Case law Developments in PIL

November 2020 at the CJEU

After the semaine blanche, the Court of Justice will deliver some judgments and opinions, starting on 11 November 2020, with C-433/19, Ellmes Property Services. The request has been referred by the Oberster Gerichtshof (Austria), in a case where the applicant seeks to prevent the use of the apartment for tourist purposes, contrary to its designated use and in the absence of consent of the other co-owners; he claims the touristic use interferes with the applicant’s rights of co-ownership. He relies on Article 24(1) of the Brussels I bis Regulation; the defendant objects on the basis of the lack of local and international jurisdiction. The questions read as follows:

  1. Is the first alternative in the first subparagraph of Article 24(1) of [the Brussels I bis Regulation] 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?
  2. If the first question should be answered in the negative: Is Article 7(1)(a) of the [Brussels I bis Regulation] to be interpreted as meaning that the actions referred to in paragraph 1 concern contractual obligations to be performed at the location of the property?

According to AG Szpunar (Opinion of June 18, 2020), the Court should reply:

  1. Article 24(1) of [the Brussels I bis Regulation] must be interpreted as meaning that an action by a co-owner seeking to prevent the use of an apartment by another co-owner for tourist purposes, on the ground that such use is not that agreed in the co-ownership agreement, only falls under that provision if that use is enforceable erga omnes. It is for the national court to carry out the final appraisal in that respect.
  2. Article 7(1)(a) of that regulation must be interpreted as meaning that, where the use agreed in the co-ownership agreement is not enforceable erga omnes, such an action falls within the concept of ‘matters relating to a contract’ within the meaning of that provision. In those circumstances, the contractual obligation at issue is an obligation not to do something, specifically, not to change the designated use of a property, in breach of the co-ownership agreement, at the place where the property is situated. In order to ascertain whether the place of performance of that obligation is the place where the apartment subject to co-ownership is situated, it is for the national court to determine that place of performance in accordance with the law governing that obligation on the basis of the conflict of law rules of the court seised.

The decision corresponds to the 1st Chamber (judges Bonichot, Silva de Lapuerta, Toader, Safjan, Jääskinen, with Ms. Silva de Lapuerta as reporting judge).

On 12 November 2020, AG Hogan’s Opinion on C-729/19Department of Justice for Northern Ireland will be published. The request, from the Court of Appeal in Northern Ireland, is related to a dispute between a Polish national and the Department of Justice for Northern Ireland (the Central Authority for the purpose of the Maintenance Regulation). The questions for the Court focus on the temporary scope of application of the Regulation, and on the consequences of the incorporation of the Hague Protocol on the law applicable to maintenance obligations to the system of the Regulation:

  1. Must Article 75(2) of the [Maintenance Regulation] be interpreted as applying only to “decisions” which were given in States that were member States of the EU at the time those decisions were made?
  2. Bearing in mind that Poland is now a Member State of the European Union which is bound by the Hague Protocol, are maintenance decisions made by a Court in Poland in 1999 and 2003, that is, prior to Poland becoming a member state of the European Union, now capable of being registered and enforced in another EU Member State pursuant to any part of [the Maintenance Regulation], and in particular:
    (a) Pursuant to Article 75(3) and Article 56 of the Maintenance Regulation;
    (b) Pursuant to Article 75(2) and Section 2 of Chapter IV of the Maintenance regulation;
    (c) Pursuant to Article 75(2)(a) and Section 3 of Chapter IV of the Maintenance regulation;
    (d) Pursuant to any other Articles of the Regulation?

A hearing was held on 14 October 2020 where the parties, among other, explained their position, in the light of the judgment in C-283/16, S., on whether Article 75(3) of the maintenance regulation covers the situation where the Central Authority of the requested Member State has lodged with a court of a Member State an application for recognition of a decision in matters relating to maintenance obligations given in a third State that was transmitted to it, after the accession of that State to the European Union and after the date of application of the Maintenance Regulation, via the Central Authority of that new Member State.

Case C-519/19, DelayFix, a preliminary reference where the AG’s opinion was not requested, will be delivered on 18 November 2020. The reference was sent by the Regional Court in Warsaw in a dispute concerning the unfair character of a term (a choice of court clause) included in a consumer’s contract. The case involves the interpretation of Directive 93/13/EEC on unfair terms in consumer contracts and Article 25 of the Brussels I bis Regulation. As the claim had been assigned, the claimant was not the consumer himself, thus the question from the Polish Court. The judgment will be a 1st Chamber one (judges Bonichot, Bay Larsen, Toader, Safjan, Jääskinen; Ms. Toader is the reporting judge).

