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On 9 December 2021, the CJEU ruled in HRVATSKE ŠUME d.o.o., Zagreb v. BP EUROPA SE (Case C-242/20) that the distinction between contracts and torts under Article 7 of the Brussels I bis Regulation is not exclusive, and that claims for unjust enrichment need not be characterised either as contractual or tortious (see the comments by Geert van Calster here and Krzysztof Pacula here).

The Court had established until this case a clear bright line rule. Cases which did not fall within the jurisdictional rule for contracts (Article 7(1)) fell within the jurisdictional rule for torts (Article 7(2)). The ‘tort’ category was thus a residual category which included all liability actions which were not contractual in nature.

Hrvatske Sume changes this, and may have far reaching consequences.

First, as Article 7(2) only applies to ‘torts’ as such, it will now be necessary to positively define the concept of tort in the meaning of that provision. Will it include strict liability rules? Will it include torts which do not require the existence of a damage? Will it include torts which do not strictly require causation between the act of the defendant and the damage suffered by the victim?

Secondly, it will be necessary to identify those concepts which must be distinguished from torts and contracts. One of them is unjust enrichment. What are the others? Other quasi-contracts such as negotiorum gestio? Certain statutory rights? Certain other remedies?

Starting from tomorrow morning, the EAPIL blog will host an online symposium to discuss the above issues. Peter Mankowski will kick off the discussion. More contributions are scheduled for publication later on Monday and on Tuesday.

Readers are encouraged to contribute to the discussion by commenting on the posts. Those wishing to submit longer analyses are invited to do so by writing an e-mail to Pietro Franzina (pietro.franzina@unicatt.it).

Daria Levina (European University Institute) posted on SSRN a paper titled The Law Governing Enforceability of Forum Selection Agreements. The paper was completed to fulfill the requirements for a master of laws degree at Harvard Law School and received the 2018 Addison Brown Prize in conflict of laws.

The abstract reads as follows:

The paper examines approaches to determining the law governing forum selection agreements (“FSA”) in the US, the EU, Germany, and on international level (on example of the 2005 Hague Convention on Choice of Court Agreements). It analyses the historical treatment of FSA, as well as its legal features, and shows how they influenced the approaches adopted by the above jurisdictions. It looks at all potentially applicable laws (lex fori, lex causae, lex fori prorogati) and discusses the arguments in favor and against each of them, testing them against the principles of predictability, procedural economy, legal certainty, and regulatory interests of states. The paper adopts comparative approach in order to familiarize with the solutions adopted by different legal systems draw conclusions which might benefit them.

Examinant à nouveau la question de l’expulsion des étrangers atteints de maladies mentales, la CEDH précise le critère dégagé par sa jurisprudence concernant l’expulsion des étrangers malades et juge que le seuil élevé requis pour l’application de l’article 3 de la Convention n’était pas atteint en l’espèce.

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On 17 November 2021, the French Supreme Court for private and criminal matters (Cour de cassation) issued an interesting decision in the field of family law (Cass. Civ. 1re, 17 November 2021, n°20-19.420). The Court held that a bigamous marriage is not automatically void under French law when the spouses are foreign nationals. Indeed, the French choice of law rule on the validity of marriage provides for the application of the law of the spouses’ common nationality (article 202-1 of the Civil Code). Therefore, the lower court is required to designate on its own motion the applicable law to the marriage to assess its validity.

A couple, both Libyan nationals, married in 2000 in Libya. On November 2017, the wife filed a petition for divorce before French court. The lower court ruled that the request for divorce was inadmissible, because the husband was already married in Libya before this marriage. French law prohibits bigamy pursuant to article 147 of the Civil Code. As a result, the lower court had held that the second marriage “has no legal existence” and thus cannot be dissolved by a French court.

The wife appealed to the French Supreme Court based on a traditional conflict-of-law reasoning. She argued that the lower court should have checked whether the personal law of the spouses (as applicable law to marriage pursuant to article 202-1, op. cit.) did authorise bigamy. If so, the second marriage, celebrated abroad, could produce effects in France and thus be dissolved by a French court.

Under French domestic family law, article 147 of the French Civil Code lays down the principle of monogamy. French criminal law punishes a spouse guilty of bigamy (article 433-20 of the Penal Code). At the same time, comparative law reveals that some foreign legal systems allow polygamy. Even if this institution is in sharp contrasts to Western socio-cultural values, the global mobility of persons requires to pay attention to a possible acceptance of such marriages in the French forum.

Remarkably, the French legal system has traditionally adopted a nuanced position, depending on the proximity that the situation of bigamy or polygamy has with the forum. In France, no bigamous or, a fortiori, polygamous marriage can be validly celebrated, even if the second marriage is concluded between the same persons, already married abroad (Civ. 1re, 3 February 2004, n°00-19.838). The situation is different when the bigamy is not “created” in France, but was legally established abroad. The second marriage may then, in certain circumstances, be recognised in France and produce certain effects (e.g. in the field of social security rights or succession). In these latter circumstances, two hypotheses must be distinguished.

Either the national law of one of the spouses (pursuant to article 202-1 of the Civil Code) does not allow bigamy. French law will consider this prohibition as constituting an absolute impediment to marriage prevailing over the more liberal content of the national law of the other spouse. French authorities will therefore refuse to give effect to this marriage in France. For instance, a second marriage, validly celebrated abroad, of a foreign spouse whose personal status admits polygamy, with a French woman, cannot be recognised in France (Civ. 1re, 28 January 2002, n°00-15789).

Or the personal status of the spouses, i.e. their common or own national law, authorises polygamy. The French court may, to a certain extent, recognise the second marriage (and make it produce effects) by attenuating the “eviction” impact of the French fundamental values (effet atténué de l’ordre public). This has been held by the French Supreme Court on several occasions (Civ. 1re, 28 January 1958, Chemouni and more recently Civ. 2e, 14 February 2007, n°05-21.816).

