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By a judgment of 18 November 2020 in the case Ryanair v DelayFix, the CJEU has ruled that an assignee is not bound to a jurisdiction clause in the contract from which the assigned claim arose. While the ruling concerned the compensation claim of a passenger for a cancelled flight, it is cast in very general terms. It will therefore have far-reaching repercussions for all other cases of assignment of individual claims.

Facts

DelayFix, formerly Passenger Right, is a collection agency for the defence of air passenger rights. It started legal proceedings against Ryanair in Warsaw on the basis of compensation rights assigned to it by a Polish passenger after a cancelled flight. Ryanair contested the Warsaw court’s jurisdiction, relying on a choice-of-forum clause in its general terms and conditions in favour of Irish courts.

In the course of the proceedings, the Regional Court Warsaw submitted to the CJEU the question whether the jurisdiction clause is binding under Art 25 of the Brussels I bis Regulation or whether it is invalid under the Unfair Terms Directive.

Legal Issues

The CJEU split the question in two different issues: (1) Is the collection agency bound by the jurisdiction clause contained in the airline’s standard terms under the Brussels I bis Regulation? (2) Is the jurisdiction clause in the airline’s standard terms unfair within the meaning of the Unfair Terms Directive?

Third-party Effects of Jurisdiction Clauses

With regard to the first question, the CJEU issued a resounding “NO”. It stated at para 46 that

a jurisdiction clause incorporated in the contract of carriage between a passenger and that airline cannot, in principle, be enforced by the latter against a collection agency to which the passenger has assigned the claim.

An exception would exist only where the collection agency is the successor to all the initial contracting party’s rights and obligations (para 47). A case in point is the take-over of a contract, which is however not to be confounded with an ordinary assignment. The CJEU left it for the referring court to determine whether this exception applied in the present case.

The holding was to some extent predictable from earlier case law, see in particular the CJEU judgment in CDC Hydrogen Peroxide or in Refcomp. In these cases, the CJEU had stressed the relative effect of jurisdiction clauses and the freedom to agree on the competent court. The court had ruled that a third party who did not agree to the jurisdiction clause was bound to the latter only if it had succeeded to the original contracting party’s rights and obligations.

Nevertheless, the CJEU case law had identified several situations in which a third party is bound as a legal successor to a jurisdiction clause to which it had not agreed. It was ruled that such a binding effect would exist where a jurisdiction clause is included in the articles of association of a company (see the CJEU judgment in Powell Duffryn), in the prospectus of a bond (see the CJEU judgment in Profit Investment) or in a bill of lading (see e.g. the CJEU judgments in Russ and Coreck).

The literature had assumed that a legal succession would also exist in the event of an assignment and that the jurisdiction clause would therefore also extend to an assignee of a claim (see e.g. Magnus in Magnus and Mankowski (eds) ECPIL Art. 25 Brussels Ibis Regulation para 161; Stadler in Musielak and Voit (eds) ZPO Art. 25 Brussels Ibis Regulation para 4a). The CJEU now takes the opposite position: The assignee of a claim is not bound to a jurisdiction clause in the contract from which or in the context of which the claim arises.

Negative Effects for Agreements on the Jurisdiction of EU Member State Courts

The ramifications of this ruling are significant. For the first time, the CJEU has held that an assignee is not bound by a choice-of-forum agreement between the assignor and the debtor. As a result, the binding effect of jurisdiction clauses will be weakened. It suffices for a creditor to assign a claim to avoid an unpleasant jurisdiction clause in a contract. This behaviour cannot be excluded by a contractual prohibition of assignment because the latter is not always allowed. The ruling thus opens up manifold possibilities to circumvent jurisdiction agreements.

In this context, it must be remembered that the CJEU judgment covers only agreements on the jurisdiction of a Member State court. Jurisdiction agreements in favour of courts of third countries, such as the UK or Switzerland, will be governed by national law, which often considers the assignee to be bound. Arbitration clauses, which are considered binding on the assignee under most national laws, will also remain untouched. In sum, the CJEU has done a great disservice to EU Member State courts. It has given an incentive to choose third state courts and arbitral tribunals in their stead.

Unfairness of Jurisdiction Clauses

With regard to the second question, the CJEU referred to the national court to assess whether the jurisdiction clause in favour of Irish courts was unfair to the Polish passenger. This is understandable given that the Directive needs national transposition and national courts are competent apply the transposing legislation.

There are nevertheless two important takeaways from the CJEU’s judgment with regard to the assessment of unfairness.

First, the Court of Justice did not consider DelayFix – a business enterprise – as being precluded from invoking the unfairness of the clause under the Unfair Terms Directive, although the latter only covers contracts with consumers. The CJEU stresses that the scope of the Directive does not depend on the identity of the parties to the dispute but on the capacity of the parties to the agreement (para 53). Hence the validity of the clause must also be assessed in a subsequent proceeding between two businesses.

Second, the CJEU did not see the consumer protection provisions of the Brussels Ibis Regulation as an obstacle to a finding that the clause were unfair. One could have considered the protection under the Unfair Terms Directive superfluous given that the consumer is anyway protected by the jurisdiction of the courts at its domicile under Art 17 et seq. of the Brussels Ibis Regulation. That is however not the position of the CJEU. Instead, it asks the national court to assess the invalidity of the jurisdiction clause in an abstract manner, independently of the Brussels Ibis Regulation.

As a result, the Unfair Terms Directive may potentially apply to jurisdiction clause in a business-to-business relation. The protection afforded by the CJEU to the assignee seems unwarranted in light of the purpose of unfair terms control, which is targeted to consumers. The second part of the ruling will further weaken the binding force of jurisdiction clauses in B2B relations.

