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EU Private International Law Before the ECJ: the Origin of Preliminary References

I am coming back to the topic of a recent post published on this blog, where I analyzed the trends emerging from seven years (2015-2022) of ECJ case law in the field of judicial cooperation in civil matters.

I would like to thank the readers of this blog, who gave me feedback and ideas for new research directions. Building on these suggestions, I purport to write a series of related posts on specific aspects of EU Private International Law (EUPIL) cases brought before the Luxembourg Court.

The planned posts aim to promote a more comprehensive understanding of the ECJ’s rulings on EUPIL instruments, by bringing attention on the very first part of the judgment: despite being often overlooked by legal scholars, this can be quite interesting in its own way.

The present post, the first in the series, will focus on the origin of the EUPIL preliminary references brought before the ECJ (third red box in order of appearance).

The second post in the series will look into the role of States within the preliminary reference procedure and their respective level of “engagement” with EUPIL cases, as evidenced by the observations filed with the ECJ pursuant to Article 23 of its Statute (eighth red box in order of appearance; I am very grateful to Martin Margonski for the suggestion).

A third post will use the case law in EUPIL to highlight the internal transformation of a Court – the ECJ – that has seen its caseload increase by more than 450% since 1976, while succeeding in keeping the average length of proceedings more or less constant over the last two decades. Against this backdrop, the analysis of the case law in the field of EUPIL demonstrates the ECJ’s great adaptability to an ever-increasing demand for preliminary rulings and the efforts made for ensuring a more rational use of its own human and material resources.  This concerned, in particular, the use of judicial formations, AGs’ Opinions and hearings (first, seventh and ninth red boxes in order of appearance).

A. Methodology

All these research questions presuppose a “dynamic” analysis of the evolution of the ECJ’s case law in the field EUPIL over time. Because of this, it was no longer possible to exclude from the analysis the (substantial) case law developed under the 1968 Convention, at the risk of altering the statistical validity of the conclusions drawn from the collected data.

For this reason, these new blog posts are based on a larger database, and ‘EUPIL’ is now understood as encompassing also the 1968 Brussels Convention and the 1980 Rome Convention,  in addition to the instruments already included in the scope of the pre-existing analysis. As a reminder, these are Regulations 44/2001 and 1215/2012, the Lugano II Convention, Regulation 1347/2000, Regulation 2201/2003 (since no cases have yet been filed under the new Brussels II-ter Regulation); Regulation  4/2009; the Rome Regulations (593/2008, 864/2007 and 1259/2010); the Succession Regulation and the ‘smaller’ Regulations (EAPO, EPO, EEO, ESC, Service and Evidence I Regulations). The Regulations on matrimonial and registered partnership property issues have been taken into account, but there is currently no request for interpretation concerning them.

The time frame covered by the research is consequently no longer limited to the last seven years, taking into account the totality of the ECJ’s case law in EUPIL since 1976, when the first cases on the interpretation of the 1968 Brussels Convention were filed.

B. The Origin of Preliminary References in EUPIL Cases.

As announced above, this first post deals with the origin of requests for preliminary rulings on EUPIL instruments. “Origin” is understood in a twofold way: first, as geographic origin (1) and, second, as “procedural” origin, meaning by this the status and ranking of the domestic court making the referral (2).

1.  The Geographic Origin of Preliminary References in EUPIL.

Where are the requests for preliminary rulings in EUPIL coming from? Does this have an impact on the substance of the legal solution shaped by the ECJ?

The first question is relatively easy to answer. The referring court is identified in the very first lines of the judgment. When taken individually, this datum might not be overly significant. Conversely, a systematic compilation of the origin of all the preliminary references raised in the field of EUPIL could reveal interesting trends and national attitudes towards this area of EU law.

In my previous post, the analysis of the last seven years of case law  evidenced remarkable differences in the amount of preliminary rulings requested by each Member State. The new survey, based on a broader database, just confirms these conclusions. It also confirms Germany’s leading role as undisputed propeller of EUPIL case law before the ECJ.

