Droit international général

The European Commission (EC) is preparing a legislative initiative on the recognition of parenthood between the EU Member States. The EC is now in the process of setting up an Experts’ Group on the topic and has issued a call for Experts which, together with more information, can be found here.

On Tuesday, April 6, 2021, the Hamburg Max Planck Institute will host its ninth monthly virtual workshop in private international law at 11:00-12:30. Since January of this year, we are alternating between English and German language. Burkhard Hess (Max Planck Institute Luxemburg for Procedural Law)  will speak, in German, about the topic

„Comparative Procedural Law and Justice – neue Wege in der Prozessrechtsvergleichung
(“Comparative Procedural Law and Justice – New Avenues for Comparative Civil Procedure”

The presentation will be followed by open discussion. All are welcome. More information and sign-up here. This is the ninth such lecture in the series, after those by Mathias Lehmann in June, Eva-Maria Kieninger in July, Giesela Rühl in September, Anatol Dutta in October, Susanne Gössl in November, Marc-Philippe Weller in December, Macjiej Szpunar in January,  Dagmar Coester-Waltjen in February, and Horatia Muir Watt in March. In May we will again have an English language event – stay tuned! If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de

Information and text provided by Niklaus Meier, co-head of the Private International Law Unit at the Swiss Federal Office of Justice

The Swiss Federal Act on Private International Law (FAPIL), adopted in 1987, has had – and still has – a huge influence throughout the world. It is “possibly the most complete codification of private international law worldwide” (Kadner Graziano, Journal of Private International Law. 2015, vol. 11, no. 3, p. 585: “Codifying European Private International Law: The Swiss Private International Law Act – A Model for a Comprehensive European Private International Law Regulation?”) and has influenced PIL codifications in many countries (Kadner Graziano, p. 589-90).

The global relevance of the Swiss Federal Act on PIL led to numerous translations, testament of its international character. Complete translations have been published by Prof. Andreas Bucher (last updated 2021): www.andreasbucher-law.ch; Umbricht attorneys (2017): www.umbricht.ch/de/schweizerisches-internationales-privatrecht-iprg; Gehri/Walther (2010): www.schulthess.com/verlag/detail/ISBN-9783280072509/Gehri-Myriam-A.-Walther-Fridolin/Swiss-Laws-on-Civil-Procedure; the Swiss-American Chamber of Commerce (2nd edition 2004, 1st edition 1989); and Karrer/Arnold/Patocchi (1994): Switzerland’s Private International Law (Schulthess/Kluwer). In addition, chapter 12 on arbitration has been translated by actors active in the field, such as the Swiss Arbitration Association (www.arbitration-ch.org/en/arbitration-in-switzerland/index.html).

Translation is a difficult task: “Mastery of the languages involved is necessary, but not sufficient, particularly where the user of a translation expects a literal translation, the legal systems of the starting languages and target language differ fundamentally and the subject matter is highly abstract.” (Walter König, 11 Mich. J. Int’. L. 1294 (1990), 1295, “Translation of Legal Texts: Three English Versions of the Swiss Federal Statute on Private International Law”). Indeed, a civil law codification usually “contains many legal terms which either do not exist in common law jurisdictions or have different connotations in the case of literal translations”.

In recent years, the importance of English versions of the Swiss legal texts has grown. To give just one example: Article 4.4 of the Swiss-Chinese Free Trade Agreement (page 23) explicitly states (under the heading “transparency”) that “Each Party shall promptly publish on the Internet, and as far as practicable in English, all laws, regulations and rules of general application relevant to trade in goods between China and Switzerland.” It goes without saying that the FAPIL is relevant for international trade.

Against this background, and in view of the growing demand for the availability of Swiss legal texts in English, the official publication platform for Swiss law (Fedlex) has now released the “official non-official” translation of the FAPIL: www.fedlex.admin.ch/eli/cc/1988/1776_1776_1776/en. It is up to date as per February 2021 and includes the most recent DLT-related PIL amendments.

The character of the translation is “official” because it’s published on the official publication platform for Swiss law, which speaks for itself; but it nevertheless is of “non-official” nature only because “English is not an official language of the Swiss Confederation. This translation is provided for information purposes only and has no legal force.” In can perhaps best be described as “officially non-official, but unofficially official”.

The translation is in large parts based on the translation published by Prof. Andreas Bucher, with the kind permission of the author. The translation does not aim to be (and is not) better than the various existing private translations of the FAPIL, which have provided useful guidance during the past decades. The translation simply wants to render the FAPIL more accessible to the international public, and in order to do so and in order to get approval for publication on the official publication platform for Swiss law, certain adaptations were necessary:

Where several choices of wording were possible, preference was given to expressions that are already in use in other translations of Swiss legislation (e.g. translations of the Swiss Civil Procedure Code, the Swiss Civil Code, or the Swiss Code of Obligations), in order to ensure coherence and consistency.