The latest edition (October 2020) of the Thessaloniki Bar Review (Armenopoulos) includes a section devoted to the application of the Rome I Regulation in Greece. The judgments reported examined issues regarding the law applicable to insurance and sales contracts, as well as a post-contract choice of law relating to multiple sales contracts.

Applicable Law in Insurance Contracts

In a lawsuit against a UK insurance company concerning a claim for compensation arising out of a freight insurance contract signed in 2014, the Thessaloniki Court of Appeal (judgment No 770/2019) resorted to Article 25 of the Greek Civil Code, i.e. the domestic conflict-of-laws provision for contractual obligations, and stated that the 1980 Rome Convention was not applicable to the case pursuant to Article 1(3) thereof (‘The rules of this Convention do not apply to contracts of insurance which cover risks situated in the territories of the Member States of the European Economic Community. In order to determine whether a risk is situated in those territories the court shall apply its internal law’). No reference was made to the Rome I Regulation.

The Court noted that the insurance contract expressly referred to the law to which the parties had submitted their contractual relationship and concluded that the dispute was governed by the English Maritime Insurance Act, common law and English practice (Institute Cargo Clauses) for boat insurance.

The court failed to examine the matter in accordance with the proper law, which was Article 7 of the Rome I Regulation, read in light of Article 1(2)(j).

Applicable Law to a Contract for the Sales of Goods

In a lawsuit brought by a Greek company against a Liberian company in connection with a contract for the sale of marine fuel between by the former and the latter, represented by its Greek agent, the Court of Appeal of Piraeus (ruling No 276/2019) applied Greek law to the sales contract on the ground that no choice had been made by the parties, and that the seller had its habitual residence in Greece. With respect to the representation of the defendant company for the purposes of the conclusion of the contract, the Court observed that the agency is excluded from the scope of Rome I Regulation. The Court relied on Greek conflict-of-laws rules to state that Greek law applied to agency, this being the law of the state where the agent had acted. 

Applicable Law in Multiple Sales Contracts

In proceedings brought by a Greek company against a company registered in the Marshall Islands, the Piraeus Court of first instance (ruling No 5326/2018) applied Greek law to a series of connected sales contracts, pursuant to Article 4(1) and (4) of the Rome I Regulation. The former was self-explanatory (seat of the seller in Greece), and the latter was founded on the fact that the contract was signed at the seller’s registered office. Finally, the court mentioned an additional reason for applying domestic law: It stated that a tacit post-contractual determination of applicable law may be deduced by the defendant’s default of appearance.

Report prepared by Onyoja Momoh, Post-Doctoral Researcher at the University of Aberdeen.

 

On Thursday 5th of November 2020, the Nigerian Group on Private International Law (“NGPIL”) held its first committee meeting by virtual platform. In attendance at the meeting and forming the Committee of NGPIL were: Dr Onyoja Momoh (English Barrister at 5 Pump Court; Research Fellow at University of Aberdeen), Dr Pontian Okoli (Lecturer at University of Stirling), Dr Abubakri Yekini (Lecturer at Lagos State University) Dr Chukwuma Okoli (Post-Doctoral Researcher at T.M.C Asser Instituut), and Dr Chukwudi Ojiegbe (Contracts Manager at ACE Winches). This new initiative will bring together a unique group of experts with an important ethos: the promotion of private international law in Nigeria.

The NGPIL unanimously agreed that its aims are (1) to improve the law in Nigeria in matters relating to private international law (“PIL”) (2) to persuade the Nigerian government to accede to the Hague Conventions on PIL (3) to liaise with other experts, groups, and research centres on PIL on a global level (4) to nurture, guide and develop the legal mechanism and framework for PIL in Nigeria (5) to be the collective voice of PIL experts for the Nigerian government, the judiciary, lawyers and other relevant stakeholders and, (6) to improve the links and communication between PIL experts in Africa.

NGPIL’s activities will be far-reaching, from research projects to academic writings, dissemination events (conferences, seminars, workshops) and creating a platform for consultation and advisory work to the Nigerian government and other relevant stakeholders. A key aim is to build PIL recognition within the legal and judicial community, one that may lead to identifying a Hague Network Judge or Judges for Nigeria.

The Committee discussed plans for an inaugural event open to the public. There was a general consensus that the event will be hosted on a virtual platform given the uncertain climate, to take place in the Spring/Summer of 2021. Holding a virtual event would have huge benefits, especially the ease of engagement and participation for our main target audience across Nigeria and beyond. The proposal is to work in collaboration with the Nigerian Bar Association and academics at the Nigerian Institute of Advance Legal Studies, drawing together academics and practitioners alike, and extending invitations to the Nigerian government and other relevant organisations.

The next meeting of the NGPIL will take place in January 2021.

Thank you Jan Jakob Bornheim for alerting me to Hebei Huaneng v Deming Shi_B [2020] NZHC 2992, which dismissed the defendant’s application for summary judgment and discusses the notion of a ‘court’ , required to recognise its ‘judgments’ internationally. Readers will recognise the discussion ia from the CJEU case-law in judgments such as Pula Parking.

Hebei Huaneng had obtained judgment against Mr Shi at the Higher People’s Court of Hebei Province. The amount remained unsatisfied. Hebei Huaneng then found out that Mr Shi has assets in New Zealand – an inner-city apartment in Auckland and shares in a New Zealand company.  Mr Shi objects to New Zealand hearing this case on the basis that China does not have true courts and that Hebei Huaneng should first enforce its securities in China.

At 78-79 Bell J holds briefly that questions of real and substantial connection with New Zealand and appropriate forum are not much in issue. The two main arguments raised at this stage lie elsewhere.

