European Civil Justice

Earlier this month, the Council on General Affairs and Policy of the HCCH met, from 1 to 5 March 2021. Work continues on several legislative projects whilst others seem only now legislative in name as no binding instrument properly speaking is foreseen anymore. Signature of the 2019 Judgments Convention is growing.

The conclusions and decisions are attached.

Source: https://www.hcch.net/en/news-archive/details/?varevent=794

The Court of Justice delivered on 25 February 2021 its decision in case C‑804/19 (BU v Markt24 GmbH), which is about Section 5 Brussels I bis and Article 21:

“1. The provisions set out in Section 5 of Chapter II of Regulation (EU) No 1215/2012 […], under the heading ‘Jurisdiction over individual contracts of employment’, must be interpreted as applying to a legal action brought by an employee domiciled in a Member State against an employer domiciled in another Member State in the case where the contract of employment was negotiated and entered into in the Member State in which the employee is domiciled and provided that the place of performance of the work was located in the Member State of the employer, even though that work was not performed for a reason attributable to that employer.

2. The provisions set out in Section 5 of Chapter II of Regulation No 1215/2012 must be interpreted as precluding the application of national rules of jurisdiction in respect of an action such as that referred to in point 1 of the operative part of the present judgment, irrespective of whether those rules are more beneficial to the employee.

3. Article 21(1)(b)(i) of Regulation No 1215/2012 must be interpreted as meaning that an action such as that referred to in point 1 of the operative part of the present judgment may be brought before the court of the place where or from where the employee was required, pursuant to the contract of employment, to discharge the essential part of his or her obligations towards his or her employer, without prejudice to point 5 of Article 7 of that regulation”.

Source: http://curia.europa.eu/juris/document/document.jsf?text=&docid=238167&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=1675407

AG Rantos delivered on 23 February 2021 his opinion in case C‑603/20 PPU (SS v MCP), which is about Article 10 Brussels II bis:

“Article 10 of Council Regulation (EC) No 2201/2003 of 27 November 2003 […] must be interpreted as meaning that the courts of the Member State in which a child was habitually resident immediately before his or her wrongful removal or retention retain their jurisdiction to rule on parental responsibility in respect of that child, for an unlimited period of time, in the case where that child is abducted to a non-Member State, including where the child acquires his or her habitual residence in that non-Member State”.

Source: http://curia.europa.eu/juris/document/document.jsf;jsessionid=4F3789D7FC162870CBB1FA7EC0C4CCF2?text=&docid=238087&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=1675407

AG Bobek delivered on 23 February 2021 his opinion in case C‑800/19 (Mittelbayerischer Verlag KG v SM), which is about Article 7(2) Brussels I bis:

“Article 7(2) of Regulation (EU) No 1215/2012 […] must be interpreted as meaning that the establishment of the jurisdiction based on the centre of interests does not require that the allegedly harmful online content names a particular person.

However, in order to establish jurisdiction pursuant to Article 7(2) of that regulation, a national court must verify that there is a close connection between that court and the action at issue, thus ensuring the sound administration of justice. In the particular context of online publications, the national court must ensure that, in view of the nature, content, and the scope of the specific online material, assessed and interpreted in its proper context, there is a reasonable degree of foreseeability of the potential forum in terms of the place where the damage resulting from such material may occur”.

Source: http://curia.europa.eu/juris/document/document.jsf;jsessionid=4F3789D7FC162870CBB1FA7EC0C4CCF2?text=&docid=238085&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=1675407

“From 15 to 17 February 2021, the Experts’ Group on Parentage / Surrogacy met for the eighth time. […] The Experts’ Group discussed what the focus of its work should be at its next meeting(s) in order to prepare its final report to CGAP on the feasibility of a possible future general private international law instrument on legal parentage (the Convention) and the feasibility of a separate possible future protocol with private international law rules on legal parentage established as a result of an international surrogacy arrangement (the Protocol).

