EAPIL blog

This post was written by Rodrigo Rodriguez who is Professor on Insolvency Law at the University of Lucerne.

Since 1 January 2021, as a result of the UK’s “hard Brexit” in respect of the field of cooperation in civil matters, the UK has not been a formal member of the 2007 Lugano Convention anymore. Much has been written and zoomed on this issue.

On 22 February 2021, the district court of Zurich issued an – as far as I know – first decision (courtesy of arrestpraxis.ch) regarding the (non-)recognition of the UK judgement in Switzerland post-Brexit.

The decision refuses to apply the 2007 Lugano Convention rationae temporis to a UK decision of the High Court of London made in September 2020 (while the Lugano Convention was still applicable by virtue of the Withdrawal Agreement).

Upon request for recognition filed on 18 February 2021, the Zurich court concludes, in a short reasoning, that since 1 January 2021, the 2007 Lugano Convention is not applicable anymore to situations involving Switzerland and the UK and must therefore be disregarded as a basis for recognition. As the provisional measure requested in the claim was ultimately granted on a different legal basis, the decision was not challenged.

It is respectfully submitted that the decision is ill-founded. The intertemporal provisions in the Convention are way more complex than the district court’s reasoning acknowledges.

The relevant Article 63(1) of the Convention (transitional provisions) reads as follows:

This Convention shall apply only to legal proceedings instituted and to documents formally drawn up or registered as authentic instruments after its entry into force in the State of origin and, where recognition or enforcement of a judgment or authentic instruments is sought, in the State addressed.

The district court’s decision makes no reference to that article or to doctrine but refers to different views expressed by Swiss governmental bodies: one by the Federal Office of Justice (FOJ), and one by the Federal Office of Foreign Affairs (FOFA). While the first clearly (and accurately…) states that “[t]he recognition and declaration of enforceability of judgments made before the withdrawal date shall continue to be governed by the Lugano Convention even after the date of withdrawal”, the latter states that “the Lugano Convention will cease to form the legal basis for Swiss–UK relations, at least temporarily. As a result, matters of jurisdiction and declarations of the enforceability of judgments between Switzerland and the UK will, in principle, once again be governed by national legislation”. While the term “in principle” would seem to leave some room for nuance, the district court of Zurich opted to openly dismiss the FOJ opinion and embrace the “no legal basis”-assertion of the FOFA.

Under Article 63(1), the relevant elements are that (1) the Convention was in force in the State where the decision to be recognized was issued (or even already when the proceedings were instituted? see below), and (2) the Convention was in force in the State of the recognition at the time recognition was sought. This was clearly the case in the situation at hand. The district court of Zurich erred in not applying this provision.

From a strictly grammatical point of view, one could read Article 63(1) as covering only the situation where the Convention is applicable in both States at the time of recognition. However, such hypothesis would not even raise an intertemporal question and Article 63(1) would be completely pointless. This cannot be assumed as the drafter’s will. It would also contravene general principles on acquired rights and favorem recognitionis.

Missing the Really Tricky Questions

It is submitted that this first decision is a bad start into a true marathon of (really) tricky issues around Brexit and the Lugano Convention.

One of those questions is whether Article 63(1) requires the proceedings in the UK to be final (in order to be recognized in Switzerland later), or if it is sufficient that the proceedings have been “initiated” – opening the way for enforcing decisions issued even after 1 January 2021. In my opinion, this is consistent with the purpose of Article 63(2), which is to enforce decision under transitional rules once it is clear that the originating court has applied the Lugano provisions on direct competence. Views are also split on this (see Fn 3 of the FOJ decision here), but at least this would be the right debate to have.

The Return of the Undead: Applicability of the 1988 Lugano Convention?

The second question is whether, assuming the 2007 Lugano Convention were not to be applicable, its predecessor, the Lugano Convention of 1988, would apply.

The 1988 Lugano Convention was “superseded” by the 2007 Lugano Convention (no further acts of rescission were agreed between the parties) by virtue of article 65 of that Convention. As the latter would cease to be applicable, that could automatically lead to the 1998 Lugano Convention being applicable again. The 1988 Lugano Convention is not cited in Annex VII of the 2007 Lugano Convention (Agreements “superseded” by the 2007 Lugano Convention under its article 65). And the 1988 Lugano Convention has been and is still applied to the French and Netherlands overseas territories (not being EU territories).

However, this view is contested. In Switzerland, which follows the monist approach to treaties, courts should, in my opinion, apply the 1988 Lugano Convention again. However, since the UK follows the dualist approach, one must also consider its national law and the fact that Article 3A of the Civil Jurisdiction and Judgments Act 1982, giving force to the 1988 Lugano Convention, has since been repealed. Whether this outweighs the principles of the Vienna Convention the law of treaties (see on this argument in respect of the Brussels Convention the post by Serena Forlati) will be up to the courts – if asked. Unfortunately, also that opportunity was missed.

Surprisingly, I have not come across any view of UK lawyers (or lawmakers) defending the potential applicability of the 1988 Lugano Convention, although it would provide the UK with a far better “fallback position” than national laws in the case of a non-accession to the 2007 Lugano Convention. As this possibility seems more and more plausible (no agreement of the EU yet on the UK’s accession), it is a case worth making in the next recognition proceeding.

Melissa Durkee (University of Georgia School of Law) has posted Interpretive Entrepreneurs on SSRN.

The abstract reads:

Private actors interpret legal norms, a phenomenon I call “interpretive entrepreneurship.” The phenomenon is particularly significant in the international context, where many disputes are not subject to judicial resolution, and there is no official system of precedent. Interpretation can affect the meaning of laws over time. For this reason, it can be a form of “post hoc” international lawmaking, worth studying alongside other forms of international lobbying and norm entrepreneurship by private actors. The Article identifies and describes the phenomenon through a series of case studies that show how, why, and by whom it unfolds. The examples focus on entrepreneurial activity by business actors and cast a wide net, examining aircraft finance, space mining, modern slavery, and investment law. As a matter of theory, this process-based account suggests that international legal interpretation involves contests for meaning among diverse groups of actors, giving credence to critical and constructivist views of international legal interpretation. As a practical matter, the case studies show that interpretive entrepreneurship is an influence tool and a driver of legal change.

The paper is forthcoming in the Virginia Law Review.

The author of this post is Priskila P. Penasthika, Ph.D. Researcher, Erasmus School of Law, and Lecturer in Private International Law at Universitas Indonesia.

For almost ten years I have been closely observing the discussions taking place between Indonesia and The Hague Conference on Private International Law (HCCH) on the matter of Indonesia becoming a contracting state to the 1961 Hague Apostille Convention. This endeavor has finally materialized at the beginning of 2021 when Indonesia decided to accede to The Hague Apostille Convention. The instrument of accession – Presidential Regulation Number 2 of 2021 – was signed by President Joko Widodo on 4 January 2021, and issued on 5 January 2021.

Entrance into Application of the Hague Apostille Convention

Although the Presidential Regulation required at national level to seal the accession has been signed and published, this good news will not lead to an immediate application of the Hague Apostille Convention in Indonesia. It will take some more months before this Convention enters into force for Indonesia. The latest update informs that the instrument of accession is at the moment being recorded in the Indonesian state gazette to comply with the enactment and publication requirement of a presidential regulation according to the Indonesian law. After the completion of this process, according to Articles 12 and 15 of the Convention, the instrument of accession needs to be deposited with the Ministry of Foreign Affairs of the Netherlands. Subsequently, there will be six months period for the other contracting states to the Convention to raise any objection to the Indonesian accession to the Convention. The 1961 Hague Apostille Convention will enter into force between Indonesia and the contracting states which have raised no objection to its accession on the sixtieth day after the expiry of the six months period. Even if this last part of the process is expected to run smoothly, it is likely that the interested parties will have to wait until the end of 2021 for the Convention to become applicable for Indonesia.

Present Process of Legalization of Indonesian Documents to Be Used Abroad

The accession to this Convention brings good news for many interested parties because the current legalization process for public documents in Indonesia is a lengthy, complicated, time-consuming, and a costly procedure.

As an illustration and based on my personal experience, there are at least four different institutions in Indonesia involved in the legalization process. We can take the example of an Indonesian birth certificate that would need to be used before a foreign authority. The first step in this process would be the legalization by the Indonesian Civil Registry Office that issues the document. Then, a second legalization is performed by the Ministry of Law and Human Rights of the Republic of Indonesia. This is to be followed by a subsequent legalization by the Ministry of Foreign Affairs of the Republic of Indonesia. Lastly, the birth certificate should also be legalized by the Embassy or the Representative Office in Indonesia of the foreign country in which the birth certificate is to be used. After all these steps, the birth certificate can finally be used in the designated foreign jurisdiction.

Changes the Convention Will Bring in the Process of Legalization of Documents

By the accession of the 1961 Hague Apostille Convention, the above lengthy procedure will be limited to one step and will involve only one institution – the designated Competent Authority in Indonesia. Although, there is not yet an official announcement about which institution will be appointed as the Indonesian Competent Authority, it is very likely that the Ministry of Law and Human Rights of the Republic of Indonesia will be entrusted with the task.

Limitations Made to the Application of the Hague Apostille Convention

When it comes to its accession to the Hague Apostille Convention, Indonesia made a reserve declaration to exclude from the definition of public documents (Article 1(a) of the Convention) the documents issued by the Prosecutor Office of Indonesia.

Additional Significance of the Accession to the Hague Apostille Convention

Beyond facilitating and speeding up the process of recognition of documents, the decision to join the 1961 Hague Apostille Convention represents an important step for Indonesia.