Due account was also given to the wording used in international conventions ratified by Switzerland (such as the numerous Hague Conventions).

In addition, the translation takes into account language requirements applicable to texts published by the Swiss federal administration, such as the use of gender-neutral language where appropriate and where possible; this led to the use of the “singular-they”, applicable to both female and male persons.

People who work in different languages and who have compared the different language versions of the FAPIL will have noted some differences between the French, German and Italian versions of the texts. For example, art. 151 para. 3 in the German version, translated with deepl, states that “This jurisdiction cannot be excluded by a choice of court agreement.”, whereas the French version starts the paragraph (again according to deepl) with “Notwithstanding a choice of court, …” In such circumstances, preference was given to the wording that seemed clearer and more in line with the interpretation given to the text by the Federal Supreme Court.

Traduire c’est trahir – translation is treason. Those who coordinated the translation (the Private International Law Unit at the Swiss Federal Office of Justice) are fully aware that critics will find areas for improvement. Feedback can be sent to ipr [at] bj.admin.ch. The translation will continue to be improved and updated in the years to come, in order to respond to new developments such as the upcoming revision of the chapter on succession law.

In September 2020, the First President of the French supreme court for private and criminal matters (Cour de Cassation), Ms Chantal Arens, presented the main aspects of the Court’s international strategy for 2020-2022.

The report of this presentation (available here, in French) may be of interest to practitioners and academics dealing with private international law (PIL) issues connected to France.

Here are the key elements of the report and some personal comments.

This “international action plan” of the Cour de Cassation is the result of discussion within the Court and exchanges with institutional partners worldwide. It is based on three main objectives: international reputation, promotion of fundamental values and judicial cooperation.

International Reputation

The first objective is for the Cour de Cassation to gain an international recognition of its qualities as a judicial institution, in particular regarding its working methods (see here) and caselaw. This ambition is also part of a broader goal of promoting the civil law tradition and the French-speaking community worldwide.

Against this backdrop, the website of the Court will be accessible in foreign languages and its landmark judgements will be translated into various languages and accessible online (see, for now, the very few documents available in English). It will be a great advantage for non-French-speaking PIL experts to be able to access the French “living law” in civil and commercial matters. In this respect, the international commercial chamber at the Paris Court of Appeal (ICCP-CA) established in 2018 may surely be seen as a pioneer within the French legal landscape, since its judgements are translated into English (see here).

Fundamental Values

The second objective is the promotion of the fundamental values and principles of the French judicial system (i.e. independence of justice, legal certainty, “dialogue” between judges, fundamental freedoms). However, these are not specific to France since they are inherent to the European legal order, within the Council of Europe and the European Union.

Regarding transnational judicial dialogue, it can be noticed that the Cour de Cassation is more and more likely to refer to European case law in its own decisions (for a recent example reported on this blog, see here). It may also be noted that the Court submitted to the ECtHR, in October 2018, the first request under Protocol No. 16 in the field of international family law. A PIL issue was at stake, namely the compliance with article 8 of the ECHR of the non-recognition of a foreign birth certificate of a child born abroad as the result of a surrogacy – prohibited in France – (for the request see here and for the advisory opinion see here).

Within the EU legal order, however, one could expect the Cour de Cassation to reinforce its involvement by referring to the CJEU requests of interpretation of EU law (and EU PIL in particular). With respect to judicial Cooperation in civil matters, only two cases submitted by the French Court are currently pending before the Court of justice (and three altogether for France in this field; two were reported here and here), whereas, at the same time, around fifteen preliminary questions from German Courts are pending (following a quick research via the curia case-law search form). A recent judgment of the Cour de Cassation on the scopes of Brussels II bis Regulation and 1996 Hague Convention (reported here) may be seen as an illustration of the reluctance of the French Supreme Court to submit preliminary questions to the CJEU, despite the existence of serious doubts on the interpretation of EU (PIL) law (and its duty to do so pursuant to article 267, §3, TFEU).

International Judicial Cooperation

The third objective is to learn from other legal systems in order to enrich French law. It implies, in particular, the development of transnational exchanges on common legal issues. In this context, international judicial cooperation is crucial.

The Cour de Cassation is a member of various European and international networks such as the Association of the French-speaking Supreme Courts (AHJUCAF) and the network of The Presidents of the Supreme Judicial Courts of the Member States of the European Union.

The latter network serves as a forum for exchanges between the European institutions and the national Supreme Courts.

A common portal of case law is also accessible to facilitate the search (and the translation) of national case law within the legal orders of the EU Member States. It should not be confused with the Judicial Network of the European Union (Réseau judiciaire de l’Union européenne, “RJUE”) created more recently on the initiative of the President of the CJUE and the Presidents of the Constitutional and Supreme Courts of the Member States in 2017.

