Agrégateur de flux

 

The second thematic volume in the series Studies in Private International Law – Asia looks into direct jurisdiction, that is, the situations in which the courts of 15 key Asian states (Mainland China, Hong Kong, Taiwan, Japan, South Korea, Malaysia, Singapore, Thailand, Vietnam, Cambodia, Myanmar, the Philippines, Indonesia, Sri Lanka, and India) are prepared to hear a case involving cross-border elements. For instance, where parties are habitually resident abroad and a dispute has only some, little or no connection with an Asian state, will the courts of that state accept jurisdiction and hear the case and (if so) on what conditions? More specifically, the book’s chapters explore the circumstances in which different Asian states assume or decline jurisdiction not just in commercial matters, but also in other types of action (such as family, consumer and employment disputes).

The Introduction defines terminology and identifies similarities in the approaches to direct jurisdiction taken by the 15 Asian states in civil and commercial litigation. Taking its cue from this, the Conclusion assesses whether there should be a multilateral convention or soft law instrument articulating principles of direct jurisdiction for Asia. The Conclusion also discusses possible trajectories that Asian states may be taking in respect of direct jurisdiction in light of the COVID-19 pandemic and the political tensions currently besetting the world. The book suggests that enacting suitable rules of direct jurisdiction requires an Asian state to strike a delicate balance between affording certainty and protecting its nationals. At heart, direct jurisdiction involves sometimes difficult policy considerations and is not just about drawing up lists of jurisdictional grounds and exceptions to them.

For further information please visit: https://www.bloomsbury.com/uk/direct-jurisdiction-9781509936427/

 

The University of Udine, in Italy, will host on 16 and 17 September an on-line conference under the title European Union and Third Countries: Issues on Jurisdiction and Recognition of Foreign Judgments.

Some of the presentations will be in English, others in Italian.

Speakers include Elisabetta Bergamini (University of Udine), Francesco Deana (University of Udine), Martin Gebauer (Eberhard Karls Universität Tübingen), Peter Kindler (LMU Munich), Fabrizio Marongiu Buonaiuti (Univ. of Macerata), Paolo Mengozzi (former Advocate General at the CJEU), Luca Penasa (University of Udine), Marcello Stella (University of Naples “Federico II”), Faidon Varesis (University of Oxford / Ethnikon kai Kapodistriakon Panepistimion Athinon) and Wolfgang Wurmnest (University of Augsburg).

The detailed programme and the registration form are available here.

This post was contributed by Vincent Richard, who practices with Wurth Kinsch Olinger in Luxembourg.

On 9 September 2021, the Court of Justice delivered its judgment in cases C-208/20 and C-256/20 Toplofikatsia Sofia e.a. on applying the Evidence and the Brussels I bis Regulations when the domicile of the defendant is unknown. Confronted once again with the recurring issue of defendants who moved away without leaving an address, the CJEU confirms that EU law is of no help at present.

Facts of the Cases

The district court of Sofia submitted two preliminary rulings in May and June 2020 related to four separate but similar cases dealing with classic debt recovery procedures. The first one is a civil claim aimed at recovering debts from an energy supply contract. The three others are payment order procedures.

In all cases, the court were not able serve the judicial documents to the debtors because they were not residing at the addresses they had previously indicated on the Bulgarian population register. When officers of the court tried to serve the statement of claim or the payment orders, they were informed by neighbours, relatives or building managers that the debtors did not reside at the address any longer and lived in France or Germany.

Under national Bulgarian law, when defendants cannot be found, Bulgarian courts are obliged to conduct further research in population and employer registers. None of these registers allow a Bulgarian citizen to register a specific address abroad. Therefore, the court is unable to reach Bulgarian citizens who have exercised their right to free movement and compel them to appear before it. Moreover, Bulgarian law draws severe consequences from registration in the population register. The defendant is deemed domiciled at the registered address except if the court receives direct evidence that his habitual residence is abroad. Indirect evidence such as information provided by neighbours or relatives is insufficient to establish such a habitual residence. Consequently, the court is competent to issue an order for payment that may become res judicata in the absence of opposition as long as the order is served to any person having the addressee’s registered address.

In doubt regarding the compatibility of these harsh consequences with European law, the district court of Sofia asked several questions to the CJEU.

