Agrégateur de flux

Biset Sena Güneş, senior research fellow at the Max Planck Institute for Comparative and International Private Law, has accepted the invitation of the editors of the blog to present her recent book, titled ‘Succession Upon Death: A Comparison of European and Turkish Private International Law’, written in English, and published by Mohr Siebeck.

This book offers a comparative analysis of the European Succession Regulation, the Turkish PILA of 2007, and the Turkish–German Succession Treaty of 1929, with a particular focus on conflict-of-laws and procedural issues which may arise in Turkish–EU Successions. The aim of the analysis is to discuss to what extent decisional harmony can be achieved in Turkish–EU successions. While the European Succession Regulation has been extensively covered in the literature, non-EU or “third-state” perspectives on the regulation have not received the same degree of attention. In adopting such a perspective on the EU Succession Regulation, the book allows for in-depth analysis of possible cases between the EU Member States and Turkey, which from the perspective of succession is an important “third” state due to the significant number of Turkish nationals residing in the EU.

The first chapter of the book elaborates on the practical relevance of Turkish–EU successions and provides the historical background as well as a general overview of the European Succession Regulation, the Turkish PILA of 2007, and the Turkish–German Succession Treaty of 1929. The second chapter addresses conflicts of laws in Turkish–EU successions both in terms of intestate and testamentary succession. Chapter 2 also undertakes a comparative analysis, in particular on the following issues: the principle of unity or scission; the connecting factors (nationality, habitual residence, and thesitus); the option to enter a professio iuris; matters within the scope of the law applicable to succession; the application of renvoi; and possible examples of overriding mandatory rules and ordre public in Turkish–EU successions. Finally, the third chapter analyses procedural issues in Turkish–EU succession conflicts. First, Chapter 3 compares the respective rules on jurisdiction and discusses possible conflicts of jurisdiction in the Turkish–EU context as well as the tools for avoiding such conflicts (especially choice of court agreements, lis pendens, and limitation of proceedings). It then deals with two questions as regards the European Certificate of Succession, namely whether one can be issued for Turkish nationals in Germany within the scope of the Turkish–German Succession Treaty, and whether a European Certificate of Succession issued in a Member State can be recognised in Turkey.

Key Findings

The comparative analysis demonstrates that the provisions of the German–Turkish Succession Treaty (Art. 20(14) and (15)), now-outdated reflections of the time at which the treaty was drafted, in practice create certain problems for persons who fall under them. But the differences between the rules of this treaty and the Turkish PILA are not as significant a factor for those affected as the differences between it and the EU Succession Regulation. Like the German–Turkish treaty regime (Art. 20(14) and (15)), the Turkish PILA adopts nationality as a connecting factor and has retained its traditional understanding regarding the law applicable to and jurisdiction over succession matters involving real property, at least when situated in its territory (Art. 20 and 43). The treaty regime thus still guarantees a level of coordination for succession cases which may arise between Turkey and Germany even though its rules are inconsistent with the Succession Regulation’s unitary approach towards succession and its main connecting factor of habitual residence (especially Art. 4 and Art. 21(1)).

In Turkish–EU successions not covered by the German–Turkish treaty, on the other hand, the decisional harmony which once could have been ensured through the adoption of the connecting factors of nationality and the situs now seems distorted, because the Succession Regulation (especially Art. 21(1)) revolves around the connecting factor of habitual residence. Some level of harmony in such cases can now be provided only through renvoi (under Art. 34(1) of the Regulation) and a professio iuris made by the deceased (under Art. 22 of the Regulation), although such a choice will not be valid in Turkey.

Harmony does not seem to exist in such cases at the procedural level, either. Potential jurisdictional conflicts between Turkey and Member State courts may arise especially where the deceased was habitually resident or domiciled in Turkey at the time of death and left assets both in Turkey and in a Member State. This is because Turkish courts in such a case will be competent to hear the case pursuant to Art. 43 of the Turkish PILA because the last domicile of the deceased was in Turkey. At the same time, the courts of the Member State in which the assets of the estate are located will also be competent to rule on the succession as a whole (even on assets located in Turkey) in accordance with Art. 10(1) of the Succession Regulation. Notwithstanding this, neither jurisdiction seems to have tools for coordinating jurisdiction (e.g., a mechanism for choice of court agreements or to stay proceedings based on a lis pendens) to eliminate such conflicts in the Turkish–EU context. The only provision which may be helpful in this regard is Art. 12 of the Succession Regulation, on the limitation of proceedings. But Art. 12 only applies on motion of the parties and even then on a discretionary basis.

The long-awaited Regulation (EU) 2023/2844 of the European Parliament and of the Council of 13 December 2023 on the digitalisation of judicial cooperation and access to justice in cross-border civil, commercial and criminal matters, and amending certain acts in the field of judicial cooperation (Digitalisation Regulation or e-justice Regulation) has been published today in the Official Journal of the European Union. For more information on the EU internal procedure, click here.

The Digitalisation Regulation lays down the rules for the use of electronic communication between competent authorities in judicial cooperation procedures in civil, commercial and criminal matters, and for the use of electronic communication between natural or legal persons and competent authorities in judicial procedures in civil and commercial matters (Art. 1). This is to be accomplished, in particular, through the decentralised IT system (Art. 3) and the European electronic access point (Art. 4).

It also foresees the use of videoconferencing or other distance communication technology in civil and commercial matters, without prejudice to specific provisions regulating this topic under the Regulation No 2020/1783 (Evidence Regulation), Regulation No 861/2007 and Regulation No 655/2014 (Art. 5). In addition, it contemplates provisions on electronic signatures and electronic seals (Art. 7) and legal effects of electronic documents (Art. 8).

The Digitalisation Regulation does not apply to the Evidence Regulation and the Regulation No 2020/1784 (Service Regulation) as those regulations “already provide for specific rules on digitalisation of judicial cooperation” (recital 17). However, it does introduce some changes to the Service Regulation, some of which are the following (see Article 24):

• Article 12, paragraph 7 is amended by the following:

1. in Article 12, paragraph 7 is replaced by the following:

‘7.   For the purposes of paragraphs 1 and 2, the diplomatic agents or consular officers, in cases where service is effected in accordance with Article 17, and the authority or person, in cases where service is effected in accordance with Article 18, 19, 19a or 20, shall inform the addressee that the addressee may refuse to accept the document and that either form L in Annex I or a written declaration of refusal must be sent to those agents or officers or to that authority or person respectively.’

