Agrégateur de flux

Written by Fieke van Overbeeke, Legal Counsel at the International Institute for International and Foreign Law  – the Netherlands and research fellow at the University of Antwerp – Belgium

On 10 June conflictoflaws.net posted a piece about ‘new conflict of laws rule for minimum wages in road transport’. At that time it seemed that the EU institutions still needed to overcome severe difficulties. However, fully according to the course of events around this very unpredictable file, on 10 July the institutions officially reached a compromise: the directive with conflict of law rules for road transport was finally has adopted and it will enter into force 18 months after publication in the EU’s Official Journal.

In short about these conflict of law rules: 1) Transit operations do not fall under the Posting of Working Directive and the labour conditions, i.a. minimum wages, cannot be applied to this type of transport; 2) Cabotage operations do fall under the Posting of Working Directive and the labour conditions should be guaranteed to this type of transport (‘guaranteed’ because this only needs to be done in case these conditions are more favourable to the lorry driver, see Article 3 section 7 Posting of Working Directive); 3) Bilateral operations do not fall under the Posting of Working Directive, and some correlated crosstrade operations do not either; 4) Crosstrade operations are supposed to fall under the Posting of Working Directive (however, a clear rule about this is lacking and provokes many questions).

Tribunal de police de Bordeaux, 13 juillet 2020

Pourvoi c/ cour d'appel de Paris, 11 octobre 2019

Pourvoi c/ cour d'appel de Lyon, 30 janvier 2020

Pourvoi c/ cour d'appel de Paris, 26 novembre 2019

The author of this post is Giulio Monga, a PhD student at the Catholic University of the Sacred Heart, Milan.

On 16 April 2019, the Italian Supreme Court (Corte di Cassazione) ruled on the relevance of the Incoterm “FCA – Free Carrier (named place of delivery)” to the operation of Article 5(1) of the Brussels I Regulation , corresponding to Article 7(1) of the Brussels I bis Regulation.

The Facts

An Italian company (Agusta) sued a French company (Team) before the Court of Frosinone seeking the termination of the sales agreement concluded between the two, on the ground that the goods supplied by the latter were defective. Team argued that the seised court lacked jurisdiction. It observed that the goods had been sold FCA (Free Carrier) the Paris International Airport, thereby contending that Paris ought to be regarded as the place of delivery agreed by the parties for the purposes of Article 5(1)(b), first indent, of the Brussels I Regulation (pursuant to the latter provision, jurisdiction over sales of goods lies with the courts for the place “where, under the contract, the goods were delivered or should have been delivered”).

The Relevance of Incoterms to Jurisdiction over Contractual Matters

Incoterms are standard commercial terms drawn up by the International Chamber of Commerce (ICC). Under the FCA rule, the seller undertakes to deliver the goods, cleared for export, to the carrier or another person nominated by the buyer at the seller’s premises or at another named place. The seller bears all costs and risks of delivery, while the buyer undertakes to take care of the delivery of the goods to their final destination, bearing the costs and risks of the onward carriage.

The Italian Supreme Court recalled that in Electrosteel the Court of Justice of the European Union held that the seised court, in order to verify its jurisdiction under Article 5(1)(b), first indent, of Brussels I Regulation, must first ascertain whether the parties have agreed on a place of delivery in the contract. For this, account must be taken “of all the relevant terms and clauses … which are capable of clearly identifying that place, including terms and clauses which are generally recognised and applied through the usages of international trade or commerce, such as the Incoterms …”. According to the Corte di Cassazione, where an Incoterm is incorporated into a contract, and the issue arises of the relevance of that incorporation to the issue of jurisdiction, the seised court must assess whether the Incoterm in question is merely concerned with the allocation of the risks and costs related to the transaction, or whether the parties also meant it to identify – with sufficient clarity – the place of delivery of the goods.

The Judgment

The Corte di Cassazione concluded that by incorporating the Incoterm FCA into their contract, the parties failed to agree on a clear identification of the place of delivery of the goods for the purposes of Article 5(1)(b) of the Brussels I Regulation. The Incoterm FCA, the Court argued, concerns nothing more than the allocation between the parties of the risks and costs related to the transaction.