The 1961 Hague Apostille Convention is the first HCCH’s convention that Indonesia accedes to. Given the fact that Indonesia is not yet a member to the HCCH, the accession to the Hague Apostille Convention will mark the first official connection Indonesia has with the organization. It is anticipated that this will lead to more accessions to the HCCH’s conventions by Indonesia in the coming future.

The other significance of this accession is related to the Visi Indonesia 2045 (Vision of Indonesia 2045). The Government of Indonesia has launched this Vision to commemorate the centenary of the Indonesian independence which will take place in 2045. This Vision aims to portray Indonesia as a strong sovereign, developed, fair, and prosperous country. To achieve this, one of the targets is to simplify procedures in order to boost public service, international cooperation and investment. A simplified legalisation procedure for public documents is thus a strategy that would contribute to an easiness of doing business, and eventually for the accomplishment of the Vision of Indonesia 2045’s targets.

A more in-depth analysis (in Indonesian) explaining the current legalization process in Indonesia and the urgency to accede to The Hague Apostille Convention 1961 can be accessed here.

On 11 November 2020, the Court of justice issued a judgment on jurisdiction under Brussels I bis Regulation in respect of a dispute on the use of immovable property subject to co-ownership (Case C-433/19, Ellmes Property Services, already reported here and here). Both article 24, point 1, on rights in rem matters and article 7, point 1, a) on contractual matters were submitted to the interpretation of the Court.

Regarding the first provision, the Court leads a classical and very brief analysis of the jurisdictional rule, leaning on the national judge to implement it in casu. On the contrary, the interpretation of the second provision deviates from the settled caselaw and the Court is more prescriptive towards the referring judge.

All in all, the reading of the judgment gives an impression of inconsistency and unfinished work.

Facts and Issues at Stake

 A British company is co-owner of an apartment in Austria, which is designated for residential purposes. However, it was using that apartment for touristic purposes by regularly renting it out to holidaymakers. Another co-owner, SP, sought the cessation of that “touristic use” on the ground that it is contrary to the designated use of that building and, therefore, it interferes with his right of co-ownership.

The question of international jurisdiction arose. SP seized the Austrian court following the exclusive jurisdiction provided for in article 24, point 1, of Brussels I bis Regulation, in favour of the court of the Member State in which the property is situated. The British company contested the jurisdiction of that court on the basis of the forum contractus, pursuant to article 7, point 1, a). For the referring court, both grounds of jurisdiction could be admissible under Austrian civil law. Therefore, the Court of justice ruled on both provisions.

Jurisdiction in Matters Relating to Rights in rem in Immovable Property: A Self-restraint Approach? Reasoning

The Court of justice first assessed whether the action brought by the co-owner against the British company was to be characterised as an action “in matters relating to rights in rem in immovable property” pursuant to article 24, point 1 of the Brussels I bis Regulation. This requires, in particular, that the action is based on a right in rem and not on a right in personam (see the CJEU judgment in Reitbauern, para. 45). A right in rem, existing in corporeal property, has effect erga omnes. The tricky point here was to determine whether the designated use of the building produces such effect. Is the co-owner entitled to oppose the residential purposes of his property beyond the co-ownership agreement, to third parties? For the Court of justice, it falls to the referring court to respond to this question, following its national legal framework. Therefore, the application in casu of article 24, point 1, remains unsure.

Assessment

Eventually, the national judge would have been in the same position without referring any question to the Court of justice, since its interpretation adds nothing to the settled caselaw in the field. The Advocate General Szpunar went much further in its opinion, clearly doubting of the application of this exclusive ground of jurisdiction. He stressed that “there was a considerable underlying interest at stake in the EU legislature’s decision to make the jurisdiction established by that article [24 point 1] exclusive in nature”, namely “a public interest”. It is characterised when “rights [are] capable of affecting the legal situation of any person (effect erga omnes) or of the public in general” (para. 62). No such public interest seems to be at stake here, as far as “adherence to contractual arrangements between co-owners relating to the designated use of an immovable property” is concerned (para. 68); this is a pure contractual issue, subject to private autonomy.

In that respect, despite the remaining divergence of national civil and property laws within the Member States, it was possible to give the domestic court a clearer guidance. Then I wonder why the Court of justice decided not to be more explicit in its interpretation. Did the Court exercise self-restraint to preserve national private laws? Numerous Member States are indeed still hostile to the European harmonisation in the field. If it is the Court’s motive, it is unfortunate. On the contrary, it seems necessary to reflect on what extent an approximation of core notions of private law within the EU could improve the uniform application of European PIL rules. This reflection is the natural follow-up of the “autonomous interpretation” based on EU law developed and applied by the Court of justice, including in the field of EU PIL.

Jurisdiction in Matters Relating to a Contract: A Return to Orthodoxy? Reasoning

Given the uncertainty of application of the exclusive jurisdiction provided for in article 24, point 1, the Court of justice also interpreted article 7, point 1, on contractual matters. The Court started to recall the great flexibility of the notion of “contractual matters”. By analogy with its judgment in Kerr, it held that “the co-owners are, on account of the co-ownership agreement, in a contractual relationship freely consented to” (para. 40). Therefore, the action brought by the co-owner against the British company, itself co-owner, is an action “in matters relating to a contract”.

Then, the Court implemented the complex connecting factor laid down in article 7, point 1, a) – since the special rules in respect of the contracts on sale of goods and the contracts regarding the provision of services did not apply here, i.e. the presumptions regarding the place of performance –. Remarkably, the Court of justice removed the classical conflict-of-laws reasoning inherited from its judgment in Tessili (contrary to the Advocate General Szpunar in his opinion, para. 83 in fine). Following this settled caselaw, if the parties did not agree on the place of performance, that place must be determined by the law governing the contract in question pursuant to the PIL rules of the forum.

However, the Court of justice decided here to locate “directly” the place of performance, without the intermediary of the applicable law to the contract. The obligation in question is the guarantee of a “peaceful enjoyment of the property subject to co-ownership” by the owner and “must be performed in the place in which it is situated” (para. 44), i.e. in Austria.

Assessment

This solution makes the application of article 7, point 1), a), much easier in practice. The “direct” reasoning followed by the Court of justice leads to a substantial designation of the competent jurisdiction, here the Austrian judge. The two-steps reasoning, i.e. the implementation of a conflict-of-laws rule in order to apply a jurisdictional rule, has always been criticized by a large majority of scholars. It is indeed unorthodox regarding the classical PIL methodology. Issue of competence is, in principle, independent from the solution of conflict-of-laws.

The law designated by the choice of law rules has generally to be determined under the Rome I Regulation, except if the contract in question was concluded before the entering into force of this text. It seemed to be the case here (see par. 84 of the opinion, and even before the entering into force of the 1980 Rome Convention), imposing the referring court to apply its previous national choice of law rules in contractual matters. This further difficulty was probably an additional incentive for the Court to remove the Tessili reasoning.

This “streamlined” interpretation was already followed by the Court, a few years ago, in a case related to the avoidance of a contract of gift of immovable property (see the CJEU judgment in Schmidt, para. 39). However, in both judgements, the Court of justice did not bother to mention the change of approach. This is unfortunate as it makes difficult to assess the scope of the solution.

It is, most probably, only an exception in the context of immovable property, based on its strong attraction on the place where the property is situated and on the resulting proximity with the forum. In that sense, the Court of justice has stated that this solution “meets the objective of predictability of the rules of jurisdiction laid down by Regulation n° 1215/2012 since a co-owner bound by a co-ownership agreement stipulating such a designated use may, when he or she arbitrarily and unilaterally changes that designated use, reasonably expect to be sued in the courts of the place where the immovable property concerned is situated” (para. 45).

However, the “simplification” of application of article 7, point 1), a), stays unclear. The Court of justice mentions that the obligation in question “relates to the actual use of such property” (para. 44 in fine). Following an a contrario reading, would the “direct” location of the place of performance still be the solution if the obligation relates to an abstract use of property? (in that sense, see here). And how to understand and to draw the line between actual and abstract use of property?

Finally, it seems that a same “direct” approach was recently followed by the Court in the field of prorogation of jurisdiction. In its judgment in DealyFix (reported here on this blog), where the enforceability of a choice of court agreement to a third party was at stake, the Court held that it can be enforced only if, under the (substantive) legislation of the Member State whose courts are designated in that clause, the enforceability is allowed. The Court of justice did not refer to the “rules of private international law of the court” designated in the agreement, as it did before in its judgment in CDC (see para. 65, regarding the “court seised of the matter”). By analogy, the same “renvoi” to PIL rules is laid down in article 25, §1 and recital 20 of the Brussels I bis Regulation, in case of alleged substantive invalidity of a choice-of-court agreement; the question shall be decided “in accordance with the law of the Member State of the court […] including the conflict-of-laws rules of that Member State”.

I wonder whether it could illustrate a latent tendency of the Court of justice to avoid the overriding conflict-of-laws reasoning, in favour of a direct application of the jurisdictional rules concerned. Such a “material approach” is convincing, but one could call the Court to be more explicit in its judicial policy. It would make its interpretation more convincing and effective.

In a judgment of 27 January 2021, the French Supreme Court for private and criminal matters (Cour de cassation) indicated its willingness to apply strictly the definition of provisional measures developed by the European Court of Justice in Reichert, Van Uden and Saint Paul Dairy Industries. Three years earlier, the Cour de cassation had ignored the limits sets by these rulings and extended the jurisdiction of French courts to order evidentiary measures beyond purely protective measures.

Background

The case was concerned with a contractual dispute between a French and a German company in the film industry. The contracts provided for the jurisdiction of German courts. As the German company wondered whether several French companies had commited the budget agreed upon by the parties to the production of a film and a series, it applied ex parte to a French commercial court for the appointment of a judicial officer (huissier de justice) with the task of conducting “computer investigation” and “gathering data”.

