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This post was contributed by Jeremy Heymann, who is Professor of Law at Université Jean Moulin Lyon 3.

On 29 June 2022, the French Court of cassation ruled on the interplay between national exorbitant rules of jurisdiction and those contained in the recast Brussels I Regulation. As is well known, Article 6(2) of the Regulation provides that “any person domiciled in a Member State may, whatever his nationality, avail himself in that Member State of the rules of jurisdiction there in force, and in particular those of which the Member States are to notify the Commission pursuant to point (a) of Article 76(1), in the same way as nationals of that Member State”, against a defendant who is not domiciled in a Member State.

French Legal Background

In France, such exorbitant rules of jurisdiction are to be found in Articles 14 and 15 of the French civil Code. Article 14 provides especially that “an alien, even if not residing in France, may be cited before French courts for the performance of obligations contracted by him in France with a French person”. He also “may be brought before the courts of France for obligations contracted by him in a foreign country towards French persons”. Even if the provision seems to be, in its wording, limited to contracts, it has been interpreted by the French courts to cover all claims (with very few exceptions).

First Case – The Facts

In one of the two cases (no 21-10.106), the plaintiff was a Congolese who was employed in the Democratic Republic of Congo by a Congolese company, before he had to flee his country and seek to obtain refugee status in France, alleging that he had been pressured and threatened with death by his superiors in order to force him to take part in granting loans under illegal conditions. Once the refugee status obtained, the plaintiff brought an action in tort before the French courts against his former employer and its parent company.

On the merits of the case, on appeal, the Court of appeal of Paris declared that French courts lacked jurisdiction, on the grounds that the equality of treatment between nationals and refugees, provided for in Article 16 of the 1951 Refugee Convention, refers only to the rules of enjoyment of rights and not to the rules of jurisdiction. It therefore held that such a provision could not lead to the extension of the jurisdiction of a French court to the detriment of that of a foreign court.

The First Ruling

The French Court of Cassation rightfully quashed such a ruling, holding that pursuant to Article 6(2) of the recast Brussels I Regulation, a foreigner may avail himself of Article 14 of the French Civil code (i.e. a rule of jurisdiction in force in France and notified as such to the European Commission pursuant to point [a] of Article 76[1]), under the sole condition that he is domiciled in France and the defendant is domiciled outside a Member State of the European Union (para. 12 of the ruling). In so ruling, the Court of cassation criticizes the Parisian Court of appeal for not having ensured the application of Article 14 of the French civil Code in the light of the recast Regulation. According to the Court of cassation, it is indeed up to the courts of the Member States to ensure the legal protection of litigants resulting from the direct effect of European Union Law (para. 10 of the ruling). Therefore, and even if Article 14 of the French civil Code is only intended for French nationals, the legal protection enshrined in Article 6(2) of the recast Brussels I Regulation prevails and makes the application of Article 14 of the French civil Code dependent on the conditions that it sets out. In other words, only the domicile of the plaintiff was relevant in this case, not his nationality.

The ruling of the Court of cassation is more than welcome to remind French courts that even though the plaintiff is a foreigner and the defendant domiciled outside a Member State, the recast Regulation may be applicable and command the application of the said Article 14.

Second Case – The Facts

In the other case (no. 21-11.722), the plaintiff was also a Congolese who was employed in the Democratic Republic of Congo by a Congolese company, before he had to flee his country and seek to obtain refugee status in France, alleging that he had been pressured and threatened with death by his superior. Once the refugee status obtained, this plaintiff also brought an action in tort before the French courts against his former employer and its parent company.

Unlike in the previous case, the Court of Appeal of Paris found Article 14 of the French civil Code applicable in this case and thus ruled that French courts had jurisdiction. The grounds of such an application were nonetheless debatable, as the Court relied on the provisions of the 1951 Refugee Convention and held that Article 16(2) of this Convention should be interpreted as establishing equal treatment between a French national and a refugee with regard to Article 14 of the French civil Code.

The Second Ruling

To uphold the ruling, the French Court of Cassation had to proceed to a substitution of grounds, as the Court of Appeal of Paris did not base its decision on the provisions of the recast Brussels I Regulation. To do so, the Court of Cassation argued once again that the courts of the Member States must ensure the legal protection of litigants resulting from the direct effect of European Union Law (para. 5 of the ruling), before holding that it follows from the combination of Article 6 and 21 of the Recast Brussels I Regulation and Article 14 of the French civil Code that, where neither the domicile of the defendant, nor the place of performance of the work nor the place where the establishment that hired the employee is located is situated in the territory of a Member State, the applicable rules of jurisdiction are the ones that have been notified to the European Commission, among which is Article 14 of the civil Code. The foreigners domiciled in the forum State may therefore avail themselves of the latter provision in the same way as French nationals (para. 9). Hence, as the Court of appeal noted that the plaintiff was domiciled in France and the defendants outside the European Union, and that the former had been hired in the Democratic Republic of Congo where his professional activity took place, the Court of Cassation deduced that, irrespective of his refugee status, the plaintiff could invoke Article 14 of the French civil Code (para. 10).