Given the lack of treaty on the issue between NZ and PRC, he summarises the NZ common law on recognition at 16:  the common law regards a judgment of a foreign court as creating an obligation enforceable under New Zealand law if the judgment is given by a court, the judgment is final and conclusive, the judgment is for a definite sum, the parties are the same or privies, and the court had jurisdiction under New Zealand’s jurisdiction recognition rules. No merits review will be undertaken however refusal of enforcing a ‘money judgment’ is possible if obtained in breach of New Zealand standards of natural justice, enforcing the judgment would be contrary to public policy,
the judgment was obtained by fraud, the judgment was for a revenue debt, or the judgment involves the enforcement of a foreign penal law. Lack of reciprocal recognition by the other State is no objection.

On the issue of the notion of court, he notes at 29 that complaints that a foreign legal system is so defective that its courts cannot be trusted to do substantial justice may arise in two contexts: in forum non cases, where the analysis is prospective seeing as the case may not even be pending abroad; and in recognition cases, where the analysis is retrospective. At 28 Bell J already points out that style of writing etc. particularly also given the civil law background of China must not confuse. At 35 he notes to core issues viz the concept of court: (a) whether the bodies carrying out judicial functions are distinct from those with legislative and administrative function; and (b) whether the bodies carrying out judicial functions are subject to improper interference. Then follows lengthy-ish consideration of expert evidence to conclude at 60 that the good arguable case of the Chinese courts being independent, is satisfied.

The question of the ‘property security first’ principle’ which would mean satisfaction would first have to be sought against the Chinese secured assets, is discussed mostly in the context of Chinese law, against the backdrop of the common law principle of a party’s freedom to chose asset enforcement. The lex causae for that discussion I imagine will be further discussed at the merits stage.

A good case for the comparative conflicts binder.

Geert.

 

On the notion of 'court' and judicial independence re Chinese courts
Hebei Huaneng v Deming Shi_B [2020] NZHC 2992https://t.co/HwdiuYUnta https://t.co/wfsOjB2SLC

— Geert Van Calster (@GAVClaw) November 19, 2020

The fourth issue of the Journal du droit international for 2020 includes only one article on a topic of private international law.

It is authored by Jean-Charles Jaïs, Claudia Cavicchioli and Anne de Mazières (Linklaters Paris) and discusses the important topic of the law governing the confidentiality of international correspondence between attorneys and in-house counsels (La confidentialité des correspondances internationales des avocats et juristes en entreprise – la question du droit applicable).

The English abstract reads:

The rules applicable to the confidentiality of correspondence of lawyers and in-house counsel vary significantly from one country to the other. A French judge seized of an international dispute will thus have to confront these varying rules and determine which, amongst the competing norms, should be applied to the confidentiality of the correspondence at issue. The present article looks at the method which the seized judge should implement to determine the applicable law, and offers a reflexion on potential connecting factors. The solutions proposed differ according to whether one looks at correspondence exchanged between lawyers, between a lawyer and his/her client, or between an in-house counsel and his/her “internal client”.

The issue also includes several case notes of cases which address private international law questions. The full table of contents can be found here.

In today’s Opinion delivered in the case Obala i lucice, C-307/19, Advocate General Bobek revisits the line of case law built upon the judgment in Pula Parking, C-551/15, pertaining to the enforcement of unpaid public parking tickets by means of a writ of execution issued by a Croatian notary. This time both the Brussels I bis Regulation and the Service Regulation are at stake.

Factual context

A car is leased from NLB Leasing d.o.o., a company that provides financing for the use of vehicles, equipment and real estate in Slovenia and is – as it may be inferred from point 1 of the Opinion – based in that Member State.

On 30 June 2012, the car is parked on a public street in Zadar (Croatia). The street is defined parking zone with designated parking spaces. Obala i lucice d.o.o., entity based in Croatia, is charged with the management and maintenance of public areas for parking of motor vehicles. As the car does not have a parking ticket on display, that entity issues a daily parking ticket.

On 1 July 2013, Croatia joins the EU. Four years later, in 2017, the parking management entity commences enforcement proceedings for recovery of the parking ticket debt with a notary, by making an application for enforcement on the basis of an ‘authentic document’. That document is an extract from the accounts of Obala i lucice d.o.o., which recorded the debt relating to the unpaid ticket.

The notary issues a writ of execution on the basis of the ‘authentic document’, which is subsequently served to NLB Leasing d.o.o. in Slovenia. The latter challenges the writ before Croatian courts.

A commercial court in Pazin rules that it lacks jurisdiction and refers the case to the commercial court in Zadar. The latter also considers that it lacks jurisdiction and refers the case to the high commercial court, which decides to seize the Court of Justice with a series of preliminary questions.

Opinion of AG

It has to be mentioned at the outset that the Opinion is not addressing all the questions referred to the Court of Justice for a preliminary ruling. As the Opinion clarifies at its point 25, the Court asked its AG to elaborate only on some of the questions. The Opinion constitutes therefore the so-called ‘conclusions ciblées’.

At point 34, AG establishes the need to rearrange these questions and lists the legal inquiries analyzed in the Opinion, namely, firstly, whether the enforcement 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 and Service Regulations; secondly, whether the notaries in Croatia may themselves effect service (under the Service Regulation) of writs of execution drawn up on the basis of an ‘authentic document’ and thirdly, whether any of the special grounds of jurisdiction of the Brussels I bis Regulation confer jurisdiction on the courts of a Member State other than the domicile of the defendant.

As a consequence, the Opinion is not addressing the questions concerning, in particular, the law applicable under the Rome I and Rome II Regulations (Questions 8 and 9). It is yet to be seen how they will be answered in the judgment of the Court. It is worth noticing, however, that the facts underlying the case pending before the national courts predate the accession of Croatia to the EU.

