EAPIL blog

As it is usual at this time of the year, the EAPIL blog will slightly slow down its activity for a few weeks.

We’ll provide news on scholarship, recent case law and on-going legislative work every week, but we’ll limit ourselves to two or three post a week.

The usual five-post-a-week pace will resume at the beginning of September.

Enjoy your Summer, readers!

The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published. The table of contents is available here. The following abstracts have been kindly provided to us by the editor of the journal.

B. Heiderhoff, Care Proceedings under Brussels IIter – Mantras, Compromises and Hopes

Against the background of the considerable extension of the text of the regulation, the author asks whether this has also led to significant improvements. Concerning jurisdiction, the “best interests of the child” formula is used a lot, while the actual changes are rather limited and the necessary compromises have led to some questions of doubt. This also applies to the extended possibility of choice of court agreements, for which it is still unclear whether exclusive prorogation is possible beyond the cases named in Article 10 section 4 of the Brussels II ter Regulation. Concerning recognition and enforcement, the changes are more significant. The author shows that although it is good that more room has been created for the protection of the best interests of the child in the specific case, the changes bear the risk of prolonging the court proceedings. Only if the rules are interpreted with a sense of proportion the desired improvements can be achieved. All in all, there are many issues where one must hope for reasonable clarifications by the ECJ.

G. Ricciardi, The practical operation of the 2007 Hague Protocol on the law applicable to maintenance obligations

Almost two years late due to the COVID-19 pandemic, in May 2022 over 200 delegates representing Members of the Hague Conference on Private International Law, Contracting Parties of the Hague Conventions as well as Observers met for the First Meeting of the Special Commission to review the practical operation of the 2007 Child Support Convention and the 2007 Hague Protocol on Applicable Law. The author focuses on this latter instrument and analyses the difficulties encountered by the Member States in the practical operation of the Hague Protocol, more than ten years after it entered into force at the European Union level. Particular attention is given to the Conclusions and Recommendations of the Applicable Law Working Group, unanimously adopted by the Special Commission which, in light of the challenges encountered in the implementation of the Hague Protocol, provide guidance on the practical operation of this instrument.

R. Freitag, More Freedom of Choice in Private International Law on the Name of a Person!

Remarks on the Draft Bill of the German Ministry of Justice on a Reform of German Legislation on the Name of a Person. The German Ministry of Justice recently published a proposal for a profound reform of German substantive law on the name of a person, which is accompanied by an annex in the form of a separate draft bill aiming at modernizing the relevant conflict of law-rules. An adoption of this bill would bring about a fundamental and overdue liberalization of German law: Current legislation subjects the name to the law of its (most relevant) nationality and only allows for a choice of law by persons with multiple nationalities (they max designate the law of another of their nationalities). In contrast, the proposed rule will order the application of the law of the habitual residence and the law of the nationality will only be relevant if the person so chooses. The following remarks shall give an overview over the proposed rules and will provide an analysis of their positive aspects as well as of some shortcomings.

D. Coester-Waltjen, Non-Recognition of “Child Marriages” Concluded Abroad and Constitutional Standards

The Federal Supreme Court raised the question on the constitutionality of one provision of the new law concerning “child marriages” enacted by the German legislator in 2017. The respective rule invalidated marriages contracted validly according to the national law of the intended spouses if one of them was younger than 16 years of age (Art. 13 ss 3 no 1 EGBGB). The Federal Supreme Court requested a ruling of the Federal Constitutional Court on this issue in November 2018. It took the Federal Constitutional Court nearly five years to answer this question.
The court defines the structural elements principally necessary to attain the constitutional protection of Art. 6 ss 1 Basic Law. The court focuses on the free and independent will of the intended spouses as an indispensable structural element. The court doubts whether, in general, young persons below the age of 16 can form such a free and independent will regarding the formation of marriage. However, as there might be exceptionally mature persons, the protective shield of Art. 6 ss 1 Basic Law is affected (paragraphs 122 ff.) and their “marriage” falls under the protective umbrella of the constitution. At the same time, the requirement of a free and meaningful will to form a marriage complies with the structural elements of the constitutionally protected marriage. This opens the door for the court to examine whether the restriction on formation of marriage is legitimate and proportionate.
After elaborating on the legitimacy of the goal (especially prevention and proscription of child marriages worldwide) the court finds that the restriction on the right to marry is appropriate and necessary, because comparable effective other means are missing. However, as the German law does not provide for any consequence from the relationship formed lawfully under the respective law and being still a subsisting marital community, the rule is not proportionate. In addition, the court demurs that the law does not provide for transformation into a valid marriage after the time the minor attains majority and wants to stay in this relationship. In so far, Art. 13 ss 3 no 1 affects unconstitutionally Art. 6 ss 1 Basic Law. The rule therefore has to be reformed with regard to those appeals but will remain in force until the legislator remedies those defects, but not later than June 30, 2024.
Beside the constitutional issues, the reasoning of the court raises many questions on aspects of private international law. The following article focuses on the impact of this decision.

O.L. Knöfel, Discover Something New: Obtaining Evidence in Germany for Use in US Discovery Proceedings

The article reviews a decision of the Bavarian Higher Regional Court (101 VA 130/20), dealing with the question whether a letter rogatory for the purpose of obtaining evidence for pre-trial discovery proceedings in the United States District Court for the District of Delaware can be executed in Germany. The Court answered this question in the affirmative. The author analyses the background of the decision and discusses its consequences for the long-standing conflict of procedural laws (Justizkonflikt) between the United States and Germany. The article sheds some light on the newly fashioned sec. 14 of the German Law on the Hague Evidence Convention of 2022 (HBÜ Ausführungsgesetz), which requires a person to produce particular documents specified in the letter of request, which are in his or her possession, provided that such a request is compatible with the fundamental principles of German law and that the General Data Protection Regulation of 2018 (GDPR) is observed.

W. Wurmnest/C. Waterkotte, Provisional injunctions under unfair competition law

The Higher Regional Court of Hamburg addressed the delimitation between Art. 7(1) and (2) of the Brussels Ibis Regulation after Wikingerhof v. Book ing.com and held that a dispute based on unfair competition law relating to the termination of an account for an online publishing platform is a contractual dispute under Art. 7(1) of the Brussels Ibis Regulation. More importantly, the court considered the requirement of a “real connecting link” in the context of Art. 35 of the Brussels Ibis Regulation. The court ruled that in unfair competition law disputes of contractual nature the establishment of such a link must be based on the content of the measure sought, not merely its effects. The judgment shows that for decisions on provisional injunctions the contours of the “real connecting link” have still not been conclusively clarified.

I. Bach/M. Nißle, The role of the last joint habitual residence on post-marital maintenance obligations

For child maintenance proceedings where one of the parties is domiciled abroad, Article 5 of the EU Maintenance Regulation regulates the – international and local – jurisdiction based on the appearance of the defendant. According to its wording, the provision does not require the court to have previously informed the defendant of the possibility to contest the jurisdiction and the consequences of proceeding without contest – even if the defendant is the dependent minor child. Article 5 of the EU Maintenance Regulation thus not only dispenses with the protection of the structurally weaker party that is usually granted under procedural law by means of a judicial duty to inform (such as Article 26(2) Brussels Ibis Regulation), but is in contradiction even with the other provisions of the EU Maintenance Regulation, which are designed to achieve the greatest possible protection for the minor dependent child. This contradiction could already be resolved, at least to some extent, by a teleological interpretation of Article 5 of the EU Maintenance Regulation, according to which international jurisdiction cannot in any case be established by the appearance of the defendant without prior judicial reference. However, in view of the unambiguous wording of the provision and the lesser negative consequences for the minor of submitting to a local jurisdiction, Article 5 of the EU Maintenance Regulation should apply without restriction in the context of local jurisdiction. De lege ferenda, a positioning of the European legislator is still desirable at this point.

C. Krapfl, The end of US discovery pursuant to Section 1782 in support of international arbitration

The US Supreme Court held on 13 June 2022 that discovery in the United States pursuant to 28 U.S.C. § 1782 (a) – which authorizes a district court to order the production of evidence “for use in a proceeding in a foreign or international tribunal” – only applies in cases where the tribunal is a governmental or intergovernmental adjudicative body. Therefore, applications under Section 1782 are not possible in support of a private international commercial arbitration, taking place for example under the Rules of the German Arbitration Institute (DIS). Section 1782 also is not applicable in support of an ad hoc arbitration initiated by an investor on the basis of a standing arbitration invitation in a bilateral investment treaty. This restrictive reading of Section 1782 is a welcome end to a long-standing circuit split among courts in the United States.

L. Hübner/M. Lieberknecht, The Okpabi case — Has Human Rights Litigation in England reached its Zenith

In its Okpabi decision, the UK Supreme Court continues the approach it developed in the Vedanta case regarding the liability of parent companies for human rights infringements committed by their subsidiaries. While the decision is formally a procedural one, its most striking passages address substantive tort law. According to Okpabi, parent companies are subject to a duty of care towards third parties if they factually control the subsidiary’s activities or publicly convey the impression that they do. While this decision reinforces the comparatively robust protection English tort law affords to victims of human rights violations perpetrated by corporate actors, the changes to the English law of jurisdiction in the wake of Brexit could make it substantially more challenging to bring human rights suits before English courts in the future.

Deyan Draguiev is the author of this monograph published in 2023 by Springer. He has kindly provided the following abstract.

The book proposes a holistic overview of interim measures and associated procedures in civil and commercial matters in international litigation and arbitration proceedings. It reexamines key features in this context and outlines novel findings on interim relief in the area of international dispute resolution. The book analyses the rules of EU law (EU law regulations such as the Regulation Brussels I bis and the rest of the Brussels regime) as the single system of cross-border jurisdictional rules, as well as the rules of international arbitration (both commercial and investment). In the process, it conducts a complete mapping of interim measures problems and explores the criteria for granting relief under national laws. For this purpose, it includes an extensive comparative law overview of many jurisdictions in Europe, Asia, Africa, the Americas, etc., to reveal common standards for granting interim relief.

In deeper depth, as follows, chapter after chapter.

Chapter one provides the wider framework for the analysis of interim relief procedures in cross-border civil and commercial disputes.
It sets out the underpinnings of the dispute resolution process from the standpoint of philosophy, sociology, psychology, and general legal theory by drawing references from fundamental social scientists and legal philosophers. It outlines the conceptual grounds for the existence of interim relief within the system of dispute resolution. Furthermore, after portraying the key background features upon which the study builds its foundations, chapter one also clarifies the terminology, which the study employs. This chapter puts forward the key points, which the entire study seeks to argue. More particularly, the position, which is argued, is that interim measures are not merely a procedural power of the dispute resolution authority or means to ensure the proper enforcement of the final ruling of the dispute, rather they have a wide-ranging function as a tool to manage and influence the pending dispute itself.

Chapter two focuses on the procedural rules for establishing jurisdiction to grant interim relief.
The first part deals with the so called “Brussels regime” or “system”, i.e. the variety of regulations which the European Union has established in the area of cross-border civil and commercial disputes. The backbone of the system is Regulation Brussels I bis – “Recast” (1215/2012), previously Regulation Brussels I (44/2001). The main features of interim relief in EU law stem from it and influence a number of other EU regulations. This chapter analyses the prerequisites for EU courts’ jurisdiction to provide interim relief, both as general grounds and as specific interim measures jurisdiction, with details about Art. 35 of Regulation Brussels I bis. This chapter also includes the regulations covering matrimonial matters (Regulation 2201/2003 and Regulation 2019/1111) and also Regulation 4/2009, Regulation 650/2012, Regulation 2016/1103, and Regulation 2016/1104. The European Account Preservation Order is not included.
The second part provides overview of the jurisdictional bases for interim relief in the area of international arbitration. It makes a brief overview of the general grounds for jurisdiction of arbitral tribunals, and of the specific rules establishing jurisdiction to grant interim relief. This includes also a review of the rules of major arbitral institutions and domestic legislations, as well as analysis of the coordination, concurrence, even competition between state courts and arbitral tribunals in granting interim relief, with a proposed possible solution for this situation.

