Case law Developments in PIL

September 2021 at the Court of Justice of the European Union

In September 2021 the Court of Justice of the European Union will deliver several decisions on PIL issues.

The first one, on 9 September, concerns case C-277/20, UM. The request for a preliminary ruling, from the Oberster Gerichtshof (Austria), focuses on the interpretation of Articles 3(1)(b) and 83(2) of Regulation No 650/2012 (the Succession Regulation).

In the case at hand UM, a German national, contests the rejection by the Austrian authorities of his application for inscription in the land Registry of the property right to immovable property located in Austria, which he intends to enforce in the context of an inheritance procedure initiated in Germany on the basis of a donation contract mortis causa. The questions read as follows :

  1. Is Article 3(1)(b) of [the Succession Regulation] 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 [The Succession Regulation] 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 [the Succession Regulation]?

AG J. Richard de la Tour has suggested to answer that Article 3(1)(b) of the Succession Regulation “must be interpreted in the sense that the concept of ‘succession agreement’ includes donation contracts inter vivos, by virtue of which the transfer in favor of the donee of the ownership of one or several assets integrated, although only partially, in the hereditary estate of the donor will, not take place until the death of the latter” (translation by author – the opinion is still unavailable in English).

The decision will be taken by judges J.C. Bonichot, L. Bay Larsen, M. Safjan, N. Jääskinen and C. Toader (reporting judge).

Two further judgments will be published on the same day. Case C-422/20, RK, addresses again the Successions Regulation. Here, the Oberlandesgericht Köln (Higher Regional Court, Cologne, Germany) is asking these questions :

  1. Is it necessary, for a declaration of lack of jurisdiction by the court previously seised, as provided for in Article 7(a) of [the Succession Regulation], 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?
  2. 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 [the Succession Regulation], 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 [the Succession Regulation]?

(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 [the Succession Regulation], 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?

  1. Are Articles 6(a) and 7(a) of [the Succession Regulation], 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?

Last July, AG Szpunar had proposed to answer as follows:

Article 6(a) and Article 7(a) of [the Succession Regulation] must be interpreted as meaning that the jurisdiction of the Member State whose jurisdiction is deemed to result from an objection to the jurisdiction of the court previously seised is not empowered to verify, firstly, whether the court previously seised has, rightly, considered that the law of that Member State has been chosen or is deemed have been chosen to govern the succession ; secondly, if one of the parties to the proceedings has submitted a request under Article 6 (a) of that regulation before the court previously seised and ; thirdly, if the court previously seized has, and rightly so, considered that the courts of that Member State are better placed to rule on the succession, when these three conditions have been verified by the court previously seised » (once again, my translation).

The decision corresponds to judges L. Bay Larsen, N. Jääskinen and C. Toader (reporting judge).

The third decision of 9 September 2021 concerns joined cases C-208/20, Toplofikatsia Sofia e.a., and C-256/20, Toplofikatsia Sofia, on the interpretation of Article 20(2)(a) TFEU, Article 1(1)(a) of Regulation No 1206/2001 (the Evidence Regulation) and Article 5(1) of Regulation No 1215/2012 (Brussels I bis) in relation to (Case C 208/10) civil cases in where the respective opposing party is not yet able to acquire the status of party to the proceedings, because it is impossible to serve judicial documents on the defendants personally, and where their neighbours or relatives have stated that they live in other Member States of the European Union ; and (C 256/20) an order for payment procedure in which it is impossible to serve an order for payment on a debtor whose neighbour states that she lives in another Member State of the European Union.

The questions referred by the Sofiyski rayonen sad (Bulgaria) in C-208/20 are :

  1. Must Article 20(2)(a) of the Treaty on the Functioning of the European Union, in conjunction with the second paragraph of Article 47 of the Charter of Fundamental Rights, the principles of non-discrimination and the equivalence of procedural measures in national judicial proceedings and Article 1[(1)](a) of [the Evidence Regulation] be interpreted as meaning that, where the national law of the court seised provides that the latter is to obtain, of its own motion, information regarding the defendant’s address in its own State and it is established that the defendant is in another State of the European Union, the national court seised is obliged to obtain information regarding the defendant’s address from the competent authorities of the State in which he resides?
  2. Must Article 5(1) of [the Brussels I bis Regulation], in conjunction with the principle that the national court must guarantee procedural rights for the effective protection of rights arising from EU law, be interpreted as meaning that, when determining the habitual residence of a debtor as a condition required under national law for the conduct of unilateral formal proceedings in which evidence is not taken, such as order for payment procedures, the national court is obliged to interpret any reasonable suspicion that the debtor is habitually resident in another State of the European Union as a lack of a legal basis for issuing an order for payment or as a basis for the order for payment not acquiring the force of res judicata?
  3. Must Article 5(1) of [the Brussels I bis Regulation], in conjunction with the principle that the national court must guarantee procedural rights for the effective protection of rights deriving from EU law, be interpreted as meaning that a national court, which, after having issued an order for payment against a particular debtor, has established that that debtor is unlikely to be habitually resident in the State of the court and, provided that this constitutes an obstacle to the issuing of an order for payment against such a debtor under national law, is obliged to annul, of its own motion, the order for payment issued, despite the absence of an express statutory provision to that effect?
  4. If the third question is answered in the negative, are the provisions referred to in that question to be interpreted as obliging the national court to annul the order for payment issued where it has carried out a check and established with certainty that the debtor is not habitually resident in the State of the court seised?

