Agrégateur de flux

Toni Marzal and George Pavlakos (both from University of Glasgow) posted recently on RSSN their article titled A Relations-First Approach to Choice of Law.

The article forms part of the forthcoming volume Philosophical Foundations of Private International Law edited by Roxana Banu, Michael Green and Ralf Michaels to be published by Oxford University Press. The volume is an outcome of an interdisciplinary project carried under the same title. As underlined by Roxana Banu:

PIL situates virtually every legal topic in a different, transnational and pluralistic context. It is therefore hard to comprehend why a philosophical inquiry has thus been far lacking. We seek to penetrate the long-standing isolation existing between the two disciplines and investigate the many opportunities for mutual enrichment.

The abstract of the article reads as follows:

The question of applicable law remains central in the doctrine and practice of private international law (PIL), raising a host of disagreements around the criteria that govern its determination. Paradoxically, this question is commonly approached through a positivist lens, whilst at the same time being guided by a commitment to individual autonomy. In this paper we propose, against mainstream practice, to frame the issue of applicable law as involving a series of questions about relational morality, which ought to be answered independently of any established legal order, and from a concern for the common good. We will proceed in four parts. First, we will demonstrate that a purely positivist understanding fails to properly account for today’s practice, given its propensity to exclude normative considerations as irrelevant to the determination of legal facts, whilst at the same time resorting to such considerations under the cover of hopelessly circular reasoning – a failure that is particularly manifest in the context of PIL. Second, we will show how current PIL tends to accomplish this operation by smuggling into legal reasoning a pre-institutional notion of individual autonomy, which implicitly guides the determination of applicable law, and is divorced from any considerations of relational morality (as well as from ideals of the common good that are left to the ex-post intervention of institutionalised legal orders). Third, we emphasise the independent value of addressing the question of legal relations in pre-institutional terms and propose a fresh way of understanding the legality of such relations among private parties, on the basis of a revised reading of Savigny and Kantian right, as key to the determination of the applicable law. Finally, we explore the downstream implications of our relations-first approach, by considering the topical question of applicable law to claims against parent/buyer companies for the harm caused by their subsidiaries/providers overseas.

The final conference of the JUDGTRUST project on the application of the Brussels I bis Regulation will take place in the Hague (and on-line) on 21 and 22 April 2022, organised by the Asser Institute with the University of Hamburg, the University of Antwerp and the Internationaal Juridisch Instituut.

The conference concludes a two-year project on the correct and consistent application of the Regulation. The research findings of the project will be presented and the conference will provide an opportunity to share knowledge amongst academics, legal practitioners and legislators on how to achieve a greater consistency among various instruments in order to enhance the legal certainty, predictability and access to justice in cross border legal transactions.

The conference will offer an opportunity to discuss about the interpretation of the Regulation; the difficulties in the application and interpretation of the Regulation by State courts; consistency within the European private international law system, and possible solutions.

Speakers include Michał Gondek (European Commission), Markus Tobias Kotzur (University of Hamburg), Vesna Lazić (Asser Institute, Utrecht University), Burkhard Hess (MPI Luxembourg), David Althoff (The Hague Institute of Private International and Foreign Law), Louise Ellen Teitz (Roger Williams University School of Law, Bristol, Rhode Island), Wolfgang Hau (Ludwig-Maximilians University of Munich), Antonio Leandro (University of Bari), Michiel de Rooij (Asser Institute), Javier Carrascosa González (University of Murcia), Gilles Cuniberti (University of Luxembourg), Fieke van Overbeeke (The Hague Institute of Private International and Foreign Law), Mukarrum Ahmed (University of Lancaster), Jachin Van Doninck (Free University Brussels), Luis de Lima Pinheiro (University of Lisbon), Lisette Frohn (The Hague Institute of Private International and Foreign Law), Beatriz Añoveros Terradas (University of Barcelona), Pontian Okoli (University of Stirling) and Francesca Villata (University of Milan).

The full programme is available here. See here for registration.