Picture: Neal Davis

The judgment is short on the description of the measure, but it seems that the huissier was supposed to enter the premises of the French companies and collect data from their computer.

The French companies challenged the jurisdiction of the French court to grant such a measure.

Article 35 of the Brussels I bis Regulation

Because of the jurisdiction clauses, French courts lacked jurisdiction on the merits. Their jurisdiction could only be grounded in Article 35 of the Brussels I bis Regulation. However, in order to avoid that parties bypass the jurisdiction of the chosen court (or any other court having jurisdiction on the merits), the ECJ has limited the scope of this provision to protective measures. As is well known, the ECJ has consistently defined ‘provisional, including protective measures’ in the meaning of this provision as:

referring to measures which, in matters within the scope of the Convention/Regulation, are intended to preserve a factual or legal situation so as to safeguard rights the recognition of which is otherwise sought from the court having jurisdiction as to the substance of the case.

The concept, thus, is limited to measures which ‘preserve a situation’. Despite the title of Article 35, they actually only include protective measures. This narrow definition was codified in Recital 25 of the preamble of the Brussels I bis Regulation, which codified Saint Paul Dairy Industries in the following terms:

The notion of provisional, including protective, measures (…) should not include measures which are not of a protective nature, such as measures ordering the hearing of a witness.

Which Purpose?

The critical issue was thus to define the purpose of the requested measure.

The lower court had found that the aim of the measure was to prepare the proceedings on the merits by gathering information. It had thus ruled that the requested measure was not protective, as it did not aim at preserving any legal or factual situation. It had also held that the measure was not provisional either, as the provision of the information could not be undone.

The Supreme Court allowed the appeal. It ruled that the reasons of the lower court were too general, and that it should have explored whether the requested measure did not also aim at preserving evidence.

Assessment

In 2018, the French Supreme Court had allowed the appointment of judicial experts for the purpose of conducting investigations in France and establishing facts without any assessment of whether there was any need to preserve a situation. As foreign courts had jurisdiction on the merits, these judgments were arguably non compliant with the case law of the CJEU defining the scope of Article 35. It seems that these decisions have now been overruled, and rightly so.

On 17 September 2020 the Court of Justice of the EU issued a judgement in the case of WV v Landkreis Harburg (C-540/19) concerning the interpretation of the jurisdictional rules of the EU Maintenance Regulation, in particular its Article 3(b). An opinion in this case was prepared by AG Sánchez-Bardona.

Factual Background

WV’s mother lived in a residential care home for the elderly in Germany. In accordance with § 1601 of the German Bürgerliches Gesetzbuch, WV, the son, was required to provide maintenance to his mother. However, he failed to do so. As the mother did not have adequate means to cover expenses, she received, under the German Sozialgesetzbuch, social assistance from a public body – the Landkreis Harburg. Pursuant to § 94(1) Sozialgesetzbuch, maintenance claims are by way of statutory subrogation transferred to the public body providing social assistance. Relying on this provision, the Landkreis Harburg lodged an application with the Amtsgericht Köln (Germany) claiming from WV the payment of maintenance arrears and regular maintenance for the future.

WV submitted that German courts lack jurisdiction. The lower instance court shared this view, noting that, according to Article 3(b) of the Maintenance Regulation, jurisdiction lies with the court for the place where the creditor is habitually resident. At the same time the concept of “creditor” is defined in Article 2(1)(10) of this Regulation as meaning “any individual to whom maintenance is owed or is alleged to be owed”. Hence, only the creditor personally can make use of the ground listed in Article 3(b). The dispute reached the Bundesgerichtshof, which referred a preliminary question to the CJEU.

Previous Jurisprudence of the CJEU

As reminded in the opinion and in the judgement, the Brussels Convention and Brussels I Regulation included jurisdictional rules for maintenance claims (until Maintenance Regulation has started to be applied on 18 June 2011). Pursuant to these rules, jurisdiction lies with the courts of the defendant’s domicile (based on general rule – Article 2 Convention; Article 4 Regulation) and with the courts for the place where the maintenance creditor is domiciled or habitually resident (Article (5)(2) of both acts).

The CJEU ruled on the interpretation of Article (5)(2) of the Convention in Blijdenstein (C- 433/01), a case similar, as to its factual background, to the one considered in Landkreis Harburg. The Court stated in Blijdenstein that Article 5(2)

cannot be relied on by a public body which seeks, in an action for recovery, reimbursement of sums paid under public law by way of an education grant to a maintenance creditor, to whose rights it is subrogated against the maintenance debtor.

The CJEU explained on that occasion that the general principle is that the courts of the State in which the defendant is domiciled are to have jurisdiction “and that rules of jurisdiction which derogate from this general principle cannot give rise to an interpretation going beyond the cases expressly envisaged.” (24)

The “derogation provided for in Article 5(2) of the Convention is intended to offer the maintenance applicant, who is regarded as the weaker party in such proceedings, an alternative basis of jurisdiction (…) that specific objective had to prevail over the objective of the rule contained in the first paragraph of Article 2 of the Convention, which is to protect the defendant as the party who, being the person sued, is generally in a weaker position.” (29).

Then, it submitted that “a public body which brings an action for recovery against a maintenance debtor is not in an inferior position with regard to the latter. Moreover, the maintenance creditor, whose maintenance has been covered by the payments of the public body, is no longer in a precarious financial position.” (30) Additionally, “the courts of the defendant are better placed to determine the latter’s resources.” (31)

AG’s Opinion Arguing the Need to Depart from Blijdenstein

The AG’s Opinion submitted numerous reasons for which the CJEU should depart from Blijdenstein. The AG underlined the differences between Brussels Convention and Maintenance Regulation, analyzed the CJUE’s “new” jurisprudence relating to the latter (namely: Sanders and Huber, C-400/13; V, C-499/15; R, C-468/18), in particular as regards the regulation’s overarching principles, like protection of maintenance creditors or the effective recovery of maintenance claims in cross-border situations. Additionally, with reference to the Hague Protocol on the law applicable to maintenance obligations, the advantages of the coincidence between ius and forum were sketched.

Departure from Blijdenstein and its Justification

The CJEU shared the views of the AG and departed from Blijdenstein jurisprudence. In practical terms, it means that public bodies like Landkreis Harburg might file claims against maintenance debtors at the place of maintenance creditor’s habitual residence, which in most instances would coincide with their own.

The CJEU underlined that Article 3 of the Maintenance Regulation:

contains neither a general principle, such as jurisdiction of the court for the defendant’s domicile, nor derogating rules which would have to be interpreted strictly (…) but rather a number of criteria which are equal and alternative (…). (29)

and

does not specify that the claim must be brought by the maintenance creditor himself or herself before the courts identified in paragraphs (a) and (b) [and therefore does not] preclude a claim relating to a maintenance obligation from being brought by a public body, to which the claims of that creditor have been transferred by way of statutory subrogation, before one or the other of those courts. (31)

Consistent with the opinion, the CJEU also pointed to the fact that the Maintenance Regulation, as opposed to Brussels Convention and the Brussels I Regulation, does apply no matter domicile or habitual residence of the defendant. Hence:

refusing to allow a public body subrogated to the claims of a creditor to bring an action before the courts where that creditor is habitually resident in circumstances where the maintenance debtor is domiciled in a third State is most likely tantamount to requiring that public body to bring its action outside the European Union. (35)

This would result in legal and practical difficulties, which go against the objective of the effective recovery of maintenance claims.

The CJEU convincingly added that:

The transfer of the maintenance creditor’s claims to such a public body impairs neither the interests of the maintenance debtor nor the predictability of the applicable rules of jurisdiction; that debtor must, in any event, expect to be sued either before the court for the place where he or she is habitually resident or before the courts for the place where that creditor is habitually resident. (38)

The CJEU also referred to Hague Protocol, underling that its Article 10 provides that the right of a public body to seek reimbursement of a benefit provided to the creditor in place of maintenance is governed by the law to which that body is subject. This:

ensures, in the vast majority of cases – which are those in which the seat of the public body and the habitual residence of the creditor are in the same Member State – a parallel between the rules on jurisdiction and those concerning the applicable substantive law. (43)

According to a press release of the Spanish Constitutional Court, on 23 February 2021 the Plenary has partially ruled in favor of the Government of Catalonia (the Generalidad de Cataluña/Generalitat de Catalunya) and, consequently, declared unconstitutional part of the provisions of the Spanish Regulation on International Adoption approved by Royal Decree 165/2019 of 22 March 2019, implementing Law 54/2007 of 28 December 2007 on International Adoption.

Before the Constitutional Court, the Generalidad claimed that the Regulation infringed its statutory powers in the field of social services and the protection of minors. The Court has ruled that the State has indeed encroached on the powers of the Autonomous Communities in that field, in its international dimension. The reason is that the Regulation goes too much into the detail of the legal status of ‘accredited bodies’ and has entirely centralised, without recourse to cooperation mechanisms, a number of executive tasks such as the recognition, suspension and revocation of the accreditation of intermediary bodies, as well as the monitoring and control of the activity and some tasks related to the national registering of accredited bodies.

On the other hand, according to the Court, the State, in so far as it has jurisdiction over international relations, may conclude bilateral agreements to promote reciprocal relations with other States; establish the list of countries excluded from the regime of international adoption due to war, disaster and other serious reasons; and suspend as a precautionary measure adoptions in progress for these reasons.

Similarly, the State may entrust executive tasks corresponding to the regional institutions to a Sector  Conference such as the Delegate Committee on Social Services, composed of representatives of all the autonomous communities and cities. The Committee decides by consensus and, failing that, by majority, on the maximum number of international adoption files to be dealt with each year in relation to each country, and on their distribution between the Autonomous Communities and the accredited bodies. It also decides on the approval of the basic model contract for international adoptions.

