EAPIL blog

Dimitry Kochenov (University of Groningen) and Uladzislau Belavusau (T.M.C. Asser Institute) have posted on After the Celebration: Marriage Equality in EU Law post-Coman in Eight Questions and Some Further Thoughts on SSRN.

The abstract reads:

This article provides a detailed critical analysis of the case of Coman, where the Court of Justice of the EU clarified that the meaning of the term ‘spouse’ in Directive 2004/38 was gender-neutral, opening up the door for same-sex marriage recognition for immigration purposes all around the EU, thus destroying the heteronormative misinterpretations of the clear language of the Directive practiced in a handful of Member States. The state of EU law after Coman is still far from perfect, however: we underline a line of important questions which remain open and which the Court will need to turn to in the near future to ensure that marriage equality in moves beyond mere proclamations in the whole territory of the Union. In particular, we: (1) Question the effectiveness of the Commission as an effective guardian of the Treaties, puzzled by its failure to make basic EU citizenship rights available to EU citizens who are in a same-sex relationship. (2) Interrogate the deficiencies of single-purpose marriage recognition and question the speed of the eventual spill-overs of such recognition into other fields outside immigration per se. (3) We demonstrate that Coman is a textbook example of the free-movement paradigm of non-discrimination at work, which is, besides obviously being accepted in EU law, also deeply questionable, since those who do not move within the internal market might also want to have a family. (4) Issues of coherence among different instruments of secondary EU law equally arise, (5) just as the issue of ‘genuine residence’, which Coman brings up, whatever this might mean in the 21st century with its fast pace of life and increasing numbers of people – not all of them heterosexual – living between countries and homes. (6) Numerous questions arise as a result of the natural conflict, which is omnipresent, between principles of EU law and private international law approaches. (7) The CJEU’s language of ‘strengthening family life’ is both dangerous and out of place, in our respectful opinions, informed by the desire to keep the Court out of Europeans’ (and Americans’, as in Coman) spousal beds. (8) The last issue we raise is the question of ‘what’s next?’ for others who are still arbitrarily persecuted by EU and national law and for whom (and how many of them) they love. Once the principle is established that states should not interfere with our sexuality without imperative reasons of the public good – what the LGBTQ community has been subjected to abundantly and still suffers from, and to which Coman is a wonderful illustration – the same test is bound to apply in other contexts, especially polygamy and other persecuted or ‘non-recognised’ loving relationships. But first we turn back to the facts and the context of the case, and praise the Court for a significant achievement, which righted the failure of the Commission to ensure the basic applicability of the Directive 2004/38 to gay European citizens.

The paper is forthcoming in the Maastricht Journal of European and Comparative Law.

On 29 April 2020, the (national) Court of Appeal of Luxembourg ruled that the conditions of res judicata are determined by uniform European rules and not by national law. In particular, the court held that the triple identity requirement developed in the context of lis pendens equally applies to define the conditions of res judicata.

Background

In 1985, a Luxembourg company installed a storage machine in a warehouse in Weissenau, Germany. In 1988, a fire broke out in the warehouse and destroyed it. Three German insurance companies covered the losses and, after being subrogated in the rights of the insured, sued the Luxembourg company in Munich, Germany, for DEM 3.885.395, DEM 12.054.105 and DEM 67.820 (about € 6 million in total).

The German companies sued on both contractual and tort grounds. Although the issue was debated in the Luxembourg proceedings, it seems that the German court declined jurisdiction with respect to the contractual claim. With respect to the tort claim, the German court found that the claim was admissible but dismissed it. The first instance judgment was rendered in 1994.

While the German insurers were (unsuccessfully) appealing through the German court system up until the German Federal Court (BGH), the Luxembourg defendant initiated proceedings in 1998 in Luxembourg against one of its French subscontractor, seeking a declaration that, should the Luxembourg defendant be found liable of the loss, the French subcontractor should indemnify it. A few months later, the German insurers also initiated proceedings against the Luxembourg defendant in the same Luxembourg court seeking payment of the exact same sums (DEM 3.885.395, DEM 12.054.105 and DEM 67.820). Their claim was primarily for breach of contract, and subsidiarily in tort.

The Luxembourg party argued that the recognition of the German judgment in Luxembourg prevented relitigation of the same dispute in Luxembourg courts. On appeal, it also challenged the jurisdiction of Luxembourg courts to entertain the action on the ground of lis pendens.

Lis Pendens

The Luxembourg Court of Appeal dismissed the jurisdictional challenge in a first judgment of 8 July 2015. First, it noted that the issue had not been raised before the court of first instance. Secondly, it ruled that the Luxembourg proceedings had been initiated after the German court not only had been seized but had actually delivered its judgment. It held that the lis pendens doctrine did not apply if the second proceedings were initiated after a judgment had been rendered.

Res Judicata

The key question was therefore whether the German judgment prevented relitigation in Luxembourg. Remarkably, both parties primarily argued that the conditions and scope of res judicata were governed by the Brussels Convention, and should thus be determined autonomously. However, both parties had also filed with the court expert evidence on the conditions and scope of res judicata under German law.

The court noted that the parties agreed that EU law governs and ruled that the Brussels Convention defines the scope and conditions of res judicata. It therefore declared the expert reports on German law irrelevant.

The court identified and applied two rules of EU law.

The first was deduced from the Gothaer case (C-456/11). It relates to the scope of res judicata. The issue was whether the reasons of the judgment could be taken into consideration to determine the scope of the foreign judgment, or whether the court should only look at the operative part of the judgment (dispositif).  The court suggested that the following part of Gothaer was of general application:

the concept of res judicata under European Union law does not attach only to the operative part of the judgment in question, but also attaches to the ratio decidendi of that judgment, which provides the necessary underpinning for the operative part and is inseparable from it.

The second rule identified by the Luxembourg Court of Appeal was the triple identity requirement. The court did not explain which judgment of the CJEU supported this conclusion. I can certainly think of a number of judgments defining the requirements for lis pendens, but I am not sure the CJEU has ever ruled that the same requirements were also applicable in the context of a European concept of res judicata in civil and commercial matters.

The Court then conducted a close analysis of the German judgment, that it compared to the claims made in Luxembourg. It underscored certain important differences between the German and Luxembourg laws of liability which explain why a claim could be made on a tort basis under German law, while it could only be made on a contractual basis in Luxembourg. It eventually concluded that the German judgment was res judicata in Luxembourg and declared the claims of the insurance companies inadmissible.

Assessment

The most interesting part of the judgment is no doubt the proposition that a European concept of res judicata exists under the Brussels Convention. As far as I am aware, the vast majority of scholars in Europe debate whether res judicata should be governed by the law of the state of origin or the law of the requested state.

Gothaer is certainly authority for the proposition that the res judicata of jurisdictional rulings should be defined at European level, but the court insisted that the rationale was the uniform application of European rules, i.e. jurisdictional rules provided by the Brussels I Regulation. In the present case, the issues debated before the German and Luxembourg courts were governed by national law (German tort law and Luxembourg contract law).

This being said, would it be illogical to resort to the same requirements to define lis pendens and res judicata? Both doctrines aim at avoiding conflicting decisions.

An online workshop under the title Private International Law in the UK after Brexit (Commercial focus) will take place on 19 and 20 November 2020, hosted by Paul Beaumont (University of Stirling), Mihail Danov (University of Exeter) and Jayne Holliday (University of Stirling).