In the present case, the lower court ruled on a domestic law basis. The case, however, was international and required a conflict-of-law analysis since the parties may not dispose of their rights. It is worth recalling that French PIL does not provide for a systematic mandatory application of choice of law rules. But French courts are required to apply conflict-of-law rules in non-patrimonial matters, such as personal status issues, since the parties may not dispose of their rights. They even have to determine the applicable law ex officio (comp. recently on the context of EU PIL, Civ. 1re, 26 May 2021, n°19-15.102, commented on the blog here and here).

In the absence of French written rules of PIL, the French Supreme Court has traditionally based this solution on article 3 of the French Civil Code. It was the only “international” provision in the Code Napoleon at the time of the judicial development of PIL rules in the French legal system. Unfortunately, it may be confusing for the reader, since article 3 makes no mention whatsoever of the court’s role in conflict-of-law matters. This is a strong point in favour of a (forthcoming?) French PIL codification.

This is the ground on which the French Supreme Court annulled the judgment of the Court of appeal in this case: in the field of marriage, conflict-of-law rules are mandatory. The lower court should have verified, in accordance with the personal law of the spouses pursuant to article 202-1 of the Civil Code, whether the foreign bigamous marriage was valid (so that, in the affirmative, it could be dissolved). At that stage of the reasonning, the French prohibition of bigamy pursuant to article 147 of the Civil Code did not matter.

We could maybe regret that the Supreme Court does not provide for the full PIL reasoning in order to be more informative. It will be indeed for the lower court to proceed to the second step of the choice of law analysis. The validity of the foreign marriage could be denied, despite its validity under the applicable law, on the basis of public policy. If the content of  foreign law infringes the fundamental values of French society, a French court may displace it and apply French law instead.

There is, however, a limit mentioned above: in order to protect rights acquired abroad and the permanence of the status of individuals across borders, the effect of public policy may be limited (effet atténué de l’ordre public). This has traditionally been the case in the field of polygamy when it is allowed under the personal status of the spouses (see above). The lower court should thus exclude the eviction of the foreign law despite its sharp cultural difference with French substantive family law and consider the foreign marriage as valid.

In this case, the bigamous marriage should be recognised so that the second wife is allowed to divorce. In other words, as a matter of policy, the private interests of the second wife should prevail. Whether this view would be shared by all Member States in the implementation of the EU PIL instruments on family matters is another matter.

La France préside le Conseil de l’Union européenne pour six mois. À cette occasion, la Délégation des Barreaux de France et Lefebvre Dalloz s’associent pour vous proposer ce podcast dont la vocation est de sensibiliser sur les travaux et les actions conduites dans le domaine de la justice au plan européen.

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The fifth edition of the treatise of Horatia Muir Watt (Sciences Po Law School) and Dominique Bureau (Paris II University) on French private international law has recently been published.

The treatise, which is one of the leading texts on private international law in France, is divided into two volumes (over 800 p. each). The first volume focuses on the general theory of private international law, and distinguishes between conflits de juridictions (jurisdiction and judgments), conflits de lois (choice of law) and conflits d’autorités (international regime of the action of non judicial authorities and recognition of the acts that they issue).

The second volume is concerned with special rules applicable in the different fields of private law (persons, property, family, obligations, businesses). It ends with a long conclusion which discusses two innovative topics. The first is an attempt to build a general theory of special European law on jurisdiction, judgments and choice of law. The second is an enquiry into whether new forces will lead to a complete reorganisation of the field: environment, digitalisation and the impact of new forms of organisation of business on traditional conceptual categories.

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

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

E.-M. Kieninger, Climate Change Litigation and Private International Law

The recent Shell ruling by the District Court of The Hague raises the question whether Carbon Majors could also be sued outside the state of their corporate home and which law would be applicable to claims for damages or injunctive relief. In particular, the article discusses possible restrictions of the right to choose between the law of the state in which the damage occurred and the law of the state in which the event giving rise to the damage took place (Art. 7 No. 2 Brussels Ia Regulation and Art. 7 Rome II Regulation). It also considers the effects of plant permits and the role that emissions trading should play under Art. 17 Rome II Regulation.

S. Arnold, Artificial intelligence and party autonomy – legal capacity and capacity for choice of law in private international law

Artificial intelligence is already fundamentally shaping our lives. It also presents challenges for private international law. This essay aims to advance the debate about these challenges. The regulative advantages of party autonomy, i.e. efficiency, legal certainty and conflict of laws justice, can be productive in choice of law contracts involving artificial intelligence. In the case of merely automated systems, problems are relatively limited: the declarations of such systems can simply be attributed to their users. Existence, validity or voidability of choice of law clauses are determined by the chosen law in accordance with Art. 3(5), 10(1) Rome I Regulation. If, however, the choice of law is the result of an artificial “black box” decision, tricky problems arise: The attribution to the persons behind the machines might reach its limit, for such artificial decisions can neither be predicted nor explained causally in retrospect. This problem can be solved in different ways by the substantive law. Clearly, national contract laws will differ substantially in their solutions. Thus, it becomes a vital task for private international law to determine the law that is decisive for the question of attribution. According to one thesis of this article, two sub-questions arise: First, the question of legal capacity for artificial intelligence and second, its capacity for choice of law. The article discusses possible connecting factors for both sub-questions de lege lata and de lege ferenda. Furthermore, it considers the role of ordre public in the context of artificial choice of law decisions. The article argues that the ordre public is not necessarily violated if the applicable law answers the essential sub-questions (legal capacity and capacity for choice of law) differently than German law.

