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By Salih Okur, University of Augsburg

Earlier today, the CJEU rendered its long anticipated decision in Case C-774/22 (FTI Touristik) on whether Art. 18(1) Brussels Ia Regulation concerns “matters relating to a travel contract where both the consumer, as a traveller, and the other party to the contract, the tour operator [,] have their seat in the same Member State, but the travel destination is situated not in that Member State but abroad […]”.

In accordance with the Opinion of AG Emiliou, the Court held that it does.

1. International Scope of the Brussels Ia Regulation

The question goes straight to the problem of the international scope of the Brussels Ia Regulation. In Case C-281/02 (Owusu), the CJEU had held that the application of the Brussels Ia Regulation always required an “international element” – otherwise the national rules of the Member State apply.

Whether this international element exists is particularly problematic in cases like the one at hand, where the parties of the dispute are domiciled in the same Member State but certain elements of the case are situated abroad.

With today’s decision, the CJEU has now adjudicated on two of the most practically relevant situations in quick succession: Only recently, in Case C-566/22 (Inkreal), the CJEU held that the choice of another Member State’s court is enough to establish the international element of a case, even if the parties are both domiciled in the same Member State, triggering the application of Art. 25 Brussels Ia Regulation.

In the present Case C-774/22 (FTI Touristik), the CJEU had to decide whether the travel destination of consumer package travel contracts is enough to establish an international element in the sense of the Brussels Ia Regulation, which would open up the consumer forum of Art. 18 Brussels Ia Regulation.

2. Facts

The parties to the dispute, JX, a private individual domiciled in Nuremberg (Germany), and FTI Touristik, a tour operator established in Munich (Germany), concluded a package travel contract for a trip to Egypt. JX brought proceedings against FTI before the Local Court of Nuremberg, claiming that he was not informed properly of the visa requirements in Egypt.

JX claimed that the Local Court of Nuremberg has international and territorial jurisdiction pursuant to Art. 18(1) Brussels Ia Regulation. FTI, on the other hand, argued that the case lacked any international element, meaning that not the Brussels Ia Regulation but the German Code of Civil Procedure (ZPO) was applicable. Under the latter, the Local Court of Nuremberg would not have had jurisdiction over the dispute as German law does not contain a general consumer forum.

3. The Court’s decision

According to previous decisions of the CJEU, the existence of the international element is not only reserved to cases where the parties to the dispute are domiciled in different Member States (para. 29).

Thus, according to the Court, the place of performance being abroad can on its own raise questions relating to the determination of international jurisdiction and thus establish an international element, triggering the application of the Brussels Ia Regulation (para. 30).

Specifically for consumer contracts, this interpretation is confirmed by Art. 18(1) Brussels Ia Regulation, which applies “regardless of the domicile of the other party” (para. 31) and by Art. 19(3) Brussels Ia Regulation, which addresses choice of law agreements entered “by the consumer and the other party to the contract, both of whom are at the time of conclusion of the contract domiciled or habitually resident in the same Member State“ (para. 32).

Finally, the Court refers to the general purpose of the Brussels Ia Regulation, which seeks to establish rules of jurisdiction which are highly predictable and thus pursues an objective of legal certainty which consists in strengthening the legal protection of persons established in the European Union, by enabling both the applicant to identify easily the court before which he or she may bring proceedings and the defendant reasonably to foresee the court before which he or she may be sued (para. 33).

These arguments lead the Court to the conclusion that the foreign travel destination of a package travel contract triggers the application of the Brussels Ia Regulation even if both parties are domiciled in the same Member State (para. 40).

4. Commentary

While this interpretation of the international element in the sense of the Brussels Ia regulation is in line with the opinion of AG Emiliou, it is difficult to square with the Court’s interpretation in Case C-566/22 (Inkreal): There, the Court primarily relied on the existence of a conflict of (international) jurisdiction to establish the international element (para. 31): if the courts of two or more different Member States could find international jurisdiction under their domestic rules, it would disturb legal certainty. In that case, the application of the Brussels Ia Regulation is justified as it restores said legal certainty by unifying the rules on international jurisdiction.

Case C-774/22 (FTI Touristik) lacks this potential for a conflict of international jurisdiction. Within the European Union, no other court would have international jurisdiction under Art. 18(1) and 18(2) Brussels Ia Regulation as the domiciles of the parties to the consumer contract are situated in the same Member State – pursuant to Art. 17(1) Brussels Ia Regulation, Art. 7(1) Brussels Ia Regulation doesn’t apply. Thus, within the European Union there cannot be a conflict of international jurisdiction; consequently, the Brussels Ia Regulation shall not apply. This argument does not seem to resonate with the Court, though; instead, the Court argues that the nature of the relevant provision of the Brussels Ia Regulation does not play a role when establishing the international element (para. 39).

