Flux européens

Apple / EUIPO - Swatch (THINK DIFFERENT)
Propriété intellectuelle et industrielle
Apple et Swatch « THINK DIFFERENT »

The Court of Justice delivered last week (2 June 2022) its judgment in Case C‑196/21 (SR and alii), which is about the Service bis Regulation:

« Article 5(2) of Regulation (EC) No 1393/2007 […] must be interpreted as meaning that, where a court orders the transmission of judicial documents to third parties that apply for leave to intervene in the proceedings, that court cannot be regarded as being the ‘applicant’ within the meaning of that provision”.

Note : Article 5 Service bis Regulation states :

“1. The applicant shall be advised by the transmitting agency to which he forwards the document for transmission that the addressee may refuse to accept it if it is not in one of the languages provided for in Article 8.

2. The applicant shall bear any costs of translation prior to the transmission of the document, without prejudice to any possible subsequent decision by the court or competent authority on liability for such costs”.

Source: https://curia.europa.eu/juris/document/document.jsf;jsessionid=D6263372CF35902864FE65D23613F425?text=&docid=260188&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=4507548

The Court of Justice delivered last week (2 June 2022) its judgment in Case C‑617/20 (T.N. and alii), which is about the Succession Regulation:

“Articles 13 and 28 of Regulation (EU) No 650/2012 […] must be interpreted as meaning that a declaration concerning the waiver of succession made by an heir before a court of the Member State of his or her habitual residence is regarded as valid as to form in the case where the formal requirements applicable before that court have been complied with, without it being necessary, for the purposes of that validity, for that declaration to meet the formal requirements of the law applicable to the succession”.

Source: https://curia.europa.eu/juris/document/document.jsf;jsessionid=D6263372CF35902864FE65D23613F425?text=&docid=260184&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=4507548

‘Soonish’ was pretty accurate – I have been busy teaching LAW5478 at Monash. In Bourlakova v Bourlakov [2022] EWHC 1269 (Ch),  Trower J held ia against a stay of English proceedings on Article 34 Brussels Ia grounds. My paper on Article 33-34 is in the editorial stages at the Journal of Private International Law and the case will be included in its overview of the case-law so far. That case-law is predominantly English, perhaps a reflection of how (wrongly) English courts are convinced into thinking the Article 33-34 defence is another form of a forum non convenience objection to jurisdiction.

As in many of the cases (including Municipio de Mariana in which a Court of Appeal judgment ought to be delivered around June /July), the judge has to consider a mixed forum non conveniens (for the non-EU based defendants) and Article 33-34 (for the EU domicileds) defence. On top of that, there are applications for a  case-management  stay, and objections to valid service in Latvia. In other words, the classic ‘everything including the kitchen sink’ jurisdictional defence, leading to a judgment of over 400 paras long!

Jurisdiction in the case as far as Brussels Ia i concerned, is a combination of Article 4 and 8(1) – the Lugano Convention also has a calling.

Claimants are Mrs Loudmila Bourlakova and two companies of which she is the ultimate beneficiary, one of which (Hermitage One Limited (“H1”)) is incorporated in the Isle of Man and the second of which (Greenbay Invest Holdings Limited (“Greenbay”)) is incorporated in the Seychelles.  First defendant is Oleg Bourlakov, who died on 21 June 2021, which was after the commencement of these proceedings but before the applications to challenge jurisdiction had been made. The major part of his and his family’s wealth derived from the acquisition and subsequent sale of Novoroscement OJSC, a major Russian cement producer, which was sold for US$1.45 billion in 2007. Both Bourlakovi are or were Ukrainian, Russian and Canadian nationals. At the material time they were both domiciled in Monaco, although during the course of their marriage they had lived in a number of other jurisdictions including Canada.

