Sovereign Immunities and the Scope of the Brussels Ibis Regulation after Rina and SHAPE

In 2020, the Court of Justice of the European Union (CJEU) ruled twice on whether sovereign immunities are relevant to define the material scope of the European law of jurisdiction. The first case was concerned with the immunity from jurisdiction of the state of Panama (Rina, case C-641/18: see reports here, here and here). The second was concerned with the immunity from enforcement of an international organisation, the headquarters of NATO (SHAPE, case C-186/19: see reports here and here).

Since the 1968 Brussels Convention, the European law of jurisdiction and judgments has been limited to civil and commercial matters. Most other instruments of European civil procedure have incorporated the same limitation. Since the Eurocontrol case in 1976, the European Court of Justice has consistently defined civil and commercial matters as excluding actions by public authorities acting in the exercise of their powers, i.e. powers falling outside the scope of the ordinary legal rules applicable to relationships between private individuals. This definition has now been codified in Article 1(1) of the Brussels I bis Regulation, which refers to “the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii)”.

The test of acta iure imperii is also widely used to define the scope of sovereign immunities and, in particular, the scope of jurisdictional immunities. It was only logical, therefore, to ask whether the concept of civil and commercial matters should be defined by reference to the definition of sovereign immunities. As explained (but not endorsed) by AG Szpunar in the Rina case, one could argue “that the concept of ‘civil and commercial matters’ should coincide with the negative scope of jurisdictional immunity” (para. 43). The consequence of such an analysis would be that the scope of the Brussels Ibis Regulation would not be defined autonomously, but by reference to other norms which are external to the EU. Sovereign immunities are governed by customary international law but also, to a large extent, by national laws.

The Relevance of International Law: Rina

In Rina, the CJEU seemingly endorsed the idea that international law is relevant to define the scope of the Brussels Ibis Regulation.

The Court started by recognising that “the immunity of States from jurisdiction is enshrined in international law”, which nobody doubts.

The Court, then, reached the troubling conclusion that the test for defining civil and commercial matters should depend on international law. The Court held:

57 In the present case, as the Advocate General stated in points 108 to 128 of his Opinion, the immunity from jurisdiction of bodies governed by private law, such as the Rina companies, is not generally recognised as regards classification and certification operations for ships, where they have not been carried out iure imperii within the meaning of international law.

58  Accordingly, it must be held that the principle of customary international law concerning immunity from jurisdiction does not preclude the application of Regulation No 44/2001 in a dispute relating to an action for damages against bodies governed by private law, such as the Rina companies, on account of the classification and certification activities carried out by them, upon delegation from and on behalf of a third State, where the court seised finds that such bodies have not had recourse to public powers, within the meaning of international law.

The idea that international law should influence the definition of civil and commercial matters raises a number of issues, many of which were pointed out by the AGs in both the Rina and SHAPE cases. In this post, I would like to insist on two of them.

The first is that the content of international law is unclear. As pointed out by AG Szpunar, the international conventions which were adopted in this field were either ratified by few Member States, or never entered into force. A number of courts have stated that the 2004 UN Convention on on Jurisdictional Immunities of States and Their Property is representative of customary public international law, but as the International Court of Justice itself has pointed out, a number of its provisions were hotly debated during the negotiations, and thus cannot be considered as representing any form of international consensus. The truth of the matter is that the international law of sovereign immunities is, on many issues, vague and not clearly defined. In addition, states have long regulated sovereign immunities at national level, whether by statutes or by the courts. If the CJEU were to interpret international law to define civil and commercial matters, it might contribute to the development of international law, but it would also displace the law of sovereign immunities of the Member States and, in effect, engage into a process of harmonisation for which its competence is doubtful.

Conceptually Different Questions Need Not Receive the Same Answer

The second reason why the international law of sovereign immunities should not influence the interpretation of the European law of jurisdiction is that sovereign immunities and international jurisdiction are conceptually different questions. One is concerned with the power of the national courts to entertain actions against foreign states. The other is concerned with the allocation of international cases as between the courts of different states based on the subject matter of the dispute and the connections of the parties with the relevant states. A contractual case like the SHAPE case raises two separate questions. One is whether an international organisation can be sued in the courts of the forum. Another is whether the relevant obligation of the contract was performed on the territory of the forum, or the organisation can be considered to be domiciled there.

This conceptual difference is better perceived in those states where immunities and jurisdiction are sanctioned by different rules.  This is the case, for instance, under French law. A court does not lack jurisdiction to entertain a claim against a foreign state enjoying an immunity, it lacks power. Lack of power may be raised at any point in the proceedings, while objections to jurisdiction must be raised in limine litis.

The Relevance of International law: SHAPE

The SHAPE Court might have wished to deviate from Rina and endorse a different analysis. The Court continued to apply the same test to define civil and commercial matters. However, it refrained from stating “within the meaning of international law“.

Indeed, it referred to, and partly repeated paragraph 58 of the Rina judgment (see above), but omitted those words.

60 So far as concerns, secondly, the immunity from jurisdiction of bodies governed by private law, the Court has held that it does not preclude the application of Regulation No 1215/2012, where the court seised finds that such bodies have not had recourse to public powers (see, to that effect, judgment of 7 May 2020, Rina, C‑641/18, EU:C:2020:349, paragraph 58).

The Court also underlined that immunities and international jurisdiction are two separate questions:

64 In this connection, as the Advocate General observed in point 67 of his Opinion, the mere fact that the national court has assumed international jurisdiction, in the light of the provisions of Regulation No 1215/2012, does not adversely affect the protection of immunity under international law invoked by the international organisation that is party to that dispute.

Let’s forget about international law when interpreting the concept of civil and commercial matters for the purposes of European procedural law.

Immunity from Enforcement

The issue raised in SHAPE was that of the immunity from enforcement of an international organisation. The creditors of the headquarters in Europe of NATO had attached monies on a bank account. The international organisation argued that the funds were covered by its immunity from enforcement, and that the action fell outside of the Brussels I bis Regulation.

The SHAPE Court replied without distinguishing between immunity from enforcement and immunity from jurisdiction. It seemingly considered that both raise the same issue with respect to the influence of sovereign immunities on the definition of civil and commercial matters.

Yet, there are important differences between the two types of immunities. For present purposes, the most important is that the purpose of each immunity is different. Immunity from enforcement does not prevent courts from deciding disputes, it prevents enforcement over assets. In SHAPE, the issue was whether the creditors of NATO could freeze its assets.  The question, therefore, was not whether the action on the merits could be entertained by the forum, but whether it could issue a provisional attachment. The CJEU has consistently held, however, that the question of whether provisional measures in general and provisional attachments in particular fall within the scope of the Brussels I bis Regulation is defined by the substantive rights that the the measures aim to protect (see, in particular, the De Cavel and Van Uden cases). In other words, provisional measures are transparent for defining the concept of civil and commercial matters. If this is the case, specific obstacles to carry out such measures must be irrelevant as well.

The only immunity which could be logically relevant for defining civil and commercial matters is immunity from jurisdiction. And even immunity from jurisdiction should not be.