Ansgar Ohly (Ludwig Maximilian University Munich) wrote an interesting article addressing matters of jurisdiction and choice of law in trade secrets misappropriation cases. The article entitled Jurisdiction and Choice of Law in Trade Secrets Cases: the EU Perspective has been published in an Edward Elgar Research Handbook on Information Law and Governance edited by Sharon K. Sandeen, Christoph Rademacher and Ansgar Ohly. A version of the paper is now available for free consultation on SSRN.

The abstract reads as follows:

Trade secrecy law is a hybrid between intellectual property and unfair competition law. This makes the characterisation of trade secrecy law for the purposes of private international law difficult. This paper argues that neither the EU conflict of law rules for unfair competition law nor those for IP law can be applied, but that a sui-generis solution is called for.

The paper is structured around two parts: one dedicated to determining jurisdiction in trade secrets cases – Part II – and another to applicable law – Part III.

The analysis is systematic and starts from matters of jurisdiction in tort or contract cases, discussing the Bogsitter case (C-548/12) and Wikingerhof case (C-59/19; the judgment was not yet given by the CJEU), Trade Secrets Directive (Directive (EU) 2016/943), and looking at the place where ‘the harmful event occurs’.

For applicable law, the EU provisions seem to force the courts to address the difficult question of whether the protection of trade secrets is a part of intellectual property or of unfair competition law.

One of the problematic aspects of the analysis is related to the specificity of trade secrecy that usually involves a chain of events which consists of the acquisition, the disclosure, and the use of the information.

All of these acts are separate acts of infringement, but at the same time they are related (see the “cascade of liability” established by Article 4 Trade Secrets Directive).

Hence, the question is whether these acts should be dealt with separately for the purpose of establishing jurisdiction and determining the applicable law or whether the entire dispute should be handled by one forum based on one applicable law or other sui generis solution should be considered.

Par un arrêt du 24 mars 2022, la Cour de justice de l’Union européenne confirme, dans le cadre du règlement n° 2015/848, sa jurisprudence relative aux conflits de compétence apparaissant lorsqu’un débiteur déplace le centre de ses intérêts peu de temps avant de demander l’ouverture d’une procédure collective.

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In the context of the Vici project ‘Affordable Access to Justice’, the project team (Erasmus School of Law) is organising a series of online seminars dedicated to the Trends and Challenges in Costs and Funding of Civil Justice.

The next session is scheduled for Wednesday, 20 April 2022 (14:00-16:00 CET) on the topic: Austerity policies and litigation costs reforms.

The relationship between access to justice, efficiency of courts, and litigation costs has never been an easy one. Yet, finding a proper balance has never been more challenging than in recent times. The EU economic crises of the last decade and austerity policies deeply affected justice budgets in several EU Member States and triggered justice reforms, particularly in the area of litigation costs. Building on the experiences of three EU jurisdictions that have been greatly affected by such developments (namely, Greece, Portugal, and Spain), the seminar will assess the impact of austerity measures on access to justice.

Speakers: Panagiotis Perakis (Vice President CCBE), Paula Costa e Silva (Lisbon University), Fernando Gascón Inchausti (Complutense University of Madrid)

To attend the online event, please register here.

With thanks to Adriani Dori for the tip-off.

Since the Millennium, public interest litigation has become a growing phenomenon in civil courts. Activists and NGOs are filing civil lawsuits, both domestic and cross-border, in order to promote societal and political shifts.

Typical examples are (business and) human rights claims, environmental claims, climate change litigation but also cartel damage claims. Targeted defendants react also developing litigation strategies, such as bringing the disputes to the general public through the media. A currently much discussed example are SLAPP, strategic lawsuits against public participation – libel lawsuits brought against journalists, media and other stakeholders of the civil society in order to deter them from making investigations.

On 8 April 2022, at 4 pm CET, a Max Planck Law curriculum course is taking place under the title Strategic Litigation – A New Phenomenon in Civil Litigation?, where Burkhard Hess (Director, MPI Luxembourg) will present strategic litigation on the basis of actual cases, and analyse the main features of this (not that new?) phenomenon. The class will primarily focus on civil actions but equally look at recent developments at constitutional and international courts, trying to assess whether and to what extent this type of dispute is transforming civil litigation as we know it.

