Agrégateur de flux

The judgment of the Court of Justice of the European Union (CJEU) in Supreme Site Services v. Shape (Case C‑186/19) did not only raise the issue of the impact of the immunity of enforcement of international organisations on the definition of civil and commercial matters in the meaning of the Brussels I bis Regulation. The main question asked to the CJEU was that of the jurisdiction to lift cross-border provisional attachments under the Brussels I bis Regulation.

Background

The case was concerned with a dispute relating to the supply of fuel by a group of private companies to the headquarters of NATO in Europe (the Supreme Headquarters Allied Powers Europe, or SHAPE), for the purpose of a mission in Afghanistan. SHAPE is established in Belgium, but it has a regional headquarter in the Netherlands, the Allied Joint Force Command Brunssum (‘JFCB’). In order to guarantee the payment of all the costs related to the supply contracts, JFCB and the private companies signed an escrow agreement, whereby funds were deposited in a bank in Brussels.

After a dispute arose between the parties, the private companies sued JFCB and SHAPE on the merits in a Dutch court in 2015.

In 2016, the plaintiffs applied ex parte to the same Dutch court for an authorisation to carry out a provisional attachment on the monies held by the bank in Brussels. The application was granted and, two days later, was carried out in Brussels by a Belgian enforcement officer (huissier de justice) on the basis of a certificate issued on the ground of Art 53 of the Brussels I bis Regulation. In other words, the Dutch order was directly enforced under the Brussels I bis Regulation.

Jurisdiction to Issue a Cross-Border Attachment

After SHAPE was notified, it challenged the order before the court of origin. Interestingly enough, it does not seem that JFCB was notified, and that it was a party to the interim proceedings. The debate essentially revolved around the immunities of NATO, but there was also an issue of jurisdiction. On which ground could a Dutch court authorise the attachment of monies in Belgium? When the Dutch court of appeal considered the issue, it referred to Article 35 of the Regulation. Is that because, in the absence of JFCB, it considered that it did not have jurisdiction on the merits? If so, its jurisdiction should have been restricted to Dutch territory (see Recital 33 of the Preamble to the Regulation).

Enforcement in Belgium

In addition to the jurisdictional issue, there was an obstacle for enforcing the Dutch order in Belgium. It had been issued ex parte. It was therefore not a decision in the meaning of Article 2 of the Regulation, and it could not benefit from the enforcement regime of the Regulation.

But after the abolition of exequatur, the enforcement of foreign judgments is only to be challenged ex post for grounds listed in Art 45. Violation of the scope of Art 35 is not one of them. Issuance of protective measures ex parte is not either. Was there a remedy for SHAPE in Belgium? Maybe Adrian Briggs is right when he writes that Art 45 should not be read literally, and that other grounds for opposing enforcement should be admissible.

It must be underscored that ex parte provisional measures may not benefit from the Brussels regime, but the Brussels I bis Regulation expressly recognises that national law might allow their enforcement. In this case, after Dutch courts lifted the authorisation on the ground that NATO benefited from an immunity, SHAPE sought a declaration of enforceability of the Dutch judgment on the ground of a 1925 bilateral treaty between Belgium and the Netherlands (that the Brussels instruments have replaced, but not terminated – rings a bell?), because the argument of SHAPE was that its immunity excluded the application of the entire regulation (the argument was rightly rejected by the CJEU).

Jurisdiction to Lift the Provisional Attachment

SHAPE applied to the Dutch court, and the Dutch court of appeal set aside the authorisation and lifted the attachment on the ground of the immunity of SHAPE. The creditors appealed, and, although the issue of jurisdiction was not raised, the Dutch supreme court wondered whether Belgian courts had exclusive jurisdiction to lift an attachment over assets situated in Belgium on the grounds of Article 24(5) (“enforcement of decisions”), and thus referred the case to the CJEU.

The question was framed narrowly, and the CJEU only answered that Article 24(5) did not apply, because the proceedings did “not concern per se the enforcement of judgements in the meaning of Article 24(5)”. The court had just insisted that the provision applies to “proceedings relating to recourse to force, constraint or distrain on movable or immovable property”, so it seems that it considered that an application to lift a provisional attachment could not be considered to relate to use of force.

One must also say that Article 24(5) applies to the enforcement “of decisions”, and that it is unclear which decision would have been enforced in this case, since the proceedings on the merits were pending.

Most unfortunately, the CJEU only answered the question as it had been framed and did not elaborate on the court which would have jurisdiction under the Regulation.