Chapter three analyses the procedural nature and characteristics of interim measures with strong focus on a comparative survey of most systems of law – in Europe, Asia, Africa, both Americas and Australia.
Based on this review of national law criteria for granting interim relief, the purpose is to outline several key benchmarks that are found within a wide-ranging list of legislations – proof of prima facie merit on the substance of the dispute, necessity, proportionality of measures, urgency as time factor, unilateral or bilateral nature of proceedings, etc. Furthermore, this part also provides an overview of various rules of arbitral institutions containing guidance on what measures may be granted under the respective rules. Chapter three looks into the procedural functioning of interim measures before state courts and arbitral tribunals, i.e. standards of proof, conduct of procedure, issuance of final award/decision/order, its form and content, etc. The chapter reviews the scope of interim measures and strives to provide in-depth list of the powers of dispute resolution bodies and the types of measures that are traditionally granted by courts and arbitral tribunals. The liability for damages if the measures are cancelled/revoked is reviewed, as well. Chapter three, finally, features an analysis of the typical measures that are provided in a selection of particularly common types of international disputes, including international sale of goods, international construction projects, intellectual property disputes, maritime and aviation disputes, anti-suit injunctions, etc. The argument in this section is that the characteristics of the underlying dispute are related to the nature of the measures that are typically awarded.

Chapter four seeks to outline the procedural mechanism for putting interim measures into effect.
This chapter provides review of the enforcement conditions, formalities and procedural steps under the regulations within the Brussels regime with focus on Regulation Brussels I bis. This chapter also contains an overview of one of the most challenging aspects of interim relief in international arbitration, i.e. its enforcement.
First, it covers a salient issue, which is widely discussed in legal theory and in arbitral case law, that is to what extent interim measures may be forced by an arbitral tribunal upon the parties to the arbitration case.
Second, this chapter analyses the important matter whether third parties non-signatories can be compelled by arbitral measures.
Third, the chapter reviews the procedural mechanisms contained in various national laws established to facilitate enforcement of interim relief by domestic legal procedures.
The chapter also deals with the liability for non-compliance with interim measures, including those granted in arbitral proceedings, providing overview of national laws and case law examples from different legal systems.

Chapter five compares the features of interim measures in private law disputes having international elements with the relief granted by international bodies established by public international law such as the International Court of Justice, the International Tribunal for the Law of the Sea, the European Court of Human Rights, the Court of Justice of the European Union and also the European Commission as an organ of an international organization (the EU).
The grounds for such comparison stem from the transnational characteristics of the disputes that arise both in private and in public international law. Focusing on these common international elements, Chapter five outlines the similarities to obtain interim relief under the auspices of the listed international judicial or quasi-judicial bodies in comparison to the conditions analysed under chapters two-four regarding civil and commercial cases. This chapter analyses this by providing review of the legal status and powers of these international adjudication bodies through the prism of the key benchmarks: jurisdiction, standards for assessment, procedure to obtain relief, and enforcement of measures. The comparison demonstrates significant similarities especially as to the criteria for granting relief and the potential issues with enforcement.

Chapter six provides assessment of the matter concerning interim relief and procedures in private law international disputes by drawing conclusions from the review and analysis under the previous chapters.
This chapter outlines the grounds to argue the two focal points of the entire study.
The first argument is that the proper understanding of interim relief is that it does not merely safeguard enforcement/compliance with the final decision on a dispute but that, if measures are placed in wider context, they should be seen as an instrument to manage not only the pending legal proceedings but also the entire ongoing conflict until its resolution.
The second argument is that the result of interim relief should be that no further aggravation of the dispute is allowed.
This chapter further employs the tools of the law & economics theory as to portray interim relief also as a wealth maximization lever. This chapter puts in comparison the effectiveness of the mechanism of granting and enforcement of relief before courts and before arbitral tribunals in order to propose what strategy parties are recommended to employ for better results. Finally, this chapter summarizes the types of interim measures and puts them in different categories.

Chapter seven is an attempt to look at the discussion in chapters one-six in a rearview mirror and provide a final overview placed in a wider context.
This study has purported from its outset to put the issue of interim relief against a broader, cross-jurisdictional and cross-sectoral background. It reflects the current global trends in business, private relations and disputes. This chapter reiterates the position of the author that the proper way to perceive interim measures is to view them not only as a creature of legal dispute resolution procedure but to understand interim relief as a means to ensure greater values such as reaching a meaningful end of the legal procedure, organizing the management of the underlying relationship between the parties, and providing an opportunity for restoration of the accord between them. If interim measures are seen through such a prism, their role and effectiveness appear to be ever important.

Edward Elgar has just published a Research Handbook on International Child Abduction, edited by Marilyn Freeman and Nicola Taylor.

With a focus on the 1980 Hague Convention, this cutting-edge Research Handbook provides a holistic overview of the law on international child abduction from prevention, through voluntary agreements and Convention proceedings, to post-return and aftercare issues.

Discussing the repercussions of abduction from the perspectives of both abducted children and the therapeutic and family justice professionals engaged in their cases, chapters consider the contributions of the many professionals and key agencies involved in the field. Identifying the 1980 Hague Convention as the principal global instrument for dealing with child abduction, the Research Handbook traces its role, history, development and impact, alongside the mechanisms required for its effective use. Evaluating current trends, areas of concern in legal/judicial practice and various regional initiatives, it also considers alternatives to high-conflict court proceedings in international child abduction cases. The Convention’s strengths, successes, weaknesses and gaps are discussed, and the Research Handbook concludes by addressing how best to tackle the challenges in its future operation.

Interdisciplinary and accessible in approach, the contributions from renowned subject specialists will prove useful to students and scholars of human rights and family law, international law and the intersections between law and gender studies, politics and sociology. Its combination of research, policy and practice will be of value to legal practitioners working in family law alongside NGOs and central authorities active in the field.

Contributors include: Anna Claudia Alfieri, Sarah Calvert, Stephen Cullen, Jeffrey Edleson, Linda Elrod, Mary Fata, Sarah Cecilie Finkelstein Waters, Marilyn Freeman, Gérardine Goh Escolar, Diahann Gordon Harrison, Michael Gration, Mark Henaghan, Costanza Honorati, Ischtar Khalaf-Newsome, Clement Kong, Thalia Kruger, Suzanne Labadie, Sara Lembrechts, Nigel Lowe, Alistair MacDonald, Anil Malhotra, Ranjit Malhotra, Jeremy Morley, Yuko Nishitani, Christian Poland, Kelly Powers, Joëlle Schickel-Küng, Rhona Schuz, Henry Setright, Sudha Shetty, Ann Skelton, Julia Sloth-Nielsen, Victoria Stephens, Nicola Taylor, Mathew Thorpe.

More information here.

On 13 July 2023, the Court of Justice of the European Union ruled in case C-87/22 that the court of a Member State where children were wrongfully removed by one of their parent can be requested to assume jurisdiction as a better place court than the court of their formal habitual residence, but that an application for return of the child suspends such decision.

Background

The case was concerned with the custody of two children born in 2012 from a couple of Slovak nationals in Slovakia. In 2014, the family moved to Austria, where the children went to daycare and then school for a few years. In 2017, however, the children started going to school in Slovakia, commuting daily from Austria. As the result, they spoke only limited German.

In 2020, the couple separated, and the mother took the children to Slovakia with her without the father’s consent.

The father sought an order for the return of the children under the 1980 Convention in Slovakia, and brought proceedings for custody of the children in Austria under the Brussels II bis Regulation.

The mother challenged the jurisdiction of the Austrian court on the ground that their habitual residence had been in Slovakia, where they went to school and were socially integrated. She won in first instance, but lost in appeal.

Transfer of the Case to the Place of Wrongful removal?

After loosing on jurisdiction, the mother then applied to the Austrian court for a transfer of the case to Slovakia as a better placed court under Article 15 of the Regulation.

She argued that Slovakian courts were better placed because multiple proceedings were pending in Slovakia (initiated by both parents), and extensive evidence was already available in these proceedings. The Austrian court granted the application in first instance, adding that because the children did not speak German, hearing them in Austrian proceedings would result in additional costs as interpreters would have to be involved.

The appeal court, however, saw a problem with the fact that the children had been wrongfully removed to Slovakia, and wondered whether this was a bar to resorting to Article 15. It referred the matter to the CJEU.

Judgment

The CJEU answers that the court of a Member State where a child was wrongfully removed could be transferred a case under Article 15 as a better placed court, but that an application for return of the child lodged with the competent authorities of the Member State of removal suspends any decision of transfer under Article 15.

This is a remarkable solution. As the judgement recalls, a major objective of the Regulation is to deter parents from removing wrongfully children to other Member States. This is why the return procedure exists, which should lead to a return of the child to the State where s/he was habitually resident. This is also why Article 10 of the Brussels II bis Regulation maintains the jurisdiction of the court of the old habitual residence of the child even if the removal results in a new habitual residence in another State (unless the parents have somehow consented to the removal).

Yet, the CJEU notes that, in practical terms, the court which might be considered as a better placed court under Article 15 will precisely be the court of the State where the child will have been wrongfully removed. Recall that, unlike doctrines such as forum non conveniens, the better placed court doctrine under the Brussels II Regulation is only available to transfer a case to a court which does not have jurisdiction under the Regulation.

The CJEU concludes, therefore, that Article 15 must be considered, in principle, to be available even for transfer to a court of the place of wrongful removal. The Court insists that given that one of the three prongs of the test to decide on a transfer is the best interests of the child, the decision should ultimately be “a balanced and reasonable assessment, in the best interests of the child, of all the interests involved, which must be based on objective considerations relating to the actual person of the child and his or her social environment”.

The CJEU then moves to the test for deciding a transfer under Article 15. It rules that the test remains the same in the context of a potential transfer to the court of the place of wrongful removal but that the existence of an application for return of the child suspends the decision for the six weeks time period for ruling on the application.

Assessment

The case was quite remarkable, in so far as the children were not well integrated, if at all, in the place of their habitual residence.

The judgement, however, addresses the issue from a general standpoint, and it is hard to avoid concluding that it might give additional hopes to parents that their strategy to abduct children might succeed, including in more common cases of child abduction from a country where they are socially integrated to another where they are not. The filing of an application for return of the child will, however, be an even more important move for the parent fighting against the removal and likely the transfer.

The important point that should be underlined, and which is an important safeguard, is that the decision will ultimately be made by the court of the original habitual residence. It is this court which will have to make the assessment of whether a transfer might be beneficial. The court of the place of wrongful removal may also request a transfer, but it will still have to be allowed by the court of the original habitual residence (see Article 13 of the Brussels II ter Regulation).

A collection of essays on the Hague Judgments Convention of 2 July 2019 has recently been published by Hart, in its Studies in Private International Law Series, under the title The HCCH 2019 Judgments Convention – Cornerstones, Prospects, Outlook.

Edited by Matthias Weller, João Ribeiro-Bidaoui, Moritz Brinkmann and Nina Dethloff, the book has been presented and discussed at conference that wtook place at the University of Bonn on 9 and 10 June 2023.

