EAPIL blog

As announced on this blog, the 9th Journal of Private International Law conference will be hosted by the Yong Pung School of Law, Singapore Management University from 3 to 5 August 2023.

A reminder that the deadline to submit abstracts is Friday 16 December 2022 at jpil2023@smu.edu.sg. The Call for Papers is available here.

More information on the conference and the related registration can be found here.

The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published on 1 November 2022. The table of contents is available here. The following abstracts have been kindly provided to us by the editor of the journal.

U. Janzen and R. Wagner, The German implementing rules for the Brussels II ter Regulation

When the original version of the Brussels II Regulation was adopted in 2000, it was not certain whether this regulation would be such a success. In the meantime, the regulation has become one of the most important legal instruments for judicial cooperation in civil matters. The regulation has recently been revised for the second time. The following article presents the German implementing rules for this recast.

R. Magnus, A new Private International Law and new Procedural Rules for Adoptions in Germany

As a result of two recent reforms the German private international and procedural laws applicable to adoptions have changed quite substantively. Article 22 (1) sentence 1 of the Introductory Act to the German Civil Code (EG-BGB) now refers to the lex fori as the law applicable for all domestic procedures, and section 1 (2) of the Adoption effects Act (AdWirkG) introduces an obligatory recognition procedure for many foreign adoptions. The effects of these and other innovations are examined and evaluated in detail in this article.

H.-P. Mansel, Liberalization of the Private International Law of Marriage and Registered Civil Partnership: Remarks on the Place of Marriage and Registration as Connecting Factors

According to the new proposal of the German Council for Private International Law, the law of the “place of marriage” is to govern the establishment of a marriage or registered civil partnership. The article deals with this proposal and explores the question of how this place is to be determined in the case of an online marriage. It argues for the application of the law of the state where the register is kept.

B. Laukemann, Protecting procedural confidence against the insolvency estate?

According to Union law, the effects of insolvency proceedings on a pending lawsuit are governed by the lex fori – and thus not by the law of the opening Member State (s. Art. 18 European Insolvency Regulation [EIR], Art. 292 Directive 2009/138, Art. 32 Directive 2001/24). At first glance, the distinction between the lex fori and the lex concursus raised here does not cause any major problems of interpretation. But can the lex fori and its regulatory purpose, which is to guarantee protection of confidence and legal certainty in civil proceedings, also be brought into position against the liability regime of foreign insolvency proceedings? A look at Art. 7(2)(c) EIR, which, in turn, allocates procedural powers of a debtor and insolvency practitioner to the lex fori concursus, reveals the difficulties of a clear-cut demarcation between the law of the forum and the law governing insolvency proceedings. The present contribution seeks to pursue this classification problem, equally relevant in legal and practical terms, for the relevant pieces of secondary EU legislation. Recently, this legal question was submitted to the CJEU – due to the liquidation of an insurance company within the scope of the Solvency II Directive. The decision gives rise to critically examine the delimitation approach of the CJEU and to ask in general how the protection of procedural confidence, on the one hand, and insolvency-related liability interests of the creditors, on the other, can be brought into an appropriate balance.

J. Kondring, International Service by WhatsApp: Reflections on the Hague Service Convention and the 1928 Anglo-German Convention in Judgement and Recognition Proceedings

In times of electronic communication, the question arises whether cross-border service by means of electronic communication is possible. The Higher Regional Court (OLG) of Frankfurt a.M. had to decide this question in recognition proceedings for a Canadian-German service by WhatsApp. Neither the Hague Service Convention nor bilateral agreements such as the Anglo-German Convention of 1928 allow service by WhatsApp. In this respect, the article also ex-amines the interaction of section 189 German Code of Civil Procedure (ZPO) and Art. 15 of the Hague Service Convention in both judgment and recognition proceedings, including the relationship to the parallel Anglo-German Convention of 1928. In certain cases, Art. 15 of the Hague Service Convention moves aside and “neutralises” section 189 German Code of Civil Procedure and its legal consequences. For the recognition proceedings, Art. 15 of the Hague Service Convention will also have to be taken into account in the context of the examination of the regularity of service of the document instituting the proceedings.

S. Arnold, Applicability of Article 15(1)(c) Lugano II in cases of subsequent relocation of consumers

In its judgment (C-296/20), the ECJ follows the consumer-friendly course already taken in the mBank decision. It interpreted Article 15(1)(c) Lugano II (and by doing so also the corresponding Article 17(1)(c) Brussels Ibis Regulation). The court clarified that the provision governs the jurisdiction of a court also in such cases where a consumer who has contracted with a professional counterparty subsequently relocates to another contracting State. Thus, it is not necessary for the cross-border activities of the professional party to have already existed at the time the contract was concluded. Rather, the subsequent move of the consumer also constitutes the “pursuit” of the professional or commercial activity in the consumer’s member state. Consequently, the court strengthens the position of consumers. Even in the event of a subsequent move, they can rely on the (passive) forum of protection of Article 16(2) Lugano II and the (active) forum of Article 16(1) Lugano II at their place of residence. The burden that this decision places on the professional counterparty – the risk of foreign litigation even if the matter was purely domestic at the time the contract was concluded – seems reasonable, as choice of forum agreements (Art. 17 No. 3 Lugano II) remain possible as a means of protection.

A. Staudinger and F. Scharnetzki, The applicable law for the internal settlement between two liability insurances of a tractor-trailer combination – Karlsruhe locuta, causa non finita

If in a tractor-trailer combination the owners of the tractor unit and the trailer are not the same person and two different liability insurers cover the respective operating risk, the question arises as to the internal settlement between the two liability insurances. Here, first the conflict-of-law issue to be dealt with is the source of law that is to be used to determine the relevant statute for recourse. In its decision of 3 March 2021, the Federal Court of Justice endorsed an alternative approach based on Article 19 of the Rome II Regulation and Article 7 para. 4 lit. b) of the Rome I Regulation in conjunction with Article 46d para. 2 of the Introductory Act to the German Civil Code (EGBGB) for a situation in which a German liability insurer of the tractor seeks half compensation from a Czech trailer insurer. In the opinion of the authors, the IV. Civil Senate had, in light of the European Court of Justice’s decision of 21 January 2016 in the joined cases C-359/14 and C-475/14, an obligation to refer to the Court in Luxembourg under Article 267 para. 1 lit. b), para. 3 TFEU. So, the solution via Art. 19 Rome II Regulation seems hardly convincing, at most a special rule on conflict of laws like Art. 7 para. 4 lit. b) Rome I Regulation. Whether and to what extent Article 7 para. 4 lit. b) Rome I Regulation can be instrumentalized to enforce § 78 para. 2 VVG old version via Article 46d para. 2 EGBGB, however, should have been finally clarified by the European Court of Justice. In particular, it seems doubtful whether Article 46d para. 2 EGBGB as a national rule, which goes back to Art. 7 para. 4 lit. b) Rome I Regulation, allows a provision such as § 78 para. 2 VVG old version to be applied as a mere recourse rule between two insurers. This applies all the more since no special public interests or interests of injured parties worthy of protection are affected here.

C. Mayer, Relevance of the place of marriage for determining the applicable law in relation to the formal requirements of proxy marriage and online marriage

The decisions of the Federal Court of Justice and the Düsseldorf Administrative Court concern a double proxy marriage in Mexico and an online marriage via live video conference with an official from the US state of Utah. In both cases, the spouses were themselves in Germany. Both decisions focus on the conflict of law determination of the applicable law in relation to the formal requirements of marriage. Due to the German conflict of law rules in Art. 11 and Art. 13 Para. 4 EGBGB, the place of marriage is decisive. The Federal Court of Justice concludes that the double proxy marriage took place in Mexico, which is why the marriage was formally valid under the applicable local law. The Dusseldorf Administrative Court rules that the online marriage was concluded in Germany, so that only German law is applicable and the marriage is therefore formally invalid due to the lack of participation of a registrar. Both cases reveal inconsistencies in German conflict of laws.

S. Deuring, The Purchase of Trees Growing in Brazil: Not a Contract Relating to a Right in rem in Immovable Property or a Tenancy of Immovable Property

ShareWood, a company established in Switzerland, and a consumer resident in Austria had entered into a framework agreement and four purchase contracts for the acquisition of teak and balsa trees in Brazil. When the consumer demanded the termination of the purchase contracts, the question arose of whether this demand could be based on Austrian law, even though the parties had agreed that Swiss law should apply. Siding with the consumer, the ECJ ruled that contractual arrangements such as the present one cannot be considered contracts relating to a right in rem in immovable property or tenancy of immovable property pursuant to Art. 6(4)(c) of the Rome I Regulation. The non-applicability of this provision entails the applicability of Art. 6(2) cl. 2 of the Rome I Regulation. According to the latter, a choice of law may not have the result of depriving consumers of the protection afforded to them by provisions that cannot be derogated from by agreement by virtue of the law of the country where the consumer has his habitual residence. In consequence, the consumer could, in fact, base his action on Austrian law.

C. Benicke and N. Suchocki, Judicial approval for disclaimer of interests given by parents for their minor children – Polish cases of succession at German courts and the role of the special escape clause in Art. 15 (2) CPC 1996

Polish probate courts demand for judicial approval of any disclaimer of interest given by parents for their minor children, even if such an approval is not required under the law applicable according to Art. 17 of the Child Protection Convention 1996. If German law is applicable due to Art. 17 CPC 1996, in most cases a judicial approval for the disclaimer of interest is not required according to § 1643 (2) p. 2 BGB. As a consequence, German family courts having jurisdiction to issue a judicial approval according to Art. 5 (1) CPC 1996 cannot do so, because under German law, applicable according to Art. 15 (1) CPC 1996 no judicial approval can be issued if not required by the substantive law applicable according to Art. 17 CPC 1996. This leads to the situation that no valid disclaimer of interest can be made, even though both jurisdictions would allow it in a purely domestic case. Therefore, the question arises as to whether in such cases a German family court may issue a judicial approval due to Art. 15 (2) CPC 1996, which exceptionally allows to apply or take into consideration the law of another State with which the situation has a substantial connection. One of the various regulatory purposes of the special escape clause in Art. 15 (2) CPC 1996 consists in allowing the court to adjust the lex fori in order to solve an adaptation problem as it is in this case. The Higher Regional Court Hamm issued such a judicial approval in taking into consideration that the Polish law requires a judicial approval for the disclaimer of interest. We agree with the OLG Hamm in the result, but not in the justification. As Art. 15 (2) CPC 1996 refers only to Art. 15 (1) CPC 1996 the taking into consideration of Polish law cannot overrule that the law applicable according to Art. 17 CPC 1996 does not require a judicial approval. To solve the adaptation problem, it suffices that German law applicable according to Art. 15 (1) CPC 1996 is modified in so far that it allows the formal issuance of a judicial approval even though such an approval is not required by the substantive law applicable according to Art. 17 CPC 1996.

