Agrégateur de flux

WertInvest Hotelbetrieb
Environnement et consommateurs
L’obligation de réaliser une évaluation des incidences environnementales d’un projet d’aménagement urbain ne peut pas dépendre exclusivement de sa taille

AKM (Fourniture de bouquets satellitaires en Autriche)
Retransmission transfrontière de programmes par satellite : le principe de l’État d’émission s’applique également au fournisseur de bouquets satellitaires

I reported earlier on the jurisdictional issues in a case where PIFSS brings claims for sums totalling in the region of US$874 million, arising from the alleged corruption between 1994 and 2014 of its former Director General. In The Public Institution for Social Security v Al Wazzan & Ors [2023] EWHC 1065 (Comm), Henshaw J held early May that documents held in Switzerland must be disclosed, in application of disclosure rules under English civil procedure.

The disclosure concerns a large file of documents held by the Swiss Federal Prosecutor’s Office (SFPO)  arising from its investigations of Mr Al Rajaan and Ms Al Wazzan (Mr Al Rajaan’s widow) since 2012, and other documents held by Swiss-based entities or individuals, or located in Switzerland, or originating from and obtained under compulsion in Switzerland.

Disclosure was ordered, with a small caveat [161] which will see future specific measures (eg restriction of disclosure to counsel) be taken to ensure disclosure of the SFPO file documents to PIFSS does not create a risk of transmission to the State of Kuwait, which in turn might be viewed as sidestepping the State of Kuwait’s pending Mutual Legal Assistance (MLA) request to Switserland for the purpose of the continuing criminal proceedings in Kuwait.

Justice Henshaw’s lengthy considerations do justice to two restraints on disclosure, under English CPR for use in English proceedings. The principal approach is [43 ff; and [47] in particular with reference to Bank Mellat v HM Treasury [2019] EWCA Civ 449] that questions of disclosure and inspection are part of the law of procedure and are therefore matters of English law as the lex fori ; duties of confidentiality (which, if breached, may result in sanction) arising under foreign law do not provide an automatic basis to withhold disclosure and inspection. They are a matter for the judge’s discretion, and disclosure is only not ordered where the party shows that the foreign law is regularly enforced, so that the risk of prosecution is real.

[51] the judge holds that comity considerations are an independent element to consider, and in the process refers to its neat definition in Dicey’s 16th ed § 7-002:

“The United [States] Supreme Court famously said in Hilton v Guyot, a case on the recognition of foreign judgments: “‘Comity,’ in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.”

An interesting judgment raising several relevant issues (including one side-issue on the tardiness of the Hague Taking of Evidence rules).

Geert.

Following part successful jurisdiction challenge ( https://t.co/wncyM6RxZ1) now issues of disclosure under English CPR of Swiss-held documents

Lex fori rules for procedure, but with assessment of prosecution risk under lex rei sitae (SW), and of comityhttps://t.co/UR87IVj4AE

— Geert Van Calster (@GAVClaw) May 9, 2023

La chambre de l’instruction ne peut refuser de restituer un bien constituant l’instrument de l’infraction mais détenu par un tiers sans constater que le demandeur ne faisait valoir sur celui-ci aucun titre de détention régulier, ni rechercher s’il était de bonne foi.

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Une législation nationale qui impose aux Témoins de Jehovah d’obtenir le consentement des personnes dont ils collectent les données personnelles dans le cadre de la prédication porte-à-porte ne porte pas atteinte à la liberté religieuse.

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Carlos Santaló Goris, Lecturer at the European Institute of Public Administration in Luxembourg, offers an analysis of an upcoming legislative reform in Montenegro concerning the European Account Preservation Order

In 2010, Montenegro formally became a candidate country to join the European Union. To reach that objective, Montenegro has been adopting several reforms to incorporate within its national legal system the acquis communautaire. These legislative reforms have also addressed civil judicial cooperation on civil matters within the EU. The Montenegrin Code of Civil Procedure (Zakon o parni?nom postupku) now includes specific provisions on the 2007 Service Regulation, the 2001 Evidence Regulation, the European Payment Order (‘EPO’), and the European Small Claims Procedure (‘ESCP’). Furthermore, the Act on Enforcement and Securing of Claims (Zakon o izvršenju I obezbe?enju) also contains provisions on the EPO, the ESCP, and the European Enforcement Order (‘EEO’). While none of the referred EU instruments require formal transposition into national law, the fact that it is now embedded within national legislation can facilitate its application and understanding in the context of the national civil procedural system.

Currently, the Montenegrin legislator is about to approve another amendment of the Act on Enforcement and Securing of Claims, this time concerning the European Account Preservation Order Regulation (‘EAPO Regulation’). This instrument, which entered into force in 2017, allows the provisional attachment of debtors’ bank accounts in cross-border civil and commercial claims. It also allows creditors  with a title at the time of application to apply for an EAPO. According to the Montenegrin legislator, the purpose of this reform is to harmonize the national legislation with the EAPO, as well as creating ‘the necessary conditions for its smooth application’.

