European Civil Justice

A resolution from the European Parliament on the policy implications of the development of virtual worlds was published last Thursday at the OJEU (the resolution itself is from January). It contains a few parts on private international law:

“Private international law

13. Stresses that certain traditional territorial principles on applicable law and jurisdiction might prove inadequate to virtual worlds, whose non-territoriality is enabled by the use of decentralised technologies such as blockchain, and give rise to problems when it comes to ensuring the applicability of EU law and the protection of the rights of consumers and businesses;

14. Notes more specifically that, since anyone anywhere in the world can access virtual worlds, the ‘mosaic criterion’ established by the Court of Justice of the European Union, by which the injured party may seek compensation in the courts of the countries where at least a part of the harm occurred, might not hold; recalls, however, that the Court established an additional criterion whereby injured parties can claim compensation through the courts of the country in which they have their main interest and affirms that the codification of this criterion into the Brussels I Regulation could be considered;

15. Observes that the definition of ‘consumer’ in the Brussels I Regulation is currently based on a direct contractual relationship, which is missing for instance between the issuer of a non-fungible token (NFT) and the purchaser when the NFT is put on a secondary market; notes that, consequently, in the event of a dispute with the issuer, the final purchaser would be deprived of the jurisdictional treatment that the Brussels I Regulation grants to consumers;

16. Calls on the Commission to take into account these and other potentially problematic situations and to assess the appropriateness of the existing provisions of private international law applicable in the EU, proposing appropriate amendments, where necessary, to guarantee that citizens and businesses do not have to systematically litigate in foreign courts or under foreign laws in order to enforce their rights, thus making sure that their rights under the EU regulatory framework are fully guaranteed, while bearing in mind the risk of forum shopping, in particular on the part of non-EU companies”.

Source: Policy implications of the development of virtual worlds – civil, company, commercial and intellectual property law issues – European Parliament resolution of 17 January 2024 on policy implications of the development of virtual worlds – civil, company, commercial and intellectual property law issues (2023/2062(INI)), OJ C, C/2024/5720, 17.10.2024, ELI: http://data.europa.eu/eli/C/2024/5720/oj

A major reform of the CJEU was published at the OJEU last week: Regulation (EU, Euratom) 2024/2019 of the European Parliament and of the Council of 11 April 2024 amending Protocol No 3 on the Statute of the Court of Justice of the European Union, OJ L, 2024/2019, 12.8.2024. In particular, preliminary rulings will be shared between the Court of Justice and the General Court (insertion of Article 50 ter), a first since the creation of the preliminary rulings procedure. The same issue of the Official Journal publishes new version of the Rules of Procedure of both Courts and associated documents.

Earlier this month (9 January 2024), the Republic of Cabo Verde acceded to the Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance, which will enter into force for it on 12 January 2025 [Note: this is not our reading of Article 60 of the Convention]. With the accession of Cabo Verde, 49 States and the European Union will be bound by the 2007 Child Support Convention.

Source: https://www.hcch.net/en/news-archive/details/?varevent=955

The Court of Justice delivered yesterday its judgment in case C‑531/22 (Getin Noble Bank S.A.), where it has, once more, defended the right of the national judge to, ex officio, examine the potential unfairness of a clause in a contract concluded by a consumer (Directive 93/13).

The decision is available in all EU languages, albeit not in English. Here is the French version:

“1) L’article 6, paragraphe 1, et l’article 7, paragraphe 1, de la directive 93/13/CEE du Conseil, du 5 avril 1993, concernant les clauses abusives dans les contrats conclus avec les consommateurs, doivent être interprétés en ce sens que : ils s’opposent à une réglementation nationale prévoyant qu’une juridiction nationale ne peut procéder d’office à un examen du caractère éventuellement abusif des clauses figurant dans un contrat et en tirer les conséquences, lorsqu’elle contrôle une procédure d’exécution forcée fondée sur une décision prononçant une injonction de payer définitive revêtue de l’autorité de la chose jugée :

