Case law Developments in PIL

September 2022 at the Court of Justice of the European Union

Those in Luxembourg on 8 September 2022 may want to attend the hearing in case C-393/21, Lufthansa Technik AERO Alzey. The request for a preliminary ruling comes from the Lietuvos Aukščiausiasis Teismas (Lithuania), and was lodged on 28 June 2021. It focuses on Article 23 of Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims. The provision addresses the stay or limitation of enforcement. The request will oblige the Court to decide on the scope, conditions of application and extent of the review carried out by a competent court or authority of the Member State of enforcement under Article 23(c), and on the possibility of simultaneously applying several measures referred to in this article. A final question raises the issue of the relationship between the stay of the enforcement procedure under the above mentioned Article 23, and that provided for by Article 44(2) of Regulation No 1215/2012.

The facts of the case are the following.

In enforcement proceedings, a bailiff operating in Lithuania is executing an order of the Amtsgericht Hünfeld (Local Court, Hünfeld, Germany) of 14 June 2019, on the basis of a European Enforcement Order certificate of 2 December 2019 regarding the recovery of a debt of EUR 2 292 993.32 from the debtor, Arik Air Limited.

Claiming that the certificate had been issued unlawfully because the procedural documents of the Local Court, Hünfeld, had not been duly served on it, thus causing it to miss the time limit for lodging objections, Arik Air Limited applied to the Landgericht Frankfurt am Main (Regional Court, Frankfurt am Main, Germany) for withdrawal of the European Enforcement Order certificate of 2 December 2019. In an order of 9 April 2020, that court stated that execution of the enforcement order of 24 October 2019 would be stayed if Arik Air Limited paid a security of EUR 2 000 000.

Arik Air Limited, requested the bailiff to stay the enforcement proceedings in the Republic of Lithuania until the debtor’s claims for withdrawal of the European Enforcement Order certificate had been examined in a final procedural decision of the court in Germany. The bailiff refused to stay the enforcement proceedings.

By order of 11 June 2020, the Kauno apylinkės teismas (District Court, Kaunas, Lithuania), before which an action regarding this refusal was brought, did not uphold the action. The court stated that the debtor’s request had already been examined by a court of the State of origin in the order of 9 April 2020 and, therefore, it had no grounds to examine it.

By order of 25 September 2020, the Kauno apygardos teismas (Regional Court, Kaunas) set aside the order of the court of first instance, upheld the action brought by Arik Air Limited, and ordered the stay of the enforcement proceedings pending a full examination of the applicant’s claims by a final judgment of the German court that had jurisdiction. The appellate court stated that, in view of the disproportionately great harm which might be caused in the enforcement proceedings, an application regarding a European Enforcement Order certificate to a court of the State where it was issued was a sufficient ground for staying the enforcement proceedings. Taking the view that there was nothing in the case file to confirm that the security specified in the order of the Regional Court, Frankfurt am Main, of 9 April 2020 had been paid, the appellate court concluded that there was no ground to believe that the question of the suspension of enforcement measures in the enforcement proceedings had been examined by the court of the State origin.

On 16 December 2020, the interested party, Lufthansa Technik AERO Alzey GmbH, brought an appeal on a point of law before the Lietuvos Aukščiausiasis Teismas (Supreme Court of Lithuania).

The questions referred read:

  1. How, taking into account the objectives of Regulation  805/2004, inter alia the objective of accelerating and simplifying the enforcement of judgments of Member States and effective safeguarding of the right to a fair trial, must the term ‘exceptional circumstances’ in Article 23(c) of Regulation 805/2004 be interpreted? What is the discretion that the competent authorities of the Member State of enforcement have to interpret the term ‘exceptional circumstances’?
  2. Are circumstances, such as those in the present case, related to judicial proceedings in the State of origin which decide a question regarding the setting aside of the judgment on the basis of which a European Enforcement Order was issued to be regarded as relevant when deciding on the application of Article 23(c) of Regulation  805/2004? According to what criteria must the appeal proceedings in the Member State of origin be assessed and how comprehensive must the assessment of the proceedings taking place in the Member State of origin that is carried out by the competent authorities of the Member State of enforcement be?
  3. What is the subject matter of the assessment when deciding on the application of the term ‘exceptional circumstances’ in Article 23 of Regulation No 805/2004: must the impact of the respective circumstances of the dispute when the judgment of the State of origin is challenged in the State of origin be assessed, must the possible potential benefit or harm of the respective measure specified in Article 23 of the regulation be analysed, or must the debtor’s economic abilities to implement the judgment, or other circumstances, be analysed?
  4. Under Article 23 of Regulation  805/2004, is the simultaneous application of several measures specified in that article possible? If the answer to this question is in the affirmative, what criteria must the competent authorities of the State of enforcement rely on when deciding on the merits and proportionality of the application of several of those measures?
  5. Is the legal regime laid down in Article 36(1) of Regulation (EU) 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 to be applied to a judgment of the State of origin regarding the suspension (or cancellation) of enforceability, or is a legal regime similar to that specified in Article 44(2) of that regulation applicable?

Sitting judges are C. Lycourgous, S. Rodin, J.C. Bonichot, L.S. Rossi, and O. Spineanu-Matei (reporting). An opinion has been requested from P. Pikamäe.

On the same day, the Court will render a three-judges decision (O. Spineanu-Matei reporting, sitting with S. Rodin and L.S. Rossi) in case C-399/21, IRnova. The request by the Svea hovrätt, Patent- och marknadsöverdomstolen (Sweden) was lodged on June 28, 2021. In the dispute on the merits, the company FLIR has applied for patents on certain inventions in inter alia the United States of America and China. IRnova brought an action seeking a declaration that IRnova has better entitlement to the inventions than FLIR. The action was dismissed at first instance on the ground that it is related so closely to the registration and invalidity of patents that the Swedish courts do not have jurisdiction to hear the case. IRnova has lodged an appeal against this dismissal decision before the referring court. This is thus a request for interpretation of Article 24(4) of Regulation (EU)  1215/2012 with just one question:

Is an action seeking a declaration of better entitlement to an invention, based on a claim of inventorship or co-inventorship according to national patent applications and patents registered in a non-Member State, covered by exclusive jurisdiction for the purposes of Article 24(4) of Regulation (EU) No 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?

Before getting into it, the Court will need to decide whether the Regulation applies at all, taking into account that the dispute arose between two companies having their registered office in the same Member State, and that it seeks to establish a right of ownership, probably also arising in Sweden. There is indeed a foreign element – the case concerns patent applications made and patents granted abroad: but this foreign element is not located on the territory of a Member State, but in China and the US.

The next PIL event will take place on September 15. The Court will then hand down its decision on C-18/21, Uniqa Versicherungen. The reference was sent by the Oberster Gerichtshof (Austria), and lodged January 12, 2021. It consists of just one question, on Regulation 1896/2006:

Are Articles 20 and 26 of Regulation 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure to be interpreted as meaning that those provisions preclude an interruption of the 30-day period for lodging a statement of opposition to a European order for payment, as provided for in Article 16(2) of that regulation, by Paragraph 1(1) of the Austrian Bundesgesetz betreffend Begleitmaßnahmen zu COVID-19 in der Justiz (Federal Law on accompanying measures for COVID-19 in the administration of justice), pursuant to which all procedural periods in proceedings in civil cases for which the event triggering the period occurs after 21 March 2020 or which have not yet expired by that date are to be interrupted until the end of 30 April 2020 and are to begin to run anew from 1 May 2020?

I reported here on the request. AG Collins’s opinion was delivered on March 31, 2022:

Articles 16, 20 and 26 of Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure do not preclude the adoption, in the circumstances of the COVID-19 pandemic, of a national measure that interrupted the 30-day time limit for lodging a statement of opposition to a European order for payment contained in Article 16(2) thereof.

The deciding chamber is one of five judges, namely K. Jürimäe (reporting), K. Lenaerts, N. Jääskinen, M. Safjan, and N. Piçarra.

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

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