In terms of substance, the specific provisions on the EAPO focus primarily on identifying the different authorities involved in the EAPO procedure from the moment it is granted to its enforcement. In broad terms, the content of the provisions corresponds to the information that Member States were required to provide to the Commission by 18 July 2016, and that can be found in Article 50. One provision establishes which are the competent courts to issue the EAPO and to decide on the appeal against a rejected EAPO application. Regarding the appeal procedure, it establishes that creditors have to submit their appeal within the five following days of the date the decision dismissing the EAPO application is rendered. Such a deadline contradicts the text of the EAPO Regulation, which sets a 30-day deadline to submit the appeal, which cannot be shortened by national legislation. This is an aspect that has been uniformly established by the EU legislator, thus it does not depend on national law (Article 46(1)).

Regarding the debtors’ remedies to revoke, modify or terminate the enforcement of an EAPO contained Articles 33, 34 and 35, the reform contains a specific provision to determine which are the competent courts. Interestingly, it also establishes  a 5-day deadline to appeal the decision resulting from the request for a remedy. In this case, the EAPO Regulation does not establish any deadline, giving Member States discretion to establish such deadline. The short deadline chosen contrasts with the 15 days established in Luxembourg (Article 685-5(6) Nouveau Code de Procedure Civile), the one-month deadline chosen by the German legislator (Section 956 Zivilprozessordnung).

Concerning the enforcement phase of the EAPO, it determines which are the authorities responsible for the enforcement. It also acknowledges that there are certain amounts exempted from attachment of an EAPO under Montenegrin law.

Last but not least, the reform also tackles the information mechanism to trace the debtors’ bank accounts. The information authority will be Montenegro’s Central Bank (Centralna Banka). The method that will be employed to trace the debtors’ bank accounts consists of asking banks to disclose whether they hold the bank accounts. This method corresponds to the first of the methods listed in Article 14(5) that information authorities can use to trace the debtors’ bank accounts.

The entry into force of these new EAPO provisions is postponed until Montenegro joins the EU.  While these provisions might seem rather generic, they clearly reveal Montenegro’s commitment to facilitate the application of the EAPO within its legal system and make it more familiar for national judges and practitioners that will have to deal with it.

 

Ryanair / Commission (Italie; régime d’aide; Covid-19)
Aide d'État
Le Tribunal annule la décision de la Commission approuvant une mesure d’aide consistant en des subventions versées par l’Italie à des compagnies aériennes italiennes dans le contexte de la pandémie de Covid-19

Emmentaler Switzerland / EUIPO (EMMENTALER)
Propriété intellectuelle et industrielle MARQ
Le terme « emmentaler » ne peut pas être protégé en tant que marque de l’Union européenne pour des fromages

Meta Platforms Ireland / Commission
Concurrence
Concurrence : le recours de Meta Platforms Ireland (groupe Facebook) contre une demande de la Commission visant la communication de documents identifiés par le biais de termes de recherche est rejeté

This is a special moment for us after a long way, and forgive us for highlighting it in a special edition of our Repository: Our book on the HCCH 2019 Judgments Convention that we have worked on over the last years has come out! Big thanks to all involved, including Hart Publishing who made this possible.

The HCCH 2019 Judgments Convention
Cornerstones, Prospects, Outlook

 

As kindly highlighted in the Series Editor’s Preface, the book is enriched by the diverse perspectives not only of distinguished legal scholars from around the world, but also experienced practitioners from the HCCH, UNCITRAL and the EU who are familiar with the intricacies of negotiating within the HCCH framework. Furthermore, the volume does not limit itself to examining the legal cornerstones of the convention (Part I) but also strives to illuminate its prospects in leading regions of the world (Part II) and, finally, ventures – based on the insights gained from the judgments project’s genesis – an outlook on future developments (Part III). Hence, the book provides a truly global appraisal of the HCCH 2019 Judgments Convention and is therefore likely to become a major point of reference for legislators, judges, legal scholars and lawyers in the field of Private International Law.

We are happy to announce that the volume will be available at special rates to the conference participants in Bonn on 9 and 10 June 2023. If you are interested in discussing the latest advancements in global judicial cooperation with our learned authors, please be invited to register with sekretariat.weller(at)jura.uni-bonn.de. We will be able to handle last minute registrations …

Today the Hague Academy of International Law begins its celebrations to mark its centenary.

As indicated on its website: “Tirelessly since 1923, the Academy works, in The Hague, rightly named the International City of Peace and Justice, on “the teaching, study, dissemination and wider appreciation of international law”, to take the words of the United Nations General Assembly. After 100 years, it is time to make a short pause, at the occasion of a Solemn Sitting on 24 May, and look at what has been, what is, and also what, beyond the Centenary, must be accomplished by the Academy.”