The Experts’ Group will recommend that its current mandate until 2022 be extended by one year, in order to continue intersessional work and convene several short online meetings and at least one in-person meeting, before submitting its final report on the feasibility of the Convention and the Protocol to CGAP in 2023”. 

A report has been drafted, albeit it contains no information on the substance of the work.

Source: https://www.hcch.net/en/news-archive/details/?varevent=790

The HCCH Experts’ Group on International Transfer of Maintenance Funds met last week via videoconference. The Expert Group discussed topics such as the move away from cheques, the covering of costs related to the transfer of funds (with a view to their abolition), the implementation of bundled payments to reduce costs of transfers, etc. A résumé of these discussions may be found in the Aide-mémoire, available at https://assets.hcch.net/docs/abad87fe-7177-4dce-8393-cf32d240cc0d.pdf

Source: https://www.hcch.net/en/news-archive/details/?varevent=789

From 22 to 27 January 2021, the Applicable Law Working Group on the Hague Conference Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations met via videoconference. The Conclusions & Recommendations summarising the outcomes of the meeting are attached to this post.

Source: https://www.hcch.net/en/news-archive/details/?varevent=783

An important notification under the Agreement between the European Community and the Kingdom of Denmark on the service of judicial and extrajudicial documents in civil or commercial matters has been published today at the OJEU (L 19, 21.1.2021, p. 1):

“According to Article 3(2) of the Agreement between the European Community and the Kingdom of Denmark on the service judicial and extrajudicial documents in civil or commercial matters, […] (hereafter “the Agreement”), whenever amendments to the Regulation on the service of documents are adopted, Denmark shall notify to the Commission of its decision whether or not to implement the content of such amendments.

Regulation (EU) 2020/1784 of the European Parliament and of the Council on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents) (recast) was adopted on 25 November 2020.

In accordance with Article 3(2) of the Agreement, Denmark has by letter of 22 December 2020 notified the Commission of its decision to implement the contents of Regulation (EU) 2020/1784. In accordance with Article 3(6) of the Agreement, the Danish notification creates mutual obligations between Denmark and the Community. Thus, Regulation (EU) 2020/1784 constitutes an amendment to the Agreement and is considered annexed thereto.

In accordance with Article 3(4) of the Agreement, the necessary administrative measures enter into force on the date of entry into force of Regulation (EU) 2020/1784”.

Source: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2021.019.01.0001.01.ENG&toc=OJ%3AL%3A2021%3A019%3AFULL

Yesterday, 18 January 2021, Singapore acceded to the HCCH Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents, which will enter into force for Singapore on 16 September 2021.

Source: https://www.hcch.net/en/news-archive/details/?varevent=781

Advocate General Campos Sánchez-Bordona delivered today his opinion in case C‑913/19 (CNP spółka z ograniczoną odpowiedzialnością v Gefion Insurance A/S), which is about Article 7.5 Brussels I bis.

The parties: “CNP [] is a limited liability company established in Poland.

[Gefion] is an insurance undertaking established in Denmark. [Crawford Polska] established in Poland, is the undertaking authorised by Gefion to ‘settle claims in full’, as well as to ‘represent Gefion in all proceedings … before the courts and other public authorities’. [Polins], a second undertaking located in Żychlin (Poland), also represents Gefion in Poland.

The facts: “On 28 February 2018 a road traffic accident occurred in Poland, involving a collision between the vehicle belonging to the injured party and the vehicle belonging to the party responsible for the accident. At that time, the latter had taken out with Gefion a contract of insurance against the civil liability of the owner of the motor vehicle. [] while the car was being repaired, the injured party concluded with the repair workshop a contract for the rental of a replacement vehicle. [] By way of payment for the rental service, that person assigned his claim against Gefion to the repair workshop. At the end of the rental, the workshop issued a VAT invoice for the service. [] CNP acquired from the repair workshop, by way of a contract for the assignment of claims, the right to pursue against Gefion the claim for reimbursement of the costs of renting the replacement vehicle. [] CNP requested Gefion to pay the amount on the invoice. It sent the request to Polins’ address.