 

Notion of ‘civil and commercial matters’

At points 39 to 54, a reminder of the case law leads AG Bobek to distinguishing two approaches adopted by the Court in order to establish whether the Regulations on ‘civil and commercial matters’ are applicable. He defines them as ‘subject matter’ and ‘legal relationship’ approaches (‘perspectives’).

Pronouncing himself in favour of ‘legal relationship’ approach at point 59, AG Bobek concludes that:

‘The concept of “civil and commercial matters”, as laid down in Article 1(1) of [the Brussels I bis Regulation] and Article 1(1) of [the Service Regulation], must be interpreted as requiring the legal relationship which characterises the underlying dispute, assessed against the framework generally applicable to private parties in such situations, not to be characterised by a unilateral exercise of public powers by one of the parties to the dispute.

While it falls to the national court to determine whether those conditions are satisfied, the circumstances of the present case do not appear subject to such an exercise of public powers.’

 

Service of writs of execution

At points 88 et seq., the Opinion addresses the question whether, under the Service Regulation, the notaries in Croatia may themselves effect service of writs of execution drawn up on the basis of an ‘authentic document’. At point 105, AG concludes:

‘[The Service Regulation] must be interpreted as meaning that, in order for a writ of execution based on an “authentic document” to qualify as a “judicial document” within the meaning of Article 1(1) of that regulation, the issuing entity must be a judicial body of a Member State forming part of its judicial system.

Articles 2 and 16 of [the Service Regulation] must be interpreted as meaning that, where a Member State has failed to designate notaries as “transmitting agencies” within the meaning of Article 2(1) of that regulation, those notaries cannot transmit “extrajudicial documents” for service to another Member State under the provisions of that regulation.’

 

Special grounds of jurisdiction

At points 106 et seq., the Opinion goes on to establish whether special grounds of jurisdiction of the Brussels I bis Regulation confer jurisdiction on the courts of a Member State other than the domicile of the defendant. Three possibilities are addressed within this part of the Opinion.

Firstly, at point 109, AG Bobek excludes the applicability of Article 7(2) of the Brussels I bis Regulation. He seems to argue, in essence, that the dispute pertaining to the unpaid public parking ticket is contractual in nature.

Next, at point 111, the applicability of the ground of exclusive jurisdiction provided for in Article 24(1) of the Regulation is excluded. Here, it is argued that ‘[o]n the basis of the facts present in the court file, there is no indication that either possession or other rights ‘in rem’ in the parking space were transferred to the defendant upon parking there (or that they are, in fact, at issue). Moreover, the article’s raison d’être militates against such an interpretation.’.

Finally, at point 112, the Opinion comes to the conclusion that Article 7(1) of the Brussels I bis Regulation is applicable and contends:

‘Article 7(1) of Regulation No 1215/2012 must be interpreted as meaning that parking a car in a designated parking space on a public road can, under the legal system of a Member State in which the issuing of parking tickets and the collection of parking fees is entrusted to a private entity, constitute a “matter relating to a contract”, as referred to in that provision.’

The Opinion can be consulted here. The request for a preliminary ruling is accessible here.

I attended recently a discussion among scholars about the notion of periculum in mora for the purposes of Article 7 of the Regulation 655/2014. In this context, attention was drawn to the decision of the Tribunal da Relação de Guimarães of 10 September 2020, which held (among other) that

IV. The preservation order requires proof of the requirements for the adoption of preventive measures: urgency, “fumus boni iuris” and “periculum in mora”.

V. The mere impossibility of collecting the claim, namely in an enforcement action instituted for that purpose, without being associated with any other element, is not enough to demonstrate the periculum in mora.

Looking at the text of the Regulation, the Portuguese court can hardly be criticised. According to Article 7(1),

The court shall issue the Preservation Order when the creditor has submitted sufficient evidence to satisfy the court that there is an urgent need for a protective measure in the form of a Preservation Order because there is a real risk that, without such a measure, the subsequent enforcement of the creditor’s claim against the debtor will be impeded or made substantially more difficult.

The provision shall be read together with Recital 14:

The conditions for issuing the Preservation Order should strike an appropriate balance between the interest of the creditor in obtaining an Order and the interest of the debtor in preventing abuse of the Order.

Consequently, when the creditor applies for a Preservation Order prior to obtaining a judgment, the court with which the application is lodged should have to be satisfied on the basis of the evidence submitted by the creditor that the creditor is likely to succeed on the substance of his claim against the debtor.

Furthermore, the creditor should be required in all situations, including when he has already obtained a judgment, to demonstrate to the satisfaction of the court that his claim is in urgent need of judicial protection and that, without the Order, the enforcement of the existing or a future judgment may be impeded or made substantially more difficult because there is a real risk that, by the time the creditor is able to have the existing or a future judgment enforced, the debtor may have dissipated, concealed or destroyed his assets or have disposed of them under value, to an unusual extent or through unusual action.

The court should assess the evidence submitted by the creditor to support the existence of such a risk. This could relate, for instance, to the debtor’s conduct in respect of the creditor’s claim or in a previous dispute between the parties, to the debtor’s credit history, to the nature of the debtor’s assets and to any recent action taken by the debtor with regard to his assets. In assessing the evidence, the court may consider that withdrawals from accounts and instances of expenditure by the debtor to sustain the normal course of his business or recurrent family expenses are not, in themselves, unusual. The mere non-payment or contesting of the claim or the mere fact that the debtor has more than one creditor should not, in themselves, be considered sufficient evidence to justify the issuing of an Order. Nor should the mere fact that the financial circumstances of the debtor are poor or deteriorating, in itself, constitute a sufficient ground for the issuing of an Order. However, the court may take these factors into account in the overall assessment of the existence of the risk.