This is the third of four public workshops funded by the Arts and Humanities Research Council, on Private International Law after Brexit from global, European, Commonwealth and intra-UK perspectives.

Speakers include Jenny Papettas (University of Birmingham), Yvonne Baatz (Queen Mary University of London), Rob Merkin QC (University of Exeter), Tom Sprange QC (King & Spalding), Mihail Danov (University of Exeter), Mary Keyes (Griffith University), Christophe Bernasconi (Secretary General of the Hague Conference on Private International Law), Iain Mackie (Macfarlanes), Alex Layton QC (King’s College London and Twenty Essex), Barry Rodger (University of Strathclyde), Lindsey Clegg (Freeths), Omar Shah (Morgan, Lewis & Bockius LLP), and Nick Frey (Freshfields Bruckhaus Deringer LLP).

The full programme and the details to attend the workshop are available here.

On 16 November 2020, the JURI Committee of the European Parliament will vote on the draft recommendations for second reading on the proposed directive on representative actions for the protection of the collective interests of consumers, the proposed regulation amending Regulation No 1206/2001 of 28 May 2001 on cooperation in the taking of evidence in civil or commercial matters, and the proposed regulation amending Regulation No 1393/2007 on the service of judicial and extrajudicial documents in civil or commercial matters.

During the afternoon session, the JURI Committee will hold a Workshop on ”The 40th Anniversary of the Hague Convention on the Civil Aspects of International Child Abduction”, in the presence of the EP Coordinator of Children’s’ Rights, Ms Ewa Kopacz.

The workshop will mark the 40th anniversary of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction and is aimed at examining assessing the success and importance of the Convention in ensuring the prompt return and thus the best interests of the abducted children. Against this background, the workshop will bring together Members of the European Parliament and a number of experts, practitioners and academics with a view to presenting the functioning of the Convention from the child’s rights dimension and pointing out ongoing issues with its implementation. The programme and two in-depth analysis on the topic can be downloaded here.

Both the voting and the workshop will be webstreamed.

Tobias Lutzi (University of Cologne) is the author of Private International Law Online – Internet Regulation and Civil Liability in the EU, published by Oxford University Press in the Oxford Private International Law Series.

The abstract reads:

‘Private International Law Online’ is a dedicated analysis of the private international law framework in the European Union as it applies to online activities such as content publishing, selling and advertising goods through internet marketplaces, or offering services that are performed online. It provides an insight into the history of internet regulation, and examines the interplay between substantive regulation and private international law in a transaction space that is inherently independent from physical borders.

Lutzi investigates the current legal framework of the European Union from two angles: first questioning how the rules of private international law affect the effectiveness of substantive legislation, and then considering how the resulting legal framework affects individual internet users. The book addresses recent judgments like the Court of Justice’s controversial decision in Glawischnig-Piesczek v Facebook, and the potential consequences of global injunctions, including the adverse effects on freedom of speech and the challenges of coordinating different national laws with regard to online platforms. It also considers the European Union’s new Copyright Directive, and the way private international law affects the ability of instruments such as this to create a coherent legal framework for online activities in the European Union.

Based on this discussion, Lutzi advocates an alternative approach and sets out how reform might provide a more effective framework, and develops individual elements of the approach to propose new rules and how those rules might adapt to accommodate more recent phenomena and technologies.

For more information see here.

Giancarlo Frosio (University of Strasbourg) has posted Enforcement of European Rights on a Global Scale on SSRN.

The abstract reads:

This chapter reviews global enforcement of European rights. Global extra-territorial enforcement of miscellaneous rights has emerged as a consistent trend in recent online regulation, both at international and EU level. In considering this trend, this chapter focuses on case law and policy making that face the riddle of extra-territorial application of online intermediaries’ obligations. This chapter describes first the historical origins of global enforcement and the complex issues that Internet jurisdiction brings about. It then offers a panoramic overview of emerging global enforcement at the international level. Later, this chapter reviews to which extent global enforcement has been endorsed by the European legal system, both at EU and national level, with special emphasis on recent decisions from the Court of Justice of the European Union, such as Google v CNiL and Glawischnig v Facebook. Finally, after a review of the political complexities surrounding global enforcement, the standards that might be applied for issuing global enforcement orders are discussed.

The paper is forthcoming in the Handbook of European Copyright Law (Eleonora Rosati ed., Routledge).

Emmanuel Guinchard (Northumbria University) edited Rome I and Rome II in Practice, just published by Intersentia.

The publisher’s blurb reads as follows.

This book is devoted to the applicable law to contractual and non-contractual obligations in the European Union. The Rome I and II Regulations provide uniform conflict of laws rule in order to avoid undue forum-shopping. In theory all national courts of EU Member States (excluding Denmark) apply the same rules determining the applicable law. Rome I and II in Practice examines whether the theory has been put into practice and assesses difficulties that may have arisen in the interpretation and application of these Regulations. Such study appears invaluable as the Rome I and II Regulations may be seen as a critical stepping stone towards the construction of a true and far-reaching European Private International Law. Providing clear and detailed insights into the national case law of most EU Member States, as well as the case-law of the Court of Justice, and followed by a comparative analysis, this book is a valuable resource for practitioners, the judiciary, and academics who are interested in understanding how EU law is applied on national level.

The individual country chapters were written by Marie-Elodie Ancel (University Paris II Panthéon-Assas), Apostolos Anthimos (Attorney-at-Law, Thessaloniki), Davor Babić (University of Zagreb), Laura Maria van Bochove (Leiden University), Petr Bříza (Charles University, Prague), Geert Van Calster (KU Leuven), Marcin Czepelak (Jagiellonian University, Kraków), Aleksandrs Fillers (University of Antwerp), Pietro Franzina (Catholic University of the Sacred Heart, Milan), Emilia Fronczak (Avocat à la Cour, Luxembourg), Aleš Galič (University of Ljubljana), Uglješa Grušić (University College London), Tomáš Hokr (Partner at Bříza & Trubač law firm, Prague), Csongor István Nagy (University of Szeged), Elena Judova (Matej Bel University, Banská Bystrica), Inga Kačevska (University of Latvia), Thomas Kadner Graziano (University of Geneva), Jerca Kramberger Škerl (University of Ljubljana), Miloš Levrinc (Matej Bel University, Banská Bystrica), Christiana Markou (Attorney-at-Law, Cyprus), Valentinas Mikelėnas (University of Vilnius, Lithuania), Nikolay Natov (Sofia University St Kliment Ohridski), Máire Ní Shúilleabháin (University College Dublin), Vassil Pandov (Sofia University St Kliment Ohridski), Afonso Patrão (University of Coimbra), Michel José Reymond (Attorney-at-Law, Geneva), Diana Sancho-Villa (Westminster University), Stephan Walter (University of Bonn), Matthias Weller (University of Bonn), Dora Zgrabljić Rotar (University of Zagreb).

More information, including the book’s table of contents, available here.

On 21 May 2020, the Piraeus Court of Appeal ruled that a judgment on a family maintenance matter, issued by the Tribunal of Rotterdam in 2007, did not qualify for recognition in Greece (ruling No 383 of 2020, unreported).