[] Gefion instructed Crawford Polska to assume responsibility for payment of the claim. Acting for and on behalf of Gefion, Crawford Polska validated the invoice in part and accepted part of the amount claimed. []     In the same document relating to the aforementioned matters, Crawford Polska referred to the possibility of making a claim against it as the entity authorised by the insurance undertaking. It also included information on the possibility of claiming against Gefion, either under the general provisions on jurisdiction or before the court with jurisdiction for the place where the policyholder, the insured person, the beneficiary or any other person entitled under the insurance contract is resident or established”.

The proceedings: “On 20 August 2018, CNP brought an action against Gefion before the Sąd Rejonowy w Białymstoku (District Court, Białystok, Poland). With respect to the international jurisdiction [of that court], [CNP] cited the information published by Gefion to the effect that its principal representative in Poland is Polins. It asked for service of documents intended for Gefion to be effected at Polins’ address.

25.      Gefion, as defendant, opposed the grant of the application on the ground that the Polish court lacked jurisdiction. It cited, as the provision applicable to jurisdiction, Article 5(1) of the Regulation. After arguing that CNP is a business entity engaged in the purchase of claims arising from insurance contracts, it submitted that CNP is not a policyholder, insured person or beneficiary and that, consequently, it does not have the capacity to bring an action before the court of a Member State other than that where the insured person is established.

26.      CNP submitted in reply that the defendant is on the list of insurance undertakings from EU/EFTA Member States notified in Poland and supervised by the Komisja Nadzoru Finansowego (Financial Supervision Committee, Poland); that it sells policies in Polish territory; and that it is unacceptable that someone subrogated to the injured party’s claim should not be able to seek reimbursement of the repair costs in question before the court for the place where the harmful event and the repair took place”.

The opinion: “Article 7(5) of [Brussels I bis] must be interpreted as meaning that a commercial company established in a Member State which operates under a contract with an insurance undertaking established in another Member State may be classified as a ‘branch, agency or other establishment’ of that undertaking if, cumulatively:

–        it operates in a Member State by providing compensation for material damage on the basis of insurance against civil liability arising from the use of motor vehicles the risks connected with which are covered by the insurance undertaking;

–        it has the appearance of an extension of the insurance undertaking; and

–        it has a management body and material facilities such as to enable it to transact business with third parties, so that the latter, although knowing that there will if necessary be a legal link with the insurance undertaking, do not have to deal directly with that undertaking”

Source: http://curia.europa.eu/juris/document/document.jsf?docid=236431&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=22755183

The draft Trade and Cooperation Agreement between the EU and the UK has been published. Please find it attached. At first sight, it does not seem to contain any express provisions on civil justice by contrast with criminal justice. Subject to a more thorough reading, and the publication of any separate agreement (like the one on Security of Information or the one on Civil Nuclear), the silence seems deliberate. The presentation of the deal on the UK side seems to confirm this (see https://www.gov.uk/government/publications/agreements-reached-between-the-united-kingdom-of-great-britain-and-northern-ireland-and-the-european-union).

However, one should not forget the following:

“The Withdrawal Agreement remains in place […] the Withdrawal Agreement – and the Protocol on Ireland and Northern Ireland, in particular – will be implemented on 1 January. On 17 December, the EU-UK Joint Committee met to endorse all formal decisions and other practical solutions related to the implementation of the Withdrawal Agreement. As part of these mutually agreed solutions, the UK has agreed to withdraw the contentious clauses of the UK Internal Market Bill, and will not introduce any similar provisions in the Taxation Bill” (source: https://ec.europa.eu/commission/presscorner/detail/en/IP_20_2531). This sheds some lights in respect of some European Civil Justice / Private International Law instruments, albeit not all.

