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Le procureur a requis 10 mois et 3 ans de prisons avec sursis à l’encontre de trois policiers, prévenus d’avoir blessé 5 personnes et d’en avoir mutilé une 6e, le 8 juillet 2009, à Montreuil (93). La défense plaide ce vendredi matin.

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Le Conseil d’Etat vient de rejeter le recours formé par l’Ordre des avocats de Paris contre le refus d’abroger des dispositions du Code général des impôts qui interdisent aux particuliers de déduire la TVA versée sur les honoraires d’avocats.

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Tribunal de grande instance de Lorient, juge de l'exécution, 22 novembre 2016

Pourvoi c/ Cour d'appel d'Aix-en-Provence, 15e chambre A, 27 mai 2016

Le mandat de Greffier du Tribunal de M. Emmanuel Coulon est renouvelé

by Lukas Schmidt, Research Fellow at the Center for Transnational Commercial Dispute Resolution (TCDR) of the EBS Law School, Wiesbaden, Germany.

As announced earlier this year at the Commission´s conference on “Convergence of insolvency frameworks within the European Union – the way forward” (see Blogpost http://wp.me/p4SfbY-4OQ) Vera Jourová, EU Commissioner for Justice, Consumers and Gender Equality has presented a proposal for a Directive on preventive restructuring frameworks, second chance and measures to increase the efficiency of restructuring, insolvency and discharge procedures on Thursday 22 November (see http://europa.eu/rapid/press-release_IP-16-3802_en.htm). The proposal has to be seen in the context of the Juncker Plan, the Action Plan on Building a Capital Markets Union and the Single Market Strategy, all aiming at strengthening of Europe´s Economy and the stimulation of investments in Europe. However, it is a much bigger step towards a harmonized European Insolvency Law than the Commission´s non-binding recommendation on a new approach to business failure and insolvency from 2014. Furthermore, whereas the EIR recast deals with issues of jurisdiction, applicable law, recognition and enforcement of insolvency decisions, as well as coordination of cross-border insolvency procedures, the proposal now obliges Member States to introduce sprecific types of procedures and set up measures to ensure that insolvency proceedings are effective in regards to promoting preventive restructurings and second chance. It thereby aims to reduce barriers to cross-border investment related to differences between the Member States’ restructuring and second chance frameworks as well as unnecessary liquidations of viable companies. Additionaly it shall improve the effectiveness of all restructuring, insolvency and second chance procedures within the EU.

The proposal consists of 47 recitals and 36 Articles on 55 pages. It can be roughly divided into main three parts. It is setting up a preventive restructuring framework (Title II), minimum standarts for the second chance for entrepeneurs (Title III) and measures to raise the effiency of restructuring, insolvency and second chance (Title IV and V).

Preventive Restructuring Frameworks

Art. 4 requieres the Member States to ensure that, „where is the likelihood of insolvency, debtors in financial diffculty have access to an effective preventive restructuring framework that enables them to restructure their debts or business, restore their viability and avoid insolvency.“ Interestingly Art. 5 states that the appointment of a practitioner in the field of restructuring is not mandatory in all cases. It remains to be seen how the group of insolvency practitioners will react to this aspect. According to Art. 6 a general or a limited stay of individual enforcement actions may be ordered for a maximum period of no more than four months. The proceeding aims at negotationg a restructuring plan (see Chapter 3). The restructuring plan needs to be approved by the creditors and confirmed by a judicial or administrative authority (Art.9 and 10). Where the neccessary majority of creditors in one or more voting classes is not reached the plan may still be confirmed by ways of a cross-class cram-down compliant to Art. 11.

Second Chance for Entrepeneurs

Title III sets up rules about the discharge of debt for over-indebted entrepeneurs. First of all the Member States have to ensure that over-indebted entrepeneurs may be fully discharged of their debts (Art. 19). Aditionally the proposal states in Art. 20 that the maximum period of time after which over-indebted entrepreneurs may be fully discharged from their debts shall be no longer than three years. It has to be noted that this might lead to different discharge periods for entrepeneurs and consumers.

Measures to increase the efficiency of restructuring, insolvency and second chance

Title IV mainly tries to ensure that judiciariy and adminsitrative authorities dealing with restructuring and insolvency are proper trained (art. 25). The same applies to insolvency practitioners (Art. 25).  Again, it remains to be seen how the group of insolvency practitioners will react to this aspect. Title V instructs member states to set up a data collection on annual statistics about restructuring and insolvency proceedings.

