EAPIL blog

The EAPIL Working Group on the Reform of the Brussels I bis Regulation has set up a survey to collect feedback and comments on the proposals formulated in the preliminary position paper.  

By now, over 60 participants from many different Member States have answered the survey. To allow an even broader participation, the deadline for taking the survey has been extended until 15 April 2023.

Participation in the survey is open to anybody interested in the reform of the Brussels I bis Regulation, non matter whether they are members of the European Association of Private International Law, or not.

A conference on the codification of European private international law will take place on 21 April 2023 at the Université Catholique de Louvain. The conference, titled Vers un code Européen de droit international privé, is meant to be a tribute to Marc Fallon.

The working language will be French and English.

Speakers and moderators include: Jean-Yves Carlier, Stéphanie Francq, Pietro Franzina, Cristina González Beilfuss, Fabienne Jault-Seseke, Thomas Kadner Graziano, Catherine Kessedjian, Patrick Kinsch, Thalia Kruger, Paul Lagarde, Johan Meeusen, Marie-Laure Niboyet, Etienne Pataut, Fausto Pocar, Sylvie Sarolea, Andreas Stein, Jinske Verhellen, Pieter-Augustijn Van Malleghem, Melchior Wathelet, Patrick Wautelet, Alain Wijffels, Dai Yokomizo. The concluding remarks will be offered by Marc Fallon.

The concept is as follows.

Why and for what purpose should European private international law be codified? This twofold question will be at the heart of the discussions on April 21, 2023, during a colloquium paying tribute to the remarkable work of Professor Marc Fallon in the fields of private international law and European law, and in particular to his involvement in the Belgian and European codification of private international law.

How did we come to envisage a European codification of private international law? What do we expect from it? Does an EU codification have the same ambitions as national codifications? Do these ambitions not vary according to the place, the time and the context of international constraints imposed on the legislator? Does a codification at the European level, and at the present time, imply specific needs, challenges and consequences, even dangers, for both the national and the European legal orders?

And above all, does it offer new prospects or hopes for the European project and for the discipline of private international law?

The full programme is available here, together with the registration form.

The EAPIL Working Group on the Law Applicable to Digital Assets has issued a Position Paper to comment on the private international law aspects of the Draft Principles and Commentary on Digital Assets and Private Law issued by UNIDROIT in January 2023.

The Position Paper can be found here.

The issue of the applicable law to digital assets, which is the subject matter of the Position Paper, will be taken up jointly by UNIDROIT and the Hague Conference on Private International Law, which have announced earlier this month their plan to launch the HCCH-UNIDROIT Project on Law Applicable to Cross-Border Holdings and Transfers of Digital Assets and Tokens.

The EAPIL Working Group will follow the joint work of HCCH and UNIDROIT.

The author of this post is Stefano Ferrero, partner at Gattai Minoli, Milan.

As a follow-up to the post by Pietro Franzina on this blog regarding the approach of Italian courts to worldwide freezing injunctions issued in common law countries, I would like to share some additional information and remarks on the matter.

By a ruling of 28 December 2021, the Court of Appeal of Naples provided guidance also to the second issue mentioned in the post, i.e., whether a worldwide freezing order should undergo some adaptation in the State requested (in particular, Italy) at the stage of enforcement.

It is worth noting that the relationship between the sequestro conservativo, a precautionary measure typical of the Italian legal system, and the freezing (formerly Mareva) injunction (or order), a precautionary measure typical of English law, has long been the subject of doubts and uncertainties. The difficulties encountered reflect, in my view, a misunderstanding.

Based on the assumption that a sequestro operates in rem whereas a common law freezing injunction operates in personam, and that the two measures would accordingly be fundamentally different in substance, Italian Land Registrars have generally refused to record English freezing orders affecting immoveable property located in Italy.

Registrars have mostly relied, for this purpose, on a decision rendered in January 2014 by the Court of First Instance of Bologna, which rejected a complaint pursuant to Articles 2674 bis of the Italian Civil Code and 113 ter of the Italian Civil Code made against the temporary and precarious registration of a freezing order that was effected pursuant to Article 2674 bis of the Italian Civil Code.

However, Land Registrars have apparently long been unaware that in June 2014 the Bologna Court of Appeal (with the agreeing opinion of the Attorney General’s Office) had then upheld the complaint against the Bologna Court decree, ordering the Registrar to proceed with registration without reservation.

A similar case has been brought a few years later in Naples. The Registrar had ordered the registration with reservation of an English freezing order, the Court had rejected the complaint with a decree of December 2020 that the Court of Appeal of Naples eventually overturned (under an unreported decision, available here, in Italian), despite the opposition of the Italian revenue authorities (Agenzia delle Entrate).

The decisions of the two Courts of Appeal share the basic idea that the distinction between the sequestro as a measure in rem and the freezing order as a measure in personam has no relevance in the context of the present discussion: a careful examination of the rules of the two judicial remedies (as regards the United Kingdom, the Civil Procedure Rules, the Land Registration Act 2002 and the Land Registration Rules 2003) reveals that they have, also from the point of view of their operation and effects, profound similarities.

Such conclusions had already been reached in 2015 by the English High Court (Arcadia Petroleum Ltd and others v Bosworth and others [2015] EWHC 3700 (Comm) – 15 December 2015), that had declared the full equivalence between English freezing orders and continental attachments, confirming that the (however limited) difference between in rem and in personam nature is, in fact, a false problem.

Moreover, the two Italian measures are based on the assumption that within the European judicial area there is the fundamental principle, confirmed by Article 54 of the Brussels I bis Regulation, whereby the requested State must implement unknown foreign measures by adapting them in the manner and with the effects proper to an equivalent domestic measure.

Admittedly, adaptation may not be available where the foreign measure in question is at odds with the fundamental principles of the requested Member State.

With reference to this last profile, the Court of Appeal of Naples confirmed in the unreported decision mentioned above the full compatibility of the freezing orders with Italian public policy. The Court emphasized that the good arguable claim and the fumus boni iuris tests are largely equivalent, as do the risk of dissipation and periculum in mora tests. Registration in the Italian land registers and the restriction in the English Land Registries are also similar, in that they have an effect limiting the circulation of the goods affected, although the restriction imposes an ex ante (and stricter, for it concerns the validity itself of the act of disposal) limit, whereas the registration operates ex post through the sanction of the relative ineffectiveness of the act of disposal.

The Court of Appeal eventually endorsed the principle affirmed by the Court of Cassation in the ruling of 2021 reported by Pietro Franzina in his post, which had already clarified that the fact that the violation of a freezing order may give rise to a personal criminal sanction (the contempt of court) is a recurring consequence also in Italian law, which punishes the failure to comply with court orders (Article 388 of the Criminal Code).

Freezing orders, i.e., orders that prevent a person from disposing of their assets pending a determination as to the existence of a claim, are governed by procedural rules that vary greatly from one legal system to another.

English courts, and more generally the courts of common law jurisdictions, may grant orders that can prove remarkably powerful in practice.

Unlike the freezing injunctions that civil law courts are normally permitted to issue, which operate in rem, English freezing orders are in personam measures. They are not given in respect of one or more assets designated for this purpose,  but rather address the person of the (alleged) debtor. The latter will found themselves in contempt of court, and face the relevant penalties (which may include imprisonment, in some circumstances), if they ignore or breach the order.

How Well Do Freezing Injunctions Travel Abroad?

Injunctions granted in common law countries may aim to prevent the person concerned from disposing of any of their assets, mo matter whether those assets are located in the forum State. The issue arises then of whether a “worldwide” freezing injunction may be given effect in a State other than the State of origin, notably a State whose law ignores in personam precautionary orders.

The enforceability of a foreign worldwide freezing injunction can only be at issue, in reality, where and to the extent to which the law of the State where the assets are located includes interim measures among the foreign decisions that are eligible, in principle, for recognition and enforcement.

Domestic rules on the recognition and enforcement of foreign decisions mostly exclude interim measures from their scope, but some internationally uniform texts provide otherwise, subject to appropriate safeguards. That is the case, in particular, of the Brussels I bis Regulation, pursuant to Article 2(a), which applies to provisional measures originating in a Member State of the Union.

The markedly different approach to freezing orders followed by civil law and common law jurisdictions, respectively, involves that injunctions emanating from a common law country could be denied (recognition and) enforcement in a civil law country on grounds of public policy. Secondly, where a common law injunction is not prevented as such from having effect in a civil law State, the issue may arise of whether, and how, the measure should undergo some adaptation (as the term is understood in Article 54 of the Brussels I bis Regulation) in the State requested, at the stage of enforcement.

The View or the Italian Supreme Court’s on the Issue

A ruling of the Italian Supreme Court (order No 25064, of 16 September 2021) provides an illustration of the kind of concerns that may surround the first of the two issues above (the second issue will not be discussed here).

The Case in a Nutshell

The Supreme Court’s ruling, in reality, only deals with the issue in an indirect way. The question, in fact, was not whether a foreign freezing injunction qualified for enforcement in Italy, but rather whether a foreign judgment on the merits ought to be denied recognition on the ground that, in the course of the proceedings leading to that judgment, a freezing injunction had been granted against the party that eventually lost the case.

By a judgment of 2011, the Royal Court of Guernsey awarded damages to Credit Suisse Trust Ltd for the negligent performance by N.G. and others of their obligations under a contract for professional services (it is worth noting that during the period when the United Kingdom was a Member State of the European Union, Guernsey was neither a Member State nor an Associate Member of the Union; some EU law provisions applied to Guernsey and in Guernsey, but these did not include legislation on judicial cooperation in civil matters, such as the Brussels I Regulation).

Credit Suisse Trust filed an application with the Court of Appeal of Rome to have the judgment enforced in Italy. The Court, however, dismissed the request on the ground that the judgment failed to meet the requirements for recognition set out in Article 64(b) and (g) of the Italian Statute on Private International Law. Article 64(b) provides that a foreign judgment may not be recognized in Italy if the act instituting the proceedings was not served upon the defendant in conformity with the law of the State of origin and if the basic rights of defence (“i diritti essenziali della difesa”) were violated in the proceedings in that State. Article 64(g), for its part, stipulates that a foreign judgment may not be given effect in Italy if doing so would contravene public policy.

The Court of Appeal came to this conclusion based on the fact that, on 26 January 2011, upon a request by Credit Suisse Trust, the Royal Court of Guernsey had granted a freezing order which restrained N.G. from dealing with his assets, whether located in Guernsey or anywhere else in the world, under penalty of contempt of court. The order belonged to the kind of interim measures that English courts used to refer to as Mareva injunctions.

The measure in question, the Court of Appeal noted, was an in personam freezing injunction, whereas, under Italian law, a freezing order cannot operate otherwise than in rem, meaning that it necessarily refers to one or more particular assets, specified in the order itself.

Additionally, the Court of Appeal noted that the Guernsey Court had ordered that the respondent disclose his most valuable assets, and do so within days, again under penalty of contempt, whereas Italian law courts are generally not permitted to impose a duty of disclosure of this kind, let alone one requiring such a prompt reaction, in connection with an asset preservation order. According to the Court of Appeal, the Royal Court of Guernsey had, by granting a freezing injunction with the described characteristics, undermined the ability of N.G. to present his case, and had significantly limited N.G.’s right to deal with his assets.

