EAPIL blog

On 8 February 2024, the CJEU ruled in Inkreal s.r.o. v. Dúha reality s.r.o. (Case C‑566/22) that Article 25 of the Brussels I bis Regulation applies to clauses stipulated in domestic contracts if such clauses provide for the jurisdiction of the court of another Member State.

Most early commentators have welcomed this judgment, including Geert van Calster, Pedro de Miguel Asensio and Matthias Weller.

The Advocate General, however, had opined differently. Should Inkreal be praised for promoting party autonomy? Should it be criticised, instead, for extending the reach of EU law beyond its competence?

In the coming days, the EAPIL Blog will host an online symposium on Inkreal. Readers interested in participating should contact the editors of the blog (blog@eapil.org), or directly comment on the posts in the symposium.

The question which law applies to the blockchain and assets recorded thereon, such as cryptocurrencies, stablecoins or other token, is one of the most hotly debated issues in the conflict of laws (see e.g. the recent book ‘Blockchain and Private International Law‘).

A conference on this topic will take place on 11 and 12 April 2024 in Vienna and remotely. It is organised by the University of Vienna, in cooperation with the Interdisciplinary Association of Comparative and Private International Law (IACPIL) and the European Banking Institute (EBI).

The conference will bring together academics, technology experts, and lawyers, from various EU member states, the UK, Switzerland, and Japan. Two of the international organisations active in this field – the HCCH and UNIDROIT – will also be represented.

Topics include the law governing crypto-custody, secured transactions in digital assets, and the law applicable to Decentralized Finance (DeFi). Fundamental issues such as the need for a ‘blockchain revolution’ in Private International Law or the role of consumer law will also be discussed.

The full programme can be downloaded here. Participation is free of charge. Please register for either physical attendance or online participation by 6 April 2024 at service.rechtsvergleichung@univie.ac.at.

This post was written by Prof. Dr. Bea Verschraegen, Verena Wodniansky-Wildenfeld and Laurenz Faber.

On 28 November 2023, the Interdisciplinary Association of Comparative and Private International Law (IACPIL) held a conference on the legal protection of vulnerable adults in Central and Eastern Europe.

Against the backdrop of demographic and scientific developments impacting this field of the law, the event was attended with great interest by internationally renowned academics and practitioners.

The conference, held in the historic premises of the University of Vienna, commenced with a welcome address by Professor Matthias Lehmann (University of Vienna, Raboud Universiteit Nijmegen). Professor Bea Verschraegen (University of Vienna) then led through the first half of the event, which focused on a comparative analysis of vulnerable adults’ protection in Central and Eastern Europe.

Professor Masha Antokolskaia (Vrije Universiteit Amsterdam) presented first results of a comparative examination by FL-EUR (Family Law in Europe: Academic Network), a research platform consisting of experts from 31 jurisdictions. Professor Antokolskaia explained that FL-EUR conducted a detailed assessment of the protection of vulnerable adults in European countries with the aim of promoting cooperation “in books and in action”. Pointing to the adoption of the UN Convention on the Rights of Persons with Disabilities (UN CRPD), she outlined the need for substantial reform in the overwhelming majority of European countries. Professor Antokolskaia explained that the status of these reforms was assessed based on extensive country reports received from 31 jurisdictions. Providing an insight into the work of FL-EUR, she highlighted the methodological difficulties that arise in the comparative examination of vulnerable adult protection, inter alia due to the lack of a historic ius commune in this area.
While the project is still in progress, FL-EUR was already able to identify trends among the European countries: while some have undergone major reforms either before or after the adoption of the UN CRPD, many have only passed “patchwork” reforms or no sufficient reforms at all. Professor Antokolskaia underlined these differences by examining specific examples of vulnerable adult protection, such as the transition towards “support before representation”. In the bigger picture, the presentation observes that many Eastern European countries have not yet undergone the necessary “paradigm shift” but a minority are already far along or have completed this process.

After a spirited discussion on the implications of the comparative analysis presented by Professor Antokolskaia, the second part of the conference, led through by Professor Matthias Lehmann, was dedicated to cross-border issues.

Professor Bea Verschraegen examined current conflict of laws issues relating to the protection of vulnerable adults. She drew attention to the Hague Convention on the Protection of Adults, which focuses on adults who, because of an impairment or insufficiency of their personal faculties, are unable to protect their interests in cross-border situations.

Professor Verschraegen highlighted the increasing number of adults in need of protection and the variety of protective measures prescribed by the national law of their place of residence. These measures range from court-ordered protection to the assistance of pre-arranged third parties.
She expressed concern about the limited regional scope of the Hague Convention, as only 11 EU Member States are parties, and its complexity, which poses challenges to its effective application. In practice, it is not entirely clear what kind of ex ante and ex post measures are covered by the Convention. The same may apply to private mandates.

She pointed out that there is no EU instrument governing judicial cooperation in the field of adult protection. The proposed regulation aims to change this. In this context, Professor Verschraegen argued for a broader perspective beyond the dominant narrative of an ageing society, advocating the inclusion of all adults from the age of eighteen. Citing alarming statistics predicting a significant increase in new cancer cases by 2040, she stressed the urgency of implementing comprehensive policies that address both age-related diseases such as dementia and the unforeseen challenges faced by young adults.

The ongoing debate about the possible reorientation of the Convention and the proposal in line with the UN Convention on Disability or its effectiveness in its own right was also the focus of the presentation. While acknowledging the complexities, Professor Verschraegen suggested that a robust articulation of private international law rules and human rights instruments might suffice, underlining the need for careful consideration.

The discussion went on to explore issues arising from the Convention on the Rights of Persons with Disabilities, including private autonomy, self-determination and dignity. Professor Verschraegen questioned the fact that both Conventions monitor fundamental rights from a bird’s eye view, without a feasibility test. In societies that define individuals as worthy members of society if they work and earn enough money, individuals tend to define themselves in this way. Employment is therefore the test of worth in society and for individuals. This may be one of the reasons why the ageing population and the vulnerable and disabled are seen as a burden. However, younger adults face enormous problems, they too may be unable to work, impaired and vulnerable.

She highlighted that private autonomy, self-determination, and dignity are driving principles used in many countries, more specifically in the context of living and dying wills. However, their qualification shows a wide variety. As the EU Proposal aims at guaranteeing EU-wide recognition, clarification of what exactly ought or ought not to be recognized would be most useful.

Professor Verschraegen’s presentation was followed by a lively discourse on the complexities of the protection of vulnerable adults in cross-border settings. The event was concluded with closing remarks by Professor Florian Heindler (Sigmund Freud University, Vienna).

Over the course of the conference, the consensus emerged that the legal protection of vulnerable adults, specifically in Central and Eastern Europe, remains a highly topical issue with meaningful developments to be expected both on a substantive and a conflict-of-laws level. In this context, new questions raised during the discussions may have already foreshadowed future publications and conferences.

Justin Borg-Barthet, Katarina Trimmings, Burcu Yüksel Ripley and Patricia Živković, from the University of Aberdeen, have accepted the invitation of the editors of the blog to present their co-edited book, titled ‘From Theory to Practice in Private International Law: Gedächtnisschrift for Professor Jonathan Fitchen’, published by Bloomsbury Publishing. The text below is cross-posted on Conflictoflaws.net.

When our colleague and friend Prof Jonathan Fitchen passed away on 22 January 2021, we were comforted in our grief by an outpouring of messages of condolence from private international lawyers around the world. We had known, of course, of the impact and importance of Jonathan’s work to the world of private international law scholarship. His monograph on authentic instruments, for example, will remain an essential reference on that subject for many years to come. Jonathan’s impact on the world of private international law scholars was, to a degree, less obvious. He was an unassuming man. He did not seek to command the attention of every gathering he attended, and he might have been surprised to realise how often he did just that. He was tremendously well-liked and well-respected for his wit, his self-deprecating sense of humour, and his empathy.

This book seeks to capture in it some of the immense esteem in which Jonathan was held. That much will of course be of interest to the many scholars and practitioners who had the privilege of Jonathan’s acquaintance. The intellectual generosity of the contributing authors will ensure, however, that this volume will also be of great value to those who encounter Jonathan for the first time in these pages. Taken together, the chapters in this book address the major conceptual and practical challenges of our time: from stubborn definitional dilemmas, such as the deployment of key terms in international child abduction cases, to contemporary concerns about disruptive technologies like cryptocurrencies, to core conceptual challenges regarding the unintended consequences of our discipline’s professed neutrality.

The collection is divided into three main parts. Following a preface in which Prof Xandra Kramer paints a vivid picture of Jonathan’s humanity, humour and wit, and an introduction by ourselves as the editors, Part I includes four chapters which address conceptual matters relating to the nature and scope of private international law. Part II is made up of seven chapters concerning civil and commercial matters in private international law. Part III includes two chapters on family matters in private international law.

The first substantive chapter is a tour de force by Alex Mills in which he explores the unsettled relationship between private international law and legal pluralism. Mills observes that private international law is both a product and producer of pluralism, in addition to being internally pluralist in its self-conception. Mills’ analysis will be of great interest to readers seeking to discern private international law’s place in the taxonomy of the study of law, whether they are observing that taxonomy from the perspective of a comparatist, a conflicts scholar, or a public international lawyer.