In order to protect the best interests of minors, and having in mind as well the rights of the adopters, the effect of the judgement has been put off for one year from its publication. In this way, an immediate legislative vacuum adversely affecting minors -in particular those involved in international adoption proceedings initiated prior to the decision- is prevented. Additionally, the declarations of unconstitutionality and nullity contained in the decision ‘shall not affect consolidated legal situations such as those established by final administrative measures, or those which have been decided by a judgment having the force of res judicata’.

The ruling is accompanied by a dissenting vote from two Justices. In their view, the application should have been dismissed in its entirety since the Generalidad does not have the competence it claims – hence there is no possible trespassing on the side of the State. According to the magistrates, the Generalidad has no power to intervene in the extra-judicial phase of an international adoption taking place abroad. By contrast, it has competence for the protection of children who are in distress or at risk ; however, neither minors in other Autonomous Communities nor those in another State fall under its scope, even if they may be adopted by Catalans. The principle of territoriality makes it impossible to acknowledge Catalonia’s competence to protect minors residing abroad. Furthermore, adoptable minors abroad are not in a situation of risk or distress, since they reside in institutions who look after them.

All in all, a complicated political setting. Difficult to assess whether, in practice, it works in favor or against the main stakeholders : the children, the adopters, the families.

Charlemagne Dagbedji (University of Corsica) organises a webinar (in French) titled “Effective Recognition of Non-Judicial Divorce” (L’efficacité internationale du divorce sans juge).

The webinar aims at assessing the international legal acquis on non-judicial divorce, with a special focus on the means to ensure its cross-border recognition. It requires to analyse private international law rules but also to adopt a comparative law approach and a practical perspective.

It will take place on 25 March 2021, 2 to 4 PM (CET).

The speakers are André Giudicelli (University of Corsica), Alex Tani (University of Corsica), Alain Devers (University of Lyon 3 & Lawyer at the Lyon Bar), Charlemagne Dagbedji (University of Corsica) and Sonia Ben Hadj Yahia (University of Corsica).

Program and registration here.

On 24 February 2021 the Court of Justice of the EU issued a judgement in the case BU v Markt24 GmbH (C-804/19) following a request for a preliminary ruling from the Landesgericht Salzburg (Austria). The case concerns jurisdictional rules for employment contracts in Brussels I bis Regulation, in particular its Article 21. The opinion in this case was prepared by AG Øe.

Background

BU whose place of residence is in Salzburg (Austria) signed the employment contract for carrying out cleaning work in Munich (Germany) for Markt24 GmbH, whose registered office is also located in Munich. BU signed the contract with an employee acting as intermediary of Markt24. The contract was signed in a bakery in Salzburg, even though Markt24 had an office in this city at that time. It was agreed that BU would start working on 6 September 2017, but she was never allocated any work, even though she could be contacted by telephone and was prepared to work. BU has not received remuneration, but she was registered with the Austrian social security institution as an employee. On 15 December 2017, the defendant terminated the employment contract. On 27 April 2018, BU filed a claim to the Landesgericht Salzburg (Austria) asking for outstanding wage and other payments for the period of her employment.

Since the documents initiating the action could not be served on the defendant, a procedural representative in absentia was appointed. The representative contested jurisdiction of the Austrian court. It seems that, in accordance with domestic law in place in Austria, namely § 4(1)(a) Arbeits- und Sozialgerichtsgesetz (“ASGG” – Law on the labour and social courts), Landesgericht Salzburg would have jurisdiction, based on the place of residence of the employee and also the place where the remuneration was to be paid. At the same time there were doubts whether jurisdiction exists under Brussels I bis Regulation, in particular its Article 21(1)(b)(i), which grants jurisdiction to courts for “the place where or from where the employee habitually carries out his work”. Landesgericht Salzburg decided to refer a preliminary ruling to the CJEU asking few alternative questions.

Is Section 5 of Chapter II Brussels I bis Applicable at All, If No Work Was Actually Performed?

The Court reminded that the concept of an “individual contract of employment” referred to in Brussels I bis Regulation must be given an autonomous interpretation (point 24). As flows from its previous jurisprudence, this concept “presupposes a relationship of subordination of the employee to the employer; the essential feature of an employment relationship is that for a certain period of time one person performs services for and under the direction of another in return for which he or she receives remuneration” (point 25). If the above conditions are met, parties are bound by a “contract of employment” within the meaning of the Regulation, “irrespective of whether the work which is the subject of that contract has been performed or not” (point 26).

Hence, the CJEU stated that Section 5 of Chapter II Brussels I bis (namely, its special jurisdictional rules for employment contracts) “must be interpreted as applying to a legal action brought by an employee domiciled in a Member State against an employer domiciled in another Member State in the case where the contract of employment was negotiated and entered into in the Member State in which the employee is domiciled and provided that the place of performance of the work was located in the Member State of the employer, even though that work was not performed for a reason attributable to that employer.”

Does Brussels I bis Allow for the Application of Domestic Rules on Jurisdiction If More Beneficial to the Employee?

As rightly underlined in the opinion, the fact that the rules of the ASGG are more favorable to the employee is irrelevant, as section 5 of Chapter II Brussels I bis does not provide for certain minimum standards of the protection of employees, which might be further developed by the national legislation (points 43-44 of the opinion). Instead, this Regulation provides for a unified system of jurisdictional rules. If a dispute falls within the scope of application of Brussels I bis, its rules of jurisdiction must take precedence over national ones (points 30-32 of the judgement). Hence, the CJEU ruled that the provisions set out in Section 5 of Chapter II Brussels I bis preclude the application of national rules of jurisdiction, irrespective of whether those rules are more beneficial to the employee.

How to Understand Article 21(1)(b)(i) Brussels I bis, If the Work Was Never Actually Performed?

As underlined in the opinion, the Court has never before had a chance to explain how to understand the concept of the “place where the employee habitually carries out his work”, in case no work was actually performed (point 23 of the opinion). The Court noted that this concept refers to “the place where, or from which, the employee in fact performs the essential part of his or her duties vis-à-vis his or her employer” (point 40). The Court shared also the view presented in the opinion that:

in the case where the contract of employment has not been performed, the intention expressed by the parties to the contract as to the place of that performance is, in principle, the only element which makes it possible to establish a habitual place of work (…) That interpretation best allows a high degree of predictability of rules of jurisdiction to be ensured, since the place of work envisaged by the parties in the contract of employment is, in principle, easy to identify (point 41).

The Court had no doubt that in the case at hand that place is Munich (Germany).

At the same time, the Court underlined that in accordance with Article 20 Brussels I bis Regulation, section 5 of its Chapter II applies without prejudice to, inter alia, Article 6 point 5, which provides that a person domiciled in a Member State may be sued in another Member State, “as regards a dispute arising out of the operations of a branch, agency or other establishment, in the courts for the place where the branch, agency or other establishment is situated”. The Court noted that Landesgericht Salzburg should determine whether that provision may also be applicable in the case given that Markt24 had an office in Salzburg at the beginning of the employment relationship.

CJEU stated that Article 21(1)(b)(i) of Brussels I bis must be interpreted as meaning that an action may be brought before the court of the place where or from where the employee was required, pursuant to the contract of employment, to discharge the essential part of his or her obligations towards the employer. This is however without prejudice to Article 7(5) of the Regulation.

Is Article 7(1) Brussels I bis Applicable to an Employment Relationship, If No Work Was Actually Performed?

One of the questions was not answered either in the opinion or in the judgement, as there was no doubt that Section 5 of the Chapter II Brussels I bis does apply to the case at hand. By this question Landesgericht Salzburg wanted to clarify whether Article 7(1) Brussels I bis might apply to the employment relationship, in such specific circumstances, when no work was actually performed and whether § 4(1)(a) or (d) of the ASGG could be applied. It is not clear whether the ASGG was supposed to be applied instead of Article 7 Brussels I bis or somehow indirectly by the intermediation of it.

Since 2018, UNIDROIT has been studying the prospect of working on the enforcement of claims.

In September 2020, it eventually established a Working Group on the Best Practices for Effective Enforcement. The Working group held its first meeting between 30 November and 2 December 2020, based on an Issues Paper.

The purpose of the project will be to adopt a soft instrument proposing solutions that States would be free to adopt (best practices followed by comments, on the model of the ELI-UNIDROIT Rules of civil procedure). It would focus on the enforcement process, and would not cover the process of obtaining a judgment against a defaulting party or the process of declaring enforceable foreign judgments in the forum. It would include the enforcement of provisonal and protective measures.

During the first meeting, the participants discussed a variety of issues, including the concept of enforcement, the types of claims that should be covered and the impact of technology. The Report of the meeting is available here.

The next meeting will be held in April 2021. Three sub-groups were established: Subgroup 1 on  “post-adjudication” enforcement; Subgroup 2 on enforcement of secured claims (collateral); Subgroup 3 on the impact of technology on enforcement.

As noted earlier on this blog, on 5 March 2021, from 5 to 6.30 p.m. (CET), the European Association of Private International Law will host its third (Virtual) Seminar, devoted to the digitalization aspects of the revised Service of process and Taking of evidence Regulations.

Those wishing to attend have time until 3 March 2021 at noon 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 Apostolos Anthimos at apostolos.anthimos@gmail.com.

To the best of my knowledge, March 2021 will be another quiet month at the Court (for private international law issues). In fact, there is only one event to be reported, namely the judgment in case C-307/19, Obala i lučice, by the 1st Chamber (Bonichot, Bay Larsen, Safjan, Jääskinen, and Toader as reporting judge), which will be published on Thursday 25th.