Chart 1

The chart above shows the number of referrals under the Brussels-Lugano regime in shades of blue, the Rome regime in shades of green, the referrals in the field of family law in shades of red, successions in black and “smaller” procedural regulations in shades of yellow. Evidence and Service have their own distinctive colours.

It is apparent that there still exist considerable differences among the Member States. Nonetheless, in assessing Chart 1, due regard should be paid to the seniority of EU Membership: clearly, national courts belonging to the Member States who joined the EU at an earlier date had, over the last 46 years, more opportunities to refer cases, including EUPIL cases,  than those who joined in the 2004, 2007 or 2013 enlargements. I created the chart below in the attempt of obtaining a better picture of the “chronological evolution” of the Member States’ requests for preliminary rulings on EUPIL instruments (click here to enlarge the picture).

Chart 2

The colours used should give a more immediate understanding of the changing balances, over time, between “elder” and “younger” Member States: the shades of blue indicate founding Member States; the shades of pink those which joined in 1973; the shades of orange/yellow designate the Iberian enlargement; the shades of brown the 1995 accession; the shades of green the biggest expansion so far, occurred in 2004. Black and dark grey are used, respectively, for Romania and Bulgaria, which joined in 2007. Greece (1981) and Croatia (2013) have their own distinctive colours (violet and red).

It must be stressed that each country’s contribution is calculated not according to the number of cases referred to Luxembourg, but rather on the number of interpretations requested with respect to the EUPIL instruments mentioned above. For example, in case C-307/19, the referring Croatian court requested the interpretation of the Service Regulation, the Brussels Ibis Regulation, the Rome I and the Rome II Regulations. This case is therefore counted 4 times in the chart above (which explains the big red smear corresponding to 2015). Here, an amended version of the chart, showing the number of cases filed with the ECJ, regardless of the number of EUPIL instruments involved in each of them.

Seniority alone cannot explain the considerable differences in the amount of preliminary rulings referred by Member States of comparable size and seniority (eg. France and Germany), or between countries which are very dissimilar in both respects (eg. Italy and Austria). Spain is another good example of the relative unimportance of the seniority factor: a Member State since 1985, this country is a late bloomer when it comes to preliminary references in the field of EUPIL, the first Spanish referrals dating of 2014 (two cases on the Service Regulation).

It can be assumed that, in today’s cosmopolitan world, all Member States are exposed to international commerce and cross-border mobility of people, even if maybe not equally so. As a result, their domestic courts will naturally come in contact with (EU)PIL cases and might find themselves in the position of harboring a “reasonable doubt” on the interpretation of one of the instruments mentioned in Section A. Under those circumstances, said courts should (or shall, depending on their status) refer a preliminary question to the Court of Justice. Seen from this standpoint, the results presented in Charts 1 and 2 are particularly interesting, insofar as they trigger further questions as to (a) the effective impact, if any, of the geographic origin of the preliminary reference on the solution given by the ECJ to the legal questions submitted to its consideration; and (b) the underlying reasons for the greater activism of certain Member States’ courts.

(a) The (Ir)Relevance of the Geographical Origin of the Preliminary Reference

As for the first question, it could be very tempting to answer in the affirmative: the geographic origin of the preliminary reference might play a role. After all, the referring court belongs to a given legal system and, in the decision raising its interpretive doubts, it will logically present the problem from the standpoint of its national law. This circumstance could, hypothetically, introduce a national bias in the reasoning of the ECJ and influence the result of the preliminary reference procedure.

Nonetheless, there are, in my view, two arguments that vouch for the dismissal of such fears.