– si cette réglementation ne prévoit pas un tel examen au stade de la délivrance de l’injonction de payer ou

– lorsqu’un tel examen est prévu uniquement au stade de l’opposition formée contre l’injonction de payer concernée, s’il existe un risque non négligeable que le consommateur concerné ne forme pas l’opposition requise soit en raison du délai particulièrement court prévu à cette fin, soit eu égard aux frais qu’une action en justice entraînerait par rapport au montant de la dette contestée, soit parce que la réglementation nationale ne prévoit pas l’obligation que soient communiquées à ce consommateur toutes les informations nécessaires pour lui permettre de déterminer l’étendue de ses droits.

2) L’article 3, paragraphe 1, l’article 6, paragraphe 1, l’article 7, paragraphe 1, et l’article 8 de la directive 93/13 doivent être interprétés en ce sens que : ils ne s’opposent pas à une jurisprudence nationale selon laquelle l’inscription d’une clause d’un contrat au registre national des clauses illicites a pour effet que cette clause soit considérée comme étant abusive dans toute procédure impliquant un consommateur, y compris à l’égard d’un autre professionnel que celui à l’encontre duquel la procédure d’inscription de ladite clause à ce registre national avait été engagée et lorsque la même clause ne présente pas un libellé identique à celui enregistré, mais revêt la même portée et produit les mêmes effets sur le consommateur concerné ».

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=281795&pageIndex=0&doclang=fr&mode=req&dir=&occ=first&part=1&cid=4026751

On 14 December 2023, AG Emiliou delivered his opinion in case C‑90/22 (‘Gjensidige’ ADB), which is about Brussels I bis, more precisely Articles 71 and 45, and the Convention on the Contract for the International Carriage of Goods by Road (CMR).

The context: A “dispute arose following a theft of cargo during its transportation from the Netherlands to Lithuania. The insurer concerned claimed compensation from the carrier and it did so in Lithuania, relying on a choice-of-court agreement contained in the contract of carriage.

5. However, at that point in time, the carrier had already initiated judicial proceedings in the Netherlands, with the aim of establishing that its liability in this particular context was limited. Before granting that claim, the Netherlands court affirmed its jurisdiction by applying one of the jurisdictional rules contained in the Convention on the Contract for the International Carriage of Goods by Road (‘the CMR’), despite the choice-of-court agreement referred to above, which, from the point of view of that court, could not exclude the other (alternative) grounds of jurisdiction set out in the CMR.

6. Following recognition by the Lithuanian courts of that judgment, [Gjensidige, an insurance company that had insured the consignment and made an insurance payment] filed an appeal in cassation before the Lietuvos Aukščiausiasis Teismas (Supreme Court of Lithuania, Lithuania), the referring court. It argues that recognition of the judgment of the Netherlands court is at odds with Regulation No 1215/2012, as that regulation establishes, in principle, the exclusivity of the jurisdiction resulting from a choice-of-court agreement.

7. In those circumstances, the referring court wonders, first, which rules of jurisdiction apply. It notes that Regulation No 1215/2012 confers primacy of application to rules laid down in a specialised international convention, such as the CMR. Nevertheless, it doubts whether such precedence may permit a choice-of-court agreement to be disregarded, in view of the enhanced protection accorded to those agreements by Regulation No 1215/2012. Second, it seeks clarification on whether this increased protection must result in the recognition of the judgment of the Netherlands court being refused. Although Regulation No 1215/2012 does not expressly allow for such an approach, the referring court enquires whether broader interpretation thereof is called for so as to safeguard, in essence, the intentions of the parties, as documented in the choice-of-court agreement at issue”.

The opinion: “Article 45(1)(a) and (e)(ii) of Regulation (EU) No 1215/2012 […] must be interpreted as meaning that the grounds for the refusal of recognition set out therein do not apply to a situation in which the court of origin established its jurisdiction on the basis of one of several rules contained in a specialised convention, within the meaning of Article 71 of Regulation No 1215/2012, which include – but do not classify as exclusive – a choice-of-court agreement, and when the court of origin was not the court designated by the choice-of-court agreement concluded by the parties concerned.

