habitually resident in the UK. The situation in other Member States might well be different from Germany’s, possibly giving rise to even further complications.

On 22 April 2021, the Court of Justice of the European Union ruled on the law governing the avoidance of the payment of a contractual obligaton by a third party in Z.M. v. E.A. Frerichs, Case C-73/20 (see the previous reports of K. Pacula and G. van Calster).

Background

The issue arose in the context of the insolvency of a German company, Oeltrans Befrachtungsgesellschaft, in Germany. Oeltrans had made a payment to Dutch company Frerichs, that the liquidator of Oeltrans sought to challenge pursuant to the German law of detrimental acts.

The payment had been made for the purpose of performing a contact concluded between Frerichs and Tankfracht GmbH, a German company which belonged to the same group as Oeltrans. It was accepted that Dutch law governed the contract.

While the payment could be challenged under German law, it could not under Dutch law.

Issue

In principle, it was clear that the law of the insolvency governed any action for challenging detrimental acts (Art 4 – today 7- of the Insolvency Regulation). The only exception is the famous then article 13 (today 16) of the European Insolvency Regulation, which refers to the law governing the relevant act:

Article 4(2)(m) shall not apply where the person who benefited from an act detrimental to all the creditors provides proof that:

–        the said act is subject to the law of a Member State other than that of the State of the opening of proceedings, and

–        that law does not allow any means of challenging that act in the relevant case.

The question was, therefore, whether the law governing the relevant act, the payment, was the law of the contract. Importantly, the detrimental act was not the contract, to which the insolvent debtor was a third party. It was a payment made by a third party for the purpose of performing a contract.

Rationale of Article 13

The issue raised was primarily one of insolvency law, and the judgment rightly focuses on the interpretation of Article 13.

The court repeats that the rationale of the exception in Article 13 is to protect the expectations of the party who contracted with the insolvent debtor. That party, the court explains, cannot foresee that its debtor could become insolvent, and where such proceedings could be opened.

33. A party to a contract who has benefited from a payment made by its contracting partner or by a third party in performance of that contract cannot reasonably be required to foresee that insolvency proceedings may be opened against that contracting partner or that third party and, if so, in which Member State those proceedings will be opened.

Nothing in this rationale is convincing. Any reasonable businessman knows that his contractual partners may become insolvent. And, if this businessman has any knowledge of private international law (unlikely, but his lawyers should), he/they will know that the insolvency proceedings would be opened in the country of origin of that partner, and that the law of that country will apply. The surprise, if any, is the existence of Art. 13, and the remarkable result to which it leads: contract law trumps insolvency law.

Article 13 is more simply a failure of European integration, which prevents the recognition of insolvency proceedings within the EU. There are many other such rules in the Insolvency Regulation. This is the political compromise that the Member States reached when they negotiated the Regulation 20 years ago.

Encouraging Fraud?

It is not for the CJEU to change this political compromise and to delete Article 13 (although the Court has not hesitated to move beyond the political compromise of Member States in other circumstances, when interpeting the Evidence Regulation for instance).

But the Court needs not extend the scope of Article 13 beyond what is necessary and encourage fraud.

In Vinyls Italia (Case C-54/16), the Court had accepted that the parties to a domestic contract could avoid the application of insolvency law by choosing a foreign law to govern their contract and shield it against insolvency proceedings.

In the  present case, the insolvent debtor was asked by another company from the same group to pay under a contract concluded by the other company of the group. This looked very suspicious indeed. Was the goal to put the funds of the insolvent company beyond the reach of its creditors by releasing a company of the same group from one of its debts? Maybe not in this case, but it is now possible to do exactly that in the future.

So it might have been possible to determine the law governing the payment in a more objective way than simply submitting it to the law of a contract that the parties may freely choose (including if it is a domestic contract).

A possible solution could have been to decide that the payment was governed by the law of the place where the payment occurred.

Jan von Hein and Thalia Kruger are the editors of a new volume published with Intersentia on Informed Choices in Cross-Border Enforcement. The European State of the Art and Future Perspectives. The book is dedicated to the functioning of the European Uniform Procedures in eight Member States (Belgium, France, Germany, Italy, Luxembourg, The Netherlands, Poland, and Spain), and is the outcome of the research project financed by the European Commission called Informed Choices in Cross-Border Enforcement (IC2BE).

The blurb of the book reads as follows:

How to choose the most beneficial enforcement regime for cross-border claims of a client? A question considerably complicated by (1) the existence of various European Union enforcement tools and (2) particularities in the national legal systems that impact on the operation and suitability of the various enforcement tools.

This book compares and analyses the practical utility and potential pitfalls of the 2nd generation regulations (European Enforcement Order, European Order for Payment, European Small Claims Procedure and European Account Preservation Order) and their relation to Brussels I-bis. Further, it analyses whether and to what extent all of the 2nd generation EU regulations prove their worth in the cross-border enforcement of claims, and which measures can be recommended for their practical improvement and for achieving greater consistency in European enforcement law.

The work is based on an extensive evaluation of case law (more than 500 published and unpublished), empirical data (150 interviews with practitioners) and literature from eight Member States (Belgium, France, Germany, Italy, Luxembourg, The Netherlands, Poland, Spain) and the Court of Justice of the European Union. It provides an extensive and up-to-date picture of the cross-border enforcement of claims across Europe and is an important resource for academics and practitioners alike.

Additionally, the case law that was used for the analysis can be consulted online in a free access database. This includes the decisions of the Court of Justice of the European Union (here) and the English summaries (and in certain cases also the links to the original decisions) of the judgments of the national courts regarding the four European procedures (here).

More information about the IC2BE project can be found here.

On Friday, 23 April 2021, we informed our readers about an article on the legal aspects of a possible claim brought by the EU against the pharmaceutical company AstraZeneca. The post could not have been timelier. Today (Monday, 26 April 2021), the Commission announced it has indeed commenced legal proceedings last Friday against AstraZeneca due to vaccine shortages.

The action was brought before the Belgian courts, as is provided for under the contract between both parties and as was predicted in the article authored by Sixto Sánchez Lorenzo.

Stefan de Keersmaecker, a spokesman on health issues for the Commission, said:

The reason indeed being that the terms of the contract, or some terms of the contract, have not been respected and the company has not been in a position to come up with a reliable strategy to ensure the timely delivery of doses.

It is reported that the decision to bring the action was made jointly with all 27 Member States. It is unclear whether this means the Member States have formally joined or merely support the  action. The further developments remain to be seen.