EAPIL blog

This is a guest post by Katažyna Bogdzevič (Mikša), an associate professor of the Institute of International and European Union Law at the Law School of Mykolas Romeris University in Vilnius, Lithuania and an advisor to the Lithuanian Ministry of Justice. 

The CJEU’s judgement in the case of E.E. case (C-80/19) has already attracted scholars’ attention and it is not surprising (for posts on this blog see: here and here). For the first time, the CJEU had an opportunity to elaborate on the Succession Regulation with respect to so many important matters: the cross-border nature of the succession case, the notion of court, the scope of jurisdictional rules and authentic instruments and, finally, the choice of applicable law. The outcome of the case at the Supreme Court of Lithuania, after CJEU judgement, is presented below.

Background of the Case

A deceased person was a Lithuanian national who married a German national and moved to Germany in 2013. The same year she made a will before a notary in Kaunas (Lithuania) and designated her son E.E. as the only heir. She passed away in 2017, and her son approached the notary in Kaunas to open the succession and issue a national succession certificate. However, his request was rejected, as the notary had no jurisdiction in accordance with the Succession Regulation. E.E. have appealed this decision to the court.

Lithuania did not notify the Commission pursuant to Article 79 of the Succession Regulation of the other authorities and other legal professionals (except for the courts), which exercise judicial functions or act pursuant to a delegation of power by a judicial authority or act under the control of a judicial authority. However, the CJEU ruled already in the WB case (C-658/17) that failure by a Member State to notify the Commission of the exercise of judicial functions by notaries, as required under that provision, is not decisive for their classification as a court. As a result, in the absence of a clear answer whether Lithuanian notaries are courts, they applied jurisdiction rules provided by the Succession Regulation for the purpose of issuing national succession certificates.

The Supreme Court of Lithuania, while dealing with cassation appeal, referred a preliminary questions to the CJEU regarding the cross-border nature of the case, the notion of the court and the legal nature of the national succession certificate issued by the Lithuanian notaries, both in case they can be considered courts and in case they cannot.

CJEU Guidelines 

After the CJEU ruling, there are no doubts that the case at stake is of a cross-border character. Hence, this issue is left outside of this comment. The most interesting part is regarding the functions of the notaries and assessment of whether they exercise judicial powers or act pursuant to delegation of power by a judicial authority or act under the control of a judicial authority.  The CJEU reminded that Lithuanian notaries are not courts, unless they act pursuant to a delegation of power by a judicial authority or act under the control of a judicial authority. The CJEU did not use this opportunity to elaborate on these premises but left it for the national court to decide.

The Outcome of the EE Case Back in Lithuania

On 4 November 2020, the Supreme Court of Lithuania ruled in the resolution (No e3K-3-422-378/2020) that Lithuanian notaries are not courts within the meaning of the Succession Regulation.

The Supreme Court started its analysis by recalling Article 3(2) Succession Regulation. The further considerations were based mainly on the Law on Notaries. Article 1 of this law grants notaries with rights to legally establish uncontested rights and legal facts of natural and legal persons to ensure the protection of these persons and the state’s legitimate interests. A notary is required to act with greater diligence and caution and is obliged to comply with the law strictly and to refuse to perform notarial acts if they infringe the law or do not comply with it. Such an understanding of a notary’s functions presupposes that the notary does not solve disputes between the parties, does not establish disputable circumstances, and, in case of doubts or disagreements about the rights or legal facts of persons, shall refuse to certify such rights or facts.  A notary may certify certain rights or facts only if there are no doubts about their content and legality.

Pursuant to Article 26(1)(2) Law on Notaries, which defines notarial acts performed by notaries, notaries shall issue (national) succession certificates. The Supreme Court, in its previous case-law, provided that the facts contained in notarized documents are established and cannot be proved otherwise until these documents (or parts thereof) are declared invalid following the procedure established by law (Article 26(2) Law on Notaries).

In case of a dispute between the heirs in a succession case, such dispute shall be settled in a court in accordance with the rules established in Article 12 of the Law on Courts, which stipulate that the Supreme Court of Lithuania, regional and district courts are courts of general jurisdiction. Since Lithuanian notaries are not granted the right to rule on the issues which gave rise to the dispute between the parties and the right to establish facts which are not clear and obvious or to decide on the disputed facts, the Supreme Court concluded that the issuance of a national succession certificate does not imply the performance of judicial functions. Therefore, if the notaries are not considered courts within the meaning of the Succession Regulation, they are not bound by its jurisdictional rules. The Supreme Court pointed out that in order to establish a uniform solution in cross-border inheritance cases, the legislator could enact a provision obliging Lithuanian notaries to follow the rules of jurisdiction established in the Succession Regulation. However, in their absence, notaries in Lithuania must follow national law rules in cross-border succession cases.

Conclusion

The Supreme Court concluded that in the present case, having established that the succession was of a cross-border nature, a notary in Lithuania is competent to issue a national succession certificate without the need of analyzing jurisdictional rules of the Succession Regulation. To the contrary, in the event of a dispute, the court’s jurisdiction shall be determined based on the provisions of the Succession Regulation.

David Dyzenhaus (University of Toronto Law and Philosophy) has posted Not an Isolated, Exceptional, and Indeed Contradictory Branch of Jurisprudence on SSRN.

The abstract reads:

Private international law [PrIL] got—and gets—virtually no attention in general philosophy of law, by which I mean Anglo-American philosophy of law since World War II with its debates about the nature of law, of legal authority and obligation, and the relationship between law and morality; principally, the Hart/Fuller debate and the Hart/Dworkin debate. I argue that PrIL can illuminate these debates. My argument works by excavating the ‘deep juridical structure’ of the House of Lords decision in Oppenheimer v. Cattermole (1976) through the lens of an article by the great PrIL scholar, F.A. Mann, which changed the course of the case. In particular, I contrast Lord Cross’s dictum that a Nazi nationality-stripping decree of 1941 constituted ‘so grave an infringement of human rights that the courts of this country ought to refuse to recognize it as law at all’ with Lord Pearson’s dictum that an individual would lose his nationality ‘however wicked’ the government and ‘however unjust and discriminatory and unfair’ the law, as long as that government had ‘been holding and exercising full and exclusive sovereign power’ and had ‘been recognized throughout by our government as the government of that country’. I show that Cross’s conclusion presupposes a Kelsenian juridical structure and Pearson’s a Hartian one. Since only the former is properly juridical and can make sense of the idea of judicial duty in PrIL, it is to be preferred.

On 10 December 2020, the CJEU decided in the case of A. B. and B. B. v Personal Exchange International Limited whether and under what circumstances a player in an online poker game can be considered a “professional” and accordingly fall outside the scope of the consumer provisions of the Brussels I and Brussels I bis Regulation.

Facts

B. B., a natural person living in Slovenia, and Personal Exchange International Limited (PEI), a company operating a platform offering online poker on a cross-border basis inter alia in Slovenia, entered into a contract that allowed B. B. to play poker on the platform. The contract contained a jurisdiction clause which conferred jurisdiction on the courts of Malta.

Between March 2010 and May 2011, B. B. spent a daily average of 9 hours on the game and earned no less than EUR 227.000 in just over one year. In 2011 PEI froze B. B.’s account and retained the money in his account.

After being sued by B. B. in Slovenia, PEI refused to consider him a consumer and insisted on the validity of the choice-of-court clause contained in the contract.  PEI thus denied the jurisdiction of the Courts in Slovenia. The Vrhovno sodišče, the highest court of Slovenia, referred the question of the international jurisdiction of the Slovenian courts over the case to the CJEU.

Issue

The legal issue was therefore whether a person can be regarded as a consumer in the sense of Art 15 et seq. Brussel I Regulation if the person has specialised knowledge and skills in the area, spends a considerable amount of time with the subject matter of the contract and derives a significant profit from it.

Holding and Rationale

In its judgment, the CJEU first clarifies that the Brussels I Regulation applies on the basis of temporal scope under  Art 81 Brussels Ibis (para 3).

Regarding characterisation as a consumer or professional, the CJEU stresses that neither the profits made, nor the regularity with which the game was played, nor the knowledge or expertise of the player would be decisive as such (para 49). Instead, the Court of Justice highlights that B.B. did not offer any goods or services to third parties and had not officially registered its activity (para 48). With these guidelines in mind, the CJEU left the final characterisation of the B.B.’s status to the national court (para 49).

Assessment

The judgment is in line with the CJEU’s previous case law, such as the decision in Petruchova and Schrems. The Court of Justice rightly stresses the need for legal certainty, which could be undermined if the characterisation as a consumer were to depend on variables such as the profits made, the time spent on an online game or the knowledge or expertise of the player.

It is equally easy to understand why the Court of Justice introduced the criterion of offering goods and services to third parties for qualification as a professional. More contestable is the criterion of registration of activities by the player: whether somebody is to be considered a professional or a consumer should not be made subject to his or her own decision to register. As a result of the decision, it will be extremely hard, if not impossible, to ever consider an online poker player a professional. Hold’em all!

A new development in Poland concerning the legal situation of children born to same-sex couples, including through surrogacy, is worth mentioning.

The current state of affairs in this area in Poland was illustrated earlier on this blog, and here on Conflictoflaws. As explained in these posts, Polish authorities and administrative courts tend to object to the transcription into Polish civil status registry of a foreign birth certificates indicating persons of the same sex as parents. This results in practical complications in everyday life of the family, for example when parents apply for an ID cards for their children.

In one of such cases, the Regional Administrative Court in Kraków decided on 9 December 2020 to submit the following preliminary question the Court of Justice of the EU (III SA/Kr 1217/19, in Polish):

Should Article 21(1) in connection with Article 20(2)(a) of the Treaty on the Functioning of the EU in connection with Article 7, Article 21(1) and Article 24(2) of the EU Charter of Fundamental Rights be interpreted in such a way that it precludes the authorities of an EU Member State, whose nationality a child holds, from objecting to the transcription of the birth certificate issued in another Member State, indispensable for the issuance of the identity card of the Member State of the child’s nationality, on the ground that its national law does not provide for same-sex parentage, whereas the birth certificate indicates persons of the same sex as parents?

The referring court asked that the matter be dealt with under an urgent procedure, since the interests of a child are at stake.

In the case at issue, a child was born in Spain to two women, one of Polish and the other one of Irish nationality. The Spanish birth certificate indicates both women under the heading Mother A and Mother B as parents. The women were legally married in Ireland. The child does not have either Spanish or Irish nationality (the reason for that is not explained in the decision), so parents wanted the birth certificate to be transcribed into Polish civil status register asa a precondition to apply for an ID card and a passport. Administrative authorities, referring to the quite settled jurisprudence of the Administrative Supreme Court, rejected this application explaining that such transcription would be contract to public policy (ordre public).

The information about this case was released on the official website of the Polish Ombudsman (here), who intervened in the case and submitted that CJEU should have its say on the matter, given that EU law, including as regards the free movement of persons, is involved.

Directive (EU) 2020/1828 of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC was published on 4 December 2020 (OJ L 409/1).

It consists of 79 recitals, 26 provisions (some of them actually looking as recitals, and vice-versa), and two Annexes, the second being a correlation table of provisions – to my mind, a good lawmaking practice. It will enter into force on the twentieth day following that of its publication in the Official Journal of the European Union; transposition shall be ready by 25 December 2022; the national measures will apply from 25 June 2023.

The Key Features of the Directive in a Nutshell

The Directive is based  on Article 114 TFEU (see nevertheless Recital 76, arguing that the intervention of the EU is necessary due to the relevance of the cross-border element).

Having regard to its overarching objective, the Directive joins the group of measures aiming simultaneously at the protection of the consumer, the promotion of fairer competition and the creation of a level playing field for traders operating in the internal market (in other words, this piece of legislation has not been conceived only for the sake of consumers; therefore, it is here submitted that it should not be interpreted only with them in mind).

The Directive  takes up the failures of precedent legal acts in relation to the enforcement of consumer law, particularly Directive 2009/22/EC on injunctions for the protection of consumers’ interests. As in other fields of EU law, it clearly endorses private enforcement.