General Assessment

Although the line of reasoning and deduction of the French Cour de cassation appear to be valid, they remain however questionable. One may indeed wonder whether Article 6 of the recast Brussels I Regulation should find application where Article 21(2) cannot. Even if it is true that Article 20(1), provides that “[i]n matters relating to individual contracts of employment, jurisdiction shall be determined by th[e] Section [dedicated to such contracts], without prejudice to Article 6 […]”, such a reservation was already provided for in the former Brussels I Regulation, when the rule of jurisdiction provided for in Article 21(2) did not exist. The line of reasoning followed by the Court of cassation would have therefore been perfectly consistent with the facts at issue. Under the current recast Brussels I Regulation, one should yet remind that Article 6, par. 1, provides that, in the case where “the defendant is not domiciled in a Member State, the jurisdiction of the courts of each Member State shall, subject to […] Article 21(2) […], be determined by the law of that Member State” (emphasis added). Thus, can national courts apply Article 6 of the recast Brussels I Regulation, and French courts apply in particular Article 14 of the French civil Code by way of consequence, when the criteria provided for in Article 21(2) are not met? The Court of Cassation has considered that the answer must be affirmative.

One could nonetheless argue that there may have been room on this matter for a request for a preliminary ruling to the European Court of Justice, in particular with a view to ascertaining the exact scope of Article 21(2) of the recast Regulation, as well as, more generally, the spatial scope of that instrument and the empire claimed by its own rules of jurisdiction.

La Cour de justice de l’Union européenne (CJUE) était interrogée sur le point de savoir si la règle de compétence exclusive prévue à l’article 24, § 4, du règlement Bruxelles I bis s’applique à un recours qui tend à établir la qualité d’inventeur ou de co-inventeur. L’affaire au principal concernait des inventions visées par une demande de brevet européen ainsi que des demandes et des brevets enregistrés dans des pays tiers (Chine et États-Unis). Par un raisonnement remarquablement pédagogique, elle précise les conditions d’applicabilité dudit règlement à la question de la titularité de demandes de brevets et de brevets délivrés dans des États tiers, tout en excluant l’application de la règle de compétence exclusive prévue par l’article 24, § 4, à cette même question.

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À l’occasion d’un arrêt rendu le 20 septembre dernier, SpaceNet (aff. C-793/19) et Telekom Deutschland (aff. C-794/19), la Cour de justice de l’Union européenne a réaffirmé l’interdiction de conservation généralisée et indifférenciée des métadonnées détenues par les fournisseurs d’accès aux communications électroniques tout en précisant les notions de « criminalité grave » et de « sécurité nationale ». Il ressort de cet arrêt que le cadre établi par la Cour de justice est toujours aussi strict, tout en apportant une liste d’exceptions tolérées – à condition que des garde-fous soient prévus.

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On Friday, 2 December 2022, at 4 pm, EAPIL will hold an online seminar on the Rome II Regulation.

The seminar will shed light on the Study that was prepared in 2021 by the British Institute of International and Comparative Law (BIICL) in consortium with Civic Consulting to support
the preparation of the report on the application of the Rome II
Regulation.

The speakers will be: Eva Lein (BIICL / University of Lausanne), Constanze Bonzé (BIICL), Xandra Kramer (University of Rotterdam), Martin Ebers (University of Tartu), Marie Louise Kinsler (2 Temple Gardens, London).

More information (including a detailed program and registration
information) will be made public on this blog in November.

On 15 September 2022, the CJEU ruled in Uniqa Versicherungen AG v. VU (Case C‑18/21) that national COVID legislation postponing time limits may affect uniform time limits provided by the European Payment Order Regulation (EOP Regulation).

Background

The case was a request for preliminary ruling from the Austrian Oberster Gerichtshof (Supreme Court). The request concerned a European Order for Payment (EOP) that was issued at the request of an Austrian insurance company, Uniqa Versicherungen AG, against a natural person, VU, resident in Germany. The EOP was served on VU on 4 April 2020, and the statement of opposition was lodged with the Bezirksgericht für Handelssachen Wien (Vienna District Court for Commercial Matters) by a letter posted on 18 May 2020. This meant that the opposition was made after the period of 30 days set by the European Payment Order Regulation (EOP Regulation) lapsed.

According to Article 16(2) EOP Regulation, a statement of opposition has to be lodged by the defendant contesting the claim within 30 days from the moment the party was notified of the EOP being issued against it. At first glance, considering the dates of the service of the EOP on VU and of the letter containing the opposition statement, the opposition was lodged too late. However, during the first period of the COVID-19 pandemic Austria adopted a special law that interrupted time limits in civil cases because of that limitation of activities of the courts and quarantine measures.

The Austrian Law on COVID-19 Paragraph 1(1) provided that all national procedural time limits for civil cases were postponed by five weeks between 22 March and 30 April 2020. The measure applied to all procedural periods that had not yet expired at its entry into force. This was the case for the concerned judgment. In consideration of this legislation, the decision of the first instance court was appealed by VU. The Appeal Court (Handelsgericht Wien) set aside the EOP on the basis of Paragraph 1(1) Austrian Law on COVID-19. Uniqa appealed the decision with the Oberster Gerichtshof (Supreme Court) on a point of law seeking the EOP to be restored.

The Supreme Court stayed national proceedings and made a request to the CJEU seeking to find out whether the national legislation – Austrian Law on COVID-19 – was applicable to the EOP. The court asked if Article 20 and 26 EOP Regulation precluded an interruption of the 30-day time limit for lodging a statement of opposition to a EOP, as provided for in Article 16(2) of that regulation, by Paragraph 1(1) Austrian Law on COVID-19.

