Agrégateur de flux

The CJEU has held in Case C-521/14 Sovag that Article 6(2) Brussels I (Article 8(2) in the Recast) applies regardless of whether the proceedings are brought against (which is what inter alia the English language version suggests) or by a third party.

A, the victim of a traffic accident that took place in Germany, brought an action in Finland against SOVAG, with which the vehicle responsible for the damage was insured. That traffic accident also constituting a work accident under the Law on accident insurance, If, which is established in Finland, paid A compensation for the accident in accordance with that law. After A had brought the action against SOVAG, If itself sued SOVAG before the same court of first instance.

The national court in first instance held that, in accordance with Article 8 of Regulation 44/2001, in matters relating to insurance jurisdiction may be determined by the provisions of Section 3 of Chapter II of that Regulation alone. According to SOVAG, Article 6(2) of Regulation 44/2001 is indeed not applicable because Section 3 of Chapter II of the same Regulation establishes an autonomous system for the conferring of jurisdiction in matters of insurance. On this issue, the CJEU (at 30) reminded the national court of earlier case-law that where the action at issue in the main proceedings concerns relations between professionals in the insurance sector, and will not affect the procedural situation of a party deemed to be weaker, the insurance title does not apply. The objective of protecting a party deemed to be weaker being fulfilled once jurisdiction is established on the basis of Section 3 of Chapter II of Regulation 44/2001, subsequent procedural developments concerning only relations between professionals cannot fall within the ambit of that section.

Next, the wording of several of the language versions of Article 6(2), in particular the German, French, Finnish and Swedish versions, does not prevent the court before which the original proceedings are pending from having jurisdiction to hear and determine an action brought by a third party against one of the parties to the original proceedings.  However, other language versions of that provision, particularly the English language version, appear to restrict its scope to actions brought against third parties (‘a person domiciled in a Member State may also be sued: … as a third party’).

While the CJEU acknowledged that the special jurisdictional rules need to be applied restrictively, ie not going beyond their purpose, here the purpose of Article 6(2) is the harmonious administration of justice, namely minimising the possibility of concurrent proceedings and ensuring that irreconcilable judgments will not be given in two Member States. Therefore Article 6(2) must also apply where the third party brings the proceedings, not just where it is drawn into those proceedings by others.

However, the Court also sanctioned the Finnish rule of civil procedure that the right of a third party to bring an action in connection with pending judicial proceedings, is contingent on that action being linked to the original proceedings. Given that Article 6(2) does not apply where the proceedings were brought ‘solely with the object of removing’ the party concerned from the jurisdiction of the court which would ordinarily have jurisdiction to hear the case,  the CJEU OK-ed the Finnish rule as being one that assist in helping to avoid abuse of the rule on joinders.

I would have thought the Court would have made that rule one of EU law, given its insistence on autonomous interpretation. (Rather than simply OK-ing a national rule). Whether there is such a European rule therefore must stay into the open a little longer.

Geert.

It has already been mentioned on this blog that the European Commission is funding an international research project on “European Private International Law – Legal Application in Reality” (EUPILLAR). The project, which is led by Prof. Paul Beaumont and Dr. Katarina Trimmings from the University of Aberdeen (UK), will last for two years and involves six research partners from the Universities of Freiburg (Germany), Antwerp (Belgium), Wroclaw (Poland), Leeds (UK), Milan (Italy) and Complutense (Madrid, Spain), examining the case law and legal practice on the main EU private international law instruments in the Court of Justice of the European Union and in the participating Member States. The key objectives of the project are to consider whether the selected Member States’ courts and the CJEU can appropriately deal with the relevant cross-border issues arising in the European Union context and to propose ways to improve the effectiveness of the European PIL framework.