Claimants allege that, since late 2017, there had been an irretrievable breakdown in marital relations. Divorce proceedings were initiated by Mrs Bourlakova in Monaco in 2018. It was common ground in the Monaco divorce proceedings that the law governing the matrimonial property regime is Ukrainian law and the Ukrainian concept of community property applied to the marriage. The Monegasque courts remained seised of the divorce proceedings at the time of Mr Bourlakov’s death.

Second to fourth defendants were all involved in the provision of fiduciary corporate services and advice to Mr Bourlakov, together with companies and foundations owned or controlled by him. Domicile for these is England, Cyprus or Switzerland. Fifth defendant, domiciled in Israel, somehow got caught up in the proceedings through a family trust, and is pursuing alternative litigation in England. Sixth defendant is a German qualified lawyer domiciled in Latvia, other defendants (family members ) are domiciled at Estonia or (companies) Panama.

The essence of the allegations is that Mr Bourlakov and his advisers conspired to reduce the share of the ex-wife in the matrimonial estate.  Mr Bourlakov and Mrs Bourlakova have never lived in England and the alleged partnership at the heart of the dispute is unrelated to England, did not operate here and is not governed by English law. None of the underlying assets which the claimants believe form part of Mr Bourlakov’s estate are located in England (or even held through English companies). Neither though, does Monaco (the alternative forum suggested in the jurisdictional objection) feature in the factual matrix.  One of the defendants is domiciled in England and one or two relevant meetings were held in England.

Divorce proceedings were commenced in Monaco and Mr Bourlakov and his advisers filed criminal proceedings there against Mrs Bourlakova on the basis of alleged breach of trust, concealment and money-laundering.  As is often the case in continental European proceedings, a civil claim there was lodged with an investigating judge, which will eventually lead to a court required to rule on the civil claim as well as the criminal one. Mr Bourlakov’s compaint has led to nought however Mrs Bourlakova’s counterclaim is still pending there in some, disputed form, as are Mr Bourlakov’s estate proceedings.

There is an extraordinarily complex web of issues to be held under English and EU jurisdictional rules but I shall limit this post to the Article 34 stay application – which was held obiter.

The judge [292] firstly notes, as noted obiter (for the A34 defence was raised too late), with reference ia to CJEU Aertssen,  that the defendants had not properly established that the Monaco criminal proceedings, viewed from the pont of Monegasque criminal procedure, were an “action pending before the court of a third state” for the purposes of A34 at the time the current proceedings were commenced.

[294] ff also discuss, equally obiter, whether any related third state action must fall within the scope of BIa for A34 to apply at all. [298] ff in that respect refer to two cases in which it was accepted that the court must be satisfied that the proceedings pending in the foreign jurisdiction, as well as the English proceedings, fall within the scope of BIa. However, in neither [BB Energy (Gulf) DMCC v Al Amoudi, WWRT Ltd v Tyshchenko, both engaged with the insolvency exclusion of BIa] was there a judicial decision on the point.

[312] Trower J also notes that A34 ‘accepts more risk of an irreconcilable judgment than article 30’, despite the reference in the recitals to flexibility. ‘Related’ actions are also discussed with reference to Viegas, and the judge [330] ff suggests he would not have ordered a stay on five further grounds, some of them related it seems to the ‘sound administration of justice’ requirement (and cited, too, for the refusal of a case management stay).

A complex web of findings and claims, with the A34 discussion showing that much is still outstanding on its application. I do not yet know whether permission to appeal has been sought and if so, on what grounds.

Geert.

European Private International, 3rd ed. 2021, Heading 2.2.15.3.2, para 2.539 ff

Unsuccessful application for an Article 34 'forum non conveniens light' application in light of Monaco criminal proceedings.
Review on the blog soonish (it's busy here @MonashLawSchool)

Bourlakova v Bourlakov [2022] EWHC 1269 (Ch)https://t.co/zYJiztXQFm

— Geert Van Calster (@GAVClaw) May 26, 2022

Louboutin (Usage d’un signe contrefaisant sur un marché en ligne)
Propriété intellectuelle et industrielle
Vente en ligne d’escarpins Louboutin contrefaits : selon l’avocat général Szpunar, la spécificité du mode de fonctionnement d’Amazon ne permet pas de conclure à l’usage d’un signe au sens du droit de l’Union