The following chapter also engages with the problem of pluralism in private international law. Thalia Kruger focuses specifically on mediated settlements with a view to illuminating their meaning for the purposes of transnational law. Kruger does a wonderful job of building on Jonathan Fitchen’s work by providing technical and normative analysis of the public faith to be accorded to private agreements. Ultimately, she welcomes a movement towards the upholding of settlement agreements but cautions against potential abuse of vulnerable parties.

The problem of vulnerability is the central focus of the next chapter, by Lorna Gillies. Gillies provides robust, systematic analysis of the theory and practice of our discipline’s treatment of vulnerable parties. This is, of course, one of the central problems in a discipline whose professed neutrality is capable of furthering and entrenching inequalities. Gillies argues persuasively that the application of Fredman’s four pillars of asymmetrical substantive equality would equip private international law better to address inherent risks of vulnerability.

Asymmetries of private power remain the focus of discussion in the following chapter on the under-explored relationship between our discipline and feminist scholarship, authored by two of the editors. Justin Borg-Barthet and Katarina Trimmings set out to contribute to a nascent discussion about sex-based vulnerability and how this is (un)seen by much of the literature and law. It is argued, ultimately, that private international law requires more sustained engagement with feminist scholarship if it is to avoid acting as an instrument for the entrenchment of substantive inequalities.

Unsurprisingly, given the focus of much of Jonathan Fitchen’s written work, Part II on civil and commercial matters makes up around half of the volume. It begins with Andrew Dickinson’s meticulous analysis of the meaning of “damage” in EU private international law. Dickinson notes that, despite the central importance of the term to the operation of much of EU private international law, there is little clarity as to its meaning. His chapter sets out to remedy this shortcoming through the articulation of a hitherto undeveloped taxonomy of “damage” which promises to become an essential tool in the arsenal of students, teachers, practitioners, and adjudicators of private international law.

Another editor, Burcu Yüksel Ripley, authored the next chapter, which addresses cryptocurrencies. Our discipline’s continued preoccupation with definitional clarity remains very much in evidence in this discussion of challenges posed by disruptive technologies. Yüksel Ripley notes that attempts to characterise cryptocurrencies as a thing/property are unsatisfactory in principle, and that they therefore lead to conceptually unsound outcomes. She proposes instead that analogies with electronic fund transfers provide more promise for the determination of the applicable law.

In the next chapter, by Laura Carballo Piñeiro, the volume returns to another major theme of Jonathan Fitchen’s scholarly output, namely the effectiveness of collective redress mechanisms. Carballo Piñeiro observes that access to justice remains restricted in most jurisdictions, and that a common EU approach remains lacking. Although the courts have provided some routes to collective redress, Carballo Piñeiro argues that a robust legislative response is paramount if corporate accountability for environmental harm is to be realised in Europe.

Private international law’s ability to engage with concerns regarding environmental sustainability remains a key focus of analysis in Carmen Otero García-Castrillón’s chapter concerning the discipline’s place in international trade agreements. The chapter advocates the bridging of an artificial systemic separation between the private and the public in the international system. It is argued that the extent of private power in the international system merits attention in trade agreements if sustainable development goals are to be attained.

Giesela Rühl also addresses concerns regarding private international law’s ability to be deployed in matters which are traditionally reserved to public and public international law. Her chapter considers innovations introduced through the German Supply Chain Due Diligence Act (Lieferkettensorg-faltspflichtengesetz – LkSG) which establishes mandatory human rights due diligence obligations in German companies’ international supply chains. Rühl laments the lack of attention paid to private international law in German law. She makes an especially compelling case for any future EU interventions to recognise the need to engage with private international law if legislation is to be effective.

The uneasy public-private divide in transnational law remains in evidence in Patricia Živković’s chapter concerning what she describes as “creeping substantive review” in international arbitration. Živković decries a lack of conceptual clarity in courts’ treatment of arbitral determinations, particularly insofar as public policy is deployed as an instrument of substantive review of private adjudication. She argues that international legislative intervention is needed if prevailing inconsistencies of treatment are to be resolved.

Fittingly, Part II is rounded off with a discussion of that part of private international law to which Jonathan Fitchen made his most enduring scholarly contribution, namely authentic instruments. Zheng Tang and Xu Huang discuss authentic instruments in Chinese private international law. Like Jonathan’s work, this chapter provides readers of English language scholarship with a rare example of in-depth analysis of concepts which are unfamiliar in the Anglo-American tradition. The chapter’s compelling arguments for legal refinements will also be of use, however, to readers who wish to identify possible improvements to Chinese law.

The final part of the book turns to family law, an area in which Jonathan provided ample instruction to students, but which was not especially in evidence in his written work. In keeping with the previous parts of the book, our discipline’s need for definitional clarity and consistency are very much apparent in the chapters in this part, as is the somewhat existential concern regarding the proper delineation of the public and the private. As the authors in this part observe, each of these matters has far-reaching effects on the apportioning of rights and obligations in circumstances which are deeply meaningful to the lives of litigants.

Aude Fiorini’s chapter considers flawed reasoning in the US Court of Appeals judgment in Pope v Lunday. Fiorini illustrates the substantive flaws in the Court’s treatment of the habitual residence of neonates, but also highlights a broader concern regarding the potential for unconscious bias in judicial decision-making. Through the judgment in Pope, Fiorini raises alarms regarding inconsistent judicial treatment of similar situations which turn on appreciation of circumstances establishing the habitual residence of a child. She argues, particularly compellingly in our view, that the interests of justice require greater conceptual clarity and consistency.

In the final chapter, by Anatol Dutta, the interactions of the public and the private return to the fore. Taking his cue from Jonathan Fitchen’s work on authentic instruments, Dutta explores the concept of private divorce under the Brussels IIter Regulation. Concerns regarding decisional autonomy are very much in evidence in this chapter, which considers the meaning of private divorces and the extent to which they enjoy recognition in the EU private international law system. Ultimately, Dutta welcomes measures which restrict private divorce tourism in the EU.

This book was born of a collective wish to remember and honour a much-loved scholar of private international law. In that, we trust that it has already fulfilled its purpose. However, each chapter individually and the book taken as a whole also capture the state of the art of private international law. Ours remains a discipline in search of systemic normative clarity and in episodic need of technical refinement. This collection provides tantalising glimpses of possible answers to both the essential question of the treatment of the private in the attainment of public goods, and in relation to longstanding vexing technical questions.

To preserve and further Jonathan Fitchen’s legacy as an educator of private international lawyers, editorial royalties from the sale of the book will be donated to the Jonathan Fitchen Fund of the Development Trust at the University of Aberdeen. Direct individual donations to the fund are also welcome and appreciated.

This post was written by Silvia Marino, Professor of EU law at the University of Insubria in Como, and Director of the EAPIL Winter School.

The first edition of the EAPIL Winter School in European Private International Law took place at the Department of Law, Economics and Cultures of the University of Insubria in Como from 12 to 16 February 2024.

The five-day course was organized by the University of Insubria in partnership with the University of Murcia, the Jagiellonian University in Kraków and the J.J. Strossmayer University of Osijek. Financial support was provided by the International Insubria Summer/Winter Schools programme and through a Jean Monnet Module named “European Private International Law: Recent Trends and Challenges” (EuPILART).

The School’s programme, set out by a dedicated EAPIL Working Group consisting of Javier Carrascosa González, Silvia Marino and Anna Wysocka-Bar, addressed a broad range of concerning Personal Status and Family Relationships.

Thirty people, coming from Belgium, Germany, Italy, Panama, Poland, Portugal, Romania, Spain, Turkey, the United Kingdom and Ukraine, attended the School. Most were either PhD students with an interest in European Private International Law or young practicing lawyers.

Camelia Toader, former Judge at the Court of Justice of the European Union, and Ioan-Luca Vlad, attorney at law, kicked off the Winter School with an introductory lecture on cross-borders families and the free movement of persons within the EU. They discussed the historical development of the law in this area, the relevance of judicial cooperation to the enjoyment of fundamental rights and the freedom of movement enshrined in EU law. They stressed the need for a uniform and coherent set of rules of private international law governing the broad range of issues that cross-border families experience in practice.

Pietro Franzina, Professor of International Law at the Catholic University of Sacred Hearth in Milan, provided an overview of the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union, delving into their mutual relationships and their impact on private international law. He noted that human rights concern may require, depending on the circumstances, that private international law rules.

In the afternoon, Satu Heikkilä, lawyer and non-judicial Rapporteur at the European Court of Human Rights, went through the case law of the Strasbourg Court relating to Article 8 of the European Convention on Human Rights, which enshrines the right for respect of private and family life.

Special attention was devoted in her lecture to the concern for continuity of personal and family status across national borders and the rulings of the Court that address that concern.

Day two started with a discussion with participants aimed to identify the main problems faced by cross-borders families in Europe, moderated by Silvia Marino. The attendees exchanged views on what they perceived to be the most relevant challenges. The discussion put the bases for the closing workshop scheduled for day five, aimed to assess whether the current rules of private international law in force in the EU properly address such challenges.

Michael Wilderspin, former Legal Advisor of the European Commission, discussed the concept of mutual recognition, as understood in EU law for the purposes of free movement and in the context of private international law. The lecture presented the relevant case law of the Court of Justice of the European Union.

