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Written by Jonathan Fitchen, University of Aberdeen

Introduction

The EEO Regulation (805/2004) was mooted in the mid-1990’s to combat perceived failings of the Brussels Convention that were feared to obstruct or prevent ‘good’ judgment creditors from enforcing ‘uncontested’ (i.e. undisputable) debts as cross-border debt judgments within what is now the EU. The characterisations ‘good’ and ‘bad’ are not employed facetiously; the unreasonable obstruction of a creditor who was assumed to pursue a meritorious debt claim was and remains a central plank of the EEO project: hence the Regulation offers an alternative exequatur and public policy free procedure for the cross-border enforcement of such uncontested monetary civil and commercial claims that, until 2002, fell under the quite different enforcement procedures of the Brussels Convention. The 2004 EEO Regulation covers money enforcement titles (judgments, settlements and authentic instruments) that are already enforceable in the Member State of origin and hence are offered an alternative route to cross-border enforcement in the Member State addressed via the successors to the Brussels Convention, first the Brussels I Regulation and now the Brussels Ia Regulation, on an expedited basis due to omitting both an exequatur stage and the ability of the Member State addressed to refuse enforcement because of public policy infringements.

As the EEO Regulation was introduced some years after the cross-border enforcement provisions of the Brussels Convention had been replaced by those of the Brussels I Regulation, many of the EEO’s ‘innovations’ to remedy ‘unnecessary’ or abusive delays, caused by either a ‘bad’ debtor or by an overly cautious enforcement venue, had already been mitigated three years before it came into force in 2005. This fact and other issues (e.g. a preference among lawyers for the familiar and now streamlined Brussels I Regulation enforcement procedure, the issue of ignorance of the EEO procedures, and a greater than expected willingness for creditors to litigate debt claims directly in foreign venues) contributed to a lower than expected take up of the EEO Regulation in the context of contentious legal proceedings.

Anecdotal evidence of low use of the EEO in contentious matters has led to a view that the EEO Regulation is somewhat redundant. The coming into force of the exequatur-free Brussels Ia Regulation and the surveys connected with the IC²BE project  have re-enforced this view of its redundancy. An expected recasting for the 2004 Regulation did not however occur in 2012 as the Commission withdrew it. The same year the Commission had received a less than complimentary report from RAND Europe concerning the Regulation (with which it disagreed and continues to disagree). It may be speculated that having lost the argument on restricting or deleting public policy in the course of the re-casting of the Brussels I Regulation, the Commission may have feared that the re-casting of the EEO might tend towards its de factodeletion if the Member States were permitted to consider its reliance on control in the Member State of origin and the lack of a public policy exception given examples of national case law that were already suggestive of structural difficulties with the Regulation and its underlying drafting assumptions (e.g. see G Cuniberti’s comment on French Cour de cassation chambre civile 2, 6 janvier 2012 N° de pourvoi: 10-23518).

As matters stand, the EEO Regulation continues to apply and continues to cause particular difficulties for debtors (and also creditors, enforcement authorities and the CJEU), whether in the Member State of origin or in the Member State addressed. This assertion is supported by two litigation notes, of which this is the first (and most extraordinary): indeed, it is suggested that the difficulties that arose in the litigation discussed below are at least as significant for European private international law as the infamous case C-7/98 Krombach v Bamberski; Krombach and Lee each indicate the need for the inclusion of an overt public policy exception for those cases in which domestic civil procedure and the norms of European and international civil procedure have malfunctioned to such an extent that EU PIL is in danger of being ‘understood’ to force the Member State of enforcement to grant cross-border legal effect to a judgment granted improperly in flagrant breach of European and domestic human rights standards.

Facts

In January 2014 the civil judgment enforcement officials of the English High Court received a European Enforcement Order (EEO) application from a Spanish gentleman’s lawyers requesting the actual enforcement of the Spanish judgment and costs recorded by the EEO certificate for €923,000. The enforcement target – who had been contacted officially by a letter from the applicant’s lawyers for the first time in the proceedings shortly before this application and given 14 days to pay – was the well-known actor Christopher Lee, who was domiciled in the UK and resident in London where he had lived for many years.