Questions 2 to 4 are common to case C 256/20.

The Court required no AG’s opinion . The decision will be taken by a chamber of three judges – L. Bay Larsen, M. Safjan and R. Silva de Lapuerta, the latter as reporting judge.

The same day (i.e., Thursday 9th September), AG Rantos will deliver his opinion in C-581/20, TOTO. This request for a preliminary ruling from the Varhoven kasatsionen sad (Bulgaria) requires the interpretation of Article 31 of the Brussels I bis Regulation :

    1. Is Article 1 of [the Brussels I bis Regulation] 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?
    2.  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 [the Brussels I bis Regulation] 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?
    3. If it follows from the answers to the first two questions referred that the court seised of an application under Article 35 of [the Brussels I bis Regulation] has jurisdiction, must the conditions for the ordering of protective measures under Article 35 of [the Brussels I bis Regulation] 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?

The appointed judges are J.C. Bonichot, L. Bay Larsen, M. Safjan, N. Jääskinen and C. Toader, with judge Toader reporting.

AG Saugmandsgaard Øe’s opinion on C-242/20, HRVATSKE ŠUME, is to be delivered the same day. The reference for a preliminary ruling comes from Visoki trgovački sud Republike Hrvatske (Croatia), based on doubts regarding (still) Regulation No 44/2001 (Brussels I)

    1. Do actions for recovery of sums unduly paid by way of unjust enrichment fall within the basic jurisdiction established in [the Brussels I  Regulation] in respect of ‘quasi-delicts’, since Article 5(3) thereof provides inter alia: ‘A person domiciled in a Member State may, in another Member State, be sued … in matters relating to … quasi-delict, in the courts for the place where the harmful event occurred or may occur’?
    2. Since there is a time limit on seeking recovery of sums unduly paid in the same judicial enforcement proceedings, do civil proceedings which have been initiated fall within exclusive jurisdiction under Article 22(5) of [the Brussels I Regulation] which provides that in proceedings concerned with the enforcement of judgments, the courts of the Member State in which the judgment has been or is to be enforced is to have exclusive jurisdiction, regardless of domicile?

Judges M. Vilaras, N. Piçarra, D. Šváby, S. Rodin and K. Jürimäe (reporting), will decide.

AG Campos Sánchez-Bordona’s opinion on C-296/20, Commerzbank, is expected as well on 9 September 2021. The Bundesgerichtshof (Germany) referred two questions to the Court of Justice on the interpretation of the Lugano Convention 2007:

    1. Is Article 15(1)(c) of the Lugano Convention to be interpreted as meaning that the ‘pursuit’ of a professional or commercial activity in the State bound by the Convention and in which the consumer is domiciled presupposes that the other party was already engaged in cross-border activity at the time when the contract was initiated and concluded or does that provision also apply for the purpose of determining the court having jurisdiction to hear proceedings where the parties were domiciled within the meaning of Articles 59 and 60 of the Lugano Convention in the same State bound by the Convention at the time when the contract was concluded and a foreign element to the legal relationship arose only subsequently because the consumer relocated at a later date to another State bound by the Convention?
    2. If cross-border activity at the time when the contract was concluded is not necessary: Does Article 15(1)(c) of the Lugano Convention, read in conjunction with Article 16(2) thereof, generally preclude determination of the court having jurisdiction in accordance with Article 5(1) of the Lugano Convention in the case where the consumer relocated to another State bound by the Convention between the time when the contract was concluded and the time when the proceedings were brought, or is it also necessary for the professional or commercial activities of the other party to be pursued in or directed to the new State of domicile and for the contract to come within the scope of such activities?

The deciding chamber will be composed by judges L. Bay Larsen, M. Safjan and C. Toader (reporting). Their interpretation will of course be relevant as well for Regulation n.º 1215/2012. Reciprocally, it is to be expected that the questions are answered, at least partially, in light of the mBank decision of September 3, 2020 (Case C-98/20).

No other PIL-related opinion will be delivered until Thursday 16 September.

AG Hogans’ on C-251/20, Gtflix Tv, will then be published upon request for a preliminary ruling from the Cour of Cassation (France). Once again Article 7(2) of the Brussels I bis regulation is at stake. The case having been allocated to the Grand Chamber it seems worth recalling the facts as well.

