Case law Developments in PIL

January 2023 at the Court of Justice of the European Union

The monthly program of the Court of Justice of the European Union regarding private international law, as of today, is as follows.

On 12 January 2023, Advocate General  Emiliou will deliver his opinion in case C-638/22 PPU, Rzecznik Praw Dziecka e.a., on the suspension of a Hague return decision. A hearing had taken place last December. The related entry in the blog offers a summary of the facts and reproduces the questions before the Court of Justice.

Two hearings are scheduled for the same day. The first one, in case C-87/22, IT, concerns child abduction. The Regional Court of Korneuburg (Austria), asks the Court the following

  1. Must Article 15 of [the Brussels II bis Regulation] be interpreted as meaning that the courts of a Member State having jurisdiction as to the substance of the matter, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, may request such a court to assume jurisdiction even in the case where that other Member State has become the place of habitual residence of the child following wrongful removal?
  2. If Question 1 is answered in the affirmative: Must Article 15 of [the Brussels II bis Regulation] be interpreted as meaning that the criteria for the transfer of jurisdiction that are set out in that article are regulated exhaustively, without the need to consider further criteria in the light of proceedings initiated under Article 8(f) of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction?

The children V and M were born in Slovakia; like their parents, they have Slovakian nationality. Under Slovak law, the two parents have joint custody of the two children. Both parents work in Bratislava. After the children were born, the family initially lived in Slovakia and moved to Austria in spring 2014. Since 2017, the kids have been attending school in Bratislava. They speak only a few words of German. Their mother tongue is Slovak and they communicate with their parents and grandparents in that language.

The parents separated in January 2020. Since July 2020, the children have been living with their mother in Bratislava.

At the same time as an application for return under Article 8(f) of the 1980 Hague Convention, which had been brought before the Okresný súd Bratislava I (District Court Bratislava I), the father applied to the District Court, Bruck an der Leitha (Austria), for the transfer of custody of both children to him alone. In the alternative, he asked for the granting to him of primary care of the children with joint custody being retained, as well as for the transfer of temporary custody to him alone until the custody proceedings have been concluded, claiming in essence that the mother had endangered the welfare of the children by unlawfully removing them from Austria to Slovakia. He submits that she had pulled the children out of their social integration.

The mother opposed the father’s applications for custody and raised the plea of lack of international jurisdiction on the ground that the children had been habitually resident in the Slovak Republic throughout the period in question. They attended school, had their medical appointments and engaged in their recreational activities in that country, and it was only for meals and overnight stays that the children stayed in the house in Hainburg an der Donau, where they had not been socially integrated.

By order of 4 January 2021, the District Court, Bruck an der Leitha, refused the father’s application on the ground of lack of international jurisdiction. By order of the Regional Court, Korneuburg, sitting as the court ruling on appeals on the merits, of 23 February 2021, the appeal brought by the father against the order of 4 January 2021 was upheld and the contested order was amended to the effect that the mother’s plea of lack of international jurisdiction was rejected. That decision of that court was confirmed by order of the Oberster Gerichtshof (Austrian Supreme Court) of 23 June 2021.

On 23 September 2021, the mother applied to the District Court, Bruck an der Leitha, for it to request a court in the Slovak Republic, to assume jurisdiction in accordance with Article 15(5) of Regulation 2201/2003, or, in the alternative, to fulfil the request of its own motion in accordance with Article 15(1)(b) and 15(2)(b) of that regulation, on the grounds that, in addition to the return proceedings under the 1980 Hague Convention before the District Court Bratislava I, and before the District Court Bratislava V, several sets of proceedings were pending before courts of the Slovak Republic, which had been instituted by both the father and the mother, and those courts had already taken extensive evidence and the courts of the Slovak Republic were for that reason better placed to rule on the parental responsibility for the two children. The father opposed the mother’s application.

By the order now being contested, the District Court, Bruck an der Leitha, requested the District Court Bratislava V, in accordance with Article 15(1)(b) of the Brussels II bis Regulation to assume jurisdiction in the proceedings concerning the custody of the two children and the father’s right of access to his children. The father has appealed against that order. The mother requests that the appeal be dismissed. Moreover, she requests that the matter be brought before the Court of Justice for an interpretation of Article 15 of the Regulation.

The second hearing corresponds to case C-832/21, Beverage City Polska, a request from the Oberlandesgericht Düsseldorf (Germany) on the interpretation of Article 122 of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark, in conjunction with Article 8(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the enforcement of judgments in civil and commercial matters (Brussels I bis). In the litigation on the merits,  the applicant has taken the view that there is an infringement of its EU trade marks and brought an action against four defendants before the Landgericht Düsseldorf (Regional Court, Düsseldorf), for injunctive relief throughout the European Union and – later limited to acts in Germany – for information, the disclosure of accounts and a declaration of liability for damages. The third and fourth defendants argued, inter alia, that there is a lack of international jurisdiction over the action brought against them. The court refers the following question to the Court of Justice:

Are claims ‘so closely connected’ that it is expedient to hear and determine them together to prevent irreconcilable judgments, within the meaning of Article 8(1) of the [Brussels I bis Regulation], where, in infringement proceedings for infringement of an EU trade mark, the connection consists in the fact that the defendant domiciled in a Member State (here, Poland) supplied the goods which infringe an EU trade mark to a defendant domiciled in another Member State (here, Germany) whose legal representative, against whom infringement proceedings have also been brought, is the anchor defendant, if the parties are connected to each other only through the mere supply relationship beyond which there is no legal or factual connection?

None of the cases has been assigned to the Grand Chamber, therefore the hearings will not be broadcast.

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