Those wishing to attend are required to register here by 6 April 2022.

Commissioner of the Garda Síochána e.a
Rapprochement des législations
La Cour confirme que le droit de l’Union s’oppose à une conservation généralisée et indifférenciée des données relatives au trafic et à la localisation afférentes aux communications électroniques aux fins de la lutte contre les infractions graves

In February 2022, a Working Group has been established within the European Association of Private International Law. The task of the Group was to respond to a public consultation launched by the European Commission on the prospect of an EU-wide protection for vulnerable adults, i.e., persons aged 18 or more who are unable to protect their interests because of an impairment or insufficiency of their personal faculties.

The Group presented the preliminary draft of a position paper prepared for this purpose at a webinar on 10 March 2022.

Having taken note of the feedback received from the participants in the webinar and other interested academics, practitioners and stakeholders, the Working Group shared a final draft with the Association’s Scientific Council.

The position paper, as approved by the EAPIL Council and submitted to the European Commission, is available here.

Here are some of the key takeaways of the paper:

1. Private international law has an important role to play in the realisation of the fundamental rights of persons aged 18 and more who are not in a position to protect their interests due to an impairment or insufficiency of their personal faculty.
2. The Union should urgently adopt measures of judicial cooperation aimed to support, in cross-border situations, the exercise of legal capacity by the adults concerned, in accordance with the United Nations Convention on the Rights of Persons with Disabilities.
3. In taking the above measures, the Union should preserve the operation and the prospect of success of the Hague Convention of 13 January 2000 on the International Protection of Adults. To this end, the Union should combine external action and legislation, meaning that the Convention should provide the basic legal framework in this field, common to all Member States, but legislation should be enacted by the Union to strengthen cooperation between Member States and improve the operation of the Convention in their relations.
4. The legal basis for the above measures would be Article 81 TFEU, with the clarification that the protection of adults should not be deemed to fall within the scope of “family law” within the meaning of Article 81(3).
5. The Union has external competence, based on Article 216 TFEU to authorise the Member States that have not yet done so to ratify, or accede to, the Hague Adults Convention “in the interest of the Union”, on the ground that the conclusion of the Convention would be “necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to in the Treaties”.
6. The legislation of the Union aimed to improve the Hague Convention regionally should relate, inter alia, to choice of court by the adult concerned and the law applicable to ex lege powers of representation.
7. Specifically, the Union should enact a rule whereby ex lege powers of representation are governed by the law of the (Member) State where the adult concerned has their habitual residence at the time when those powers are relied upon, without prejudice to the application of the provisions on ex lege powers of representation as may be in force in the Member State where the powers are invoked, whenever the provisions themselves are meant to apply regardless of the law specified by conflict-of-laws rules.

La France préside le Conseil de l’Union européenne pour six mois. À cette occasion, la Délégation des barreaux de France et Lefebvre Dalloz s’associent pour vous proposer ce podcast dont la vocation est de sensibiliser sur les travaux et les actions conduites dans le domaine de la justice au plan européen.

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On 7 April 2022, the Court will deliver the judgment in C-568/20, H Limited. The request, with three questions, was lodged in November 2020 by the Oberster Gerichtshof (Austria); it concerns the interpretation of several provisions of Chapter III of the Brussels I bis Regulation, in addition to its Article 2(a). The dispute on the merits focuses on the enforcement of an order based on a decision of the High Court of Justice, Business and Property Courts of England & Wales, Commercial Court (QBD). AG Pikamäe’s opinion, published on December 16, 2021, proposed the following answers to the CJEU:

Articles 45 and 46 of [the Brussels I bis Regulation] should be interpreted as meaning that the court of the Member State addressed, to which an application for refusal of enforcement is made, may grant that application on the grounds that the judgment and the certificate, provided for in Article 53 of that regulation, adopted by the court of the Member State of origin breach the public policy of the Member State addressed, where the error of law relied upon constitutes a manifest breach of a rule of law regarded as essential in the legal order of the European Union and therefore in the legal order of that State. This is the case of an error affecting the application of Article 2(a) and Article 39 of that regulation requiring that the judgment of which enforcement is sought be given in a Member State.

