EAPIL blog

The European Commission has published in December 2022 an ambitious proposal for a new Regulation dealing with the private international law of parenthood (COM (2022) 695 final).

With this proposal, the EU could for the first time adopt a private international law instrument dealing with the creation (and not only the effects) of a family status. While both the CJEU and the ECtHR have somewhat limited the freedom enjoyed by States faced with parenthood established abroad, there is not yet any precedent of an international instrument dealing with all issues arising when parenthood crosses national borders.

The proposal is currently being discussed in the Council, with the assistance of the Commission. There is no guarantee that a Regulation will effectively be adopted. Nor is it possible to tell at this stage how much a future Regulation will deviate from the proposal.

The proposal raises, however, many intriguing questions which are likely to trigger an intense debate. It offers a unique opportunity to discuss the private international law treatment of parenthood with a special focus on the proposal.

During four sessions in May 2023, experts from various Member States will discuss the main elements of the proposal, find weaknesses and possibilities of improvement. Each webinar will start at 6 pm and end at 8 pm, and focus on two topics, each presented by one expert, who will discuss the content of the proposal and examine the questions and possible improvement it raises. There will be ample room for discussion.

The programme of the series is as follows:

• 3 May 2023, webinar chaired by Claire Fenton-Glynn: The EU Proposal on Parenthood: lessons from comparative and substantive law (Jens Scherpe), and What’s in it? Subject matter, scope and definitions (Cristina González Beilfuss)
• 10 May 2023, webinar chaired by Fabienne Jault-Seseke: The EU Proposal and primary EU law: a match made in heaven? (Susanne Gössl), and The law governing parenthood: are you my father? (Tobías Helms)
• 17 May 2023, webinar chaired by Nadia Rustinova: The mutual recognition of decisions under the EU Proposal: much ado about nothing? (Alina Ontanu), and Who decides on parenthood? The rules of jurisdiction (Maria Caterina Baruffi)
• 24 May 2023, webinar chaired by Steven Heylen: Authentic documents and parenthood: between recognition and acceptance (Patrick Wautelet), and The European certificate of Parenthood: a passport for parents and children? (Ilaria Pretelli)

The series of webinars is organized by Cristina González Beilfuss (Universitat de Barcelona), Susanne Gössl (Universität Bonn), Ilaria Pretelli (Institut Suisse de Droit Comparé), Tobias Helms (Universität Marburg) and Patrick Wautelet (Université de Liège) under the auspices and with the support of EAPIL, the European Association of Private International Law.

A post on this blog will announce the opening of registrations in mid-April 2023 and provide further details.

For inquiries, please contact sgoessl@uni-bonn.de.

“A rose is a rose is a rose”, goes the famous quote. It indicates a basic, intuitive truth: the words we use to designate things usually have the ability to evoke a specific imagery and the mainstream understanding of the “essence” of such things. Usually: this specification is essential in current EU private international law (EUPIL), which is based on judicial cooperation – and therefore communication – among 27 different legal systems, with all the difficulties this might entail. In particular, in this Tower of Babbel of legal languages, some of the legal concepts used by uniform EUPIL Regulations may carry an avoidable ambiguity and present problematic gray areas, where “a rose” might intuitively be “a rose” for some Member States, while appearing like a totally different exotic flower to the eyes of others.

This post focuses on the problems raised by the notions of “judgment” or “decision”, which are in turn strictly linked to the notion of “court”. In this respect, the principle of autonomous interpretation of EUPIL concepts, as established by the CJEU since 1976, seems to have undergone a certain evolution, and more recent case law has lent a remarkably multifaceted character to the interpretive approach to shape the meaning of those notions.  The preliminary ruling handed down by the CJEU on 15th November 2022 in C-646/20, Senatsverwaltung für Inneres und Sport, as well as the fact of this case, are particularly relevant for this purpose.

The Root of the Problem

The uncertainties surrounding the meaning of the notion of “judgment” in EUPIL stem from two main factors.

The first trigger lies in the limited competences of the EU, whose legislative action is bound by the principles of conferral, subsidiarity and proportionality. As a result, large areas of the Member States’ private and procedural laws remain, to the present days, untouched by the process of EU harmonization or approximation, with domestic legislators maintaining high degrees of discretion in shaping their internal laws. This is not necessarily a problem for private international law (PIL), whose raison d’être is, precisely, legal diversity. The problem of characterisation – ie the alternative between lege fori and lege causae – is a leitmotif of PIL and has engaged scholars over centuries. The “real problem” arises when EU law forces the private international lawyer to think out of the box of this traditional alternative, with the CJEU having since long established that, in interpreting the legal notions used by EUPIL instruments, “reference must be made not to the law of one of the States concerned but, first, to the objectives and scheme of [each instrument] and, secondly, to the general principles which stem from the corpus of the national legal systems’. This is the famous LTU v Eurocontrol principle, set out by case 29/76, § 3. I will come back to this principle in a moment.

The second trigger of said “communication difficulties” is inherent to, and exacerbated by, the current structure of EU law in general, and of EUPIL in particular. In the latter, the EU legislator has notably adopted a piecemeal approach to harmonization. As a result, EUPIL is composed by a wide array of subject-specific Regulations, each having a limited material scope of application and covering a particular sub-area of civil law. While the legal notions used across different EUPIL instruments could, in principle, profit from the principle of inter-textual interpretation to receive similar meanings (cf Recitals 7 of the Rome I and Rome II Regulations), the CJEU has warned against a too liberal use if this approach. In C-45/13, Kainz, the Court held that the objective of consistency cannot, in any event, lead to interpreting the notions used by a specific Regulation in a manner which is unconnected to the scheme and objectives pursued by the concerned instrument (§ 20). This is to say that the meaning of uniform legal concepts used by several EU law Regulations could undergo important sectoral variations in accordance with the specific material scope, scheme of objectives of each of them.

This problem acquires a particular importance in relation to some notions, such as the concept of “judgment”, that are used cross-cuttingly by almost all EUPIL Regulations. In a previous post, I pointed to the ambiguity of the term ‘court’ and to the different drafting techniques (and wordings) adopted by the EU legislator with respect to statutory definitions thereof. The same reasoning could be extended to the (bordering) notions of ‘judgment’ or ‘decisions’. The CJEU acknowledged the disrupting effect of these two triggers in a judgment rendered in April 2022, where it remarked that, owing to the limited (material) scope of application of EUPIL Regulations, and lacking a complete unification of Member States’ laws, ‘certain types of proceedings and court judgments in one Member State do not necessarily have an equivalent in the other Member States’ (Case C-568/20, H Limited, commented on this blog here and here). This is precisely the problem of  the “exotic rose”.

The LTU Criteria under a Growing Pressure?

Case C-646/20, Senatsverwaltung für Inneres und Sport is a good example thereof. As previously reported on this blog (here, here and here), this case concerned the recognition, in a Member State (Germany) of the dissolution of a marriage established in an agreement between spouses and pronounced by a civil registrar of another Member State (Italy).

Born from the objective of easing the burden on the court system and making divorce procedures swifter in the most “unproblematic” cases of dissolution of marriage by mutual consent, the Italian rules on extra-judicial divorces caused some interpretive doubts in Germany, where the recognition of the resulting divorce deed was sought. Ultimately, the question raised by the referring German court cut down to the definition (and the outer boundaries) of the notions of ‘judgment’ and ‘court’ retained by the Brussels IIa Regulation. Consistently with the general principle set in LTU, the starting point of the reasoning is that no weight should be given, for these purposes, to the explicit characterization established under Italian law, which specifies that the agreement concluded before the civil registrar replaces judicial decisions relating, in particular, to the procedure for dissolution and termination of the civil effects of the marriage (§§ 22-23 of the judgment).

It is worth stressing that the field of family law presents a particular challenge for the “second prong” of the LTU principle, ie for the interpretative value of the “general principles stemming from the corpus of the national legal systems”.

The LTU judgment was handed down in 1976, within the framework of a much more limited EUPIL (limited to the 1968 Brussels Convention) and a much smaller and less “legally diverse” Community (made of just nine States, with all the parties to this Convention belonging to the civil law tradition, since  the UK, Ireland and Denmark only acceded to it in 1978). The possibility of identifying some “general principles”, common or at least familiar to all of those legal systems, was not, at the time, such a preposterous idea. Indeed, in the second prong of LTU, the Court seemed to draw inspiration from both Savigny’s idea of the community of law and Rabels’ comparative approach to characterization.

Several decades later, and within the framework of a much bigger and more diverse Union, the viability and practical usefulness of said approach could be doubted, especially with respect those branches of private (and civil procedural) law that are characterized by remarkable variations at the domestic level. Over the last decade, several Member States have undertaken wide-ranging (and non-coordinated) reforms in a variety of fields, such as debt recovery or divorce law and divorce proceedings, having adopted in this respect a variety of solutions.

Concerning the latter, a common denominator of divorce reforms consists in the momentum gained by extrajudicial divorces, which have been introduced by 9 Member States (see here for the complete legal references to these reforms). Besides this general common feature (the devolution of divorce proceedings to a non-judicial body), the system set in place by said reforms vary greatly from country to country.

Firstly, there is no common solution as concerns the identification of the (non-judicial) authority empowered to hear divorce proceedings. Portugal, Italy and Estonia have chosen to delegate such proceedings to the Civil Registry Office. In Estonia, this competence is shared with the notary. The notary is also the designated authority for Latvia, Romania, France, Greece, Spain and Slovenia. Secondly, there is no common take on the breath of the devolution of divorce proceedings to non-judicial authorities. It seems (this premise is essential given the language barrier and the scarce information available in English with respect to certain jurisdictions) that in some Member States, these non-judicial authorities exercise a mandatory and exclusive jurisdiction over divorce proceedings. This means, in practice, that there is no alternative (i.e., judicial) procedural avenue open to applicants who wish to get divorced by mutual consent.

Combined together, these factors make it particularly difficult to envision the existence of the “general principles stemming from the corpus of the national legal systems” in the field of (extrajudicial) divorce.

A Practical Guide to Deciphering the “Scheme and Objectives” of EUPIL Instruments

In the light of the above, it is not surprising  that, in Senatsverwaltung für Inneres und Sport, the CJEU relied primarily on the first prong of the LTU principle, that is the “scheme and objectives” of the Brussels IIa Regulation. In particular, this judgment is especially interesting for the way in which the Court approaches the assessment thereof:  this analysis proceeds through several steps, in which the Court mobilizes distinct interpretive elements to shed better light on the scheme and/or objectives of the Brussels Ia Regulation.

My impression is that this approach, and said elements, are deemed to acquire increasing importance in future cases, especially in areas where the second prong of the LTU principle – ie the “general principles stemming from the corpus of the national legal systems” – is not of much help owing to the uncoordinated and diverse evolution of the domestic laws of Member States.

These “general interpretive guidelines” can be summarized as follows:

1. The importance of the letter of the law (and of statutory definitions)

After having recalled the principle of autonomous interpretation of the notions used by the Brussels IIa Regulation, and particularly by its Articles 2 (4) and 21 (§ 41 of Senatsverwaltung für Inneres und Sport), the CJEU summarizes the general objectives pursued by this instrument (§§ 42-45).

The judgment places particular emphasis on the broad wording used by Article 2 (1) and (4) of these Regulation, pursuant to which “the term court shall cover all authorities in the Member States with jurisdiction in the matters falling within the scope of the [Brussels IIa] Regulation pursuant to Article 1”, whereas the notion of “judgment” shall include, inter alia, “a divorce…whatever the judgment may be called…”.