Finally some thoughts on the interplay between the proposal and the EIR recast. The new preventive restructuring proceedings will principally fall within the scope of the EIR recast (see Art. 1 c) EIR recast). But as it is a directive we will see many different national proceedings. One may not forget that aditionally all these proceedings need to be signed up in Annex A of the EIR to fall within its scope. The proposal might raise some further questions with regards to the EIR recast: Is it possible to give an undertaking pursuant to Art. 36 EIR recast in a preventive restructuring proceeding? May a court order a stay of the opening of a secondary insolvency proceedings according to Art. 38 III EIR recast where there is a preventive restructuring proceeding in the main proceeding?

The Commission´s proposal is ambitiuos. However, it lets important parts of substantive insolvency law, e.g. the ranking of claims or directors liablities untouched. Furthermore it still has to pass the Council and the Parliament. As the Commission´s proposal on the EIR recast, it will probably undergo some major changes in the upcoming process, too. It will be highly interesting how different interest groups might influence the final version of the proposal.

The External Dimension of EU Private International Law after Opinion 1/13, edited by / a cura di Pietro Franzina, Intersentia, 2017, ISBN 9781780684376, pp. xii+226, EUR 59.

The interest of the EU in international efforts towards the harmonisation of private international law has steadily increased over the years. The EU is already a party to several conventions that lay down uniform rules on jurisdiction, conflicts of laws and the recognition and enforcement of judgments. Additionally, various international instruments dealing with judicial cooperation in civil matters have been ratified by the Member States ‘in the interest of the Union’, or are now administered by the EU. On different occasions the Court of Justice has expressed its views regarding the scope of the external competence of the Union in the field of private international law, the conditions upon which this competence should be regarded as exclusive and the principles according to which the competence itself should be exercised. In spite of this, the development of the external dimension of EU private international law remains a controversial topic, and different questions still await answers. The essays collected in this volume critically address some of the main issues concerning the relations of the EU with non-EU countries and international organisations in the area of private international law, as well as the impact of these relations on EU legislation dealing with matters featuring cross-border implications. [T]he book discusses, in particular, the principles stated in the latest intervention of the Court of Justice on this topic, Opinion 1/13, regarding the Union’s competence as to the acceptance of the accession of third States to the Hague Convention of 1980 on international child abduction, as well as the implications of the Opinion for the development of the EU’s external action and legislation in this area.

With contributions by / Con scritti di: Paul Beaumont, Marise Cremona, Serena Forlati, Pietro Franzina, Giorgio Gaja, Jan-Jaap Kuipers, Fabrizio Marongiu Buonaiuti, Alex Mills, Chris Thomale, Chiara E. Tuo, Karen Vandekerckhove and Alessandra Zanobetti.

The table of contents may be downloaded here / Il sommario può essere scaricato qui.

Contrat de travail, exécution - Inaptitude au travail

Contrat de travail, exécution - Inaptitude au travail

Juge des libertés et de la détention

Juge des libertés et de la détention

Lorsqu’une personne demande l’accès à des documents en matière environnementale, la notion d’« informations relatives à des émissions dans l’environnement » couvre notamment celles concernant la nature et les incidences des rejets d’un pesticide dans l’air, l’eau, le sol ou sur les plantes

A contribution by Prof. Dr. Dres. h.c. Burkhard Hess, Max Planck Institute Luxembourg

Note: This post was previously published at blogdroiteuropeen.com by Alexia Pato.

From time to time, the Court of Justice of the EU deals with cases which – at first sight – do not involve much money, but will nevertheless bring about far-reaching consequences for European citizens and consumers. As I would like to demonstrate in this post, Case C-551/15, Pula Parking, might become a prominent example in this respect.

The case under consideration

The Conclusions of AG Bobek summarize the facts of the case as follows: Mr Tederahn, a German resident (and obviously a tourist visiting Croatia), parked his car in a public parking space in the town of Pula, Croatia, in September 2010. He did not pay for the parking. Five years later, the publicly-owned company Pula Parking, d.o.o., entrusted with the administration of the parking space in the city, requested a public notary in Croatia to issue a writ of enforcement against Mr. Tederahn. The sum claimed amounted to 100 HRK (around 13.15 EUR). The defendant challenged the writ. In line with standard national procedure, the case was then transferred to the local national court, the Op?inski sud u Puli-Pola (Pula Municipal Court, Croatia), which is the referring court in this case. The Croatian court asked two questions:

(1) Taking into account the legal nature of the relationship between the parties to the proceedings, is Regulation (EU) No 1215/2012 applicable in the present case?

