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The first post of the EAPIL blog was published one year ago, on 25 November 2019. More than 300 posts have followed since, written by the blog’s editors and by no less than twenty guests.

We are trying to make the blog richer in contents, and improve its visibility.

Various private international law specialists across Europe and beyond have offered to prepare guest posts for publication in the coming days or weeks. We are eager to read their contributions and share them with our readers.

In the meanwhile, we are working to make the blog – and the Association, generally – more active on social media.

Marco Pasqua, an Associate Member of the Association, with a special interest in collective redress and the liability of corporate groups for violation of EU competition law, has kindly accepted to serve as the Association’s social media manager. Thanks a lot, Marco!

So, join us also on Twitter (@eapilorg) and Linkedin!

Planning to become a member of EAPIL, and join the 255 scholars and practitioners who have already done so? We are glad to provide you with one more reason to submit your application before the end of the year!

While, as a general rule, fees are due for each calendar year, those applying for membership in December 2020 will not be required to pay any fees for 2020. The first fees due by such new members will be the fees due for 2021.

See here for information on the benefits you would be entitled to as a member, as well as on the types of membership offered and the admission process.

Once you are ready to apply for membership, just fill in the form you find here!

Hier soir, la commission des lois de l’Assemblée a adopté le projet sur le parquet européen. Un texte qui brasse de nombreux champs de la justice pénale et civile. Ce projet de loi était une occasion rare pour que débouchent plusieurs réformes voulues par Éric Dupond-Moretti. Si des amendements importants ont été adoptés sur des sujets variés, le ministre a souvent temporisé.

en lire plus

The 2020 Annual Conference of the French Association for European Studies (AFEE) will focus on Family within the Legal Order of the European Union, based on a collective research led by academics and practitioners from different EU countries, which resulted in a book edited by Elsa Bernard (University of Lille), Marie Cresp (University of Bordeaux) and Marion Ho-Dac (University of Valenciennes), to be published soon by Bruylant.

This year’s conference will take place on 11 December 2020, in the form of a Zoom webinar, from 11.45 to 14.30 MET, with the participation of the book’s authors and other speakers. It will be preceded, starting on 7 December 2020, by the posting of a series of short videos devoted to the contributions in the book.

Attendance is free, but those interesting in attending are required to register by 9 December 2020, by sending and e-mail to aline.dherbet@univ-lille.fr.

Family law, with its civil law tradition, and strong roots in the national cultures of the Member States, does not normally fall within the scope of European law. However, it is no longer possible to argue that family law is outside European law entirely. There are many aspects of the family which are subject to European influence, to the point that the outlines of a «European family» are starting to emerge. This book is intended to highlight the European experience of family law as well as its substantive (i.e. European citizenship, EU social policy, EU civil service…) and private international law aspects. Union law therefore contains a form of «special» family law which is shared between the Member States and supplements their national family laws. Its theoretical and political importance in the Union, as well as its future, are discussed by the authors. Far from remaining fragmented alongside the national laws of Member States, it will likely develop to offer European citizens and residents a common family law within the EU.

Contributors include: Katharina Boele-Woelki, Marlene Brosch, Christelle Chalas, Kiteri Garcia, Susanne Lilian Gössl, Loïc Grard, Víctor Luis Gutiérrez Castillo, Anastasia Iliopoulou-Penot, Beata Jurik, Hester Kroeze, Laure Lévi, Cristina M. Mariottini, Martina Melcher, Benjamin Moron-Puech, Marion Nadaud, Nicolas Nord, Cyril Nourissat, Ludovic Pailler, Nausica Palazzo, Amélie Panet-Marre, Etienne Pataut, Delphine Porcheron, Isabelle Rein Lescastereyeres, Sophie Robin-Olivier, Mathieu Rouy, Sandrine Sana Chaillé de Néré, Solange Ségala, Gaëlle Widiez et Geoffrey Willems.

Guillaume Payan (University of Toulon, France) is the editor of a new book offering commentaries of the most important of the judgments delivered by the Court of Justice of the European Union in the field of European civil procedure (Espace judiciaire européen – Arrêts de la CJUE et commentaires).