It also provides for a collection of decisions delivered by national courts and tribunals, which are of particular interest for EU law. The creation of such online compendiums of transnational case law is surely of great interest for PIL experts and more efforts (and funds) should be put in their developments (see, by comparison, the unalex and the Lynxlex databases).

 

*Thanks to my colleague Lukas Rass-Masson (University of Toulouse), a recorded conference on the international strategy of the French Court of Cassation, with Ms First President Chantal Arens, is available here.

Judgment in C-307/19 Obala starts in earnest at 59 for the CJEU like the AG (see my review of his Opinion here) holds many of the questions to be inadmissible. The Court focuses its references to selected case-law, and its concluding assessment (72), on the review of the legal relationship between the parties at issue (this was the preferred route of Bobek AG) and on the foundation and modalities of the action in brought before the courts. Both have the hallmark of relationships which might as well have occurred in purely private transactions without any public law indications at all. Hence a conclusion of a ‘civil and commercial’ matter.

The Court’s selective reference to the legal relationship side of the authorities should not however in my view mean that the AG’s ‘subject-matter’ alternative should now be considered as having been rejected for all cases on the scope of Brussels Ia (and many other related PIL instruments).

Geert.

European Private International Law, 3rd ed. 2021, paras 2.28 ff concluding at 2.65.

 

 

 

 

Ilaria Pretelli (Swiss Institute of Comparative Law, University of Urbino) has posted Protecting Digital Platform Users by Means of Private International Law on SSRN.

The present article offers perspectives on the possible adaptation of traditional connecting factors to the digital space. It analyses cases that pit platform users against each other and cases that pit platform users against the digital platform itself. For the first set of cases, reliable guidance is offered by the principle of effectiveness. The enforcement of court decisions in cyberspace is often necessary and also plainly sufficient to render justice. Enhanced protection of weaker parties is advocated, both in tortious (favor laesi) and contractual liability (protection of the weaker party), in line with the most recent achievements in human rights due diligence. Protection clauses leading to destination-based labour standards would be a welcome step forward. Protection of users also offers guidance for the shaping of private international law rules governing disputes between users and the platform.

The paper is forthcoming in Cuadernos de Derecho Transnacional.

26 March 2021, in response to the UK’s sanctions on relevant Chinese individuals and entity about human rights issues in Xinjiang, China announces on nigh individuals and four entities in the UK, including a top barrister chamber, the Essex Court Chambers. The sanctions measures include prohibiting individuals and their immediate family members from entering into China, freezing their property in China and prohibiting Chinese citizens and institutions from doing business with them. China reserves the right to take further measures.
This is the first time that international sanctions are imposed on an entire set of a legal services organisation. The reason is that four barristers at Essex Court Chambers published a legal opinion about the Xinjiang human rights matters. However, barristers are self-employed, solo practitioners. They cannot become partners of chambers, do not represent the opinion of chambers and are not supervised or guided by chambers for their professional work. It is unusual to sanction chambers for the opinions of its members. The sanctions also cannot force the chambers to supervise the work of barristers. It, however, may generate a chilling effect in the legal sector, especially for firms with close Chinese business connections.
The immediate consequence of the sanctions is that Chinese clients and business partners will have to end business or working relationships with members of the Chambers. The sanctions at the moment only apply to Chinese individuals and institutions, excluding foreign entities. However, it is unclear if “Chinese” refers to mainland or includes Hong Kong and Macau. Furthermore, although the sanctions do not affect foreign entities, if the member of the Chambers represents a foreign entity in litigation or arbitration and the judgment or award needs to be recognised and enforced in China, it may cause problems. The Chambers members cannot enter China, including mainland, Hong Kong and Macau, including appearing as counsels in arbitration. It is unclear whether the sanctions may affect the Chambers Singapore Group Practice. Finally, many members at the Chambers also act as arbitrators. It is unclear if arbitral awards made by the Chambers members can be recognised and enforced in China. Anyway, according to the sanctions, Chinese parties would not be able to engage with the Chambers members and would likely reject them acting as arbitrators.

Written by Mayela Celis

On 25 March 2021, the US Supreme Court rendered its opinion on the consolidated Ford Motor cases, which deals with personal jurisdiction (in particular, specific jurisdiction) over Ford Motor Company. These cases deal with a malfunctioning 1996 Ford Explorer and a defective 1994 Crown Victoria vehicles, which caused the death of a passenger in Montana and the injury of another passenger in Minnesota, respectively. The consolidated cases are: Ford Motor Co. v. Montana Eighth Judicial District Court et al. and Ford Motor Co. v. Bandemer.

The opinion is available here. We have previously reported on this case here.

The question presented was:

The Due Process Clause permits a state court to exercise specific personal jurisdiction over a non­resident defendant only when the plaintiff’s claims “arise out of or relate to” the defendant’s forum activities. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (internal quotation marks omitted). The question presented is: Whether the “arise out of or relate to” requirement is met when none of the defendant’s forum contacts caused the plaintiff’s claims, such that the plaintiff’s claims would be the same even if the defendant had no forum contacts.