According to the Directive, a consumer is any natural person who acts for purposes outside that person’s trade, business, craft or profession, independently of how she is referred to (data subject, traveler, retail investor, etc) in the legal act allegedly infringed.

The Directive covers infringements of the provisions of Union law referred to in its Annex I, to the extent that they protect the interests of consumers, and provided the natural person involved acts as such.

For those willing to get the whole picture as to the scope of the Directive it is worth noticing that it does not substitute the enforcement mechanism contained in the EU legal acts listed in Annex I (by the way: keep in mind that Annex is subject to be amended each time that a new Union act relevant to the protection of the collective interests of consumers is adopted). In addition, Member States are able to retain or introduce national legislation that corresponds to provisions of this Directive in relation to disputes that fall outside the scope of Annex I. My understanding is that this possibility relates only to subject matters, and not to the subjective scope of the Directive.

The impact of the Directive on national systems will depend on the Member State concerned. National procedural mechanisms for the protection of collective or individual consumer interests – where they exist – do not need to be replaced. It is for the Member States to decide whether the procedural mechanisms for representative actions required by the Directive are part of an existing procedural mechanism for collective injunctive measures or redress measures, or a distinct procedural mechanism.

What matters is that at least one national procedural mechanism for representative actions complies with the Directive in every Member State, and, as a consequence, at least one effective and efficient procedural mechanism for representative actions, for injunctive measures and for redress measures, is available to consumers in all Member States.

In terms of contents, the Directive does not address every aspect of the proceedings. Already whether these should be judicial or administrative, or both, is to be decided by the Member States considering the area of law or the economic sector at stake.

The provisions eventually adopted focus on legal standing (and its mutual recognition), remedies (injunctive relief, redress measures), funding, settlements, allocation of costs, information about representative actions, effects of final decisions, limitation periods, disclosure of evidence, and penalties.

It is for the Member States to lay down the rules complementing those of the Directive under the principle procedural autonomy, subject to the requirements of effectiveness and non-discrimination.

Aspects of the Directive of Interest for PIL

The Directive does not intend to affect the application of rules of private international law regarding jurisdiction, the recognition and enforcement of judgments or applicable law, nor establish such rules (in other words, the well-known shortcomings of the existing PIL instruments are not remedied).

This intention has not prevented the lawmaker from shaping two cross-border categories: ‘cross-border infringements’, and ‘cross-border representative actions’.

The former covers ‘in particular’ the case of consumers affected by an infringement who live in Member States other than the Member State in which the infringing trader is established; what else is included is unclear. The latter designates the situation of a qualified entity bringing a representative action in a Member State other than that in which it is designated; conversely, if a qualified entity brings a representative action in the Member State in which it is designated, that representative action will qualify as a domestic representative action, even if it is brought against a trader domiciled in another Member State and even if consumers from several Member States are represented within that representative action. I would argue here that those categories have no meaning beyond the Directive itself; in other words, they should be accorded no significance in terms of application of PIL instruments.

Recital 22, according to which ‘It should be noted that Regulation (EU) No 1215/2012 does not cover the competence of administrative authorities or the recognition or enforcement of decisions by such authorities’, deserves a similar assessment. In my view, whether a representative action filed by an administrative authority falls under the scope of the Brussels I Regulation or not still depends on the autonomous characterization of the dispute as ‘civil and commercial’.

In addition to the clarification regarding PIL instruments, the following issues of interest for cross-border disputes are addressed in the Directive (not necessarily in the operational part).

Useful information for the courts – When bringing a representative action, a qualified entity should provide sufficient information on the consumers concerned by the representative action to the court or the administrative authority, thus allowing the court or administrative authority to determine whether it has jurisdiction and to determine the applicable law.

Useful information for the consumers – Member States should be able to set up national electronic databases that are publicly accessible through websites providing information on the qualified entities designated for the purpose of bringing domestic representative actions and cross-border representative actions, as well as general information on ongoing and concluded representative actions.

Legal standing criteria – For the purposes of cross-border representative actions, qualified entities should be subject to the same criteria for designation across the Union. Examples are listed – non exhaustively – under recital 25. Moreover, qualified entities that have been designated on an ad hoc basis are not allowed to bring cross-border representative actions.

Mutual recognition – Member States should ensure that cross-border representative actions can be brought before their courts or administrative authorities by qualified entities that have been designated for the purpose of such representative actions in another Member State. The identity of qualified entities enabled to sue abroad will be communicated to the Commission, who will compile a list and make it publicly available. Inclusion on the list serves as proof of the legal standing of the qualified entity bringing the representative action.

Opt-in – In order to ensure the sound administration of justice and to avoid irreconcilable judgments, where the consumers affected by an infringement do not habitually reside in the Member State of the court or administrative authority before which the representative action is brought, an opt-out mechanism is excluded regarding representative actions for redress measures. In other words, consumers have to explicitly express their wish to be represented in that representative action in order to be bound by the outcome of the representative action.

Cooperation and the exchange of information between qualified entities from different Member States is encouraged, in order to increase the use of representative actions with cross-border implications.

The post below was written by Bernard Haftel, who is Professor of Private International Law at the University of Sorbonne Paris Nord.

This is the fifth contribution to the EAPIL online symposium on the ruling of the Court of Justice in the case of Wikingerhof v. Booking.com. The previous posts were authored by Matthias Lehmann, Adrian Briggs, Gilles Cuniberti and Peter Mankowski. 

Readers are encouraged to share their views by making comments to the posts. Those wishing to submit longer contributions for publication are invited to get in touch with the managing editor of the blog, Pietro Franzina, at pietro.franzina@unicatt.it.

With the Wikingerhof ruling of 24 November 2020, the European Court of Justice once again returns to the seemingly endless question of the distinction between matters relating to contract and tort [1] within the meaning of Article 7 of the Brussels I bis Regulation and once again fails to provide a satisfactory solution.

As in the Brogsitter case, the present case dealt with an action between contracting parties based on the breach of rules which are considered, at least in domestic law, to belong to the law of torts. A German hotelier – the now famous Wikingerhof – decided to take action against the well known online platform Booking, established in the Netherlands, seeking an injunction prohibiting certain conducts provided for in Booking’s general terms and conditions. In particular, the plaintiff alleged that Booking had, without its consent, placed a reference to “preferential prices” or “discounted prices”, that it had been deprived of access to the contact information provided by its contracting partners via the platform and that it had made the hotel’s positioning dependent on a specifically high commission.

The difficulty inherent in classifying this type of situations, based on tort provisions but exercised between contracting parties [2], had been singularly aggravated by the famous Brogsitter judgment which had, in this respect, laid down the following rule: an action for liability based on tort rules in national law but brought between contracting parties is a matter of contract “where the conduct complained of may be considered a breach of the terms of the contract, which may be established by taking into account the purpose of the contract”.

Case law subsequent to the Brogsitter judgment had in fact reflected this, in particular with regard to the thorny question of liability actions for termination of established commercial relations, especially when base on French law (former Article 442-6, I, 5° now Article 442-1, II of the French Code de commerce).

Yet, in every respect, even if nothing expressly indicates it, the Wikingerhof judgment constitutes a complete reversal of the Brogsitter judgment (I), reintroducing, in a questionable manner, the distributive approach of the Kalfélis judgment (II) and substituting a new criterion, loosely based on previous case law (III) and consequently raising the question of the durability of certain recent solutions (IV).

I. A Discreet Turnaround

Even if at no time does the Court say so and even if, in his opinion, Advocate General Saugmadsgaard Øe cleverly tries to claim the contrary, the Wikingerhof judgment is a pure and simple repudiation of the Brogsitter case law.

In this respect, the judgment is particularly laconic, which is in stark contrast to the Advocate General’s opinion, simply stating that an action falls within the scope of the matters relating to a contract within the meaning of point 1 of Article 7 “if the interpretation of the contract between the defendant and the applicant appears indispensable to establish the lawful or, on the contrary, unlawful nature of the conduct complained of against the former by the latter” (para. 32), thus taking up a passage along these lines from the Brogsitter judgment (para. 25), and specifying that if the contrary is the case, if it is not necessary to examine the content of the contract, then the action will belong to the matters relating to tort, delict or quasi-delict within the meaning of point 2 of Article 7 (para. 33).

This presentation must be read in the light of Mr Saugmadsgaard Øe’s opinion, which refers to and distinguishes between two possible interpretations of the Brogsitter judgment. According to a first approach, which he calls “maximalist”, a claim would fall within the scope of contractual matters “if the conduct complained of may be considered a breach of the terms of the contract” (para. 69), whereas, according to a “minimalist” interpretation, a claim would fall within the scope of contractual matters when “the interpretation of the contract between the defendant and the applicant appears indispensable to establish the lawful or, on the contrary, unlawful nature of the conduct complained of against the former by the latter” (para. 70).

It was this second – minimalist – approach that was advocated by the Advocate General and which was adopted by the Court, thus repudiating the maximalist reading.

However, it will not escape anyone’s notice that the quotation illustrating the so-called maximalist reading is in fact the actual operative part of the Brogsitter judgment. Despite the ingenuity of the Advocate General’s approach, it is quite clear that by repudiating the so-called maximalist reading, the Court of Justice has here made a complete reversal, abandoning the contribution of the Brogsitter Case.

There is a notable difference here with the French Cour de Cassation, which is more and more frequently staging its reversals of case law [3], where, out of loyalty to its predecessors or perhaps out of humility, the judges of the Court of Justice never actually say that they are making a case law reversal.

The judgment thus reverts to a distributive logic, typical of the Kalfelis judgment: actions between contractors will be either tortious or contractual, depending on the rules on which they are based.

II. The Principle of a Distributive Approach

Whereas the Brogsitter judgment largely implied an absorption of the tort by the contractual part, i.e. a submission of all actions between contracting parties to the forum of the contract as soon as the conduct complained of could be regarded as a breach of contractual obligations, the present judgment focuses essentially on the nature of the rules on which the application is based, which has three damaging consequences.

Firstly, a dispersal of the dispute. It will often happen that the same contractual dispute will give rise to both tort and contract aspects, especially when the applicable laws will, like English and German law, leave the plaintiff an option in this respect. In such cases, the two aspects of the dispute, which are like two sides of the same coin, will be dealt with by two different courts. It might be tempting to object that Article 4 remains available in this case and allows the entire dispute to be referred to the judge of the defendant’s domicile, but this option is left to the plaintiff’s discretion, which brings us to the second difficulty.

The solution then aggravates the procedural imbalance between the parties. By multiplying the number of judges likely to be competent, here according to the basis of the claim, we multiply the power of the one who has, in practice, control of the option: the plaintiff. This inequality is in itself an anomaly in a trial which is normally based on the principle of equality of arms, and the Advocate General cannot agree with him when he considers that forum shopping is not in itself a problem and only becomes so in the event of abuse (para. 86 et seq.). In our view, Forum shopping, which benefits only one of the parties, is always, inherently bad.

Finally, the solution becomes truly impracticable when the resolution of the dispute depends on both tort and contractual aspects. Let us take the example of an action brought on the basis of a tort but which comes up against the principle of non-cumul [4]. In such a case, the court hearing only the tort aspect will either have to disregard the contractual aspects for which it has no jurisdiction and therefore give an inappropriate decision, or take them into account in dismissing the tort action but not rule on the contractual aspect.

This second solution, advocated by the Advocate General (para. 88), is not more convincing. It must be understood that the court would then have to consider the contractual aspect in its entirety, and thus determine the content of the contract, the extent of the obligations imposed by the stipulations and by the law applicable to it and the position of that law as regards the option or non-cumul question, but could only draw the consequence, in the event of non-cumul, of dismissing the action based on tort and would be obliged to refer the resolution of the contractual aspect to the forum of the contract. Such a solution would be, at the very least, a very poor administration of justice and a great waste of time and, at worst, a source of major inconsistencies. It is enough to imagine that the two successive judges would adopt different positions as to the law applicable to the question of cumulative liability.