Some Remarks

Regrettably, the Corte di Cassazione failed to state the reasons for the latter finding. The Court acknowledged that the key issue is whether the chosen Incoterm conveys an agreement of the parties as to the place of delivery of the goods, but did not provide an analysis of the Incoterm FCA, as used in the contract at issue, and did not explain why the naming of the International Airport of Paris could not be regarded as signifying an agreement to that effect (according to the ICC rules that accompany the Incoterms, when goods are sold FCA the seller ‘must deliver the goods to the carrier … nominated by the buyer at the named point, if any, at the named place …’).

Actually, all Incoterms concern the allocation of risks and costs between the parties. By providing for such allocation they perform, in fact, the key part of their job. On top of that, however, they may – as the Court of Justice acknowledged in Electrosteel – convey an agreement as regards the place of delivery. Whether this happens in a particular case depends on the analysis of the circumstances. The way in which the Corte di Cassazione engaged in this analysis is, methodologically, unconvincing. Arguably, one should examine the rules set out by the ICC itself to describe the Incoterm in question, and any other element as may help determine the intended meaning of the agreement (the negotiations between the parties etc.). The fact is that the Corte di Cassazione failed to indicate the circumstances which it considered to be relevant to the issue, and failed to elaborate on their assessment. It merely stated, in rather general terms, that the incorporation of the Incoterm FCA is not evidence, as such, of an agreement as to the place of delivery of the goods.

It’s a missed opportunity, for establishing a clear methodology, ideally one shared by domestic courts across the EU, would serve the needs of predictability and would foster the uniform application of the Brussels I regime.

Jorg Sladič is an associate professor of international and European law at the European faculty of law in Ljubljana (Slovenia). He was a member of the European Commission’s expert group on modernisation of judicial cooperation in civil and commercial matters. This post is based on an article to be published shortly in the Revue des affaires européennes (L’obtention de preuves en matière civile et commerciale dans l’espace judiciaire européen : status quaestionis et la réforme envisagée, RAE 2020/1, pp. 191 – 212).

Taking of evidence abroad is hampered not only by foreign languages, distances etc. The scope of application ratione loci of a given law of civil procedure is limited by the principle of territoriality. Therefore the gathering of evidence in a pending civil proceedings before a forum is limited by the forum’s traditional inherent inability to perform judicial activities abroad. However, Europe is changing. Therefore an assessment of the principle of territoriality in the law of civil procedure is required.

1. Evidence Taking in Civil Procedure in Continental Europe as acta jure imperii

In the EU, judicial cooperation in civil and commercial matters also covers international legal assistance – comprising traditionally the service of judicial and extrajudicial documents abroad and taking of evidence abroad. European rules on cross-border taking of evidence are to be found in the Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters. The said regulation can be regarded as an update of existing traditional methods of international legal assistance and is heavily influenced by the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters. Even the direct taking of evidence by the requiring forum goes back to influences of the 1970 Hague Convention.

Traditionally a forum from one EU Member State cannot take evidence in other EU Member States. Continental European States consider evidence gathering and taking as acta jure imperii. The Latin maxim judici fit probatio explains it all (see e.g. O. L. Knöffel, Grenzüberschreitende Beweisaufnahme durch Private, in R. Geimer, R. A. Schütze, T. Garber (eds.), Europäische und internationale Dimension des Rechts, Festschrift für Daphne-Ariane Simotta, Vienne, LexisNexis, 2012, p. 333 and 334; M. Virgós Soriano, F. J. Garcimartín Alférez, Derecho procesal civil internacional : litigación internacional, 2nd ed., Madrid, Thomson Reuters, 2007, p. 486; B. Audit, L. D’avout, Droit international privé, 7th ed., Paris, Economica, 2013, par 484). Evidence is taken by the judge (forum). However, in the common law world, evidence is taken by the parties before the judge and not by the judge. Gathering of evidence is rather a private matter left to the parties. However, in all Member States the Regulation is applied under the principle of national procedural autonomy.

This difference between evidence taking as a private matter between the parties or evidence taking as a performance of public authority by a forum is in short also a major part of the of the famous Justizkonflikt between the US and Germany.

