Agrégateur de flux

by Aline Beltrame de Moura, Professor at the Federal University of Santa Catarina, in Brazil

On March 15th, 2021, at 5 pm (PT time – GMT 0), the Faculty of Law of the University of Lisbon will hold the conference “EU-Latin America trade and investment relations”. The conference is part of the Jean Monnet Network project “Building Rights and Developing Knowledge between European Union and Latin America – BRIDGE”.

Among the participants the Minister of State and Foreign Affairs of Portugal, the President of the European Parliament’s Delegation for relations with Brazil; the EU Ambassador to Brazil, the Undersecretary for Foreign Affairs of Mexico and a former Secretary of the Tribunal Permanente de Revisión del Mercosur.

A Workshop about the EU-Latin American trade and investment relations, will precede the conference (at 1 pm – PT time – GMT 0), with the presentation of the selected scientific papers from professors and researchers of nine different countries universities.

The Seminar will be held in Portuguese and Spanish, via zoom. For more information, click here.

by Felix M. Wilke, University of Bayreuth, Germany

Most readers of this blog will be well aware that, according to the ECJ, the “place of performance” of a contractual obligation within the meaning of Article 7(1)(a) Brussels Ibis is not a concept to be understood independently from national law. Rather, in order to determine this place, one must apply the substantive law designated by the forum’s conflict-of-law rules. The ECJ has held so for decades, starting with Tessili (Case C-12/76, ECLI:EU:C:1976:133, at 13). Recent decisions by the ECJ have led me to doubt that Tessili still is lex terrae Europaea, at least as far as contracts with some relation to a right in rem in immovable property are concerned. (And I am not alone: Just today, Marion Ho-Dac analyses this issue as well over at the EAPIL Blog.)

The applicability of Article 7(1)(a) Brussels Ibis in the context of co-ownership agreements

To begin with, it is necessary to establish what Article 7(1)(a) Brussels Ibis has to do with co-ownership agreements. Article 24(1) Brussels Ibis might appear to be the more natural jurisdictional rule in this context. But it does not suffice that a case has some connection to property law. Article 24(1) Brussels Ibis only applies if the action is based on a right in rem. The Court has been characterising rights as rights in rem independently from national law (a point I would agree with). The main feature of a right in rem is its effect erga omnes (Wirkung gegenüber jedermann; effet à l’egard de tous – see Case C-292/93, ECLI:EU:C:1994:241– Lieber, at 14). Thus, Art. 24(1) Brussels Ibis will not apply to a dispute concerning rights whose effect is limited to other co-owners and/or the association of co-owners. Rather, Article 7(1)(a) Brussels Ibis comes into play. The Court considers the corresponding obligations as freely consented to, as they ultimately arise from the voluntary acquisition of property, regardless of the fact that the resulting membership in the association of co-owners is prescribed by law (Case C-25/18, ECLI:EU:C:2019:376 – Kerr, at 27). This applies, e.g., to a co-owner’s payment obligation arising from a decision taken by the general meeting of co-owners.

From Schmidt to Ellmes Property

Kerr only concerned the question of whether Art. 7(1)(a) Brussels Ibis applies to such disputes at all. The Court had reasoned (to my mind quite correctly) in Schmidt (Case C-417/15, ECLI:EU:C:2016:881, at 39) earlier that an action based on the alleged invalidity of a contractual obligation for the conveyance of the ownership of immovable property is no matter falling under Article 24(1) Brussels Ibis. It then had gone beyond the question referred to it and stated that Article 7(1)(a) Brussels Ibis applies, noting that this contractual obligation would have to be performed in Austria (being the location of the immovable property in question). Ellmes Property (Case C-433/19, ECLI:EU:C:2020:900, reported on this blog here and here) now combines the two strands from Kerr and Schmidt. This recent case again concerns a dispute in the context of a co-ownership agreement. One co-owner sued the other for an alleged contravention of the designated use of the respective apartment building (i.e., letting an apartment out to tourists). If this designated use does not have effect erga omnes, e.g. cannot be relied on against a tenant, the CJEU would apply Article 7(1)(a) Brussels Ibis. But once again, the Court does not stop there. It goes on to assert that “[The obligation to adhere to the designated use] relates to the actual use of such property and must be performed in the place in which it is situated.” (at 44).