The first argument profits from the benefit of hindsight: a closer look at the ECJ’s case law reveals that it has always endeavoured to “detach” its interpretation of the legal concepts used by EUPIL instruments from the meaning they acquire under the national law(s) of the Member States, according to the well-known principle of autonomous interpretation. It can be added that, in the more complicated cases, the ECJ has the possibility of asking its Research Department for a comparative study on the meaning of a given legal concept in the Member States (these notes are sometimes published on the Court’s website). There is, therefore, a concrete effort to go beyond the specific circumstances of the case, including its geographic origin, with a view to shaping an interpretive solution that could easily be transposed and implemented in any Member State.

The second argument is based on a more pragmatic consideration: the fact that some national courts engage the Luxembourg Court more often than others does not limit, in any event, the (geographic) scope of the legal debate. The dialogue triggered by the preliminary reference procedure is never a one-to-one conversation between the ECJ and the referring court. To the contrary, all Member States (and even some non-Member States) can take part to the discussion by submitting written and oral observations pursuant to Article 23 of the ECJ’s Statute. As I have already announced, there will be a separate post on this topic and it makes no sense to go deeper into it now. It suffices to say that these observations can be a way, for each State, of introducing a “national perspective” on the desirable approach to the solution of a preliminary question, regardless of its contingent origin.

It shall also be added that Member States have made (and still make) extensive use of this instrument. Particularly telling are, in this respect, the very first cases addressed by the ECJ, the (in)famous Tessili and De Bloos, both decided in 1976. The judgments rendered therein testify of the firm resolution of the UK to submit its observations on those questions, despite not even being, at that time, a Party to the 1968 Convention. In the next post, it will also be shown that some national governments have been considerably active, over the years, in filing written and oral observations in the cases brought before the ECJ (by courts of other Member States), despite the relatively low direct engagement of their own national courts with the preliminary reference procedure.

(b) The Reasons Behind the Differential Engagement of Member States’ Courts with Luxembourg

As I mentioned above, courts in Member States should/shall refer a preliminary reference to the ECJ when they are faced with a reasonable doubt on the interpretation of a EUPIL instrument. It would be simply illogical and totally out of touch with reality to explain the result presented in Chart 1 as the consequence of a lack of self-assurance of German and Austrian courts.

The causes of the differential engagement of Member States’ courts with the preliminary reference procedure must be sought elsewhere, and are multi-factorial at best.

It is safe to assume that some non-legal, but rather socio-economic criteria will also play a role (for example, the attitudes and dispositions of the local population towards court litigation, which is a conditio sine qua non of the preliminary reference procedure). The comprehensive identification of these factors remains extremely difficult and is beyond the purpose of this blog post. Nonetheless, based on an open-ended, experimental approach to this research, I tried to compare the data on the geographic origin concerning the preliminary references on EUPIL instruments and those raised in “related” matters, such as judicial cooperation in criminal matters or public procurement, the latter being understood as the “public counterpart” of private law contracts. The ECJ’s case law in the field of public procurement is, in this respect, particularly revealing, insofar as it shows opposite trends as compared to the case of EUPIL, with a striking and overwhelming activism of Italian (administrative) courts and a very low rate of engagement of their German and Austrian counterparts.  It must be concluded that there are considerable variations in the geographic origin of preliminary references  across the different branches of EU law. This circumstance offers no further explanation to the results presented in Chart 1, but warns against too quick or too broad generalizations about the existence of national “attitudes” or “prejudices” towards the procedure under Article 267 TFEU.

Coming back to the field of EUPIL, a combined reading of the data concerning the geographic and the procedural origin of the preliminary references raised in this subject-matter might pave the way to some additional (and highly speculative) explanations of the results presented in Chart 1.

2. The Procedural Origin of Preliminary References in EUPIL.

Over the last 46 years, almost a half of the preliminary questions raised in relation to EUPIL instruments came from the Member States’ Supreme Courts, followed by first instance courts as a distant second.

Chart 3

There could be, in my view, two explanations of this result.