The author has provided the following abstract:

For twenty years, European directives and regulations have been multiplied in the field of the European judicial area in civil matters (Treaty on the Functioning of the European Union, art. 81). Their implementation in the various member states of the European Union is the source of significant litigation. In order to settle the disputes submitted to them, national Courts frequently request the Court of Justice of the European Union, submitting a request for a preliminary ruling on interpretation.

Knowledge of preliminary ruling is essential for a good understanding of European Union legislation, it being understood that the terms used therein are interpreted independently, by referring mainly to the objectives and scheme of European regulation and directive concerned, in order to ensure the uniform application.

The book “European civil judicial area: judgments of CJEU and comments” contains analyzes of more than 300 judgments of the Court of Justice.

In this book, the judgments of the Court of Justice of the European Union – and the older ones of the Court of Justice of the European Communities – are not arranged in chronological order, as is traditionally the case. However, their presentation follows the structure of the directives and regulations adopted in the field of the European Civil Judicial Area.

However, in the same case, the Court of Justice may have to interpret several provisions appearing in the same European legislative instrument or in separate European legislative instruments. As a result, some judgments appear at different places in the book. In such a case, each analysis is focused on a precise aspect of the solution adopted and references are made to the other comments relating to these judgments.

This choice pursues the objective of facilitating the identification of the correct meaning of the concepts which punctuate the European Union legislation developed in the field of judicial cooperation in civil matters. In the same perspective, in each analysis, the extracts from the judgments – and the conclusions of the Advocates General relating to them – appear in italics. In addition, the comments are preceded by the reproduction of the relevant extract from the judgment studied. This extract corresponds to all or part of its ruling. In addition, the list of judgments analyzed is reproduced at the end of the book in an alphabetical table of case law.

This work was written under the direction of Guillaume Payan (University of Toulon, France) and includes a foreword of Professor Hélène Gaudemet-Tallon. The contributors to the books are I. Barrière-Brousse, J. Bauchy, A. Berthe, V. Egéa, E. Guinchard, L.-C. Henry, M. Ho-Dac, F. Jault-Seseke, N. Joubert, M.-C. Lasserre, F. Mailhé, S. Menetrey, P. Nabet, P. Oudot, G. Payan, F. Reille.

More details can be found here, including the table of contents of the book which is available here.

The CJEU held yesterday (Tuesday) in C-59/19 Wikingerhof v Booking.com. I reviewed the AG’s Opinion here. The case was held in Grand Chamber, which might have provoked expectations yet the judgment is not exactly a bang. Neither however can it be described a whimper. As I note in my review of the Opinion, the case in my view could have been held acte clair. The AG did take the opportunity in his Opinion to discuss many issues which the CJEU was bound not to entertain, at least not in as much detail as the AG did.

Let me first signal what I believe might be the biggest take-away of the litigation, if at least the referring court is followed. That is the Bundesgerichtshof’s finding that  there is no durable record of the alleged consent by Wikingerhof of the amended GTCs, including choice of court, effected via amendments on the ‘Extranet’, which is the portal via which the hotel may update its information and retrieve reservations. Booking.com claimed these amounted to a ‘form which accords with practices which the parties have established between themselves’ pursuant to Article 25(1)(b). Parties will still argue on the merits whether the initial consent to the primary GTCs was strong-armed because of booking.com’s dominant position.

With respect to to the jurisdictional issue, the CJEU in a succinct judgment firstly points to the need for restrictive interpretation. It points at 29 to the claimant being the trigger of A7(1) or (2). Without a claimant’s decision to base a claim on the Articles, they simply do not get to be engaged. That is a reference to the forum shopping discussion of the AG. Still, the court hearing the action must assess whether the specific conditions laid down by those provisions are  met.