There are two main events organised:

On Wednesday 24 May a solemn sitting will take place, the agenda is available here.

On Thursday 25 May  and Friday 26 May a colloquium will be held, the agenda is available here. Some of the interesting sessions in our area are “public interest in international law”, “public interest in litigation”, “humanization of private international law” and “the law applicable to international arbitration”.

Both events will be streamed online but only accessible to registered participants.

We (and I am sure all of its alumni) rejoice with the Hague Academy in celebrating this important milestone.

 

 

The author of this post is Lydia Lundstedt, Senior Lecturer at the Stockholm University.

Under Swedish copyright law, broadcasting organizations are granted certain exclusive rights over their broadcasts (“signal right”). A signal right is one of the “related” or “neighboring” rights to copyright along with the rights of performers and producers of phonograms. Pursuant to Section 48 of the Swedish Act (1960:729) on Copyright in Literary and Artistic Works (Swedish Copyright Act) broadcasting organizations have an exclusive right to inter alia authorize the rebroadcast or a communication to the public in places accessible to the public against the payment of an entrance fee. This section incorporates Sweden’s obligations under Article 8(3) of the EU Rental and Lending Directive 2006/115/EC.

As a general rule, the Swedish Copyright Act applies in relation to other countries only on condition of reciprocity, or if it follows from an international treaty. Article 6(1) of the 1961 International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome Convention) requires that Sweden grant national treatment to foreign broadcasting organizations if (1) they are established in another contracting State; or (2) if the broadcast was transmitted from a transmitter situated in another contracting State. This treaty obligation is incorporated into Section 12 of the Swedish International Copyright Regulation (1994:193) (International Copyright Regulation). The second point of attachment is formulated slightly differently in the International Copyright Regulation. It refers to “broadcasts which have been made” but does not include the words “from a transmitter situated”.

In a case before the Swedish courts, the question arose of the interpretation of this point of attachment when a satellite broadcasting chain of transmission spans several States. On 12 May 2023, the Swedish Supreme Court held that a satellite broadcast should normally be considered to take place in the state where the transmission of the programme-carrying signals was initiated.

Facts

Two persons, acting in their capacity as representatives for a company established in Sweden, were prosecuted for intentionally or through gross negligence, retransmitting television broadcasts produced by another company established in Qatar. The Swedish company had retransmitted via IPTV the Qatari company’s broadcasts to its own customers all over the world without obtaining the Qatari company’s consent. The Qatari company brought a civil claim for damages in connection with the prosecution. A prerequisite for finding the two persons guilty of the offense of unlawful retransmission and liable for damages was that the Qatari company’s broadcasts were eligible for protection under Swedish law.

It is important to distinguish the question whether the Qatari company was eligible for protection under Swedish law, which deals with the rights of foreigners, from the traditional private international law question concerning the applicable law. In this case, the applicable law question did not arise. First, nationals courts only apply their own criminal law so it is clear that Swedish law applies in a Swedish criminal proceeding. Second, with respect to the Qatari company’s claim for damages, which it a private law question, the Qatari company claimed protection for Sweden so Swedish law was applicable under Article 8(1) Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (Rome II). As said, however, the application of Swedish law was never questioned. Instead, the question was whether the Qatari company was eligible for protection under Swedish law.

Qatar was not a contracting state to the Rome Convention at the time that the broadcasts took place. Although the Qatari company produced its television programmes in Qatar, it sent the programme signals via fibre cable to a related company in France and then to the United Kingdom and Spain. Via uplink stations in the United Kingdom and Spain, the signals were sent to satellites to be received by the public in the Middle East and Northern Africa.

The Swedish Patent and Market Court (PMD) found that the Qatari company’s broadcasts were made “at least” in the United Kingdom and Spain, which are both contracting states to the Rome Convention. On appeal, however, the Patent and Market Court of Appeal (PMÖD) reversed and held that the broadcast took place only in Qatar. The Supreme Court affirmed the decision of the PMÖD.

Swedish Supreme Court

Article 3(f) of the Rome Convention defines broadcasting as “the transmission by wireless means for public reception of sounds or of images and sounds”. Although the Rome Convention was drafted before the time of satellite broadcasts, the Court stated that such broadcasts could nonetheless be considered to fall under its scope.

The Court then observed that section 61 a of the Copyright Act deals specifically with satellite broadcasting and localizes the “copyright relevant act” “in the country where the broadcasting organization, under its control and its responsibility, introduces the subject matter into an uninterrupted chain of communication to the satellite and from there down towards the earth.” Section 61 a implements Article 1(2)(b) of the EU Directive 93/83/EEC on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (SatCab Directive). The Court noted that the aim of this rule is to enable a broadcasting company that uses other people’s protected subject matters, to easily identify for which Member State it needs to obtain a license. The Court pointed out that the application of this rule presupposes that the subject matter (e.g. a broadcast) is protected under the Copyright Act. The Court therefore observed that this rule “had no immediate significance for the assessment of whether the broadcast as such is protected by that Act”.