Daimler (Responsabilité des constructeurs de véhicules munis de dispositifs d’invalidation)
Environnement et consommateurs
Dispositifs d’invalidation illicites dans les véhicules diesel : l’avocat général Rantos estime que l’acheteur d’un véhicule équipé d’un tel dispositif doit se voir reconnaître un droit à réparation contre le constructeur automobile

FCC Česká republika
Environnement et consommateurs
La seule prolongation de la durée d’exploitation d’une décharge de déchets ne constitue pas une modification substantielle de l’autorisation d’installation

Get Fresh Cosmetics
Rapprochement des législations
Bombes de bain effervescentes : les États membres peuvent, sous certaines conditions, restreindre la distribution de produits cosmétiques susceptibles, parce qu’ils en ont l’apparence, d’être confondus avec des denrées alimentaires et d’entraîner des risques pour la santé

HK/Danmark et HK/Privat
Principes du droit communautaire
Une limite d’âge prévue par les statuts d’une organisation de travailleurs pour être éligible au poste de président de celle-ci relève du champ d’application de la directive « antidiscrimination »

Regulation (EU) 2022/850 of the European Parliament and of the Council of 30 May 2022 on a computerised system for the cross-border electronic exchange of data in the area of judicial cooperation in civil and criminal matters (e-CODEX system), and amending Regulation (EU) 2018/1726, has been published at the OJEU, L 150, 1.6.2022, p. 1.

Source: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2022.150.01.0001.01.ENG&toc=OJ%3AL%3A2022%3A150%3ATOC

Prigozhin / Conseil
Relations extérieures
Le Tribunal confirme les mesures restrictives adoptées par le Conseil à l’encontre de l’homme d’affaires russe Yevgeniy Viktorovich Prigozhin, en raison de la situation en Libye

T-510/17 & Del Valle Ruiz e.a./Commission et CRU, T-523/17 & Eleveté Invest Group e.a./Commission et CRU, T-570/17& Algebris (UK) et Anchorage Capital Group/Commission et T-628/17 & Aeris Invest/Commission et CRU
Politique économique
Les recours visant à l’annulation du dispositif de résolution de Banco Popular et/ou de la décision de la Commission l’approuvant sont rejetés dans leur intégralité

The Hague Special Commission on the Practical Operation of the 2007 Child Support Convention and 2007 Maintenance Obligations Protocol was held from 17 to 19 May 2022. The meeting resulted in the adoption of over 80 Conclusions & Recommendations, released this week.

“Among other things, HCCH Members and Contracting Parties:

Confirmed that the Convention and Protocol are fit for purpose and reaffirmed their global scope;

Discussed effective access to legal assistance for children, including children studying abroad, for the recovery of maintenance obligations arising from a parent-child relationship;

Emphasised that the right of the child to child support takes precedence over the right of the debtor to privacy in financial matters;

Discussed the enforcement of child support against the debtor’s assets located in another State;

Discussed that child support can be established without necessarily establishing parentage;

Discussed the non-disclosure of personal information when the health, safety or liberty of a person involved in child support recovery could be jeopardised;

Discussed the use of secure means of communication for the recovery of child support, including the iSupport electronic case management and secure communication system for the recovery of cross-border maintenance under the EU 2009 Maintenance Regulation and the 2007 HCCH Child Support Convention;

Reaffirmed their commitment towards the abolition of cheques in their international transfer of maintenance funds;

Took note of the Report of the International Transfer of Maintenance Funds Experts’ Group which highlighted the potential benefits of the Universal Postal Union’s Postal Payment Services Agreement of 6 October 2016 as a cost-effective way to transfer maintenance funds internationally”.