In the afternoon, Anna Wysocka-Bar, Senior Lecturer at the Jagiellonian University, offered a comparative overview of some European Countries legislations on sex reassignment and went through the pertinent case law of the European Court of Human Rights and the Court of Justice of the European Union.

Katja Karjalainen, Senior Lecturer at the University of Eastern Finland, examined the issues that surround the protection of vulnerable adults in cross-border situations, stressing the importance of cooperation among States in this area, notably in light of the 2000 Hague Convention on the Protection of Adults.

On day three, Laura Carpaneto, Associate Professor at the University of Genova, provided an overview of the provisions on parental responsibility in the Brussels II ter Regulation. She also introduced the issue of surrogacy, especially in light of the ongoing Parentage Project at the Hague Conference of Private International Law.

Ester di Napoli, Research Fellow at the University of Ferrara,  discussed a number of issues relating to adoption, covering both inter-country adoption and the recognition of foreign adoption decrees. Starting from a human rights perspective, she focused, in particular, on the 1993 Hague Convention and the issues raised by its practical operation.

Cristina González Beilfuss, Full Professor at the University of Barcelona, addressed the sensitive issue of surrogacy. She shared some inspiring views on parenthood grounded on non-genetic ties, and outlined the policies that are likely to shape any harmonisation effort in this area through EU  legislation.

Finally, Nadia Rusinova, attorney at law in the Netherlands and in Bulgaria, presented the topic of child abduction. She discussed a practical case showing the interplay of the 1980 Hague Child Abduction Convention, the 1996 Hague Child Protection Conventions and the Brussels II ter Regulation.

Day four started with a lecture by Etienne Pataut, Full Professor at the Paris 1 – Sorbonne University, on Acceptance and recognition of personal status. He discussed the relationship between the European Union and the International Commission on Civil Status, stressing the important role played by the latter and the potential of continuing cooperation between the two.

Ian Summer, Judge and Full Professor at Tilburg University, addressed the cross-border recognition of marriages and registered partnerships. He provided a comparative overview before encouraging participants to discuss in groups about the issue of recognition in cases involving unknown legal institutions.

Máire Ní Shúilleabháin, Associate Professor at the University College of Dublin, focused on cross-border separations and divorce, in light of the 1970 Hague Convention on the Recognition of Divorces and Legal Separations, the  Brussels II ter Regulation and Rome III Regulation, in light domestic and European case law.

The closing lecture of the day,  by Javier Carrascosa González, Full Professor at the University of Murcia, dealt with remedies against infringements to rights of personality. The focus was on the interaction of family law rules with tort law, and the potential of the latter for the protection of indivudals from the violation of rights related to private life.

Day five started with three parallel sessions. The first one, on The recognition of unknown family status: the pillar cases: Coman, Pancharevo and beyond, was chaired by Anna Wysocka-Bar; the second one, on The right to name according to ECtHR and CJEU case-law, was guided  by Silvia Marino; Javier Carrascosa González led the discussion on The notion of habitual residence: comparing HCCH and EU systems.

Participants were invited to choose among the three and take part in the discussion, based, among other things, on reading materials that had been shared before the start of the Winter School.

Raffaele Sabato, judge at European Court of Human Rights, held the final lecture. He illustrated the key principles arising from the case law of the European Court of Human Rights on the right to respect for private and family life, and discussed the need for private international law rules that reflect the evolving notion of family and the emerging challenges faced by people on the move.

— The topic of the next edition of the EAPIL Winter School will be announced in the coming weeks. Stay tuned!

By a decision of 21 December 2023, the Danish Supreme Court held that a Swedish default judgment concerning a loan agreement could not be enforced in Denmark on the ground that the service procedure that preceded the judgment was inadequate in an international situation.

In 2014, a Swedish bank filed a plaint in a Swedish court to sue a debtor for not fulfilling a loan agreement. As the defendant did not appear after the court had fulfilled the Swedish standards for service of documents, a default judgment was rendered. In 2022, the bank asked the Swedish court for a certificate under Article 53 of the Brussels I bis Regulation. With that certificate, the bank sought enforcement of the Swedish default judgment in a Danish court. Both the Danish court of first instance and the Danish court of appeal held that the Swedish judgment was enforceable in Denmark under the Brussels I bis Regulation. However, the Danish Supreme Court came to a different conclusion.

First, the Danish Supreme Court found that the lower instances’ application of the Brussels I bis Regulation was wrong as the Swedish proceedings had been initiated before 15 January 2015. Under Article 66 para. 1 of the Brussels I bis Regulation, it is the older Brussels I Regulation that applies for matters initiated before that date. Here, it can be noted that both regulations are applicable in Denmark despite Denmark’s special status in EU’s civil law cooperation due to a parallel agreement between the EU and Denmark.

The exceptions to the rule on presumption for enforcement of judgments from other member states in Article 45 follow from Articles 4 and 35 in the Brussels I Regulation. Article 34 para. states that it is a ground for refusal that a default judgment has been rendered without the defendant having been duly served. With reference to the CJEU’s judgments C-327/10, Hypoteční banka, EU:C:2011:745, and C-292/10, Cornelius de Visser, EU:C:2012:142, the Danish Supreme Court held that the Brussels I Regulation requires a court to investigate the domicile of the defendant to fulfil its service obligations. Though the domicile of the defendant was unknown to the Swedish court, it was clear to that court that the defendant was a Danish citizen. Nonetheless, the Swedish court made no investigations into whether the defendant was domiciled there. Consequently, the Danish Supreme Court held that the Swedish default judgment may not be enforced in Denmark.

The Danish Supreme Court decision is a good example of the practical application of the “principles of diligence and good faith” that the CJEU set as a standard for the investigations that a court must perform to trace a defendant. To investigate whether a defendant has regained domicile in a country where he or she is a citizen or to which he or she has a strong connection is probably an absolute minimum requirement.

Even if the presumption for recognition and enforcement has been changed between the old Brussels I Regulation and the Brussels I bis Regulation, it is noteworthy that the same ground for recognition exists also in Article 45 (1)(b) of the Brussels I bis Regulation.

A on online conference on the international recovery of maintenance by public bodies is set to take place on 15 May 2024, between 2 and 5 pm CEST, hosted by the German Institute for Youth Services and Family Law (DIJuF).

The event concept is as follows.

The Child Support forum is pleased to invite every interested stakeholder to an open conference deepening the topic of cross-border maintenance recovery by public bodies.

Due to the increase in international mobility of families, the need for immediate child support in case of default of maintenance payment is growing. This support often consists of advance maintenance payments granted by public authorities, which then must be reimbursed by the debtor. The enormous sums of money that states spend on these benefits make the cross-border enforcement of maintenance by public bodies an important political issue. 

The first three meetings of the Child Support Forum showed that there is a great need for exchange between the public bodies. On the one hand, they face different hurdles in enforcing their claims due to the diversity of the maintenance support systems. On the other hand, common problems were also identified. The results of this work will be presented.

In a future perspective, it is clear that the tension between the need for more support for children, for an effective recovery of maintenance against debtors, and debtor protection is growing. It will be interesting to discuss to what extent the States make the grant of benefits dependent on the legal possibilities for reimbursement. For example, in the light of the text of the 2007 Convention and of the EU-Maintenance Regulation, public bodies currently have less support from Central Authorities when they seek reimbursement of maintenance support than children do when they claim child maintenance. Thus, the question arises as to whether debtor protection still justifies this legal situation and how maintenance debtors can be protected from double claims when it is no longer the child alone but a public body that seeks the recovery of maintenance payments.

The conference will mark the end of a series of three seminars on the topic of maintenance recovery by public bodies and is intended to provide insight into its socio-political and legal aspects as well as a unique opportunity for exchange with experts from different fields (academics, Central Authorities, public bodies from different countries). 

The conference program can be found here. Attendance is free, but prior registration (here) is required.

The first issue of the Journal du droit international for 2024 has been released. It contains two articles and several case notes relating to private international law issues.

In the first article, Héloïse Meur (Paris VIII University) analyses new French provisions on PIL aspects of unfair commercial practices (Entre la lettre et l’esprit de la loi EGALIM 3, quel avenir pour le droit international privé du « petit » droit de la concurrence ?).

The English abstract reads:

For the first time, the French Lawmaker enacted provisions related to private international law aspects of unfair commercial practices law. Article 1 of the law of 30 March 2023 to strengthen the balance in commercial relations between suppliers and distributors, known as the “EGALIM 3” or “Descrozaille” law, states that the rules related to restrictive practices and price transparency apply “to any agreement between a supplier and a buyer relating to products or services marketed on French territory. These provisions are a matter of public policy. Any dispute relating to their application falls within the exclusive jurisdiction of the French courts, subject to compliance with European Union law and international treaties ratified or approved by France, and without prejudice to recourse to arbitration”. This provision would make it possible to fight the circumvention strategies of large retailers, which consist in setting up purchasing entities abroad and concluding choice of law and choice of forum clauses to avoid the application of the provisions of the French Commercial Code. However, by refusing to refer to traditional concepts of private international law such as the overriding method of mandatory provisions (“lois de police”), the French lawmaker leaves open the question of the impact of the amendments on positive private international law and further adds to the important legal uncertainty in this field of law. This paper proposes to analyse the causes of these omissions to hope to guarantee more legal certainty for international contracts in general and distribution contracts in particular, contracts initially targeted by unfair trading practices law.