This book analyses, comments and further develops on the most important instrument of the Hague Conference on Private International Law (HCCH): the HCCH 2019 Judgments Convention. The HCCH Convention, the product of decades of work, will have a transformative effect on global judicial cooperation in civil matters. This book explores its ‘mechanics’, i.e. the legal cornerstones of the new Convention (Part I), its prospects in leading regions of the world (Part II), and offers an overview and comment on its outlook (Part III). Drawing on contributions from world-leading experts, this magisterial and ambitious work will become the reference work for law-makers, judges, lawyers and scholars in the field of private international law.

The contributors include Paul Beaumont, João Bidaoui-Ribeiro, Adeline Chong, Marcos Dotta Salgueiro, Beligh Elbalti, José Angelo Estrella-Faria, Pietro Franzina, Wolfgang Hau, Xandra Kramer, Cristina Mariottini, Chukwuma Okoli, Verónica Ruiz Abou-Nigm, Ilja Rumenov, Geneviève Saumier, Linda Silberman, Andreas Stein, Zheng Tang, Hans van Loon, Abubakri Yekini, Lenka Visoka, and Ning Zhao.

For more information, including the table of contents, see here.

The first issue of 2023 of the Rivista di diritto internazionale privato e processuale (RDIPP) is out. In addition to recent case law and other materials, it features three contributions.

Francesco Salerno, L’impatto della procedura di interpretazione pregiudiziale sul diritto internazionale privato nazionale (The Impact of the Preliminary Rulings of the Court of Justice on National Private International Law)

The European Court of Justice’s uniform interpretation of private international law concerns mainly – even though not only – the EU Regulations adopted pursuant to Art 81 TFEU: in the context of this activity, the Court also takes into account the distinctive features of EU Member States. The increasing number of autonomous notions developed by the Court greatly enhanced the consistency and the effectiveness of the European rules. Against this background, the Italian judicial authorities implemented such a case-law even when it ran counter well-established domestic legal principles. Moreover, the European institutions rarely questioned the case-law of the Court, but when they did so, they adopted new rules of private international law in order to “correct” a well-settled jurisprudential trend of the Court.

Cristina Campiglio, La condizione femminile tra presente e futuro: prospettive internazionalprivatistiche (The Status of Women between Present and Future: Private International Law Perspectives)

One of the Goals of the U.N. 2030 Agenda for Sustainable Development is gender equality (Goal 5), which can also be achieved through the elimination of “all harmful practices, such as child, early and forced marriage” (Target No 3) and the protection of women reproductive rights (Target No 6). This article addresses these two issues in a conflict-of-laws perspective, identifying the legal mechanisms through which legal systems counter the phenomenon of early marriages celebrated abroad and tackle the latest challenges related to the so-called reproductive tourism. After analyzing the role played by public policy exceptions and by the principle of the best interest of the child, it summarizes the Court of Justice’s case-law on the recognition of family situations across borders. In fact, the recognition of the possession of an EU status – meeting the social need to have a personal status which accompanies individuals anywhere within the EU area – is gaining ground. Such status is a personal identity merely functional to the exercise of EU citizens’ freedom of movement (Art 3(2) TEU, Art 21 TFEU and Art 45 EU Charter of Fundamental Rights). The result is the possession, by EU citizens, of a split personal identity – one functional to circulation, while the other one to its full extent – whose compatibility with the EU Charter of Fundamental Rights principles and with the ECHR may be called into question.

Marco Farina, I procedimenti per il riconoscimento e l’esecuzione delle decisioni straniere nella recente riforma del processo civile in Italia (Proceedings for the Recognition and Enforcement of Foreign Judgments in the Recent Italian Reform of Civil Procedure)

In this article, the author comments on the new Art. 30-bis of Legislative Decree No 150/2011, introduced by Legislative Decree No 149/2022 reforming Italian civil procedure and aimed at regulating “proceedings for the recognition and enforcement of foreign judgments provided for by European Union law and international conventions”. The author analyses the new provision, focusing on the different procedural rules applicable, depending on the relevant EU Regulation or international convention concerned, to the proceedings that the EU Regulations listed in Art. 30-bis of Legislative Decree No 150/2011 provide for obtaining the recognition and enforcement of the judgments rendered in a Member State other than the one in which they were rendered. In commenting on this new provision, the author offers a reasoned overview of the problems generated by it with the relative possible solutions.

Some EAPIL members are reporting they receive e-mails allegedly sent on my behalf requesting help for the Association.

These e-mails were not sent either by me or any EAPIL official.

Please ignore them.

 

 

The European Parliament on 11 July 2023 adopted its negotiating position on the proposal for a directive on the protection of persons who engage in public participation from manifestly unfounded or abusive court proceedings, also known as strategic lawsuits against public participation (SLAPPs).

The Parliament will now start discussions on this basis with the European Council, whose first position has been analysed by Pietro Franzina in a previous post on this blog.

The text resulting from the Council’s general approach departs from the initial proposal (analysed by Marta Requejo in a previous post on this blog), in various respects.

The most significant innovations include the following.

Subject Matter

Parliament specified that the directive poses a set of minimum standards of protection and safeguards against manifestly unfounded or abusive court proceedings in civil matters, as well as the threats thereof, with cross-border implications brought against natural and legal persons engaging in public participation. No specification on journalists and human rights defenders is provided.

Scope

The scope of the proposed directive should apply to matters of a civil or commercial nature having cross-border implications, including interim and precautionary measures, counteractions or other particular types of remedies available under other instruments, whatever the nature of the court or tribunal. Parliament, then, specified the directive tool as posing minimum requirements. Member States, indeed, may introduce or maintain more favourable provisions than the safeguards provided for in this directive against manifestly unfounded and abusive court proceedings in civil matters. As a result, the implementation of this directive shall in no circumstances constitute grounds for a reduction in the level of safeguards already afforded by Member States in the matters covered by this directive.

Definitions

Parliament clarified the definition of ‘public participation’ to mean any statement or activity by a natural or legal person expressed or carried out in the exercise of the right to freedom of expression and information, academic freedom, or freedom of assembly and association, and preparatory, supporting or assisting action directly linked thereto, on a matter of public interest. This includes complaints, petitions, administrative or judicial claims, the participation in public hearings, the creation, exhibition, advertisement or other promotion of journalistic, political, scientific, academic, artistic, satirical communications, publications or works.

Also the ‘matter of public interest’ is deepened by the Parliament, adding fundamental rights including gender equality, media freedom and consumer and labour rights, as well as the already indicated public health, safety, the environment or the climate. Activities of a person or entity in the public eye or of public interest includes governmental officials and private entities too. Allegations of corruption and fraud are extended, comprising also embezzlement, money laundering, extortion, coercion, sexual harassment and gender-based violence, or other forms of intimidation, or any other criminal or administrative offence, including environmental crime. All activities aimed to protect the values enshrined in Article 2 TEU, the principle of non-interference in democratic processes, and to provide or facilitate public access to information with a view to fighting disinformation are included.

The ‘fully or partially unfounded’ element related to these proceedings is better explained, that is when characterised by elements indicative of a misuse of the judicial process for purposes other than genuinely asserting, vindicating or exercising a right and have as their main purpose to abusively prevent, restrict or penalize public participation. Indications of such a purpose are added and further clarified, as follows. It is added the misuse of economic advantage or political influence by the claimant against the defendant, leading to an imbalance of power between the two parties. Intimidation, harassment or threats on the part of the claimant or his or her representatives can occur before or during the proceedings, as well as any previous history of legal intimidation by the claimant. It is then added also the use in bad faith of procedural tactics, such as delaying proceedings, and choosing to pursue a claim that is subject to the jurisdiction of the court that will treat the claim most favourably, or the discontinuation of the cases at a later stage of the proceedings.

Matters with Cross-Border Implications

The aim is to cover as many cases as possible, working on the cross-border notion in order to enlarge it. Cross-border implications, indeed, occur for the Parliament if the act of public participation is relevant to more than one Member State, either due to the cross-border dimension of the act itself or due to the legitimate interest which the public may take in the matter concerned by the act, including if the act is accessible via electronic means. The other element, i.e. the filing of concurrent or previous proceedings against the same or associated defendants in another Member State, is confirmed by the Parliament.

Application for Procedural Safeguards

Providing expeditious court proceedings is outlined. Member States shall ensure that courts or tribunals seised with an application for procedural safeguards in the proceedings in relation to which the application has been sought using the most expeditious procedures available under national law, taking into account the circumstances of the case, the right to an effective remedy and the right to a fair trial.

According to the Parliament, then, Member States shall (not ‘may’) provide that measures on procedural safeguards in accordance with chapters on early dismissal and remedies can be taken by the court or tribunal seised of the matter ex officio.

Assistance to natural or legal persons engaging in public participation is added. Member States shall ensure that natural or legal persons engaging in public participation have access, as appropriate, to support measures, in particular the following: (a) comprehensive and independent information and advice which is easily accessible to the public and free of charge on procedures and remedies available, on protection against intimidation, harassment or threats of legal action, and on their rights; and (b) legal aid in accordance with Directive 2003/8/EC, and, in accordance with national law, legal aid in further proceedings, and legal counselling or other legal assistance; (c) financial assistance and support measures, including psychological support, for those targeted by abusive court proceedings against public participation.

Third Party Intervention

The third party intervention is strengthened: in addition to widening the audience of interveners, their role is increased. Member States shall take the necessary measures to ensure that a court or tribunal seised of court proceedings against public participation may accept that associations, organisations and other collective bodies, such as trade unions, and any other legal entities which have, in accordance with the criteria laid down by their national law, a legitimate interest in safeguarding or promoting the rights of persons engaging in public participation may take part in those proceedings, either on behalf or in support of the defendant, with his or her approval or to provide information, in any judicial procedure provided for the enforcement of obligations under this directive. This provision is without prejudice to existing rights of representation and intervention as guaranteed by other Union or national rules.

Security

Security for procedural costs, or for procedural costs and damages, is remodelled as security for costs of the proceedings, including the full costs of legal representation incurred by the defendant and damage. Where national law provides for such possibility, security may be granted to the defendant at any stage of the court proceedings.

Early Dismissal

Member States shall (not ‘may’) establish time limits for the exercise of the right to file an application for early dismissal. The time limits shall be also reasonable.

Award of Costs

The claimant who has brought abusive court proceedings against public participation is to be ordered to bear all the costs. Where national law does not guarantee the award in full of the costs of legal representation beyond statutory fee tables, Member States shall ensure that such costs are fully covered by other means available under national law, and, where appropriate, through compensation of damages in accordance with Article 15.

Compensation of Damages

Full compensation for harm is clarified covering material or non-material harm, including reputational harm, without the need to initiate separate court proceedings to that end.

Penalties and National Register

Parliament added that Member States shall ensure that courts or tribunals imposing penalties take due account of: (i) the economic situation of the claimant; (ii) the nature and number of the elements indicating an abuse identified.

In addition, Member states shall take appropriate measures to establish a publicly accessible register of relevant court decisions falling within the scope of this directive, in accordance with Union and national rules on the protection of personal data.

Jurisdiction for Actions Against Third-Country Judgements

Parliament modified this matter, stating that the concerned person shall (not ‘may’) have the right granted under Article 18.

Jurisdiction, Applicable Law and Relations with Union Private International Law Instruments

On jurisdiction matters, a new article has been included stating that in defamation claims or other claims based on civil or commercial law which may constitute a claim under this directive, the domicile of the defendant should be considered to be the sole forum, having due regard to cases where the victims of defamation are natural persons. With the exception of the latter new added Article, this directive then shall not affect the application of the Brussels I bis Regulation.