Practical aspects of evidence taking abroad were assessed in the 2017 Luxembourg Study (see B. Hess, M. Requejo Isidro, F. Gascón Inchausti, P. Oberhammer, E. Storskrubb, G. Cuniberti, C. Kern, K. Weitz, X. Kramer, An evaluation study of national procedural laws and practices in terms of their impact on the free circulation of judgments and on the equivalence and effectiveness of the procedural protection of consumers under EU consumer law, Report prepared by a Consortium of European universities led by the MPI Luxembourg for Procedural Law as commissioned by the European Commission, JUST/2014/RCON/PR/CIVI/0082, Strand 1, Mutual Trust and Free Circulation of Judgments, Brussels, Luxembourg, 2017, paras 240 – 263).

2. Principle of Territoriality of a Pending Civil Procedure

As judicial functions belong to performance of a public authority of a State, they are not supposed to be performed in an extraterritorial manner (the principle of territoriality of a pending civil procedure). Without going in the famous Lotus case law of the PCIJ the European version (Opinion of Advocate General JÄÄSKINEN, Lippens, C-170/11) of the rule reads as:

29. A court of a Member State can validly exercise its powers and make use of its ‘imperium’, that is to say, its power of enforcement, only within the limits of its geographical jurisdiction. Measures of inquiry are an exception to this rule in that they can be taken over the whole of national territory. Nevertheless, in view of the principle of territoriality in international law, which is linked to the principle of State sovereignty, the court cannot normally take action to enforce such measures in another Member State.

Fn. 44: However, a court ruling on a civil or commercial matter covered by Regulation No 1206/2001 cannot exercise public authority outside the territory of the Member State in which it is situated by carrying out substantive acts necessitating the use of State coercion such as using the State’s police force to bring a party resident in another Member State by force to appear before it.

It might also be added that the principle of territoriality prohibits in the continental legal thinking the recognition of foreign anti-suit injunctions, an issue that will become of importance if post Brexit negotiations do not produce a sufficient PIL framework between the EU and the UK.

According to the Belgian Court of Cassation, Belgian courts can condemn a third party residing in another EU Member State to produce documents in accordance with the Belgian lex fori and even apply the periodic monetary penalties (astreinte). The application of the regulation Nr 1206/200 is not mandatory (Court of Cassation, 1st Chamber, 26 April 2018, case Banque de Luxembourg, n° C.16.0192.N). The Belgian Court of Cassation also ruled quite laconically that it results clearly from the judgment of the Court of Justice in Lippens (C-170/11) that a court of a Member State may condemn a party resident in another Member State to produce a documents before it in accordance with its lex fori and even apply sanctions for non production of documents (Court of Cassation, 1st Chamber, 25 April 2013, aff. Fortis Luxembourg Vie, n° C.11.0103.F/1). However, as far as sanctioning witnesses residing abroad and having defaulted, the situation appears to be different. The Austrian Regional Court of Appeal in Linz dealt with the question of a regularly summoned German witness residing in Germany and not appearing before an Austrian forum (Oberlandesgericht Linz, 5 September 2013, case 3 R 145/13h, ECLI:AT:OLG0459:2013:RL0000147). The forum of first instance issued a heavy fine against the German witness. The appellate court ruled however that, due to the principle of territoriality of the pending civil proceedings, such a witness is not subject to jurisdiction of Austrian courts. An Austrian forum may summon him so that he can appear and testify, however, due to a non-existent duty to testify in another state, such a witness doesn’t have to comply with the summons. A foreign witness who fails to comply with the summons cannot to be sanctioned. Where the evidence is located abroad, an Austrian forum can order that this evidence be transferred to Austria as for example in the case of the summons of a witness – or may within the scope of Regulation No 1206/2001 proceed to the taking of evidence abroad, either through the requested court (Art. 10 and following of the regulation), or directly (art. 17 of the regulation). The regulation does not prevent the forum to summon a witness living abroad. However, means of constraint cannot be applied against such a witness residing abroad.