In the second article, Alejandra Blanquet (Paris-Est Créteil University) examines the difficult coordination between kafalaand adoption in cross-border context following a Franco-Spanish comparative perspective (L’articulation entre kafala et adoption : le cas espagnol et ses enseignements pour le droit international privé français).

The English abstract reads:

The adoption of children with ‘personal prohibitive status’ is forbidden by way of law in Spain and France. It results in any gateway between kafala, and adoption being closed. However, the firmness of this statement must be qualified. Indeed, by retaining a soften approach of it some Spanish Audiencias provinciales have recently allowed certain kafalas to become adoptions. This new approach is based on a selective gateway opened to judicial kafalasconstituted in respect of makfouls abandonned in their home country. This kind of kafalas may therefore, in some cases, become adoptions. This mechanism does not mean that the statutory prohibition is repealed but confirms the extent to which its force may be subject to modulations in order to avoid the excessiveness in which its strict implementation may result in some cases. The selective gateway requires the best interest of the child to be assessed in concreto and invites the judge to analyse, and if necessary to relativise the effects of an international “flawed” adoption. Thus, the Spanish example shows that the discussion on the link between kafala and adoption is far from being over and offers new perspectives for analysing the question in both Spanish and French Law.

The table of contents of the issue can be accessed here.

The Supreme Court of Greece (Areios Pagos) ruled on 22 March 2023 on the validity of a choice of forum agreement concluded between a bank and its clients (Areios Pagos, ruling No. 441/2023).

The key issue in the dispute was whether the bank’s clients ought to be characterised as ‘consumers’ for the purposes of the Brussels I bis Regulation.

Four natural persons, all domiciled in Thessaloniki, brought proceedings in Thessaloniki against a Cypriot bank, seeking compensation for damages suffered as a result of an investment made through the bank. According to the bank, it was a rather secure investment proposal.  The claimant’s expression of interest had been filed with the Thessaloniki branch of the Cypriot bank.

The bank challenged the jurisdiction of the seised court. It relied for this on a clause conferring jurisdiction on Cypriot courts, featured in documents which the bank and its clients had exchanged in preparation of the investment.

Strangely enough, the claimants did not submit a reply to the challenge, and simply failed to produce any supplementary pleadings. As a result, the court of first instance of Thessaloniki upheld the challenge and declined jurisdiction.

The four clients lodged an appeal against the judgement with the Court of Appeal of Thessaloniki. They claimed that they concluded the contracts as consumers, and that the terms and conditions relied upon by the bank, including the choice-of-court clause, were abusive.

The appeal was dismissed on the ground that, at first instance, the clients had failed to take a stance on the bank’s plea of lack of jurisdiction, and had failed to challenge the validity of the bank’s terms and conditions based either on the Greek legislation on consumer protection, or on Article 15 of the Brussels I bis Regulation. The Court of Appeal stressed that, according to Greek procedural law, a failure to raise the above issues at first instance entails that a later challenge is foreclosed.

The Supreme Court reversed the judgement. It began by observing that the clients ought in fact to be characterized as consumers. It then held that the failure to examine ex officio the abusive nature of the choice of forum clause was not a sufficient ground to quash the judgment. In fact, the Supreme Court agreed with the Court of Appeal that the alleged unfairness of a bank’s terms and conditions is not an issue that a first instance court is required, or permitted, to raise by its own motion. The clients only raised the point in the proceedings before the Court of Appeal, which they are barred to do pursuant to Article 527 of the Code of Civil Procedure.

That said, the Areios Pagos held that the Court of Appeal had erred in relying on the (uncontested) plea made by the bank that Greek courts lacked jurisdiction, instead of assessing whether an agreement conferring jurisdiction on Cypriot courts had in fact been entered int between the parties. The Supreme Court observed that the lower courts contented themselves to infer the existence of such an agreement from the fact that the clients failed to reply to the bank’s assertion (an implicit confession within the meaning of Article 261(2) of the Greek Code of Civil Procedure, even though no express reference to that provision had been made by the bank).

Incidentally, the Supreme Court denied the four clients’ request to submit a reference to the Court of Justice of the European Union for a preliminary ruling. It did so on the grounds that the unfairness of a contractual term cab only be assessed against the circumstances existing at the time of the conclusion of the contract and in light of the other clauses of the contract. It  is for the consumer to provide evidence of such circumstances, and he must do so in the manner prescribed by the applicable procedural rules.

The Supreme Court’s assertion whereby the unfairness of a term is not something a court may assess of its own motion, where the consumer failed to raise the issue of unfairness and to provide evidence of the circumstance in which the contract was concluded, demonstrates the need for enhanced dissemination of the case law of the Court of Justice among domestic judicial authorities.

In fact, the Areios Pagos did not mention, let alone discuss, a single ruling of the Court of Justice relating to the seised court’s power to intervene by its own motion for the sake of protecting the rights of consumers. The Court of Justice has already addressed issues in this connection and is witnessing a number of new preliminary references concerning the topic. Especially in regards to ex officio control on second instance, one could refer to the the cases Eva Martín Martín v EDP Editores SL , Erika Jőrös v Aegon Magyarország Hitel Zrt., and Dirk Frederik Asbeek Brusse and Katarina de Man Garabito v Jahani BV.

Finally, some thoughts on the claimants’ alleged tacit approval of the choice of forum clause relied upon by the bank. How could someone assert that a claimant who chose to file an action before a certain court, and has already pleaded on the merits of the case, is later tacitly accepting the lack of that same court’s jurisdiction? One might speculate that the lawyers for the claimants simply forgot to file their brief to contest the plea of the bank: a failure that eventually decided the fate of the claim. This is one reason why courts should be permitted some activism, overcoming the inflexible procedural autonomy that Member States enjoy.

Still, it takes two to tango. By dismissing the request of the claimants for a preliminary reference to the Court of Justice, the Greek Supreme Court shows its reluctance to cooperate and contribute to the consolidation of European Procedural Law.

The seventh edition of the French leading treatise on the European law of jurisdiction and foreign judgments in civil and commercial matters (Compétence et exécution des jugements en Europe – Règlements 44/2001 et 1215/2012 – Conventions de Bruxelles (1968) et de Lugano (1988 et 2007)) has just been published.

It is authored by Emeritus Prof. Hélène Gaudemet-Tallon and Prof. Marie-Elodie Ancel (both Paris II University).

The blurb reads:

Les textes étudiés dans cet ouvrage – Convention de Bruxelles du 27 septembre 1968, règlements 44/2001 et 1215/2012 – portent sur la compétence directe ainsi que sur la reconnaissance et l’exécution des décisions ; ils doivent assurer la réalisation d’un véritable « espace judiciaire européen » en matière civile et commerciale. Le règlement 1215/2012 (dit Bruxelles I bis) a apporté des modifications substantielles au règlement 44/2001. L’application de ces textes est guidée par une riche jurisprudence de la Cour de justice de l’Union européenne.

Dans le cadre de l’AELE, les Conventions de Lugano de 1988, puis de 2007, ont adopté des systèmes « parallèles », d’abord à la Convention de Bruxelles de 1968 puis au règlement 44/2001. La Convention de 2007 est en vigueur entre tous les États de l’Union européenne, la Norvège, l’Islande et la Suisse.

Cette septième édition, tenant compte de l’évolution des textes et de la jurisprudence ainsi que de la sortie du Royaume-Uni de l’Union européenne, a pour ambition d’être utile non seulement aux universitaires (étudiants et enseignants) s’intéressant au droit international privé européen, mais aussi aux praticiens (magistrats, avocats, notaires) qui appliquent ces textes.

More details are available here.

Pursuant to Article 9 of the Rome II Regulation on the law applicable to non-contractual obligations, the law applicable to an industrial action is the law of the country where the action has been taken.

In a judgment of 5 February 2024, the Norwegian Labour Court relied on the  conflict-of-law rule enshrined in the above provision in a case concerning an industrial action taken by employees conducting work for the Norwegian oil drilling industry on the Norwegian continental shelf on international waters in the North Sea. Relying on Norwegian law instead of UK law, the Norwegian Labour Court held that the industrial action had been lawful.

At the very centre of the North Sea, close to where the continental shelves of the UK, Norway, Denmark, Germany and the Netherlands almost intersect, a collective labour dispute arose regarding the employment conditions for oil workers. The concerned oil workers, all UK citizens living in the UK, were employed by a UK company to conduct well stimulation for an oil drilling platform located at the Ekofisk field on the Norwegian continental shelf from a Norwegian-registered ship operating out of Esbjerg, Denmark. When collective agreement negotiations between the UK company and the Norwegian trade union – in which the employees are members – broke down in 2023, the trade union called a strike.

To support the Norwegian trade union’s claim for a collective agreement, the Norwegian Confederation of Trade Unions (Landsorganisasjonen i Norge) called a sympathy action. In collective labour law, sympathy actions are taken to support fellow organizations, but may also be directed at a collective agreement party. It must here be noted that taking industrial actions toward a collective agreement party is an exception to the normally very strong peace obligation that follows a collective agreement. In the case at hand, the dispute was regarding whether sympathy actions were allowed under the collective agreement. Under the collective agreement, a sympathy action is allowed if it ‘supports a legal industrial action in Norway’. Hence, the task for the Norwegian Labour Court was to interpret whether the industrial action taken in the North Sea was to be considered a legal industrial action in Norway under the collective agreement.