On the applicable law, in claims regarding a publication as an act of public participation, the applicable law shall be the law of the place to which that publication is directed to. In the event of it not being possible to identify the place to which the publication is directed, the applicable law shall be the law of the place of editorial control or of the relevant editorial activity with regard to the act of public participation. With the exception of the latter new added Article, this directive shall not affect the application of the Rome II Regulation.

Union Register

The Commission shall take appropriate measures to establish a publicly accessible Union register, on the basis of the information provided in accordance with the Article concerning the national register, of relevant court decisions falling within the scope of this directive, in accordance with Union rules on the protection of personal data.

Awareness-Raising

A new addition by the Parliament. Member States shall take appropriate action, including via electronic means, aimed at raising awareness about strategic lawsuits against public participation and the procedural safeguards set out in this directive against them. Such action may include information and awareness-raising campaigns and research and education programmes, where appropriate in cooperation with relevant civil society organisations and other stakeholders.

One-Stop Shop

Parliament included a new article establishing a ‘one-stop shop’ comprising dedicated national networks of specialised lawyers, legal practitioners and psychologists, which targets of SLAPPs can contact, and through which they can receive guidance and easy access to information on, and protection against SLAPPs, including regarding legal aid, financial and psychological support.

Training of Practitioners

To foster prevention of the initiation of SLAPPs and protection of targeted natural or legal persons, it is crucial to promote relevant information, awareness-raising, campaigns, education and training, including on their rights and protection mechanisms. Parliament proposed that, with due respect for the independence of the legal profession, Member States should recommend that those responsible for the training of lawyers make available both general and specialist training to increase the awareness of strategic lawsuits against public participation and the procedural safeguards against them provided for in this directive. Training should also be provided to legal professionals in order to increase awareness of abusive court proceedings and be able to detect them at a very early stage.

Cooperation and Coordination of Services

Member States should take appropriate action to facilitate cooperation between Member States to improve the access of those targeted by manifestly unfounded or abusive court proceedings against public participation to information on procedural safeguards provided for in this directive and under national law. Such cooperation should be aimed at least at: (a) the exchange of current practices; and (b) the provision of assistance to European networks working on matters directly relevant to those targeted by manifestly unfounded or abusive court proceedings against public participation.

Deontological Rules for Legal Professionals

Member States shall, with due respect for the independence of the legal profession, encourage the adoption by professional associations of deontological rules that guide the conduct of legal professionals to discourage the taking of abusive lawsuits against public participation, and where appropriate, considering measures to address any violation of those rules.

Data Collection

Member States shall, taking into account their institutional arrangements on judicial statistics, entrust one or more authorities to be responsible to collect and aggregate, in full respect of data protection requirements, data on abusive court proceedings against public participation initiated in their jurisdiction. Data referred to shall include, in particular, many specified criteria.

Transposition into National Law

Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this directive according to the Parliament by 1 years, compared to the 2 years of the original Commission text.

In addition, Member States shall apply this directive also to cases pending before a national court at the time of entry into force of the national rules transposing this directive.

The author of this post is Lydia Lundstedt, who is a Senior Lecturer at Stockholm University.

The United States has long differed from other countries by applying its trademark law (Lanham Act) to acts of infringement in foreign countries. Indeed, in the seminal case, Steele v. Bulova Watch Co., Inc., 344 U.S. 280 (1952), the Supreme Court of the United States (SCOTUS or Court) upheld the application of the Lanham Act to acts of infringement in Mexico when a U.S. defendant took essential steps in the U.S. and caused consumer confusion in the U.S. and injured the right holder’s reputation in the U.S. and abroad. In Abitron Austria GmbH v. Hetronic International, decided on 29 June 2023, the Court put an end to this and held that § 1114(1)(a) and §1125(a)(1) (the infringement provisions) of the Lanham Act are not extraterritorial and apply only to infringing uses of protected marks in U.S. commerce.

Facts

Hetronic International, Inc (Hetronic), a U.S. company, manufactures radio remote controls for heavy-duty construction equipment. For many years Hetronic had a distributorship agreement with six foreign related parties (collectively Abitron) to distribute Hetronic’s products in Europe. The relationship soured when Abitron claimed ownership to much of Hetronic’s intellectual property rights and began manufacturing their own products—identical to Hetronic’s—and selling them using Hetronic’s trademarks. Abitron mostly sold its products in Europe, but it also made some sales to buyers in the U.S. Hetronic sued Abitron alleging infringement under the Lanham Act seeking worldwide damages and a global injunction. Abitron argued that the Act could not apply to its foreign sales. The district court rejected this argument and Hetronic was awarded approximately 96 million dollars in damages. Abitron was also enjoined from using Hetronic’s trademarks anywhere in the world. The Court of Appeals affirmed the judgment, apart for narrowing the injunction to the countries in which Hetronic actually markets or sells its products. Abitron appealed to SCOTUS.

SCOTUS

The Court applied its longstanding presumption against extraterritoriality, which holds that, unless the U.S. Congress has clearly instructed otherwise, U.S. legislation applies only within the U.S. territory. The Court recalled that this presumption serves to avoid international discord with foreign countries and recognizes that Congress generally legislates with domestic concerns in mind.

The Court’s modern extraterritoriality framework consists of two steps. First, the Court determines whether there is a clear indication that Congress intended to rebut the presumption with respect to the provision at issue. If the answer is no, step two determines whether the case involves a domestic (permissible) application of the provision or a foreign (impermissible) application of the provision. This involves identifying the statute’s focus and whether the object of the focus is located in the U.S.

While all the justices agreed that the answer at step one was no, the justices were almost evenly divided (5-4) at step two in how to draw the dividing line between a domestic and a foreign application of the Lanham Act’s infringement provisions.

The majority (opinion of the Court) held that the relevant criterion was the location of the conduct, that is, the infringing use of the mark must occur in U.S. commerce. They observed that the Court’s previous precedent, Steele v. Bulova Watch Co., which they called “narrow and fact-bound”, implicated both domestic conduct and a likelihood of domestic confusion so it was not helpful when determining which of the two criteria were relevant. Looking instead to the text and context of the infringement provisions, the majority explained that while the conduct must create a risk of confusion, confusion was not a separate requirement but a necessary characteristic of the infringing use. In addition, the majority reasoned that a conduct criterion was easy for the lower courts to apply and it was consistent with the territorial nature of trademarks enshrined in international law.

In contrast, the concurring justices argued that the relevant criterion was consumer confusion. They maintained that the focus of the statute was protection against consumer confusion in the U.S. In their view, an application of the Lanham Act to activities carried out abroad when there is a risk of confusion in the U.S. was a permissible domestic application.

The concurring justices argued that the Court’s precedents do not require a conduct only criterion. They argued that the focus of a statute can be parties and interests that Congress seeks to protect. In addition, they chided the majority for putting aside Steele v. Bulova Watch, which has guided the lower courts for more than 70 years. They also argued that the majority exaggerated the risk for international discord and that applying the Act when there was a likelihood of U.S. consumer confusion was consistent with the international trademark system.

The justices were unanimous in agreeing that the Court of Appeals’ judgment be vacated.

New Questions

The majority opinion raises questions concerning the localization of infringing use. Indeed, its focus on conduct suggests that the location of the actor is relevant. That said, there was no dispute that the Lanham Act applied to the products that Abitron sold directly into the U.S. But what if the products were delivered abroad but marketed to U.S. buyers? Under European Union law, for instance, an infringing use of a trademark takes place in the EU if an offer for sale of a trade-marked product located in a third State is targeted at consumers in the EU (L’Oréal and others (C-324/09).

Now that the Lanham Act no longer applies to foreign infringing acts, right holders will need to rely on foreign trademarks. As many right holders will undoubtably seek to enforce foreign rights in U.S. courts, the question arises whether the U.S. courts will hear foreign trademark claims. Historically, U.S. courts have been reluctant to hear infringement claims based on foreign registered rights for lack of subject matter jurisdiction or forum non conveniens. It will be interesting to see how SCOTUS rules on these questions in the future.

On 6 July 2023 the Court of Justice issued a judgement in BM v LO (C-462/22). The ruling provides guidance as to the interpretation of Article 3(1)(a) of the Brussels II bis Regulation on matrimonial matters and matters of parental responsibility. Specifically, it refers to the sixth indent of the provision, whereby, in matters relating to divorce, legal separation or marriage annulment, jurisdiction lies with the courts of the Member State in whose territory the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is a national of the Member State in question.

It is worth noting that the new Brussels II ter Regulation does not bring any changes to the rules on jurisdiction in matrimonial matters. The interpretation by the Court of Justice of those provisions accordingly remain valid under the recast Regulation.

Factual Background

The request for preliminary ruling originated from the German Supreme Court (Bundesgerichtshof). The case concerned the divorce of a couple formed by a German husband and a Polish wife, who had married in Poland in 2000. The couple had twin sons born in 2003.

The facts are as follows.

After initially living in Germany for a number of years, the couple moved to Poland into a house they had built, in which the wife still lives today. They are also the joint owners of a dwelling in Warsaw, which they had rented until September 2012, after which it was at their full disposal.

The husband was a senior executive of a pharmaceuticals manufacturer. Since April 2010, he has been employed as the managing director for the Central Europe region, which includes Poland and the Netherlands, but not Germany. His activity is largely characterised by business trips and working from home. His employer provided him with staff accommodation in Aerdenhout (Netherlands), in which he resided on an occasional basis until the end of 2013. The husband has a self- contained dwelling in a house occupied by his parents, in Hamm (Germany).

The husband filed a divorce application with the District Court in Hamm (Germany) in October 2013. He submitted that his habitual residence had been in Hamm since mid-2012 at the latest. He moved out of the house in Poland in June 2012. Since June 2012, he has deepened his relationship with his new cohabiting partner in Hamm and has been caring for his parents. During his stays in Poland, he was limited to having contact with his two sons, which was always tied in with business trips.

The wife challenged the jurisdiction of the German courts and submitted that the husband did not move out of the house in Poland until the beginning of April 2013 and then lived in the jointly owned dwelling in Warsaw. They took turns picking up the two sons from school in Warsaw during the second semester of the 2012/2013 academic year. The husband resided almost exclusively in the Netherlands or Poland between April and November 2013.

The District Court in Hamm (Germany) considered that the German courts lack  jurisdiction, and it dismissed the husband’s application as inadmissible. His appeal on the merits was dismissed also by the Higher Regional Court. The Higher Regional Court concluded that the husband’s habitual residence had been in Germany at the time when he filed his divorce application in October 2013. However, he had not yet been habitually resident in Germany for six months before he filed his divorce application (in April 2013). The husband’s appeal on a point of law, lodged with the referring court, is directed against the decision of the Higher Regional Court.

Preliminary Question

In the case at hand, the doubt concerns the provision of Article 3(1)(a) sixth indent of the Brussels II bis Regulation.

As the applicant was already habitually resident in Germany at the moment of filing a divorce claim, but not necessarily in the period of six month preceding this date, the Bundesgerichtshof decided to address the Court of Justice. The latter rephrased the preliminary question in the following way:

whether the sixth indent of Article 3(1)(a) of Regulation No 2201/2003 must be interpreted as meaning that that provision makes the jurisdiction of the court of a Member State to hear an application for the dissolution of matrimonial ties subject to the condition that the applicant, who is a national of that Member State, provides evidence that he or she has acquired a habitual residence in that Member State for at least six months immediately prior to the submission of his or her application, or to the condition that he or she shows that the residence which he or she acquired in that same Member State has become a habitual residence during the minimum period of six months immediately preceding the lodging of his or her application.

In simpler words the doubt in the case at hand is whether the applicant must prove habitual residence from the beginning and throughout that minimum period of six months immediately preceding the application.