It is therefore in many respects unfortunate that the European Court of Justice has decided to return to the distributive approach of the Kalfelis case law.

However, contrary to what the Kalfelis judgment might have suggested, it is not the classification in national law that will determine the nature of the tort or contract, but an autonomous classification and for the purposes of the Regulation, which presupposes a criterion.

However, in this respect, the desire to maintain the appearance of continuity with the Brogsitter case law leads the Court to endorse a largely flawed criterion.

III. The Chosen Criterion

The concern to maintain the illusion of continuity in the case law, and in particular continuity with the Brogsitter judgment, led the Court to uphold what was probably the most questionable point in that decision: the “test” which, in the logic of that judgment, was to determine “where the conduct complained of may be considered a breach of the terms of the contract”. In order to determine whether this is the case, the Brogsitter judgment advocated checking wether “the interpretation of the contract which links the defendant to the applicant is indispensable to establish the lawful or, on the contrary, unlawful nature of the conduct complained of against the former by the latter ” (paras 24 and 25).

This test is particularly questionable because it is completely incapable of taking account of the subtle interweaving of legal rules and contractual provisions, it being furthermore recalled that, as the Advocate General observes, the methods of coordination of the two orders of liability vary from one country to another (paras 55 and 56).

Indeed, the effect of a contract is always to alter the pre-existing legal order, in particular by making unlawful what would have been lawful in the absence of the contract or by making lawful what would have been unlawful in the absence of the contract. Thus, even where the action will be based on an extra-contractual provision in domestic law, it will often be necessary to interpret the contract in order to determine whether or not the conduct complained of was lawful. An example of this is an action brought by the holder of intellectual property rights against his licensee for exceeding the rights granted. The interpretation of the contract is necessary to determine whether or not the rights granted have been exceeded. However, assuming that the rights have been exceeded, illegality would arise from the rules governing the author’s monopoly, in the same way as if there were no contract at all. In this respect, the objections proposed by Mr. Saugmadsgaard Øe, who takes the view that the criterion involving the interpretation of the contract would apply only to the claim and not to any defences, are not really convincing (paras 105 et seq.).

All in all, the other criterion mentioned by the Advocate General, distinguishing between, on the one hand, “the stipulations of a contract and/or rules of law which are applicable because of that contract” and, on the other hand, “rules of law which impose a duty on everyone, independently of any voluntary commitment”, would have seemed infinitely more accurate and more practicable to us.

It corresponds to the idea of “plus contractuel” [5], perfectly expressed by Lord Goff, according to which “the law of tort is the general law, out of which the parties can, if they wish, contract” [6].

It is an approach of this kind that should undoubtedly prevail in matters of conflict of laws, for the application of the Rome I and Rome II Regulations [7].

However, in matters of jurisdiction, the question arises in a different way. The question of jurisdiction often arises at the beginning of the dispute, at a time that necessarily calls for simplicity. In French law, moreover, the question arises concretely in a phase with a single judge – the juge de la mise en état – and it is in this respect necessary to simplify as much as possible the treatment of questions of qualifications. For this reason, as explained above, it is preferable to adopt a global and non-distributive approach, contrary to what might be done for the conflict of laws [8].

IV. The Survival of Intermediate Case Law

This change of course raises a question of scope, in terms of the solutions adopted since the Brogsitter judgment and, at least in part, based on them.

In particular, the European Court of Justice held in a Granarolo case that an action for the termination of commercial relations must be classified as contractual where there is a “tacit contractual relationship” (whatever that is) between the parties. Following the new logic of the Wikingerhof judgment, such a solution could probably not be renewed. In fact, the conduct complained of – i.e. the termination of established commercial relations – is sanctioned by the former Article L. 441-6, I, 5° (now L. 442-1, II) of the French Commercial Code whether or not there is a framework contract binding the parties. This is even its main interest. It is therefore a rule “which imposes a duty on everyone, independently of any voluntary commitment” and, obviously, since it is a mandatory legal obligation, the lawful or unlawful nature of the conduct complained of does not in any way imply an interpretation of the contract which may bind the parties.

This remark reflects on many other hypotheses and in particular the “pratiques restrictives de concurrence” (restrictive practices of competition) which appear in Articles L. 442-1 et seq. of the Commercial Code and similar provisions in other legal systems.

In all these cases, such practices are prohibited in any event, whether or not there is a contract between the parties. In fact, the prohibition of “subjecting or attempting to subject the other party to obligations creating a significant imbalance in the rights and obligations of the parties” in Article L. 442-1, I, 2° of the Commercial Code is very similar to the abuse of a dominant position under German law at issue in the commented judgment.

Is it to be inferred from this that, henceforth, all actions based on restrictive practices of competition would necessarily fall within the scope of tort, even between contractors?

And what about actions relating to these unbalanced clauses and seeking their annulment? In the area of conflict of laws, the European Court of Justice has ruled that the assessment of the lawfulness of contractual terms is a matter for the Rome I Regulation, even where the action is brought by a third party to the contract, in this case a consumer protection body. Is this solution obsolete?

Or should a distinction be drawn according to the purpose pursued by the action, holding that an action seeking to have a contractual stipulation declared null and void would be contractual in nature, even where that nullity results from a rule of conduct binding on everyone?

If so, in the event of an action seeking to challenge a clause that is unbalanced, there would then be two competent judges: the forum of the tort for the action for liability stricto sensu and the action for an injunction and the forum of the contract for the annulment, which would add to the dispersion of the litigation.

The judgment provides few answers to all these questions. More than ever, it would be necessary for the Court of Justice to take a higher view and to consider all the solutions that it infers from the qualifications it adopts as a whole.

 

[1] On this matter, see in particular V. Heuzé, “De quelques infirmités congénitales du droit uniforme: l’exemple de l’article 5. 1 de la Convention de Bruxelles du 27 septembre 1968”, Rev. crit. DIP 2000, p. 589 s., M.-E. Ancel, P. Deumier, M. Laazouzi, Droit des contrats internationaux, 2nd ed., 2019, § 106 et s. ; H. Gaudemet-Tallon, M.-E. Ancel, Compétence et exécution des jugements en Europe, 6th ed., 2018, § 186 et seq.; J.-S. Queginer, Le juge du contrat dans l’espace judiciaire européen – Qualification et détermination d’une compétence spéciale, th. Lyon 3, 2012; M. Minois, Recherche sur la qualification en droit international privé des obligations, LGDJ, 2020.

[2] On which see, in particular, S. Bollée, “La responsabilité extracontractuelle du cocontractant en droit international privé », in Mélanges en l’honneur du Professeur Bernard Audit, LGDJ, 2014, p. 119.

[3] For a recent and very clear example, see Cass. civ., 1st, 18 déc. 2019, n° 18-12.327 and n° 18-11.815, D. 2020. 426, note S. Paricard ; ibid. 506, obs. M. Douchy-Oudot; ibid. 843, obs. Régine; AJ fam. 2020.131; ibid. 9, obs. A. Dionisi-Peyrusse ; RTD civ. 2020. 81, obs. A.-M. Leroyer; Dr. fam. 2020, comm. 39, note J.-R. Binet; adde. S. Bollée, B. Haftel, “L’art d’être inconstant – Regards sur les récents développements de la jurisprudence en matière de gestation pour autrui”, Rev. crit. DIP 2020.267.

[4] In some systems, such as French law, where the same fact can theoretically constitute both a tort and a breach of contract, the plaintiff has no choice and can only act on the contractual ground, which is generally referred to as the principle of non-cumul.

[5] J. Huet, Responsabilité délictuelle et responsabilité contractuelle. Essai de délimitation entre les deux ordres de responsabilités, th. Paris II, 1978, especially n° 672; see also B. Haftel, La notion de matière contractuelle en droit international privé – Etude dans le domaine du conflit de lois, th. Paris II, 2008, especially. n° 618 et s.

[6] Henderson v. Merrett Syndicates [1994] 3 All ER 506 [532].

[7] See B. Haftel, op. cit.

[8] On the idea of an independence between the qualifications adopted in the field of jurisdiction and the one to be adopted in the field of conflict of laws, see B. Haftel, “Entre ‘Rome II’ et ‘Bruxelles I’: l’interprétation communautaire uniforme du règlement ‘Rome I'”, JDI 2010, no 3, doctr. 11, and, for the opposite view, see T. Azzi, “Bruxelles I, Rome I, Rome II: regard sur la qualification en droit international privé communautaire”, D. 2009, p. 1621.

Tamás Szabados (Eötvös Loránd University) published In Search of the Holy Grail of the Conflict of Laws of Cultural Property: Recent Trends in European Private International Law Codifications, in theInternational Journal of Cultural Property (vol. 27, 2020). The abstract reads as follows.

Most private international laws do not address cultural property specifically but, instead, apply the general lex rei sitae rule also to artifacts. Legal scholarship has revealed the flaws of the rigid application of the lex rei sitae principle to cultural goods and has proposed alternative connecting factors, such as the lex originis principle, to prevent forum and law shopping in this field. Reacting to the criticisms, some of the more recent private international law codifications have decided on the adoption of specific rules on stolen and illegally exported cultural goods that combine the lex rei sitae and the lex originis rules and provide room for the parties’ autonomy. This article draws the conclusion that these more recent legislative solutions do not necessarily promote legal certainty and predictability with regard to the governing law and are far from being a Holy Grail for the conflict of laws of cultural property, whether on a national level or within the European Union.

See here for more information.

In December 2019 the Hague Conference on Private International Law (HCCH) convened experts and stakeholders from around the world to discuss technology developments in cross-border litigation in an a|Bidged event dedicated to the 1965 Service Convention.

The contributions by the various speakers to The HCCH Service Convention in the Era of Electronic and Information Technology are now available in video format online.

Additionally, the discussions of the event resulted in a dedicated publication – a|Bridged – Edition 2019: The HCCH Service Convention in the Era of Electronic and Information Technology. The ebook released on 24 November 2020 can be downloaded from the HCCH website.

The a|Bridged – Edition 2019 focuses on the use of modern technology in the context of the Service Convention. Although the text of the convention itself does not contain specific references to technology in the service of documents, contributors show that the provisions’ neutrality allow them to adjust to new developments and technologies of the present time.

The book is structured in four parts.

The first part – The Prism: The Tech Battle for e-Service – examines all kind of technology supported developments from secured e-mail, electronic submission and transmission platforms to distributed ledger technology and artificial intelligence. These options are discussed from the perspective of appropriate solutions for end-to-end digitisation of transmission and execution procedures to be used under the HCCH Service Convention.

In the second part – The Lab: All Across the World – judicial representatives from different regions (i.e. England and Wales, South Korea, Brazil) discuss how their own national service procedures currently make use of information and communication technology, or are taking steps to develop in this direction in the near future. Solutions already in place or projects that are currently been developed are presented.

The third part – The Open Lab: The Text of Tomorrow – focuses on how the Service Convention could be operating in the future based on technology developments facilitating judicial cooperation, relying on blockchain technology, and options to ‘update’ the applicable provisions.

The fourth part – HCCH Unplugged – addresses specific topics that can arise from the use of information technology in the operation of the HCCH Service Convention such as security of transmissions and data protection, guarantees in the e-service of process, use of electronic email, social media, blockchain and Distributed Ledger Technology (DLT) for transmitting and handling legal records, the transmission of scanned documents via cloud computing to be served abroad, and localising the defendant via his email address for direct service purposes.

As readers of this blog know, the first EAPIL (Virtual) Seminar, devoted to the impact of Brexit on Private International Law, will take place tomorrow from 11 am to 1 pm (MET). For more information on the event, see here.

Registrations to the Seminar are now closed. The login details have been sent to the registered participants by e-mail this morning (if you can’t find our e-mail, please check your spam folder or get in touch with us at blog@eapil.org).

The author of this post is Michiel Poesen, PhD candidate at KU Leuven.

This post tells a short story about the fate of European private international law’s neutrality paradigm… Our story starts where you probably would not expect it: the 2019 Belgian company law reform.