Seeking the Address of a Defendant is not Taking Evidence

In its first question, the Bulgarian court essentially asks whether it should not be obliged under European law to conduct the same kind of investigation into the debtor’s actual residence as that which it is obliged to conduct if the debtor is domiciled in Bulgaria. The question is surprisingly based not only on the right to freedom of movement (Article 20(2) TFEU) read in conjunction with the right to a fair trial (Article 47 of the Charter), the principle of non-discrimination and the principle of equivalence but also on article 1 of the Evidence Regulation.

Regarding this last instrument, the answer of the court is quite logical. The CJEU declares that seeking the address of a person whom a judicial decision is to be served does not constitute taking evidence within the meaning of Article 1(1)(a) of the Evidence Regulation, which is therefore not applicable to the problem at hand.

However, the CJEU’s answer to the first part of the question is a rather puzzling. The court declares that “it is in no way apparent” from the order for reference that the disputes have any connecting factor with the aforementioned provisions. It declares the first question inadmissible. In other words, for the CJEU, the fact that a procedural rule applies differently to Bulgarian citizens habitually resident in Bulgaria and Bulgarian citizens habitually resident in another Member State, to the detriment of the latter, has no link with the freedom of movement, the right to a fair trial, the principle of non-discrimination or the principle of equivalence. One may admit that the question is not straightforward, but such an answer by the CJEU shows a lack of imagination and cooperation that is somewhat worrying.

The answer is all the more disappointing that it was given only a few months after the publication of the recast of the Service Regulation that will apply from 1 July 2022.  These cases constitute perfect examples of the kind of situation that the new Article 7 of Regulation 2020/1784 aims to address. It will oblige Member States to assist in determining the address of a person to be served with legal documents. The scope of application of the Regulation has been changed accordingly so that article 7 is applicable when the defendant’s address is unknown. In the present cases, article 7 would provide a clearly defined avenue for the Bulgarian court to ask the French and the German authorities about the defendants’ whereabouts.

Brussels I bis and the Concept of Domicile

The other questions of the Bulgarian court concerned Article 5(1) of the Brussels I bis Regulation, and they aimed to question the formalistic approach adopted by Bulgarian law regarding debtor’s domicile in payment order procedures. From the preliminary ruling, it seems that a defendant is deemed to be domiciled in Bulgaria if he is registered there except if there is clear and positive evidence that his habitual residence is situated abroad. This evidence may only be submitted by the claimant because the court may not investigate this point. The Bulgarian court was thus unsure that it might declare itself competent under the Brussels I bis Regulation based on this interpretation of the notion of domicile even though the concept of domicile is governed by national law according to article 62 of the Regulation.

The Court of Justice remains stoic and states that there is no need to answer the question because the Bulgarian court has already issued the payment orders. It had therefore necessarily recognised that it had jurisdiction before issuing them. Regarding the declaration of enforceability or the annulment of the payment orders, the CJEU considers that this also has no connection with Article 5(1) of Regulation 1215/2012, which does not deal with the conditions under which judicial decisions become enforceable. The fact that jurisdiction is only based on prima facie evidence or that the court could probably annul a payment order if it realises that it was not competent to issue it in the first place is never discussed. There is little doubt that the Bulgarian court was expecting a more constructive answer.

La condamnation pour apologie de crime de l’oncle d’un enfant lui ayant offert un tee-shirt portant les mentions « Jihad, né le 11 septembre » et « Je suis une bombe », reposant sur des motifs pertinents et suffisants et répondant à un besoin social impérieux, n’a pas enfreint l’article 10 de la Convention.  

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Flowers & Ors v Centro Medico Salus Baleares SL & Anor [2021] EWHC 2437 (QB) is a case packed with jurisdictional complication under Brussels Ia. In early February 2020, Mrs Yvonne Flowers, then 67 years of age, was admitted on an emergency basis to a private hospital facility in Benidorm, Spain, with significant back discomfort and pain arising from spinal disc herniation. Nine days later she died in the same hospital from multiple organ failure having contracted sepsis. T

The principal issues at stake concern the level of proof required for a jurisdictional challenge; determination of domicile; the existence of a consumer contract and who can all avail themselves of the consequential jurisdictional rules; and when a matter ‘relates to’ insurance’.