• A new Article 19a on Electronic service through the European electronic access point: 

 

Article 19a

Electronic service through the European electronic access point

 

1.   The service of judicial documents may be effected directly on a person who has a known address for service in another Member State through the European electronic access point established under Article 4(1) of Regulation (EU) 2023/2844 of the European Parliament and of the Council […], provided that the addressee has given prior express consent to the use of that electronic means for serving documents in the course of the legal proceedings concerned.

 

2.   The addressee shall confirm the receipt of the documents with an acknowledgment of receipt, including the date of the receipt. The date of service of documents shall be the date specified in the acknowledgment of receipt. The same rule shall apply in the case of service of refused documents which is remedied in accordance with Article 12(5).

 

(4) in Article 37, the following paragraph is added:

 

‘3.   Article 19a shall apply from the first day of the month following the period of two years from the date of entry into force of the implementing acts referred to in Article 10(3)(a) of Regulation (EU) 2023/2844.’

 

For more information about the digitalisation of the Service and Evidence Regulations, including the decentralised IT system for those Regulations, see our previous posts here and here. 

Interestingly, Recital 21 allows for the use of software in maintenance obligations – other than national IT systems – , which has not been developed by the European Commission: “For matters relating to maintenance obligations, Member States could also use software developed by the Hague Conference on Private International Law (iSupport).”

Article 10 of the Digitalisation Regulation sets out when the Implementing Acts must be  adopted by the Commission. For ease of reference, the numbers of the relevant instruments in civil and commercial matters are indicated. 

“(a) 17 January 2026 for the legal acts listed in points 3 and 4 of Annex I Legal acts in the area of judicial cooperation in civil and commercial matters] [and the legal acts listed in points 1, 10 and 11 of Annex II [Legal acts in the area of judicial cooperation in criminal matters];

• Regulation (EC) No 1896/2006
• Regulation (EC) No 861/2007

(b) 17 January 2027 for the legal acts listed in points 1, 8, 9 and 10 of Annex I and the legal acts listed in points 5 and 9 of Annex II;

• Council Directive 2003/8/EC
• Regulation (EU) No 606/2013
• Regulation (EU) No 655/2014
• Regulation (EU) 2015/848

(c) 17 January 2028 for the legal acts listed in points 6, 11 and 12 of Annex I and the legal acts listed in points 2, 3, 4 and 8 of Annex II; and

• Regulation (EU) No 650/2012
• Council Regulation (EU) 2016/1103
• Council Regulation (EU) 2016/1104

(d) 17 January 2029 for the legal acts listed in points 2, 5, 7 and 13 of Annex I and the legal acts listed in points 6 and 7 of Annex II.” 

• Regulation (EC) No 805/2004
• Council Regulation (EC) No 4/2009
• Regulation (EU) No 1215/2012
• Council Regulation (EU) 2019/1111

As per Article 26, this Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. It shall apply from 1 May 2025.

Of great importance is that Article 26(3) of this Regulation specifies the applicability of Articles 3 and 4. In particular, it provides that Articles 3 and 4 “shall apply from the first day of the month following the period of two years from the date of entry into force of the corresponding implementing acts, referred to in Article 10(3), establishing the decentralised IT system for each of the legal acts listed in Annexes I and II.” As a result, this will vary depending on the legal instrument (see above).

Very exciting times ahead!

In a post published on 8 June 2023, I introduced Zubaydah v Foreign, Development and Commonwealth Office, a case heard by the UK Supreme Court on 14 and 15 June.

Abu Zubaydah, the claimant (respondent in the appeal), has brought a tort claim against the UK government (appellants in the appeal), alleging that MI5 and MI6 officers made requests, from their London offices, to their CIA counterparts to interrogate him in circumstances where they knew or ought to have known of his rendition, unlawful imprisonment and torture by the CIA. The central issue was the law applicable to the claim, specifically focusing on the disputed application of the escape clause from section 12 of the Private International Law (Miscellaneous Provisions) Act 1995. The facts of the case, the claim, the central issue and the parties’ arguments are presented in my post of 8 June.

On 20 December 2023, the court delivered its judgment, dismissing the appeal in a four to one decision (Lord Lloyd-Jones, Lord Kitchin, Lord Burrows and Lord Stephens; Lord Sales dissenting). The court held that English law governed the claim, and not the laws of Afghanistan, Lithuania, Morrocco, Poland and Thailand and the law in force in Guantanamo Bay (“Six Countries”).

Interestingly, the court found that both the High Court and the Court of Appeal had erred in their approaches to section 12. The Court of Appeal, in particular, erred by focusing solely on the defendants’ conduct said to have occurred in England. It should have also taken into account the CIA’s conduct ([80], [81]). Hence, the Supreme Court conducted its own choice-of-law analysis.

The connections between the torts and the Six Countries were held to be weak for five reasons. First, Zubaydah was involuntarily present in the Six Countries ([75], [93]). Second, the defendants were entirely indifferent to Zubaydah’s location ([76], [94]). Third, Zubaydah was rendered to and detained in de facto black legal holes ([77], [95]). Fourth, he was held in six such facilities in six countries ([96]). Fifth, his gaolers and torturers were not agents of the Six Countries, but of a third country, ie the US ([97]).

Conversely, the connections between the torts and England were deemed strong for three reasons. First, the defendant is the UK government ([99]). Second, the relevant events occurred partly in England and for the perceived benefit of the UK ([78], [100]). Third, the defendants acted “in their official capacity in the purported exercise of powers conferred under the law of England and Wales… The defendants are all emanations of the UK Government and were at all material times subject to the criminal and public law of England and Wales.” ([101]; similarly [78])

Considering all these factors, the court held that it was substantially more appropriate for the applicable law to be English law.

In my post of 8 June, I noted that this case holds importance for private international law for two reasons.

Firstly, it highlights the role of private international law in holding the executive accountable and vindicating fundamental rights, particularly in cases involving alleged wrongs arising out of the external exercise of British executive authority. In my book on the topic, Torts in UK Foreign Relations, I argue that there are no compelling theoretical justifications for the application of foreign law in general to tort claims arising out of the external exercise of British executive authority. I further argue that the English courts should apply English law to tort claims arising out of the external exercise of British executive authority and reserve the application of foreign law only for certain issues, such as the lawfulness of the relevant conduct. The main reason for advocating the application of English tort law is that, together with English criminal and public law, it is fine-tuned for assuring the accountability of British public authorities. Foreign tort law is unlikely to be able to substitute for English tort law.