In 2019, the Belgian legislature reformed the Company Law Code in a bid to attract more investors to Belgium. (For the record, the previous government also launched the idea of offering businesses an interesting venue for transnational litigation–the Brussels International Business Court or BIBC, which did not make it through).

One of the reform’s key elements was to make company law leaner and more flexible. Facilitating this flexibilisation, the legislature also revised the Belgian private international law provisions pertaining to company law. In sympathy with the well-known CJEU case law on the freedom of establishment in the EU, the legislature traded the seat principle for the incorporation principle as the connecting factor for the law applicable to and adjudicatory jurisdiction over companies (Articles 109–110 Code of Private International Law; Article 111 contains a list of legal questions governed by the lex societatis).

Clearly, the incorporation principle gives up on the traditional idea that the connecting factor for companies should be based on a physical element such as the presence of a company’s place of administration (see R Michaels, ‘Globalizing Savigny? The State in Savigny’s Private International Law and the Challenge from Europeanization and Globalization’ in M Stolleis & W Streeck (eds), Aktuelle Fragen zu politischer und rechtlicher Steuerung im Kontext der Globalisierung (Nomos 2007) 142).

Interestingly, the statute provides for one carve-out concerning adjudicatory jurisdiction (I should thank Professor Joeri Vananroye and Professor Stijn De Dier for bringing it to my attention). Claims relating to the personal liability of directors towards third parties can be brought in the Belgian courts if the company has its ‘main establishment’ in Belgium and has a merely formal connection the state where it is incorporated:

… the Belgian courts have jurisdiction over actions concerning the liability of directors of corporations resulting from Article 2:56, §1, of the Corporations and Associations Code towards third parties other than the corporation that arose out of acts committed in the performance of their administrative function, provided that the main establishment of the legal person is in Belgium, while the legal person is incorporated outside if the European Union [or indeed an EFTA state that ratified the Lugano II Convention] and has a merely formal connection to that state [Translation by the author, the authentic text is available in Dutch and French in the Belgian state gazette].

The main establishment ‘is determined by taking into account primarily the place of administration, as well as the centre of its business and activities, and in subsidiary order the statutory seat’ (Article 4, §3 Code of Private International Law, available in English here – although not yet reflecting the 2018 overhaul). This, in fact, is a special tort jurisdiction rule that seeks to shield Belgian residents from companies who operate in Belgium but are incorporated outside of the EU (e.g. for fiscal or organisational purposes).

The Belgian legislature enacted this provision to strike a balance between a company’s freedom to choose the forum pursuant to the incorporation principle and the protection of general interests in Belgium, such as environmental protection or the fight against tax fraud (see here, at 144–145).

Private international lawyers will be interested to know that finding the physical ‘seat’ (Sitz in classical Savignyan terms) of the tortious relationship between a director and a third party, however, was not part of the legislature’s motives. This is quite interesting. For it demonstrates how the legislature sought to balance material interests through the law of conflict of jurisdictions (see Michaels, supra, 140–141).

Hence, the legislature was not enticed by European private international law’s traditional focus on finding the legal relationship’s geographical connection (which one American realist provocatively called ‘transcendental nonsense’ long before the Belgian company law reform; FS Cohen, ‘Transcendental Nonsense and the Functional Approach’ (1935) 35 Columbia Law Review 811).

The post below was written by Peter Mankowski, who is Professor of Private International Law at the University of Hamburg. Apart from one section, the post is based on the author’s German-language case note in the Lindenmaier Möhring Kommentierte BGH-Rechtspechung. The translation into English was permitted courtesy of C.H. Beck Verlag, München.

This is the fourth contribution to the EAPIL online symposium on the ruling of the Court of Justice in the case of Wikingerhof v. Booking.com. The previous posts, authored by Matthias Lehmann, Adrian Briggs and Gilles Cuniberti, can be found here, here and here. 

Readers are encouraged to share their views by making comments to the posts. Those wishing to submit longer contributions for publication are invited to get in touch with the managing editor of the blog, Pietro Franzina, at pietro.franzina@unicatt.it.

Problem Description

The boundary between contract and tort, between Article 7 pts. (1) and (2) of the Brussels I bis Regulation, has been a mine-field for years.

The CJEU has continued to defer it to the detriment of tort and to the benefit of contract (see paradigmatically Brogsitter, paras 24-27, and flightright, paras 59-64; cf. also Holterman Ferho, paras. 70-71, and Feniks, paras 40-49). This generates enormous uncertainty (see only Baumert, EWiR 2014, 435; Slonina, ecolex 2014, 790; Wendenburg/Maximilian Schneider, NJW 2014, 1633; Dornis, GPR 2014, 352; Brosch, ÖJZ 2015, 958; Wendelstein, ZEuP 2015, 624; Reydellet, RLDA 111 [2016], 33; Pfeiffer, IPRax 2016, 111).

According to the CJEU, for a matter to be contractual, it is sufficient that there has been a breach of contractual obligations because it appears essential for the interpretation of the contract to determine whether the conduct at issue in the main proceedings is lawful or unlawful (Brogsitter, paras 24-27).

The national courts struggle with this and in some cases even make express ‘Brogsitter reservations’ (see in particular OGH ÖJZ 2015, 1051 with note Brenn; discussed by Mankowski, EuZA 2016, 368). By submitting its reference, the German Bundesgerichtshof (GRUR 2019, 320 — booking.com) sought certainty and a general decision from the CJEU on how far the CJEU intends to stick to Brogsitter (Mankowski, EWiR 2019, 157, 158). The CJEU has acknowledged and recognised that the concrete reference for a preliminary ruling in Wikingerhof is important in terms of legal policy, as is clearly evidenced by the fact that the Grand Chamber with the President and Vice-President of the CJEU decides, the fullest brass possible below the full plenum (the latter being reserved for rather constitutional matters).

Legal Assessment

Article 7 pt. (2) Brussels I bis Regulation refers to any action seeking to establish liability for damage on the part of the defendant and which does not relate to ‘matters relating to a contract’ within the meaning of Article 7 pt. (1) (Kalfelis, para. 18; Löber, para 19). An autonomous interpretation is required for both ‘contract’ and ‘tort’, which is more abstract from national understandings (paras 30 et seq.).

Both Article 7 pts. (1) and 2 are exceptions to the general jurisdiction of Article 4 Brussels I bis Regulation and are therefore to be interpreted strictly. According to Recital (16) of the Regulation, they are both justified from the point of view of particular proximity to the facts and evidence. An action therefore has as its object ‘matters relating to a contract’ within the meaning of Article 7 pt. (1) if an interpretation of the contract between the applicant and the defendant appears indispensable in order to determine whether the conduct alleged by the applicant against the defendant is lawful or, on the contrary, unlawful (Brogsitter, para. 25).

This is the case, inter alia, of an action based on the provisions of a contract or on legislation applicable under that contract (Holterman Ferho, para. 53, and Kareda, paras 30-33). On the other hand, where an applicant relies on the rules on liability in tort, delict or quasi-delict, that is to say, a breach of a legal obligation, and it does not appear necessary to examine the content of the contract concluded with the defendant in order to assess whether the conduct alleged against the defendant is lawful or unlawful, since that obligation on the defendant exists independently of that contract, an tort falls within the scope of the action within the meaning of Article 7 pt. (2).

In the present case, Wikingerhof relies on an infringement of German antitrust law, which generally prohibits the abuse of a dominant position irrespective of a contract or other voluntary commitment. More specifically, because of Booking.com’s strong position on the relevant market, Wikingerhof had no choice but to conclude the agreement at issue and to be subject to the effects of the subsequent amendments to Booking.com’s General Sales Conditions, even though some of Booking.com’s conduct was unfair.

The central legal question is therefore whether Booking.com has abused a dominant position for the purposes of antitrust law. In order to determine whether the practices alleged against Booking.com are lawful or unlawful under that competition law, it is not essential to interpret the contract between the parties to the main proceedings, since such an interpretation is, at most, necessary in order to establish the existence of those practices (para. 35).

It follows that, subject to verification by the referring court, the action brought by Wikingerhof, in so far as it is based on the statutory obligation not to abuse a dominant position, must be regarded as constituting a tort.

That is consistent with the objectives of proximity and the sound administration of justice pursued by the Brussels I bis Regulation. The court having jurisdiction under Article 7 pt. (2) — in cartel cases, that of the market affected by the alleged anti-competitive conduct — is best placed to rule on the main question of the merits of that allegation, in particular with regard to the collection and assessment of the relevant evidence (para 37 with reference to Tibor-Trans,  para. 34, and VKI v Volkswagen, para. 38).

Contract vs Tort in European International Procedural Law and Conflict of Laws

The CJEU is trying to engineer a cautious move away from Brogsitter without formally abandoning Brogsitter, and indeed by repeating the central statement from Brogsitter. In any event, for antitrust cases Brogsitter should not pass through.

In a very important situation, the CJEU restores its right to jurisdiction in tort. However, the gain in legal certainty is not as great as if a more general statement had been made. This is because the restriction to a specific situation still leaves the initial question open to all other situations. It may even induce the national courts to make even more complicated attempts to reveal, by comparison parallels or divergences with antitrust law for the situations to be assessed by each of them. AG Saugmandsgaard Øe had launched nothing less than a frontal full-force attack on Brogsitter or at least on a ‘maximalist’ reading of Brogsitter (Opinion of 10 September 2020, paras. 74-115).

Yet the CJEU has not endorsed this and has not distanced itself from Brogsitter at the general level. Wikingerhof does not overrule Brogsitter. It does not finally break with Brogsitter (Matthias Lehmann, Wikingerhof: CJEU Reestablishes Equilibrium between Contract and Tort Jurisdiction). It even cites with seeming approval to the Brogsitter formula – yet eventually opts for partially breaking free from that formula, namely for claims based in antitrust law. On the other hand, Wikingerhof does not firmly shut the door to future deviations from Brogsitter in other fields or in general.

In the age of private enforcement in particular, antitrust law is not a good ground for — as the CJEU is now trying to do — dissolving contract law in particular, but not in general.

Civil actions in the field of antitrust, especially since actions for damages or injunctions to use certain General Terms and Conditions will often come from suppliers or customers of the cartel participants or of the dominant enterprise. They therefore operate in the context of contractual relations. The cartel and abuse of power will be reflected in an arrangement of the contractual terms (service, consideration or conditions) favourable to the cartel or dominant undertaking. Antitrust induced nullity of the contract leads to more than one stage. The cartel or abuse of power becomes the background to the contract in question, and vice versa, it becomes almost a preliminary question of the cartel effect or abuse of power. It is therefore precisely in the case of cartels or abuse of power that contracts are the rule, not the exception (see to a similar avail Briggs, Wikingerhof: A View from Oxford).

However: Preliminary questions do not determine the classification of the main question. Nor do they do so with regard to the distinction between the contract and the tort for the main issue. There is no specific qualification for the main question (Pfeiffer, IPRax 2016, 111).

The CJEU’s departure from Brogsitter in antitrust law and the establishment of a tort/delict qualification could possibly give rise to an argumentum a maiore ad minus (tentatively in a similar direction the comment of Simon Horn to Matthias Lehmann’s post on this blog). If one is already moving in antitrust law with its relative proximity to the contract in tort law, it is necessary to move even more safely into tort law in the case of torts less close to the contractual realm.

However, this would be an attempt to assess parallels to, or divergences from, antitrust law by comparing them. Wikingerhof may indicate a reversal of the trend. The previously seemingly unstoppable rise of contract at the expense of tort/delict does not progress any further at least. However, a full reversal of the trend has not yet been completed, but rather requires further probation samples. But Wikingerhof might be some beginning. That tort regains some ground at the expense of contract is not akin to a catastrophe (but cf. Briggs, Wikingerhof: A View from Oxford), but a necessary correction of the previous over-stretching of ‘contract’ by Brogsitter.

If different, but concurring claims in contract and tort happen to exist, the best way to treat them might possibly be the introduction of annex competences rather than re-characterisation or deferring boundaries by characterisation.