Readers of this blog may remember that the main proceedings concern a dispute to recover the principal amount of HRK 84 (some 11 Euros) owed as payment for a daily parking ticket for a car parked on the public highway in Zadar (Croatia) on 30 June 2012. The national court – the Visoki trgovački sud Republike Hrvatske (Commercial Court of Appeal, Croatia)- referred nine questions to the Court in Luxembourg, on the interpretation of a number of provisions of several regulations. AG Bobek’s opinion was delivered on 26 November 2020.

A similar trend is announced for April. Therefore, while waiting for the opinions and decisions of the many pending cases directly related to private international law, I would suggest to have a look at nearby fields. A proposal: case C-919/19, Generálna prokuratura Slovenskej republiky, on the mutual recognition of judgments in criminal matters. The CJEU has been asked to interpret Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union, as amended. The questions are:

Is Article 4(1)(a) of the Framework Decision to be interpreted to the effect that the criteria set out therein are satisfied only when the sentenced person has, in the Member State of his nationality, such family, social, professional or other links that it is possible to reasonably assume from those links that enforcement in that State of the sentence may facilitate his social rehabilitation, and as therefore precluding national legislation such as Paragraph 4(1)(a) of Zákon č. 549/2011 Z.z. [Law No 549/2011] (in the version in force until 31 December 2019) which, in such cases, enables a judgment to be recognised and enforced in the event of merely formally recorded habitual residence in the executing State, regardless of whether the sentenced person has concrete links in that State which could enhance his social rehabilitation?

If that question is answered in the affirmative, is Article 4(2) of the Framework Decision to be interpreted to the effect that the competent authority of the issuing State is required also in the situation provided for in Article 4(1)(a) of the Framework Decision to satisfy itself, even before forwarding the judgment and certificate, that enforcement of the sentence by the executing State would serve the purpose of facilitating the social rehabilitation of the sentenced person and is, furthermore, required to provide the information gathered for that purpose in section (d), point 4, of the certificate specifically, where the sentenced person claims in the statement of his opinion provided for in Article 6(3) of the Framework Decision that he has concrete family, social or professional links in the issuing State?

If question 1 is answered in the affirmative, must Article 9(1)(b) of the Framework Decision be interpreted to the effect that where, in the situation set out in Article 4(1)(a) of the Framework Decision, despite the consultation under Article 4(1)(3) of that Decision and any provision of other necessary information, it is not proven that there are such family, social or professional links from which it could reasonably be assumed that the enforcement in the executing State of the sentence may facilitate the social rehabilitation of the sentenced person, there is still a ground for refusing to recognise and enforce the judgment?

An opinion, again by AG Bobek, is expected mid-April.

The Journal for European, Private International and Comparative Law (Zeitschrift für Europarecht, Internationales Privatrecht und Rechtsvergleichung – ZfRV) just released its latest issue. It includes two interesting articles.

The first, published in English and authored by Leszek Bosek and Grzegorz Żmij, is titled “On the CETA’s compatibility with European Union law in light of Opinion No 1/17 of the Court of Justice of 30 April 2019” (ZfRV 2020, p. 248). The summary reads:

The CJEU’s opinion No 1/17 regarding the CETA’s compatibility with European Union law is an important document demonstrating the evolution of the Court’s position when faced with the challenges of the world’s economic globalisation and the effect of various factors related to it on its case law. In our view, the Court of Justice has not sufficiently explained why it has departed from the principal determinations laid down in its Opinions Nos 2/13 and 1/09 and the Court’s judgement in the Achmea case, which were demonstrably in accordance with the line of the Court’s case law consistently defined by its subsequent judgements to date, demarcating in a clear way the fundamental constitutional principles of EU legal and judicial order. In particular, it is hard to accept as satisfactory its contention that the CETA tribunals will not apply or interpret the EU’s or Member States’ law, requiring a uniform interpretation in accordance with the rules laid down in Article 267 of the TFEU, which does not agree with observations from the international investment arbitration practice. The solutions adopted in the CETA seem to be pragmatic, but may raise doubts from the point of view of Article 19 of the TEU and Article 47 of the Charter of Fundamental Rights, and the corresponding guarantees in the constitutions of Member States. Those issues have not been sufficiently tackled by the Court of Justice.

The second article, published in German by Caroline Kohlhaupt, deals with the change of the Consumer Rights Directive’s substantive scope of application through the Omnibus Directive (“Die Änderung des sachlichen Anwendungsbereichs der Verbraucherrechte-RL 2011/83/EU durch die Omnibus-RL (EU) 2019/2161”, ZfRV 2020, p. 276). The summary reads:

The Directive (EU) 2019/2161 brings various amendments to the Consumer Rights Directive 2011/83/EU. When it comes to the material scope of Directive 2011/83/EU, especially the following clarification is substantial: The Directive shall – in principle – also apply where the trader supplies or undertakes to supply digital content which is not supplied on a tangible medium or a digital service to the consumer and the consumer provides or undertakes to provide personal data to the trader.

The post below was written by Serena Forlati, Professor of International Law at the University of Ferrara. It follows a post by Andrew Dickinson which opened an on-line symposium devoted to the fate of the 1968 Brussels Convention. One more contribution will be published on this blog in the coming days.

The symposium follows a lively exchange prompted by a post by Matthias Lehmann (Brexit and the Brussels Convention: It’s All Over Now, Baby Blue?), which attracted comments by Eduardo Álvarez-Armas, Apostolos Anthimos, Gilles Cuniberti, Burkhard Hess, Costanza Honorati, Alex Layton, François Mailhé and Fabrizio Marongiu Buonaiuti.

Readers are encouraged to share their comments to the contributions. Those wishing to submit a full contribution to the on-line symposium are invited to get in touch with Pietro Franzina at pietro.franzina@unicatt.it.

Matthias Lehmann’s post on the possibility to ‘revive’ the Brussels Convention in the relationship between the United Kingdom and EU Member States, and the discussion it triggered, raise a number of interesting issues of both private and public international law.

I intend to offer a few reflections from the latter perspective, and more specifically from the standpoint of the international law of treaties. While termination of the Brussels Convention is regulated by customary international law (see Article 4 of the Vienna Convention on the Law of Treaties of 1969), I will refer to the rules enshrined in the Vienna Convention since the grounds of termination it sets forth largely codify custom (see notably the ICJ Judgment in Gabčíkovo/Nagymaros, paras 46, 99-100, and here also for further references).

Whether the Brexit could revive the Brussels Convention in the relations between the United Kingdom and the EU Member States was already discussed in this blog (see here and here). I tend to rule out such possibility, for the reasons set out by Andrew Dickinson and Burkhard Hess. The picture would however be clearer if one could argue that, before Brexit, the Brussels Convention was no longer applicable as regards Aruba and relevant French overseas territories – as the revival of a treaty that was already completely terminated (cf Article 59 VCLT) would be difficult to conceive. An aspect worth raising in this regard (and I thank Pietro Franzina for pointing it out to me) concerns the impact of the Lugano Convention 2007 on the applicability of the Brussels Convention to such territories. Notably Article 69(7) of the 2007 Lugano Convention stipulates:

Insofar as the relations between the Member States of the European Community and the non-European territories referred to in Article 70(1)(b) are concerned, this Convention shall replace the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, signed at Brussels on 27 September 1968 … as of the date of the entry into force of this Convention with respect to these territories in accordance with Article 73(2).

In discussing this text, the Pocar Explanatory Report (para. 186) characterized the continuing applicability of the Brussels Convention to non-European territories as a ‘problem’ which the 2007 Convention ‘supplied an opportunity to resolve’, thus indicating that a complete termination of the Brussels Convention would be advisable. Still, Article 69(7) did not automatically achieve this result: the Lugano Convention could actually replace of the older instrument only upon completion of the simplified accession procedure under Article 70(1)(b) on behalf of those non-European territories ‘that are part of the territory of [a] Member State or for whose external relations [a] Member State is responsible’. This does not seem to be the case.

More specifically, the French Parliament has authorized the accession to the Lugano Convention on behalf of overseas territories to which the Brussels Convention applies through law No. 2019-983 of 26 September 2019 (see here, and here for the explanatory report); however, apparently the French Government did not follow suit, as no notification of accession is mentioned to date in the repository of the Swiss Government, as depositary of the Lugano Convention; nor is there any record of similar steps being taken by the Netherlands on behalf of Aruba (see here). Article 69(7) of the Lugano Convention and the implementing practice would thus seem to offer no conclusive indication ruling out a revival of the Brussels Convention.

Assuming, for the sake of argument, that the Brussels Convention still regulates the relationship between the UK and the EU, and should the EU challenge the United Kingdom’s claim that it does not apply in its regard, which options would the United Kingdom have under the international law of treaties to terminate a treaty relationship that it deems no longer to meet its interests? None of the grounds of termination discussed in the previous posts would seem to be fully adequate for the purpose.

Firstly, as regards termination on grounds of breach, Matthias Lehmann rightly questions whether the repeal of implementing legislation would as such qualify as a ‘material breach’ of the Brussels Convention. Although this is not straightforward, the repeal, taken together with the notification to the European Council of 29 January 2021, could amount to a ‘repudiation’ of the treaty (see Article 60, para 3(a) VCLT); this notion is understood as ‘encompass[ing] all means by which a party intends to relieve itself from its obligations under a treaty’  (cf here B. Simma, C. Tams, ‘Article 60’, para 16), and this is clearly the intention of the United Kingdom. However, under the rule reflected in Article 60(2)(a) VCLT the United Kingdom’s non-performance could be invoked as a ground for termination only by all the other Parties to the Brussels Convention acting together – most likely through the EU Institutions, in light of the EU’s acquired exclusive external competence in the issue. Should such a consensus exist, it would be much more practical to express it right away – even if only implicitly by accepting the UK’s request to accede to the Lugano Convention, in line with the approach of the other contracting Parties to the latter instrument (see here and here). The possibility for ‘specially affected States’ to individually suspend the Brussels Convention (Article 60(2)(b) VCLT) would seem to raise further difficulties also in light of the EU’s exclusive competence in the matter.