(2) Does Regulation No 1215/2012 relate also to the jurisdiction of notaries in the Republic of Croatia?’

The line of arguments in the conclusions of AG Bobek

The Advocate General briefly addressed the temporal applicability of the Brussels Ibis Regulation. As Article 66 (1) refers to all proceedings initiated after January 15, 2015, there was no doubt that the Regulation applied to the present case. The real issue was, however, whether the claim was one of a public or a private nature. In this respect, the answer given by the AG was rather brief. The conclusions stress the autonomous interpretation of the concept of ‘civil and commercial matters’ under Article 1 (1) of the Brussels Ibis Regulation (para 41) and start by saying: “In the present case, the applicant rented a parking space to the defendant” (para 42). Starting from the assumption of the existence of a contract, the AG continues: “In principle, both tenancy agreements and contracts for services are capable of falling within the notion of ‘civil and commercial matters’, which should ‘cover all the main civil and commercial matters apart from certain well-defined matters’. Exceptions should be interpreted strictly (para 44). Classified as a contractual dispute, the case was thus easily qualified as a civil matter in the sense of Article 1 (1) Brussels Ibis Regulation. Thereafter, the AG asked whether the fact that the applicant was a publicly-owned entity, having been granted its power by an act of the public authority, changed the nature of the legal relationship into an acta jure imperii which – of course – was not the case. Finally, AG Bobek stressed the fact that the sum that the applicant was seeking to recover from the defendant appeared to constitute consideration for the service provided by the former: “Nothing in the file suggests that it constitutes a penalty or sanction.” (para 50). As a result, construed as a purely contractual matter, the case could move forward under the Brussels Ibis Regulation.

An old precedent – the Hamburger Rathausfall

This line of argument reminded me of an old judgment, given in 1956, of the German Federal Civil Court – the infamous “Hamburger Rathausfall” (BGHZ 23, 396). In this case, the city of Hamburg had converted the public market square in Hamburg into a parking square for which users had to pay a fee of 0,50 Deutschmark per hour. A lawyer who disagreed with this decision parked his car in the parking area, protested loudly against the obligation to pay and left without doing so. When he was summoned before the civil court he declared that he had loudly protested against the fee and had not concluded any contract with the city of Hamburg. Finally, the German Supreme Civil Court held that there was a “factual contract”: according to the court, in the context of modern mass society, contracts concerning the use of commodities and services (such as electricity, gas or parking spaces) can be concluded without or even against the will of the parties. The court expressly referred to the work of two law professors (Haupt and Larenz) who had developed this concept in the 1940s.

However, modern doctrine does not follow this line of argument which is not consistent with the foundational principle of private autonomy and which runs counter to the express will of the parties (which was not highly regarded in the 1940s). Today, the legal argument is as follows: If someone uses the services or goods of common interest without paying the price, he or she will face a claim of unjust enrichment (and additional criminal and administrative sanctions). There is no need to fabricate a contract where – obviously – no contract was concluded among the parties. In the meantime the German BGH has abandoned its former case law.

Civil parking in public streets – a critique of the AG’s arguments

In respect of the claim against Mr. Tederahn, one should go a step further and ask generally whether in the EU Member States the parking of private cars amounts to a private activity. If one looks at the different regimes in the Member States (and here I have to admit that I have not made a comprehensive assessment but asked the collaborators and guests of the MPI about their respective jurisdictions), the idea that car drivers conclude private lease contracts is not the general approach taken. Usually, across Europe, parking in public streets is not considered to constitute the renting of a space from the city. Of course, the situation is different if someone enters a parking garage (or a gated parking area and pays a fee to the owner); in this context, a private lease contract is concluded, often via a machine run by the owner of the parking area.