The Judgment

The Court of Justice ruled that Article 3(1)(a)

makes the jurisdiction of the court of a Member State to hear an application for the dissolution of matrimonial ties subject to the condition that the applicant, who is a national of that Member State, provides evidence that he or she has acquired a habitual residence in that Member State for at least six months immediately prior to the submission of his or her application.

The Court of Justice reminded that the criteria for jurisdiction listed in Article 3 Brussels IIbis Regulation are objective, alternative and exclusive. While the first to fourth indents of Article 3(1)(a) expressly refer to the habitual residence of the spouses and of the respondent as criteria, the sixth indent of Article 3(1)(a) creates a forum actoris [para. 18-19].

The latter rule seeks to ensure a balance between, on the one hand, the mobility of individuals within the EU, in particular by protecting the rights of the spouse who, after the marriage has broken down, has left the MS where the couple had their shared habitual residence and, on the other hand, legal certainty (in particular legal certainty for the other spouse) by ensuring that there is a real link between the applicant and the MS whose courts have jurisdiction [para. 20].

The Court of Justice explained that, of course, for the purpose of relying on the sixth intend, a spouse must show his habitual residence in the territory of the given Member State at the time of lodging the application [para. 24]. The doubt is whether this habitual residence must be established from the beginning and throughout that minimum period of six months immediately preceding the application [para. 25].

As indicated by the Bundesgerichtshof there is a disagreement as to how the sixth indent of Article 3(1)(a) of the Brussels II bis Regulation are to be interpreted. According to first view, the applicant must have already had habitual residence in the MS of the court at the beginning of the six months period (referred to by the Bundesgerichtshof as “waiting period”). Pursuant to this view in order to exclude manipulation of jurisdiction to the detriment of the respondent, the applicant must prove a sufficiently close connection with the Member State of the court by virtue of habitual residence of a certain duration.

By contrast, according to the second standpoint, periods of mere de facto residence of the applicant must be included in the six-month period, as the commented provisions speaks of “residing” (and not “habitually residing”) in a Member State. Here, the Bundesgerichtshof compares the wording of Brussels II bis Regulation to the HCCH 1970 Divorce Convention, which wording is less ambiguous as to the character of residence. While establishing requirement of indirect jurisdiction, its Article 2(2)(a) provides that the requirement is fulfilled if “the petitioner had his habitual residence there and one of the following further conditions was fulfilled”, for example “such habitual residence had continued for not less than one year immediately prior to the institution of proceedings”.

While, agreeing with the first view (and acknowledging slightly different wording of Article 3(1) in the German version) the Court of Justice underlined that the commented provision must be understood in the light of other provisions of Brussels II bis Regulation. The Court of Justice explained that under Article 3(1)(a) second indent the court of the Member State in which the spouses were last habitually resident, in so far as one of them still resides there has jurisdiction. It is clear that the expression “still resides there” implies a temporal continuity between that residence and the place where the spouses were last habitually resident. As a result, the spouse who remained in the territory of the MS concerned has his or her own habitual residence there [para. 30]. This shows that no distinction should be made between the notion of habitual residence and residence in Article 3.

Only such understanding strikes a fair balance between legal certainty, while preserving the mobility of persons within the European Union and the possibility of obtaining the divorce, without unduly favouring that applicant, even though the forum actoris is a rule already favourable to him [para. 31].

Such strict understandings is needed as the jurisdiction based on the commented provision is not subject either to the agreement of the spouses or to the existence of a particular connection with the place where they lived together, past or present. Hence, requiring the applicant to demonstrate habitual residence in the territory of the Member State of the court seised for at least six months immediately preceding the lodging of the application is based on the need for that applicant to be able to establish a real link with that Member State [para. 33].

If, in contrast, the second view would be the correct one, the sufficiency of the period of habitual residence required of the applicant in the territory of the Member State of the court seised would, by definition, vary from case to case and according to the casuistic assessment of each national court seised [para. 34].

At the same time, the requirement as understood by the Court of Justice does not impose on the applicant any disproportionate burden, which could deter from relying on the commented ground of jurisdiction.

Final Remarks

Given the very favorable to the applicant ground of jurisdiction provided for in Article 3(1)(a) sixth indent of Brussels II bis Regulation, the interpretation provided by the Court of Justice is very reasonable. As suggested by the Bundesgerichtshof in its preliminary question, such interpretation is supported by the fact that the commented rule constitutes a special privileged treatment of the applicant, with the result that there is a need for special protection of the respondent, who in most cases has no connection to the court seised.

In practice, as noticed by the referring court, an ex-post assessment of the question as to whether the residence in the MS was already “habitual” at the beginning of the six-month period might be associated with considerable factual uncertainties and difficulties.

However, such problems are likely to arise only rarely. Usually, a spouse, while separated from the other, leaves the place where the the couple was resident and moves to another MS, which usually entails the return to “home” MS, which is the MS of his / her residence before the marriage or nationality.

Hence, as suggested in the AG’s opinion to IB v FA (C-289/20) it is possible for a spouse to acquire habitual residence almost immediately or at least after a short period of time, with the result that in practice the entire residence in the other MS will constitute habitual residence.

The readers of this blog are aware of the pending proposal for a directive of the European Parliament and of the Council on corporate sustainability due diligence. The topic was dealt with in a post that can be found here, and in another post here, with reference to the recommendations by GEDIP, the European Group of Private International Law.

The proposed directive aims to foster sustainable and responsible corporate behaviour throughout global value chains. In-scope companies will be required to identify and, where necessary, prevent, end or mitigate adverse impacts of their activities on human rights.

The next steps for the directive proposal will be the trilogue discussions between the European Parliament, the Council of the European Union and the Commission.

The Views of the European Parliament

On 1 June 2023, the European Parliament, at 1st reading/single position, adopted amendments to the proposal. It could be summarized as follows.

Scope of application

Parliament addressed the threshold criteria to fall within the scope of the directive. The new rules will apply to EU-based companies, regardless of their sector, including financial services, with more than 250 employees and a worldwide turnover over EUR 40 million, as well as to parent companies with over 500 employees and a worldwide turnover of more than EUR 150 million. Non-EU companies with a turnover higher than EUR 150 million, if at least EUR 40 million was generated in the EU will also be included; the same for non-EU parent companies with a turnover exceeding EUR 150 million, from which at least EUR 40 was generated in the EU.

Definitions

Parliament moves in broadening the definition of ‘value chain’, to include the sale, distribution, transport, and waste management of products.

Companies’ Obligations

Parliament, in Article 8b (new), specified that the directive should lay down rules on companies’ obligations regarding actual and potential negative impacts on human rights and the environment that they have caused, contributed to or are directly involved in, with regard to their own activities, and those of their subsidiaries.
Companies would be required to identify and, where appropriate, prevent, bring to an end or mitigate the negative impact of their activities on human rights and the environment, such as child labour, slavery, labour exploitation, pollution, environmental degradation and loss of biodiversity. They should also monitor and assess the impact of their business partners, not only suppliers, but also sales, distribution, transport, storage, waste management and other areas.

Integration of Due Diligence

Companies covered by the Directive should: integrate due diligence into their corporate policies, identify and, where necessary, prioritise, prevent, mitigate, remedy, eliminate and minimise potential and actual adverse impacts on human rights, the environment and good governance; establish or participate in a mechanism for the notification and out-of-court handling of complaints; monitor and verify the effectiveness of actions taken in accordance with the requirements set out in the Directive; communicate publicly on their due diligence and consult relevant stakeholders throughout this process.
Member States should ensure that parent undertakings can take action to help ensure that their subsidiaries falling within the scope of the Directive comply with their obligations.
Companies should apply a due diligence policy that is proportionate and commensurate to the degree of severity and the likelihood of the adverse impact and commensurate to the size, resources and capacities of the company, taking into account the circumstances of the specific case, including the nature of the adverse impact, characteristics of the economic sector, the nature of the company’s specific activities, products, services, the specific business relationship.
In conflict-affected and high-risk regions, companies should uphold their obligations under international humanitarian law and demonstrate heightened, conflict-sensitive due diligence in their operations and business relationships.

Prevention of Potential Negative Impacts

Companies would be required to take the following steps, as appropriate: consider establishing contractual arrangements with partners with whom the company has a business relationship, obliging them to comply with the company’s code of conduct and, where appropriate, a prevention action plan; take necessary modifications, improvements to, withdrawals of or investments in, the company’s own operations, such as into management, production or other operational processes, facilities, products and product traceability, projects, services and skills; adapt business models and strategies, including purchasing practices, including those which contribute to living wages and incomes for their suppliers, in order to prevent potential adverse impacts, and develop and use purchase policies that do not encourage potential adverse impacts on human rights or the environment; take appropriate measures to ensure that the composition, design and commercialisation of a product or service is in line with Union law and does not lead to adverse impacts, be it individual or collective. In this regard, particular attention shall be paid to potential adverse impact on children.

Mitigating Actual Negative Impacts

Where a company has caused or contributed to an actual adverse impact, it should take steps to remedy or contribute to the remedy of that adverse impact and any harm it has caused to people or the environment. Remedial measures, introduced by Parliament, would aim to restore the affected individuals, groups, communities and/or the environment to a situation equivalent to, or as close as possible to, that which existed prior to the adverse impact.

Exchanges with Stakeholders

The new rules would also require companies to engage in dialogue with those affected by their actions, including human rights and environmental defenders. Companies would also be required to regularly monitor the effectiveness of their due diligence policies. To facilitate investor access, information on a company’s due diligence policy should also be available on the European Single Access Point (ESAP).
Employees and their representatives should be informed by their company of its due diligence policy and its implementation.

Guidelines

To provide support to companies or to Member State authorities, the Commission, in consultation with Member States, the European cross-industry and sectoral social partners and other relevant stakeholders, should issue clear and easily understandable guidelines, including general and sector- specific guidance, in order to facilitate compliance in a practical manner. Each Member State should designate one or more national helpdesks for corporate sustainability due diligence.

Combating Climate Change

Companies should implement a transition plan to limit global warming to 1.5°C. Companies, with more than 1 000 employees on average according to Parliament, should have an effective policy in place to ensure that part of any variable remuneration for directors is linked to the company’s transition plan.

Sanctions

Non-compliant companies will be liable for damages and can be sanctioned by national supervisory authorities. According to Parliament, sanctions include measures such as “naming and shaming”, taking a company’s goods off the market, or fines of at least 5% of the previous net worldwide turnover. Non-EU companies that fail to comply with the rules will be banned from public procurement in the EU.

Single Market Clause

Parliament introduced the single market clause. According to the latter, the Commission and the Member States shall coordinate during the transposition of this Directive and thereafter in view of a full level of harmonisation between Member States, in order to ensure a level playing field for companies and to prevent the fragmentation of the Single Market.

Justice Costs, Injunctions and Third-party Intervention

Parliament require Member States in ensuring that: the limitation period for bringing actions for damages is at least ten years and measures are in place to ensure that costs of the proceedings are not prohibitively expensive for claimants to seek justice; claimants are able to seek injunctive measures, including summary proceedings (these shall be in the form of a definitive or provisional measure to cease an action which may be in breach of this Directive, or to comply with a measure under this Directive); measures are in place to ensure that mandated trade unions, civil society organisations, or other relevant actors acting in the public interest can bring actions before a court on behalf of a victim or a group of victims of adverse impacts, and that these entities have the rights and obligations of a claimant party in the proceedings, without prejudice to existing national law.

The Council’s General Approach of November 2022

Previously, on 30 November 2022, the Council of the European Union had adopted its negotiating position, or general approach. It included the following provisions.