To interpret if the industrial action took place in Norway, the Norwegian Labour Court first held that the localization in the sense of the collective agreement was dependent on the industrial action’s connections to Norway. Here, the Labour Court found that the connecting factors relating to the employment conditions should be given priority. Decisive connecting factors were noted to be both that work was conducted only on the Norwegian continental shelf and that the employees claimed a Norwegian collective agreement.

The next issue for the Labour Court was whether the industrial action was ‘lawful’ in Norway. Here, the private international choice of law rules played a crucial role for the court’s argumentation. In Norway, which is not an EU member state, the EU choice of law regulations are not applicable. However, Norway’s close cooperation with the EU justifies the strong presumption set out by the Norwegian Supreme Court stating that Norwegian choice of law rules shall be consistent with EU choice of law rules unless Norwegian rules clearly deviate from the EU choice of law rules. First, the Norwegian Labour Court noted that collective agreement parties enjoy party autonomy, both under uncodified Norwegian private international law and under the Rome I Regulation on the law applicable to contractual obligations. Consequently, it would have been possible for the collective agreement parties to choose the law that would govern the legality of industrial actions for which sympathy actions are allowed. However, the collective agreement clause’s expression ‘in Norway’, was – in the view of the parties – not a choice of law clause but a referral to Norwegian choice of law rules.

The implicit contractual reference to Norwegian choice of law rules caused the Labour Court to take a preliminary stance on the law applicable to the primary industrial action. This choice of law issue is uncodified in Norwegian private international law, which has historically relied on an individualizing method to point out the applicable law. However, as was mentioned above, modern Norwegian private international law is strongly influenced by EU private international law. Therefore, the Norwegian Labour Court also in this matter consulted the EU conflict-of-law rule for industrial actions in Article 9 of the Rome II Regulation to establish the law applicable to the industrial action.

Article 9 of the Rome II Regulation prescribes that the law applicable to an industrial action shall be the law of the country where the industrial action is taken (lex loci delicti). This is an exception to the general rule in Article 4 that points out the law in the country where the damages occurs as applicable (lex loci damni). According to Recital 27, the reason for the industrial action exception is to protect employees’ and employers’ rights. Noting this, the Labour Court dealt with the delicate issue of localizing the industrial action that was taken at international sea. Here, the Labour Court noted that the industrial action in question was a strike. Holding that a strike under Article 9 of the Rome II Regulation must be located to the place where the work would have been conducted, the Norwegian Labour Court concluded that Norwegian law was applicable.

As an obiter dictum, the court further stated that also if article 9 had not been applicable due to the fact that the industrial actions were taken at international sea, the alternative solutions would give the same conclusion. Under Article 4(3) of the Rome II Regulation, the law of a country to which the tort ‘is manifestly more closely connected’ shall be applied. Applying the escape rule to the facts of the case, the Labour Court held that the industrial action was manifestly more closely connected to Norway than to the UK. Lastly, the Labour Court held that it would make no difference for the conclusion if the connecting factors were weighed under Article 4(3) of the Rome I Regulation or under the Norwegian individualizing method. Norwegian law would apply in either case.

As the primary industrial action was lawful under Norwegian law, the sympathy action was allowed.

Article 9 of the Rome II Regulation has never been applied by the Court of Justice. National case law is also scarce. In legal literature, different interpretations of Article 9 have been suggested. The above factors have resulted in a situation of uncertainty regarding the this provision. For a party that intends to take industrial action in an international context, this unclarity is detrimental. If the applicable law is not foreseeable, it is hard to predict whether an industrial action would be lawful. Therefore, the Norwegian judgment is important, as it stresses the role of the law applicable to an industrial action for the regulation of collective agreements in a certain labour market.

As announced in a previous post, a seminar series on the recast of Brussels I bis Regulation, is taking place during the 2023-2024 academic year, both in Paris at the Cour de cassation and online (in French), under the scientific coordination of Marie-Elodie Ancel (University of Paris-Panthéon-Assas) and Pascal de Vareilles-Sommières (University of Paris 1 Panthéon-Sorbonne).

The third seminar will take place on 26 February 2024 from 16.00 to 18.00 (UTC+1).

It will be devoted to “emerging litigation” in civil and commercial matters, in the context of Brussels I bis Regulation recast. The main topics to be discussed deal with infringements of human rights and the environment as well as class actions.

The list of speakers includes Olivera Boskovic (Paris Cité University), Sabine Corneloup (University of Paris Panthéon Assas), Sandrine Clavel (Paris-Saclay University) and François Mailhé (Picardie-Jules Verne University).

The programme, as well as registration and access details can be found here.

The recording of the previous seminars are available online here and here.

The other seminars will take place from 16.00 to 18.00 (UTC+1) 18 March, 22 April, 30 May and 24 June 2024.

The seminar series is organised by the Research Centre for Private International Law and International Trade (CRDI, University of Paris Panthéon Assas) and the Sorbonne Department Study of International Private Relationships (SERPI, University of Paris 1 Panthéon-Sorbonne), together with the Société de Législation Comparée (SLC), the French national school for the judiciary (ENM) and the French Supreme Court for civil and criminal matters (Cour de cassation).

Litigating in England is expensive. That is why the number of international family law cases is relatively small in this country. However, when an international family law dispute does end up before an English court, it tends to involve very wealthy individuals and can be quite spectacular. One such case is Potanina v Potanin, which concerns a maintenance claim brought by Natalia Potanina against her ex-husband, Vladimir Potanin, “Russia’s richest man” according to Bloomberg.

On 31 January 2024, the UK Supreme Court (Lord Leggatt, Lord Lloyd-Jones and Lady Rose; Lord Briggs and Lord Stephens dissenting) gave a judgment in this case, essentially removing an obscure procedure that had previously precluded respondents from properly arguing their case at the initial stage of deciding whether the applicant should be permitted to make an application for financial relief.

The parties were born in Russia and are both Russian citizens. They married in Russia in 1983 and lived there throughout their marriage. In the 1990s, the husband accumulated vast wealth, estimated to amount to USD20 billion, primarily comprising an ultimate beneficial interest in the shares of a Russian metal and mining company. The parties divorced in 2014, prompting extensive litigation in Russia, the USA and Cyprus, in which the wife unsuccessfully sought to obtain half of the assets beneficially owned by the husband. Following the divorce, the wife relocated to London, becoming habitually resident in England in 2017. In 2018, she applied for permission to seek maintenance.

Part III of the Matrimonial and Family Proceedings Act 1984 gives English courts the power to order financial relief after an overseas divorce. The court has jurisdiction to do so if either party was habitually resident in England throughout the period of one year before the commencement of proceedings or before the overseas divorce. Before making an order for financial relief, the court must consider whether it would be appropriate for an English court to do so, taking account various factors such as the parties’ connections with England, the country in which they were divorced and any other country. If the court is satisfied that it would be appropriate for it to make an order for financial relief, it has the power to make any order it could make in cases of divorce in England. Section 13 of the Act protects respondents by providing that no application under Part III may be made without the court’s permission, obtained in accordance with rules of court. The court may only grant permission if it considers that there is a “substantial ground” for making an application for financial relief.

The judge initially granted permission at a without notice (previously called ex parte) hearing. However, the judge subsequently allowed the husband’s application to set aside the order granting permission on the basis that he had been materially misled. The Court of Appeal allowed the wife’s appeal adopting a strict test for when the power to set aside an order granting permission could be exercised: there had to be some “compelling reason” to do so and in practice only where a decisive authority had been overlooked or the court had been misled; furthermore, it had to be be possible to demonstrate such a compelling reason by a “knockout blow”. This test was derived from Lord Collins’s obiter dictum at [33] of Agbaje v Agbaje.

The Supreme Court held that “If this is indeed how the law presently stands, then I would feel bound to say that, in the eloquent words of Mr Bumble, “the law is an ass.” [30].

This is because the test for when the power to set aside an order granting permission could be exercised violated fundamental principles of procedural fairness. If the husband could not demonstrate by a “knockout blow” that the judge had been misled at the initial without notice hearing, the judge was not entitled to hear any argument from the husband regarding whether the test for granting permission under Section 13 was met or to set aside the permission granted after the without notice hearing. In Potanina, this led to what the court described as a “dystopian” [5], “patently unfair” [31] and “foolish” [32] result that the judge’s initial order granting permission was restored, despite the judge’s later conclusion, after hearing argument from both parties, that the test for granting permission had not been met.

The Supreme Court clarified that there was no requirement to demonstrate a “compelling reason” or that the court had been misled or to deliver a “knockout blow”.

The correct position is that if a court makes an order granting permission under Section 13 after a without notice hearing, the respondent has an absolute unfettered right to apply to set aside the order. At the hearing of such an application, the burden still lies on the applicant to demonstrate a “substantial ground” for making the application for financial relief in England. In this context, the word “substantial” means “solid”.

Because of its conclusion that the judge had not been entitled to reconsider his initial decision, the Court of Appeal failed to address certain grounds of appeal raised by the wife, including the question of applicability and effect of the Maintenance Regulation No 4/2009. As a result, the case was remitted to the Court of Appeal.

