Agrégateur de flux

Saisie immobilière

Procédures civiles d'exécution

Détention provisoire

Détention provisoire

Lundbeck / Commission
Concurrence
L’avocate générale Kokott propose à la Cour de justice de valider l’amende de près de 94 millions d’euros infligée au groupe pharmaceutique Lundbeck dans le cadre de l’entente visant à retarder la commercialisation de génériques de son médicament antidépresseur citalopram

On 25 May 2020, the CJEU has resumed its activity. This means hearings will be held again. None is scheduled for June on PIL matters, though.

The decision of the third Chamber (Prechal, Rossi, Malenovský, Biltgen, Wahl) in C-41/19, FX, is expected for 4 June.

The case arises from a request for a preliminary ruling made by the Amtsgericht Köln. It is about a child resident in Poland, who had obtained a decision from the Polish courts establishing the maintenance obligations of her father, resident in Germany. After getting a declaration of the enforceability of the Polish maintenance decision in Germany, the maintenance creditor seeks to have that decision enforced there. The debtor opposes enforcement on the basis that his payment obligations have been largely fulfilled; to this aim, he has lodged an application opposing before the German courts. The key issue raised by the request for a preliminary ruling is whether the German courts have jurisdiction to rule on that application on the basis of Regulation (EC) No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations. AG Bobek’s Opinion was published on 27 February 2020. He suggests the CJEU answer in the following terms:

Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, and, in particular, Article 41(1) thereof, should be interpreted as meaning that the courts of the Member State where the enforcement of a maintenance decision given in another Member State is sought have jurisdiction to adjudicate on an application opposing enforcement, in so far as it is intrinsically connected with enforcement proceedings, it does not seek the modification or review of the maintenance decision, and it is based on grounds that could not have been raised before the court that issued the maintenance decision. Those conditions appear to be fulfilled by the application of opposition to enforcement based on the discharge of the debt at issue in the present case, which is nonetheless ultimately for the referring court to verify.

A separate post will appear on this blog concerning the Court’s judgment.

Additionally, two Opinions will be delivered on 18 June 2020, one by AG Szpunar (C-433/19, Ellmes Property Services) and the other by AG Campos Sánchez-Bordona (C-540/19, WV).

The former addresses a request from the Austrian Oberster Gerichtshof on the first subparagraph of Article 24(1) of the Brussels I bis Regulation. The OG asks whether the provision is to be interpreted as meaning that “actions brought by a co-owner seeking to prohibit another co-owner from carrying out changes to his property subject to co-ownership, in particular to its designated use, arbitrarily and without the consent of the other co-owners, concern the assertion of a right in rem”. Should the question be answered in the negative, the CJUE should determine Article 7(1)(a) whether concern contractual obligations to be performed at the location of the property.

In C-540/19, the German Bundesgerichthof requests the CJEU to decide whether a public body which has provided a maintenance creditor with social assistance benefits in accordance with provisions of public law can invoke the place of jurisdiction at the place of habitual residence of the maintenance creditor under Article 3(b) of the Maintenance Regulation, in the case where it asserts the maintenance creditor’s maintenance claim under civil law, transferred to it on the basis of the granting of social assistance by way of statutory subrogation, against the maintenance debtor by way of recourse. A good occasion to review C-433/01.

Finally, I would also like to mention AG Hogan’s Opinion on C-454/19, Staatsanwaltschaft Heilbronn, delivered the 4 June 2020. At first sight the questions referred to the Court had little to do with PIL:

(a) Is primary and/or secondary European law, in particular Directive 2004/38/EC of the European Parliament and of the Council, in the sense of a full right of EU citizens to move and reside freely within the territory of the Member States, to be interpreted as meaning that it also covers national criminal provisions?
(b) If the question is answered in the affirmative: does the interpretation of primary and/or secondary European law preclude the application of a national criminal provision which penalises the retention of a child from his guardian abroad where the provision does not differentiate between Member States of the European Union and third countries?

This notwithstanding, Regulation 2201/2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels II bis) and the case law of the Court relating thereto are very much present in the Opinion.

Jefferies International Ltd & Anor v Cantor Fitzgerald & Co & Ors [2020] EWHC 1381 (QB) engages everything including the kitchen sink (but excluding Articles 33-34 Brussels Ia, one assumes because no competing foreign suits were pending when the English courts were seized) in its application for a stay.