Siding on this point with the Opinion of AG Collins, who also referred to the wide definition of “judge” adopted by Article 2(2) (§ 35), the CJEU concluded that the Brussels IIa Regulation is “is capable of covering divorces which have been granted at the end of both judicial and extrajudicial proceedings, provided that the law of the Member States also confers jurisdiction in relation to divorce on extrajudicial authorities ”.

As I have already remarked elsewhere, however, EUPIL statutory definitions of “court” vary greatly from instrument to instrument, as concerns both their specific contents and the drafting technique (see a recap table here). This circumstance must be born in mind when trying to transplant interpretive solutions from one EUPIL instrument to another.

2. The importance of ‘inter-textual’ interpretation.

It is also significant to note that, in Senatsverwaltung für Inneres und Sport, the CJEU itself resorts to inter-textual interpretation. In that case, however, the Court adopts a “vertical”, rather than a “horizontal” approach: that is to say, reference is made not to EUPIL instruments covering tangential subject-matters, but to the evolution (if any) of a single instrument over time, through subsequent recasts.

In support of the broad reading of the notion of judgement resulting from the wording of Article 2(4), the CJEU referred to the considerably clearer stance taken on this point by the successor of Regulation 2201/2003 (§ 58). In particular, Recital 14 of the Brussels IIb Regulation states that “any agreement approved by the court following an examination of the substance in accordance with national law and procedure should be recognized or enforced as a decision”. On this point, the Court accepts the Commission’s submission whereby the Brussels IIb Regulation is no innovation in the pre-existing legal regime, its Recital 14 being therefore useful to clarify the notions used by the Brussels IIa Regulation (§ 61; see, in this respect, the opposite stance taken by the German Government, summarized in §§ 52 and 53 of the AG Opinion).

3. The importance of preparatory works.

While the “vertical” approach is, in theory, less risky than the “horizontal” one, insofar as it should not expose to the dangers of evoked by Kainz, it may require to invest considerable efforts in researching preparatory woks. Very often, the legislator’s intent is not clearly expressed by the initial Proposal made by the EU Commission, but emerges later on in the debates within the Parliament or in other exchanges held during the legislative process.

This was the case as concerns the definition of court in the Brussels IIb Regulation. Even though the Commission’s Proposal already made clear that the scope of the Recast should have been limited to matters of parental responsibility (and should therefore not have touched too much upon most of the general definitions set by Article 2) a political discussion about the notion of court topic took place and appeared for the first time in this document, well into the negotiation phase. An explicit proposal to include a Recital dedicated to this issue emerged later on (see this document).

In proceedings before the CJEU, important insights on the unfolding of the legislative process may come from the Commission’s observations, which are systematically filed in all EUPIL preliminary references (see here). Outside this specific context, however, researching the original intent of the EU legislator might be quite burdensome for the “average interpreter”, in cases where this intent does not clearly stand out in the Commission’s proposal.

4. The importance of the type of examination (on the merits) involved in extrajudicial proceedings.

As specifically concerns the notions of “judgment” or “decision”, and “court” or “tribunal”, the most important criterion used by the CJEU remains the assessment of the type of functions performed by the seized domestic authority.

This approach is used by the CJEU even outside the field of EUPIL (for example, in order to identify the “courts or tribunals” of a Member State for the purposes of Article 267 TFUE), with important sectoral variations. In fact, the Court has always stressed that the uniform meaning of these notions (and of “court” in particular) in EU Law must be fitted to the specific context in which they are called to operate.

In this respect, Senatsverwaltung für Inneres und Sport is no exception, as the most important in the clarification provided by Recital 14 of the Brussels IIb Regulation consists, precisely, in  the explicit identification of the constitutive element of a “decision” in the field of family law and parental responsibility. This “constitutive element” is of fundamental importance for distinguishing “decisions” from the two other types of legal acts contemplated by that Regulation, ie the “authentic instrument” on the one side, and the “agreements that are neither a decision nor an authentic instrument, but have been registered by a public authority competent to do so”, on the other side.

According to the CJEU, the decisive element in the definition of decision is the existence of a prior examination, made by or under the supervision of the competent (public) authority, of the substance of the matter. While the AG endeavored to demonstrate the substantial identity of the tasks performed by the authority conducting a procedure of divorce by mutual consent, which remain essentially the same in a judicial and in an extrajudicial setting (§ 41 of the Opinion), the CJEU focused on the substantive content of these tasks (§§ 54, 57 and 63-66).

What shall an “examination of the substance of the matter” entail, according to the Court?

First, referring to Solo Kleinmotoren, the CJEU reasserts that the competent authority “must retain control over the grant of the divorce”, which implies the examination of the content of the divorce agreement in the light of the applicable provisions of national law, with a view to verify whether the legal requirements set therein are satisfied, as well as the existence and validity of the spouses’ consent to divorce (§§ 54-55). This aspects marks an important difference between consensual divorces and other types of settlement which are “essentially contractual in nature”, as the tasks of the competent authority are limited to the “passive” recording of an agreement, without any examination of its content in the light of the legal provisions in force (§ 57).

Second, the Court attached specific importance to the binding nature of the agreement drafted by the Italian civil registrar (§ 63), as well as to the means and formalities for the examination of the validity and existence of the spouses’ consent (§ 64).

Combined with the analysis of the tasks relating to the examination of the content of the agreement in the light of the Italian legal provisions on extrajudicial divorces (§ 65), these elements led the CJEU to consider that the Italian Civil Registrar retained sufficient control over the grant of the divorce, the resulting agreement being therefore a “judgment” within the meaning of Article 2 (4) of the Brussels IIa Regulation, interpreted in the light of Recital 14 of the Brussels IIb Regulation.

5. The importance (if any) of practical and/or “political” considerations.

As seen above, the arguments drawn from the inter-textual interpretation of the Brussels Ia and Brussels IIb Regulations played a significant role in supporting the solution finally retained in Senatsverwaltung für Inneres und Sport. Such inter-textual reading  was deployed by the CJEU to reinforce the argument based directly on the “open-ended” statutory definitions set out by Article 2 of the Brussels IIa Regulation.

In this respect, the Court accepted the Commission’s view that, in adopting the newest Regulation, “the EU legislature was not seeking to innovate and introduce new rules, but only to ‘clarify’, on the one hand, the scope of the rule already laid down in Article 46 of the Brussels IIa Regulation and, on the other hand, the criterion for distinguishing the concept of ‘judgment’ from those of ‘authentic instrument’ and ‘agreement between the parties’, namely the criterion relating to the examination of the substance” (§61). As a result, the CJEU could hold that “that interpretation of the concept of ‘judgment’ cannot be invalidated by the fact that no Member State had yet made any provision in its legislation, at the time of the development and adoption of the Brussels IIa Regulation, for the option for spouses to divorce through extrajudicial means” and that this “interpretation follows directly from the broad and open definitions of the concepts of ‘court’ and ‘judgment’ referred to in Article 2(1) and (4) of that regulation” (§ 50).

This “temporal dimension” of the evolution of extrajudicial divorces across EU Member States was approached much more pragmatically by AG Collins. Without referring to the alleged continuity between the two Regulations, and deeming the latest Recast incapable of supporting “any conclusions…for the purposes of interpreting Regulation 2201/2003” (§ 54, last sentence), AG Collins derived a separate duty, for the judiciary, to interpret “clearly open” definitions set out by EU law “in the light of present day circumstances” (§ 54). “The law cannot cut itself from society as it is, and must not fail to adjust to it as quickly as possible, since it would otherwise risk imposing outdated views and adopting a static role”, he contended. Therefore, “in accordance with that view, EU law must be interpreted in a dynamic manner, in order to avoid it becoming ‘fossilised’”.

While the solution adopted the CJEU is to be appreciated for its strong foundations in the letter of the law and the clear legislative intent behind said EUPIL Regulations, the approach proposed by AG Collins is certainly alluring from an academic point of view. It is in fact indisputable that, at the time the Brussels Ia was adopted, no Member State had introduced extrajudicial divorces in its national legal order. Portugal was the first Member State to proceed in this sense, followed in 2010 by three additional Member States (Estonia, Romania and Latvia). Italy followed in 2014 with the procedure analyzed by the CJEU in Senatsverwaltung für Inneres und Sport, tailed by Spain (2015) and France (2016). Finally, in 2017, the new family law code of Slovenia and the Greek law No. 4509/2017 completed the current picture. Seen from this standpoint, it is quite clear that extrajudicial divorces have recently become a veritable legislative trend, which is slowly acquiring a pan-European dimension.

Against this evolving backdrop, AG Collins’ warning against the risks of a “fossilised” EUPIL, no longer suitable for the needs of its final users, reflected a serious concern and evokes the “political dimension” of this field of law remarked by Professor Kinsch in his Hague Academy Course. The latter is linked, among others, to a consistent rhetoric of the EU Commission, which tends to highlight the benefits and advantages that “mobile citizens” can derive from the unified and pan-European EUPIL regimes.

In this vein, the Commission’s initial Proposal for the Brussels IIb Regulation stressed that a Recast was needed in conformity with the objectives set by the Juncker Commission’s Political Guidelines. According to these Guidelines, judicial cooperation among EU Member States had to “be improved step by step keeping up with the reality of increasingly mobile citizens across the Union getting married and having children, by building bridges between the different justice systems and by mutual recognition of judgments, so that citizens can more easily exercise their rights across the Union”. In line with these objectives, the Commission is presenting the new rules as a tangible proof that “the EU works to protect our children and families, ensuring that Member States enforce each other’s judicial decisions” (see the promotional video available here). In particular, “considering the growing number of Member States which allow out-of-court agreements on legal separation and divorce or on matters of parental responsibility, the new rules will facilitate the circulation of [authentic] instruments and [out-of-court] agreements” (here).

In the end, this “pragmatic argument” based on the consideration that EUPIL should keep in touch with an evolving reality in order to serve properly the interests of its final intended users, found no space in the Senatsverwaltung für Inneres und Sport, but could hypothetically become an additional interpretive tool in future cases, in those field of substantive private law presenting a similar evolution.

The fourth issue of 2022 of the Rivista di diritto internazionale privato e processuale (RDIPP) is out. In addition to recent case law and other materials, it features five contributions.

Christian Kohler, Private International Law Aspects of the European Commission’s Proposal for a Directive on Slapps (“Strategic Lawsuits Against Public Participation”)

The Commission’s proposal for a Directive on SLAPPs (“Strategic lawsuits against public participation”) aims at protecting journalists and human rights defenders who engage in public debates from manifestly unfounded or abusive court proceedings with cross-border implications. Inter alia, it protects SLAPP defendants against judgments from third countries that would have been considered manifestly unfounded or abusive if they had been brought before the courts or tribunals of the Member State where recognition or enforcement is sought, and allows SLAPP defendants to seek compensation of the damages and the costs of the third country-proceedings before the courts of the Member State of his or her domicile. The article examines the conflicts rules in question and discusses the broader private international law context of the proposed Directive, in particular the rules of jurisdiction and the mosaic approach of the CJEU for the interpretation of Article 7(2) of Regulation Brussels Ia. In order to limit the forum shopping potential of the present rules on jurisdiction and applicable law in defamation cases, an intervention by the EU legislator should be envisaged. 