It is submitted that, for a number of reasons, it should be the court which issued the order in the first place. A first reason is that the process of lifting a provisional attachment requires to reconsider and, as the case may, set aside, a judicial order. Under the Regulation, it is hard to see how any other court than the court of origin could be entitled to do so. Another reason is that the court of origin will apply the same rules to decide whether the decision was rightly granted.

Selon la Cour de justice de l’Union européenne, une personne soumise à une enquête administrative pour délit d’initié a le droit de garder le silence lorsque ses réponses pourraient faire ressortir sa responsabilité pour une infraction passible de sanctions administratives présentant un caractère pénal ou sa responsabilité pénale.

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Constitue une discrimination relative au sexe le refus d’une couverture maladie professionnelle au motif d’une fraude uniquement établie par la signature d’un contrat de travail quelques jours après une procédure de FIV.

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Luís de Lima Pinheiro, Professor of Law at the University of Lisbon, has given his so-called “Last Class” earlier this week, thus putting an end to his activity as a Professor at the graduate level in this Law School (while remaining active in post-graduate courses).

The online lecture, in Portuguese, is available here.

The University of Silesia in Katowice hosted in 2019 a conference on the the Application of the Succession Regulation in the EU Member States.

The papers presented at the conference have recently been published, under the editorship of Maciej Szpunar, in Problemy Prawa Prywatnego Międzynarodowego, a periodical specifically devoted to private international law.Below are the abstracts of (and the links to) the various contributions.

After the conference GEDIP held its meeting in Katowice and celebrated honorary doctorate awarded to Professor Paul Lagarde. The report from the conference is available here and from GEDIP’s meeting here.

Maciej Szpunar, Foreword

The current volume of “Problemy Prawa Prywatnego Międzynarodowego” — the leading Polish periodical in the field of private international law — is primarily devoted to the Regulation No 650/2012 of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (“the Succession Regulation”).

Paul Lagarde, La réserve héréditaire dans le règlement 650/2012 sur les successions

The article addresses the issues relating to the protection of forced heirs in international context with a particular focus on the provisions of the EU Succession Regulation pertaining thereto. It contrasts common law tradition with the solutions adopted in French law, whereby certain relatives are entitled to the hereditary reserve (la réserve héréditaire). The author discusses selected examples taken from a body of French case-law dealing with the issue in question. Amongst the cases touched upon by the author are those concerning the successions of Johnny Hallyday and Maurice Jarre, which were two cases widely discussed in the recent French jurisprudence.

Jürgen Basedow, “Member States” and “Third States” in the Succession Regulation

The author advocates a flexible approach with respect to the interpretation of the term “Member State” as employed in the Succession Regulation, allowing the differentiation between “participating” and “non-participating” States. It does not mean that the term “Member State” should always be interpreted in a wide sense including the three non-participating States: Denmark, the Republic of Ireland, and the United Kingdom. Whether a wide or a narrow interpretation is appropriate depends on the context and the purpose of the single provision. Most provisions contained in the chapter on jurisdiction refer to participating Member States only. But some articles such as the Article 13 of the Regulation, provide a counter-example. A uniform interpretation of the concept of Member State in all provisions of the Succession Regulation seems far too sweeping. It reminds of Begriffsjurisprudenz and does not take account of the purpose of the single provisions. In particular, it disregards the need for the cross-border protection of individual rights in a Union with open frontiers.

Christian Kohler, Application of the Succession Regulation by German courts — Selected Issues

The article concerns the notion of “court” in the Succession Regulation. This notion is used in the Brussels I and Brussels Ia Regulations, where it does not necessarily have the same scope. The author attempts to interpret the concept in the light of the recitals to the Succession Regulation (in particular Recital 20) and of the case law of the Court of Justice. The very general description of the concept contained in Article 3(2) of the Regulation might potentially embrace other authorities and legal professionals, where they exercise judicial functions by way of delegation of power from the court. In the author’s view, the European Court, especially in Oberle and WB v Notariusz Przemysława Bac correctly navigated its way through the Succession Regulation and ruled in a way which is both coherent as regards the operation of the Regulation and consistent with the intentions of the legislator. The above judgments are analysed also with regard to Poland’s omission to notify notaries as “courts” under Article 79 of the Succession Regulation. The European Court found that the criteria for determining whether an authority or a legal professional, in particular a notary public, constitutes a “court” are determined by Article 3(2) and not by Article 79. Consequently, Poland’s omission to notify was not conclusive, but was in any event correct in substance. The author expresses the opinion that the judgment is accurate on this point.