R. Hüßtege, German procedural law for obtaining a decision that the removal or retention of a child was wrongful – present and future

Art. 15 of the Hague Convention on the civil aspects of international child abduction requests that the applicant should obtain from the authorities of the State of the habitual residence of the child a decision that the removal or retention was wrongful within the meaning of Article 3 of the Convention. The procedure for obtaining the decision is regulated incomplete in the German implementation law. Most of the problems raised will, however, be remedied by the reform of the German implementing act.

P. Schlosser, Recognition even if service of the document initiating the proceedings had not taken place?

The author is submitting that Art. 22 of the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance provides only one alternative for refusing recognition to a maintenance Judgment (“may be refused”) and that, therefore, more liberal provisions in national Law are upheld. The German code of civil procedure, § 328, seems not to be more liberal, but must be seen in the light of the overwhelming principle of safeguarding the right to be heard in court. Yet, this principle is well safeguarded, if the proposed victim in the subsequent proceedings of exequatur gets a chance to assert what he would have asserted in the original litigation but, thereby, he had no chance to achieve a different result. Under these circumstances the contrary solution would amount to a refusal of justice to the other party.

B. Heiderhoff, Refugees and the Hague Child Abduction Convention

The ECJ held that the removal of a child cannot be wrong ful in the sense of Article 2(11) of Regulation No 2201/2003 (now Article 2 sec 2(11) of Regulation No 2019/1111), if the parent has complied with a decision to transfer under Regulation (EU) No 604/2013 by leaving the country. This decision makes a valid point, but seems too general and reaches too far. The contribution shows that the integration of family law and migration law is insufficient and urges better coordination between the actors to achieve better protection of the child.

T. Frantzen, Norwegian International Law of Inheritance

Norway adopted a new act on inheritance and the administration of estates in 2019. The act came into force on 1 January 2021. The new act is based on the principles of the act on inheritance from 1972 and the act on administration of estates from 1930. This means that descendants may claim a forced share of 2/3 of the estate, however with a limitation of approximately 150,000 Euro. With the new act the amount has been increased, and it is regulated each year. A surviving spouse may, as before, claim a legal share. The spouse may alternatively choose to take over the so-called undivided estate. This means that the division of the estate is postponed.
Until the new succession act was adopted, Norwegian choice of law rules on succession were based on customary law. The general principle was that succession was governed by the law of the State in which the deceased had her/his last domicile, and that there was no, or a very limited space, for party autonomy.
The new act decides that the administration of estates may take place in Norway if the deceased had her/his last habitual residence in Norway. When it comes to succession, the main rule is that succession is governed by the law of the State where the deceased had her/his last habitual residence. Party autonomy is introduced in the new act, as a person may choose that succession shall be governed by the law of a State of which he or she was a national. The decision on the choice of law is however not valid if the person was a Norwegian citizen by the time of death. The few provisions on choice of law are based on the EuErbVO.

C. Jessel-Holst, Private international law reform in North Macedonia

In 2020, North Macedonia adopted a new Private International Law Act which replaces the 2007 Act of the same name and applies from 18.2.2021. The new Act amounts to a fundamental reform which is mainly inspired by the Acquis communautaire. It also refers to a number of Hague Conventions. The Act contains conflict-of-law rules as well as rules on procedure. Many issues are regulated for the first time. The concept of renvoi is maintained but the scope of application has been significantly reduced. As a requirement for the recognition of foreign judgments the Act introduces the mirror principle. As was previously the case, reciprocity does not constitute a prerequisite for recognition and enforcement.

As announced in an earlier post, the International Law Association will celebrate its 150 anniversary next year through a number of events.

The celebration will start with an inaugural conference which will take place on line on 12 January 2023 and will discuss the role of parliaments in the creation of International Law so that to increase its legitimacy.

Throughout 2023, webinars will be organised on a variety of topics, including Democracy, Governance, Digital challenges, Civil Status, Anthropocene, Taxation and many others. Each of these webinars is prepared by a White Paper, which will be the focus of the webinar. Members of the public are invited to review the White Papers and comment on them until 31 December 2022 or 31 January 2023.

The organisation has already issued 10 Newsletters, which can be found here.

The programme of the webinars is available here. The White Papers can be accessed here. Registration for these events can be made here.

On 7 December 2022, as announced through the Commission Press Corner, the European Commission adopted a proposal for a Regulation aimed at harmonising at EU level the rules of private international law relating to parenthood.

The proposal is focused on the best interests and the rights of the child. It will provide legal clarity for all types of families, who find themselves in a cross-border situation within the EU, be it because they move from one Member State to another to travel or reside, or because they have family members or property in another Member State. One of the key aspects of the proposal is that the parenthood established in a Member State of the EU should be recognised in all the other Member States, without any special procedure.

Union law as interpreted by the European Court of Justice, notably on free movement, already provides that parenthood established in a Member State should be recognised in all the other Member States for some purposes: access to the territory, right of residence, non-discrimination with the nationals. However, this is not the case for the rights derived from national law.

Today’s proposal allows children in cross border situations to benefit from the rights derived from parenthood under national law, in matters such as succession, maintenance, custody or the right of parents to act as legal representative of the child (for schooling or health matters).

Background

Commission President von der Leyen said in her 2020 State of the Union speech that “If you are parent in one country, you are parent in every country”. With this statement, the President referred to the need to ensure that the parenthood established in a Member State is recognised in all other Member States for all purposes.

EU citizens can live and work in different EU countries. They travel, move for work, buy houses, start families. At the moment, Member States have varying national laws on the recognition of parenthood, so when a family finds itself in a cross-border situation, it might lose the rights derived from parenthood under national law.  The non-recognition of parenthood puts at risk the fundamental rights of children, including their right to an identity, to non-discrimination and to a private and family life.

The proposal was identified as a key action in the EU Strategy on the rights of the child and the EU LGBTIQ Equality Strategy. The European Parliament welcomed the Commission’s initiative in its Resolution on the protection of the rights of the child in civil, administrative and family law proceedings and in its Resolution on LGBTIQ rights in the EU. The Council conclusions on the EU Strategy on the rights of the child underline that children’s rights are universal, that every child enjoys the same rights without discrimination of any kind and that the best interests of the child must be a primary consideration in all actions relating to children, whether taken by public authorities or by private institutions.

Protecting Children Rights

The proposal aims at protecting the fundamental rights of children, providing legal certainty for the families, and reducing the legal costs and burden for the families and the Member States’ administrative and judicial systems.

The main elements of the proposal include: (a) designation of the jurisdiction: the proposal determines the courts of the Member States that have jurisdiction in matters related to parenthood, ensuring the best interest of the child; (b) designation of the applicable law:as a rule, the law applicable to the establishment of parenthood should be the law of the State of the habitual residence of the person giving birth. Where that rule results in the establishment of parenthood as regards only one parent, alternative options ensure that parenthood can be established as regards both parents; (c) rules for recognition of parenthood: the proposal provides for the recognition of court decisions and authentic instruments establishing or providing evidence of the establishment of parenthood. As a rule, parenthood established in a Member State, should be recognised in all the other Member States, without any special procedure; (d) creation of a European Certificate of Parenthood: children (or their legal representatives) can request it from the Member State which established parenthood, and choose to use it to prove their parenthood in all the other Member States. The Commission proposes a harmonised template, common to the whole EU. The use of the Certificate would be optional for families, but they have the right to request it and to have it accepted all over the EU.

The proposal will complement other EU private international law rules, on matters such as succession. It does not harmonise substantive family law, which remains the competence of the Member States.

Next Steps

The Commission’s proposal has to be adopted unanimously by the Council, after consulting the European Parliament. Five years after the Regulation becomes applicable, the Commission will evaluate its application by Member States and may propose amendments.

Shahla F. Ali, Filip Balcerzak, Adam Mickiewicz, Giorgio Fabio Colombo, and Joshua Karton have edited a collection of essays titled Diversity in International Arbitration – Why it Matters and How to Sustain It, which has recently been published by Edward Elgar.

After decades of focus on harmonization, which for too many represents no more than Western legal dominance and a largely homogeneous arbitration practitioner community, this ground-breaking book explores the increasing attention being paid to the need for greater diversity in the international arbitration ecosystem. It examines diversity in all its forms, investigating how best to develop an international arbitral order that is not just tolerant of diversity, but that sustains and promotes diversity in concert with harmonized practices.

Offering a wide range of viewpoints from a diverse and inclusive group of authors, Diversity in International Arbitration is a comprehensive and insightful resource on a controversial, fast-moving subject. Chapters present arguments from practitioner, academic, institutional and governmental perspectives that identify the underlying issues and address the various ways in which the goal of diversity, whether demographic, legal, cultural, professional, linguistic, or philosophical, can be reached.

This book’s analysis of the contemporary state of diversity in international arbitration will be a crucial read for researchers in the field. Practitioners and policy makers will also find its discussion of best practices and innovative initiatives for enhancing diversity to be invaluable.

More information available here.

This post was written by Felix M. Wilke, University of Bayreuth.

The new EU Sale of Goods Directive 2019/771 and its sibling, the Supply of Digital Content and Digital Services Directive 2019/770, understandably have attracted a lot of attention in the field of substantive private law. By contrast, to my knowledge, their (negative) private international law dimension has not been featured in any prominent way yet. In this post, I want to highlight and contextualize this aspect. Any input, e.g. regarding directives I might have missed or explanations different from the ones I offer, is very much welcome.

The Wonderful World of Conflict of Laws in EU Directives

When faced with the term “EU Conflict of Laws”, most people will nowadays immediately think of the different regulations in this area: Rome I to III, the Succession Regulation etc. But this is not the whole story. Some of the Union’s provisions with a direct impact on private international law can be found in directives. Beginning with Article 6(2) of the Unfair Terms Directive 93/13/EEC, many of such instruments on the protection of consumers required the Member States to take “the necessary measures to ensure that the consumer does not lose the protection granted [by the respective legal instrument] by virtue of the choice of the law of a non-Member country as the law applicable to the contract if the latter has a close connection with the territory of the Member States”. Other examples are Article 12(2) of the Distance Marketing of Consumer Financial Services Directive 2002/65/EC and Article 22(4) of the Consumer Credit Agreements Directive2008/48/EC.

