Case law Developments in PIL

June 2022 at the Court of Justice of the European Union

June 2022 starts at the Court of Justice with the publication of two decisions of PIL interest this Thursday, 2 June.

The first one, in case C-617/20, T.N. and N.N., focuses on the interpretation of Articles 13 and 28 of the EU Succession Regulation. The Hanseatisches Oberlandesgericht in Bremen (Germany), sent the following questions to the Court of Justice:

  1. Does a declaration concerning the waiver of succession by an heir before the court of a Member State that has jurisdiction for the place of his or her habitual residence, which complies with the formal requirements applicable there, replace the declaration concerning the waiver of succession to be made before the court of another Member State that has jurisdiction to rule on the succession, in such a way that when that declaration is made, it is deemed to have been validly made (substitution)?
  2. If Question 1 is to be answered in the negative: In addition to making a declaration before the court that has jurisdiction for the place of habitual residence of the party waiving succession which complies with all formal requirements, is it necessary, in order for the declaration concerning the waiver of succession to be valid, that the latter inform the court that has jurisdiction to rule on the succession that the declaration concerning the waiver of succession has been made?
  1. If Question 1 is to be answered in the negative and Question 2 in the affirmative:

a. Is it necessary that the court that has jurisdiction to rule on the succession be addressed in the official language of the location of that court in order for the declaration concerning the waiver of succession to be valid and, in particular, in order to comply with the time limits applicable for making such declarations before that court?

b. Is it necessary that the court that has jurisdiction to rule on the succession receive the original documents drawn up in relation to the waiver by the court that has jurisdiction for the place of habitual residence of the party waiving succession and a translation thereof in order for the declaration concerning the waiver of succession to be valid and, in particular, in order to comply with the time limits applicable for making such declarations before the court that has jurisdiction to rule on the succession?

On 20 January 2022, Advocate General Szpunar had proposed to answer (the Opinion is not yet available in English) :

Articles 13 and 28 of Regulation (EU) No. 650/2012 (…) must be interpreted in the sense that the requirement, provided for in the law applicable to the succession, to submit the declaration regarding the waiver of succession to the competent court, that is to say the court of the habitual residence of the deceased at the time of death, constitutes a condition for the formal validity of the declaration. Therefore, in the event that the formal validity of said declaration is assessed in light of the law indicated in article 28, letter b), of the Regulation, non-compliance with that requirement does not entail invalidity of a statement made before the competent court pursuant to article 13 of Regulation No. 650/2012.

The deciding Chamber is composed by M. Ilešič (reporting judge) E. Regan, I. Jarukaitis, D. Gratsias, and Z. Csehi.

Also on 2 June 2022, a chamber of three judges (J. Passer, N. Wahl, and L. Arastey Sahún, the latter as reporting judge) will handle the judgment on case C-196/21, SR (Frais de traduction dans une procédure civile). The request for a preliminary reference, from the Tribunalul Ilfov (Romania), originates in a dispute concerning family and maintenance matters. The question arouse who has to bear the cost of translating into French the summonses or orders issued by the court with a view to service upon the interveners in the national proceedings: hence the need for the interpretation of Article 5(2) of the Service Regulation.

The next PIL hit of this month will be the hearing in C-291/21, Starkinvest, on Thursday 16, at 9.30. The background of the referral is a Belgian judgement ordering the Dublin-based company Soft Paris Parties Ltd, subject to a penalty payment of EUR 2 500 per breach, to cease all sales of products and services in the Benelux countries under a certain word mark. Some months after the judgment was served on the debtor, the claimant (Starkinvest Srl) issued an order for payment in the sum of EUR 86 694.22, which included EUR 85 000 in penalty payments. Starkinvest Srl has asked the Belgian court to make a European Account Preservation Order in the principal amount of EUR 85 000, over such sums as may be held in a French bank account of Soft Paris Parties Ltd.