The Court observed that neither Article 6 of the Rome Convention nor section 12 of the International Copyright Regulation contain specific provisions on where a broadcast is deemed to take place when the chain of transmission spans several different states. The Court noted however that “in a related context”, the Court of Justice of the European Union (CJEU) held that customary technical activities to prepare signals for their introduction into a satellite communication uplink cannot be regarded as interruptions in the transmission in the meaning of Article 1(2) of the SatCab Directive (see Airfield and Canal Digitaal (C-431/09 and C-432/09).

The Court found that this approach was consistent with the text of the Rome Convention and the International Copyright Regulation. The Court stated therefore that in the case of a broadcast involving several intermediate technical steps, the broadcast “was transmitted” (within the meaning of the Rome Convention) and “was made” (within the meaning of the International Copyright Regulation) in the state where the transmission of the signals was initiated. The Court added that the fact that the chain of transmission includes elements which, individually, are not covered by the rules of the Rome Convention, e.g. because the signals at one stage are not transmitted by wireless means, does not preclude such a reading of the provisions.

The Court also found that this interpretation was in line with the aim of protecting broadcasting organizations against the unauthorized exploitation of their broadcasts. The Court reasoned that broadcasting companies make their primary investments in the state from which the broadcast is initially generated and using the state of uplink or where other intermediate technical steps are taken would not satisfy this aim to the same extent.

Thus, the Court held that the entire chain of transmission starting with the transmission of the signals via fibre cable from Qatar and ending with their reception on the ground to subscribers was one single broadcast which must be regarded as having been made in Qatar. This meant that the Qatari company was not eligible for protection under Swedish law and the prosecution against the two individuals for a violation of the Copyright Act and the Qatari company’s damage claim were rejected.

Analysis

It is a bit surprising that the Court first states that section 61 a of the Swedish Copyright Act and the SatCab Directive “had no immediate significance” for the question of whether a broadcast is eligible for protection but then applies the approach set out in the SatCab Directive to determine whether a broadcast is eligible for protection. It can be questioned whether the situation regulated in the SatCab Directive really can be said to be “a related context” as the SatCab Directive regulates a different situation than the Rome Convention and the International Copyright Regulation.

As noted above, the SatCab Directive deals with cross-border licensing of protected subject matter and Article 1(2)(b) localizes where a user is said to exploit another person’s protected subject matter when the subject matter is transmitted to a satellite from one Member State but received by the public on the ground in several other Member States. In contrast, Article 6 of the Rome Convention and the corresponding provision in the International Copyright Regulation deal with the protection of foreign broadcasters and lay down the conditions for affording national treatment to their signals.

Moreover, the SatCab Directive has a different aim than the Rome Convention and the International Copyright Regulation. The SatCab Diective aims to promote pan-European broadcasting by localizing the copyright relevant act in a single Member State while at the same time requiring a minimum level of harmonization to ensure that the protection level is sufficiently high in all Member States. This facilitates cross-border licensing because users of protected subject matters only need to clear the rights in one Member State as opposed to all Member States where the subject matters can be received. In line with this aim of avoiding the cumulative application of several national laws to one single act of broadcasting, normal technical procedures relating to the programme-carrying signals are not to be considered as interruptions to the chain of broadcasting (see recital 14 SatCab Directive).

In contrast, as the Court itself notes, the aim of the Rome Convention is to protect broadcasting organizations against the unauthorized exploitation of their broadcasts. To fulfil this aim, the Rome Convention contains alternative points of attachment (i.e. the broadcaster’s state of establishment or the state where a transmitter that transmits the broadcast is situated). It would be consistent with the aim of the Rome Convention to localize a broadcast in all states with which the broadcast has a significant connection such as a transmitter, or in a cascade-like fashion stopping at the first contracting state that has a significant connection to the broadcast.

It can be noted that the Court did not seem to place any emphasis on the wording “from a transmitter situated in another Contracting State” that appears in the Rome Convention, although not in the International Copyright Regulation. Normally, this point of attachment allows a broadcasting organization that is established outside a Rome contracting state to enjoy protection if its transmitter is situated in a contracting state. While a contracting state may declare that they will apply both points of attachment cumulatively, Sweden has not done so. Still, the practical effect of the ruling seems to require this as it is likely that signals will usually be initiated from the state where the broadcaster is established.

One can make an analogy with the Berne Convention that allows authors who are not nationals of a contracting state to the Berne Union to be eligible for protection under the Convention by publishing their works first in a contracting state to the Berne Union, or simultaneously in a state outside the Berne Union and in a state of the Berne Union. That said, one might view the right of foreign broadcasters in their signals as less deserving of protection than the right of authors in their works. Moreover, non-contracting states would not have any incentive to join the Rome Convention if their broadcasters could secure protection by sending their signal through contracting states.