Starting with the latter, Wood J stayed judgment on much of the issues until the CJEU will have ruled in C-708/20 Betty Tattersall,  on which James Beeton reports here and which engages similar issues as CJEU Cole, settled before judgment, and Hutchinson. Betty Tattersall will be a crucial judgment.

The level of proof for jurisdictional challenges was discussed at an extraordinary length in Brownlie, and the SC’s ruling is applied here as detailed in the judgment.

The claimants’ domicile is not ordinarily relevant under BIa but it is for the consumer and insurance title and its determination is subject to national law. Seeing as the judge finds a good arguable case that domicile is indeed established in England, no consideration of Spanish domicile rules is necessary.

The ‘newer’ elements of the case are first of all the existence of a consumer contract. There are 3 issues [67]: (i) Was there a contract between the late Mrs Flowers and Centro Medico? (ii) If there was, was it a consumer contract within the meaning of section 4 BIa? (iii) Does the Claimant’s claim against Centro Medico fall outside the scope of the consumer contracts section because it has not been brought by the “consumer” within the meaning of the section?

Ia Committeri is relied on and the judge has little hesitation [115] to find the existence of a contract. (Much about that has been written in German scholarship in the specific area of medical services).

Surprisingly though, the question whether there is a contract which meets with the A17 requirements is brushed over when it comes to the question whether the hospital directs its activities to England and Wales, which the court established as the relevant  domicile. Particularly in the context of emergency care, this does not seem to be a given.

The judge does enquire as to whether the claim which can no longer be pursued because the contracting (and thus weaker) party is now deceased, can be picked up by heirs in the same jurisdictional gateway and pursued on the basis of the domicile of either the deceased or the heirs. Schrems and KABEG are discussed, however unlike the first instance judge in Bonnie Lackey, Justice Wood [126] adopts a much less wide approach. There must be scope for a lot more discussion on this, for the scenario in Bonnie Lackey, of which I was critical, is quite different from that of the heirs who step in the  litigation shoes of the deceased.

Geert.

EU Private international law, 3rd ed. 2021, big chunks of Chapter 2.

Flowers v CMS
Jurisdiction, BIa, 'domicile', consumer section (whether there was consumer contract, and who needs to bring the claim), matters 'relating to' insurance
Latter element stayed pending CJEU Betty Tattersall. Other gateways prima facie acceptedhttps://t.co/K3YmPtjYDY

— Geert Van Calster (@GAVClaw) September 3, 2021

On 23 and 24 September 2021, the GLaw Research Network (Maastricht University) will host an “hybrid” workshop on Article 47 of the EU Charter and effective judicial protection: The National Courts’ perspective.

This will be the second part of a broader research on effective judicial protection in the EU legal order. The first part focused on the Court of Justice’s perspective and led to an online workshop last April (reported here). The second workshop will adopt a comparative law approach within the national legal orders of the EU Member States.

The principle of effective judicial protection is one of the cornerstones of the EU legal order. Mentioned by the Court of Justice for the first time in the 1980s, and originally emanating from Articles 6 and 13 ECHR, this principle had a pivotal role in ensuring access to adequate remedies to protect the rights deriving from Union law. Since its inception, this principle was linked also to the protection of the rule of law, one of the founding values of the EU. Effective judicial protection is therefore one of the facets of the EU constitutional identity. Following the entry into force of Lisbon Treaty, this principle has been constitutionalised in Article 19 TEU and Article 47 of the EU Charter of Fundamental Rights, the latter laying down the right to an effective remedy and to a fair trial. Currently, Article 47 of the EU Charter is the most invoked EU Charter provision before national and EU courts.

The workshop will offer a comparative overview of the national case law applying Article 47 Charter and the principle of effective judicial protection. The speakers will collectively evaluate the systemic impact of Article 47, its interplay with other domestic and European provisions guaranteeing effective judicial protection, as well as the level of convergence (or divergence) in the national courts’ approaches.

The papers presented at the workshop will be included in the second volume of the book project ‘Article 47 of the EU Charter and effective judicial protection’ led by Mariolina Eliantonio, Giulia Gentile and Matteo Bonelli, all members of the GLaw-Net Research Network.

