EAPIL blog

On 21 May 2020, the Piraeus Court of Appeal ruled that a judgment on a family maintenance matter, issued by the Tribunal of Rotterdam in 2007, did not qualify for recognition in Greece (ruling No 383 of 2020, unreported).

The Court reached this conclusion on the basis of Article 34(2) of Regulation 44/2001 (the Brussels I Regulation).

According to the latter provision, a judgment that was given in default of appearance should not be recognised “if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so”.

Proceedings in the Netherlands

In 2007 a claim for maintenance was filed by a mother on behalf of her minor child, both living in the Netherlands, against the father, a resident of Greece. The claim was filed on 5 January 2007 before the Tribunal of Rotterdam. The hearing was scheduled for 8 August 2007. The defendant failed to appear. The Tribunal issued its ruling on the day of the hearing. It then set a three-month deadline for appeal and declared that the judgment was immediately enforceable.

Proccedings in Greece – First instance

In February 2009, an application for a declaration of enforceability of the Dutch judgment was filed before the Piraeus Court of First Instance. The court stayed its proceedings, and ordered the applicant mother to produce evidence concerning the service of the claim to the father [ruling No 3511 of 2009, unreported].

The case was rescheduled to hear the applicant. The application, however, was dismissed. The court stated that the sole document produced was a letter by the Tribunal of Rotterdam, dated 2 April 2007, declaring that the claim had been served on the defendant. Still, no evidence of receipt by the defendant was submitted. The Court concluded, accordingly, that his rights of defence were violated [ruling No 358 of 2012, unreported].

Proceedings in Greece – Second instance

The mother appealed before the Piraeus Single Member Court of Appeal. She complained that the Court of First Instance had acted ultra vires, arguing that, pursuant to Regulation 44/2001, first instance courts are allowed to assess the conditions for recognition and enforcement of a judgment, not the grounds for refusing such recognition.

The matter was referred to a Chamber of the same court [ruling No 455 of 2018, unreported]. The Chamber allowed the appeal and quashed the first instance ruling on the grounds invoked by the appellant. It stated however that, as a second instance court, it had the powers under the Regulation to examine any grounds for refusal.

The Service of Process Issue

The Piraeus Court of Appeal devoted a lengthy analysis to the issue whether the act instituting the Dutch proceedings had been properly served on the defendant. The main findings may be summarised as follows:

(a) The certificate issued under Articles 54 and 58 of Regulation No 44/2001 by the competent body of the Rotterdam Tribunal states that service took place on 2 April 2007. The registered letter sent to the defendant bears the same date.

(b) That just cannot be possible: the sending and delivery of a letter sent from Rotterdam to Athens cannot occur on the same day.

(c) The appellant failed to produce an acknowledgment of receipt by the defendant.

(d) The claim was not officially translated from Dutch to Greek. There was a translation attached, however not signed by an authorized person to that cause. This happened only in April 2010, i.e. after the proceedings were stayed by the Piraeus CFI in 2009.

(e) No evidence was given of the fact that the defendant failed to challenge the judgment in the Netherlands, although it was possible for him to do so: he received neither the document instituting proceedings, nor the judgment itself.

(f) By reviewing the Dutch ruling, the Piraeus Court of Appeal noticed that the Rotterdam Tribunal failed to examine the timeliness of service on the defendant; it simply confirmed his non-appearance at the hearing in Rotterdam.

In light of above, the Piraeus Court dismissed the appeal.

Assessment

As a starter, the judgment demonstrates that courts are still confronted with exequatur issues, in spite of its abolition almost a decade ago.

In addition, judges and lawyers should be wary of the proper applicable law. In the case at hand, the courts were right in resorting to Regulation 44/2001, in light of Article 75(2)(b) of the Maintenance Regulation. Nevertheless, the core of the matter remains the same (lack of proper service is a ground for refusing recognition also in accordance with Article 24(b) of the Maintenance Regulation).

The reversal of the first instance ruling was correct. Article 42 of Regulation 44/2001 is adamant about it, so is Article 30 of the Maintenance Regulation.

The referral in second instance is demonstrative of a typical lack of cohesiveness between the text of the Regulation and national declarations of the Member States. As evidenced in Annex III of the Regulation 44/2001, Greece declared that the Court of Appeal is competent to try appeals pursuant to Article 43(2) of the Regulation. At that time (2001) and for many years after, a court of appeal consisted exclusively of three judges. In 2015 the law changed. Pursuant to the new Article 19 of the Greek Code of Civil Procedure, the competent court for examining appeals against judgments rendered by a Single Member Court of First Instance is the relevant Single Member Court of Appeal. In the case at hand, the Piraeus Single Member Court of Appeal considered that the three-member chamber should remain competent, because the Hellenic Republic did not amend its declaration. Legal scholars have already expressed a different view. The fact of the matter is that those problems affect procedural economy, especially in sensitive cases, such as maintenance claims.

Finally, in regards to the central issue of service, the following remarks may be made.

First, the court correctly found that the conditions for service of the claim to the defendant were not met, as it was not proven that the document was received or translated from Dutch into Greek. However, the judgment lacks sufficient reasoning with respect to the defendant’s ability to challenge the foreign decision in the state of origin.

Secondly, no reference is made to judgment of the Court of Justice in the Lebeck case, where the Court stated that   “proceedings to challenge a judgment” referred to in Article 34(2) of Regulation 44/2001 must be interpreted as also including applications for relief when the period for bringing an ordinary challenge has expired. Hence, the margin of the court’s test should have been expanded to the time of expiry declared by the Netherlands under Article 17(4) and 23(1) of the Service Regulation.

Finally, and most importantly, the Piraeus court omitted any reference to the ruling in ASML, where the Court ruled that

Article 34(2) of Regulation No 44/2001 is to be interpreted as meaning that it is ‘possible’ for a defendant to bring proceedings to challenge a default judgment against him only if he was in fact acquainted with its contents, because it was served on him in sufficient time to enable him to arrange for his defence before the courts of the State in which the judgment was given.

Therefore, service of the default judgment after the expiry of time for appeal or an application for relief does not suffice, and the defence under Article 34(2) of Regulation 44/2001 is still active.

Concluding Remarks

One additional point worth noticing is the duration of the proceedings in Greece, which for maintenance standards is utterly unbearable. It is very fortunate that sooner or later Section 1 of Chapter 4 (Articles 17 et seq.) of the Maintenance Regulation will prevail in practice.

Admittedly, the abolition of exequatur will not solve all problems, bearing in mind the second set of remedies available to the judgment debtor in the state of destination. It is hoped that a common approach could be achieved even in the last mile, i.e. the national law on enforcement.

In a recent e-mail exchange, Paul Beaumont and Jayne Holliday (both working now at the University of Stirling) drew my attention to Article 14 of the Hague Convention on the civil aspects of international child abduction. The provision is certainly a rarity in the field of ascertaining and applying foreign law, and of recognition. It reads as follows

In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.

The logic of Article 14 appears to be twofold. It is first and  foremost a practical rule: it should lead to speedy decisions on the return of a child, which are fundamental to the working of the Convention.

Its second rationale seems to be dogmatic. According to the Convention’s explanatory report by Elisa Pérez-Vera, at para 119, Article 14 does not address cases of application of foreign law in the narrow sense; it rather “takes it into account” to check whether the claim of wrongful removal is correct:

Since the wrongful nature of a child’s removal is made to depend, in terms of the Convention, on its having occurred as the result of a breach of the actual exercise of custody rights conferred by the law of the child’s habitual residence, it is clear that the authorities of the requested State will have to take this law into consideration when deciding whether the child should be returned. In this sense, the provision in article 13 of the preliminary draft Convention that the authorities ‘shall have regard to’ the law of the child’s habitual residence, could be regarded as superfluous. However, such a provision would on the one hand underline the fact that there is no question of applying that law, but merely of using it as a means of evaluating the conduct of the parties (…)” (emphasis added)

In a similar vein, judicial or administrative decisions on custody rights, the breach of which entails the wrongfulness of the removal (or of the retention, as the case may be), are not really recognized, but work as a piece of proof in the proceedings at the requested State:

… while on the other hand, in so far as it applied to decisions which could underlie the custody rights that had been breached, it would make the Convention appear to be a sort of lex specialis, according to which those decisions would receive effect indirectly in the requested State, an effect which would not be made conditional on the obtaining of an exequatur or any other method of recognition of foreign judgments.

