Case law Developments in PIL

July 2021 at the Court of Justice of the European Union

July is a short month at the Court of Justice, but a busy one.

Already on 1 July 2021 the judgment on C-301/20, Succession de VJ, was published. The questions, on the European certificate  of succession and copies of it, had been referred by the Austrian Supreme Court:

(1) Is Article 70(3) of Regulation No 650/2012 to be interpreted as meaning that a copy of the certificate issued, in disregard of that provision, without indicating an expiry date, for an unlimited period,
–        is valid and effective indefinitely, or
–        is valid only for a period of six months from the date of issue of the certified copy, or
–        is valid only for a period of six months from another date, or
–        is invalid and unsuitable for use within the meaning of Article 63 of Regulation No 650/2012?

(2) Is Article 65(1) read in conjunction with Article 69(3) of that regulation to be interpreted as meaning that the certificate produces effects in favour of all persons who are mentioned on the certificate by name as heirs, legatees, executors of wills or administrators of the estate, with the result that even those who have not applied for the issue of the certificate themselves can use that certificate pursuant to Article 63 of regulation No 650/2012?

(3) Must Article 69 read in conjunction with Article 70(3) of that regulation be interpreted as meaning that the legitimising effect of the certified copy of a certificate of succession must be recognised if it was still valid when it was first submitted but expired before the requested decision of the authority, or does that provision not preclude national law if the latter requires the certificate to be valid even at the time of the decision?’

AG Campos Sánchez-Bordona’s opinion, focused on the third question, had been released on 29 April 2021. The Court (6th Chamber: L Bay Larsen, N. Jääskinen and C. Toader as reporting judge) has ruled as follows:

(1) Article 70(3) of Regulation (EU) No 650/2012 [on] matters of succession … must be interpreted as meaning that a certified copy of the European Certificate of Succession, bearing the words ‘unlimited duration’, is valid for a period of six months from the date of issue and produces its effects, within the meaning of Article 69 of that regulation, if it was valid when it was presented to the competent authority;

(2) Article 65(1) of Regulation No 650/2012, read in conjunction with Article 69(3) of that regulation, must be interpreted as meaning that the effects of the European Certificate of Succession are produced with respect to all persons who are named therein, even if they have not themselves requested that it be issued.

AG Richard de la Tour’s opinion on C-277/20, UM (contrat translatif de propriété mortis causa), a request from the same court (i.e., the Austrian Supreme Court), was published as well on 1 July 2021. The main  question concerns a donation mortis causa and whether it falls under the scope of the Regulation:

(1) Is Article 3(1)(b) of Regulation (EU) No 650/2012 [on] matters of succession … to be interpreted as meaning that a contract of donation mortis causa entered into between two German nationals habitually resident in Germany in respect of real estate located in Austria, granting the donee a right having the character of an obligation against the estate to registration of his title after the donor’s death pursuant to that contract and the donor’s death certificate, that is without the intervention of the probate court, is an agreement as to succession within the meaning of that provision?

(2) If the answer to the above question is in the affirmative: Is Article 83(2) of Regulation No 650/2012 to be interpreted as meaning that it also regulates the effect of a choice of applicable law made before 17 August 2015 for a contract of donation mortis causa that is to be qualified as an agreement as to succession within the meaning of Article 3(1)(b) of Regulation No 650/2012?

According to Richard de la Tour, it does (the translation is mine):

Article 3(1)(b) of Regulation (EU) No 650/2012 … must be interpreted as meaning that the concept of “pact of succession” includes deeds of inter vivos gift in by virtue of which the transfer, in favor of the donee, of the ownership of a good or of goods which even partially constitute the inheritance of the donor takes place only on his death.