The full program is available here and registration is open here.

This Thursday, the Court of Justice delivered its judgment in the case UM, C-277/20, where it clarifies whether a donation mortis causa may fall within the scope of the notion of “agreement as to succession” in the sense of the Succession Regulation.

The request for a preliminary ruling in this case arises out of proceedings in Austria on the inscription in the land registry of the property right to real estate situated in that Member State. The requested inscription is supposed to be made on the basis of a contract of donation mortis causa in respect to that real estate, entered into between two German nationals habitually resident in Germany. Prior to the request for the inscription, the succession proceedings have been opened before a German court for the last place of residence of the donor.

Before the Austrian courts, the request for the inscription of the propriety right have been already rejected by two instances and ultimately the Oberster Gerichtshof referred to the Court the preliminary questions that read as follows:

Is Article 3(1)(b) of [the Succession Regulation] to be interpreted as meaning that a contract of donation mortis causa entered into between two German nationals habitually resident in Germany in respect of real estate located in Austria, granting the donee a right having the character of an obligation against the estate to registration of his title after the donor’s death pursuant to that contract and the donor’s death certificate, that is without the intervention of the probate court, is an agreement as to succession within the meaning of that provision?

If the answer to the above question is in the affirmative: Is Article 83(2) of [The Succession Regulation] to be interpreted as meaning that it also regulates the effect of a choice of applicable law made before 17 August 2015 for a contract of donation mortis causa that is to be qualified as an agreement as to succession within the meaning of Article 3(1)(b) of [the Succession Regulation]?

In his Opinion presented this July, AG Richard de la Tour considered that Article 3(1)(b) of the Succession Regulation must be interpreted to the effect that the notion of “agreement as to succession” includes donation contracts inter vivos, by which, in favor of the donee, the transfer of the ownership of one or several assets even only partially accounting for the hereditary estate of the donor does not take place until the death of the donor.

In its judgments, the Court also pronounces itself in favour of the interpretation according to which a contract of donation mortis causa is to be qualified as an “agreement as to succession”.

The reasoning of the Court commences with the juxtaposition of exclusion from the scope of the application of the Succession Regulation provided for in its Article 1(2)(g) [“shall be excluded (…) property rights (…) created or transferred otherwise than by succession, for instance by way of gifts”], on the one hand, and definition of the notion of “agreement as to succession” in the sense of Article 3(1)(b) of the Succession Regulation [“an agreement resulting from mutual wills, which, with or without consideration, creates, modifies or terminates rights to the future estate or estates (…)], on the other hand (paragraph 27).

The Court stresses then the importance of autonomous and uniform interpretation of the notions of the Succession Regulation (paragraph 29) and contends that the very wording of the definition of the notion of “agreement as to succession” indicates that this notion covers also transfers relating to future estates (paragraph 30).

By contrast, the second preliminary question is answered in the negative. For the Court, as nothing indicates that a choice of law applicable have been made to succession as a whole, Article 83(2) of the Succession Regulation is not applicable to the case at hand. As such, the choice made solely with regards to the agreement as to succession is not governed by Article 83(2) (paragraph 39).

The judgment can be found here (in German and French so far).

AG Saugmandsgaard Øe observes in his Opinion presented today in the case HRVATSKE ŠUME, C-242/20, the Court of Justice has already faced requests for a preliminary ruling where arose a question on qualification of an action for unjust enrichment for the purposes of the Brussels I Regulation. He notes that no conclusive finding has been made so far as to its qualification as a “matter relating to tort, delict or quasi-delict” in the sense of Article 5(3) of the Regulation (point 4). By contrast, the present case is supposed to create an opportunity to provide a definitive conclusion to the jurisprudential saga in question.

It is noteworthy that the case itself presents a nuance: the unjust enrichment is said to have occurred in enforcement proceedings which were carried out, although they should not have been, and now reimbursement of the amount which was unjustly levied in enforcement proceeding is being sought before the Croatian courts. The nuance is addressed in the second preliminary question.