Source: https://www.hcch.net/en/news-archive/details/?varevent=859

The conclusions and recommendations may be found at https://assets.hcch.net/docs/ee328db7-1d7a-4e8a-b765-2e35e937a466.pdf.

A post I started writing on 14 December 2021 so it’s about time I’ld finish it. In  Guistra v Twitter 2021 BCCA 466 (the case echoes Haaretz in Ontario) the Supreme Court of British Columbia with  Grauer J delivering the unanimous opinion, upheld jurisdiction for the BC courts on the basis of the claim pointing to a tort having been committed in BC, BC therefore being locus delicti commissi. The Court held that damage in the jurisdiction, locus damni, needs then not separately be argued.

Mr. Giustra, a British Columbia resident, alleges that Twitter published tweets that defamed him in British Columbia, as well as elsewhere.  Twitter asserts nota bene that, in law, it cannot properly be considered a “publisher” of tweets that were authored and posted on its platform by its users. That issue is deferred for the merits of the claim: at the jurisdiction level, the pleading is what is important: compare with the situation under Brussels Ia.

A forum non conveniens challenge in favour of the courts at California was rejected, where reference was made ia to Google v Equustek. There is an elephant in the room here, so identified, namely that a claim in California is doomed to fail on free speech grounds, and that an eventual Canadian judgment is doomed to be unenforceable at least in the US.

A good judgment for comparative purposes.

Geert.

Forum delicti commissi, no need to establish forum damni, damage to reputation in the jurisdiction. Rejection of forum non conveniens jurisdiction challenge also upheld.
Via @Greg_Callus https://t.co/OrRV0fsrFi

— Geert Van Calster (@GAVClaw) December 14, 2021

The Court of Justice delivered yesterday (19 May 2022) its judgment in case C‑33/21 (Istituto nazionale per l’assicurazione contro gli infortuni sul lavoro (INAIL), Istituto nazionale della previdenza sociale (INPS) v Ryanair DAC):

“Article 14(2)(a)(i) of Regulation (EEC) No 1408/71 [on social security] must be interpreted as meaning that the social security legislation applicable to the flight and cabin crew of an airline, established in a Member State, which crew is not covered by E101 certificates and which work for 45 minutes per day in premises intended to be used by staff, known as the ‘crew room’, which that airline has in the territory of another Member State in which that flight and cabin crew reside and, which for the remaining working time, are on board that airline’s aircraft is the legislation of the latter Member State”.

Source: https://curia.europa.eu/juris/document/document.jsf?docid=259607&text=&dir=&doclang=EN&part=1&occ=first&mode=DOC&pageIndex=0&cid=1267764

The European Commission Recommendation (EU) 2022/758 of 27 April 2022 on protecting journalists and human rights defenders who engage in public participation from manifestly unfounded or abusive court proceedings (‘Strategic lawsuits against public participation’), C/2022/2428, has been published this week at the OJEU (L 138, 17.5.2022, p. 30).

Source: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2022.138.01.0030.01.ENG&toc=OJ%3AL%3A2022%3A138%3ATOC

The Grand Chamber delivered on 17 May 2022 its judgment in case C‑869/19 (L v Unicaja Banco SA, formerly Banco de Caja España de Inversiones, Salamanca y Soria SAU), which is about Directive 93/13/EEC on Unfair terms in consumer contracts and national rules of procedure:

“Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as precluding the application of principles of national judicial procedure, under which a national court, hearing an appeal against a judgment temporally limiting the repayment of sums wrongly paid by the consumer under a term declared to be unfair, cannot raise of its own motion a ground relating to the infringement of that provision and order the repayment of those sums in full, where the failure of the consumer concerned to challenge that temporal limitation cannot be attributed to his or her complete inaction”.

