Case law Developments in PIL Views and comments

(Again) On the Notion of “Judgment” and “Court” in EU Private International Law.

“A rose is a rose is a rose”, goes the famous quote. It indicates a basic, intuitive truth: the words we use to designate things usually have the ability to evoke a specific imagery and the mainstream understanding of the “essence” of such things. Usually: this specification is essential in current EU private international law (EUPIL), which is based on judicial cooperation – and therefore communication – among 27 different legal systems, with all the difficulties this might entail. In particular, in this Tower of Babbel of legal languages, some of the legal concepts used by uniform EUPIL Regulations may carry an avoidable ambiguity and present problematic gray areas, where “a rose” might intuitively be “a rose” for some Member States, while appearing like a totally different exotic flower to the eyes of others.

This post focuses on the problems raised by the notions of “judgment” or “decision”, which are in turn strictly linked to the notion of “court”. In this respect, the principle of autonomous interpretation of EUPIL concepts, as established by the CJEU since 1976, seems to have undergone a certain evolution, and more recent case law has lent a remarkably multifaceted character to the interpretive approach to shape the meaning of those notions.  The preliminary ruling handed down by the CJEU on 15th November 2022 in C-646/20, Senatsverwaltung für Inneres und Sport, as well as the fact of this case, are particularly relevant for this purpose.

The Root of the Problem

The uncertainties surrounding the meaning of the notion of “judgment” in EUPIL stem from two main factors.

The first trigger lies in the limited competences of the EU, whose legislative action is bound by the principles of conferral, subsidiarity and proportionality. As a result, large areas of the Member States’ private and procedural laws remain, to the present days, untouched by the process of EU harmonization or approximation, with domestic legislators maintaining high degrees of discretion in shaping their internal laws. This is not necessarily a problem for private international law (PIL), whose raison d’être is, precisely, legal diversity. The problem of characterisation – ie the alternative between lege fori and lege causae – is a leitmotif of PIL and has engaged scholars over centuries. The “real problem” arises when EU law forces the private international lawyer to think out of the box of this traditional alternative, with the CJEU having since long established that, in interpreting the legal notions used by EUPIL instruments, “reference must be made not to the law of one of the States concerned but, first, to the objectives and scheme of [each instrument] and, secondly, to the general principles which stem from the corpus of the national legal systems’. This is the famous LTU v Eurocontrol principle, set out by case 29/76, § 3. I will come back to this principle in a moment.

The second trigger of said “communication difficulties” is inherent to, and exacerbated by, the current structure of EU law in general, and of EUPIL in particular. In the latter, the EU legislator has notably adopted a piecemeal approach to harmonization. As a result, EUPIL is composed by a wide array of subject-specific Regulations, each having a limited material scope of application and covering a particular sub-area of civil law. While the legal notions used across different EUPIL instruments could, in principle, profit from the principle of inter-textual interpretation to receive similar meanings (cf Recitals 7 of the Rome I and Rome II Regulations), the CJEU has warned against a too liberal use if this approach. In C-45/13, Kainz, the Court held that the objective of consistency cannot, in any event, lead to interpreting the notions used by a specific Regulation in a manner which is unconnected to the scheme and objectives pursued by the concerned instrument (§ 20). This is to say that the meaning of uniform legal concepts used by several EU law Regulations could undergo important sectoral variations in accordance with the specific material scope, scheme of objectives of each of them.

This problem acquires a particular importance in relation to some notions, such as the concept of “judgment”, that are used cross-cuttingly by almost all EUPIL Regulations. In a previous post, I pointed to the ambiguity of the term ‘court’ and to the different drafting techniques (and wordings) adopted by the EU legislator with respect to statutory definitions thereof. The same reasoning could be extended to the (bordering) notions of ‘judgment’ or ‘decisions’. The CJEU acknowledged the disrupting effect of these two triggers in a judgment rendered in April 2022, where it remarked that, owing to the limited (material) scope of application of EUPIL Regulations, and lacking a complete unification of Member States’ laws, ‘certain types of proceedings and court judgments in one Member State do not necessarily have an equivalent in the other Member States’ (Case C-568/20, H Limited, commented on this blog here and here). This is precisely the problem of  the “exotic rose”.

The LTU Criteria under a Growing Pressure?

Case C-646/20, Senatsverwaltung für Inneres und Sport is a good example thereof. As previously reported on this blog (here, here and here), this case concerned the recognition, in a Member State (Germany) of the dissolution of a marriage established in an agreement between spouses and pronounced by a civil registrar of another Member State (Italy).