At 32, with reference to Brogsitter, ‘an action concerns matters relating to a contract within the meaning of [A7(1)(a) BIa] if the interpretation of the contract between the defendant and the applicant appears indispensable to establish the lawful or, on the contrary, unlawful nature of the conduct complained of against the former by the latter’.  ‘That is in particular the case of an action based on the terms of a contract or on rules of law which are applicable by reason of that contract’ (reference to Holterman and to Kareda, with the latter itself referring to De Bloos). At 33  ‘By contrast, where the applicant relies, in its application, on rules of liability in tort, delict or quasi-delict, namely breach of an obligation imposed by law, and where it does not appear indispensable to examine the content of the contract concluded with the defendant in order to assess whether the conduct of which the latter is accused is lawful or unlawful, since that obligation applies to the defendant independently of that contract, the cause of the action is a matter relating to tort, delict or quasi-delict’.

At 32 therefore the CJEU would seem to confirm De Bloos’ awkward (given the Regulation’s attention to predictability) support for forum shopping based on claim formulation yet corrected by what is more akin to Sharpston AG’s approach in Ergo and the Court’s approach in Apple v eBizcuss, a judgment not referred in current judgment: namely that the judge will have to consider whether contractual interpretation is strictly necessary (the Court uses ‘indispensable’) to judge the case on the merits. Here, Wikingerhof rely on statutory German competition law (at 34-36): therefore the claim is one covered by Article 7(2).

The judgment confirms the now very fine thread between jurisdictional and merits review for the purposes of tort-based litigation between two contracting parties.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2, Heading 2.2.11.2.9. 3rd ed. 2021 para 2.469.

The EU “Parliament today endorsed a new law that will allow groups of consumers to join forces and launch collective action in the EU. […] All member states must put in place at least one effective procedural mechanism that allows qualified entities (e.g. consumer organisations or public bodies) to bring lawsuits to court for the purpose of injunction (ceasing or prohibiting) or redress (compensation). […]

More rights for consumers and safeguards for traders

The European class action model will allow only qualified entities, such as consumer organisations, to represent groups of consumers and bring lawsuits to court, instead of law firms.

In order to bring cross-border actions to court, qualified entities will have to comply with the same criteria across the EU. They will have to prove that they have a certain degree of stability and be able to demonstrate their public activity, and that they are a non-profit organisation. For domestic actions, entities will have to fulfil the criteria set out in national laws.

The rules also introduce strong safeguards against abusive lawsuits by using the “loser pays principle”, which ensures that the defeated party pays the costs of the proceedings of the successful party.

To further prevent representative actions from being misused, punitive damages should be avoided. Qualified entities should also establish procedures to avoid conflict of interest and external influence, namely if they are funded by a third party.

Collective actions can be brought against traders if they have allegedly violated EU law in a broad range of areas such as data protection, travel and tourism, financial services, energy and telecommunication.

Finally, the directive also covers infringements that have stopped before the representative action is brought or concluded, since the practice might still need to be banned to prevent it from recurring.

[…]

Next steps

The directive will enter into force 20 days following its publication in the Official Journal of the EU. Member states will then have 24 months to transpose the directive into their national laws, and an additional six months to apply it. The new rules will apply to representative actions brought on or after its date of application”.

Source: https://www.europarl.europa.eu/news/en/press-room/20201120IPR92116/

Earlier today, the Grand Chamber of the CJEU rendered its long-awaited decision in Case C-59/19 Wikingerhof. The case, which concerns the claim for an injunction brought by a German hotel against the online platform booking.com, goes back to the age-old question of where to draw the line between special jurisdiction for contract and tort under Article 7 Brussels Ia if the two parties are bound by a contract but the claim is not strictly-speaking based on it.

Arguably the Court’s most authorative statement on this question can be found in Case C-548/12 Brogsitter, where the Court held that a claim needed to be qualified as contractual if the parties are bound by a contract and ‘the conduct complained of may be considered a breach of [this] contract, which may be established by taking into account the purpose of the contract’ (para. 24). Some of the Court’s later decisions such as the one in Joined Cases C-274/16, C-447/16, and C- 448/16 flightright could however be seen as a (cautious) deviation from this test.