One must admit that the facts in Pula Parking are not entirely clear: we do not know exactly whether Mr. Tederahn parked his car in a public street or in a (private) parking area but it seems to me that he parked it in a public street. In this context, the legal situation is different; usually, the local police or public servants will sanction the non-payment of the fee by a fine which can amount to a considerable sum of money. Sometimes, private companies are entitled to run the service (obviously the situation in Pula), but their status is regulated by an administrative decision empowering them to implement the regulatory framework. They are acting as trustees of the public authority. Again, in this context, the framework is a public (administrative) law one which prescribes the behavior of the drivers, the fees and the sanctions imposed as well as the powers of the agents implementing the framework. From this perspective, the mere fact that the streets of the city and their use could also be governed via private regulation (servitudes) and lease contracts does not transform the legal relationship between the car drivers and the local cities arising from parking in public streets into a non-public law one. As a result, the Brussels Ibis Regulation does not apply to such a relationship.

And if the AG was right?

If one endorses the line of argument of AG Bobek and applies the Regulation Brussels Ibis to the present case, further practical consequences would ensue: firstly, the question would arise as to whether jurisdiction must be based on Article 24 (1) of the Regulation as the lease contract on the parking space relates to land. Obviously, the conclusions do not endorse this qualification, but refer to Article 7 (1) which applies to contracts for service. However, the ECJ has held that a lease contract is not a contract for services (Case C-533/07, Falco, Case C-469/12, Krejci Lager). From its wording, Article 24 (1) of the Brussels Ibis Regulation applies to the lease of a parking place. However, if one regards the second subparagraph one might easily realize that this head of jurisdiction does not apply to short-term contracts (in this situation, the lease of a parking space for a couple of minutes or hours). Providing for an exclusive head of jurisdiction does not make sense; indeed, it is telling that this constellation has not been addressed in the pertinent legal literature so far.

If one does not apply Article 24 (1), Article 16 (2) of the Regulation Brussels Ibis might preclude the Croatian courts from assuming jurisdiction. Following AG Bobek, the claim is based on a service contract between Pula Parking and Mr. Tederahn. One might wonder whether Mr. Tederahn was contracting as a consumer in the present case – the factual circumstances of his visit to Pula indicate that he came as a tourist. Furthermore, in Case C-497/13, Faber, the ECJ has elaborated a presumption of a consumer dispute when an entrepreneur and a private person are in a contractual relationship. However, Article 17 (1) of the Regulation Brussels Ibis requires that the entrepreneur directs his commercial activities to the Member State of the consumer. Yet, much depends again on the (unknown) circumstances of the case under consideration. Nevertheless, if Pula Parking provides for information about parking in foreign languages or if the tourist office promotes tourism to Pula in foreign languages to the German market (i.e. via a website), one might consider this to be a commercial activity in the sense of Article 17 of the Brussels Ibis Regulation. So far, the ECJ has not addressed the specific context of marketing activities related to tourism under Article 17 of the Brussels Ibis Regulation. It would be interesting to see whether and how Article 17 would be applied to the present case.

Finally, if one does not follow the AG’s conclusion that the contract had been concluded by simply parking a car, jurisdiction under Article 7 (2) of the Brussels Ibis Regulation cannot be established either: Pula Parking is not a claiming damages based on tort – because there is no damage on the side of Pula Parking. The underlying claim is based on unjust enrichment; however unjust enrichment does not open up the specific jurisdiction under Article 7 (2) of Brussels Ibis.

As a result it can be stated that the Brussels Ibis Regulation does not open up the jurisdiction of the Croatian judicial authorities unless Article 24 (1) is applied to the lease of parking places. However, it is telling that the notary simply issued the payment order without verifying whether Brussels Ibis conferred international jurisdiction to him. This is, indeed, a matter of concern. In this respect, the case under consideration corresponds to other cases of consumer protection where (mainly Hungarian and Spanish) notaries did not sufficiently address mandatory consumer protection law. In Case C-94/14, Flight Refund, the Court was confronted with a similar situation concerning Hungarian notaries who applied the European Payment Order Regulation in an extensive way against foreign airlines.

Further (adverse) consequences of the opinion

In answering the second question referred to the ECJ, AG Bobek also comes to the conclusion that the payment order of the Croatian notary cannot be enforced under the Brussels Ibis Regulation: according to the conclusions, the Hungarian notary does not meet the requirements of Article 2 lit a) of the Regulation because the notary cannot be regarded as a “court or tribunal of a Member State”. This conclusion is certainly correct though I doubt whether the definition elaborated by the conclusions corresponds to the needs of the Brussels Ibis Regulation.