M. Sonnentag and J. Haselbeck, Divorce without the involvement of a court in Member States of the EU and the Brussels IIbis- and the Rome III-Regulation

In recent years some Member States of the European Union such as Italy, Spain, France, and Greece introduced the possibility of a divorce without the involvement of a court. The following article discusses the questions whether such divorces can be recognised according to Art. 21 Regulation No 2201/2003 (Brussels-IIbis), Art. 30 Regulation No 2019/1111 (Brussels-IIbis recast) and if they fall within the scope of the Regulation No 1259/2010 (Rome III).

W. Hau, Personal involvement as a prerequisite for European tort jurisdiction at the centre of the plaintiff’s interests

The case Mittelbayerischer Verlag KG v. SM gave the ECJ the opportunity to further develop its case law on the European forum delicti under Art. 7 No. 2 Brussels Ibis Regulation for actions for alleged infringements of personality rights on the internet. The starting point was the publication of an article on the homepage of a Bavarian newspaper, which misleadingly referred to “Polish extermination camps” (instead of “German extermination camps in occupied Poland”). Strangely enough, Polish law entitles every Polish citizen in such a case to invoke the “good reputation of Poland” as if it were his or her personal right. The ECJ draws a line here by requiring, as a precondition of Art. 7 No. 2, that the publication contains objective and verifiable elements which make it possible to individually identify, directly or indirectly, the person who wants to bring proceedings at the place of his or her centre of interest. While this approach allows for an appropriate solution to the case at hand, it leaves several follow-up questions open.

A. Hemler, Which point in time is relevant regarding the selection of a foreign forum by non-merchants according to § 38(2) German Code of Civil Procedure (ZPO)?

38(2) German Code of Civil Procedure (ZPO) permits the selection of a foreign forum only if at least one party does not have a place of general jurisdiction in Germany. In the case discussed, the defendant had general jurisdiction in Germany only when the claim was filed. However, there was no general jurisdiction in Germany when the choice of forum clause was agreed upon. The Landgericht (district court) Frankfurt a.M. therefore had to decide on the relevant point in time regarding § 38(2) ZPO. Given the systematic structure of § 38 ZPO and the law’s purpose of advancing international legal relations, the court argued in favour of the point in time in which the choice of forum clause was agreed upon. The author of the paper rejects the court’s view: He argues that the systematic concerns are less stringent on closer inspection. More important, however, is the fact that the law also calls for the protection of non-merchants. This can only be sufficiently achieved if the point in time in which the claim was filed is regarded as the crucial one.

D. Henrich, News on private divorces in and outside the EU

In two decisions the German Federal Court of Justice (“BGH”) had to deal with the recognition of private divorces (divorces without involvement of a state authority). In the first case (XII ZB 158/18) a couple of both Syrian and German nationality had been divorced in Syria by repudiation. While recognition of foreign public divorces (divorces by a state court or other state authority) is a question of procedure, private divorces are recognized if they are effective according to the applicable law, here the Rules of the Rome III Regulation (Article 17(1) Introductory Act to the Civil Code). Because the couple had no common ordinary residence, the Court applied Article 8 lit. c Rome III Regulation. German Law dominating, the Court denied recognition.

In the second case (XII ZB 187/20) the BGH made a reference for a preliminary ruling of the European Court of Justice regarding the recognition of a divorce in Italy in the register office in front of the registrar. The BGH follows the opinion that in such cases it is the consent of the parties that dissolves the marriage, the divorce being a private one. The BGH questions whether in spite of that the divorce could be recognized according to Sec. 21 Council Regulation (EC) No. 2201/2003 or, if not, according to Sec. 46 of the Council Regulation.

C. Budzikiewicz, On the classification of dowry agreements

Agreements on the payment of a bride’s dowry are a recurring topic in German courts. It usually becomes the subject of a legal dispute in connection with or after a divorce. This was also the case in the decision to be discussed here, in which the applicant demands that her divorced husband pay for the costs of a pilgrimage to Mecca. Since the case has an international connection due to the husband’s Libyan nationality, the Federal Supreme Court first addresses the controversial question of the characterization of dowry. However, since all connection options lead to German law in the present case, the Court ultimately refrains from deciding the question of characterization. It explains that the agreement on the payment of dowry is to be classified under German law as a sui generis family law contract, which requires notarization in order to be effective. The article critically examines the decision. In doing so, it addresses both the question of characterization of dowry and the need for form of agreements on the payment of dowry under German law.

E. Jayme and G. Liberati Buccianti, Private Divorces under Italian Law: Conflict of Laws

Divorce, under German law, is only permitted by a decision of a judge, even in cases where a foreign law is applicable which would allow a private divorce based on the agreement of the spouses. Italy, however, has introduced, in 2014, a divorce by private agreement in two procedures: the agreement of the spouses can be submitted to the public prosecutor who, in case he agrees, will send it to the civil registrar, or, secondly, by a direct application of the spouses to the civil registrar of the place where the marriage had been registered.

The article discusses the problems of private international law and international civil procedure, particularly in cases where Italian spouses living in Germany intend to reach a private divorce in Italy. The discussion includes same-sex-marriages of Italian spouses concluded in Germany which are permitted under German law, but not under Italian law, according to which only a “civil union” is possible. The Italian legislator has enacted (2017) a statute according to which the same-sex-marriage concluded by Italian citizens abroad will have the effects of a civil union under Italian law. The question arises of whether the Italian rules on terminating a civil union will have an effect on the spouses marriage concluded in Germany.

The article also discusses the validity of private divorces obtained in Third States which are not members of the European Union, particularly with regard to religious divorces by talaq expressed by the husband, and the problem whether such divorces are compatible with the principles of public policy. The authors mention also the specific problems of Italian law with regard to religious (catholic) marriages concluded and registered in Italy, where a divorce by Italian law is possible which, however, may be in conflict with a nullity judgment of the catholic church.