The EOP Opposition and Review Mechanisms

The EOP being a single-sided not adversarial procedure until the order is served on the defendant provides for some mechanisms for the debtor to subsequently challenge the EOP and, hence, the initial claim submitted by the creditor. These mechanisms are the opposition (Article 16 EOP Regulation) and the review (Article 20 EOP Regulation).

The opposition is an essential mechanism for the defendant to terminate the EOP procedure and for the right to a fair trial (Uniqa, paragraph 25), but it has to be used within 30 days from the moment the EOP was served on the defendant. This can be done via a standard form (Form F EOP Regulation). One of the results of its lodgings is preventing the EOP from becoming enforceable. However, if an opposition is not lodged in time, the defendant will only be entitled to a review within the situations exhaustively listed in Article 20 EOP Regulation.

Thus, in the framework of the EOP procedure, the opposition is the ‘standard mechanism’ to contest the order (see also paragraph 27 of the Opinion of the Advocate General), while the review is intended to be an exceptional means to supplement the opposition as the way to challenge the EOP (see Recital 25 EOP Regulation and Uniqa paragraph 25).

The CJEU was asked to interpret Article 20 EOP Regulation on several occasions, and in particular paragraphs (1)(b) and (2), and it did so strictly (see Thomas Cook, Case C-245/14; eco cosmetics, Joint Cases C‑119/13 and C‑120/13; Novotech-Zala, Order C-324/12). The Court never agreed to an application by analogy of Article 20 EOP Regulation in order to safeguard the right of defense, and this path was followed also in Uniqa.

The Interplay Between European and National Procedural Rules

In the EOP procedure, the interplay between the provisions of the Regulation and national procedural rules comes up at different levels in the proceedings. As it happened in the Uniqa case, this can create uncertainties at times. The challenge comes from the fact the EOP Regulation establishes the main structure of the procedure and the minimum standards to be observed to guarantee a fair trial for the parties (see Flight Refund, case C-94/14 and Uniqa, paragraph 28), but national procedural rules are called to fill in the gaps where necessary.

For a number of procedural aspects, the Regulation refers expressly to national legislation for supplementing the European procedure rules (e.g. Articles 13 and 14 on service, Article 18(2) and Article 21(1) on enforceability requirements and procedures, Article 25 on court fees). Together with this, for matters that are not expressly dealt with by the Regulation, Article 26 EOP Regulation relies on the applicable national procedural law. For this second situation, based on previous CJEU case-law, such examples include national rules determining the national courts competent to handle the proceedings following an opposition (see Flight Refund), and the mechanism available to raise irregularities of service (see eco cosmetics). Another example is the calculation of the procedural deadlines of the time limits within the EOP procedure. As pointed out in paragraph 38 of the Opinion of the Advocate General Collins, the calculation of the time limit for the lodging of a statement of opposition can differ across the Member States. According to Regulation (EEC, Euratom) No 1182/71 determining the rules applicable to periods, in normal circumstances that have nothing to do with emergencies such as COVID-19 pandemic, procedural time limits may lapse at different moments across Member States. This is because the public holidays are not harmonized across the EU, and public holidays can lead to the prorogation of procedural deadlines until the first useful working day following the holiday. This applies when procedural deadline would fall during a free day. If the 30-day deadline for submission of the opposition mechanism established by Article 16(2) EOP Regulation would fall during a public holiday, the deadline would be extended until the next working day.

The interplay between European and national procedural rules for a number of aspects means that the application of national procedural rules will allow for diverse solutions within the framework of a uniform European procedure. And, these differences are not always immediately visible to the users.

Decision of the CJEU

The Court ruled that Articles 16, 20 and 26 EOP Regulation do not preclude the application of national legislation adopted during COVID‑19 pandemic (Austrian Law on COVID-19) which interrupted the procedural periods in civil matters including the 30-day time limit laid down by Article 16(2) for the defendant to lodge a statement of opposition to a EOP.

Assessment

The uncertainty in the case was related to whether reliance should be made on Article 20(1)(b) or Article 26 EOP Regulation to deal with a statement of opposition filed after the lapse of the 30-day period established by the Regulation.

The CJEU had two options:

• reliance on Article 26 EOP Regulation would involve the application of the national legislation adopted as a consequence of the COVID-19 pandemic to interrupt the procedural periods in civil matters for a determined period of time; consequently, the opposition time frame would have still been applicable, and the defendant would be able to make use of the general mechanism to contest the order. This approach follows the line of interpretation established by the CJEU in earlier judgments (i.e. eco cosmetic, Flight Refund), and maintains an interplay between European and national procedural rules that may result in diverse solutions within the framework of a uniform European procedure. Or,
• the alternative of Article 20(1)(b) EOP Regulation concerning ‘exceptional circumstances’ that would lead to a uniform rule being applicable.

The Court followed on its established practice of relying on Article 26 rather than Article 20 EOP Regulation, but with a different approach than in previous cases.

The judgment reaffirmed the strict interpretation of the ‘extraordinary circumstances’. Additionally, it developed the previous reasoning in relation to the concept of ‘extraordinary circumstances’ by explicating that such circumstances have to ‘correspond to circumstances specific to the individual situation of the defendant concerned’ such as if VU would have been hospitalized because of COVID-19 and that would have prevented him from exercising his right to opposition (paragraph 32). By giving this example, different to previous case law, the Court in Uniqa positively qualifies what would be an ‘extraordinary circumstance’ for the purpose of Article 20. Until Uniqa the CJEU only identified situations which did not qualify as an ‘extraordinary circumstance’ (see Thomas Cook, eco cosmetics, Novotech-Zala). The factual situation in the case was created by a systemic failure of the justice system in Austria due to the pandemic, thus, based on the logic of the Court, the framework provided by Article 20 would not be applicable as it did not concern an ‘individual situation of the defendant’.