According to the judgment under appeal (the Lyon [Court of Appeal]), the Czech company Gtflix Tv, engaged in the production and broadcasting of adult content, in particular via its website, complained that DR — a director, producer and distributor of pornographic films offered on websites hosted in Hungary, where he carries on his business and is domiciled — had disseminated derogatory comments on a number of websites and forums. After giving DR formal notice to remove those comments, Gtflix Tv brought proceedings for interim measures before the President of the tribunal de grande instance de Lyon (Lyon Regional Court) seeking an order requiring DR, on pain of a penalty, to cease all derogatory acts towards Gtflix Tv and the website ‘legalporno’ and to publish a legal statement in French and English on each of the forums concerned. Gtflix Tv also sought permission to post its own comments on the forums in question and, lastly, a symbolic award of compensation in the amount of EUR 1 for material damage and EUR 1 for non-material damage.

DR argued that the French courts lacked jurisdiction. On appeal, Gtflix Tv restated its requests for removal and rectification and raised its application for damages to the provisional sum of EUR 10 000 in respect of material and non-material damage sustained in France.

The question asked reads :

Must Article 7(2) of [he Brussels I bis Regulation] be interpreted as meaning that a person who, considering  that his or her rights have been infringed by the dissemination of derogatory comments on the internet, brings proceedings not only for the rectification of information and the removal of content but also for compensation for the resulting non-material and material damage, may claim, before the courts of each Member State in the territory of which content published online is or was accessible, compensation for the damage caused in the territory of that Member State, in accordance with the judgment in eDate Advertising (paragraphs 51 and 52), or whether, pursuant to the judgment in Svensk Handel (paragraph 48), that person must make the application for compensation before the court with jurisdiction to order rectification of the information and removal of the derogatory comments?

M. Safjian will act as reporting judge.

The month will end (for PIL purposes) with the hearing, also on 16 September, in case C-501/20, M P A, from the Provincial Court of Barcelona (Spain). The referring court has several doubts regarding Regulation No 2201/2003 (Brussels II bis) and Regulation No 4/2009 (the Maintenance Regulation):

    1. How is the term “habitual residence” in Article 3 of [the Brussels II bis Regulation] and Article 3 of [the Maintenance Regulation] to be interpreted in the case of the nationals of a Member State who are staying in a non-Member State by reason of the duties conferred on them as members of the contract staff of the European Union and who, in the non-Member State, are recognised as members of the diplomatic staff of the European Union, when their stay in that State is linked to the performance of their duties for the European Union?
    2. If, for the purposes of Article 3 [the Brussels II bis Regulation] and Article 3 of [the Maintenance Regulation], the determination of the habitual residence of the spouses depended on their status as EU contract staff in a non-Member State, how would this affect the determination of the habitual residence of the minor children in accordance with Article 8 of Regulation No 2201/2003?
    3. In the event that the children are not regarded as habitually resident in the non-Member State, can the connecting factor of the mother’s nationality, her residence in Spain prior to the marriage, the Spanish nationality of the minor children and their birth in Spain be taken into account for the purposes of determining habitual residence in accordance with Article 8 of [the Brussels II bis Regulation]?
    4. If it is established that the parents and children are not habitually resident in a Member State, given that, under [the Brussels II bis Regulation] there is no other Member State with jurisdiction to decide on the applications, does the fact that the defendant is a national of a Member State preclude the application of the residual clause contained in Articles 7 and 14 of [the Brussels II bis Regulation]?
    5. If it is established that the parents and children are not habitually resident in a Member State for the purpose of determining child maintenance, how is the forum necessitatis in Article 7 of [the Maintenance Regulation] to be interpreted and, in particular, what are the requirements for considering that proceedings cannot reasonably be brought or enforced or prove impossible in a non-Member State with which the dispute is closely connected (in this case, Togo)? Must the party have initiated or attempted to initiate proceedings in that State with a negative result and does the nationality of one of the parties to the dispute constitute a sufficient connection with the Member State?
    6. In a case like this, where the spouses have strong links with Member States (nationality, former residence), is it contrary to Article 47 of the Charter of Fundamental Rights if no Member State is considered to have jurisdiction under the provisions of the Regulations?

M. Szpunar’s opinion has been asked. The decision is to be taken by A. Prechal, N. Wahl, F. Biltgen, J. Passer and L.S. Rossi, the latter as reporting judge.

NoA : Just for the record, the hearing in C-319/20, Facebook Ireland, on the GDPR, takes place one week later. The question referrered to the Court by the Bundesgerichtshof (Federal Court of Justice, Germany) is:

Do the rules in Chapter VIII, in particular in Article 80(1) and (2) and Article 84(1), of Regulation (EU) 2016/679 preclude national rules which – alongside the powers of intervention of the supervisory authorities responsible for monitoring and enforcing the Regulation and the options for legal redress for data subjects – empower, on the one hand, competitors and, on the other, associations, entities and chambers entitled under national law, to bring proceedings for breaches of Regulation (EU) 2016/679, independently of the infringement of specific rights of individual data subjects and without being mandated to do so by a data subject, against the infringer before the civil courts on the basis of the prohibition of unfair commercial practices or breach of a consumer protection law or the prohibition of the use of invalid general terms and conditions?

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

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