The first one is grounded in the Member States’ procedural laws: some of them may provide for the possibility of leapfrog appeals to the Supreme Court, with a view to conclusively settling procedural issues (such as international jurisdiction) at an early stage of the proceedings (see, for example, the mechanism set out by Article 41 of the Italian Code of Civil Procedure). While the existence of such procedural devices could in principle offer an explanation to the data portrayed in Chart 3, the persuasiveness of this hypothesis will finally depend on how frequent and available such mechanisms are at the national level, which is for a comprehensive study in comparative procedural law to determine.

A second explanation, which I personally find more convincing and of more general application, is based on the CILFIT criteria. Said otherwise, Supreme Courts tend to raise preliminary questions more frequently than lower courts simply because they are under the legal obligation to refer when faced with a reasonable doubt on the interpretation of a EUPIL instrument, unless this doubt can be solved with the application of the acte clair or éclairé doctrines. Conversely, lower courts retain the discretion, and not the obligation, of referring the case to Luxembourg when faced with a comparable doubt (unless they are acting as a court of last resort in a given matter).

In my opinion, this result could be combined with the data on the geographic origin in two ways.

(a) Divergent National Interpretations of the CILFIT Criteria

First, it must be remembered that the CILFIT criteria provide domestic courts with “general guidance”, that could be subject to different interpretations. A research note commissioned in 2019 to the Research Department of the ECJ confirms that the understandings and practical applications of those criteria vary considerably among Member States. It is also noteworthy that, while this research note was not requested with specific reference to the field of EUPIL, it mentions on several occasions its instruments when providing for concrete examples of the divergent applications of the acte clair or éclairé doctrines by national Supreme Courts.

In a 2001 case relating to jurisdiction over insurance contracts under the 1968 Brussels Convention, the Irish Supreme Court sought guidance in the Schlosser Report and concluded that “there [was not] any necessity for a reference to the Court of Justice of the EC pursuant to the 1971 Protocol to the Convention”. The Joint Chambers of the Italian Court of Cassation seem to consider, in a rather general statement, that the line separating the scope of application of the Brussels I and the Insolvency Regulations is an acte clair (despite the huge ECJ case law on this point), not subject to the obligation of a referral to Luxembourg (Order No. 10233 of  26 April 2017). Further examples of the acte clair and acte éclairé doctrines can be found in a Maltese and in two Latvian Supreme Court cases on the recognition and enforcement of judgments in civil and commercial matters (respectively, GIE Pari Mutuel Urbain (PMU) v Bell Med Ltd & Computer Aided Technologies Ltd, 224/2006/1 and judgments SKC-771/2018 (C30672916) and SKC-414/2017 (C30465614)) and in a Slovenian Supreme Court case on the temporal scope of application of the Brussels I Regulation ( Order III Ips 164/2008 of 3rd February 2009). In a Romanian EUPIL case, the domestic court refused the referral to Luxembourg owing to the expiration of the deadline set by national procedural law for the inter partes phase of the proceedings, marking the beginning of the deliberation phase in which no referrals to the ECJ should be allowed (decision 786/CM/2011 of the Curtea de Apel de Constanța).

There are, moreover, plenty of examples where domestic Supreme Courts have not referred a preliminary question under Regulation 2201/2003, based on diverse considerations relating to the inherent characteristics of the procedure before the ECJ. For example, the Lithuanian Supreme Court did not raise a question on an inconsistency in the Lithuanian text of Article 12 of Regulation 2201/2003. This Court feared, in particular, that a referral from its side would have prompted similar initiatives from other Member States’ courts and would have, finally, increased the workload of the ECJ to the detriment of the prompt decision of preliminary references in matters of family law (decision no e3K-3-426-969/2016). Both in Malta and in the UK, the seized courts expressed reasonable doubts as to the correct interpretation of a provision of the Brussels IIbis Regulation, but refused a referral to the ECJ fearing undesirable delays to the national procedure (case 35/16/1JVC, decided on 6 January 2018 (Malta) and case In the matter of N (Children) [2016] UKSC 15 (UK)). I just remark, in relation to the British case, that the average length of a PPU procedure before the ECJ is 80 calendar days (60, a couple of years back) and, within this time frame, the cases are decided with a hearing and an Opinion of the AG.