Still, it cannot be denied that this decision immensely benefits consumers. The Brussels Ia Regulation now applies to all (package) travel contracts for trips abroad, meaning that pursuant to Art. 18(1) Brussels Ia Regulation, consumers may at all times bring proceedings against the tour operator at their domicile.

The CJEU this morning has entirely and in succinct fashion confirmed the Opinion of Emiliou AG which I discuss here.

[30] that the contract between the parties, both domiciled in the same Member State, is meant to be performed either in another Member State or a third State, by its nature triggers the question which court might have jurisdiction (reference to CJEU Inkreal) and sufficiently qualifies as the international element required to trigger Brussels Ia. Like the AG, the CJEU also refers to the use of the wording in A18(1) ‘regardless of the domicile of the other party’ to corroborate that finding.

[35]-[36] the Court like the AG also warns against a symmetric  application of non-BIa authority to Brussels at least one that is assumed too readily.

Confirmation of the consumer title assigning not just national but territorial jurisdiction is backed up ia by reference to CJEU Allianz (on the insurance title).

After the solid AG Opinion, an equally solid judgment.

Geert.

EU Private International Law, 4th ed 2024, 2.22 ff and 2.233 ff.

https://x.com/GAVClaw/status/1817834126927446343

 

Giovanni Chiapponi (University of Florence; previously Bologna University and Max Planck Institute in Luxembourg) has published a book titled Interfaces between National and EU Law. Time Limits in Cross-Border Civil Proceedings and Their Impact on the Free Circulation of Judgemen31t. The book is published by Nomos, in the Luxembourg Legal Studies series. The blurb reads: […]

The Second Report on the application of the General Data Protection Regulation (GDPR) has just been published, click here. For the full report, click here: Second Report GDPR.

At a meeting on 11 July 2024, 22 lawyers and academics voted to form the Australasian Association of Private International Law (AAPrIL).  Professor Mary Keyes (Griffith University) was elected the inaugural President and the Honourable Dr Andrew Bell, Chief Justice of New South Wales, has agreed to be AAPrIL’s patron.

The AAPrIL’s first elected officers are as follows:

• President: Professor Mary Keyes (Griffith University, Queensland)
• Secretary: Professor Reid Mortensen (University of Southern Queensland)
• Treasurer: Ms Cara North (Corrs Chambers Westgarth, Melbourne)
• Australian Vice-President: Dr Michael Douglas (Bennett, Perth)
• New Zealand Vice-President: Mr Jack Wass (Stout Street Chambers, Wellington)

AAPrIL has been established to promoted understanding, awareness and the reform of private international law in Australia, New Zealand and the Pacific Islands, and to provide a regional organisation for cooperation with similar private international law associations across the world.  It plans to hold an annual conference, support regular seminars and roundtables, engage with governments in Australasia on private international law issues and reform, publish a regular newsletter on events and legal developments in the region, and encourage cooperation with the Hague Conference on Private International Law and other private international law inter-governmental organisations.

More details about AAPrIL can be found on its website.  Any enquiries can be made to AAPrIL’s Secretary, Professor Reid Mortensen: reid.mortensen@unisq.edu.au.

The deadline to submit papers for AMEDIP’s Annual Seminar has been extended to Sunday 4 August 2024. Authors whose papers have been accepted will be notified by Saturday 10 August 2024.

For more information, click here  (our previous post). To view the requirements, click Convocatoria AMEDIP 2024.

Papers must be submitted to the following email address: seminario@amedip.org.

Crypto-litigation is an increasingly significant business. The “omniterritorial” nature of digital assets has led to judicial competition in this field. As Matthias Lehman usefully summarised in his recent post on this blog, English courts have taken several steps to position England as a (if not the) leading hub for crypto-litigation, including: allowing actions against persons unknown; permitting […]

The University of Geneva is organising the second edition of the Executive Training on Civil Aspects of International Child Protection (ICPT).