The result, the Court of Appeal found, was all the more objectionable since the orders of the Royal Court of Guernsey apparently failed to put any burden on the other party in the proceedings and its assets. In the view of the Court of Appeal, all this substantiated a violation of the principle of the equality of arms, as well as of the principle whereby all parties should be given an opportunity to effectively present their case, which implies the right to adequate time and facilities to prepare a defence.

Credit Suisse Trust sought to have the ruling of the Court of Appeal quashed by the Italian Supreme Court. The move proved successful.

The Supreme Court’s Ruling

The Corte di Cassazione held that the fact that the order was of a kind unknown to Italian law does not entail, as such, that the proceedings were unfair, let alone that the resulting judgment should be barred from recognition. The public policy defence, taken in its procedural limb, can only succeed, the Supreme Court reasoned, where it clearly appears that the proceedings before the court of origin were tainted by a serious violation of basic procedural rights.

Thus, a judgment on the substance of the case may not be refused recognition on grounds of public policy for reasons relating to an interim measure given in the course of the proceedings in the State of origin, unless it is established that, by granting such a measure, the court of origin violated the procedural rights of the party concerned in such a fundamental way as to undermine the fairness of the whole proceedings. The Corte di Cassazione, however, found no evidence of such a violation in the circumstances. In fact, the Court considered that the freezing order and the disclosure order came with appropriate safeguards and concluded that the Guernsey judgment fulfilled the conditions for recognition in Italy.

The Supreme Court reached this conclusion based on an analysis of the concerns underlying the common law and the Italian law approach to freezing injunctions.

The Court began by observing that Interim measures, specifically those aimed at preserving assets, are an essential component of all domestic legal systems. They are not meant, as such, to discriminate the alleged debtor vis-à-vis the requesting party. The goal of interim measures is rather to ensure the effectiveness of the decision that the court is ultimately asked to render and avert such risks as may be associated with the time needed to bring the proceedings on the substance to an end.

While the goal pursued is basically common to all legal systems, each jurisdiction surrounds interim measures with the safeguards that it considers appropriate. One should not give a decisive weight to the diversity of these safeguards, the Supreme Court argued, insofar as they all ensure the equality of the parties’ arms.

One key question, then, is whether, in the State of origin, the person affected by the order had been granted “arms” which enabled him to react to the “arms” of the other party. In the case at hand, the Supreme Court noted, the Royal Court of Guernsey had retained the power to revoke and modify the measure upon a request by the alleged debtor, and had the power to require the applicant to enter into such undertakings on such terms as may be specified, notably to compensate such prejudice as the freezing order may cause to the other party. Significantly, the Supreme Court added, a failure to comply with such an undertaking may result in the applicant, too, being in contempt of court, in the same way as the respondent in the event of a failure to observe the freezing or the disclosure orders.

The Supreme Court further observed that the fact that the Guernsey orders involved the threat of harsh penalties in case of non-compliance does not entail that the granting of the measures in question necessarily involve a violation of procedural public policy.

The Court acknowledged that indirect coercive measures raise some delicate issues. It noted, however, that recourse to coercive measures to promote compliance with a court order is not alien to the Italian legal system: Article 388 of the Italian criminal code, for example, makes it a criminal offense to deliberately evade from an order given in court proceedings, and Article 127 of the Italian code on intellectual property goes as far as to criminalize any failure to answer (or any false information in response to) the questions that a court may ask where seized of proceedings relating to counterfeiting and other infringements of intellectual property rights. According to the Supreme Court, this is an indication that the mere fact that the provision of penalties, in common law jurisdictions, for the non-compliance of freezing orders is not in itself a reason to regard such orders as inconsistent with Italian public policy.

A more detailed analysis of the ruling (in English) can be found in a comment which appeared on the open-access journal Italian Review of International and Comparative Law, published by Brill.

As already announced on this blog, the University of Bonn will host a two-day conference titled The HCCH 2019 Judgments Convention: Cornerstones, Prospects, Outlook, 9 and 10 June 2023.

The event, organised in cooperation with the Permanent Bureau of the Hague Conference on Private International Law, is meant to provide a comprehensive analysis of the Hague Convention of 2 July 2019 on the recognition and enforcement of foreign judgments in civil and commercial matters, and to assess its possible implications in various regions of the world.

Opened by welcome addresses by Matthias Weller (University of Bonn) and Christophe Bernasconi (Secretary General of the Hague Conference on Private International Law), the conference will feature panels  moderated by Moritz Brinkmann, Nina Dethloff, Matthias Lehmann, João Ribeiro-Bidaoui, nd Melissa Ford. Speakers include Xandra Kramer, Wolfgang Hau, Pietro Franzina, Marcos Dotta Salgueiro, Cristina Mariottini, Paul Beaumont, Andreas Stein, Linda J. Silberman, Geneviève Saumier, Ilija Rumenov, Burkhard Hess, Béligh Elbalti, Abubakri Yekini, Chukwuma Okoli, Verónica Ruiz Abou-Nigm, Adeline Chong, Zheng (Sophia) Tang, Ning Zhao, José Angelo Estrella-Faria, and Hans van Loon.

Registrations are still open. Those willing to attend are invited to write an e-mail to sekretariat.weller@jura.uni-bonn.de.

The full programme, together with information concerning the registration fees and other practical aspects, can be found here. See also the conference poster here.

A collection of essays on the Judgments Convention, written by the experts involved in the conference, is due to be published by Bloosmbury in May 2023.

 

The author of this post is Francesca Maoli (University of Genova).

On 9 March 2023, the CJEU delivered a judgment on the European Certificate of Succession, created by Regulation No 650/2012 on matters of succession, and the recording, in a land register, of a right of ownership in immovable property (C‑354/21, R.J.R. v Registrų centras VĮ).

The Court held that land registry authorities of a Member State may reject an application for registration of immovable property, where the only document submitted in support of that application is a European Certificate of Succession which does not identify the immovable property in question.

The Case

The facts of the case are summarized here. The matter concerned the refusal of the Lithuanian VĮ Registrų centras (State Enterprise Centre of Registers) to register ownership rights on the basis of a European Certificate of Succession alone, which was issued by the competent German probate court. According to Lithuanian authorities, the Certificate did not contain the data required by the Lithuanian Law on the Real Property Register, as it did not identify the immovable property inherited by the applicant. In other words, no information was provided to clearly detect the asset(s) attributed to the heir for whom certification was requested.

The decision was appealed and the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania) referred a question to the CJEU for a preliminary ruling. The Lithuanian judge highlighted a prima facie incompatibility between German succession law and Lithuanian law concerning the recording of a right of ownership in land registers. In fact, German law of succession is governed by the principle of universal succession and consequently, it is not possible to indicate or designate the assets forming part of the estate. In particular, according to the Lithuanian court, this happens where a single heir inherits the deceased’s entire estate. On the other hand, the Lithuanian Law on the land register provides that an application for registration of rights in rem in immovable property shall contain supporting documents and information that allow for precise identification of the immovable property in question: in particular, it requires the address and the so-called Unikalus No. (unique number of the property).

The Court’s Ruling

The CJEU – by reframing the question proposed by the domestic court – identified the issue as concerning not only the relationship between Article 1(2)(l) and Article 69(5) of the Succession Regulation, but also Article 68, that specifically concerns the content of the European Certificate of Succession.

The Court highlighted that Article 1(2)(l) of the Succession Regulation excludes from its scope of application “any recording in a register of rights in immovable or movable property, including the legal requirements for such recording, and the effects of recording of failing to record such rights in a registers”. According to Article 69(5), the European Certificate of Succession constitute a valid document for the recording of succession property in the relevant register of a Member State “without prejudice to points (k) and (l) of Article 1(2)”. Coherently, the Certificate contains certain information in so far as it is necessary for the purpose for which it is issued and “if applicable, the list of rights and/or assets for any given heir” (Article 68(l)).

According to the CJEU, the content of the Certificate may vary from case to case. However, this does not depend only on the applicable succession law, but rather on the purposes for which the Certificate is issued. While the Certificate may constitute a valid document for the recording of succession property in public registers, the legal requirements for such recording are governed by national law. This means that, according to the Succession Regulation, each Member State is free to determine the conditions for the registration of an immovable property and may impose the applicants to include all identifying data of such a property. If the only supporting document to the application is a European Certificate of Succession which does not contain those information, national authorities may reject that application.

Assessment  

The CJEU adopted an interpretation of the Succession Regulation that does not go beyond the intent and aim of its provisions. While the European Certificate of Succession has the scope to demonstrate the quality and the rights of the heirs, Article 1(2)(l) is clear in attributing to national law the discipline of the legal requirements for property registration. According to the CJEU, the effet utile of the Certificate is not undermined by the need to identify the immovable property on which the heir may exercise their rights.

Indeed, the CJEU’s reasoning is coherent with the position expressed by the European Commission already in 2016. In response to a question from the European Parliament, the Commission stated that the European Certificate of Succession must contain all the required information, based on the purpose for which it is issued: since the function of the certificate is primarily to enable the heir to prove their status with regard to the assets of the estate located in another Member State, it is necessary for these assets to be identified and described in the document. Only in this way can the certificate constitute a valid title for the registration of the property in the relevant registers of a Member State.

In the specific case, the situation was quite straightforward: as the heir was the sole heir, the German probate court could have easily identified the assets, especially if Lithuanian registers were to make it possible to trace a deceased person’s property. On the other hand, German case law considers this practice incompatible with German inheritance law, regardless of the circumstances of the case. At the same time, Lithuanian law is free to determine the rules and conditions for property registration: the Succession Regulation is clear in this regard.

Indeed, an interesting consideration stems from the opinion of Advocate General Szpunar, who fostered the effet utile of the European Certificate of Succession, which the CJEU did not follow.  According to the Advocate General, the content of the Certificate is determined by the applicable succession law. Since German law adheres to the principle of universal succession, the heir succeeds to the estate as a whole, rather to particular assets, which are transferred as a totality. This means that the fragmentation of domestic succession laws may indeed undermine the effet utile of the Certificate, since the Certificate alone may not be sufficient to allow for the recording in national land registers and therefore to produce its effets in all Member States according to Article 69(5).

Following the publication of her monograph on PIL and non-judicial divorce, I have invited Nuria Marchal Escalona to provide an overview of the topic with a focus on the Spanish case. Nuria Marchal is a professor of Private International Law at the University of Granada (Spain).

The tag ‘non-judicial divorce’ does not refer to a single reality; it rather encompasses a number of ways to getting divorced out of court.

The comparison among legal systems allows for the conclusion that the regulation of non-judicial divorce is actually quite diverse, even in neighboring countries.

Roughly summarized, three models co-exist currently. In some jurisdictions, the competence for the dissolution of marriage in non-contentious cases is conferred to non-judicial authorities such as civil registrars, notaries or even mayors, in such a way that their intervention has a proper constitutive effect. This would be the case of Spain.

In other countries, like France, divorce results from the agreement of the spouses. There, the public authority’s role is very limited (Article 229-1st French Civil Code).