G. Mäsch and C. Wittebol, None of Our Concern? – A Group of Companies‘ Cross-border Environmental Liability Before Dutch Courts

The issue of cross-border corporate responsibility has been in the limelight of legal debate for some time. In its decision of 29 January 2021, the Court of Appeal of The Hague (partially) granted a liability claim against the parent company Royal Dutch Shell plc with central administration in The Hague for environmental damages caused by its Nigerian subsidiary. In particular, the Dutch court had to address the much-discussed question to what extent domestic parent companies are liable before domestic courts for environmental damage committed by their subsidiaries abroad, and whether domestic courts have international jurisdiction over the subsidiary. With this precedent, the number of cross-border human rights and environmental claims is likely to rise in the near future.

H. Jacobs, Article 4(2) and (3) Rome II Regulation in a case involving multiple potential tortfeasors

In Owen v Galgey, the High Court of England and Wales engaged in a choice of law analysis in a case involving multiple potential tortfeasors. The claimant, a British citizen habitually resident in England, was injured in France when he fell into an empty swimming pool. In the proceedings before the High Court, he claimed damages from, inter alia, the owner of the holiday home and his wife, both British citizens habitually resident in England, and from a French contractor who was carrying out renovation works on the swimming pool at the material time. The judgment is concerned with the applicability of Article 4(2) Rome II Regulation in multi-party tort cases and the operation of the escape clause in Article 4(3) Rome II Regulation. While the High Court’s view that Article 4(2) requires a separate consideration of each pair of claimants and defendants is convincing, it is submitted that the court should have given greater weight to the parties’ common habitual residence when applying Article 4(3).

The table of contents of the issue is available here.

Si le Conseil d’État complète le mode d’emploi de la clause de sauvegarde constitutionnelle, il ne l’applique pas dans la présente affaire. Il juge que le temps de travail de la gendarmerie départementale ne méconnaît pas l’article 6 de la directive du 4 novembre 2003.

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The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:

(These abstracts can also be found at the IPRax-website under the following link: https://www.iprax.de/en/contents/)

E.-M. Kieninger: Climate Change Litigation and Private International Law

The recent Shell ruling by the District Court of The Hague raises the question whether Carbon Majors could also be sued outside the state of their corporate home and which law would be applicable to claims for damages or injunctive relief. In particular, the article discusses possible restrictions of the right to choose between the law of the state in which the damage occurred and the law of the state in which the event giving rise to the damage took place (Art. 7 No. 2 Brussels Ia Regulation and Art. 7 Rome II Regulation). It also considers the effects of plant permits and the role that emissions trading should play under Art. 17 Rome II Regulation.

S. Arnold: Artificial intelligence and party autonomy – legal capacity and capacity for choice of law in private international law

Artificial intelligence is already fundamentally shaping our lives. It also presents challenges for private international law. This essay aims to advance the debate about these challenges. The regulative advantages of party autonomy, i.e. efficiency, legal certainty and conflict of laws justice, can be productive in choice of law contracts involving artificial intelligence. In the case of merely automated systems, problems are relatively limited: the declarations of such systems can simply be attributed to their users. Existence, validity or voidability of choice of law clauses are determined by the chosen law in accordance with Art. 3(5), 10(1) Rome I Regulation. If, however, the choice of law is the result of an artificial “black box” decision, tricky problems arise: The attribution to the persons behind the machines might reach its limit, for such artificial decisions can neither be predicted nor explained causally in retrospect. This problem can be solved in different ways by the substantive law. Clearly, national contract laws will differ substantially in their solutions. Thus, it becomes a vital task for private international law to determine the law that is decisive for the question of attribution. According to one thesis of this article, two sub-questions arise: First, the question of legal capacity for artificial intelligence and second, its capacity for choice of law. The article discusses possible connecting factors for both sub-questions de lege lata and de lege ferenda. Furthermore, it considers the role of ordre public in the context of artificial choice of law decisions. The article argues that the ordre public is not necessarily violated if the applicable law answers the essential sub-questions (legal capacity and capacity for choice of law) differently than German law.

M. Sonnentag/J. Haselbeck: Divorce without the involvement of a court in Member States of the EU and the Brussels IIbis- and the Rome III-Regulation

In recent years some Member States of the European Union such as Italy, Spain, France, and Greece introduced the possibility of a divorce without the involvement of a court. The following article discusses the questions whether such divorces can be recognised according to Art. 21 Regulation No 2201/2003 (Brussels-IIbis), Art. 30 Regulation No 2019/1111 (Brussels-IIbis recast) and if they fall within the scope of the Regulation No 1259/2010 (Rome III).

W. Hau: Personal involvement as a prerequisite for European tort jurisdiction at the centre of the plaintiff’s interests

The case Mittelbayerischer Verlag KG v. SM gave the ECJ the opportunity to further develop its case law on the European forum delicti under Art. 7 No. 2 Brussels Ibis Regulation for actions for alleged infringements of personality rights on the internet. The starting point was the publication of an article on the homepage of a Bavarian newspaper, which misleadingly referred to “Polish extermination camps” (instead of “German extermination camps in occupied Poland”). Strangely enough, Polish law entitles every Polish citizen in such a case to invoke the “good reputation of Poland” as if it were his or her personal right. The ECJ draws a line here by requiring, as a precondition of Art. 7 No. 2, that the publication contains objective and verifiable elements which make it possible to individually identify, directly or indirectly, the person who wants to bring proceedings at the place of his or her centre of interest. While this approach allows for an appropriate solution to the case at hand, it leaves several follow-up questions open.

A. Hemler: Which point in time is relevant regarding the selection of a foreign forum by non-merchants according to § 38(2) German Code of Civil Procedure (ZPO)?