In Wikingerhof, the claimant sought an injunction against certain practices relating to the contract between the parties, which the claimant argued they had been forced to agree to due to the dominant market position of the defendant, which violated German competition law. According to AG Saugsmandsgaard Øe – whose Opinion has been discussed on this blog here and here – this claim had to be qualified as non-contractual as it was effectively based not on the contract, but on rules of competition law which did not require a taking into account of the contract in the sense seemingly required under Brogsitter.

In its relatively short judgment, the Court appears to agree with this assessment. Using the applicant’s choice of the relevant rule of special jurisdiction as the starting point (para. 29; which might be seen as a deviation from the purely objective characterisation attempted in Case 189/87 Kalfelis and Brogsitter), the Court held that

[33] … where the applicant relies, in its application, on rules of liability in tort, delict or quasi-delict, namely breach of an obligation imposed by law, and where it does not appear indispensable to examine the content of the contract concluded with the defendant in order to assess whether the conduct of which the latter is accused is lawful or unlawful, since that obligation applies to the defendant independently of that contract, the cause of the action is a matter relating to tort, delict or quasi-delict within the meaning of point 2 of Article 7 of Regulation No 1215/2012.

Despite repeated references to the decision in Brogsitter, the Court thus seems to move the focus away from whether ‘the conduct complained of may be considered a breach of contract’ towards what may be seen as a lower threshold of whether an examination of the content of the contract is ‘indispensable’. (Similar wording was admittedly also used in Brogsitter (paras. 25–26) but did not made it into the dispositif of the decision.) Applying this test to the case at hand, the Court explained that

[34] In the present case, Wikingerhof relies, in its application, on an infringement of German competition law, which lays down a general prohibition of abuse of a dominant position, independently of any contract or other voluntary commitment. Specifically, Wikingerhof takes the view that it had no choice but to conclude the contract at issue and to suffer the effect of subsequent amendments to Booking.com’s general terms and conditions by reason of the latter’s strong position on the relevant market, even though certain of Booking.com’s practices are unfair.

[35] Thus, the legal issue at the heart of the case in the main proceedings is whether Booking.com committed an abuse of a dominant position within the meaning of German competition law. As the Advocate General stated in points 122 and 123 of his Opinion, in order to determine whether the practices complained of against Booking.com are lawful or unlawful in the light of that law, it is not indispensable to interpret the contract between the parties to the main proceedings, such interpretation being necessary, at most, in order to establish that those practices actually occur.

[36] It must therefore be held that, subject to verification by the referring court, the action brought by Wikingerhof, in so far as it is based on the legal obligation to refrain from any abuse of a dominant position, is a matter relating to tort, delict or quasi-delict within the meaning of point 2 of Article 7 of Regulation No 1215/2012.

Considering the limited popularity of the Brogsitter judgment, today’s restatement of the test will presumably be welcomed by many scholars.

The Colloquium on Applicable Law in Insolvency Proceedings, organized by the UNCITRAL secretariat in cooperation with the Hague Conference on Private International Law, will be held online on 11 December 2020.

This Colloquium is organized with a view to exploring submitting concrete proposals for UNCITRAL’s possible future work on the topic of applicable law in insolvency proceedings for consideration by UNCITRAL at its fifty-fourth session in June 2021.

The tentative programme, information on how to register and additional information on the context of the Colloquium are available on the UNCITRAL website.

Guillaume Payan (University of Toulon, France) is the editor of a new book offering commentaries of the most important of the judgments delivered by the Court of Justice of the European Union in the field of European civil procedure (Espace judiciaire européen – Arrêts de la CJUE et commentaires).

The author has provided the following abstract:

For twenty years, European directives and regulations have been multiplied in the field of the European judicial area in civil matters (Treaty on the Functioning of the European Union, art. 81). Their implementation in the various member states of the European Union is the source of significant litigation. In order to settle the disputes submitted to them, national Courts frequently request the Court of Justice of the European Union, submitting a request for a preliminary ruling on interpretation.