As noted in our previous post, it can be argued that besides jurisdictional matters relating to the defendant, these cases deal with fundamental notions of access to justice for consumers. Fortunately, the US Supreme Court sided with the victims of the car accidents. As a result, buyers of Ford vehicles are able to sue in their home State (instead of chasing up the defendant). Undoubtedly, this promotes access to justice as it decreases the litigation costs of suing a giant company elsewhere, as well as it avoids the hardship of suing in a remote place.

For a summary of the facts, see the syllabus of the opinion. We also include the facts here:

“Ford Motor Company is a global auto company, incorporated in Delaware and headquartered in Michigan. Ford markets, sells, and services its products across the United States and overseas. The company also encourages a resale market for its vehicles. In each of these two cases, a state court exercised jurisdiction over Ford in a products-liability suit stemming from a car accident that injured a resident in the State. The first suit alleged that a 1996 Ford Explorer had malfunctioned, killing Markkaya Gullett near her home in Montana. In the second suit, Adam Bandemer claimed that he was injured in a collision on a Minnesota road involving a defective 1994 Crown Victoria. Ford moved to dismiss both suits for lack of personal jurisdiction. It argued that each state court had jurisdiction only if the company’s conduct in the State had given rise to the plaintiff’s claims. And that causal link existed, according to Ford, only if the company had designed, manufactured, or sold in the State the particular vehicle involved in the accident. In neither suit could the plaintiff make that showing. The vehicles were designed and manufactured elsewhere, and the company had originally sold the cars at issue outside the forum States. Only later resales and relocations by consumers had brought the vehicles to Montana and Minnesota. Both States’ supreme courts rejected Ford’s argument. Each held that the company’s activities in the State had the needed connection to the plaintiff’s allegations that a defective Ford caused instate injury” (Our emphasis).

Ford alleged that the Court should follow a causation-only approach. That means that as stated in the syllabus of the opinion that “In Ford’s view, due process requires a causal link locating jurisdiction only in the State where Ford sold the car in question, or the States where Ford designed and manufactured the vehicle. And because none of these things occurred in Montana or Minnesota, those States’ courts have no power over these cases.”

Fortunately, the Court did not follow that interpretation and stated that:

“To see why Ford is subject to jurisdiction in these cases (as Audi, Volkswagen, and Daimler were in their analogues), consider first the business that the company regularly conducts in Montana and Minnesota. See generally 395 Mont., at 488, 443 P. 3d, at 414; 931 N. W. 2d, at 748; supra, at 3?4. Small wonder that Ford has here conceded “purposeful availment” of the two States’ markets. See supra, at 7-8. By every means imaginable—among them, billboards, TV and radio spots, print ads, and direct mail— Ford urges Montanans and Minnesotans to buy its vehicles, including (at all relevant times) Explorers and Crown Victorias. Ford cars—again including those two models—are available for sale, whether new or used, throughout the States, at 36 dealerships in Montana and 84 in Minnesota. And apart from sales, Ford works hard to foster ongoing connections to its cars’ owners. The company’s dealers in Montana and Minnesota (as elsewhere) regularly maintain and repair Ford cars, including those whose warranties have long since expired. And the company distributes replacement parts both to its own dealers and to independent auto shops in the two States. Those activities, too, make Ford money. And by making it easier to own a Ford, they encourage Montanans and Minnesotans to become lifelong Ford drivers” (our emphasis).

[…]

“Here, resident-plaintiffs allege that they suffered in-state injury because of defective products that Ford extensively promoted, sold, and serviced in Montana and Minnesota. For all the reasons we have given, the connection between the plaintiffs’ claims and Ford’s activities in those States— or otherwise said, the “relationship among the defendant, the forum[s], and the litigation”—is close enough to support specific jurisdiction. Walden, 571 U. S., at 284 (internal quotation marks omitted). The judgments of the Montana and Minnesota Supreme Courts are therefore affirmed.”

In sum, in this David and Goliath scenario, the US Supreme Court sided with the consumers and promoted access to justice.

It is well-known that the Succession Regulation contains specific rules relating to succession agreements in its Article 25. Inter alia, it allows the parties to select the law applicable to such agreements, offering the choice between the law of the parties’ last habitual residence or nationality (Article 25(3)). But when can such a choice be assumed, and under which rules? This is the subject of a recent decision by the German Federal Supreme Court.

Facts

An Austrian and a German national were married and lived together in Germany. In 1996, they appointed each other in a “Gemeinschaftliches Testament”, literally a “common will”, as sole heirs and determined who should succeed the surviving spouse. The will was made in two separate deeds and was therefore technically an “agreement as to succession” in the sense of Article 3(1)(b) of the Succession Regulation, and not a “joint will”, which the Regulation defines as a will drawn up in one document by two or more persons, see its Article 3(1)(c). The parties excluded any unilateral modification of the agreement during their lifetimes and after the death of one spouse.