Thus began the enforcement stage of a cross-border saga in which the judgment creditor and judgment debtor sought respectively to enforce or resist the enforcement of an EEO certificate that was incomplete (hence defective on its face) and unquestionably should never have been granted because it related to a Spanish judgment that should never have been delivered (or declared enforceable) concerning a debt, that had not been properly established according to Spanish procedural law, and relating to an at best contestable (and at worst fanciful) legal liability alleged to somehow fall upon an actor in a film concerning a subsequent unauthorised use by the DVD distributor of that film of the claimant artist’s copyrighted artwork from that film in connection with the European DVD release of that film. The claim under Spanish copyright law was based on proceedings dating from June 2007 commenced before the Burgos Commercial court that unquestionably were never at any time (whether as a process, a summons or a judgment) in the following seven years served properly on the famous and foreign-domiciled defendant in accordance with the service provisions of the EU Service Regulation.

The original claim named three parties: 1) a production company (The Quaid Project Ltd); 2) Mr. Juan Aneiros (who was alleged to have signed a contract pertaining to the artwork for the film with the claimant artist in 2004 and who was the son-in-law of Christopher Lee and who seemingly ran Mr Lee’s website) and 3) Christopher Lee himself. The proceedings attempted in Spain however encountered an initial problem of how to serve these ‘persons’ in or from Spain. The solution selected as far as Lee was concerned did not use the Service Regulation nor did it anticipate the later reasoning of the CJEU in Case C 292/10 G v de Visser ECLI:EU:C:2012:142. After not finding Lee resident in Spain, the hopeless fiction of service by pinning the originating process to the noticeboard of the Burgos Commercial Court for a period of time was employed: it was then claimed that this properly effected service in circumstances where it was claimed to be impossible to find or serve a world renowned and famous English actor (or the actor’s agent) in Spain (where he did not live).

Such modes of service where the defendant is likely to be domiciled in another state have been condemned as insufficient by the ECJ in cases such as: Case 166/80 Peter Klomps v Karl Michel [1981] ECR 1593; Case C-300/14 Imtech Marine Belgium NV v Radio Hellenic SA ECLI:EU:C:2015:825; Case C-289/17 Collect Inkasso OU v Aint 2018 EU:C:2018. These defects in serving Lee as intended defendant, and then as an enforcement target, proved fatal in February 2020 when, after roughly six years of challenges by Lee (and from mid 2015 by his Widow), the Spanish Constitutional Court decided that the consequences flowing from the service violations were sufficiently serious to remit the Spanish proceedings back to square one for noncompliance with Article 24 of the Spanish Constitution by the Spanish civil courts.

Significant aspects of the claim are unclear, in particular, why Lee was regarded as potentially liable for the claim. The various law reports make clear that the claim concerned compensation sought under Spanish copyright law by an artist whose contracted artwork for a film called ‘Jinnah’ (in which Christopher Lee had starred) had later been used without his permission for the subsequent European DVD release of that film. Though Spanish law permits such a contractual claim by the artist against the relevant party who uses his artwork, it is unclear from the various English and Spanish law reports how, in connection with the DVD release, this party was Christopher Lee. It is stated at para 11 of [2017] EWHC 634 (Ch) that Lee’s lawyers told the English court that their client (who was not a producer or seemingly a funder of the original film) did not sign any contract with the claimant. It is hence not clear that Lee made (or could make) any decisions concerning the artwork for the film and still less concerning its later use for the European DVD release to breach the claimant’s copyright. Such decisions appear to have been made by other natural and legal persons, without any link to Lee capable of making him liable for the compensation claimed.

Though it is doubtful that the issue will ever be resolved, a few statements in the Spanish press (El Pais, 22 March 2010) suggest both that the claimant regarded Lee as having been amongst those who had ‘authorised’ his original appointment to the film as its artist/illustrator but also, and confusingly, that the artist had not been able to speak to Lee about the issue and did not, subject to what the court might hold, consider him responsible for the misuse. Though it is speculation, it may be that a connection was supposed by the claimant (or his lawyers) analogous to a form of partnership liability between Lee and some of the other defendants who might have been presumed to have been involved in the original decision to employ the artist at the time of the film and hence might possibly have later been involved in the decision to re-use the same artwork (this time without the artist’s consent) for the European DVD release. Neither the matter nor the nature of Lee’s potential liability is though clear.