The Supreme Court essentially adopts this argument by placing decisive weight on the connections between the torts and England. It reinforces this point in relation to the misfeasance claim by noting, at ([62]), that “there is scope for suggesting, for example, that on the presumed facts of this case, it is a constitutional imperative that the applicable law in relation to the tort of misfeasance in public office in relation to the acts and omissions of the UK Services should be the law of England and Wales”.

Secondly, the parties and the court relied on reasonable/legitimate expectations as important factors in the choice-of-law process. Zubaydah’s involuntary presence in the Six Countries meant that he did not have a reasonable expectation that his situation or activities might be governed by the local laws ([75], [93]). Furthermore, the defendants’ indifference to Zubaydah’s location meant that the defendants never expected or intended their conduct to be judged by reference to the local laws ([94]). It is by partial reliance on this fundamental principle underlying the application of foreign law that the court held that foreign laws did not apply.

The Supreme Court judgment is important for two more reasons. It clarifies that an appellate court can interfere with an evaluative judgment under sections 11 and 12 of the 1995 Act if there is shown to be a clear error of law or the judge has reached a conclusion not reasonably open to them ([57]). Furthermore, it sheds light on the handling of accessory liability claims in choice of law. Such claims involve a secondary wrongdoer defendant and a primary wrongdoer third party. The court held that the “factors which connect a tort or delict” with a country, which the courts should consider when applying the escape clause from section 12, cover not only the allegedly wrongful conduct of the secondary wrongdoer (UK Services) but also that of the primary wrongdoer (the CIA) ([80], [81]). Although this judgment was made in the context of the 1995 Act, these aspects of its reasoning can easily be extrapolated to other choice of law contexts.

Among all Arab and Muslim-majority countries, Morocco stands out as the only State to have ratified seven (7) HCCH Conventions. This number of ratifications, comparable to that of other prominent countries such as United States or Japan, speaks volumes about Morocco’s commitment to being an integral part of the global network of jurisdictions benefiting from the work of the HCCH on the harmonisation of private international and fostering mutual legal cooperation. The decisions of the Moroccan Supreme Court also reflect these efforts as the Court has shown its willingness to oversight the proper application of the HCCH Conventions (on the application of the 1980 HCCH Convention, see here). The Supreme Court Ruling No. 71 of 7 February 2023 briefly commented on here is another notable example related to the application of the 1996 HCCH Child Protection Convention. The case is also particularly interesting because it concerns the establishment of a kafala under Moroccan law for the purpose of relocating the child in another Contracting State (France in casu).

 

The case  

The petitioner, a single woman living and working in France (seemingly Moroccan but it is not it is not clear whether she has dual citizenship status), submitted a petition on 31 January 2020 to the Family Division of the First Instance Court (hereafter ‘FIC’) of Taroudant, in which she expressed her intention to undertake guardianship of an abandoned child (A) – born on 13 May 2019 – by means of kafala. The FIC approved the petition by a decree issued on 12 March 2020. Subsequently, the Public Prosecutor filed an appeal against the FIC’s decree with the Court of Appeal of Agadir. On 20 January 2021, the Court of Appeal decided to overturn the FIC’s decree with remand on the ground that the FIC had failed to comply with the rules laid down in article 33 of the 1996 HCCH Child Protection Convention, in particular the obligatory consultation in case of cross-border placement of the child.

The petitioner appealed to the Supreme Court arguing that:

1) The petitioner satisfied all the stipulated requirements under Moroccan law for the kafala of an abandoned child (notably the Law No. 15.01 of 13 June 2002 on the kafala of abandoned children, in particular article 9);

2) The Public Prosecutor failed to invoke the 1996 HCCH Convention during the proceedings before the FIC;

3) While article 33 might be applicable to countries such as Belgium and Germany, where kafala is not recognized, the situation differs in France, making the application of article 33 irrelevant in this context;

4) the Moroccan legislature, through the Law of 2002, has established the procedure for monitoring the well-being of children placed under kafala abroad, along with the ensuring the fulfilment of the caregiver’s o obligations. Additionally, the 2002 Law on kafala was adopted within an international context dedicated to the protection of children, as reflected in the ratification by Morocco in 1993 of UN Child Convention of 1989.

 

The Ruling

The Supreme Court dismissed the appeal by ruling as follows:

“Pursuant to article 33 of the HCCH 1996 Child Protection Convention – ratified by Morocco on 22 January 2003 […]:

(1)  If an authority having jurisdiction under Articles 5 to 10 contemplates the placement of the child in a foster family or institutional care, or the provision of care by kafala or an analogous institution, and if such placement or such provision of care is to take place in another Contracting State, it shall first consult with the Central Authority or other competent authority of the latter State. To that effect it shall transmit a report on the child together with the reasons for the proposed placement or provision of care.

(2)  The decision on the placement or provision of care may be made in the requesting State only if the Central Authority or other competent authority of the requested State has consented to the placement or provision of care, taking into account the child’s best interests.

 

Therefore, since, according to the Constitution, the provisions of the [HCCH] Convention take precedence over the provisions of domestic law, including Law No. 15. 01 […], the Court of Appeal provided a sound justification for its decision when it relied on [Article 33] [which] mandates prior consultation with the central authority or other competent authority in France where the appellant resides and works, and considered that the failure of the FIC’s decree to comply with the requirements of [Article 33] constituted a violation of the law leading to its decision to overturn the kafala decree”.

 

Comment

The case is particularly important because, to the author’s knowledge, it is the first Supreme Court’s decision to apply the 1996 HCCH Child Protection Convention since its ratification by Morocco in 2002 (Royal Decree [Dhahir] of 22 January 2003 published in the Official Gazette of 15 May 2003). The Convention is often given as an example of successful accommodation of religious law in cross-border situations, since it not only specifically mentions kafala as a measure of protection of children, but also it “makes it possible for children from countries within the Islamic tradition to be placed in family care in Europe, for example, under controlled circumstances. (H van Loon, “The Accommodation of Religious Laws in Cross-Border Situations: The Contribution of the Hague Conference on Private International Law”, Cuadernos de Derecho Transnacional (2010) Vol. 2(1) p. 264).

In this regard, article 33 of the Convention plays a central role as it establishes a specific procedure for an obligatory prior consultation between the authorities of the State of origin and the authorities of the receiving State, the failure of which is sanctioned by refusal to recognise the kafala decree (Explanatory Report, para. 143, p. 593).  The Practical Handbook on the Operation of the HCCH 1996 Child Protection Convention qualifies the rules under article 33 as “strict rules which must be complied with before th[e] placement [of the child in a foster family or institutional care, or the provision of care by kafala or an analogous institution] can be put into effect” (para. 13.33, p. 151. Emphasis added).