The Court reached this conclusion on the basis of Article 34(2) of Regulation 44/2001 (the Brussels I Regulation).

According to the latter provision, a judgment that was given in default of appearance should not be recognised “if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so”.

Proceedings in the Netherlands

In 2007 a claim for maintenance was filed by a mother on behalf of her minor child, both living in the Netherlands, against the father, a resident of Greece. The claim was filed on 5 January 2007 before the Tribunal of Rotterdam. The hearing was scheduled for 8 August 2007. The defendant failed to appear. The Tribunal issued its ruling on the day of the hearing. It then set a three-month deadline for appeal and declared that the judgment was immediately enforceable.

Proccedings in Greece – First instance

In February 2009, an application for a declaration of enforceability of the Dutch judgment was filed before the Piraeus Court of First Instance. The court stayed its proceedings, and ordered the applicant mother to produce evidence concerning the service of the claim to the father [ruling No 3511 of 2009, unreported].

The case was rescheduled to hear the applicant. The application, however, was dismissed. The court stated that the sole document produced was a letter by the Tribunal of Rotterdam, dated 2 April 2007, declaring that the claim had been served on the defendant. Still, no evidence of receipt by the defendant was submitted. The Court concluded, accordingly, that his rights of defence were violated [ruling No 358 of 2012, unreported].

Proceedings in Greece – Second instance

The mother appealed before the Piraeus Single Member Court of Appeal. She complained that the Court of First Instance had acted ultra vires, arguing that, pursuant to Regulation 44/2001, first instance courts are allowed to assess the conditions for recognition and enforcement of a judgment, not the grounds for refusing such recognition.

The matter was referred to a Chamber of the same court [ruling No 455 of 2018, unreported]. The Chamber allowed the appeal and quashed the first instance ruling on the grounds invoked by the appellant. It stated however that, as a second instance court, it had the powers under the Regulation to examine any grounds for refusal.

The Service of Process Issue

The Piraeus Court of Appeal devoted a lengthy analysis to the issue whether the act instituting the Dutch proceedings had been properly served on the defendant. The main findings may be summarised as follows:

(a) The certificate issued under Articles 54 and 58 of Regulation No 44/2001 by the competent body of the Rotterdam Tribunal states that service took place on 2 April 2007. The registered letter sent to the defendant bears the same date.

(b) That just cannot be possible: the sending and delivery of a letter sent from Rotterdam to Athens cannot occur on the same day.

(c) The appellant failed to produce an acknowledgment of receipt by the defendant.

(d) The claim was not officially translated from Dutch to Greek. There was a translation attached, however not signed by an authorized person to that cause. This happened only in April 2010, i.e. after the proceedings were stayed by the Piraeus CFI in 2009.

(e) No evidence was given of the fact that the defendant failed to challenge the judgment in the Netherlands, although it was possible for him to do so: he received neither the document instituting proceedings, nor the judgment itself.

(f) By reviewing the Dutch ruling, the Piraeus Court of Appeal noticed that the Rotterdam Tribunal failed to examine the timeliness of service on the defendant; it simply confirmed his non-appearance at the hearing in Rotterdam.

In light of above, the Piraeus Court dismissed the appeal.

Assessment

As a starter, the judgment demonstrates that courts are still confronted with exequatur issues, in spite of its abolition almost a decade ago.

In addition, judges and lawyers should be wary of the proper applicable law. In the case at hand, the courts were right in resorting to Regulation 44/2001, in light of Article 75(2)(b) of the Maintenance Regulation. Nevertheless, the core of the matter remains the same (lack of proper service is a ground for refusing recognition also in accordance with Article 24(b) of the Maintenance Regulation).

The reversal of the first instance ruling was correct. Article 42 of Regulation 44/2001 is adamant about it, so is Article 30 of the Maintenance Regulation.

The referral in second instance is demonstrative of a typical lack of cohesiveness between the text of the Regulation and national declarations of the Member States. As evidenced in Annex III of the Regulation 44/2001, Greece declared that the Court of Appeal is competent to try appeals pursuant to Article 43(2) of the Regulation. At that time (2001) and for many years after, a court of appeal consisted exclusively of three judges. In 2015 the law changed. Pursuant to the new Article 19 of the Greek Code of Civil Procedure, the competent court for examining appeals against judgments rendered by a Single Member Court of First Instance is the relevant Single Member Court of Appeal. In the case at hand, the Piraeus Single Member Court of Appeal considered that the three-member chamber should remain competent, because the Hellenic Republic did not amend its declaration. Legal scholars have already expressed a different view. The fact of the matter is that those problems affect procedural economy, especially in sensitive cases, such as maintenance claims.

Finally, in regards to the central issue of service, the following remarks may be made.

First, the court correctly found that the conditions for service of the claim to the defendant were not met, as it was not proven that the document was received or translated from Dutch into Greek. However, the judgment lacks sufficient reasoning with respect to the defendant’s ability to challenge the foreign decision in the state of origin.

Secondly, no reference is made to judgment of the Court of Justice in the Lebeck case, where the Court stated that   “proceedings to challenge a judgment” referred to in Article 34(2) of Regulation 44/2001 must be interpreted as also including applications for relief when the period for bringing an ordinary challenge has expired. Hence, the margin of the court’s test should have been expanded to the time of expiry declared by the Netherlands under Article 17(4) and 23(1) of the Service Regulation.

Finally, and most importantly, the Piraeus court omitted any reference to the ruling in ASML, where the Court ruled that

Article 34(2) of Regulation No 44/2001 is to be interpreted as meaning that it is ‘possible’ for a defendant to bring proceedings to challenge a default judgment against him only if he was in fact acquainted with its contents, because it was served on him in sufficient time to enable him to arrange for his defence before the courts of the State in which the judgment was given.

Therefore, service of the default judgment after the expiry of time for appeal or an application for relief does not suffice, and the defence under Article 34(2) of Regulation 44/2001 is still active.

Concluding Remarks

One additional point worth noticing is the duration of the proceedings in Greece, which for maintenance standards is utterly unbearable. It is very fortunate that sooner or later Section 1 of Chapter 4 (Articles 17 et seq.) of the Maintenance Regulation will prevail in practice.

Admittedly, the abolition of exequatur will not solve all problems, bearing in mind the second set of remedies available to the judgment debtor in the state of destination. It is hoped that a common approach could be achieved even in the last mile, i.e. the national law on enforcement.

In a recent e-mail exchange, Paul Beaumont and Jayne Holliday (both working now at the University of Stirling) drew my attention to Article 14 of the Hague Convention on the civil aspects of international child abduction. The provision is certainly a rarity in the field of ascertaining and applying foreign law, and of recognition. It reads as follows

In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.

The logic of Article 14 appears to be twofold. It is first and  foremost a practical rule: it should lead to speedy decisions on the return of a child, which are fundamental to the working of the Convention.