Further uncertainty arises from the issue of quantum. Spanish law allows an aggrieved artist to bring a claim for contractual compensation to seek sums representing those revenues that would have accrued to him had there been a reasonable contractual agreement to use his artwork in this manner. One function of the Spanish court in such a claim is to determine the correct quantum of this sum by considering representations from each party to the claim: this process could not occur properly in the present case as the service defects meant that only the views of the claimant were ever presented. Why was €710,000 the correct sum? Why not €720,000, €700,000 or €10,000? Trusting the artist’s own estimation seems optimistic given that the sum claimed was large and the matter concerned the European DVD release of a film that was many orders of magnitude less well-budgeted or commercially successful than other films in which Christopher Lee had starred (e.g. Star Wars and the Lord of the Rings). Equally, did the artist really have all the data in his possession to allow him to demonstrate unilaterally the proper quantum in a forensic manner?

Despite these uncertainties the suggested liability and quantum were asserted for the purposes of formulating the Spanish claim that led to the in absentia judgment granted in March 2009 which, by May 2009, (in default of any appeal by the officially uncontacted Lee) was declared final. In October 2009 the judgment was declared enforceable by yet another notice from the same Burgos court that was again pointlessly fixed to the notice board of the court in default of employing any effective mode of service that should have been used in this context.

The matter was reported (inaccurately) in the UK press and media in 2010, possibly based on not quite understood Spanish newspaper reports, without however securing any comment from Lee. It is unclear if Lee ever did know unofficially of the Spanish proceedings, but it seems likely that he did as his son-in-law was involved in these. Such unofficial knowledge does not, of course, excuse successive service failures. One point that the UK media did record accurately in 2010 was that no defendant had appeared in the earlier Spanish proceedings.

In 2011, at the request of the claimant, the Burgos court issued him with an EEO certificate. It was seriously incomplete, omitting ticks for the boxes found at: 11.1 (that service had been as per the Service Regulation); 12.1 (ditto the summons); 13.1 (that service of the judgment had been as per the Regulation); 13.3 (that the defendant had a chance to challenge the judgment); and, 13.4 (that the defendant had not so challenged). The judgment on which the EEO certificate was based was claimed in the certificate to be one dated 26 April 2010 (seemingly never produced in the later London enforcement proceedings) while the certificate wrongly gave as Lee’s London address as the address of his son-in-law and misspelled Lee’s middle name.

In October 2013 the claimant applied to the Spanish courts for the rectification of the 2011 EEO certificate: such rectification was however confined only to correct the misspelled name and to add over €200,000 to the original ‘debt’ as costs due in part, it may be supposed from the comments of the Constitutional Court, to unsuccessful attempts to pursue the Spanish property of Lee’s Spanish son-in-law. Seemingly no rectification was sought for the other serious omissions.  The October 2013 EEO certificate was presented in January 2014 in London to Lee and to the English court. Lee’s correct address had now been ascertained by the claimant’s lawyers instructed to seek the cross-border enforcement of the EEO certificate concerning the ‘uncontested’ sums apparently due in Spain via its expedited and public policy free procedures.

On finally learning officially of the existence of the earlier Spanish in absentia proceedings when met with a lawyer’s letter to his address demanding payment of the entire alleged debt within 14 days, Lee instructed his English lawyers and appointed Spanish lawyers to commence challenges to the earlier Spanish proceedings and to secure stays of enforcement in Spain and in the UK (the latter being via Art 23(c) EEO). By reason of a good-faith error, Lee’s English lawyers ‘jumped-the-gun’ and represented to the English court that the Spanish challenge proceedings had already commenced – in fact at that point the Spanish lawyers had only been instructed to bring a challenge – and secured the English Art.23(c) stay some 17 days ahead of the actual commencement of the Spanish challenge proceedings. The creditor, via his lawyers, objected (correctly) to the premature grant and also to the continuation of the stay under Art.23(c) which first required the commencement of the Spanish challenges: this objection led to a Pyric victory when the English court dispensed with the erroneous stay but replaced it, seamlessly, with another stay granted as part of its inherent jurisdiction (rather than via any provision of the EEO Regulation) which it justified as appropriate given the presentation of a manifestly defective and incomplete EEO certificate. The stay was to endure for the duration of the Spanish appeals and all Spanish challenges to enforcement. Lee’s death in mid 2015 saw the stay endure for the benefit of his widow.

While the stay proceedings were ongoing in England, the attempts by Lee’s lawyers to challenge the earlier Spanish proceedings before the Spanish civil courts and appeal courts went from bad to worse. The said courts all took the astonishing view (summarised in paras 23 – 30 of [2017] EWHC 634 (Ch) (03 April 2017)) that there had been sufficient service and that Lee was now out-of-time to raise objections by civil appeal. All Spanish stay applications were rejected; even the Constitutional Court rejected such a stay application (on an earlier appeal prior to the 2020 case), finding the earlier conclusions of the civil courts that there was no demonstrable irreparable harm for Lee without the stay to be in accordance with the Constitution. Appeal attempts before the civil courts to object to the frankly ridiculous triple failure of service of process, summons and judgment, or to the existence of a viable claim, or to the lack of the quantification stage required by Spanish procedural law, all fell on deaf ears in these courts.