This agreement was binding on the surviving spouse under German law, but not under Austrian law due to the lack of the notarial form.

After the death of her husband, the wife wrote a new will. When she died, its validity was challenged in a German court by the heirs designated in the agreement from 1996.

Legal Issue

To solve this case, the German Federal Court had to characterise the agreement under the provisions of the Succession Regulation and to determine whether it was governed by German or Austrian law.

The Succession Regulation was applicable as the second spouse had deceased after its entry into force on 17 August 2015 (Article 83(1)). The Regulation’s rules on dispositions after death, which include agreements as to succession, apply in addition to the law of habitual residence and nationality of the deceased, in line with the principle of favor validatis (Article 83(3) Succession Regulation).

The Federal Court considered whether the parties had chosen German law for their agreement in line with Article 25(3) Succession Regulation. But under which rules should the court determine whether such a choice is made? Is this issue governed by EU law or by the chosen national law?

Holding

The German Federal Court opted for the application of EU rules to determine whether a choice of law exists. The autonomous determination was important because the conditions for a choice under German law were not fulfilled in the case.

The court based the need for an EU autonomous interpretation on several arguments. It cited Article 22(2) of the Succession Regulation and Recitals 39 and 40, which show that the Regulation lays downs requirements for the choice of law. The German Federal Court did not see Article 22(3) Succession Regulation as contrary to this view since this provision would concern the validity of a choice, not the existence of a choice itself.

In the opinion of the German judges, Article 22 Succession Regulation permits an implicit choice of law. The Court in this regard distinguished Article 3(1) Rome I Regulation, which does not allow such implicit choice. The Federal Court explained this divergence by reference to the fact that, in case of contractual obligations, the parties typically have opposing interests, which calls for an unambiguous determination of the applicable law. The situation in succession would be different as there are no conflicting interests to be taken into account, only the will of the de cujus.

The Federal Court furthermore considered it unnecessary to submit these questions to the CJEU, as the answers would result with sufficient clarity from the text of the Succession Regulation and the previous case law of the European court (“acte claire” doctrine).

Result

The German Federal Court concluded that from an autonomous European point of view the spouses had implicitly chosen German law to govern their succession agreement. It deduced this from the use of legal terms typical for German law, such as “Schlusserbe” (final heir), which cannot be found in Austrian legislation. Moreover, the Court emphasised the parties’ intention for the agreement to be binding, which was possible only under German but not under Austrian law.

Assessment

The result reached by the German Federal Court has to be applauded. The spouses had drawn up two wills which they wanted to be mutually binding. This intention was best served by assuming the applicability of German law. Yet this result could also have been achieved by an application of Article 25(2) subpara. 2 of the Succession Regulation, as the agreement was most closely connected to Germany, given that both decedents had their habitual residence there and one of them was a German national at the time the deeds were drawn up.

Be that as it may, the clarifications of the Federal Court with regard Article 25(3) of the Regulation are to be welcomed. The judgment draws a distinction between the existence of a choice, which shall be governed by EU law, and its substantive validity, which would be determined by the chosen national law. Admittedly, this is a fine line, yet it is a necessary one. In the case at hand, it was not easy to say which law the parties had chosen in the first place. This question cannot be answered by the hypothetically chosen law.

However, the Federal Court’s distinction between the Succession Regulation and the Rome I Regulation fits unilateral wills only. It is not equally persuasive for agreements as to succession and joint wills, which are much more akin to a contract and where the parties do not necessarily pursue the same interests.

The answers to the questions raised by the case are far from obvious. It is therefore regrettable that the German Federal Court did not submit a reference for a preliminary ruling to the CJEU. This omission demonstrates once again the importance of providing English summaries of national decisions, as is done in this blog.

— Many thanks to Verena Wodniansky-Wildenfeld and Felix Krysa for their contribution to this post.

The Court of Justice delivered today its judgment in case C‑307/19 (Obala i lučice d.o.o. v NLB Leasing d.o.o.), which is about Brussels I bis, notaries and recovery of unpaid parking ticket on public roads. It applies Articles 1 and 7.1 whilst rejecting the application of Article 24.1. The judgment is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version):

“1) L’article 1er, paragraphe 1, du règlement (UE) no 1215/2012 […] doit être interprété en ce sens que relève de la notion de « matière civile et commerciale », au sens de cette disposition, une action en recouvrement d’une redevance portant sur un ticket journalier de stationnement sur une place de parking,  qui est délimitée et située sur la voie publique, diligentée par une société qui a été mandatée par une collectivité territoriale pour la gestion de telles places de parking.

2) L’article 24, point 1, du règlement no 1215/2012 doit être interprété en ce sens que ne relève pas de la notion de « baux d’immeubles », au sens de cette disposition, une action en recouvrement d’une redevance portant sur un ticket journalier de stationnement sur une place de parking délimitée, située sur la voie publique.