Born from the objective of easing the burden on the court system and making divorce procedures swifter in the most “unproblematic” cases of dissolution of marriage by mutual consent, the Italian rules on extra-judicial divorces caused some interpretive doubts in Germany, where the recognition of the resulting divorce deed was sought. Ultimately, the question raised by the referring German court cut down to the definition (and the outer boundaries) of the notions of ‘judgment’ and ‘court’ retained by the Brussels IIa Regulation. Consistently with the general principle set in LTU, the starting point of the reasoning is that no weight should be given, for these purposes, to the explicit characterization established under Italian law, which specifies that the agreement concluded before the civil registrar replaces judicial decisions relating, in particular, to the procedure for dissolution and termination of the civil effects of the marriage (§§ 22-23 of the judgment).

It is worth stressing that the field of family law presents a particular challenge for the “second prong” of the LTU principle, ie for the interpretative value of the “general principles stemming from the corpus of the national legal systems”.

The LTU judgment was handed down in 1976, within the framework of a much more limited EUPIL (limited to the 1968 Brussels Convention) and a much smaller and less “legally diverse” Community (made of just nine States, with all the parties to this Convention belonging to the civil law tradition, since  the UK, Ireland and Denmark only acceded to it in 1978). The possibility of identifying some “general principles”, common or at least familiar to all of those legal systems, was not, at the time, such a preposterous idea. Indeed, in the second prong of LTU, the Court seemed to draw inspiration from both Savigny’s idea of the community of law and Rabels’ comparative approach to characterization.

Several decades later, and within the framework of a much bigger and more diverse Union, the viability and practical usefulness of said approach could be doubted, especially with respect those branches of private (and civil procedural) law that are characterized by remarkable variations at the domestic level. Over the last decade, several Member States have undertaken wide-ranging (and non-coordinated) reforms in a variety of fields, such as debt recovery or divorce law and divorce proceedings, having adopted in this respect a variety of solutions.

Concerning the latter, a common denominator of divorce reforms consists in the momentum gained by extrajudicial divorces, which have been introduced by 9 Member States (see here for the complete legal references to these reforms). Besides this general common feature (the devolution of divorce proceedings to a non-judicial body), the system set in place by said reforms vary greatly from country to country.

Firstly, there is no common solution as concerns the identification of the (non-judicial) authority empowered to hear divorce proceedings. Portugal, Italy and Estonia have chosen to delegate such proceedings to the Civil Registry Office. In Estonia, this competence is shared with the notary. The notary is also the designated authority for Latvia, Romania, France, Greece, Spain and Slovenia. Secondly, there is no common take on the breath of the devolution of divorce proceedings to non-judicial authorities. It seems (this premise is essential given the language barrier and the scarce information available in English with respect to certain jurisdictions) that in some Member States, these non-judicial authorities exercise a mandatory and exclusive jurisdiction over divorce proceedings. This means, in practice, that there is no alternative (i.e., judicial) procedural avenue open to applicants who wish to get divorced by mutual consent.

Combined together, these factors make it particularly difficult to envision the existence of the “general principles stemming from the corpus of the national legal systems” in the field of (extrajudicial) divorce.

A Practical Guide to Deciphering the “Scheme and Objectives” of EUPIL Instruments

In the light of the above, it is not surprising  that, in Senatsverwaltung für Inneres und Sport, the CJEU relied primarily on the first prong of the LTU principle, that is the “scheme and objectives” of the Brussels IIa Regulation. In particular, this judgment is especially interesting for the way in which the Court approaches the assessment thereof:  this analysis proceeds through several steps, in which the Court mobilizes distinct interpretive elements to shed better light on the scheme and/or objectives of the Brussels Ia Regulation.

My impression is that this approach, and said elements, are deemed to acquire increasing importance in future cases, especially in areas where the second prong of the LTU principle – ie the “general principles stemming from the corpus of the national legal systems” – is not of much help owing to the uncoordinated and diverse evolution of the domestic laws of Member States.

These “general interpretive guidelines” can be summarized as follows:

1. The importance of the letter of the law (and of statutory definitions)

After having recalled the principle of autonomous interpretation of the notions used by the Brussels IIa Regulation, and particularly by its Articles 2 (4) and 21 (§ 41 of Senatsverwaltung für Inneres und Sport), the CJEU summarizes the general objectives pursued by this instrument (§§ 42-45).