Moreover, Article 45(1)(a) of Regulation No 1215/2012 must be interpreted as meaning that an error, when established, as to the determination of the applicable law cannot, per se, lead to the recognition of a judgment being refused on the ground that it is contrary to the public policy of the State addressed”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=280634&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=10873860

The Court of Justice delivered on 23 November 2023 its judgment in case C‑321/22 (ZL, KU, KM v Provident Polska S.A.), which is about Article 7 Directive 93/13 (notably):

“Article 7(1) of Directive 93/13, read in the light of the principle of effectiveness, must be interpreted as precluding a national law which, as interpreted in the case-law, requires, in order for a consumer’s action for a declaration that an unfair term in a contract concluded with a seller or supplier is unenforceable to be upheld, proof of an interest in bringing proceedings, where that interest is regarded as being absent where the consumer may bring an action for the recovery of sums unduly paid, or where the consumer may raise that unenforceability as part of his or her defence to a counter-claim brought against him or her by that seller or supplier on the basis of that term.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=280068&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=10873860

AG Campos Sánchez-Bordona delivered on 23 November 2023 his opinion in case C‑634/22, which is about Article 19 TEU and the abolition of a specialised Court (in that case a criminal one but the opinion seems equally applicable to a civil and commercial Court, hence its inclusion on this blog).

The opinion: “The second subparagraph of Article 19(1) TEU must be interpreted as meaning that it does not preclude a reform of the judicial system of a Member State according to which a specialised criminal court is abolished and its jurisdiction transferred to a different, ordinary, court, and which provides at the same time that the criminal cases being dealt with in the abolished court and in which a hearing has been held will continue to be heard by the formation that had jurisdiction until that time.

Nor does it preclude, in the context of that reform of the judicial system, the reassignment of the judges of the abolished court to other courts with the same rank, on the basis of objective criteria free of any suspicion of arbitrariness”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=juridiction%2Bp%25C3%25A9nale%2Bsuppression%2B&docid=280082&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=10883304#ctx1

The Court of Justice delivered on 16 November 2023 its judgment in case C‑497/22 (EM v Roompot Service BV), which is about Article 24 Brussels I bis.

The context: “On 23 June 2020, EM, made a booking, via the internet on the website of Roompot Service, for a bungalow at the Waterpark Zwartkruis holiday park, situated at Noardburgum (Netherlands), for the period from 31 December 2020 to 4 January 2021 for a group of nine people who were members of more than two different households.

7 The booking was for a total rental price of EUR 1 902.80, which EM paid in full, and included the provision of bed linen and cleaning at the end of the stay

8 The water park has bungalows located directly on a lake, each with a separate jetty. Boats and canoes can be hired for an additional charge.

9 Roompot Service informed EM by email, prior to arrival and at her request, that the waterpark was open during the period of her booking despite the COVID-19 pandemic, but that, due to the rules in force in the Netherlands, it was only possible for her to stay in the accommodation with her family and a maximum of two people from another household in one bungalow. Roompot Service also offered EM the opportunity to rebook her stay for a later date.

10 Since EM did not stay at the accommodation and did not rebook her stay, she was repaid the amount of EUR 300 by Roompot Service.

11 EM brought an action against Roompot Service before the Amtsgericht Neuss (Local Court, Neuss, Germany) seeking repayment of the remainder of the rental price, in the amount of EUR 1 602.80, plus interest and costs. Roompot Service contested the international jurisdiction of the German courts to hear such an action.

12 By judgment of 1 October 2021, the Amtsgericht Neuss (Local Court, Neuss) dismissed the action as unfounded.

13 EM lodged an appeal before the Landgericht Düsseldorf (Regional Court, Düsseldorf, Germany), the referring court.

14 That court is uncertain whether Netherlands courts have exclusive international jurisdiction to hear the case in the main proceedings on the basis of the first subparagraph of Article 24(1) of Regulation No 1215/2012”.