However, it does not concern the main issue raised here: if the Regulation is declared applicable to the parking of cars in public streets, a new market of cross-border debt collection will be opened up. The European debt collection industry will take up and streamline these cases and will bring claims against the consumers and tourists under the different EU instruments (especially the European Payment Order Regulation) and collect parking fees. The next step might be an increase of the amount of the fees and fines by the local cities and boroughs in order to create substantial profits. Consumers and tourists will be confronted with a further area of debt collection which might be experienced as a kind of “Europe à l’envers”: instead of profiting as tourists from the freedom of movement and services within the judicial area, local authorities will profit from the possibility to raise and collect fees cross-border from ordinary people living abroad. As a further result, fees to be paid to the debt collection industry might equally explode. Finally, the satisfaction of the population with the “efficiency” of the justice systems in Europe may decrease as they have to pay for it – in the proper sense off the term. In this respect, the better way to permit the cross-border collection of public debts would be the implementation of a specific instrument by legislation – not by the ECJ.

Therefore, it is to be hoped (and expected) that the Court of Justice will adopt and endorse a different approach to the case under consideration.

La CEDH condamne de nouveau la Lituanie pour avoir accordé l’immunité de juridiction à un État dans un litige relatif au contrat de travail du personnel non diplomatique d’une ambassade située sur son territoire.

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La loi du 7 octobre 2016 autorisant la ratification – par la France – de la convention sur la répression des actes illicites dirigés contre l’aviation civile internationale et du protocole complémentaire à la convention pour la répression de la capture illicite d’aéronefs actualise le cadre juridique de la lutte contre le terrorisme aérien et intègre dans le droit interne un certain nombre de dispositions novatrices pour améliorer la sûreté du transport aérien.

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The Universities of Genoa, Valencia, Amsterdam, Glasgow, Mainz, the Tur?ba University, the Charles University in Prague, the Institute of Private International Law in Sofia, and IPR Verlag Munich are currently conducting a research Project to collect and develop private and procedural international law best practices in cross border insolvency and pre-insolvency proceedings. The SaveComp Project, co-funded by the European Union by the Action grants to support judicial cooperation in civil and criminal matters JUST/2014/JCOO/AG/CIVI/7693, foresees the involvement of practitioners and academics which are given the opportunity to contribute to determining the state of the art by answering a questionnaire. The subsequent practical comparative and international study of the Partners to the Project, also based on such answers, wishes to provide practitioners with further knowledge and tools to ensure a smoother cross-border cooperation in the subject matter.

On the official website of the Project you can find the questionnaire translated into English, German, Czech, Spanish, Dutch, Bulgarian, Latvian, and Italian. Answering the questionnaire takes approximately 15-20 minutes, and consultations are open until the end of January 2017. Answers are anonymous; they only require the indication of your profession, and will not be published. On every file you will find the email address to which answers should be sent.

Click here to see the webpage of questionnaire: http://savecomp.eu/questionnaire/.

The Partners to the Project appreciate your involvement!

Apologies for the truly misleading title. Trumpism and Brexitism is getting to me. Yes, it sounds awkward to hold that a tube which is at the very inside of  product can be categorised as ‘packaging’. Yet it fits completely within the fabric of the EU’s Packaging and packaging and packaging waste Directive 94/62 (as amended).

The CJEU held 2 weeks ago in Joined Cases C‑313/15 and C‑530/15 Eco-Emballages et al., on the issue whether Rolls, tubes and cylinders around which flexible material is wound (‘Roll cores’) are ‘packaging’ within the meaning of the Directive, hence subject to recycling etc. targets and also to fees under collective schemes. The Directive defines packaging as

all products made of any materials of any nature to be used for the containment, protection, handling, delivery and presentation of goods, from raw materials to processed goods, from the producer to the user or the consumer. ‘Non-returnable’ items used for the same purposes shall also be considered to constitute packaging.

‘Packaging’ consists only of:

(a) sales packaging or primary packaging, i.e. packaging conceived so as to constitute a sales unit to the final user or consumer at the point of purchase;

(b) grouped packaging or secondary packaging, i.e. packaging conceived so as to constitute at the point of purchase a grouping of a certain number of sales units whether the latter is sold as such to the final user or consumer or whether it serves only as a means to replenish the shelves at the point of sale; it can be removed from the product without affecting its characteristics;

(c) transport packaging or tertiary packaging, i.e. packaging conceived so as to facilitate handling and transport of a number of sales units or grouped packagings in order to prevent physical handling and transport damage. Transport packaging does not include road, rail, ship and air containers….