Pietro Franzina, Il Contenzioso Civile Transnazionale sulla Corporate Accountability (Cross-Border Civil Litigation on Corporate Accountability)

Civil proceedings are brought with increasing frequency against corporations for allegedly failing to prevent or mitigate the adverse impact of their activity on the protection of human rights and the environment. Most of these proceedings are initiated by non-governmental organisations whose activity consists in safeguarding or promoting the collective interests at issue, or otherwise benefit from support provided by such organisations. A cross-border element is almost invariably present in these proceedings, as they often involve persons from different countries and/or relate to facts which occurred in different States. Litigation in matters of corporate accountability is, distinctively, strategic in nature. The aim pursued by those bringing the claim does not consist, or at least does not only or primarily consist, in achieving the practical result that the proceedings in question are meant, as such, to provide, such as compensation for the prejudice suffered. Rather, the goal is to induce a change in the business model or industrial approach of the defendant (and, possibly, of other corporations in the same field or with similar characteristics) and increase the sustainability of their corporate activity at large. The paper gives an account of the factors that determine the impact of the described proceedings, that is, the ability of those proceedings to effectively prompt the pursued change. The analysis focuses, specifically, on the factors associated with the rules of private international law, chiefly the rules that enable the claimant to sue the defendant before the courts of one State instead of another. The purpose of the article is not to examine the latter rules in detail (actually, they vary to a large extent from one State to another), but to assess the strategic opportunities, in the sense explained above, that the rules in question may offer to the claimant, depending on their structure and mode of operation.

Lenka Válková, The Commission Proposal for a Regulation on the Recognition of Parenthood and other Legislative Trends Affecting Legal Parenthood

The developments in science and changing family patterns have given rise to many problems, including those of non-recognition of parenthood, which affects mostly children of same-gender parents and children in cases of surrogacy. The basic drivers of the current difficulties in recognising parenthood lie in the differences of the national rules on the establishment and recognition of parenthood and the lack of the uniform conflict rules and rules on recognition of judgments in the area of parenthood. Despite the numerous case-law of CJEU and ECtHR, which plays a crucial role in allowing flexibility in law with regard to parenthood, there is still no legal instrument which provides for a clear framework seeking to outline a consistent and systematic approach in this area. In 2021 and 2022 three important legislative actions have been taken. The Parenthood Proposal for a Regulation on jurisdiction, applicable law, recognition of decisions has been published on 7 December 2022. At the same time, the Final Report of the Experts Group on the Parentage/Surrogacy Project of the HCCH has been issued on 30 November 2022. Moreover, the Report on Review of the Implementation of the European Convention on the Legal Status of Children Born Out of Wedlock has been prepared in November 2021 as a preliminary step to a possible future update of the substantive law provisions of the Convention. All regulatory initiatives are addressed in this article, with a special focus on the Parenthood Proposal. In particular, this article offers a first appraisal of the Parenthood Proposal in light of other two legislative efforts and examines whether the works on international level may eliminate the need for an action concerning recognition of parenthood at EU level.

Stefano Dominelli, Emoji and Choice of Court Agreements: A Legal Appraisal of Evolutions in Language Methods Through the Prism of Art 25 Brussels Ia Regulation

Starting from the consideration that emoji and the alike are becoming increasingly common in computer-based communication, this article transposes current debates in material law surrounding emoji and their aptitude to express intent into the field of choice of court agreement through the prism of Art 25 Brussels Ia Regulation. The aim of this article is to develop some hypotheses and methods for the assessment of emoji in the conclusion of choice of court agreements.

Michele Grassi, Revocazione della Sentenza Civile per Contrasto con la Convenzione Europea per la Salvaguardia dei Diritti dell’uomo e delle Libertà Fondamentali (Revocation of a Civil Judgment for Conflict with the European Convention for the Protection of Human Rights and Fundamental Freedoms)

This article comments on the recent reform of the Italian Code of Civil Procedure, with a specific focus on the introduction of the possibility to seek revocation of a civil judgment conflicting with a decision of the ECtHR. The possibility to re-open proceedings in breach of the ECHR was not contemplated by the previous rules applicable to the matter, and the Italian Constitutional Court had excluded that the obligation of Contracting States to conform to the judgments of the ECtHR could imply the need to review national res judicata in civil or administrative law matters. Against this background, this article examines the new mechanism of review of national decisions introduced by the recent reform, pointing out that such mechanism has been designed to apply in limited circumstances and that, consistently with the reparatory perspective adopted by the Italian Constitutional Court, it gives little to no consideration to the obligation of cessation of international wrongful acts consisting in violations of human rights protected by ECHR.

Erik Sinander (Stockholm University) has published an article titled The Role of Foreseeability in Private International Employment Law in the first issue of the brand new Nordic Labour Law Journal.

The abstract reads as follows:

The EU’s private international employment law rules contain several measures intended to protect employees. Hence, unlike in the case of general contracts, one party (the employee) is given more forum shopping alternatives than the other (the employer), party autonomy is limited for employment contracts, and the objectively applicable law is based on the idea that the law of the place where labour is performed shall govern the contract. In this article, I argue that these protective measures are illusory and undermined in practice by the lack of foreseeability that is built into the choice of law rules. The conclusion of the article is that although it might be important to include protective measures in choice of law rules, the overarching principle for private international law rules should be to guarantee foreseeability. Paradoxically, EU private international employment law is highly unforeseeable, which, I argue, undermines the employee protection measures that are inserted into the EU private international employment law rules.

On 30 March 2023, just before the Easter holidays, the Court of Justice will deliver two judgments on the interpretation of private international law instruments.

The first ruling refers to case C-343/22 PT (Injonction de payer de droit suisse), where the German Bundesgerichtshof required the interpretation of the Lugano Convention of 2007:

Must Article 34(2) of the Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters of 30 October 2007 (‘the Lugano Convention’) be interpreted as meaning that the statement of claim in an action seeking repayment of a debt, which was brought after a Swiss order for payment (Zahlungsbefehl) had been issued previously and which did not include an application for the annulment of the objection (Rechtsvorschlag) lodged against the order for payment, constitutes the document which instituted the proceedings?

The facts of the case can be summarized as follows. Upon application by the claimant, the Debt Enforcement Office of Geneva issued an order for payment in respect of claims for rent against the defendant, resident in Germany. The order was served on the defendant on 19 January 2013. On 28 January 2013, he lodged an objection (Rechtsvorschlag) against it in accordance with Swiss Law.

The claimant subsequently brought an action against the defendant before the Court for Lease and Tenancy Matters of the Canton of Geneva; he did not include an application for the annulment of the objection. The court attempted to serve the statement of claim, written in French, on the defendant at the address where he resides in Germany. The defendant refused to accept service because a German translation was not attached. In the further course of the procedure, the defendant did not receive any further information about the proceedings.

By a judgment of 30 January 2014, the court ordered the defendant to pay CHF 4 120.70 plus interest. The objection to the order for payment was not annulled. The judgment was served by public notice.

The claimant applied for a declaration of enforceability of the judgment in Germany in accordance with Articles 38 and 53 of the Lugano Convention. The Regional Court granted the application; the appeal brought by the defendant before the Higher Regional Court was dismissed. According to the Higher Regional Court, Article 34(2) of the Lugano Convention does not preclude recognition of the judgment: the defendant had been served in a manner that precluded the ground for refusal under Article 34(2) of the Lugano Convention. In this regard, the order for payment served on the defendant on 19 January 2013 is to be considered as the document instituting the proceedings. By virtue of that order, the defendant was informed about the claims for rent against him, and, as demonstrated by the objection of 28 January 2013, he was also able to participate in the proceedings in a manner that safeguarded his rights.

Moreover (always according to the Higher Regional Court) the recognition of the Swiss judgment does not infringe Article 34(1) of the Lugano Convention. A breach of public policy was ruled out in any event because the defendant did not assert the defences by means of which he would have defended himself against the claims asserted.

The Court of Justice will decide represented by a chamber of three judges, with M. Safjan reporting.

On the same day, the Court will publish its decision on case C-651/21 М. Ya. M. (Renonciation à la succession d’un cohéritier). I reported on the facts here. The Sofiyski rayonen sad (District Court, Sofia, Bulgaria) had referred these questions for a preliminary ruling on Regulation 650/2012:

(1) Is Article 13 of [Regulation No 650/2012], read in conjunction with the principle of the protection of legal certainty, to be interpreted as precluding, after an heir has already had registered with a court of the [Member] State in which he or she is habitually resident his or her acceptance or waiver of the succession of a deceased person who was habitually resident in another [Member] State of the European Union at the time of his or her death, a request to have that waiver or acceptance subsequently registered in the latter State?

(2) If the answer to the first question is that such registration is permissible, is Article 13 of [Regulation No 650/2012], read in conjunction with the principles of the protection of legal certainty and the effective implementation of EU law, and the obligation of cooperation between [Member] States under Article 4(3) TEU, to be interpreted as permitting a request for the registration of a waiver of the succession of a deceased person effected by an heir in the [Member] State in which he or she is habitually resident by another heir residing in the State in which the deceased was habitually resident at the time of his or her death, irrespective of the fact that the procedural law of the latter State does not provide for the possibility of having a waiver of a succession registered on behalf of another person?

In his opinion, delivered on 10 November 2022, Advocate General M. Szpunar had proposed that the Court answers:

(1) Article 13 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession does not preclude, after an heir has had registered with a court of the Member State in which he or she is habitually resident his or her acceptance or waiver of the succession of a deceased person who was habitually resident in another Member State at the time of death, another heir from subsequently requesting registration of that declaration in the latter Member State.

(2)     Article 13 of Regulation No 650/2012 must be interpreted as not precluding a co-heir other than the person who made the declaration of waiver in the Member State of his or her habitual residence from informing the court dealing with the succession of the existence of that declaration.

Here, a chamber of three judges will decide with M. Ilešič acting as reporting judge.

Lotario Benedetto Dittrich (University of Trieste) has written a Study at the request of the JURI committee of the European Parliament on Ensuring Efficient Cooperation with the UK in civil law matters.

The abstract reads:

This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the JURI Committee, analyses the implications of Brexit in relation to the profile of judicial cooperation in civil matters. It examines the existing legal framework in order to identify the areas of law in respect of which there is a gap in the relationship between the EU and the UK. It assesses the consequences of the UK’s failure to accede to the 2007 Lugano Convention. Concludes that the conclusion of new treaties between the EU and the UK should be pursued in relation to those areas where there is a regulatory gap, with particular reference to the area of human rights.

And from the executive summary:

The paper is divided into seven chapters.

In the first chapter, the effects of the Withdrawal Agreement in the field of civil judicial cooperation are outlined, with particular reference to the residual applicability of the individual European Regulations in relations with the UK in the so-called transitional period, that is, from the entry into force of the Withdrawal Agreement until December 31, 2020. The reasons why the revival of the 1968 Brussels Convention is not conceivable are also explained.

It then goes on to examine the “body of law” consisting of the Hague Conventions (1961 Apostille Convention; 1965 Service Convention; 1970 Evidence Convention; 1970 Divorce Convention; 1980 Child Abduction Convention; 1996 Child Protection Convention; 2005 Choice of Court Convention; 2007 Child Support Convention) to see which of them and to what extent still apply to the relationship between the EU and the UK.

The third chapter discusses the content of the so-called EU Reitaned Laws, i.e., the set of UK rules transposing sectors of EU legislation into that country’s legal system. The continued applicability of the Rome I and Rome II Regulations and their effects in relations with the EU will be the subject of analysis, as well as, conversely, the superseded inapplicability of European simplified procedures and exclusion from the European Judicial Network.