Wealthy individuals like Mrs Potanina bring maintenance claims in England because English courts may be more inclined than those of other countries to equally divide the assets, including those beneficially owned by the spouses. Before the Supreme Court judgment, obtaining permission to seek financial relief was relatively easy, as the initial order granting permission was typically granted without notice and the strict test for setting it aside was usually not met. However, the Supreme Court has now decided that this test was wrong in law. The court addressed a procedural issue, not the merits of the claim, in its judgment. While the judgment cannot put an end to “divorce tourism” in England on its own, it will lead to future cases facing greater scrutiny, allowing respondents to properly argue their case at the initial stage of deciding whether the applicant should be permitted to make an application for financial relief.

The latest issue of Lex & Forum, the Greek law review on Private International Law, has been published recently. Paris Arvanitakis, the scientific director of the review, has prepared the following editorial:

Private International Law is fundamental in resolving environmental claims that cross national borders, offering vital legal mechanisms for determining jurisdiction, applicable law, and the recognition and enforcement of judgments. This relationship is particularly significant in an increasingly interconnected world, where environmental issues often transcend geographical boundaries, necessitating a cohesive and robust legal approach to address and resolve such multi-faced transnational disputes effectively. These complicated problems, which constitute the main body of the present issue (Focus), were discussed at a workshop, organized by Lex & Forum on 21.9.2023, chaired and introduced (‘Private international law and environmental disputes’) by Professor at the University of Athens and Director of the Hellenic Institute of International and Foreign Law Mr. Mr. Charis Pamboukis, where presentations were made on ‘Climate justice litigation and private international law’, by Mr. Geert Van Calster , Professor at the Catholic University of Leuven, ‘Collective redress in environmental matters’,  by Lecturer at the University of Malta, Mr. Ioannis Revolidis, ‘Climate litigation: procedural issues’, by Assoc. Professor at the International Hellenic University and member of the the Regulatory Authority for Energy, Mr. Komninos Komnios, ‘Environmental claims in cross-border insolvency’, by Professor at the University of Athens, Ms. Elina Moustaira,  and ‘The impact of third party funding in climate change arbitration: a potential game-changer or too much ado for nothing?’ Ms. by Vasiliki Marazopoulou, Dr.Jur.

Τhis issue includes the Preafatio by Mr. Gilles Cuniberti, Professor at the University of Luxembourg and President of EAPIL, on ‘Mutual Trust Excludes Damages for Suing in other Member States in Breach of Jurisdiction Clause’, which refers to the judgment of the CJEU in the Charles Taylor Adjusting decision case, published also here (commented by Dr. jur. K. Voulgarakis, and Dr. jur. S. Karameros).  The case law section also presents the judgments of the CJEU, 30.3.2023, C-34/21, on the non-infringement of personal data through teaching by videoconferencing due to COVID-19 without the consent of teachers (commented by Dr. jur. R. Tsersidou), CJEU, 30.3.2023, M.Y.M., on the possibility of registering a declaration of renunciation of inheritance in a Bulgarian court before the Registrar of the Athens Magistrate’s Court (commented by Dr. jur. N. Zaprianos), the decision of the Austrian Supreme Court of Cassation, 25.2.2021, on the non-violation of public policy when applying a foreign law of succession that does not provide for a reserved portion on legal succession (commented by Dr. jur. N. Zaprianos), and the domestic decisions Court of Appeal Piraeus 682/2022 on international jurisdiction by joinder of parties of companies that have signed successive shipping contracts (commented by Prof. P. Arvanitakis), and Court of First Instance Athens 922/203 on international jurisdiction and applicable law over the submission of a mentally disabled person under guardianship (commented by Ass. Prof. G.-A. Georgiadis). The issue closes with a special feature on “EU & Global Trade Law”, which features the studies of Professor at Columbia University, Mr. Petros Mavroidis, on “The WTO at Crossroads”, and Professors at the Universities of Gedik/Turkey and Rouen, respectively, K. Bozkurt and Ph. Lombaerde, on “The Cause and Consequences of the Hybrid EU-Turkey Trade Regime”.

Lex & Forum renews its scientific appointment with its readers for the next, 12th issue, with the central theme “Cross-border insolvency”.

The Rovira i Virgili University of Tarragona will host on 4 and 5 April 2024 a conference titled Conflict of Laws on Rights in Rem in the EU: Status Quo and Proposals for the Future.

The event is part of a research project titled Regime of Rights in Rem over Tangible Property in European Private International Law: Issues of International Jurisdiction and Applicable Law, with Georgina Garriga Suau and Maria Font i Mas as principal investigators.

The conference will feature five panels.

The first four, in English, will be respectively devoted to: Private international law of rights in rem in the U.S. and the European Union (with Christofer A. Whytock and Marta Pertegás Sender as speakers); Proposals for an EU Regulation on applicable law in the field of rights in rem (Francisco J. Garcimartín Alférez and Eva-Maria Kieninger); Questions on the law applicable to rights in rem (Gilles Cuniberti, Afonso Patrâo, Pietro Franzina and Ivana Kunda); Challenges of the rights in rem in the digital era (Ilaria Pretelli, Silvana Canales Gutiérrez and Guillermo Palao Moreno).

The fifth panel, in Spanish, will address a selection of issues relating to cryptoassets, goods in transit and in rem securities in connection with cross-border insolvency proceedings, land registries and cultural property, the speakers being Vésela Andreeva, Josep Maria Fontanellas Morell, Iván Heredia Cervantes, Carmen Parra Rodríguez and Rosa Miquel Sala. The full programe van be found here.

The organisers of the conference have issued a call for presentations on any of the thematic areas covered by the panels. Speakers selected based on the call will be invited to make presentations in person during the conference for approximately ten minutes each. The deadline for submission of communications is open until 4 March 2024. Further information is available here.

Those interested in attending the conference are invited to register by e-mail at pilrightsinrem@urv.cat, specifying whether they plan to attend in person or on-line.

On 8 and 9 March 2024 a conference will be held at the University of Augsburg, organized by Tobias Lutzi, to discuss current developments in connection with punitive damages.

In particular, the event aims to critically discuss whether and to what extent the German courts‘ strict refusal to recognize foreign punitive damage awards is still tenable in light of developments both in legal systems that award punitive damages and in legal systems that do not (but may still recognize such awards).

Speakers include Tobias Lutzi, Lukas Rademacher, Jan Lüttringhaus, Phillip Hellwege, Catherine Sharkey, Rachael Mulheron, Eleni Katsampouka, Cedric Vanleenhove, Marko Jovanovic, Leonhard Hübner, André Janssen, Beligh Elbalti, Johannes Ungerer, Wolfgang Wurmnest, Samuel Fulli-Lemaire, Marta Requejo Isidro, Caterina Benini and Min Kyung Kim.

The full programme is available here.

Registration is possible via this link; attendance is free of charge.

Those interested in attending the conference on-line may get in touch with the organisers (tobias.lutzi@jura.uni-augsburg.de) and ask for a video-link.

It has already been announced on this blog that the next EAPIL conference will take place in Wrocław (Poland) between 6 and 8 June 2024, and will be devoted to Private International Law and Global Crises.

Those willing to join the conference may now register for the event through the dedicated conference website. Please note attendance is in person (on-site) only.

The full programme of the conference, together with practical information on travel and accommodation, are also found in the website.

Huge thanks to Agnieszka Frąckowiak-Adamska, Vice-President of the European Association of Private International Law, and her team, for taking care of the event!

The conference speakers include: Raffaele Sabato (European Court of Human Rights), Vincent Kronenberger (Court of Justice of the European Union), Andreas Stein (European Commission), Patrick Kinsch (University of Luxembourg), Veronica Ruiz Abou-Nigm (University of Edinburgh), Iryna Dikovska (Taras Shevchenko National University Kyiv), Tamasz Szabados (ELTE Eötvös Loránd University), Alex Mills (University College London), Matthias Weller (University of Bonn), Eduardo Alvarez Armas (Universidad Pontificia Comillas), Olivera Boskovic (Université Paris Cité), Rui Dias (University of Coimbra), Klaas Eller (University of Amsterdam), and Laura Carpaneto (University of Genova).

For further information: 2024.EAPIL.Wroclaw@uwr.edu.pl.

Geert De Baere (judge at the General Court of the EU and professor at KU Leuven) and Johan Meeusen (professor at the University of Antwerp) have just published with Larcier-Intersentia a new edition of their handbook, in Dutch, on the law of the European Union: Grondbeginselen van het recht van de Europese Unie.

The book provides an overview of the core elements of EU law, including the Union’s institutional organization and judicial protection, its fundamental principles, sources and decision-making procedures, the internal market, Union citizenship, competition law and external relations.

New in this second edition is a chapter on the European Union’s area of freedom, security and justice, which inter alia covers its historical development, the TFEU’s “general provisions” concerning the area and the specific Treaty provisions concerning its respective subfields. Readers are introduced to, inter alia, the institutional and substantive aspects of the judicial cooperation in civil matters and the Union’s action with respect to private international law.

Further information on the book, and on the simultaneous publication of new editions of Johan Meeusen’s books on the case law of the Court of Justice of the European Union and other sources of EU law, can be found here.