Moreover, Article 12(2) of the Time Sharing Directive 2008/122/EC sets forth that, under certain conditions, “consumers shall not be deprived of the protection granted by this Directive, as implemented in the Member State of the forum” where the law of a third country is applicable. (While Articles 17–19 of the new Package Travel Directive 2015/2302 have an obvious connection to conflict of laws, they operate differently.)

All these provisions are still in force. National law of the Member States must contain respective rules – and these rules clearly must be conflict-of-law rules, as they have to affect situations in which the law of a third country would otherwise be applicable (mostly because of a choice by the parties).

A Change of Heart between 2008 and 2011?

Things are different for the new Sale of Goods Directive. While Article 7(2) of the old Sale of Goods Directive1999/44/EC was drafted along the lines of the examples just mentioned, any such provision is now missing from the directive repealing it. (The Supply of Digital Content and Digital Services Directive does not introduce a conflict-of-law provision, either.) The same fate befell Article 12(2) of the Distance Contracts Directive 97/7/EC when the Consumer Rights Directive 2011/83/EU repealed it. From this perspective, EU private international law has actually lost two provisions in the last decade or so.

As the EU legislator seems to have changed its stance on this issue between 2008 and 2011, two possible reasons from this period suggest themselves. The first concerns the new approach to harmonisation of substantive private law by directives, the second the emergence of EU regulations on conflict of laws.

Full Harmonisation

The Distance Contracts Directive and the old Sale of Goods Directive were minimum harmonisation directives. The Member States could maintain or introduce provisions if they ensured a higher level of consumer protection. By contrast, both the Consumer Rights Directive and the new Sale of Goods Directive are full harmonisation directives. Unless otherwise provided, Member States may not maintain or introduce divergent provisions, whether less or more stringent.

Yet no clear link of this changed approach to harmonisation with the present conflict-of-law issue is apparent. True, it is now more or less irrelevant which national law of an EU Member State is applicable to a sale of goods to a consumer. The key rules will be the same across the board (also see Recital 10 Sale of Goods Directive). But this is not with what the respective old provisions and the remaining provisions in other directives were and are concerned. They were and are about protecting the consumer from the application of the (disadvantageous) law of a third country.

Rome I and Choice of Law (in Consumer Contracts)

For anyone interested in EU private international law, the years between 2007 and 2009 have, of course, special significance. In this time frame, the first EU regulations on conflict of laws were passed and became applicable. In particular, Rome I was passed in 2008 and has been applicable to contracts concluded as from 17 December 2009. So, are the rules found in Rome I on consumer contracts and choice of law in general the reason for the lack of conflict-of-law provisions in more recent directives?

As a matter of law, the answer must be negative. This is because the scope of application of Articles 6(2) and 3(4) of the Rome I Regulation on the one hand and of the conflict-of-law rules in the directives on the other hand do not perfectly overlap: The provisions in the directives have not entirely become redundant once Rome I entered into force. For one, Article 6(4) of Rome I excludes certain contracts. For another, even the relatively broad requirement of “directing activities” in Article 6(1)(b) of Rome I only pertains to the Member State in which the consumer is habitually resident. A consumer concluding a contract in another Member State may not be protected even where Article 6 Rome I would encompass a consumer habitually resident in that country. Finally, Article 3(4) Rome I is too narrow to catch all cases subject to the conflict-of-law provisions in directives.

As a matter of policy, however, one can assume that Rome I was a big factor. The Commission’s Proposal for the new Sale of Goods Directive does refer to the protection of consumers under Rome I, although only in the context of compatibility of the draft with EU private international law. (See also Recital 65 Sale of Goods Directive.) When the Commission states that the legislative proposal “does not require any changes to the current framework of EU private international law”, it is not clear whether it took the actual change it proposed to make to EU private international law – eliminating a conflict-of-law provision – into account.

Is there Reason to Mourn?

Life is easier without conflict-of-law provisions in directives, to be sure. Nothing to transpose for national legislators, and no reason for courts to even think about special national conflict-of-law rules favouring consumers. Does this offset the detriments to consumers? One can certainly think so. While the exclusion of some consumers from the protection offered by Article 6 Rome I can lead to some strange results, they only affect a very small number of situations. The practical impact of the conflict-of-law provisions in directives does not seem to have been very big, anyway. As far as I can tell, the Court of Justice only had to deal with any of these provisions once: Case C-70/03 (Commission v. Spain) concerns Spain’s too restrictive transposition of Article 6(2) of the Unfair Terms Directive into its national law.

In any case, the death of conflict-of-law provisions in directives should not be silent. Unlike during the legislative process leading to the Consumer Rights Directive and the new Sale of Goods Directive, the EU legislator should openly communicate that – and preferably also why – it considers such provisions unnecessary. And this not only from a scholarly perspective: In the highly complex realm that is EU (substantive) consumer law, a national legislator might simply miss that a conflict-of-law provision transposing one of the old directives has now lost its base.

December is a relatively short month at the Court of Justice. Very little is happening in PIL (much more on other topics such as the independence of judges or data protection). On 8 December 2022, a hearing will take place in relation to case C-638/22 PPU Rzecznik Praw Dziecka e.a., on the suspension of a Hague return decision – and that will be it.

The Sąd Apelacyjny w Warszawie (Poland) has referred to the Court of Justice a question on Regulations 2201/2003 and 2019/1111:

Does Article 11(3) of Council Regulation (EC) No 2201/2003 [the Brussels II bis Regulation], and Article 22, Article 24, Article 27(6) and Article 28(1) and (2) of Council Regulation (EU) No 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility [Brussels II ter], read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, preclude the application of a provision of national law under which, in cases involving the removal of a person subject to parental responsibility or custody conducted under the Convention on the Civil Aspects of International Child Abduction adopted in The Hague on 25 October 1980, the enforcement of an order for the removal of a person subject to parental responsibility or custody is suspended by operation of law where the Prokurator Generalny (Public Prosecutor General), Rzecznik Praw Dziecka (Commissioner for Children’s Rights) or Rzecznik Praw Obywatelskich (Ombudsman) submits a request to that effect to the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw) within a period not exceeding two weeks from the day on which the order becomes final?

In case at hand, the father (applicant) and the mother (defendant) are Polish nationals who have resided and worked for more than ten years in Ireland. Their two children, aged 5 and 11 have both Polish and Irish nationality.

In the summer of 2021, the defendant went on vacation to Poland with her children with the applicant’s consent. In September 2021, she informed him that she had decided to stay with them in Poland permanently. Two month later, the applicant brought before the Polish courts an application under the 1980 Hague Convention for the return of the children. The court of first instance agreed to the request; a subsequent appeal by the defendant was dismissed. However, she failed to comply with the order for the return of the children within the time limit of 7 days. Therefore, on September 29, 2022, the applicant submitted a request to have an enforcement form appended to the return order, with a view to initiating enforcement proceedings. On 30 September 2022, the Rzecznik Praw Dziecka (Children’s Rights Ombudsman) submitted an application for a stay of execution of the return order, based on a provision of the Polish civil procedure code whereby “In cases involving the removal of a person subject to parental responsibility or custody brought under [the 1980 Hague Convention], at the request of the entity referred to in Article 5191(2)2 notified to the court referred to in Article 5182(1) within a period not exceeding two weeks from the date on which the order for the removal of the person subject to parental responsibility or custody becomes final, the enforcement of such order shall be suspended by operation of law”. On October 5, 2022, a similar request was made by the Prokurator Generalny (Attorney General).

The referring court’s application for the urgent procedure was granted. The case will be decided by the third chamber (judge K. Jürimäe reporting; M. Safjan, N. Piçarra, N. Jääskinen, M. Gavalec), supported by AG N. Emiliou.

The third edition of Talia Einhorn’s textbook on Private International Law in Israel is out, published by Wolters Kluwer.

This third, wholly updated and expanded edition provides a clear, comprehensive statement and analysis of private international law in Israel. Israel’s private international law (PIL) regime is not codified, nor is it clearly traceable to any one legal system. Most Israeli PIL sources are available in Hebrew only. On many legal matters there is neither legislation nor case law. There are, however, legal principles from which the pertinent rules may be deduced. Consequently, this study does not confine itself to the rules already existing in Israeli PIL, but also establishes rules in areas where such are missing. In the process of establishing PIL rules, Israeli courts are often directed by parties to engage in a comparative study as to how such problems are solved elsewhere, especially in the European Union and in its Member States, in particular England, due to the affinity of Israeli law to English law since the British Mandate, and in the United States. Therefore, this study offers comparative insights regarding the possible options open to Israeli courts when establishing or refining Israeli PIL rules.

Subjects covered include: national and international sources of Israeli PIL; principles of establishing the applicable law; characterization, substance and procedure, ordre public; renvoi, block reference, economic conflict-of-law rules; natural and legal persons; contractual and non-contractual obligations; property law, incl. IP, means of transportation, cultural property and trusts; company law, incl. dual-listed companies and corporate groups; cross-border insolvency proceedings; family law – both religious laws and secular, territorial laws, matters of marriage and divorce, handled by Jewish, Muslim and Christian religious tribunals, the recognition of civil marriage celebrated abroad, reputed spouses, same-sex spouses and transgenders, personal effects of marriage, maintenance obligation between spouses, determination of parenthood, child adoption, child maintenance, custody of minors, guardianship/parental authority, and child abduction; international succession law; international civil procedure – incl. jurisdictional immunities; international jurisdiction; detailed analysis of procedure in international litigation in Israel; proof of foreign law; judicial assistance; recognition and enforcement of foreign judgements; and international arbitration.

For more information, see here.

The 16th edition of the Dicey, Morris & Collins on the Conflict of Laws, edited jointly by Lord Collins of Mapesbury (LLD, FBA) and Jonathan Harris KC (Hon.), has been published by Sweet & Maxwell.

Dicey, Morris & Collins on the Conflict of Laws deals with private international law issues. It explains the rules, principles and practice that determine how the law of England & Wales relates to other legal systems. Its commentary, rules and illustrations, with detailed reference to international conventions, legislation and case law, provide a compass for practitioners engaged in cross-border matters.

It is composed of two Volumes and a Companion Volume.

Volume 1 deals with general principles, the effects of withdrawal by the United Kingdom from the European Union, foreign affairs and the conflict of laws, procedural issues relating to international litigation, jurisdiction, recognition and enforcement of foreign judgments and arbitration. Volume 2 is about specific areas of law, such as family law, property law, succession and trusts, corporations and insolvency and the law of obligations.

