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Pourvoi c/ cour d'appel de Toulouse, 20 février 2020

Cour d'appel d'Aix-en-Provence, 26 aout 2020

Tribunal judiciaire de Bordeaux, 27 août 2020

Tribunal de police de Rouen, 1er septembre 2020

Pourvoi c/ Cour d'appel de Fort de France, 30 avril 2020

Pourvoi c/ Cour d'appel d'Aix en Provence, 3 juillet 2020

Cour d'appel d'Aix en Provence, 31 août 2020

Pourvoi c/ Cour d'appel de Nîmes, 6 février 2020

Pourvoi c/ Cour d'appel de Lyon, 23 juillet 2020

The author of this post is Carlos Santaló Goris, research fellow at the MPI Luxembourg and PhD candidate at the University of Luxembourg.

On 3 August 2020, a Polish notary referred a request for a preliminary ruling to the Court of Justice of the European Union (“CJEU”).

The facts are simple: a Ukrainian citizen living in Poland asked a Polish notary to draft her will. She wanted Ukrainian law to apply to the succession. The notary refused, arguing that the law applicable to the succession cannot be chosen under the 1992 Ukrainian-Polish bilateral treaty on civil and criminal matters.

The applicant complained against the refusal; she claimed that the Succession Regulation, which allows the de cujus to choose the law of her nationality to rule the succession (Article 22), should apply instead. According to Polish law, the complaint procedure is to be brought before a notary.

The CJEU is asked to interpret the Succession Regulation, as follows:

1. Must Article 22 of [the Succession Regulation] also be interpreted as meaning that a person who is not a citizen of the Union is also entitled to choose his maternal law as the law applicable to the succession as a whole?
2. Is Article 75 in conjunction with Article 22 of [the Succession Regulation] to be interpreted as meaning that, where a bilateral convention binding a Member State to a non-member country does not govern the choice of law on succession but designates the law applicable in matters of succession, a national of that non-member country who resides in a Member State bound by that bilateral agreement may choose the law?
3. In particular: must a bilateral agreement with a non-member State expressly preclude the choice of a particular law, and not only the status of succession by means of objective criteria, in order for its provisions to prevail over Article 22 of [the Succession Regulation]? does the freedom to choose the succession law and to standardize the applicable law by choosing the law — at least to the extent defined by the EU legislature in Article 22 of [the Succession Regulation] — fall within the principles underlying judicial cooperation in civil and commercial matters within the European Union and cannot be affected even in the event of the application of bilateral conventions with third countries which prevail over Regulation No 650/2012?

In my view, the CJEU will not struggle to provide an answer to the first question of the request. The Succession Regulation applies to the wills drafted by authorities of the Member States; Article 20 declares its “universal application”; Article 22 does not make any difference between “States” and “Member State”; like EU nationals, third-State citizens can choose their national law.

The second question is trickier. It starts with the interpretation of the last sentence of Article 75(1) of the Regulation (“this Regulation shall not affect the application of international conventions to which one or more Member States are party at the time of adoption of this Regulation and which concern matters covered by this Regulation”). Since the bilateral convention has no provision on the choice of law in relation to successions, it could be argued that this particular aspect is not foreseen, hence the Succession Regulation applies.

However, the convention does rule on the law applicable to movable and immovable estate, just like the Regulation, and therefore it should prevail. Should this be the case, the second part of the question would come into play. The CJEU is asked here to produce a declaration on values, likely to end up with the need to strike a balance – or not, for there is no doubt the negotiators knew about the contents of the conventions Article 75 intends to preserve, and about the fact that choice of law is not a widely accepted rule in succession matters. Should the principle of choice of law always prevail, Article 75 would be deprived of much of its sense.

Rather than the actual questions of the preliminary reference, what is more intriguing is whether Polish notaries deciding on complaints against the refusal to carry out a notarial act can address themselves directly to the CJEU via the preliminary reference. According to Article 267 of the TFEU, only courts can make preliminary references. In C-658/17, W.B., the CJEU determined that Polish notaries issuing a certificate of succession are not “courts” for the purpose of the Succession Regulation. Nonetheless, whether a notary reviewing a decision taken by another notary fits with the Article 267 of the TFEU is something different.