AG Hogan delivered yesterday his opinion in case C‑896/19 (Repubblika v Il-Prim Ministru, joined party: WY), which is about judicial independence, the procedure for the appointment of judges and the power of the Prime Minister as well as the involvement of a judicial appointments committee. Should this opinion be endorsed by the Court of Justice, and taking into account other cases, the Court is slowing but surely putting EU Law at the heart of the MS judiciary’s organisational rules.

Opinion: “(1) The second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, is applicable when a national court is assessing the validity of a procedure for the appointment of judges such as that provided for by the Constitution of Malta.

(2) Article 19(1) TEU, interpreted in the light of Article 47 of the Charter of Fundamental Rights, does not preclude national constitutional provisions under which the executive power or one of its members, such as the Prime Minister, plays a role in the process of the appointment of members of the judiciary. While Article 19(1) TEU, interpreted in the light of Article 47 of the Charter, is not ex ante prescriptive either in terms of the particular conditions of appointment or the nature of the particular guarantees enjoyed by judges of the Member States, it does nonetheless require as a minimum that such judges enjoy guarantees of independence. What matters for the purposes of Article 19 TEU, is that judges must be free from any relationship of subordination or hierarchical control by either the executive or the legislature. Judges must enjoy financial autonomy from the executive and the legislature, so that their salaries are not impaired (otherwise than by generally applicable taxation or generally applicable and proportionate salary reduction measures) during their term of office. It is also important that they enjoy sufficient protection against removal from office, save for just cause and their disciplinary regime must include the necessary guarantees in order to prevent any risk of its being used as a system of political control of the content of judicial decisions.

(3) The procedure for the appointment of judges cannot be called into question under Article 19(1) TEU, interpreted in the light of Article 47 of the Charter of Fundamental Rights, in support of claims introduced before the date of the forthcoming judgment”.

Source: http://curia.europa.eu/juris/document/document.jsf?text=&docid=235729&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=19345372

The Administrative Cooperation Working Group on the Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance met this week (14 to 17 December 2020). An aide-mémoire summarising the outcomes of the meeting has been released by the HCCH. It is available at https://assets.hcch.net/docs/ef04cdf2-2a19-4edb-bc73-2009ef9000a4.pdf.

AG Campos Sanchez-Bordona delivered today his opinion in case C‑709/19 (Vereniging van Effectenbezitters v BP plc), which is about Article 7.2 Brussels I bis in the case of a purely financial damage.

Context: “1. An association of securities holders has brought an action for damages before the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) over the fall in the value of their shares in a company established in the United Kingdom, following an oil spill at the company’s operations in the Gulf of Mexico.

2. In the context of those proceedings, the court needs to obtain an interpretation of Article 7(2) of Regulation (EU) No 1215/2012. As the claim is for purely financial damage, the court has difficulty in deciding on its jurisdiction in the light of previous decisions of the Court of Justice, particularly the judgments in Kolassa, Universal and Löber”.

Opinion: “1. Article 7(2) of Regulation (EU) No 1215/2012 […] must be interpreted as meaning that:

(a) it is not a sufficient connecting factor for attributing international jurisdiction to the courts of a Member State that a fall in the value of the shares of a company listed on stock exchanges in other Member States is recorded in investment accounts located in that Member State or in investment accounts of a bank or investment firm established in that Member State, where the damage is the result of decisions taken by investors on the basis of allegedly incorrect, incomplete and misleading information distributed globally by the listed company;

(b) the existence of a settlement between the defendant company and some shareholders in a third State which has not been offered to the applicants in the main proceedings and the fact that some applicants are consumers are not relevant specific circumstances for the purposes of attributing international jurisdiction pursuant to Article 7(2) of Regulation No 1215/2012. Nor is the fact that the relevant information was distributed worldwide by the defendant company.

2. The exercise of a collective action in accordance with national rules of procedure by an association representing the interests of the holders of the securities who suffered the damage does not alter the interpretation of Article 7(2) of Regulation No 1215/2012”.