In this sense, because the Spanish civil courts all demonstrated their unwillingness to remedy the successive misapplication of EU laws, the private international law and procedural law of the EU all failed in this case in the Member State of origin. That this failure did not result in immediate actual enforcement against Lee’s estate in the Member State addressed was due only to the extemporisation by an English court of an inherent jurisdiction stay in response to an incomplete certificate supporting the application. Without this extemporised stay the enforcement would have proceeded in the UK without any possibility of Lee requesting corrective intervention by English authorities to invoke a missing public policy exception. The English court was clear that had the empty boxes been ticked, there would have been no basis for the stay and enforcement would have been compelled. So much for the Recital 11 assurances of the EEO Regulation:

“This Regulation seeks to promote the fundamental rights and takes into account the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, it seeks to ensure full respect for the right to a fair trial as recognised in Article 47 of the Charter.”

These events left Lee’s lawyers with only one remaining challenge possibility in Spain, viz. arguing that the Spanish civil courts had violated the Spanish Constitution. These challenges were brought to the Spanish Constitutional Court by lawyers acting first for Lee and then, after his death, acting for his widow. The decision of the Constitutional Court was delivered on 20 February 2020 (see comment by M Requejo Isidro) and found that there had indeed been a significant domestic breach of the Spanish Constitution, specifically, Section 24 para 1 which (in English) reads

“All persons have the right to obtain effective protection from the judges and the courts in the exercise of their rights and legitimate interests, and in no case may there be a lack of defense.”

The Constitutional Court – which necessarily is restricted to a consideration of the matters that go directly to the operation of the Spanish Constitution and hence has no further general appellate competence over the actions of the civil courts – concluded that the initial failure to serve a non-domiciled person, whose address was claimed to be unknown, but would have been very simple to discover, in accordance with the provisions of the relevant EU Service Regulation meant that Christopher Lee, and later his widow, were not adequately protected by the Spanish courts as required by Section 24 of the Spanish Constitution and hence had been deprived impermissibly of the defence that had to be provided. The order of the Constitutional Court annulled the earlier Spanish proceedings and sent the contingency-fee-funded claimant back to square one to recommence any subsequent proceedings properly and with due service concerning his alleged claim against whatever parts of the estate of the late Christopher Lee might now still be located within the UK or the EU.

Reflections on some of the wider issues

Though this litigation was compared above with the cause-celebre that was Krombach, it can be argued to represent a greater Member State of origin catastrophe than the earlier case: at least Herr Krombach was officially notified, served, summoned to the proceedings and then notified of the judgment. Krombach and Lee do both however illustrate why a public policy exception in the Member State addressed is essential. Unfortunately, in Lee this illustration is set against the absence of that exception. Thus, Lee demonstrates the grim prospects facing the ‘debtor of an uncontested sum’ (who only has this status due to blatant and successive breaches of service and private international law procedures) in cross-border enforcement procedures if the ‘emergency brake’ of public policy has been removed by drafters keen to prevent its unnecessary application to facilitate faster ‘forward-travel’ in circumstances in which the application of the said brake would not be necessary.

Had not the presented EEO certificate been so deficient, the English courts would not have been willing to extemporise a stay and the whole sum would have been enforced against Lee in London long before the civil and constitutional proceedings – all of which Lee also had to fund – concluded in Spain. Few ordinary people could have effectively defended the enforcement across two venues for six years when facing a claimant pursuing a speculative claim via a conditional fee arrangement (with its clear significance for the likely recovery of defence costs and a resulting impact upon the need to fund your own lawyers in each jurisdiction). It must be presumed that, despite manifest breaches of EU law and human rights standards, most ordinary persons would simply have had to pay-up. Whether this has already occurred, or occurs regularly, are each difficult to ascertain; what can though be said is that the design and rationale of the EEO Regulation facilitate each possibility.