The First to Third Claimants [together Jefferies] and the First to Third Defendants [together Cantor] carry on business in the financial services industry internationally, including investment banking and capital markets business and in particular in the international power and renewables sector. The First Defendant is a general partnership organised under the laws of New York. The Second Defendant is an unlimited company registered in England and regulated by the Financial Conduct Authority. The Third Defendant is a limited liability company incorporated in Hong Kong. The action arises out of what has become known as a team move. Jefferies’ case is that on 20 November 2017 twenty-six of its employees each resigned in materially identical terms, almost all of the resignations took place at 11.00 am London time notwithstanding that this was outside the normal working hours of those who worked in New York and Hong Kong, each of the employees in each jurisdiction instructed the same solicitors and each now works for Cantor. Jefferies asserts that Cantor has directed each of the twenty-six employees to refuse to honour repayment obligations in respect of certain “Replacement Awards” and “Bonuses” which were triggered by their resignations and subsequent employment by Cantor.

The following issues were agreed for determination:

i) Are the claims of Jefferies US against Cantor US subject to an arbitration agreement between Jefferies US and Cantor US, and if so should those claims be stayed pursuant to the Arbitration Act 1996 section 9?

ii) Should Jefferies’ claims against Cantor US and Cantor HK be stayed because England is not the proper place for determination of those claims?

iii) Should Jefferies’ claims against Cantor US and Cantor HK be stayed because Jefferies breached its duty of fair presentation on its without notice application for permission to serve out?

iv) Do Jefferies’ claims against Cantor US and Cantor HK, insofar as they relate to repayment agreements governed by New York law, have no reasonable prospects of success, because those repayment agreements are unenforceable as a matter of New York law?

v) Should service of the claim form and particulars of claim on Cantor US and Cantor HK and the Order of Master Thornett granting permission to serve Cantor US and Cantor HK out of the jurisdiction be set aside on any of the above grounds?

vi) Should the proceedings (or any part of them not otherwise stayed on the above grounds) be stayed on case management grounds pending final award in the FINRA arbitration?

vii) Should Jefferies’ claims against the Employee Defendants be stayed as a result of exclusive jurisdiction clauses in relevant repayment agreements favouring the courts of the State of New York?

viii) Should Jefferies’ claims against the Employee Defendants be stayed on case management grounds pending final award in the FINRA arbitration?

Master Cook dismissed all applications for a stay in a surprisingly (given the size of the list) succinct judgment and readers are best referred to the text itself for perusal. Other than Articles 33-34 (see above), only abuse of process I think could have been added to this extensive list of attempted grounds for a stay.

Geert.

 

Application for stay on the basis of i.a. forum non, case management, preference to #arbitration.
All dismissed. Claims to proceed, with English anchor defendant. https://t.co/nsvXupnH4z

— Geert Van Calster (@GAVClaw) June 2, 2020

Dans un arrêt du 5 mai 2020, M.N. et autres contre la Belgique (req. n° 3599/18), la grande chambre de la Cour européenne des droits de l’homme a refusé l’application de la Convention aux demandes de visas formulées dans les ambassades et consulats des États parties.

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The Diesel scandal has produced a wave of litigation word-wide. We are still waiting for the CJEU’s decision on whether claims can be brought in Austria by Austrian purchasers (Case C-343/19). The Advocate General’s opinion in this case has been the subject of an earlier post on this blog.

One of the important issues in the case pending before the CJEU is whether claimants can be expected to sue Volkswagen (VW) at its seat.  VW has its seat in Wolfsburg; thus, the competent court for such claims would be the Regional Court (Landgericht) of Braunschweig (Brunswick). The Braunschweig Regional Court has, however, now introduced a new hurdle for claimants who want to sue VW at its seat.

The Court at VW’s Seat Has Spoken

On 30 April 2020, the Regional Court of Braunschweig gave judgment (docket no 11 O 3092/19) on a case concerning a German debt collection company that had brought a “collective action” based on a number of claims against VW assigned to it by Swiss purchasers who bought cars fitted with the illicit software. The debt collection company was licensed under the German Act on Out-of-Court Legal Services (Rechtsdienstleistungsgesetz – RDG).