The fourth chapter is specifically devoted to an analysis of the most relevant gaps left by Brexit in the area of, in particular, the following matters: legal separation and divorce, maintenance obligations, successions, notifications, taking of evidence, public documents, access to justice, mediation, and insolvency.

Particular attention is paid in Chapter Five to the effects resulting from the United Kingdom’s non accession to the 2007 Lugano Convention.

Indeed, as is well known, on June 28, 2021, the European Commission submitted a Note Verbale to the Swiss Federal Council as the Depositary of the Lugano Convention, in which it denied its consent to the UK’s application for accession.

The effect of the UK’s accession to the aforementioned Lugano Convention would have been that
Regulation No. 44/2001, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (so-called Brussels I), would also apply to it. This accession would have entailed renewed UK participation in the European judicial area, albeit without the automatic recognition of court decisions introduced only by the subsequent Regulation No. 1215/2012 (so-called Brussels I bis).

The effects on the legal services market of the UK’s exclusion from the European legal system are also analysed. Indeed, there is the emergence of specialized commercial courts, located in several EU countries, which are bidding to be alternative judicial hubs to the London courts. Such competition would be fostered by the easier circulation of judicial orders rendered by EU courts in the European legal space than judicial orders rendered by UK courts.

The study dwells on the actual likelihood of success of such initiatives, raising the possibility in the
future of the establishment at the EU level of a single court specializing in commercial matters, which could more effectively undermine the continued attractiveness of London courts.

The study then turns to viable remedies to prospectively reduce the impact of Brexit in the area of rights protection, with particular reference to individuals, families and Small Medium Enterprises (SMEs).

In particular, a possible path is outlined, as a result of which covenanted regulations can be introduced in the following matters: divorce and legal separation, alimentary obligations, Small Claims, and cross border insolvencies.

Finally, special attention is given to the phenomenon of Strategic Lawsuits Against Public Participation (SLAPPs), the subject of a European Commission proposal for a directive, concluding as to the desirability of agreements involving the UK as well, in order to ensure broader protection for freedom of the press and opinion, limiting phenomena of forum shopping and possible circumvention of decisions on the subject.

In summary, the study pragmatically suggests that the parties establish negotiations on specific and limited matters of particular social relevance as a first step in rebuilding a system of international cooperation between the EU and the UK.

At the same time, the study points to the existence of areas in which economic competition is currently taking place in the area of legal services.

Thanks to Jorg Sladic for the pointer.

The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published. The table of contents is available here. The following abstracts have been kindly provided to us by the editor of the journal.

H.-P. Mansel, K. Thorn and R. Wagner, European conflict of laws 2022: Movement in international family law

This article provides an overview of developments in Brussels in the field of judicial cooperation in civil and commercial matters from January 2022 until December 2022. It presents newly adopted legal instruments and summarizes current projects that are making their way through the EU legislative process. It also refers to the laws enacted at the national level in Germany as a result of new European instruments. Furthermore, the authors look at areas of law where the EU has made use of its external competence. They discuss both important decisions and pending cases before the CJEU as well as important decisions from German courts pertaining to the subject matter of the article. In addition, the article also looks at current projects and the latest developments at the Hague Conference of Private International Law.

N. Elsner and H. Deters, Of party requested service by post and courts as transmitting agencies under the EU Service Regulation

On 1 July 2022, the EU Regulation on the Service of Documents No. 1784/20 (Recast) (EU Service Regulation) took effect and changed the law on service by postal services in cross-border proceedings. This calls for a revisiting of the divergent opinions and ways of interpretation of service by postal services according to Art. 14 EU Service Regulation 2007 and its relation to Art. 15 EU Service Regulation 2007. Against this background, this article discusses a decision of the Higher Regional Court Frankfurt (OLG Frankfurt) holding that service by postal services pursuant to Art. 14 EU Service Regulation 2007 is in principle only open to a court when effecting service in cross-border proceedings. A party shall affect service according to Art. 15 EU Service Regulation 2007 by contacting directly the foreign authorities designated to effect service in the other member state.
Firstly, the reasoning of the court and the opinions in legal scholarship on the admissibility of service by postal services effected by parties are assessed critically. Subsequently, the authors propose a different application of Art. 14 and 15 EU Service Regulation 2007 in Germany. It will be argued that the OLG Frankfurt was indeed correct in stating that service by postal services must be effected through a transmitting agency according to Art. 2 EU Service Regulation 2007. Under German law, only courts are considered transmitting agencies. However, this does not preclude parties from effecting this type of service. When parties are required to effect service themselves under German law, they may send the documents to the court, inform the court of the address of the other party and apply for service in accordance with Art. 14 EU Service Regulation 2007. The court then acts as a mere transmitting agency on behalf of the party, and thus, in its administrative capacity.

S. Schwemmer, Direct tort claims of the creditors of an insolvent company against the foreign grandparent company

In its ruling of 10 March 2022 (Case C-498/20 – ZK ./. BMA Nederland), the ECJ had to deal with a so-called Peeters/Gatzen-claim under Dutch law brought by the insolvency administrator. The court had already ruled in an earlier judgement that these claims fall under the Brussels I Regulation (recast). So the main question was now where the harmful event occurred within the meaning of Art. 7 para. 2 of the Regulation. The ECJ opts for the seat of the insolvent company, basing its analysis on the differentiation between primary damage and consequential damage. The same analysis is also used to determine the applicable law under the Rome II Regulation. In this context, however, the ECJ examines more closely the specific breach of duty of care to determine whether the claim falls under the scope of the Rome II Regulation or under the rules of international company law.

A. Kronenberg, Disapproved overriding mandatory provisions and factual impossibility

Two years after the Higher Regional Court (Oberlandesgericht, OLG) of Frankfurt am Main, the OLG Munich also had to rule on a lawsuit filed by an Israeli against Kuwait Airways. The plaintiff had demanded to be flown from Munich to Sri Lanka with a stopover in Kuwait City in accordance with the contract the parties had concluded. The OLG Munich dismissed the claim with regard to a Kuwaiti Israel boycott law, which, although inapplicable, according to the court had the effect that it was factually impossible for the defendant airline to transport Israeli nationals with a stopover in Kuwait. The ruling shows that in cases of substantive law level consideration of disapproved foreign overriding mandatory provisions the legally required result can be undesirable. However, this result depends on the circumstances of the individual case as well as on certain prerequisites that must be observed when taking into consideration overriding mandatory provisions. The article sets out these prerequisites and shows why the OLG Munich probably should have ordered the defendant to perform its obligation. It also explains why, in cases in which factual impossibility indeed exists, the result of the dismissal of the action most likely cannot be changed even by enacting a blocking statute.

C. Thomale and C. Lukas, The pseudo-foreign British one man-LLC

The Higher Regional Court of Munich has decided that a Bristish one man-LLC, which has its real seat in Germany, under German conflict of laws and substantive rules lacks legal personality altogether. This case note analyzes this decision’s implications for the conflict of company laws, notably for the interpretation of the TCA and application of the so-called “modified real seat theory”.

M. Brinkmann, Discharge in England and subsequent declaratory judgement against debtor in Germany – Binding effects of judgement trump recognition of prior bankruptcy proceedings

The Higher Regional Court Düsseldorf (OLG Düsseldorf) had to decide upon an action for the payment of damages based on a declaratory judgement. The declaratory judgement had established the defendant’s liability and was, at the time, not challenged by the defendant. In his defense against the action for payment the defendant now tries to invoke a discharge, which he had already obtained in insolvency proceedings in the UK in March 2012, i.e. prior to the declaratory judgement.
The OLG argued that under the applicable EIR, the English insolvency proceedings were, in principle, subject to automatic recognition. Under Art. 17 EIR 2002, these proceedings produce the same effects in all Member States. The OLG Düsseldorf nevertheless precluded the defendant from invoking the discharge. As the English bankruptcy proceedings were concluded before the action for the declaratory judgement was initiated, the defendant should have invoked the discharge already in the proceedings that led to the declaratory judgement in March 2013.
The OLG correctly found that the declaratory judgement was procedurally binding between the parties and hence barred the defendant from invoking the discharge in subsequent proceedings.

M. Andrae, Modification or suspension of enforcement of a decision under Article 12 of the Hague Child Abduction Convention?

The article discusses which procedural options exist if, after a final decision pursuant to 12 Hague Convention on the Civil Aspects of International Child Abduction, circumstances arise which would justify the refusal of an application for the return of the child. A procedure to change the decision is only permissible if the international jurisdiction of the German courts exists. For child abduction from EU Member States, this is determined in principle according to Art. 9 of the Regulation (EU) n 1111/2019 and for child abduction from other Contracting States of The Hague Protection of Children Convention according to Art. 7 of the Convention. As long as jurisdiction thereafter lies with the courts of the state in which the child was habitually resident immediately before the removal or retention keep, the German courts are limited to ordering the temporary stay of enforcement.

J. Oster, Facebook dislikes: The taming of a data giant through private international data protection law

Just as the Data Protection Directive 95/46/EC, the General Data Protection Regulation (GDPR) suffers from a deficit concerning both its public and its private enforcement. Among other things, this deficit is owed to the fact that European data protection law still raises many questions regarding jurisdiction and the applicable law. In its interlocutory judgment that will be discussed in this article, the Rechtbank Amsterdam established its jurisdiction and declared the GDPR as well as Dutch data protection and tort law applicable to a lawsuit by the Dutch Data Protection Foundation for alleged violations of rules of data protection and unfair competition. This article agrees with the Rechtbank’s findings, but it also draws attention to weaknesses in its reasoning and to unresolved questions of European private international data protection law.

The issues surrounding the possible extension of the rules of jurisdiction in the Brussels I bis Regulation to non-EU domiciliaries will be discussed at a conference that will take place in Turin on 3 May 2023.

The topic formed the object of the third project of the EAPIL Young Research Network, which resulted in a collection of essays due to be published in the coming weeks by Bloosmbury. One of the purposes of the Turin conference is to present the results of that project.

Speakers include Marisa Attollino, Silvia Bortolotti, Raffaele Caterina, Stefano Dominelli, Pietro Franzina, Enrico Maggiora, Ennio Piovesani, Margherita Salvadori and Dora Zgrabljić Rotar.

The conference will be held mostly in Italian. Both on-site and on-line attendance are possible. Those wishing to attend remotely should write to Ennio Piovesani at ennio.piovesani@unito.it.

For further information see here.

This post was written by Gilles Cuniberti and Anna Wysocka-Bar.

On 26 January 2023, the European Commission has launched an infringement procedure against Poland for violation of the Brussels II bis Regulation.

The EAPIL Blog has learnt about the details of one of the cases which has triggered this procedure. It is described below.

Background

The case is concerned with a girl born in 2013 from a British father residing in England, and a Polish mother. The child has been living with her mother in Poland since 2017.

First English Return Order

In 2017, an English family court issued an order of return of the child to England and Wales.

The English court found that the child was habitually resident in England in 2017, and that her removal to Poland was wrongful.

Polish Dismissal of Return Order

The father applied in Poland for a return order based on the 1980 Hague Convention.

The application was allowed in first instance, but dismissed by a Polish regional court in June 2018, on the ground that there was a defence under Article 13(b) of the Hague Convention.