Finally, a Companion Volume considers in greater detail the transitional issues arising from the United Kingdom’s withdrawal from the European Union and the relevant EU legislation in a number of key areas. It analyses the relevant transitional provision in the Withdrawal Agreement concluded between the United Kingdom and the European Union, as well as domestic legislation on transitional issues. It analyses the relevant EU law in areas likely to remain relevant for the foreseeable future, including in relation to lis pendens and the recognition and enforcement of judgments from EU Member States. It considers the relevant family legislation in the Brussels II bis and Maintenance Regulations. The Companion Volume also includes detailed coverage of relevant provisions of the recast Insolvency Regulation.

Further information available here.

The Experts’ Group on the Parentage/Surrogacy Project of the Hage Conference on Private International Law (HCCH) has issued its Final Report on The feasibility of one or more private international law instruments on legal parentage  on 1 November 2022.

The conclusions of the report are as follows:

The Group agreed on the desirability of, and urgent need for, further work by the HCCH in the form of a binding PIL instrument on legal parentage in general (a Convention) and a binding PIL instrument on legal parentage established as a result of an ISA specifically (a Protocol).

The conclusions of the Group with respect to the feasibility of some of the key elements of a Convention and a Protocol are set out in boxes throughout (and annexed to) this Report.

The Group concluded on the general feasibility of developing a Convention dealing with the recognition by operation of law of foreign judicial decisions on the establishment and contestation of legal parentage.

The Group also concluded on the general feasibility of rules on recognition by operation of law of legal parentage as a result of an ISA established by judicial decision in a Protocol. Feasibility will depend in particular on how safeguards / standards are addressed.

Owing to the particularly complex and sensitive nature of the topic, the Group noted some key feasibility challenges going forward, which include:

-For a Convention, whether or not to include:
⇒ domestic adoption;
⇒ rules on uniform applicable law for the establishment of legal parentage; and
⇒ rules on public documents.
-For a Protocol, the way to address safeguards / standards.
-For both instruments, scope issues related to legal parentage established as a result of a domestic surrogacy arrangements and / or ART involving a third-party individual (donor) and legal parentage established by domestic adoptions following a surrogacy arrangement.
-Some experts agreed on the feasibility of advancing work on only one instrument, while others did not think that advancing work on one instrument without the other would be feasible.

While different elements to be included in a Convention and / or a Protocol, when taken individually, seemed to be feasible, this assessment might change depending on decisions taken on other elements. For example:

-For some experts, any instrument would only be attractive to States if it also addressed legal parentage established without a judicial decision, given that, in the majority of cases, legal parentage is established by operation of law or following an act. For other experts, this did not seem a key issue and / or those experts questioned the feasibility of agreeing rules on legal parentage without a judicial decision in an instrument.
-Although the Group agreed on the need for safeguards / standards in a possible Protocol, experts had different views as to which safeguards / standards should be included and how they should feature. For many experts, a Protocol would only be feasible if it included uniform safeguards / standards included directly in a Protocol, some of which featuring as conditions for recognition, others as grounds for refusal. For some experts, a Protocol would rather be feasible if it included State-specific safeguards / standards indirectly in a Protocol with a declaration mechanism and grounds for refusal.

The Group finally recommends the establishment of a Working Group to explore the provisions on a possible convention and protocol.

The third 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 four contributions.

Giovanna Adinolfi, States’ Economic Measures to Counter Cyberattacks: Disentangling their (Il)Legitimacy under International Law

The present contribution draws the attention on measures adopted by States to tackle actual or potential cross-border cyberattacks and that may have an impact on international commercial transactions. With a look to the more recent practice, the distinction is proposed between response measures (addressed against those held responsible for cyberoperations that have caused an injury to the target State) and anticipatory or preventive measures (intended to prevent cyberattacks). Against this backdrop, the issue is addressed as to whether both types of measures represent international unlawful acts which find a justification within the international legal order. 

Bruno Barel, Le notificazioni nello spazio giuridico europeo dopo il regolamento (UE) 2020/1784 (Service of Documents in the European Judicial Area after Regulation (EU) 2020/1784)

The second recast of the uniform rules on the service of judicial and extrajudicial documents in civil or commercial matters introduced three innovative elements of particular relevance to the original framework, that dates back to the year 2000 (and which had already been subjected to recasting in 2007). Two of these novel provisions relate to the technological evolution of remote communications, and they consist of the institution of a common IT system for the telematic transmission of acts and documents between national authorities and of the – albeit timid and prudent – opening to direct forms of service by electronic means between individuals, thus surpassing the mediation of authorities. The third – and equally careful – novel provision attempts to reinforce the assistance between the authorities of different Member States aimed at identifying the address of the person to be served. Moreover, the most innovative part of the regulation will be fully operational only in 2025, in expectation of the full development of the decentralised IT system.

Pietro Franzina, Il ruolo degli Incoterms nella determinazione convenzionale del luogo della consegna: note critiche sulla giurisprudenza della Cassazione (The Role of Incoterms in the Determination by Agreement of the Place of Delivery: Critical Notes on the Case Law of the Italian Court of Cassation)

By a recent ruling (Order No 20633 of 28 June 2022), the Italian Supreme Court addressed the issue of the role played by Incoterms in the determination of the place of delivery of the goods for the purposes of Article 7 No 1(b), of Regulation No 1215/2012 of 20 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. As in previous rulings on the same subject, the Supreme Court was reluctant to regard the incorporation of Incoterms into a contract as signalling the parties’ agreement on the place of delivery. Specifically, the Supreme Court dismissed the claim by the Italian seller that the contract in question had been agreed “EXW” its own premises in Italy: the Court acknowledged that the goods had in fact been picked up by a carrier hired by the buyer at the seller’s premises, but found that the parties had failed to agree “clearly” on the place of delivery, as it could not be established that the parties had unequivocally intended to make the seller’s premises the place of delivery of the goods for the purposes of jurisdiction. The paper contends that the approach of the Italian Supreme Court contradicts the principles laid down by the Court of Justice in Car Trim and Electrosteel. The approach is unpersuasive in two respects. First, the Supreme Court regards the parties’ agreement on the place of delivery as a derogation from the “general rule” whereby delivery must be understood to be due, for jurisdictional purposes, at the place of final destination of the goods (whereas, according to the Court of Justice, the latter is just a residual rule, which applies where the parties have failed to agree on the place of delivery). Secondly, the Supreme Court disregards the rules of interpretation adopted by the International Chamber of Commerce to describe the parties’ obligations under the different Incoterms, and follows, instead, its own understanding of the Incoterms concerned: actually, the Supreme Court asserted in the decision reviewed that, “as a rule”, the Incoterm EXW only relates to the allocation of the costs of transport and the transfer of risk, and has no bearing as such on the determination of jurisdiction. 

Michele Grassi, Riconoscimento del rapporto di filiazione omogenitoriale e liberta` di circolazione all’interno dell’Unione europea (Recognition of Same-Sex Parentage and Freedom of Movement within the European Union)

This paper aims to provide a critical analysis of the judgment rendered by the Court of Justice of the European Union in the Pancharevo case, where the Court was confronted with the sensitive issue of same-sex parenthood and its recognition in the context of free movement rights within the Union. The investigation focuses on the functional approach adopted by the Court of Justice in the application of the mutual recognition principle, and its possible implications on the recognition of same-sex parenthood for wider purposes, not directly linked to the exercise of free movement rights.

The UNCITRAL Model Law on International Commercial Arbitration – A Commentary, authored by Gilles Cuniberti, has just been published by Edward Elgar, part of the Elgar Commentaries in Private International Law series.

This Commentary provides rich and detailed analysis both of the provisions of the UNCITRAL Model Law on International Commercial Arbitration (the Model Law), and of its implementation, including a comparative account of the operation of the Model Law in the numerous jurisdictions which have adopted it throughout the world.

Key features: comparative and thorough analysis of the provisions of the Model Law; consideration of the interpretations of the Model Law adopted by courts, with references to numerous cases from common law jurisdictions (Singapore, Hong Kong, India, Australia, New Zealand, Canada), Germany and Austria, central Europe (Poland, Hungary, Bulgaria), Spain, South Korea and Egypt; insight into variations in the statutory implementation of the Model Law in various jurisdictions across Europe, Asia, the Middle East and Latin and North America, with the most common amendments identified and highlighted; discussion on whether the amendments adopted in Model Law jurisdictions should be persuasive in other Model Law jurisdictions.

Exploring how the Model Law is applied and interpreted in multiple jurisdictions, this practical and exhaustive commentary will be an essential resource for arbitrators and commercial litigators and will also appeal to scholars in the fields of arbitration, international dispute resolution, and international commercial law.

Further information can be found here.

The author of this post is Cristina González Beilfuss (University of Barcelona).

The MPA case (Case C-501/20), decided by the CJEU on 1 August 2022, deals, at first sight, with a fairly unusual divorce scenario. The Spanish wife and the Portuguese husband are two members of the contract staff of the European Union working in the latter’s delegation in Togo. Leaving this aspect aside, the case, however, turns out to be quite ordinary. As highlighted by Advocate General Szpunar in his opinion, the situation of European citizens posted to a third State for work reasons is fairly commonplace.

EU expats might have an expectation to be able to divorce in the European Union, particularly, when their connection with the third State in question is tenuous. This seems to be the case here. The spouses were formerly based in Guinea – Bissau; whether they were already employed by the EU at that stage cannot be ascertained by reading the judgment or the Advocate General’s Opinion, but can be safely assumed. In any case, their degree of integration in either Guinea Bissau or Togo seems to be relative. The couple chose to get married in the Spanish Embassy in Guinea-Bissau and the Spanish wife came to Spain to give birth to their two children in 2007 and 2015. It therefore might have seemed only natural to her to file the divorce petition in Spain.

The divorce claim was, in fact, quite standard; she sought the dissolution of the marriage, a decision on the custody of the two children of the marriage and the award of maintenance for the children, including the use of the family home in Togo. But apparently the husband refused to accept that the marriage was over, which is why the divorce became contentious. This was most unfortunate because empirical research has shown that habitual residence is very often not examined unless it is a contested matter, as happened in this case. The court of first instance declined hearing the case. The decision was appealed, because the wife wanted to divorce. The Court of Appeal in Barcelona subsequently made a request for a preliminary ruling on a number of issues.

As regards the dissolution of the marriage, which is the aspect dealt with in this entry, the most significant question referred to the CJEU was the interpretation of the rule formerly contained in Article 6 of Regulation 2201/2003. Many commentators have found this rule confusing, particularly in connection with Article 7 (residual jurisdiction). A clarification by the CJEU is therefore most welcome.