Finally, the dissolution of the marriage is pronounced by a religious court in Islamic-inspired legal systems, and are considered as ‘private divorce’.

This diversity accounts to a large extent for the difficulties met by applicants asking for a non-judicial divorce granted elsewhere to be effective in Spain. But also the issuance of a notarial deed of divorce in Spain in situations involving cross-border elements has to surmount a number of obstacles. The most relevant ones are address hereinafter.

Basic Features of Notarial Divorce in Spain

The de-judicialisation of the marital relationship took place in Spain by virtue of Law 15/2015 on Voluntary Jurisdiction. The Act empowers notaries to authorise divorce by mutual consent in both domestic and international cases. To this end, the spouses must draw up a regulatory agreement (Article 87 Civil Code). Besides, some material and procedural requirements must be fulfilled: a Spanish notary cannot issue a public deed of divorce if the settlement agreement is detrimental to one of the spouses, nor where there are non-emancipated minors, or minors with judicially modified capacity, who are dependent on the parents (moreover, children living in the family home and lacking an own income must consent to the measures affecting them).

A notary is also prevented from dissolving the marriage if the parties do not appear in person before him. In practice, however, this last requirement has fortunately been removed by Resolution of 26 January 2021 of the Dirección General de Seguridad Jurídica y Fe Pública allowing for the authorisation of a notarial deed of divorce with the intervention of a special proxy.

International and Territorial Jurisdiction

Spanish notaries can only grant a notarial deed of divorce in cross-border cases provided they are competent (internationally and territorially), both for the dissolution of the marriage and for determining inextricable related matters such as the financial regime of the marriage, the use of the home, or compensatory pension.

It should be noted that Spanish notarial authorities are not entitled to decide on the custody of minors – in other words, as already stated notarial divorce is only possible if the children of the marriage are of legal age, or emancipated.

To determine international jurisdiction, the notary will need to look into an array of legal instruments respectively addressing divorce and ancillary matters (maintenance, use of the family home and matrimonial property regime). This is the outcome of the limited material scope of application of the rules at stake. By way of consequence, the notary will be confronted with issues of characterization, as he will have to decide, for instance, if a particular institution pertains to maintenance or rather to the matrimonial property regime.

Already the question of the legal instruments applicable to the notary’s competence has not a straightforward answer. Whether Spanish notaries are bound by the provisions of the European instruments regulating international jurisdiction in the above-mentioned matters (Regulation No. 2019/1111, or Brussels II ter; Regulation No. 4/2009; Regulation No. 2016/1103), is unclear. It depends on whether they are ‘courts’ in the sense of the Regulations. However, the very notion is not univocal but varies from one instrument to another. Thus, while given the very broad concept of ‘court’ under Article 2.1 Brussels II ter, Spanish notaries will apply this Regulation to determine jurisdiction, they cannot rely on either Regulation No. 4/2009 or Regulation No. 2016/1103 to the same effect, for, according to them, they are not ‘courts’. For subject matters under the latter two Regulations, they are therefore bound by the jurisdictional criteria set out in the Spanish Organic Law of the Judiciary, in particular those listed in Article 22 quater f) for maintenance issues and in Article 22 quater c) for the dissolution of the marriage, and, where appropriate, the liquidation of the matrimonial property regime.

To grant the divorce, the notary has to be territorially competent too. Mismatches may arise in this regard. The allocation of competence among Spanish notaries to authorise a public deed of divorce follows Article 54 of the Notaries Act of 28 May 1862, according to which the spouses must give their consent either before the notary of their last common domicile or that of the domicile or habitual residence of any of them. It may happen that the international jurisdiction criteria do not allow for the identification of the notary territorially competent as indicated by the provision. Where two Spanish nationals resident in Germany apply for a notarial divorce in Spain, the Spanish notary will have international competence, but lack the territorial one. In such cases, one may argue the spouses can apply for divorce before any notary in Spain. The misalliance shows that the provisions of the 1862 Act are not adapted to the particularities of cross-border cases; de lege ferenda it should be amended.

Applicable Law

The ascertainment of the law applicable to grant a public deed of divorce in cross-border cases is also a complex operation. The dissolution of the marriage has further consequences on the relation between the spouses, which must be dealt with separately from the divorce. Just like with international jurisdiction, this is a consequence of the limited scope of application of the rules currently in force. And, again, delimitation problems are accompanied by delicate issues of characterization, with which the Spanish notarial authorities must contend once they have identified the relevant legal regime, which depends in turn on whether they are ‘jurisdictional bodies” as required in the EU Regulations (and related Hague instruments).

There is no consensus on the meaning of ‘jurisdictional bodies’ for the purposes of applying the EU and Hague provisions on applicable law. The lack of agreement impacts negatively on the overall coherence of the system. It is here posited that a Spanish notary, when dissolving a marriage, is vested with a decision-making function of a constitutive nature: in other words, he exercises ‘jurisdictional functions’. Therefore, he must be considered as a ‘jurisdictional body’ in the sense of both Regulation No. 1259/2010 (Rome III) and the 2007 Hague Protocol. Moreover, the same solution should prevail for Regulation No. 2016/1103 in spite of the Communication made by the Spanish Government denying such quality to Spanish notaries. In fact, Spain should immediately correct the declaration. Nonetheless, in the meantime Spanish notaries remain bound by Articles 9.2 or 9.3 of the Spanish Civil Code in order to decide on the law applicable to the matrimonial property regime.

Regarding the specific conflict of law solutions, it is worth mentioning that choice of law is the basic connecting point under the Rome III Regulation (for divorce) and the Hague Protocol of 2007 (for maintenance), as well as under the national rules on the matrimonial property regime, although in the latter case the choice is operative only in the absence of a common nationality of the spouses (Article 9.2 of the Spanish Civil Code). This parallelism facilitates the task of the notary, as it prevents legal fragmentation and problems of qualification and delimitation. However, coordination may fail since the possibility to choose the applicable law varies in scope depending on the instrument where it is embodied.

It may thus happen that, in order to determine the legal framework of the divorce and the ancillary issues, a notary must combine the law chosen by the parties for the dissolution of marriage with another one(s), the latter being ascertained through objective connecting points. Let’s take spouses of Spanish nationality residing in Italy and choosing Italian law to dissolve their marriage in Spain before a notary: the chosen law will be applicable [ex Article 5 a) R. Rome II] to the divorce, whereas Spanish law, ex Article 9.2 of the Spanish Civil Code, will rule on the economic regime of the marriage.

On a side note, it should be added that notarial divorce in Spain may be unnecessarily expensive due to the Spanish Declaration to the Rome III Regulation, coupled with a Resolution-Consultation of the Dirección General de Seguridad Jurídica y Fe Pública of 7 june 2016. According to the Declaration, the choice of law agreement must be concluded prior to obtaining the divorce – in other words, it is not possible before the court.

Besides, additional formal requirements under Article 7 of the Regulation are needed: the choice of law must be granted in an authentic instrument (before a notary public), or an ‘authentic document’ (a document whose date and signatures by the parties are unequivocal, even if it does not take the form of a notarial instrument). Eventually, choosing the applicable law requires a public document different from the public deed of divorce – therefore, higher costs for the spouses.

Recognition

As of today, the recognition in Spain of foreign non-judicial divorce raises many doubts. Due to the plurality of rules in Spanish private international law, this is a highly topical issue, both essential and complex, starting with already with the determination of the applicable rules. One must take into account, besides the usual variables (origin of the divorce, date on which it was granted), the type of non-judicial divorce at stake. This requires examining if a public authority was involved and the role it played: whether or not it has exercised a constitutive function, and (more relevant), whether or not it has performed functions equivalent to those allocated to Spanish courts.

Under the broad concept of ‘court or tribunal’ under Brussels II ter and Regulation No. 4/2009, all authorities in the Member States with jurisdiction in matters falling within the scope of said Regulations can be considered as belonging to such category. That is to say, for the purposes of these instruments, any authority, official or professional is a ‘court’ provided that the legal system to which it belongs confers on it the power to dissolve the marriage.

The CJEU ruled along these lines in its judgment of 15 November 2022 (Case C-646/20): a divorce settlement entered into before the Italian Registrar of Vital Statistics equates a court decision, provided that the issuing authority carries out a review of the settlement, i.e., of the conditions of the divorce under national law, and of the validity of the spouses’ consent. By analogy, a Spanish notarial divorce must be recognised as a ‘judicial determination’ in other Member States, since Spanish notaries perform such tasks. Had it not been withdrawn, the question referred to the Court of Justice of the European Union for a preliminary ruling in Case C-304/22 should had been solved along these lines.

The other ‘side of the coin’ of this broad definition of ‘court’ as interpreted by the CJEU is that a foreign divorce where the public authority has merely approved a private act does not constitute a judicial decision in the sense of the Regulations. This does not automatically entail the non-recognition of such divorce. In fact, Article 65 Brussels II ter acknowledges the effectiveness of registered private agreements and connects them with court judgments. From the procedural point of view, the equating of registered agreements to court decisions implies their automatic recognition in the terms of Article 30 et seq. of Brussels II ter.

Where European rules do not apply, conventional rules come to the forefront. Spain is a contracting State to a considerable number of bilateral conventions on recognition of decisions (ad ex. Colombia, Russia and China).  However, for non-judicial divorce such conventions have little impact, either because family matters are excluded from their scope of application, or because they only apply to the recognition of ‘judicial decisions’, meaning those originating from jurisdictional bodies. This is the reason why many times the legal regime applicable to the recognition of a foreign non-judicial divorce will be defined by national (autonomous) rules. In Spain, there is a plurality of sources in the area:

• The Third Additional Provision of Law 15/2015 on Voluntary Jurisdiction, on the registration of foreign public documents in public registers.
• Articles 11 and 12 of the same Law, addressing registration in public registers of foreign decisions on voluntary jurisdiction (Article 11), and the effects in Spain of voluntary jurisdiction proceedings and acts agreed by foreign authorities (Article 12).  Such provisions prevail over Article 41.2 of Law 29/2015 on International Legal Cooperation in Civil Matters, in accordance with the First Additional Provision of the International Legal Cooperation Act.
• Articles 323 and 144 of Law 1/2000 on Civil Procedure, on the recognition of foreign public documents.
• Articles 96 and 97 of Law 20/2011 on the Civil Register. These provisions deal with the recognition of foreign non-judicial decisions (Article 96) and of foreign extrajudicial documents (Article 97). They should prevail over the Law on Voluntary Jurisdiction when an application is made for the dissolution of the relationship to be registered with the Spanish Civil Registry.

In light of the foregoing, it is easy to imagine that ascertaining the competent rule and, therefore, the conditions to be checked to grant effects to a foreign extrajudicial divorce, can become a quite complicated endeavor.

It does not only depend on the type of divorce obtained (notarial, registered, etc.), thus on the document recording the divorce (notarial deed, extrajudicial decision or public act), but also on the effect that the recognition is intended to have (constitutive, evidentiary, entry into an official registry).

But, fundamentally, it will be conditional upon the function performed by the intervening authority, and on whether it corresponds to those of the Spanish judicial authorities in the field. Eventually, whether the foreign non-judicial divorce falls under the category of foreign ‘judicial decision” or rather under that of foreign ‘public document’, and the corresponding regime, depends on the answer to these questions.