Although the EAPIL Blog could not read this decision, it seems that the mother of the child was blaming the father of a child for being aggressive towards her and seeking revenge instead of being truly interested in the happiness and wellbeing of the child. The religion of the father of the child was also discussed, as the mother suggested that he hates Catholics. The mother alleged that she was also afraid that the father might discriminate against the child only because she is a girl. The mother also alleged that the father of the child has a family and a wife in another country. With respect to the child, the mother also alleged that she is surrounded by love in Poland, is in a very close relationship with her grandparents and is perfectly adapted in the society. The mother argued that the child never misses her father and never asks about him. Hence, the mother concluded, the return to the father to the UK would have a devastating effect on the child.

Second English Return Order

Later in 2018, the Polish mother then wrote an email to the English court that she would not bring the child back to England notwithstanding the 2017 return order.

The father then applied to the English family court for a return order of the child to England and Wales into the care of her father in accordance with Article 11(8) of the Brussels II bis Regulation.

The court noted that the mother had failed to abide to the 2017 return order, and had written to the court that she would not.

The court ruled that given the age and immaturity of the child, it was inappropriate to hear her.

The court then ruled that it was satisfied that the mother was properly served, by email, by post by the Polish lawyer of the father, and by the Polish court itself, in accordance with the EU Service Regulation.

The court noted that the mother worked as an English interpreter and as a English teacher in Poland, and thus did not need an interpreter in the English proceedings, that she had not required in any case.

Finally, the court noted that the mother was offered the possibility to be heard and participate in the English proceedings by telephone.

The return order was issued in October 2018 and was supplemented with a certificate on the form provided in the Annex IV of Brussels II bis Regulation.

Non-Recognition of the English Return Order in Poland 

In February 2019, pursuant to Article 42 of the Brussels II bis Regulation, the Polish local court obtained, through the Polish Ministry of Justice, the application from the father for the enforcement of the English child return order.

Then, the local court in March 2020 refused the enforcement basing its decision on (interestingly) Article 23 of the Brussels I bis Regulation. Later, the court of the second instance, to which the father of the child filed an appeal, upheld the decision on non-enforcement of the English return order. The reasons provided by both courts are numerous and might be categorized as follows.

First, the court explained that the mother of the child has not participated in the UK proceeding and was not duly informed about it. Even though, the UK court asked Poland for the correspondence to be served on the mother through legal aid procedure, the documents were not duly served. The documents were served to the mother’s attorney-at-law, whose power of attorney was already revoked on the date of service. Even if theoretically – the lawyer would have a mandate to receive a correspondence addressed to the mother of the child, the time between the service and the issuance of the UK return order was too short to prepare for the defense. Consequently, neither the mother, nor the child were heard during the UK proceeding.

Secondly, the principle of the best interest of the child was raised. The court explained that the child had no contact with the father since 2017. The child lives in Poland with the mother, takes violin lessons and horseback riding classes in Poland, started primary education in Poland, has family and friends in Poland. The child should not be abruptly taken from such environment. The child is now rooted in Poland and has the center of life interests in Poland.

Thirdly, other, not explained in detail, arguments were raised. The court underlined that the ongoing pandemic should also be considered, however without stating what is exactly the influence of the pandemic on its decision. The court submitted that the English return order does not indicate the deadline by which the child should be returned to the UK. Also, the fact of Brexit was contemplated. The court stated that it is not sure whether English courts are still correctly applying the Brussels II bis Regulation after the Brexit referendum, and any doubts to that respect should be interpreted to the benefit of the citizens of the EU Member States (presumably, the mother of the child in this case).

Assessment

It seems that the problematic stage of the proceedings is what happened in Poland after the English return order delivered in accordance with Article 11(8) of the Brussels II bis Regulation and supplemented with the certificate from Annex IV of the Brussels II bis Regulation was transferred to the local court in Poland in order to be enforced.

As explained by the Court of Justice of the EU in Inga Rinau (C-195/08 PPU), the enforceability of a judgment requiring the return of a child following a judgment of non‑return enjoys procedural autonomy. It means that once the certificate has been issued, the judgment requiring the return of a child referred to in Article 40(1)(b) is to be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition (see: para. 68, Inga Rinau).  Hence, opposition to the recognition of the decision ordering return is not permitted and it is for the requested court only to declare the enforceability of the certified decision and to allow the immediate return of the child (see: para. 89, Inga Rinau).

In this case, the Polish courts of two instances were analyzing the procedure before English court, the current situation of the child, the influence of the pandemic and Brexit to conclude that the English return order should not be enforced. No such review is admissible under the Brussels II bis Regulation.

We cannot help but pick up the argument that English courts might have lost their competence in EU law after Brexit. Are Polish judges fully aware that the EU was not established in 2004, and that, at that time, English courts had already been applying EU law for almost 20 years?

It might be easier to understand how the factual background of the case fits into the provisions of Brussels II bis Regulation making use of the schema included in the EU Practice Guide for the Application of Brussels II bis Regulation below.

The EAPIL Working Group on the Reform of the Brussels I bis Regulation has set up a survey to collect feedback and comments on the proposals formulated in the preliminary position paper.  

By now, over 60 participants from many different Member States have answered the survey. To allow an even broader participation, the deadline for taking the survey has been extended until 15 April 2023.

Participation in the survey is open to anybody interested in the reform of the Brussels I bis Regulation, non matter whether they are members of the European Association of Private International Law, or not.

A conference on the codification of European private international law will take place on 21 April 2023 at the Université Catholique de Louvain. The conference, titled Vers un code Européen de droit international privé, is meant to be a tribute to Marc Fallon.

The working language will be French and English.

Speakers and moderators include: Jean-Yves Carlier, Stéphanie Francq, Pietro Franzina, Cristina González Beilfuss, Fabienne Jault-Seseke, Thomas Kadner Graziano, Catherine Kessedjian, Patrick Kinsch, Thalia Kruger, Paul Lagarde, Johan Meeusen, Marie-Laure Niboyet, Etienne Pataut, Fausto Pocar, Sylvie Sarolea, Andreas Stein, Jinske Verhellen, Pieter-Augustijn Van Malleghem, Melchior Wathelet, Patrick Wautelet, Alain Wijffels, Dai Yokomizo. The concluding remarks will be offered by Marc Fallon.

The concept is as follows.

Why and for what purpose should European private international law be codified? This twofold question will be at the heart of the discussions on April 21, 2023, during a colloquium paying tribute to the remarkable work of Professor Marc Fallon in the fields of private international law and European law, and in particular to his involvement in the Belgian and European codification of private international law.

How did we come to envisage a European codification of private international law? What do we expect from it? Does an EU codification have the same ambitions as national codifications? Do these ambitions not vary according to the place, the time and the context of international constraints imposed on the legislator? Does a codification at the European level, and at the present time, imply specific needs, challenges and consequences, even dangers, for both the national and the European legal orders?

And above all, does it offer new prospects or hopes for the European project and for the discipline of private international law?

The full programme is available here, together with the registration form.

The EAPIL Working Group on the Law Applicable to Digital Assets has issued a Position Paper to comment on the private international law aspects of the Draft Principles and Commentary on Digital Assets and Private Law issued by UNIDROIT in January 2023.

The Position Paper can be found here.

The issue of the applicable law to digital assets, which is the subject matter of the Position Paper, will be taken up jointly by UNIDROIT and the Hague Conference on Private International Law, which have announced earlier this month their plan to launch the HCCH-UNIDROIT Project on Law Applicable to Cross-Border Holdings and Transfers of Digital Assets and Tokens.

The EAPIL Working Group will follow the joint work of HCCH and UNIDROIT.

The author of this post is Stefano Ferrero, partner at Gattai Minoli, Milan.

As a follow-up to the post by Pietro Franzina on this blog regarding the approach of Italian courts to worldwide freezing injunctions issued in common law countries, I would like to share some additional information and remarks on the matter.

By a ruling of 28 December 2021, the Court of Appeal of Naples provided guidance also to the second issue mentioned in the post, i.e., whether a worldwide freezing order should undergo some adaptation in the State requested (in particular, Italy) at the stage of enforcement.

It is worth noting that the relationship between the sequestro conservativo, a precautionary measure typical of the Italian legal system, and the freezing (formerly Mareva) injunction (or order), a precautionary measure typical of English law, has long been the subject of doubts and uncertainties. The difficulties encountered reflect, in my view, a misunderstanding.

Based on the assumption that a sequestro operates in rem whereas a common law freezing injunction operates in personam, and that the two measures would accordingly be fundamentally different in substance, Italian Land Registrars have generally refused to record English freezing orders affecting immoveable property located in Italy.

Registrars have mostly relied, for this purpose, on a decision rendered in January 2014 by the Court of First Instance of Bologna, which rejected a complaint pursuant to Articles 2674 bis of the Italian Civil Code and 113 ter of the Italian Civil Code made against the temporary and precarious registration of a freezing order that was effected pursuant to Article 2674 bis of the Italian Civil Code.

However, Land Registrars have apparently long been unaware that in June 2014 the Bologna Court of Appeal (with the agreeing opinion of the Attorney General’s Office) had then upheld the complaint against the Bologna Court decree, ordering the Registrar to proceed with registration without reservation.

A similar case has been brought a few years later in Naples. The Registrar had ordered the registration with reservation of an English freezing order, the Court had rejected the complaint with a decree of December 2020 that the Court of Appeal of Naples eventually overturned (under an unreported decision, available here, in Italian), despite the opposition of the Italian revenue authorities (Agenzia delle Entrate).

The decisions of the two Courts of Appeal share the basic idea that the distinction between the sequestro as a measure in rem and the freezing order as a measure in personam has no relevance in the context of the present discussion: a careful examination of the rules of the two judicial remedies (as regards the United Kingdom, the Civil Procedure Rules, the Land Registration Act 2002 and the Land Registration Rules 2003) reveals that they have, also from the point of view of their operation and effects, profound similarities.

Such conclusions had already been reached in 2015 by the English High Court (Arcadia Petroleum Ltd and others v Bosworth and others [2015] EWHC 3700 (Comm) – 15 December 2015), that had declared the full equivalence between English freezing orders and continental attachments, confirming that the (however limited) difference between in rem and in personam nature is, in fact, a false problem.

Moreover, the two Italian measures are based on the assumption that within the European judicial area there is the fundamental principle, confirmed by Article 54 of the Brussels I bis Regulation, whereby the requested State must implement unknown foreign measures by adapting them in the manner and with the effects proper to an equivalent domestic measure.

Admittedly, adaptation may not be available where the foreign measure in question is at odds with the fundamental principles of the requested Member State.

With reference to this last profile, the Court of Appeal of Naples confirmed in the unreported decision mentioned above the full compatibility of the freezing orders with Italian public policy. The Court emphasized that the good arguable claim and the fumus boni iuris tests are largely equivalent, as do the risk of dissipation and periculum in mora tests. Registration in the Italian land registers and the restriction in the English Land Registries are also similar, in that they have an effect limiting the circulation of the goods affected, although the restriction imposes an ex ante (and stricter, for it concerns the validity itself of the act of disposal) limit, whereas the registration operates ex post through the sanction of the relative ineffectiveness of the act of disposal.

The Court of Appeal eventually endorsed the principle affirmed by the Court of Cassation in the ruling of 2021 reported by Pietro Franzina in his post, which had already clarified that the fact that the violation of a freezing order may give rise to a personal criminal sanction (the contempt of court) is a recurring consequence also in Italian law, which punishes the failure to comply with court orders (Article 388 of the Criminal Code).