When reviewing whether there has been a manifest breach of public policy in the Member State addressed through failure to comply with a substantive or procedural rule of EU law, the court of that State must take account of the fact that, save where specific circumstances make it too difficult or impossible to exercise the legal remedies in the Member State of origin, the individuals concerned must avail themselves of all the legal remedies available in that Member State with a view to preventing such a breach before it occurs.

The reporting judge is M. Safjan.

The decision on C-645/20, V A et Z A , is scheduled for the same day. The French Court of Cassation had addressed to the Court a single question on the interpretation of Article 10(1)(a) of the Succession Regulation, lodged in December 2020. AG M. Campos Sánchez-Bordona had suggested to reply as follows:

Article 10(1)(a) of [the Succession Regulation] must be interpreted as meaning that, in the case where the deceased did not have his last habitual residence in any Member State of the European Union, the court of a Member State in which a dispute in a matter of succession has arisen must declare of its own motion that it has jurisdiction to settle the succession as a whole if, in the light of facts alleged by the parties which are not in dispute, the deceased was a national of that State at the time of his death and was the owner of assets located there.

M. Ilešič was appointed reporting judge.

Easter vacation imposes a break on the publication of decisions and opinions. For PIL purposes, the next one will be the opinion of AG M. Richard de la Tour in C- 604/20 ROI Land Investments, a request from the Bundesarbeitsgericht (Germany), lodged on November 2020. The questions referred concern both jurisdiction and applicable law (the Rome I Regulation) in employment and (maybe, or) consumer matters:

1. Is Article 6(1) read in conjunction with Article 21(2) and Article 21(1)(b) of [the Brussels I bis Regulation] to be interpreted as meaning that an employee can sue a legal person – which is not his employer and which is not domiciled in a Member State within the meaning of Article 63(1) of the [Regulation] but which, by virtue of a letter of comfort, is directly liable to the employee for claims arising from an individual contract of employment with a third party – in the courts for the place where or from where the employee habitually carries out his work in the employment relationship with the third party or in the courts for the last place where he did so, if the contract of employment with the third party would not have come into being in the absence of the letter of comfort?
2. Is Article 6(1) of the [Brussels I bis Regulation] to be interpreted as meaning that the reservation in respect of Article 21(2) of the [the same Regulation] precludes the application of a rule of jurisdiction existing under the national law of the Member State which allows an employee to sue a legal person, which, in circumstances such as those described in the first question, is directly liable to him for claims arising from an individual contract of employment with a third party, as the ‘successor in title’ of the employer in the courts for the place where the employee habitually carries out his work, if no such jurisdiction exists under Article 21(2) read in conjunction with Article 21(1)(b)(i) of the [Regulation]?
3. If the first question is answered in the negative and the second question in the affirmative:

(a) Is Article 17(1) of the [Brussels I bis Regulation] to be interpreted as meaning that the concept of ‘professional activities’ includes paid employment in an employment relationship?

(b) If so, is Article 17(1) of the [Brussels I bis Regulation] to be interpreted as meaning that a letter of comfort on the basis of which a legal person is directly liable for claims of an employee arising from an individual contract of employment with a third party constitutes a contract concluded by the employee for a purpose which can be regarded as being within the scope of his professional activities?

4. If, in answer to the above questions, the referring court is deemed to have international jurisdiction to rule on the dispute:

(a) Is Article 6(1) of [the Rome I Regulation] to be interpreted as meaning that the concept of ‘professional activities’ includes paid employment in an employment relationship?

(b) If so, is Article 6(1) of the Rome I Regulation to be interpreted as meaning that a letter of comfort on the basis of which a legal person is directly liable to an employee for claims arising from an individual contract of employment with a third party constitutes a contract concluded by the employee for a purpose which can be regarded as being within the scope of his professional activities?

The delivery is expected on 28 April 2022. M. Safjan will be the reporting judge.