A question could be raised whether the Court should have referred a question to the CJEU on the interpretation of the Rental and Lending Directive. As noted above, section 48 of the Swedish Copyright Act fulfills Sweden’s obligation under the Rental and Lending Directive to afford broadcasting organizations the exclusive right to authorize or prohibit the communication to the public of their broadcasts against payment of an entrance fee. While the Directive itself does not define who is considered to be a broadcasting organization eligible for protection under the Directive, the concept should be interpreted consistently with the EU’s international treaty obligations. See Recorded Artists Actors Performers (C-265/19). In this case, however, the relevant obligation was under the Rome Convention and the EU is not itself a contracting party.

Article 3 of the TRIPS Agreement, which is an international convention concluded by the EU, obligates the EU to accord national treatment to the nationals of other Members in respect of the rights provided under the Agreement. Article 14.3 TRIPS provides broadcasting organizations a signal right, albeit to a more limited extent than the Rome Convention. Importantly, Article 1.3 of TRIPS incorporates the criteria for eligibility for protection in the Rome Convention to determine who is eligible for protection under TRIPS. Thus, the question concerning the interpretation of Article 6 of the Rome Convention arguably falls indirectly within the CJEU’s adjudicative competence, notwithstanding that the EU is not itself a contracting party, when the right claimed is one that implements Article 14.3 TRIPS. This is because the CJEU may need to interpret the rules in Article 6 of the Rome Convention to establish the EU and its Member States’ obligations under TRIPS. Thus, it is possible that the CJEU will have the opportunity in the future to have its say about where a satellite broadcasting chain of transmission that spans several different states takes place for the purpose of determining its eligibility for protection under TRIPS.

Ce nouvel épisode de l’Europe à la barre présente les principaux enjeux actuels en matière de droit européen de la famille.

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As noted earlier on this blog, on 24 May 2023, from 6 pm to 8 pm CEST, the forth and last webinar of the series that has been organised under the title The Future of Cross-Border Parenthood in the EU – Analyzing the EU Parenthood Proposal will take place. The webinar, chaired by Steve Heylen, will deal with the following relations:  Authentic documents and
parenthood: between recognition and acceptance (Patrick Wautelet), and The European certificate of Parenthood: A passport for parents and children? (Ilaria Pretelli).

Those wishing to attend have time until 23 May 2023 at noon to register. The registration form is available here.

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

The updated and final version of the program is available here.

On 30 June 2023, the second edition of the Austrian Private International Law Workshop will take place in Innsbruck. The organisers cordially invite all interested researchers and practitioners to participate and register via evip@uibk.ac.at. Participation is free of charge. The workshop will be conducted in German and will consist of two sessions, chaired by Florian Heindler and Andreas Schwartze, respectively.

Presentations will discuss, inter alia: Current trends in the case law of the CJEU on conflict of laws (Marlene Brosch, ECJ); The EU Succession Regulation and the Austrian Supreme Court – where it should have applied for a preliminary ruling (Gottfried Musger, Austrian Supreme Court); Parent in one country, parent in every country: The proposal for an EU Parenthood Regulation (Martina Melcher, University of Graz); International enforcement of legal rules on social networks (Brigitta Lurger, University of Graz); The corporation seat theory between connecting factor and domestic nexus (Chris Thomale, University of Vienna); Crypto assets in private international law (Matthias Lehmann, University of Vienna/Radboud University Nijmegen).

A forum chaired by Bernhard A. Koch (University of Innsbruck) and Simon Laimer (University of Innsbruck) on the the most pressing challenges for private international law in the coming years and decades will conclude the event.

The updated and final version of the program is available here.

Quels droits garantir aux copropriétaires minoritaires dans le cadre de la procédure de fixation de l’indemnité d’expropriation ? En particulier, doivent-ils bénéficier de la possibilité de faire appel lorsque le prix fixé ne leur convient pas ? La Cour européenne a eu à répondre à ces questions au début du mois de mai, dans une affaire concernant directement la France.

Sur la boutique Dalloz Code de la copropriété 2023, annoté et commenté Voir la boutique Dalloz

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L’article 15, point 5, du règlement Bruxelles I bis doit être interprété en ce sens qu’un contrat d’assurance sur corps de navire portant sur un bateau de plaisance utilisé à des fins non commerciales ne relève pas de ses dispositions.

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This post was written bij Helga Luku, PhD researcher at the University of Antwerp.