The recognition of so-called ‘private divorces’, i.e. those dictated by a religious authority, poses even greater problems even if they are subsequently approved by a foreign authority. To qualify as a ‘decision’ and, therefore, for the autonomous legal regime on recognition of judgments to apply, the authority must have performed a constitutive function: in other words, it must have acted with ‘imperium’ in accordance with the system of origin. Otherwise, the foreign divorce will get a conflict-of-laws treatment. However, after the amendment of Article 107.2º of the Civil Code in 2015, there is no rule for that purpose under Spanish autonomous PIL provisions.

And, finally, it should not be forgotten that, more often than not, the decision or document on the dissolution of marriage by a non-judicial authority includes statements on the economic regime of the marriage, alimony and even parental relationship. According cross-border effectiveness to a foreign non-judicial divorce does not automatically benefit those ancillary matters. Let’s take a non-judicial divorce by mutual consent by notarial deed from Cuba: in Spain, it will generally be recognised as a non-contentious judicial decision under autonomous PIL. Should the divorce be accompanied by decisions on parental responsibility, the latter will fall under the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. The regulatory fragmentation existing in Spanish law in the area may give rise to problems of consistency, and eventually lead to semi-claudicating divorces, meaning that they are effective in terms of the dissolution of the marital bound, but not in terms of its effects in relation to children, maintenance or the liquidation of the matrimonial property regime.

It has already been announced on this blog that a conference on The Law of Treaties as Applied to Private International Law is set to take place in Milan, on 5 and 6 May 2023, under the auspices of SIDI, the Italian Society of International Law and EU Law, and EAPIL.

The early bird period, which was initially meant to end on 6 March, has been extended until 20 March 2023. Those registering before the latter date will benefit from a discounted registration fee of 80 Euros (further reduced to 50 Euros for PhD students and those who earned their PhD over the last few weeks).

For more information, and the registration form, see here.

On 8 February 2023, the European Commission presented two proposals, the purpose of which is to pave the way to the negotiation (and conclusion) of bilateral agreeements between France and Algeria in the field of private international law.

One proposal is for a decision of the Council of the Union and the European Parliament that would authorise France to negotiate a bilateral agreement on matters related to judicial cooperation in civil and commercial matters (COM/2023/65 final). The other is for a Council decision authorising France to negotiate a bilateral agreement with Algeria on matters related to judicial cooperation concerning family law matters (COM/2023/64 final).

The future agreements are meant to replace bilateral agreements concluded in 1962, 1964 and 1980, and to align cooperation with Algeria with EU standards in this area.

The subject matter of the new agreements falls, to a large extent, within the exclusive external competence of the Union. In these circumstances the negotiation of bilateral agreements of Member States with third countries is generally limited to the possibilities offered by the special mechanism provided by Regulation No 662/2009 (on particular matters concerning the law governing contractual and non-contractual obligations) and Regulation No 664/2009 (regarding jurisdiction, recognition and enforcement of judgments and decisions in matrimonial matters, matters of parental responsibility and matters relating to maintenance obligations, as well as regarding the law applicable to matters relating to maintenance obligations).

Also relevant, in principle, is Article 351 TFEU. This begins by establishing that the rights and obligations arising from agreements pre-dating the launch of the European integration process between one or more Member States on the one hand, and one or more third countries on the other, are not affected by EU law. However, the provision goes on to state that, to the extent that such agreements are not compatible with the Treaties (and EU legislation), “the Member State or States concerned shall take all appropriate steps to eliminate the incompatibilities established”.

When the prospect of one or more bilateral agreements between the two States emerged, in 2016, the Commission, while recognizing the exceptional economic, cultural, historical, social and political ties between France and Algeria, remarked that, in its judicial cooperation with third States, the Union broadly relies on the existing multilateral framework, such as the one created by the Hague Conference on Private International Law, rather than bilateral agreements. The Commission observed that  authorising a Member State to negotiate and conclude bilateral agreements with third countries in the area of civil justice falling outside the scope of Regulations No 662/2009 and No 664/2009 would not be in line with the EU policy in this field.

The position of the Commission was later reviewed in light of further developments and additional information, including the fact that an accession of Algeria to key Hague Conventions was (and still is) unlikely to happen in the foreseeable future (Algeria is not a member of the Hague Conference and has not acceded, so far, to any convention elaborated under the auspices of the Conference), and the fact that an EU-Algeria agreement related to judicial cooperation in civil matters is not planned by the Commission.

The Commission observed that the EU policy in the field of private international law is based on multilateralism, and that bilateral agreements between the EU and a third country, even where the third country consistently refuses to accede to Hague Conventions, could be contemplated only where a sufficiently strong Union interest can be identified based on the substantial relevance of judicial cooperation with this country across Member States and not only for an individual Member State. In the opinion of the Commission, this is not the case of the relations with Algeria.

The Commission further contended that neither the possibility offered by Article 351 TFEU nor an authorisation under Regulations 662 and 664/2009 are applicable in the present case.

Article 351, the Commission explained, is of no avail because it applies, for a founding Member (like France), only to agreements concluded prior to 1958, whereas the existing bilateral agreements between France and Algeria date from 1962, 1964 and 1980 (the Commission does not seem to give weight to the fact that, back in 1985, the European integration process simply did not include judicial cooperation: the latter became a concern for the European Community, as it was then, only with the entry into force of the Amsterdam Treaty, in 1999).

The Regulations of 2009, for their part, are of limited help, according to the Commission, because their scope is very narrow and they do not cover the range of matters dealt with in the France-Algeria draft agreements. Besides, the Commission stressed, the two Regulations are of exceptional nature and should be interpreted in a restrictive manner.

Therefore, the Commission concluded that an ad hoc authorization under Article 2(1) TFEU to France could be considered (according to Article 2(1), where the Treaties confer on the Union “exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts”, but clarifies that the Member States are permitted to do so themselves, inter alia, “if so empowered by the Union”).

The decisions that the Commission has proposed to adopt would authorise France to negotiate (and at a later stage conclude) bilateral agreements with Algeria in matters falling within the EU exclusive external competence, having considered the exceptional ties which link these two countries, provided that this would not constitute an obstacle to the development and the implementation of the Union’s policies.

In the memorandum that accompanies the two proposals, the Commission reiterated that “multilateralism remains a cornerstone of the EU policy towards third countries in the field of judicial cooperation in civil and commercial matters”, and clarified that the authorisation to negotiate, if granted, should be “considered exceptional” and by no means serve as a precedent. The mere refusal of a third State to accede to the relevant Hague Conventions, the Commission added, “should not be regarded as a the only pre-requisite to grant an authorisation under Article 2(1) TFEU, but evidence of the exceptional situation of the relationship of a Member State with a given third country should be duly demonstrated”.

The call for papers is open for the IX International Conference on Private International Law of the Carlos III University of Madrid, which will take place on 4 and 5 May 2023.

This year’s conference will focus on the Proposal for a Council Regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood, presented by the European Commission on 7 December 2022.

The proposed papers will be selected by the Scientific Committee of the Conference, composed of Alfonso-Luis Calvo Caravaca, Heinz-Peter Mansel, Javier Carrascosa Gonzalez, Ilaria Pretelli and Fabrizio Marongiu Buonaiuti. Papers may subsequently be published in the online journal Cuadernos de derecho transnacional.

All those interested are invited to send the title of the paper they intend to propose and an abstract of a maximum length of 800 words by 17 April 2023 to the email congresodipr@uc3m.es.

For all further info, see here.

This post was contributed by Fabienne Jault-Seseke, who is Professor at University Paris Saclay (UVSQ), and a member of GEDIP.

I reported here on the French judgment which questioned the Court of Justice of the European Union (ECJ) on res judicata. Two months later, in a Recamier case, the French Court of cassation referred again to the ECJ on res judicata as reported by François Mailhé here.

AG Pikamäe delivered his opinion on 16 February 2023 in the first case C-567/21, BNP Paribas. As a reminder, the case relates to an action for payment of various sums, brought in France against a French company by one of its former employees in connection with his dismissal. Previously, he had initiated proceedings in London, his last place of work, and had obtained a judgment ordering the company to pay him compensation for unfair dismissal. In the first instance, a French labour court declared the claims relating to his dismissal inadmissible, because of the res judicata effect of the English judgment. On appeal, the judgment was overturned: the Court of Appeal considered that the various claims for compensation had not been examined by the English court.

The first question referred to the ECJ concerns the obligation to concentrate claims provided for by both legal system at stake.  The second and third questions are related to the notions of cause and subject-matter of the action. In this case, the question is whether an action for unfair dismissal in the United Kingdom has the same cause of action and the same subject-matter as an action for dismissal without real and serious cause in French law or an action for payment of bonuses or premiums provided for in the employment contract, as these actions are based on the same contractual relationship between the parties.  The answers depend on the respective role of Union law and national laws to determine res judicata. Res judicata is not mentioned in the Brussels I Regulation. So the Advocate General first looks at the relationship between res judicata and recognition. Not surprisingly, he states that res judicata is one of the facets of recognition.

AG Pikamäe focuses on two issues, that of the scope of res judicata and that of the consequences for the court of another Member State hearing a related case.

Res Judicata

In a first step, regarding the scope of res judicata and the impact of an national rule of concentration of claims, AG Pikamäe refers to the Jenard Report and the Hoffman judgment (145/86) to justify appliying the doctrine of “extension of effects”, leaving it to the law of the Member State of origin to determine the effects of the judgment invoked in a second Member State (para 46). Therefore, no independent interpretation of the res judicata is given. The Gothaer judgment that might have led to the opposite conclusion. is here irrelevant. It is specific and only apply to jurisdictional decisions.

Thus the law of the United Kingdom must be “taken into account” (applied would have been more precise) for the purpose of determining the authority and effectiveness of the judgment given by the British court (para 52).

But the obligation to concentrate claims does not affect the authority and effectiveness of the judgment (para 53). For AG Pikamäe the rule of “abuse of process”, which is the source of this obligation is not related to res judicata: it is only a means to sanction abuses (para 55). Here it seems that in a somewhat confusing way AG Pikamäe is not interpreting EU law but English law. He refers also to the scheme of Regulation 44/2001 and considers that taking into account, at the stage of the recognition of a decision, a national rule on the concentration of claims could jeopardise the subsequent implementation of the specific rules on jurisdiction in matters relating to individual contracts of employment and of the provisions governing lis pendens and related actions (para 60).  The reasoning does not really convince even in matters of employment contracts where the rules of jurisdiction ensure the protection of the worker. Indeed, one could consider that the protective effect is exhausted with the first proceeding initiated by the worker against his employer. In other words, the employee only has the option of choosing between the place of work and the employer’s home once.

AG Pikamäe goes very far in questioning procedural autonomy when he states that the application of the provisions of Regulation 44/2001 cannot depend on the content of the procedural rules of a Member State (para 62). It does not matter, he adds, that the two Member States concerned have the same rule (para 63). He concludes that a domestic procedural rule on concentration of claims is not an effective criterion for determining the authority attached to a decision given in a Member State. In short, the concentration of claims rule has no consequences for the recognition of decisions. This statement may be surprising. It is up to the law of the country from which the decision originates to specify the extent of res judicata, but the rule on the concentration of claims that it contains is not applied. Thus, while new claims could not have been made in the State of origin, they can be made in another State. Such an attitude is likely to fuel forum shopping and sharpen procedural strategies. In any case the aim of procedural economy is clearly not a priority.