Knowledge of preliminary ruling is essential for a good understanding of European Union legislation, it being understood that the terms used therein are interpreted independently, by referring mainly to the objectives and scheme of European regulation and directive concerned, in order to ensure the uniform application.

The book “European civil judicial area: judgments of CJEU and comments” contains analyzes of more than 300 judgments of the Court of Justice.

In this book, the judgments of the Court of Justice of the European Union – and the older ones of the Court of Justice of the European Communities – are not arranged in chronological order, as is traditionally the case. However, their presentation follows the structure of the directives and regulations adopted in the field of the European Civil Judicial Area.

However, in the same case, the Court of Justice may have to interpret several provisions appearing in the same European legislative instrument or in separate European legislative instruments. As a result, some judgments appear at different places in the book. In such a case, each analysis is focused on a precise aspect of the solution adopted and references are made to the other comments relating to these judgments.

This choice pursues the objective of facilitating the identification of the correct meaning of the concepts which punctuate the European Union legislation developed in the field of judicial cooperation in civil matters. In the same perspective, in each analysis, the extracts from the judgments – and the conclusions of the Advocates General relating to them – appear in italics. In addition, the comments are preceded by the reproduction of the relevant extract from the judgment studied. This extract corresponds to all or part of its ruling. In addition, the list of judgments analyzed is reproduced at the end of the book in an alphabetical table of case law.

This work was written under the direction of Guillaume Payan (University of Toulon, France) and includes a foreword of Professor Hélène Gaudemet-Tallon. The contributors to the books are I. Barrière-Brousse, J. Bauchy, A. Berthe, V. Egéa, E. Guinchard, L.-C. Henry, M. Ho-Dac, F. Jault-Seseke, N. Joubert, M.-C. Lasserre, F. Mailhé, S. Menetrey, P. Nabet, P. Oudot, G. Payan, F. Reille.

More details can be found here, including the table of contents of the book which is available here.

Révision et réexamen des décisions pénales

This report has been prepared by Carlos Santaló Goris, a researcher at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law, and Ph.D. candidate at the University of Luxembourg.

On 29-30 October 2020, ERA – the Academy of European Law – organized a conference on “Recent Developments in the European Law of Civil Procedure”, offering a comprehensive overview of civil procedural matters at the European and global level. The program proved very successful in conveying the status quo of, but also a prospective outlook on, the topics that currently characterise the debates on cross-border civil procedure, including the Brussels I-bis Regulation and 2019 HCCH Judgments Convention, the digitalisation of access to justice, the recent developments on cross-border service of documents and taking of evidence, and judicial cooperation in civil and commercial matters in the aftermath of Brexit.

For those who did not have the opportunity to attend this fruitful conference, this report offers a succinct overview of the topics and ideas exchanged over this two-day event.

Day 1: The Brussels I (Recast) and Beyond

The Brussels regime, its core notions and the recent contributions by the CJEU via its jurisprudence were the focus of the first panel. In this framework, Cristina M. Mariottini (Max Planck Institute Luxembourg) tackled the core notion of civil and commercial matters (Art. 1(1)) under the Brussels I-bis Regulation. Relying, in particular, on recent CJEU judgments, among which C-551/15, Pula Parking; C-308/17, Kuhn; C-186/19, Supreme Site Services, she reconstructed the functional test elaborated by the CJEU in this area of the law, shedding the light on the impact of recent developments in the jurisprudence of the Court, i.a., with respect to immunity claims raised by international organizations.

Marta Pertegás Sender (Maastricht University and University of Antwerp) proceeded then with a comprehensive overview of the choice-of-court agreement regimes under the Brussels I-bis Regulation and the 2005 Hague Convention on choice of court agreements. Relying, inter alia, on the CJEU case law on Article 25 of the Brussels I-bis Regulation (C-352/13, CDC Hydrogen; C-595/17, Apple Sales; C-803/18, Balta; C-500/18, AU v. Reliantco; C-59/19, Wikingerhof (pending)), she highlighted the theoretical and practical benefits of party autonomy in the field of civil and commercial matters.