After a practitioners‘ workshop has already been conducted in Freiburg last year, the German branch of the project (Prof. Jan von Hein) is now organizing an academic conference which focuses on the experience gathered in German court practice so far. The conference will take place on 14-15 April 2016 in Freiburg and features high-level academics dealing with pervasive issues such as European and domestic court organization, the methods of evaluating PIL instruments and the application of foreign law in practice. Moreover, court practice on PIL instruments such as Rome I and II, Brussels I(bis) and II(bis) will be analyzed and discussed. The conference language is German and the proceedings will be published in the „Zeitschrift für Vergleichende Rechtswissenschaft“. Participation is free of charge, but requires a prior registration. For the full programme and further details, see here. For registration, please click here.

Sucesiones internacionales. Comentarios al Reglamento (UE) 650/2012, a cura di José Luis Iglesias Buigues e Guillermo Palao Moreno, Tirant lo Blanch, 2015, ISBN 9788490867891, pp. 276, € 89.

[Dal sito dell’editore] El 4 de julio de 2012 se aprobó el Reglamento N° 650/2012 del Parlamento Europeo y del Consejo, relativo a la competencia, la ley aplicable, el reconocimiento y la ejecución de las resoluciones, a la aceptación y la ejecución de los documentos públicos en materia de sucesiones mortis causa y a la creación de un certificado sucesorio europeo. La aplicación plena de este instrumento legislativo adoptado en el ámbito del Espacio de Libertad, Seguridad y Justicia se producirá el 17 de agosto de 2015, momento a partir del cual nuestro modelo de Derecho internacional privado de sucesiones pasará a regirse por esta nueva norma, cuyo análisis pormenorizado, disposición a disposición, constituye el objeto de esta obra. El estudio que presentamos no es un trabajo exclusivamente académico, sino que se ha buscado ofrecer al profesional del Derecho un comentario de cada una de sus disposiciones en cuanto Derecho positivo, presidido por su confrontación con el Derecho español, con el fin de fundamentar la interpretación y aplicación en la práctica del Reglamento en España.

Maggiori informazioni, compreso l’indice del volume, sono disponibili qui.

Dans la suite du programme européen en matière de sécurité, visant à renforcer la coopération entre les autorités nationales en matière de lutte contre le terrorisme et autres formes graves de criminalité transnationale, la Commission a proposé, le 19 janvier 2016, de faciliter l’échange des casiers judiciaires des ressortissants des pays n’appartenant pas à l’Union.

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The latest issue of the “Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)” features the following articles:

H.-P. Mansel/K. Thorn/R. Wagner, European conflict of laws 2015: Reappraisal
The article provides an overview of developments in Brussels in the field of judicial cooperation in civil and commercial matters from December 2014 until November 2015. It summarizes current projects and new instruments that are presently making their way through the EU legislative process. It also refers to the laws enacted at the national level in Germany as a result of new European instruments. Furthermore the authors look at areas of law where the EU has made use of its external competence. They discuss both important decisions and pending cases before the ECJ as well as important decisions from German courts pertaining to the subject matter of the article. In addition the article also looks at current projects and the latest developments at the Hague Conference of Private International Law.

K. Kroll-Ludwigs, Conflict between the Hague Protocol on the law applicable to maintenance obligations (2007) and the Hague Maintenance Convention (1973): lex posterior derogat legi priori?
On 18.6.2011, the European Union set into force the Hague Protocol on the law applicable to maintenance obligations of 23 November 2007 and established common rules for the entire European Union aiming to determine unanimously the applicable law where debtor and creditor are in different countries. The Protocol replaced the Hague Convention of 2 October 1973 on the Law applicable to maintenance obligations. Due to its universal application, its rules apply even if the applicable law is the law of a non-Contracting State. However, note that non-EU-States, as Turkey, Switzerland, Japan and Albania are not bound by the Protocol. As well as Germany they are Contracting States of the Hague Maintenance Convention. From the German perspective, in relation to these States the question raises whether the rules of the Hague Maintenance Convention still apply. Taking into account that the Protocol – unlike the Hague Maintenance Convention – enables the parties to choose the applicable law, determining the relevant legal instrument is of great practical importance.