At the request of the Court, the Opinion does, however, elaborate only on the first preliminary question that reads as follows:

Do actions for recovery of sums unduly paid by way of unjust enrichment fall within the basic jurisdiction established in the [Brussels I Regulation] in respect of “quasi-delicts” since Article 5(3) thereof provides inter alia: “A person domiciled in a Member State may, in another Member State, be sued … in matters relating to … quasi-delict, in the courts for the place where the harmful event occurred or may occur”?

In his Opinion, AG Saugmandsgaard Øe proposes to take a step back and view the preliminary question in a broader perspective. For him, it is necessary to determine, in the first place, whether an action for unjust enrichment falls within the scope of Article 5(1) of the Brussels I Regulation and, only in the negative, in the second place, whether it fall within the scope of Article 5(3) of the Regulation (point 26). He established therefore an order of preference when it comes to the contract/tort distinction under the Regulation.

Having adopted that approach, he concludes that an action for unjust enrichment is not a “matter relating to a contract” in the sense of Article 5(1) of the Brussels I Regulation, save where it is closely connected with a preexisting (or alleged to exist) contractual relationship (points 44-52). Nor it is a “matter relating to tort, delict or quasi-delict” within the meaning of Article 5(3) of the Regulation (point 79).

The Opinion contains an in-depth discussion on the parallels with the Rome I/Rome II Regulations and, in this regard, the outcome of the reasoning followed by AG Saugmandsgaard Øe may bring to mind the one that AG Bobek proposed in the context of actio pauliana in his Opinion delivered in the case Feniks, C-337/17.

The Opinion of AG Saugmandsgaard Øe is available here (no English version so far).

At least from the perspective of private international law, this Thursday can easily go down in history as one of the busiest days in the Court of Justice agenda. Its complete outline can be found here, due to courtesy of Marta Requejo Isidro. Stay tuned also for our next updates on the cases of this morning.

The present post concerns the Opinion presented by AG Rantos in the case TOTO, C-581/20. At the request of the Court, the analysis provided for in the Opinion is limited to the second preliminary question on the interpretation of Article 35 of the Brussels I bis Regulation. The second question reads as follows:

After the right to make an application for provisional/protective measures has been exercised and the court having jurisdiction as to the substance of the matter has already ruled on that application, is the court seised of an application for interim relief on the same basis and under Article 35 of [the Brussels I bis Regulation] to be regarded as not having jurisdiction from the point at which evidence is produced that the court having jurisdiction as to the substance of the matter has given a ruling on that application?

In essence, the question seeks to establish whether a Bulgarian court not having jurisdiction as to the substance of the matter is precluded from pronouncing provisional/protective measures under Article 35 of the Brussels I bis Regulation in a situation where a Polish court having jurisdiction as to the substance of the matter has already given a ruling on an application for identical provisional/protective measures and rejected the application.

In brief, AG Rantos argues that in a situation described in the preliminary question the court not having jurisdiction as to the substance of the matter should not pronounce the provisional/protective measures.

In general terms, the Opinion contends that the rules on litispendence provided for in Article 29 of the Brussels I bis Regulation do apply in the context of proceedings for provisional/protective measures. Such finding of a general nature seems to suggest that the court subsequently seized under Article 35 of the Regulation with an identical application for provisional/protective measures should not give a ruling on that application (point 50).

The Opinion then goes on to elaborate on the more specific elements of the case at hand which seemed to inspire the second preliminary question: firstly, the impact of the choice of court clause in favour of the Polish courts on the applicability of Article 35 of the Regulation (in other terms: whether the Polish courts have exclusive jurisdiction also as to the provisional/protective measures); secondly, the actual connection between the measures sought and the territory of Bulgaria (the question being left open for the referring court to asses, point 74); thirdly, the relevance, before the Bulgarian court, of the Polish court decision refusing the provisional/protective measures (point 54).

Concerning the last element, AG Rantos observes that it is not clear whether the ruling of a Polish court refusing to grant provisional/protective measures is final or not (point 76). Thus, he elaborates on these two different hypothesis. In essence, according to the Opinion, the court subsequently seized should not give ruling on the application for provisional/protective measures [either because in a mutual trust oriented manner it should refrain from doing so because such ruling would be irreconcilable with a previous definitive ruling handed down by a Polish court (point 79) or – in the absence of such definitive ruling – because the rules on litispendence require the court subsequently seized to decline jurisdiction in favour of court previously seized (point 88)].