The interface between the Brussels I-bis Regulation and arbitration, and the boundaries of the arbitration exclusion in the Regulation, were the focus of Patrick Thieffry (International Arbitrator; Member of the Paris and New York Bars) in his presentation. In doing so he analysed several seminal cases in that subject area (C-190/89, Marc Rich; C-391/95, Van Uden; C-185/07, West Tankers; C?536/13, Gazprom), exploring whether possible changes were brought about by the Brussels I-bis Regulation.

The evolution of the CJEU’s jurisprudence vis-à-vis the notions of contractual and non-contractual obligations were at the heart of the presentation delivered by Alexander Layton (Barrister, Twenty Essex; Visiting Professor at King’s College, London). As Mr Layton effectively illustrated, the CJEU’s jurisprudence in this field is characterized by two periods marking different interpretative patterns: while, until 2017, the CJEU tended to interpret the concept of contractual matters restrictively, holding that “all actions which seek to establish the liability of a defendant and which are not related to a contract” fall within the concept of tort (C-189/87, Kalfelis), the Court interpretation subsequently steered towards an increased flexibility in the concept of “matters relating to a contract” (C-249/16, Kareda; C-200/19, INA).

The principle of mutual trust of the European Area of Freedom, Security and Justice vis-à-vis the recent Polish judicial reform (and its consequential backlash on the rule of law) was the object of the presentation delivered by Agnieszka Fr?ckowiak-Adamska (University of Wroc?aw). Shedding the light on the complex status quo, which is characterized by several infringement actions initiated by the European Commission (C?192/18, Commission v Poland; C?619/18, Commission v Poland; C?791/19 R, Commission v Poland (provisional measures)) as well as CJEU case law (e.g. C?216/18 PPU, Minister for Justice and Equality v LM), Ms Fr?ckowiak-Adamska also expounded on the decentralised remedies that may be pursued by national courts in accordance with  the EU civil procedural instruments, among which public policy, where available, and refusal by national courts to qualify Polish judgments as  “judgments” pursuant to those instruments.

The second half of the first day was dedicated to the 2019 HCCH Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. In this context, it is of note that the EU, among others, has opened a Public Consultation into a possible accession to the Convention (see, esp., Thomas John’s posting announcing the EU’s public consultation). While Ning Zhao (Senior Legal Officer, HCCH) gave an overview of the travaux preparatoires of the 2019 HCCH Convention and of the main features of this instrument, Matthias Weller (University of Bonn) delved into the system for the global circulation of judgments implemented with the Convention, highlighting its traditional but also innovative features and its potential contributions, in particular to cross-border dealings.

The roundtable that followed offered the opportunity to further expound on the 2019 HCCH Judgments Convention. Namely, Norel Rosner (Legal and Policy Officer, Civil Justice, DG for Justice and Consumers, European Commission) explained that the EU has a positive position towards the Convention, notably because it facilitates the recognition and enforcement of EU judgments in third countries and because it will help create a more coherent system of recognition and enforcement in the EU Member States of judgments rendered in other (of course, non-EU) Contracting States. The roundtable also examined the features and objectives of Article 29, which puts forth an “opt-out” mechanism that allows Contracting States to mutually exclude treaty obligations with those Contracting States with which they are reluctant to entertain the relations that would otherwise arise from the Convention. As Ms Mariottini observed, this provision – which combines established and unique characters compared to the systems put forth under the previous HCCH Conventions – contributes to defining the “territorial geometry” of the Convention: it enshrines a mechanism that counterbalances the unrestricted openness that would otherwise stem from the universality of the Convention, and is a valuable means to increase the likelihood of adherence to the Convention. Matthias Weller proceeded then to explore the consequences of limiting a Contracting State’s objection window to 12 months from adherence to the Convention by the other Contracting State and raised the case of a Contracting State whose circumstances change so dramatically, beyond the 12-month window, that it is no longer possible to assure judicial independence of its judiciary. In his view, solutions as the ones proposed by Ms Fr?ckowiak-Adamska for the EU civil procedural instruments may also apply in such circumstances.

Day 2: European Civil Procedure 4.0.