3. Methods of Taking of Evidence Abroad

It is generally recognised that evidence from abroad is to be gathered according to certain methods (A. Sengstschmid, Die europäische Beweisaufnahme, in P.G. Mayr (ed.), Handbuch des europäischen Zivilverfahrensrechts, Vienna, Manz, 2017, par. 15.1; L. Fumagalli, La disciplina comunitaira dell’assunzione delle prove all’estero in materia civile e commerciale: il regolamento (CE) n. 1206/2001 in S. M. Carbone, M. Frigo, L. Fumagalli, Diritto processuale civile e commerciale comunitario, Milano, Giuffrè, 2004, pp. 169 and 170):

1. the order of the forum before which the proceedings are pending ordering the parties to transfer themselves the evidence (or the means of evidence) which is located abroad to the forum State;
2. the active international legal assistance (the requesting court issues a letter rogatory which will be executed by the foreign requested forum according to the lex diligentiae, see Art. 10 of the Regulation Nr. 1206/2001);
3. the passive international legal assistance (the requesting court performs itself or through its agents directly the taking of evidence abroad according to its own lex fori. In principle, such an approach requires a prior consent of the requested foreign state. There is also the problem of coercive measures adopted by the requesting forum on the territory of the requested State. Such direct taking of evidence is allowed in the EU Under the conditions of Art. 17 of the Regulation Nr. 1206/2001);
4. videoconferencing or any other modern means of communication where the evidence remains abroad while the proceedings take place before the forum of origin (see Art. 10(4) of the Regulation Nr. 1206/2001);
5. the taking of evidence is performed in cooperation or dialogue between the requesting forum and the requested forum (see Art. 10(3) and (4) and Art. 12 of the Regulation Nr. 1206/2001));
6. obtaining evidence through diplomatic officers or consular agents.

Neither obtaining evidence through diplomatic officers or consular agents nor the request of the forum before which the proceedings are pending ordering the parties to transfer themselves the evidence (or the means of evidence) which is located abroad to the forum State are regulated by the Regulation Nr. 1206/2001.

In this framework the Council Statement Nr. 54/01 of 4 July 2001 on Regulation Nr. 1206/2001 shall be mentioned. According to the Council of the EU “The scope of application of this Regulation shall not cover pre-trial discovery, including the so-called “fishing expeditions”.” (Statement, p. 16).

4. Effet utile of the Regulation Nr. 1206/2001 – Is it of American origin?

However, the effet utile of the Regulation Nr. 1206/2001 has lead the Court of Justice in cases Lippens (C-170/11) and ProRail (C-332/11) to construe that text as being optional and facultative.

It would appear that the US Supreme Court’s decision in case Société Nationale Industrielle Aérospatiale et al. V. United States District Court for The Southern District of Iowa 82 U.S. 522 (1987), on the 1970 Hague Convention was a direct though not cited source of the European case-law. According to the US case law the “Convention does not provide exclusive or mandatory procedures for obtaining documents and information located in a foreign signatory’s territory”. “its purpose [is] to “facilitate” discovery and to “improve mutual judicial co-operation.”” “Although they are not mandatory, the Convention’s procedures are available whenever they will facilitate the gathering of evidence, and “apply” in the sense that they are one method of seeking evidence that a court may elect to employ”.

Documents having lead to the Lippens case, especially the opinion of Advocate General before the High Council of the Netherlands (Hoge Raad der Nederlanden, the Dutch Supreme Court) M. P. Vlas of 1st April 2011, ECLI:NL:PHR:2011:BP3048 and the preliminary reference, judgement of the High Council of the Netherlands, 1st Chamber, 1st April 2011, case 10/02071, ECLI:NL:HR:2011:BP3048, show an in-depth assessment of the US Société Nationale Industrielle Aérospatiale case.