Source: http://curia.europa.eu/juris/document/document.jsf;jsessionid=74FA8D126E0AFC56C07B928CDA7887E4?text=&docid=235726&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=19345184

The Court of Justice delivered last week (10 December 2020) its judgment in case C‑80/19 (A. B., B. B. v Personal Exchange International Limited), which is about Brussels I. 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 15, paragraphe 1, du règlement (CE) no 44/2001 […] doit être interprété en ce sens qu’une personne physique domiciliée dans un État membre qui, d’une part, a conclu avec une société établie dans un autre État membre un contrat pour jouer au poker sur Internet, contenant des conditions générales déterminées par cette dernière, et, d’autre part, n’a ni officiellement déclaré une telle activité ni offert cette activité à des tiers en tant que service payant ne perd pas la qualité de « consommateur » au sens de cette disposition, même si cette personne joue à ce jeu un grand nombre d’heures par jour, possède des connaissances étendues et perçoit des gains importants issus de ce jeu ».

Source : http://curia.europa.eu/juris/document/document.jsf;jsessionid=58831D1B50FE81EB65264CF9F4A957CD?text=&docid=235347&pageIndex=0&doclang=fr&mode=req&dir=&occ=first&part=1&cid=18043820

The Grand Chamber of the Court of Justice delivered yesterday (8 December 2020) its judgment in case C‑626/18 (Republic of Poland v European Parliament), which is about the posting of workers, including in relation to Rome I.

Background: “By its application, the Republic of Poland asks the Court, principally, to annul Article 1(2)(a) and (2)(b) and Article 3(3) of Directive (EU) 2018/957 of the European Parliament and of the Council of 28 June 2018 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services […] (‘the contested directive’), and, in the alternative, to annul that directive in its entirety”.

Relevant part of the case: “the Republic of Poland refers to Article 9 of the ‘Rome I’ Regulation and considers that the contested directive does not constitute a lex specialis, within the meaning of Article 23 of that regulation.

131 On that point, it must be observed that Article 8(1) of the ‘Rome I’ Regulation establishes a general conflict-of-law rule that is applicable to employment contracts, the designated law being the law chosen by the parties to such a contract, and that Article 8(2) of that regulation provides that, where such a choice has not been made, the individual employment contract is to be governed by the law of the country in which or, failing that, from which the employee habitually carries out his or her work, that country not being deemed to have changed if the employee is temporarily employed in another country.

132 However, Article 23 of the ‘Rome I’ Regulation provides for the possibility of derogation from the conflict-of-law rules established by that regulation, where provisions of EU law lay down rules on the law applicable to contractual obligations in certain areas, while recital 40 of that regulation states that the ‘Rome I’ Regulation does not exclude the possibility of inclusion of conflict-of-law rules relating to contractual obligations in provisions of EU law with regard to particular matters.

133 Given both their nature and their content, both Article 3(1) of the amended Directive 96/71, with respect to posted workers, and Article 3(1a) of that directive, with respect to workers who are posted for a period that, in general, exceeds 12 months, constitute special conflict-of-law rules, within the meaning of Article 23 of the ‘Rome I’ Regulation.

134 Further, the drafting process of the ‘Rome I’ Regulation demonstrates that Article 23 of that regulation covers the special conflict-of-law rule previously laid down in Article 3(1) of Directive 96/71, since, in the Proposal for a Regulation of the European Parliament and of the Council on the law applicable to contractual obligations (Rome I) (COM(2005) 650 final) of 15 December 2005, the Commission had annexed a list of special conflict-of-law rules established by other provisions of EU law, which mentions that directive.

135 Last, while the Republic of Poland considers that Article 3(1a) of the amended Directive 96/71 does not comply with Article 9 of the ‘Rome I’ Regulation, suffice it to state that the latter article, which must be interpreted strictly, refers to ‘overriding mandatory provisions of the law’ of the Member States, namely mandatory provisions respect for which is regarded as crucial by a country for safeguarding its public interests (judgment of 18 October 2016, Nikiforidis, C‑135/15, EU:C:2016:774, paragraph 41 and 44). There is nothing in the documents submitted to the Court to indicate that Article 3(1a) of the amended Directive 96/71 is contrary to such overriding mandatory provisions of law”.