There is no way to dispute the usefulness of Article 14 in practice. I have more doubts regarding the correctness of the conceptual distinction between “applying” a foreign law and “taking [it] into account” (which is usually understood as taking into account “as a matter of act”). The operations are possibly the same in nature; the difference between them, just a question of degree. Furthermore, I believe that in the context of Article 14 foreign law is actually applied. The conduct of the parties cannot be evaluated without looking into what that law prescribes; the authority in the requested State draws the corresponding consequences as to who is the holder of the rights of custody in the case at hand. The assessment of the parties’ conduct comes afterwards. In the same vein, I believe that a decision on custody rights is recognized, in the proper sense of the term, as a decision, and not as a piece of documentary evidence.

What makes the difference is therefore not “what is done” with the foreign law/foreign decision in the context of child abduction. It is rather the limited goal of the application of that law, and of the recognition of the foreign decision, which allows to proceed without resorting to the specific procedures for the proof of foreign law (or for the recognition of foreign decisions), which would normally apply.

Be it as it may, what really matters is what the alternative method – that of taking notice directly of the law of, and of judicial or administrative decisions, of the State of habitual residence of the child before removal or retention- means vis-à-vis quality. That foreign law is not, strictly speaking, applied, does not entail a lesser need for certainty about its contents. The authority in the requested State does indeed not determine the rights of custody. However, her understanding of the foreign legal system is not innocuous: it has immediate effects on the child in terms of return/not return, and therefore, of residence; these, in turn, affect the question of international jurisdiction for a claim on the merits. Furthermore, the view of the requested authority on the custody issue sets a precedent (in a non-technical sense, for it is not binding) for future discussions about parental responsibility.

The assumption that Article 14 supports lower standards of proof of the foreign law (and more lenient conditions of recognition) is only this: an assumption. To date, INCADAT lists 39 national decisions on the provision. In fact, in some of them Article 14 is simply mentioned . The remaining decisions have been rendered in different jurisdictions (Austria, Canada, France, Germany, Israel, US, Switzerland): the sample is hence not good enough for a study aimed at finding out the differences with the usual methods to ascertain foreign law, nor to make any assessment about quality.

Still, it might not be a useless effort. For, if Article 14 proves to work, it may be worth trying it elsewhere (the suggestion, with a question mark, is actually from Professor Beaumont).

David Hodson is the author of Family Law Leaves the EU – A Summary Guide for Practitioners, published by Jordan Publishing. The book aims to provide family law practitioners with an accessible guide to the law and practice which will apply on the UK’s final departure from the EU on 31 December 2020. The publisher’s blurb reads as follows.

The government has indicated that the UK will not be party to any further EU laws, instead relying on existing international laws (eg Hague Conventions) to which we will be a party in our own right. There will also be new provisions in national law, where previously EU law existed, and some court procedures will change. This invaluable title will provide an overview of the legal position and the practical issues which will arise in all areas of family law, including the preparatory steps which lawyers should take in readiness for departure, so as to advise clients effectively.

More information available here.

Alfonso Luis Calvo Caravaca (University Carlos III, Madrid) and Javier Carrascosa González (University of Murcia) are the author of a treatise on private international law, in Spanish, titled Tratado de Derecho Internacional Privado.

The three-volume work, published by Tirant lo Blanch, aims to provide an updated, systematic and comprehensive account of the discipline.

Private international law is presented through the analysis of legal rules, case law and scholarly writings, with more than 7.500 references to judicial decisions. The book provides an in-depth insight into European and Spanish private international law in force both for practitioners and students. It illustrates private international law in an accessible way by showing its rules ‘in motion’, i.e., as they actually work.

Carsten Gerner-Beuerle (University College London & European Corporate Governance Institute – ECGI), Federico M. Mucciarelli (Università degli studi di Modena e Reggio Emilia – UNIMORE), Edmund Schuster (London School of Economics) and Mathias Siems (European University Institute – EUI, Durham University and European Corporate Governance Institute – ECGI) have posted Making the Case for a Rome V Regulation on the Law Applicable to Companies on SSRN.

The abstract reads:

There is significant legal variation and uncertainty in the conflict of laws rules applicable to companies in the EU. While the case law of the Court of Justice on the freedom of establishment has clarified some questions, it is evident that case law cannot provide for an adequate level of legal certainty. The main recommendation of this paper is that private international company law in the EU should be harmonised. The paper discusses the main challenges that a future regulation to this effect – called here ‘Rome V Regulation on the Law Applicable to Companies’ – would have to overcome. Some of those are of a political nature: for instance, countries may fear that it may become easier for companies to evade domestic company law (eg, rules of employee co-determination), and there are specific considerations that concern companies established in third countries. Another challenge is that a future regulation on the law applicable to companies has to be consistent with existing EU conflict of laws rules as regards, for example, insolvency and tort law, while also complying with the freedom of establishment of the Treaty. It is the aim of this paper to discuss these questions in detail, notably the general considerations for harmonisation in this field, a potential harmonisation based on the ‘incorporation theory’, how it may be possible to overcome some contentious issues such as the definition of the lex societatis or the relationship between the lex societatis and other areas of law, and the prospects of future international harmonisation.

A revised version of the paper will be published in the Yearbook of European Law.

In a resolution of 8 November 2019 (III CZP 24/19, available here, in Polish), the Supreme Court of Poland addressed the issue of jurisdiction to rule on the authorisation that a guardian of an adult may need to obtain prior to selling property belonging to the latter.

Background

DD is a German national, with habitual residence in Germany. He owned an immovable in Poland. Due to an impairment of his personal faculties, DD was put under guardianship by a German court. EH, a lawyer, was appointed his guardian and charged with taking care of DD’s property and represent him in court proceedings.

In 2018 the competent German court gave its approval for the disposal of DD’s immovable property in Poland. The property was sold to a married couple – SK and AK – and entered their community of property. Additionally, the sale contact instituted a mortgage on the property to secure a loan concluded by SK and AK with a Polish bank.

The buyers applied to the regional court in Poland to have the change of ownership and mortgage entered into the land register. This application was rejected as the court found that the sale contract was invalid, on the ground that EH had not been authorised to sell the property by a Polish family court. The higher instance court, to which SK and AK filed an appeal, decided to ask the Supreme Court for guidance.

Considered Sources of Law

The Supreme Court observed, to begin with, that the matters falls outside the material scope of the Brussels I bis Regulation in accordance withArticle 1(2)(a), on the legal capacity of natural persons. In Schneider (C-386/12) the CJEU confirmed that the above exclusion covers non-contentious proceedings by which a national of a Member State who has been declared to be lacking full legal capacity and placed under guardianship in accordance with the law of that State seeks in another Member State an authorisation to sell a property situated in that other Member State. The Court also reminded that Poland is not a party to the Hague Convention on the International Protection of Adults, and that the matter is not covered by the Brussels II bis Regulation.

It is thus for the domestic rules of private international law to determine whether, and subject to which conditions, a foreign judgement whereby a guardian is authorised to sell property belonging to a protected adult qualifies for recognition in Poland. The relevant rules are found in the Polish Code of Civil Procedure (“CCP”), specifically in the Code’s Part IV (available here, in Polish). The above conclusion is correct, given that no bilateral agreement is in force between Poland and Germany to cover the kind of judgments in question.

The Applicable Domestic Rules in Detail

The Supreme Court stated in its resolution that a judgement like the one at issue enjoys automatic recognition in Poland under Article 1145 CCP. Recognition may however be denied on any of the grounds listed in Article 1146 CCP. In particular, recognition ought to be denied if the matter is one for which Polish courts have, under Polish rules, ‘exclusive’ jurisdiction.

Pursuant to Article 1107(1) CCP, proceedings over rights in rem in (and the possession of) immovable property located in Poland fall under the exclusive jurisdiction of Polish courts. Additionally, Article 1110(2) CCP provides that exclusive jurisdiction extends to proceedings the decision of which ‘affects’ the rights in rem in (or the possession of) immovable property located in Poland.

While it was clear that the case under discussion did not fall within the scope of Article 1107(1) CC, the question arose of whether it may be classified as affecting the rights in rem in immovable property within the meaning of Article 1110(2) CCP.

A Case Affecting the Rights in rem in Immovable Property?

The Court explained that the characteristic feature of matters covered by Article 1110(2) CCP is that they concern not only rights in rem. An example of such a case is a division of marital property. Before the Succession Regulation became applicable, the above provision would also apply to succession cases. However, the analogy between the above cases and the case at hand is far from obvious. For example, a division of an estate including property located in Poland entails a determination as to who should eventually own the property in question. By contrast, the authorisation required to sell the property of a person lacking capacity is just one of the conditions which need to be fulfilled in order for the change in the ownership to occur, but has no influence on whether the disposal will in fact take place.