3) L’article 7, point 1, du règlement no 1215/2012 doit être interprété en ce sens, d’une part, que relève de la « matière contractuelle », au sens de cette disposition, une action en recouvrement d’une redevance qui est née d’un contrat ayant pour objet le stationnement sur l’une des places de parking délimitées, situées sur la voie publique, organisées et gérées par une société mandatée à cette fin et, d’autre part, que ce contrat constitue un contrat de fourniture de services, au sens de l’article 7, point 1, sous b), second tiret, de ce règlement ».

Source : https://curia.europa.eu/juris/document/document.jsf?text=&docid=239289&pageIndex=0&doclang=fr&mode=req&dir=&occ=first&part=1&cid=587569

Due to the uncertainties regarding the corona situation, the Scientific Council of EAPIL has decided to postpone the Aarhus EAPIL Conference to 2-4 June 2022.

Again, Aarhus University has offered to host the conference.

Participants who have previously chosen to transfer their registration/fee to the 2021 conference will be contacted directly by e-mail and offered to transfer their registration to 2022 or be reimbursed.

The program for the conference remains unchanged and many of the speakers have already confirmed their attendance once again.

EAPIL is confident that all the speakers will join the Aarhus Conference in 2022.

Registration for the 2022 EAPIL Aarhus Conference will be announced on both the Aarhus Conference and EAPIL website and is expected to open mid-April 2021.

Back in November 2020, we reported about the Opinion delivered by Advocate General Bobek in the case Obala i lucice, C-307/19, in which he revisited the case law built upon the judgment of the Court of Justice in Pula Parking, C-551/15. This Thursday, the Court rendered its judgment in the case in question.

Legal and factual context

In brief summary, a daily parking ticket is issued for a car left in an on-street parking. A Croatian parking management entity commences enforcement proceedings for recovery of the parking ticket debt with a notary. The notarial writ of execution issued against a Slovenian company is challenged by the latter and two Croatian courts consider themselves lacking jurisdiction to hear the case. The case is then transferred to the referring court in order for it to deal with the negative conflict of competence.

A more extensive presentation of the legal and factual context of the case can be consulted in the previous post.

Questions/issues addressed

In his Opinion, at the request of the Court, AG Bobek did not address all the questions referred for a preliminary ruling. Opinion is confined to Questions 1 to 3 and 5 to 7. Not all the Questions addressed in the judgment either, yet for a different reason.

On the one hand, the Court considered that the questions pertaining to the Service Regulation (Questions 1 and 3) were inadmissible (paragraph 51). The referring court is facing a negative conflict of competence and the request for a preliminary ruling does not specify why this court takes the view that the resolution of the case in the main proceedings depends on the interpretation of the Service Regulation. It is worth noticing that this Regulation has been interpreted by AG Bobek in his Opinion, at points 88 to 105.

On similar grounds, the Court considered inadmissible the questions on to compatibility with Article 56 TFEU of the presumption that a contract is concluded by the act of parking in a designated space (on-street parking) (Questions 4 and, partially, 9). The referring court failed to expose the reasons that prompted it to inquire about the compatibility of that presumption with EU law (paragraph 52).

On the other hand, as mentioned in the previous post, the facts underlying the case pending before the national courts predate the accession of Croatia to the EU. Therefore, the Court considered itself not competent to answer the question on the interpretation of the Rome I and Rome II Regulations (Questions 8 and, partially, 9), these Regulation being not applicable ratione temporis to the facts in question (paragraph 58).

Thus, the Court was left with the remaining issues, namely, whether an action for payment of a debt relating to the unpaid public parking ticket is a dispute relating to ‘civil and commercial matters’ within the meaning of the Brussels I bis Regulation (Question 2), whether the special ground of jurisdiction for rights in rem is applicable to that action (Question 6) and, if it is not the case, whether the grounds of jurisdiction for contract/tort may be relied on by the applicant (Questions 5 and 7).

Notion of ‘civil and commercial matters’

According to the Court’s answer, an action for payment of a daily parking ticket, issued for parking in a designated space, in an on-street parking, imposed by a parking management entity falls within the scope of the notion of ‘civil and commercial matters’ (paragraph 73). This answer is preceded by a fine-grained analysis, accompanied by multiple references to the case law (paragraphs 59 et seq.).

The analysis carried out by the Court should be of a particular interest as it cannot be excluded that much can be inferred from it as to the qualification of a ‘civil and commercial matter’. To that effect, it could potentially be read against the background of the Opinion presented by AG Bobek. In fact, at its points 39 to 54, he distinguished two approaches adopted by the Court in its case law in order to establish whether the Regulations on ‘civil and commercial matters’ are applicable in a specific case. He defined them as ‘subject matter’ and ‘legal relationship’ approaches, and it was the latter that he favoured in the case at hand. Such parallel reading could be also supplemented by the lecture of remarks on that very issue made by one of the commentators.