The Regional Court dismissed the action on the basis that the company could not dispose of the authorisation necessary under the RDG to pursue the claim, despite being licensed in Germany. It specifically found that neither the company nor its employees had any knowledge of Swiss law. Such expertise was however indispensable for the present case because the Regional Court of Braunschweig assumed that the claims assigned to the company would be governed by Swiss law.

An Overly Simplistic Conflict-of-Laws Analysis

The Regional Court derived the applicability of Swiss law from Article 4(1) of the Rome II Regulation. The court concluded that the place where the damage occurred, which is decisive under this rule, was Switzerland because the purchasers had paid for the cars from Swiss bank accounts.

The Regional Court seems to refer in this respect to the CJEU judgment in Kolassa, which – in the context of international jurisdiction – had considered the place where a bank account is managed as relevant for the localisation of financial loss. However, this judgment concerned the specific situation of prospectus liability, not the sale of cars. It cannot be considered as establishing a general rule, as the CJEU has clarified in its later judgment in Universal Music.

The localisation of loss in the ‘Dieselgate’ cases is much more difficult and intricate, as the Advocate General has pointed out in its conclusions in Case C-343/19. The fact that the cars have been paid from Swiss bank accounts alone will not suffice to establish the applicability of Swiss law. Other circumstances will have to be considered, such as the place of domicile of the purchasers, or the place where they use their cars (see the comment on the AG’s conclusions here).

An Undue Restriction of Access to Justice 

More problematic still is that the Regional Court Braunschweig denied the debt collection company standing to sue VW in Germany on the grounds that it lacks sufficient knowledge of Swiss law. This argument relies on a very restrictive interpretation of German law, which requires debt collection companies to have only general legal expertise; not specific expertise in foreign law. Moreover, the ruling ignores the fact that debt collection companies may instruct experts on Swiss law to advise on certain points of the legal case. Indeed, the court will probably have to do the same were it to try the case, because it also lacks the necessary knowledge of Swiss law (see sec. 293 of the German Code of Civil Procedure).

The judgment raises an unacceptable barrier for the enforcement of foreign claims against VW in Germany. Victims whose claims are based on foreign law cannot use German debt collection companies to advance their claims, as the latter have been found not have the required expertise in foreign law. But they also cannot go via foreign debt collection companies, as these do not have the necessary German license and can only provide “temporarily and occasionally” legal services in this country (sec. 15 German Act on Out-of-Court Legal Services). To instruct a German lawyer will be too burdensome as the purchaser would have to shoulder the litigation risk of losing the case.

It is Now Up to the CJEU

The Regional Court of Braunschweig has set up an additional obstacle for foreign claims in the Diesel scandal. This makes it much more difficult to sue VW at its seat. It is hard not to form the impression that the Regional Court was looking for an efficient way to rid itself of an unattractive case. The case illustrates the difficulties foreign claimants face when bringing an action at VW’s seat. Hopefully, the CJEU will take note of this when it decides whether car purchasers may bring actions against VW abroad.

Prof. Fabrizio Marrella (“Cà Foscari” University of Venice) has recently published the second edition of his textbook on international business law: “Manuale di diritto del commercio internazionale” (CEDAM, 2020), with a foreword of Prof. Andrea Giardina. A presentation has been kindly provided by the author (the complete TOC is available on the publisher’s website):

The Second Edition of this reference textbook (the first and foremost in the Italian language) combines the best aspects of a conceptual, systemic approach and a practical approach. It provides a rigorous and well grounded intellectual framework for understanding the most significant contractual and regulatory issues in international business law. The new edition has been revised and updated to take into account Incoterms 2020 as well as new issues of sales, transport and insurance law, payments and bank guarantees. All aspects of private international law are developed in view of their application in an arbitration or State court context.

Title: F. Marrella, “Manuale di diritto del commercio internazionale”, Padua, CEDAM, 2020.

ISBN: 9788813373672. Pages: 936. Available at CEDAM.

Thank you Helene Peroz for flagging the French Supreme Court on 13 May last referring to the CJEU for clarification of the Bolagsupplysningen case-law. The case concerns Gtflix Tv which I understand is a Czech adult entertainment corporation, who is suing Mr X, himself a producer of porn and domiciled at Hungary, arguing Mr X has defamed them in public comments.

Gtflix claim both retraction and correction of the comments, and symbolic damages. X argues the French courts do not have jurisdiction and the Court of Appeal at Lyons agreed. It held that Gtflix cannot suffice with a simple show of accessibility of the comments in France: for it to establish jurisdiction, Gtflix was required to show real damage to its reputation in France.