Regulation (EU) 2023/2844 on the digitalisation of judicial cooperation and access to justice in cross-border civil, commercial and criminal matters, and amending certain acts in the field of judicial cooperation, also knowns as the “Digital Justice” Regulation, was adopted on 13 December 2023 (see already here on the Regulation proposal, here on the text negotiations and here on the new text).

This Regulation constitutes an important step in the EU commitment to modernise cross-border proceedings in the European judicial area, in accordance with the “digital by default” principle. For the record, this principle means that delivering services digitally is the preferred option through a single contact point. In the judicial context, it applies to digital communication between authorities and litigants. It aims to improve the efficiency of exchanges and reduce costs and administrative burden. At the same time, this digital shift implies that all the necessary safeguards must be put in place to prevent social exclusion of certain litigants, while ensuring mutual trust between authorities, interoperability and the security of processes and data.

The “Digital Justice” Regulation seeks to find this difficult balance by establishing a uniform legal framework for the use of electronic communications between, on the one hand, the competent authorities in cross-border legal proceedings and, on the other, between these authorities and the parties. The Regulation also provides for harmonised provisions relating to the use of videoconferencing, the application of electronic signatures, the legal effects of electronic documents and the electronic payment of fees.

The Regulation builds on the increasingly  dense “digital acquis” in EU law, starting with the protection of personal data (i.e. GDPR and its extension to EU bodies), the eDIAS Regulation on electronic identification and trust services for electronic transactions and, more specifically in the area of judicial cooperation, the deployment of the e-CODEX system in the field of judicial cooperation in civil and criminal matters, the management of which has just been transferred to eu-LISA. This complex “regulatory web” dealing with the digitalisation of human and economic exchanges in the Union can no longer be ignored by legal practitioners and will have to be articulated with the e-Justice Regulation.

The Regulation lays down provisions on the digital exchanges of information which are intended to apply to cross-border proceedings in civil, commercial and criminal matters.

This material scope is quite remarkable, since until now the regulatory framework of judicial cooperation in the Union has developed in a differentiated and even hermetic manner between its civil component (Article 81 TFEU) and its criminal component (Article 82 seq. TFEU). Digitalisation marks a turning point in favour of the unification of the European judicial area, initiated with the e-CODEX Regulation, which is meant to constitute one of its structural (digital) dimensions. Indeed, digitalisation is a common issue relevant for the various forms of justice (and, more broadly, for public services and administrations). It is therefore welcome that the EU legislator has adopted a unified regulatory framework in this area. From an academic perspective, it should encourage scholars to look beyond their discipline – (EU) civil or criminal justice – to enhance cross-cutting analyses of the EU judicial area as a whole.

As far as private international law is concerned, Annex I of the Regulation includes most of the instruments adopted in the field of judicial cooperation in civil matters, with the exception of the “Rome” (I, II, III) Regulations dedicated to conflicts of laws and the Service of Documents and Taking of Evidence Regulations, which were already modernised in 2020 to incorporate the digital procedural dimension (see here and here).

The “Digital Justice” Regulation shall be understood as an instrument for “upgrading” the legal framework of EU judicial cooperation in its digital dimension. How does it work? Among all instruments adopted as part of EU policy on judicial cooperation in civil and in criminal matters, the implementation of those relating to cross-border proceedings triggers the “complementary” application of the new Regulation. In that respect, the Annex to the Regulation contains a list of the instruments concerned (Annex I in civil matters and Annex II in criminal matters). This means that the tools and channels for digitalising judicial cooperation provided for in the Regulation are intended to apply in the context of cross-border proceedings based on one or more of these listed instruments. The internationality criterion of the judicial proceedings in question will thus depend on the definition adopted by each instrument concerned.

By contrast, more recent (and future) EU instruments in civil and criminal matters do not (will not) fall within the scope of the e-Justice Regulation since they (will) develop their own digital-related provisions – as illustrated by the Taking of Evidence Regulations in civil matters and in criminal matters or de lege ferenda by the Regulation Proposal on the Protection of Adults –Eventually, the long-term objective of the EU legislator is to establish a judicial cooperation digitalised “by design” in the European area; and that will require strong commitment and concrete changes – in particular at the technical and administrative level – for the judicial systems of Member States.

It will certainly comfort legal practitioners and judicial actors to briefly mention the timeframe for implementing the new Regulation: this will be very gradual and will take several years. In principle, the Regulation will be applicable in spring 2025. However, as far as the provisions on electronic communications are concerned, the date of application of the new provisions depends on the implementing Acts that the European Commission will adopt to organise the future structural channels of digital interactivity between authorities and between authorities and litigants. To this end, a staggered timetable (from n+2 years to n+5 years) has been set for the adoption of several successive implementing Acts aimed respectively at one or other of the texts listed in the Annex. All in all, it will take until 2031 (according to a rough calculation) for the entire legal framework to be fully operational.

In terms of technical innovations, the Regulation sets up a uniform legal framework for digital exchanges of information via the Internet or another electronic communications network. The Regulation establishes two information channels for such electronic communications: first, a decentralised IT system to handle exchanges between the competent authorities (including relevant EU bodies) and, second, a European electronic access point for litigants to interact with the competent authorities. It is for the European Commission to specify, through implementing acts, the content of these two information channels. In addition, the Commission is in charge of developing “reference implementation software” so that Member States can adopt it, on a voluntary basis, as their back-end system, in place of a national IT system. It will also be responsible for maintaining the software as well as the European electronic access point. These are major technical and legal responsibilities for the Commission vis-à-vis national judicial systems; they may invite to reflect on the strategic positioning of this institution in the EU institutional architecture.

Decentralised IT system — The first channel for electronic communications will consist of national IT systems with interoperable access points, interconnected via the pan-European computerised communication system e-CODEX. The decentralised IT system should be used “as a matter of principle” for all exchanges between competent authorities in different Member States and between a competent national authority and an EU body or agency. This could be a court (e.g. for small claims procedures), a central authority (e.g. under the Brussels II ter Regulation) or an EU body or agency involved in judicial cooperation procedures in criminal matters, such as Eurojust. The decentralised computer system will in particular have to be used for the exchange of standard forms established by the instruments listed in the Annex.

Other means of electronic communication may be used by way of derogation only, in the event of disruption of the decentralised system, force majeure or because of the nature of the documents to be transmitted.

European electronic access point — The second digital communication channel is an innovation for civil litigants: the European electronic access point. It will be accessible from the European e-Justice portal and may be seen as a counterpart to the Single Digital Gateway for cross-border administrative procedures (including the cross-border circulation of public documents). It should in theory govern electronic exchanges between litigants and the competent authorities in all the cases provided for by the instruments listed in Annex I to the Regulation. This could involve making requests, sending and receiving information relevant to proceedings or being served with procedural documents. In that respect, Article 4 of the Regulation should be of particular interest to legal practitioners, as it offers a “systematic mapping” of the different scenarios for cross-border communication in the light of the instruments of judicial cooperation in civil matters listed in Annex I. In those scenarios, the competent authorities may have to accept electronic communication.

In order to make this work in practice, the Regulation requires Member States to train legal staff in these new digital channels. This is essential and will require an excellent understanding of the issues of accessibility, personal data protection and cyber security, both by practitioners and, more broadly, by public authorities.

Unlike the decentralised IT system, which responds to the digital by default principle, litigants will have to give their prior consent to enter into a dematerialised communication exchange with the national authorities of a Member State. In case of refusal, this should mean that the exchange will take place via “traditional” communication channels. Nothing is specified by the Regulation, as this is a matter for national law. In the long term, however, it is questionable whether this choice will always be possible, particularly in those Member States that have already made or well advanced the digital transition of their justice system. As a matter of fact, there are major disparities between Member States, including in terms of local territories and population, which could create gaps between the (requesting and requested) authorities for cross-border judicial cooperation.

The Regulation makes several references on the legal effects of the digitalisation of judicial cooperation and, more specifically, of its communications aspect. The sensitive point here relates to the potential influence of the digital format on the legal value of the document as “data flow”. The Regulation recalls that the rules governing cross-border judicial procedures established by the legal acts listed in the Annex are not affected, apart from the digital communication dimension of the new framework. In particular, the national law of the Member States continues to govern questions relating to the authenticity, accuracy and appropriate legal form of documents or information that will transit through the new digital channels.

A contrario, digitised exchanges must not deprive electronic documents of legal effects. This is provided for in Article 8 of the Regulation, which is a well-known provision as it already appears in other European instruments in digital matters: “Documents transmitted by electronic means shall not be deprived of legal effect and shall not be considered inadmissible in cross-border legal proceedings concerning the legal acts listed in Annexes I and II solely on the ground that they are in electronic form”.

The Regulation also organises the use of videoconferencing for hearings of persons in cross-border judicial proceedings listed in the Annex. The European legal acquis already contains provisions on the use of videoconferencing on an optional basis or subject to the existence of technical tools within the authorities concerned. The same rationale is followed by the Regulation, so there is no obligation. The promoters of digital justice may regret this, but the Regulation nevertheless provides that the use of videoconferencing may not be refused by the authorities of a Member State “solely on account of the non-existence of national rules governing the use of distance communication technology. In such a case, the most appropriate rules applicable under national law, such as rules on the taking of evidence, should apply mutatis mutandis” (Rec. 33). This voluntary and incentive-based approach is certainly justified, in order to take account of the disparities between national legal systems in terms of their level of digitalisation and, in the case of criminal proceedings, because of the great vulnerability of the individuals concerned by the proceedings, which digital communications may increase.