Whether the United Kingdom could invoke a fundamental change of circumstances is also doubtful in my view. I agree that the ‘subjective’ requirement set forth by Article 62 VCLT is met in this case, since membership in the European Union was ‘an essential basis of the consent’ of the United Kingdom to be bound by the Brussels Convention.  However, as Matthias Lehmann notes in his reply of 17 February 2021, it is by no means certain that a renewed application of that instrument would ‘radically […] transform the extent of obligations still to be performed under the treaty’ (Article 62(1)(b) VCLT).

The United Kingdom may be on safer ground in invoking Article 56 of the Vienna Convention, whose paragraph 1 stipulates: ‘A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless: (a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or (b) a right of denunciation or withdrawal may be implied by the nature of the treaty’. Arguably the presumption against withdrawal enshrined in Article 56 can be rebutted in the case of the Brussels Convention (and of the 1978 Luxembourg Convention) by relying on either the intention of the parties or the nature of the treaty in question.

The scope of these exceptions is admittedly ambiguous, and the burden of proving that the situation falls under their scope would fall upon the United Kingdom (see here  T. Giegerich on Article 56, p. 1048, margin note 24). Notably the exception linked to the ‘nature’ of a treaty was the object of much controversy during the negotiations. According to the International Law Commission’s Special Rapporteur Waldock, the category would include ‘commercial and trading’ treaties, that seem much closer to the Brussels Convention than the examples of treaties which in his view ‘shall continue in force indefinitely’, listing treaties establishing boundaries and territorial regimes, treaties of peace, treaties concerning the final settlement of international disputes and multilateral treaties codifying general international law (see under Article 17 in his Second Report on the Law of Treaties, p. 64; on practice subsequent to the adoption of the Vienna Convention see however T. Christakis’ comment to Article 56, para 59).

A further indication as to the possibility to withdraw unilaterally from the Brussels Convention could come from ‘the intention of the parties’, under Article 56(1)(a) VCLT. The silence of the Brussels Convention could arguably be read in light of its nature as an instrument of EC Law, that others have highlighted in this discussion; this would militate in favour of a possibility for the United Kingdom to withdraw unilaterally once its membership in the EU has ceased, without necessarily meeting the requirements for termination in light of a fundamental change of circumstances. Nonetheless, a clear stance by the EU in this respect would be welcome in the interest legal certainty and of the stability of future relations.

French Private International Law (“PIL”) has never been codified despite various proposals of codification in the last century (see for instance here and here). The growing European acquis of PIL and the idea of an European Code of PIL (see for instance here and more recently within the EAPIL here), as well as the numerous codifications in the field within EU Member States have probably contributed to a re-launch of the reflection, in particular among French governement officials.

An expert group has be appointed two years ago under the leadership of Jean-Pierre Ancel (former President of the first Chamber of the French Court of Cassation) to draft a project of French PIL Act.

Against this backdrop, Ludovic Pailler (University of Lyon 3) organises a webinar (in French) titled “Codification of French Private International Law in the European context” (La codification du droit international privé français à l’heure européenne).

It will take place on 18 March 2020, 2 to 5 PM (CET).

The speakers are Jean-François de Montgolfier (Director of the Civil Affairs of the French Ministry for Justice), Marc Cagniart (Notary, SCP Castiglione, Paris), Alain Devers (University of Lyon 3 & Lawyer at the Lyon Bar) and Emmanuel Putman (University of Aix-Marseille).

The program is available here.

Those wishing to attend the webinar may write an e-mail to marie.brossard@univ-lyon3.fr.

Tamás Szabados (Eötvös Loránd University) published Constitutional identity and judicial cooperation in civil matters in the European Union – An ace up the sleeve?, in the Common Market Law Review (vol. 58, February 2021).

The paper discusses the constitutional identity-based arguments in the field of private international law.

He has kindly provided us with an extended abstract :

Constitutional identity has become a fashionable concept that is used by politicians and courts alike. But how does constitutional identity affect private international law?

The use of constitutional identity-based arguments has been primarily examined in the context of EU and domestic constitutional law. Constitutional law discourse has mainly centred around the interpretation of Article 4(2) of the TEU. However, less attention has been devoted to the role and impact of arguments related to constitutional identity on the development of EU private international law. This is notwithstanding the fact that constitutional identity seems to shape the application and creation of private international law rules.

Constitutional identity has a twofold effect on private international law. First, peculiar constitutional norms and values belonging to constitutional identity can be safeguarded through the public policy exception. This opens the door for courts to disregard the otherwise applicable foreign law or to reject the recognition of a foreign situation on the ground that it violates the constitutional identity of the forum state.

Second, arguments based on constitutional identity may be relied on to stay outside the enactment of new private international legislation by the EU. In particular, due to the unanimity requirement laid down by Article 81(3) TFEU, Member States have a strong bargaining power in the area of international family law. This can be well illustrated by the recent adoption of Matrimonial Property Regulation and the Regulation on the Property Regimes of Registered Partners where the opposition of some Member States led to the enactment of these regulations in enhanced cooperation procedure. Staying outside from the adoption of these regulations has been motivated by protecting the domestic concept of family as part of national or constitutional identity. In this way, constitutional identity undoubtedly contributes to the fragmentation of EU private international law.

Nevertheless, constitutional identity can be rarely used as a trump by the Member States in the area of the judicial cooperation in civil matters. There are at least two limits concerning the application of the autonomous private international law rules of the Member States. First, as long as an international legal dispute demonstrates some connection to EU law, Member States must respect the fundamental principles of EU law, in particular the principles of free movement and non-discrimination. Second, even if no such connection exists, the limits stemming from international conventions, such as the ECHR, cannot be ignored.     

The details of the article are available through the journal website here.

In a judgement dated 18 November 2020, the French Supreme Court for private and criminal matters (Cour de cassation) ruled that the obligation to apply choice of law rules equally applies in interim proceedings. In contrast, the court had ruled in 1996 that French courts did not have the power to apply choice of law rules in interim proceedings.

Background

The case was concerned with a traffic accident which had occurred in Italy. A car driven by a French woman had run over a professional Australian cyclist living in Monte Carlo (which one is anyone’s guess). The victim initiated interim proceedings in France against the driver and her insurer seeking the appointment of a judicial expert and a provisional payment order.

Various provisions of the French Code of Civil Procedure grant French courts the power to issue provisional payment orders (référé provision) where a claim cannot be “seriously disputed”. Such orders may be granted in interim proceedings for up to 100% of the claim. They are not final, and in theory the defendant may always reopen the issue in the proceedings on the merits. In practice, defendants often do not bother and provisional payment orders are never challenged.

The issue in this case was whether the French court had the power, and indeed the duty, to apply French choice of law rules and, as the case may be, assess whether the claim was undisputable be reference to the law governing the substantive rights.

Applicable Law

The case was clearly concerned with a tort claim. In many Member states, the Rome II Regulation would have applied, but France is a party to the 1971 Hague Convention on the law applicable to traffic accidents. Pursuant to Article 28 of the Rome II Regulation, the Regulation does not affect the application of the 1971 Convention because it also applies in third states (Switzerland, Morocco, Ukraine, etc…).

The Hague Convention is of universal application, and it thus applied in French courts irrespective of the fact that the accident occurred in a third state, and designated the law of a third state. The choice of law rules of the Convention are pretty complex, and include a number of exceptions to the application of the law of the place of the accident, in particular where the car was matriculated, and the victim was outside the vehicle and resided, in the same country (art. 4), but that was not the case here. So Italian law likely applied as the law of the place of the accident (Article 3).

However, maybe because it had limited knowledge of private international law or, more likely, because it had no intention of applying Italian law, the court of appeal of Aix en Provence applied the Rome II Regulation and found that the exception clause in Article 4(3) allowed for the conclusion that French law was manifestely more connected to the tort.

The Cour de cassation did not even bother to comment on the application of the exception clause. It set aside the judgment of the court of appeal on the ground that it had applied the wrong choice of law rule, as it had failed to apply the Hague Convention.

Most importantly, it held that the court of appeal had the duty to apply the Hague Convention to determine the applicable law, “even in interim proceedings” (“même statuant en référé“).

Substance and Procedure

Although the judgment of the Cour de cassation is concise, its meaning is clear.

It is not that foreign law might be applied to procedure or to determine which provisional measures might be available. This is governed by the law of the forum. So, the availability of the two provisional measures sought by the  victim was entirely governed by French law, and so were the requirements for granting them. French law provided that provisional payment orders could only be granted if the claim could not seriously be disputed.

Many provisional measures, however, aim at protecting and anticipating substantive rights. Freezing orders protect the payment of a claim. Under French law, a provisional payment order anticipates the payment of a claim. The issue was whether the existence of such claim should also be assessed in accordance with the law of the forum, or whether it should be assessed in accordance with the law governing the relevant claim. The Cour de cassation rightly holds that it should be in accordance with the law governing the relevant claim.

Assessment

The judgment is right. There is no acceptable alternative to the application of the law governing the claim. If the law of the forum is applied, the resulting measures will protect imaginery rights. Another possibility would be to rule that, as foreign law cannot be applied in interim proceedings, the application should be dismissed where the law of the forum does not apply. For protective measures at least, this would border denial of justice. But this was the outcome of the 1996 judgment of the Cour de cassation where it was held that French courts did not have the power to apply choice of law rules to determine whether the creditor seeking a freezing order had a good arguable case, and the application denied.