Lee was fortunate indeed to face an incomplete EEO certificate and to find English judges who, successively, were favourably disposed towards his applications despite a Regulation drafted to dismiss them. Though some may be disposed to regard the judiciary of that ex-Member State as ‘constitutionally’ predisposed to effect such interpretative developments, this would be a mistake, particularly in the present context of applications to the Masters in question (members of the judiciary who deal with incoming foreign enforcement applications). In any case, judicial willingness to extemporise a solution when faced with a defective EEO certificate to avert an immediate cross-border injustice seems a slender thread indeed from which to hang the conformity of the operation of the EEO Regulation with the basic human rights that should have been, but were not, associated with the treatment of Lee throughout these proceedings.

It is suggested that the circumstances of Lee demonstrate the failure of both the EEO Regulation, and of EU PIL in general, to protect the rights of an unserved and officially unnotified defendant to object to a cross-border enforcement despite the grossest of failings in the Member State of origin that, given the existence of Article 24 of the Spanish Constitution, proved astonishingly unsusceptible to Spanish appeal procedures. Had the judgment creditor been compelled to proceed to enforcement under the Brussels I Regulation (or later under the Recast of that Regulation) the service defects would probably have been more evident whether in the assumption of jurisdiction and / or at the point of enforcement outside Spain: the judgment debtor would also have had the option to raise the public policy exception to defend the enforcement proceedings plus better stay options in the enforcement venue.

Further it is suggested that Lee indicates that the EEO Regulation is no longer fit for purpose and should be recast or repealed. Lee, like Krombach, illustrates the danger of relying on the Member State of origin when drafting cross-border procedures of a non-neutral nature, i.e. reflecting assumptions that certified claims sent abroad by the ‘creditor’ will be ‘good’. It is not always correct that all will remain ‘fixable’ in the Member State of origin such that objections to enforcement in the Member State addressed and a public policy exception are unnecessary. Krombach and Lee may be exceptional cases, but it is for such cases that we require the equally exceptional use of a public policy exception in the enforcement venue.

 

 

Non-lieu à renvoi

Wagenknecht / Conseil européen
Ressources propres des Communautés
Le Tribunal rejette un recours visant à faire constater que le Conseil européen aurait illégalement refusé d’exclure le Premier ministre tchèque, en raison d’un conflit d’intérêts allégué, des réunions de cette institution portant sur l’adoption du cadre financier pluriannuel de l’Union européenne 2021/2027

Thank you Nathalie Smuha for first signalling the €600,000.00 fine which the Belgian Data Protection Authority (DPA) issued on Tuesday against Google Belgium, together with a delisting order of uncertain reach (see below) and an order to amend the public’s complaint forms. The decision will eventually be back up here I am assume (at vanished yesterday) however I have copy here.

Nauta Dutilh have very good summary and analysis up already, and I am happy to refer. Let me add a few things of additional note:

• The one-stop shop principle of the GDPR must now be under severe strain. CNIL v Google already put it to the test and this Belgian decision further questions its operationalisation – without even without for the CJEU to answer the questions of the Brussels Court of Appeal in the Facebook case. At 31, the DPA refers to a letter which Google LLC had sent on 23 June 2020 (a few days therefore after the French decision) to the Irish DPA saying that it would no longer object to national DPAs exercising jurisdiction in right to be forgotten cases. Of note is that in ordinary litigation, deep-pocket claimants seeking mozaik jurisdiction seldom do that because it serves the general interest.
• Having said that, the Belgian DPA still had to establish jurisdiction against Google Belgium. Here, CJEU Google v Spain, Google v CNIL, and Wirtschaftsakademie led the DPA to take a ‘realistic’ /business plan approach (such as Jääskinen AG in Google Spain) rather than a legally pure approach: at 80 following extensive reference to CJEU authority, and to the effet utile of the GDPR, the DPA holds that it matters little whether the actual processing of the date takes places outside of the EU, by Google employees ex-EU, and that Google Belgium’s activities are supportive only. A Belgian resident’s right to be forgotten has been infringed; a Google entity is available there: that would seem to suffice.
• That left the issue of the territorial reach of the delisting request. The DPA arguably cuts a few corners on the Google Belgium issue; here, it is simply most vague: at 81 ff it refers to the jurisdictional decision in e-Date Advertising, that for infringement of privacy within Brussels Ia, the courts of the person’s centre of interests are best placed to hear the case in its entirety, holding this should be applied mutatis mutandis in GDPR cases and removal orders. It then holds at 85 that neither Google v CNIL nor Belgian law give it specific power to impose a worldwide delisting order, yet at 91 that an EU-wide delisting order would seem an effective means of redress, to end up in its final order (p.48-49) not identifying a territorial scope for delisting.