Le juge du référé mesures utiles peut ordonner l’expulsion de son lieu d’hébergement d’un demandeur d’asile qui a été privé des conditions matérielles d’accueil et qui s’y maintient irrégulièrement. 

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The Grand Chamber of the Court of Justice delivered this week (29 March) its judgment in case C-132/20 (BN and alii), which is about the Rule of Law and Fair Trail requirements for Courts composed for part of judges originally appointed under totalitarian (Communists) regimes or by a body created on the ground of legislation later declared unconstitutional. The judgment is currently available in selected EU official languages only (and therefore not in English). Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version):

“1) L’article 19, paragraphe 1, second alinéa, TUE, l’article 47 de la charte des droits fondamentaux de l’Union européenne ainsi que l’article 7, paragraphes 1 et 2, de la directive 93/13/CEE du Conseil, du 5 avril 1993, concernant les clauses abusives dans les contrats conclus avec les consommateurs, doivent être interprétés en ce sens que la circonstance que la première nomination d’un juge dans un État membre à un tel poste ou sa nomination ultérieure dans une juridiction supérieure résulte d’une décision adoptée par un organe d’un régime non démocratique qu’a connu cet État membre avant son adhésion à l’Union européenne, y compris lorsque les nominations de ce juge dans des juridictions après que ce régime a pris fin étaient fondées notamment sur l’ancienneté acquise par ledit juge au cours de la période durant laquelle ledit régime était en place ou lorsqu’il a prêté le serment judiciaire uniquement lors de sa première nomination en tant que juge par un organe de ce même régime, n’est pas en soi de nature à susciter des doutes légitimes et sérieux, dans l’esprit des justiciables, quant à l’indépendance et à l’impartialité de ce même juge, ni, partant, à remettre en cause la qualité de tribunal indépendant et impartial, établi préalablement par la loi, d’une formation de jugement dans laquelle il siège.

2) L’article 19, paragraphe 1, second alinéa, TUE, l’article 47 de la charte des droits fondamentaux ainsi que l’article 7, paragraphes 1 et 2, de la directive 93/13 doivent être interprétés en ce sens qu’ils ne s’opposent pas à ce que soit qualifiée de tribunal indépendant et impartial, établi préalablement par la loi, une formation de jugement relevant d’une juridiction d’un État membre dans laquelle siège un juge dont la première nomination à un poste de juge ou sa nomination ultérieure dans une juridiction supérieure est intervenue soit à la suite de sa sélection comme candidat au poste de juge par un organe composé sur le fondement de dispositions législatives ultérieurement déclarées inconstitutionnelles par la juridiction constitutionnelle de cet État membre, soit à la suite de sa sélection comme candidat au poste de juge par un organe régulièrement composé mais au terme d’une procédure qui n’était ni transparente, ni publique, ni susceptible de faire l’objet d’un recours juridictionnel, dès lors que de telles irrégularités ne sont pas d’une nature et d’une gravité telles qu’elles créent un risque réel que d’autres branches du pouvoir, en particulier l’exécutif, puissent exercer un pouvoir discrétionnaire indu mettant en péril l’intégrité du résultat auquel conduit le processus de nomination et semant ainsi, dans l’esprit des justiciables, des doutes sérieux et légitimes quant à l’indépendance et à l’impartialité du juge concerné ».

Source: https://curia.europa.eu/juris/document/document.jsf;jsessionid=768367F474045381829A4693E86C265D?text=&docid=256761&pageIndex=0&doclang=fr&mode=req&dir=&occ=first&part=1&cid=6822307

The Court of Justice delivered last week (24 March 2022) its judgment in case C‑723/20 (Galapagos BidCo. Sàrl), which is about the Insolvency bis Regulation:

“Article 3(1) of Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings must be interpreted as meaning that the court of a Member State with which a request to open main insolvency proceedings has been lodged retains exclusive jurisdiction to open such proceedings where the centre of the debtor’s main interests is moved to another Member State after that request has been lodged, but before that court has delivered a decision on it. Consequently, in so far as that regulation is still applicable to that request, the court of another Member State with which another request is lodged subsequently for the same purpose cannot, in principle, declare that it has jurisdiction to open main insolvency proceedings until the first court has delivered its decision and declined jurisdiction”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=256469&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=6830618

The final programme of the conference on Regulation Brussels Ia: a standard for free circulation of judgments and mutual trust in the European Union (JUDGTRUST) 21 and 22 April 2022 at The Hague can be found here. A previous post introduced the themes, speakers, moderators and the coordinator of the conference.