The decision: “The first subparagraph of Article 24(1) of Regulation (EU) No 1215/2012 […] must be interpreted as meaning that a contract concluded between an individual and a tourism professional by which the latter lets for short-term personal use holiday accommodation situated in a holiday park operated by that professional and including, in addition to the letting of that accommodation, the performance of a range of services in return for a lump sum, does not come within the concept of ‘tenancies of immovable property’ within the meaning of that provision”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=279761&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=10873860

AG Collins delivered on 16 November 2023 his opinion in joined cases C‑345/22 to C‑347/22 (Maersk A/S), which are about Article 25 Brussels I bis.

The context: “Each of these actions is a claim for damages on foot of the partial loss of goods transported by sea. They raise the issue as to the conditions under which a jurisdiction clause in a contract for the carriage of goods by sea evidenced by a bill of lading may be enforced against a third party that subsequently acquired those goods, thereby becoming a third-party holder of that bill of lading”.

The opinion: “(1) Article 25(1) of Regulation (EU) No 1215/2012 […] must be interpreted as meaning that a jurisdiction clause agreed between a carrier and a shipper which is incorporated in a bill of lading is enforceable against a third-party holder of the bill of lading if, on acquiring that bill, it succeeded to the shipper’s rights and obligations. It is for the court seised of the matter to answer that question in accordance with national substantive law as established by applying its rules of private international law. The rule in that provision that the substantive validity of a jurisdiction clause is to be assessed in accordance with the law of the Member State of the court or courts designated in that clause does not govern the enforceability of a jurisdiction clause incorporated in a bill of lading against a third-party holder of that bill.

(2) Article 25(1) of Regulation No 1215/2012 must be interpreted as precluding national legislation under which a third party to a contract for the carriage of goods by sea concluded between a carrier and a shipper that acquires the bill of lading evidencing that contract is subrogated to all the shipper’s rights and obligations, with the exception of the jurisdiction clause incorporated therein, which is enforceable against it only where it negotiated that clause individually and separately”.

The source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=279783&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=10873860

The Court of Justice delivered on 9 November 2023 its judgment in case C‑598/21 (SP, CI v Všeobecná úverová banka a.s.), which is about Article 7 Directive 93/13 (notably):

“Article 3(1), Article 4(1), Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, read in the light of Articles 7 and 38 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding national legislation under which the judicial review of the unfairness of an acceleration clause contained in a consumer credit agreement does not take account of the proportionality of the option given to the seller or supplier to exercise his or her right under that clause, in the light of criteria relating, in particular, to the extent of the consumer’s failure to fulfil his contractual obligations, such as the amount of the instalments which have not been paid in relation to the total amount of the credit and the duration of the contract, and to the possibility that the implementation of that clause may result in the seller or supplier being able to recover the sums due under that clause by selling, without any legal process, the consumer’s family home”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=279485&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=10873860

AG Pikamäe delivered on 26 October 2023 his opinion in joined cases C‑554/21, C‑622/21 and C‑727/21 (Hann-Invest), which are about Article 19 TEU:

“The second subparagraph of Article 19(1) of the Treaty on European Union must be interpreted as not precluding national rules and practices which, at the deliberation stage of court proceedings at second instance concerning a dispute that has been the subject of a decision by the judicial panel seised, provide for:

–      the referral to an enlarged formation by the president of the court or the president of a specialised section, in the light of that decision and where the consistency of the court’s case-law may be or is being undermined, for the purpose of the adoption, by majority vote, of a common position as to the general and abstract interpretation of the applicable legal rule, previously a matter of debate between the parties, which the formation initially seised must take into account for the purpose of resolving the dispute as to the substance;

–      the informing of the president of the court or the president of a specialised division, by a judge responsible for monitoring the case-law of the court, in a situation where the consistency of that case-law may be or is being undermined because the formation seised has maintained its original decision and, pending the adoption of the abovementioned legal position, the suspension of that formation’s decision ruling on the dispute and its notification to the parties”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=279141&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=10873860

The Court of Justice delivered today its judgment in case C‑21/22 (OP v Notariusz Justyna Gawlica), which is about the Succession Regulation:

“1. Article 22 of Regulation (EU) No 650/2012 […] must be interpreted as meaning that a third-country national residing in a Member State of the European Union may choose the law of that third State as the law governing his or her succession as a whole.