The Supreme Court first of all held that Bolagsupplysningen is good authority for acts of unfair competition between competitors – a finding which was not as such made in Manitou v JCB and on which the court does not refer to the CJEU. The applicable law issues which I discussed earlier in the week, were not subject of the Cour de Cassation’s assessment.

The court then does refer to the CJEU to ask whether Bolagsupplysningen means that a claimant who requests both rectification /retraction and damages, has to necessarily turn to courts with full jurisdiction or whether they can continue to turn for the damages part, to all courts with locus damni jurisdiction.

The specific question referred, is

“Les dispositions de l’article 7, point 2, du règlement (UE) n° 1215/2012 doivent-elles être interprétées en ce sens que la personne qui, estimant qu’une atteinte a été portée à ses droits par la diffusion de propos dénigrants sur internet, agit tout à la fois aux fins de rectification des données et de suppression des contenus, ainsi qu’en réparation des préjudices moral et économique en résultant, peut réclamer, devant les juridictions de chaque État membre sur le territoire duquel un contenu mis en ligne est ou a été accessible, l’indemnisation du dommage causé sur le territoire de cet État membre, conformément à l’arrêt eDate Advertising (points 51 et 52) ou si, en application de l’arrêt Svensk Handel (point 48), elle doit porter cette demande indemnitaire devant la juridiction compétente pour ordonner la rectification des données et la suppression des commentaires dénigrants ?” ;

Geert.

(Handbook of) European private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2

 

Unlike the High Court in BVC v EWF [https://t.co/2TjXwU3Hpj], the French SC does refer to the CJEU for further specification of C-194/16 Bolagsupplysningen [https://t.co/W5cCaB3QGf]
Re jurisdiction in the event of libel via the internet. https://t.co/5BTfNPzhzN

— Geert Van Calster (@GAVClaw) May 20, 2020

X v Y [2020] EWHC 1116 (Fam) is an uncomplicated case for conflict of laws aficionados. It includes a bit of Vorfrage, a bit of qualification, and a bit of temporal application of Brussels IIa.

Applicant Mr X seeks against the respondent Miss Y to rectify, as he sees it, a decree of divorce granted in relation to his marriage to Miss Y as long ago as 1997. They were married, first of all at a ceremony in Madrid on 25 May 1993, without the knowledge of any member of the wider family. Relationships between the wider families then mellowed to a degree, and there was apparently a second ceremony of marriage conducted in a Registry Office in London on 31 May 1994.

Relevant divorce and financial orders followed  in 1996 and 1997. The divorce petition had been based upon the assertion that the marriage to be dissolved was the second marriage, namely the one conducted in England in May 1994. No reference was made to the earlier marriage conducted in Madrid in 1993. Respondent’s case is that she considers that she is still married to Mr X, and that the Spanish marriage governs their status, and that they cannot be divorced unless and until there are divorce proceedings in Spain. She has, however, indicated a willingness to agree to a contrary outcome, provided a very substantial financial settlement is now made in her favour.

The 1996 petition only referred to the 1994 marriage, and it was that marriage that was referred to in the decree nisi and the decree absolute. It is important to Mr X that the declaration of his divorced status is sound, one assumes because he has remarried. He therefore seeks to rectify the decree absolute, and before it the decree nisi, so that they reflect that the marriage being dissolved was the Spanish marriage in 1993.

The Brussels II Regulation only entered into force in 2005 and jurisdiction for the decrees was governed by section 5 of the Domicile and Matrimonial Proceedings Act 1973: “The court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (and only if) either of the parties to the marriage (a) is domiciled in England and Wales on the date when the proceedings are begun or (b) was habitually resident in England and Wales throughout the period of one year ending with that date.” Mr X was domiciled in England and Wales at the time, there was therefore valid jurisdiction.

Relevant authority for the correction or variation, is Thynne v Thynne [1955] 3 All ER 129 which McFarlane J applies to rectify the decree nisi and the decree absolute, so that they record the marriage that was being dissolved as being the Spanish marriage of 1993.

Geert.

 

Cet arrêt rappelle, à propos d’une contravention au code de la route, que si l’entreprise prévenue n’est pas une personne morale, son dirigeant ne peut pas être poursuivi.