A Tessili-shaped hole in the Court’s reasoning

In other words, the Court seems at least twice to have determined the place of performance itself, without reference to the applicable law – even though there does not seem to be any pertinent rule of substantive law that the Court would have been competent to interpret. A reference to Tessili or any decision made in its wake is missing from both Schmidt and Ellmes Property. (In his Opinion on Ellmes Property, Advocate General Szpunar did not fail to mention Tessili, by the way.) And in Ellmes Property, the Court proceeds to argue that this very place of performance makes sense in light of the goals of Brussels Ibis and its Article 7 in particular. The Court thus uses jurisdictional arguments for a question supposedly subject to considerations of substantive law.

“Here’s your answer, but please make sure it is correct.”

Admittedly, the statement in Schmidt was made obiter, and the Court locates the place of performance only “subject to verification by the referring court” in Ellmes Property. The latter might be a veiled reference to Tessili. But why not make it explicit? Why not at least refer to the Advocate General’s opinion (also) in this regard? And why the strange choice of the word “verification” for question of law? But the Court has not expressly overruled Tessili. Furthermore, I do not want to believe that it has simply overlooked such an important strand of its case-law presented to it on a silver platter by the Advocate-General, one arguably enshrined in the structure of Article 7(1) Brussels Ibis, anyway. Hence, I (unlike Marion Ho-Dac, although I certainly agree with her as to the low quality of the judgment in Ellmes Property) still hesitate to conclude that Tessili must be disregarded from now on. This assumption, however, leads to one further odd result. While the referring court that had asked the ECJ for clarification of the place of performance does receive a concrete answer, it now has to check whether this answer is actually correct. Granted, it is not uncommon for the Court to assign certain homework to the referring court. Yet here, the former employed some new standard and tasked the latter to check whether the result holds up if one applies the old standard.  I fail to see the point of this exchange between the national court and the Court of Justice.

(A full case note of mine (in German) on Ellmes Property, touching on this issue as well as others, is forthcoming in the Zeitschrift für das Privatrecht der Europäischen Union (GPR).)

VG Bild-Kunst
Liberté d'établissement
Lorsque le titulaire du droit d’auteur a adopté ou imposé des mesures de restriction contre la transclusion (framing), l’incorporation d’une œuvre dans une page Internet d’un tiers, par cette technique, constitue une mise à la disposition de cette œuvre à un public nouveau

Radiotelevizija Slovenija (Période d’astreinte dans un lieu reculé)
SOPO
Une période de garde sous régime d’astreinte ne constitue, dans son intégralité, du temps de travail que lorsque les contraintes imposées au travailleur affectent très significativement sa faculté de gérer, au cours de cette période, son temps libre

Gilles Cuniberti  discusses Koch Films v Ouragan Films et al at the French Supreme Court, a case which as also signalled by Hélene Péroz. The judgment is an important one for it signals the continuing uncertainty of interpreting ‘provisional’ under Brussels Ia. In its earlier case-law (Ergo; Haras de Coudrettes) the SC took a more relaxed approach than a strict reading of CJEU St.Paul Dairy might suggest. Unlike Gilles I do not think the SC’s judgment here necessarily signals a return to orthodoxy. In rebuking the Court of Appeal for having too readily dismissed the measures as not being provisional, and in demanding it review whether the measures might not (also) be meant to preserve evidence, it could be said that the opposite might be true: as long as the measure at least in part preserves evidence, other motives do not endanger its provisional character.

En se déterminant ainsi, par une affirmation générale, sans rechercher si ces mesures, qui visaient à obtenir la communication de documents en possession des parties adverses, n’avaient pas pour objet de prémunir la société Koch contre un risque de dépérissement d’éléments de preuve dont la conservation pouvait commander la solution du litige, la cour d’appel a privé sa décision de base légale au regard des textes susvisés [7]

One will have to await future direction.

Geert.

EU Private International Law 3rd ed 2021, 2.559.