Two opinions of direct PIL interest are scheduled for 8 July 2021, starting with AG Campos Sánchez-Bordonas’ in case C-289/20, IB. The question was referred from the Cour d’appel de Paris. It reads as follows:

Where, as in the present case, it is apparent from the factual circumstances that one of the spouses divides his time between two Member States, is it permissible to conclude, in accordance with and for the purposes of the application of Article 3 of Regulation (EC) No 2201/2003, that he or she is habitually resident in two Member States, such that, if the conditions listed in that article are met in two Member States, the courts of those two States have equal jurisdiction to rule on the divorce?

The decision will be taken by a chamber of five judges: S. Prechal, N. Wahl, F. Biltgen, J. Passer, and L.S. Rossi as reporting judge.

The same day AG M. Szpunar will present his opinion on C-422/20, RK, on the successions regulation. The requests comes from the Oberlandesgericht Köln (Germany) :

Is it necessary, for a declaration of lack of jurisdiction by the court previously seised, as provided for in Article 7(a) of Regulation No 650/2012, that that court should expressly decline jurisdiction, or may even a non-express declaration suffice if it supports the inference, through interpretation, that that court has declined jurisdiction?

Is the court of the Member State whose jurisdiction is intended to follow from a declaration of lack of jurisdiction by the court previously seised in the other Member State competent to examine whether the conditions governing a decision by the court previously seised, as provided for in Articles 6(a) and 7(a) of Regulation No 650/2012, were met? To what extent is the decision of the court previously seised binding? In particular: (a) Is the court of the Member State whose jurisdiction is intended to follow from a declaration of lack of jurisdiction by the court previously seised in the other Member State competent to examine whether the deceased validly chose the law of the Member State in accordance with Article 22 of Regulation No 650/2012? (b) Is the court of the Member State whose jurisdiction is intended to follow from a declaration of lack of jurisdiction by the court first seised in the other Member State competent to examine whether a request for a declaration of lack of jurisdiction, as provided for in Article 6(a) of Regulation No 650/2012, has been brought by one of the parties to the proceedings before the court previously seised? (c) Is the court of the Member State whose jurisdiction is intended to follow from a declaration of lack of jurisdiction by the court first seised in the other Member State competent to examine whether the court previously seised rightly assumed that the courts of the Member State of the chosen law are better placed to rule on the succession?

Are Articles 6(a) and 7(a) of Regulation No 650/2012, which presuppose a choice of law ‘pursuant to Article 22’, applicable even where the deceased has made no express or implied choice of law in a testamentary disposition made before 17 August 2015, but the law applicable to the succession is capable of being inferred only from Article 83(4) of Regulation No 650/2012?

Judges Bay Larsen, Toader and Jääskinen will be in charge, with C. Toader acting as reporting judge.

A hearing will take place the same day on C-421/20, Acacia, from the Oberlandesgericht Düsseldorf (Germany). The case has been allocated to judges E. Regan, K. Lenaerts, M. Ilešič, I. Jarukaitis and C. Lycourgos (reporting judge):

In proceedings for an infringement of Community designs, can the national court dealing with the infringement proceedings having international jurisdiction pursuant to Article 82(5) of the Community Designs Regulation apply the national law of the Member State in which the court dealing with the infringement proceedings is situated (lex fori) to subsequent claims in relation to the territory of its Member State?

If Question 1 is answered in the negative: Can the ‘initial place of infringement’ for the purposes of the CJEU judgments in Cases C-24/16, C-25/16, Nintendo, regarding the determination of the law applicable to subsequent claims under Article 8(2) of Regulation (EC) No 864/2007 … on the law applicable to non-contractual obligations (‘Rome II’) also lie in the Member State where the consumers to whom internet advertising is addressed are located and where goods infringing designs are put on the market within the meaning of Article 19 of the Community Designs Regulation, in so far as only the offering and the putting on the market in that Member State are challenged, even if the internet offers on which the offering and the putting on the market are based were launched in another Member State?