2. Article 75 of Regulation No 650/2012, read in conjunction with Article 22 of that regulation, must be interpreted as not precluding – where a Member State of the European Union has concluded, before the adoption of that regulation, a bilateral agreement with a third State which designates the law applicable to succession and does not expressly provide for the possibility of choosing another law – a national of that third State, residing in the Member State in question, from not being able to choose the law of that third State to govern his or her succession as a whole”

Source: https://curia.europa.eu/juris/document/document.jsf?mode=DOC&pageIndex=0&docid=278536&part=1&doclang=EN&text=&dir=&occ=first&cid=283716

AG De La Tour delivered today his opinion in case C‑566/22 (Inkreal s. r. o. v Dúha reality s. r. o.), which is about Article 25 Brussels I bis:

“Article 25 of Regulation (EU) No 1215/2012 […] must be interpreted as meaning that in a purely internal situation, it is not applicable based solely on the fact that the parties domiciled in the same Member State have designated a court or courts of another Member State to settle any disputes between them which have arisen or which may arise”.

Source: https://curia.europa.eu/juris/document/document.jsf?docid=278538&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=220250

Article 1 of the following decision confirms the participation of Ireland to e-Codex: Commission Decision (EU) 2023/2099 of 28 September 2023 confirming the participation of Ireland in Regulation (EU) 2022/850 of the European Parliament and of the Council on a computerised system for the cross-border electronic exchange of data in the area of judicial cooperation in civil and criminal matters (e-CODEX system), OJEU L 241, 29.9.2023, p. 144

Source: http://data.europa.eu/eli/dec/2023/2099/oj

The Court of Justice delivered a few days ago (14 September 2023) its judgment in case C‑632/21 (JF, NS v Diamond Resorts Europe Limited (Sucursal en España), Diamond Resorts Spanish Sales SL, Sunterra Tenerife Sales SL), which is about the applicability of Rome I and its Article 6:

“1. The provisions of [Rome I] are applicable, in the context of a dispute before a court of a Member State, to contracts the two parties of which are United Kingdom nationals, to the extent that those contracts have a foreign element.

2. Article 6(2) of Regulation No 593/2008 must be interpreted as meaning that:

–        where a consumer contract fulfils the requirements laid down in Article 6(1) of that regulation, the parties to that contract may, in accordance with Article 3 of that same regulation, choose the law applicable to that contract, provided, however, that that choice does not result in depriving the consumer concerned of the protection afforded to him or her by provisions that cannot be derogated from by agreement by virtue of the law which, in the absence of choice, would have been applicable on the basis of Article 6(1), which provides that such a contract is to be governed by the law of the country where the consumer has his or her habitual residence;

–        in view of the mandatory and exhaustive nature of that same Article 6(2), it is not possible to derogate from that provision for the benefit of legislation allegedly more favourable to the consumer”.

Source: https://curia.europa.eu/juris/document/document.jsf?mode=DOC&pageIndex=0&docid=277406&part=1&doclang=EN&text=&dir=&occ=first&cid=94681

The Court of Justice delivered a few days ago (14 September 2023) its judgment in case C‑821/21 (NM v Club La Costa (UK) plc, sucursal en España, CLC Resort Management Ltd, Midmark 2 Ltd, CLC Resort Development Ltd, European Resorts & Hotels SL), which is about Articles 18 and 63 Brussels I bis as well as Articles 3 and 6 Rome I:

“1. Article 18(1) of [Brussels I bis] must be interpreted as meaning that the expression ‘other party to a contract’, in that provision, must be understood as referring only to the natural or legal person who is a party to the contract in question and not to other persons, not parties to that contract, even if they are connected with that person.