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The Future of the Law of Contract brings together an impressive collection of essays on contract law. Taking a comparative approach, the aim of the book is to address how the law of contract will develop over the next 25 years, as well as considering the ways in which changes to the way that contracts are made will affect the law.

Topics include good faith; objectivity; exclusion clauses; economic duress; variation of contract; contract and privacy law in a digital environment; technological change; choice of court agreements; and Islamic finance contracts.

The chapters are written by leading academics from England, Australia, Canada, the United States, Singapore and Malaysia. As such, this collection will be of global interest and importance to professionals, academics and students of contract law.

 

Table of Contents

1. An Overview

Michael Furmston

2. The Implied Obligation of Good Faith

Howard Hunter

3. Good Faith and the Supreme Court of Canada

Stephen Waddams

4. The Quagmire of Utmost Good Faith in Insurance Law: A Comparative Study of Malaysian, Australian, and English Laws in Consumer Insurance Contracts

Cheah You Sum

5. Objectivity

J. W. Carter and Michael Furmston

6. Automated Transactions and the Law of Contract: When Codes are Not Congruent

Roger Brownsword

7. The Resilience of Contract Law in Light of Technological Change

Eliza Mik

8. A Collision of Contract and Privacy Law in a Digital Environment—An Accident Waiting to Happen! A Comparative Study

Cirami Mastura Drahaman

9. Setting Out a Comprehensive Legal Framework to Govern Exclusion Clauses in Malaysia: Lessons from the United Kingdom and Australia

Loganathan Krishnan

10. Economic Duress: Present State and Future Development: England, Australia and Malaysia

Sri Bala Murugan

11. The Validity of Choice of Court Agreements in International Commercial Contracts Under the Hague Choice of Court Convention and the Brussels Ia Regulation

Mukarrum Ahmed

12. De-Identification of Islamic Finance Contracts by the Common Law Courts

Adnan Trakic

 

Professor Michael Furmston is an internationally–acknowledged authority on contract and commercial law. The author of the leading textbook Cheshire Fifoot & Furmston on Contract (17th edition 2017) and Editor of the Construction Law Reports, volumes 1-150, his published work extends to over 20 books and many dozens of articles, chapters and other contributions.

An eminent academic, he has taught at Oxford, where he was a Fellow of Lincoln College; at Bristol, where he was Dean of the Faculty of Law and Pro Vice Chancellor; and also at other institutions of international standing. He was appointed Emeritus Professor at Bristol in 1998 and Dean and Professor at Singapore Management University’s School of Law.

Professor Furmston was called to the English Bar in 1960 (Gray’s Inn) and has been a Bencher of Gray’s Inn since 1989. He appeared in the House of Lords in Ruxley Electronics and Construction Ltd v Forsyth on the measure of damages for defective construction and has acted as consultant to many clients, owners, contractors and consultants on commercial and construction law.

The background in Wright v Ver [2020] EWCA Civ 672 is the mysterious history of Bitcoin and its creator, ‘Satoashi Nakamoto’. “Satoshi Nakamoto” is the pseudonym used by the person, or persons, who developed Bitcoin. On 31 October 2008 an academic paper was published under the name of Satoshi Nakamoto titled “Bitcoin: A peer to peer electronic cash system”. The academic paper described the manner in which the electronic cash system operated. Dr Craig Wright, claimant and appellant, is a national of Australia who now lives in Surrey. He has lived in the UK since December 2015 after emigrating from Australia. He also became a citizen of Antigua and Barbuda in 2017. He is a computer scientist with a particular interest in cryptocurrencies, including Bitcoin. Dr Wright says that he is Satoshi Nakamoto.

Roger Ver, defendant and respondent, is a bitcoin investor and commentator on bitcoin and other cryptocurrencies. Mr Ver was born in California, and raised in Silicon Valley. He moved to Japan in 2005. In 2014 he renounced his US citizenship and became a citizen of St Kitts & Nevis, although he continues to live in Japan. Mr Ver does not accept that Dr Wright is Satoshi Nakamoto.

The judgment does not address whether Dr Wright is Satoshi Nakamoto.