Companies Concerned

In relation to companies concerned (see Article 2), the rules of the due diligence directive would still apply to large EU companies and to non-EU companies active in the EU. For EU companies, the criteria that determine whether a company falls within the scope of the directive are based on the number of employees and the company’s net worldwide turnover, whereas in the case of non-EU companies the criterion is related to the net turnover generated in the EU; if a non-EU company fulfils the criterion regarding net turnover generated in the EU, it will fall under the scope of the due diligence directive, irrespective of whether it has a branch or a subsidiary in the EU.
The Council’s text has introduced a phase-in approach regarding the application of the rules laid down in the directive. The rules would first apply to very large companies that have more than 1000 employees and €300 million net worldwide turnover or, for non-EU companies, € 300 million net turnover generated in the EU, 3 years from the entry into force of the directive.

Definitions

The European Council’s draft limits the scope of the due diligence obligations identified by the Commission in the full life-cycle “value chain” approach towards a more narrowed “chain of activities”: the latter covers a company’s upstream and in a limited manner also downstream business partners as it leaves out the phase of the use of the company’s products or the provision of services and excludes the use of a company’s products by its consumers (see Article 3(g)); then, it leaves it up to the Member States to decide whether regulated financial undertakings (including fund managers) shall be included in the scope of the directive.
The Council’s text also strengthens the risk-based approach and the rules on the prioritisation of the adverse impacts to ensure that carrying out due diligence obligations is feasible for companies (see Article 3, points (e) and (f)).

Combating Climate Change

The text of the provision on combating climate change (see Article 15) has been aligned as much as possible with the soon-to-be-adopted Corporate Sustainability Reporting Directive (CSRD), including a specific reference to that directive, in order to avoid problems with its legal interpretation, while avoiding broadening the obligations of companies under this Article.
Due to the strong concerns of Member States regarding the provision proposed by the Commission linking the variable remuneration of directors to their contribution to the company’s business strategy and long-term interest and sustainability, this provision has been deleted (Article 15(3)). The form and structure of directors’ remuneration are matters primarily falling within the competence of the company and its relevant bodies or shareholders. Delegations called for not interfering with different corporate governance systems within the Union, which reflect different Member States’ views about the roles of companies and their bodies in determining the remuneration of directors.

Civil Liability

The Council’s text provides more clarity to the conditions of civil liability (see Article 22) with a provision that ensures full compensation for damages resulting from a company’s failure to comply with the due diligence obligations, avoiding unreasonable interference with the Member States’ tort law systems.
The four conditions that have to be met in order for a company to be held liable – a damage caused to a natural or legal person, a breach of the duty, the causal link between the damage and the breach of the duty and a fault (intention or negligence) – were clarified in the text and the element of fault was included.
Furthermore, the right of victims of human rights or environmental adverse impacts to full compensation were expressly provided for in the compromise text. On the other hand, the right to full compensation should not lead to overcompensation, for example by means of punitive damages.
Further, clarifications of the joint and several liability of a company and a subsidiary or a business partner and the overriding mandatory application of civil liability rules were made.
All of these clarifications and precisions allowed to delete the safeguard for companies that sought contractual assurances from their indirect business partners after a strong criticism of this provision due to its heavy reliance on contractual assurances.

Directors’ Duties

Due to the strong concerns expressed by Member States that considered Article 25 to be an inappropriate interference with national provisions regarding directors’ duty of care, and potentially undermining directors’ duty to act in the best interest of the company, the Council’s proposal deletes the director’s duties introduced by the Commission.

Annex I

The Annex I to the proposed directive has undergone significant changes with the main objective of making the obligations as clear and easily understandable for companies as possible, while ensuring a legally sound base. The logic of the Annex I is to list specific rights and prohibitions, the abuse or violation of which constitutes an adverse human rights impact (see Article 3, point (c)) or adverse environmental impacts (see Article 3, point (b)). To better understand how these rights and prohibitions should be interpreted, the Annex I contains references to international instruments that serve as points of reference.
To ensure the legitimacy of referring to international instruments that are legally binding only on the States, and following the overall logic of the Annex I, the Annex I covers only those international instruments that were ratified by all Member States. Overall, the Annex I of the compromise text only refers to such obligations and prohibitions that can be observed by companies, not just by States.
As regards the human rights part of the Annex I, it covers only legally binding international instruments that are recognised as a minimum list of instruments in the international framework. Concerning the environmental part of the Annex I, a limited number of additional specific obligations and prohibitions under international environmental instruments have been added, the violation of which results in an adverse environmental impact.
Moreover, the definitions of adverse environmental and human rights impacts have been clarified. Furthermore, the so-called ‘catch-all clause’ included in the Commission’s proposal has been kept in order to safeguard the indivisibility of human rights, but it has been clarified thoroughly to ensure maximum predictability for companies.

The second issue of the Revue critique de droit international privé of 2023 contains three articles on private international law and numerous casenotes.

In the first article, Sandrine Brachotte (St Louis and Lille Universities) advocates a decolonial approach of private international law (Pour une approche décoloniale du droit international privé). The abstract reads:

This article presents the decolonial approach to private international law, which has recently entered the list of pressing topics for the discipline, not only in colonised countries but also in Europe. In France, the subject may not yet be addressed as such, but it at least appeared in a Ph. D. thesis defended at the Sciences Po Paris Law School in May 2022, entitled “The Conflict of Laws and Non-secular Worldviews: A Proposal for Inclusion”. This thesis argues for an alternative theorisation of the notions of party autonomy, recognition, and international jurisdiction to make them more inclusive of non-occidental worldviews. After having offered a description of the decolonial approach and the current enterprise of decolonisation of private international law, this contribution summarises the essential points of the Ph. D. thesis in this respect and identifies the broader questions that it raises for private international law, especially as regards the notions of “law”, “foreign” and “conflict”.

Dr Brachotte has already presented her work on this blog here.

In the second article, Elie Lenglart (Paris II University) confronts international civil procedure to individualism (Les conflits de juridictions confrontés à l’individualisme). The abstract reads:

Individualism is one the characteristic features of modern legal theories. The emergence of the individualistic approach is profoundly linked to a special perception and evaluation of the reality based of the superiority of the individual. This conception has had decisive consequences in private international law. The impact of this tendency should not be underestimated. Its influence is noticeable in the first place on the determination of international competency of French jurisdictions, both via the provision of available jurisdictions to individuals and via the individuals’ propensity to extend their choices of jurisdictions based on their personal interests. It also influences the recognition and enforcement of foreign judgments by imposing the legal recognition of individual statuses under extremely liberal conditions, reorganizing in turn the whole system around the individual.

The article is a follow up on Dr Lenglart’s work on individualism in choice of law theory.

An English version of these two articles will be available on the website of the publisher.

In the third article, David Sindres (university of Angers) offers new reflections on optional jurisdiction clauses.

Finally, a last article is dedicated to recent developments in French immigration law.

The full table of contents is available here.

The author of this post is Willem Visser. He is one of the editors of the Dutch Journal for Consumer Law and Unfair Commercial Practices (Tijdschrift voor Consumentenrecht & handelspraktijken).

In April 2023, the EAPIL Working Group on the Reform of the Brussels I bis Regulation issued a preliminary position paper formulating proposals for reforming the Regulation. On 29 March 2023, the European Commission published a study to support the preparation of a report on the application of the Brussels Ibis Regulation.

In my opinion, consumer protection seems to be only marginally on the radar in these documents. Therefore, I wrote this article, which was published in the Dutch Journal for Consumer Law, where I propose to extend the material scope of the provisions dealing with consumer contracts (Articles 17-19 Brussels I bis Regulation) and to significantly simplify the entire chapter on jurisdiction. A summary of my article and proposals is set out below.

Consumers are protected through EU regulations not only when it comes to their substantive rights (against unfair commercial practices, unfair terms, etc.), but also when it comes to procedural law, in particular the assesment of international jurisdiction in disputes over consumer contracts.

This procedural protection is enshrined in the Brussels I bis Regulation and its predecessors (Regulation No. 44/2001 and the 1968 Brussels Convention). These instruments will be referred to below as ‘the Brussels regime’.

The Brussels regime protects consumers by giving jurisdiction to the courts of their country of residence (Articles 17-19 Brussels I bisRegulation). That seems like a great deal, but in practice there are several limitations to that protection.

First, the consumer protection only applies to consumer contracts and not to any non-contractual obligations invoked by consumers (for example, tort, unjust enrichment and negotiorum gestio). In these types of cases the consumer cannot litigate before the court of his or her domicile, but will probably have to seek the courts of its professional counterparty: the defendant’s domicile. It is not desirable for consumers to be forced to litigate outside their country of residence, because that means extra travel time, litigating in an unfamiliar country and in a different language, with the help of a foreign lawyer, in a procedure that may well be more expensive than in his or her home country. Moreover, it is not always clear – on the basis of the various rulings by the EU Court of Justice – whether an obligation should be qualified as a ‘contractual obligation’ or a ‘non-contractual obligation’. There have been several cases where the natural person was the weaker party and needed protection, but did not get it because of the non-contractual nature of the obligation in question (see the ECJ decisions in Wikingerhof, Kolassa and Deepwater Horizon). I therefore believe that consumer protection in the Brussels Ibis Regulation should not be limited to consumer contracts but should be extended to non-contractual consumer obligations.

Second, the ECJ interpretes the concept of ‘consumer’ restrictively: it “must necessarily be interpreted strictly, in the sense that it cannot be extended beyond the cases expressly mentioned in that Regulation” (amongst others: Poker Player, C-774/19, para. 24). This restrictive approach resulted in a natural person not being able to claim consumer protection under the Brussels regime in the following situations: if he/she was a consumer but transferred his/her rights; in that case, the person to whom the rights have been transferred cannot be considered a ‘consumer’ (C-89/91); if the contract was entered into with a view to an as yet unexercised but future professional activity (C-269/95); if it concerns a class action initiated by a group of consumers (C-167/00); if both parties are consumers (C-508/12); if the consumer does not have a contract with the issuer of the certificates (C-375/13); if the agreement subsequently acquired a professional character (C-498/16); if the contract was concluded for a dual purpose, unless the contract, in view of the context of the transaction – considered as a whole – for which it was concluded, is so distinct from that professional activity that it is evident that it was concluded primarily for private purposes (C-630/17); if there is a claim by a consumer against an airline that is not a party to the transport contract (C-215/18).

So, there are quite a few situations where a natural person is not considered a ‘consumer’, and therefore cannot litigate before the courts of his or her own domicile. This is remarkable, because the European Union ensures “a high level of consumer protection” (Article 38 of the EU Charter of Fundamental Rights). I believe that in several of the situations mentioned above, there is an unjustified lack of protection. In my opinion, the regime of Article 17-19 Brussels I bis Regulation should therefore be applied less restrictively by entering an assumption into the Regulation that a natural person acts in his capacity as a consumer. It is up to the counterparty to prove that the natural person has unmistakably acted in the context of his or her profession or business.

In addition, I believe that consumer protection should also apply to consumer collective actions. There is no valid reason why the collective nature of a claim should result in a group of consumers no longer being considered a weaker party. At the time the contracts were concluded, the consumers represented had less room to negotiate with their professional counterparty, and thus to that extent still had a weaker position. Moreover, it leads to a divergence between the competent court and the applicable law. Still, collective actions based on a breach of consumer contracts remain governed by the law of the consumers’ country. The freedom to conduct a business, guaranteed in Article 16 of the EU Charter, does not necessitate the exclusion of collective actions from consumer protection. The professional counterparty of the consumer has already had to take into account that individual consumers could bring proceedings against it in their own place of residence. That this is different in the case of a consumer collective action is therefore, in that sense, an unexpected advantage for the counterparty.

