March 2023 at the Court of Justice of the European Union

On 9 March 2023, the Court will deliver the judgment in C-177/22, Wurth Automotive. The Landesgericht Salzburg (Austria) referred the following (extremely case-specific) questions on the interpretation of the Brussels I bis Regulation and the consumers’ heads of jurisdiction:

1. Does the assessment of whether the applicant is a consumer within the meaning of Articles 17 and 18 of Regulation (EU) No 1215/2012 depend on

a) whether the applicant pursued the activity of a graphic and web designer declared by her in the proceedings only as an employed person or, at least in part, also in the context of a freelance activity at the time of concluding the contract of sale and immediately thereafter and

b) the purpose for which the applicant acquired the vehicle, that is to say solely for the purpose of satisfying her own needs in terms of private consumption or also in connection with a current or future trade or professional activity or purpose?

2. Would the applicant no longer be able to rely on her status as a consumer if she had resold the passenger car in August 2019, and would any profit made in the process be relevant?

3. Must the applicant be considered not to be a consumer merely because she signed a standard contract of sale prepared by the defendant, the printed form of which designated the buyer as a ‘company’ and contained the text ‘business-to-business/no return, no warranty/delivery only after receipt of money’ under the heading ‘special agreements’ in a smaller font, without objecting to this and referring to the fact that she was a consumer?

4. Must the applicant accept responsibility for the conduct of her partner, who acted as a car dealer in arranging the purchase, from which the defendant could have concluded that the applicant was a trader?

5. Is it to the detriment of the applicant in the assessment of whether she is a consumer if the court of first instance was unable to determine why the written contract of sale differed from the preceding offer by the applicant’s partner in terms of the designation of the buyer or what was discussed in that regard during the telephone calls between the applicant’s partner and one of the defendant’s salespeople?

6. Is it relevant to the applicant’s status as a consumer if the applicant’s partner telephoned the defendant several weeks after taking delivery of the vehicle to enquire whether it was possible to state the VAT on the invoice?

The case has been allocated to a chamber of three judges (L.S. Rossi, J.C. Bonichot, O. Spineanu-Matei as reporting judge). No opinion was requested.

All remaining PIL-related events will take place on Thursday 23 March. A hearing is scheduled on case C-90/22, Gjensidige, also regarding the Brussels I bis Regulation, this time in relation to the CMR (Convention on the contract for the international carriage of goods by road, Geneva, 19 May 1956). The main proceedings concern a claim for compensation of loss on the basis of subrogation. In cassation, the Lietuvos Aukščiausiasis Teismas (Lithuania) is asking the Court of Justice:

1. Can Article 71 of Regulation No 1215/2012, having regard to Articles 25, 29 and 31 and recitals 21 and 22 thereof, be interpreted as permitting the application of Article 31 of the CMR Convention also in cases where a dispute falling within the scope of both those legal instruments is the subject of an agreement conferring jurisdiction?
2. Having regard to the legislature’s intention to strengthen the protection of agreements conferring jurisdiction in the European Union, can Article 45(1)(e)(ii) of Regulation No 1215/2012 be interpreted more broadly, as covering not only Section 6 of Chapter II of that regulation but also Section 7 thereof?
3. After assessment of the specific features of the situation and the resulting legal consequences, can the term ‘public policy’ used in Regulation No 1215/2012 be interpreted as covering the ground for deciding not to recognise a judgment of another Member State where the application of a specialised convention, such as the CMR Convention, creates a legal situation in which both the agreement conferring jurisdiction and the agreement on the applicable law are not observed in the same case?

The deciding chamber is composed of judges A. Arabadjiev, P.G. Xuereb, T. von Danwitz, A. Kumin (as reporting judge), and I. Ziemele. On the occasion of the hearing, AG N. Emiliou will indicate the date he will publish his opinion.

The same day the Court will publish the opinions on cases C-590/21, Charles Taylor Adjusting, and C-832/21, Beverage City Polska, both by AG J. Richard de la Tour; C-21/22 OP, by AG M. Campos Sánchez-Bordona; and C-87/22, TT (Déplacement illicite de l’enfant), by AG P. Pikamäe.