The subsequent step of the reasoning is the most interesting. The Supreme Court, when analysing Article 1110(2) CCP, relied on the case law of the CJEU, in particular in the Schneider and Schmidt (C-417/15) cases. In the said judgments, the CJEU distinguished the approval of a sale of property from the sale itself, stating that the main concern of the former proceedings is the protection of the interests of the seller.

Having in mind CJEU’s standpoint, the Supreme Court underlined that the proceedings at issue:

are aimed at analysing whether the premises for the approval for the sale … are met, having in view the interest of the person under guardianship. The nature of the asset concerned does not affect the scope and outcome of the analysis. No matter whether the contemplated transaction is the sale of immovable property or another juridical act requiring prior authorisation, the assessment revolves around the purpose of the transaction and the benefits that it may bring to the person lacking full legal capacity.

The above remarks indicate that the proceedings considered should not be characterised as a matter affecting the rights in rem in an immovable property.

The Court underlined also the practical aspect of this interpretation:

It is obvious that the family court of the place of residence of the person lacking full legal capacity, which appointed the guardian, placed the ward in the care home and supervises the protection, is the best informed about the adults concerned’s circumstances, conditions, views and needs, i.e. the factors that play a crucial role in deciding whether the transaction ought to be authorised.

Conclusion

Based on the above, the Court decided that the case should be classified as a matter relating to guardianship, an area for which Polish courts are not vested with exclusive jurisdiction. The recognition of foreign judgments cannot accordingly be refused in accordance with Article 1146 CCP.

The first EAPIL Seminar will take place on 11 December 2020, from 11 am to 1 pm (MET). It will be devoted to the impact of Brexit on Private International Law.

In short introductory statements speakers from the United Kingdom and the European Continent will analyse the legal framework that will apply to cross-border cases in the short-term, i.e. as of 1 January 2021 when the transition period provided for in the Withdrawal Agreement has expired.

In addition, they will discuss what the future relationship between the EU and the UK could and should look like. Special emphasis will be placed on the question of whether the EU and the UK should strive to adopt a new – bespoke – bilateral agreement (or whether it should simply join existing international conventions).

The speakers of the first session, on civil and commercial matters, are Alexander Layton (Twenty Essex Street Chambers, London), Eva Lein (University of Lausanne) and Michiel Poesen (KU Leuven).

The second session, on family matters, will feature presentations by Sir Andrew Moylan (Court of Appeal of England and Wales), Pietro Franzina (Catholic University of the Sacred Heart, Milan) and Anatol Dutta (Ludwig Maximilian University Munich).

The Seminar will take place via Zoom. Information about how to register will be announced in due course through this blog.

The EAPIL (Virtual) Seminar Series wishes to contribute to the study and development of (European) Private International Law through English-language seminars on topical issues. It will provide an easily accessible and informal platform for the exchange of ideas – outside the bi-annual EAPIL conferences. At the same time, it will serve as a means for EAPIL members to connect with other EAPIL members and non-members.

John Coyle (University of North Carolina) has posted Cruise Contracts, Public Policy, and Foreign Forum Selection Clauses on SSRN.

The abstract reads:

This Essay critiques the analytical framework used by the U.S. Court of Appeals for the Eleventh Circuit to determine when to enforce foreign forum selection clauses in cruise ship passenger contracts. In Estate of Myhra v. Royal Caribbean Cruises, Ltd., the Eleventh Circuit held that such clauses should be enforced even when the foreign court is likely to give effect to provisions in the Athens Convention that limit the liability of the cruise company. This approach is flawed, the Essay argues, because it fails to account for the fact that 46 U.S.C. § 30509 expressly prohibits cruise companies from utilizing contract provisions to limit their liability in passenger contracts. The Essay then looks to analogous cases from other areas of the law to propose a new analytical framework for evaluating when the courts should enforce foreign forum selection clauses in the cruise ship context.

The paper is forthcoming in the University of Miami Law Review.

After the semaine blanche, the Court of Justice will deliver some judgments and opinions, starting on 11 November 2020, with C-433/19, Ellmes Property Services. The request has been referred by the Oberster Gerichtshof (Austria), in a case where the applicant seeks to prevent the use of the apartment for tourist purposes, contrary to its designated use and in the absence of consent of the other co-owners; he claims the touristic use interferes with the applicant’s rights of co-ownership. He relies on Article 24(1) of the Brussels I bis Regulation; the defendant objects on the basis of the lack of local and international jurisdiction. The questions read as follows:

1. Is the first alternative in the first subparagraph of Article 24(1) of [the Brussels I bis Regulation] to be interpreted as meaning that actions brought by a co-owner seeking to prohibit another co-owner from carrying out changes to his property subject to co-ownership, in particular to its designated use, arbitrarily and without the consent of the other co-owners, concern the assertion of a right in rem?
2. If the first question should be answered in the negative: Is Article 7(1)(a) of the [Brussels I bis Regulation] to be interpreted as meaning that the actions referred to in paragraph 1 concern contractual obligations to be performed at the location of the property?

According to AG Szpunar (Opinion of June 18, 2020), the Court should reply:

1. Article 24(1) of [the Brussels I bis Regulation] must be interpreted as meaning that an action by a co-owner seeking to prevent the use of an apartment by another co-owner for tourist purposes, on the ground that such use is not that agreed in the co-ownership agreement, only falls under that provision if that use is enforceable erga omnes. It is for the national court to carry out the final appraisal in that respect.
2. Article 7(1)(a) of that regulation must be interpreted as meaning that, where the use agreed in the co-ownership agreement is not enforceable erga omnes, such an action falls within the concept of ‘matters relating to a contract’ within the meaning of that provision. In those circumstances, the contractual obligation at issue is an obligation not to do something, specifically, not to change the designated use of a property, in breach of the co-ownership agreement, at the place where the property is situated. In order to ascertain whether the place of performance of that obligation is the place where the apartment subject to co-ownership is situated, it is for the national court to determine that place of performance in accordance with the law governing that obligation on the basis of the conflict of law rules of the court seised.

The decision corresponds to the 1st Chamber (judges Bonichot, Silva de Lapuerta, Toader, Safjan, Jääskinen, with Ms. Silva de Lapuerta as reporting judge).

On 12 November 2020, AG Hogan’s Opinion on C-729/19, Department of Justice for Northern Ireland will be published. The request, from the Court of Appeal in Northern Ireland, is related to a dispute between a Polish national and the Department of Justice for Northern Ireland (the Central Authority for the purpose of the Maintenance Regulation). The questions for the Court focus on the temporary scope of application of the Regulation, and on the consequences of the incorporation of the Hague Protocol on the law applicable to maintenance obligations to the system of the Regulation:

1. Must Article 75(2) of the [Maintenance Regulation] be interpreted as applying only to “decisions” which were given in States that were member States of the EU at the time those decisions were made?
2. Bearing in mind that Poland is now a Member State of the European Union which is bound by the Hague Protocol, are maintenance decisions made by a Court in Poland in 1999 and 2003, that is, prior to Poland becoming a member state of the European Union, now capable of being registered and enforced in another EU Member State pursuant to any part of [the Maintenance Regulation], and in particular:
   (a) Pursuant to Article 75(3) and Article 56 of the Maintenance Regulation;
   (b) Pursuant to Article 75(2) and Section 2 of Chapter IV of the Maintenance regulation;
   (c) Pursuant to Article 75(2)(a) and Section 3 of Chapter IV of the Maintenance regulation;
   (d) Pursuant to any other Articles of the Regulation?

A hearing was held on 14 October 2020 where the parties, among other, explained their position, in the light of the judgment in C-283/16, S., on whether Article 75(3) of the maintenance regulation covers the situation where the Central Authority of the requested Member State has lodged with a court of a Member State an application for recognition of a decision in matters relating to maintenance obligations given in a third State that was transmitted to it, after the accession of that State to the European Union and after the date of application of the Maintenance Regulation, via the Central Authority of that new Member State.

Case C-519/19, DelayFix, a preliminary reference where the AG’s opinion was not requested, will be delivered on 18 November 2020. The reference was sent by the Regional Court in Warsaw in a dispute concerning the unfair character of a term (a choice of court clause) included in a consumer’s contract. The case involves the interpretation of Directive 93/13/EEC on unfair terms in consumer contracts and Article 25 of the Brussels I bis Regulation. As the claim had been assigned, the claimant was not the consumer himself, thus the question from the Polish Court. The judgment will be a 1st Chamber one (judges Bonichot, Bay Larsen, Toader, Safjan, Jääskinen; Ms. Toader is the reporting judge).