Michael Wilderspin, The Notion of “Court” under the Succession Regulation

The article concerns the notion of “court” in the Succession Regulation. This notion is used in the Brussels I and Brussels Ia Regulations, where it does not necessarily have the same scope. The author attempts to interpret the concept in the light of the recitals to the Succession Regulation (in particular Recital 20) and of the case law of the Court of Justice. The very general description of the concept contained in Article 3(2) of the Regulation might potentially embrace other authorities and legal professionals, where they exercise judicial functions by way of delegation of power from the court. In the author’s view, the European Court, especially in Oberle and WB v Notariusz Przemysława Bac correctly navigated its way through the Succession Regulation and ruled in a way which is both coherent as regards the operation of the Regulation and consistent with the intentions of the legislator. The above judgments are analysed also with regard to Poland’s omission to notify notaries as “courts” under Article 79 of the Succession Regulation. The European Court found that the criteria for determining whether an authority or a legal professional, in particular a notary public, constitutes a “court” are determined by Article 3(2) and not by Article 79. Consequently, Poland’s omission to notify was not conclusive, but was in any event correct in substance. The author expresses the opinion that the judgment is accurate on this point.

Stefania Bariatti, The Capacity and the Quality of Heir. Possible Interaction with Preliminary Questions

The article contains an overview of the rules relating to the scope of application of the EU private international law regulations. It addresses the treatment of the relevant preliminary questions, with special reference to the Succession Regulation. The issues are discussed in three steps. The first is connected with the way of interpreting the notions and concepts, such as marriage, adoption, legal capacity etc., where such matters as personal status, legal capacity or family relationship may come to the foreground as a preliminary question. The second is dealing with the law applicable to the preliminary question. The author compares pros and cons of the “independent reference” (lex fori) and the “dependent reference” (lex causae) solutions, considering the latter as less effective, producing more negative consequences. The third step embraces questions relating to the jurisdiction with respect to preliminary question.

Andrea Bonomi, The Regulation on Matrimonial Property and Its Operation in Succession Cases — Its Interaction with the Succession Regulation and Its Impact on Non-participating Member States

The Regulations on Matrimonial Property (No 2016/1103) and on the Property Consequences of Registered Partnerships (No 2016/1104) are new important pieces in the “puzzle” of European private international law. This article particularly focuses on the relationship between the Matrimonial Property Regulations and the Succession Regulation, two instruments which will often be applied in parallel because of the close connection between the two areas they govern. The author examines in particular the scope of those instruments as well as their interaction with respect to jurisdiction and applicable law. At the same time, an attempt is also made to assess the position of Poland and of those other Member States that are bound by the Succession Regulation, but not by the Matrimonial Property Regulation.

Piotr Rylski, The Influence of Bilateral Treaties with Third States on Jurisdiction and Recognition of Decisions in Matters on Succession — Polish Perspective

The aim of the study is to discuss the impact of bilateral international treaties concluded by EU Member States with third countries on jurisdiction and recognition of judgments in matters of succession from Polish perspective. The author discusses the main problems in the interpretation of Article 75 of Regulation 650/2012 and the possible conflict of this solution with the Treaty on the Functioning of the EU. The article indicates also practical problems related to the collision of bilateral treaties and Regulation No 650/2012 regarding, for example, the possibility of concluding choice-of-court agreements, recognition of foreign judgments in matters of succession and the possibility of issuing the European Certificates of Succession.

Krzysztof Pacuła, The Principle of a Single Estate and Its Role in Delimiting the Applicable Laws

This paper argues that the principle of unity of succession is one of the key concepts of the Succession Regulation. By operation of this principle on the jurisdictional level, the Regulation tends to favor a perspective of a single Member State when it comes to all issues related to succession. The principle of unity of succession does not of course eliminate the need to proceed to the characterization and to delimitate the scopes of conflict of laws rules at stake. However, this principle — aiming to promote a unitary vision of a single estate in all the Member States bound by the Regulation — sets a tone for some interpretative techniques that tend to favor succession-related characterization of the issues having some importance in the context of succession with cross-border implications. According to the Author, effet utile-driven characterization, on the one hand, and succession-friendly characterization of the issues falling within ‘gray areas’ created by the operation of Article 1(2) of the Succession Regulation, on the other hand, are among them.