There is no need of entering into the merits of these national interpretations of the CILFIT criteria. It suffices to say that divergent national interpretations of the obligation to refer could provide for a (certainly partial) explanation of the uneven geographic distribution of preliminary references in EUPIL cases.

(b) The Practical Effects of the Application of the CILFIT Criteria and National Procedural Law

Second, the fact that the majority of EUPIL preliminary questions are referred by Supreme Courts can have important practical reverberations for the parties to these disputes. These parties might have to sit through three court instances before having a definite answer on issues, such as jurisdiction or applicable law, that should usually be defined in limine litis. This means lengthy litigation, especially in those Member States where the Supreme Court might not have the power to decide the case itself, in conformity with the ECJ’s ruling, having conversely to remit the case to the lower court(s). Lengthy litigation entails, in turn, high(er) costs, that might be an incentive to desist or to settle the case at an earlier stage, before a referral to Luxembourg becomes mandatory.

These remarks may open a new perspective on the interpretation of the data on the geographic origin of the preliminary references. The costs relating to access to justice and, more generally, to court litigation, the availability of funding, the existence of collective redress procedures in a given legal system might be among the (legal) factors behind the uneven distribution of EUPIL referrals among Member States, insofar as these features of domestic procedural law might increase the likelihood of bringing a case as far as the court of last resort.

3. Final Remarks on the Procedural and Geographic Origin of EUPIL Preliminary References.

It should finally be noted that, albeit general, the leading role of Supreme Courts does not equally characterize all Member States. In some of them, the trend is actually reversed, with first and second instance courts taking up the most prominent role.

Chart 4

Also noteworthy is the temporal dimension of the involvement of Supreme Courts. Data from Germany and Austria are consistent in showing a greater activism of first and second instance courts between 2008 and 2018.

Chart 5

Incidentally, this time frame corresponds to the point in time where 1) the Treaty of Lisbon entered into force, lifting the procedural limitations to ASFJ referrals from courts other than courts of last resort and 2)  but  ECJ’s case law in the field of EUPIL starts to get more diversified. In fact, the first request for a preliminary ruling that does not concern the Brussels-Lugano regime dates of 2006 and concerns Regulation 2201/2003. Non-Brussels/Lugano cases have become recurrent in the following years.

Chart 6 below is a breakdown of Chart 3. It considers the procedural origin of the referrals raised in the different subject-matters (grouped by macro-areas) covered by EUPIL instruments.

Chart 6

This result needs little explanation: in family law (Regulation 2201/2003, Regulation 4/2009, Regulation 1259/2010), successions, applicable law (Regulations 864/2007 and 593/2008, as well as the Rome Convention)  and in the “smaller Regulations”, the role played by Supreme Courts is not as prominent as in the field jurisdiction, recognition and enforcement of foreign judgments in civil and commercial matters. Also noteworthy is the comparison of data relating to post-Lisbon referrals: 47 % of the overall referrals made after 2009 in the field of civil and commercial matters still come from supreme courts, as opposed to 39 % of the referrals in family law, 33 % in successions and 5,5 % of the cases concerning the smaller procedural Regulations (including Evidence and Service).

This might mean that lower courts could be more keen on using their discretionary power to refer when dealing with an sub-field of EUPIL lacking the support of a longstanding and well-established supranational case law, or, alternatively, when a fundamental interest of the person is at stake. Significant, in this last respect, is the fact that only 5 of the 17 PPU cases thus far decided by the ECJ in the domain of EUPIL were referred by a Supreme Court. These cases all dealt with parental responsibility, abduction and maintenance in situations involving a minor.

Legal Assistant at the ECJ. The opinions expressed in this publication are those of the author. They do not purport to reflect the opinions or views of the ECJ or its Members.

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