Special ground of jurisdiction for rights in rem

Reiterating the autonomous nature of qualification that needs to be exercised in relation to Article 24(1) of the Brussels I bis Regulation, regardless of the qualification that the legal relationship receives under national law (paragraph 79), the Court held, in essence, that an action for payment of a daily parking ticket, issued for parking in a designated space, in an on-street parking, cannot be considered as an action brought in proceedings which have as their object ‘tenancies of immovable property’ (paragraph 80).

Contract/tort

Addressing ultimately the contract/tort distinction, the Court held that the action in question falls within the scope of Article 7(1) of the Brussels I bis Regulation (paragraph 89).

Next, referring to the Opinion, it considered that the ‘parking contract in question in the main proceedings’ can be qualified as a ‘contract for the provision of services’ in the sense of Article 7(1)(b) of the Regulation (paragraph 97).

 

The judgment itself can be consulted here (so far in French), with the request for a preliminary ruling being available here.

 

 

On 26 and 29 March 2021, the European Commission will host a webinar on the use of artificial intelligence technologies in the field of justice.

This will be the first in a series of events, which are a follow-up to the Communication of the Commission itself on the Digitalisation of Justice in the European Union of 2 December 2020 (reported here on this blog).

The topic of the first webinar is the Anonymisation and pseudonymisation of judicial decisions.

The webinar will bring together representatives of the academia, the private sector and the Member States with the aim to further discussions, in particular on publication of judicial decisions practices, including online publication, provision of judicial decisions as open data, approaches towards the protection of personal data, techniques for anonymisation and pseudonymisation of judicial decisions, existing projects and solutions at the national level and solutions available on the market…

Speakers include Eero Hyvönen (Aalto University and University of Helsinki), Monica Palmirani (University of Bologna), Edita Gruodytė (Vytautas Magnus University) and Louis Béziaud (University of Rennes).

The full program is available here. For the web streaming service see here (26 March) and here (29 March).

The Court of Justice delivered today its very interesting judgment in case C‑603/20 PPU (SS v MCP) on Article 10 Brussels II bis.

The question: “By its question, the referring court seeks to ascertain, in essence, whether Article 10 of Regulation No 2201/2003 must be interpreted as meaning that, if the finding is made that a child has acquired, at the time when the application relating to parental responsibility is brought, his or her habitual residence in a third State following abduction to that State, the courts of the Member State where the child was habitually resident immediately before his or her abduction, retain their jurisdiction indefinitely”.

The response: “Article 10 of Council Regulation (EC) No 2201/2003 […] must be interpreted as meaning that it is not applicable to a situation where a finding is made that a child has, at the time when an application relating to parental responsibility is brought, acquired his or her habitual residence in a third State following abduction to that State. In that situation, the jurisdiction of the court seised will have to be determined in accordance with the applicable international conventions, or, in the absence of any such international convention, in accordance with Article 14 of that regulation”.

Source:

https://curia.europa.eu/juris/document/document.jsf?text=&docid=239243&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=353488

The JURI Committee released today an Opinion on the proposal for a regulation of the European Parliament and of the Council on amending Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (Rapporteur: Jiří Pospíšil, PE661.912v02-00, 23 March 2021)

Source: https://www.europarl.europa.eu/doceo/document/JURI-AD-661912_EN.pdf

On Access to Justice, the EU and the Aarhus Convention, see, for example, E. Guinchard and M.-P. Granger, Sisyphus in Luxembourg, in E. Guinchard and M-P Granger, “The New EU Judiciary”, Kluwer, December 2017. 375, spec. p. 377 in fine ff. (available at https://europeanciviljustice.files.wordpress.com/2021/02/sisyphus-in-luxembourg.pdf).

On 22 March 2021, the JURI Committee of the European Parliament (Adrián Vázquez Lázara, on behalf of) asked a question to the European Commission (Question for oral answer O-000022/2021) on the Accession of the UK to the Lugano II Convention:

“Cooperation between the EU and the UK on civil and commercial justice is fundamental for citizens, businesses and public administrations alike. The lack of provisions in this regard in the EU-UK Trade and Cooperation Agreement has given rise to legal uncertainty for all Member States.

The UK applied to accede to the Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters on 8 April 2020. According to Article 72(3) of the Convention, the European Union must endeavour to give its consent at the latest within one year after the transmission by the Depositary to the Contracting Parties of the application made by the United Kingdom. This deadline will expire on 14 April 2021.

1. What is the Commission’s position on the possible accession of the United Kingdom to the Convention?

2. What requirements does the Commission consider that the UK should meet for its application to be accepted?

3. According to the Commission, to what extent would the Hague Conference allow for the same level of cooperation on jurisdiction and recognition and enforcement of judgements in civil and commercial matters?”

One eagerly waits for the response!