It should be noted, though – and it has been highlighted in the abovementioned exchange of views – that the national court actually makes a very restrictive interpretation of the periculum in mora, even when a judgment has already been delivered favoring the creditor. It is not enough that the enforcement cannot be carried out in Portugal due to lack of assets there; nor that the debtor resides in another country (Spain, in the case at hand). The creditor has to prove that there is an intention on the part of the debtor to dissipate his assets, and the link between such intention and the risk of not recovering the moneys.

The ‘subjective’ element seems to be a feature common to other Member States’ interpretation of Article 7 (such as Lithuania or Germany – see LG Bremen, ruling of 7 January 2020 – 3 O 2166/19), but not to all (Spain being, for instance, one with a much more lenient understanding of the requirement: apparently, the mere impossibility of enforcement in Spain suffices for the judicial clerk, who is the one in charge at this stage, to grant the order). Moreover, and somehow funnily, the Portuguese court reaches its conclusion arguing on the basis of the similarities between the provision of the Regulation, and Article 391 of the national Code of Civil Procedure. The trend appears to be shared by other Member States, like, again, Germany and Lithuania.

In the light of the foregoing, a request for interpretation to the CJUE would not be a surprise. Unfortunately, it will hardly address any longer the policy issue of whether it makes sense to subject the cross-border preservation order to the periculum in mora requirement in spite of having obtained a decision  (see against B. Hess, ‘Article 7 Regulation 655/2014’, in Scholsser/Hess, Europäisches Zivilprozessrecht, 5th ed., para 2, forthcoming).

NoA: Note that urgency is not mentioned under Article 35 of the Brussels I bis regulation, and that measures which, because they are urgent, are ordered without the defendant being summoned to appear, are not to be recognised and enforced under the Regulation unless the judgment containing the measure is served on the defendant prior to enforcement.

Many thanks to Carlos Santaló (MPI Luxembourg) for the information on the topic as well as feedback.

Jonathan Fitchen who is recognised as a leading scholar on the conflict of laws aspect of authentic instruments has just published a book titled “The Private International Law of Authentic Instruments” under the Hart Studies in Private International Law.

The abstract reads as follows:

This helpful book will equip the lawyer – whether notary, barrister or solicitor – with the legal information necessary to understand what an authentic instrument is (and what it is not), what it can (and what it cannot) be used to do in the course of contentious or noncontentions legal proceedings.
The book takes a two part approach. Part one focuses on an explanation of the nature of the foreign legal concept of an authentic instrument, setting out the modes of creation, typical domestic evidentiary effects and the typical domestic options to challenge such authentic instruments. Part two then examines and analyses authentic instruments under specific European Union private international law regulations, focusing on the different cross-border legal effects allowed and procedures that apply to each such.
Rigorous, authoritative and comprehensive, this will be an invaluable tool to all practitioners in the field.

More information on the book can be found here

The Court of Justice (Grand Chamber) delivered on 24 November 2020 its judgment in case C‑59/19 (Wikingerhof GmbH & Co. KG v Booking.com BV), which is about an action seeking an injunction against commercial practices considered to be contrary to competition law:

“Point 2 of Article 7 of Regulation (EU) No 1215/2012 […] must be interpreted as applying to an action seeking an injunction against certain practices implemented in the context of the contractual relationship between the applicant and the defendant, based on an allegation of abuse of a dominant position by the latter in breach of competition law”.

Source: http://curia.europa.eu/juris/document/document.jsf;jsessionid=0B3C35184AED407DFB5B8CDCFD47AD38?text=&docid=234206&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=15723679

Join us on 15 December 2020 at 12 noon (The Hague) for the launch of the Elgar Companion to the Hague Conference on Private International Law, edited by Thomas John, Rishi Gulati and Ben Köhler.

 

 

The book will be launched by Christophe Bernasconi, Secretary General of the HCCH, and is followed by a conversation and Q&A on a key theme that emerged in the Companion: the importance of private international law to providing access to justice. The speakers are:

• Professor Xandra Kramer, Erasmus University, and Deputy Judge, District Court, Rotterdam, NL
• Justin Gleeson SC, Barrister and Arbitrator, Banco Chambers, Sydney, AUS

Register here: https://lnkd.in/d7cyVF4. 

The Companion is a unique guide to the HCCH. 35 leading international experts contributed to this work. Their contributions offer a unique critical assessment of, and reflection on, past and possible future contributions of the HCCH to the further development and unification of private international law.

For more information on the book, including endorsements by Lord Collins, Professor Basedow, Professor Silberman, Justice de Nardi, Professor Neels and Professor Reyes, click here.

HCCH a|Bridged – Edition 2020: Golden Anniversary of the HCCH 1970 Evidence Convention

Tuesday 2 December 2020, 14:15 CET

Registration | Programme | Event Website | HCCH Evidence Section
(Registration closes 17:00 CET Friday 27 November)

Building upon the success of HCCH a|Bridged – Edition 2019, this year’s edition will focus on the Evidence Convention. Edition 2020 will ensure the event remains true to its name, being short and sharp. Following a keynote speech from Professor Dr Michael Stürner entitled “50 years of the HCCH Evidence Convention – Facilitating cross-border proceedings”, the first panel will discuss the topic “Effective Taking of Evidence under Chapter I of the Convention: A Requesting State’s Perspective”, after which the second panel will consider challenges and opportunities relating to the “Taking of Evidence under Chapter II of the Convention”. The HCCH will be represented by Secretary General Dr Christophe Bernasconi, First Secretary Dr João Ribeiro-Bidaoui, and Legal Officer Ms Elizabeth Zorrilla. 