Cause and Subject Matter of Action

In a second step, the opinion focuses on the concepts of cause and subject-matter. The French Cour de cassation had asked the Court of Justice whether a claim for unfair dismissal in the UK has the same cause of action and the same subject-matter as a claim for dismissal without real and serious cause under French law. It also wondered whether a claim for unfair dismissal in the UK has the same cause of action and the same subject-matter as claim for payment of bonuses or premiums provided for in the employment contract, since these actions are based on the same contractual relationship.

The answer to these questions presupposes a precise comparison of the provisions of English labour law with those of French labour law, which is beyond the role of the Court (para 71) but
AG Pikamäe suggests that the Court reformulates the questions referred to it in this way : for the purposes of Articles 33 and 36 of Regulation No 44/2001, do actions based on the same employment contract and relating to obligations arising out of the performance of that contract and to obligations arising out of its termination have the same cause of action and the same subject-matter?

As expected, a parallel between the conditions of lis pendens and those of res judicata is made. AG Pikamäe notes that “the rules on lis pendens and recognition have the common purpose of contributing to the full authority of the judgment given in the Member State of origin, which must not be called into question by a judgment given by a court in another Member State” (para 80). Consequently, he suggests transposing the criterion of identity of parties, cause and subject-matter applicable to lis pendens to res judicata (para 90). As for lis pendens, the terms cause and subject-matter must be regarded as independent.

Building on Gubisch Maschinenfabrik (144/86), Tatry (C‑406/92), and Merck (C‑231/16), AG Pikamäe considers that the claims brought before the Employment Tribunal and those brought before the French Courts, based on the same contractual relationship, are based on the same cause of action.

As regards the ‘subject matter’, the case is more complicated. The Court has stated on different occasions that this means the end the action has in view, that the concept is to be interpreted broadly and cannot be restricted so as to mean two claims which are formally identical and that account must be taken in that regard of the applicants’ respective claims in each of the sets of proceedings. AG Pikamäe distinguishes then between claims relating to the termination of the employment contract and its financial consequences and those relating to the performance of the employment contract (claims for payment of sums due for the performance of work). They have not the same subject-matter (para 106). Nevertheless, the “second” court hearing claims for payment of remuneration in respect of the performance of an employment contract should take into account the possible implications of the original decision. An example is given, the case of the determination, in accordance with the law of the State of origin, by the initial decision of the date of termination of the employment contract, which would be likely to have an impact on the end of the period during which remuneration is due.

AG Pikamäe focuses on the distinction between issues relating to the end of the contract and those relating to the performance of the contract. He considers then that a claim for unfair dismissal in the UK has not the same subject-matter that a claim for payment of sums due for the performance of work. In doing so, it leaves part of the question unanswered. Has a claim for unfair dismissal in the UK the same subject-matter as a claim for dismissal without real and serious cause under French law? A positive answer is only suggested. It is to be hoped that the ECJ will be clearer. The worker is sometimes encouraged to pick and choose among the different laws that may be applied to the employment relationship. The effect would be multiplied if he were also allowed to multiply the proceedings in different countries.

The first issue of the Journal du droit international for 2023 was released. It contains one article and several case notes relating to private international law issues.

In her article, Valérie Pironon (University of Nantes) discusses the issue of international competence in private litigation in the field of anti-competitive practices (L’adaptation des règles de compétence juridictionnelle issues du règlement Bruxelles I bis aux actions en réparation des préjudices causés par une pratique anticoncurrentielle).

The English abstract reads:

Private litigation in the field of anti-competitive practices often has a cross-border dimension justifying the application of private international law mechanisms. Where the dispute is integrated into the European Union, the rules of jurisdiction are those of Brussels I bis Regulation. The implementation of this general regulation in such a specific field of law is often problematic. It seems that the interpretation given by the Court of justice when asked is aimed at encouraging the development of these actions. However, this motivation does not result clearly from the judgments. After considering the hypothesis of a hidden adaptation of the rules of jurisdiction to the material competition stakes at issue, the article questions the prospect of a more transparent adaptation. 

The table of contents of the issue can be accessed here.

Marco Biasi (Università degli Studi di Milano) has published Decent Work and the Virtual Dimension: Reflections about the Regulation of Work in the Metaverse in Lavoro Diritti Europa 2023/1. The article (written in Italian) deals with conflict-of-laws and substantive law issues of working in the virtual world.
What is the Metaverse?

The metaverse is more than the eponymous project of Facebook, which has recently rebranded itself as “Meta”. The term was first mentioned in 1992 in the novel “Snow Crash” by Neal Stephenson, and describes a virtual space in which participants are fully immersed and can interact with each other almost as in real life. In essence, the metaverse is thus a special type of computer programme which allows people to interact in digital space. To do so, they need equipment, in particular a virtual reality headset and controllers, which are readily available today at a relatively affordable price. Nowadays, a multitude of projects exist aiming to create such a metaverse. Well-known projects in this field are Decentraland and The Sandbox, and of course the ”Metaverse” developed by Meta.

What Kind of Disputes Could Arise?

In the metaverse, various forms of activity can be performed, such as office work, reunions, sales meetings, education – under an employment agreement. As such, disputes between employers and employees will soon emerge, and with them, the question which law applies to work performed. The problem of connecting a metaverse to the labour law of a particular nation state is as obvious as it is baffling.

Where is Work in the Metaverse Habitually Carried Out?

In the European Union, according to Article 8 Rome I Regulation, the country from which or in which the work is habitually performed is of particular importance for determining the law applicable to a contract of employment, irrespective of whether there is a choice of law. Although Article 8(1) Rome I Regulation follows the principle of party autonomy by allowing the parties to choose the applicable law, this choice is limited by the mandatory rules of the country in or from which the work is habitually carried out.
At first sight, both connecting factors seem to lead nowhere given that the work is performed in the virtual space. But Marco Biasi rightly distinguishes the situation of metaverse workers from that of posted workers and pulls us down to a more realistic view point: an employee who sits in their home in country X with a headset and a controller in fact performs their work in this country, and nowhere else.

Labour Law as Overriding Mandatory Rules

This seems to settle the question, yet it would provide very strong incentives for metaverse employers to pick and choose employees living in countries with the lowest labour law standards possible. One way of avoiding this problem could be to assume a closer connection between the contract and the country of establishment of the employer under Art 8(4) Rome I. Marco Biasi suggests, however, another solution: if the employees themselves were to bring a claim in the country of domicile or seat of the employer, the courts there could apply the provisions of their national labour law as overriding mandatory rules (Art 9 Rome I Regulation).

The (possibly) too lenient rules of the place of habitual residence of the worker could thus be overcome and fairness between employer and employee could be re-established. In this way, a nucleus of essential workers protections could be preserved, e.g. the maximum working hours, the minimum wage, and health and safety rules.

There are, however, two problems with this suggestion: First, the employee would have to make the effort of bringing a suit in the country of the employer, which will often be fraught with difficulties such as distance, language, and costs. Second, the suggestion presupposes that mandatory labour law rules could be applied via Article 9 Rome I, even though Article 8 Rome I seems to conclusively determine their application. While many authors indeed are of this view, it is in no way the subject of consensus.

Going Further

Marco Biasi assumes that, in any event, the protection of the employee will be incomplete and differ from country to country. Therefore, he suggests introducing international rules (such as a convention) on the rights of metaverse employees. Some problems will be hard to solve, though; trade negotiations on behalf of a class of workers scattered around the planet will be particularly challenging. There remain, therefore, enough problems to think about even after this first in-depth study of labour law in the metaverse.

On 9 March 2023, the Court will deliver the judgment in C-177/22, Wurth Automotive. The Landesgericht Salzburg (Austria) referred the following (extremely case-specific) questions on the interpretation of the Brussels I bis Regulation and the consumers’ heads of jurisdiction:

1. Does the assessment of whether the applicant is a consumer within the meaning of Articles 17 and 18 of Regulation (EU) No 1215/2012 depend on

a) whether the applicant pursued the activity of a graphic and web designer declared by her in the proceedings only as an employed person or, at least in part, also in the context of a freelance activity at the time of concluding the contract of sale and immediately thereafter and

b) the purpose for which the applicant acquired the vehicle, that is to say solely for the purpose of satisfying her own needs in terms of private consumption or also in connection with a current or future trade or professional activity or purpose?

2. Would the applicant no longer be able to rely on her status as a consumer if she had resold the passenger car in August 2019, and would any profit made in the process be relevant?

3. Must the applicant be considered not to be a consumer merely because she signed a standard contract of sale prepared by the defendant, the printed form of which designated the buyer as a ‘company’ and contained the text ‘business-to-business/no return, no warranty/delivery only after receipt of money’ under the heading ‘special agreements’ in a smaller font, without objecting to this and referring to the fact that she was a consumer?

4. Must the applicant accept responsibility for the conduct of her partner, who acted as a car dealer in arranging the purchase, from which the defendant could have concluded that the applicant was a trader?

5. Is it to the detriment of the applicant in the assessment of whether she is a consumer if the court of first instance was unable to determine why the written contract of sale differed from the preceding offer by the applicant’s partner in terms of the designation of the buyer or what was discussed in that regard during the telephone calls between the applicant’s partner and one of the defendant’s salespeople?

6. Is it relevant to the applicant’s status as a consumer if the applicant’s partner telephoned the defendant several weeks after taking delivery of the vehicle to enquire whether it was possible to state the VAT on the invoice?

The case has been allocated to a chamber of three judges (L.S. Rossi, J.C. Bonichot, O. Spineanu-Matei as reporting judge). No opinion was requested.

All remaining PIL-related events will take place on Thursday 23 March. A hearing is scheduled on case C-90/22, Gjensidige, also regarding the Brussels I bis Regulation, this time in relation to the CMR (Convention on the contract for the international carriage of goods by road, Geneva, 19 May 1956). The main proceedings concern a claim for compensation of loss on the basis of subrogation. In cassation, the Lietuvos Aukščiausiasis Teismas (Lithuania) is asking the Court of Justice:

1. Can Article 71 of Regulation No 1215/2012, having regard to Articles 25, 29 and 31 and recitals 21 and 22 thereof, be interpreted as permitting the application of Article 31 of the CMR Convention also in cases where a dispute falling within the scope of both those legal instruments is the subject of an agreement conferring jurisdiction?
2. Having regard to the legislature’s intention to strengthen the protection of agreements conferring jurisdiction in the European Union, can Article 45(1)(e)(ii) of Regulation No 1215/2012 be interpreted more broadly, as covering not only Section 6 of Chapter II of that regulation but also Section 7 thereof?
3. After assessment of the specific features of the situation and the resulting legal consequences, can the term ‘public policy’ used in Regulation No 1215/2012 be interpreted as covering the ground for deciding not to recognise a judgment of another Member State where the application of a specialised convention, such as the CMR Convention, creates a legal situation in which both the agreement conferring jurisdiction and the agreement on the applicable law are not observed in the same case?