With a view to provide an autonomous notion, the CJEU has elaborated a list of prerequisites a domestic authority needs to comply with to be considered a court under Article 267: the body under examination must have been established by law, be permanent, have compulsory jurisdiction, adjudicate in an inter partes procedure, apply the rules of law, and be independent (C-54/96, Dorsch Consult, para. 23).

The analysis of the admissibility of the preliminary reference, focused on whether a notary fulfils the conditions just mentioned, will surely be the first step of the CJEU in the case at hand. In this regard, it is worth mentioning that the Polish Supreme Court and the Polish Constitutional Court have already explored whether, under Polish law, notaries acting in complaint procedures like the one at stake have the status of courts, and concluded that they may be considered first instance courts, performing ancillary functions of the administration of justice.

At any rate, the CJEU is not bound by the determinations of the national courts. It will decide on the basis of its own findings. And it will do so at a moment when the whole Polish judicial system is under suspicion (see C 354/20 PPU, and soon, C-412/20 PPU,  both widely reported in the press), and the future of judicial cooperation, also in civil matters, is an issue of legitimate concern.

L’Italie a violé l’article 14 de la Convention européenne des droits de l’homme en refusant à une élève autiste une aide spécialisée en raison d’un manque de ressources financières, sans chercher à ménager un juste équilibre entre les besoins éducatifs et la capacité de l’administration à y répondre.

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by Tobias Lutzi, University of Cologne

Since the sad news of her passing, lawyers all around the world have mourned the loss of one of the most iconic and influential members of the legal profession and a true champion of gender equality. Through her work as a scholar and a justice, just as much as through her personal struggles and achievements, Ruth Bader Ginsburg has inspired generations of lawyers.

On top of being a global icon of women’s rights and a highly influential voice on a wide range of issues, Ginsburg has also expressed her views on questions relating to the interaction between different legal systems, both within the US and internationally, on several occasions. In fact, two of her early law-review articles focus entirely on two perennial problems of private international law.

Accordingly, readers of this blog may enjoy to go through some of her writings in this area, both judicial and extra-judicial, in an attempt to pay tribute to her work.

Jurisdiction

In one of Ginsburg’s earliest publications, The Competent Court in Private International Law: Some Observations on Current Views in the United States (20 (1965) Rutgers Law Review 89), she retraces the approach to the adjudication of persons outside the forum state in US law by reference to both the common law and continental European approaches. She argues that

[t]he law in the United States has […] moved closer to the continental approach to the extent that a relationship between the defendant or the particular litigation and the forum, rather than personal service, may function as the basis of the court’s adjudicatory authority.

Ginsburg points out, though, that each approach includes ‘exorbitant’ bases of judicial competence, which ‘provide for adjudication resulting in a personal judgment in cases in which there may be no connection of substance between the litigation and the forum state.’

Bases of judicial competence found in the internal laws of certain continental states, but generally considered undesirable in the international sphere, include competence founded exclusively on the nationality of the plaintiff – for example, Article 14 of the French Civil Code – and competence (to render a personal judgment) based on the mere presence of an asset of the defendant when the claim has no connection with that asset-a basis found in the procedural codes of Germany, Austria, and the Scandinavian countries. Equally undesirable in the view of continental jurists is the traditional Anglo-American rule that personal service within the territory of the forum confers adjudicatory authority upon a court even in the case of a defendant having no contact with the forum other than transience

The ‘most promising currently feasible remedy’ for improper use of these ‘internationally undesirable’ bases of jurisdiction, she argues, is the doctrine of forum non conveniens.

At the least, a plaintiff who chooses such a forum should be required to show some reasonable justification for his institution of the action in the forum state rather than in a state with which the defendant or the res, act or event in suit is more significantly connected.