Yet this enters another difficult field of striking balances of competing interests right (Mankowski, in: Ulrich Magnus/Mankowski, Brussels I-bis Regulation [2016] Art. 7 notes 34-35). Re-characterizing certain claims in tort as claims in contract if they can be said to be based on a breach of contractual obligations – in essence what Brogsitter boils down to –, and the result that two claims in contract compete would be not more than a bypassing escape strategy (Baumert, EWiR 2014, 435, 436; Kiener/Neumayr, ZFR 2015, 505, 506-507; Mankowski, in: Ulrich Magnus/Mankowski, Brussels I-bis Regulation [2016] Art. 7 note 35).

The CJEU’s Missing Look at the Conflict of Laws

Unfortunately, the CJEU in Wikingerhof completely fails to look at the sister area of conflict of laws as well. The mere existence of Article 6(3) Rome II Regulation and the clear attribution of private antitrust law to the unlawful acts in the realm of conflict of laws have provided very strong arguments for classifying private law specifically in tort/delict.

In that realm, Recitals (7) of the Rome I and Rome II Regulations require that the Brussels I bis Regulation be interpreted as well. Unfortunately, there is no parallel Recital in the Brussels I bis Regulation. At the occasion of the next recast, a future Brussels I ter Regulation should receive such a Recital in order to draw the current missing third line to the interpretation triangle with Rome I and Rome II and make the triangle so obvious that it can no longer be ignored by the CJEU.

Does an Overarching Notion of ‘Contract’ Exist under the Brussels I bis Regulation?

A major part of the discussion subsequent to Wikingerhof, in particular on Conflictoflaws.net, has focused on whether ‘contract’ has the same meaning throughout the entire Brussels I-bis Regulation, i.e. in essence, whether Wikingerhof gets also relevant for insurance, consumer or employment contracts; opinions are divided (see Lutzi, Briggs, Van Calster, Poesen, Álvarez-Armas ).

Undeniably, there is a certain tendency particularly in Králová, paras. 58-63, pointing towards the CJEU tentatively favouring different notions of ‘contract’ for the purposes of Article 7 pt. (1) Brussels I bis Regulation, on the one hand, and Article 17 of the same Regulation, on the other (a then isolated predecessor might be found in Ilsinger, paras 56-57). AG Saugmandsgaard Øe expressed such tendency even more clearly in Wikingerhof (Opinion of 10 September 2020, para. 113).

Furthermore, Brogsitter has some counterparts extending the domain of consumer contracts to claims which under national law might have their fundament in tort (see in particular BGH NJW 2011, 532; BGH NJW 2011, 2809; BGH IPRax 2013, 168, 171; BGH WM 2012, 646; BGH ZIP 2013, 93). Reliantco, decided after Králová, is the current highwater mark (see paras. 58-73). In the background informing Article 17(1) in general, the desire for adequate consumer protection – mandated by Art. 153 TFEU – is a strong and specific influence. Yet ‘contract’ should follow the same concept throughout which is essentially based on economic ideas and categories of voluntary or involuntary creditorship plus cooperating mechanisms and the meeting of the minds (in detail Mankowski, ‘Ein eigener Vertragsbegriff für das europäische Internationale Verbraucherprozessrecht?’, GPR 2021 sub III). ‘Consumer contract’ adds the B2C element to ‘contract’, but is nevertheless based on ‘contract’ (in detail Mankowski, ‘Ein eigener Vertragsbegriff für das europäische Internationale Verbraucherprozessrecht?’, GPR 2021 sub IV).

‘Hotels Can Sue in Germany’: Marketplace Court for Cartel Victims and Danger of Derogation

Broken down from the high and abstract plane to the small change: The poster titles on Wikingerhof in the relevant internet publications have the tenor ‘Hotels can sue in Germany’ (in particular LTO, 24 November 2020; Hamburger Abendblatt, 25 November 2020).

In fact, under Article 7 pt. (2) Brussels I bis Regulation, the Court of Justice of the European Union establishes a market jurisdiction for the victims of the cartel. However, there is no reason why it should apply only to certain sectors, or even only to hotels, and not to all sectors, as Article 7 pt. (2) does not differentiate anywhere according to bananas, nor does Article 6(3) Rome II Regulation in the conflict of laws.

However, the counter-reaction seems obvious for cartels and dominant companies if it has not been implemented proactively for a long time: in its own general terms and conditions for contracts with suppliers or customers, by means of a jurisdiction clause, the courts have exclusive jurisdiction in their own place of residence. This is because Article 7 pt. (2) Brussels I bis Regulation creates only a ground of special jurisdiction and not a ground of exclusive jurisdiction which would bar any derogation. Article 7 pt. (2) gives way to Art. 25 Brussels I bis Regulation, and the Brussels I bis Regulation does not provide protection against derogating choice of court agreements (on antitrust claims and jurisdiction agreements under Article 25 Brussels I bis Regulation / Article 23 Brussels I Regulation, see Cartel Damages Claims, and Apple Sales International; see also Mankowski, EWiR 2015, 687; id., TBH 2020, 45; Stammwitz, Internationale Zuständigkeit bei grenzüberschreitenden Kartelldelikten [2018] pp. 391-437; Pfeiffer, LMK 2018, 412366; C. Krüger/Seegers, WuW 2019, 170; Goffinet/R. Spangenberg, J. dr. eur. 2019, 199).

However, this is not yet the final step in the assessment. The market power of internet portals in particular is a well-known phenomenon and a significant problem. In turn, it has provoked a specific counter-reaction by the European legislator. This counter-reaction is the P2B Regulation, i.e. Regulation (EU) 2019/1150 on promoting fairness and transparency for business users of online intermediation services.

That said, the P2B Regulation only grants protection to business users by means of (unsystematic) individual standards (Nadine Schneider/Kremer, WRP 2020, 1128, 1129; Stefan Ernst, CR 2020, 735, 739), but not comprehensive. It requires transparency and mandatory content in general terms and conditions. On the other hand, it refers only exceptionally to orders for annulment in respect of general terms and conditions, in particular in Article 3(3) P2B Regulation. In particular, it does not lose any word on choice-of-court agreements. This fits with the general line that recent EU special acts for the online sector – e.g. the Geo-Blocking Regulation in its Article 1(6) – in principle respect the Brussels I bis Regulation (see e.g. Recital (9) P2B Regulation).

It is true that the P2B Regulation favours mediation as the preferred method of dispute resolution. However, Art. 12 (5) P2B Regulation expressly states that the P2B Regulation does not affect the enforcement of rights by way of court action. The Brussels I bis Regulation protects its species, namely Articles 15, 19 and 23. However, only typically weaker parties with derogation bans, but not business users within the meaning of the P2B Regulation and small enterprises such as the Wikingerhof Hotel.

The market-based jurisdiction under Article 7 pt. (2) Brussels I bis Regulation, which has now been confirmed by the Court of Justice of the European Union, thus enables cartel victims against foreign internet portals to form a forum actoris, a forum actoris at their own domicile, but is subject to a derogation. In the broad legal policy perspective, de regulatione ferenda it can be considered to include special protection standards for SMEs (small and medium-sized enterprises) in a future Brussels I ter Regulation, i.e. to treat C2SME contracts as a separate category.

This is, however, a new round of the game, to be played in the future, and would in any event be the subject of a major debate which will certainly feature fiercely competing lobbying interests, with an uncertain outcome as to the final result.

The post below, written by Gilles Cuniberti, a professor of Private International Law at the University of Luxembourg, and an editor of this blog, is the third contribution to the EAPIL online symposium on the ruling of the Court of Justice in Wikingerhof v. Booking. The previous posts, authored by Matthias Lehmann and Adrian Briggs, can be found here and here.

Other contributions will follow, the next one being scheduled for later today. Readers are encouraged to share their views by making comments to the posts. Those wishing to submit longer contributions for publication are invited to get in touch with the managing editor of the blog, Pietro Franzina, at pietro.franzina@unicatt.it.

One of the novelties of Wikingerhof is the introduction of a new requirement for the application of the special jurisdictional rules laid down by Article 7(1) and (2) of Regulation No 1215/2012: the claimant’s choice to rely on one of those rules.

29 It must therefore be held that the applicability of either point 1 of Article 7 of Regulation No 1215/2012 or point 2 of Article 7 thereof depends, first, on the applicant’s choice whether or not to rely on one of those rules of special jurisdiction and, second, on the examination, by the court hearing the action, of the specific conditions laid down by those provisions.

This is because, the court explains, the scheme of Regulation No 1215/2012 ‘is characterised by the possibility which it confers on the applicant of relying on one of the rules of special jurisdiction laid down by that regulation’ (para. 27).

The purpose of this post is to explore the implications of this requirement.

Which Choice?

If the claimant is offered the possibility to choose, one would think that this is because he has an option. In the context of Article 7, this would seems to mean that courts having jurisdiction on the basis of Article 7(1) and courts having jurisdiction on the basis of Article 7(2) are simultaneously available.

This, however, is hard to conceive.

First, the court held that the rules on special jurisdiction laid down in  Article 7 of the Brussels I bis Reguation “are mutually exclusive in the application of that regulation” (para. 26). This seems to mean that the special rules in Article 7 cannot be applicable at the same time. If one rule is applicable, the application of the other is excluded.

Secondly, the second applicability requirement of the rules in Art 7(1) and (2) is that “the specific conditions lay down by these provisions” are ascertained by the relevant court. The conditions for each of the provisions turn around a single test, which is whether it is indispensable to examine the content of the contract in order to assess the lawfulness of the conduct of the defendant. If it is, Article 7(1) applies, and Article 7(2) does not. If it is not, Article 7(2) applies, and Art 7(1) does not.

So there is no option. The conditions of Article 7(1) or Art 7(2) cannot be met at the same time. Only one of these rules applies (at best).

So what does it mean that the claimant can choose to rely on one or the other?

Whose Choice?

What it could mean is that the claimant could choose an Article 7(1) forum over an Article 7(2) forum irrespective of the respective conditions of application of each of the provisions. In other words, the claimant could derogate from the conditions of applicability and choose one forum which would not have jurisdiction under Article 7.

This interpretation would be surprising, for a number of reasons.

First, as already underscored, the Wikingerhof court held that the second applicability requirement condition is that the court verifies that the conditions for the relevant jurisdictional rule are met. This suggests that it should not retain jurisdiction if these conditions are not met.

Second, while the parties may derogate from jurisdictional rules, this is only possible if both parties agree, whether expressly (choice of court agreement) or implicitly (submission to jurisdiction). There is no reason to favour the claimant in this respect. The Wikingerhof court explained that it is somehow relevant that Wikingerhof chose to rely on (national) tort rules. But why wouldn’t it be relevant that the defendant would choose to rely on (national) contractual defences? It does not seem that Booking did exactly that in that case, but not far: it relied on a choice of court agreement.

Conclusion: Second Order Characterisation

Finally, it is not quite clear why, after insisting that the concepts of ‘matters relating to a contract’ and ‘matters relating to tort’ should receive an autonomous interpretation, and repeating the European definitions of these concepts, the Wikingerhof court found it useful to underscore on which ground of national law the claimant would be seeking to establish liability.

Why should it matter if the conditions to meet are defined at European level? And how could it matter? Would this mean that Article 7(2) would only be available if the substantive claim was delictual in nature under the applicable national law? But, as far as substantive law is concerned, there is no freedom of choice between tort and contractual liability in all legal systems. In France and Luxembourg, there is no choice: contractual liability prevails and excludes tort liability when a given claim could fall within the scope of both kinds of liability.

Ultimately, one wonders whether the possibility of second order characterization was well perceived by the court. As the readers of this blog will know, it is common, and perfectly fine, to make one characterization for private international law purposes, and another for the purpose of applying substantive rules. In the context of the Brussels I bis Regulation, it is equally fine to characterize the claim for jurisdictional purposes pursuant to European concepts, and then to characterize the same claim differently for the purpose of applicable substantive rules.

The author of this post is Caterina Benini, a Phd student at the Catholic University of the Sacred Heart in Milan.