On 1 March 2023, the Supreme Administrative Court of the Republic of Bulgaria issued its final decision no. 2185, 01.03.2023 (see here an English translation by Nadia Rusinova) in the Pancharevo case. After an appeal from the mayor of the Pancharevo district, the Supreme Administrative Court of Bulgaria ruled that the decision of the court of first instance, following the judgment of the Court of Justice of the European Union (CJEU) in this case, is “valid and admissible, but incorrect”. It stated that the child is not Bulgarian due to the lack of maternal ties between the child and the Bulgarian mother, and thus there is no obligation for the Bulgarian authorities to issue a birth certificate. Hereafter, I will examine the legal reasoning behind its ruling.

Background

On 2 October 2020, the Administrative Court of the City of Sofia in Bulgaria requested a preliminary ruling from the CJEU in the case C-490/20 V.M.A. v. Stolichna Obshtina, Rayon ‘Pancharevo’. It sought clarification on the interpretation of several legal provisions. Specifically, the court asked whether a Member State is obliged, under Article 4(2) of the Treaty on European Union (TEU), Articles 20 and 21 of the Treaty on the Functioning of the European Union (TFEU), and Articles 7, 24, and 45 of the Charter of Fundamental Rights of the European Union (the Charter), to issue a birth certificate to a child, who is a national of that Member State, in order to obtain the identity document. This inquiry arose with respect to a child, S.D.K.A., born in Spain, whose birth certificate was issued by Spanish authorities, in accordance with their national law. The birth certificate identifies a Bulgarian national, V.M.A., and her wife, a British national, as the child’s mothers, without specifying which of the two women gave birth to the child.

The CJEU decided that Article 4(2) TEU, Articles 20 and 21 TFEU and Articles 7, 24 and 45 of the Charter, read in conjunction with Article 4(3) of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, must be interpreted as meaning that, in the case of a child, being a minor, who is a Union citizen and whose birth certificate, issued by the competent authorities of the host Member State, designates as that child’s parents two persons of the same sex, the Member State of which that child is a national is obliged

• to issue to that child an identity card or a passport without requiring a birth certificate to be drawn up beforehand by its national authorities, and
• to recognise, as is any other Member State, the document from the host Member State that permits that child to exercise, with each of those two persons, the child’s right to move and reside freely within the territory of the Member States.

The trajectory of the case within the Bulgarian courts

On the basis of the decision of the CJEU in the Pancharevo case, the referring court, i.e. the Administrative Court of the City of Sofia obliged the authorities of the Pancharevo district to draw up the birth certificate of S.D.K.A., indicating two women as her parents.

The mayor of the Pancharevo district then filed an appeal to the Supreme Administrative Court of Bulgaria, contending that the decision is inadmissible and incorrect.

Based on its considerations, the Supreme Court held that the decision of the court of first instance is “valid and admissible but incorrect”. Its rationale is premised on several arguments. Firstly, it referred to Article 8 of the Bulgarian Citizenship Law, which provides that a Bulgarian citizen by origin is everybody of whom at least one of the parents is a Bulgarian citizen. In the present case, the Supreme Court deemed it crucial to ascertain the presence of the biological link of the child, S.D.K.A. with the Bulgarian mother, V.M.A. Thus, it referred to Article 60 of the Bulgarian Family Code, according to which the maternal origin shall be established by birth; this means that the child’s mother is the woman who gave birth to the child, including in cases of assisted reproduction. Therefore, the Supreme Court proclaimed in its ruling that the Bulgarian authorities could not determine whether the child was a Bulgarian citizen since the applicant refused to provide information about the child’s biological mother. Consequently, the authorities could not issue a birth certificate and register the child’s civil status. Furthermore, in a written defence presented to the court of first instance by the legal representative of V.M.A., it was provided that S.D.K.A. was born to K.D.K., the British mother, and the British authorities had also refused to issue a passport to the child, as she was not a British citizen.

The Supreme Administrative Court of Bulgaria ruled that the child is not a Bulgarian citizen, and the conclusion of the CJEU that the child is a Bulgarian citizen and thus falls within the scope of EU law (Articles 20 and 21 TFEU and Article 4 of Directive 2004/38/EC) is inaccurate. According to the Supreme Court’s legal reasoning, these provisions do not establish a right to claim the granting of Bulgarian citizenship, and Union citizenship is a prerequisite for enjoying free movement rights.

In these circumstances, the Supreme Administrative Court of Bulgaria held that the refusal to issue a birth certificate does not result in the deprivation of citizenship or the violation of the child’s best interests. It referred to the law of the host country, Spain. Article 17 of the Spanish Civil Code of July 24, 1889, provides that Spanish citizens by origin are persons born in Spain to parents:

• who are foreigners if at least one of the parents was born in Spain (except for the children of diplomatic or consular officials accredited to Spain),
• who are both stateless, or
• neither of whose national laws confer nationality on the child.

According to this Article, the Supreme Court reasoned that since the national laws of the parents named in the child’s birth certificate (i.e. Bulgarian and UK legislation), issued in Spain, do not grant citizenship to the child, baby S.D.K.A. must be considered a Spanish citizen by virtue of this provision.