The interpretation of facultative and facilitative nature of international instruments on taking of evidence abroad was extended by the CJEU to the Regulation Nr. 1206/2001. Such an interpretation is indeed not a forgone conclusion. If the rigour used to combat conflicts caused created between EU private international law (Brussels Ia Regulation) and national traditions in anti-suit injunctions (Turner, C-159/02, Allianz, C-185/07, Gazprom, C-536/13) and the forum non conveniens doctrine (Owusu, C-281/02) were to be extended also to the Regulation Nr. 1206/2001, then there there could be no space for facilitative nature of the Regulation Nr. 1206/2001 (C. Thole, Kein abschließender Charakter der Europäischen Beweisaufnahmeverordnung, IPrax, Nr. 3/2014, p. 255). Indeed, there are connecting points linking the Regulation on taking of evidence and the Brussels Ia regulation such as exclusion of arbitration (see on that issue B. Hess, Europäisches Zivilprozessrecht, Heidelberg, C.F. Müller, 2010, p. 465; M. Fartunova-Michel, JurisClasseur Europe Traité, fasc. 2800 : Obtention des preuves en matière civile et commerciale – Coopération entre les juridictions des États membres – Règlement (CE) n° 1206/2001 », update 27 May 2019, par. 20). However, the effet utile lead to a different conclusion.

Indeed, the CJEU ruled in Lippens:

according to recitals 2, 7, 8, 10 and 11 in the preamble to Regulation No 1206/2001, the aim of the regulation is to make the taking of evidence in a cross-border context simple, effective and rapid. The taking, by a court of one Member State, of evidence in another Member State must not lead to the lengthening of national proceedings. […]. Thus, it is clear that, in certain circumstances, in particular if the party summoned as a witness is prepared to appear voluntarily, it may be simpler, more effective and quicker for the competent court to hear him in accordance with the provisions of its national law instead of using the means of taking evidence provided for by Regulation No 1206/2001. (paras. 29 and 31)

Finally, the interpretation according to which Regulation No 1206/2001 does not govern exhaustively the taking of cross-border evidence, but simply aims to facilitate it, allowing use of other instruments having the same aim, is supported by Article 21(2) of Regulation No 1206/2001, which expressly authorises agreements or arrangements between Member States to further facilitate the taking of evidence, provided that they are compatible with the regulation. (par 33)

However, the facilitative nature of the Regulation Nr. 1206/2001 is limited by an exception of public powers of EU Member States (see e.g. C. Thole, op. cit., p. 257 ; G. Cuniberti, L’expertise judiciaire en droit judiciaire européen, Rev. crit. DIP, Nr. 3/2015, p. 535 ; M. Fartunova-Michel, op. cit., point 2 ; see in general law of international civil procedure S. Triva, M. Dika, Građansko parnično procesno pravo, Narodne novine, Zagreb, 2004, p. 57 ; A. Maganić, Pravna pomoć u građanskim stvarima između Republike Hrvatske i Republike Makedonije », Zbornik PFZ, 2/2011 p. 245).

Indeed, the CJEU has ruled in ProRail:

47. in so far as the expert designated by a court of a Member State must go to another Member State in order to carry out the investigation which has been entrusted to him, that might, in certain circumstances, affect the powers of the Member State in which it takes place, in particular where it is an investigation carried out in places connected to the exercise of such powers or in places to which access or other action is, under the law of the Member State in which the investigation is carried out, prohibited or restricted to certain persons.

48. In such circumstances, unless the court wishing to order cross-border expert investigation foregoes the taking of that evidence, and in the absence of an agreement or arrangement between Member States within the meaning of Article 21(2) of Regulation No 1206/2001, the method of taking evidence laid down in Articles 1(1)(b) and 17 thereof is the only means to enable the court of a Member State to carry out an expert investigation directly in another Member State.

Such a ruling was then interpreted e.g. by the Belgian Court of Cassation as follows. A plea entirely based on the argument that the forum of a Member State which requires the act of investigation entrusted to an expert to be performed in the territory of another Member State is always required to request a prior authorization of the other Member State in accordance with Article 17 of Regulation (EC) No 1206/2001, without distinguishing according to whether the taking of evidence may or may not have an influence on the powers of this other Member State or according to whether or not there is a convention or regulation within the meaning of the second paragraph of Article 21 of Regulation 1206/2001, is not founded (Court of Cassation, 1st Chamber, 7 November 2013, case C.10.0286.N/1)

5. Reform

The European Commission proposed a reform of the Regulation Nr. 1206/2001. The EAPIL reported extensively on that. As a consequence an indepth assessment in the article was superseded by posterior legal development. Such direct taking of evidence is allowed in the EU under conditions of Art. 17 of the Regulation Nr. 1206/2001.