La Ley – Unión Europea is a Spanish journal published monthly by Wolters Kluwer under the editorship of Professor Fernández Rozas (University Complutense, Madrid). It comprises several sections; contributions are classified depending on their length and nature – whether analytical or descriptive. Although not exclusively devoted to private international law, every issue contains at least an in-depth comment to a decision of the Court of Justice related to judicial cooperation on civil and commercial matters. An English abstract is attached to all of them.
A personal selection of five (random number) articles published in 2021, in chronological order:
Rafael Arenas García (University Autónoma of Barcelona), Jurisdiction over rights in rem in immovable property and jurisdiction in contractual matters in the case law of the Court of Luxembourg, La Ley-Unión Europea February 2021 – commenting C-433/19, Ellmes Property service Limited.
The judgment of November 11, 2020 interprets both the exclusive ground of jurisdiction in proceedings which have as their object rights in rem in immovable property and the ground of jurisdiction in matter relating to a contract of art. 7.1 of Regulation 1215/2012. Regarding the first of these forums, the Court considers that an action must be regarded as constituting an action «which has as its object rights in rem in immovable property, provided that the action may be relied erga omnes. With regard to the contractual forum, it is especially significant that the Court determines directly the place of fulfilment of the obligation without considering the governing law of the obligation according with the conflict rules of the court seised.
Ángel Espiniella Menéndez (University of Oviedo), Cross-Border Payments by Subrogation after the Insolvency, La Ley – Unión Europea September 2021, commenting (very critically) on C- 73/20, ZM.
The Judgment analyses the case of a cross-border payment made by the debtor by subrogation and after the opening of the insolvency proceeding. The Court considers that this payment shall be governed by the law of the contract and not by the law of the insolvency proceeding. A very doubtful conclusion which is contrary to the equal treatment of creditors.
Santiago Álvarez González (University of Santiago de Compostela), A new, provisional and debatable delimitation of international jurisdiction over violations of personality rights, La Ley – Unión Europea September 2021, commenting (again, very critically) on C-800/19, Mittelbayerischer Verlag.
On 17 June 2021 the Court of Justice of the EU pronounced a judgment in case C-800/19, Mittelbayerischer Verlag KG v. SM. The ECJ held that «Article 7(2) of Regulation (EU) n.o 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that the courts of the place in which the centre of interests of a person claiming that his or her personality rights have been infringed by content published online on a website is situated have jurisdiction to hear, in respect of the entirety of the alleged damage, an action for damages brought by that person only if that content contains objective and verifiable elements which make it possible to identify, directly or indirectly, that person as an individual».The author does not consider that the new ECJ judgement is justified by the predictability of the rules of jurisdiction laid down by Regulation no 1215/2012, the legal certainty which that regulation seeks to guarantee, or the sound administration of justice as the ECJ does. Furthermore, he thinks that all these objectives should lead down to an entire reconsideration of the ECJ doctrine on «centre of interests» and the «mosaic approach» in the framework of art. 7.2 Regulation no. 1215/2012.
(Follow up: a note by Pedro de Miguel on C-251/20, Gtflix tv is expected in La Ley, in January 2022)
Pilar Jiménez Blanco (University of Oviedo), The procedural risks of changing the consumer’s domicile: do the Brussels I bis Regulation and the Lugano convention need a reform?, La Ley-Unión Europea November 2021, on C-296/20, Commerzbank.
The Commerzbank Judgment shows the risks derived from the change of domicile of the consumer after the conclusion of the contract in the cases of passive consumer of art. 17.1.c) of the Brussels I bis Regulation [art. 15.1.c) of the Lugano Convention]. Such risks must be assumed when the consumer is the defendant, considering only the domicile at the time of filing the claim. However, these risks break with the predictability of the competence when the consumer is the plaintiff and the professional has not pursued or directed his commercial or professional activities to the State of the new domicile. Here is a reflection on the opportunity to adapt the Brussels Ia Regulation and the Lugano Convention to this situation.
Francisco Manuel Mariño Pardo (Notary), European Certificate of Succession. Temporary effectiveness of authentic copies and effectiveness with respect to the persons designated therein, La Ley-Unión Europea December 2021, on C-301/20, UE, HC y Vorarlberger Landes-und Hypothekenbank, with the added value of the author’s reflections on the impact on the Spanish notarial practice.