Conferencia internacional: Convención HCCH 2019 sobre Reconocimiento y Ejecución de Sentencias Extranjeras

Thursday 3 December 2020, 15:00 CET (11:00 local)

Registration | Programme | Event Website | HCCH Judgments Section

This Spanish-language international conference, co-hosted by ASADIP and the HCCH will, as its name suggests, be devoted to the HCCH 2019 Judgments Convention. The programme will cover an introduction to the Convention and the reasons why States should join, a presentation of the particular benefits of the Convention for Latin America, as well as a discussion of the implementation challenges for States in the region. The HCCH will be represented by First Secretary Dr João Ribeiro-Bidaoui and Representative for Latin America and the Caribbean Mr Ignacio Goicoechea. They will be joined by many other experts, a number of whom were involved in the negotiation of the Convention, including Explanatory Report Co-Rapporteur Professor Francisco Garcimartín.

Book Launch: Elgar Companion on the Hague Conference on Private International Law

Tuesday 15 December 2020, 12:00 CET

Registration & Programme | Elgar Companion

This comprehensive Companion, edited by Thomas John, Rishi Gulati, and Ben Koehler, is a unique guide to the HCCH, comprising contributions from international experts who have all directly or indirectly been involved with the work of the HCCH. The Companion is an assessment of, and reflection on, past and possible future contributions of the HCCH to the further development and unification of private international law. The Companion will be launched by HCCH Secretary General Dr Christophe Bernasconi, followed by a Conversation and Q&A with Professor Xandra Kramer (Erasmus University Rotterdam, Netherlands) and Mr Justin Gleeson SC (Banco Chambers, Sydney, Australia) around the theme of “the importance of private international law to providing access to justice”. The launch is being organised by Grotius Chambers.

This post is published by the Permanent Bureau of the Hague Conference of Private International Law (HCCH).

RIDOC 2020: Rijeka Doctoral Conference is particularly international this year both, with regard to the attending doctoral candidates and in relation to the composition of the panels. Thirty-four selected doctoral candidates will be testing their research hypothesis and methodologies in six sessions each presided by a three-member panel.

No less than two sessions might be of particular interest to this Blog’s readers:

The keynote lecture will be delivered by Professor Carlo Rimini, affiliated with University of Milano and University of Pavia, a recognised family law researcher and attorney. He will be speaking about validity of the prenuptial agreements from the methodology perspective.

Full programme is available here, and additional information may be obtained at ridoc@pravri.hr.

The entire conference will be online at the Cisco Webex platform. Attendance is free on the first-to-apply bases, but registration is necessary via this link.

more information and sign-up is here.

The first post of the EAPIL blog was published one year ago, on 25 November 2019. More than 300 posts have followed since, written by the blog’s editors and by no less than twenty guests.

We are trying to make the blog richer in contents, and improve its visibility.

Various private international law specialists across Europe and beyond have offered to prepare guest posts for publication in the coming days or weeks. We are eager to read their contributions and share them with our readers.

In the meanwhile, we are working to make the blog – and the Association, generally – more active on social media.

Marco Pasqua, an Associate Member of the Association, with a special interest in collective redress and the liability of corporate groups for violation of EU competition law, has kindly accepted to serve as the Association’s social media manager. Thanks a lot, Marco!

So, join us also on Twitter (@eapilorg) and Linkedin!

Planning to become a member of EAPIL, and join the 255 scholars and practitioners who have already done so? We are glad to provide you with one more reason to submit your application before the end of the year!

While, as a general rule, fees are due for each calendar year, those applying for membership in December 2020 will not be required to pay any fees for 2020. The first fees due by such new members will be the fees due for 2021.

See here for information on the benefits you would be entitled to as a member, as well as on the types of membership offered and the admission process.

Once you are ready to apply for membership, just fill in the form you find here!

The 2020 Annual Conference of the French Association for European Studies (AFEE) will focus on Family within the Legal Order of the European Union, based on a collective research led by academics and practitioners from different EU countries, which resulted in a book edited by Elsa Bernard (University of Lille), Marie Cresp (University of Bordeaux) and Marion Ho-Dac (University of Valenciennes), to be published soon by Bruylant.

This year’s conference will take place on 11 December 2020, in the form of a Zoom webinar, from 11.45 to 14.30 MET, with the participation of the book’s authors and other speakers. It will be preceded, starting on 7 December 2020, by the posting of a series of short videos devoted to the contributions in the book.

Attendance is free, but those interesting in attending are required to register by 9 December 2020, by sending and e-mail to aline.dherbet@univ-lille.fr.

Family law, with its civil law tradition, and strong roots in the national cultures of the Member States, does not normally fall within the scope of European law. However, it is no longer possible to argue that family law is outside European law entirely. There are many aspects of the family which are subject to European influence, to the point that the outlines of a «European family» are starting to emerge. This book is intended to highlight the European experience of family law as well as its substantive (i.e. European citizenship, EU social policy, EU civil service…) and private international law aspects. Union law therefore contains a form of «special» family law which is shared between the Member States and supplements their national family laws. Its theoretical and political importance in the Union, as well as its future, are discussed by the authors. Far from remaining fragmented alongside the national laws of Member States, it will likely develop to offer European citizens and residents a common family law within the EU.