This definitional article then continues with references to an illustrative Annex and an update of this Annex by way of comitology. Any such measures are adopted in accordance with the regulatory procedure with scrutiny, resulting in a new, 2013 Annex 1 to the Directive adopted by the Commission in February 2013, which specifically refers to rolls. At issue in the case was therefore whether the EC had acted ultra vires in that annex (which it had adopted ‘alone’ since the committee established by Article 21 of Directive 94/62 did not deliver an opinion and the Council did not take any decision on the Commission’s proposal).

The Court confirms that roll cores meet entirely with the core definition of the Directive: they protect from the inside the flexible products wound around them, which strengthens those products, allowing their presentation and facilitating their transport and use. A roll core is, moreover, a ‘non-returnable’ item, within the meaning of the second sentence of the first subparagraph of Article 3(1), once the flexible product wound around it has been used up.

A storm in a tea-cup therefore and rolls confirmed as packaging.

Geert.

(Handbook of EU Waste law, second ed. OUP 2015, Chapter 4).

A contribution by Prof. Dr. Dres. h.c. Burkhard Hess, Max Planck Institute Luxembourg

Note: This post was previously published at blogdroiteuropeen.com by Alexia Pato.

From time to time, the Court of Justice of the EU deals with cases which – at first sight – do not involve much money, but will nevertheless bring about far-reaching consequences for European citizens and consumers. As I would like to demonstrate in this post, Case C-551/15, Pula Parking, might become a prominent example in this respect.

The case under consideration

The Conclusions of AG Bobek summarize the facts of the case as follows: Mr Tederahn, a German resident (and obviously a tourist visiting Croatia), parked his car in a public parking space in the town of Pula, Croatia, in September 2010. He did not pay for the parking. Five years later, the publicly-owned company Pula Parking, d.o.o., entrusted with the administration of the parking space in the city, requested a public notary in Croatia to issue a writ of enforcement against Mr. Tederahn. The sum claimed amounted to 100 HRK (around 13.15 EUR). The defendant challenged the writ. In line with standard national procedure, the case was then transferred to the local national court, the Op?inski sud u Puli-Pola (Pula Municipal Court, Croatia), which is the referring court in this case. The Croatian court asked two questions:

(1) Taking into account the legal nature of the relationship between the parties to the proceedings, is Regulation (EU) No 1215/2012 applicable in the present case?

(2) Does Regulation No 1215/2012 relate also to the jurisdiction of notaries in the Republic of Croatia?’

 

The line of arguments in the conclusions of AG Bobek

The Advocate General briefly addressed the temporal applicability of the Brussels Ibis Regulation. As Article 66 (1) refers to all proceedings initiated after January 15, 2015, there was no doubt that the Regulation applied to the present case. The real issue was, however, whether the claim was one of a public or a private nature. In this respect, the answer given by the AG was rather brief. The conclusions stress the autonomous interpretation of the concept of ‘civil and commercial matters’ under Article 1 (1) of the Brussels Ibis Regulation (para 41) and start by saying: “In the present case, the applicant rented a parking space to the defendant” (para 42). Starting from the assumption of the existence of a contract, the AG continues: “In principle, both tenancy agreements and contracts for services are capable of falling within the notion of ‘civil and commercial matters’, which should ‘cover all the main civil and commercial matters apart from certain well-defined matters’. Exceptions should be interpreted strictly (para 44). Classified as a contractual dispute, the case was thus easily qualified as a civil matter in the sense of Article 1 (1) Brussels Ibis Regulation. Thereafter, the AG asked whether the fact that the applicant was a publicly-owned entity, having been granted its power by an act of the public authority, changed the nature of the legal relationship into an acta jure imperii which – of course – was not the case. Finally, AG Bobek stressed the fact that the sum that the applicant was seeking to recover from the defendant appeared to constitute consideration for the service provided by the former: “Nothing in the file suggests that it constitutes a penalty or sanction.” (para 50). As a result, construed as a purely contractual matter, the case could move forward under the Brussels Ibis Regulation.