The CJEU chose to interpret the rule literally. A spouse who is habitually resident in a Member State or who is a national Member State can only be sued in another Member State in accordance with the rules of jurisdiction contained in the Regulation. This entails that in an expat situation only the courts in the Member State of the defendant’s nationality (i.e. in the case at hand the courts in Portugal) can have recourse to domestic residual jurisdiction rules. The courts in the Member State of the plaintiff’s nationality have to decline hearing the case. This is what the requesting Court, the Court of Appeal in Barcelona, has done in a decision rendered on the 21 October 2022.

The purpose of this post is not to question the interpretation of the CJEU nor the decision of the Spanish Court. The main problem is, in my view, that the rule as such does not make sense. In the context of marriage dissolution in the strict sense, i.e. in connection with the continuation of the matrimonial bond, there is, in my view, no justification for protecting the defendant, i.e. the spouse that does not want the divorce and making life difficult for the spouse who wants to dissolve the marriage. The rule is moreover only workable if the divorce is contentious and one can distinguish between a defendant and a plaintiff. Would the Spanish court have been able to resort to its domestic rules of jurisdiction had the spouses decided to jointly request the divorce?

 And what are the consequences of the rule? If the Spanish wife wants to divorce in the EU, she has to go to Portugal. Whether Portuguese courts have jurisdiction is, however, uncertain. Article 62 of the Portuguese Código de proceso civil grants international jurisdiction to Portuguese courts when the action may be brought before a Portuguese court under the rules of territorial jurisdiction. Such rules allocate jurisdiction to the courts of the habitual residence or domicile of the plaintiff. The Portuguese courts also have jurisdiction if the fact that gave rise to the cause of action in the lawsuit or any facts leading to the cause of action have taken place in Portugal. Since the Spanish wife never had an habitual residence or domicile in Portugal and there is no factual connection to Portugal, the only possibility left would be to argue that Article 62(c) of the Código de proceso civil, containing a forum necessitatis, applies. The rule seems to be more open ended than the European forum necessitatis as available under the Maintenance, the Succession, the Matrimonial Property and the Registered Partnership Regulations. It grants jurisdiction to the Portuguese courts when effect cannot be given to the invoked right other than through an action filed in Portuguese territory or the claimant has appreciable difficulty in commencing an action abroad, as long as there is a relevant connecting element, either personal or physical, between the subject matter of the dispute and the Portuguese legal order.

A forum necessitatis is, in principle, only available exceptionally if the proceedings in question cannot reasonably be brought or conducted or would be impossible in the third State in question. This has been examined by the Court of Appeal of Barcelona in relation to the maintenance claim ancillary to the divorce petition. Following the guidance given by the CJEU in the MPA decision, the court undertook a detailed analysis of the procedural conditions in Togo and their consequences on the individual case and reached the conclusion that there is no evidence that access to court would not be possible or extraordinarily difficult in Togo.

If the Portuguese courts reached the same conclusion and the Portuguese forum necessitatis was also found to be inapplicable, the Spanish wife would have to seek divorce in Togo. And assuming that they accepted to hear the case, would the courts in Togo dissolve the marriage?  In accordance with Article 714 of the Code des personnes et familles of Togo, the courts in Togo would, in the absence of a common nationality of the spouses, apply the law of their common domicile i.e. the law of Togo. Under the law of Togo divorce is available either on the basis of mutual consent (which is not the case here) or in the absence thereof, on the ground of fault. The Spanish wife would have to plead and prove that marital life had become intolerable as a result of infidelity, excesses, abuse or insults attributable to her husband; that the family life and the safety of children are seriously compromised by notorious misconduct, moral or material abandonment of the home or the sentencing of one of the spouses to a firm sentence exceeding four years of imprisonment. Other grounds are impotence or definitive medical sterility or a refusal to consummate the marriage. Failing that the required separation period would be of at least five years. A stark contrast to the situation under Spanish law which takes the position that nobody should be forced to stay in a marriage he or she no longer wants and accepts divorce on unilateral demand! And to the situation under Portuguese law where divorce can be requested after a de facto separation of only one year!

A forum patriae thus appears to be necessary in order to guarantee access to divorce, not to court. Given the development of EU citizenship which the CJEU has repeatedly stated is destined to be the fundamental status of nationals of the Member States, it is outdated to provide a forum patriae only if spouses hold the nationality of the same Member State, and to treat the situation of an expat couple of EU citizens in the same manner as that of a couple where only one spouse is an EU citizen and even more so as the situation of a couple of an EU citizen and a third State national who happens to be a national of the third State in question.

The implications of EU citizenship in connection with access to European courts were not analysed in the MPA case, simply because the argument was not raised. In his Opinion on Case C‑603/20 PPU, which the CJEU did not follow, Advocate General Rantos derived from Article 20 of the TFUE a right to have parental responsibility examined by a court of a Member State, if the child is an EU citizen (paras 76 and 77). The idea should be further explored in connection with marriage dissolution.

The 2006 Commission Proposal for the amendment of Regulation 2201/2003, which was withdrawn included a provision stipulating that, where neither of the spouses is habitually resident in the territory of a Member State and the spouses do not have the common nationality of a Member State, the courts of a Member State should be competent by virtue of the fact that: (a) the spouses had their common previous habitual residence in the territory of that Member State for at least three years; or (b) one of the spouses had the nationality of that Member State (Article 7 of the Proposal). Life would have been easier for the Spanish wife had this proposal been adopted. In the end, she has been lucky though, because the husband has returned to the EU! Otherwise she would continue being trapped in a marriage that she no longer wants.

As noted earlier on this blog, on 2 December 2022, from 4 pm to 5.30 pm (MET), EAPIL will hold a joint Seminar via Zoom with the British Institute of International and Comparative Law (BIICL). The Seminar will focus on the review of the Rome II Regulation.

Those wishing to attend have time until 30 November 2022 at noon (MET) to register. The registration form is available here.

Registered participants will receive the details to join the Seminar by e-mail the day before the Seminar (please note the e-mails with these details occasionally end up in the spam folder).

For more information, please write an e-mail to secretary.general@eapil.org.

The Research Group on Private International Law of the University of Silesia (Poland) organizes a conference titled Ukraine-Poland. The Choice of Law Aspects of War and Forced Displacement.

The event will be held on 8 December 2022 from 9:00 – 17:30, in a hybrid formula: at the Faculty of Law and Administration of the University of Silesia in Katowice and online. It will focus on personal, family, inheritance matters. The detailed conference program is available here.

Those interested in attending are must register via an online form. Online participation in the conference is free of charge. The conference will be held in Polish, Ukrainian and English.

This post was contributed by Caroline Sophie Rupp, who is a professor at the University of Kiel.

Credit: dpa

To vary an adage, “sad cases make sad law“. The case at hand, regarding the return of a child to its father in Spain after being brought to Germany by its mother, illustrates this.

After a lengthy legal battle, a Spanish judgment ordered the return of the child. Having unsuccessfully attempted to have the enforcement in Germany (based on a certificate according to Article 42 of the Brussels II bis Regulation) temporarily stayed with the enforcement court, the mother applied to the German Constitutional Court (Bundesverfassungsgericht, hereinafter: BVerfG) for interim relief. This was granted – temporarily – on August 1, 2022 by the 3rd chamber of the BVerfG’s First Senate (1 BvQ 50/22, ECLI:DE:BVerfG:2022:qk20220801.1bvq005022). However, the story is far from over. There have been several extensions of this interim relief, and a constitutional complaint has been lodged in the name of the child.

The history of the case is as long as it is complicated (part I), eventually leading to the BVerfG’s decision (part II). A selection of the many issues touched upon by the case will then be highlighted (part III).

I. A Legal Odyssey

In August 2013, a son was born in Madrid to unmarried parents. After their separation in March 2014, the mother took the child with her to Germany without the father’s knowledge or permission. Living in Germany ever since, the son – now nine years old – speaks only German, goes to school and is fully integrated socially in Germany (including a good relationship with the German citizen the mother married in July 2014 and his family, even after a subsequent divorce).

The custody proceedings initiated by the father in Madrid resulted in a (default) decision in June 2015 which granted him custody of the son as well as the right to decide on his residence. In February 2016, the father applied to a German family court (Amtsgericht als Familiengericht) in Bamberg for an order for the immediate return of the child to Spain according to the 1980 Hague Convention on Child Abduction.

The family court rejected this application on the grounds that the child had indeed been wrongfully removed from Spain to Germany by its mother, but that more than a year had passed (Article 12 para. 1 Hague Convention on Child Abduction) and the child was settled in its new environment (Article 12 para. 2 Hague Convention on Child Abduction).

The father’s appeal to the Higher Regional Court (Oberlandesgericht Bamberg, hereinafter: OLG) was dismissed in June 2016, on the ground that taking the child out of its social environment would not be in its best interest.

In December 2016, the mother applied to the German family court for sole custody. The family court declined to decide as German courts lacked jurisdiction. The father had lodged a request for return within a year of his learning of the child’s whereabouts, so international jurisdiction remained with the Spanish courts (Article 10 lit. b) no. i) Brussels II bis). This was upheld on appeal in April 2018. However, when the mother requested the Madrid court to amend its decision of June 2015 and grant her custody in January 2019, this was equally declined due to a lack of jurisdiction. The Madrid court considered the Spanish courts to have lost jurisdiction as the child had established habitual residence in Germany, ending the applicability of the Hague Convention on Child Abduction and leading to the German courts’ international competence according to Article 61 Brussels II bis. Subsequently, a Spanish criminal court condemned the mother to a 3-year prison sentence as well as the loss of custody rights for seven years because of child abduction.

In July 2019, the mother applied to the German family court for sole custody again. This time, her request was granted: The court took the view that the previous decline of jurisdiction by both German and Spanish courts and the fact that the father had never exercised the sole custody granted to him in 2015 necessitated action. While none of the exceptions listed in Article 10 lit. b) Brussels II bis was directly fulfilled, the non-application of Article 10 Brussels II bis was considered possible through the analogous application of lit. b) no. iv). This reasoning was however rejected on the father’s appeal. The OLG considered Article 10 Brussels II bis to be applicable still, with no possibility for interpretation beyond its wording regarding a “cut-off date”. Rather, it pointed to the possibility to transfer a case to a better-placed court under Article 15 Brussels II bis as a well-balanced remedy for problems arising from the perpetuated international competence of the Member State of origin. The result in October 2021 was – again – German courts declining jurisdiction.

Meanwhile, in June 2020 the father had applied to the German family court in Nuremberg, demanding the (immediate) return of the child by way of provisional measures. The evaluation of the child’s situation showed that transferring him to Spain into the custody of a father he hardly knew (and did not even share a common language with) was likely to result in a severe traumatisation. With regard to the child’s best interest, the family court dismissed the father’s application for (interim) return in September 2020. This decision was upheld on appeal in November 2020 by the Higher Regional Court (OLG) Nuremberg, which additionally pointed out that provisional measures under Article 20 Brussels II bis could not be used to make up for the failure of the previous return application under Article 12 para. 2 Hague Convention on Child Abduction (in 2016).