The deciding chamber is composed of judges A. Arabadjiev, P.G. Xuereb, T. von Danwitz, A. Kumin (as reporting judge), and I. Ziemele. On the occasion of the hearing, AG N. Emiliou will indicate the date he will publish his opinion.

The same day the Court will publish the opinions on cases C-590/21, Charles Taylor Adjusting, and C-832/21, Beverage City Polska, both by AG J. Richard de la Tour; C-21/22 OP, by AG M. Campos Sánchez-Bordona; and C-87/22, TT (Déplacement illicite de l’enfant), by AG P. Pikamäe.

In C-590/21, Charles Taylor Adjusting (on which I already reported here) the Court has been asked whether injunctions of a court capable of hindering  the continuation of proceedings pending before the jurisdiction of another State, in particular by awarding compensation to cover the costs of the defendants before that jurisdiction, are contrary to the public policy of the European Union in the sense of Article 34(1) of Regulation  44/2001. The referring court – the Greek Areios Pagos- is asking :

(I)      Is the expression ‘manifestly contrary to public policy’ in the EU and, by extension, to domestic public policy, which constitutes a ground for non-recognition and non-enforcement pursuant to point 1 of Article 34 and Article 45(1) of Regulation No 44/2001, to be understood as meaning that it extends beyond explicit anti-suit injunctions prohibiting the commencement and continuation of proceedings before a court of another Member State to judgments or orders delivered by courts of Member States where: (i) they impede or prevent the claimant in obtaining judicial protection by the court of another Member State or from continuing proceedings already commenced before it; and (ii) is that form of interference in the jurisdiction of a court of another Member State to adjudicate a dispute of which it has already been seised, and which it has admitted, compatible with public policy in the EU? In particular, is it contrary to public policy in the EU within the meaning of point 1 of Article 34 and Article 45(1) of Regulation No 44/2001, to recognise and/or declare enforceable a judgment or order of a court of a Member State awarding provisional damages to claimants seeking recognition and a declaration of enforceability in respect of the costs and expenses incurred by them in bringing an action or continuing proceedings before the court of another Member State, where the reasons given are that: (a) it follows from an examination of that action that the case is covered by a settlement duly established and ratified by the court of the Member State delivering the judgment (or order); and (b) the court of the other Member State seised in a fresh action by the party against which the judgment or order was delivered lacks jurisdiction by virtue of a clause conferring exclusive jurisdiction?

(II)    If the first question is answered in the negative, is point 1 of Article 34 of Regulation No 44/2001, as interpreted by the Court of Justice of the European Union, to be understood as constituting a ground for non-recognition and non-enforcement in Greece of the judgment and orders delivered by a court of another Member State (the United Kingdom), as described under (I) above, where they are directly and manifestly contrary to national public policy in accordance with fundamental social and legal perceptions which prevail in Greece and the fundamental provisions of Greek law that lie at the very heart of the right to judicial protection (Articles 8 and 20 of the Greek Constitution, Article 33 of the Greek Civil Code and the principle of protection of that right that underpins the entire system of Greek procedural law, as laid down in Articles 176, 173(1) to (3), 185, 205 and 191 of the Greek Code of Civil Procedure cited in paragraph 6 of the statement of reasons) and Article 6(1) of the [European Convention on Human Rights], such that, in that case, it is permissible to disapply the principle of EU law on the free movement of judgments, and is the non-recognition resulting  therefrom compatible with the views that assimilate and promote the European perspective?

The case has been assigned to a chamber of five judges (K. Jürimäe, M. Safjan, N. Piçarra, M. Gavalec, N. Jääskinen reporting).

C-832/21, Beverage City Polska (hearing last January was announced here) concerns the interpretation of Article 8(1) of the Brussels I bis Regulation, in particular the condition of a close relationship (‘so closely connected’) required for the purposes of applying the head of international judicial jurisdiction in a situation which, potentially, could amount to “forum shopping”. The request has been referred by the Oberlandesgericht Düsseldorf (Germany), in proceedings brought by the proprietor of a number of EU trade marks including: an application for injunction throughout the territory of the Union, and an application (limited to acts in Germany) for information, the disclosure of accounts and a declaration of liability for damages. They are both directed against a German company and a Polish company as well as against two natural persons, in a personal capacity and as managers of these companies. The question referred reads:

Are claims ‘so closely connected’ that it is expedient to hear and determine them together to prevent irreconcilable judgments, within the meaning of Article 8(1) of the Brussels Ia Regulation, where, in infringement proceedings for infringement of an EU trade mark, the connection consists in the fact that the defendant domiciled in a Member State (here, Poland) supplied the goods which infringe an EU trade mark to a defendant domiciled in another Member State (here, Germany) whose legal representative, against whom infringement proceedings have also been brought, is the anchor defendant, if the parties are connected to each other only through the mere supply relationship beyond which there is no legal or factual connection?

Judges E. Regan, D. Gratsias, I. Jarukaitis, Z. Csehi and M. Ilešič (reporting) will decide on the requested interpretation.

C-21/22, OP (Choix du droit d’un État tiers pour la succession), is a request from the Sąd Okręgowy w Opolu (Poland), on appeal lodged against the refusal by a notary practising in Poland to draw up a notarial will on behalf on an Ukrainian national; the will would contain a clause stipulating that the law applicable to all matters relating to the succession and modification of the legal order of succession would be Ukrainian law. The questions referred require the interpretation of the Succession Regulation and the ascertainment of its relationship to bilateral conventions between Member States and third States:

1. Must Article 22 [of Regulation No 650/2012] be interpreted as meaning that a person who is not a citizen of the European Union is entitled to choose the law of his or her native country as the law governing all matters relating to succession?
2. Must Article 75, in conjunction with Article 22, of Regulation No 650/2012 be interpreted as meaning that, in the case where a bilateral agreement between a Member State and a third country does not govern the choice of law applicable to a case involving succession but indicates the law applicable to that case involving succession, a national of that third country residing in a Member State bound by that bilateral agreement may make a choice of law?

Judges K. Jürimäe, M. Safjan, N.J. Piçarra,  M. Gavalec and N. Jääskinen (reporting) will decide on the matter.

Finally, in C-87/22, TT (Déplacement illicite de l’enfant), the Landesgericht Korneuburg (Austria) is asking about the scope of Article 15 of Regulation 2201/2003 (Brussels II bis), the conditions of application of that article and its relationship with Article 10 of that regulation.

1. Must Article 15 of [the Brussels II bis Regulation], be interpreted as meaning that the courts of a Member State having jurisdiction as to the substance of the matter, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, may request such a court to assume jurisdiction even in the case where that other Member State has become the place of habitual residence of the child following wrongful removal?
2. If Question 1 is answered in the affirmative: Must Article 15 of [the Brussels II bis Regulation], be interpreted as meaning that the criteria for the transfer of jurisdiction that are set out in that article are regulated exhaustively, without the need to consider further criteria in the light of proceedings initiated under Article 8(f) of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction?

The request has been attributed to judges C. Lycourgos, K. Lenaerts, J.C. Bonichot, O. Spineanu-Matei, and L.S. Rossi (reporting).

Nikitas Hatzimihail (University of Cyprus) has published on SSRN an article titled Private International Law Matters involving Non-Recognized States: The View from Cyprus.

The abstract reads as follows:

This essay examines how private-law matters involving non-recognised States and territories under de facto administration from the post-Soviet space are dealt with in Cyprus – a jurisdiction of interest, whose approach is influenced by the existence of a Turkish-controlled de facto administration in its north. The chapter proposes a distinction between cases concerning the establishment of forum jurisdiction over a private party, cases which potentially involve the application of law, or legal actions, in or regarding, the contested space and cases in which the forum may be seen as called to acknowledge, explicitly or implicitly, the political entity itself. The article advocates an approach of principled pragmatism, which takes into account both the legitimate private interests and the political repercussions of any legal decision.

The article is to be published in Alexander Trunk et al (eds.), Legal Position of Non-Recognized States in the Post-Soviet Space under International Trade Law, Private International Law and International Civil Procedure, Springer Science: 2022.

A conference of the same title as the above-mentioned volume was organized in July 2018 in Bordesholm and Kiel. The programme and some of presentations may be downloaded from the website of the conference.

The 2023 special issue of the open-access journal Papers di diritto europeo collects the proceedings of the conference organized in the framework of the “Identities on the move. Documents cross borders – DxB” project (see this post).

Opened by a foreword by Maria Caterina Baruffi and Laura Calafà, the issue features the following papers.

Małgorzata Balwicka-Szczyrba, Anna Sylwestrzak and Dominik Damian Mielewczyk, Transcription of foreign civil status documents of children of same-sex parents in Polish law

In the Polish legal system marriage is a formal union of a man and a woman. Due to a different definition of marriage in some foreign legislations doubts arise as to the transcription of foreign civil status records in which spouses or same-sex parents are registered. Entry in the Polish register has far-reaching consequences, both public law and private law. Civil status records constitute the sole evidence of the events contained therein, and their incompatibility may be proven in court proceedings and sometimes by administrative action. Civil status records are intrinsically linked to personal and family law, and any refusal to transcribe them will have consequences in terms of the legal situation of the person concerned.
The study analyses the positions of jurisprudence and doctrine relating to the problem under examination. It was found that on the basis of applications for the transcription of birth certificates of children of same-sex parents, two disputable positions have developed in the jurisprudence. Public administration bodies and administrative courts generally refuse the transcription. However, 2018 marked a break in the previous line of rulings of the Supreme Administrative Court, which allowed for such a possibility. However, the reasoning raised in the justification of the court’s decision attracted widespread criticism, which resulted in the lack of consolidation of this view.
The research carried out into the problem of the transcription of foreign civil status documents of children of same-sex parents under Polish law has shown that the Polish legal system is not adapted to the transcription of foreign civil status documents of children of same-sex parents.
In conclusion, it should be stated that in view of the noticeable conflict between the fundamental principles of the Polish legal system (including the public order clause) and the rights of the child (including personal rights), the lack of the possibility of making transcriptions of foreign civil status documents of children of same-sex parents unduly violates the principle of the welfare of the child. In particular, it results in a far-reaching diminution of the rights of the child, i.a. due to the impossibility of obtaining an identity card. This state of affairs requires urgent intervention either through a change in the direction of interpretation of the existing provisions of the Act on Civil Status Records, or through amendments to this Act.