F.M. Wilke, The subsequent completion of German judgments to be enforced abroad
Under certain conditions, a German court can pass a judgment without a statement of facts and even without reasons. This can lead to problems abroad if the decision is to be recognized and enforced there. This is why the implementing statute concerning recognition and enforcement (AVAG) contains provisions that cover the subsequent completion of such decisions in light of certain international conventions and, so far, the Brussels regime. After the reform of the German Code of Civil Procedure (ZPO) in light of the Brussels I Recast, however, the scope of application of the AVAG does not extend to the Brussels I Regulation anymore. At first sight, this may seem plausible because of the abolition of exequatur. Yet it might be necessary for a court of an EU member state to examine the facts of a case and/or the reasons behind a decision in order to determine if its recognition/enforcement should be refused (Articles 45, 46 Brussels I Recast). This short article analyses for which cases the legal basis for subsequent completion seems to have vanished and how to deal with them. Essentially, the solutions de lege lata are to bypass the scope of application of the AVAG or to proceed by analogy. In a potential future reform, the respective AVAG provisions simply should be integrated into the ZPO.

S. Kröll, The law applicable to the subjective reach of the arbitration agreement
Defining the parties to an arbitration agreement, in particular whether nonsignatories are bound by the agreement, is one of the pervasive problems in international arbitration. It generally involves a number of conflict of laws questions some of which have been addressed by the German Supreme Court in its decision of 8 May 2014. A party’s reliance on the „group of companies doctrine“ does not relieve the courts from a detailed analysis of the various relationships involved. In most cases, it is the law governing the arbitration agreement which also determines who are the true parties to the arbitration agreement.

M. Weller, No effect of foreign mandatory provisions on arbitration agreements under German law according to § 1030 ZPO
The material scope of arbitration agreements, in particular with regard to tort claims, is a constant point of controversy before state courts. The note on the judgment by the Upper Regional Court Munich identifies opposing trends in German and European case law. The judgment also decides on the (lack of) influence of foreign mandatory provisions, arbitrability according to foreign law and the foreign ordre public on arbitration agreements, subject to German law.

C. Althammer/J. Wolber, Cross-border enforcement of coercive fine orders in Europe and limitation on enforcement
The European Court of Justice ruled in the case of Realchemie Nederland BV./. Bayer CropScience AG that decisions ordering a coercive fine fall within the scope of the Brussels I Regulation. This ruling made the German Federal Court of Justice decide upon the effects of a limitation on the crossborder enforcement of such an order. The judgment of the German Federal Court of Justice reveals a traditional understanding of the international law of enforcement and provokes the question if this approach is still appropriate for cross-border enforcement in Europe, especially as the recast of the Brussels I Regulation abolished the exequatur proceeding. The article examines the effects of obstacles resulting from national law of enforcement on the conditions of cross-border enforceability under the Brussels I and Ia Regulation. In this way the article leads into an issue that has so far not been discussed to a sufficient extent: the relationship between the cross-border enforceability of judgments and the national laws of enforcement.

P. Mankowski, Inhibitions against arrest of ships abroad inside or outside an insolvency context?
Sometimes seemingly technical cases at first instance open up a plethora of questions touching upon basics and fundamentals of international procedural law. Whether a court can inhibit parties from pursuing enforcement or arresting ships abroad in- or outside an insolvency context is precisely such a case. It touches upon the permissibility of measures against enforcement abroad and upon the universality approach in modern international insolvency law. Furthermore, it is inexplicably linked with the question to which extent (registered) ships are to be treated like real estate.