Its second rationale seems to be dogmatic. According to the Convention’s explanatory report by Elisa Pérez-Vera, at para 119, Article 14 does not address cases of application of foreign law in the narrow sense; it rather “takes it into account” to check whether the claim of wrongful removal is correct:

Since the wrongful nature of a child’s removal is made to depend, in terms of the Convention, on its having occurred as the result of a breach of the actual exercise of custody rights conferred by the law of the child’s habitual residence, it is clear that the authorities of the requested State will have to take this law into consideration when deciding whether the child should be returned. In this sense, the provision in article 13 of the preliminary draft Convention that the authorities ‘shall have regard to’ the law of the child’s habitual residence, could be regarded as superfluous. However, such a provision would on the one hand underline the fact that there is no question of applying that law, but merely of using it as a means of evaluating the conduct of the parties (…)” (emphasis added)

In a similar vein, judicial or administrative decisions on custody rights, the breach of which entails the wrongfulness of the removal (or of the retention, as the case may be), are not really recognized, but work as a piece of proof in the proceedings at the requested State:

… while on the other hand, in so far as it applied to decisions which could underlie the custody rights that had been breached, it would make the Convention appear to be a sort of lex specialis, according to which those decisions would receive effect indirectly in the requested State, an effect which would not be made conditional on the obtaining of an exequatur or any other method of recognition of foreign judgments.

There is no way to dispute the usefulness of Article 14 in practice. I have more doubts regarding the correctness of the conceptual distinction between “applying” a foreign law and “taking [it] into account” (which is usually understood as taking into account “as a matter of act”). The operations are possibly the same in nature; the difference between them, just a question of degree. Furthermore, I believe that in the context of Article 14 foreign law is actually applied. The conduct of the parties cannot be evaluated without looking into what that law prescribes; the authority in the requested State draws the corresponding consequences as to who is the holder of the rights of custody in the case at hand. The assessment of the parties’ conduct comes afterwards. In the same vein, I believe that a decision on custody rights is recognized, in the proper sense of the term, as a decision, and not as a piece of documentary evidence.

What makes the difference is therefore not “what is done” with the foreign law/foreign decision in the context of child abduction. It is rather the limited goal of the application of that law, and of the recognition of the foreign decision, which allows to proceed without resorting to the specific procedures for the proof of foreign law (or for the recognition of foreign decisions), which would normally apply.

Be it as it may, what really matters is what the alternative method – that of taking notice directly of the law of, and of judicial or administrative decisions, of the State of habitual residence of the child before removal or retention- means vis-à-vis quality. That foreign law is not, strictly speaking, applied, does not entail a lesser need for certainty about its contents. The authority in the requested State does indeed not determine the rights of custody. However, her understanding of the foreign legal system is not innocuous: it has immediate effects on the child in terms of return/not return, and therefore, of residence; these, in turn, affect the question of international jurisdiction for a claim on the merits. Furthermore, the view of the requested authority on the custody issue sets a precedent (in a non-technical sense, for it is not binding) for future discussions about parental responsibility.

The assumption that Article 14 supports lower standards of proof of the foreign law (and more lenient conditions of recognition) is only this: an assumption. To date, INCADAT lists 39 national decisions on the provision. In fact, in some of them Article 14 is simply mentioned . The remaining decisions have been rendered in different jurisdictions (Austria, Canada, France, Germany, Israel, US, Switzerland): the sample is hence not good enough for a study aimed at finding out the differences with the usual methods to ascertain foreign law, nor to make any assessment about quality.

Still, it might not be a useless effort. For, if Article 14 proves to work, it may be worth trying it elsewhere (the suggestion, with a question mark, is actually from Professor Beaumont).

David Hodson is the author of Family Law Leaves the EU – A Summary Guide for Practitioners, published by Jordan Publishing. The book aims to provide family law practitioners with an accessible guide to the law and practice which will apply on the UK’s final departure from the EU on 31 December 2020. The publisher’s blurb reads as follows.

The government has indicated that the UK will not be party to any further EU laws, instead relying on existing international laws (eg Hague Conventions) to which we will be a party in our own right. There will also be new provisions in national law, where previously EU law existed, and some court procedures will change. This invaluable title will provide an overview of the legal position and the practical issues which will arise in all areas of family law, including the preparatory steps which lawyers should take in readiness for departure, so as to advise clients effectively.

More information available here.

Alfonso Luis Calvo Caravaca (University Carlos III, Madrid) and Javier Carrascosa González (University of Murcia) are the author of a treatise on private international law, in Spanish, titled Tratado de Derecho Internacional Privado.

The three-volume work, published by Tirant lo Blanch, aims to provide an updated, systematic and comprehensive account of the discipline.

Private international law is presented through the analysis of legal rules, case law and scholarly writings, with more than 7.500 references to judicial decisions. The book provides an in-depth insight into European and Spanish private international law in force both for practitioners and students. It illustrates private international law in an accessible way by showing its rules ‘in motion’, i.e., as they actually work.

Carsten Gerner-Beuerle (University College London & European Corporate Governance Institute – ECGI), Federico M. Mucciarelli (Università degli studi di Modena e Reggio Emilia – UNIMORE), Edmund Schuster (London School of Economics) and Mathias Siems (European University Institute – EUI, Durham University and European Corporate Governance Institute – ECGI) have posted Making the Case for a Rome V Regulation on the Law Applicable to Companies on SSRN.

The abstract reads:

There is significant legal variation and uncertainty in the conflict of laws rules applicable to companies in the EU. While the case law of the Court of Justice on the freedom of establishment has clarified some questions, it is evident that case law cannot provide for an adequate level of legal certainty. The main recommendation of this paper is that private international company law in the EU should be harmonised. The paper discusses the main challenges that a future regulation to this effect – called here ‘Rome V Regulation on the Law Applicable to Companies’ – would have to overcome. Some of those are of a political nature: for instance, countries may fear that it may become easier for companies to evade domestic company law (eg, rules of employee co-determination), and there are specific considerations that concern companies established in third countries. Another challenge is that a future regulation on the law applicable to companies has to be consistent with existing EU conflict of laws rules as regards, for example, insolvency and tort law, while also complying with the freedom of establishment of the Treaty. It is the aim of this paper to discuss these questions in detail, notably the general considerations for harmonisation in this field, a potential harmonisation based on the ‘incorporation theory’, how it may be possible to overcome some contentious issues such as the definition of the lex societatis or the relationship between the lex societatis and other areas of law, and the prospects of future international harmonisation.

A revised version of the paper will be published in the Yearbook of European Law.

In a resolution of 8 November 2019 (III CZP 24/19, available here, in Polish), the Supreme Court of Poland addressed the issue of jurisdiction to rule on the authorisation that a guardian of an adult may need to obtain prior to selling property belonging to the latter.

Background

DD is a German national, with habitual residence in Germany. He owned an immovable in Poland. Due to an impairment of his personal faculties, DD was put under guardianship by a German court. EH, a lawyer, was appointed his guardian and charged with taking care of DD’s property and represent him in court proceedings.

In 2018 the competent German court gave its approval for the disposal of DD’s immovable property in Poland. The property was sold to a married couple – SK and AK – and entered their community of property. Additionally, the sale contact instituted a mortgage on the property to secure a loan concluded by SK and AK with a Polish bank.

The buyers applied to the regional court in Poland to have the change of ownership and mortgage entered into the land register. This application was rejected as the court found that the sale contract was invalid, on the ground that EH had not been authorised to sell the property by a Polish family court. The higher instance court, to which SK and AK filed an appeal, decided to ask the Supreme Court for guidance.