Source: http://curia.europa.eu/juris/document/document.jsf?docid=235183&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=17610010

Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC has been published today at the OJEU.

The text is attached to this post.

The new Evidence and Services Regulations were published at the OJEU of 2 December 2020:

__ Regulation (EU) 2020/1783 of the European Parliament and of the Council of 25 November 2020 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (taking of evidence) (recast)

__ Regulation (EU) 2020/1784 of the European Parliament and of the Council of 25 November 2020 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents) (recast)

They are attached to this post.

The European Commission adopted yesterday (2 December) “a package of initiatives to modernise the EU justice systems. The two main pillars of the new package are the Communication on the digitalisation of justice in the EU, and the new Strategy on European judicial training. This digital justice toolbox aims at further supporting Member States to move ahead their national justice systems towards the digital era and at improving EU cross-border judicial cooperation between competent authorities. As regards European judicial training, the Commission equips judges, prosecutors and justice professionals for the challenges of the 21st century, such as digitalisation. It further aims at promoting a common European judicial culture, based on the rule of law, fundamental rights and mutual trust”.

Extracts of the press release:

__ “Communication on the Digitalisation of Justice in the EU provides a toolbox to promote the use of digital tools by Member States […]:

Making digital the default option in cross-border judicial cooperation: To date, many judicial proceedings, including those that transcend borders, still take place with paper and by post. The European Commission will work on a legislative proposal to digitalise cross-border judicial cooperation procedures in civil, commercial and criminal matters. Adoption is planned for the end of 2021.

[…]

Better access to information: Electronic databases are easy to consult, they minimise costs for users and are resilient to crises. Therefore, Member States should strive to digitalise their registers and work towards their interconnections.

IT tools for cross-border cooperation: e-CODEX (e-Justice Communication via Online Data Exchange) is the main tool for secure cooperation in civil, commercial and criminal law proceedings across borders. To date, only some Member States use e-CODEX. With the adoption of today’s legislative proposal, the Commission aims to make e-CODEX the gold standard for secure digital communication in cross-border judicial proceedings in all Member States. As of 1 July 2023, the Commission entrusts this system to the Agency eu-LISA. Another digital tool is eEDES (e-evidence digital exchange system), which some Member States use to swiftly and securely exchange European Investigation Orders, mutual legal assistance requests and associated evidence in digital format instead of by post. With the legislative proposal adopted today, the Commission encourages all Member States to connect to eEDES. These IT tools will modernise EU justice systems and generate real European added-value”.

__ “EU Strategy on Judicial Training […]: by 2024, 65% of judges and prosecutors and 15% of lawyers shall be trained yearly on EU law. The strategy also supports justice professionals in the Western Balkans and in other EU partner countries, in Africa and Latin America. In addition, justice professionals will be able to look for training courses on EU law via the European Training Platform, launched today for a first test phase and planned to be fully operational in the course of 2021”.

Source: https://ec.europa.eu/commission/presscorner/detail/en/IP_20_2246

(with further documents)

The Court of Justice (Grand Chamber) delivered on 24 November 2020 its judgment in case C‑59/19 (Wikingerhof GmbH & Co. KG v Booking.com BV), which is about an action seeking an injunction against commercial practices considered to be contrary to competition law:

“Point 2 of Article 7 of Regulation (EU) No 1215/2012 […] must be interpreted as applying to an action seeking an injunction against certain practices implemented in the context of the contractual relationship between the applicant and the defendant, based on an allegation of abuse of a dominant position by the latter in breach of competition law”.

Source: http://curia.europa.eu/juris/document/document.jsf;jsessionid=0B3C35184AED407DFB5B8CDCFD47AD38?text=&docid=234206&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=15723679