In the case commented here, the Supreme Court meticulously adhered to the aforementioned guidelines. Firstly, the Court stood by its case law underscoring the primacy of international conventions, and in particular the HCCH Conventions, over domestic law (see e.g., Ruling No. 283 of 2 June 2015 (Case No. 443/2/1/2014), Ruling No. 303 of 28 July 2020 (Case No. 629/2/2/2018), both dealing with the HCCH 1980 Child Abduction Convention. On these cases, see here). Secondly, the Supreme Court upheld the Court of Appeal’s decision, asserting that the failure to use the procedure under article 33 of the 1996 HCCH Child Protection Convention warranted the overturning of the FIC’s kafala decree.

This aspect of the ruling holds particular significance as lower courts have not always consistently demonstrated sufficient awareness of Morocco’s obligations under the1996 HCCH Conventions. Indeed, some lower court decisions show that, sometimes, kafala decrees involving cross-border relocation of the child have been issued without mentioning or referring to the 1996 HCCH Convention (see e.g. Meknes Court of Appeal, Ruling No. 87 of 14 January 2013 granting kafala of a child to a Franco-Moroccan couple and allowing the couple to take the child out of Morocco. See also, the decision of Antwerp Court of Appeal of 16 May 2016 recognizing and declaring enforceable under Belgian domestic law a Moroccan kafala decree despite the fact that the procedure mandated by article 33 was not used in the State of origin). Moreover, Moroccan lower court decisions further indicate that the courts’ main concern has often centred around whether the child’s Islamic education and belief would be affected by the relocation of the child abroad (e.g. Meknes Court of Appeal, Ruling No. 87 of 14 January 2013 (ibid); idem, Ruling No. 19 of 7 January 2013 granting kafala of a Moroccan child to an American couple of Pakistani origins. On this issue in general, see Katherine E. Hoffman, “Morocco” in N. Yassari et al. (eds.), Filiation and Protection of Parentless Children (T.M.C. Asser, 2019) pp. 245ff).

Therefore, in deciding as it did, the Supreme Court emphasises the importance of respecting the procedure prescribed by article 33 before issuing a kafala decree involving cross-border placement. Compliance with this procedure ensures the recognition and enforcement of kafala decrees in all other Contracting States, thereby safeguarding the best interests of the child (The Practical Handbook, para. 13.33, p. 151).

The Spanish Association of Professors of International Law and International Relations  (AEPDIRI) is organising its VII Seminar on current issues in Private International Law on the topic “A Private International Law centred on the rights of individuals”. The seminar will take place at the Faculty of Law of the Universidad Pontificia Comillas (ICADE) in Madrid on 14 March 2024. The working language of the Seminar will be Spanish, but papers may also be presented in English or French.

The Seminar is intended to discuss topics related to the challenges posed by the rights of individuals from a broad perspective and from a Private International Law dimension, related to the following thematic lines: Current issues raised by the regulation of the capacity of persons in Private International Law; Current issues raised by the regulation of parentage in international situations; The rights of vulnerable persons from a Private International Law dimension; Challenges posed by digitisation to the rights of the individual in private cross-border situations; Due diligence obligations in value chains and Private International Law; Civil liability of multinationals for human rights violations; New challenges in Immigration Law; Migrants’ rights from a Private International Law perspective.

Researchers are welcome to submit presentations, which should cover one of the above-mentioned issues. Proposals should fit into the objectives of the Seminar and will be selected –for their oral presentation and/or publication- according to their relevance, quality and originality in respect to their contribution to the development of Private International Law studies.

Proposals should be submitted following the requirements of the Call (for more information, click here), no later than 15 January 2024, by email to: seminarioactualidad.dipr2024@aepdiri.org.

The submission of paper abstracts and participation in the Seminar is free of charge.

 

Sweet & Maxwell is offering a 15% discount on all orders of the book until January 31st 2024. To receive your discount on purchases of the hardback and ProView eBook versions of The European Private International Law of Obligations please visit Sweet & Maxwell’s estore and quote the discount code EPILOO23 at checkout OR call +44 (0)345 600 9355. Offer valid from 22nd December to 31st January 2024. 

 

The European Private International Law of Obligations is a practitioners’ work that is evidently written at a very high standard. This is perhaps unsurprising because the authors, Mr Michael Wilderspin is a legal adviser to the European Commission, and Sir Richard Plender was an English Judge in his lifetime.

In the 6th edition of this authoritative and very illuminating book, Michael Wilderspin now assumes responsibility for its writing. The first edition of the book (in 1991) was solely written by Richard Plender, but he brought in Michael Wilderspin to work on the second edition with him. They worked together on successive editions of the book for a long time. Unfortunately, Richard Plender passed away in 2020, after the 5th edition of this book which was published in 2019.

 

The book is regularly cited in English courts, and it is likely that this tradition will be maintained in the 6th edition of the book. In this new edition over 70 recently decided cases (from the UK, Court of Justice of the European Union (“CJEU”) and other Member States of the EU) have been incorporated into the analysis. The new edition also incorporates many recent secondary sources in its analysis.

 

The book contains four main parts. Part One contains what is described as “COMMON PRINCIPLES” on Rome I and Rome II Regulations. This runs from pages 3 to 91, focusing on preliminary matters such as the history and interpretative approaches of Rome I and Rome II, and a comparison of both Regulations.  Part Two contains what is described as “CONTRACT” based on Rome I. This runs from pages 95 to 488, focusing on a detailed analysis of the Articles of Rome I. Part Three contains what is described as “THE LAW APPLICABLE TO NON-CONTRACTUAL OBLIGATIONS.” This runs from pages 491 to 860, focusing on a detailed analysis of the Articles of Rome II. Part Four contains what is described as “ROME I AND II REGULATIONS IN THE UK.” This runs from pages 863 to 868, focusing on the changes brought by Brexit to Rome I and Rome II as provided in The Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc.) (EU Exit) Regulations 2019.