I am confused. I suspect I am not the only one.

Geert.

(Handbook of) EU private international law, 2nd ed.2016, chapter 2, Heading 2.2.8.2.5.

 

On 14 July 2020, Austria ratified the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, which will enter into force for Austria on 12 September 2020.

Source: here

The Court of Justice delivered today its judgment in case C‑249/19 (JE v KF), which is about Rome III.

Context: “11 JE and KF, who are Romanian nationals, married in Iași (Romania) on 2 September 2001.

12 On 13 October 2016, JE applied for a divorce to the Judecătoria Iași (Court of First Instance, Iași, Romania).

13 By judgment of 31 May 2017, that court declined jurisdiction to hear that application in favour of the Judecătoria Sectorului 5 București (Court of First Instance of the Fifth District of Bucharest, Romania).

14 By a judgment of 20 February 2018, that court, on the basis of the nationality of both spouses referred to in Article 3(1)(b) of Regulation No 2201/2003, established that the Romanian courts had general jurisdiction to hear the application for divorce made by JE. Furthermore, on the basis of Article 8(a) of Regulation No 1259/2010, it designated Italian law as the law applicable to the dispute of which it was seised, on the ground that, on the date on which the application for divorce was filed, the habitual residence of the spouses was in Italy.

15 In that regard, that court held that, under Italian law, an application for divorce made in circumstances such as those of the main proceedings could be filed only if a legal separation of the spouses had previously been established or declared by a court and if at least three years had elapsed between the date of that separation and the date on which the application for divorce was filed with the court.

16  Given that the existence of a court decision establishing or pronouncing such a separation had not been proven and that Romanian law does not provide for legal separation proceedings, that court held that those proceedings had to be conducted before the Italian courts and that, consequently, any application to that effect made to the Romanian courts was inadmissible.

17 JE lodged an appeal against that judgment before the referring court, claiming, inter alia, that the court at first instance should have applied Article 2600(2) of the Civil Code, which constitutes the transposition into Romanian law of Article 10 of Regulation No 1259/2010.

18 In that regard, JE is of the opinion that, since Italian law is restrictive as regards the conditions required for divorce, Romanian law should apply to the application for divorce.

19 In JE’s view, that solution also flows from the fact that the application of Italian law is manifestly incompatible with the public policy of the forum and that, consequently, that application must, in accordance with Article 12 of that regulation, be disapplied”.

Question refered to the Court of Justice: “‘Is the expression “the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce”[, in Article 10 of Regulation No 1259/2010,] to be interpreted (a) in a strict, literal manner, that it is to say only in respect of a situation where the foreign law applicable makes no provision for any form of divorce, or (b) more broadly, as also including a situation where the foreign law applicable permits divorce, but does so in extremely limited circumstances, involving an obligatory legal separation procedure prior to divorce, in respect of which the law of the forum contains no equivalent procedural provisions?’”.

Decision of the Court of Justice: “Article 10 of Council Regulation (EU) No 1259/2010 […] must be interpreted as meaning that the expression ‘where the law applicable by virtue of Article 5 or Article 8 makes no provision for divorce’ applies only where the foreign law applicable makes no provision for divorce in any form”.

Source: here

The Court of Justice delivered today its judgment in case C‑253/19 (MH, NI v OJ, Novo Banco SA), which is about the Insolvency bis Regulation:

“The first and fourth subparagraphs of Article 3(1) of Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings must be interpreted as meaning that the presumption established in that provision for determining international jurisdiction for the purposes of opening insolvency proceedings, according to which the centre of the main interests of an individual not exercising an independent business or professional activity is his or her habitual residence, is not rebutted solely because the only immovable property of that person is located outside the Member State of habitual residence”.

Source: here

The Court of Justice delivered today its judgment in case C‑80/19 (E. E. with the presence of: Kauno miesto 4-ojo notaro biuro notarė Virginija Jarienė, K.-D. E.), which is about the Succession Regulation. The judgment 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):

« 1) Le règlement (UE) no 650/2012 […] doit être interprété en ce sens que relève de la notion de « succession ayant une incidence transfrontière » une situation dans laquelle le défunt, ressortissant d’un État membre, résidait dans un autre État membre à la date de son décès, mais n’avait pas rompu ses liens avec le premier de ces États membres, dans lequel se trouvent les biens composant sa succession, tandis que ses successibles ont leur résidence dans ces deux États membres. La dernière résidence habituelle du défunt, au sens de ce règlement, doit être fixée par l’autorité saisie de la succession dans un seul desdits États membres.