Freezing orders, i.e., orders that prevent a person from disposing of their assets pending a determination as to the existence of a claim, are governed by procedural rules that vary greatly from one legal system to another.

English courts, and more generally the courts of common law jurisdictions, may grant orders that can prove remarkably powerful in practice.

Unlike the freezing injunctions that civil law courts are normally permitted to issue, which operate in rem, English freezing orders are in personam measures. They are not given in respect of one or more assets designated for this purpose,  but rather address the person of the (alleged) debtor. The latter will found themselves in contempt of court, and face the relevant penalties (which may include imprisonment, in some circumstances), if they ignore or breach the order.

How Well Do Freezing Injunctions Travel Abroad?

Injunctions granted in common law countries may aim to prevent the person concerned from disposing of any of their assets, mo matter whether those assets are located in the forum State. The issue arises then of whether a “worldwide” freezing injunction may be given effect in a State other than the State of origin, notably a State whose law ignores in personam precautionary orders.

The enforceability of a foreign worldwide freezing injunction can only be at issue, in reality, where and to the extent to which the law of the State where the assets are located includes interim measures among the foreign decisions that are eligible, in principle, for recognition and enforcement.

Domestic rules on the recognition and enforcement of foreign decisions mostly exclude interim measures from their scope, but some internationally uniform texts provide otherwise, subject to appropriate safeguards. That is the case, in particular, of the Brussels I bis Regulation, pursuant to Article 2(a), which applies to provisional measures originating in a Member State of the Union.

The markedly different approach to freezing orders followed by civil law and common law jurisdictions, respectively, involves that injunctions emanating from a common law country could be denied (recognition and) enforcement in a civil law country on grounds of public policy. Secondly, where a common law injunction is not prevented as such from having effect in a civil law State, the issue may arise of whether, and how, the measure should undergo some adaptation (as the term is understood in Article 54 of the Brussels I bis Regulation) in the State requested, at the stage of enforcement.

The View or the Italian Supreme Court’s on the Issue

A ruling of the Italian Supreme Court (order No 25064, of 16 September 2021) provides an illustration of the kind of concerns that may surround the first of the two issues above (the second issue will not be discussed here).

The Case in a Nutshell

The Supreme Court’s ruling, in reality, only deals with the issue in an indirect way. The question, in fact, was not whether a foreign freezing injunction qualified for enforcement in Italy, but rather whether a foreign judgment on the merits ought to be denied recognition on the ground that, in the course of the proceedings leading to that judgment, a freezing injunction had been granted against the party that eventually lost the case.

By a judgment of 2011, the Royal Court of Guernsey awarded damages to Credit Suisse Trust Ltd for the negligent performance by N.G. and others of their obligations under a contract for professional services (it is worth noting that during the period when the United Kingdom was a Member State of the European Union, Guernsey was neither a Member State nor an Associate Member of the Union; some EU law provisions applied to Guernsey and in Guernsey, but these did not include legislation on judicial cooperation in civil matters, such as the Brussels I Regulation).

Credit Suisse Trust filed an application with the Court of Appeal of Rome to have the judgment enforced in Italy. The Court, however, dismissed the request on the ground that the judgment failed to meet the requirements for recognition set out in Article 64(b) and (g) of the Italian Statute on Private International Law. Article 64(b) provides that a foreign judgment may not be recognized in Italy if the act instituting the proceedings was not served upon the defendant in conformity with the law of the State of origin and if the basic rights of defence (“i diritti essenziali della difesa”) were violated in the proceedings in that State. Article 64(g), for its part, stipulates that a foreign judgment may not be given effect in Italy if doing so would contravene public policy.

The Court of Appeal came to this conclusion based on the fact that, on 26 January 2011, upon a request by Credit Suisse Trust, the Royal Court of Guernsey had granted a freezing order which restrained N.G. from dealing with his assets, whether located in Guernsey or anywhere else in the world, under penalty of contempt of court. The order belonged to the kind of interim measures that English courts used to refer to as Mareva injunctions.

The measure in question, the Court of Appeal noted, was an in personam freezing injunction, whereas, under Italian law, a freezing order cannot operate otherwise than in rem, meaning that it necessarily refers to one or more particular assets, specified in the order itself.

Additionally, the Court of Appeal noted that the Guernsey Court had ordered that the respondent disclose his most valuable assets, and do so within days, again under penalty of contempt, whereas Italian law courts are generally not permitted to impose a duty of disclosure of this kind, let alone one requiring such a prompt reaction, in connection with an asset preservation order. According to the Court of Appeal, the Royal Court of Guernsey had, by granting a freezing injunction with the described characteristics, undermined the ability of N.G. to present his case, and had significantly limited N.G.’s right to deal with his assets.

The result, the Court of Appeal found, was all the more objectionable since the orders of the Royal Court of Guernsey apparently failed to put any burden on the other party in the proceedings and its assets. In the view of the Court of Appeal, all this substantiated a violation of the principle of the equality of arms, as well as of the principle whereby all parties should be given an opportunity to effectively present their case, which implies the right to adequate time and facilities to prepare a defence.

Credit Suisse Trust sought to have the ruling of the Court of Appeal quashed by the Italian Supreme Court. The move proved successful.

The Supreme Court’s Ruling

The Corte di Cassazione held that the fact that the order was of a kind unknown to Italian law does not entail, as such, that the proceedings were unfair, let alone that the resulting judgment should be barred from recognition. The public policy defence, taken in its procedural limb, can only succeed, the Supreme Court reasoned, where it clearly appears that the proceedings before the court of origin were tainted by a serious violation of basic procedural rights.

Thus, a judgment on the substance of the case may not be refused recognition on grounds of public policy for reasons relating to an interim measure given in the course of the proceedings in the State of origin, unless it is established that, by granting such a measure, the court of origin violated the procedural rights of the party concerned in such a fundamental way as to undermine the fairness of the whole proceedings. The Corte di Cassazione, however, found no evidence of such a violation in the circumstances. In fact, the Court considered that the freezing order and the disclosure order came with appropriate safeguards and concluded that the Guernsey judgment fulfilled the conditions for recognition in Italy.

The Supreme Court reached this conclusion based on an analysis of the concerns underlying the common law and the Italian law approach to freezing injunctions.

The Court began by observing that Interim measures, specifically those aimed at preserving assets, are an essential component of all domestic legal systems. They are not meant, as such, to discriminate the alleged debtor vis-à-vis the requesting party. The goal of interim measures is rather to ensure the effectiveness of the decision that the court is ultimately asked to render and avert such risks as may be associated with the time needed to bring the proceedings on the substance to an end.

While the goal pursued is basically common to all legal systems, each jurisdiction surrounds interim measures with the safeguards that it considers appropriate. One should not give a decisive weight to the diversity of these safeguards, the Supreme Court argued, insofar as they all ensure the equality of the parties’ arms.

One key question, then, is whether, in the State of origin, the person affected by the order had been granted “arms” which enabled him to react to the “arms” of the other party. In the case at hand, the Supreme Court noted, the Royal Court of Guernsey had retained the power to revoke and modify the measure upon a request by the alleged debtor, and had the power to require the applicant to enter into such undertakings on such terms as may be specified, notably to compensate such prejudice as the freezing order may cause to the other party. Significantly, the Supreme Court added, a failure to comply with such an undertaking may result in the applicant, too, being in contempt of court, in the same way as the respondent in the event of a failure to observe the freezing or the disclosure orders.

The Supreme Court further observed that the fact that the Guernsey orders involved the threat of harsh penalties in case of non-compliance does not entail that the granting of the measures in question necessarily involve a violation of procedural public policy.

The Court acknowledged that indirect coercive measures raise some delicate issues. It noted, however, that recourse to coercive measures to promote compliance with a court order is not alien to the Italian legal system: Article 388 of the Italian criminal code, for example, makes it a criminal offense to deliberately evade from an order given in court proceedings, and Article 127 of the Italian code on intellectual property goes as far as to criminalize any failure to answer (or any false information in response to) the questions that a court may ask where seized of proceedings relating to counterfeiting and other infringements of intellectual property rights. According to the Supreme Court, this is an indication that the mere fact that the provision of penalties, in common law jurisdictions, for the non-compliance of freezing orders is not in itself a reason to regard such orders as inconsistent with Italian public policy.

A more detailed analysis of the ruling (in English) can be found in a comment which appeared on the open-access journal Italian Review of International and Comparative Law, published by Brill.

As already announced on this blog, the University of Bonn will host a two-day conference titled The HCCH 2019 Judgments Convention: Cornerstones, Prospects, Outlook, 9 and 10 June 2023.

The event, organised in cooperation with the Permanent Bureau of the Hague Conference on Private International Law, is meant to provide a comprehensive analysis of the Hague Convention of 2 July 2019 on the recognition and enforcement of foreign judgments in civil and commercial matters, and to assess its possible implications in various regions of the world.

Opened by welcome addresses by Matthias Weller (University of Bonn) and Christophe Bernasconi (Secretary General of the Hague Conference on Private International Law), the conference will feature panels  moderated by Moritz Brinkmann, Nina Dethloff, Matthias Lehmann, João Ribeiro-Bidaoui, nd Melissa Ford. Speakers include Xandra Kramer, Wolfgang Hau, Pietro Franzina, Marcos Dotta Salgueiro, Cristina Mariottini, Paul Beaumont, Andreas Stein, Linda J. Silberman, Geneviève Saumier, Ilija Rumenov, Burkhard Hess, Béligh Elbalti, Abubakri Yekini, Chukwuma Okoli, Verónica Ruiz Abou-Nigm, Adeline Chong, Zheng (Sophia) Tang, Ning Zhao, José Angelo Estrella-Faria, and Hans van Loon.

Registrations are still open. Those willing to attend are invited to write an e-mail to sekretariat.weller@jura.uni-bonn.de.

The full programme, together with information concerning the registration fees and other practical aspects, can be found here. See also the conference poster here.

A collection of essays on the Judgments Convention, written by the experts involved in the conference, is due to be published by Bloosmbury in May 2023.

 

The author of this post is Francesca Maoli (University of Genova).

On 9 March 2023, the CJEU delivered a judgment on the European Certificate of Succession, created by Regulation No 650/2012 on matters of succession, and the recording, in a land register, of a right of ownership in immovable property (C‑354/21, R.J.R. v Registrų centras VĮ).

The Court held that land registry authorities of a Member State may reject an application for registration of immovable property, where the only document submitted in support of that application is a European Certificate of Succession which does not identify the immovable property in question.

The Case

The facts of the case are summarized here. The matter concerned the refusal of the Lithuanian VĮ Registrų centras (State Enterprise Centre of Registers) to register ownership rights on the basis of a European Certificate of Succession alone, which was issued by the competent German probate court. According to Lithuanian authorities, the Certificate did not contain the data required by the Lithuanian Law on the Real Property Register, as it did not identify the immovable property inherited by the applicant. In other words, no information was provided to clearly detect the asset(s) attributed to the heir for whom certification was requested.

The decision was appealed and the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania) referred a question to the CJEU for a preliminary ruling. The Lithuanian judge highlighted a prima facie incompatibility between German succession law and Lithuanian law concerning the recording of a right of ownership in land registers. In fact, German law of succession is governed by the principle of universal succession and consequently, it is not possible to indicate or designate the assets forming part of the estate. In particular, according to the Lithuanian court, this happens where a single heir inherits the deceased’s entire estate. On the other hand, the Lithuanian Law on the land register provides that an application for registration of rights in rem in immovable property shall contain supporting documents and information that allow for precise identification of the immovable property in question: in particular, it requires the address and the so-called Unikalus No. (unique number of the property).