Applicable Law

As a Supreme Court justice, Ginsburg also had numerous opportunities to rule on conflicts between federal and state law.

In Honda Motor Co v Oberg (512 U.S. 415 (1994)), for instance, Ginsburg dissented from the Court’s decision that an amendment to the Oregon Constitution that prevented review of a punitive-damage award violated the Due Process Clause of the federal Constitution, referring to other protections against excessive punitive-damage awards in Oregon law. In BMW of North America, Inc v Gore (517 US 559 (1996)), she dissented from another decision reviewing an allegedly excessive punitive-damages award and argued that the Court should ‘resist unnecessary intrusion into an area dominantly of state concern.’

According to Paul Schiff Berman (who provided a much more complete account of Ginsburg’s relevant writings than this post can offer in Ruth Bader Ginsburg and the Interaction of Legal Systems (in Dodson (ed), The Legacy of Ruth Bader Ginsburg (CUP 2015) 151)), her ‘willingness to defer to state prerogatives in interpreting state law […] may surprise those who focus on Justice Ginsburg’s Fourteenth Amendment jurisprudence in gender-related cases.’

The same deference can also be found in some of her writings on the interplay between US law and other legal systems, though. In a speech to the International Academy of Comparative Law, she argued in favour of taking foreign and international experiences into account when interpreting US law and concluded:

Recognizing that forecasts are risky, I nonetheless believe the US Supreme Court will continue to accord “a decent Respect to the Opinions of [Human]kind” as a matter of comity and in a spirit of humility. Comity, because projects vital to our well being […] require trust and cooperation of nations the world over. And humility because, in Justice O’Connor’s words: “Other legal systems continue to innovate, to experiment, and to find . . . solutions to the new legal problems that arise each day, [solutions] from which we can learn and benefit.”

Recognition of Judgments

Going back to another one of Ginsburg’s early publications, in Judgments in Search of Full Faith and Credit: The Last-in-Time Rule for Conflicting Judgments (82 (1969) Harvard Law Review 798), Ginsburg discussed the problem of the hierarchy between conflicting judgments from different states and made a case for ‘the unifying function of the full faith and credit clause’. As to whether anti-suit injunctions should also the clause, she expressed a more nuanced view, though, explaining that

[t]he current state of the law, permitting the injunction to issue but not compelling any deference outside the rendering state, may be the most reasonable compromise […].

The thesis of this article, that the national full faith and credit policy should override the local interest of the enjoining state, would leave to the injunction a limited office. It would operate simply to notify the state in which litigation has been instituted of the enjoining state’s appraisal of forum conveniens. That appraisal, if sound, might induce respect for the injunction as a matter of comity.

Ginsburg had an opportunity to revisit a similar question about thirty years later, when delivering the opinion of the Court in Baker v General Motor Corp (522 US 222 (1998)). Although the Full Faith and Credit Clause was not subject to a public-policy exception (as held by the District Court), an injunction stipulated in settlement of a case in front of a Michigan court could not prevent a Missouri court from hearing a witness in completely unrelated proceedings:

Michigan lacks authority to control courts elsewhere by precluding them, in actions brought by strangers to the Michigan litigation, from determining for themselves what witnesses are competent to testify and what evidence is relevant and admissible in their search for the truth.

This conclusion creates no general exception to the full faith and credit command, and surely does not permit a State to refuse to honor a sister state judgment based on the forum’s choice of law or policy preferences. Rather, we simply recognize that, just as the mechanisms for enforcing a judgment do not travel with the judgment itself for purposes of Full Faith and Credit […] and just as one State’s judgment cannot automatically transfer title to land in another State […] similarly the Michigan decree cannot determine evidentiary issues in a lawsuit brought by parties who were not subject to the jurisdiction of the Michigan court.

According to Berman, this line of reasoning is testimony to Ginsburg’s judicial vision of ‘a system in which courts respect each other’s authority and judgments.’

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The above selection has been created rather spontaneously and is evidently far from complete; please feel free to use the comment section to highlight other interesting parts of Justice Ginsburg’s work.