The judgment places particular emphasis on the broad wording used by Article 2 (1) and (4) of these Regulation, pursuant to which “the term court shall cover all authorities in the Member States with jurisdiction in the matters falling within the scope of the [Brussels IIa] Regulation pursuant to Article 1”, whereas the notion of “judgment” shall include, inter alia, “a divorce…whatever the judgment may be called…”.

Siding on this point with the Opinion of AG Collins, who also referred to the wide definition of “judge” adopted by Article 2(2) (§ 35), the CJEU concluded that the Brussels IIa Regulation is “is capable of covering divorces which have been granted at the end of both judicial and extrajudicial proceedings, provided that the law of the Member States also confers jurisdiction in relation to divorce on extrajudicial authorities ”.

As I have already remarked elsewhere, however, EUPIL statutory definitions of “court” vary greatly from instrument to instrument, as concerns both their specific contents and the drafting technique (see a recap table here). This circumstance must be born in mind when trying to transplant interpretive solutions from one EUPIL instrument to another.

2. The importance of ‘inter-textual’ interpretation.

It is also significant to note that, in Senatsverwaltung für Inneres und Sport, the CJEU itself resorts to inter-textual interpretation. In that case, however, the Court adopts a “vertical”, rather than a “horizontal” approach: that is to say, reference is made not to EUPIL instruments covering tangential subject-matters, but to the evolution (if any) of a single instrument over time, through subsequent recasts.

In support of the broad reading of the notion of judgement resulting from the wording of Article 2(4), the CJEU referred to the considerably clearer stance taken on this point by the successor of Regulation 2201/2003 (§ 58). In particular, Recital 14 of the Brussels IIb Regulation states that “any agreement approved by the court following an examination of the substance in accordance with national law and procedure should be recognized or enforced as a decision”. On this point, the Court accepts the Commission’s submission whereby the Brussels IIb Regulation is no innovation in the pre-existing legal regime, its Recital 14 being therefore useful to clarify the notions used by the Brussels IIa Regulation (§ 61; see, in this respect, the opposite stance taken by the German Government, summarized in §§ 52 and 53 of the AG Opinion).

3. The importance of preparatory works.

While the “vertical” approach is, in theory, less risky than the “horizontal” one, insofar as it should not expose to the dangers of evoked by Kainz, it may require to invest considerable efforts in researching preparatory woks. Very often, the legislator’s intent is not clearly expressed by the initial Proposal made by the EU Commission, but emerges later on in the debates within the Parliament or in other exchanges held during the legislative process.

This was the case as concerns the definition of court in the Brussels IIb Regulation. Even though the Commission’s Proposal already made clear that the scope of the Recast should have been limited to matters of parental responsibility (and should therefore not have touched too much upon most of the general definitions set by Article 2) a political discussion about the notion of court topic took place and appeared for the first time in this document, well into the negotiation phase. An explicit proposal to include a Recital dedicated to this issue emerged later on (see this document).

In proceedings before the CJEU, important insights on the unfolding of the legislative process may come from the Commission’s observations, which are systematically filed in all EUPIL preliminary references (see here). Outside this specific context, however, researching the original intent of the EU legislator might be quite burdensome for the “average interpreter”, in cases where this intent does not clearly stand out in the Commission’s proposal.

4. The importance of the type of examination (on the merits) involved in extrajudicial proceedings.

As specifically concerns the notions of “judgment” or “decision”, and “court” or “tribunal”, the most important criterion used by the CJEU remains the assessment of the type of functions performed by the seized domestic authority.

This approach is used by the CJEU even outside the field of EUPIL (for example, in order to identify the “courts or tribunals” of a Member State for the purposes of Article 267 TFUE), with important sectoral variations. In fact, the Court has always stressed that the uniform meaning of these notions (and of “court” in particular) in EU Law must be fitted to the specific context in which they are called to operate.

In this respect, Senatsverwaltung für Inneres und Sport is no exception, as the most important in the clarification provided by Recital 14 of the Brussels IIb Regulation consists, precisely, in  the explicit identification of the constitutive element of a “decision” in the field of family law and parental responsibility. This “constitutive element” is of fundamental importance for distinguishing “decisions” from the two other types of legal acts contemplated by that Regulation, ie the “authentic instrument” on the one side, and the “agreements that are neither a decision nor an authentic instrument, but have been registered by a public authority competent to do so”, on the other side.

According to the CJEU, the decisive element in the definition of decision is the existence of a prior examination, made by or under the supervision of the competent (public) authority, of the substance of the matter. While the AG endeavored to demonstrate the substantial identity of the tasks performed by the authority conducting a procedure of divorce by mutual consent, which remain essentially the same in a judicial and in an extrajudicial setting (§ 41 of the Opinion), the CJEU focused on the substantive content of these tasks (§§ 54, 57 and 63-66).