Although the application of an uniform rule provided by Article 20 EOP Regulation may appear a desirable approach, in this particular case it would not have been the just solution to adopt. Rightfully so, the court did not prioritise it as it would have led to a discriminatory outcome between parties relying on national procedures and benefiting from a suspension of the procedural time and parties choosing to use a European procedure who would have been sanctioned by the limitation of the activities of the courts during a period of five weeks. The exclusion of the EOP from the effects of Paragraph 1(1) Austrian Law on COVID-19, and the limitation of the available mechanisms for VU to contest the EOP would mean that he would only have the very limited option of the review to deal with the consequences of the order. Additionally, the situations covered by Article 20 EOP Regulation are strictly interpreted (see section on The EOP opposition and review mechanisms). All in all, such interpretation would have resulted in a limitation of VU’s right to access to justice.

Furthermore, Paragraph 1(1) Austrian Law on COVID-19 did not make any distinction between national and cross-border procedures in civil cases (principle of equivalence), nor did compliance with the rule undermined in any way the balance that the EOP Regulation creates between the rights of both parties (principle of effectiveness) during the period of the pandemic addressed by the Austrian law. The guarantees put in place by the EOP Regulation for the defendant remained available, as well as the possibility the Regulation created for the applicant seeking to obtain an order for an uncontested claim. The period of suspension of procedural timeframe was clearly indicated, this was limited to a period of the national emergency, and the difference in lapse of procedural time was not necessarily an unexpected outcome in the EOP procedure given the logic of the Regulation (EEC, Euratom) No 1182/71 determining the rules applicable to periods, although in this case it involved a longer than usual period of time that was related to the COVID-19 pandemic.

The Court of Justice delivered last month (15 September 2022) its judgment in case C‑18/21 (Uniqa Versicherungen AG v VU), which is about the EOP and COVID-19:

“Articles 16, 20 and 26 of Regulation (EC) No 1896/2006 […] must be interpreted as not precluding the application of national legislation, which was adopted when the COVID‑19 pandemic arose and which interrupted the procedural periods in civil matters for approximately five weeks, to the 30-day time limit laid down by Article 16(2) of that regulation for the defendant to lodge a statement of opposition to a European order for payment”.

Source: https://curia.europa.eu/juris/document/document.jsf?docid=265546&mode=req&pageIndex=6&dir=&occ=first&part=1&text=&doclang=EN&cid=1393109

According to Article 7 point 1 of the Brussels I bis Regulation, proceedings in matters relating to a contract may be brought in the courts for the place of performance of the obligation in question.

For the rule to be applied, it needs to be a matter relating to a contract. The issue of whether there was a contractual relation or not arose before Danish courts in a case between a Swedish and a Danish company.

In a judgment of 27 September 2022, the Danish Supreme Court held that the existence of a contract must be made “sufficiently probable”.

The background to the case was that the two companies, both in the real estate sector, had had informal cooperation with each other. In an exchange of e-mails representatives for the companies discussed future businesses. The Danish company meant that the exchange of e-mails constituted contractual obligations for the Swedish company under the Brussels I bis Regulation. As arguments for this understanding, the Danish company meant that there was an agreement on payment for the potential broking of a deal. On the other hand, the Swedish company meant that the parties traditionally had had a “friendly relation”, in which they had helped each other without the payment of any fees.

The Danish Supreme Court held that according to established Danish case law, the legal burden of proof in those matters is that the existence of a contract must be “sufficiently probable” (“tilstrækkeligt sandsynliggjort”). The court held that this burden of proof was met as the e-mails indicated that the Swedish company was willing to pay a broker’s fee if it could establish contact with a buyer of its Swedish property portfolio. Hence, the court concluded that the relation between the companies had a contractual ground and that it was a service agreement in the meaning of the simplification rule in article 7 point 1, lit. (b). As the place of performance for such contracts is in the country where the services are provided, Danish courts should have jurisdiction according to the Supreme Court.

It is notable that the Danish Supreme Court referred to Danish case law instead for CJEU case law for the issue of whether a tacit contractual relationship existed. Older CJEU case law indicated that the issue was to be done according to national law (see e.g. Effer SpA v. Kantner, C-38/81 para 7). However, in its more modern case law, the CJEU has given more detailed instructions for how a tacit contractual relation should be proven. In the CJEU judgment Granarolo, C-196/15, the CJEU held that

[d]emonstration of the existence of a tacit contractual relationship of that kind must be based on a body of consistent evidence, which may include in particular the existence of a long-standing business relationship, the good faith between the parties, the regularity of the transactions and their development over time expressed in terms of quantity and value, any agreements as to prices charged and/or discounts granted, and the correspondence exchanged.

Even if the Danish burden of proof rule seems to be compatible with the Granarolo test, it would have been preferable if the Danish Supreme Court expressly recognized the modern developments of the CJEU by referring to the CJEU case law and applying the criteria set out there.