The applicability of Spanish law was expressly confirmed by the Spanish Government during the hearing at the CJEU, provided in paragraph 53 of Advocate General Kokott’s Opinion, stating that if the child could claim neither Bulgarian nor UK nationality, she would be entitled to claim Spanish nationality. Thus, the Supreme Court ruled that the child is Spanish and averted the risk of leaving the child stateless.

Is the decision of the Supreme Administrative Court of Bulgaria in conformity with EU law interpretation?

In light of the ruling of the CJEU on the Pancharevo case, certain aspects might have required further scrutiny and more attention from the Supreme Court. Paragraph 68 of the Pancharevo judgment provides:

“A child, being a minor, whose status as a Union citizen is not established and whose birth certificate, issued by the competent authorities of a Member State, designates as her parents two persons of the same-sex, one of whom is a Union citizen, must be considered, by all Member States, a direct descendant of that Union citizen within the meaning of Directive 2004/38 for the purposes of the exercise of the rights conferred in Article 21(1) TFEU and the secondary legislation relating thereto.”

According to this paragraph, it can be inferred that Bulgaria and other Member States must recognize a child with at least one Union citizen parent as a direct descendant of that Union citizen. This paragraph has important implications as regards the establishment of the parent-child relationship. The CJEU, in its case law (C-129/18 SM v Entry Clearance Officer), has firmly established that the term “direct descendant” should be construed broadly, encompassing both biological and legal parent-child relationships. Hence, as a family member of the Bulgarian mother, according to Article 2 (2)(c) of Directive 2004/38, baby S.D.K.A., should enjoy free movement and residence rights as a family member of a Union citizen. In its decision, however, the Supreme Administrative Court of Bulgaria did not conform to the CJEU’s expansive understanding of the parent-child relationship. Therefore, its persistence in relying on its national law to establish parenthood exclusively on the basis of biological ties appears to contradict the interpretation of EU law by the CJEU.

The Supreme Administrative Court of Bulgaria seems relieved to discover that the child probably has Spanish nationality. It can be doubted, however, at what conclusion the court would have arrived if the child were not recognized as Spanish under Spanish nationality laws, especially considering that the child was not granted nationality under UK legislation either. In such a scenario, the Supreme Court might have explored alternative outcomes to prevent the child from becoming stateless and to ensure that the child’s best interests are always protected.

This post was written by Carlos Santaló Goris (Lecturer at the European Institute of Public Administration in Luxembourg).

On 20 April 2023, the Court of Justice of the European Union (CJEU) rendered its second judgment on Regulation 655/2014, establishing a European Account Preservation Order (‘EAPO Regulation’). In C-291/21, Starkinvest, the Court assessed whether an EAPO could be used to secure a claim resulting from a penalty payment, and if so, under what conditions.  

Background of the Case

C-291/21, Starkinvest, has its roots in a 2016 judgment rendered by the Court of Appeals of Liège (Cour d’appel de Liège) rendered in favor of Starkinvest SRL ordering Soft Paris and Soft Paris Parties, ‘to cease all sales of their goods and services under the word mark SOFT PARIS in the Benelux countries’ (para. 18). The judgment established a periodic penalty payment in the event the order to cease sales was not respected.

In 2021, Starkinvest SRL applied for an EAPO to attach Soft Paris’ French bank accounts for € 86 694.22. Of that amount, € 85.000 corresponded to the penalty payments resulting from Soft Paris’ infringement of the order to cease the sale of goods. Starkinvest used the referred judgment rendered by the Court of Appeals of Liège (Cour d’appel de Liège) as the title to obtain the EAPO.

At this point, it should be noted that the regime to obtain an EAPO varies depending on whether the creditor has an enforceable judgment or not. All creditors have to prove that ‘there is a real risk that, without such a measure, the subsequent enforcement of the creditor’s claim against the debtor will be impeded or made substantially more difficult’ (Article 7(1) EAPO Regulation. This first prerequisite corresponds to the periculum in mora. Creditors without an enforceable judgment ‘shall also submit sufficient evidence to satisfy the court that he is likely to succeed on the substance of his claim against the debtor’ (Article 7(2) EAPO Regulation). This second condition corresponds to another common prerequisite for obtaining a national interim measure, the fumus boni iuris.

For the Court of Appeals of Liège (Cour d’appel de Liège), it was not clear whether the judgment establishing the penalty payment but not specifying the amount the claim arising from that penalty payment was valid a judgment that would exempt creditors from satisfying the fumus boni iuris. In this regard, Belgian legislation does not require the prior quantification of the claim arising from a penalty payment to request a preservation order ‘provided that the decision ordering penalty payments is enforceable and has been serving’ (para. 23). Conversely, the Belgian court also acknowledges that Article 55 of the Brussels I bis Regulation establishes that ‘a judgment that ”orders a payment by way of a penalty” can only benefit from the simplified scheme of enforcement the amount of the payment has been finally determined by the court of origin.’ Having no answer to such inquiry, the Court of Appeal of Liège (Cour d’appel de Liège) decided to submit the following questions to the CJEU:

(1) Does a judgment which has been served, ordering a party to make a penalty payment in the event of breach of a prohibitory order, constitute a [judgment] requiring the debtor to pay the creditor’s claim within the meaning of Article 7(2) of [Regulation No 655/2014]?