2) L’article 3, paragraphe 2, du règlement no 650/2012 doit être interprété en ce sens que, sous réserve d’une vérification par la juridiction de renvoi, les notaires lituaniens n’exercent pas des fonctions juridictionnelles lors de la délivrance d’un certificat national d’hérédité. Toutefois, il appartient à la juridiction de renvoi de déterminer si ces notaires agissent par délégation ou sous le contrôle d’une autorité judiciaire et, en conséquence, peuvent être qualifiés de « juridictions », au sens de cette disposition.

3) L’article 3, paragraphe 1, sous g) du règlement no 650/2012 doit être interprété en ce sens que, dans le cas où la juridiction de renvoi considérerait que les notaires lituaniens peuvent être qualifiés de « juridictions », au sens de ce règlement, le certificat d’hérédité qu’ils délivrent, peut être considéré comme étant une « décision », au sens de cette disposition, de telle sorte que, aux fins de le délivrer, ces notaires peuvent appliquer les règles de compétence prévues au chapitre II dudit règlement.

4) Les articles 4 et 59 du règlement no 650/2012 doivent être interprétés en ce sens qu’un notaire d’un État membre, qui n’est pas qualifié de « juridiction », au sens de ce règlement, peut, sans appliquer les règles générales de compétence prévues par ledit règlement, délivrer les certificats nationaux d’hérédité. Si la juridiction de renvoi considère que ces certificats remplissent les conditions prévues à l’article 3, paragraphe 1, sous i), du même règlement, et peuvent, dès lors, être considérés comme étant des « actes authentiques », au sens de cette disposition, ceux-ci produisent, dans les autres États membres, les effets que l’article 59, paragraphe 1, et l’article 60, paragraphe 1, du règlement no 650/2012 attribuent aux actes authentiques.

5) Les articles 4, 5, 7 et 22 ainsi que l’article 83, paragraphes 2 et 4, du règlement no 650/2012 doivent être interprétés en ce sens que la volonté du de cujus ainsi que l’accord entre ses successibles peuvent conduire à la détermination d’une juridiction compétente en matière de successions et à l’application d’une loi successorale d’un État membre autre que celles qui résulteraient de l’application des critères dégagés par ce règlement ».

Source : here

The Court of Justice delivered today its judgment in case C‑73/19 (Belgium v Movic BV, Events Belgium BV, Leisure Tickets & Activities International BV), which is about Brussels I bis. The judgment 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):

Context : « Le 2 décembre 2016, les autorités belges ont assigné en justice devant le président du rechtbank van koophandel Antwerpen-afdeling Antwerpen (tribunal de commerce, division d’Anvers, Anvers, Belgique), en formation de référé, Movic, Events Belgium et Leisure Tickets & Activities International, en demandant à titre principal, d’une part, de faire constater que ces sociétés pratiquaient la revente, en Belgique, au moyen de sites Internet gérés par elles, des titres d’accès à des événements pour un prix supérieur à celui initial, activité constitutive des infractions aux dispositions de la loi du 30 juillet 2013 et du CDE, et, d’autre part, d’ordonner la cessation de ces pratiques commerciales.

18 À titre accessoire, les autorités belges ont demandé d’ordonner des mesures de publicité de la décision prononcée aux frais desdites sociétés, d’imposer une astreinte de 10 000 euros par infraction constatée à partir de la signification de cette décision et de dire pour droit que les infractions futures pourront être constatées par simple procès–verbal dressé par un fonctionnaire assermenté de la direction générale de l’inspection économique, conformément au CDE.

19 Les trois sociétés en cause ont soulevé une exception d’incompétence internationale des juridictions belges, en soutenant que les autorités belges avaient agi dans l’exercice de la puissance publique, de sorte que leurs actions ne relevaient pas du champ d’application du règlement no 1215/2012 »

Decision : “L’article 1er, paragraphe 1, du règlement (UE) no 1215/2012 […] doit être interprété en ce sens que relève de la notion de « matière civile et commerciale », figurant à cette disposition, une action opposant les autorités d’un État membre à des professionnels établis dans un autre État membre dans le cadre de laquelle ces autorités demandent, à titre principal, à ce que soit constatée l’existence d’infractions constituant des pratiques commerciales déloyales prétendument illégales et ordonnée la cessation de celles-ci, ainsi que, à titre accessoire, à ce que soient ordonnées des mesures de publicité et à ce que soit imposée une astreinte ».