Considered Sources of Law

The Supreme Court observed, to begin with, that the matters falls outside the material scope of the Brussels I bis Regulation in accordance withArticle 1(2)(a), on the legal capacity of natural persons. In Schneider (C-386/12) the CJEU confirmed that the above exclusion covers non-contentious proceedings by which a national of a Member State who has been declared to be lacking full legal capacity and placed under guardianship in accordance with the law of that State seeks in another Member State an authorisation to sell a property situated in that other Member State. The Court also reminded that Poland is not a party to the Hague Convention on the International Protection of Adults, and that the matter is not covered by the Brussels II bis Regulation.

It is thus for the domestic rules of private international law to determine whether, and subject to which conditions, a foreign judgement whereby a guardian is authorised to sell property belonging to a protected adult qualifies for recognition in Poland. The relevant rules are found in the Polish Code of Civil Procedure (“CCP”), specifically in the Code’s Part IV (available here, in Polish). The above conclusion is correct, given that no bilateral agreement is in force between Poland and Germany to cover the kind of judgments in question.

The Applicable Domestic Rules in Detail

The Supreme Court stated in its resolution that a judgement like the one at issue enjoys automatic recognition in Poland under Article 1145 CCP. Recognition may however be denied on any of the grounds listed in Article 1146 CCP. In particular, recognition ought to be denied if the matter is one for which Polish courts have, under Polish rules, ‘exclusive’ jurisdiction.

Pursuant to Article 1107(1) CCP, proceedings over rights in rem in (and the possession of) immovable property located in Poland fall under the exclusive jurisdiction of Polish courts. Additionally, Article 1110(2) CCP provides that exclusive jurisdiction extends to proceedings the decision of which ‘affects’ the rights in rem in (or the possession of) immovable property located in Poland.

While it was clear that the case under discussion did not fall within the scope of Article 1107(1) CC, the question arose of whether it may be classified as affecting the rights in rem in immovable property within the meaning of Article 1110(2) CCP.

A Case Affecting the Rights in rem in Immovable Property?

The Court explained that the characteristic feature of matters covered by Article 1110(2) CCP is that they concern not only rights in rem. An example of such a case is a division of marital property. Before the Succession Regulation became applicable, the above provision would also apply to succession cases. However, the analogy between the above cases and the case at hand is far from obvious. For example, a division of an estate including property located in Poland entails a determination as to who should eventually own the property in question. By contrast, the authorisation required to sell the property of a person lacking capacity is just one of the conditions which need to be fulfilled in order for the change in the ownership to occur, but has no influence on whether the disposal will in fact take place.

The subsequent step of the reasoning is the most interesting. The Supreme Court, when analysing Article 1110(2) CCP, relied on the case law of the CJEU, in particular in the Schneider and Schmidt (C-417/15) cases. In the said judgments, the CJEU distinguished the approval of a sale of property from the sale itself, stating that the main concern of the former proceedings is the protection of the interests of the seller.

Having in mind CJEU’s standpoint, the Supreme Court underlined that the proceedings at issue:

are aimed at analysing whether the premises for the approval for the sale … are met, having in view the interest of the person under guardianship. The nature of the asset concerned does not affect the scope and outcome of the analysis. No matter whether the contemplated transaction is the sale of immovable property or another juridical act requiring prior authorisation, the assessment revolves around the purpose of the transaction and the benefits that it may bring to the person lacking full legal capacity.

The above remarks indicate that the proceedings considered should not be characterised as a matter affecting the rights in rem in an immovable property.

The Court underlined also the practical aspect of this interpretation:

It is obvious that the family court of the place of residence of the person lacking full legal capacity, which appointed the guardian, placed the ward in the care home and supervises the protection, is the best informed about the adults concerned’s circumstances, conditions, views and needs, i.e. the factors that play a crucial role in deciding whether the transaction ought to be authorised.

Conclusion

Based on the above, the Court decided that the case should be classified as a matter relating to guardianship, an area for which Polish courts are not vested with exclusive jurisdiction. The recognition of foreign judgments cannot accordingly be refused in accordance with Article 1146 CCP.

The first EAPIL Seminar will take place on 11 December 2020, from 11 am to 1 pm (MET). It will be devoted to the impact of Brexit on Private International Law.

In short introductory statements speakers from the United Kingdom and the European Continent will analyse the legal framework that will apply to cross-border cases in the short-term, i.e. as of 1 January 2021 when the transition period provided for in the Withdrawal Agreement has expired.

In addition, they will discuss what the future relationship between the EU and the UK could and should look like. Special emphasis will be placed on the question of whether the EU and the UK should strive to adopt a new – bespoke – bilateral agreement (or whether it should simply join existing international conventions).

The speakers of the first session, on civil and commercial matters, are Alexander Layton (Twenty Essex Street Chambers, London), Eva Lein (University of Lausanne) and Michiel Poesen (KU Leuven).

The second session, on family matters, will feature presentations by Sir Andrew Moylan (Court of Appeal of England and Wales), Pietro Franzina (Catholic University of the Sacred Heart, Milan) and Anatol Dutta (Ludwig Maximilian University Munich).

The Seminar will take place via Zoom. Information about how to register will be announced in due course through this blog.

The EAPIL (Virtual) Seminar Series wishes to contribute to the study and development of (European) Private International Law through English-language seminars on topical issues. It will provide an easily accessible and informal platform for the exchange of ideas – outside the bi-annual EAPIL conferences. At the same time, it will serve as a means for EAPIL members to connect with other EAPIL members and non-members.

John Coyle (University of North Carolina) has posted Cruise Contracts, Public Policy, and Foreign Forum Selection Clauses on SSRN.

The abstract reads:

This Essay critiques the analytical framework used by the U.S. Court of Appeals for the Eleventh Circuit to determine when to enforce foreign forum selection clauses in cruise ship passenger contracts. In Estate of Myhra v. Royal Caribbean Cruises, Ltd., the Eleventh Circuit held that such clauses should be enforced even when the foreign court is likely to give effect to provisions in the Athens Convention that limit the liability of the cruise company. This approach is flawed, the Essay argues, because it fails to account for the fact that 46 U.S.C. § 30509 expressly prohibits cruise companies from utilizing contract provisions to limit their liability in passenger contracts. The Essay then looks to analogous cases from other areas of the law to propose a new analytical framework for evaluating when the courts should enforce foreign forum selection clauses in the cruise ship context.

The paper is forthcoming in the University of Miami Law Review.

After the semaine blanche, the Court of Justice will deliver some judgments and opinions, starting on 11 November 2020, with C-433/19, Ellmes Property Services. The request has been referred by the Oberster Gerichtshof (Austria), in a case where the applicant seeks to prevent the use of the apartment for tourist purposes, contrary to its designated use and in the absence of consent of the other co-owners; he claims the touristic use interferes with the applicant’s rights of co-ownership. He relies on Article 24(1) of the Brussels I bis Regulation; the defendant objects on the basis of the lack of local and international jurisdiction. The questions read as follows:

1. Is the first alternative in the first subparagraph of Article 24(1) of [the Brussels I bis Regulation] to be interpreted as meaning that actions brought by a co-owner seeking to prohibit another co-owner from carrying out changes to his property subject to co-ownership, in particular to its designated use, arbitrarily and without the consent of the other co-owners, concern the assertion of a right in rem?
2. If the first question should be answered in the negative: Is Article 7(1)(a) of the [Brussels I bis Regulation] to be interpreted as meaning that the actions referred to in paragraph 1 concern contractual obligations to be performed at the location of the property?