The much awaited judgment in C-59/19, Wikingerhof, is scheduled for 24 November 2020. It will be a Grand Chamber decision (judges Lenaerts, Silva de Lapuerta, Bonichot, Arabadjiev, Prechal, Piçarra, von Danwitz, Toader, Safjan, Šváby, Rodin, Jürimäe, Lycourgos, Xuereb, Rossi; Mr. Safjian as reporting judge). Here the question, submitted by the Bundesgerichtshof (Germany):

Is Article 7(2) of [the Brussels I bis Regulation] to be interpreted as meaning that jurisdiction for matters relating to tort or delict exists in respect of an action seeking an injunction against specific practices if it is possible that the conduct complained of is covered by contractual provisions, but the applicant asserts that those provisions are based on an abuse of a dominant position on the part of the defendant?

AG Saugmandsgaard Øe delivered his opinion last September. Here my translation (the official English one is not yet available):

Article 7, point 2, of Regulation (EU) No. 1215/2012 of the European Parliament and of the Council, of 12 December 2012, on jurisdiction, recognition and enforcement of judicial decisions in civil and commercial matters must be interpreted in the sense that a civil liability action, based on the infringement of competition law, is a matter relating to “delict or quasi-delict”, within the meaning of the provision, even in the in the event that the plaintiff and the defendant are parties to a contract and the anti-competitive behavior the plaintiff attributes to the defendant is reflected in their contractual relationship.

Finally, AG Bobek’s opinion in C-307/19, Obala i lučice – a preliminary reference from the Commercial Court of Appeal, Croatia – will be delivered on 26 November 2020. Not a short request, in relation to a civil proceedings to recover the principal amount of HRK 84 (some 11 Euros), owed as payment for a daily parking ticket for a car parked on the public highway in Zadar (Croatia):

  1. Are notaries authorised to effect service of documents under [the Service Regulation] when they serve notice of their decisions in cases in which [the Brussels I bis Regulation] does not apply, bearing in mind that, in Croatia, notaries acting within the framework of the powers conferred on them by national law in enforcement proceedings based on an ‘authentic document’ do not fall within the concept of ‘court’ within the meaning of [the Brussels I bis Regulation]? In other words, given that notaries do not fall within the concept of ‘court’ for the purposes of [the Brussels I bis Regulation], are they able, when acting within the framework of the powers conferred on them by national law in enforcement proceedings based on an ‘authentic document’, to apply the rules governing service of documents established in [the Service Regulation]?
  2. Can parking in the street and on the public highway, where the right to collect payment is conferred by the Zakon o sigurnosti prometa na cestama (Law on Road Safety) and the legislation governing the performance of municipal activities as public authority activities, be considered a civil matter within the meaning of [the Brussels I bis Regulation], which governs the question of the jurisdiction of the courts and the recognition and enforcement of judgments in civil and commercial matters, especially having regard to the fact that, where a vehicle is found without a parking ticket or with an invalid ticket, it is immediately subject to a requirement to pay for a daily ticket, as though it had been parked for the whole day, regardless of the precise length of time for which it was parked, meaning that this daily parking charge has a punitive effect, and that in some Member States this type of parking constitutes a traffic offence?
  3. In court proceedings of the type referred to above concerning parking in the street and on the public highway, where the right to collect payment is conferred by the Law on Road Safety and the legislation governing the performance of municipal activities as public authority activities, can the courts effect service of a document on the defendants in another Member State under [the Service Regulation]?

If, based on the above questions, this type of parking is ruled to be a civil matter, the following further questions are referred.