I have just blogged on the Leuven public law blog, on the independent expert penal’s Ecocide proposal, here. I am reposting here for completeness’ purposes.

Geert.

On 31 March 2022, the EU Commission disclosed that it has been working on a proposal for a bilateral treaty to be concluded with the UK focused on recognition and enforcement of foreign judgments.

The purpose of the treaty would be to facilitate the circulation of judgments between the EU and the UK. It would not be a double convention and thus would not include rules governing the (direct) jurisdiction of the courts of the Contracting States.

Scope

At the present time, the material scope of the treaty would be limited to civil and commercial matters. It would not, therefore, extend to family law.

Jurisdiction of the Foreign Court

The (indirect) jurisdiction of the foreign court would be assessed by a single flexible text. Foreign courts would be considered to have jurisdiction if there was a meaningful connection between the foreign court and the dispute. The French presidency might have pushed for adopting this test, which is currently applied in the French common law of foreign judgments.

In addition, a provision of the treaty would clarify that the test would not be satisfied if the foreign court had retained jurisdiction on the basis of a number of exorbitant rules of jurisdiction that would be identified. This list seems to be clearly inspired for the red list of the Brussels instruments.

Public Policy Exception

The public policy clause is probably the most innovative provision of the treaty. It would be applicable in principle, unless “actual mutual trust” could be found to exist between the relevant EU Member State and the UK.

A provision would then identify cases where such “actual mutual trust” would be presumed.

No scrum, no trust

This would be the case for all judgments circulating between France and the UK, because France participates in the 6 Nations Rugby Championship (so-called “scrum proviso”).

The scrum proviso would apply between Italy and the UK for judgments rendered 32 days after Italy would win its first Championship or would win in Twickenham by more than 20 points.

More details on the draft treaty are available here.

Les demandes d’annulation d’une décision fixant le pays de renvoi d’un étranger faisant l’objet d’un arrêté d’expulsion sont exclues du champ d’application de la procédure spéciale devant le « juge des 72 heures ».

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Documents & Publications

On 9 March 2022, the Permanent Bureau announced the launch of the post-event publication of HCCH a|Bridged – Edition 2021, focused on contemporary issues relating to the application of the 2005 Choice of Court Convention, including the promotion of party autonomy. More information is available here.

On 9 March 2022, the Permanent Bureau published the results of the 2022 survey for arbitration institutions on the 2015 Principles on Choice of Law in International Commercial Contracts. More information is available here.

On 16 March 2022, the Permanent Bureau of the HCCH published an Information Note on the subject of “Children deprived of their family environment due to the armed conflict in Ukraine: Cross-border protection and intercountry adoption”. More information is available here.

Vacancies

The Permanent Bureau is currently welcoming applications for the position of Diplomat Lawyer (Secretary or First Secretary). The deadline for the submission of applications is 15 April 2022 (5.00 p.m. CEST). More information is available here.

Other

CEDEP’s Choice of Law online course is now open to the public, featuring an introductory lecture on the Legal Guide to Uniform Instruments in the Area of International Commercial Contracts, with a Focus on Sales, published year by the Secretariats of UNCITRAL, UNIDROIT and the HCCH. The lecture is available here, and more information about the course is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

May the 30-day time limit within which the defendant has to sent a statement of opposition against a European order for payment, set in Article 16(2) of the Regulation No 1896/2006 (the EOP Regulation), be interrupted through application of the national provision that, for a specified timeframe related to the pandemic of SARS-CoV-2, provides for such effect ?

This is, in essence, the question that Advocate General Collins addresses in his Opinion in the case Uniqa Versicherungen, C-18/21.