According to AG Szpunar (Opinion of June 18, 2020), the Court should reply:

1. Article 24(1) of [the Brussels I bis Regulation] must be interpreted as meaning that an action by a co-owner seeking to prevent the use of an apartment by another co-owner for tourist purposes, on the ground that such use is not that agreed in the co-ownership agreement, only falls under that provision if that use is enforceable erga omnes. It is for the national court to carry out the final appraisal in that respect.
2. Article 7(1)(a) of that regulation must be interpreted as meaning that, where the use agreed in the co-ownership agreement is not enforceable erga omnes, such an action falls within the concept of ‘matters relating to a contract’ within the meaning of that provision. In those circumstances, the contractual obligation at issue is an obligation not to do something, specifically, not to change the designated use of a property, in breach of the co-ownership agreement, at the place where the property is situated. In order to ascertain whether the place of performance of that obligation is the place where the apartment subject to co-ownership is situated, it is for the national court to determine that place of performance in accordance with the law governing that obligation on the basis of the conflict of law rules of the court seised.

The decision corresponds to the 1st Chamber (judges Bonichot, Silva de Lapuerta, Toader, Safjan, Jääskinen, with Ms. Silva de Lapuerta as reporting judge).

On 12 November 2020, AG Hogan’s Opinion on C-729/19, Department of Justice for Northern Ireland will be published. The request, from the Court of Appeal in Northern Ireland, is related to a dispute between a Polish national and the Department of Justice for Northern Ireland (the Central Authority for the purpose of the Maintenance Regulation). The questions for the Court focus on the temporary scope of application of the Regulation, and on the consequences of the incorporation of the Hague Protocol on the law applicable to maintenance obligations to the system of the Regulation:

1. Must Article 75(2) of the [Maintenance Regulation] be interpreted as applying only to “decisions” which were given in States that were member States of the EU at the time those decisions were made?
2. Bearing in mind that Poland is now a Member State of the European Union which is bound by the Hague Protocol, are maintenance decisions made by a Court in Poland in 1999 and 2003, that is, prior to Poland becoming a member state of the European Union, now capable of being registered and enforced in another EU Member State pursuant to any part of [the Maintenance Regulation], and in particular:
   (a) Pursuant to Article 75(3) and Article 56 of the Maintenance Regulation;
   (b) Pursuant to Article 75(2) and Section 2 of Chapter IV of the Maintenance regulation;
   (c) Pursuant to Article 75(2)(a) and Section 3 of Chapter IV of the Maintenance regulation;
   (d) Pursuant to any other Articles of the Regulation?

A hearing was held on 14 October 2020 where the parties, among other, explained their position, in the light of the judgment in C-283/16, S., on whether Article 75(3) of the maintenance regulation covers the situation where the Central Authority of the requested Member State has lodged with a court of a Member State an application for recognition of a decision in matters relating to maintenance obligations given in a third State that was transmitted to it, after the accession of that State to the European Union and after the date of application of the Maintenance Regulation, via the Central Authority of that new Member State.

Case C-519/19, DelayFix, a preliminary reference where the AG’s opinion was not requested, will be delivered on 18 November 2020. The reference was sent by the Regional Court in Warsaw in a dispute concerning the unfair character of a term (a choice of court clause) included in a consumer’s contract. The case involves the interpretation of Directive 93/13/EEC on unfair terms in consumer contracts and Article 25 of the Brussels I bis Regulation. As the claim had been assigned, the claimant was not the consumer himself, thus the question from the Polish Court. The judgment will be a 1st Chamber one (judges Bonichot, Bay Larsen, Toader, Safjan, Jääskinen; Ms. Toader is the reporting judge).

The much awaited judgment in C-59/19, Wikingerhof, is scheduled for 24 November 2020. It will be a Grand Chamber decision (judges Lenaerts, Silva de Lapuerta, Bonichot, Arabadjiev, Prechal, Piçarra, von Danwitz, Toader, Safjan, Šváby, Rodin, Jürimäe, Lycourgos, Xuereb, Rossi; Mr. Safjian as reporting judge). Here the question, submitted by the Bundesgerichtshof (Germany):

Is Article 7(2) of [the Brussels I bis Regulation] to be interpreted as meaning that jurisdiction for matters relating to tort or delict exists in respect of an action seeking an injunction against specific practices if it is possible that the conduct complained of is covered by contractual provisions, but the applicant asserts that those provisions are based on an abuse of a dominant position on the part of the defendant?

AG Saugmandsgaard Øe delivered his opinion last September. Here my translation (the official English one is not yet available):

Article 7, point 2, of Regulation (EU) No. 1215/2012 of the European Parliament and of the Council, of 12 December 2012, on jurisdiction, recognition and enforcement of judicial decisions in civil and commercial matters must be interpreted in the sense that a civil liability action, based on the infringement of competition law, is a matter relating to “delict or quasi-delict”, within the meaning of the provision, even in the in the event that the plaintiff and the defendant are parties to a contract and the anti-competitive behavior the plaintiff attributes to the defendant is reflected in their contractual relationship.

Finally, AG Bobek’s opinion in C-307/19, Obala i lučice – a preliminary reference from the Commercial Court of Appeal, Croatia – will be delivered on 26 November 2020. Not a short request, in relation to a civil proceedings to recover the principal amount of HRK 84 (some 11 Euros), owed as payment for a daily parking ticket for a car parked on the public highway in Zadar (Croatia):

1. Are notaries authorised to effect service of documents under [the Service Regulation] when they serve notice of their decisions in cases in which [the Brussels I bis Regulation] does not apply, bearing in mind that, in Croatia, notaries acting within the framework of the powers conferred on them by national law in enforcement proceedings based on an ‘authentic document’ do not fall within the concept of ‘court’ within the meaning of [the Brussels I bis Regulation]? In other words, given that notaries do not fall within the concept of ‘court’ for the purposes of [the Brussels I bis Regulation], are they able, when acting within the framework of the powers conferred on them by national law in enforcement proceedings based on an ‘authentic document’, to apply the rules governing service of documents established in [the Service Regulation]?
2. Can parking in the street and on the public highway, where the right to collect payment is conferred by the Zakon o sigurnosti prometa na cestama (Law on Road Safety) and the legislation governing the performance of municipal activities as public authority activities, be considered a civil matter within the meaning of [the Brussels I bis Regulation], which governs the question of the jurisdiction of the courts and the recognition and enforcement of judgments in civil and commercial matters, especially having regard to the fact that, where a vehicle is found without a parking ticket or with an invalid ticket, it is immediately subject to a requirement to pay for a daily ticket, as though it had been parked for the whole day, regardless of the precise length of time for which it was parked, meaning that this daily parking charge has a punitive effect, and that in some Member States this type of parking constitutes a traffic offence?
3. In court proceedings of the type referred to above concerning parking in the street and on the public highway, where the right to collect payment is conferred by the Law on Road Safety and the legislation governing the performance of municipal activities as public authority activities, can the courts effect service of a document on the defendants in another Member State under [the Service Regulation]?

If, based on the above questions, this type of parking is ruled to be a civil matter, the following further questions are referred.