(2) Does a judgment ordering a party to make a penalty payment, although enforceable in the country of origin, fall within the meaning of “judgment” in Article 4 of [Regulation No 655/2014] where there has been no final determination of the amount in accordance with Article 55 of [Regulation No 1215/2012]?

The CJEU’s Answer

In essence, the CJEU was asked whether the judgment that established the penalty payment was a valid judgment that would exempt the creditor from proving the fumus boni iuris. More concretely, whether or not the claim amount had to be specified in the judgment as a condition to consider the judgment a valid title. In this regard, neither Article 4(5), which contains the definition of judgment, nor Article 7(2), the provision on the fumus boni iuris, does not state anything about the quantification of the claim in the judgment (paras 42 – 43). Nonetheless, other provisions do so. Article 6 refers to the ‘amount specified in the judgment’, while Article 8(2)(g) states that creditors can apply for an EAPO in ‘the amount of the principal claim as specified in the judgment’ (paras 46 – 47). Therefore, a systematic interpretation suggests that the judgment would have to contain the precise amount of claim.

The CJEU found that the specification of the amount of the claim is also a guarantee to maintain an adequate balance between the creditor’s and debtor’s interests in the EAPO procedure (para. 50). If a judgment establishing the penalty payment without having specified the amount of the claim is considered a valid title to circumvent the fumus boni iuris, that would undermine the debtor’s position. The court’s examination of fumus boni iuris is both a condition for creditor to access the EAPO and a guarantee for the debtor against abusive applications when there is no title acknowledging the claim. When the amount of penalty payment is not quantified, courts should have the discretion to assess whether there is a basis for the amount the creditor requested the EAPO for. Interestingly, AG Szpunar added, in his opinion, that while the judgment establishing penalty payment would not constitute a valid title, it is not ‘is meaningless for the creditor’. Creditors could use it, along ‘with documents provided by a court official in which the court official declares the breaches of the prohibitory order’, to prove the fumus boni iuris (paras. 82 – 83). Creditors willing to secure a penalty payment through an EAPO can find a practical tip here.

Lastly, the CJEU addressed the enforcement regime of judgments ordering penalty payments under the Brussels I bis Regulation. In this regard, the Court clarified that even if the EAPO does not have an equivalent provision, that does not imply that the ‘intention of the EU legislature was to exclude penalty payments from the scope of that regulation’ (para. 55). Therefore, the EAPO could be used to secure penalty payments. However, the judgment ordering the penalty payment without quantifying the claim is insufficient to overcome the fumus boni iuris.

Overall Assessment of the Judgment

The main contribution of the C-291/21 judgment is that it shows that the EAPO can be used to secure penalty payments. In this regard, it aligned the EAPO Regulation with the Brussels I bis Regulation, which expressly acknowledges the possibility of recognizing and enforcing penalty payment judgments. Creditors can combine both instruments. While using the Brussels I bis Regulation to enforce the penalty payment, they can rely on the EAPO to secure its enforcement. Whether the EAPO can be used to secure a penalty payment might seem for many pretty obvious, the Cologne Higher Regional Court (Oberlandesgericht Köln) once rejected an EAPO request on the basis of a penalty payment under German law (Zwangsgeld), because it considered that such kind of claim fell outside the scope of the EAPO Regulation. The creditor requested a preliminary reference be submitted to CJEU, but the German court rejected such a possibility. This case came to the author’s knowledge through an interview with a German lawyer in the empirical conducted in the context of his Ph.D. dissertation.

This decision also sheds light on the autonomous notion of judgment under the EAPO Regulation (in this regard, see also Tobias Lutzi’s post on this judgment), more precisely, concerning the prerequisite that the claim has to be quantified.

As in C-555/18, the first CJEU judgment on the EAPO, the Court’s reasoning of this second judgment again pivots on the need to ‘strike an appropriate balance between the interest of the creditor in obtaining an Order and the interest of the debtor in preventing abuse of the Order’ (Recital 14). This is a recurring hermeneutic tool used by the CJEU when it comes to interpreting the EAPO and the EPO. It seems that the CJEU’s approach is to counterweight the pro-creditore spirit that underpinned the creation of the EAPO and EPO, reinforcing the debtor’s position.

La Cour de cassation transmet à la Cour de justice de l’Union européenne des questions préjudicielles relatives à la détermination de la règle applicable pour apprécier la validité des clauses attributives asymétriques.

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