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In a judgement dated 18 November 2020, the French Supreme Court for private and criminal matters (Cour de cassation) ruled that the obligation to apply choice of law rules equally applies in interim proceedings. In contrast, the court had ruled in 1996 that French courts did not have the power to apply choice of law rules in interim proceedings.

The case was concerned with a traffic accident which had occurred in Italy. A car driven by a French woman had run over a professional Australian cyclist living in Monte Carlo (which one is anyone’s guess). The victim initiated interim proceedings in France against the driver and her insurer seeking the appointment of a judicial expert and a provisional payment order.

Various provisions of the French Code of Civil Procedure grant French courts the power to issue provisional payment orders (référé provision) where a claim cannot be “seriously disputed”. Such orders may be granted in interim proceedings for up to 100% of the claim. They are not final, and in theory the defendant may always reopen the issue in the proceedings on the merits. In practice, defendants often do not bother and provisional payment orders are never challenged.

The issue in this case was whether the French court had the power, and indeed the duty, to apply French choice of law rules and, as the case may be, assess whether the claim was undisputable be reference to the law governing the substantive rights.

The case was clearly concerned with a tort claim. In many Member states, the Rome II Regulation would have applied, but France is a party to the 1971 Hague Convention on the law applicable to traffic accidents. Pursuant to Article 28 of the Rome II Regulation, the Regulation does not affect the application of the 1971 Convention because it also applies in third states (Switzerland, Morocco, Ukraine, etc…).

The Hague Convention is of universal application, and it thus applied in French courts irrespective of the fact that the accident occurred in a third state, and designated the law of a third state. The choice of law rules of the Convention are pretty complex, and include a number of exceptions to the application of the law of the place of the accident, in particular where the car was matriculated, and the victim was outside the vehicle and resided, in the same country (art. 4), but that was not the case here. So Italian law likely applied as the law of the place of the accident (Article 3).

However, maybe because it had limited knowledge of private international law or, more likely, because it had no intention of applying Italian law, the court of appeal of Aix en Provence applied the Rome II Regulation and found that the exception clause in Article 4(3) allowed for the conclusion that French law was manifestely more connected to the tort.

The Cour de cassation did not even bother to comment on the application of the exception clause. It set aside the judgment of the court of appeal on the ground that it had applied the wrong choice of law rule, as it had failed to apply the Hague Convention.

Most importantly, it held that the court of appeal had the duty to apply the Hague Convention to determine the applicable law, “even in interim proceedings” (“même statuant en référé“).

Although the judgment of the Cour de cassation is concise, its meaning is clear.

It is not that foreign law might be applied to procedure or to determine which provisional measures might be available. This is governed by the law of the forum. So, the availability of the two provisional measures sought by the  victim was entirely governed by French law, and so were the requirements for granting them. French law provided that provisional payment orders could only be granted if the claim could not seriously be disputed.

Many provisional measures, however, aim at protecting and anticipating substantive rights. Freezing orders protect the payment of a claim. Under French law, a provisional payment order anticipates the payment of a claim. The issue was whether the existence of such claim should also be assessed in accordance with the law of the forum, or whether it should be assessed in accordance with the law governing the relevant claim. The Cour de cassation rightly holds that it should be in accordance with the law governing the relevant claim.

The judgment is right. There is no acceptable alternative to the application of the law governing the claim. If the law of the forum is applied, the resulting measures will protect imaginery rights. Another possibility would be to rule that, as foreign law cannot be applied in interim proceedings, the application should be dismissed where the law of the forum does not apply. For protective measures at least, this would border denial of justice. But this was the outcome of the 1996 judgment of the Cour de cassation where it was held that French courts did not have the power to apply choice of law rules to determine whether the creditor seeking a freezing order had a good arguable case, and the application denied.

Of course, time is typically of the essence in interim proceedings. The establishment of foreign law may then raise difficulties. But the establishment of facts raises the same difficulties. For certain proctective measures such as freezing orders, the answer is to lower the standard of proof. It is possible to do the exact same for establishing foreign law. German courts have so held in several cases: only the likelihood of the content of foreign law should be established at that stage.

For other provisional measures, the standard of proof is high, if not higher. This is the case for establishing that a claim cannot be seriously disputed under French civil procedure. But such measures are not urgent, and it would not be a denial of justice to deny the remedy and to await for the outcome of the proceedings on the merits.

The author of this post is Cecilia Rizcallah. She is visiting Professor at the Université Saint-Louis-Bruxelles and at the Université libre de Bruxelles, Postdoctoral Researcher at the National Fund for Scientific Research (F.R.S.-FNRS) and re:constitution fellow. As announced in a previous post, Cecilia is the author of a monograph on the principle of mutual trust in EU Law, based on her doctoral thesis. She has kindly accepted to provide us with a presentation of this key-principle of EU law with a special focus on EU judicial cooperation in civil matters.