Georg Haibach (Legal and Policy Officer, Civil Justice, DG for Justice and Consumers, European Commission), opened the second day of the conference with a detailed presentation on the ongoing recast of the Service Regulation (Regulation (EC) No 1393/2007). Emphasizing that the main objective of this reform focuses on digitalization – including the fact that the proposed recast prioritises the electronic transmission of documents – Mr Haibach also shed the light on other notable innovations, such as the possibility of investigating the defendant’s address.

The Evidence Regulation (Council Regulation No. 1206/2001), which is also in the process of being reformed, was at the core of the presentation delivered by Pavel Simon (Judge at the Supreme Court of the Czech Republic, Brno) who focuses not only on the status quo of the Regulation as interpreted by the CJEU (C-283/09, Wery?ski; C-332/11, ProRail; C-170/11, Lippens), but also tackled the current proposals for a reform: while such proposals do not appear to bring major substantive changes to the Regulation, they do suggest technological improvements, for instance favouring the use of videoconference.

In her presentation, Xandra Kramer (University of Rotterdam and Utrecht University) analysed thoroughly two of the CJEU judgments on “satellite” instruments of the Brussels I-bis Regulation: the EAPO Regulation (Regulation No. 655/2014); and the EPO Regulation (Regulation No. 1896/2006). C-555/18, was the very first judgment that the CJEU rendered on the EAPO Regulation. Xandra Kramer remarked the underuse of this instrument. In the second part of her lecture, she identified two trends in the judgments on the EPO Regulation (C?21/17, Caitlin Europe; Joined Cases C?119/13 and C?120/13, ecosmetics; Joined Cases C?453/18 and C?494/18, Bondora), observing that the CJEU tries, on the one hand, to preserve the efficiency of the EPO Regulation, while at the same time seeking to assure an adequate protection of the debtor’s position.

In the last presentation of the second day, Helena Raulus (Head of Brussels Office, UK Law Societies) explored the future judicial cooperation in civil matters between the EU and the United Kingdom in the post-Brexit scenario. Ms Raulus foresaw two potential long-term solutions for the relationship: namely, relying either on the 2019 Hague Convention, or on the Lugano Convention. In her view, the 2019 Hague Convention would not fully answer the future challenges of potential cross-border claims between EU Member States and the UK: it only covers recognition and enforcement, while several critical subject areas are excluded (e.g. IP-rights claims); and above all, from a more practical perspective, it is still an untested instrument. Ms Raulus affirmed that the UK’s possible adherence to the Lugano Convention is the most welcomed solution among English practitioners. Whereas this solution has already received the green light from the non-EU Contracting States to the Lugano Convention (Iceland, Norway, and Switzerland), she remarked that to date the EU has not adopted a position in this regard.

The conference closed with a second roundtable, which resumed the discussions on the future relations between the EU and the UK on judicial cooperation in civil law matters. Christophe Bernasconi (Secretary General, HCCH) offered an exhaustive review on the impact of the UK withdrawal from the EU on all the existing HCCH Conventions. From his side, Alexander Layton wondered if it might be possible to apply the pre-existing bilateral treaties between some EU Member States and the UK: in his view, those treaties still have a vestigial existence in those matters non-covered by the Brussels I-bis Regulation, and thus they were not fully succeeded. In Helena Raulus’s view, such treaties would raise competence issues, since the negotiating of such treaties falls exclusively with the EU (as the CJEU found in its Opinion 1/03). As Ms Raulus observed, eventually attempts to re-establish bilateral treaties between the Member States and the UK might trigger infringement proceedings by the Commission against those Member States. The discussion concluded by addressing the 2005 Hague Convention and it is applicability to the UK after the end of the transition period.

Overall, this two-day event was characterized by a thematic and systematic approach to the major issues that characterize the current debate in the area of judicial cooperation in civil and commercial matters, both at the EU and global level. By providing the opportunity to hear, from renowned experts, on both the theoretical and practical questions that arise in this context, it offered its audience direct access to highly qualified insight and knowledge.