  1. In the present case, there is a presumption that a contract is concluded in respect of the aforesaid on-street parking in a space designated by horizontal and/or vertical markings; in other words, by parking there one is deemed to enter into a contract, and if one fails to pay the correct hourly parking charge one has to pay for a daily ticket. The question is therefore raised as to whether that presumption, that parking gives rise to a contract and entails consent to pay for a daily ticket if one does not buy a ticket in accordance with the hourly parking tariff or if the parking period on the ticket has expired, is contrary to the basic stipulations on the provision of services in Article 56 of the Treaty on the Functioning of the European Union and to the other provisions in the EU acquis.
  2. In the present case the parking took place in Zadar, Croatia, and there is therefore a connection between that contract and the Croatian courts. But does this parking constitute a ‘service’ within the meaning of Article 7(1) of [the Brussels I bis Regulation], bearing in mind that the concept of service implies that the party who provides the service carries out a particular activity, that is, that the said party carries out that particular activity in return for remuneration. The question is therefore whether the activity carried out by the appellant is sufficient for it to be considered a service. If the Croatian courts do not have special jurisdiction under Article 7(1) of [the Brussels I bis Regulation], jurisdiction to hear the case would lie with the court of the respondent’s domicile.
  3. Can parking in the street and on the public highway, where the right to collect payment is conferred by the Law on Road Safety and the legislation governing the performance of municipal activities as public authority activities, and charges are levied only during a specified period during the day, be considered a tenancy agreement for immovable property under Article 24(1) of [the Brussels I bis Regulation]?
  4. If the aforementioned presumption that the parking entails the conclusion of a contract (fourth question referred) cannot be applied in this case, can this type of parking, where authority to collect parking charges is conferred by the Law on Road Safety and a daily ticket must be purchased if a ticket for the parking period is not purchased in advance or if the parking ticket has expired, be deemed to constitute a matter relating to tort, delict or quasi-delict within the meaning of Article 7(2) of [the Brussels I bis Regulation]?
  5. In the present case, the parking took place before Croatia joined the European Union, specifically at 13.02 on 30 June 2012. Therefore, the question is asked whether the regulations governing applicable law, namely [the Rome I Regulation] or [the Rome II Regulation], apply in the present case, having regard to their temporal validity.

If the Court of Justice of the European Union has jurisdiction to provide a response on the application of the material law, the following question is referred.

  1. Is the presumption that this type of parking gives rise to a contract and entails consent to pay for a daily ticket if one does not pay the hourly parking charges or if the ticket expires, contrary to the basic stipulations on the provision of services in Article 56 TFEU and to the other provisions of the acquis, irrespective of whether the owner of the vehicle is a natural or a legal person? In other words, for the purposes of determining the material law, can the provisions of Article 4 of [the Rome I Regulation] apply in this case (given that there is no evidence in the proceedings to show that the parties came to an agreement on the applicable law)?
    • If a contract is held to exist, would it be a contract for the provision of services in the present case, that is to say, can the parking contract be considered a service within the meaning of Article 4(1)(b) of [the Rome I Regulation]?
    • In the alternative, could the parking be considered to constitute a tenancy agreement in accordance with Article 4(1)(c) of [the Rome I Regulation]?
    • In the alternative, if the parking comes under the provisions of Article 4(2) of [the Rome I Regulation], the question arises as to what constitutes the characteristic performance in the present case, bearing in mind that, in essence, the appellant merely marks the parking area on the roadway and collects parking charges, while the respondent parks and pays for the parking. In practice, if the characteristic performance is considered to be that of the appellant, Croatian law would apply, whereas if the characteristic performance is that of the respondent, Slovenian law would apply. However, given that in this case the right to collect parking charges is regulated by Croatian law, with which, therefore, the contract is more closely connected, can the provisions of Article 4([3]) of [the Rome I Regulation] nevertheless also apply?
    • If the case is considered to involve a non-contractual obligation within the terms of [the Rome II Regulation], could this non-contractual obligation be considered to constitute damage, meaning that the applicable law would be determined in accordance with Article 4(1) of [that Regulation]?
    • In the alternative, could this type of parking be considered to constitute unjust enrichment, meaning that the applicable law would be determined in accordance with Article 10(1) of [the Rome II Regulation]?
    • In the alternative, could this type of parking be considered to constitute negotiorum gestio, in which case the applicable law would be determined in accordance with Article 11(1) of [the Rome II Regulation]?
    • In the alternative, could this type of parking be considered to constitute liability on the part of the respondent for culpa in contrahendo, in which case the applicable law would be determined in accordance with Article 12(1) of [the Rome II Regulation]?

A hearing was foreseen which could not be held (questions and answers were thus in written form). The decision will be taken by the 1st Chamber (judges Bonichot, Bay Larsen, Toader, Safjan, Jääskinen, with Ms. Toader as reporting judge).

Legal Secretary CJEU Full Professor PIL, University of La Laguna (Spain) Senior research fellow MPI Luxembourg (on leave)

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