Of course, time is typically of the essence in interim proceedings. The establishment of foreign law may then raise difficulties. But the establishment of facts raises the same difficulties. For certain proctective measures such as freezing orders, the answer is to lower the standard of proof. It is possible to do the exact same for establishing foreign law. German courts have so held in several cases: only the likelihood of the content of foreign law should be established at that stage.

For other provisional measures, the standard of proof is high, if not higher. This is the case for establishing that a claim cannot be seriously disputed under French civil procedure. But such measures are not urgent, and it would not be a denial of justice to deny the remedy and to await for the outcome of the proceedings on the merits.

The author of this post is Cecilia Rizcallah. She is visiting Professor at the Université Saint-Louis-Bruxelles and at the Université libre de Bruxelles, Postdoctoral Researcher at the National Fund for Scientific Research (F.R.S.-FNRS) and re:constitution fellow. As announced in a previous post, Cecilia is the author of a monograph on the principle of mutual trust in EU Law, based on her doctoral thesis. She has kindly accepted to provide us with a presentation of this key-principle of EU law with a special focus on EU judicial cooperation in civil matters.

The Principle of Mutual Trust, an Essential and Transversal Principle of EU law  

The principle of mutual trust, whose fundamental importance is recognised by the European Court of Justice (hereafter “ECJ”), became a genuine “leitmotiv” of discourses on EU integration. This principle indeed underpins a large set of EU rules of primary and secondary law, in the fields of the internal market and the area of freedom, security and justice.

The principle of mutual trust appeared at an early stage of European integration, in the area of mutual recognition of diplomas and professional qualifications and in the field of free movement of goods. Being an attractive tool for integration by allowing the opening-up of the different national legal orders, it was subsequently called upon in the areas of European judicial cooperation in civil and criminal matters, as well as in the area of the common asylum policy. In spite of its success, this principle lacked conceptualization. The main objective of my research was to remedy this nebulous situation by providing a cross-cutting definition of the principle of mutual trust. It also analysed its role for EU integration as well as its relationship with EU founding values, which include the rule of law and human rights. The principle of mutual trust is indeed presented as being “based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the Union is founded, as stated in Article 2 TEU” (ECJ, Opinion 2/13, pt. 168). Yet, the EU currently faces a “crisis of values” resulting from the existence of serious violations of these values and, in particular, the rule of law and human rights, in an increasing number of Member States.

The in-depth study of the manifestations of the principle of mutual trust shows that it imposes to the Member States to presume – to a certain extent and in their direct horizontal relationships – the compatibility of different national “legal solutions”.  Indeed, the principle of mutual trust requires Member States – when it applies – to “trust” acts issued by other Member States, or legal practices or situations tolerated in their territory. This duty of trust prevents, as a matter of principle, the double control of these national legal solutions’ compliance with EU law. The principle of mutual trust has nevertheless no direct effect and has therefore to be implemented by primary or secondary law in order to be applicable. It constitutes one of the foundations of the principle of mutual recognition, which in turn imposes, more specifically, the recognition of a legal act issued by another Member State.

The Principle of Mutual Trust, a Foundation of the Principle of Mutual Recognition in the Field of Judicial Cooperation in Civil Matters

In the field of judicial cooperation in civil matters, the principle of mutual trust opposes the revision of a judgment issued by a – issuing – Member State for which the recognition is sought in another – executing – Member State. It therefore countenances the principle of mutual recognition imposed by a number of instruments in civil and commercial matters, matrimonial matters and matters of parental responsibility and insolvency. A judgment deciding on the custody of a Franco-German couple’s child handed down in Berlin will thus be able to take effect almost without formalities in Paris, despite the specificities distinguishing German and French family law. The judgments issued by the Member States should be presumed as being “equivalent” and as complying with the requirements of Union law, particularly in terms of fundamental rights.

The Principle of Mutual Trust, at the Crossroads of the Imperatives of Unity, Diversity and Equality

As a matter of fact, the principle of mutual trust plays an essential role for EU integration. It indeed lies at the crossroads of three essential imperatives of the European construct: unity, diversity and equality between Member States. Despite the safeguarding of national substantive and procedural diversities, the borders between the Member States are fictitiously blurred so that – in broad terms – the legal solution of State A does not encounter any obstacles to penetrate the legal order of State B. The judgment issued by the authorities of a Member State A will indeed be able to take effect, without any formalities such as an exequatur, in the Member State B. In this way, the principle of mutual trust makes it possible to unify the national legal orders, which remain distinct and equal.

The Principle of Mutual Trust, a Source of Risk

Although it plays an essential role for EU integration, this principle generates important risks because of the lack of mutual control of legal solutions presumed to be compatible. It may indeed lead to the spread of unsatisfactory legal solutions – infringing EU law – within the European area without internal borders. These risks are of course amplified because of the existence of the “crisis of values”. The major challenges faced by the Union and the Member States in economic, security and migration matters have indeed revealed deep divisions as to the meaning of European integration and the values on which it is based. These divisions have gone so far as to lead to the existence of widespread and persistent failures which, in the opinion of the majority of observers, are causing a rule of law backsliding in a few Member States. This situation increases the likelihood that national legal solutions are incompatible with democratic values and the rule of law. A judgement issued by a judge who is no longer independent could indeed, by vertu of mutual trust, spread its effects in the other Member States.

The Principle of Mutual Trust Does not Impose “Blind” Trust

Exceptions have nevertheless been recognized to the principle of mutual trust in order to limit the risks of violation of EU founding values it entails. These exceptions must however be construed narrowly according to the ECJ, because of the principle mutual trust. Indeed, according to the Court, it is only in “exceptional circumstances” that this principle may be set aside (ECJ, Opinion 2/13, pt. 191).

The ECJ, for example precluded, with regards to the Brussels II bis regulation, the review, by an executing authority, of a decision requiring the return of a child issued on the basis of Article 42 of this regulation. In the Zarraga case, it held that the authorities of the executing Member State were not entitled to verify whether the court which issued the judgment requiring the return of the child had respected the child’s right to be heard, as provided for by the Regulation, since the principle of mutual trust requires the national authorities to consider “that their respective national legal systems are capable of providing an equivalent and effective protection of fundamental rights, recognised at European Union level, in particular, in the Charter of Fundamental Rights” (pt. 70). The Court of Justice justified this approach on the grounds that the regulation did not foresee any exceptions to this kind of decision and, also, that the child’s right to be heard is not absolute and that the national authorities are granted a margin of discretion regarding its application (pt. 66).

Exceptions to the principle of mutual trust have nevertheless been established, when more serious risks of violation of fundamental rights were at stake, in the context of the application of the Brussels I bis Regulation, which concerns the recognition and enforcement of judgments in civil and commercial matters and which establishes a general exception to mutual recognition based on public policy. This exception must however, still because of the principle of mutual trust, be construed narrowly. In the Krombach case, the Court of Justice nevertheless held that mutual recognition may be refused when the defendant has suffered “a manifest breach of his right to defend himself before the court of origin”. A similar conclusion was made in the Trade Agency case, where the Court of Justice stressed that the public policy clause could only be relied upon when the defendant’s right to a fair trial is “manifestly” breached, leading to the “impossibility of bringing an appropriate and effective appeal” against the judgement in the issuing state.

The study of all the exceptions surrounding the principle of mutual trust led to the conclusion that if not all violations of fundamental rights justify setting aside mutual trust, the ones threatening absolute fundamental rights (such as the prohibition of inhuman and degrading treatment) or the essential content of other fundamental rights, in the sense of Article 52(1) of the Charter do. Indeed, only the most serious violations of fundamental freedoms seem to exclude the application of the principle of mutual trust.

This observation is based on the case-law in private international law (above) which refers to the concept of “manifest breach”, but also in the field of criminal cooperation and asylum where the Court found that a risk of infringement of Article 4 of the Charter prohibiting inhuman and degrading treatments excluded mutual trust.

Yet, if the integration aims pursued by the principle of mutual trust are legitimate, one can nevertheless wonder how to justify that this principle continues to apply even in presence of risks of “simple” infringements of fundamental freedoms, especially since this principle is supposed to be based on the respect of these rights by all the member states. The implementation of the principle of mutual trust can therefore in itself weaken its proper foundations.

The Principle of Mutual Trust, a Risk Analysis

 Observing the unsatisfactory character of the limitation scheme surrounding the principle of mutual trust, this research ended by proposing ways of improving its operation so that the founding values of the Union are better protected. More specifically, we call on those involved in mutual trust to transform the principle of mutual trust from a postulate into a method. In other words, we propose to move away from the postulate of trust in favour of a methodical application of trust.

This method, which is based on risk management tools notably developed by the Society for Risk Analysis, is divided into two phases.

The first is aimed at EU institutions that implement, in an abstract way, mutual trust in standards with a general scope: when they adopt an EU legislation implementing this principle, it seems desirable to us that they carry out a risk analysis and that they adapt the exceptions enshrined in this instrument accordingly. To this end, several steps are proposed, which differ according to the type of value exposed by the envisaged legislation, the type and seriousness of the damage incurred, and the possible vulnerability of the resources concerned. For example, when fundamental rights are threatened by the instrument underpinned by the principle of mutual trust – such as the best interest of the child in the framework of the Brussels II bis regulation – we consider that a margin of appreciation should be reserved to national authorities implementing the instrument on a case-by-case basis.