Dr Wright claims that he was libelled by Mr Ver in a YouTube Video posted on the Bitcoin.com YouTube channel on about 15 April 2019, a tweet containing the YouTube Video posted on Mr Ver’s Twitter Account on 3 May 2019, and a reply on Mr Ver’s Twitter Account posted on 3 May 2019 some 8 minutes after the tweet from Mr Ver. The defamatory meaning of these publications is said to be that Dr Wright “had fraudulently claimed to be Satoshi Nakamoto, that is to say the person, or one of the group of people who developed Bitcoin”.

Never more (data produced were broken down over periods) than 7 of the total YouTube views were in the UK. 7% of Mr Ver’s Twitter followers are in the UK. By judgment dated 31 July 2019 Mr Justice Nicklin found that England and Wales was not clearly the most appropriate place in which to bring the libel claim in this action and made a declaration that the Court had no jurisdiction to hear the claim.

The Court of Appeal, Dingemans LJ leading, agreed. Brussels Ia is not engaged. The jurisdictional test is section 9 of the Defamation Act 2013 – I previously discussed it in Sadik v Sadik: ‘A court does not have jurisdiction to hear and determine an action to which this section applies unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement.’

At 56 Dingemans notes that after Brexit, the Act’s reach will increase.

The first instance judge had argued inter alia that the evidence showed that Dr Wright was putting down roots in the UK and that would increase the reputational interests that Dr Wright had in this jurisdiction but that could not displace the global reputation that he enjoyed.

Dr Wright’s counsel submitted that the judge had set Dr Wright an impossible task by requiring him to adduce evidence of actual harm to his reputation in each candidate jurisdiction, and concluding that in the absence of such evidence Dr Wright could not satisfy the jurisdictional test. Further it was submitted that the judge had wrongly failed to carry out a comparative assessment as to whether each candidate jurisdiction was appropriate for the claim, and therefore failed to carry out the task mandated by s9.

Relevant factors for jurisdiction are discussed at 61 ff. Evidence will have to be shown of all the places in which the relevant statement has been published, as well as the number of times it has there been published. Targeting the publication at an English audience clearly will be an issue. Further elements include the availability of fair judicial processes in the other jurisdictions in which publication occurred. The available remedies from the Courts of the other jurisdictions may be relevant, as may be the costs of pursuing proceedings in each possible jurisdiction. Other factors that might impact on access to justice, for example language barriers, can be relevant. The location of likely witnesses is another feature that may be relevant. This list of factors is not exhaustive.

In a mercifully succinct manner, Dingemans J reviews all the elements and decides the test has not been met here.

A good primer for the 2013 Act.

Geert.

 

On 10–11 October 2019, the Albert-Ludwig-University of Freiburg (Germany) hosted the final conference of the German branch in the framework of the research project “Informed Choices in Cross-Border Enforcement” (IC2BE). Funded by the Justice Program (2014-2020) of the European Commission, the project aimed to assess the working in practice of the “second generation” of EU Regulations on procedural law for cross-border cases, i.e. the European Enforcement Order, Order for Payment, Small Claims and the Account Preservation Order Regulations (see our earlier post here). As a result, an open-access database of CJEU and national case law has been created which is available here. The presentations given at this conference have now been published in the second issue of the 2020 volume of the Zeitschrift für Vergleichende Rechtswissenschaft (German Journal of Comparative Law), Germany’s oldest continuously published review of comparative and PIL legal issues. The abstracts of the articles read as follows:

Informierte Entscheidungen in der grenzüberschreitenden Forderungsdurchsetzung – Vorstellung und Ergebnisse eines internationalen Forschungsprojekts [Informed Choices in Cross-Border Enforcement – Presentation and Results of an International Research Project]

Jan von Hein, University of Freiburg (Germany) – ZVglRWiss 119 (2020) 123–142

An efficient cross-border enforcement is more important than ever in light of the increasing economic integration of the EU. In order to achieve this aim, creditors may freely choose between enforcing a claim under Brussels Ibis or by means of the 2nd generation Regulations. Thus, weighing the pros and cons of choosing between one of the various options has become more difficult. This article presents the main findings of the EU-funded study „Informed Choices in Cross-Border Enforcement – IC2BE“, which is based on an extensive evaluation of case law and interviews with practitioners from eight Member States.