2. Article 63(1) and (2) of Regulation No 1215/2012 must be interpreted as meaning that the determination, in accordance with that provision, of the domicile of the ‘other party to a contract’, within the meaning of Article 18(1) of that regulation, does not constitute a limitation of the choice which the consumer may make under that Article 18(1). In that regard, the clarifications provided in Article 63(2) concerning the concept of ‘statutory seat’ constitute autonomous definitions.

3. Article 3 of [Rome I] must be interpreted as not precluding a choice-of-law clause in the general terms and conditions of a contract or in a separate document to which that contract refers and which has been provided to the consumer, provided that that clause informs the consumer that he or she enjoys, in any event, under Article 6(2) of that regulation, the protection afforded to him or her by the mandatory provisions of the law of the country in which he or she has his or her habitual residence.

4. Article 6(1) of Regulation No 593/2008 must be interpreted as meaning that where a consumer contract fulfils the requirements set out in that provision and in the absence of a valid choice of law applicable to that contract, that law must be determined in accordance with that provision, which may be relied on by both parties to that contract, including the professional, notwithstanding the fact that the law applicable to the contract in accordance with Articles 3 and 4 of that regulation may be more favourable to the consumer”

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=277408&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=1961282

The Court of Justice delivered a few days ago (14 September 2023) its judgment in case C‑393/22 (EXTÉRIA s.r.o. v Spravime, s.r.o.), which is about Article 7(1)(b) Brussels I bis.

Decision: “Article 7(1)(b) [Brussels I bis] must be interpreted as meaning that a contract to enter into a future contract relating to the future conclusion of a franchise agreement which provides for an obligation to pay a contractual penalty based on non-performance of that contract to enter into a future contract, the breach of which serves as a basis for a claim, does not fall within the concept of a contract for the ‘provision of services’ within the meaning of that provision. In such a case, jurisdiction over a claim on which that obligation serves as a basis is determined, in accordance with Article 7(1)(a) of that regulation, by reference to the place of performance of that obligation”.

Facts: “The applicant in the main proceedings, which provides consultancy services in the field of occupational safety and health, and the defendant in the main proceedings concluded, on 28 June 2018, a contract to enter into a future contract relating to the future conclusion of a franchise agreement (‘the contract to enter into a future contract’) which would enable the defendant in the main proceedings to operate and manage franchised branches of the applicant in the main proceedings in Slovakia. That contract to enter into a future contract contained, in addition to the obligation to conclude that contract in the future, certain contractual terms and conditions and an undertaking on the part of the defendant in the main proceedings to pay an advance of EUR 20 400, exclusive of value added tax, and, in the event of failure to comply with that obligation, a contractual penalty equal to the amount of that advance (‘the contractual penalty’).

6 That advance, the purpose of which was not only to guarantee that obligation but also to preserve the confidentiality of all the information contained in that contract to enter into a future contract relating to the franchise concept of the applicant in the main proceedings, had to be paid within 10 days of the signing of that contract to enter into a future contract. In addition, the latter gave the applicant in the main proceedings the right to withdraw if the defendant in the main proceedings did not pay it the agreed fee within the prescribed period.

7 The contract to enter into a future contract provided for the application of Czech law, without any agreement on jurisdiction having been concluded.

8 Alleging that the defendant in the main proceedings had failed to fulfil its obligation to pay the advance in question, the applicant in the main proceedings withdrew from the contract to enter into a future contract and claimed payment of the contractual penalty.

9 To that end, it brought a European order for payment procedure before the Okresní soud v Ostravě (District Court, Ostrava, Czech Republic).

10 By order of 17 December 2020, that court dismissed the plea of lack of jurisdiction of the Czech courts raised by the defendant in the main proceedings and held that it had jurisdiction to hear the dispute at issue on the basis of Article 7(1)(a) of the Brussels I bis Regulation, since that dispute concerned the performance of an obligation, within the meaning of that provision, namely the obligation to pay the contractual penalty, which had to be performed at the place where the applicant in the main proceedings had its registered office.