La directive 93/83/CEE doit être interprétée en ce sens que des organismes de radiodiffusion n’ont aucun droit exclusif d’autoriser ou d’interdire la retransmission par câble. Ne constitue pas une telle retransmission, la distribution simultanée, inchangée et intégrale d’émissions de télévision ou de radio diffusées par satellite et destinées à être captées par le public, lorsqu’elle est effectuée par une personne autre qu’un distributeur par câble tel qu’un hôtel.

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The second issue of 2022 of the Journal of Private International Law is out. It contains the following articles:

Thalia Kruger, Laura Carpaneto, Francesca Maoli, Sara Lembrechts, Tine Van Hof, Giovanni Sciaccaluga, Current-day international child abduction: does Brussels IIb live up to the challenges?

Regulation 2019/1111 tries to tackle the new challenges arising from societal changes and legal developments in international child abduction. The result is a sophisticated set of rules centred on the child and aimed at enhancing their protection. The Regulation provides for the hearing of the child and for speedy and efficient proceedings. In it the EU acknowledges its role in the protection of human and children’s rights and sets goals towards de-escalating family conflicts. The new EU child abduction regime is at the same time more flexible than its predecessor allowing consideration of the circumstances characterising each single case in the different stages of the child abduction procedure.

Omar Vanin, Assisted suicide from the standpoint of EU private international law

The article discusses the conflict-of-laws issues raised by such compensatory claims as may be brought against health professionals and medical facilities involved in end-of-life procedures. The issues are addressed from the standpoint of EU private international law. The paper highlights the lack of international legal instruments on assisted-suicide procedures. It is argued that the European Convention on Human Rights requires that States provide a clear legal framework concerning those procedures. The author contends that the said obligation has an impact on the interpretation of the relevant conflict-of-laws provisions of the EU.

Shahar Avraham-Giller, The court’s discretionary power to enforce valid jurisdiction clauses: time for a change?

The paper challenges the well-rooted principle in the Anglo-American legal tradition that courts have discretion whether they should enforce a valid jurisdiction clause. The paper highlights the ambiguity and uncertainty that accompany this discretionary power, which raises a serious analytical problem. The paper then analyses two factors that shaped this discretionary power – jurisdictional theories and the general principle of party autonomy in contracts. Based on the analysis, the paper argues that the time has come to end the courts’ discretionary power with respect to the limited context of the enforcement of valid jurisdiction clauses. The proposal relies on a number of foundations: contractual considerations that relate to autonomy and efficiency; jurisdictional and procedural considerations, including the consent of a party to the jurisdiction of the court by general appearance; the increasing power of parties to re-order procedure; the more appropriate expression of the forum’s public interests and institutional considerations through overriding mandatory provisions; and finally the legal position regarding arbitration agreements and the willingness of a common law legal system such as the United Kingdom to accede to the Hague Convention on Choice of Court Agreements.

Thu Thuy Nguyen, Transnational corporations and environmental pollution in Vietnam – realising the potential of private international law in environmental protection

Many transnational corporations have been operating in Vietnam, contributing to economic and social development in this country. However, these actors have caused a number of high-profile environmental incidents in Vietnam through the activities of their local subsidiaries, injuring the local community and destroying the natural ecosystem. This paper discloses the causes of corporate environmental irresponsibility in Vietnam. Additionally, this paper argues that Vietnam’s private international law fails to combat pollution in this country. To promote environmental sustainability, Vietnam should improve ex-ante regulations to prevent and tackle ecological degradation effectively. Additionally, this paper suggests that Vietnam should remedy its national private international law rules to facilitate transnational liability litigation as an ex-post measure to address the harmful conducts against the natural ecosystem of international business.

Daria Levina, Jurisdiction at the place of performance of a contract revisited: a case for the theory of characteristic performance in EU civil procedure

The article revisits jurisdiction in the courts for the place of performance of a contract under Article 7(1) of the Brussels Ia Regulation. It proposes a new framework for understanding jurisdiction in contractual matters by offering a comparative and historical analysis of both the place of performance as a ground for jurisdiction and its conceptual counterpart, the place of performance as a connecting factor in conflict of laws. The analysis reveals that jurisdiction in the courts for the place of performance is largely a repetition of the same problematic patterns previously associated with the place of performance as a connecting factor. The article asserts that the persisting problems with Article 7(1) of the Brussels Ia Regulation are due to the inadequacy of the place of performance as a ground for jurisdiction and advocates for the transition to the theory of characteristic performance in EU civil procedure.

Tobias Bachmeier, Martin Freytag, Discretional elements in the Brussels Ia Regulation

Following continental European traditions, the Brussels Ia Regulation forms a rigid regime of mandatory heads of jurisdiction, generally not providing jurisdictional discretion. Nonetheless, to some limited extent, the Brussels regime includes discretional elements, in particular when it comes to lis pendens (see Articles 30, 33 and 34 of Brussels Ia). Reconsidering the strong scepticism towards forum non conveniens stipulated by the CJEU in its Owusu case, the fundamental question arises whether a substantial form of discretion concerning jurisdictional competence might be (in)compatible with the core principles of the Brussels regime.