The much awaited judgment in C-59/19, Wikingerhof, is scheduled for 24 November 2020. It will be a Grand Chamber decision (judges Lenaerts, Silva de Lapuerta, Bonichot, Arabadjiev, Prechal, Piçarra, von Danwitz, Toader, Safjan, Šváby, Rodin, Jürimäe, Lycourgos, Xuereb, Rossi; Mr. Safjian as reporting judge). Here the question, submitted by the Bundesgerichtshof (Germany):

Is Article 7(2) of [the Brussels I bis Regulation] to be interpreted as meaning that jurisdiction for matters relating to tort or delict exists in respect of an action seeking an injunction against specific practices if it is possible that the conduct complained of is covered by contractual provisions, but the applicant asserts that those provisions are based on an abuse of a dominant position on the part of the defendant?

AG Saugmandsgaard Øe delivered his opinion last September. Here my translation (the official English one is not yet available):

Article 7, point 2, of Regulation (EU) No. 1215/2012 of the European Parliament and of the Council, of 12 December 2012, on jurisdiction, recognition and enforcement of judicial decisions in civil and commercial matters must be interpreted in the sense that a civil liability action, based on the infringement of competition law, is a matter relating to “delict or quasi-delict”, within the meaning of the provision, even in the in the event that the plaintiff and the defendant are parties to a contract and the anti-competitive behavior the plaintiff attributes to the defendant is reflected in their contractual relationship.

Finally, AG Bobek’s opinion in C-307/19, Obala i lučice – a preliminary reference from the Commercial Court of Appeal, Croatia – will be delivered on 26 November 2020. Not a short request, in relation to a civil proceedings to recover the principal amount of HRK 84 (some 11 Euros), owed as payment for a daily parking ticket for a car parked on the public highway in Zadar (Croatia):

1. Are notaries authorised to effect service of documents under [the Service Regulation] when they serve notice of their decisions in cases in which [the Brussels I bis Regulation] does not apply, bearing in mind that, in Croatia, notaries acting within the framework of the powers conferred on them by national law in enforcement proceedings based on an ‘authentic document’ do not fall within the concept of ‘court’ within the meaning of [the Brussels I bis Regulation]? In other words, given that notaries do not fall within the concept of ‘court’ for the purposes of [the Brussels I bis Regulation], are they able, when acting within the framework of the powers conferred on them by national law in enforcement proceedings based on an ‘authentic document’, to apply the rules governing service of documents established in [the Service Regulation]?
2. Can parking in the street and on the public highway, where the right to collect payment is conferred by the Zakon o sigurnosti prometa na cestama (Law on Road Safety) and the legislation governing the performance of municipal activities as public authority activities, be considered a civil matter within the meaning of [the Brussels I bis Regulation], which governs the question of the jurisdiction of the courts and the recognition and enforcement of judgments in civil and commercial matters, especially having regard to the fact that, where a vehicle is found without a parking ticket or with an invalid ticket, it is immediately subject to a requirement to pay for a daily ticket, as though it had been parked for the whole day, regardless of the precise length of time for which it was parked, meaning that this daily parking charge has a punitive effect, and that in some Member States this type of parking constitutes a traffic offence?
3. In court proceedings of the type referred to above concerning parking in the street and on the public highway, where the right to collect payment is conferred by the Law on Road Safety and the legislation governing the performance of municipal activities as public authority activities, can the courts effect service of a document on the defendants in another Member State under [the Service Regulation]?

If, based on the above questions, this type of parking is ruled to be a civil matter, the following further questions are referred.

4. In the present case, there is a presumption that a contract is concluded in respect of the aforesaid on-street parking in a space designated by horizontal and/or vertical markings; in other words, by parking there one is deemed to enter into a contract, and if one fails to pay the correct hourly parking charge one has to pay for a daily ticket. The question is therefore raised as to whether that presumption, that parking gives rise to a contract and entails consent to pay for a daily ticket if one does not buy a ticket in accordance with the hourly parking tariff or if the parking period on the ticket has expired, is contrary to the basic stipulations on the provision of services in Article 56 of the Treaty on the Functioning of the European Union and to the other provisions in the EU acquis.
5. In the present case the parking took place in Zadar, Croatia, and there is therefore a connection between that contract and the Croatian courts. But does this parking constitute a ‘service’ within the meaning of Article 7(1) of [the Brussels I bis Regulation], bearing in mind that the concept of service implies that the party who provides the service carries out a particular activity, that is, that the said party carries out that particular activity in return for remuneration. The question is therefore whether the activity carried out by the appellant is sufficient for it to be considered a service. If the Croatian courts do not have special jurisdiction under Article 7(1) of [the Brussels I bis Regulation], jurisdiction to hear the case would lie with the court of the respondent’s domicile.
6. Can parking in the street and on the public highway, where the right to collect payment is conferred by the Law on Road Safety and the legislation governing the performance of municipal activities as public authority activities, and charges are levied only during a specified period during the day, be considered a tenancy agreement for immovable property under Article 24(1) of [the Brussels I bis Regulation]?
7. If the aforementioned presumption that the parking entails the conclusion of a contract (fourth question referred) cannot be applied in this case, can this type of parking, where authority to collect parking charges is conferred by the Law on Road Safety and a daily ticket must be purchased if a ticket for the parking period is not purchased in advance or if the parking ticket has expired, be deemed to constitute a matter relating to tort, delict or quasi-delict within the meaning of Article 7(2) of [the Brussels I bis Regulation]?
8. In the present case, the parking took place before Croatia joined the European Union, specifically at 13.02 on 30 June 2012. Therefore, the question is asked whether the regulations governing applicable law, namely [the Rome I Regulation] or [the Rome II Regulation], apply in the present case, having regard to their temporal validity.

If the Court of Justice of the European Union has jurisdiction to provide a response on the application of the material law, the following question is referred.

9. Is the presumption that this type of parking gives rise to a contract and entails consent to pay for a daily ticket if one does not pay the hourly parking charges or if the ticket expires, contrary to the basic stipulations on the provision of services in Article 56 TFEU and to the other provisions of the acquis, irrespective of whether the owner of the vehicle is a natural or a legal person? In other words, for the purposes of determining the material law, can the provisions of Article 4 of [the Rome I Regulation] apply in this case (given that there is no evidence in the proceedings to show that the parties came to an agreement on the applicable law)?
   • If a contract is held to exist, would it be a contract for the provision of services in the present case, that is to say, can the parking contract be considered a service within the meaning of Article 4(1)(b) of [the Rome I Regulation]?
   • In the alternative, could the parking be considered to constitute a tenancy agreement in accordance with Article 4(1)(c) of [the Rome I Regulation]?
   • In the alternative, if the parking comes under the provisions of Article 4(2) of [the Rome I Regulation], the question arises as to what constitutes the characteristic performance in the present case, bearing in mind that, in essence, the appellant merely marks the parking area on the roadway and collects parking charges, while the respondent parks and pays for the parking. In practice, if the characteristic performance is considered to be that of the appellant, Croatian law would apply, whereas if the characteristic performance is that of the respondent, Slovenian law would apply. However, given that in this case the right to collect parking charges is regulated by Croatian law, with which, therefore, the contract is more closely connected, can the provisions of Article 4([3]) of [the Rome I Regulation] nevertheless also apply?
   • If the case is considered to involve a non-contractual obligation within the terms of [the Rome II Regulation], could this non-contractual obligation be considered to constitute damage, meaning that the applicable law would be determined in accordance with Article 4(1) of [that Regulation]?
   • In the alternative, could this type of parking be considered to constitute unjust enrichment, meaning that the applicable law would be determined in accordance with Article 10(1) of [the Rome II Regulation]?
   • In the alternative, could this type of parking be considered to constitute negotiorum gestio, in which case the applicable law would be determined in accordance with Article 11(1) of [the Rome II Regulation]?
   • In the alternative, could this type of parking be considered to constitute liability on the part of the respondent for culpa in contrahendo, in which case the applicable law would be determined in accordance with Article 12(1) of [the Rome II Regulation]?

A hearing was foreseen which could not be held (questions and answers were thus in written form). The decision will be taken by the 1st Chamber (judges Bonichot, Bay Larsen, Toader, Safjan, Jääskinen, with Ms. Toader as reporting judge).