The University of Geneva’s ICPT, offered by the Children’s Rights Academy, is designed to:

• Explore innovative approaches to uphold the fundamental rights of children in transnational situations
• Learn best practices for supporting unaccompanied minors and displaced children seeking asylum
• Collaborate with experts from various fields to create holistic and effective child protection strategies
• Understand the dynamics of how different organisations and stakeholders can work together to protect children

Programme of the 2nd Round 2024 – 2025:

Module 1: Children’s Individual Rights in Transnational Parental Relationships

28 November 2024, 14:15 – 18:15

Module 2: International and Comparative Family Law

19 December 2024, 14:15 – 18:15

Module 3: Vulnerable Migration

27 February 2025, 14:15 – 18:15

Module 4: Practice of Child Protection Stakeholders: Inter-agency Co-operation in Context

10 April 2025, 14:15 – 18:15

This training programme is designed for a diverse audience, including child protection professionals, legislators and lawyers, researchers, students, international organisation staff members, and governmental authorities, among others.

For queries related to the content of the programme, please contact vito.bumbaca@unige.ch.

For more information, please visit the website. To register click here.

The e-mail address is cra-secretariat@unige.ch.

 

 

Nicolas Kyriakides, Heikki A. Huhtamäki and Nicholas Mouttotos have edited European Account Preservation Order – A Multi-jurisdictional Guide with Commentary, on Regulation No 655/2014. The book has just been published by Bruylant / Larcier. This new book on the European Account Preservation Order offers a multi-jurisdictional guide of the Regulation, examining the national operation and […]

This information is kindly provided by Dr. King Fung (Dicky) Tsang, Associate Professor, the Chinese University of Hong Kong.

 

CUHK LAW will host an international conference on private international law from August 1, 2024, to August 2, 2024.

 

Theme

The theme of the conference is “Rethinking Jurisdiction in Private International Law.” Jurisdiction is a broad concept in private international law that includes legislative, judicial, and enforcement aspects. Over the past few years, there have been significant developments in the area of jurisdiction across various countries. These developments, while rooted in national law, have extensive cross-border impacts. Additionally, the HCCH Jurisdiction Project has engaged many countries in focusing on jurisdictional issues and seeking to harmonize jurisdictional conflicts. This conference offers a forum for academics and practitioners to rethink and exchange ideas on the evolving new features of “jurisdiction” in the context of private international law.

This conference is supported by Hitotsubashi University.

 

Speakers, Abstracts and Programme:

The lists of the speakers, abstracts and the programme can be found respectively here, here and here

 

Venue:

The Conference will be held at the Cheng Yu Tung Building (CYT) which is located in Sha Tin, Hong Kong.

Address:
LT1A, 1/F, Cheng Yu Tung Building (CYT), The Chinese University of Hong Kong (Map)

Transportation:
MTR: Get off at the University Station. CYT Building is just 1-minute walk away from Exit B.

 

Languages:

The first day will be conducted in English, while the second day will mainly be in Mandarin Chinese. Attendees are welcome to participate in sessions on both days.

 

Details and registration

Please visit the conference website for more details. If you would like to attend, kindly register here by 31 July 2024, 3:00 pm.

For enquiries, please contact CUHK LAW at law@cuhk.edu.hk.

 

FACULTY OF LAW

The Chinese University of Hong Kong | Shatin, NT, Hong Kong SAR, China

T: +852 3943 4399 | E: law@cuhk.edu.hk | W: https://www.law.cuhk.edu.hk

 

As several among our readers (and editors!) are enjoying the summer break, the EAPIL blog will slow down its activity over the next few weeks. There will be just a couple of posts every week until the end of August, when the usual five-post-a-week pace will resume. Have a great summer!

Building on the success of the first edition, a new edition of the EAPIL Winter School is being organized by  the European Association of Private International Law, together with the Department of Law, Economics and Cultures of the University of Insubria in Como (Italy), with the Law Faculty of the University of Murcia (Spain) and […]

The second issue of the Revue for 2024 is dedicated to the law of migration which, in the French tradition, belongs to private international law. The issue features seven articles which, for most of them, discuss certain aspect of a French statute adopted in January 2024 to control immigration and improve integration. The issue also […]

Written by Hadrien Pauchard (assistant researcher at Sciences Po Law School)

The first issue of the Revue Critique de droit international privé of 2024 was released a few months ago. It contains 2 articles and several case notes. Once again, the doctrinal part has been made available in English on the editor’s website (for registered users and institutions).