Piotr Mostowik, Edyta Figura-Góralczyk, Ordre public and non-enforcement of judgments in intra-EU civil matters: remarks on some recent Polish-German cases

The article discusses the enforcement of foreign judgments within the European Union and the public policy (ordre public) exception. It is mainly focused on some recent judgments of Polish and German courts. On 22nd December 2016 and 23rd of March 2021 rulings in cases of infringement of personality rights were issued by the Court of Appeal in Cracow (ordering an apology and correction). The enforcement of the former ruling was dismissed by the German Supreme Court (Bundesgerichtshof, BGH) (IX ZB 10/18) on 19th July 2018. The non-enforcement was justified by invoking German ordre public and “freedom of opinion” as a constitutional right stipulated in Article 5 of the German Constitution (Grundgesetz). A reference to the CJEU ruling of 17 June 2021 is also presented.
After presenting the issue of ordre public in the context of enforcement of foreign judgments within the EU, the authors evaluate as questionable the argumentation of the BGH in its 2018 judgment. The Polish ruling ordering the defendant to correct and apologise for the false statement was included by the BGH in the category of “opinion” (Meinung) protected by the German Constitution. Enforcement of the judgment of the Polish court in Germany was held to be contrary to this German constitutional right and the enforceability of the Polish judgment was denied as being manifestly contrary to German public policy.
The authors support the functioning of the ordre public clause in intra-EU relations. It is justified inter alia by the large differences in EU legal systems and future possible changes. However, the common standards of the ECHR should be particularly taken into consideration when applying the public policy clause, because they co-shape the EU legal systems.

Par un arrêt important du 13 septembre 2022, la Cour de justice de l’Union européenne s’est prononcée sur les mesures d’assainissement pouvant être mises à la charge des banques centrales. Toute indemnisation selon un système s’apparentant à de la responsabilité objective est exclue. Pour qu’une somme d’argent soit mise à la charge d’une banque centrale, il faut que cette dernière ait commis une faute grave dans l’exercice de ses fonctions.

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On Friday, December 2, at 4 pm, the European Association of Private International Law (EAPIL) will hold an Online-Seminar on the Rome II Regulation. The Seminar will shed light on the Study that was prepared in 2021 by the British Institute of International and Comparative Law (BIICL) in consortium with Civic Consulting to support the preparation of the report on the application of the Rome II Regulation.

Speakers will be:

• Eva Lein, BIICL (UK)/University of Lausanne (Switzerland)
• Constanze Bonzé, BIICL (UK)
• Xandra Kramer, University of Rotterdam (Netherlands)
• Martin Ebers, University of Tartu (Estonia)
• Marie Louise Kinsler, 2 Temple Gardens, London (UK)

More information (including a detailed program and registration information) will be made available via this blog in November.

flightright (Transport aérien de Stuttgart à Kansas City)
Transport
Le droit à indemnisation des passagers aériens pour retard important s’applique aux vols avec correspondances composés de vols assurés par des transporteurs aériens effectifs distincts

Szef Krajowej Administracji Skarbowej
Fiscalité TVA
Les services financiers fournis au titre d’un contrat de sous-participation sont exonérés de la TVA

Between 24 and 27 October 2022, an international congress on the impacts of the war in Ukraine will take place at the University of Barcelona, organized by Cristina González Beilfuss and Xabier Fernández Pons.

On the face of the program, it looks as if most of the interventions are devoted to public law-related aspects of the war. There is nevertheless an open call for papers which may be taken up to present a couple of specific private law problems likely (unfortunately) to result from the war.

In a wider perspective, the event may be an occasion to reflect on cross-border cooperation in civil and commercial matters, family and successions included, in relation to Ukraine. I definitely think it worth to explore the landscape as far as the European Union is concerned, not only with a view to a possible accession in the future. This being said, I fear that many of us (scholars of EU Member States) are not in a position to conduct a deep research, lacking the necessary language skills.

Having this in mind, the purpose of this post is to draw the attention of Ukrainian scholars staying in Europe (let’s hope on-going funding programs will not stop) to address the topic, that is, to walk us into the PIL of a country to which the EU is already linked by projects and conventions.

This can perfectly be done through contributions to this blog. In this sense, by way of example I would like to propose two topics that could be briefly addressed.

The first one would delve into the civil cooperation aspects of the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Ukraine, of the other part. The original document was signed on March 21 and 27 June 2014; it has been amended several times, the last consolidated version being of 22 November, 2021. It appears that only one provision of the Agreement focuses directly on judicial cooperation on civil matters, namely Article 24 paragraphs 1 and 2 in Title III, ‘Justice, Freedom and Security’:

‘Legal cooperation

1. The Parties agree to further develop judicial cooperation in civil and criminal matters, making full use of the relevant international and bilateral instruments and based on the principles of legal certainty and the right to a fair trial.
2. The Parties agree to facilitate further EU-Ukraine judicial cooperation in civil matters on the basis of the applicable multilateral legal instruments, especially the Conventions of the Hague Conference on Private International Law in the field of international Legal Cooperation and Litigation as well as the Protection of Children.’

Research could be done on the actual scope of the provision, its background, whether it has already crystallized on specific proposals or, simply, on how much judicial cooperation in civil and commercial matters is already covered by Hague conventions.

In addition to this topic, another one of narrower scope is suggested by the case of OKR, C-387/20, a preliminary reference submitted to the Court in 2020 on the Succession Regulation. The second question referred to the Court read

‘Must Article 75, in conjunction with Article 22, of [the Succession Regulation] be interpreted as meaning that, in the case where a bilateral agreement between a Member State and a third country does not govern the choice of law applicable to a case involving succession but indicates the law applicable to that case involving succession, a national of that third country residing in a Member State bound by that bilateral agreement may make a choice of law?

and in particular:

–        must a bilateral agreement with a third country expressly exclude the choice of a specific law and not merely govern the lex successionis using objective connecting factors in order for its provisions to take precedence over Article 22 of [the Succession Regulation]?