 

French SC holds that application by DE film producer, for discovery (involving bailiff) of ICT data from French corporation holding exclusive distribution rights, in spite of choice of court in favour of DE court, may be included in A35 BIa provisional or protective measures. https://t.co/XOxhdwDot6

— Geert Van Calster (@GAVClaw) January 27, 2021

Gilles Cuniberti on French SC in Koch Films v Ouragan Films et al
Provisional measures under BIa
Compare its earlier case-law in Ergo, and Haras de Coudrettes https://t.co/pCIypgvASu which, Gilles argues, has been overruled. https://t.co/WgaZaXhOnW

— Geert Van Calster (@GAVClaw) March 8, 2021

On 11 November 2020, the Court of justice issued a judgment on jurisdiction under Brussels I bis Regulation in respect of a dispute on the use of immovable property subject to co-ownership (Case C-433/19, Ellmes Property Services, already reported here and here). Both article 24, point 1, on rights in rem matters and article 7, point 1, a) on contractual matters were submitted to the interpretation of the Court.

Regarding the first provision, the Court leads a classical and very brief analysis of the jurisdictional rule, leaning on the national judge to implement it in casu. On the contrary, the interpretation of the second provision deviates from the settled caselaw and the Court is more prescriptive towards the referring judge.

All in all, the reading of the judgment gives an impression of inconsistency and unfinished work.

Facts and Issues at Stake

 A British company is co-owner of an apartment in Austria, which is designated for residential purposes. However, it was using that apartment for touristic purposes by regularly renting it out to holidaymakers. Another co-owner, SP, sought the cessation of that “touristic use” on the ground that it is contrary to the designated use of that building and, therefore, it interferes with his right of co-ownership.

The question of international jurisdiction arose. SP seized the Austrian court following the exclusive jurisdiction provided for in article 24, point 1, of Brussels I bis Regulation, in favour of the court of the Member State in which the property is situated. The British company contested the jurisdiction of that court on the basis of the forum contractus, pursuant to article 7, point 1, a). For the referring court, both grounds of jurisdiction could be admissible under Austrian civil law. Therefore, the Court of justice ruled on both provisions.

Jurisdiction in Matters Relating to Rights in rem in Immovable Property: A Self-restraint Approach? Reasoning

The Court of justice first assessed whether the action brought by the co-owner against the British company was to be characterised as an action “in matters relating to rights in rem in immovable property” pursuant to article 24, point 1 of the Brussels I bis Regulation. This requires, in particular, that the action is based on a right in rem and not on a right in personam (see the CJEU judgment in Reitbauern, para. 45). A right in rem, existing in corporeal property, has effect erga omnes. The tricky point here was to determine whether the designated use of the building produces such effect. Is the co-owner entitled to oppose the residential purposes of his property beyond the co-ownership agreement, to third parties? For the Court of justice, it falls to the referring court to respond to this question, following its national legal framework. Therefore, the application in casu of article 24, point 1, remains unsure.

Assessment

Eventually, the national judge would have been in the same position without referring any question to the Court of justice, since its interpretation adds nothing to the settled caselaw in the field. The Advocate General Szpunar went much further in its opinion, clearly doubting of the application of this exclusive ground of jurisdiction. He stressed that “there was a considerable underlying interest at stake in the EU legislature’s decision to make the jurisdiction established by that article [24 point 1] exclusive in nature”, namely “a public interest”. It is characterised when “rights [are] capable of affecting the legal situation of any person (effect erga omnes) or of the public in general” (para. 62). No such public interest seems to be at stake here, as far as “adherence to contractual arrangements between co-owners relating to the designated use of an immovable property” is concerned (para. 68); this is a pure contractual issue, subject to private autonomy.

In that respect, despite the remaining divergence of national civil and property laws within the Member States, it was possible to give the domestic court a clearer guidance. Then I wonder why the Court of justice decided not to be more explicit in its interpretation. Did the Court exercise self-restraint to preserve national private laws? Numerous Member States are indeed still hostile to the European harmonisation in the field. If it is the Court’s motive, it is unfortunate. On the contrary, it seems necessary to reflect on what extent an approximation of core notions of private law within the EU could improve the uniform application of European PIL rules. This reflection is the natural follow-up of the “autonomous interpretation” based on EU law developed and applied by the Court of justice, including in the field of EU PIL.

Jurisdiction in Matters Relating to a Contract: A Return to Orthodoxy? Reasoning

Given the uncertainty of application of the exclusive jurisdiction provided for in article 24, point 1, the Court of justice also interpreted article 7, point 1, on contractual matters. The Court started to recall the great flexibility of the notion of “contractual matters”. By analogy with its judgment in Kerr, it held that “the co-owners are, on account of the co-ownership agreement, in a contractual relationship freely consented to” (para. 40). Therefore, the action brought by the co-owner against the British company, itself co-owner, is an action “in matters relating to a contract”.