 The “Digital Justice” Regulation is an important step in the structuring of cross-border digital justice in the Union and paves the way for a (new) European “digital judicial culture”. In that respect, the Regulation leaves the Member States room for manoeuvre by allowing them to extend its scope to purely domestic judicial procedures – i.e. outside the EU competence based on Articles 81 and 82 TFEU –. This is of great significance since digitalisation blurs the boundaries between internal and international proceedings. The EU cross-border digital Justice should therefore have a long-term impact on national judicial systems of the Member States. But to succeed, major changes will be needed in national justice systems (as recently highlighted by the new e-Justice Strategy). In this context, a solid dialogue with legal and judicial practitioners will be central as well as keeping the “big picture” of digitalisation in mind, starting with the crucial issues of the digital divide, the protection of personal data and cybersecurity in relation to Article 47 of the EU Charter.

February 2024 will be a busy month at the Court of Justice.

A hearing took already place on 1 February in case C-394/22, Oilchart International, a request for a preliminary ruling on the delimitation of Regulation Brussels I bis and Regulation 1346/2000, as well as on the compatibility with the latter of specific Dutch provisions. The Hof van beroep te Antwerpen (Belgium) is asking the Court:

(a) Must Article 1(2)(b) of the Brussels Ia Regulation in conjunction with Article 3(1) of the Insolvency Regulation 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 national proceedings concern a claim for the payment of an invoice still pending when the debtor became insolvent. Due to the provisions contained in bank guarantees, the claim was brought before a Belgian court. The case has been assigned to a chamber of five judges (A. Prechal, N. Wahl, J. Passer, L. Arastey Sahún, and F. Biltgen reporting). AG L. Medina will provide an opinion in due course.

On 8 February AG M. Szpunar will deliver his opinion in C-633/22, Real Madrid Club de Fútbol. I reported on this Grand Chamber case and on the hearing held in October 2023 here. At stake is the interpretation of the Brussels I Regulation in relation to the Charter of Fundamental Rights of the EU.

The opinion of AG M. Campos Sánchez-Bordona in case C-35/23, Greislzel, will be read as well on 8 February 2024. The request, from the Oberlandesgericht Frankfurt am Main (Higher Regional Court, Frankfurt am Main, Germany), focuses on the interpretation of Articles 10 and 11 of the Brussels II bis Regulation:

To what extent is the regulatory mechanism provided for in Article 10 and Article 11 of the Brussels IIa Regulation limited to proceedings conducted in the context of relations between EU Member States?

More specifically:

1. Does Article 10 of the Brussels IIa Regulation apply, with the effect that the jurisdiction of the courts in the former State of residence is retained, if the child had his or her habitual residence in an EU Member State (Germany) before his or her removal and the return proceedings under the Hague Convention on the Civil Aspects of International Child Abduction (‘the HCAC’) were conducted between an EU Member State (Poland) and a third State (Switzerland) and, in those proceedings, the return of the child was refused?

If question 1 is answered in the affirmative:

2. In the context of Article 10(b)(i) of the Brussels IIa Regulation, what requirements are to be imposed for the purposes of establishing continuing jurisdiction?

3. Does Article 11 (6) to (8) of the Brussels IIa Regulation also apply in the case of return proceedings implemented under the HCAC in the context of relations between a third State and an EU Member State, as a State of refuge, in so far as the child had his or her habitual residence in another EU member state before the removal?

Like in many child abduction settings, the facts of the case are convoluted and not easy to summarize. In a nutshell, the problem revolves around the (allegedly wrongful) removal of a child from Germany to Poland by her mother. The father has lodged a request for return under the 1980 Hague Convention on Child Abduction, first, and then in the framework of a claim for the transfer of the sole parental custody under the Brussels II bis Regulation . The peculiarity of the case lies with the fact that, because he lives in Switzerland, both attempts focus in an order that would send the child to that country, and not to the Member State where she was habitually resident immediately before the wrongful removal.

The case will be solved by judges C. Lycourgos, O. Spineanu-Matei, J.C. Bonichot, S. Rodin, and L.S. Rossi (reporting).

The opinion of AG N. Emiliou on C-425/22, MOL, will be published as well on 8 February. The referring court is the Kúria (Hungary). The questions are:

1.   Where a parent company brings an action for damages in respect of the anti-competitive conduct of another company in order to obtain compensation for the damage suffered as a result of that conduct solely by its subsidiaries, does the registered office of the parent company determine the forum of jurisdiction, as the place where the harmful event occurred for the purposes of Article 7(2) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (‘the Brussels Ia Regulation’)?

2. Is the fact that, at the time of the purchases at issue in the proceedings, not all the subsidiaries belonged to the parent company’s group of companies relevant for the purposes of the application of Article 7(2) of the Brussels Ia Regulation?

The main proceedings are a follow-on action based on a final decision of the European Commission, where it is established that, by colluding on gross list pricing for medium and heavy trucks in the European Economic Area, the defendant, established in Germany, together with other companies, had participated in a cartel in continuous infringement of the prohibitions laid down in Article 101 TFUE and Article 53 of the Agreement on the European Economic Area. The claimant requests the reimbursement of the additional cost paid by its subsidiaries for the indirect purchase of 71 trucks from the defendant, in different Member States. The case raises the question of whether, in the context of Article 7 (2), of the Brussels I bis Regulation, a parent company can invoke the theory of economic unity for the purposes of determining the competent court for an action for the damage suffered by its subsidiaries.

M. Ilešič is the reporting judge in a chamber comprising as well E. Regan, K. Lenaerts, I. Jarukaitis and D. Gratsias.

Finally, the decision of the 1st Chamber (composed by judges A. Arabadjiev, T. von Danwitz, P.G. Xuereb, I. Ziemele and A. Kumin, with the latter reporting) in case C-566/22, Inkreal will be published on the same day. The requests addresses the interpretation of the Brussels Ibis Regulation and its scope of application. AG J. Richard de la Tour had delivered his opinion October last year: see here.

Two further opinions and a decision will be delivered on Thursday 22 February, thus after the ‘semaine blanche’.

AG N. Emiliou is the author of the opinion in case C-774/22, FTI Touristik, a request from the Amtsgericht Nürnberg (Germany) on Article 18 of the Brussels Ibis Regulation:

Is Article 18(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Article 18(1) of the Brussels I Regulation) to be interpreted as meaning that, in addition to providing for international jurisdiction, the rule also concerns a provision on the territorial jurisdiction of national courts in matters relating to a travel contract where both the consumer, as a traveller, and the other party to the contract, the tour operator[,] have their seat in the same Member State, but the travel destination is situated not in that Member State but abroad (so-called ‘false internal cases’) with the consequence that the consumer can make contractual claims against the tour operator supplementing national provisions on jurisdiction at the court of his or her place of residence?

The applicant is a traveler, domiciled in Nuremberg at all relevant times, who had booked a package tour with the defendant, a tour operator established in Munich, through a travel agency. The travel agent acted as an intermediary in the conclusion of the contract and it is undisputed that it is not itself a contracting partner; it is also not a branch of the defendant. The applicant claims from the defendant payment of compensation amounting to EUR 1,499.86 on account of the fact that he was not adequately informed of the necessary entry and visa requirements.

The case will be solved by a chamber of five judges – A. Prechal, N. Wahl, J. Passer, L. Arastey Sahún, and F. Biltgen reporting.

Another AG N. Emiliou’s opinion is expected on the same day, this time in case C-339/22, BSH Hausgeräte, on Article 24 (4) of the Brussels Ibis Regulation. It was originally scheduled for November 2023 and I already reported about the case then.

Finally, the 9th Chamber (J.C. Bonichot, L.S. Rossi, and  O. Spineanu-Matei reporting) will render its decision on C-81/23, FCA Italy et FPT Industrial also on 22 February. The referring court is requesting the interpretation of Article 7 of the Brussels I bis Regulation in a clear follow-up on case C‑343/19, VKI. In the Austrian proceedings the applicant, whose domicile is in Krems an der Donau (Austria) purchased a camper van from the dealer established in Germany. The written sale contract was signed at the seller’s seat in Germany. In accordance with the agreement concluded, the vehicle was transferred to the applicant and his wife by the Austrian seller’s distribution centre in Salzburg (Austria). The first respondent, established in Italy, is the manufacturer of the basic vehicle; the second respondent, also established in Italy, developed the engine, which, according to the applicant’s claims in the main proceedings, is equipped with a prohibited defeat device within the meaning of Article 5(2) of Regulation (EC) No 715/2007 on type approval.

The Oberster Gerichtshof (Austria) asks the Court in Luxembourg:

Must point 2 of Article 7 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (‘Regulation (EU) No 1215/2012’) be interpreted as meaning that, in an action for tortious liability against the developer of a diesel engine with a prohibited defeat device within the meaning of Article 5(2) of Regulation (EC) No 715/2007 on type approval, the place where the harmful event occurred in a case where the vehicle was bought by the applicant domiciled in Member State B (in this case: Austria) from a third party established in Member State C (in this case: Germany) is

a) the place where the contract was concluded;

b) the place where the vehicle was delivered, or

c) the place where the physical defect constituting the damage occurred and, therefore, the place where the vehicle is normally used?