–        is the freedom to choose the law governing succession and to make the applicable law uniform by making a choice of law – at least to the extent determined by the EU legislature in Article 22 of [the Succession Regulation] – one of the principles underlying judicial cooperation in civil and commercial matters in the European Union, which may not be infringed even where bilateral agreements with third countries apply which take precedence over [the Succession Regulation]?’

The ’third country’ was the Ukraine; at stake was whether a Polish notary could draw up a notarial will with a clause stipulating that the law applicable to the succession would be Ukrainian law, i.e., the national law of the grantor. The request was declared inadmissible on 21 September 2021 under Article 53(2) of the Rules of Procedure of the Court, after the Court got from the notary an explanation in relation to his duties in the context of the procedure in order to determine whether or not he had, in the present case, the status of a ‘court or tribunal’ within the meaning of Article 267 TFEU. The substantive question remains thus to be answered – and it probably will, for the request is back before the Court, this time sent by the Sąd Okręgowy w Opolu. While Ukrania is, for obvious reasons, not a country presenting observations, nor can scholar Ukranian views of the problem be determinant , it is not without interest to learn how Article 75 of the Succession Regulation is seen from the non-EU signatory countries to the bilateral agreement.

José Angelo Estrella Faria (UNCITRAL) has published his Hague Lectures on the protection of religious cultural property in public international law and private international law (La protection des biens culturels d’intérêt religieux en droit international public et en droit international privé) in the Collected Courses of The Hague Academy of International Law (volume 421). 

The author has kindly provided the following English abstract:

The protection of religious cultural property has three dimensions: physical conservation and preservation of the property (material protection); measures aimed at guaranteeing access to cultural property and maintaining their religious or liturgical function (intangible protection); and finally, protection against dissipation and dispersion (localization and physical attachment). Public law protects these three dimensions through various preventive and repressive measures, which are supplemented by rules of private law governing the conditions of circulation of these goods. The course addresses certain aspects of the legal treatment of cultural property with implications for religious cultural property, both at the international and national level, and the way in which national law takes the specific rules and needs of religious communities into consideration. The course is divided in two chapters: the first focusing on the protection of “religious cultural property” under public international law; the second part dealing with their treatment under private international law. 

After an introduction that discusses the notion of “cultural property” and “religious cultural property”, the first section of chapter I summarizes the evolution of the relevant rules of public international law from the first codifications of the law of war until the development of a framework for the protection of “world heritage”.  The chapter explains the protection of “historical monuments”, “works of art” and other cultural property in the customary law of armed conflict and in the special regime of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.  It then focuses on the special treatment of “places of worship” in the customary law of armed conflict, in international humanitarian law and in international criminal law as reflected in the case law of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Court. The second section of chapter I deals with the international framework for the protection of religious cultural property in times of peace.  It begins by discussing the place of religious cultural property in the 1972 UNESCO Convention on Concerning the Protection of the World Cultural and Natural Heritage and the possible tension between obligations to preserve cultural heritage and the worship or liturgical use of religious cultural heritage.  The role of the protection of religious cultural property in bilateral agreements is also considered, notably from the in the practice of concordats of the Holy See.  The section concludes with an analysis of the territorial attachment of religious cultural property within the framework of the 1970 UNESCO Convention on the Means of Prohibiting and of Ownership of Cultural Property, preventing the illicit import, export and transfer and the mechanisms for repatriation following wrongful removal.

The first section of chapter II examines the law applicable to the circulation of religious cultural property in private law and considers, in particular:  limits to the application abroad of mandatory rules concerning religious property and to the extraterritorial effect of export restrictions; the inalienability of cultural property religions; international application of the lex originis and the legal effect of internal rules of religious communities governing the management of their cultural heritage. The course concludes in the second section of chapter II discussing the conditions for a civil restitution or return action, including the right to sue and limitation periods, the law applicable to transfers of ownership and rules on good faith acquisition of religious cultural property. It presents several cases that illustrate the difficulty that religious communities and groups may face to obtain restitution of cultural property removed from places of worship and related premises in violation of rules governing their religious function and use. It also considers the conditions for the return of goods to the country of origin in the event of theft or illicit export and the effect of restitution on the right of ownership under the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects of 19995 and the European Union Directive 2014/60 on the return of cultural objects unlawfully removed from the territory of a Member State.

More details, including the table of contents, can be found here.

Although it has in fact been out for several months now, there are few books more deserving of recognition on this blog than Étienne Farnoux’ impressive work on the substantive considerations that inform the rules on international jurisdiction.

Across the book’s 700+ pages, Farnoux launches a sustained attack on the principe de proximité as the foundation of most rules on international jurisdiction, including, most importantly, the forum delicti. He does so in two steps (as any serious French scholar would do): He first discusses the insufficiencies of the proximity-based status quo before developing an alternative approach to international jurisdiction based on procedural and, more importantly, substantive (i.e. policy) considerations.