 

Each chapter usually commences with a very useful legislative history. There is very impressive knowledge of Rome I and Rome II from a European comparative perspective and comparisons with other international conventions. The interaction between domestic private law in Member States and England, and law applicable to contract and torts is an underlying theme that is explored well in the book. In this regard, there is impressive knowledge of the domestic private laws and conflict of laws rules of many Member States in the EU and England, making this book genuinely European. One point worth mentioning is that the authors also note the final decision of Member State Courts that refer a matter to the CJEU on the applicable law of obligations. For example, in analysing the  decision of the CJEU in Haeger  (2015) which interprets Article 4(4) of the Rome Convention on the law applicable to contract of carriage of goods, Wilderspin also notes the final decision of the French Cour de Cassation that referred the question (see paragraph 8-016, footnote 37). Similarly, in analysing the decision of the CJEU in Nikiforidis (2016) which interprets Article 9 of Rome I on overriding mandatory rules, Wilderspin also notes the final decision of the German Court that referred the question (see paragraph 12-041).

 

Wilderspin notes in the Preface that whilst Richard Plender did not challenge the accuracy of his views, he encouraged him to use a more polite language in writing. Indeed, Wilderspin is a bold writer. He fiercely engages with both primary and secondary sources. On some occasions, he is very blunt. For example, Recital 12 to the Rome I Regulation provides in interpreting Article 3 of Rome I that:

“An agreement between the parties to confer on one or more courts or tribunals of a Member State exclusive jurisdiction to determine disputes under the contract should be one of the factors to be taken into account in determining whether a choice of law has been clearly demonstrated.”

 

Many French scholars like Professor Maxi Scherer (2011) are of the view that there is a requirement of corroboration with other factors in utilising an exclusive jurisdiction agreement to imply a choice of law under Article 3 of Rome I. However, Wilderspin disagrees and regards this view as a “scarcely credible claim” and “very weak.” This tops my chart as one of the strong languages used by a conflict of laws’ academic to disagree with another academic.

 

Wilderspin now appears to have changed his view on the significance of the word “clearly demonstrated” under Article 3 of Rome I (see para 6-028 and 29-104). Wilderspin and Plender previously expressed the view that there is no significant difference between “demonstrated with reasonable certainty” under Article 3 of the Rome Convention and “clearly demonstrated” under Article 3 of Rome I, on the ground that the change was made to merely align the English and German version with the French version. This is a view that has been endorsed by English judges in Lawlor (at para 3) and Aquavita International SA v Ashapura Minecham Ltd [2014] EWHC 2806 (Comm) [20], citing inter alia, older editions of Plender and Wilderpin. Wilderspin now expresses the view that the English version of Article 3 of Rome I is “apparently stricter” than Article 3 of the Rome Convention, and notes that “although the English version was in line with the majority of the other language versions, in particular the German, those versions have become aligned with the minority, French version” (see para 6-028 and 29-104). This change of view by Wilderspin can be attributed to the influence of the outstanding work of Mr Michael McParland (2015) on Rome I Regulation, who at paras 9.37-9.72 notes the detailed legislative history that brought about the significant change in wording under Article 3 of Rome I. Indeed, he cites McParland. However, at para 11-027, footnote 48, Wilderspin notes that the difference between the wording of Article 3 of the Rome Convention and Article 3 of Rome I is “probably more apparent than real.” I think this statement might be an error that was carried over from the last edition. I also take this view because Wilderspin refers to the old paragraph 6-024 instead of the new 6-026 of the new edition of the book.

In the light of this modified view by Wilderspin, it is open to question if English judges and other courts of Member State courts will apply a stricter approach in interpreting Article 3 of Rome I. For example, Professor Pietro Franzina also notes in a book chapter (at para 3.1.1) that the Italian  Supreme Court (Cass., 10 April 2019, No. 10045, Pluris) held that while the wording of Article 3 of the Rome Convention and Rome I were not identical, “they must be understood to have, in substance, the same meaning” on tacit choice of law.

 

The book is a highly specialist work that is meticulously written. Nevertheless, I found what I consider to be only three minor typographical errors the author may correct for the next edition. These are odd references to “CHECK” at paragraph 9-061, “that1” at paragraph 9-064, and “pr” at paragraph 9-089.

 

My final verdict is that the 6th edition of this book will make an excellent Christmas and New Year’s gift in the library of any academic and/or practitioner with an interest in conflict of laws. I highly recommend it without any reservations.

 

 

 

The recently published Volume 433 of the Collected Courses of the Hague Academy of International Law includes the course by Kartsten Thorn (Bucerius Law School) on The Protection of Small and Medium-sized Enterprises in Private International Law.

Speaking about the protection of structurally weaker parties in private international law, this normally refers to non-business parties as consumers or employees. However, in many cases also entrepreneurs are protected. Well-known examples are the commercial agent under European law, the subcontractor in France and the franchisee in many US jurisdictions.

This paper systematizes these cases, looks for underlying policies and develops a proposal for future private international law rules with regard to small and medium sized enterprises (SMEs). It understands private international law in the broad French sense encompassing jurisdiction rules and even international commercial arbitration.

Methodologically, the interplay between substantive law, conflict of laws rules and jurisdiction rules for the protection of weaker parties in the context of different legal systems is shown and evaluated with special consideration of their internationally mandatory rules. Legal gaps to European Private International law are identified in comparison to foreign jurisdictions. Following an economic analysis, a new approach to the protection of SMEs is presented which also encompasses international commercial arbitration as an alternative method of dispute resolution.

The latest issue of RabelsZ has just been released. It contains the following contributions:

ESSAYS

Mareike Schmidt, Kulturalität der Rechtsanwendung und internationale Rechtsvereinheitlichung – Überlegungen am Beispiel des UN-Kaufrechts, 643–671, DOI: https://doi.org/10.1628/rabelsz-2023-0077

Cultural Dimensions in the Application of Law and International Unification of Law – The Example of the CISG. – The uniform application of law, in general, and of international uniform law, in particular, is confronted with the challenges of cultural diversity. Drawing on a meaning-based understanding of culture and using the example of the United Nations Convention on Contracts for the International Sale of Goods, the article examines the extent to which cultural conceptions of normality shape the individual steps in the application of law and illustrates this influence with concrete examples. Overall, it becomes clear that the cultural nature of the application of law goes well beyond what is usually discussed. The analysis advances an understanding of the application of international uniform law as the processing of cultural difference, in the context of which – and within an entire network of actors – foreign conceptions of normality are often interpreted with the aim of integrating them into one’s own system of meaning. The resulting depiction of interconnections within this network, which concludes the text, can serve as a starting point for a more detailed analysis of the processes involved.