In May 2019 a seminar took place in Madrid on the occasion of the 90th anniversary of UNIDROIT. A book has followed edited by Alfonso Luis Calvo Caravaca (Universidad Carlos III, Madrid) and Ignacio Tirado Martí (Universidad Autónoma, Madrid, current Secretary General of UNIDROIT), with contributions in English and Spanish from Lena Peters, Alfonso Luis Calvo Caravaca and Javier Carrascosa González, Marta Requejo Isidro, Carlos Fernández Liesa, Celia Caamiña Domínguez, Anna Veneziano, Teresa Rodríguez de las Heras, and William Brydie-Watson, recalling some of the main achievements of the organization. The introductory words by Prof. Calvo summarize his intervention a the seminar:

UNIDROIT emerged within the League of Nations in 1926. Its cradle is the origin and meaning of its mandate. The spirit of cooperation between nations, as a method of overcoming the differences that had plagued much of the world during the First World War, had its corollary in bringing the different legal systems closer together and promoting socio-economic exchanges between citizens. of the world. In large part, the idea that was beating was none other than the consideration of commercial relations as the axis on which to build a world in peace.

The founding ideas remain in the DNA of the institution, which began as predominantly European (since the Great War had been predominantly European) and gradually became global. Currently, UNIDROIT gathers 63 countries, including all members of the G-20 and covering 80% of the world’s population. There has never been a better time for the unification of private law. UNIDROIT is part of the list of international organizations known as “Las Tres Hermanas” (the Three Sisters), together with the Hague Conference on Private International Law and the United Nations Commission for International Trade Law. The three institutions are currently developing an almost frenetic activity of great practical and academic relevance. This relationship, synergistic and sustained over time, entails a reciprocal benefit that we aspire to reinforce with this initiative, which we hope will be followed by many others.

For more information, see here.

We are happy to announce that Alina Ontanu, of the University of Rotterdam, has joined the team of the EAPIL blog! Check her first post, which is out today.

As indicated in the inaugural issue of the EAPIL Newsletter, we wish to further expand the team. Interested EAPIL members are encouraged to get in touch with the managing editor, Pietro Franzina, at pietro.franzina@unicatt.it.

Applications from scholars or practitioners willing to report about developments in countries other than the countries currently covered by the team are especially welcome (the team is now covering Cyprus, France, Germany, Greece, Italy, Luxembourg, the Netherlands, Poland, Romania, and Spain).

The Blog is also seeking to appoint a social media manager, to improve and consolidate the Blog’s presence on LinkedIn, Twitter etc. Those applying for editor are encouraged to state whether they would also be happy to take care of the latter aspects.

On 6 November 2020 (13:30 – 16:30 CET) the Royal Netherlands Society of International Law (KNVIR) will be holding its Annual Meeting online via Zoom. This year the invited legal experts will be focusing on the theme of adaptability of (private) international law to the digital environment.

In their presentations Marjolein Busstra, Wieteke Teeuwen (Dutch Ministry of Foreign Affairs), Ybo Buruma (Netherlands Supreme Court and Radboud University Nijmegen), and Jerker B. Svantesson (Bond University; Swedish Law & Informatics Research Institute, Stockholm University, Sweden and Masaryk University) will be discussing whether the concepts and ideas developed in the ‘predigital era’ still fit the digital world. In doing so the speakers will analyse whether international law (both public and private) is ready for the digital era or whether law has been a rather ‘fragmented follower of developments’ and we should be fundamentally rethinking a number of notions and approaches.

Marjolein Busstra and Wieteke Teeuwen will focus on International Law in the Context of Cyber Operations. Ybo Buruma will look at internet from the perspective of International Law and Cyberspace – Issues of Sovereignty and the Common Good. Finally, Jerker B. Svantesson will be discussing whether International Law [Is] Ready for the (Already Ongoing) Digital Age: Perspectives from Private and Public International Law.

Registration is open until 3 November 2000 at info@knvir.org.

The reports (preadviezen) prepared by the legal experts have been published in November by Asser Press under the title International Law for a Digitalised World. You can find more information about this here.

The author of this post is Jorg Sladič, associate professor of International and European Law at the European Faculty of Law in Ljubljana.

On 11 August 2020, the Slovenian Supreme Court dismissed an appeal challenging the enforcement of an Austrian judgement compelling the judgment debtor to pay levies to the Austrian Construction Workers’ Annual Leave and Severance Pay Fund, known as BUAK (Bauarbeiter-Urlaubs- und Abfertigungskasse). The sums (claims for wage supplements regarding annual leave pay) to be paid to BUAK even though rather a matter of Austrian public law are under interpretation of Brussels I bis Regulation a civil and commercial matter (case Cpg 8/2020, ECLI:SI:VSRS:2020:CPG.8.2020).

Facts

A Slovenian judgment debtor was condemned by an Austrian court upon application of the Austrian person of public law BUAK to pay a sum of money as capital and a levy for claims for wage supplements regarding annual leave to BUAK on 3 May 2018.

The Austrian judgment-creditor moved to enforce the judgment. A Slovenian court granted a writ of execution on 16 June 2019. The judgement-debtor appealed and the appeal arrived at the Slovenian Supreme Court and raised among others a plea in law according to which such an Austrian judgement is contrary to Slovenian public policy. As it was alleged that the liabilities to be paid under the Austrian judgement were already paid under Slovenian law, the enforcement would mean a double payment of the same obligation. Anyhow, according to the judgment-debtor the said Austrian judgment is not a civil or commercial matter governed by Brussels I bis Regulation as the judgment-creditor BUAK is a legal person of public law, the obligation to be paid under the said Austrian judgement (claim for wage supplements regarding annual leave pay) is an obligation of public law or even a levy

Ruling

The Supreme Court dismissed the appeal on the following grounds.

Civil and Commercial Matters

Article 1(1) of the Brussels I Regulation provides that it applies to civil and commercial matters, but does not cover tax, customs or administrative matters or the State’s liability for acts and omissions in the exercise of State authority (acta iure imperii). Point (c) of the second paragraph of Article 1 of the Regulation explicitly states that it does not apply to social security.

As the Court of First Instance rightly explained, the question of the applicability of the Brussels I bis Regulation has already been settled by the Court of Justice in a preliminary ruling in the case of Korana, decided in 2019 (Case C-579/17). The Court of Justice clarified that the term “civil and commercial matters” must be interpreted autonomously under the regulation and that the fact that BUAK has the status of a collective body governed by public law is not decisive. The legal basis of the relationship from which the claim originates shall be decisive.

The employer’s obligation to pay wage supplements regarding annual leave claimed by BUAK before the Austrian forum is inextricably linked to the employees’ right to annual leave paid under civil law, so the nature of BUAK’s claim is also that of a right under civil law. In addition, a distinction must be made between cases where BUAK itself can issue a certificate of unpaid debts, which is an enforceable title, and cases – such as the case under consideration – where BUAK has to claim unpaid wage supplements regarding annual leave belonging to posted workers not having their habitual place of work in Austria before a court, which is also an argument in favour of the nature of the claim as being a claim of civil law.

The Court of Justice of the EU has in addition also ruled that this is not a benefit in the sense of the“social security” exception, which would also be excluded from the scope of the Brussels I bis Regulation. A social security benefit exists where it would be granted to beneficiaries on the basis of a legally defined position without any individual or discretionary assessment of personal needs. In the present case, however, the issue is the remuneration for annual leave, which in turn depends on the wage supplements, which are the legal basis for employer’s payment. Remuneration for annual leave in connection with work performed by a posted worker must be paid by the employer, even if the payment is made through the BUAK.

Decisions of the Court of Justice of the EU on preliminary questions are binding on the national courts of the Member States, therefore the applicants’ disagreement with the position of the Court of Justice cannot lead to different conclusions than those already reached by the Court of First Instance in the contested order. The Brussels I bis Regulation also applies to claims of BUAK for wage supplements regarding annual leave of posted workers, as these claims are of a civil nature.

Ordre public defense

The applicants’ plea that the levies or contributions claimed by the judgement-creditor in the enforcement proceedings referring to the Austrian judgment had already been paid in Slovenia, as a result the recognition and enforcement of the judgment of the Republic of Austria is allegedly contrary to Slovenian ordre public does not have any merits. In the appeal, the appellants (judgment-debtors) themselves claim that the Slovenian legal order does not provide for the payment wage supplements regarding annual leave of posted workers in the construction sector, as foreseen in Austrian law, therefore as a consequence the performance of obligations under the challenged judgement cannot already notionally constitute a double payment of the same claim. The mere fact that the Slovenian legal system does not legislate on a certain contribution or that it enacts contributions differently does not mean that the payment of a claim under the impugned judgment is contrary to the Slovenian ordre public. Namely, ordre public does not include all mandatory provisions of domestic law, but only those imperative legal norms and moral rules, the violation of which would endanger the integrity of the Slovenian legal order. However, the payment of contributions in favour of workers does not justify such opposition.