Contributors include: Katharina Boele-Woelki, Marlene Brosch, Christelle Chalas, Kiteri Garcia, Susanne Lilian Gössl, Loïc Grard, Víctor Luis Gutiérrez Castillo, Anastasia Iliopoulou-Penot, Beata Jurik, Hester Kroeze, Laure Lévi, Cristina M. Mariottini, Martina Melcher, Benjamin Moron-Puech, Marion Nadaud, Nicolas Nord, Cyril Nourissat, Ludovic Pailler, Nausica Palazzo, Amélie Panet-Marre, Etienne Pataut, Delphine Porcheron, Isabelle Rein Lescastereyeres, Sophie Robin-Olivier, Mathieu Rouy, Sandrine Sana Chaillé de Néré, Solange Ségala, Gaëlle Widiez et Geoffrey Willems.

Guillaume Payan (University of Toulon, France) is the editor of a new book offering commentaries of the most important of the judgments delivered by the Court of Justice of the European Union in the field of European civil procedure (Espace judiciaire européen – Arrêts de la CJUE et commentaires).

The author has provided the following abstract:

For twenty years, European directives and regulations have been multiplied in the field of the European judicial area in civil matters (Treaty on the Functioning of the European Union, art. 81). Their implementation in the various member states of the European Union is the source of significant litigation. In order to settle the disputes submitted to them, national Courts frequently request the Court of Justice of the European Union, submitting a request for a preliminary ruling on interpretation.

Knowledge of preliminary ruling is essential for a good understanding of European Union legislation, it being understood that the terms used therein are interpreted independently, by referring mainly to the objectives and scheme of European regulation and directive concerned, in order to ensure the uniform application.

The book “European civil judicial area: judgments of CJEU and comments” contains analyzes of more than 300 judgments of the Court of Justice.

In this book, the judgments of the Court of Justice of the European Union – and the older ones of the Court of Justice of the European Communities – are not arranged in chronological order, as is traditionally the case. However, their presentation follows the structure of the directives and regulations adopted in the field of the European Civil Judicial Area.

However, in the same case, the Court of Justice may have to interpret several provisions appearing in the same European legislative instrument or in separate European legislative instruments. As a result, some judgments appear at different places in the book. In such a case, each analysis is focused on a precise aspect of the solution adopted and references are made to the other comments relating to these judgments.

This choice pursues the objective of facilitating the identification of the correct meaning of the concepts which punctuate the European Union legislation developed in the field of judicial cooperation in civil matters. In the same perspective, in each analysis, the extracts from the judgments – and the conclusions of the Advocates General relating to them – appear in italics. In addition, the comments are preceded by the reproduction of the relevant extract from the judgment studied. This extract corresponds to all or part of its ruling. In addition, the list of judgments analyzed is reproduced at the end of the book in an alphabetical table of case law.

This work was written under the direction of Guillaume Payan (University of Toulon, France) and includes a foreword of Professor Hélène Gaudemet-Tallon. The contributors to the books are I. Barrière-Brousse, J. Bauchy, A. Berthe, V. Egéa, E. Guinchard, L.-C. Henry, M. Ho-Dac, F. Jault-Seseke, N. Joubert, M.-C. Lasserre, F. Mailhé, S. Menetrey, P. Nabet, P. Oudot, G. Payan, F. Reille.

More details can be found here, including the table of contents of the book which is available here.

The CJEU held yesterday (Tuesday) in C-59/19 Wikingerhof v Booking.com. I reviewed the AG’s Opinion here. The case was held in Grand Chamber, which might have provoked expectations yet the judgment is not exactly a bang. Neither however can it be described a whimper. As I note in my review of the Opinion, the case in my view could have been held acte clair. The AG did take the opportunity in his Opinion to discuss many issues which the CJEU was bound not to entertain, at least not in as much detail as the AG did.

Let me first signal what I believe might be the biggest take-away of the litigation, if at least the referring court is followed. That is the Bundesgerichtshof’s finding that  there is no durable record of the alleged consent by Wikingerhof of the amended GTCs, including choice of court, effected via amendments on the ‘Extranet’, which is the portal via which the hotel may update its information and retrieve reservations. Booking.com claimed these amounted to a ‘form which accords with practices which the parties have established between themselves’ pursuant to Article 25(1)(b). Parties will still argue on the merits whether the initial consent to the primary GTCs was strong-armed because of booking.com’s dominant position.

With respect to to the jurisdictional issue, the CJEU in a succinct judgment firstly points to the need for restrictive interpretation. It points at 29 to the claimant being the trigger of A7(1) or (2). Without a claimant’s decision to base a claim on the Articles, they simply do not get to be engaged. That is a reference to the forum shopping discussion of the AG. Still, the court hearing the action must assess whether the specific conditions laid down by those provisions are  met.

At 32, with reference to Brogsitter, ‘an action concerns matters relating to a contract within the meaning of [A7(1)(a) BIa] if the interpretation of the contract between the defendant and the applicant appears indispensable to establish the lawful or, on the contrary, unlawful nature of the conduct complained of against the former by the latter’.  ‘That is in particular the case of an action based on the terms of a contract or on rules of law which are applicable by reason of that contract’ (reference to Holterman and to Kareda, with the latter itself referring to De Bloos). At 33  ‘By contrast, where the applicant relies, in its application, on rules of liability in tort, delict or quasi-delict, namely breach of an obligation imposed by law, and where it does not appear indispensable to examine the content of the contract concluded with the defendant in order to assess whether the conduct of which the latter is accused is lawful or unlawful, since that obligation applies to the defendant independently of that contract, the cause of the action is a matter relating to tort, delict or quasi-delict’.

At 32 therefore the CJEU would seem to confirm De Bloos’ awkward (given the Regulation’s attention to predictability) support for forum shopping based on claim formulation yet corrected by what is more akin to Sharpston AG’s approach in Ergo and the Court’s approach in Apple v eBizcuss, a judgment not referred in current judgment: namely that the judge will have to consider whether contractual interpretation is strictly necessary (the Court uses ‘indispensable’) to judge the case on the merits. Here, Wikingerhof rely on statutory German competition law (at 34-36): therefore the claim is one covered by Article 7(2).