 

An old precedent – the Hamburger Rathausfall

This line of argument reminded me of an old judgment, given in 1956, of the German Federal Civil Court – the infamous “Hamburger Rathausfall” (BGHZ 23, 396). In this case, the city of Hamburg had converted the public market square in Hamburg into a parking square for which users had to pay a fee of 0,50 Deutschmark per hour. A lawyer who disagreed with this decision parked his car in the parking area, protested loudly against the obligation to pay and left without doing so. When he was summoned before the civil court he declared that he had loudly protested against the fee and had not concluded any contract with the city of Hamburg. Finally, the German Supreme Civil Court held that there was a “factual contract”: according to the court, in the context of modern mass society, contracts concerning the use of commodities and services (such as electricity, gas or parking spaces) can be concluded without or even against the will of the parties. The court expressly referred to the work of two law professors (Haupt and Larenz) who had developed this concept in the 1940s.

However, modern doctrine does not follow this line of argument which is not consistent with the foundational principle of private autonomy and which runs counter to the express will of the parties (which was not highly regarded in the 1940s). Today, the legal argument is as follows: If someone uses the services or goods of common interest without paying the price, he or she will face a claim of unjust enrichment (and additional criminal and administrative sanctions). There is no need to fabricate a contract where – obviously – no contract was concluded among the parties. In the meantime the German BGH has abandoned its former case law.

 

Civil parking in public streets – a critique of the AG’s arguments

In respect of the claim against Mr. Tederahn, one should go a step further and ask generally whether in the EU Member States the parking of private cars amounts to a private activity. If one looks at the different regimes in the Member States (and here I have to admit that I have not made a comprehensive assessment but asked the collaborators and guests of the MPI about their respective jurisdictions), the idea that car drivers conclude private lease contracts is not the general approach taken. Usually, across Europe, parking in public streets is not considered to constitute the renting of a space from the city. Of course, the situation is different if someone enters a parking garage (or a gated parking area and pays a fee to the owner); in this context, a private lease contract is concluded, often via a machine run by the owner of the parking area.

One must admit that the facts in Pula Parking are not entirely clear: we do not know exactly whether Mr. Tederahn parked his car in a public street or in a (private) parking area but it seems to me that he parked it in a public street. In this context, the legal situation is different; usually, the local police or public servants will sanction the non-payment of the fee by a fine which can amount to a considerable sum of money. Sometimes, private companies are entitled to run the service (obviously the situation in Pula), but their status is regulated by an administrative decision empowering them to implement the regulatory framework. They are acting as trustees of the public authority. Again, in this context, the framework is a public (administrative) law one which prescribes the behavior of the drivers, the fees and the sanctions imposed as well as the powers of the agents implementing the framework. From this perspective, the mere fact that the streets of the city and their use could also be governed via private regulation (servitudes) and lease contracts does not transform the legal relationship between the car drivers and the local cities arising from parking in public streets into a non-public law one. As a result, the Brussels Ibis Regulation does not apply to such a relationship.

 

And if the AG was right?

If one endorses the line of argument of AG Bobek and applies the Regulation Brussels Ibis to the present case, further practical consequences would ensue: firstly, the question would arise as to whether jurisdiction must be based on Article 24 (1) of the Regulation as the lease contract on the parking space relates to land. Obviously, the conclusions do not endorse this qualification, but refer to Article 7 (1) which applies to contracts for service. However, the ECJ has held that a lease contract is not a contract for services (Case C-533/07, Falco, Case C-469/12, Krejci Lager). From its wording, Article 24 (1) of the Brussels Ibis Regulation applies to the lease of a parking place. However, if one regards the second subparagraph one might easily realize that this head of jurisdiction does not apply to short-term contracts (in this situation, the lease of a parking space for a couple of minutes or hours). Providing for an exclusive head of jurisdiction does not make sense; indeed, it is telling that this constellation has not been addressed in the pertinent legal literature so far.

