Case law Developments in PIL

June at the CJUE

Curia-1On 25 May 2020, the CJEU has resumed its activity. This means hearings will be held again. None is scheduled for June on PIL matters, though.

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

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

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

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

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

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

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

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

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

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

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