4. In the present case, there is a presumption that a contract is concluded in respect of the aforesaid on-street parking in a space designated by horizontal and/or vertical markings; in other words, by parking there one is deemed to enter into a contract, and if one fails to pay the correct hourly parking charge one has to pay for a daily ticket. The question is therefore raised as to whether that presumption, that parking gives rise to a contract and entails consent to pay for a daily ticket if one does not buy a ticket in accordance with the hourly parking tariff or if the parking period on the ticket has expired, is contrary to the basic stipulations on the provision of services in Article 56 of the Treaty on the Functioning of the European Union and to the other provisions in the EU acquis.
5. In the present case the parking took place in Zadar, Croatia, and there is therefore a connection between that contract and the Croatian courts. But does this parking constitute a ‘service’ within the meaning of Article 7(1) of [the Brussels I bis Regulation], bearing in mind that the concept of service implies that the party who provides the service carries out a particular activity, that is, that the said party carries out that particular activity in return for remuneration. The question is therefore whether the activity carried out by the appellant is sufficient for it to be considered a service. If the Croatian courts do not have special jurisdiction under Article 7(1) of [the Brussels I bis Regulation], jurisdiction to hear the case would lie with the court of the respondent’s domicile.
6. Can parking in the street and on the public highway, where the right to collect payment is conferred by the Law on Road Safety and the legislation governing the performance of municipal activities as public authority activities, and charges are levied only during a specified period during the day, be considered a tenancy agreement for immovable property under Article 24(1) of [the Brussels I bis Regulation]?
7. If the aforementioned presumption that the parking entails the conclusion of a contract (fourth question referred) cannot be applied in this case, can this type of parking, where authority to collect parking charges is conferred by the Law on Road Safety and a daily ticket must be purchased if a ticket for the parking period is not purchased in advance or if the parking ticket has expired, be deemed to constitute a matter relating to tort, delict or quasi-delict within the meaning of Article 7(2) of [the Brussels I bis Regulation]?
8. In the present case, the parking took place before Croatia joined the European Union, specifically at 13.02 on 30 June 2012. Therefore, the question is asked whether the regulations governing applicable law, namely [the Rome I Regulation] or [the Rome II Regulation], apply in the present case, having regard to their temporal validity.

If the Court of Justice of the European Union has jurisdiction to provide a response on the application of the material law, the following question is referred.

9. Is the presumption that this type of parking gives rise to a contract and entails consent to pay for a daily ticket if one does not pay the hourly parking charges or if the ticket expires, contrary to the basic stipulations on the provision of services in Article 56 TFEU and to the other provisions of the acquis, irrespective of whether the owner of the vehicle is a natural or a legal person? In other words, for the purposes of determining the material law, can the provisions of Article 4 of [the Rome I Regulation] apply in this case (given that there is no evidence in the proceedings to show that the parties came to an agreement on the applicable law)?
   • If a contract is held to exist, would it be a contract for the provision of services in the present case, that is to say, can the parking contract be considered a service within the meaning of Article 4(1)(b) of [the Rome I Regulation]?
   • In the alternative, could the parking be considered to constitute a tenancy agreement in accordance with Article 4(1)(c) of [the Rome I Regulation]?
   • In the alternative, if the parking comes under the provisions of Article 4(2) of [the Rome I Regulation], the question arises as to what constitutes the characteristic performance in the present case, bearing in mind that, in essence, the appellant merely marks the parking area on the roadway and collects parking charges, while the respondent parks and pays for the parking. In practice, if the characteristic performance is considered to be that of the appellant, Croatian law would apply, whereas if the characteristic performance is that of the respondent, Slovenian law would apply. However, given that in this case the right to collect parking charges is regulated by Croatian law, with which, therefore, the contract is more closely connected, can the provisions of Article 4([3]) of [the Rome I Regulation] nevertheless also apply?
   • If the case is considered to involve a non-contractual obligation within the terms of [the Rome II Regulation], could this non-contractual obligation be considered to constitute damage, meaning that the applicable law would be determined in accordance with Article 4(1) of [that Regulation]?
   • In the alternative, could this type of parking be considered to constitute unjust enrichment, meaning that the applicable law would be determined in accordance with Article 10(1) of [the Rome II Regulation]?
   • In the alternative, could this type of parking be considered to constitute negotiorum gestio, in which case the applicable law would be determined in accordance with Article 11(1) of [the Rome II Regulation]?
   • In the alternative, could this type of parking be considered to constitute liability on the part of the respondent for culpa in contrahendo, in which case the applicable law would be determined in accordance with Article 12(1) of [the Rome II Regulation]?

A hearing was foreseen which could not be held (questions and answers were thus in written form). The decision will be taken by the 1st Chamber (judges Bonichot, Bay Larsen, Toader, Safjan, Jääskinen, with Ms. Toader as reporting judge).

In May 2019 a seminar took place in Madrid on the occasion of the 90th anniversary of UNIDROIT. A book has followed edited by Alfonso Luis Calvo Caravaca (Universidad Carlos III, Madrid) and Ignacio Tirado Martí (Universidad Autónoma, Madrid, current Secretary General of UNIDROIT), with contributions in English and Spanish from Lena Peters, Alfonso Luis Calvo Caravaca and Javier Carrascosa González, Marta Requejo Isidro, Carlos Fernández Liesa, Celia Caamiña Domínguez, Anna Veneziano, Teresa Rodríguez de las Heras, and William Brydie-Watson, recalling some of the main achievements of the organization. The introductory words by Prof. Calvo summarize his intervention a the seminar:

UNIDROIT emerged within the League of Nations in 1926. Its cradle is the origin and meaning of its mandate. The spirit of cooperation between nations, as a method of overcoming the differences that had plagued much of the world during the First World War, had its corollary in bringing the different legal systems closer together and promoting socio-economic exchanges between citizens. of the world. In large part, the idea that was beating was none other than the consideration of commercial relations as the axis on which to build a world in peace.

The founding ideas remain in the DNA of the institution, which began as predominantly European (since the Great War had been predominantly European) and gradually became global. Currently, UNIDROIT gathers 63 countries, including all members of the G-20 and covering 80% of the world’s population. There has never been a better time for the unification of private law. UNIDROIT is part of the list of international organizations known as “Las Tres Hermanas” (the Three Sisters), together with the Hague Conference on Private International Law and the United Nations Commission for International Trade Law. The three institutions are currently developing an almost frenetic activity of great practical and academic relevance. This relationship, synergistic and sustained over time, entails a reciprocal benefit that we aspire to reinforce with this initiative, which we hope will be followed by many others.

For more information, see here.

We are happy to announce that Alina Ontanu, of the University of Rotterdam, has joined the team of the EAPIL blog! Check her first post, which is out today.

As indicated in the inaugural issue of the EAPIL Newsletter, we wish to further expand the team. Interested EAPIL members are encouraged to get in touch with the managing editor, Pietro Franzina, at pietro.franzina@unicatt.it.

Applications from scholars or practitioners willing to report about developments in countries other than the countries currently covered by the team are especially welcome (the team is now covering Cyprus, France, Germany, Greece, Italy, Luxembourg, the Netherlands, Poland, Romania, and Spain).

The Blog is also seeking to appoint a social media manager, to improve and consolidate the Blog’s presence on LinkedIn, Twitter etc. Those applying for editor are encouraged to state whether they would also be happy to take care of the latter aspects.