If one does not apply Article 24 (1), Article 16 (2) of the Regulation Brussels Ibis might preclude the Croatian courts from assuming jurisdiction. Following AG Bobek, the claim is based on a service contract between Pula Parking and Mr. Tederahn. One might wonder whether Mr. Tederahn was contracting as a consumer in the present case – the factual circumstances of his visit to Pula indicate that he came as a tourist. Furthermore, in Case C-497/13, Faber, the ECJ has elaborated a presumption of a consumer dispute when an entrepreneur and a private person are in a contractual relationship. However, Article 17 (1) of the Regulation Brussels Ibis requires that the entrepreneur directs his commercial activities to the Member State of the consumer. Yet, much depends again on the (unknown) circumstances of the case under consideration. Nevertheless, if Pula Parking provides for information about parking in foreign languages or if the tourist office promotes tourism to Pula in foreign languages to the German market (i.e. via a website), one might consider this to be a commercial activity in the sense of Article 17 of the Brussels Ibis Regulation. So far, the ECJ has not addressed the specific context of marketing activities related to tourism under Article 17 of the Brussels Ibis Regulation. It would be interesting to see whether and how Article 17 would be applied to the present case.

Finally, if one does not follow the AG’s conclusion that the contract had been concluded by simply parking a car, jurisdiction under Article 7 (2) of the Brussels Ibis Regulation cannot be established either: Pula Parking is not a claiming damages based on tort – because there is no damage on the side of Pula Parking. The underlying claim is based on unjust enrichment; however unjust enrichment does not open up the specific jurisdiction under Article 7 (2) of Brussels Ibis.

As a result it can be stated that the Brussels Ibis Regulation does not open up the jurisdiction of the Croatian judicial authorities unless Article 24 (1) is applied to the lease of parking places. However, it is telling that the notary simply issued the payment order without verifying whether Brussels Ibis conferred international jurisdiction to him. This is, indeed, a matter of concern. In this respect, the case under consideration corresponds to other cases of consumer protection where (mainly Hungarian and Spanish) notaries did not sufficiently address mandatory consumer protection law. In Case C-94/14, Flight Refund, the Court was confronted with a similar situation concerning Hungarian notaries who applied the European Payment Order Regulation in an extensive way against foreign airlines.

 

Further (adverse) consequences of the opinion

In answering the second question referred to the ECJ, AG Bobek also comes to the conclusion that the payment order of the Croatian notary cannot be enforced under the Brussels Ibis Regulation: according to the conclusions, the Hungarian notary does not meet the requirements of Article 2 lit a) of the Regulation because the notary cannot be regarded as a “court or tribunal of a Member State”. This conclusion is certainly correct though I doubt whether the definition elaborated by the conclusions corresponds to the needs of the Brussels Ibis Regulation.

However, it does not concern the main issue raised here: if the Regulation is declared applicable to the parking of cars in public streets, a new market of cross-border debt collection will be opened up. The European debt collection industry will take up and streamline these cases and will bring claims against the consumers and tourists under the different EU instruments (especially the European Payment Order Regulation) and collect parking fees. The next step might be an increase of the amount of the fees and fines by the local cities and boroughs in order to create substantial profits. Consumers and tourists will be confronted with a further area of debt collection which might be experienced as a kind of “Europe à l’envers”: instead of profiting as tourists from the freedom of movement and services within the judicial area, local authorities will profit from the possibility to raise and collect fees cross-border from ordinary people living abroad. As a further result, fees to be paid to the debt collection industry might equally explode. Finally, the satisfaction of the population with the “efficiency” of the justice systems in Europe may decrease as they have to pay for it – in the proper sense off the term. In this respect, the better way to permit the cross-border collection of public debts would be the implementation of a specific instrument by legislation – not by the ECJ.

Therefore, it is to be hoped (and expected) that the Court of Justice will adopt and endorse a different approach to the case under consideration.

Uglješa Grušić, Long-Term Business Relationships and Implicit Contracts in European Private Law, (2016) European Review of Contract Law (forthcoming / di prossima pubblicazione), available through / disponibile su SSRN.

In Granarolo SpA v Ambrosi Emmi France SA, the European Court of Justice held that a dispute between a distributor and its supplier concerning an action for damages for the abrupt termination of a long-term business relationship, which was not expressed in a framework, umbrella contract, was a matter relating to a contract for the purposes of European private international law. This note explores the wider significance of Granarolo for the meaning of ‘contract’ in European contract law.

Dans un arrêt de grande chambre, la Cour européenne des droits de l’homme (CEDH) juge que la conduite de procédures mixtes pouvant aboutir à un cumul de peines ne méconnaît pas le droit à ne pas être puni deux fois pour la même infraction, dès lors qu’il existe entre ces procédures un lien matériel et temporel suffisamment étroit.

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