Source: https://www.europarl.europa.eu/doceo/document/O-9-2021-000022_EN.html

Earlier this month, the Council on General Affairs and Policy of the HCCH met, from 1 to 5 March 2021. Work continues on several legislative projects whilst others seem only now legislative in name as no binding instrument properly speaking is foreseen anymore. Signature of the 2019 Judgments Convention is growing.

conclusions-decisions-cgap-hcch-march-2021Download

The conclusions and decisions are attached.

Source: https://www.hcch.net/en/news-archive/details/?varevent=794

COVID – or rather, its consequences on legal relationships – has arrived to the CJEU in the form of a request for a preliminary ruling of the Austrian Oberster Gerichtshof. The question submitted in case C-18/21, Uniqa Versicherungen, relates to Regulation No 1896/2006 creating a European order for payment procedure. It reads as follows:  

Are Articles 20 and 26 [of the Regulation] to be interpreted as meaning that those provisions preclude an interruption of the 30-day period for lodging a statement of opposition to a European order for payment, as provided for in Article 16(2) of that Regulation, by Paragraph 1(1) of the Austrian [Federal Law on accompanying measures for COVID-19 in the administration of justice], pursuant to which all procedural periods in proceedings in civil cases for which the event triggering the period occurs after 21 March 2020 or which have not yet expired by that date are to be interrupted until the end of 30 April 2020 and are to begin to run anew from 1 May 2020?

The request was made in the following context.

The District Court for Commercial Matters of Vienna issued a European order for payment on 6 March 2020, which was served on the defendant, who is resident in Germany, on 4 April 2020. The latter lodged a statement of opposition which was posted on 18 May 2020. The court of first instance rejected the opposition as being out of time, on the ground that the objection had not been filed within the 30-day period provided for by Article 16(2) of Regulation No 1896/2006.

The Commercial Court of Vienna, ruling on the appeal on the merits, set that order aside. It held that the period for lodging a statement of opposition under Article 16(2) of the Regulation had been interrupted pursuant to Paragraph 1(1) of the Austrian Federal Law on accompanying measures for COVID-19 in the administration of justice. The applicant’s appeal on a point of law was directed against that decision, and sought to have the order of the court of first instance restored.

Article 20 of the Regulation provides for the review of the European order for payment before the competent court in the Member State of origin in exceptional cases – in the case at hand the relevant para would be 1 (b). According to Article 26, all procedural issues not specifically dealt with in the Regulation are governed by national law.

(And: among the argument of the Austrian OGH to refer its doubts to the Court, the divergent views of scholars on the impact on the Regulation of national procedural measures due to COVID-19 is placed first. Legal literature matters).

Many thanks Alain Devers for alerting us back in October to the French Supreme Court’s judgment in PWC Landwell v LY, on agreements to arbitrate and the consumer rights Directive 93/13. Apologies for late posting.

The Supreme Court held [20 ff] that the contract between a client, domicoled at France, and PWC Landwell’s Spanish offices (Landwell used to be the trading name of the law firm side of this multidisciplinary practice), fell within the consumer title of Brussels IA. The Court of Appeal’s judgment had clearly run through the CJEU-sanctioned ‘directed at’ test and found it satisfied in the case at issue (the Landwell website boasting international coverage of its services as well as international contact numbers as strong indicators).

The SC also held that the requirement to turn to arbitration was incompatible with the Consumer Rights Directive 93/13, in particular its A6 which per CJEU C‑147/16 Karel de Grote — Hogeschool Katholieke Hogeschool Antwerpen confirmed in C-51/17 OTP Bank et OTP Faktoring is of ordre public character. The SC agreed with the CA that the clause, despite the client having been in the presence of a bank employee when the contract was put to her, was not properly negotiated and qualifies as a clause abusif.

Geert.

EU Private International Law 3rd ed 2021, para 2.277.

 

French SC on EU consumer rights Directive and #arbitration agreements. https://t.co/SD5A8foNQM

— Geert Van Calster (@GAVClaw) October 11, 2020

Kurt Siehr (formerly MPI Hamburg) has posted Mandatory Rules of Third States: from Ole Lando to Contemporary European Private International Law on SSRN.

The abstract reads:

On 18 October 2016 the European Court of Justice, in the case Greece v. Nikiforidis, decided: ‘Article 9 (3) of the Regulation No. 503/2008 on the law applicable to contractual obligations must be interpreted as precluding overriding mandatory provisions other than those of the State of the forum or of the State where the obligations arising out of the contract have to be or have been performed from being applied, as legal rules, by the court of the forum, but as not precluding it from taking such other overriding mandatory provisions into account as matters of fact in so far as this is provided for by the national law that is applicable to the contract pursuant to the regulation’. Ole Lando already anticipated this development when he dealt with this problem arising under the Rome Convention of 1980 on the law applicable to contractual obligations still in force in Denmark.

The paper was published in the European Review of Private Law 2020.