Source : here

The Court of Justice delivered today its judgment in case  C‑658/18 (UX v Governo della Repubblica italiana), which is about the status of Judges of the Peace and a judicial victory for the latter with rather wide financial consequences for Italy and beyond. The judgment 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):

“1) L’article 267 TFUE doit être interprété en ce sens que le Giudice di pace (juge de paix, Italie) relève de la notion de « juridiction d’un des États membres », au sens de cet article.

2) L’article 7, paragraphe 1, de la directive 2003/88/CE […] concernant certains aspects de l’aménagement du temps de travail, et l’article 31, paragraphe 2, de la charte des droits fondamentaux de l’Union européenne doivent être interprétés en ce sens qu’un juge de paix qui, dans le cadre de ses fonctions, effectue des prestations réelles et effectives, qui ne sont ni purement marginales ni accessoires, et pour lesquelles il perçoit des indemnités présentant un caractère rémunératoire, peut relever de la notion de « travailleur », au sens de ces dispositions, ce qu’il appartient à la juridiction de renvoi de vérifier.

La clause 2, point 1, de l’accord-cadre sur le travail à durée déterminée conclu le 18 mars 1999, qui figure à l’annexe de la directive 1999/70/CE du Conseil, du 28 juin 1999, concernant l’accord-cadre CES, UNICE et CEEP sur le travail à durée déterminée, doit être interprétée en ce sens que la notion de « travailleur à durée déterminée », figurant à cette disposition, peut englober un juge de paix, nommé pour une période limitée, qui, dans le cadre de ses fonctions, effectue des prestations réelles et effectives, qui ne sont ni purement marginales ni accessoires, et pour lesquelles il perçoit des indemnités présentant un caractère rémunératoire, ce qu’il appartient au juge de renvoi de vérifier.

La clause 4, point 1, de l’accord-cadre sur le travail à durée déterminée conclu le 18 mars 1999, qui figure à l’annexe de la directive 1999/70, doit être interprétée en ce sens qu’elle s’oppose à une réglementation nationale qui ne prévoit pas le droit pour un juge de paix à bénéficier d’un congé annuel payé de 30 jours, tel que celui prévu pour les magistrats ordinaires, dans l’hypothèse où ce juge de paix relèverait de la notion de « travailleur à durée déterminée », au sens de la clause 2, point 1, de cet accord-cadre, et où il se trouverait dans une situation comparable à celle d’un magistrat ordinaire, à moins qu’une telle différence de traitement ne soit justifiée par les différences de qualifications requises et la nature des tâches dont lesdits magistrats doivent assumer la responsabilité, ce qu’il incombe à la juridiction de renvoi de vérifier »

Source : here

L’article 10, § 2, ne laissant guère de place pour des restrictions à la liberté d’expression dans le domaine du discours politique ou de questions d’intérêt général, la condamnation des requérants pour provocation à la discrimination pour avoir appelé au boycott des produits venant d’Israël, faute de reposer sur des motifs pertinents et suffisants, a violé le droit à la liberté d’expression.

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As announced earlier, Erasmus School of Law is recruiting five researchers for a project on Affordable Access to Civil Justice in Europe, financed by the Dutch Research Council. The deadline for application has been extended till 27 July 2020. See our previous post.

The EU Regulations on the Property Regimes of International Couples – A Commentary has been published by Edward Elgar in its “Elgar Commentaries in Private International Law” series.

The publisher’s abstract reads: This article-by-article Commentary on EU Regulations 2016/1103 and 2016/1104 critically examines the uniform rules adopted by the EU to deal with the property relations of international couples, both married and in registered partnerships. Written by experts from a variety of European countries, it offers a comprehensive side-by-side discussion of the two Regulations to provide context and a deeper understanding of the issues of jurisdiction, applicable law and recognition of judgements covered.

Edited by Ilaria Viarengo and Pietro Franzina, this commentary features contributions by Giacomo Biagioni, Andrea Bonomi, Beatriz Campuzano Díaz, Janeen Carruthers, Sabine Corneloup, Gilles Cuniberti, Elena D’Alessandro, Pietro Franzina, Martin Gebauer, Christian Kohler, Silvia Marino, Cristina M. Mariottini, Dieter Martiny, Csongor I. Nagy, Jacopo Re, Carola Ricci, Andres Rodríguez Benot, Lidia Sandrini, Ilaria Viarengo and Patrick Wautelet.

Further info here

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