Conclusion

The ruling does completely comply with the judgment of the Court of Justice in the 2019 Korana case. The Slovenian and the ECJ cases both refer to Slovenian posted workers in the construction sector in Austria (Slovenia and Austria are neighbouring countries). At the economic level both cases show how the freedom of movement and freedom to provide services operate between East- and West EU. Whereas the Korana case concerned a litigation before the Labour and Social Court of Vienna, the discussed Slovenian case shows the next stage, i.e. the enforcement of Austrian rulings in Slovenia.

The only surprising element in this case is the timing. The Korana case was decided by the ECJ on 28 February 2019, the first ruling by the highest national court of another EU Member State where an enforcement of Austrian judgements based on that ruling is sought was handed down already on 11 August 2020. Considering the translation issues, the service of judicial and extrajudicial documents in civil or commercial matters between two EU Member States and then the Coronavirus pandemics, the cross-border cooperation between Slovenia and Austria seems to work quite fast.

A webinar, organised by the Young EU Private International Law Research Network (an EAPIL activity), will take place on 16 November 2020, from 9.15 to 15.30. The webinar’s topic is Overriding Mandatory Rules in the Law of the EU Member States.

Speakers include Katarzyna Bogdzevič (Mykolas Romeris University), Stefano Dominelli (University of Genoa), István Erdős (ELTE), Uglješa Grušić (University College London), Holger Jacobs (University of Mainz), Martina Melcher (University of Graz, co-chair of the Network), Markus Petsche (Central European University), Ennio Piovesani (University of Turin/University of Cologne), Johannes Ungerer (University of Oxford), Tamás Szabados (ELTE, co-chair of the Network), Dora Zgrabljić Rotar (University of Zagreb).

The sessions will be chaired by Florian Heindler (Sigmund Freud University Vienna) and Eduardo Alvarez-Armas (Brunel University London).

The full of programme of the event is available here.

Attendance is free of charge, but those interested in attending are asked to register via email at youngeupil@gmail.com before 12 November 2020.

Complaints about the inefficiency of enforcement mechanisms at national and transnational level are not new. The insufficiency of existing national and international legal frameworks is a growing cause for concern at all levels. Academics and practitioners acknowledge the fundamental importance of procedures and mechanisms for the effective enforcement of creditors’ claims both in domestic and in cross border situations. They also agree on the existence of numerous obstacles for enforcement in most jurisdictions, and on the need for a comprehensive and  detailed international instrument providing for guidance for national legislators to overcome such challenges.

In the agenda UNIDROIT (the International Institute for the Unification of Private Law) has published for the triennial period 2020 – 2022, transnational principles of civil procedure are included with
– high priority:  Formulation of regional rules;
– medium priority : Principles of effective enforcement (NoA: priority was moved to “high” by the UNIDROIT Governing Council at its 99th session);
– low priority:  International Civil Procedure in Latin America.

As a matter of fact, UNIDROIT has been actively working towards a soft harmonisation of civil procedural rules – mainly to be applied in transnational disputes but also meant to provide guidance in domestic law reforms- already for a while. In 2004, the Governing Council of UNIDROIT adopted the so-called ALI/UNIDROIT Principles of Transnational Civil Procedure (ALI=American Law Institute), which the organization itself defines as its “landmark instrument in this area”.

The ‘Principles’ consist of 31 provisions accompanied by a commentary. They aim to reconcile differences among various national rules of civil procedure, taking into account the peculiarities of transnational disputes as compared to purely domestic ones. They are intended to serve as guidelines for code projects in countries without long procedural traditions; also, as a basis for reform in countries with long and high-quality procedural traditions. They may also be applied by analogy in international commercial arbitration.

In 2013, UNIDROIT and the European Law Institute (ELI) started working together towards the development of European Rules of Civil Procedure. The ELI – UNIDROIT Rules were presented in an International Workshop Webwinar held as a closing event of the 99th session of the UNIDROIT Governing Council, on 25 September 2020.

In addition, UNIDROIT Work Programme 2017-2019 envisaged the preparation of Transnational Principles of Effective Enforcement to bridge the gaps of the ALI/ UNIDROIT Principles of Transnational Civil Procedure in this regard. A preliminary feasibility study was conducted by Rolf Stürner, Emeritus Professor at the University of Freiburg (Germany) and former co-reporter of the ALI/UNIDROIT Principles of Transnational Civil Procedure, and submitted to the Governing Council at its 95th session (2016). According to its final conclusion

Principles will set common minimum standards of enforcement, they will motivate legislatures to evaluate and improve the quality of their laws and thereby strengthen the efficiency of enforcement in foreign countries. Common minimum standards will be a source of increasing harmonization of enforcement laws, as well as predictability of the results of enforcement measures in foreign countries and facilitation of enforcement in cross border cases. A certain degree of harmonization is a necessary precondition of international cooperation in the field of cross border enforcement, which is designed to avoid conflicts of sovereignty and conflicting or superfluous parallel and cost intensive enforcement measures. Worldwide, there is sufficient common ground for specific principles of individual modes of enforcement and for overarching general principles of an overall system of efficient civil enforcement. The variety of organizational structures should not be considered a decisive obstacle to harmonizing principles. It will be possible to develop principles, which define managerial standards to be met by the enforcement mechanisms and the individual enforcement authorities and which at the same time leave necessary leeway for successful regional traditions and local needs. Co-operation with other organizations dealing with the harmonization of law could result in a helpful increase of human and financial resources. The experience of the first joint project with the American Law Institute was very encouraging.

At the time, the topic was nevertheless accorded low priority, which meant the work would only commence after the completion of the preparation of European Rules of Civil Procedure. In this context, the Secretariat received in December 2018 a proposal for the 2020-2022 Work Programme by the World Bank regarding a project on the “Development of a Working Paper to Outline Best Practices on Debt Enforcement”, which it presented on the occasion of the discussion of the 2020-2022 Work Programme at the 98th Session of the Governing Council. The proposal was discussed as a continuation, and a refinement, of the scope of the  “Principles of Effective Enforcement”, and eventually included in the new Work Programme by the General Assembly.

On 21 September 2020, the UNIDROIT Secretariat, as mandated by the Governing Council at the first meeting of the 99th  session, convened an internal consultation workshop on the project on Best Practices of Effective Enforcement. The UNIDROIT Governing Council, at its 99th session, approved the guidelines provided by the Secretariat regarding the proposed scope of the project, and authorised the establishment of a Working Group, to meet in Rome and on Zoom on 30-November – 2 December 2020. The composition of the group has not yet been disclosed; the MPI Luxembourg will be represented as an observer.

If the initial schedule is kept, the project will be a quick one, coming to an end already in 2022. No doubt it is worth to follow its development and to reflect on its potential impact on the law and practice of cross-border enforcement within the EU and beyond.

A collection of essays edited by Florian Heindler (Sigmund Freud University, Vienna) has recently been published by Jan Sramek Verlag, in its Interdisciplinary Studies of Comparative and Private International Law series. The book celebrates the 40th birthday of the Austrian Private International Law Act.

The essays collected are authored by scholars for various countries and focus on the possible reform of the Act and its current value.

Authors include Andrea Bonomi, Axel Flessner, Fabienne Jault-Seseke, Thomas John, Caroline Sophie Rupp, Thomas Bachner, Ena-Marlis Bajons, Wolfgang Faber, Edwin Gitschthaler, Florian Heindler, Helmut Heiss, Brigitta Lurger, Martina Melcher, Andreas Schwartze, and Bea Verschraegen.

More details available here.

The Russian Legal Information Agency has announced that Russia’s Justice Ministry, acting jointly with the Foreign Ministry and the Supreme Court of the Russian Federation, proposed that the Government pass a recommendation to sign the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (the ‘Convention’).

Although there were previously fake news circulating on the internet in this respect, it seems that Russia may well ratify the Convention or, at the very least, that Russian elites are contemplating doing so.

But why would Russia do that?

According to the Russian Agency, the answer seems to be that Russia would want to “create conditions for the recognition and enforcement of decisions taken by Russian courts in all [contracting States] of the new Convention.”

