Case law Developments in PIL EU Legislation

December 2020 at the Court of Justice of the European Union

December 2020 will be quiet at the Court (regarding private international law cases).

The judgment in C-774/19 Personal Exchange International will be delivered (6th Chamber: Bay Larsen, Safjan, Jääskinen; no opinion, no hearing) on Thursday 10. The question was referred on September 5, 2019, by the Vrhovno sodišče Republike Slovenije (Slovenia):

Must Article 15(1) of Regulation No 44/2001 be interpreted as meaning that an online poker playing contract, concluded remotely over the internet by an individual with a foreign operator of online games and subject to that operator’s general terms and conditions, can also be classified as a contract concluded by a consumer for a purpose which can be regarded as being outside his trade or profession, where that individual has, for several years, lived on the income thus obtained or the winnings from playing poker, even though he has no formal registration for that type of activity and in any event does not offer that activity to third parties on the market as a paid service?

On Thursday 17, AG Campos Sánchez-Bordona’s opinion on C-709/19 Vereniging van Effectenbezitters, will be published. The Hoge Raad (the Netherlands) asked the Court to interpret once more Article 7(2) Brussels I bis in a case of patrimonial damage. The preliminary reference was lodged September 25, 2019; a hearing had been scheduled for last September, rescheduled, and eventually replaced by questions for written answer.

1.(a)  Should Article 7(2) of [the Brussels Ia Regulation] be interpreted as meaning that the direct occurrence of purely financial damage to an investment account in the Netherlands or to an investment account of a bank and/or investment firm established in the Netherlands, damage which is the result of investment decisions influenced by globally distributed but incorrect, incomplete and misleading information from an international listed company, constitutes a sufficient connecting factor for the international jurisdiction of the Netherlands courts by virtue of the location of the occurrence of the damage (‘Erfolgsort’)?

(b)    If not, are additional circumstances required to justify the jurisdiction of the Netherlands courts and what are those circumstances? Are the additional circumstances referred to [in paragraph 7 below] sufficient to found the jurisdiction of the Netherlands courts?

2. Would the answer to Question 1 be different in the case of a claim brought under Article 3:305a of the BW (Burgerlijk Wetboek: Netherlands Civil Code) by an association the purpose of which is to defend, in its own right, the collective interests of investors who have suffered damage as referred to in Question 1, which means, among other things, that neither the places of domicile of the aforementioned investors, nor the special circumstances of individual purchase transactions or of individual decisions not to sell shares which were already held, have been established?

3. If courts in the Netherlands have jurisdiction on the basis of Article 7(2) of the Brussels Ia Regulation to hear the claim brought under Article 3:305a of the BW, do those courts then, on the basis of Article 7(2) of the Brussels Ia Regulation, also have international and internal territorial jurisdiction to hear all subsequent individual claims for compensation brought by investors who have suffered damage as referred to in Question 1?

4. If courts in the Netherlands as referred to in Question 3 above have international, but not internal, territorial jurisdiction to hear all individual claims for compensation brought by investors who have suffered damage as referred to in Question 1, will the internal territorial jurisdiction be determined on the basis of the place of domicile of the misled investor, the place of establishment of the bank in which that investor holds his or her personal bank account or the place of establishment of the bank in which the investment account is held, or on the basis of some other connecting factor?

The hearing in C-30/20 Volvo e.a., also on Article 7(2) of the Brussels I bis Regulation, will be held on the same day. The preliminary reference, from a commercial court in Madrid (Spain), was lodged on January 22, 2020. It will be decided by the 1st Chamber (Bonichot, Bay Larsen, Toader, Safjan, Jääskinen, with M. Safjian as reporting judge), with the opinion of the French AG, M. Richard de la Tour. At first sight, the question looks like a simple one:

Should Article 7(2) of [the Brussels I bis Regulation] be interpreted as establishing only the international jurisdiction of the courts of the Member State for the aforesaid place, meaning that the national court with territorial jurisdiction within that State is to be determined by reference to domestic rules of procedure, or should it be interpreted as a combined rule which, therefore, directly determines both international jurisdiction and national territorial jurisdiction, without any need to refer to domestic regulation?

That the reference has been allocated to a chamber of five judges, together with the fact that the AG’s view has been requested, certainly means that the decision will go beyond choosing one or the other alternative interpretations.

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

6 comments on “December 2020 at the Court of Justice of the European Union

  1. Eduardo Álvarez-Armas

    I am pretty puzzled by the question in “Volvo e.a.” 🙂 One would think that it is more than settled…

  2. Marta Requejo Isidro

    Dear Eduardo,
    (Good to hear from you :-))

    I believe the reason behind are a couple of decisions of the Spanish Supreme Court confirming that Spanish courts can be considered to have jurisdiction under Article 7(2) of the EU Regulation, but rejecting the proposition that the provision also operates as a direct rule of national territorial jurisdiction. The referring court highlights it in the request. And, yes, it’s puzzling.

  3. Tobias Lutzi

    A very surprising reference indeed. I wonder if it might have been avoided had the Court given a more helpful answer to the question referred in Case C-304/17 Löber… Either way, it’s gonna be an interesting case to follow, now that it has been assigned to a chamber of five.

    • Marta Requejo Isidro

      Hi, Tobias!
      You are right.
      On the other hand, it is surprising how many times a new (or slightly different) request is referred to the Court after a clear decision (I am thinking here about the cases WB and EE, in relation to notaries in a particular role under the Succession regulation). Considering the time and effort the preliminary reference entails for all those who are involved it would be interesting to know more about the reasons: how much is due to lack of awareness, how much to lack of proper understanding, to an unsatisfactory outcome, to the difficult translation into, or compatibility with the national system, etc.

      • Tobias Lutzi

        It would probably be very interesting to study the benefits and pitfalls of Article 267 TFEU in an area such as PIL, which is not only harmonized to a relatively high degree but also practically important enough to provide a constant stream of (seemingly very similar) references.

  4. Ľuboslav Sisák

    I am very happy to see the reference in “Volvo e.a”. The ruling of the CJEU should be helpful especially in a jurisdiction such as for example Slovakia. Here, when one wants to argue the (for PIL-specialists maybe obvious) fact that Article 7(2) is also a rule of territorial jurisdiction, the only usable reference for us are foreign commentaries, since we neither have any national rulings, nor literature on the matter. Hence we can finally refer to something bearing “more authority” when the CJEU comes up with a judgment. Of course, as long as it settles the nature of 7(2) in the sense in which we interpret it today.

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