The principle of mutual trust, whose fundamental importance is recognised by the European Court of Justice (hereafter “ECJ”), became a genuine “leitmotiv” of discourses on EU integration. This principle indeed underpins a large set of EU rules of primary and secondary law, in the fields of the internal market and the area of freedom, security and justice.

The principle of mutual trust appeared at an early stage of European integration, in the area of mutual recognition of diplomas and professional qualifications and in the field of free movement of goods. Being an attractive tool for integration by allowing the opening-up of the different national legal orders, it was subsequently called upon in the areas of European judicial cooperation in civil and criminal matters, as well as in the area of the common asylum policy. In spite of its success, this principle lacked conceptualization. The main objective of my research was to remedy this nebulous situation by providing a cross-cutting definition of the principle of mutual trust. It also analysed its role for EU integration as well as its relationship with EU founding values, which include the rule of law and human rights. The principle of mutual trust is indeed presented as being “based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the Union is founded, as stated in Article 2 TEU” (ECJ, Opinion 2/13, pt. 168). Yet, the EU currently faces a “crisis of values” resulting from the existence of serious violations of these values and, in particular, the rule of law and human rights, in an increasing number of Member States.

The in-depth study of the manifestations of the principle of mutual trust shows that it imposes to the Member States to presume – to a certain extent and in their direct horizontal relationships – the compatibility of different national “legal solutions”.  Indeed, the principle of mutual trust requires Member States – when it applies – to “trust” acts issued by other Member States, or legal practices or situations tolerated in their territory. This duty of trust prevents, as a matter of principle, the double control of these national legal solutions’ compliance with EU law. The principle of mutual trust has nevertheless no direct effect and has therefore to be implemented by primary or secondary law in order to be applicable. It constitutes one of the foundations of the principle of mutual recognition, which in turn imposes, more specifically, the recognition of a legal act issued by another Member State.

In the field of judicial cooperation in civil matters, the principle of mutual trust opposes the revision of a judgment issued by a – issuing – Member State for which the recognition is sought in another – executing – Member State. It therefore countenances the principle of mutual recognition imposed by a number of instruments in civil and commercial matters, matrimonial matters and matters of parental responsibility and insolvency. A judgment deciding on the custody of a Franco-German couple’s child handed down in Berlin will thus be able to take effect almost without formalities in Paris, despite the specificities distinguishing German and French family law. The judgments issued by the Member States should be presumed as being “equivalent” and as complying with the requirements of Union law, particularly in terms of fundamental rights.

As a matter of fact, the principle of mutual trust plays an essential role for EU integration. It indeed lies at the crossroads of three essential imperatives of the European construct: unity, diversity and equality between Member States. Despite the safeguarding of national substantive and procedural diversities, the borders between the Member States are fictitiously blurred so that – in broad terms – the legal solution of State A does not encounter any obstacles to penetrate the legal order of State B. The judgment issued by the authorities of a Member State A will indeed be able to take effect, without any formalities such as an exequatur, in the Member State B. In this way, the principle of mutual trust makes it possible to unify the national legal orders, which remain distinct and equal.

Although it plays an essential role for EU integration, this principle generates important risks because of the lack of mutual control of legal solutions presumed to be compatible. It may indeed lead to the spread of unsatisfactory legal solutions – infringing EU law – within the European area without internal borders. These risks are of course amplified because of the existence of the “crisis of values”. The major challenges faced by the Union and the Member States in economic, security and migration matters have indeed revealed deep divisions as to the meaning of European integration and the values on which it is based. These divisions have gone so far as to lead to the existence of widespread and persistent failures which, in the opinion of the majority of observers, are causing a rule of law backsliding in a few Member States. This situation increases the likelihood that national legal solutions are incompatible with democratic values and the rule of law. A judgement issued by a judge who is no longer independent could indeed, by vertu of mutual trust, spread its effects in the other Member States.

Exceptions have nevertheless been recognized to the principle of mutual trust in order to limit the risks of violation of EU founding values it entails. These exceptions must however be construed narrowly according to the ECJ, because of the principle mutual trust. Indeed, according to the Court, it is only in “exceptional circumstances” that this principle may be set aside (ECJ, Opinion 2/13, pt. 191).