Maarten Herbosch, Contracting with Artificial Intelligence – A Comparative Analysis of the Intent to Contract, 672–706, DOI: https://doi.org/10.1628/rabelsz-2023-0076

Computer systems based on artificial intelligence (AI) are an increasing presence in everyday legal practice. They may even be used to form contracts on behalf of their users. In such instances, it is not necessarily required that the system has been set up to take precise, pre-specified actions from an engineering perspective. As a result, the system may enter into contracts unforeseen by its user. This comes into friction with the requirements that contract formation depends on the contracting parties’ intent to be bound or that a contract constitutes a meeting of the minds. It is obscure how the intent to form a specific contract or a meeting of the minds can be present if one of the parties may not even know that a particular contract is being entered into. To tackle this challenge, this article thoroughly examines the intent requirement in various legal systems. It becomes clear that the intent requirement is often loosely applied and that its role is formulated too generally, unnecessarily obstructing a straightforward application to contract formation via AI systems. Supplying nuance to the role of intent in contract formation helps clarify that the intent requirement is not in fact an obstacle to contract formation via AI systems.

SYMPOSIUM: Fundamental Rights and Private International Law

Ralf Michaels: Einleitung zum Symposium: Grundrechte und IPR im Lichte der Entscheidung des Bundesverfassungsgerichts zum Kinderehenbekämpfungsgesetz, 707–713, DOI: https://doi.org/10.1628/rabelsz-2023-0084 [Open Access: CC BY-SA 4.0]

Symposium Introduction: Fundamental Rights and Private International Law after the Federal Constitutional Court Decision on the Act to Combat Child Marriages. – This issue presents the contributions to a symposium which examined the German Federal Constitutional Court’s ruling on the Act to Combat Child Marriages from the perspectives of constitutional law and the conflict of laws. This introduction summarizes the Court’s ruling and situates it in the scheme of German jurisprudence; thereafter, the symposium and the presented papers are described.

Henning Radtke, Zu den Maßstäben der verfassungsrechtlichen Beurteilung von Regelungen des deutschen Internationalen Privatrechts, 714–727, DOI: https://doi.org/10.1628/rabelsz-2023-0083 [Open Access: CC BY-SA 4.0]

On the Standards of Constitutional Review of Provisions of German Private International Law. – The German Federal Constitutional Court regularly reviews the constitutionality of domestic provisions of private international law and their application by the competent courts. In doing so, it takes into account the special features of this type of legislation that result, for example, from the cross-border dimension of the situations it is supposed to address and from the necessary respect for the validity of foreign legal systems. With regard to the protection of marriage and the family, this applies in particular when determining the scope of protection and the structural principles underlying art. 6 para. 1 and other provisions under the German Basic Law. The level of scrutiny when examining constitutionality is primarily determined on the basis of the principle of proportionality.

 

Susanne Lilian Gössl, Grundrechte und IPR – Von beidseitigem Desinteresse zu höflicher Aufmerksamkeit – und zu angeregtem Austausch?, 728–747, DOI: https://doi.org/10.1628/rabelsz-2023-0075 [Open Access: CC BY-SA 4.0]

Fundamental Rights and Private International Law: From Mutual Disinterest to Respectful Attention – and on to Animated Exchange? – The relationship between German constitutional law and the field of conflict of laws has been discussed for decades, especially when decisions of the Constitutional Court (BVerfG) addressing private international law issues have been pending or published. The most recent occasion to reflect on this relationship is the decision of the BVerfG on the Act to Combat Child Marriages. Initially, German scholars had assumed that conflict of laws, as a value-neutral and merely technical body of law, was constitutionally irrelevant. Fundamental rights could – according to a first Constitutional Court decision – at most become relevant through the ordre public clause. Foreign law was subsequently upgraded by the widow’s pension decision, with the result that foreign rules can expand the scope of German fundamental rights. Ultimately, the BVerfG has affirmed that – like private law generally – private international law is bound to the German Constitution as part of the collective legal order and, furthermore, that it shapes the expression of constitutional guarantees in the German legal order. Nevertheless, many theoretically intriguing questions remain open, such as the character of foreign law in the jurisprudence of the Constitutional Court. These questions invite further inquiry and academic exchange.

 

Lars Viellechner, Die Anwendbarkeit der Grundrechte im Internationalen Privatrecht: Zur Methodik der Entscheidung des Bundesverfassungsgerichts über die Kinderehe, 748–765, DOI: https://doi.org/10.1628/rabelsz-2023-0078 [Open Access: CC BY-SA 4.0]

The Applicability of Fundamental Rights in Private International Law: On the Methodology of the Federal Constitutional Court’s Decision Regarding Child Marriage. – In its decision on the Act to Combat Child Marriages, the Federal Constitutional Court of Germany does not explicitly address the applicability of fundamental rights in private international law. It only considers some cross-border effects of the statute in the context of the proportionality test. According to its own earlier case law, however, it should have taken a position on this question. It could also have taken the opportunity to further develop a constitutional notion of conflict of laws, which equally shines through its decisions on the relationship between the Basic Law and both international law as well as European Union law. With resort to such a method, not only could it have clarified a question of principal significance regarding the relationship between fundamental rights and private international law, it might also have reached a different result in the present case.

 

Dagmar Coester-Waltjen, Die »Kinderehen«-Entscheidung des Bundesverfassungsgerichts: Welche Schlussfolgerungen ergeben sich für das internationale Eheschließungsrecht?, 766–785, DOI: https://doi.org/10.1628/rabelsz-2023-0069 [Open Access: CC BY-SA 4.0]

The Early Marriage Decision of the Federal Constitutional Court: What Does It Mean for International Marriage Law? – The decision of the Federal Constitutional Court on art. 13 para. 3 no. 1 of the Introductory Act to the Civil Code raises many questions of private international law. Although the court ultimately held the provision unconstitutional, a welcome outcome, the decision also weakens the protection of legal statuses acquired under foreign law and allows the specifications and classifications of German internal law to apply as the standard even for marriages validly entered into under foreign law. The court roughly indicates a few possible ways to remedy the disproportionality of the provision, but it would seem difficult to implement these remedies in a way that both systematically conforms with the principles of private international law and does not create serious practical issues. As an alternative, the legislator should instead consider declaring all underage marriages, including the »earliest of the early«, to be voidable, because although the court’s ruling accepts their classification as non-marriages, it does not necessarily require such a harsh categorization. The article concludes by examining the potential of a fundamental reform of art. 13 of the Introductory Act to the Civil Code.

 

BOOK REVIEWS

As always, this issue also contains several reviews of literature in the fields of private international law, international civil procedure, transnational law, and comparative law (pp. 786–853).