 

Legal context of the preliminary question

As summarized at point 2 of the Opinion, Article 16(2) of the EOP Regulation provides that a statement of opposition to a European order for payment shall be sent within 30 days of service of the order, in the absence of which that order becomes enforceable against the defendant.

A defendant who does not lodge a statement of opposition within that 30-day time limit may, in a number of exceptional cases, apply for a review of the order pursuant to Article 20 of the Regulation.

According to its Article 26, procedural issues not specifically dealt with in that Regulation are governed by national law.

Against this background, as the referring court in the present case, the Austrian Supreme Court (Oberster Gerichtshof), puts it in its request for a preliminary ruling, some authors take the view that Article 20 of Regulation takes account (in the abstract) of situations such as the COVID-19 crisis and, for such situations, has provided for the possibility to have European orders for payment reviewed and, if necessary, declared null and void. According to that view, recourse to national law is therefore not permissible in view of Article 20, which was created precisely to address cases of force majeure.

The opposing view, also reported by the referring court, is based on the interpretation according to which the interruption of the time limit set in Article 16(2) of the EOP Regulation has remained unregulated by EU law, with the result that – pursuant to Article 26 of the Regulation – recourse is to be done to national law.

 

Preliminary question

All this prompted the Austrian court to refer a following preliminary question to the Court:

Are Articles 20 and 26 of the EOP Regulation to be interpreted as meaning that those provisions preclude an interruption of the 30-day period for lodging a statement of opposition to a European order for payment, as provided for in Article 16(2) of that Regulation, by Paragraph 1(1) of the Austrian Law on accompanying measures for COVID-19 in the administration of justice, pursuant to which all procedural periods in proceedings in civil cases for which the event triggering the period occurs after 21 March 2020 or which have not yet expired by that date are to be interrupted until the end of 30 April 2020 and are to begin to run anew from 1 May 2020?

 

Assessment of the preliminary question provided for in the Opinion

In the first place, in his overview of the EOP Regulation, AG Collins convincingly demonstrates that the review procedure under Article 20 of the Regulation does not purport to be a substitute for the opposition procedure under Article 16 (see, for detailed argumentation, points 31 et seq.).

Building upon that demonstration, in the second place, he addresses the legal issue at hand and presents a series of arguments that lead him to the conclusion according to which the EOP Regulation “[does] not preclude the adoption, in the circumstances of the COVID-19 pandemic, of a national measure that interrupted the 30-day time limit for lodging a statement of opposition to a European order for payment contained in Article 16(2) thereof” (point 49).

In particular, AG Collins contends, firstly, that the EOP Regulation “lays down minimum standards to ensure the recognition and enforcement of an order adopted in another Member State without the necessity to bring any prior intermediate proceedings in the Member State of enforcement” and, as a consequence, “a general interruption of time limits due to the COVID-19 pandemic is a procedural issue not dealt with in [the] Regulation” (point 42).

He indicates, secondly, that “national procedural measures adopted in accordance with Article 26 of [the EOP Regulation] may not […] undermine the objectives pursued by that regulation” (point 43).

Benchmarking the national measure related to COVID-19 against that requirement, he explains that this measure does not undermine the objectives of the Regulation “since a general interruption of time limits does not add another procedural step to the recognition and enforcement of a European order for payment” and, as a consequence, “the uniform mechanism established by [the EOP Regulation] is unaltered” (point 45).

Thirdly, AG Collins backs his findings by the considerations relating to Article 47 of the Charter, with a further reference to the case law of the ECtHR (see footnote 35). In essence, refusing to interrupt the time limit for sending the opposition against a European order for payment and, thus, ignoring the impact of the pandemic on the practical possibility to sent that statement could run against the rights of the defendant (points 46 and 47).

The Opinion is available here.

Procureur général près la cour d'appel d'Angers
DFON
Selon l’avocat général Rantos, l’autorité judiciaire d’exécution ne peut refuser d’exécuter un mandat d’arrêt européen au motif que certains des différents faits réprimés en tant qu’infraction unique dans l’État membre d’émission ne sont pas passibles d’une sanction pénale dans l’État membre d’exécution