The opening article is authored by Dr. Nicolas Nord (Université de Strasbourg) and tackles the crucial yet often overlooked issue of L’officier d’état civil et le droit étranger. Analyse critique et prospective d’une défaillance française (Civil registrars and foreign law. A critical and prospective analysis of a French failure). Its abstract reads as follows:

In international situations, French civil registrars may frequently be confronted with the application of foreign law. However, by virtue of the General Instruction on Civil Status and other administrative texts, they are under no obligation to establish the content of foreign law and can be satisfied with the sole elements reported by requesting private individuals. This solution certainly has the advantage of simplifying the task of civil registrars, who are not legal professionals. However, it leads to inconsistencies within the French legal system. The article therefore recommends reversing the principle and creating a duty for the French authority in this area. However, the burden should be lightened by facilitating access to the content of foreign law. Concrete proposals are put forward to this end, both internally and through international cooperation.

In the second article, Prof. David Sindres (Université d’Angers) addresses the complex question of the scope of jurisdiction clauses, through the critical discussion of recent case law on whether Le « destinataire réel » des marchandises peut-il se voir opposer la clause attributive de compétence convenue entre le chargeur et le transporteur maritime ? (Can the “actual addressee” of the goods be submitted to the jurisdiction clause agreed between the shipper and the maritime carrier?). The abstract reads as follows:

In two notable decisions, the French Cour de cassation has ruled that the case law of the Court of Justice Tilly Russ/Coreck Maritime is strictly confined to the third-party bearer of a bill of lading or sea waybill, and cannot be applied to the “actual addressee” of the goods. Thus, unlike the third party bearer, the “actual addressee” cannot be submitted to the clause agreed between the shipper and the maritime carrier and inserted in a bill of lading or a sea waybill, even if he has succeeded to the rights and obligations of the shipper under the applicable national law, or has given his consent to the clause under the conditions laid down in article 25 of the Brussels I bis regulation. The distinction thus made by the Cour de cassation with regard to the enforceability against third parties of jurisdiction clauses agreed between shippers and carriers cannot be easily justified. Indeed, it is in no way required by the Tilly Russ and Coreck Maritime rulings and is even difficult to reconcile with them. Furthermore, insofar as it may lead to the non-application of a jurisdiction clause to an actual addressee who has nevertheless consented to it under the conditions of article 25 of the Brussels I bis regulation, it fails to meet the requirements of this text.

The full table of contents is available here.

The second issue of 2024 has been released and will be presented shortly on this blog.

Previous issues of the Revue Critique (from 2010 to 2022) are available on Cairn. 

On 26 and 27 September 2024, an international conference in honour of professor Paul Lagarde, on the occasion of his 90th  birthday, will take place in Paris, at the University of Paris 1 Panthéon-Sorbonne (Centre Sorbonne, Liard Auditorium). It will deal with the international sources of private international law, drawing on the major role that […]

A call for abstracts has been launched for the TEGL (Transformative Effects of Globalisation in Law) Conference entitled “Re-imagining Law for Sustainable Globalization: Navigating Uncertainty in a Globalized Era”, which will take place on 16-17 December 2024. For more information, click here.

Interested persons may submit a paper proposal abstract, a panel proposal abstract or an abstract to participate in the PhD session. Abstracts should be no more than 500 words. A short bio (of max. 200 words) should also be included. Both documents should be submitted by 15 September 2024 by using the following link.

As stated on its website, the topics are the following:

The conference focuses on the four TEGL research streams: 1) Constitutionalism and Subjects of Globalization; 2) Economic Law and Globalization’s Infrastructures; 3) Courts, Science and Legitimacy; 4) National and Regional Institutions as Global Actors.  It, therefore, welcomes submissions on a wide variety of topics. For reference, specific questions include but are not limited to:

• How does law produce socio-economic inequalities in the context of uncertainty and across various areas?
• How can existing categories of law be rethought in different areas to reduce these inequalities and the resulting sense of uncertainty?
• How does law constrain or regulate uncertainties within global value chains, exploring its role in shaping and responding to crises in this interconnected world?
• How does law guarantee or contribute to uncertainty in international economic exchanges, encompassing trade and investment?
• How effective are legal mechanisms in mitigating uncertainties arising from the current climate crisis? Discuss how the law can contribute to sustainable solutions.
• What is the role of law in empowering or disempowering individuals facing socio-economic inequalities and exploring potential legal reforms to address disparities?
• How does the law address humanitarian concerns during the conflict, considering its effectiveness and proposing innovative solutions?
• What role do principles play in risk regulation/environmental/climate change litigation (before international/EU/national courts)?
• What role do experts play in decision-making and courts, and what role do NGOs/public interest litigation play?
• What is the role of science and its legitimacy in courts?
• How does uncertainty affect legal coherence and migration governance, and can uncertainty be considered a ‘governance strategy?’
• How to regulate and control in times of uncertainty.
• Proportionality in times of uncertainty.
• What role should law play in navigating uncertainty in the digital age, including in platform regulation (e.g., the political economy of platforms, AI utilization in content moderation, design of platform interfaces, access to datasets), automated decision-making, digitization of lawmaking and the use of AI in courtrooms (Robot judge, natural language processing and automation in law).