An online event titled Coordinating Brussels Ia with other Instruments of EU Law: A Roundtable on Theoretical and Practical Issues will take place on 24 September 2020, at 3 pm (CET).

The purpose of the event, organised by the Universities of Genoa, Nice, Valencia, and Tirana, is to present the first results of the investigation conducted under the EU co-funded research project En2Bria – Enhancing Enforcement under Brussels Ia, which aims to shed light on the terms whereby the relationship between the Brussels I bis Regulation and other EU law instruments is to be handled.

The conference will be chaired by Chiara E. Tuo (Univ. Genoa). Speakers include Jean-Sylvestre Bergé (Univ. Nice), Guillermo Palao Moreno (Univ. Valencia), Giulio Cesare Giorgini (Univ. Nice), Rosario Espinosa Calabuig (Univ. Valencia), Rosa Lapiedra Alcami (Univ. Valencia), Isabel Reig Fabado (Univ. Valencia), and Stefano Dominelli (Univ. Genoa).

See here for further information.

Those interested in attending the conference are invited to write an e-mail to Stefano Dominelli at stefano.dominelli@unige.it.

Last week, AG Saugsmandsgaard Øe rendered his Opinion on Case C-59/19 Wikingerhof, which we first reported in this post by Krzysztof Pacula. The following post has been written by Michiel Poesen, PhD Candidate at KU Leuven, who has been so kind as to share with us some further thoughts on the underlying problem of characterisation.

Characterisation is not just a bee that has been buzzing in conflicts scholars’ bonnets, as Forsyth observed in his 1998 LQR article. Given its central role in how we have been thinking about conflicts for over a century, it has pride of place in jurisprudence and literature. The Wikingerhof v Booking.com case (C?59/19) is the latest addition to a long string of European cases concerning the characterisation of actions as ‘matters relating to a contract’ under Article 7(1) of the Brussels Ia Regulation n° 1215/2012.

Earlier this week, Krzysztof Pacula surveyed Advocate General Saugsmandsgaard Øe’s opinion in the Wikingerhof case on this blog (Geert Van Calster also wrote about the opinion on his blog). Readers can rely on their excellent analyses of the facts and the AG’s legal analysis. This post has a different focus, though. The Wikingerhof case is indicative of a broader struggle with characterising claims that are in the grey area surrounding a contract. In this post, I would like to map briefly the meandering approaches to characterisation under the contract jurisdiction. Then I would like to sketch a conceptual framework that captures the key elements of characterisation.

1. Not All ‘Matters Relating to a Contract’ Are Created Equal

There are around 30 CJEU decisions concerning the phrase ‘matters relating to a contract’. Three tests for characterisation are discernible in those decisions. In the first approach, characterisation depends on the nature of the legal basis relied on by the claimant. If a claim is based on an obligation freely assumed, then the claim is a matter relating to a contract to which the contract jurisdiction applies. Statutory, fiduciary, or tortious obligations arising due to the conclusion of a contract are also contractual obligations for private international law purposes. I will call this approach the ‘cause of action test’, because it centres on the nature of the cause of action pleaded by the claimant. In recent decisions, for example, the cause of action test has been used to characterise claims between third parties as contractual matters (C-337/17 Feniks, blogged here; C-772/17 Reitbauer, blogged here; joined cases C-274/16, C-447/16 and C-448/16 flightright).

The second approach to characterisation is to focus on the relationship between the litigants. From this standpoint, only claims between litigants who are bound by a contract can be characterised as ‘matters relating to a contract’. This approach has for example been used in the Handte and Réunion européenne decisions. We will call it the ‘privity test’. Sometimes scholars relied on this test to argue that all claims between contracting parties are to be characterised as matters relating to a contract.