AG P. Pikamäe’s opinion on C-262/21 PPU, A, is expected on 14 July 2021. The case, from the Korkein oikeus (Finland), requires the interpretation of Regulation 2201/2003 in relation to the Dublin III Regulation. The 1980 Hague Convention is also at stake:

Must Article 2(11) of Regulation (EC) No 2201/2003 [on] matrimonial matters and the matters of parental responsibility … (‘the Brussels II bis Regulation’), relating to the wrongful removal of a child, be interpreted as meaning that a situation in which one of the parents, without the other parent’s consent, removes the child from his or her place of residence to another Member State, which is the Member State responsible under a transfer decision taken by an authority in application of Regulation (EU) No 604/2013 of the European Parliament and of the Council (‘the Dublin III Regulation’), must be classified as wrongful removal?

If the answer to the first question is in the negative, must Article 2(11) of the Brussels II bis Regulation, relating to wrongful retention, be interpreted as meaning that a situation in which a court of the child’s State of residence has annulled the decision taken by an authority to transfer examination of the file, but in which the child whose return is ordered no longer has a currently valid residence document in his or her State of residence, or the right to enter or to remain in the State in question, must be classified as wrongful retention?

If, in the light of the answer to the first or the second question, the Brussels II bis Regulation must be interpreted as meaning that there is a wrongful removal or retention of the child, and that he or she should therefore be returned to his or her State of residence, must Article 13(b) of the 1980 Hague Convention be interpreted as precluding the child’s return, either (i) on the ground that there is grave risk, within the meaning of that provision, that the return of an unaccompanied infant whose mother has personally taken care of him or her would expose that child to physical or psychological harm or otherwise place the child in an intolerable situation; or (ii) on the ground that the child, in his or her State of residence, would be taken into care and placed in a hostel either alone or with his or her mother, which would indicate that there is a grave risk, within the meaning of that provision, that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation: or (iii) on the ground that, without a currently valid residence document, the child would be placed in an intolerable situation within the meaning of that provision?

If, in the light of the answer to the third question, it is possible to interpret the grounds of refusal in Article 13(b) of the 1980 Hague Convention as meaning that there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation, must Article 11(4) of the Brussels II bis Regulation, in conjunction with the concept of the child’s best interests, referred to in Article 24 of the Charter of Fundamental Rights of the European Union and in that regulation, be interpreted as meaning that, in a situation in which neither the child nor the mother has a currently valid residence document in the child’s State of residence, and in which therefore have neither the right to enter nor the right to remain in that State, the child’s State of residence must make adequate arrangements to secure that the child and his or her mother can lawfully remain in the Member State in question? If the child’s State of residence has such an obligation, must the principle of mutual trust between Member States be interpreted as meaning that the State which returns the child may, in accordance with that principle, presume that the child’s State of residence will fulfil those obligations, or do the child’s interests make it necessary to obtain from the authorities of the State of residence details of the specific measures that have been or will be taken for the child’s protection, so that the Member State which surrenders the child may assess, in particular, the adequacy of those measures in the light of the child’s interests?

If the child’s State of residence does not have the obligation, referred to above in the fourth question, to take adequate measures, is it necessary, in the light of Article 24 of the Charter of Fundamental Rights, to interpret Article 20 of the 1980 Hague Convention, in the situations referred to in the third question, points (i) to (iii), as meaning that that provision precludes the return of the child because the return of the child might be considered to be contrary, within the meaning of that provision, to the fundamental principles relating to the protection of human rights and fundamental freedoms?

Judges J.C. Bonichot (as reporting judge), L. Bay Larsen, C. Toader, M. Safjan and N. Jääskinen have been appointed to this preliminary ruling.

The judgement on C-30/20, Volvo, a request from the Juzgado de lo Mercantil nº 2 de Madrid (Spain) will be published the following day:

Should Article 7(2) of Regulation (EU) No 1215/2012 … on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, which establishes that a person domiciled in a Member State may be sued in another Member State: ‘… in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur’, 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?

AG Richard de la Tour’s opinion  was delivered on 22 April 2021. The chamber is composed by judges J.C. Bonichot, L. Bay Larsen, C. Toader, M. Safjan (as reporting judge) and N. Jääskinen.