Matteo Caldironi, The circulation of the child’s legal status in Italy: open issues

The essay aims to deepen the theme of the circulation of the legal status of minors, with reference to those conceived using ART (artificial reproductive technologies). It will focus on the prejudice to the rights of minors and the downgrading of their status caused by the lack of homogeneous recognition of the phenomena of social parenthood in EU countries. The analysis will start with two pronouncements of the Italian Constitutional Court (nos. 32 and 33 of 2021) that have dealt with the recognition of the parental relationship with the intentional parents in two cases of ART carried out abroad, where the practices are prohibited in our country. The first case involved the practice of heterologous fertilization carried out by a female couple and the second involved surrogacy. Among the many issues addressed, it is particularly interesting that it was found impossible to recognize the foreign provision of the filiation relationship due to the existence of public order obstacles presented by the criminal prohibition of surrogacy in Italy. However, also due to the lack of other adequate instruments of recognition under domestic law, the Court finds a void of protection that, even if «intolerable», must be resolved by the national legislator. In other words, the Constitutional judge notes that the «best interest of the child» cannot be automatically prejudiced by the other interests at stake, but the most appropriate balance is left to the exercise of legislative discretion.
It will then be shown how an attempt has been made at a European level to respond to the same problems. In its recent judgment (14 December 2021) the Court of Justice ruled that Member States (MS) are required to recognize the filiation relationship with both parents (even if the parental relationship with the intended parent is not recognized by the MS) at least to allow the child to exercise, together with each of their two parents, their right to free movement. On the other hand, both parents must have a document authorizing them to travel with that child. Indeed, while it is true that the status of persons falls within the competence of the MS, they are free to provide or not, in their national law, for same-sex marriage and social parenthood. However, in exercising this competence, each Member State must respect Union law and the provisions of the Treaty relating to freedom of movement and residence for citizens of the Union, recognizing, to this end, the status of persons established in another Member State in accordance with the law of that State.
In conclusion, the paper will show how Regulation (EU) 2016/1191 can eventually hypothesize an alternative instrument such as common European civil status framework to recognize a «unique» legal status that thus best protects the best interest of the child in a broader context.

Cristina Campiglio, «Recognition» of civil status records in the aftermath of Regulation (EU) 2016/1191 on public documents: a new functional identity for EU citizens

Regulation (EU) 2016/1191 sets the objective of ensuring the free movement of persons through the free circulation of public documents establishing «facts» standing for legally defined and relevant situations (name, marriage, parenthood, etc.). As the aim of this Regulation «is not to change the substantive law of the Member States», the interpreter is confronted with notions whose meaning is liable to vary from State to State. The lack of harmonization of the notions of «marriage» and «parenthood», in particular, re-proposes the characterization problems already encountered with regard to the EU Citizens’ Free Movement Directive 2004/38/EC, which includes spouses and direct descendants among the family members, although without providing a definition. Regulation (EU) 2016/1191 is expressly not intended to apply «to the recognition in a Member State of legal effects relating to the content of public documents issued by the authorities of another Member State» (Art. 2(4)). In other words, the document certifying the existence of a marriage or parenthood guarantees the spouse or parent/child of an EU citizen free movement to another Member State, regardless of whether the marriage or parenthood at issue may be recognised in that State. In line with the Regulation,in the 2018 Coman judgmentthe Court of Justice – applying the principle of mutual recognition – stated that, in the name of the right to free movement, a Member State cannot refuse the EU citizen’s same-sex spouse a right of residence on the ground that the law of that Member State does not provide for marriage between persons of the same sex. Given the limited effects of the recognition of this marriage, the Court has found no evidence of an attack on national identity (Art. 4(2) TEU) and consequently of a threat to public order of the Member State concerned. The same conclusion has been reached by the Court of Justice in the 2021 Pancharevo case, regarding a child born through medically assisted procreation. Birth certificates drawn up in a Member State shall be recognized by the other Member States as part of the exercise of the rights under Art. 21 TFEU. On the contrary, there is no obligation for other Member States to recognize that filiation relationship for other purposes, since respect for national identity (and public policy) may be invoked in this regard. In summary, the recognition of personal status appears now to be heading towards a double track: with no control for the sole purpose of enabling such persons to exercise the rights they enjoy under EU law, and still subject to the traditional limit of public policy for the purpose of exercising the rights conferred under national law. As a consequence, the same person may be considered married or parent for the purposes of circulation within the EU, while unmarried or not parent for civil purposes. Beyond practical utility, the compatibility of such a split personal identity – one merely functional to circulation, while the other one to its full extent – with the EU Charter of Fundamental Rights principles may be called into question.

Mădălina Cocoșatu and Claudia Elena Marinică, Case law of the European Court of Justice on free movement of persons and public documents: focus on Romania

Free movement of persons in the European Union, a foundation of European Union citizenship which implies an increase in the movement and cross-border nature of public documents, is a topic that has become part of the discussions in the European Union and in the member states in recent years, that are known for their commitment to help regulate a regional order regarding the mobility of citizens in an area without borders. It was therefore not at all surprising that Regulation (EU) 2016/1191 on the promotion of free movement of citizens was adopted and entered into force by simplifying the requirements for the presentation of certain public documents in the EU, as a facilitator and accelerator factor for enforcing cross-border free movement, so that now, five years after its adoption, its effects are increasingly visible.
The purpose of this article is to encourage the analysis and reflection at the level of the European Union and at national level (in Romania) on a series of challenges determined by the jurisprudence of the Court of Justice of the European Union, which seeks to ensure compliance with the provisions of the Treaties, the Charter of Fundamental Rights, as well as all other legislative acts in force. Such an approach cannot be taken out of the context of public and private international law applicable in this field and of treaties, conventions or agreements to which Member States are a part of, in particular the Convention concerning the abolishing of the Requirement of Legalisation for Foreign Public Documents, signed in The Hague on 5 October 1961 (Apostille Convention) regarding public documents and their authenticity but it should only be regarded as a supplement.
The article will focus on the case law of the Court of Justice of the European Union related to the scope of Regulation (EU) 2016/1191, in cases concerning citizenship and a number of family law issues that have a direct impact on public documents and the free movement of persons, without bringing prejudice to the national identity or public policy of the Member States. The analysis mainly concerns the different legislative regulations of the Member States and how to use their common points that should follow the provisions of Regulation (EU) 2016/1191, for the most efficient free movement of persons and public documents in order to ensure the predictability of EU freedoms in cases with a cross-border impact. The conclusions drawn from this analysis emphasize the need for collaboration between theoretical and practical aspects, taking into account the considerable impact on the authenticity, recognition and legal security of these documents that are meant to create the facilitation of free movement in the European Union, while respecting EU law and the material law of the Member States.

Ester di Napoli, Giacomo Biagioni, Ornella Feraci, Renzo Calvigioni e Paolo Pasqualis, La circolazione dello status dei minori attraverso le «frontiere» d’Europa: intersezioni tra diritto dell’Unione e diritto internazionale privato alla luce della sentenza Pancharevo

The paper moves from the judgment issued by the Court of Justice of the European Union in the Pancharevo case to reflect on the repercussions, in the context of the intra-EU circulation of the status of children created abroad, on the level of substantive European Union Law, and of Private International Law, as well as in the practical perspective of those professionals, such as the registrar and notary, are closely engaged with the recognition of personal and family status, and its respective implications, in the requested Member State.

Marco Gerbaudo, Public documents on the move in the Area of Freedom, Security and Justice: uniformisation or free circulation?

The maintenance of the Area of Freedom, Security and Justice (AFSJ), introduced with the Amsterdam Treaty, is one of the main challenges of EU legislation on freedom of movement and external migration. An impressive body of legislation has been adopted to «achieve», «create», «maintain» and «develop» such an area. In 2016, Regulation 2016/1191 was added to the group. The simplification of the requirements for presenting certain public documents is indeed purposed to ease free movement and, consequently, maintain the AFSJ.
The circulation of public documents is an important issue also in the other pillar of the Area: external migration. Contrary to freedom of movement, migration from third countries is neither free nor communitarised, as Member States retain a great degree of discretion in regulating migration flows. At the same time, once entered the AFSJ, third-country nationals are entitled to a certain degree of intra-EU mobility. To better control and facilitate such mobility, the format of migration-related public documents, such as residence permits and visas, has been uniformised across the EU. These legal acts are expressively purposed to «establish progressively» an Area of Freedom, Security and Justice.
This paper aims to compare administrative cooperation on public documents in the field of free movement, on one side, and external migration and intra-EU mobility, on the other. Through the analysis of primary sources, Regulation 2016/1191 will be compared with Regulation 1030/2002 (uniform format for residence permits) and Regulation 1683/95 (uniform format for visas). Differences and similarities between uniform formats and multilingual standard forms will be assessed. Also, the respective provisions on anti-fraud and data collection on IT databases will be analysed.
The free circulation of public documents is an often overlooked yet critical component of the AFSJ. It is thanks to these practicalities that values such as freedom of movement and common policies as migration become (or not) a reality. Many elements of Regulation 2016/1191 are an advancement if compared to the provisions governing the uniformisation of visas and residence permits. However, if compared to the uniformisation process of migration-related documents, free circulation of EU public documents still maintains several flaws and imperfections.
KEYWORDS: Area of Freedom, Security and Justice; civil status records; visa; residence permit; uniformisation; free circulation.

Marion Ho-Dac, Elsa Bernard, Susanne Lilian Gössl, Martina Melcher and Nicolas Nord, Reassessing Regulation (EU) 2016/1191 on public documents in the light of EU citizenship

The contribution aims to analyse the effects of cross-border circulation of public documents under EU law (i.e. mere circulation of the instrumentum, exclusive to any recognition of the negotium), following a twofold approach based on legal methodology (i.e. EU free movement law and private international law techniques) and legal policy (i.e. EU integration and functionalism).
The starting point of the analysis is the current contradiction/tension within the EU legal order between, on the one hand, the need to ensure the permanence of the personal status of individuals and families (such as family name, parentage or marital status) on the basis of EU citizenship (Arts. 18 to 21 TFEU) and, on the other hand, the limited scope and effects of the legal instruments in force in EU law, i.e. Regulation 2016/1191 on public documents, complemented by international conventions in force within all or some Member States, such as the HCCH Apostille Convention of 1961 and ICCS Convention (No 16).
In this context, the article proposes to explain this contradiction, to assess it and finally to submit legal ways to overcome it, while considering the restraints of political feasibility. It provides for a cross-cutting analysis of the (above-mentioned) legal frameworks, complemented by relevant case law of the CJEU, of the ECtHR and of national courts of the Member States, under this specific perspective.

Fabienne Jault-Seseke, Right to identity and undocumented migrants

In various cases, migrants have no documents or no valid documents. Their right to identity is therefore threatened. There are various solutions to combat this risk. On the one hand, the improvement of civil status services in countries of origin, namely through digitalization or biometric techniques, is to be explored. On the other, reconstitution of civil identity in transit and host countries should also be considered.

Eva Kaseva, The scope of Regulation (EU) 2016/1191 in the light of Bulgarian domestic law

This paper is focused on the Regulation (EU) 2016/1191 – Public Documents Regulation. In particular, it concerns the general characteristic of the Regulation, the conditions to be met in order to apply the Regulation, and its scope of application. The analysis addresses specifically the documents that can be issued in the Republic of Bulgaria under its domestic law to certify the facts included in the scope of Regulation under Art. 2(1)(a)-(m). It is indicated which national act settles each document and clarified which are the requirements to be issued.