The third and final approach emphasises the nature of the facts underlying the claim brought by the claimant. This approach was first developed in the Brogsitter decision (C?548/12). However, it is predated by AG Jacob’s opinions in the Kalfelis (C-189/87) and Shearson Lehmann Hutton (C-89/91) cases (which since have been eagerly picked up by the Bundesgerichtshof of Germany). The Brogsitter decision provided that a claim is a contractual matter if the defendant’s allegedly wrongful behaviour can reasonably be regarded to be a breach of contract, which will be the case if the interpretation of the contract is indispensable to judge. I will dub this approach the ‘factual breach test’, since it directs attention to factual elements such as the defendant’s behaviour and the indispensability to interpret the contract. It is plain to see that this is by far the most complicated of the three approaches to characterisation we discussed here (among other things because of the unclear relation between the different layers of which the test is composed, an issue that AG Saugsmandsgaard Øe entertained in Wikingerhof, [69]–[70], and C-603/17 Bosworth v Arcadia).

The use in practice and literature of the three approaches laid out above demonstrates a tale of casuistry. Similar claims have been subjected to different approaches, and approaches developed in a specific setting have been applied to entirely different contexts. For example, a few CJEU decisions characterised claims between litigants who are not privy to consensual obligations as non-contractual in nature under the privity test. Other decisions characterised such claims as contractual in nature, applying the cause of action test. A similar dichotomy underlies the characterisation of claims between contracting parties. Initially, the CJEU jurisprudence applied the cause of action test, focussing on the nature of the legal basis relied on (see C-9/87 Arcado v Haviland). Later, the Brogsitter decision adopted the factual breach test, which shifted the focus to the nature of the facts underlying the claim.

It is difficult to understand why these divergences have occurred. How can they be explained?

2. The Theories Underlying Characterisation

A good way to start is to conceptualise characterisation further along the lines of this scheme:

Seen from the perspective of this scheme, the previous section described three ‘tests for characterisation’. A ‘test for characterisation’ refers to the interpretational exercise that lays down the conditions under which a claim can be characterised as a matter relating to a contract. Each test elevates different elements of a ‘claim’ as relevant for the purpose of characterisation and disregards others. Those elements are the identity of the litigants, the claim’s legal basis, or the dispute underlying the claim. As such, it concretises an idea about the broader purpose the contract jurisdiction should serve, which is called a ‘theory’. The divergences among the tests for characterisation outlined above is explained by the reliance on different theories.

The AG’s considerations about Brogsitter in the Wikingerhof opinion illustrate the scheme. The AG observed that the factual breach test is informed by what I will dub the ‘natural forum theory’. According to that theory, the contract jurisdiction offers the most appropriate and hence natural forum for all claims that are remotely linked to a contract (for the sake of proximity and avoiding multiple jurisdictional openings over claims relating to the same contract). This theory explains why the factual breach test provides such a broad, hypothetical test for characterisation that captures all claims that could have been pleaded as a breach of contract. Opining against the use of the factual breach test and underlying natural forum theory, the AG suggested that the cause of action test be applied. He then integrated the indispensability to interpret the contract (originally a part of the factual breach test) into the cause of action test as a tool for determining whether a claim is based on contract ([90] et seq). Essentially, his approach was informed by what I will call the ‘ring-fencing theory’. In contrast to the natural forum theory, this theory presumes that the contract jurisdiction should be delineated strictly for two reasons. First, the contract jurisdiction is a special jurisdiction regime that cannot fulfil a broad role as a natural forum contractus ([84]–[85]). Second, a strict delineation promotes legal certainty and efficiency, since it does not require judges to engage in a broad, hypothetical analysis to determine whether a claim is contractual or not ([76]–[77]). The scheme was applied succinctly here, but the analysis could be fleshed out for example by integrating the role of the parallelism between the Brussels Ia and Rome I/II Regulations.

The scheme can be used to understand and evaluate the CJEU’s eventual judgment in Wikingerhof. I hope that the decision will be a treasure trove that furthers our understanding of the mechanics of characterisation in EU private international law.

Filiation

Iprolex has published a Festschrift (in Spanish) in honor of José María Espinar Vicente, entitled “Private International Law Between Tradition and Innovation.” An announcement (in Spanish) is here; the detailed table of contents is here.