 

Der Anwendungsbereich der EU-Verordnungen zur grenzüberschreitenden Forderungsdurchsetzung [The scope of the EU Regulations on Cross-Border Enforcement of Claims]

Michael Stürner, University of Konstanz (Germany) – ZVglRWiss 119 (2020) 143–166

As part of the judicial cooperation in civil matters, the EU has issued a number of regulations on cross-border enforcement of debts. So far, this harmonization brings about piecemeal solutions with a certain lack of coherence. While those Regulations all apply in civil and commercial matters, they differ in their scope of application depending on the individual goal pursued by the act. The paper analyses those differences with a view to the material and geographical scope of application and discusses possible steps towards a reform, such as the abolition of the Enforcement Order Regulation or the consolidation of the various legal acts in a horizontal instrument (“Regulation Brussels 0”).

 

Die Sicherung von Forderungen im europäischen Zivilprozessrecht [Interim measures to secure monetary claims in European Civil Procedure]

Christian Heinze, University of Hanover (Germany) – ZVglRWiss 119 (2020) 167–196

Interim measures to secure monetary claims are addressed in several instruments of European civil procedure law, ranging from jurisdiction and recognition of foreign judgments, over special rules for cross-border proceedings and into sectoral procedural law for intellectual property disputes. The following article provides an overview of the relevant provisions and develops proposals on how a more coherent regulation at European level could be achieved.

 

Der Beitrag der Gerichtsorganisation zur Effizienz der grenzüberschreitenden Forderungsdurchsetzung [The Contribution of National Judicial Organization to the Efficiency of the International Recovery of Money Claims]

Christoph Althammer, University of Regensburg (Germany) – ZVglRWiss 119 (2020) 197–219

Measures taken by the national judicial organization have so far played only a minor role in improving cross-border enforcement of claims and diverge considerably in the European Member States. This is where the competence of the European legislature conferred by Art. 81 TFEU ends, so that harmonization efforts that are autonomous for the Union are difficult to implement. So far, the topic has been of practical importance in connection with the concentration of jurisdiction in central courts and the transfer of judicial matters to other judicial officers. However, the ECJ has recently made it clear in a different technical context that it wants to shape the national judicial organization more “European” in the future.

 

Der Beitrag der modernen Informationstechnologie zur Effizienz der grenzüberschreitenden Forderungsdurchsetzung [The Contribution of Information Technology to the Efficiency of the International Recovery of Money Claims]

Florian Eichel, University of Berne (Switzerland) – ZVglRWiss 119 (2020) 220–236

The article outlines how digitization and digitalization may contribute to make cross-border judicial recovery of money claims more efficient. It also considers the proposals for reform of the European Service and the European Evidence Regulations.

 

Anerkennungs- und Vollstreckungsversagungsgründe im Europäischen Zivilprozessrecht [Grounds for Refusing Recognition and Enforcement of Foreign Judgments in European Civil Procedural Law]

Haimo Schack, University of Kiel (Germany) – ZVglRWiss 119 (2020) 237–253

Even after the abolition of exequatur proceedings in art. 39 Brussels Ibis Regulation the grounds for non-recognition in art. 45 have been kept intact, albeit only after a separate motion by the debtor. Many other EU regulations, however, have significantly restrained the control by the enforcement State. The concurring and different provisions ask too much of the practitioners and invite abuse. The constitutionally mandated protection of the debtor in the enforcement State must not be sacrificed on the altar of an absolutely free movement of judicial decisions. The Regulation (EC) No. 805/2004 creating a European Enforcement Order for uncontested claims is outdated and should be scrapped.

 

Schnittstellen und Wechselwirkungen zwischen dem europäischen Zivilprozessrecht und dem nationalen Vollstreckungsrecht [Interfaces and Interactions between European and National Enforcement Law]

Caroline Meller-Hannich, University of Halle (Germany) – ZVglRWiss 119 (2020) 254–275

There are various ways of transferring a title into the enforcement system of foreign European Union member states, depending on the applicable EU-Regulation. This leads to an unclear legal situation that is to be solved by either the consolidation of the regulations of the second generation or by drafting one unitary system allowing for the freedom of enforcement title movement within the scope of all regulations. The German national executive and implementing law also needs to be revisited. The abolition of the exequatur in the Brussels Ia Regulation has resulted in unanswered questions concerning the enforcement procedure that must be clarified by jurisdiction. This applies in particular to the interpretation and adaptation of the title, the possible enforcement measures and the differentiation between the requirements of enforceability and the conditions for the enforcement procedure. This article will highlight these unanswered questions and suggest potential solutions.