The Opinion is available here (no English version so far).

On Friday 17 September 2021, the Institute for Comparative Law, Conflict of Laws and International Business Law of Heidelberg University (Prof. Dr. Dr. h.c. Thomas Pfeiffer) will host the EFFORTS German Exchange Seminar. This half-day online conference is held within the framework of the project “EFFORTS – Towards more effective enforcement of claims in civil and commercial matters within the EU”, funded by the European Commission and conducted by the University of Milan (coord.), the Max Planck Institute Luxembourg for Procedural Law, Heidelberg University, the Free University of Brussels, the University of Zagreb, and the University of Vilnius.

The program for the German Exchange Seminar is available here (PDF, in German). Participation is free of charge. Participants are kindly requested to pre-register by sending an email to sekretariat.pfeiffer@ipr.uni-heidelberg.de.

The EFFORTS-project tackles in particular the European Enforcement Order Regulation, the European Payment Order Regulation, the European Small Claims Regulations and the European Account Preservation Order Regulation. Ultimately, it aims to assess the functioning and the effectiveness of cross-border enforcement within the EU. More information on EFFORTS and its research outputs can be found on the project website and in various newsletters previously posted on conflictoflaws.net here, here, and here.

This project was funded by the European Union’s Justice Programme (2014-2020). The content of this study represents the views of the authors only and is their sole responsibility. The European Commission does not accept any responsibility for use that may be made of the information it contains.

Project JUST-JCOO-AG-2019-881802
With financial support from the Civil Justice Programme of the European Union

Bundesamt für Fremdenwesen und Asyl (Demande ultérieure de protection internationale )
Espace de liberté, sécurité et justice
Le droit de l’Union s’oppose à ce qu’une demande ultérieure de protection internationale soit rejetée comme irrecevable au seul motif qu’elle est fondée sur des faits qui existaient déjà lors de la procédure relative à la première demande

Comité Interprofessionnel du Vin de Champagne
Agriculture
La Cour précise les conditions de protection dont bénéficient les produits couverts par une AOP prévues par le règlement portant organisation commune des marchés des produits agricoles

The Faculty of Law at Ozyegin University is organizing its first online Private International Law Symposium on the theme of “Current Issues in Private International Law – MENA & EU”.

The symposium aims to bring together MENA and EU scholars working in the field of private international law field. The symposium is to be held on 19 November 2021.

The organizers are pleased to invite interested persons to submit abstracts of papers relating to the themes of the symposium by 20 September 2021.

All necessary details about the event can be found here: https://events.ozyegin.edu.tr/tr?myozu=1#/0/detail/17152/current-issues-in-private-international-law-mena-eu-call-for-papers

Any inquiries should be directed to Mrs. Jocelyne Alayan at jocelyne.alayan@ozyegin.edu.trseminar_pil@ub.ac.id.

The Permanent Bureau of the Hague Conference on Private International Law is seeking at least three interns to work on the following Conventions and projects during the first half of 2022:

• the 2000 Protection of Adults Convention and the 2007 Child Support Convention and Protocol
• the 1993 Intercountry Adoption Convention , and the Parentage / Surrogacy Project
• the 1980 Child Abduction Convention, the 1996 Child Protection Convention, the Family Agreements Involving Children Project
• the 1961 Form of Wills Convention and the 1970 Divorce Convention
• the 1961 Apostille Convention
• the Tourists and Visitors (Online Dispute Resolution) Project
• the 1985 Trusts Convention, the 2006 Securities Convention and the Digital Economy (inc. DLT) Project
• the 2005 Choice of Court Convention, the 2019 Judgments Convention, the Jurisdiction Project, the 2015 Choice of Law Principles, the 1965 Service Convention, the 1970 Evidence Convention and the 1980 Access to Justice Convention.

Applications will be accepted until 18:00 hours (CEST) on 24 September 2021.

See here for more details.

Par un arrêt du 15 juillet 2021, la Cour de justice s’arrête sur les conditions d’application de l’article 8 du règlement « Rome I » du 17 juin 2008, qui permet aux parties à un contrat de travail de choisir, dans certaines limites, la loi applicable à la relation de travail.

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Licenciement - Renvoi devant la CJUE