Francesca Maoli, Civil status and circulation of public documents in EU and worldwide: the need for a European common framework for third countries

While the EU fosters and protects the right of free movement of its citizens, it is necessarily concerned by the reception of third-country nationals. Migration issues are among the EU competences in the area of freedom, security and justice. In both scenarios – i.e. intra-EU movements and immigration from outside the EU – there is a need to ensure the continuity of personal and family status: this represents a condition of effectiveness, as concerns the enjoyment of rights. With specific reference to third country nationals, the implementation of the European migration rules requires the resolution of civil status issues for which there is no common approach so far. However, the simplifications introduced by the EU Regulation 2016/1191 do not work for documents from third countries. The EU rules coexist with the fragmented (yet, in some cases, more advanced) regime contained in international conventions. However, this does not mean that the EU cannot have uniform rules to deal with such documents (compare with foreign judgments and the ratification of the 2019 Hague Convention). Common rules for public documents on civil status would reinforce the coherence of the EU migration law.
The need for a common legal framework is the focus of the present paper, which highlights the opportunity for the EU to act in synergy with the Hague Conference on Private International Law and the International Commission on Civil Status.

Guillermo Palao, Challenges to the codification of cross-border dimension of the digitalization of civil status records and registers

The increase of internationalisation and digitalisation are two essential elements deeply affecting the current activity of civil status registers. The incorporation of new technological tools in the management of civil status registers has proved to be highly beneficial, affecting also to their international dimension and the cross-border circulation of civil status records. As a result, an intense codification effort has taken place at the national, regional and international levels over the last few years, to promote the digitisation and the international circulation of civil status documents. The global challenges faced by this matter call for the need of supra-national responses, although the high level of complexity deriving from the plurality of codification venues and applicable legal sources, as well as the limited and fragmentary nature of the normative solutions contained in such instruments. Three are the main international codification venues whose normative results should be analysed from the perspective of the digitisation and the internationalisation of the activity of civil status registers: the HCCH, the ICCS/ CIEC and the EU. In this respect, despite of the undeniable efforts made in the different codification centres, it is advisable to reconsider the current model, with the aim of taking full advantage of the opportunities offered by ICTs and reducing the legal obstacles that the current situation generates in the international mobility of persons. Therefore, this would require, a deepening of dialogue and constructive cooperation between the different institutions involved in this area and to take advantage of the strengths offered by the various codification initiatives.
KEYWORDS: Civil status registers; digital civil status records; cross-border circulation of public documents; private international law; Hague Conference on Private International Law; International Commission on Civil Status; European Union.

Stefania Pia Perrino, «If you are a parent in one country, you are a parent in every country»: is it true for social parenthood?

Parenthood is the legal relationship between a child and the child’s parents and recently EU citizens are establishing this relationship through consent or intended parent agreements, without any genetic link. The new concept is known in case law as social parenthood and can be traced in different scenarios: same sex couples’ adoption; artificial reproduction; surrogacy; post mortem fertilization.
The paper will investigate if the lack of a common notion of social parenthood can constitute an obstacle for the free movement of citizens and analyze the recent case Pancharevo of the Court of Justice of the European Union.

Marco Poli, Quo vadis mater? Motherhood, freedom of movement, and the circulation of documents

Building on the Court of Justice of the European Union (CJEU) judgment on the case C-490/20, V.M.A. v. Stolichna obshtina, rayon Pancharevo, this paper considers the circulation of birth certificates under Regulation (EU) 2016/1191 investigating its effects on the legal notion of motherhood.
Developing reproductive technology and social changes impacted differently on the EU Member States’ national law on parentage and motherhood. In this sense, as seen in the aforementioned CJEU judgment, some legal scenarios, such as the Bulgarian one, recognise the legal effects of the sole biological tie between the child and their mother, clinging on to a monist notion of mother. Differently, other national laws opened up to a pluralist concept of motherhood: indeed, in addition to childbirth, intent gives rise to the legal status of mother. For example, under Spanish law, both the woman who delivered the baby and the female social parent are recognised the status of mother. In such a diverse lawscape, free movement and respect for human rights have made motherhood accessible to a wider group of people. What happens then when a monist legal system deals with a birth certificate issued for one of its citizens by another Member State recognizing intent-based motherhood? Answering this question will help us get closer to understanding quo vadis mater?.
In order to do so, this paper primarily explores whether the circulation of birth certificates implies circulation of status as well. As explicitly stated in Recital 18, the aim of Regulation 2016/1191 is not to change substantive law relating to parenthood. Furthermore, the same recital provides that the Regulation should not affect the recognition in one Member State of legal effects relating to the content of a public document issued in another Member State. Secondly, the paper aims at investigating to what extent, if any, the circulation of public documents under Regulation 2016/1191 makes a contribution to the shaping the legal notion of motherhood. Despite the EU Court of Justice’s use of gender-neutral language concerning parentage (i.e., parents, instead of mothers), this work aims at exploring the impact of legal developments concerning the circulation of birth certificates on motherhood.

Irena Ryšánková, Die Verordnung im Vergleich zu den Übereinkommen der CIEC und anderen relevanten internationalen Übereinkommen (z.B. Haager Apostille-Übereinkommen (1961))

The present article gives a brief overview of how cross-border movement of public documents is regulated in different instruments of International and European Civil Procedure. After explaining the role of legalisation, it then focuses on the Regulation (EU) 2016/1191 and compares its dispositions with the 1961 Hague Convention, the Convention of 25 May 1987 abolishing the legalisation of documents in the Member States of the European Union and some relevant conventions of the ICCS.

Brody Warren and Nicole Sims, The changing nature of trust: the Apostille Convention, digital public documents, and the chain of authentication

The Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (Apostille Convention) was developed in response to an increasing number of public documents circulating around the world and forged a new path in the authentication of foreign public documents. At its core, the Convention established a simplified mechanism by which contracting parties could trust that the documents they were receiving were authentic. The essence of this solution was the Apostille certificate and the authorities designated as competent for its issuance.
More recently, the European Union (EU) has attempted to further simplify the circulation of public documents between its member states, most notably through Regulation (EU) 2016/1191. While the Regulation relies on the inherent trust between EU Member States to better the approach used by the Convention, its goal is the same: to abolish the authentication requirements for presenting public documents abroad.
Over sixty years on from the adoption of the Apostille Convention, public documents are increasingly executed in digital rather than paper form. This rapidly evolving technological landscape inspired the establishment of the electronic Apostille Programme (e-APP), to promote and encourage the digitalisation of the Apostille process. In comparison, the Regulation has not needed any special programme or initiative to operate in a digital context, as it was developed with the realities of digital public documents in mind.
As the digital transition intensifies, both the Convention and the Regulation face similar challenges in overcoming the hesitation of authorities and individuals with respect to digital public documents. However, as governments and citizens become more comfortable with the technology, and more importantly the security underlying it, the Regulation may be able to reach its full potential and the issuance of Apostilles under the Convention may become entirely unnecessary.
Against this background, this paper considers how the pursuit of trust in the authentication process has shaped the development of the Apostille Convention. The authors also consider the EU Regulation, as it follows in the footsteps of an instrument 50 years its senior. With the digital environment in mind, the paper concludes that technology will eventually enable ultimate trust in the authentication of public documents.

The new edition of the Commentary on the Brussels I bis Regulation, edited by Ulrich Magnus and the late Peter Mankowski, part of the European Commentaries on Private International Law series published by Otto Schmidt, has recently been released.

The list of authors includes Alfonso Luis Calvo Caravaca, Javier Carrascosa González, Gilles Cuniberti, Carlos Esplugues Mota, Richard G. Fentiman, Stephanie Francq, Thomas Garber, Mizuki Hashiguchi, Helmut Heiss, Xandra Ellen Kramer, Luís Pedro Rocha de Lima Pinheiro, Ulrich Magnus, Peter Mankowski, Louise Merrett, Horatia Muir Watt, Sarada Nateshan, Guillermo Palao Moreno, Ilaria Queirolo, Pippa Rogerson, Didimi Sturua, Paul Vlas and Patrick Wautelet.

See here for further information.

On 13 April 2023, the University Paris Dauphine will host a conference on State Immunity from Enforcement (L’immunité d’exécution de l’Etat).

The conference will be divided in four parts. The first will discuss the interaction of the various sources of the immunity from enforcement. The second will discuss the influence of human rights and arbitration. The third part will be a round table offering comparative insights from England, Italy and Canada. Finally, the fourth part will discuss the scope of the immunity, with a panel composed of academics and a second panel composed of judges and practitioners.

Speakers will include Philippe Thery, Catherine Kessedjian, Louis Perreau Perreau-Saussine, Juliette Morel-Maroger, Sophie Lemaire, Arnaud De Nanteuil, Louis d’Avout, Duncan Fairgrieve, David Pavot, Mathias Audit, Jérôme Chacornac, Helene Tissandier, Etienne Farnoux, Renaud Salomon, Jérôme Ortscheidt, Guillaume Tapie,  Victor Grandaubert, Francoise Moneger, Gilles Cuniberti, Fabrizio Marrella and Jacques Alexandre Genet.

The full programme of the conference can be found here.

The conference will be held in the context of the 150th anniversary of the International Law Association.

Participation is free, but registration is compulsory.

As the Matrimonial Property Regimes Regulation and the Property Regimes of Registered Partnerships have celebrated their fourth anniversary of application recently (namely on 27 January 2023), it might be a good occasion to mention three publications devoted to them, all available in open access.

All three books are the product of the EU-funded project EU-Fam Pro.

The first book, edited by L. Ruggeri, A. Limantė and N. Pogorelčnik Vogrinc, is titled The EU Regulations on Matrimonial Property and Property of Registered Partnerships, and was published by Intersentia in 2022.

The book may be downloaded from the website of the publisher. Translations of the book into Lithuanian, Italian, Spanish, Slovenian and Croatian may be downloaded from the website of the project.

As the editors explain

This book presents an in-depth analysis of these instruments, revealing the substance of the provisions in the regulations and exploring their practical implications in EU family law by discussing questions that are closely related to matrimonial and partnership property regimes. The contributors also cover the relevant CJEU case law and, where available, the national case law of the EU countries. Case studies are used to interrogate the potentialities of these new instruments.

The second book was authored by L. Ruggeri and M.J. Cazorla González, and comes under the title Cross-Border Couples Property Regimes in Action Before Courts. Understanding the EU Regulations 1103 and 1104/2016 in Practice. It was published by Dykinson in 2022.

The book may be downloaded from the website of the publisher.

As stated in the foreword:

This book has the prime purpose of analysing practice through European and national case law from the entry into force of the Twin Regulations, adding hypothetical cases (…)

The objective of all the authors in this volume is to facilitate understanding of and the application of the Twin Regulations. For this purpose, the editors have divided the content into two parts.

In the first, several authors analyse general questions such as the determination of the habitual residence of cross-border partners (…), and four EU Court of Justice judgments (…). The second part considers the application of the Twin Regulations in some Member States, presenting the case law and case studies from selected countries participating in the enhanced cooperation.

Finally, the third book was edited by L. Ruggeri and R. Garetto and is titled European Family Property Relations Article by Article. Commentary on EU Regulations 1103 and 1104/2016. It was published in 2021 by Edizioni Scientifiche Italiane.

The book may be downloaded from the website of the publisher.

The blurb informs that:

This Commentary would offer a path to know and better understand article-by-article the two Regulations.

A team of law experts, among them lawyers, notaries and scholars, analyses through a synoptic view the text of each article of each Regulation. The authors focus on the new provisions as well as on the existing case law by the European Court of Justice and courts of the Member States