February 2023 at the Court of Justice of the European Union

In February 2023, the Court of Justice of the European Union will publish two decisions and one opinion, all three on Thursday 16.

The expected judgments concern case C-393/21, Lufthansa Technik AERO Alzey, and C-638/22 PPU, Rzecznik Praw Dziecka e.a. (Suspension de la décision de retour).

In C-393/21, the Lietuvos Aukščiausiasis Teismas (Lithuania) is asking the Court to interpret Article 23 of Regulation No 805/2004, as well as Article 36(1) and Article 44(2) of Regulation No 1215/2012.

1. How, taking into account the objectives of Regulation No 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 No 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 No 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 No 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) No 1215/2012 … 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?

I summarized the facts of the main proceedings here. AG Pikamäe made his opinion public on October 20, 2022. There is no English translation available so far. A non-official one could be:

1. Article 23 of Regulation (EC) No. 805/2004 … must be interpreted in the sense that the expression “exceptional circumstances”, for the purposes of this provision, includes the serious and irreparable damage that would be caused to the debtor by the immediate execution of the resolution certified as a European enforcement order, which (the damage) characterizes an urgent situation that corresponds to the debtor to demonstrate. If proven, it will be for the court or competent authority of the executing Member State to weigh the interests at stake in the light of all the relevant circumstances of the specific case.

Only the measures limiting the enforcement procedure, referred to in article 23, letters a) and b), of said Regulation may be subject to a combined application.

2. Articles 6 and 11 of Regulation No. 805/2004 shall be interpreted as meaning that where the enforceability of the decision certified as a European enforcement order in the Member State of origin has been suspended and the certificate provided for in Article 6(2) of that Regulation has been transmitted to the competent authority in the executing Member State, the latter will be obliged, within the framework of the application of the applicable national rules, to guarantee the full effectiveness of article 11 of said Regulation by means of the suspension of the enforcement procedure.

The deciding Chamber is composed by judges Lycourgos, Rossi, Bonichot, Rodin, and Spineanu-Matei acting as reporting judge.

My summary of the facts corresponding to Case C-638/21 PPU can be read here. The opinion of AG Emiliou, available only in a few languages – not English – were published on January 12. My translation would be:

On the one hand, Article 11(3) of Council Regulation (EC) No 2201/2003, read in conjunction with Articles 2 and 11 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, as well as, of the other hand, Articles 7 and 47 of the Charter of Fundamental Rights of the European Union, should be interpreted in the sense that they are opposed to national legislation entailing the suspension by operation of law, on a simple unsubstantiated request from certain authorized public entities, of the execution of a final decision to return pronounced at the end of two ordinary instances, during a first two-month period these entities dispose of to lodge an appeal in cassation and, as the case may be, for the entire duration of this appeal.

The decision will be taken by a Chamber of five judges, namely Safjan, Piçarra, Jääskinen, Gavalec and Jürimäe, with the latter as reporting judge.

Finally, AG Pikamäe will hand in the opinion in case C-567/21, BNP Paribas, a request from the Cour de Cassation (France). The main proceedings relate to an action for payment of various sums, brought in France against a French company by one of its former employees in connection with his dismissal . Previously, he had initiated proceedings in London, his last place of work, and he had obtained a judgment ordering that company to pay him compensation for unfair dismissal. The French courts must now determine if the previous decision (i.e. the English one) has any bearing in the admissibility of the claim filed with them.

1. Must Articles 33 and 36 of Council Regulation (EC) No 44/2001 (…) be interpreted as meaning that, where the legislation of the Member State of origin of the judgment confers on that judgment authority such as to preclude a new action being brought by the same parties for determining the claims that could have been raised in the initial proceedings, the effects which that judgment has in the Member State in which enforcement is sought preclude a court of that latter State, whose legislation, as applicable ratione temporis, provided in employment law for a similar obligation of concentration of claims, from adjudicating on such claims?
2. If the first question is answered in the negative, must Articles 33 and 36 of Council Regulation No 44/2001 be interpreted as meaning that an action such as a claim of unfair dismissal in the United Kingdom has the same cause of action and the same subject matter as an action such as a claim of dismissal without actual and serious cause in French law, so that the employee’s claims for damages for dismissal without actual and serious cause, compensation in lieu of notice, and compensation for dismissal before the French courts are inadmissible after the employee has obtained a decision in the United Kingdom declaring that there has been an unfair dismissal and making a compensatory award in that respect? Is it necessary in that regard to distinguish between, on the one hand, the damages for dismissal without actual and serious cause that might have the same cause of action and the same subject matter as the compensatory award and, on the other, the compensation for dismissal and compensation in lieu of notice which, in French law, are payable where the dismissal is based on an actual and serious cause, but are not payable in the event of dismissal based on serious misconduct?
3. Likewise, must Articles 33 and 36 of Council Regulation No 44/2001 be interpreted as meaning that an action such as a claim of unfair dismissal in the United Kingdom and an action for payment of bonuses or allowances provided for in the contract of employment have the same cause of action and the same subject matter when those actions are based on the same contractual relationship between the parties?

The decision on this case will be rendered by a Chamber of five judges – Jürimäe, Safjan, Piçarra, Jääskinen and Gavalec, this time with Judge Jääskinen reporting.