The judgment confirms the now very fine thread between jurisdictional and merits review for the purposes of tort-based litigation between two contracting parties.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2, Heading 2.2.11.2.9. 3rd ed. 2021 para 2.469.

 

The EU “Parliament today endorsed a new law that will allow groups of consumers to join forces and launch collective action in the EU. […] All member states must put in place at least one effective procedural mechanism that allows qualified entities (e.g. consumer organisations or public bodies) to bring lawsuits to court for the purpose of injunction (ceasing or prohibiting) or redress (compensation). […]

More rights for consumers and safeguards for traders

The European class action model will allow only qualified entities, such as consumer organisations, to represent groups of consumers and bring lawsuits to court, instead of law firms.

In order to bring cross-border actions to court, qualified entities will have to comply with the same criteria across the EU. They will have to prove that they have a certain degree of stability and be able to demonstrate their public activity, and that they are a non-profit organisation. For domestic actions, entities will have to fulfil the criteria set out in national laws.

The rules also introduce strong safeguards against abusive lawsuits by using the “loser pays principle”, which ensures that the defeated party pays the costs of the proceedings of the successful party.

To further prevent representative actions from being misused, punitive damages should be avoided. Qualified entities should also establish procedures to avoid conflict of interest and external influence, namely if they are funded by a third party.

Collective actions can be brought against traders if they have allegedly violated EU law in a broad range of areas such as data protection, travel and tourism, financial services, energy and telecommunication.

Finally, the directive also covers infringements that have stopped before the representative action is brought or concluded, since the practice might still need to be banned to prevent it from recurring.

[…]

Next steps

The directive will enter into force 20 days following its publication in the Official Journal of the EU. Member states will then have 24 months to transpose the directive into their national laws, and an additional six months to apply it. The new rules will apply to representative actions brought on or after its date of application”.

Source: https://www.europarl.europa.eu/news/en/press-room/20201120IPR92116/

Earlier today, the Grand Chamber of the CJEU rendered its long-awaited decision in Case C-59/19 Wikingerhof. The case, which concerns the claim for an injunction brought by a German hotel against the online platform booking.com, goes back to the age-old question of where to draw the line between special jurisdiction for contract and tort under Article 7 Brussels Ia if the two parties are bound by a contract but the claim is not strictly-speaking based on it.

Arguably the Court’s most authorative statement on this question can be found in Case C-548/12 Brogsitter, where the Court held that a claim needed to be qualified as contractual if the parties are bound by a contract and ‘the conduct complained of may be considered a breach of [this] contract, which may be established by taking into account the purpose of the contract’ (para. 24). Some of the Court’s later decisions such as the one in Joined Cases C-274/16, C-447/16, and C- 448/16 flightright could however be seen as a (cautious) deviation from this test.

In Wikingerhof, the claimant sought an injunction against certain practices relating to the contract between the parties, which the claimant argued they had been forced to agree to due to the dominant market position of the defendant, which violated German competition law. According to AG Saugsmandsgaard Øe – whose Opinion has been discussed on this blog here and here – this claim had to be qualified as non-contractual as it was effectively based not on the contract, but on rules of competition law which did not require a taking into account of the contract in the sense seemingly required under Brogsitter.

In its relatively short judgment, the Court appears to agree with this assessment. Using the applicant’s choice of the relevant rule of special jurisdiction as the starting point (para. 29; which might be seen as a deviation from the purely objective characterisation attempted in Case 189/87 Kalfelis and Brogsitter), the Court held that

[33] … where the applicant relies, in its application, on rules of liability in tort, delict or quasi-delict, namely breach of an obligation imposed by law, and where it does not appear indispensable to examine the content of the contract concluded with the defendant in order to assess whether the conduct of which the latter is accused is lawful or unlawful, since that obligation applies to the defendant independently of that contract, the cause of the action is a matter relating to tort, delict or quasi-delict within the meaning of point 2 of Article 7 of Regulation No 1215/2012.

Despite repeated references to the decision in Brogsitter, the Court thus seems to move the focus away from whether ‘the conduct complained of may be considered a breach of contract’ towards what may be seen as a lower threshold of whether an examination of the content of the contract is ‘indispensable’. (Similar wording was admittedly also used in Brogsitter (paras. 25–26) but did not made it into the dispositif of the decision.) Applying this test to the case at hand, the Court explained that

[34] In the present case, Wikingerhof relies, in its application, on an infringement of German competition law, which lays down a general prohibition of abuse of a dominant position, independently of any contract or other voluntary commitment. Specifically, Wikingerhof takes the view that it had no choice but to conclude the contract at issue and to suffer the effect of subsequent amendments to Booking.com’s general terms and conditions by reason of the latter’s strong position on the relevant market, even though certain of Booking.com’s practices are unfair.

[35] Thus, the legal issue at the heart of the case in the main proceedings is whether Booking.com committed an abuse of a dominant position within the meaning of German competition law. As the Advocate General stated in points 122 and 123 of his Opinion, in order to determine whether the practices complained of against Booking.com are lawful or unlawful in the light of that law, it is not indispensable to interpret the contract between the parties to the main proceedings, such interpretation being necessary, at most, in order to establish that those practices actually occur.

[36] It must therefore be held that, subject to verification by the referring court, the action brought by Wikingerhof, in so far as it is based on the legal obligation to refrain from any abuse of a dominant position, is a matter relating to tort, delict or quasi-delict within the meaning of point 2 of Article 7 of Regulation No 1215/2012.

Considering the limited popularity of the Brogsitter judgment, today’s restatement of the test will presumably be welcomed by many scholars.