Then, the Court implemented the complex connecting factor laid down in article 7, point 1, a) – since the special rules in respect of the contracts on sale of goods and the contracts regarding the provision of services did not apply here, i.e. the presumptions regarding the place of performance –. Remarkably, the Court of justice removed the classical conflict-of-laws reasoning inherited from its judgment in Tessili (contrary to the Advocate General Szpunar in his opinion, para. 83 in fine). Following this settled caselaw, if the parties did not agree on the place of performance, that place must be determined by the law governing the contract in question pursuant to the PIL rules of the forum.

However, the Court of justice decided here to locate “directly” the place of performance, without the intermediary of the applicable law to the contract. The obligation in question is the guarantee of a “peaceful enjoyment of the property subject to co-ownership” by the owner and “must be performed in the place in which it is situated” (para. 44), i.e. in Austria.

Assessment

This solution makes the application of article 7, point 1), a), much easier in practice. The “direct” reasoning followed by the Court of justice leads to a substantial designation of the competent jurisdiction, here the Austrian judge. The two-steps reasoning, i.e. the implementation of a conflict-of-laws rule in order to apply a jurisdictional rule, has always been criticized by a large majority of scholars. It is indeed unorthodox regarding the classical PIL methodology. Issue of competence is, in principle, independent from the solution of conflict-of-laws.

The law designated by the choice of law rules has generally to be determined under the Rome I Regulation, except if the contract in question was concluded before the entering into force of this text. It seemed to be the case here (see par. 84 of the opinion, and even before the entering into force of the 1980 Rome Convention), imposing the referring court to apply its previous national choice of law rules in contractual matters. This further difficulty was probably an additional incentive for the Court to remove the Tessili reasoning.

This “streamlined” interpretation was already followed by the Court, a few years ago, in a case related to the avoidance of a contract of gift of immovable property (see the CJEU judgment in Schmidt, para. 39). However, in both judgements, the Court of justice did not bother to mention the change of approach. This is unfortunate as it makes difficult to assess the scope of the solution.

It is, most probably, only an exception in the context of immovable property, based on its strong attraction on the place where the property is situated and on the resulting proximity with the forum. In that sense, the Court of justice has stated that this solution “meets the objective of predictability of the rules of jurisdiction laid down by Regulation n° 1215/2012 since a co-owner bound by a co-ownership agreement stipulating such a designated use may, when he or she arbitrarily and unilaterally changes that designated use, reasonably expect to be sued in the courts of the place where the immovable property concerned is situated” (para. 45).

However, the “simplification” of application of article 7, point 1), a), stays unclear. The Court of justice mentions that the obligation in question “relates to the actual use of such property” (para. 44 in fine). Following an a contrario reading, would the “direct” location of the place of performance still be the solution if the obligation relates to an abstract use of property? (in that sense, see here). And how to understand and to draw the line between actual and abstract use of property?

Finally, it seems that a same “direct” approach was recently followed by the Court in the field of prorogation of jurisdiction. In its judgment in DealyFix (reported here on this blog), where the enforceability of a choice of court agreement to a third party was at stake, the Court held that it can be enforced only if, under the (substantive) legislation of the Member State whose courts are designated in that clause, the enforceability is allowed. The Court of justice did not refer to the “rules of private international law of the court” designated in the agreement, as it did before in its judgment in CDC (see para. 65, regarding the “court seised of the matter”). By analogy, the same “renvoi” to PIL rules is laid down in article 25, §1 and recital 20 of the Brussels I bis Regulation, in case of alleged substantive invalidity of a choice-of-court agreement; the question shall be decided “in accordance with the law of the Member State of the court […] including the conflict-of-laws rules of that Member State”.

I wonder whether it could illustrate a latent tendency of the Court of justice to avoid the overriding conflict-of-laws reasoning, in favour of a direct application of the jurisdictional rules concerned. Such a “material approach” is convincing, but one could call the Court to be more explicit in its judicial policy. It would make its interpretation more convincing and effective.

La Cour de justice de l’Union européenne explicite les régimes de protection des espèces à la lumière des directives Habitats (92/43/CEE) et Oiseaux (2009/147/CE).

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