Source: https://curia.europa.eu/juris/document/document.jsf?docid=259430&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=922860

The Court of Justice delivered on 12 May 2022 its judgment in case C‑644/20, which is about not the Maintenance Regulation itself but the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations. 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):

« L’article 3 du protocole de La Haye, du 23 novembre 2007, sur la loi applicable aux obligations alimentaires […] doit être interprété en ce sens que, aux fins de la détermination de la loi applicable à la créance alimentaire d’un enfant mineur déplacé par l’un de ses parents sur le territoire d’un État membre, la circonstance qu’une juridiction de cet État membre a ordonné, dans le cadre d’une procédure distincte, le retour de cet enfant dans l’État où il résidait habituellement avec ses parents immédiatement avant son déplacement, ne suffit pas à empêcher que ledit enfant puisse acquérir une résidence habituelle sur le territoire de cet État membre ».

Source : https://curia.europa.eu/juris/document/document.jsf?docid=259145&text=&dir=&doclang=FR&part=1&occ=first&mode=DOC&pageIndex=0&cid=209782

AG Collins delivered on 5 May 2022 his opinion in case C‑700/20 (The London Steam-Ship Owners’ Mutual Insurance Association Limited v Kingdom of Spain), which is about Brussels I (recognition of a judgment given in another Member State, a judgment irreconcilable with a judgment incorporating an arbitral award given between the same parties in the Member State in which recognition is sought).

Background: “Slightly under two decades ago, in November 2002, the M/T Prestige (‘the vessel’), a single-hull oil tanker registered in the Bahamas, broke into two sections and sank off the coast of Galicia (Spain). At the time the vessel was carrying 70 000 tonnes of heavy fuel oil and the resulting oil spill caused significant damage to beaches, towns and villages along the northern coastline of Spain and the western coastline of France. […] the sinking of the vessel generated a lengthy dispute between its insurers and the Spanish State pursued by way of two different procedures in two Member States. It resulted in two judgments: one delivered by the Audiencia Provincial de La Coruña (Provincial Court, A Coruña, Spain), the other handed down by the High Court of Justice (England & Wales), Queen’s Bench Division (Commercial Court) (United Kingdom). The Spanish State ultimately sought to have the judgment of the Audiencia Provincial de La Coruña (Provincial Court, A Coruña) recognised by the courts of England & Wales. In the last days of the transitional period after the withdrawal of the United Kingdom from the European Union, the High Court of Justice (England & Wales) made a reference for preliminary ruling seeking an interpretation by the Court of Justice of Article 1(2)(d) and Article 34(1) and (3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters”.

[…]

13. At the time the vessel sank, its owners (‘the owners’) had Protection & Indemnity (‘P&I’) insurance with The London Steam-Ship Owners’ Mutual Insurance Association Limited (‘the Club’), (7) pursuant to an insurance contract concluded by a certificate of entry dated 20 February 2002 (‘the insurance contract’). By that contract, the Club agreed to provide P&I cover for the owners in respect of, inter alia, any one occurrence of liability for pollution up to a maximum aggregate amount of 1 billion United States dollars (USD). The insurance contract was subject to the Club’s Rules, that is, the standard terms and conditions of the insurance policy incorporated into the certificate of entry. Rule 3, entitled ‘Right to recover’, provided for a ‘pay to be paid’ clause (8) in the terms following:

‘3.1 If any member shall incur liabilities, costs or expenses for which he is insured he shall be entitled to recovery from the Association out of the funds of this Class, PROVIDED that:

3.1.1 actual payment (out of monies belonging to him absolutely and not by way of loan or otherwise) by the Member of the full amount of such liabilities, costs and expenses shall be a condition precedent to his right of recovery;…’

14. Rule 43 of the Club’s Rules, entitled ‘Jurisdiction and law’, contained an arbitration clause whereby ‘if any difference or dispute shall arise between a Member and the Association’, ‘such difference or dispute’ was to be referred to arbitration in London (United Kingdom) before a sole legal arbitrator subject to English law and the Arbitration Act 1996.

15. In late 2002, criminal proceedings were initiated in Spain against, inter alia, the vessel’s master, chief officer and chief engineer.