A Controversial but Topical Issue

In the credits market, the price of a contract (or that of the claims arising from a contract) is determined by the nominal value of the claims concerned and by the risks surrounding their enforcement, including the risks relating to the uncertainty that may exist as to the courts with jurisdiction to hear and enforce the contract or the claims concerned.

Ironically, uncertainty may be greater when the assigned contract includes a choice of court clause, as it is not clear whether, and subject to which conditions, such a clause may be binding upon the assignees.

The European Court of Justice considered the issue of the third-party effects of choice of court clauses in Tilly Russ, Coreck and Profit Investment.

However, it was only in Ryanair, a case decided on 18 November 2020, that the Court specifically analysed whether an assignee of a claim is bound by the choice of court clause included in the contract from which the assigned claim arose. The recent Court’s ruling raises a number of questions, some of which have already been pointed out by Matthias Lehmann in this blog.

One takeaway of Ryanair is that, in the absence of clear rules, the fate of choice of court agreements following the assignment of the contract which included them is a fertile ground for disputes. Instead of elaborating on the Court’s findings in Ryanair, I will focus on a recent ruling of the Italian Supreme Court (Corte di Cassazione), which addressed the consequences of an assignment of claim for the enforceability of a choice of court clause (Judgment No 7736/2020).

The Ruling of the Corte di Cassazione

The facts underlying the case decided by the Italian Supreme Court may be summarised as follows.

An Italian company (hereinafter, the manufacturer) and a Finnish company (the distributor) entered into various contracts. Each contract included a choice of court clause conferring exclusive jurisdiction upon the Tribunal of Torino. The Italian manufacturer assigned part of its claims under the contracts to a factoring company seated in Italy. Following the assignment, a dispute arose between the manufacturer (the assignor creditor) and the distributor (the assigned debtor). Upon an application by the former, the Tribunal of Torino ordered the Finnish distributor to pay a certain amount of money. The latter lodged an opposition, arguing that, as a result of the assignment of the claims, the Italian company was prevented from relying on the choice of court clause featured in the contracts.

Both the Tribunal of Torino and the Court of Appeal of Torino dismissed the move. The Finnish distributor brought the case before the Corte di Cassazione, which dismissed the appeal, ultimately upholding that Italian courts had jurisdiction to hear the case.

The Cassazione reached that conclusion on the ground that the effectiveness of a choice of court clause between the original parties to a contract giving rise to claims subsequently assigned should not be doubted. The Cassazione referred for this purpose to the case-law of the Court of Justice, noting that, according to Dansommer and Profit Investment, a choice of court agreement may be binding also upon the third party, thus impliedly submitting that this the assignment results in an extension of the subjective scope of the clause rather than a transferral of the same from one assignor to the assignee.

The Court added that the assignee, having taken over the position of the assignor vis-à-vis the assigned debtor, is bound by the choice of court agreement included in the contract giving rise the claim. This is because the position of the assigned debtor should remain unaltered also with regard to jurisdiction, if not otherwise provided by the assigned party himself and the assignee.

This Author’s Submission

If party autonomy is to be taken seriously, choice of court clauses, it is submitted, should be deemed to be subject to an independent regime, different from that governing the contract where the clause is featured.

This implies that, for the purposes of determining the fate of a choice of court clause following the assignment of the legal relationship to which the clause refers, or belongs, reference ought to be had to the substantive law applicable to the dispute resolution clause itself. It is on the basis of the latter law that one should assess whether the rights and obligations provided for under the choice of court clause passed on to the assignee.

No other approach, it is contended, would be consistent with Article 25(5) of the Brussels I bis Regulation. This provides that “[a]n agreement conferring jurisdiction which forms part of a contract shall be treated as an agreement independent of the other terms of the contract”, adding, in a separate subparagraph, that “[a]n agreement conferring jurisdiction which forms part of a contract shall be treated as an agreement independent of the other terms of the contract”.

Separability only for the Purposes of Validity vs. Separability Also for the Purposes of Transferability

The issue of the fate of a dispute resolution agreement following the circulation of the legal position to which the clause relates has been mainly discussed with respect to arbitration agreements. Although choice of court agreements cannot be equated to arbitration agreements, the terms of the problem roughly coincide.

Essentially, the discussion revolves around two opposite conceptions of the principle of severability.

The first interpretation posits that, while the dispute resolution clause is severable from the main contract for validity purposes, it should be considered as an integral part of the contract for transferability purposes. Hence, when the assignee becomes the holder of the rights and obligations that arise from the contract which includes the dispute resolution agreement, it becomes automatically bound by the latter as well.

The second approach views the severability principle as a mere façade of a broader principle, which requires to consider a dispute resolution agreement as a contract in its own right, independent in all aspects from the contract to which it refers. This means that, unless the parties agree otherwise, the dispute resolution agreement will not automatically circulate together with the contract as a result of the assignment.

Independence of Choice of Court Agreements as the Key Principle

Article 25(5) of the Brussels I bis Regulation fosters the second approach described above.

Indeed, if the principle of separability were to operate for validity purposes only, the EU legislator would have limited Article 25(5) to the first subparagraph, which enshrines the principle in its traditional meaning. The inclusion of a separate subparagraph specifying that a choice of court agreement shall be considered independently from the other terms of the contract suggests that, in the view of the legislator, the principle involves more than merely prescribing the survival of the dispute resolution clause in the event that the main contract is invalid. Rather, it is submitted, the whole of para 5 indicates that a choice of court clause should be considered, in all respects, to be independent from the agreement where it is featured.

The question then is: what does the independence of a choice of court clause precisely stand for?

Independence should not be taken as meaning that the choice of court agreement should be treated as something that is materially separate from the main contract.

Arguably, the independence of the clause means that the issues surrounding the clause rules are not (necessarily) to be decided in accordance with the rules that one would resort to for the purposes of deciding the same issues in respect of the main contract.

Such normative independence of choice of court clauses has already been recognized with respect to the formal validity, which has been consistently evaluated on the basis of the uniform material rules provided for by the Brussels Regime and not on the basis of the formal requirements governing the main contract.

The same approach should then be followed also for the fate of choice of court agreements. This means that the court seised of the matter should assess whether the assignee of the contract (or of the claims arising thereform) is bound by the choice of court agreement, based on the rules governing the transferability of the dispute resolution agreement itself.

If such solution were to be followed, it would entail a significant alignment with Castelletti, where the Court ruled that “the national court seised should be able readily to decide whether it has jurisdiction on the basis of the rules of the Convention, without having to consider the substance of the case” (para. 48). Indeed, the seised court may rule on its own jurisdiction without dwelling into the merits of the case only if the enforceability of the choice of court clause is subject to a different and autonomous from the one applicable to the substantive issues.

The Tilly Russ Case

The above analysis on the principle of separability of choice of court clauses can turn useful when the interpreter (as the Corte di Cassazione did) investigates whether the CJEU’s case-law developed in relation to the third-party effects of choice of court agreements can provide an answer to the issue of the fate of choice of court clauses.

In Tilly Russ, the Court of Justice ruled that the third party is bound by the jurisdiction clause incorporated in the main contract (a bill of lading in that case), which is valid as between the original parties, “in so far as a third party, by acquiring the bill of lading, has succeeded to the shipper’s rights and obligations under the relevant national law” (para. 24).

The meaning of this crucial passage of the Court’s reasoning is unclear. One may wonder whether the shipper’s rights and obligations in which the third party succeeds are those provided for under the main contract or the dispute resolution clause. The aspect has since never been clarified by the Court, although the Court did rely on the said passage in Coreck and Profit Investment.

According to the majority of scholars, the rights and obligations to which the Court referred are those arising from the main contract. This entails that, if the third party succeeds to the assignor’s rights and obligations under the main contract in accordance with the law applicable to the assignment, the third party is automatically bound by the choice of court agreement included in the main contract.

This conclusion contradicts the independence of choice of court agreements.

Independence requires that issues relating to a choice of court clause be solved on the basis of the rules governing the dispute resolution agreement itself, regardless of the rules governing the main contract. The vicissitudes of the main contract, including the assignment of the claims arising thereform, are not relevant per se to the dispute resolution clause.

In light of this, the passage in Tilly Russ recalled above should be interpreted as requiring the seised court to determine whether the third party, simultaneously or after entering into the main contract, “has succeeded to the shipper [assignor]’s rights and obligations [provided for under the jurisdiction clause] under the relevant national law [applicable to the jurisdiction clause]”.

The Law Applicable to a Choice of Court Agreements under the Italian PIL Statute

Which law applies to a dispute resolution clause?

Courts sitting in a Member State cannot rely on the Rome I Regulation, given that choice of court agreements are excluded from the scope of application of the Regulation under Article 1(2)(e). Accordingly, regard should be had to domestic conflict of laws rules.

In a case such as the one discussed by the Corte di Cassazione in the ruling mentioned above, the relevant provision would arguably be Article 57 of the Italian Statute of Private International Law. The rule, drawn up in 1995 (and never amended since) extends the operation of the 1980 Rome Convention on the law applicable to contractual obligations (the predecessor of the Rome I Regulation) to any contract, including those excluded from the scope of the Convention itself.

Assuming that the reference to the Convention should be read today as a reference to the Rome I Regulation, an Italian court would – in the absence of a choice of law – rely on Article 4(4) of the Rome I Regulation, and apply the law of the country with which the choice of court agreement is most closely connected.

The PAX Moot is a specialised moot court competition dedicated to students interested in Private International Law.

The 2021 Round of the competition is named after Arthur von Mehren, a renowned scholar of international procedure law across the Atlantic, for the 15th anniversary of his passing away.

This Round of the competition will focus on Transnational Law and Private International Law issues and will require participants to apply and handle the complexities and nuances of how international conventions and regulations interact with each other in the context of globalisation.

The case is grounded in the present challenging global events (COVID-19 virus) and involve the application of the new 2019 Hague Judgments Convention.

The competition comprises a written round and an oral round for the students. The teams will be required to address matters of jurisdiction, applicable law and parallel actions.

More information about the competition and its timetable are available here and here.

The post below was written by Adrian Briggs QC, who is Professor of Private International Law at the University of Oxford. It is the second contribution to the EAPIL online symposium on the ruling of the Court of Justice in the case of Wikingerhof v. Booking (the first one, by Matthias Lehmann, appeared earlier today and can be found here).

Other contributions will follow in the coming days. Readers are encouraged to share their views by making comments to the posts. Those wishing to submit longer contributions for publication are invited to get in touch with the managing editor of the blog, Pietro Franzina, at pietro.franzina@unicatt.it.

The late, great, F A Mann was sometime heard to refer, in a wry way which one could never quite interpret, to ‘common law pragmatism’. It has served us well; and it provides a vantage point for an assessment of the decision in C-59/19 Wikingerhof GmbH & Co KG v Booking.com BV EU:C:2020:950. Those looking for theory will, no doubt, find it elsewhere. The observations sketched out below simply seek to explain why the decision of the Grand Chamber is, as a matter of practical law, a disaster.