Third, in my opinion the ‘targeting requirement’ in Article 17 (1)(c) Brussels I bis Reguliation is not workable in practice. This requirement has given rise to much ECJ case-law and leads to legal uncertainty (see the legal commentary on the Alpenhof judgment). In my opinion, in this digital day and age a consumer contract should only be excluded from consumer protection where the professional would not have to expect litigating in the courts of the consumer’s domicile. This is the case only, when the contract is concluded in a physical sales area or when the consumer cannot get the goods or services delivered in his place of residence under the trader’s terms and conditions.

In light of the above, I conclude that consumer protection under the Brussels regime has not kept pace with substantive consumer law in which consumer protection has become more extensive.

But that’s not the only comment I would like to make on the current Brussels I bis Regulation. The complexity of the chapter on jurisdiction (Chapter II of the Regulation) results even today – more than 50 years after its predecessor, the Brussels Convention, was signed by the the EEC members States – in large numbers of preliminary rulings. The Brussels/Lugano regime accounts for the majority of the 245 preliminary rulings on private international law sources from 2015 to 2022. That means more than 120 questions (128 to be precise) over a 7-year period. In my opinion, that is too much for an instrument that is in place more than 50 years.

Reducing the Court of Justice’s workload is not necessarily a compelling reason to simplify a regime, but it should be borne in mind that behind every case submitted to a court, there are two or more parties who – until the preliminary question is answered – cannot proceed with their legal proceedings. The delay is considerable, since preliminary reference proceedings before the Court of Justice take 16.6 months on average.

I therefore propose to replace the articles which give rise to the largest amount of preliminary questions (Article 7(1) and (2) of the Brussels I bis Regulation) by an article which aligns jurisdiction and applicable law. My proposal is that Article 7(1) and (2) (and perhaps other parts of Article 7) should be replaced by the following rule:

A person domiciled in one Member State may also be sued in another Member State whose laws governs the relevant contractual or non-contractual obligation underlying the claim. Where there are several claims governed by different laws, the courts of the Member State which laws governs the most far-reaching claim shall have jurisdiction.

The advantage of aligning jurisdiction and applicable law is that it improves coherence between the Brussels I bis Regulation and the Rome I and Rome II Regulations (which designate the law that is applicable to a contractual or non-contractual obligation). These Regulations all aim to promote predictability of the outcome of litigation, legal certainty and mutual recognition of judgments.

Simplifying the Brussels regime would give rise to fewer preliminary questions and fewer delays. Preventing delays is one of the objectives of procedural law. As the saying goes: ‘Justice delayed is justice denied’.

I admit that I have not yet thought through all consequences of my proposals, and it is going too far to elaborate all of them in the context of my article. But it seems right to discuss these proposals further and, if possible, to include it as an option in the ongoing review of the Brussels I bis Regulation.

Horatia Muir Watt’s latest book has recently been published by Hart in its Hart Monographs in Transnational and International Law, under the title The Law’s Ultimate Frontier: Towards an Ecological Jurisprudence (the subtitle reads A Global Horizon in Private International Law).

Here’s the publisher’s blurb:

This important book offers an ambitious and interdisciplinary vision of how private international law (or the conflict of laws) might serve as a heuristic for re-working our general understandings of legality in directions that respond to ever-deepening global ecological crises. Unusual in legal scholarship, the author borrows (in bricolage mode) from the work of Bruno Latour, alongside indigenous cosmologies, extinction theories and Levinassian phenomenology, to demonstrate why this field’s specific frontier location at the outpost of the law – where it is viewed from the outside as obscure and from the inside as a self-contained normative world – generates its potential power to transform law generally and globally.

Combining pragmatic and pluralist theory with an excavation of ‘shadow’ ecological dimensions of law, the author, a recognised authority within the field as conventionally understood, offers a truly global view. Put simply, it is a generational magnum opus. All international and transnational lawyers, be they in the private or public field, should read this book.

See here for more information. The publisher offers a 20% discount to those buying the book through its website using GLR BE1US for US orders and GLR BE1UK for all other orders.

On 30 June 2023, the Supreme Court of Poland issued an interlocutory order (II CSKP 1518/22) in a case regarding the enforcement in Poland of a Dutch judgment.

The order provides fresh evidence of how the long-lasting tensions between Poland and EU with respect to rule of law and independence of judiciary in Poland is having an impact on the operation of EU instruments on judicial cooperation (for a recent analysis of those tensions, see M. Taborowski, P. Filipek, Mustard After Lunch? Polish ‘Muzzle Law” before the Court of Justice, on EULawLive).

The Order in a Nutshell

The order of the Supreme Court was given in the framework of proceedings brought against a ruling rendered by the Court of Appeal of Poznań in 2020 (I ACz 444/20, unreported). The latter ruling had dismissed, in turn, an appeal against a District Court decision regarding the enforceability in Poland of a judgment rendered by the Rechtbank Limburg, in the Netherlands.

According to the Supreme Court’s press release, the order was based on Article 1153(24) of the Polish Code of Civil Procedure. The latter provision deals with recognition and enforcement of judgments given in a Member State of the Union pursuant to EU legislation on judicial cooperation in civil matters.

Little is known, at this stage, about the merits of the case. Rather, the decision is interesting for the way in which the Supreme Court decided to approach the issue of the enforceability of the Dutch judgment in Poland. In fact, the Supreme Court decided to stay the proceeding and ask the Ministry of Justice of Poland and the Dutch Judiciary Council (Raad voor de Rechtspraak) for clarifications regarding the independence of Dutch judicial authorities, in general, and – specifically – the magistrate who handed down the judgment.

Reasons Given by the Supreme Court to Justify the Request for Clarification

The Supreme Court justified its request for clarification by referring to a number of EU primary law provisions. These include Article 2 TEU (“which entrusts the courts of the Member States of the EU with the task of ensuring the full application of  EU law in all its Member States as well as the judicial protection of the subjective rights of individuals, and therefore having regard to the need to verify of its own motion (ex officio) the fulfilment of the requirements of effective judicial protection/effective remedy and the existence in the legislation of the Member State of guarantees of judicial independence”) and Article 47(2) of the Charter of Fundamental Rights of the European Union, which provides the relevant standards for the assessment (“in conjunction with the second subparagraph of Article 19(1) of the TEU, given the imperative for the Supreme Court to follow the interpretation of these provisions made by, inter alia, the Court of Justice”).

The Court also stressed “the principle of consistency and the resulting need for the uniform application of EU law throughout the EU, that is in all Member States and therefore also on the territory of the Kingdom of the Netherlands”.

To corroborate its reasoning, the Supreme Court listed various rulings given by the Court of Justice of the European Union in proceedings against Poland, such as Commission v Poland, C-791/19 and  Commission v Poland, C-204/21, together with rulings concerning the question of independence of judiciary in Poland (A.B. and others, C-824/18).

Nothing in the order or in the press release indicates that the Supreme Court had concerns regarding the independence of the particular Dutch court (or the particular Dutch magistrate) in question, or had reasons to believe that the particular proceedings which resulted in the Dutch judgement were conducted in breach of fundamental procedural guarantees.

Clarification Requested

The Dutch Judiciary Council (Raad voor de Rechtspraak) was asked to provide, inter alia, “copies of documents supporting and relating to the procedure for the appointment of X.Y. [anonymized name of the Dutch magistrate of the judge of the Rechtbank Limburg]”, in particular as regards:

(a) the procedure for his appointment, indicating the competent bodies involved in the appointment procedure, their composition and the functions performed by their members, including an indication of the extent, if any, of the influence of legislative or executive representatives on the judicial appointment, and a copy of the appointment document, a copy of the application for appointment and the opinions, if any, on the candidacy of X.Y. for the office of judge,

(b) information about the competition for the office of judge at the Rechtbank Limburg in which X.Y. participated as a candidate, the number of competing other candidates for the judicial post to which X.Y. was appointed at the Rechtbank Limburg, and the appeal procedure, if any, for candidates who were not recommended by the competent authorities and were not appointed, as well as the evaluation criteria, if any,

(c) assessments of Judge X.Y.’s performance during his judicial service (also possibly prior to his appointment as a judge at the Rechtbank Limburg, if he has held office at another court) and any judicial, investigative or disciplinary proceedings pending against him, or allegations concerning the assessment of his independence and attitude in the performance of his judicial duties and outside his judicial service (insofar as this remains relevant)

(d) any activities of Judge X.Y. of a political nature, including political party affiliation, irrespective of its duration and employment in the legislative or executive branches of government …

The Ministry of Justice of Poland was asked, instead, to provide information, among other things, on the Dutch rules that govern, in relation to the judiciary:

(a) the procedure for nomination to the office of judge considering the constitutional and statutory standard of the Kingdom of the Netherlands and resulting from the case law of the CJEU (…), including the standards in force in this respect in the period before 2019 and currently, with particular regard to the transparency of the criteria and the conduct of the procedure,

(b) the influence of the legislative or executive power on the procedure for the nomination of judges of common courts in the Netherlands and its scope, with particular reference to the Raad voor de Rechtspraak (Council for the Judiciary) and the formal binding nature of its recommendations (opinions) on candidates for the office of judge, and, possibly, disciplinary or other proceedings concerning the disciplinary or criminal liability of a judge,

(c) the avenue of appeal for candidates not appointed to the office of judge,

(d) the composition and method of election of members of the Raad voor de Rechtspraak …

The University of Kiel will host a conference on EU Insolvency Law and Third Countries: Which Way(s) Forward? on 26-28 October 2023. A special forum for young scholars is scheduled to take place on 26 October 2023 .

The conference is part of a coordinated research project on this topic endorsed by Uncitral and conducted in cooperation with representatives of the European Commission and the Hague Conference on Private International Law.

The goal of the conference, and of the underlying research project in general, is not so much to analyse the law as it stands today, but to discuss ideas how to further develop rules on coordination of EU insolvency law with insolvency law or insolvency proceedings in non-EU countries (e.g. the UK, Switzerland, the US, China and others).

The conference will be organized in a hybrid format, in presence in Kiel and online via Zoom. The deadline for registrations for the conference is 1 October 2023. The deadline to propose papers for oral presentations is 31 July (15 September for the Young Researchers Forum).

Further info on the project and the conference is available here.

Queries can be addressed to the organisers of the conference, Alexander Trunk and Jasnica Garašić, at office-eastlaw@law.uni-kiel.de or at intins@law.uni-kiel.de.

On 30 June 2023, the European Commission presented a proposal for a Council decision on the signing, on behalf of the European Union, of the United Nations Convention on the International Effects of Judicial Sales of Ships, adopted on 7 December 2022, also known as the Beijing Convention on the Judicial Sale of Ships.

The Convention sets out a uniform regime for giving effect to judicial sales internationally, while preserving domestic law governing the procedure of judicial sales and the circumstances in which judicial sales confer clean title, that is, title free and clear of any mortgage or charge. By ensuring legal certainty as to the title that the purchaser acquires in the ship, the Convention aims to maximize the price that the ship is able to attract in the market and the proceeds available for distribution among creditors, and to promote international trade.

The key rule of the Convention is that a judicial sale  in one State Party which has the effect of conferring clean title on the purchaser has the same effect in every other State Party, subject only to a public policy exception. Various provisions are found in the Convention which establish how a judicial sale is given effect after completion, including a requirement that the ship registry deregister the ship or transfer registration at the request of the purchaser, and a prohibition on arresting the ship for a claim arising from a pre-existing right or interest (i.e. a right or interest extinguished by the sale). To support the operation of the regime and to safeguard the rights of parties with an interest in the ship, the Convention provides for the issuance of two instruments: a notice of judicial sale and a certificate of judicial sale. It also establishes an online repository of those instruments which is freely accessible to any interested person or entity.