11 In the appeal against that order, the defendant in the main proceedings invoked the jurisdiction of the Slovak courts on the ground that the obligation secured by that contractual penalty, which admittedly had its source in the contract to enter into a future contract, was nevertheless linked to the place of production and delivery of the goods under the franchise agreement which was to be concluded.

12 By an order of 16 February 2021, the Krajský soud v Ostravě (Regional Court, Ostrava, Czech Republic), as the court of appeal, upheld the decision at first instance, holding that the subject matter of the action was the right to payment of the contractual penalty on account of non-compliance, by the defendant in the main proceedings, of the terms of the contract to enter into a future contract and was therefore not related to the production or delivery of goods, so that Article 7(1)(b) of the Brussels I bis Regulation did not apply. Accordingly, jurisdiction should be determined in accordance with Article 7(1)(a) of that regulation, under which the court having jurisdiction is the court for the place of performance of the obligation in question, and that place must be determined in accordance with the law of the court seised, in the present case Czech law.

13 The defendant in the main proceedings brought an appeal on a point of law against that order before the Nejvyšší soud (Supreme Court, Czech Republic), the referring court, claiming that the nature of the right to payment of the contractual penalty had not been correctly assessed.

14 Referring to the Court’s settled case-law on the interpretation of the concept of ‘matters relating to a contract’ (judgments of 17 June 1992, Handte, C‑26/91, EU:C:1992:268, paragraph 15, and of 15 June 2017, Kareda, C‑249/16, EU:C:2017:472, paragraph 30), that court concludes that the dispute before it, concerning entitlement to payment of the contractual penalty, has its origin in the contract to enter into a future contract, so that that dispute falls within the concept of ‘matters relating to a contract’ within the meaning of Article 7(1) of the Brussels I bis Regulation.

15 Since, according to that court, that right is not linked to the production or delivery of goods, the application of the first indent of Article 7(1)(b) should be ruled out from the outset.

16 It is then necessary to determine whether it is not a right relating to a ‘provision of services’ within the meaning of the second indent of Article 7(1)(b) thereof.

17 The referring court points out that there are two possible solutions for the purposes of determining the court with international jurisdiction, namely one would be to classify the contract to enter into a future contract as an autonomous contract, and the other would be to determine the nature of the rights resulting from the contract to enter into a future contract on the basis of the nature of the contract to be concluded.

18 In the light of the Court’s case-law, the mere conclusion of a contract to enter into a future contract does not constitute a provision of services, within the autonomous meaning of EU law as a contract involving the performance of an activity by means of positive acts for the benefit of another person in return for remuneration (see, to that effect, judgments of 23 April 2009, Falco Privatstiftung and Rabitsch, C‑533/07, EU:C:2009:257; of 14 July 2016, Granarolo, C‑196/15, EU:C:2016:559; and of 25 March 2021, Obala i lučice, C‑307/19, EU:C:2021:236), so that the Nejvyšší soud (Supreme Court) is inclined to conclude that that contract to enter into a future contract does not fall within the scope of the second indent of Article 7(1)(b) of the Brussels I bis Regulation.

19      Consequently, in accordance with Article 7(1)(c) thereof, according to which Article 7(1)(a) applies if Article 7(1)(b) does not apply, the court with jurisdiction should be determined by reference to the place of performance of the obligation in question.

20 In so far as the Court has not yet expressly addressed the question whether a pactum de contrahendo can be classified as a ‘contract for services’, there is reasonable doubt as to the correct interpretation of Article 7(1)(b) of the Brussels I bis Regulation.

21 In those circumstances, the Nejvyšší soud (Supreme Court) decided to stay proceedings and to refer the following question to the Court for a preliminary ruling:

‘Must Article 7(1)(b) of [the Brussels I bis] Regulation be interpreted as meaning that the concept “contract for the provision of services” also includes a contract to enter into a future contract (pactum de contrahendo), in which the parties undertook to enter into a future contract that would be a contract for the provision of services, within the meaning of that provision?’”