38(2) German Code of Civil Procedure (ZPO) permits the selection of a foreign forum only if at least one party does not have a place of general jurisdiction in Germany. In the case discussed, the defendant had general jurisdiction in Germany only when the claim was filed. However, there was no general jurisdiction in Germany when the choice of forum clause was agreed upon. The Landgericht (district court) Frankfurt a.M. therefore had to decide on the relevant point in time regarding § 38(2) ZPO. Given the systematic structure of § 38 ZPO and the law’s purpose of advancing international legal relations, the court argued in favour of the point in time in which the choice of forum clause was agreed upon. The author of the paper rejects the court’s view: He argues that the systematic concerns are less stringent on closer inspection. More important, however, is the fact that the law also calls for the protection of non-merchants. This can only be sufficiently achieved if the point in time in which the claim was filed is regarded as the crucial one.

D. Henrich: News on private divorces in and outside the EU

In two decisions the German Federal Court of Justice (“BGH”) had to deal with the recognition of private divorces (divorces without involvement of a state authority). In the first case (XII ZB 158/18) a couple of both Syrian and German nationality had been divorced in Syria by repudiation. While recognition of foreign public divorces (divorces by a state court or other state authority) is a question of procedure, private divorces are recognized if they are effective according to the applicable law, here the Rules of the Rome III Regulation (Article 17(1) Introductory Act to the Civil Code). Because the couple had no common ordinary residence, the Court applied Article 8 lit. c Rome III Regulation. German Law dominating, the Court denied recognition.

In the second case (XII ZB 187/20) the BGH made a reference for a preliminary ruling of the European Court of Justice regarding the recognition of a divorce in Italy in the register office in front of the registrar. The BGH follows the opinion that in such cases it is the consent of the parties that dissolves the marriage, the divorce being a private one. The BGH questions whether in spite of that the divorce could be recognized according to Sec. 21 Council Regulation (EC) No. 2201/2003 or, if not, according to Sec. 46 of the Council Regulation.

C. Budzikiewicz: On the classification of dowry agreements

Agreements on the payment of a bride’s dowry are a recurring topic in German courts. It usually becomes the subject of a legal dispute in connection with or after a divorce. This was also the case in the decision to be discussed here, in which the applicant demands that her divorced husband pay for the costs of a pilgrimage to Mecca. Since the case has an international connection due to the husband’s Libyan nationality, the Federal Supreme Court first addresses the controversial question of the characterization of dowry. However, since all connection options lead to German law in the present case, the Court ultimately refrains from deciding the question of characterization. It explains that the agreement on the payment of dowry is to be classified under German law as a sui generis family law contract, which requires notarization in order to be effective. The article critically examines the decision. In doing so, it addresses both the question of characterization of dowry and the need for form of agreements on the payment of dowry under German law.

E. Jayme/G. Liberati Buccianti: Private Divorces under Italian Law: Conflict of Laws

Divorce, under German law, is only permitted by a decision of a judge, even in cases where a foreign law is applicable which would allow a private divorce based on the agreement of the spouses. Italy, however, has introduced, in 2014, a divorce by private agreement in two procedures: the agreement of the spouses can be submitted to the public prosecutor who, in case he agrees, will send it to the civil registrar, or, secondly, by a direct application of the spouses to the civil registrar of the place where the marriage had been registered.

The article discusses the problems of private international law and international civil procedure, particularly in cases where Italian spouses living in Germany intend to reach a private divorce in Italy. The discussion includes same-sex-marriages of Italian spouses concluded in Germany which are permitted under German law, but not under Italian law, according to which only a “civil union” is possible. The Italian legislator has enacted (2017) a statute according to which the same-sex-marriage concluded by Italian citizens abroad will have the effects of a civil union under Italian law. The question arises of whether the Italian rules on terminating a civil union will have an effect on the spouses marriage concluded in Germany.

The article also discusses the validity of private divorces obtained in Third States which are not members of the European Union, particularly with regard to religious divorces by talaq expressed by the husband, and the problem whether such divorces are compatible with the principles of public policy. The authors mention also the specific problems of Italian law with regard to religious (catholic) marriages concluded and registered in Italy, where a divorce by Italian law is possible which, however, may be in conflict with a nullity judgment of the catholic church.

G. Mäsch/C. Wittebol: None of Our Concern? – A Group of Companies‘ Cross-border Environmental Liability Before Dutch Courts

The issue of cross-border corporate responsibility has been in the limelight of legal debate for some time. In its decision of 29 January 2021, the Court of Appeal of The Hague (partially) granted a liability claim against the parent company Royal Dutch Shell plc with central administration in The Hague for environmental damages caused by its Nigerian subsidiary. In particular, the Dutch court had to address the much-discussed question to what extent domestic parent companies are liable before domestic courts for environmental damage committed by their subsidiaries abroad, and whether domestic courts have international jurisdiction over the subsidiary. With this precedent, the number of cross-border human rights and environmental claims is likely to rise in the near future.

H. Jacobs: Article 4(2) and (3) Rome II Regulation in a case involving multiple potential tortfeasors

In Owen v Galgey, the High Court of England and Wales engaged in a choice of law analysis in a case involving multiple potential tortfeasors. The claimant, a British citizen habitually resident in England, was injured in France when he fell into an empty swimming pool. In the proceedings before the High Court, he claimed damages from, inter alia, the owner of the holiday home and his wife, both British citizens habitually resident in England, and from a French contractor who was carrying out renovation works on the swimming pool at the material time. The judgment is concerned with the applicability of Article 4(2) Rome II Regulation in multi-party tort cases and the operation of the escape clause in Article 4(3) Rome II Regulation. While the High Court’s view that Article 4(2) requires a separate consideration of each pair of claimants and defendants is convincing, it is submitted that the court should have given greater weight to the parties’ common habitual residence when applying Article 4(3).

Antonio Leandro (University of Bari) has posted Asset Tracing and Recovery in European Cross-border Insolvency Proceedings on SSRN.