Where a claim is raised between parties who have chosen to place themselves within the ties of a voluntary relationship, and something goes wrong, the claim which results may be seen as an incident of that relationship which should be subject to jurisdictional rules designed for disputes arising within that relationship. Though in the Brussels/Lugano context this is seen and understood most clearly in the context of insurance, and consumer and employment contracts, it was also understood, with brilliant clarity by Darmon A-G in 189/87 Kalfelis. Spurning his advice, the Court in that case preferred to describe a virtual line between claims treated as contractual and those allocated to the special jurisdiction for tort and delict. This might have meant that a non-contractual claim could, in principle at least, be raised between contracting parties; and the seeds of trouble were thereby sown. A narrow question mesmerised the English, argued endlessly about what to do about claims based on unjust enrichment; but the deeper question was when a claim based on an obligation owed by one contracting party to another might be held, for the purpose of special jurisdiction, not to be a matter relating to a contract. A serviceable answer, and perhaps the only sensible answer, was eventually given by the decision in C-548/12 Brogsitter, which in material part observed that

It is apparent from the order for reference that the parties to the main proceedings are bound by a contract. However, the mere fact that one contracting party brings a civil liability claim against the other is not sufficient to consider that the claim concerns ‘matters relating to a contract’ within the meaning of Article 5(1)(a) of Regulation No 44/2001. That is the case only where the conduct complained of may be considered a breach of contract, which may be established by taking into account the purpose of the contract. That will a priori be the case where the interpretation of the contract which links the defendant to the applicant is indispensable to establish the lawful or, on the contrary, unlawful nature of the conduct complained of against the former by the latter. It is therefore for the referring court to determine whether the purpose of the claims brought by the applicant in the case in the main proceedings is to seek damages, the legal basis for which can reasonably be regarded as a breach of the rights and obligations set out in the contract which binds the parties in the main proceedings, which would make its taking into account indispensable in deciding the action. (italics added)

In other words, if the substance of the complaint could be said to have broken the contract to which the parties had bound themselves, special jurisdiction in the matter was contractual. It was a clear rule even though, as it now seems, the casual, justificatory, reference to the contract as indispensable gave dissenters something to make mischief with. In the meantime, the Court in C-47/14 Holterman simply copied this part of Brogsitter into a judgment principally concerned to maintain the integrity of Section 5 of Title/Chapter II. As well it might: the opportunity for an unscrupulous employer to strip the employee of the protection provided to him by accusing him of being a tortfeasor/thief rather than a contract-breaker, all the while denying that the employment contract needed to be referred to for anything other than data, was plain and obvious and quite, quite wrong. At this point we might have hoped for a period of stability; it was not to be. An unduly judgmental Opinion in C-603/17 Bosworth seemed unhappy with the idea that powerful office holders accused of fraud could derive any benefit from Section 5, but the idea that an employee might be deprived of his shield by a bare accusation of fraud was not underwritten by the Court which otherwise left the issue well alone.

But after another regrettable Opinion, and the calamitous judgment which this time swallowed it whole, the clear rule in Brogsitter, and the foundation of Kalfelis, has been stood on its head. It now appears to be the law that if the complaint may be framed or pleaded as a tort, it may by this means be excluded from the special jurisdiction rule for matters relating to a contract. According to the Court in C-59/19 Wickingerhof (and lightly editing the judgment for ease of reading):

Where the applicant relies on rules of liability in tort, delict or quasi-delict, namely breach of an obligation imposed by law, and where it does not appear indispensable to examine the content of the contract concluded with the defendant in order to assess whether the conduct of which the latter is accused is lawful or unlawful, since that obligation applies to the defendant independently of that contract, the cause of the action is a matter relating to tort, delict or quasi-delict. Wikingerhof relies on an infringement of German competition law, which lays down a general prohibition of abuse of a dominant position, independently of any contract or other voluntary commitment. Specifically, Wikingerhof takes the view that it had no choice but to conclude the contract at issue and to suffer the effect of subsequent amendments to Booking.com’s general terms and conditions by reason of the latter’s strong position on the relevant market, even though certain of Booking.com’s practices are unfair. Thus, the legal issue at the heart of the case in the main proceedings is whether Booking.com committed an abuse of a dominant position within the meaning of German competition law. As the Advocate General stated in points 122 and 123 of his Opinion, in order to determine whether the practices complained of against Booking.com are lawful or unlawful in the light of that law, it is not indispensable to interpret the contract between the parties to the main proceedings, such interpretation being necessary, at most, in order to establish that those practices actually occur.

Those who look to the jurisprudence of the Court for answers rather than distracted theorising will rightly despair at this bouleversement. Even if one leaves aside the damage which this new approach would do were it allowed to infect Sections 3, 4 and 5 of Title/Chapter II, how is it supposed to work in common or garden cases of civil liability in which – as in Brogsitter – the claim may plausibly be pleaded by reference to contractual as well as by other-than-contractual duties ? From an English perspective, a number of cases come quickly to mind. Consider (1) the electrician who rewires a piece of equipment consigned to him for repair so negligently that it electrocutes me when I plug it in; (2) the banker, who provides a credit reference on a party with whom I am proposing to deal, who has not checked his records and so gives me bad advice; (3) the consultant who works with me to develop a new commercial opportunity but who purloins my confidential information to exploit it on his own account and at my expense; (4) the solicitor who abstracts funds which he held on my account; (5) the Uber driver who injures his passenger when he jumps a red light; (6) the doctor in private practice who molests his patient when she is on the examination table; (7) the fraudster who by deceit induces another to enter into a contract and that other, rather than rescind, sues for damages which have the same economic effect as rescission would have; (8) the person who by negligent misrepresentation induces another to enter a contract, with the same consequences as in (7); (9) the individual who by duress, or the unconscionable exercise of undue influence, causes the victim to conclude a contract with him or with another; and (10) any defendant who pleads in defence to a claim framed in tort that the parties made a contractual promise that the claim would not be brought. How many of these complaints are matters not relating to a contract ?

It might be said that in each case the wrong done was committed by a person who, in doing what he did or failed to do, broke the contract to which he had bound himself. It may also be said that (1) if my son had been the first to use the equipment he would be entitled to complain of the electrician’s negligence; (2) that if the applicant had not paid for the credit reference he would still be entitled to sue the banker for breach of the duty of care; (3) the misuse of confidential information is an equitable wrong, no matter how one comes by it; (4) fraud is fraud and theft is theft and though employment is the context it is not the cause of action; cases (5) and (6) speak for themselves; as to (7) and (8), the synergy of contract, tort, and equity as a means of dealing with pre-contractual misrepresentation means that they cannot now be pulled apart; in (9) the contract will be voidable, with an alternative claim for compensation being only doubtful; and (10) would appear to be the tip of an iceberg, for it happens all over the place. Are we now supposed to say that none of these falls within the special jurisdiction for matters relating to a contract because the duties owed and broken by the defendant arise from the general law and the contractual setting is no more than that ? That the contract is the stage but not the play ? Or is the answer – surely worse – that some do, or – surely worst – that it all depends on how the self-serving claimant chooses to plead out his claim ? This last possibility would be surprising. The Court’s jurisprudence on the place where financial loss occurs (C-375/13 Kolassa, C-12/15 Universal Music, C-304/17 Löber, C-343/19 Volkswagen, among others) has been haunted by the fear, slightly unreal, that if it is routinely held to occur at the place of the bank account out of which payment is made, a claimant, possessed of several bank accounts and uncannily impressive foresight, might pave the way to a favourable special jurisdiction. It now seems that the Court has allowed itself to be lured into the very trap it had seemed to be so concerned to avoid, or – perhaps – into an even bigger one.

One turns to examine the proposition that it is different if it is ‘indispensable’ to look to the contract. It is hard to see that this has any sensible meaning. Contracts contain all sorts of things in addition to the express promises each side makes to the other. They may make provision for the implication of terms. They may try to prevent the implication of terms: entire agreement clauses, no oral modification clauses, and so on. They may define performance obligations directly, or by the subtle chiaroscuro of express promise and exclusion clause: if liability for X is wholly excluded, there can hardly be said to be a duty to do X in the first place. They may limit the liability which would otherwise arise, or restrict the circumstances in which, or grounds upon which, a complaint may be made. They may incorporate terms from another instrument, or exclude certain statutory effects which might otherwise apply. They may provide for acts to be permitted if payment is made, such as the early termination of an agency. They may provide that a claim will not be brought in tort but that, for example, a claimant will accept a payment by way of compensation or compromise: in short, they may do all manner of things. The answer to the question whether it is indispensable to look into the contract is, surely, that it is always necessary: the contract may not add to the facts and matters in dispute, but save in the cases in which it is admitted before the writ is served, this cannot be known until one has looked. Contracts, and their interpretation, can be very complex and it is absurd to say that there is no need to look into the contract before one has looked into it. Stand, if only for an unhappy moment, in the shoes of the lawyer who advised the client that she had a case in tort and who, when asked whether he had looked into the contract to see what it might have said, says that he didn’t think there was any need to.

Granted, in Wikingerhof, it would have been a surprise to find an express term excluding any liability for abuse by Booking.com of its dominant position in the market. It may have felt odd to suggest that it was advisable, still less indispensable, to read through the contract to check; but one never knows, and this provides no basis for sound conclusion; and in any event, abuse of a dominant position is only a particular version of economic duress or undue influence, both of which lie right in the middle of the contractual mainstream. If Wikingerhof GmbH had been asked whether it considered Booking.com to have or not to have broken the contract, or unlawfully coerced the surrender or contractual rights, it could only have answered in the affirmative, albeit that it may have preferred not to say so. The defendant had, by the very conduct complained of, broken or wrongfully interfered with its contract with the claimant, yet the matter was not one relating to a contract. No matter how hard one rubs one’s eyes, this still looks wrong.

It may be asked whether the unspoken aim of the judgment in Wikingerhof was to assist the German claimant by finding a way for it to sue in the place in which it felt most comfortable; to ‘protect’ the weaker party, the vulnerable victim of a dominant abuser, as it were. One hopes that no such thought was present in the curial mind, for accusations of abuse, of fraud, are only ever accusations, and findings of abuse were many months away. And there is no little irony in the fact that the decision actually improves the jurisdictional position of the company which is in a position to abuse its dominant position. When it gets wind of the fact that a victim is about to launch proceedings, the dominant abuser will be able to rely on Wikingerhof and on C-133/11 Folien Fischer to bring proceedings, in the place of the event giving rise to the alleged loss, for a declaration that it committed no wrong. Worse, unscrupulous employers (we have no need to name names), already immune to the discipline of anti-suit injunctions, will have a new spring in their step. It is not easy to understand why this should be the way the law works.

The question framed by the judgment in Brogsitter was easy to understand and to answer: has anyone teaching the subject ever found that his or her students struggled with it ? Has anyone advising a client needed to spend anxious hours in wrestling with it ? One hopes not. What is proposed to replace it – has replaced it, if we have to accept that the damage has been done – will require us to go back over the vast range of overlapping claims and unclaims, of complaints which are, as a matter of analysis, ‘not only a simple breach of contract, but also of another obligation’ cases, and develop the science which will tell is when reference to a contract is ‘indispensable’ in order to settle the question of special jurisdiction. Brexit, Covid, and now Wikingerhof. What a wretched year. We are only one horse short of an Apocalypse.

The EAPIL blog hosts an online symposium on the ruling of the Court of Justice in the case of Wikingerhof v. Booking.com. The first contribution to the symposium, which is found below, is by Matthias Lehmann, who is Professor of Private International Law at the University of Vienna (as well as an editor of this blog).

Other contributions will follow (the next one will be out later today). Readers are encouraged to share their views by making comments to the posts. Those wishing to submit longer contributions for publication are invited to get in touch with the managing editor of the blog, Pietro Franzina, at pietro.franzina@unicatt.it.

In its judgment dated 24 November 2020 in Wikingerhof, the CJEU has recalibrated the relation between the heads of jurisdiction for contracts (Article 7(1) Brussels I bis Regulation) and for torts / delicts (Article 7(2)).

Facts

A hotel sued booking.com in Germany for abuse of a dominant position. The hotel alleged having been strong-armed by the booking platform into an unfavourable contract.

Booking.com denied the German court’s jurisdiction over the claim, citing a choice-of-forum clause in the contract in favour of a Dutch court. This clause was however held to be invalid by the referring German Federal Court.

If the case fell under the head of jurisdiction for torts/delicts in Art. 7(2) Brussels Ibis, German courts could have jurisdiction given that the harmful event could be said to have occurred in Germany. In contrast, if the case concerned a contractual claim in the sense of Art. 7(1) Brussels Ibis, the jurisdiction of the German courts would have been more doubtful, as it was not sure that the contract between Wikingerhof and booking.com was to be performed in Germany.

Issue

The legal issue was therefore whether an alleged abuse of a dominant position that consists in forcing another person into an unfavorable contract is tortious/delictual or contractual in nature.