The Court’s Ruling

The CJEU – by reframing the question proposed by the domestic court – identified the issue as concerning not only the relationship between Article 1(2)(l) and Article 69(5) of the Succession Regulation, but also Article 68, that specifically concerns the content of the European Certificate of Succession.

The Court highlighted that Article 1(2)(l) of the Succession Regulation excludes from its scope of application “any recording in a register of rights in immovable or movable property, including the legal requirements for such recording, and the effects of recording of failing to record such rights in a registers”. According to Article 69(5), the European Certificate of Succession constitute a valid document for the recording of succession property in the relevant register of a Member State “without prejudice to points (k) and (l) of Article 1(2)”. Coherently, the Certificate contains certain information in so far as it is necessary for the purpose for which it is issued and “if applicable, the list of rights and/or assets for any given heir” (Article 68(l)).

According to the CJEU, the content of the Certificate may vary from case to case. However, this does not depend only on the applicable succession law, but rather on the purposes for which the Certificate is issued. While the Certificate may constitute a valid document for the recording of succession property in public registers, the legal requirements for such recording are governed by national law. This means that, according to the Succession Regulation, each Member State is free to determine the conditions for the registration of an immovable property and may impose the applicants to include all identifying data of such a property. If the only supporting document to the application is a European Certificate of Succession which does not contain those information, national authorities may reject that application.

Assessment  

The CJEU adopted an interpretation of the Succession Regulation that does not go beyond the intent and aim of its provisions. While the European Certificate of Succession has the scope to demonstrate the quality and the rights of the heirs, Article 1(2)(l) is clear in attributing to national law the discipline of the legal requirements for property registration. According to the CJEU, the effet utile of the Certificate is not undermined by the need to identify the immovable property on which the heir may exercise their rights.

Indeed, the CJEU’s reasoning is coherent with the position expressed by the European Commission already in 2016. In response to a question from the European Parliament, the Commission stated that the European Certificate of Succession must contain all the required information, based on the purpose for which it is issued: since the function of the certificate is primarily to enable the heir to prove their status with regard to the assets of the estate located in another Member State, it is necessary for these assets to be identified and described in the document. Only in this way can the certificate constitute a valid title for the registration of the property in the relevant registers of a Member State.

In the specific case, the situation was quite straightforward: as the heir was the sole heir, the German probate court could have easily identified the assets, especially if Lithuanian registers were to make it possible to trace a deceased person’s property. On the other hand, German case law considers this practice incompatible with German inheritance law, regardless of the circumstances of the case. At the same time, Lithuanian law is free to determine the rules and conditions for property registration: the Succession Regulation is clear in this regard.

Indeed, an interesting consideration stems from the opinion of Advocate General Szpunar, who fostered the effet utile of the European Certificate of Succession, which the CJEU did not follow.  According to the Advocate General, the content of the Certificate is determined by the applicable succession law. Since German law adheres to the principle of universal succession, the heir succeeds to the estate as a whole, rather to particular assets, which are transferred as a totality. This means that the fragmentation of domestic succession laws may indeed undermine the effet utile of the Certificate, since the Certificate alone may not be sufficient to allow for the recording in national land registers and therefore to produce its effets in all Member States according to Article 69(5).

Following the publication of her monograph on PIL and non-judicial divorce, I have invited Nuria Marchal Escalona to provide an overview of the topic with a focus on the Spanish case. Nuria Marchal is a professor of Private International Law at the University of Granada (Spain).

The tag ‘non-judicial divorce’ does not refer to a single reality; it rather encompasses a number of ways to getting divorced out of court.

The comparison among legal systems allows for the conclusion that the regulation of non-judicial divorce is actually quite diverse, even in neighboring countries.

Roughly summarized, three models co-exist currently. In some jurisdictions, the competence for the dissolution of marriage in non-contentious cases is conferred to non-judicial authorities such as civil registrars, notaries or even mayors, in such a way that their intervention has a proper constitutive effect. This would be the case of Spain.

In other countries, like France, divorce results from the agreement of the spouses. There, the public authority’s role is very limited (Article 229-1st French Civil Code).

Finally, the dissolution of the marriage is pronounced by a religious court in Islamic-inspired legal systems, and are considered as ‘private divorce’.

This diversity accounts to a large extent for the difficulties met by applicants asking for a non-judicial divorce granted elsewhere to be effective in Spain. But also the issuance of a notarial deed of divorce in Spain in situations involving cross-border elements has to surmount a number of obstacles. The most relevant ones are address hereinafter.

Basic Features of Notarial Divorce in Spain

The de-judicialisation of the marital relationship took place in Spain by virtue of Law 15/2015 on Voluntary Jurisdiction. The Act empowers notaries to authorise divorce by mutual consent in both domestic and international cases. To this end, the spouses must draw up a regulatory agreement (Article 87 Civil Code). Besides, some material and procedural requirements must be fulfilled: a Spanish notary cannot issue a public deed of divorce if the settlement agreement is detrimental to one of the spouses, nor where there are non-emancipated minors, or minors with judicially modified capacity, who are dependent on the parents (moreover, children living in the family home and lacking an own income must consent to the measures affecting them).

A notary is also prevented from dissolving the marriage if the parties do not appear in person before him. In practice, however, this last requirement has fortunately been removed by Resolution of 26 January 2021 of the Dirección General de Seguridad Jurídica y Fe Pública allowing for the authorisation of a notarial deed of divorce with the intervention of a special proxy.

International and Territorial Jurisdiction

Spanish notaries can only grant a notarial deed of divorce in cross-border cases provided they are competent (internationally and territorially), both for the dissolution of the marriage and for determining inextricable related matters such as the financial regime of the marriage, the use of the home, or compensatory pension.

It should be noted that Spanish notarial authorities are not entitled to decide on the custody of minors – in other words, as already stated notarial divorce is only possible if the children of the marriage are of legal age, or emancipated.

To determine international jurisdiction, the notary will need to look into an array of legal instruments respectively addressing divorce and ancillary matters (maintenance, use of the family home and matrimonial property regime). This is the outcome of the limited material scope of application of the rules at stake. By way of consequence, the notary will be confronted with issues of characterization, as he will have to decide, for instance, if a particular institution pertains to maintenance or rather to the matrimonial property regime.

Already the question of the legal instruments applicable to the notary’s competence has not a straightforward answer. Whether Spanish notaries are bound by the provisions of the European instruments regulating international jurisdiction in the above-mentioned matters (Regulation No. 2019/1111, or Brussels II ter; Regulation No. 4/2009; Regulation No. 2016/1103), is unclear. It depends on whether they are ‘courts’ in the sense of the Regulations. However, the very notion is not univocal but varies from one instrument to another. Thus, while given the very broad concept of ‘court’ under Article 2.1 Brussels II ter, Spanish notaries will apply this Regulation to determine jurisdiction, they cannot rely on either Regulation No. 4/2009 or Regulation No. 2016/1103 to the same effect, for, according to them, they are not ‘courts’. For subject matters under the latter two Regulations, they are therefore bound by the jurisdictional criteria set out in the Spanish Organic Law of the Judiciary, in particular those listed in Article 22 quater f) for maintenance issues and in Article 22 quater c) for the dissolution of the marriage, and, where appropriate, the liquidation of the matrimonial property regime.

To grant the divorce, the notary has to be territorially competent too. Mismatches may arise in this regard. The allocation of competence among Spanish notaries to authorise a public deed of divorce follows Article 54 of the Notaries Act of 28 May 1862, according to which the spouses must give their consent either before the notary of their last common domicile or that of the domicile or habitual residence of any of them. It may happen that the international jurisdiction criteria do not allow for the identification of the notary territorially competent as indicated by the provision. Where two Spanish nationals resident in Germany apply for a notarial divorce in Spain, the Spanish notary will have international competence, but lack the territorial one. In such cases, one may argue the spouses can apply for divorce before any notary in Spain. The misalliance shows that the provisions of the 1862 Act are not adapted to the particularities of cross-border cases; de lege ferenda it should be amended.

Applicable Law

The ascertainment of the law applicable to grant a public deed of divorce in cross-border cases is also a complex operation. The dissolution of the marriage has further consequences on the relation between the spouses, which must be dealt with separately from the divorce. Just like with international jurisdiction, this is a consequence of the limited scope of application of the rules currently in force. And, again, delimitation problems are accompanied by delicate issues of characterization, with which the Spanish notarial authorities must contend once they have identified the relevant legal regime, which depends in turn on whether they are ‘jurisdictional bodies” as required in the EU Regulations (and related Hague instruments).

There is no consensus on the meaning of ‘jurisdictional bodies’ for the purposes of applying the EU and Hague provisions on applicable law. The lack of agreement impacts negatively on the overall coherence of the system. It is here posited that a Spanish notary, when dissolving a marriage, is vested with a decision-making function of a constitutive nature: in other words, he exercises ‘jurisdictional functions’. Therefore, he must be considered as a ‘jurisdictional body’ in the sense of both Regulation No. 1259/2010 (Rome III) and the 2007 Hague Protocol. Moreover, the same solution should prevail for Regulation No. 2016/1103 in spite of the Communication made by the Spanish Government denying such quality to Spanish notaries. In fact, Spain should immediately correct the declaration. Nonetheless, in the meantime Spanish notaries remain bound by Articles 9.2 or 9.3 of the Spanish Civil Code in order to decide on the law applicable to the matrimonial property regime.

Regarding the specific conflict of law solutions, it is worth mentioning that choice of law is the basic connecting point under the Rome III Regulation (for divorce) and the Hague Protocol of 2007 (for maintenance), as well as under the national rules on the matrimonial property regime, although in the latter case the choice is operative only in the absence of a common nationality of the spouses (Article 9.2 of the Spanish Civil Code). This parallelism facilitates the task of the notary, as it prevents legal fragmentation and problems of qualification and delimitation. However, coordination may fail since the possibility to choose the applicable law varies in scope depending on the instrument where it is embodied.

It may thus happen that, in order to determine the legal framework of the divorce and the ancillary issues, a notary must combine the law chosen by the parties for the dissolution of marriage with another one(s), the latter being ascertained through objective connecting points. Let’s take spouses of Spanish nationality residing in Italy and choosing Italian law to dissolve their marriage in Spain before a notary: the chosen law will be applicable [ex Article 5 a) R. Rome II] to the divorce, whereas Spanish law, ex Article 9.2 of the Spanish Civil Code, will rule on the economic regime of the marriage.

On a side note, it should be added that notarial divorce in Spain may be unnecessarily expensive due to the Spanish Declaration to the Rome III Regulation, coupled with a Resolution-Consultation of the Dirección General de Seguridad Jurídica y Fe Pública of 7 june 2016. According to the Declaration, the choice of law agreement must be concluded prior to obtaining the divorce – in other words, it is not possible before the court.

Besides, additional formal requirements under Article 7 of the Regulation are needed: the choice of law must be granted in an authentic instrument (before a notary public), or an ‘authentic document’ (a document whose date and signatures by the parties are unequivocal, even if it does not take the form of a notarial instrument). Eventually, choosing the applicable law requires a public document different from the public deed of divorce – therefore, higher costs for the spouses.