Maksymilian Pazdan, Maciej Zachariasiewicz, Highlights and Pitfalls of the EU Succession Regulation

The EU Succession Regulation constitutes a remarkable achievement of unification of conflict of law rules at the European level. It has importantly changed the landscape for all those interested in succession law, in particular, the notaries and the estate planning practitioners. The present article takes up a number of selected issues that arise under the Regulation. The paper first identifies certain general difficulties that result either from the complex nature of the matters addressed or from a somewhat ambiguous wording of the rules adopted by the EU legislator. The attention is devoted to the exceptions to the principle of the unity of legis successionis, the dispositions upon death, and the intertemporal questions resulting from the change of the conflict of laws rules in the Member States which occurred on 17th August 2015 when the Regulation started to be applied. The paper then moves to some of the more specific issues arising under the Regulation. To that effect, it first looks at the Polish Act of 2018 governing the ”succession administration” of the enterprise, which forms part of the estate. The argument is made that the rules contained in the 2018 Act should be applied by virtue of Article 30 of the Succession Regulation because they constitute “special rules” in the meaning of this provision. Second, the notion of a “court” under Article 3(2) of the Regulation is discussed in light of the recent judgment of the CJEU in case C-658/17 WB, where the European Court found that a Polish notary issuing the deed of certification of succession is not a “court” for purposes of Article 3(2). The paper provides a critical account of the Court’s decision.

In a landmark decision in the case of Okpabi and others v Royal Dutch Shell Plc and Another, the United Kingdom Supreme Court (“UKSC”) ruled on a jurisdictional issue on whether the claimants/appellants have an arguable case that the defendants/respondents – Royal Dutch Shell (an English domiciled company) – owed them a common law duty of care so as properly to found jurisdiction against a foreign subsidiary company (Shell Petroleum Development Corporation Limited, domiciled in Nigeria) as a necessary and proper party to the proceedings. This jurisdictional aspect was concerned with whether there was a real issue to be tried against the anchor defendant – Royal Dutch Shell (an English domiciled company).

The facts of the case was that the claimants/appellants, who are Nigerian citizens alleged that as a result of the negligence of  Shell Petroleum Development Corporation Limited, numerous oil spills have occurred from oil pipelines and associated infrastructure operated in the vicinity of the claimants’/appellants’ communities. It is said that these oil spills have caused widespread environmental damage, including serious water and ground contamination, and have not been adequately cleaned up or remediated. It is also alleged that as a result of the spills, the natural water sources in the claimants’/appellants’ communities cannot safely be used for drinking, fishing, agricultural, washing or recreational purposes.

The High Court and Court of Appeal resolved this jurisdictional issue against the claimants/appellants, but the UKSC found merit in their appeal.

 

Brexit has dealt a major blow to judicial cooperation in Europe. With the end of the transition period, the Brussels I bis Regulation became inapplicable in the relation between the UK and the EU. Some authors, however, took the view that the Regulation’s predecessor, the Brussels Convention of 1968, would continue to apply (see e.g. here and here). The main argument was that the Brussels Convention is an international treaty and not an instrument of EU law. Moreover, and contrary to the Rome Convention on the law applicable to contractual obligations, the Brussels Convention had not been fully replaced by a regulation and continued to apply with regard to some overseas territories.

This debate seems now to come to a close. On 29 January 2021, the British government informed the European Council of its view that the Convention has ceased to apply to the UK and Gibraltar with the expiry of the transition period on 1 January 2021. The unofficial document was posted on Twitter by Steven (“Steve”) Peers from the University of Essex (thanks to Felix Krysa for sharing the tweet with me). It reads in relevant part:

The Government of the United Kingdom hereby notifies the Secretary-General of the Council of the European Union that it considers that the Brussels Convention 1968 and the 1971 Protocol, including subsequent amendments and accessions, ceased to apply to the United Kingdom and Gibraltar from 1 January 2021, as a consequence of the United Kingdom ceasing to be a Member State of the European Union and of the end of the Transition Period.

Does this finally close the argument? Not for sure. The communication merely reflects an opinion by the British government, which as such is of no legal consequence. The Vienna Convention on the Law of Treaties enumerates the cases in which an international convention is terminated. A unilateral denunciation is not among them. Absent an impossibility of performance, a fundamental change of circumstances or a breach by one party, an agreement by the parties is required to suspend the operation of a treaty.

Since the Brussels Convention bound the UK to no less than 14 EU Member States, it may take some time and effort to reach agreement that the Brussels Convention is all over. The mere information of the European Council by the British government is certainly not sufficient. Of course, the EU and the UK could also enter into a new treaty. The British government has lodged an application to join the Lugano Convention, but it is still awaiting an answer from the EU.

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Katoen Natie Bulk Terminals et General Services Antwerp
Liberté d'établissement
Une loi qui réserve le travail portuaire à des ouvriers reconnus comme tels peut être compatible avec le droit de l’Union si elle vise à garantir la sécurité dans les zones portuaires et la prévention des accidents du travail