16. In or about June 2010, at the conclusion of the investigatory stage of the criminal proceedings, several legal entities, including the Spanish State, brought civil claims against a number of defendants, including the Club as the owners’ liability insurer under the insurance contract pursuant to a right of direct action under Article 117 of the Spanish Criminal Code. The Club did not take part in the Spanish proceedings.

17. On 16 January 2012, the Club initiated arbitration proceedings in London, whereby it sought declarations to the effect that, pursuant to the arbitration clause in the insurance contract, the Spanish State was bound to pursue its claims under Article 117 of the Spanish Criminal Code in London and that the Club was not liable to the Spanish State in respect of such claims as a matter of English law and/or under that contract. The Spanish State did not participate in the arbitration proceedings. (9)

18. By an award delivered on 13 February 2013 (‘the Award’), the arbitral tribunal held that, since the claims in question were of a contractual nature under English conflict of law rules, English law applied to the contract. The Spanish State could not thus benefit from the owners’ contractual rights without complying with both the arbitration clause and the ‘pay to be paid’ clause. Moreover the Spanish State ought to have initiated arbitration proceedings in London to recover payment from the Club. The Award also declared that, in the absence of prior payment of the insured liability by the owners, the Club was not liable to the Spanish State in respect of the claims. In any event, the Club’s liability did not exceed USD 1 billion.

19. In March 2013, the Club applied to the referring court under section 66(1) and (2) of the Arbitration Act 1996 for leave to enforce the Award in the jurisdiction in the same manner as a judgment or order and for a judgment to be entered in the terms of the Award. The Spanish State opposed that application. It sought orders to set aside the Award and/or to declare the Award of no effect, pursuant to sections 67 and/or 72 of the Arbitration Act 1996. Those sections provide that an English arbitral award may be challenged on the grounds, inter alia, that the tribunal lacked substantive jurisdiction and that the relevant dispute could not properly be submitted to arbitration. The Spanish State also argued that the referring court should decline to exercise its discretion to enter judgment.

20. Following a seven-day trial in the course of which factual evidence together with expert evidence of Spanish law was heard, on 22 October 2013 the referring court delivered judgment. It ordered that the Spanish State’s applications be dismissed, granted the Club, pursuant to section 66(1) of the Arbitration Act 1996, leave to enforce the Award and declared that, pursuant to section 66(2) of that act, judgment was to be entered against the Spanish State in the terms of the Award. On the same date it delivered a separate formal judgment which stated that ‘pursuant to section 66(2) of the Arbitration Act 1996, judgment is entered against the [Spanish State] in the terms of the Award’. (10)

21. The Spanish State appealed against the section 66 judgment to the Court of Appeal (England & Wales) (Civil Division) (United Kingdom). By judgment of 1 April 2015, that court dismissed the appeal.

22. On 13 November 2013, the Audiencia Provincial de La Coruña (Provincial Court, A Coruña) gave judgment in the Spanish proceedings. It made no finding as to the civil liability of the owners or of the Club. Various parties appealed against that judgment to the Tribunal Supremo (Supreme Court, Spain). By judgment of 14 January 2016, that court held, inter alia, that the master and the owners were liable in respect of the civil claims and that the Club was directly liable pursuant to Article 117 of the Spanish Criminal Code, subject to the global limit of liability of USD 1 billion. It remitted the matter to the Audiencia Provincial de La Coruña (Provincial Court, A Coruña) to determine the quantum of the respective liabilities of the defendants to the Spanish proceedings. By judgment of 15 November 2017 (rectified on 11 January 2018), that court held that, as a result of the accident, the master, the owners and the Club were liable to over 200 separate parties (including the Spanish State) in sums in excess of EUR 1.6 billion, subject, in the case of the Club, to the global limit of liability of USD 1 billion. Various parties appealed against that judgment before the Tribunal Supremo (Supreme Court), which, by judgment of 19 December 2018 (amended on 21 January 2019), upheld it, subject to a limited number of variations.

