Case law Developments in PIL

November 2022 at the Court of Justice of the European Union

This November, more precisely on Tuesday 15, The Court will hand down the decision in C-646/20, Senatsverwaltung für Inneres und Sport, a request from the German Bundesgerichtshof on the Brussels II bis Regulation. The issue is whether a private divorce granted in Italy further to concurring statements by the spouses before the civil registrar can be recorded in the German register of marriages without any additional recognition procedure. Here the questions referred to the Court of Justice:

Is the dissolution of a marriage on the basis of Article 12 of Decreto Legge (Italian Decree-Law) No 132 of 12 September 2014 (‘DL No 132/2014’) a divorce within the meaning of the Brussels IIa Regulation?

If Question 1 is answered in the negative: Is the dissolution of a marriage on the basis of Article 12 of DL No 132/2014 to be treated in accordance with the rule in Article 46 of the Brussels IIa Regulation on authentic instruments and agreements?

A short description of the facts can be read here.

As our editor Martina Mantovani has already reported, the case is one of few on PIL allocated to the Grand Chamber (Lenaerts, Bay Larsen, Arabadjiev, Prechal, Regan, Rodin, Jarukaitis, Ilešič, Bonichot, Safjan, Kumin, Arastey Sahún, Gavalec, Csehi, Spineanu-Matei, and Safjan as reporting judge). Advocate General Collins’s opinion was delivered on 5 May 2022. In his view,

The dissolution of a marriage by a legally ordained procedure whereby spouses each make a personal declaration that they wish to divorce before a civil registrar, who confirms that agreement in their presence not less than 30 days later after having verified that the conditions required by law for the dissolution of the marriage have been met, namely that the spouses do not have minor children or adult children who are incapacitated or severely disabled or economically dependent and the agreement between them does not contain terms concerning the transfer of assets, is a divorce judgment for the purposes of Council Regulation (EC) No 2201/2003.

For a short comment on the Opinion see Francesca Maoli in this blog.

A second decision will be handed down on Thursday 24, on C-358/21, Tilman. Tilman SA, a company governed by Belgian law, concluded in 2010 with Unilever Supply Chain Company AG, a company governed by Swiss law, an agreement by which the appellant undertook to wrap and package boxes of tea bags for a fixed price. In 2011, the parties signed a second agreement amending the price agreed. A dispute arose later in relation to the increase in the price charged by the appellant; the respondent paid the invoices only in part. The appellant brought proceedings in Belgium for payment of the outstanding amounts.

Before the court of first instance, the respondent contended that, in accordance with its general terms and conditions, only the English courts have jurisdiction to hear and determine the dispute. By judgment of 12 August 2015, the court of first instance ruled that the Belgian courts have jurisdiction to hear and determine the dispute, but that the contract is governed by, and must be interpreted in accordance with, English law.

The appellant lodged an appeal against that judgment. In its view, the contract must be governed by, and interpreted in accordance with Belgian law. The respondent brought a cross appeal, claiming that it is not the Belgian courts which have jurisdiction but rather the English courts.

The judgment delivered on 12 February 2020 by the Cour d’appel de Liège (Court of Appeal, Liège) (‘the judgment under appeal’)  upheld the plea alleging a lack of jurisdiction raised by the respondent and held that, pursuant to the clause conferring jurisdiction contained in the respondent’s general terms and conditions, the Belgian courts have no jurisdiction to hear and determine the dispute.

Before the Court of Cassation, the appellant does not contest that it signed a contract containing a reference to the respondent’s general terms and conditions, which are available on the latter’s website. By contrast, it claims that the judgment under appeal wrongly treats the agreement at issue in the same way as a ‘contract concluded online’ in the context of which the buyer is required ‘to tick a box indicating (that he) accepts the seller’s general terms and conditions before being able to finalise his purchase’. The appellant was in no way prompted to accept the respondent’s general terms and conditions formally by clicking on the corresponding box on the latter’s website. It therefore concludes that the judgment under appeal is not legally justified: it fails to ensure that the conditions, in particular the jurisdiction clause, were actually communicated to the appellant and that it expressly agreed to them.

The Belgium court has referred the following question on the 2007 Lugano Convention to the Court of Justice:

Are the requirements under Article 23(1)(a) and (2) of the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed in Lugano on 30 October 2007, satisfied where a clause conferring jurisdiction is contained in general terms and conditions to which a contract concluded in writing refers by providing the hypertext link to a website, access to which allows those general terms and conditions to be viewed, downloaded and printed, without the party against whom that clause is enforced having been asked to accept those general terms and conditions by ticking a box on that website?

The case has been assigned to a chamber of three judges (Arastey Sahún, Passer,  Biltgen – as reporting judge). It did not required the AG’s opinion.

As of today, a hearing is foreseen in C-658/22, Rzecznik Praw Dziecka et Prokurator Generalny, on child abduction, for early December; it may take place earlier, though. The referring court is the Sąd Apelacyjny w Warszawie ((Court of Appeal, Warsaw, Poland). In the main dispute, the Prokurator Generalny (Public Prosecutor General) and the Rzecznik Praw Dziecka (Commissioner for Children’s Rights) are seeking the suspension of the enforcement of the final order given by the Regional Court of Wrocław on 15 June 2022, and of the final order given by the Sąd Apelacyjny w Warszawie on 21 September 2022 in the action brought by T.C., with M.C. as an intervening party, to obtain an order requiring children to be returned to Ireland, and the application lodged by T.C. seeking a declaration stating that the final decision is enforceable.

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

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