On 6 November 2020 (13:30 – 16:30 CET) the Royal Netherlands Society of International Law (KNVIR) will be holding its Annual Meeting online via Zoom. This year the invited legal experts will be focusing on the theme of adaptability of (private) international law to the digital environment.

In their presentations Marjolein Busstra, Wieteke Teeuwen (Dutch Ministry of Foreign Affairs), Ybo Buruma (Netherlands Supreme Court and Radboud University Nijmegen), and Jerker B. Svantesson (Bond University; Swedish Law & Informatics Research Institute, Stockholm University, Sweden and Masaryk University) will be discussing whether the concepts and ideas developed in the ‘predigital era’ still fit the digital world. In doing so the speakers will analyse whether international law (both public and private) is ready for the digital era or whether law has been a rather ‘fragmented follower of developments’ and we should be fundamentally rethinking a number of notions and approaches.

Marjolein Busstra and Wieteke Teeuwen will focus on International Law in the Context of Cyber Operations. Ybo Buruma will look at internet from the perspective of International Law and Cyberspace – Issues of Sovereignty and the Common Good. Finally, Jerker B. Svantesson will be discussing whether International Law [Is] Ready for the (Already Ongoing) Digital Age: Perspectives from Private and Public International Law.

Registration is open until 3 November 2000 at info@knvir.org.

The reports (preadviezen) prepared by the legal experts have been published in November by Asser Press under the title International Law for a Digitalised World. You can find more information about this here.

The author of this post is Jorg Sladič, associate professor of International and European Law at the European Faculty of Law in Ljubljana.

On 11 August 2020, the Slovenian Supreme Court dismissed an appeal challenging the enforcement of an Austrian judgement compelling the judgment debtor to pay levies to the Austrian Construction Workers’ Annual Leave and Severance Pay Fund, known as BUAK (Bauarbeiter-Urlaubs- und Abfertigungskasse). The sums (claims for wage supplements regarding annual leave pay) to be paid to BUAK even though rather a matter of Austrian public law are under interpretation of Brussels I bis Regulation a civil and commercial matter (case Cpg 8/2020, ECLI:SI:VSRS:2020:CPG.8.2020).

Facts

A Slovenian judgment debtor was condemned by an Austrian court upon application of the Austrian person of public law BUAK to pay a sum of money as capital and a levy for claims for wage supplements regarding annual leave to BUAK on 3 May 2018.

The Austrian judgment-creditor moved to enforce the judgment. A Slovenian court granted a writ of execution on 16 June 2019. The judgement-debtor appealed and the appeal arrived at the Slovenian Supreme Court and raised among others a plea in law according to which such an Austrian judgement is contrary to Slovenian public policy. As it was alleged that the liabilities to be paid under the Austrian judgement were already paid under Slovenian law, the enforcement would mean a double payment of the same obligation. Anyhow, according to the judgment-debtor the said Austrian judgment is not a civil or commercial matter governed by Brussels I bis Regulation as the judgment-creditor BUAK is a legal person of public law, the obligation to be paid under the said Austrian judgement (claim for wage supplements regarding annual leave pay) is an obligation of public law or even a levy

Ruling

The Supreme Court dismissed the appeal on the following grounds.

Civil and Commercial Matters

Article 1(1) of the Brussels I Regulation provides that it applies to civil and commercial matters, but does not cover tax, customs or administrative matters or the State’s liability for acts and omissions in the exercise of State authority (acta iure imperii). Point (c) of the second paragraph of Article 1 of the Regulation explicitly states that it does not apply to social security.

As the Court of First Instance rightly explained, the question of the applicability of the Brussels I bis Regulation has already been settled by the Court of Justice in a preliminary ruling in the case of Korana, decided in 2019 (Case C-579/17). The Court of Justice clarified that the term “civil and commercial matters” must be interpreted autonomously under the regulation and that the fact that BUAK has the status of a collective body governed by public law is not decisive. The legal basis of the relationship from which the claim originates shall be decisive.

The employer’s obligation to pay wage supplements regarding annual leave claimed by BUAK before the Austrian forum is inextricably linked to the employees’ right to annual leave paid under civil law, so the nature of BUAK’s claim is also that of a right under civil law. In addition, a distinction must be made between cases where BUAK itself can issue a certificate of unpaid debts, which is an enforceable title, and cases – such as the case under consideration – where BUAK has to claim unpaid wage supplements regarding annual leave belonging to posted workers not having their habitual place of work in Austria before a court, which is also an argument in favour of the nature of the claim as being a claim of civil law.

The Court of Justice of the EU has in addition also ruled that this is not a benefit in the sense of the“social security” exception, which would also be excluded from the scope of the Brussels I bis Regulation. A social security benefit exists where it would be granted to beneficiaries on the basis of a legally defined position without any individual or discretionary assessment of personal needs. In the present case, however, the issue is the remuneration for annual leave, which in turn depends on the wage supplements, which are the legal basis for employer’s payment. Remuneration for annual leave in connection with work performed by a posted worker must be paid by the employer, even if the payment is made through the BUAK.

Decisions of the Court of Justice of the EU on preliminary questions are binding on the national courts of the Member States, therefore the applicants’ disagreement with the position of the Court of Justice cannot lead to different conclusions than those already reached by the Court of First Instance in the contested order. The Brussels I bis Regulation also applies to claims of BUAK for wage supplements regarding annual leave of posted workers, as these claims are of a civil nature.

Ordre public defense

The applicants’ plea that the levies or contributions claimed by the judgement-creditor in the enforcement proceedings referring to the Austrian judgment had already been paid in Slovenia, as a result the recognition and enforcement of the judgment of the Republic of Austria is allegedly contrary to Slovenian ordre public does not have any merits. In the appeal, the appellants (judgment-debtors) themselves claim that the Slovenian legal order does not provide for the payment wage supplements regarding annual leave of posted workers in the construction sector, as foreseen in Austrian law, therefore as a consequence the performance of obligations under the challenged judgement cannot already notionally constitute a double payment of the same claim. The mere fact that the Slovenian legal system does not legislate on a certain contribution or that it enacts contributions differently does not mean that the payment of a claim under the impugned judgment is contrary to the Slovenian ordre public. Namely, ordre public does not include all mandatory provisions of domestic law, but only those imperative legal norms and moral rules, the violation of which would endanger the integrity of the Slovenian legal order. However, the payment of contributions in favour of workers does not justify such opposition.

Conclusion

The ruling does completely comply with the judgment of the Court of Justice in the 2019 Korana case. The Slovenian and the ECJ cases both refer to Slovenian posted workers in the construction sector in Austria (Slovenia and Austria are neighbouring countries). At the economic level both cases show how the freedom of movement and freedom to provide services operate between East- and West EU. Whereas the Korana case concerned a litigation before the Labour and Social Court of Vienna, the discussed Slovenian case shows the next stage, i.e. the enforcement of Austrian rulings in Slovenia.

The only surprising element in this case is the timing. The Korana case was decided by the ECJ on 28 February 2019, the first ruling by the highest national court of another EU Member State where an enforcement of Austrian judgements based on that ruling is sought was handed down already on 11 August 2020. Considering the translation issues, the service of judicial and extrajudicial documents in civil or commercial matters between two EU Member States and then the Coronavirus pandemics, the cross-border cooperation between Slovenia and Austria seems to work quite fast.