Not to be deterred, the father then applied to a Madrid court for return of the child. While the mother made use of her opportunity to participate in the proceedings (only) by way of a written statement, the child was apparently neither heard nor represented. In September 2021, the Madrid court ordered the child’s return to Spain and to his father, not taking into consideration that the child had no relationship with the father and spoke no Spanish. It also pointed out that due to the criminal sentence against the mother, a warrant for her arrest had been issued. In February 2022, the Madrid court issued a certificate for the cross-border recognition and enforcement of this judgment under Article 42 para. 2 Brussels II bis.

Presenting this certificate to the German family court, the father demanded enforcement of the return decision. In March 2022, the family court, considering it immediately enforceable in Germany, ordered the mother to promptly return the child. However, on the same day the German court contacted the Madrid court through the European Judicial Network and requested it to revoke the certificate, pointing out that the conditions for issuing a certificate under Article 42 para. 2 Brussels II bis had not been met. The German decision denying the return of the child in 2016 had been rendered according to Article 12 para. 2 and not Article 13 Hague Convention on Child Abduction.

On the mother’s appeal against the enforcement order, in June 2022 the OLG (regional court of appeal) confirmed that the return decision remained enforceable as the father had presented a certificate by the Madrid court of origin according to Article 42 para. 2 Brussels II bis and Article 42 para. 1 Brussels II bis does not foresee any possibility for opposition to the judgment or the certificate before the court of enforcement (in another Member State) – all objections against the return of the child or the procedure leading to the return judgment have to be brought solely before the court of origin. According to the OLG, this includes a review of whether the conditions for issuing a certificate under Article 42 para. 2 Brussels II bis had been met. While the German family court had suggested referring this point to the ECJ for clarification, the OLG considered it already clarified by Zarraga (ECJ C-491/10 PPU) and refrained from a referral. Thus, even though in this case the certificate had been issued wrongly, the OLG saw no grounds for the German family court to refuse enforcement.

In view of this, the mother applied to the Madrid court in June 2022 requesting an amendment of this certificate, arguing especially that the child’s interest had not been regarded in the proceedings. She also requested a temporary stay of enforcement in Germany until the Spanish courts had reached a decision regarding the amendment of the certificate. The family court rejected this, as according to the ECJ (as quoted by the OLG) the existence of the certificate prevented any examination on the merits. The mother lodged an immediate appeal, claiming that the child’s transfer to Spain would result in a massive threat to his welfare. The OLG rejected this as it considered an examination on the merits to be the exclusive domain of the (Spanish) original court. Very unusually, the OLG then addressed both parents, admonishing the father to consider the child’s best interests and not insist on his immediate transfer to Spain, and the mother to accept the legal situation and not aggravate it further for her son.

In this situation, the mother applied to the German Constitutional Court (BVerfG), requesting interim measures to stay the enforcement of the child’s return to Spain until the Spanish courts had reached a decision regarding the amendment of the certificate.

II. The Decision by the Bundesverfassungsgericht

The BVerfG granted the mother’s application and ordered a temporary stay of enforcement regarding the return decision – initially, until August 11, 2022. Due to the particular urgency of the matter, the father was not heard in the interim proceedings.

Granting such a temporary injunction requires that a (future) constitutional complaint (Verfassungsbeschwerde) in the main proceedings would be neither inadmissible nor obviously unjustified. On the basis of a summary assessment, the BVerfG was satisfied that this was the case. The time limit for a constitutional complaint against the German courts’ decisions of March 2022 and June 2022 had not yet expired. Such a complaint by the mother herself could be based on her constitutional parental rights (Article 6 para. 2 s. 1 Grundgesetz). A constitutional complaint by the child was considered envisageable as well – however, due to the mother’s lack of custody it would need to be raised by a guardian ad litem.

According to the BVerfG, it was not to be ruled out that the interpretation and application of Article 42 Brussels II bis by the family court and the OLG had led to unjustifiable impairments of the mother’s and the child’s fundamental rights. The German courts had been aware of the danger an immediate return to Spain would pose to the child’s welfare; however, they had considered themselves unable to take into account the child’s and the mother’s constitutional rights. In their opinion, Article 42 Brussels II bis (as interpreted in accordance with the ECJ) prevented them from considering these “substantial” aspects of the child’s welfare in the enforcement proceedings based on a certificate from another Member State, EU law barring an examination on the merits under all circumstances.

The BVerfG, however, pointed out that in this case, Article 42 Brussels II bis did not necessarily impede such an examination as it was not applicable: The certificate had been wrongly issued as the situation did not fall within its scope (as shown by the family court in its March 2022 decision). As Article 42 Brussels II bis can prevent an examination on the merits by the enforcement court only when it is applicable, under these circumstances a review, especially with regard to fundamental rights, under general rules would have remained possible.

The family court and the OLG had assumed that the presentation of a certificate prevented the enforcement court from even examining whether Article 42 Brussels II bis was applicable in the first place. Such a far-reaching interpretation needs to be considered also in light of European fundamental rights. It could lead to disregarding grounds for non-enforcement intended to protect the child, although the prerequisites for such an exclusion under Article 42 Brussels II bis are not fulfilled. On the other hand, an examination by the enforcement court limited to the question of the applicability of Article 42 Brussels II bis would not be contrary to the ECJ’s position established in Zarraga, as it would not extend to an examination of Article 42 Brussels II bis “in substance”. Such an approach would then, in case the enforcement court determines Article 42 Brussels II bis to be inapplicable, open the door for considering in how far a forced return of the child would infringe fundamental rights. Not taking these considerations into account, the decisions by the family court and the OLG constitute possible violations of fundamental rights, making a future constitutional complaint potentially successful. (The BVerfG thus can leave open the question whether the child’s EU fundamental rights might demand an examination on the merits by the enforcement court and an interpretation of EU law allowing for it when there are no other possibilities to avoid massive fundamental rights infringements, and whether in case of a lack of such a fundamental rights protection on the European level the German Grundgesetz might impose such an examination on German courts in exceptional circumstances.)

Weighing the consequences of not granting interim measures and later success of the constitutional complaint against the consequences of granting interim measures and later non-success of the constitutional complaint, the BVerfG granted the temporary injunction in order to avert serious disadvantages. Not granting interim measures would result in the child’s return to his father who could immediately take him to Spain, posing a grave and irreversible danger to the child’s welfare and blatantly contradicting the child’s best interest, as also stressed in the various family court and OLG decisions – with a potential second enforced return back to Germany after the constitutional complaint proceedings. Granting interim measures and conserving the status quo would result in a (further) delay of the child’s return to his father, perpetuating the wrong against the father but hardly disadvantaging the child.

The BVerfG thus granted the temporary injunction, limiting it initially until the end of the deadline for lodging a constitutional complaint (by the mother) and pointing out that if such a complaint was admissible, a further stay of enforcement could be extended until the Madrid court reached a decision regarding the mother’s request for amendment of the certificate. After a guardian ad litem had been appointed for the child (enabling a constitutional complaint by the child also), the BVerfG reissued the temporary injunction and extended it until the end of the deadline for the initiation of such proceedings (BVerfG August 10, 2022). A constitutional complaint having been lodged in the child’s name, the BVerfG granted another stay of enforcement until a decision regarding this constitutional complaint had been reached, but limited to six months (BVerfG 1 BvR 1691/22, September 1, 2022, ECLI:DE:BVerfG:2022:rk20220901.1bvr169122). It pointed out that a decision reached in July 2022 by the Madrid court did not address the concerns raised regarding the fulfilment of the requirements for the certificate, and could hence not alter the balance of the weighing of interests.

III. More Questions Raised than Answered

The BVerfG judgment is – both in form and in content – no more than a stay in proceedings. It is not for interim measures to reach a final verdict regarding the infringement of (German) fundamental rights. In how far fundamental rights have indeed been violated by the German courts’ enforcement decisions will remain to be decided in the main constitutional proceedings which have been brought by the child (the mother has, apparently, limited herself to the ”isolated” interim measures procedure without proceeding to a constitutional complaint).

It is also not for the German Constitutional Court to decide on the interpretation of EU regulations on international civil procedure. With regard to the interpretation of Article 42 Brussels II bis, the BVerfG offers no more than an option – albeit one that provides an elegant solution for the case at hand (and beyond). The potential violation of fundamental rights by the German enforcement courts does however not stem from a “wrong” interpretation of Article 42 Brussels II bis, but from their disregard of the potential line of interpretation proposed by the BVerfG,  (an examination limited to the applicability of Article 42 Brussels II bis, non-applicability allowing for a review under general rules). Their duty to explore it (aiming at an interpretation safeguarding fundamental rights) would probably have led to a referral to the ECJ, as initially suggested by the family court. Such a referral would have been desirable on several counts. Firstly, only the ECJ can provide the much-needed clarity regarding the interpretation and scope of Article 42 Brussels II bis, especially whether it truly comprehensively precludes any examination by the enforcement court, even restricted to the preliminary matter of its scope of application. Secondly, a referral would have allowed the ECJ to temper the strict principles established in Zarraga with a more differentiated approach, specifically taking into account the child’s right to be heard in court and its fundamental rights (as granted by the EU Charter of Fundamental Rights). Thirdly, the ECJ’s position regarding the potential infringement of European fundamental rights would have provided more than welcome guidance for future child return cases under the Brussels regime, for both courts of origin and enforcement courts.

A need for clarification will persist under the Brussels II ter regime. Its rules on certificates for privileged decisions (Article 47 et seq. Brussels II ter) aim to clarify the relationship with the Hague Convention on Child Abduction and to clearly outline the conditions for issuing a certificate – including the opportunity for the child to express his or her views (Article 47 para. 3 lit. b)). Their fulfilment has to be certified by the court of origin using the form provided in Annex VI. These new safeguards are intended to avoid situations like the present case, in which a certificate is issued although the requirements for it are not met, and they will hopefully improve the situation somewhat. However, they cannot guarantee that the problem of wrongly issued certificates will be a thing of the past – and for such cases, Brussels II ter does not provide a remedy at the enforcement level either. As the problem of the possibility of “wrongful immediate enforcement” persists under the new rules, the solution of an “applicability control” seems attractive also for the future. If it is rejected, it seems well possible that – at least in exceptional cases – a need for review by the enforcement court may flow directly from (European and/or Member States) fundamental rights, as the BVerfG points out.