Holding and Rationale

The CJEU held the claim concerned a tort/delict matter. It cites its previous case law on the relation between the jurisdiction for contractual and tort claims, in particular the Kalfelis and the Brogistter case. In Kalfelis, the court had ruled that both heads of jurisdiction were mutually exclusive. In Brogsitter, the CJEU had held that a case is contractual in nature “where the interpretation of the contract … is indispensable to establish the lawful or, on the contrary, unlawful nature of the conduct complained of” (Brogsitter, para 25).

According to the CJEU in Wikingerhof, the interpretation of the contract was not indispensable to establish the unlawful nature of booking.com’s behaviour. True, the abuse of a dominant position resulted from the unfavourable clauses of the contract. Yet the CJEU highlights that the interpretation of the clauses was necessary only to establish the existence of an abuse. In other words, the contract is needed as factual evidence, not as a legal standard. The Advocate General basically states the same when he calls the interpretation of the contract a “preliminary question” (Wikingerhof, para 124).

Assessment

After the CJEU judgment in Brogsitter, one could have feared that the head of jurisdiction for contracts would be dominated by that for torts. The new decision in Wikingerhof reestablishes the equilibrium between the two. It clarifies that Article 7(2) Brussels I bis applies in cases of abuse of a dominant position, even those made by the conclusion of an unfavourable contract.

Indeed, violations of competition law are typical torts. It would be ill-advised to force the victim of such uncompetitive behaviour to sue at the place of performance foreseen in the contract because it is precisely this contract about which the victim complaints. The fact that the victim only pleads an abuse does not mean that one could disregard its complaint: For the purpose of establishing jurisdiction, the standard of proof has never been the same as that which applies for the merits of the case. It is for the court at the alleged place of abuse to find out whether the complaint is justified or not.

The new judgment in Wikingerhof does not break with the Brogsitter ruling, but is actually compatible with the latter. According to Brogsitter, a case is contractual in nature where the contractual provisions determine the outcome of the claim. Wikingerhof adds that this is only true where the contractual provisions are used as a normative standard, and not as factual proof of competitive misbehaviour. The delineation may be difficult to understand, but it is nonetheless necessary and reasonable.

The Italian publisher ESI has recently published a book titled EU Regulations 650/2012, 1103 and 1104/2016: Cross-Border Families, International Successions, Mediation Issues and New Financial Assets, edited by Sara Landini (University of Florence).

The papers, written in English, Italian, Portuguese and Spanish, address various issues relating to the Succession Regulation, the Matrimonial Property Regimes Regulation and the Regulation on the Property Consequences of Registered Partnership, notably as regards agreements between spouses and partners, agreements as to succession, forced heirship, succession to cryptocurrencies and mediation in cross-border succession and marital property cases.

The purpose of the book is to disseminate the results of the Goineu Plus project (Integration, migration, transnational relationships. Governing inheritance statutes after the entry into force of EU succession regulation), funded by the European Union.

The table of contents of the book can be found here. For more information, see here.

December 2020 will be quiet at the Court (regarding private international law cases).

The judgment in C-774/19 Personal Exchange International will be delivered (6th Chamber: Bay Larsen, Safjan, Jääskinen; no opinion, no hearing) on Thursday 10. The question was referred on September 5, 2019, by the Vrhovno sodišče Republike Slovenije (Slovenia):

Must Article 15(1) of Regulation No 44/2001 be interpreted as meaning that an online poker playing contract, concluded remotely over the internet by an individual with a foreign operator of online games and subject to that operator’s general terms and conditions, can also be classified as a contract concluded by a consumer for a purpose which can be regarded as being outside his trade or profession, where that individual has, for several years, lived on the income thus obtained or the winnings from playing poker, even though he has no formal registration for that type of activity and in any event does not offer that activity to third parties on the market as a paid service?

On Thursday 17, AG Campos Sánchez-Bordona’s opinion on C-709/19 Vereniging van Effectenbezitters, will be published. The Hoge Raad (the Netherlands) asked the Court to interpret once more Article 7(2) Brussels I bis in a case of patrimonial damage. The preliminary reference was lodged September 25, 2019; a hearing had been scheduled for last September, rescheduled, and eventually replaced by questions for written answer.

1.(a)  Should Article 7(2) of [the Brussels Ia Regulation] be interpreted as meaning that the direct occurrence of purely financial damage to an investment account in the Netherlands or to an investment account of a bank and/or investment firm established in the Netherlands, damage which is the result of investment decisions influenced by globally distributed but incorrect, incomplete and misleading information from an international listed company, constitutes a sufficient connecting factor for the international jurisdiction of the Netherlands courts by virtue of the location of the occurrence of the damage (‘Erfolgsort’)?

(b)    If not, are additional circumstances required to justify the jurisdiction of the Netherlands courts and what are those circumstances? Are the additional circumstances referred to [in paragraph 7 below] sufficient to found the jurisdiction of the Netherlands courts?

2. Would the answer to Question 1 be different in the case of a claim brought under Article 3:305a of the BW (Burgerlijk Wetboek: Netherlands Civil Code) by an association the purpose of which is to defend, in its own right, the collective interests of investors who have suffered damage as referred to in Question 1, which means, among other things, that neither the places of domicile of the aforementioned investors, nor the special circumstances of individual purchase transactions or of individual decisions not to sell shares which were already held, have been established?

3. If courts in the Netherlands have jurisdiction on the basis of Article 7(2) of the Brussels Ia Regulation to hear the claim brought under Article 3:305a of the BW, do those courts then, on the basis of Article 7(2) of the Brussels Ia Regulation, also have international and internal territorial jurisdiction to hear all subsequent individual claims for compensation brought by investors who have suffered damage as referred to in Question 1?

4. If courts in the Netherlands as referred to in Question 3 above have international, but not internal, territorial jurisdiction to hear all individual claims for compensation brought by investors who have suffered damage as referred to in Question 1, will the internal territorial jurisdiction be determined on the basis of the place of domicile of the misled investor, the place of establishment of the bank in which that investor holds his or her personal bank account or the place of establishment of the bank in which the investment account is held, or on the basis of some other connecting factor?

The hearing in C-30/20 Volvo e.a., also on Article 7(2) of the Brussels I bis Regulation, will be held on the same day. The preliminary reference, from a commercial court in Madrid (Spain), was lodged on January 22, 2020. It will be decided by the 1st Chamber (Bonichot, Bay Larsen, Toader, Safjan, Jääskinen, with M. Safjian as reporting judge), with the opinion of the French AG, M. Richard de la Tour. At first sight, the question looks like a simple one:

Should Article 7(2) of [the Brussels I bis Regulation] be interpreted as establishing only the international jurisdiction of the courts of the Member State for the aforesaid place, meaning that the national court with territorial jurisdiction within that State is to be determined by reference to domestic rules of procedure, or should it be interpreted as a combined rule which, therefore, directly determines both international jurisdiction and national territorial jurisdiction, without any need to refer to domestic regulation?

That the reference has been allocated to a chamber of five judges, together with the fact that the AG’s view has been requested, certainly means that the decision will go beyond choosing one or the other alternative interpretations.

Vanessa Barbé (University of Valenciennes) and Christina Koumpli (University of Avignon) are inviting abstracts on The Impact of Brexit on Fundamental Rights and Freedoms for a Virtual Symposium on 27 and 28 May 2021, followed by a publication funded by the Centre for Interdisciplinary Research in Social Sciences and Humanities (CRISS, University of Valenciennes).

Some aspects of the call for papers dealing with rights resulting from the European Civil Justice and the rights of British litigants may be of particular interest for the readers of our blog.

Brexit is a political and legal earthquake with multiple consequences: on the European institutions, on the Member States and their budgets, on international trade, on British administrations and companies, but also on individuals, British or European nationals. The exit of the United Kingdom from the European Union has got a major impact on the fundamental rights and freedoms of individuals. The aim of this symposium is to identify the rights and freedoms which are called into question and to understand the potential and proven upheavals affecting their protection.

The impact of Brexit on rights and freedoms of European originis obvious: theoretically, the United Kingdom isn’t supposed to respect European citizens’ rights, workers’ rights, social rights, European environmental rights…. any longer. Admittedly, the country was already benefiting from an adaptation of its European obligations thanks to the policy selection mechanism (opt-out). But still the United Kingdom was a full member of the Union, applying the free movement of goods, persons, services and capital, and taking part in the Union’s founding policies on the environment or education, for instance. To some extent, the UK has pledged not to wipe out all the rights and freedoms formerly created, but their upholding cannot be total, as this would mean denying Brexit itself. Therefore, it would seem that several categories of rights and freedoms may be identified: those that risk to disappear completely (in relation to citizenship, for example), those that could be maintained because they are protected by other sources (international sources, regional sources such as the European Convention on Human Rights, or British legal sources such as common law), and those the future of which is uncertain, but which might be preserved by virtue of a ‘ratchet effect’ or of the principle of non-regression of rights.

The impact of Brexit on each of the four freedoms of movement might be considered, as well as on the categories of rights resulting from the implementation of the Union’s major policies in the fields of labour law, environmental law, health, education, justice and security in particular. Proposals are expected on the right to security related to the European arrest warrant, the right to privacy with regard to the protection of personal data, the right to non-discrimination in labour law, the right to a healthy environment, the right to asylum, etc… Cross-cutting categories of rights may be identified too, such as the rights of litigants, which can be considered by studying the remedies available to British litigants before domestic courts and European institutions after Brexit. The application of the Charter of Fundamental Rights in the United Kingdom’s legal order after Brexit is also a potential source of litigation, as the Court of Justice of the Union has recognised its applicability to a certain extent despite the opt-out declaration issued by the country.

In addition to rights and freedoms of European origin, British rights and freedoms are going to be affected too. Brexit, as a victory for the opponents of Europe in the broadest sense, might be, to some extent, a new opportunity to challenge the Human Rights Act 1998, the Act transposing the European Convention on Human Rights into British law. The future of that Act is uncertain after Brexit, since its repeal is being thought about, and the United Kingdom’s participation in the Council of Europe is being deeply questioned as well.

The political rights of the British citizens are also at the heart of the exit process. It took more than three and a half years after the referendum of June 23rd, 2016 for Brexit to be legally implemented by the British Parliament. Several ad hoc laws have been passed to delimit the powers of the Government and Parliament. The Supreme Court has been asked twice to rule on constitutional disputes arising from clashes between public authorities, and has been able consequently to assert itself as the third constitutional actor in Brexit. The powers and role of the British citizen/litigant may be usefully studied.

Finally, the territorial structure of the Kingdom is under threat. The border between Northern Ireland and the Republic of Ireland is at the heart of tensions between Europe and the United Kingdom, and with it, the question of the protection of the rights and freedoms of nationals of both States. In the same way, due to Scotland’s opposition to the exit procedure, the issue of the region’s independence is once again on the agenda. The Scottish First Minister Nicola Sturgeon is strongly advocating a new referendum on the independence of the region, which Boris Johnson formally ruled out in a letter of January 14th, 2020, since any (national or local) referendum must be authorised by Westminster. Furthermore, the political rights of the Scots, and their other constitutional rights could be disrupted as well, if the relationship between the region and the rest of the Kingdom was changed.

In conclusion, the symposium aims at exploring the multiple legal consequences, for the British and for European nationals, arising from the exit of the United Kingdom from the European Union.

Proposals for contribution (qualities of the author and short CV, summary of the communication of about one page) may relate to European law, British law, but also Private/ Public International law or the national laws of the Member States of the Union, as far as their relationships with the United Kingdom are considered.

The deadline for submissions is 15 January 2021.

Proposals are expected at the following address: Vanessa.Barbe@uphf.fr.

On 2 December 2020, following a lengthy procedure, the Recast Service Regulation (Regulation (EU) 2020/1784 of 25 November 2020 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters) was finally published in the Official Journal of the European Union (the Position of the Council at first reading in view of the adoption of the Recast had appeared a few days earlier: see it here).

The contents of the Regulation were known, in substance, since an agreement was reached, in June 2020, between the Council and the European Parliament as a result of the trilogue consultations.

Previous posts in this blog illustrated the envisaged innovations and the challenges posed by the recast, and discussed some of the issues raised by the current rules.

The Recast will apply from 1 July 2022.