The Council decision that the Commission proposing is based on Article 81(2)(a) and (b) of the Treaty in the Functioning of the European Union, on the recognition and enforcement of judgments and the cross-border service of documents, in conjunction with Article 218(5) (concerning the conclusion of international agreements by the Union). In fact, some of the matters dealt with in the Beijing Convention affect the Brussels I bis Regulation and the Recast Service Regulation. The conclusion of the Convention comes, for those aspects, with the purview of the exclusive external competence of the Union.

The other matters covered by the Convention do not fall under that competence (the Convention includes provisions that deals with other issues of private international law, including jurisdiction, but they do not affect the operation of existing EU legislation). This means that that Member States should join the Convention alongside the Union, in order to ensure the full application of the Convention between the Union and third states.

Before the judicial holiday starting mid July the Court will deliver (as of today) decisions on two private international law cases and hold a hearing on another one.

The first decision is scheduled for on 6 July 2023. It corresponds to case C-462/22, BM, on a request from the German Bundesgerichtshof for a preliminary ruling on the interpretation of Article 3(1)(a) of the Brussels II bis Regulation on matrimonial matters and matters of parental responsibility. The question reads:

Does the waiting period of one year or six months under the fifth and sixth indents, respectively, of Article 3(1)(a) of the [Brussels II bis Regulation] begin to run with respect to the applicant only upon establishment of his or her habitual residence in the Member State of the court seised, or is it sufficient if, at the beginning of the relevant waiting period, the applicant initially has mere de facto residence in the Member State of the court seised, and his or her residence becomes established as habitual residence only subsequently, in the period before the application was made?

The proceedings concern the divorce of an individual of German nationality, and his wife, who is a Polish national. They married in Poland in 2000, and have twin sons born in 2003. The couple moved to Poland in the mid-2000s, into a house in Konstancin-Jeziorna in which the wife still lives today. They are also the joint owners of a dwelling in Warsaw.

The husband was a senior executive of a pharmaceutical manufacturer. Since April 2010, he has been employed as managing director for the Central Europe region, which includes Poland and the Netherlands, but not Germany. His activity is largely characterised by business trips and working from home. He resided on an occasional basis until the end of 2013 in the Netherlands; he also has a self-contained dwelling in a house occupied by his parents, in Hamm (Germany). He moved out of the house in Poland in June 2012, and since then, he has deepened his relationship with his new cohabiting partner in Hamm and has been caring for his sick parents. During his stays in Poland, which were always tied in with business trips, he was limited to having contact with his two sons.

On 27 October 2013, the husband filed a divorce application with the Amtsgericht Hamm (District Court, Hamm) submitting that his habitual residence had been there since mid-2012 at the latest.

The wife challenged the international jurisdiction of the German courts claiming that the husband did not move out of the house in Konstancin-Jeziorna until the beginning of April 2013, then lived in the jointly owned dwelling in Warsaw, and resided almost exclusively in the Netherlands or Poland between April and November 2013.

On 19 November 2013, she filed her own divorce application in Poland, with the Sad Okręgowy w Warszawie (Regional Court, Warsaw).

The Amtsgericht Hamm (District Court, Hamm) considered that the German courts lack international jurisdiction, and it dismissed the husband’s application as inadmissible. On appeal, the Oberlandesgericht (Higher Regional Court) held that according to the fifth and sixth indents of Article 3(1)(a) of the Brussels II bis Regulation, an applicant must have already established his or her habitual residence in the Member State of the court six months (or, respectively, one year) before the filing of the divorce application. A mere de facto residence in the Member State of the court is not sufficient for the commencement of the waiting period. The husband contests this interpretation.

L.S. Rossi is reporting judge; the decision will be taken by a chamber of five judges.

The second ruling, in case C-87/22, TT, also concerns the Brussels II bis Regulation. It is scheduled for Thursday 13. The referring court – the Regional Court Korneuburg (Austria) – asks the following:

1. Must Article 15 of [the Brussels II bis Regulation] be interpreted as meaning that the courts of a Member State having jurisdiction as to the substance of the matter, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, may request such a court to assume jurisdiction even in the case where that other Member State has become the place of habitual residence of the child following wrongful removal?

2. If Question 1 is answered in the affirmative, must Article 15 of [the Brussels II bis Regulation] be interpreted as meaning that the criteria for the transfer of jurisdiction that are set out in that article are regulated exhaustively, without the need to consider further criteria in the light of proceedings initiated under Article 8(f) of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction?

I summarized the facts of the case here. AG P. Pikamäe’s opinion was published in March. No English translation is available. He proposed the Court to answer that (my translation):

1. Article 15 of [the Brussels II bis Regulation] must be interpreted in the sense that, pursuant to Article 15(1)(b) of the Regulation, the court of a Member State, whose jurisdiction to rule on the custody of a minor is based on Article 10 of that Regulation, as the court of the Member State in which that minor had his habitual residence immediately before his wrongful removal, is empowered to request, exceptionally, the court of the Member State to which one of the parents wrongfully transferred the minor and in which he resides with him to exercise jurisdiction, provided it has duly ascertained, in view of the specific circumstances of the case, that the referral meets the three cumulative requirements established in Article 15 (1) of the same Regulation, among which the essential one that the referral responds to the best interests of the minor in question.

2. Article 15(1) of [the Brussels II bis Regulation] must be interpreted in the sense that, on the one hand, the requirements provided for in said provision are exhaustive and, on the other, the existence of a request for the return of a minor filed pursuant to article 8, first and third paragraphs, letter f), of the Convention on civil matters of international child abduction, made in The Hague on October 25, 1980, on which a final resolution has not yet been adopted, does not preclude the applicability of article 15 of said Regulation. However, the existence of such a claim for restitution is a factual circumstance that may be taken into account by the competent court when assessing the requirements, provided for in Article 15 (1), of the aforementioned Regulation, relating to the existence of a court better placed to hear the matter and to respect the best interests of the minor in case of referral to the court of another Member State with which the minor has a special relationship.

L.S. Rossi acts as reporting judge in a chamber of five judges (the same as in case C-462/22).

Finally, a hearing is taking place on Thursday 13 as well, in case C-394/22, Oilchart International, on the Brussels I bis Regulation and insolvency. The ruling has been requested by the Hof van beroep te Antwerpen (Court of Appeal Antwerp, Belgium). The underlying facts are the following. OW Bunker (Netherlands) BV (‘OWB NL’) is one of the companies of the Danish OWB Group. On the instructions of OWB NL, Oilchart International NV appellant supplied fuel to the ocean-going vessel Ms Evita K in the port of Sluiskil (the Netherlands), and issued an invoice  which remained unpaid due to the insolvency of OWB NL.

As Oilchart International NV, following the insolvency of OWB NL, had had a number of vessels attached in an effort to obtain payment for the fuel supplied, he had obtained bank guarantees from the ship owners concerned in order to effect a release of that attachment. Those guarantees provided that they could be invoked on the basis of ‘a court ruling or an arbitral award handed down in Belgium against either OWB NL’ or the ship owner.

It is alleged that, prior to the insolvency, ING Bank NV (‘ING’), together with others, had granted a loan. As security, the various entities of the OWB group, including OWB NL, had allegedly assigned their current and future claims on end customers to ING. ING intervened in the proceedings and sought to prohibit the invocation of the bank guarantees or other securities relating to the bunkered vessel before the conclusion of the insolvency proceedings relating to OWB NL.

The court at first instance declared the appellant’s claim against OWB NL inadmissible. With regard to ING’s claim, the court declared that it lacked international jurisdiction. On appeal, the referring court finds that, by not entering an appearance on the first day of the hearing, as was the case at first instance, the respondent OWB NL is deemed to have challenged the court’s international jurisdiction under Article 28(1) of the Brussels I bis Regulation.

The referring court asks:

(a) Must Article 1(2)(b) of the [Brussels I bis Regulation] in conjunction with Article 3(1) of the Insolvency Regulation (Regulation No 1346/2000) be interpreted as meaning that the term ‘bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings’ in Article 1(2)(b) of the Brussels Ia Regulation includes also proceedings in which the claim is described in the summons as a pure trade receivable, without any mention of the respondent’s previously declared bankruptcy, whereas the actual legal basis of that claim is the specific derogating provisions of Netherlands bankruptcy law (Article 25(2) of the Wet van 30 september 1893, op het faillissement en de surséance van betaling (Law of 30 September 1893 on bankruptcy and suspension of payment; ‘NFW’)) and whereby: it must be determined whether such a claim must be considered a verifiable claim (Article 26 NFW in conjunction with Article 110 thereof) or an unverifiable claim (Article 25(2) NFW); it appears that the question whether both claims can be brought simultaneously and whether one claim does not appear to exclude the other, taking into account the specific legal consequences of each of those claims (inter alia, in terms of the possibilities of calling for a bank guarantee deferred after the bankruptcy), may be determined in accordance with the rules specific to Netherlands bankruptcy law?

And further

(b) Can the provisions of Article 25(2) [NFW] be regarded as compatible with Article 3(1) of the Insolvency Regulation, in so far as that legislative provision would allow such a claim (Article 25(2) NFW) to be brought before the court of another Member State instead of before the insolvency court of the Member State in which the bankruptcy was declared?

The case has been allocated to a chamber of five judges, with F. Biltgen as reporting judge. It will be accompanied by an opinion by AG L. Medina.

The readers of the blog are aware of the European Commission proposal for a Regulation on the digitalisation of judicial cooperation and access to justice in cross-border civil, commercial and criminal matters and, and the associated proposal for a Directive amending several existing directives with a view to improving digitalisation and ensuring secure, reliable and time-efficient communication between courts and competent authorities.

Presented in December 2021, the two proposals aim to ensure access to justice in the EU including in the events of force majeure, such as pandemics, and adapt judicial cooperation between Member States for such situations.

On 28 June 2023, Parliament and Council negotiators reached an agreement on the use of digital technology in the judicial cooperation among Member States. Negotiators of the Legal Affairs Committee (JURI) and the Committee on Civil Liberties, Justice and Home Affairs (LIBE) agreed with Council negotiators on its future shape. The agreement, once formally approved by the Council, will be confirmed by a vote in the European Parliament.

The Parliament press note, which provides few details, highlights two aspects: one relating to electronic documents and videoconferencing, the other regarding inclusive digitalisation.

In relation to electronic documents and videoconferencing, the proposed legislation enables the use of digital technology for exchange of information, documents, payments of fees and videoconferencing. Communication between citizens, companies and national authorities would be ensured by an IT system, created and maintained by the European Commission and financed through the Digital Europe Programme with an access point in each Member State. The European e-Justice portal will provide information to individuals and companies on their rights and the European electronic access point will enable their direct communication with authorities.

Inclusive digitalisation refers to efforts to ensure that digitalisation does not lead to exclusion and is implemented in a way to ensure right to a fair trial for everyone. Equivalent access for people with disabilities is also stressed.

The Council press note specifies that the new rules, once adopted, will improve cross-border judicial procedures by:
-allowing parties and other relevant persons in civil, commercial and criminal hearings to participate by means of videoconferencing or other distance communication technology;
-establishing a European electronic access point through which natural and legal persons can file claims, send and receive relevant information, and communicate with the competent authorities;
-accepting electronic communication and documents from natural and legal persons;
-recognising documents with electronic signatures or seals;
-promoting the payment of fees through electronic means.

Negotiators further agreed on the need for additional training for justice professionals when it comes to the use of digital tools such as videoconferencing and the IT system and encouraged Member States to share their best practices on the use of digital tools.