This event is organized within and supported by the Sector Plan TEGL and the Globalization and Law Network of Maastricht University. For inquiries, please contact glawnet-fdr@maastrichtuniversity.nl.

TEGL research project is a collaboration between the law faculties of Maastricht University, Open Universiteit NL, Tilburg University and the University of Amsterdam. More information is available here.

In competition law, a parent company is liable for any infringements of EU competition law by its subsidiary (see CJEU Case C-516/15 P, Akzo Nobel, para 51–57). Both are considered ‘a single economic unity’, notwithstanding their separate legal personalities (id para 53). The question whether this theory also works in the context of Brussels Ibis […]

This post was written by Fabienne Jault-Seseke, who is Professor of Private Law at the University of Versailles Saint-Quentin (Paris Saclay). On 12 June 2024, the French Supreme Court for civil and criminal matters (Cour de cassation) confirmed in a ruling that the “primary” matrimonial property regime is defined by mandatory laws, which are applicable […]

As recently highlighted by contributions on this blog, new technologies have a significant impact on the development of the law. Hence, the Curatorium of the Hague Academy of International Law has chosen for the the 2025 edition of the Centre for Studies and Research (18 August – 5 September 2025) to focus on the emerging topic of “Artificial Intelligence and International Law“. This year, the selected researchers will be work under the guidance of the Directors of Research, Marion Ho-Dac (Université d’Artois) for the French-speaking section as well as Marco Roscini (University of Westminster) for the English-speaking section.

Interested candidates must be researchers and preferably hold an advanced degree (PhD or Doctorate degree). Registration for the 2025 Centre is open from 1 July to 15 October 2024 via the institution’s own Online Registration Form.

The Academy describes the scope of its 2025 Programme as follows (emphasis added to highlight passages of specific interest to col.net readers):

The increasing integration of digital technologies based on Artificial Intelligence (AI) into human activities requires a thorough re-examination of most normative frameworks in the international order. Advanced AI systems operate with ever greater autonomy, generating content, recommendations, predictions and decisions for States, organisations and individuals. AI thus offers enormous opportunities for humankind by facilitating (or even making possible) the performance of certain tasks. At the same time, however, it presents significant risks related, for instance, to potential biases and accountability gaps. In this context, is (public and private) international law capable of addressing the profound changes that the contemporary rise of AI is bringing? 

The Centre of Studies and Research 2025 of The Hague Academy of International Law aims to analyse these challenges and opportunities through the lenses of international law in a holistic manner by focusing on three different aspects: AI’s impact on the sources and institutions of the international legal order, AI’s impact on special regimes of international law, and AI’s role in addressing specific contemporary problems.

Selected researchers will be called to work on the following topics under the guidance of the Directors of Research:

• AI and International/Regional Organisations
• AI and International/Regional Courts and Tribunals
• AI and the Making of (Public/Private) International Law
• AI and the Practice of (Public/Private) International Law
• International Governance of AI including Technical Standardisation
• AI and the Risk-based Approach
• AI and the International Law of Armed Conflict
• AI and International Environmental Law
• AI and Conflict of Laws 
• AI and International Human Rights Law
• AI and the Law of State Responsibility
• AI and International Criminal Law
• AI and International Business Law 
• AI and the Maintenance of International Peace and Security
• Lethal Autonomous Weapons and International Law
• AI and the North-South Divide
• AI and Cybersecurity
• AI and Privacy  
• AI and Humanitarian Action
• AI and the Cross-border Movement of Persons
• AI and (Mis)Information

For further information on the HAIL 2025 Centre and the Academy in general, please consult the HAIL Homepage or refer to the attached PDF Programme.

The registrations for the Hague Academy Centre for Studies and Research of 2025 are open. The 2025 edition of the Centre will focus on Artificial Intelligence and International Law. The Directors of Research will be Marco Roscini (University of Westminster) for the English-speaking section, and Marion Ho-Dac (University of Artois) for the French-speaking session. The […]