So, Russia hopes to improve the enforcement of Russian judgments abroad. This seems quite logical. Improving the enforcement of the forum’s judgments abroad is a common rationale for entering into bilateral treaties on the enforcement of foreign judgments and for having a reciprocity requirement in the forum’s law of foreign judgments.

There is, however, a downside: by entering into a treaty on the enforcement of foreign judgments, the contracting States also commit themselves to enforcing judgments rendered by other contracting States. In other words, if Russia ratifies the 2019 Convention, it will also promise to enforce in Russia judgments rendered by the courts of other contracting States.

The Russian law of foreign judgments is not liberal. The basic rule is that Russia only enforces judgments on the basis of a treaty. While Russian courts have sometimes accepted to enforce foreign judgments in the absence of treaty under the principle of comity, Russian law remains conservative in this respect.

In contrast, many other States have a very liberal law of foreign judgments, and have enforced Russian judgements on the basis of their common law of foreign judgments, without caring for any form of reciprocity. These liberal States include, among many others, the United States and France. In the US, in particular, courts have enforced Russian judgments on numerous occasions (in 2018, Russian judgments were enforced by New York and California courts, for instance). The 2019 Convention will not improve the prospects of enforcement of Russian judgments in those states.

So the main effect of entering into the 2019 Convention may well be that Russia will commit to enforce judgments that it would not enforce today. In other words, the 2019 Convention would certainly liberalize the Russian law of foreign judgments, but it is unclear to which extent it would improve the enforcement of Russian judgments abroad.

Surely, there are other States with a conservative law of foreign judgments. If these other States ratify the Convention, Russia will have improved the prospects of enforcing its judgments in these states. But who are these states and are they planning to sign the 2019 Convention? And are these states Significant trading partners of Russia? Otherwise, why should Russia care?

Germany is no doubt one of the biggest trading partners of Russia, and there is a reciprocity requirement under the German law of foreign judgments. Maybe German courts have denied enforcement to Russian judgments, but maybe they have considered that the prospects of enforcement of German judgments in Russia were such that German courts should enforce Russian judgments. Our German readers will tell.

A major judicial partner of Russia has been, lately, England. The English common law of judgments is pretty conservative, in particular with respect to the assessment of the jurisdiction of foreign courts. Because of Brexit, England is likely to sign the 2019 Convention. By entering into the Convention as well, the enforcement of Russian judgments in England would then improve. This might be enough of an incentive for Russia to enter into the Convention.

It would be great news for the rest of the world if Russia ratified the 2019 Judgments Convention. Whether it would be good news for Russia remains to be seen.

Ronald A. Brand (University of Pittsburgh School of Law) has published a paper titled Comparative Method and International Litigation on the Journal of Dispute Resolution 273 (2020).

The abstract reads:

In this article, resulting from a presentation at the 2019 Annual Meeting of the American Society of Comparative Law, I apply comparative method to international litigation. I do so from the perspective of a U.S.-trained lawyer who has been involved for over 25 years in the negotiations that produced both the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters. The law of jurisdiction and judgments recognition is probably most often taught in a litigation context. Nonetheless, that law has as much or more importance to the transaction planning lawyer as to the litigator, and affects my focus here for comparative study of developments both in the Hague Conference process and in national (and regional) legal systems during the negotiation of the two treaties with which I have been involved. I look not only at domestic law, but also at treaties and other international legal instruments – the comparative evolution of the law. Moreover, I look at both legal rules and legal systems, addressing the comparative evolution of the institutions that make the law. This includes a comparison of the most influential legal systems at the start of the Hague negotiations. The differences resulting from that comparison ultimately affected the focus of the negotiations and the text of the resulting legal instruments. I end with a set of four conclusions based on these observations and comparisons.

See also here.

Matthias Weller (University of Bonn) has posted The HCCH 2019 Judgments Convention: New Trends in Trust Management on SSRN.

The abstract reads:

On its 22nd Diplomatic Session on 2 July 2019, the Hague Conference on Private International Law concluded its Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. The adoption of this Convention completes intense efforts of the HCC and the participating State Parties since 1992. One of the controversial issues in the last steps before the adoption was what has been called, in other contexts, “trust management”. This concept refers to the question how to embark on meaningful judicial cooperation in civil matters with participating states whose administration of justice is perceived as not sufficiently trust-worthy by other participating states – the “real elephant in the room”. At the same time, judicial integration in civil matters is an indispensable part of regulating transnational trade relations. Undoubtedly, international commercial arbitration should have the fullest possible freedom and support. However, without any effective alternative, there is no “alternative” dispute resolution and no “freedom of choice”. Rather, nations and regions, particularly those trading within frameworks of economic integration and thus on an intensified scale, should strive for an “integrated approach”. Against this background, the text explores new trends of trust management of the new HCCH instrument.

The article was published in the Festschrift für Herbert Kronke zum 70. Geburtstag.

The EAPIL Blog hosts today two posts on the ruling of the Court of Justice in E.E., a case regarding the Succession Regulation decided on 16 July 2020. The firs post, by Matthias Lehmann, appeared this morning. The second post, by Carlos Santaló Goris, a research fellow at the MPI Luxembourg and a Ph.D. candidate at the University of Luxembourg, is featured below.

Introduction  

On 16 July 2020, the Court of Justice of the European Union (“CJEU”) delivered its sixth judgment on Regulation No 650/2012 (the Succession Regulation): C-80/19, E. E.

The preliminary reference allowed the CJEU to address several questions about the
Succession Regulation’s rules on jurisdiction, applicable law, and recognition and enforcement. It also gave the CJEU the opportunity to clarify certain elements of the Succession Regulation: some of them new (such as the determination of the habitual residence), others already familiar to the Court (e.g. are notaries ‘courts’ for the purposes of the Succession Regulation?).

Facts of the Case and Questions Referred

E.E.’s mother – the deceased – was a Lithuanian national who, in 2013, got married to a German national and moved to Germany. The same year she made a will before a Lithuanian notary. In 2017, she passed away in Germany. E.E., also of Lithuanian nationality, requested a notary in Kaunas (Lithuania) to open the succession and issue a certificate of succession rights. The notary rejected the requests arguing the deceased was habitually resident in Germany: therefore, according to the jurisdictional rules of the Succession Regulation, it was up to German authorities to open the succession. E.E. challenged the notary’s refusal. The case ended up before the Supreme Court of Lithuania, which referred the following questions to the CJEU:

(1) Is a situation such as that in the case under examination — in which a Lithuanian national whose habitual place of residence on the day of her death was possibly in another Member State, but who in any event had never severed her links with her homeland, and who, inter alia, had drawn up, prior to her death, a will in Lithuania and left all of her assets to her heir, a Lithuanian national, and at the time of the opening of the succession it was established that the entire estate comprised immovable property located solely in Lithuania, and a national of that other Member State surviving his spouse expressed in clear terms his intention to waive all claims to the estate of the deceased, did not take part in the court proceedings brought in Lithuania, and consented to the jurisdiction of the Lithuanian courts and the application of Lithuanian law — to be regarded as a succession with cross-border implications within the meaning of [the Succession Regulation]?

(2) Is a Lithuanian notary who opens a succession case, issues a certificate of succession rights and carries out other actions necessary for the heir to assert his or her rights to be regarded as a ‘court’ within the meaning of Article 3(2) of [the Regulation]?

(3) If the second question is answered in the affirmative, are certificates of succession rights issued by Lithuanian notaries to be regarded as being decisions within the meaning of Article 3(1)(g) of [the Succession Regulation] and must jurisdiction for that reason be established for the purpose of issuing them?

(4) If the second question is answered in the negative, should the provisions of Articles 4 and 59 of [the Succession Regulation] be construed as meaning that Lithuanian notaries are entitled to issue certificates of succession rights without following general rules on jurisdiction and that such certificates will be held to be authentic instruments which also give rise to legal consequences in other Member States?

(5) Must Article 4 of [the Succession Regulation] (or other provisions thereof) be construed as meaning that the habitual place of residence of the deceased can be established in only one specific Member State?

Should the provisions of Articles 4, 5, 7 and 22 of [the Regulation] be construed and applied in such a way that, in the present case, in accordance with the facts as set out in the first question, it must be concluded that the parties concerned agreed that the courts in Lithuania should have jurisdiction and that Lithuanian law should be applied?

One or More Habitual Residence(s), and Where?