On its judgment of 1st. July 2021, the ECJ held that article 70(3) of Regulation (EU) n.o 650/2012 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; and that article 65(1) of the same Regulation, read in conjunction with its Article 69(3), 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.This paper analyzes the ECJ judgment and add some thoughts on its effects on the Spanish notary activity.
A personal selection of five (random number) articles published in 2021, in chronological order:
Rafael Arenas García (University Autónoma of Barcelona), Jurisdiction over rights in rem in immovable property and jurisdiction in contractual matters in the case law of the Court of Luxembourg, La Ley-Unión Europea February 2021 – commenting C-433/19, Ellmes Property service Limited.
The judgment of November 11, 2020 interprets both the exclusive ground of jurisdiction in proceedings which have as their object rights in rem in immovable property and the ground of jurisdiction in matter relating to a contract of art. 7.1 of Regulation 1215/2012. Regarding the first of these forums, the Court considers that an action must be regarded as constituting an action «which has as its object rights in rem in immovable property, provided that the action may be relied erga omnes. With regard to the contractual forum, it is especially significant that the Court determines directly the place of fulfilment of the obligation without considering the governing law of the obligation according with the conflict rules of the court seised.
Ángel Espiniella Menéndez (University of Oviedo), Cross-Border Payments by Subrogation after the Insolvency, La Ley – Unión Europea September 2021, commenting (very critically) on C- 73/20, ZM.
The Judgment analyses the case of a cross-border payment made by the debtor by subrogation
and after the opening of the insolvency proceeding. The Court considers that this payment shall be governed by the law of the contract and not by the law of the insolvency proceeding. A very doubtful conclusion which is contrary to the equal treatment of creditors.
Santiago Álvarez González (University of Santiago de Compostela), A new, provisional and debatable delimitation of international jurisdiction over violations of personality rights, La Ley – Unión Europea September 2021, commenting (again, very critically) on C-800/19, Mittelbayerischer Verlag.
On 17 June 2021 the Court of Justice of the EU pronounced a judgment in case C-800/19,
Mittelbayerischer Verlag KG v. SM. The ECJ held that «Article 7(2) of Regulation (EU) n.o 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that the courts of the place in which the centre of interests of a person claiming that his or her personality rights have been infringed by content published online on a website is situated have jurisdiction to hear, in respect of the entirety of the alleged damage, an action for damages brought by that person only if that content contains objective and verifiable elements which make it possible to identify, directly or indirectly, that person as an individual».The author does not consider that the new ECJ judgement is justified by the predictability of the rules of jurisdiction laid down by Regulation no 1215/2012, the legal certainty which that regulation seeks to guarantee, or the sound administration of justice as the ECJ does. Furthermore, he thinks that all these objectives should lead down to an entire reconsideration of the ECJ doctrine on «centre of interests» and the «mosaic approach» in the framework of art. 7.2 Regulation no. 1215/2012.
(Follow up: a note by Pedro de Miguel on C-251/20, Gtflix tv is expected in La Ley, in January 2022)
Pilar Jiménez Blanco (University of Oviedo), The procedural risks of changing the consumer’s domicile: do the Brussels I bis Regulation and the Lugano convention need a reform?, La Ley-Unión Europea November 2021, on C-296/20, Commerzbank.
The Commerzbank Judgment shows the risks derived from the change of domicile of the consumer
after the conclusion of the contract in the cases of passive consumer of art. 17.1.c) of the Brussels I bis
Regulation [art. 15.1.c) of the Lugano Convention]. Such risks must be assumed when the consumer is the defendant, considering only the domicile at the time of filing the claim. However, these risks break with the predictability of the competence when the consumer is the plaintiff and the professional has not pursued or directed his commercial or professional activities to the State of the new domicile. Here is a reflection on the opportunity to adapt the Brussels Ia Regulation and the Lugano Convention to this situation.
Francisco Manuel Mariño Pardo (Notary), European Certificate of Succession. Temporary effectiveness of authentic copies and effectiveness with respect to the persons designated therein, La Ley-Unión Europea December 2021, on C-301/20, UE, HC y Vorarlberger Landes-und Hypothekenbank, with the added value of the author’s reflections on the impact on the Spanish notarial practice.
On its judgment of 1st. July 2021, the ECJ held that article 70(3) of Regulation (EU) n.o 650/2012
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; and that article 65(1) of the same Regulation, read in conjunction with its Article 69(3), 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.This paper analyzes the ECJ judgment and add some thoughts on its effects on the Spanish notary activity.
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