Tracing and recovering assets amount to crucial means to preserve the estate in insolvency proceedings. The proceedings’ outcome may depend on a successful liquidation, which, in turn, can succeed insofar as the concerned assets are traced and recovered smoothly. Besides, insolvency-related disputes, such as the avoidance disputes, may benefit from instruments that help find debtor’ assets or recover payments.

Cross-border insolvency proceedings exhibit peculiar features in this respect because of the debtor’s assets and affairs being in touch with different States. Multiple laws and jurisdictions, with differing or even divergent underlying legal traditions, may in fact be concerned with tracing and recovery.

Moreover, tracing and recovery may affect individuals (e.g., debtors, directors, shareholders, secured creditors, third parties) whose interests clash with those of insolvency proceedings, especially that of satisfying creditors through the proceeds of liquidated assets. If such persons have connections (e.g., citizenship, seat, habitual residence, domicile, as well as affairs, rights, obligations, etc.) with different States, including other States than that in which the assets are located, the cross-border context gets wider.

Against this backdrop, intermingled problems of private international law arise, including assessing the courts having jurisdiction to issue tracing or recovering measures, the authorities that may apply and take action, the law governing the measures and the enforcement thereof, the recognition of foreign tools aimed at detecting and recovering the assets. All these problems lie on a terrain where issues of characterization, state sovereignty and cooperation between foreign authorities are interwoven.
The paper intends to explain how to melt this skein within the EU civil judicial space.

The CJEU (Grand Chamber) delivered on 21 December 2021 its judgment in case C‑251/20 (Gtflix Tv), which is about Brussels I bis:

« Article 7(2) of Regulation (EU) No 1215/2012 […] must be interpreted as meaning that a person who, considering that his or her rights have been infringed by the dissemination of disparaging comments concerning him or her on the internet, seeks not only the rectification of the information and the removal of the content placed online concerning him or her but also compensation for the damage resulting from that placement may claim, before the courts of each Member State in which those comments are or were accessible, compensation for the damage suffered in the Member State of the court seised, even though those courts do not have jurisdiction to rule on the application for rectification and removal ».

Source: https://curia.europa.eu/juris/document/document.jsf?docid=251510&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=5320006

Earlier on, on 16 September 2021, AG Hogan had suggested: “Article 7(2) of Regulation No 1215/2012 […] must be interpreted as meaning that a claimant who relies on an act of unfair competition consisting in the dissemination of disparaging statements on the internet and who seeks both the rectification of the data and the deletion of certain content and compensation for the non-material and economic damage resulting therefrom, may bring an action or claim before the courts of each Member State in the territory of which content published online is or was accessible, for compensation only for the damage caused in the territory of that Member State. In order, however, for those courts to have the requisite jurisdiction it is necessary that the claimant can demonstrate that it has an appreciable number of consumers in that jurisdiction who are likely to have access to and have understood the publication in question” (https://curia.europa.eu/juris/document/document.jsf?text=&docid=246102&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=2104).

The CJEU (Grand Chamber) delivered on 21 December 2021 its judgment in case C‑124/20 (Bank Melli Iran v Telekom Deutschland GmbH), which is about Regulation (EC) No 2271/96 (Protection against the effects of the extraterritorial application of legislation adopted by a third country):

« 1. The first paragraph of Article 5 of Council Regulation (EC) No 2271/96 of 22 November 1996 […] must be interpreted as prohibiting persons referred to in Article 11 of Regulation No 2271/96, as amended, from complying with the requirements or prohibitions laid down in the laws specified in the annex to that regulation, even in the absence of an order directing compliance issued by the administrative or judicial authorities of the third countries which adopted those laws.

2. The first paragraph of Article 5 of Regulation No 2271/96, as amended by Regulation No 37/2014 and Delegated Regulation 2018/1100, must be interpreted as not precluding a person referred to in Article 11 of that regulation, as amended, who does not have an authorisation within the meaning of the second paragraph of Article 5 of that regulation, as amended, from terminating contracts concluded with a person on the Specially Designated Nationals and Blocked Persons List, without providing reasons for that termination. Nevertheless, the first paragraph of Article 5 of the same regulation, as amended, requires that, in civil proceedings relating to the alleged infringement of the prohibition laid down in that provision, where all the evidence available to the national court suggests prima facie that a person referred to in Article 11 of Regulation No 2271/96, as amended, complied with the laws specified in the annex to that regulation, as amended, without having an authorisation in that respect, it is for that same person to establish to the requisite legal standard that his or her conduct was not intended to comply with those laws.

3. Regulation No 2271/96, as amended by Regulation No 37/2014 and Delegated Regulation 2018/1100, in particular Articles 5 and 9 thereof, read in the light of Article 16 and Article 52(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding the annulment of the termination of contracts effected by a person referred to in Article 11 of that regulation, as amended, in order to comply with the requirements or prohibitions based on the laws specified in the annex to that regulation, as amended, even though that person does not have an authorisation, within the meaning of the second paragraph of Article 5 of the same regulation, as amended, provided that that annulment does not entail disproportionate effects for that person having regard to the objectives of Regulation No 2271/96, as amended, consisting in the protection of the established legal order and the interests of the European Union in general. In that assessment of proportionality, it is necessary to weigh in the balance the pursuit of those objectives served by the annulment of the termination of a contract effected in breach of the prohibition laid down in the first paragraph of Article 5 of that regulation, as amended, and the probability that the person concerned may be exposed to economic loss, as well as the extent of that loss, if that person cannot terminate his or her commercial relationship with a person included in the list of persons covered by the secondary sanctions at issue resulting from the laws specified in the annex to that regulation, as amended ».

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=251507&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=5321152

AG Pikamae delivered on 16 December 2021 his opinion in case C‑568/20 (J), which is about the incorrect use of Brussels I bis by the court of origin. The opinion is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version).