In C-590/21, Charles Taylor Adjusting (on which I already reported here) the Court has been asked whether injunctions of a court capable of hindering  the continuation of proceedings pending before the jurisdiction of another State, in particular by awarding compensation to cover the costs of the defendants before that jurisdiction, are contrary to the public policy of the European Union in the sense of Article 34(1) of Regulation  44/2001. The referring court – the Greek Areios Pagos- is asking :

(I)      Is the expression ‘manifestly contrary to public policy’ in the EU and, by extension, to domestic public policy, which constitutes a ground for non-recognition and non-enforcement pursuant to point 1 of Article 34 and Article 45(1) of Regulation No 44/2001, to be understood as meaning that it extends beyond explicit anti-suit injunctions prohibiting the commencement and continuation of proceedings before a court of another Member State to judgments or orders delivered by courts of Member States where: (i) they impede or prevent the claimant in obtaining judicial protection by the court of another Member State or from continuing proceedings already commenced before it; and (ii) is that form of interference in the jurisdiction of a court of another Member State to adjudicate a dispute of which it has already been seised, and which it has admitted, compatible with public policy in the EU? In particular, is it contrary to public policy in the EU within the meaning of point 1 of Article 34 and Article 45(1) of Regulation No 44/2001, to recognise and/or declare enforceable a judgment or order of a court of a Member State awarding provisional damages to claimants seeking recognition and a declaration of enforceability in respect of the costs and expenses incurred by them in bringing an action or continuing proceedings before the court of another Member State, where the reasons given are that: (a) it follows from an examination of that action that the case is covered by a settlement duly established and ratified by the court of the Member State delivering the judgment (or order); and (b) the court of the other Member State seised in a fresh action by the party against which the judgment or order was delivered lacks jurisdiction by virtue of a clause conferring exclusive jurisdiction?

(II)    If the first question is answered in the negative, is point 1 of Article 34 of Regulation No 44/2001, as interpreted by the Court of Justice of the European Union, to be understood as constituting a ground for non-recognition and non-enforcement in Greece of the judgment and orders delivered by a court of another Member State (the United Kingdom), as described under (I) above, where they are directly and manifestly contrary to national public policy in accordance with fundamental social and legal perceptions which prevail in Greece and the fundamental provisions of Greek law that lie at the very heart of the right to judicial protection (Articles 8 and 20 of the Greek Constitution, Article 33 of the Greek Civil Code and the principle of protection of that right that underpins the entire system of Greek procedural law, as laid down in Articles 176, 173(1) to (3), 185, 205 and 191 of the Greek Code of Civil Procedure cited in paragraph 6 of the statement of reasons) and Article 6(1) of the [European Convention on Human Rights], such that, in that case, it is permissible to disapply the principle of EU law on the free movement of judgments, and is the non-recognition resulting  therefrom compatible with the views that assimilate and promote the European perspective?

The case has been assigned to a chamber of five judges (K. Jürimäe, M. Safjan, N. Piçarra, M. Gavalec, N. Jääskinen reporting).

C-832/21, Beverage City Polska (hearing last January was announced here) concerns the interpretation of Article 8(1) of the Brussels I bis Regulation, in particular the condition of a close relationship (‘so closely connected’) required for the purposes of applying the head of international judicial jurisdiction in a situation which, potentially, could amount to “forum shopping”. The request has been referred by the Oberlandesgericht Düsseldorf (Germany), in proceedings brought by the proprietor of a number of EU trade marks including: an application for injunction throughout the territory of the Union, and an application (limited to acts in Germany) for information, the disclosure of accounts and a declaration of liability for damages. They are both directed against a German company and a Polish company as well as against two natural persons, in a personal capacity and as managers of these companies. The question referred reads:

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 Ia 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?

Judges E. Regan, D. Gratsias, I. Jarukaitis, Z. Csehi and M. Ilešič (reporting) will decide on the requested interpretation.

C-21/22, OP (Choix du droit d’un État tiers pour la succession), is a request from the Sąd Okręgowy w Opolu (Poland), on appeal lodged against the refusal by a notary practising in Poland to draw up a notarial will on behalf on an Ukrainian national; the will would contain a clause stipulating that the law applicable to all matters relating to the succession and modification of the legal order of succession would be Ukrainian law. The questions referred require the interpretation of the Succession Regulation and the ascertainment of its relationship to bilateral conventions between Member States and third States:

1. Must Article 22 [of Regulation No 650/2012] be interpreted as meaning that a person who is not a citizen of the European Union is entitled to choose the law of his or her native country as the law governing all matters relating to succession?
2. Must Article 75, in conjunction with Article 22, of Regulation No 650/2012 be interpreted as meaning that, in the case where a bilateral agreement between a Member State and a third country does not govern the choice of law applicable to a case involving succession but indicates the law applicable to that case involving succession, a national of that third country residing in a Member State bound by that bilateral agreement may make a choice of law?

Judges K. Jürimäe, M. Safjan, N.J. Piçarra,  M. Gavalec and N. Jääskinen (reporting) will decide on the matter.

Finally, in C-87/22, TT (Déplacement illicite de l’enfant), the Landesgericht Korneuburg (Austria) is asking about the scope of Article 15 of Regulation 2201/2003 (Brussels II bis), the conditions of application of that article and its relationship with Article 10 of that regulation.

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 request has been attributed to judges C. Lycourgos, K. Lenaerts, J.C. Bonichot, O. Spineanu-Matei, and L.S. Rossi (reporting).