The CJEU addressed first whether a deceased may have more than one habitual residence for the purposes of the Succession Regulation. Indeed, in the case at hand, there were data suggesting that the habitual residence of the de cujus could have been located in two Member States: she had lived for a while in Germany when she passed away, but she held Lithuanian nationality and all her assets were in Lithuania. However, the CJEU made it clear that there can be only one habitual residence. A different answer would lead to a fragmented succession, something that the Succession Regulation aims at avoiding (para. 41).

Was the habitual residence of the deceased in Germany, or rather in Lithuania? The Regulation itself acknowledges that determining the place of habitual residence is not always easy. Some domestic courts have already struggled with this issue. The CJEU relies on the guidance offered by the Regulation’s Preamble, Recitals 23 and 24, inviting the referring court to consider both in order to establish the habitual residence of the deceased in the case at hand.

It is here submitted that by relying on the recitals, the CJEU has vested them with some kind of normative value. From now on, domestic authorities shall consider recitals 23 and 24 of the Succession Regulation when confronted with the need to determine the habitual residence of a deceased. Moreover, the Court’s reasoning indicates how to apply the recitals. First, the national authorities shall rely on Recital 23 to try and establish a close and stable connection with a Member State, taking into account both subjective factors (e.g., why the deceased lived in that Member State) and objective factors (e.g., how long the deceased spent in that Member State). Only if they fail can domestic authorities rely on Recital 24 and consider other data, such as the nationality or the location of the assets.

A Succession with Cross-border Implications?

The CJEU was asked as well whether the succession of E.E.’s mother qualified as one with cross-border implications. Indeed, as the CJEU recalls, the Succession Regulation only applies to such successions (paras. 34 – 35). However, there is no definition of what the European legislator meant by ‘cross-border implications.’ In this sense, the CJEU states: “it must be assessed whether the succession has a cross-border nature due to the location of another element of it in a State other than that of the deceased’s last habitual residence” (para. 42). But what are these other elements? In a non-exhaustive manner, the CJEU referred to the location of the deceased’s assets in a Member State other than the one of habitual residence of the deceased (para. 43). Therefore, in the present case, the succession of E.E.’s mother would fall under the scope of the Regulation if Germany prevails as “habitual residence”, for the estate assets (an apartment) are located in Lithuania.

By contrast, if ultimately (very unlikely, though) the national court prefers Lithuania as place of habitual residence, both the assets and habitual residence would be located in the same Member State. Would the succession be a purely internal one, then? The question arises whether other factors confer a cross-border dimension to a succession; the E.E. judgment is of little help here. Instead, one should look at the AG Opinion, where reference is made as well to the heirs’ habitual residence as a significant element to determine the succession’s cross-border implications (para. 65). In the present case, both potential heirs (E.E. and his stepfather) had their habitual residence in Germany. Therefore, should the deceased’s habitual residence be deemed to be Lithuania, the succession would still be one of interest for the Regulation.

Nothing New Concerning (Lithuanian) Notaries

The referring court also asks whether Lithuanian notaries are “courts” within the meaning of the Succession Regulation. A positive answer would have meant that they are subject to the Succession Regulation’s jurisdictional rules. The question is not new for the CJEU. In C-658/17, WB, a similar one had been referred concerning Polish notaries. The CJEU answered in the negative: the Polish notaries lack “judicial functions” (para. 61), i.e., “the power to rule of [their] own motion on possible points of contention between the parties concerned“(para. 55).

The CJEU applied the same logic in E.E. It appears from its reasoning that Lithuanian notaries in functions like the one deployed in the case at stake are not courts within the meaning of Article 3 of the Succession Regulation (para. 53). However, the CJEU does not say it so in so many words, but leaves it to the referring court to decide (para. 54).

Since the CJEU follows WB, the same critical remarks the judgment has met within scholarly circles will probably apply to E.E.. The CJEU did not fully elaborate on the notion of court, but simply referred to one of the characteristics mentioned in Article 3(2). Additionally, the notion of “jurisdictional functions” retained appears to be inconsistent with C-20/17, Oberle, where the CJEU ruled that the issuance of a domestic certificate of succession by a German court was subject to the Succession Regulation’s jurisdictional rules, in spite of the fact that the proceeding were not “judicial” in the sense of WB (and, now, E.E.). Several scholars have expressed their surprise that a certificate of succession rendered by a German court fall within the Succession Regulation’s jurisdictional scheme, but one rendered by a Lithuanian or a Polish notary does not.

One may wonder whether E.E. was actually a suitable occasion to work out a comprehensive notion of “court”. True, in E.E., the question was formulated in slightly broader terms than in WB. In the latter, the referring court asked whether a Polish notary issuing a certificate of succession is a ‘court’. Conversely, in the latter, the referring court asked whether a Lithuanian notary was a court when it “issues a certificate of succession rights and carries out other actions necessary for the heir to assert his or her rights.” This notwithstanding, it seems that Lithuanian and Polish notaries are quite similar. Thus, it is not surprising that the CJEU followed the same approach. There might be better occasions to address the issue again.

The Lithuanian Certificate of Succession: Judgment or Authentic Instrument?

The CJEU was also requested to determine whether a Lithuanian domestic certificate of succession was a judgment (if notaries are regarded as courts), or an authentic instrument (if notaries are not regarded as courts). The Court explored both possibilities:

Should the notaries be “courts” in the sense of the Regulation, they would be subject to its jurisdictional rules (para. 62), and the national certificate of succession would be a judgment within the meaning of Article (para. 63).

Conversely, if notaries are not ‘courts’, the certificate of succession would be an ‘authentic instrument,’ as long as it fulfils the characteristics imposed by the Succession Regulation on this type of instruments (paras. 72 – 73).

The CJEU’s outcome is hardly surprising considering that it had already explored this point in WB, on the Polish domestic certificate of succession.

The Parties’ Autonomy

In principle, under the Succession Regulation, the courts’ jurisdiction and the applicable law corresponds to the Member State of the deceased’s habitual residence. However, the Regulation grants a certain degree of autonomy to the deceased and to the heirs to opt for a different applicable law and another jurisdiction, respectively. This freedom is nonetheless limited: the deceased can only choose the law of the State his/her nationality (Article 22); the heirs can only opt for the courts of a Member State whose law had been chosen by the deceased (Article 5, Article 7). In E.E., the referring court was uncertain as to whether the deceased had actually opted for the law of her nationality, and the heirs for the jurisdiction of the Lithuanian courts.

Concerning the applicable law, E.E.’s mother had not expressly chosen the law of her nationality. Nonetheless, Article 83(4) of the Regulation creates a fiction according to which “if a disposition of property upon death was made prior to 17 August 2015 in accordance with the law which the deceased could have chosen in accordance with this Regulation, that law shall be deemed to have been chosen as the law applicable to the succession”. Since E.E.’s mother drew up her will before a Lithuanian notary in 2013 according to Lithuanian law, the fiction applies (para. 26) .

Lithuanian law being applicable, the referring court wondered if the potential heirs (E.E. and the deceased’s husband) had chosen the jurisdiction of Lithuanian courts. According to the Succession Regulation they could have done it through a choice-of-court agreement (Article 5); or through express declarations in which they accepted the jurisdiction of the court seized (Article 7). In the present case, unilateral declarations had been made by the deceased’s husband in Germany waiving any claim to the estate, consenting to the jurisdiction of the Lithuanian court and refusing to enter an appearance before it in the proceedings under way in that State. It is clear that these declarations do not amount to an Article 5 choice-of-agreement (para. 85); could they be an “express declaration” in the sense of Article 7? One more time, the CJEU leaves the question open, to be decided by the referring court. AG Campos Sánchez-Bordona went a step further, suggesting a flexible reading of the party’s autonomy. In his words, “it is appropriate to recall that the Regulation must not be read in such a way as to prevent parties from settling a succession out of court in a Member State which they have chosen, if that is possible under the law of that Member State” (para. 122).

Overall Assessment

E.E. will hardly be seen as a landmark case on the Succession Regulation. The main contribution/output of this judgment is the elaboration on an autonomous concept of “habitual residence”, based on the Preamble of the Regulation; and the characterization of Article 83(4) as a fiction, and not a presumption. Beyond that, the answer to the other questions is relatively basic, sometimes even disappointing . The CJEU either relies on what it had already said in previous cases without moving forward (e.g., Oberle; WB); or it paraphrases the text of the Succession Regulation. The referring court may find the AG’s Opinion more instructive than the judgment: something not unusual, and – even if not aimed at by the CJUE’s procedural and estructural rules- a good example of teamwork.

At any rate, E.E. remains an interesting case in that it reflects common difficulties faced by the domestic authorities when dealing with the Succession Regulation.