Question : « À la suite de la délivrance, par la juridiction de l’État membre d’origine, du certificat prévu à l’article 53 du règlement (UE) no 1215/2012 (2), attestant du caractère exécutoire de la décision rendue et de l’applicabilité de ce règlement, la juridiction de l’État membre requis, saisie d’une demande de refus d’exécution de cette décision par la personne contre laquelle l’exécution est sollicitée, peut-elle y faire droit au motif d’une appréciation erronée quant au caractère applicable dudit règlement, dans la mesure où la procédure suivie devant la juridiction de l’État membre d’origine visait à déclarer exécutoires des jugements rendus dans un État tiers ? ».

Suggested response : «  Les articles 45 et 46 du règlement (UE) no 1215/2012 du Parlement européen et du Conseil, du 12 décembre 2012 […] doivent être interprétés en ce sens que la juridiction de l’État membre requis, saisie d’une demande de refus d’exécution, peut y faire droit au motif que la décision et le certificat, prévu à l’article 53 de ce règlement, adoptés par la juridiction de l’État membre d’origine violent l’ordre public de l’État membre requis dès lors que l’erreur de droit invoquée constitue une violation manifeste d’une règle de droit considérée comme étant essentielle dans l’ordre juridique de l’Union et donc dans celui de cet État. Tel est le cas d’une erreur affectant l’application de l’article 2, sous a), et de l’article 39 dudit règlement exigeant que la décision dont l’exécution est demandée soit rendue dans un État membre.
Lorsqu’il vérifie l’existence éventuelle d’une violation manifeste de l’ordre public de l’État requis, du fait de la méconnaissance d’une règle de fond ou de forme du droit de l’Union, le juge de cet État doit tenir compte du fait que, sauf circonstances particulières rendant trop difficile ou impossible l’exercice des voies de recours dans l’État membre d’origine, les justiciables doivent faire usage dans cet État membre de toutes les voies de recours disponibles afin de prévenir en amont une telle violation ».

Source: https://curia.europa.eu/juris/document/document.jsf?docid=251315&mode=req&pageIndex=2&dir=&occ=first&part=1&text=&doclang=FR&cid=5321152

The Court of Justice delivered on 9 December 2021 its judgment in case C‑708/20 (BT v Seguros Catalana Occidente, EB), which is about Article 13 Brussels I bis:

« Article 13(3) of Regulation (EU) No 1215/2012 […] must be interpreted as meaning that, in the event of a direct action brought by the injured person against an insurer in accordance with Article 13(2) thereof, the court of the Member State in which that person is domiciled cannot also assume jurisdiction, on the basis of Article 13(3) thereof, to rule on a claim for compensation brought at the same time by that person against the policyholder or the insured who is domiciled in another Member State and who has not been challenged by the insurer ».

Source: https://curia.europa.eu/juris/document/document.jsf?docid=250867&mode=req&pageIndex=4&dir=&occ=first&part=1&text=&doclang=EN&cid=5332111

The Court of Justice delivered on 9 December 2021 its judgment in case C‑242/20 (Hrvatske Sume), which is about Brussels I.

Context: “proceedings between, on the one hand, HRVATSKE ŠUME d.o.o., Zagreb, a company established in Croatia, successor in title to HRVATSKE ŠUME javno poduzeće za gospodarenje šumama i šumskim zemljištima u Republici Hrvatskoj p.o., Zagreb, and, on the other, BP Europa SE Hamburg, a company established in Germany, successor in title to Deutsche BP AG, in turn successor in title to The Burmah Oil (Deutschland) GmbH, concerning the recovery, on the basis of unjust enrichment, of an amount unduly paid in enforcement proceedings which were subsequently declared invalid”.

Decision: « 1. Article 22(5) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that an action for restitution based on unjust enrichment does not come within the exclusive jurisdiction provided for by that provision, even though it was brought on account of the expiry of the time limit within which restitution of sums unduly paid in enforcement proceedings may be claimed in the context of the same enforcement proceedings.

2. Article 5(3) of Regulation No 44/2001 must be interpreted as meaning that an action for restitution based on unjust enrichment does not fall within the scope of the ground of jurisdiction laid down in that provision ».

Note paragraph 36 : « In the absence of any application for enforcement, an action for restitution based on unjust enrichment does not come within the scope of Article 22(5) of Regulation No 44/2001 ».

Source: https://curia.europa.eu/juris/document/document.jsf?docid=250865&mode=req&pageIndex=5&dir=&occ=first&part=1&text=&doclang=EN&cid=5334182

AG Saugmandsgaard Oe had previously, on 9 September 2021, delivered the following opinion: « Article 5(1) and Article 5(3) of Council Regulation (EC) No 44/2001 [..] must be interpreted as meaning that a claim for restitution based on unjust enrichment:
– is not a matter ‘relating to a contract’ within the meaning of the former provision, except where it is closely linked to a prior contractual relationship existing, or deemed to exist, between the parties to the dispute; and
– is not a matter ‘relating to tort, delict or quasi-delict’ within the meaning of the latter provision » (https://curia.europa.eu/juris/document/document.jsf?docid=245764&mode=req&pageIndex=23&dir=&occ=first&part=1&text=&doclang=EN&cid=2104).

AG Campos Sanchez-Bordona delivered on 2 December 2021 his opinion in case C‑645/20 (V A), which is about the Succession Regulation.

Context: “1. The Cour de cassation (Court of Cassation, France) asks the Court of Justice whether the authorities of a Member State (2) in which the deceased has assets must establish of their own motion their jurisdiction to rule on the succession as a whole under Article 10 of Regulation No 650/2012.