In the first part, Farnoux explains how localised connecting factors are regularly manipulated to achieve a certain result, most often to create a forum actoris, a practice particularly prevalent in the case law of the CJEU. His analysis is based on a wide range of judgments – Shevill, Kronhofer, Kolassa, Löber, eDate, Bolagsupplysningen, Wikingerhof, Gtflix Tv, … – but does not fail to acknowledge the occasional nuance, as reflected, i.a., by the recent decisions in Vereniging van Effectenbezitters and Mittelbayerischer Verlag. Farnoux deconstructs the alleged objectives of the the principe de proximité – ease of evidence, foreseeability, and effective administration of justice – and demonstrates their inability to justify the allocation of adjudicative jurisdiction in a growing number of inherently delocalised torts.

In the second part, Farnoux therefore proposes a complete change of perspective for international jurisdiction on torts. Rather than chasing an ever more elusive proximity, two sets of considerations should drive the search for the appropriate connecting factor: la justice procédurale, i.e. the just allocation of procedural advantages between claimant and defendant, and la justice substantielle, i.e. the substantive interests of both parties, and of the potential forum. Based on these considerations, Farnoux develops a set of two propositions: First, he suggests to replace the forum delicti by a forum victimae (or forum actoris contrôlé), which would vest jurisdiction in the domicile of the claimant provided that their claim passes a prima-facie exam of its substantive merit – a proposition that certainly holds a claim to intellectual honesty if compared to the practically similar status quo of the Brussels Ia regime, but comes with its own set of problems, including the challenge of examining the merits of a claim before jurisdiction has been established (admittedly a common exercise in English law, though). Alternatively, he proposes to create a new forum protectionis in tort for structurally weaker parties, a proposition that may have a wider appeal, not least for avoiding to abolish the principle of actor sequitur entirely. In the final part of the book, these proposals are supplemented by some thoughts on how the interests of the prospective fora also influence the rules on international jurisdiction.

All in all, Farnoux masterfully combines a thorough, yet very timely analysis of the existing rules on international jurisdiction for torts through the lens of the principe de proximité with some innovative, well-argued propositions on how the latter could be replaced. The book has deservedly won a series of prizes already and is all but certain to become a staple in the library of any scholar working on international jurisdiction.

The Journal of Private International Law will be holding its 9th Conference at the Singapore Management University from 3 to 5 August 2023.

All those interested in making a presentation at the conference and in producing a final paper to be submitted for publication in the Journal are invited to provide for an abstract that should be up to 500 words in length and should clearly state the name(s) and affiliation(s) of the author(s). Abstracts can fall within any subject matter the Journal deal with and can be offered by people at any stage of their career, including postgraduate students.

Since there will be a mixture of plenary (Friday) and parallel panel sessions (Thursday afternoon and Saturday morning), it is to be indicated on the abstract whether you are willing to present in either or are only willing to do so in one or the other.

Presentation at the conference will depend on whether your abstract is selected by the Editors of the Journal (Jonathan Harris KC, King’s College, and Paul Beaumont FRSE, University of Stirling) and the Conference Organiser (Adeline Chong, Singapore Management University). The subsequent article should be submitted to either of the editors of the Journal before the end of 2023. Publication in the Journal will be subject to the usual system of refereeing by two experts in the field.

Abstract shall be submitted by 16 December 2022 at jpil2023@smu.edu.sg.

More information on the conference and the related registration can be found here.

A new Report on EU Policy Guidelines was just posted on the website of EFFORTS (Towards more EFfective enFORcemenT of claimS in civil and commercial matters within the EU), an EU-funded Project conducted by the University of Milan (coord.), the Max Planck Institute Luxembourg for Procedural Law, the University of Heidelberg, the Free University of Brussels, the University of Zagreb, and the University of Vilnius.

The Report was authored by Marco Buzzoni, Cristina M. Mariottini, Michele Casi, and Carlos Santaló Goris.

Building upon the outcomes of the national and international exchange seminars and the Project’s analytical reports, this Report formulates policy guidelines addressed to EU policymakers and puts forth suggestions to improve the current legal framework provided under the EFFORTS Regulations (namely: the Brussels I-bis Regulation and the Regulations on the European Enforcement Order, the European Small Claims Procedure, the European Payment Order, and the European Account Preservation Order) with regard to the enforcement of claims.

This Report was among the outputs and findings discussed at the Project’s Final Conference, hosted by the University of Milan on 30 September 2022, which provided an international forum where academics, policymakers, and practitioners discussed the Project’s key findings and exchanged their views on the national implementation of – and the path forward for – the EFFORTS Regulations. The content of the Final Conference will enrich the Final Study, which is forthcoming on the Project’s website.

Regular updates on the EFFORTS Project are available via the Project’s website, as well as LinkedIn and Facebook pages.

Project JUST-JCOO-AG-2019-881802
With financial support from the Civil Justice Programme of the European Union

A quick update related to the public consultation launched by the French Ministry of Justice last June on the draft code of private international law to gather feedback from all stakeholders (announced here).

The deadline has been extended to 30 November 2022.

More information is available here.

Various posts have been published on this blog regarding the draft: see here for some general remarks, and here as regards specifically renvoi, foreign law, the recognition of marriages and companies. A German perspective on the draft is offered here.

Lorsque le défunt avait la nationalité française et possédait des biens en France, les juridictions françaises sont compétentes pour statuer sur l’ensemble de sa succession en application de l’article 10 du règlement européen du 4 juillet 2012, même s’il n’y était pas domicilié.

Sur la boutique Dalloz Droit et pratique de la procédure civile 2021/2022 Voir la boutique Dalloz

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