The ECJ, for example precluded, with regards to the Brussels II bis regulation, the review, by an executing authority, of a decision requiring the return of a child issued on the basis of Article 42 of this regulation. In the Zarraga case, it held that the authorities of the executing Member State were not entitled to verify whether the court which issued the judgment requiring the return of the child had respected the child’s right to be heard, as provided for by the Regulation, since the principle of mutual trust requires the national authorities to consider “that their respective national legal systems are capable of providing an equivalent and effective protection of fundamental rights, recognised at European Union level, in particular, in the Charter of Fundamental Rights” (pt. 70). The Court of Justice justified this approach on the grounds that the regulation did not foresee any exceptions to this kind of decision and, also, that the child’s right to be heard is not absolute and that the national authorities are granted a margin of discretion regarding its application (pt. 66).

Exceptions to the principle of mutual trust have nevertheless been established, when more serious risks of violation of fundamental rights were at stake, in the context of the application of the Brussels I bis Regulation, which concerns the recognition and enforcement of judgments in civil and commercial matters and which establishes a general exception to mutual recognition based on public policy. This exception must however, still because of the principle of mutual trust, be construed narrowly. In the Krombach case, the Court of Justice nevertheless held that mutual recognition may be refused when the defendant has suffered “a manifest breach of his right to defend himself before the court of origin”. A similar conclusion was made in the Trade Agency case, where the Court of Justice stressed that the public policy clause could only be relied upon when the defendant’s right to a fair trial is “manifestly” breached, leading to the “impossibility of bringing an appropriate and effective appeal” against the judgement in the issuing state.

The study of all the exceptions surrounding the principle of mutual trust led to the conclusion that if not all violations of fundamental rights justify setting aside mutual trust, the ones threatening absolute fundamental rights (such as the prohibition of inhuman and degrading treatment) or the essential content of other fundamental rights, in the sense of Article 52(1) of the Charter do. Indeed, only the most serious violations of fundamental freedoms seem to exclude the application of the principle of mutual trust.

This observation is based on the case-law in private international law (above) which refers to the concept of “manifest breach”, but also in the field of criminal cooperation and asylum where the Court found that a risk of infringement of Article 4 of the Charter prohibiting inhuman and degrading treatments excluded mutual trust.

Yet, if the integration aims pursued by the principle of mutual trust are legitimate, one can nevertheless wonder how to justify that this principle continues to apply even in presence of risks of “simple” infringements of fundamental freedoms, especially since this principle is supposed to be based on the respect of these rights by all the member states. The implementation of the principle of mutual trust can therefore in itself weaken its proper foundations.

 Observing the unsatisfactory character of the limitation scheme surrounding the principle of mutual trust, this research ended by proposing ways of improving its operation so that the founding values of the Union are better protected. More specifically, we call on those involved in mutual trust to transform the principle of mutual trust from a postulate into a method. In other words, we propose to move away from the postulate of trust in favour of a methodical application of trust.

This method, which is based on risk management tools notably developed by the Society for Risk Analysis, is divided into two phases.

The first is aimed at EU institutions that implement, in an abstract way, mutual trust in standards with a general scope: when they adopt an EU legislation implementing this principle, it seems desirable to us that they carry out a risk analysis and that they adapt the exceptions enshrined in this instrument accordingly. To this end, several steps are proposed, which differ according to the type of value exposed by the envisaged legislation, the type and seriousness of the damage incurred, and the possible vulnerability of the resources concerned. For example, when fundamental rights are threatened by the instrument underpinned by the principle of mutual trust – such as the best interest of the child in the framework of the Brussels II bis regulation – we consider that a margin of appreciation should be reserved to national authorities implementing the instrument on a case-by-case basis.

The second phase is aimed at the actors who actually implement these general instruments in specific cases (judges, administrations, etc.). Here too, guidelines that could guide these actors in this task are developed, always with a view to increasing the protection of the fundamental rights of individuals. The method deals in particular with the question of the adjustment of the burden of proof, an issue that is of particular importance in litigation, especially when it comes to protecting fundamental rights. In this sense, if the existence of risks of serious violations of fundamental rights is alleged and demonstrated prima facie, we recommend a shift of the burden of the proof so that it would be up to the authority that wants to take advantage of the principle of mutual trust to demonstrate the non-existence of this risk. This proposition is largely inspired by the adjustment of the burden of the proof in non-discriminatory law (see, for example, art. 10 of Directive 2000/78)

As a complement to this method, various “risk management tools” are also explored, making it possible to reduce those that threaten human rights in the context of the implementation of mutual trust. These tools include minimum harmonization, the strengthening of procedural guarantees surrounding the principle of mutual trust, the establishment of solidarity mechanisms between the Member States, …

Evidently, this method does not claim to solve all the difficulties arising from the principle of mutual trust. On the contrary: it aims at opening the discussion on the basis of a systematic identification of the risks induced by this principle, and to inspire the stakeholders with a few best practices.