23. On 1 March 2019, the Audiencia Provincial de La Coruña (Provincial Court, A Coruña) issued an execution order setting out the amounts that each of the claimants, including the Spanish State, were entitled to enforce against the respective defendants, including the Club (‘the Spanish judgment’).

24. On 25 March 2019, the Spanish State applied to the High Court of Justice (England & Wales) to have the Spanish judgment recognised under Article 33 of Regulation No 44/2001. That court acceded to that application by order of 28 May 2019 (‘the registration order’). (11)

25. On 26 June 2019, the Club lodged an appeal against the registration order under Article 43 of Regulation No 44/2001. It relied on two grounds. First, it argued that, pursuant to Article 34(3) of Regulation No 44/2001, the Spanish judgment was irreconcilable with the section 66 judgment which the Court of Appeal (England & Wales) (Civil Division) had upheld on 1 April 2015. Second, by reference to Article 34(1) of Regulation No 44/2001, it submitted that recognition or enforcement of the Spanish judgment was manifestly contrary to English public policy. The Spanish State contested the Club’s appeal. It asked the referring court to refer six questions for a preliminary ruling on the interpretation of Regulation No 44/2001.

26. In those circumstances, on 22 December 2020, the High Court of Justice (England & Wales), Queen’s Bench Division (Commercial Court) decided to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Given the nature of the issues which the national court is required to determine in deciding whether to enter judgment in the terms of an award under section 66 of the Arbitration Act 1996, is a judgment granted pursuant to that provision capable of constituting a relevant “judgment” of the Member State in which recognition is sought for the purposes of Article 34(3) of [Regulation No 44/2001]?

(2) Given that a judgment entered in the terms of an award, such as a judgment under section 66 of the Arbitration Act 1996, is a judgment falling outside the material scope of Regulation No 44/2001 by reason of the Article l(2)(d) arbitration exception, is such a judgment capable of constituting a relevant “judgment” of the Member State in which recognition is sought for the purposes of Article 34(3) of the regulation?

(3) On the hypothesis that Article 34(3) of Regulation No 44/2001 does not apply, if recognition and enforcement of a judgment of another Member State would be contrary to domestic public policy on the grounds that it would violate the principle of res judicata by reason of a prior domestic arbitration award or a prior judgment entered in the terms of the award granted by the court of the Member State in which recognition is sought, is it permissible to rely on Article 34(1) of Regulation No 44/2001 as a ground of refusing recognition or enforcement or [does] Article 34(3) and (4) of the regulation provide the exhaustive grounds by which res judicata and/or irreconcilability can prevent recognition and enforcement of a Regulation judgment?’”

Suggested decision: “A judgment entered in the terms of an arbitral award pursuant to section 66(2) of the Arbitration Act 1996 is capable of constituting a relevant ‘judgment’ of the Member State in which recognition is sought for the purposes of Article 34(3) of Council Regulation (EC) No 44/2001 […], notwithstanding that such a judgment falls outside the scope of that regulation by reason of Article 1(2)(d) thereof”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=258882&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=212120

AG Collins delivered on 5 May 2022 his opinion in case C‑646/20 (Senatsverwaltung für Inneres und Sport, Standesamtsaufsicht v TB, joined parties: Standesamt Mitte von Berlin, RD), which is about Brussels II bis:

“The dissolution of a marriage by a legally ordained procedure whereby spouses each make a personal declaration that they wish to divorce before a civil registrar, who confirms that agreement in their presence not less than 30 days later after having verified that the conditions required by law for the dissolution of the marriage have been met, namely that the spouses do not have minor children or adult children who are incapacitated or severely disabled or economically dependent and the agreement between them does not contain terms concerning the transfer of assets, is a divorce judgment for the purposes of Council Regulation (EC) No 2201/2003 of 27 November 2003”.

Source: https://curia.europa.eu/juris/document/document.jsf?docid=258881&text=&dir=&doclang=EN&part=1&occ=first&mode=DOC&pageIndex=0&cid=217509