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=277414&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=2440337

The Court of Justice delivered today (7 September 2023) its decision in case C‑832/21 (Beverage City & Lifestyle GmbH, MJ, Beverage City Polska Sp. z o.o., FE v Advance Magazine Publishers Inc.), which is about the conditions of application of Article 8 Brussels I bis:

“Article 8(1) of [Brussels I bis] must be interpreted as meaning that a number of defendants, domiciled in different Member States, may be sued in the courts for the place where one of them is domiciled before which, in the context of an infringement action, claims have been brought against all of those defendants by the proprietor of an EU trade mark where they are each accused of having committed a materially identical infringement of that trade mark and they are connected by an exclusive distribution agreement”.

Source : https://curia.europa.eu/juris/document/document.jsf?mode=DOC&pageIndex=0&docid=277065&part=1&doclang=EN&text=&dir=&occ=first&cid=478516

The Court of Justice delivered today (7 September 2023) its decision in case C‑590/21 (Charles Taylor Adjusting Ltd, FD v Starlight Shipping Co., Overseas Marine Enterprises Inc.), which is about a “quasi anti-suit injunction” and recognition and enforcement of judgments from other Member States:

“Article 34(1) of [Brussels I] read in conjunction with Article 45(1) thereof, must be interpreted as meaning that a court or tribunal of a Member State may refuse to recognise and enforce a judgment of a court or tribunal of another Member State on the ground that it is contrary to public policy, where that judgment impedes the continuation of proceedings pending before another court or tribunal of the former Member State, in that it grants one of the parties provisional damages in respect of the costs borne by that party on account of its bringing those proceedings on the grounds that, first, the subject matter of those proceedings is covered by a settlement agreement, lawfully concluded and ratified by the court or tribunal of the Member State which gave that judgment and, second, the court of the former Member State, before which the proceedings at issue were brought, does not have jurisdiction on account of a clause conferring exclusive jurisdiction”.

One of the key points: “the judgment and orders of the High Court [of England and Wales] could be classified as ‘“quasi” anti-suit injunctions’. While the purpose of that judgment and those orders is not to prohibit a party from bringing or continuing legal action before a foreign court, they may be regarded as having, at the very least, the effect of deterring Starlight and OME, together with their representatives, from bringing proceedings before the Greek courts or continuing before those courts an action the purpose of which is the same as those actions brought before the courts of the United Kingdom, which matter is, in any event, for the referring court to determine” (paragraph 27). The Court adds, at paragraph 28, that “An injunction having such effects would not […] be compatible with Regulation No 44/2001”.

Source: https://curia.europa.eu/juris/document/document.jsf?docid=277063&mode=req&pageIndex=3&dir=&occ=first&part=1&text=&doclang=EN&cid=434606

The Court of Justice delivered on 13 July 2023 its judgement in case C‑87/22 (TT v AK), which is about the interpretation of Article 15 Brussels II bis:

“1. Article 15 of Council Regulation (EC) No 2201/2003 […] must be interpreted as meaning that the court of a Member State, which has jurisdiction to rule on the substance of a case on the matter of parental responsibility under Article 10 of that regulation, may exceptionally request the transfer of that case, provided for by Article 15(1)(b) of the regulation, to a court of the Member State to which the child has been wrongfully removed by one of his or her parents.

2. Article 15(1) of Regulation No 2201/2003 must be interpreted as meaning that the only conditions to which the possibility for the court of a Member State with jurisdiction as to the substance of a case in matters of parental responsibility to request that that case be transferred to a court of another Member State is subject are those expressly set out in that provision. When examining those conditions in respect of, first, the existence in the latter Member State of a court better placed to hear the case and, second, the best interests of the child, the court of the first Member State must take into consideration the existence of proceedings for the return of that child which have been instituted pursuant to the first paragraph and point (f) of the third paragraph of Article 8 of the [1980 Hague] Convention on the Civil Aspects of International Child Abduction […] and in which a final decision has not yet been delivered in the Member State to which that child was wrongfully removed by one of his or her parents”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=275389&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=4466841