The latest issue of the RabelsZ (Rabels Zeitschrift für ausländisches und internationales Privatrecht) has been published. This issue features a symposium with several articles focussing on fundamental rights and private international law, one of them in English, the others in German. The following abstracts have been kindly provided to us by the editor of the journal.

Mareike Schmidt, Kulturalität der Rechtsanwendung und internationale Rechtsvereinheitlichung – Überlegungen am Beispiel des UN-Kaufrechts (Cultural Dimensions in the Application of Law and International Unification of Law – The Example of the CISG)

The uniform application of law, in general, and of international uniform law, in particular, is confronted with the challenges of cultural diversity. Drawing on a meaning-based understanding of culture and using the example of the United Nations Convention on Contracts for the International Sale of Goods, the article examines the extent to which cultural conceptions of normality shape the individual steps in the application of law and illustrates this influence with concrete examples. Overall, it becomes clear that the cultural nature of the application of law goes well beyond what is usually discussed. The analysis advances an understanding of the application of international uniform law as the processing of cultural difference, in the context of which – and within an entire network of actors – foreign conceptions of normality are often interpreted with the aim of integrating them into one’s own system of meaning. The resulting depiction of interconnections within this network, which concludes the text, can serve as a starting point for a more detailed analysis of the processes involved.

Maarten Herbosch, Contracting with Artificial Intelligence – A Comparative Analysis of the Intent to Contract

Computer systems based on artificial intelligence (AI) are an increasing presence in everyday legal practice. They may even be used to form contracts on behalf of their users. In such instances, it is not necessarily required that the system has been set up to take precise, pre-specified actions from an engineering perspective. As a result, the system may enter into contracts unforeseen by its user. This comes into friction with the requirements that contract formation depends on the contracting parties’ intent to be bound or that a contract constitutes a meeting of the minds. It is obscure how the intent to form a specific contract or a meeting of the minds can be present if one of the parties may not even know that a particular contract is being entered into. To tackle this challenge, this article thoroughly examines the intent requirement in various legal systems. It becomes clear that the intent requirement is often loosely applied and that its role is formulated too generally, unnecessarily obstructing a straightforward application to contract formation via AI systems. Supplying nuance to the role of intent in contract formation helps clarify that the intent requirement is not in fact an obstacle to contract formation via AI systems.

Ralf Michaels, Einleitung zum Symposium: Grundrechte und IPR im Lichte der Entscheidung des Bundesverfassungsgerichts zum Kinderehenbekämpfungsgesetz ( Symposium Introduction: Fundamental Rights and Private International Law after the Federal Constitutional Court Decision on the Act to Combat Child Marriages)

This issue presents the contributions to a symposium which examined the German Federal Constitutional Court’s ruling on the Act to Combat Child Marriages from the perspectives of constitutional law and the conflict of laws. This introduction summarizes the Court’s ruling and situates it in the scheme of German jurisprudence; thereafter, the symposium and the presented papers are described.

Henning Radtke, Zu den Maßstäben der verfassungsrechtlichen Beurteilung von Regelungen des deutschen Internationalen Privatrechts (On the Standards of Constitutional Review of Provisions of German Private International Law)

The German Federal Constitutional Court regularly reviews the constitutionality of domestic provisions of private international law and their application by the competent courts. In doing so, it takes into account the special features of this type of legislation that result, for example, from the cross-border dimension of the situations it is supposed to address and from the necessary respect for the validity of foreign legal systems. With regard to the protection of marriage and the family, this applies in particular when determining the scope of protection and the structural principles underlying art. 6 para. 1 and other provisions under the German Basic Law. The level of scrutiny when examining constitutionality is primarily determined on the basis of the principle of proportionality.

Susanne Lilian Gössl, Grundrechte und IPR – Von beidseitigem Desinteresse zu höflicher Aufmerksamkeit – und zu angeregtem Austausch? (Fundamental Rights and Private International Law: From Mutual Disinterest to Respectful Attention – and on to Animated Exchange?)

The relationship between German constitutional law and the field of conflict of laws has been discussed for decades, especially when decisions of the Constitutional Court (BVerfG) addressing private international law issues have been pending or published. The most recent occasion to reflect on this relationship is the decision of the BVerfG on the Act to Combat Child Marriages. Initially, German scholars had assumed that conflict of laws, as a value-neutral and merely technical body of law, was constitutionally irrelevant. Fundamental rights could – according to a first Constitutional Court decision – at most become relevant through the ordre public clause. Foreign law was subsequently upgraded by the widow’s pension decision, with the result that foreign rules can expand the scope of German fundamental rights. Ultimately, the BVerfG has affirmed that – like private law generally – private international law is bound to the German Constitution as part of the collective legal order and, furthermore, that it shapes the expression of constitutional guarantees in the German legal order. Nevertheless, many theoretically intriguing questions remain open, such as the character of foreign law in the jurisprudence of the Constitutional Court. These questions invite further inquiry and academic exchange.

Lars Viellechner, Die Anwendbarkeit der Grundrechte im Internationalen Privatrecht: Zur Methodik der Entscheidung des Bundesverfassungsgerichts über die Kinderehe (The Applicability of Fundamental Rights in Private International Law: On the Methodology of the Federal Constitutional Court’s Decision Regarding Child Marriage)

In its decision on the Act to Combat Child Marriages, the Federal Constitutional Court of Germany does not explicitly address the applicability of fundamental rights in private international law. It only considers some cross-border effects of the statute in the context of the proportionality test. According to its own earlier case law, however, it should have taken a position on this question. It could also have taken the opportunity to further develop a constitutional notion of conflict of laws, which equally shines through its decisions on the relationship between the Basic Law and both international law as well as European Union law. With resort to such a method, not only could it have clarified a question of principal significance regarding the relationship between fundamental rights and private international law, it might also have reached a different result in the present case.

Dagmar Coester-Waltjen, Die »Kinderehen«-Entscheidung des Bundesverfassungsgerichts: Welche Schlussfolgerungen ergeben sich für das internationale Eheschließungsrecht? (The Early Marriage Decision of the Federal Constitutional Court: What Does It Mean for International Marriage Law?)

The decision of the Federal Constitutional Court on art. 13 para. 3 no. 1 of the Introductory Act to the Civil Code raises many questions of private international law. Although the court ultimately held the provision unconstitutional, a welcome outcome, the decision also weakens the protection of legal statuses acquired under foreign law and allows the specifications and classifications of German internal law to apply as the standard even for marriages validly entered into under foreign law. The court roughly indicates a few possible ways to remedy the disproportionality of the provision, but it would seem difficult to implement these remedies in a way that both systematically conforms with the principles of private international law and does not create serious practical issues. As an alternative, the legislator should instead consider declaring all underage marriages, including the »earliest of the early«, to be voidable, because although the court’s ruling accepts their classification as non-marriages, it does not necessarily require such a harsh categorization. The article concludes by examining the potential of a fundamental reform of art. 13 of the Introductory Act to the Civil Code.