The decision of the same chamber on joined cases C-152/20 SC Gruber Logistics – C-218/20 Sindicatul Lucrătorilor din Transporturi, both from the Tribunalul Mureș (Romania), will be published on the same day. The questions referred are quite similar.

The questions in C-152/20 were phrased as follows:

Is Article 8 of Regulation (EC) No 593/2008 [on the law applicable to contractual obligations, ‘Rome I’] to be interpreted as meaning that the choice of law applicable to an individual employment contract excludes the application of the law of the country in which the employee has habitually carried out his or her work or as meaning that the fact that a choice of law has been made excludes the application of the second sentence of Article 8(1) of that regulation?

Is Article 8 of [the Rome I Regulation] to be interpreted as meaning that the minimum wage applicable in the country in which the employee has habitually carried out his or her work is a right that falls within the scope of ‘provisions that cannot be derogated from by agreement under the law that, in the absence of choice, would have been applicable’, within the meaning of the second sentence of Article 8(1) of the regulation?

Is Article 3 of [the Rome I Regulation] to be interpreted as meaning that the specification, in an individual employment contract, of the provisions of the Romanian Labour Code does not equate to a choice of Romanian law, in so far as, in Romania, it is well-known that there is a legal obligation to include such a choice-of-law clause in individual employment contracts? In other words, is Article 3 of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 to be interpreted as precluding national rules and practices pursuant to which a clause specifying the choice of Romanian law must necessarily be included in individual employment contracts?

And here are the questions raised in C-218/20:

Interpretation of Article 8 of [the Rome I Regulation]: does the choice of law applicable to an individual employment contract exclude the application of the law of the country in which the employee has habitually carried out his or her work or does the fact that a choice of law has been made exclude the application of the second sentence of Article 8(1) of that regulation?

Interpretation of Article 8 of [the Rome I Regulation]: is the minimum wage applicable in the country in which the employee has habitually carried out his or her work a right that falls within the scope of ‘provisions that cannot be derogated from by agreement under the law that, in the absence of choice, would have been applicable’, within the meaning of the second sentence of Article 8(1) of the regulation?

Interpretation of Article 3 of [the Rome I Regulation]: does the specification, in an individual employment contract, of the provisions of the Romanian Labour Code equate to a choice of Romanian law, in so far as, in Romania, it is well-known that the employer predetermines the content of the individual employment contract?

AG Campos Sánchez-Bordona’s opinion, of 22 April 2021, is not available in English yet.

The same day, a hearing is foreseen on case C-581/20, TOTO, on provisional measures under Regulation 1215/2012, among other:

Is Article 1 of Regulation (EU) No 1215/12 … to be interpreted as meaning that a case such as that described in this order for reference must be regarded in whole or in part as a civil or commercial matter within the meaning of Article 1(1) of that regulation?

After the right to make an application for provisional/protective measures has been exercised and the court having jurisdiction as to the substance of the matter has already ruled on that application, is the court seised of an application for interim relief on the same basis and under Article 35 of Regulation (EU) No 1215/12 … to be regarded as not having jurisdiction from the point at which evidence is produced that the court having jurisdiction as to the substance of the matter has given a ruling on that application?

If it follows from the answers to the first two questions referred that the court seised of an application under Article 35 of Regulation (EU) No 1215/12 … has jurisdiction, must the conditions for the ordering of protective measures under Article 35 of Regulation (EU) No 1215/12 of the European Parliament and of the Council be interpreted independently? Should a provision which does not allow a protective measure to be ordered against a public body in a case such as the present one be disapplied?

Once again, judges J.C. Bonichot, L. Bay Larsen, M. Safjan, N. Jääskinen and C. Toader have been appointed, this time with C. Toader acting as reporting judged.

Summer holiday starts on 16 July 2021.

(NoA: worth reading as well is AG M. Szpunar’s opinion on the cassation appeal C-638/19 P, regarding investment arbitration and state aid, published on 1 July 2021; a press release in French is available here).

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

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