Apart from this, the case has highlighted a number of open issues – some old acquaintances, some fairly new on the scene. The interplay between the Brussels regime and the Hague Convention on Child Abduction is less complicated than the infamously difficult relationship between the Brussels regime and the 1996 Hague Convention on Child Protection. Nevertheless, it is not always easy in theory, and not always free of error in practice – as the choice of the wrong enforcement mechanism by the Spanish court shows (the certificate only being available for decisions under Article 13 Hague Convention on Child Abduction). Difficulties in coordinating the Brussels and Hague regimes also became apparent in the context of jurisdiction: The Madrid court declined jurisdiction on the ground that the Hague Convention on Child Abduction was no longer applicable, and on Article 61 Brussels II bis (which, however, addresses the relationship between Brussels II bis and the Hague Convention on Child Protection, not the Hague Convention on Child Abduction).

A more fundamental problem with regard to jurisdiction lies in the lack of an efficient solution for the (wrongful) decline of jurisdiction. Brussels II bis allowed no possibility for German courts to take on jurisdiction after the Spanish courts had declined it. The transfer procedure envisaged in Article 15 Brussels II bis and considered solely pertinent by the OLG was of no help, as the (Spanish) court which could have initiated such a transfer had instead declared itself not internationally competent, and the (German) court considering itself better placed could not initiate the transfer itself. Thankfully, such as possibility has now been introduced by Article 13 Brussels II ter. It is highly regrettable that it was not available in the case at hand, as a cooperative and clear allocation of jurisdiction to the courts of one country would certainly have avoided a half-decade-long “game of jurisdiction ping-pong”, and possibly (in case of German courts’ jurisdiction) cross-border hearing and enforcement issues – ultimately furthering the child’s best interest. Hopefully, both versions of the transfer mechanism will be  used in the future to avoid similar pitfalls of (lack of)jurisdiction.

The limits of what is possible with regard to coordination and cooperation are also at the core of the questions raised with regard to the enforcement mechanism under Article 42 Brussels II bis. The model of immediately enforcing “privileged decisions” without a declaration of enforceability and without a possibility to oppose their recognition is based on the mutual trust between the Member States – the waiver of control by the enforcing state is not only grounded in a desire for simplification and acceleration, but mainly in the confidence that another Member State’s court has correctly applied all procedural and substantive rules. Mutually renouncing exequatur and révision au fond in favour of cooperative mechanisms is considered one of the greatest achievements of European civil procedure.

However, the current case illustrates that when something has gone wrong in the original proceedings, cooperative rectification may take its time, and immediate enforcement may bring more harm than good. The competence to rectify the wrongfully issued certificate lies with the Spanish court – which was directly contacted by the German court, in addition to being applied to by the mother, so that an examination (and possibly revocation) procedure was pending. While the certificate’s fate is thus suspended, its enforcement entails the danger of creating a situation which will soon have to be reversed. Especially as some of the enforcement consequences with regard to the child’s welfare are likely to be irreversible, proceeding to enforcement under these circumstances seems reckless and hardly in the best interest of the child. Prohibiting the enforcement court from temporarily staying enforcement proceedings in order to allow the court of origin to make the necessary corrections to the judgment means forcing it to perpetuate and deepen legal mistakes through enforcement with its eyes open. It seems very doubtful that this should be intended by the Brussels regime, or in keeping with European values and fundamental rights. On the other hand, a temporary stay of enforcement combined with a request for rectification allows the court of origin to re-examine and correct its own judgment without being prejudiced by enforcement considerations.

The final, and most far-reaching, point to be briefly addressed here is the matter of the child’s right to be heard. The child’s involvement in the proceedings has been problematic in this case in several regards. In the Spanish proceedings leading to the return judgment, the child was neither heard directly nor through a (court-appointed) representative. Already problematic in itself, this disregard of procedural requirements is aggravated by the fact that the Madrid court’s judgment does not address the central aspects of child welfare which would have argued against the child’s return to Spain. In view of the importance accorded to the child’s right to be heard (exemplified by the explicit inclusion of the courts’ duty to allow the child to express his or her views in Article 21 Brussels II ter), such an omission has to be viewed as a blatant disregard of (European) procedural rules, and a potential violation of fundamental rights. Enforcing a judgment rendered in such a way as a “privileged decision” without any possibility for control seems highly problematic (even if the requirements for this enforcement mechanism have been met). It might ultimately compel Member States to enforce judgments which, due to their procedural defaults, are clearly contrary to their own ordre public and to European fundamental rights and values – and in doing so, violate fundamental rights themselves. An exception from the “no examination” rule for cases of obvious breaches of European procedural rules might be considered to be, on the whole, more conducive to creating a “European area of justice”.

As a side note, it also proved difficult for the child to initiate a constitutional complaint before the BVerfG, as there are no clear rules in German law providing for the appointment of a guardian ad litem in situations such as this. Thankfully, this issue has been quickly and pragmatically addressed in the case at hand. Nevertheless, the non-appointment of a representative by the Spanish court and the technical difficulties in appointing a guardian ad litem for the German constitutional complaint proceedings illustrate the importance of establishing clear and efficient rules for the legal representation of children when their parents are unable to or fail to act on their behalf.

All in all, in the wake of the BVerfG decision more questions are left open than answered – in casu and in general. This particular legal battle will continue to be fought for some time and in several theatres of war. Apart from German and Spanish family and constitutional courts, the ECJ and ultimately the European Court of Human Rights might be involved. Even if a solution is reached before the child concerned reaches the age of majority, it is likely to leave all family members exhausted, alienated and traumatized. But especially as a good outcome for the individuals concerned seems impossible and a further legal dispute unavoidable, the case’s potential for the development of the interpretation of EU law should be exploited fully. Hopefully, further decisions on this matter will help to establish guidelines for similar situations, use the opportunities to clarify further aspects of the functioning and remedies of the Brussels regime, and aid in applying it in keeping with national and European fundamental rights and values. In this way, a sad case might at least contribute to making good law.

Symeon Symeonides (Alex L. Parks Distinguished Professor of Law at Willamette University – College of Law) has made available on SSRN a draft of his paper on An Outsider’s View of the Brussels Ia, Rome I, and Rome II Regulations that is being published on Lex & Forum in 2023.

The abstract of the article reads as follows:

This is an invited essay for a conference on “European Private International and Procedural Law and Third Countries” that was held in Greece on September 29, 2022. It focuses on certain aspects of three European Union “Regulations,” which have “federalized” the Private International Law or Conflict of Laws of the Member-States: (1) the “Brussels Ia” Regulation on Jurisdiction and Recognition and Enforcement of Judgments in Civil and Commercial Matters of 2012; (2) the “Rome I” Regulation on the Law Applicable to Contractual Obligations of 2008; and (3) The “Rome II” Regulation on the Law Applicable to Non Contractual Obligations of 2007.
The first part of the essay criticizes the discriminatory treatment of defendants domiciled outside the EU by Brussels Ia, and its lack of deference toward the exclusive jurisdiction rules of third countries or toward choice-of-court agreements choosing the courts of third countries. It praises the Brussels Ia provisions on lis pendens and its protection of consumers and employees against unfavorable pre-dispute choice-of-court agreements.
The second part praises the protection Rome I provides for consumers and employees against unfavorable choice-of-law agreements, but also explains why the protection provided for passengers and insureds is often ineffective. It criticizes the lack of protection for other weak parties in commercial contracts, such as franchises, and explains how an article of Rome II that allows pre-dispute choice-of-law agreements for non-contractual claims in those contracts exacerbates this problem.
The third part of the essay criticizes the way in which Rome II resolves cross-border torts other than environmental torts, especially cross-border violations of human rights. It proposes a specific amendment to the relevant article of Rome II and argues that this amendment will provide better solutions not only in human rights cases but also in other conflicts arising from cross-border torts.

In the space of two weeks, two doctoral theses on arbitral jurisdiction will be publicly defended at the Stockholm University. First, on 21 November 2022, Fabricio Fortese defended a thesis titled Early Determination of Arbitral Jurisdiction – Balancing efficacy, efficiency, and legitimacy of arbitration. On 2 December 2022, Monica Seifert will defend a thesis on Arbitral Jurisdiction in Multi-Contract Relations ­­– A Comparative Study of Swedish, Swiss and English Law.

Fortese’s thesis examines the timing of judicial determination of jurisdictional disputes under Article 8 (1) of the UNCITRAL Model Law on International Commercial Arbitration and Article II (3) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The thesis argues that Article 8 of the Model Law does not require that national courts undertake either a limited (prima facie) or a full review of an arbitration agreement and objections to an arbitral tribunal’s jurisdiction. Fortese holds, as the main finding of his dissertation, that both approaches are permitted under the Model Law. The application of one or the other is “a matter of judgment (rather than opinion), based on the particularities of the case, and aiming to achieve the fair and efficient resolution of the jurisdictional and substantive dispute” (p. 282). Professor George A. Bermann of Columbia Law School acted as opponent at the public defense. A full abstract of the thesis can be read here.

The research question for Seifert’s thesis is whether an arbitration agreement contained in one contract can be considered to apply to disputes concerning other contracts between the same parties. For the analysis, the thesis focuses on the international arbitration prerequisites of (1) a defined legal relationship, (2) the scope of the arbitration agreement and (3) the identity of the matter in dispute. According to the abstract, “[t]he thesis concludes that the legal systems under analysis, despite their largely different procedural and contractual settings, have proven to be sensitive to the pressures of globalization and to the demand for more generous access to arbitration”. In the conclusions, Seifert stresses the importance of the seat of arbitration as it is the procedural law of this country that ultimately will determine arbitral jurisdiction (p. 285). Professor Giuditta Cordero-Moss of Oslo University will act as opponent at the public defense. A full abstract of the thesis can be read here.

Dominique Bureau (University of Paris II Panthéon Assas) and Horatia Muir Watt (Sciences Po Law school) have published earlier this week in La Semaine Juridique (édition générale) a critique of the desirability of codifying private international law at national level in a field dominated by EU and international norms (Codifier à contretemps… À propos d’un projet français de codification du droit international privé).