The second phase is aimed at the actors who actually implement these general instruments in specific cases (judges, administrations, etc.). Here too, guidelines that could guide these actors in this task are developed, always with a view to increasing the protection of the fundamental rights of individuals. The method deals in particular with the question of the adjustment of the burden of proof, an issue that is of particular importance in litigation, especially when it comes to protecting fundamental rights. In this sense, if the existence of risks of serious violations of fundamental rights is alleged and demonstrated prima facie, we recommend a shift of the burden of the proof so that it would be up to the authority that wants to take advantage of the principle of mutual trust to demonstrate the non-existence of this risk. This proposition is largely inspired by the adjustment of the burden of the proof in non-discriminatory law (see, for example, art. 10 of Directive 2000/78)

As a complement to this method, various “risk management tools” are also explored, making it possible to reduce those that threaten human rights in the context of the implementation of mutual trust. These tools include minimum harmonization, the strengthening of procedural guarantees surrounding the principle of mutual trust, the establishment of solidarity mechanisms between the Member States, …

Evidently, this method does not claim to solve all the difficulties arising from the principle of mutual trust. On the contrary: it aims at opening the discussion on the basis of a systematic identification of the risks induced by this principle, and to inspire the stakeholders with a few best practices.

On 5 March 2021, from 5 to 6.30 p.m. (CET), the European Association of Private International Law will host its third (Virtual) Seminar (see here and here for the previous events in the series). The Seminar will focus on the digitalization aspects of the revised Service of process and Taking of evidence Regulations.

The speakers will be Andreas Stein (European Commission), Elizabeth Zorilla (Hague Conference on Private International Law), Michael Stürner (University of Konstanz and Court of Appeal of Karlsruhe), Jos Uitdehaag (International Union of Judicial Officers) and Ted Folkman (attorney at law, Boston, and Letters Blogatory).

Gilles Cuniberti will introduce the Seminar, while Giesela Rühl will provide some concluding remarks.

Attendance is free, but those wishing to attend are required to register here by 3 March 2021 at noon.

Registered participants will receive the details to join the Seminar by e-mail the day before the Seminar.

For more information, please write an e-mail to Apostolos Anthimos at apostolos.anthimos@gmail.com.

The author of this post is Ségolène Normand, Postgraduate Student in Private Law at the University of Valenciennes.

Digital technology has been investing all areas of society and its potential seems unlimited. At the global level, public institutions are progressively transforming in favour of eGovernment which involves rethinking both organisation and process, so that public services can be delivered online, quickly and at a lower cost for individuals and businesses (see for instance here). States are also investing massively in the digitisation of their justice system and national courts have to adapt to this new paradigm, irrespective of the type of disputes – domestic or cross-border – they are dealing with. Digitalisation has no borders.

Against this backdrop, the use of new technologies can facilitate the resolution of cross-border disputes, as it helps justice being faster, more accessible and efficient. The distance between courts and litigants may be removed by online hearings and proceedings. Digitalisation also makes cross-border judicial cooperation easier, in particular through the dematerialisation of circulation of procedural documents between courts, legal professionals and litigants. This trend has recently been illustrated by the recast of the Taking of evidence and Service Regulations (announced here) within the European Union (“EU”) and is one of the axioms of the modernisation of the European judicial area in civil matters (see here).

A seminar on Digital technology in family matters organised by the Academy of European Law (ERA) on 27 January 2021 gives me the opportunity to focus on digital justice in cross-border dispute resolution. What are the main tendencies of digital justice for international families worldwide? Does digitalisation lead to different ways and results in the legal and judicial treatment of family matters, as in other fields of private law?

On the one hand, digitalisation can contribute to promoting family mobility and ease dispute resolution. For instance, the translation of judgements by artificial intelligence (AI) may simplify the recognition of families’ documents in the receiving States. On the other hand, family legal issues often involve vulnerable parties and, therefore, deserve a specific attention within the process of digitalisation of justice.

This ERA seminar gave interesting insights on digitalisation of family justice, that I propose to share with the readers of the blog. The seminar brought together practitioners (professors, judges, lawyers, mediators…) from different jurisdictions, in order to present their national, as well as international experiences on digitalisation of family justice (1), the use of e-Codex in European cross-border procedures (2) and finally on legal tech and AI in family matters (3). The report is limited to some aspects of their contributions, with a private international law perspective.

1. Digitalisation of Family Justice

Several speakers presented various national digital progress in family law.

First, Annette Kronborg (Southern University of Denmark) screened the “mandatory digital application” and the “recovery of maintenance obligation” in Denmark. Unlike other Members States, Denmark introduced early the digitalisation in the family justice system. In fact, the first policy paper on digitalisation was introduced in 2001. The establishment in 2014 of a “mandatory digital application” introduced a digital communication between citizens and public authorities through a software application. And since 2015, a new digital authority has been centralising maintenance debts. But, according to the speaker, it must be reformed to be more efficient.

Second, Bregje Dijksterhuis (Molengraaff Institute for Private Law) explained the online divorce proceeding in the Netherlands. Thanks to “Rechtwijzer”, spouses can divorce online. It is up to them to decide what type of measures for their divorce they want. The project is a success for the user; nevertheless, lawyers criticise the lack of information on spouse’s rights.

Third, Yuko Nishitani (Kyoto University) presented the project of online marriages and divorces in Japan. Indeed, since the pandemic, Japan’s authorities plans to digitalise marriage and divorce as well as replace traditional administrative (paper) documents. Moreover, Japanese authorities envisage a legislative reform following the Resolution of European Parliament of 8 July 2020 on the international and domestic parental abduction of EU children in Japan. Since there is no possibility under Japanese law to obtain shared or joint custody, there is a significant number of unsolved parental child abduction cases where one of the parents is an EU national and the other is a Japanese national.

2. E-CODEX and Cross-border Proceedings

Joanna Guttzeit (Judge at the District Court Berlin & Liaison Judge of the International Hague Network of Judges and the EJN in Civil and Commercial Matters) focused on cross-border family procedures and online hearings.

In the EU, the general statutory duty to hear in-person the participants to the proceeding (especially children) for family courts can lead to the refusal of recognition for judgements in the field of parental responsibility in case of online hearings. This results from Article 23 of the Brussels II bis Regulation. Traditionally, families travelled to the courts to be heard. But with the advent of new technologies, family courts could proceed to online hearings if a family member is unable to travel. However, some EU Member States might refuse to recognise the judgment in such circumstances.

The pandemic speeds up online-hearing in many European countries, such as Spain, Poland and Germany. However, online hearing should be exceptional and never become the “normal rule”, in particular within proceedings implying children. The procedures have to guarantee the welfare of children. Some States, like Germany, are really strict on this point. This is the reason why the EU Members States should harmonise their procedures by following European guidelines.

Then, Cristina Gonzàlez Beilfuss (University of Barcelona) discussed digitalisation of cross-border judicial procedures.

Undeniably, the pandemic shows that digital development in Europe could be a real opportunity to improve cross-border judicial cooperation. This is why the European Commission promotes national reforms in the field. The use of new technologies is, according to the Commission, the more efficient way to encourage exchanges between competent authorities in the area of mutual legal assistance. A vast majority of participants during the seminar, thought this communication should be predominantly digital in the future, while a minority thought it should be exclusively digital.

Actually, the main issue is the assessment of the legal effect or admissibility of the electronically determined document and the applicable law. It should be governed by the law of the requesting State. Pr. Gonzàlez Beilfuss proposed to harmonise the diffusion methods of electronic documents between the courts of the EU Member States to have a more predicable cross-border proceeding for international families. Regarding the legal effect, it cannot be denied on the sole ground that it is an electronic means of obtaining a judgment.

To conclude this session, Xavier Thoreau (Council of the European Union) presented e-CODEX and the new EU initiatives for the digitalisation of justice systems (here and here).

E-CODEX is a project established by the European Commission, in order to facilitate secure exchanges of data between legal professionals and litigants in different EU Member States. It consists of a package of software components that enable the connectivity between national systems. In cross-border proceeding, e-CODEX allows to establish a bridge between national systems. For the Commission, e-CODEX is the reference for secure digital communication in cross-border legal proceedings.

More than half of the participants rarely or never received in the context of their legal practice requests in electronic format by e-CODEX. According to Xavier Thoreau, this is problematic and shows that EU ambition to use the e-CODEX system to support national digitalisation of cross-border as well as domestic justice may take a long time. This is also supported by the fact that the EU has only a “subsidiary jurisdiction” in domestic family procedure.

3. Legal Tech and Artificial Intelligence in Family Matters

Markus Hartung and Ulrike Meising (lawyers) presented with Alan Larking (Family Law Patners, Brighton) the potential of AI and legal tech in the lawyer’s work.

AI and legal tech are great tools to help lawyers. From now on, they have an unlimited access to the law. In particular, they have an easier access to the law of other Member States, which is useful in the presence of foreign components in legal disputes. Increasingly, online applications with algorithms rank the dispute resolution models. For example, some law firm websites provide clients with a form to fill in online and an algorithm proposes a legal solution. Digital cross-border dispute resolution is possible since online applications are capable to adapt to each family model. However, a lawyer should always control the solution introduced by the algorithm.

Finally, Bérénice Lemoine (Council of the European Union) concluded with some thoughts on legal tech in family matters. Yet, the development of digitalisation of family justice in Europe is still far from uniform. For instance, only 24% of EU Member States integrate the issuance of “multilingual standard forms” of the Regulation on Public Documents, whereas in 54% of Member States, the possibility does not exist. Indeed, European citizens are not required to provide an official translation of family documents. They can ask the authorities of the EU country that issued their document to provide a “multilingual standard form” to facilitate its recognition in the receiving State. In the same vein, in 15% of Members States, official court documents cannot be served electronically on citizens and businesses. And for a third of them, evidence submitted in digital format is not deemed admissible. According to Bérénice Lemoine, it is not only necessary to encourage Member States to use already available legal tech and quickly develop them, but also to start the digital Justice transformation in those States which are less advanced, with the aim of having a more efficient resolution cross-border family procedure. For that, the EU offers a financial support (see Tool 1 of COM/2020/710 final).