Recognition

As of today, the recognition in Spain of foreign non-judicial divorce raises many doubts. Due to the plurality of rules in Spanish private international law, this is a highly topical issue, both essential and complex, starting with already with the determination of the applicable rules. One must take into account, besides the usual variables (origin of the divorce, date on which it was granted), the type of non-judicial divorce at stake. This requires examining if a public authority was involved and the role it played: whether or not it has exercised a constitutive function, and (more relevant), whether or not it has performed functions equivalent to those allocated to Spanish courts.

Under the broad concept of ‘court or tribunal’ under Brussels II ter and Regulation No. 4/2009, all authorities in the Member States with jurisdiction in matters falling within the scope of said Regulations can be considered as belonging to such category. That is to say, for the purposes of these instruments, any authority, official or professional is a ‘court’ provided that the legal system to which it belongs confers on it the power to dissolve the marriage.

The CJEU ruled along these lines in its judgment of 15 November 2022 (Case C-646/20): a divorce settlement entered into before the Italian Registrar of Vital Statistics equates a court decision, provided that the issuing authority carries out a review of the settlement, i.e., of the conditions of the divorce under national law, and of the validity of the spouses’ consent. By analogy, a Spanish notarial divorce must be recognised as a ‘judicial determination’ in other Member States, since Spanish notaries perform such tasks. Had it not been withdrawn, the question referred to the Court of Justice of the European Union for a preliminary ruling in Case C-304/22 should had been solved along these lines.

The other ‘side of the coin’ of this broad definition of ‘court’ as interpreted by the CJEU is that a foreign divorce where the public authority has merely approved a private act does not constitute a judicial decision in the sense of the Regulations. This does not automatically entail the non-recognition of such divorce. In fact, Article 65 Brussels II ter acknowledges the effectiveness of registered private agreements and connects them with court judgments. From the procedural point of view, the equating of registered agreements to court decisions implies their automatic recognition in the terms of Article 30 et seq. of Brussels II ter.

Where European rules do not apply, conventional rules come to the forefront. Spain is a contracting State to a considerable number of bilateral conventions on recognition of decisions (ad ex. Colombia, Russia and China).  However, for non-judicial divorce such conventions have little impact, either because family matters are excluded from their scope of application, or because they only apply to the recognition of ‘judicial decisions’, meaning those originating from jurisdictional bodies. This is the reason why many times the legal regime applicable to the recognition of a foreign non-judicial divorce will be defined by national (autonomous) rules. In Spain, there is a plurality of sources in the area:

• The Third Additional Provision of Law 15/2015 on Voluntary Jurisdiction, on the registration of foreign public documents in public registers.
• Articles 11 and 12 of the same Law, addressing registration in public registers of foreign decisions on voluntary jurisdiction (Article 11), and the effects in Spain of voluntary jurisdiction proceedings and acts agreed by foreign authorities (Article 12).  Such provisions prevail over Article 41.2 of Law 29/2015 on International Legal Cooperation in Civil Matters, in accordance with the First Additional Provision of the International Legal Cooperation Act.
• Articles 323 and 144 of Law 1/2000 on Civil Procedure, on the recognition of foreign public documents.
• Articles 96 and 97 of Law 20/2011 on the Civil Register. These provisions deal with the recognition of foreign non-judicial decisions (Article 96) and of foreign extrajudicial documents (Article 97). They should prevail over the Law on Voluntary Jurisdiction when an application is made for the dissolution of the relationship to be registered with the Spanish Civil Registry.

In light of the foregoing, it is easy to imagine that ascertaining the competent rule and, therefore, the conditions to be checked to grant effects to a foreign extrajudicial divorce, can become a quite complicated endeavor.

It does not only depend on the type of divorce obtained (notarial, registered, etc.), thus on the document recording the divorce (notarial deed, extrajudicial decision or public act), but also on the effect that the recognition is intended to have (constitutive, evidentiary, entry into an official registry).

But, fundamentally, it will be conditional upon the function performed by the intervening authority, and on whether it corresponds to those of the Spanish judicial authorities in the field. Eventually, whether the foreign non-judicial divorce falls under the category of foreign ‘judicial decision” or rather under that of foreign ‘public document’, and the corresponding regime, depends on the answer to these questions.

The recognition of so-called ‘private divorces’, i.e. those dictated by a religious authority, poses even greater problems even if they are subsequently approved by a foreign authority. To qualify as a ‘decision’ and, therefore, for the autonomous legal regime on recognition of judgments to apply, the authority must have performed a constitutive function: in other words, it must have acted with ‘imperium’ in accordance with the system of origin. Otherwise, the foreign divorce will get a conflict-of-laws treatment. However, after the amendment of Article 107.2º of the Civil Code in 2015, there is no rule for that purpose under Spanish autonomous PIL provisions.

And, finally, it should not be forgotten that, more often than not, the decision or document on the dissolution of marriage by a non-judicial authority includes statements on the economic regime of the marriage, alimony and even parental relationship. According cross-border effectiveness to a foreign non-judicial divorce does not automatically benefit those ancillary matters. Let’s take a non-judicial divorce by mutual consent by notarial deed from Cuba: in Spain, it will generally be recognised as a non-contentious judicial decision under autonomous PIL. Should the divorce be accompanied by decisions on parental responsibility, the latter will fall under the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. The regulatory fragmentation existing in Spanish law in the area may give rise to problems of consistency, and eventually lead to semi-claudicating divorces, meaning that they are effective in terms of the dissolution of the marital bound, but not in terms of its effects in relation to children, maintenance or the liquidation of the matrimonial property regime.

It has already been announced on this blog that a conference on The Law of Treaties as Applied to Private International Law is set to take place in Milan, on 5 and 6 May 2023, under the auspices of SIDI, the Italian Society of International Law and EU Law, and EAPIL.

The early bird period, which was initially meant to end on 6 March, has been extended until 20 March 2023. Those registering before the latter date will benefit from a discounted registration fee of 80 Euros (further reduced to 50 Euros for PhD students and those who earned their PhD over the last few weeks).

For more information, and the registration form, see here.

On 8 February 2023, the European Commission presented two proposals, the purpose of which is to pave the way to the negotiation (and conclusion) of bilateral agreeements between France and Algeria in the field of private international law.

One proposal is for a decision of the Council of the Union and the European Parliament that would authorise France to negotiate a bilateral agreement on matters related to judicial cooperation in civil and commercial matters (COM/2023/65 final). The other is for a Council decision authorising France to negotiate a bilateral agreement with Algeria on matters related to judicial cooperation concerning family law matters (COM/2023/64 final).

The future agreements are meant to replace bilateral agreements concluded in 1962, 1964 and 1980, and to align cooperation with Algeria with EU standards in this area.

The subject matter of the new agreements falls, to a large extent, within the exclusive external competence of the Union. In these circumstances the negotiation of bilateral agreements of Member States with third countries is generally limited to the possibilities offered by the special mechanism provided by Regulation No 662/2009 (on particular matters concerning the law governing contractual and non-contractual obligations) and Regulation No 664/2009 (regarding jurisdiction, recognition and enforcement of judgments and decisions in matrimonial matters, matters of parental responsibility and matters relating to maintenance obligations, as well as regarding the law applicable to matters relating to maintenance obligations).

Also relevant, in principle, is Article 351 TFEU. This begins by establishing that the rights and obligations arising from agreements pre-dating the launch of the European integration process between one or more Member States on the one hand, and one or more third countries on the other, are not affected by EU law. However, the provision goes on to state that, to the extent that such agreements are not compatible with the Treaties (and EU legislation), “the Member State or States concerned shall take all appropriate steps to eliminate the incompatibilities established”.

When the prospect of one or more bilateral agreements between the two States emerged, in 2016, the Commission, while recognizing the exceptional economic, cultural, historical, social and political ties between France and Algeria, remarked that, in its judicial cooperation with third States, the Union broadly relies on the existing multilateral framework, such as the one created by the Hague Conference on Private International Law, rather than bilateral agreements. The Commission observed that  authorising a Member State to negotiate and conclude bilateral agreements with third countries in the area of civil justice falling outside the scope of Regulations No 662/2009 and No 664/2009 would not be in line with the EU policy in this field.

The position of the Commission was later reviewed in light of further developments and additional information, including the fact that an accession of Algeria to key Hague Conventions was (and still is) unlikely to happen in the foreseeable future (Algeria is not a member of the Hague Conference and has not acceded, so far, to any convention elaborated under the auspices of the Conference), and the fact that an EU-Algeria agreement related to judicial cooperation in civil matters is not planned by the Commission.

The Commission observed that the EU policy in the field of private international law is based on multilateralism, and that bilateral agreements between the EU and a third country, even where the third country consistently refuses to accede to Hague Conventions, could be contemplated only where a sufficiently strong Union interest can be identified based on the substantial relevance of judicial cooperation with this country across Member States and not only for an individual Member State. In the opinion of the Commission, this is not the case of the relations with Algeria.

The Commission further contended that neither the possibility offered by Article 351 TFEU nor an authorisation under Regulations 662 and 664/2009 are applicable in the present case.

Article 351, the Commission explained, is of no avail because it applies, for a founding Member (like France), only to agreements concluded prior to 1958, whereas the existing bilateral agreements between France and Algeria date from 1962, 1964 and 1980 (the Commission does not seem to give weight to the fact that, back in 1985, the European integration process simply did not include judicial cooperation: the latter became a concern for the European Community, as it was then, only with the entry into force of the Amsterdam Treaty, in 1999).

The Regulations of 2009, for their part, are of limited help, according to the Commission, because their scope is very narrow and they do not cover the range of matters dealt with in the France-Algeria draft agreements. Besides, the Commission stressed, the two Regulations are of exceptional nature and should be interpreted in a restrictive manner.

Therefore, the Commission concluded that an ad hoc authorization under Article 2(1) TFEU to France could be considered (according to Article 2(1), where the Treaties confer on the Union “exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts”, but clarifies that the Member States are permitted to do so themselves, inter alia, “if so empowered by the Union”).

The decisions that the Commission has proposed to adopt would authorise France to negotiate (and at a later stage conclude) bilateral agreements with Algeria in matters falling within the EU exclusive external competence, having considered the exceptional ties which link these two countries, provided that this would not constitute an obstacle to the development and the implementation of the Union’s policies.

In the memorandum that accompanies the two proposals, the Commission reiterated that “multilateralism remains a cornerstone of the EU policy towards third countries in the field of judicial cooperation in civil and commercial matters”, and clarified that the authorisation to negotiate, if granted, should be “considered exceptional” and by no means serve as a precedent. The mere refusal of a third State to accede to the relevant Hague Conventions, the Commission added, “should not be regarded as a the only pre-requisite to grant an authorisation under Article 2(1) TFEU, but evidence of the exceptional situation of the relationship of a Member State with a given third country should be duly demonstrated”.

The call for papers is open for the IX International Conference on Private International Law of the Carlos III University of Madrid, which will take place on 4 and 5 May 2023.

This year’s conference will focus on the Proposal for a Council Regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood, presented by the European Commission on 7 December 2022.

The proposed papers will be selected by the Scientific Committee of the Conference, composed of Alfonso-Luis Calvo Caravaca, Heinz-Peter Mansel, Javier Carrascosa Gonzalez, Ilaria Pretelli and Fabrizio Marongiu Buonaiuti. Papers may subsequently be published in the online journal Cuadernos de derecho transnacional.

All those interested are invited to send the title of the paper they intend to propose and an abstract of a maximum length of 800 words by 17 April 2023 to the email congresodipr@uc3m.es.

For all further info, see here.