For the referring court, it is unclear whether Starkinvest Srl is relying on an instrument ‘requiring the debtor to pay the creditor’s claim’ within the meaning of Article 7[(2)] of the EAPO Regulation. In addition, it has reservations based on Article 4 of the Regulation. According to the provision, a ‘claim’ is defined as ‘a claim for payment of a specific amount of money that has fallen due or a claim for payment of a determinable amount of money arising from a transaction or an event that has already occurred, provided that such a claim can be brought before a court’; in light of it, the question arises whether, bearing in mind that while the principle and basic amount of a penalty payment are established by judgment, the amount payable depends on possible future breaches by the debtor, such a payment can be regarded as a ‘claim’ in that sense. The national court has referred these questions to the Court of Justice :

  1. Does a judgment which has been served, ordering a party to make a penalty payment in the event of breach of a prohibitory order, constitute a decision requiring the debtor to pay the creditor’s claim within the meaning of Article 7(2) of Regulation No 655/2014 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order procedure?
  2. Does a judgment ordering a party to make a penalty payment, although enforceable in the country of origin, fall within the meaning of ‘judgment’ in Article 4 of Regulation No 655/2014 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order where there has been no final determination of the amount in accordance with Article 55 of Regulation 1215/12 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?

Advocate General Szpunar will announce the date of delivery of his opinion at the end of the hearing. The Chamber in charge is composed by judges A. Prechal, J. Passer, N. Wahl, L. Arastey Sahún and F. Biltgen, with the latter acting as reporting judge.

The same Chamber has been appointed to adjudicate in case C-265/21, AB and AB-CD (Titre de propriété sur des oeuvres d’art), with the support of Advocate General Szpunar’s opinion, which will be published the same day (i.e., Thursday 16).

The request addresses the interpretation of ‘contract’ under Article 5 of the Brussels I Regulation, and in the Rome I Regulation. The national proceedings concern an action seeking the recognition of a title of ownership of works of art based on a double contract of sale, the first between the defendant and a seller and the second between this seller and the plaintiff. The referring court is at a loss regarding which the contract to consider in order to determine the place of obligation serving as the basis for the request, and to ascertain the substantive rules applicable to the merits:

1. Must the concept of ‘matters relating to a contract’, within the meaning of Article 5(1) of Regulation No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (‘the Brussels I Regulation’):

a. be interpreted as requiring the establishment of a legal obligation freely assumed by one person towards another, which forms the basis of the applicant’s action, and is that the position even if the obligation was not freely assumed by the defendant and/or towards the applicant?

b. If the answer is in the affirmative, what must the degree of connection between the legal obligation freely assumed and the applicant and/or the defendant be?

2. Does the concept of ‘action’ on which the applicant ‘relies’, like the criterion used to distinguish whether an action comes under the concept of matters relating to a contract, within the meaning of Article 5(1) of the Brussels I Regulation, or under ‘matters relating to tort, delict or quasi-delict’, within the meaning of Article 5(3) of that regulation (C‑59/19, paragraph 32), entail verification of whether the interpretation of the legal obligation freely assumed seems to be indispensable for the purpose of assessing the basis of the action?

3. Does the legal action whereby an applicant seeks a declaration that he or she is the owner of an asset in his or her possession in reliance on a double contract of sale, the first entered into by the original joint owner of that asset (the spouse of the defendant, who is also an original joint owner) with the person who sold the asset to the applicant, and the second between the latter two parties, come within the concept of matters relating to a contract within the meaning of Article 5(1) of the Brussels I Regulation?

a. Is the answer different if the defendant relies on the fact that the first contract was not a contract of sale but a contract of deposit?

b. If one of those situations comes within the concept of matters relating to a contract, which contract must be taken into consideration for the purpose of determining the place of the obligation which serves as the basis of the claim?

4. Must Article 4 of Regulation (EC) No 593/2008 of 17 June 2008 on the law applicable to contractual obligations (Rome I) be interpreted as applying to the situation referred to by the third question referred for a preliminary ruling and, if so, which contract must be taken into consideration?

Legal Secretary CJEU Full Professor PIL University of Santiago de Compostela (Spain) Senior research fellow MPI Luxembourg (on leave)

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