The English summary of the article reads:

After the failure of various initiatives towards national codification of private international law in France in the course the first part of the 20th century, a new project was commissioned recently by the ministry of justice and is now (very briefly) open to public comment. Curiously, then, the spectre of a national code has resurfaced once again in an entirely new context – that is, at a time when the majority of rules of the conflict of laws, jurisdiction and judgments currently in force in Member States have been unified by the European Union (largely successfully). Quite apart from any quality assessment of the various substantive provisions thus proposed in the draft text, some of which would no doubt be useful interstitially in the spaces still left to the competence of national authorities, and indeed beyond the symbolic signification of an inward-local turn in an area designed emblematically to respond to the transnational, the main flaw in this proposal is the erroneous nature of its own premises. There is a real discrepancy between the draft text and the very objectives it is designed to pursue : it is far from making the state of the law more manageable for the courts, as it claims to do. Indeed, in the epistemological terms of the French legal tradition, the very phenomenon of a national code suggests that it contains a complete set of legal tools for solving issues that arise in transnational litigation. However the proposal itself reminds its users that it is applicable by default, while leaving the frontiers of local law very unclear. Surprisingly, it has generated very little academic opposition, but even as the short parliamentary deadline approaches, it is still not too late to do nothing..

The journal and article can be accessed here.

A recent Briefing paper titled Updating the European digital identity framework, authored by Mar Negreiro and Maria Niestadt (from the European Parliamentary Research Services), may be of interest to the readers of this blog.

It deals with the proposal of the European Commission, released in June 2021, to create a “European Digital Identity” (EDI) and a dedicated “Wallet” for citizens and businesses in the European Union (hereafter ‘EDI Regulation proposal’).

General Background of a ‘European Digital Identity’ and its Dedicated ‘Wallet’

The ‘European Digital Identity Wallet’ (EDIW) aims to allow people and companies based in the EU, to store person identification data (e.g. name, address, gender, civil status) and electronic attestations of attributes (e.g. bank account, birth certificate, diploma, company statute) for cross-border use. It should also allow users to authenticate and access online public or private services (Article 6a of the EDI Regulation proposal). According to the European Commission, by means of this digital wallet, proving your identity and sharing electronic official documents across the EU Member States will be possible with ‘one click’ on your smartphone!

This legislative proposal surely is a coherent and necessary continuum of the digitalisation momentum in the Union, both in its economic (i.e. internal market policy) and judicial (i.e. judicial cooperation in civil and criminal) dimension. One of its main political objective is for the Member States and the Union to regain control over the identity of European citizens in the digital ecosystem. Indeed, the dominant tech platforms have been developing private forms of ‘digital ID’, competing with national legal identification schemes. Under the EDI Regulation proposal, the digital wallet should only be issued under the supervision of Member States (i.e. directly by the State or based on a mandate/recognition requirements from the State). The project also aims to support the empowerments of ‘EU digital citizens’ in the same vein as the Declaration on European Digital Rights and Principles recently put forward by the European Commission to ensure a human-centred digital transformation in the Union. Users should be “in full control” of the wallet (Article 6a (7) of the EDI Regulation proposal) based on the key-principles of the GDPR, such as the requirement of data minimisation.

However, the proposal also raises several concerns about, inter alia, the effectivity of data protection, the risk of exclusion of parts of European society, the system’s vulnerability to fraud and data loss. I propose to add to that list uncertainties with regard to private international law rules and their implementation in ‘EDIW context’. The first question that occurs to me is as follows: what will be the legal scope of the cross-border portability of the information contained in this digital wallet?

Legal Outlines of the European Digital Identity Wallet The Acquis based on the eDIAS Regulation

The EDIW proposal builds on the acquis of the eIDAS Regulation on electronic identification and trust services for electronic transactions in the internal market. This latter lays down the conditions for the mutual recognition, between EU Member States, of electronic identification means of natural and legal persons, based on national notified electronic identification schemes (Article 6). By consequence, the identity – unique by essence – of citizens and businesses based in a Member State can be established throughout the Union (or, at least, in the other Member States that have notified such schemes). Concretely, it should for instance allow a person, domiciled in one Member State, to open a bank account in another Member State remotely, via an electronic identification (eID). The bank should be able to verify the age and the legal identity of the client, his/her financial records and the paperwork could be signed online using e-signatures (see here for other ‘promotional’ examples).

For the proper functioning of the mutual recognition principle, the eIDAS Regulation provides for three “assurance levels” applicable to the electronic identification schemes; they characterise “the degree of confidence in electronic identification means in establishing the identity of a person” (see Recital 16 and Article 8). Against this background, mutual recognition of electronic identification means – used for authentication for an online service – is mandatory for the ‘host State’ only when the public body of the ‘home State’ uses the “substantial” or “high” assurance levels for accessing that service online (Article 6).

‘European Digital Identity Wallet’: What Does It Mean?

The EDI Regulation proposal goes further than the current eIDAS Regulation in making mandatory for all Member States to provide electronic identification means and to recognise the notified electronic identification schemes (eDIs) of other Member States. In that respect, it lays down common requirements for the issuing of European Digital Identity Wallets (EDIW) by Member States (Article 6a of the EDI Regulation proposal). These wallets are understood as “electronic identification means […] containing person identification data and which is used for authentication for an online or offline service” (see Article 1, (3) (a) (2) of the proposal, with the understanding that ‘authentication’ enables the electronic identification as well as the origin and integrity of data in electronic form to be confirmed).

By comparison with a more familiar concept, ID cards issued by EU Member States (following the implementation of Regulation 2019/1157 on strengthening the security of identity cards of Union citizens) are also characterised as ‘electronic identification means’ under the eIDAS Regulation and the EDI Regulation proposal. But the future EDIW is much more than a mere digital ID card. It is both “a product and service” that allows the user “to store identity data, credentials and attributes linked to her/his identity, to provide them to relying parties on request and to use them for authentication, online and offline, for a service […] and to create qualified electronic signatures and seals” (Article 1, (3) (i) point 42 of the proposal).

Legal Scope of the European Digital Identity Wallet

The digital wallet should, inter alia, allow the “validation” of person identification data and electronic attestations of attributes by relying parties. More widely, Member States should provide “validation mechanisms” to ensure that the “authenticity and validity” of the digital wallet can be verified. In that respect, the EDIW should meet the “high level of assurance”, by reference to the eIDAS Regulation (see above), in particular with regard to “identity proofing and verification” requirements. The high level of assurance is based on technical specifications, standards and procedures “the purpose of which is to prevent misuse or alteration of the identity” (Article 8, (2), c).

It is also worth mentioning that the EDI Regulation proposal lays down a minimum list of attributes (e.g. address, age, civil status, family composition, financial and company data), the authenticity of which should be verifiable electronically, at the request of the user, by qualified providers of electronic attestations of attributes, against the relevant authentic source at national level (Article 45d and Annex VI).

Eventually, the proposed EDIW framework does not appear very clear about the normative scope of trans-European data flows via the digital wallet, between (presumption of) authenticity and validity.

Some Private International Law Issues Raised by the EDIW The Legal Implication of the Mutual Recognition Technique

Beyond the strengthening of a common ‘technological infrastructure’, the ultimate goal of the ‘European Digital Identity Wallet’ (EDIW) is to ensure the cross-border recognition of Europeans’ legal identity and additional information about them (i.e. attestation of attributes such as certificates of birth or diplomas). This brings us to more familiar territory, starting with the core question of the legal significance of the mutual recognition technique in this specific context.

Mutual recognition should provide for a cross-border portability of the data stored within the digital wallet, such as age, gender, nationality or company data. In that respect, the relevant methodology may be based on the international circulation of foreign public documents that have consolidated a legal situation in a first Member State and whose legal consequences are expected in the host Member State (cf. the inspiring work of Professor Ch. Pamboukis). In the case of ‘non-decisional’ public documents (e.g. a professional qualification or a driving licence, ‘crystallised’ in the digital wallet issued by the State of origin), these documents should produce non-normative procedural effects of an evidentiary nature. The data stored in the digital wallet may also be presumed to be formally valid, which allows them to flow across legal borders: the person concerned may use them in the ‘host State digital jurisdiction’ in the same way as in his/her State of origin.

When the data contained in the digital wallet are no longer related to administrative/public aspects (e.g. diploma or driving licence mentioned above) but to personal status and individuality (e.g. name, domicile, civil status, family composition), the mutual recognition technique could take on a different meaning. Indeed, the public documents in question are no longer limited to ‘establishing’ a situation certified by a public authority but are of a ‘receptive’ type. The public authority issuing the public document has ‘received’ the private will expressed by the parties in order to authenticate it. In this context, it could be argued that the digital circulation of such a public document (e.g. a marriage or a name certificate) carries a presumption of validity of the legal situation (i.e. negotium) contained in it (i.e. instrumentum). This distinction is well-known among private international law experts and the suggested reasoning should be the same whether the information is ‘digitised’ or formalised in a paper document. Indeed, electronic attestation of attributes should have “the equivalent legal effect of lawfully issued attestations in paper form”, pursuant to the EDI Regulation proposal (Recital 27).

Critical Assessment

The future ‘European Digital Identity Wallet’ could have a real impact on the international recognition of personal and family status in the Union. The same could be said for the status of legal persons. For citizens and businesses, intra-European free movement would be strengthened and, in practice, greatly simplified.

The main methodological consequence from the private international law perspective should be the ‘eviction’ of the conflict-of-laws rules and reasoning. This is understandable insofar as, in practice, the presumption of probative value of a foreign public document, on the basis of mutual recognition, implies, in our view, a presumption of validity of the legal situation it contains (cf. here).

In the European context, this statement should be even more accurate, because of the remarkable influence of EU citizenship and fundamental rights (such as the right to privacy which applies to the identity of individuals) on conflict-of-laws. Several examples may be found in the caselaw of the CJEU, such as the recent Pancharevo judgment (commented on the blog) raising exactly this issue. For part of scholars and many Member States, this is however the pitfall to be avoided. But actually, the intra-European digital flow of personal data, via this European digital wallet, should instead reinforce this trend.

The Interplay Between the EDIW and Other Legal Instruments

It is important to note that the EDI Regulation proposal, like the current eIDAS Regulation, gives priority to other rules of EU and national law on specific sectors. In that respect, the proposal lays down that the (future) regulation “does not affect national or Union law related to the conclusion and validity of contracts or other legal or procedural obligations relating to sector specific requirements as regards form with underlying legal effects” (Article 2, §3). The issue of normative interplay between the EDIW framework and other important instruments will be crucial. This will be the case, inter alia, in the field of personal status, regarding Regulation 2019/1191 on Public Documents but probably also some ICCS conventions (such as Convention n°34 recently entered into force), as well as national rules on the international legal effects of public documents. This is also true for EU instruments which support the cross-border cooperation between public national authorities and the free movement of citizens and businesses, i.e. the IMI System and the Single Digital Gateway.

The ‘One-click EU Recognition’ is not yet ready to be the revolutionary new tool for private international law partitioners, but the European Digital Identity Wallet is definitively a topic for us!