2. The uncertainty has arisen in the course of a dispute over succession rights between the children of a deceased French citizen whose last habitual residence in France is contested, on the one hand, and the person who was the deceased’s wife (but not the mother of his children) at the time of his death, on the other.

3. None of the parties disputes the nationality of the deceased at the time of his death, or that he was the owner of a property situated in France. The disagreement lies only in where he was habitually resident when he died

4. At first instance, a French court declared that it had jurisdiction to hear and determine the claim brought by the deceased’s children, who had applied for the appointment of an administrator for the estate.

5. On appeal, however, the relevant court held that the French judicial authorities lacked jurisdiction over the succession as a whole, as the deceased’s last place of residence had been in the United Kingdom.

6. On appeal in cassation, the appellants claim that, in any event, the French courts should have declared that they had jurisdiction on their own initiative, which is the issue that forms the subject of the referring court’s question”.

Suggested response: “Article 10(1)(a) of Regulation (EU) No 650/2012 […] must be interpreted as meaning that, in the case where the deceased did not have his last habitual residence in any Member State of the European Union, the court of a Member State in which a dispute in a matter of succession has arisen must declare of its own motion that it has jurisdiction to settle the succession as a whole if, in the light of facts alleged by the parties which are not in dispute, the deceased was a national of that State at the time of his death and was the owner of assets located there”.

Source: https://curia.europa.eu/juris/document/document.jsf?docid=250423&mode=req&pageIndex=5&dir=&occ=first&part=1&text=&doclang=EN&cid=5334182

On 25 November 2021, the CJEU delivered its judgment in case C‑289/20 (IB v FA), which is about Article 3 Brussels II bis.

Decision: “Article 3(1)(a) of Council Regulation (EC) No 2201/2003 […] must be interpreted as meaning that a spouse who divides his or her time between two Member States may have his or her habitual residence in only one of those Member States, with the result that only the courts of the Member State in which that habitual residence is situated have jurisdiction to rule on the application for the dissolution of matrimonial ties”.

Note: the Court has clearly indicated, in the preceding paragraphs, the particular State it believes the spouse to be resident in (subject to the national court’s assessment):

“59 In the present case, as is apparent from the documents before the Court, it is common ground that IB, a national of the Member State of the national court seised, satisfied the condition – laid down in the sixth indent of Article 3(1)(a) of Regulation No 2201/2003 – of having resided in that Member State for at least six months immediately before lodging his application for the dissolution of matrimonial ties. It is also established that, since May 2017, IB has been carrying out, on a stable and permanent basis, a professional activity of indefinite duration in France during the week, and that he stays in an apartment there for the purposes of that professional activity.

60 That evidence indicates that IB’s stay in the territory of that Member State is stable and also shows, at the very least, IB’s integration into a social and cultural environment within that Member State”.

Source: https://curia.europa.eu/juris/document/document.jsf?docid=250046&mode=req&pageIndex=6&dir=&occ=first&part=1&text=&doclang=EN&cid=5338385

On 25 November 2021, the CJEU delivered its judgment in case C‑25/20 (NK, acting as liquidator in the insolvency of Alpine BAU GmbH) :

« Article 32(2) of Council Regulation (EC) 1346/2000 […], read in conjunction with Articles 4 and 28 of that regulation, must be interpreted as meaning that the lodging, in secondary insolvency proceedings, of claims already submitted in the main insolvency proceedings by the liquidator in those proceedings is subject to the provisions relating to time limits for the lodging of claims and to the consequences of lodging such claims out of time, laid down by the law of the State of the opening of those secondary proceedings ».

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=250042&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=3696513

AG Campos Sanchez-Bordona delivered on 28 October 2021 his opinion in case C‑498/20 (ZK). The opinion is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version).

Suggested decision: “1) L’article 1er, paragraphe 2, sous d), du règlement (CE) no 864/2007 […] doit être interprété en ce sens qu’il exclut de son champ d’application les obligations non contractuelles résultant d’un manquement au devoir de diligence des associés ou des organes lorsque la loi rend ceux-ci responsables d’un tel manquement à l’égard des tiers pour des raisons propres au droit des sociétés. La responsabilité découlant de la violation du devoir général de diligence n’est pas exclue du champ d’application du règlement.

2) L’article 4, paragraphe 1, du règlement Rome II doit être interprété en ce sens que “le lieu où le dommage survient” est le lieu où est établie la société, lorsque le préjudice subi par ses créanciers est la conséquence médiate de pertes économiques subies en premier lieu par la société elle-même. La circonstance que les actions soient exercées par un curateur, au titre de sa mission légale de liquidation de la masse active, ou par une personne assurant la défense collective d’intérêts pour le compte de (mais, non pas, au nom de) l’ensemble des créanciers est sans incidence sur la détermination de ce lieu. Le fait que le domicile de certains créanciers soit situé en dehors de l’Union européenne n’est pas davantage pertinent.

3) L’article 4, paragraphe 3, du règlement Rome II doit être interprété en ce sens qu’une relation préexistante entre l’auteur d’un dommage et la victime directe (telle que, par exemple, une convention de financement, pour laquelle les parties ont choisi la loi applicable) est un élément qui doit être mis en balance avec les autres circonstances afin d’établir s’il existe un lien manifestement plus étroit entre le fait dommageable et un pays déterminé qu’entre ce même fait et le pays dont la loi serait applicable en vertu de l’article 4, paragraphes 1 ou 2, dudit règlement”.

Source: https://curia.europa.eu/juris/document/document.jsf?docid=248304&mode=req&pageIndex=11&dir=&occ=first&part=1&text=&doclang=FR&cid=5352290

L’obstruction à opération d’enquête visée à l’article L. 464-2, V, du code de commerce est, selon la Cour de cassation, une violation des règles procédurales du droit de la concurrence susceptible d’être imputée à une entreprise conformément à la jurisprudence dégagée en matière de violation des règles substantielles.

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