The table of contents in German is available here.

United Parcel Service / Commission
Droit institutionnel
Fin de l’accord de fusion UPS-TNT : l’irrégularité commise par la Commission n’est pas la cause déterminante du prétendu manque à gagner d’UPS et ne justifie donc pas de l’indemniser

Commission / Danemark (Durée maximale de stationnement)
Transport
Manquement d’État : la Cour rejette le recours de la Commission contre le Danemark concernant la durée maximale de stationnement sur les aires d’autoroute

G. K. e.a.
Espace de liberté, sécurité et justice COJP
Parquet européen : la Cour clarifie l’exercice du contrôle juridictionnel des mesures d’enquêtes transfrontières par les juges nationaux

GN (Motif de refus fondé sur l’intérêt supérieur de l’enfant)
Espace de liberté, sécurité et justice
Mandat d’arrêt européen : la remise d’une personne recherchée ne peut être refusée au seul motif qu’elle est la mère d’enfants en bas âge

Krajowa Rada Sądownictwa (Maintien en fonctions d’un juge)
Droit institutionnel
Système judiciaire polonais : une formation de jugement de la chambre de contrôle extraordinaire et des affaires publiques de la Cour suprême ne constitue pas un tribunal indépendant et impartial, établi préalablement par la loi

Royal Antwerp Football Club
Libre circulation des personnes

Football : les règles de l’UEFA et de l’URBSFA sur les « joueurs formés localement » pourraient être contraires au droit de l’Union

Chief Appeals Officer e.a.
Libre circulation des personnes
Libre circulation : la mère d’un travailleur migrant de l’Union peut, dès lors qu’elle est à la charge de ce travailleur, demander une prestation d’assistance sociale sans que cette demande remette en question son droit de séjour

European Superleague Company
Concurrence

Les règles de la FIFA et de l’UEFA sur l’autorisation préalable des compétitions de football interclubs, telle que la Superleague, violent le droit de l’Union

International Skating Union / Commission
Concurrence

Les règles de l'International Skating Union sur l’autorisation préalable des compétitions de patinage de vitesse sur glace violent le droit de l'Union

BMW Bank
Environnement et consommateurs
Un consommateur qui conclut un contrat de leasing automobile sans obligation d’achat ne dispose pas d’un droit de rétractation

On 7 December 2023, The Council presidency and European Parliament representatives reached a provisional agreement on a reform of the Statute of the Court of Justice (last version available here).

Among other things, the reform will permit the transfer of jurisdiction over preliminary rulings to the General Court in specific areas, while the Court of Justice will retain jurisdiction over questions of principle, like those that involve interpretation of the Treaties or the Charter of Fundamental Rights.

The amendment, which is meant to reduce the workload of the Court of Justice and, therefore, to help her work more efficient, represents an essential step in the history of the institution as we know it.

The possibility of the handover is formally established by Article 256 TFEU, according to which:

3. The General Court shall have jurisdiction to hear and determine questions referred for a preliminary ruling under Article 267, in specific areas laid down by the Statute.

Where the General Court considers that the case requires a decision of principle likely to affect the unity or consistency of Union law, it may refer the case to the Court of Justice for a ruling.

Decisions given by the General Court on questions referred for a preliminary ruling may exceptionally be subject to review by the Court of Justice, under the conditions and within the limits laid down by the Statute, where there is a serious risk of the unity or consistency of Union law being affected.

It should be noted that the provision is not a novelty in EU law; it corresponds to former Article 225 TEC. In fact, the transfer to the General Court of partial jurisdiction to give preliminary rulings had already been considered in the past: at the end of last century, first, against the background of the Treaty of Amsterdam and the foreseen enlargement of the Union; and later, around 2015, in view of the increasing number of requests for preliminary rulings. However, in 2017, in a report submitted pursuant to Article 3(2) of Regulation (EU, Euratom) 2015/2422 of the European Parliament and of the Council amending Protocol No 3 on the Statute of the Court of Justice of the European Union, the Court of Justice had denied the need of a transfer at the time. On the other hand, it  simultaneously stressed that such standpoint “should not at all be understood as a definitive position on the question of the distribution of jurisdiction to give preliminary rulings between the Court of Justice and the General Court”. And, indeed, it has not been a definitive position.

For the readers of this blog the essential question is, of course, what the impact of the competences adjustment will be on preliminary rulings conerning PIL instruments.

The simple answer would be that, in principle, none is to be expected. The specific areas in which the General Court will be competent over preliminary rulings are: the common system of value added tax; excise duties; the Customs Code; the tariff classification of goods under the Combined Nomenclature; compensation and assistance to passengers in case of delay or cancellation of transport services or denied boarding; the scheme for greenhouse gas emission allowance trading. In other words, as of today requests on the instruments for judicial cooperation in civil and commercial matters are not affected, i.e., they fall under the scope of exclusive competence of the Court of Justice.

But this, of course, can change any moment in the future. More importantly, already now it is legitimate to have doubts as to the operation of the assignments to, respectively, the Court of Justice and the General Court: one single request for a preliminary ruling may concern at the same time one of the above-mentioned areas and another one; besides, requests related to one of those matters may as well entail questions of principle or of a cross-cutting nature.

More concretely, with an example: should the request for a preliminary ruling in, let’s say, case C‑213/18, or in case C-20/21, had been referred to Luxembourg after the transfer has been accomplished, who would have taken care?

In the Council’s press release of 7 December 2023 (the same date as the agreement’s) not much is said to shed light on this and similar questions. It is explained, though, that, ‘On the procedural aspects, the reform provides for a “one-stop-shop” mechanism, under which national judges will continue to address requests for preliminary rulings to the Court of Justice, which will in turn forward to the General Court the questions under its jurisdiction’.

This possibly means that a screening will take place at the level of the Court of Justice, and that a substantiated decision will be made there on the allocation of requests not squarely corresponding to one of the categories listed above. No doubt, for the sake of transparency the criteria for such allocation will also be communicated to the public at some point, likely soon. It is also to be expected (and it is hoped) that resources of the Court will be invested in making sure that, from the very beginning, they are consistently applied.