D. Otto, Internationale Zuständigkeit indischer Gerichte bei Markenverletzungen
In its decision of 15.10.2014, the Delhi High Court had to resolve whether it had competence in the international sense for a lawsuit by a U.S.-based claimant without a presence in India against an Indian-based defendant, who had his business in a different state. Under Indian civil procedure rules, a court has jurisdiction in the international sense against a defendant residing within the jurisdiction of the court. As per such rule, claimant would have to litigate before the Bombay High Court, not the Delhi High Court. The Claimant invoked a new legal provision that gives jurisdiction in disputes involving copy right or trademark violations in India also to a court at the place where the claimant carries on business. Claimant argued that it did “carry on business” within the jurisdiction of the Delhi court because its website could be accessed in Delhi. The court accepted that. This Article questions such decision as previous jurisprudence by Indian courts required that an “essential” part of claimant’s business is carried out in India; access to a website alone was deemed insufficient.

F. Heindler, Austrian Supreme Court on Remuneration of Heir Locators
The Austrian Surpreme Court in Civil Matters (Oberster Gerichtshof) has changed its jurisdiction on claims by commercial heir locators. Under Austrian law, according to the Oberster Gerichtshof, commercial heir locators are still entitled to reimbursement for expenses in negotiorum gestio. However, the amount of remuneration is no longer calculated in relation to the heir’s inheritance right.

Pourvoi c/ Cour d'appel de Montpellier, 5e chambre section A, 4 juin 2015

Pourvoi c/ Cour d'appel de Basse-Terre, 1er chambre civile, 27 février 2015

Pourvoi c/ Cour d'appel de Grenoble, chambre des expropriations, 30 juin 2015

Tribunal de grande instance de Saint Nazaire , 14 janvier 2016

Pourvoi c/ Cour d'appel d'Aix en Provence, Première présidence, 11 décembre 2015

À l’issue d’un recours en manquement introduit par la Commission européenne, la Cour de justice de l’Union européenne juge incompatible avec le droit de l’Union la législation grecque réglementant l’aménagement du temps de travail des médecins.

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Is the relationship between two insurers, having covered liability for a towing vehicle cq a trailer, each subrogated in their insured’s rights and obligations, one of them currently exercising a claim against the other in partial recovery of the compensation due to the victim, non-contractual? I reviewed Sharpston AG’s Opinion here. I believe the Court has confirmed her Opinion. However I am not entirely certain for the judgment is awkwardly phrased.

Like its AG, the CJEU dismisses a suggestion that Directive 2009/103 (relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability) includes a conflict of laws (applicable law) rule which is lex specialis vis-a-vis the Rome I Regulation. Indeed the Directive’s provisions do not indicate whatsoever that they can be stretched.

Then comes the core of the issue, the nature of the relationship underlying the claim. The AG had suggested this is contractual, using as I noted in my earlier posting, ‘centre of gravity’ (‘the centre of gravity of the obligation to indemnify is in the contractual obligation’); ‘rooted in’ (‘the recourse action by one insurer against the other…is rooted in the contracts of insurance’); and ‘intimately bound up’ (‘[the action] is intimately bound up with the two insurers’ contractual obligation‘). (at 62).

The Court did not repeat any of this terminology. It first suggests that the national court where the case is pending, needs to determine using Article 4 of Rome II (lex locus damni) whether the law so determined ‘provides for apportionment of the obligation to compensate for the damage’. This the AG had not expressly pondered, rather it may be implicit in her use of the conditional ‘where two or more insurers are jointly and severally liable’ ((only) used at 71 of her Opinion). Next, the Court holds, if there is such apportionment, the law applicable to the action for indemnity between the insurers of the tractor cq the trailer, needs to be determined using Article 7 of Rome I (which applies to insurance contracts).

The referring courts were looking I believe for more straightforward advice. Instead I fear the many conditions precedent expressed in the judgment may well leave plenty of room for counsel to further confuse these national courts. This arguably may have a knock-on effect given the repeated insistence by the CJEU that the provisions of Brussels I (Recast) on contract and tort, need to be applied in parallel with those of Rome I and II (not something I necessarily agree with but have come to accept as standing CJEU precedent).

Geert.