What shall an “examination of the substance of the matter” entail, according to the Court?

First, referring to Solo Kleinmotoren, the CJEU reasserts that the competent authority “must retain control over the grant of the divorce”, which implies the examination of the content of the divorce agreement in the light of the applicable provisions of national law, with a view to verify whether the legal requirements set therein are satisfied, as well as the existence and validity of the spouses’ consent to divorce (§§ 54-55). This aspects marks an important difference between consensual divorces and other types of settlement which are “essentially contractual in nature”, as the tasks of the competent authority are limited to the “passive” recording of an agreement, without any examination of its content in the light of the legal provisions in force (§ 57).

Second, the Court attached specific importance to the binding nature of the agreement drafted by the Italian civil registrar (§ 63), as well as to the means and formalities for the examination of the validity and existence of the spouses’ consent (§ 64).

Combined with the analysis of the tasks relating to the examination of the content of the agreement in the light of the Italian legal provisions on extrajudicial divorces (§ 65), these elements led the CJEU to consider that the Italian Civil Registrar retained sufficient control over the grant of the divorce, the resulting agreement being therefore a “judgment” within the meaning of Article 2 (4) of the Brussels IIa Regulation, interpreted in the light of Recital 14 of the Brussels IIb Regulation.

5. The importance (if any) of practical and/or “political” considerations.

As seen above, the arguments drawn from the inter-textual interpretation of the Brussels Ia and Brussels IIb Regulations played a significant role in supporting the solution finally retained in Senatsverwaltung für Inneres und Sport. Such inter-textual reading  was deployed by the CJEU to reinforce the argument based directly on the “open-ended” statutory definitions set out by Article 2 of the Brussels IIa Regulation.

In this respect, the Court accepted the Commission’s view that, in adopting the newest Regulation, “the EU legislature was not seeking to innovate and introduce new rules, but only to ‘clarify’, on the one hand, the scope of the rule already laid down in Article 46 of the Brussels IIa Regulation and, on the other hand, the criterion for distinguishing the concept of ‘judgment’ from those of ‘authentic instrument’ and ‘agreement between the parties’, namely the criterion relating to the examination of the substance” (§61). As a result, the CJEU could hold that “that interpretation of the concept of ‘judgment’ cannot be invalidated by the fact that no Member State had yet made any provision in its legislation, at the time of the development and adoption of the Brussels IIa Regulation, for the option for spouses to divorce through extrajudicial means” and that this “interpretation follows directly from the broad and open definitions of the concepts of ‘court’ and ‘judgment’ referred to in Article 2(1) and (4) of that regulation” (§ 50).

This “temporal dimension” of the evolution of extrajudicial divorces across EU Member States was approached much more pragmatically by AG Collins. Without referring to the alleged continuity between the two Regulations, and deeming the latest Recast incapable of supporting “any conclusions…for the purposes of interpreting Regulation 2201/2003” (§ 54, last sentence), AG Collins derived a separate duty, for the judiciary, to interpret “clearly open” definitions set out by EU law “in the light of present day circumstances” (§ 54). “The law cannot cut itself from society as it is, and must not fail to adjust to it as quickly as possible, since it would otherwise risk imposing outdated views and adopting a static role”, he contended. Therefore, “in accordance with that view, EU law must be interpreted in a dynamic manner, in order to avoid it becoming ‘fossilised’”.

While the solution adopted the CJEU is to be appreciated for its strong foundations in the letter of the law and the clear legislative intent behind said EUPIL Regulations, the approach proposed by AG Collins is certainly alluring from an academic point of view. It is in fact indisputable that, at the time the Brussels Ia was adopted, no Member State had introduced extrajudicial divorces in its national legal order. Portugal was the first Member State to proceed in this sense, followed in 2010 by three additional Member States (Estonia, Romania and Latvia). Italy followed in 2014 with the procedure analyzed by the CJEU in Senatsverwaltung für Inneres und Sport, tailed by Spain (2015) and France (2016). Finally, in 2017, the new family law code of Slovenia and the Greek law No. 4509/2017 completed the current picture. Seen from this standpoint, it is quite clear that extrajudicial divorces have recently become a veritable legislative trend, which is slowly acquiring a pan-European dimension.

Against this evolving backdrop, AG Collins’ warning against the risks of a “fossilised” EUPIL, no longer suitable for the needs of its final users, reflected a serious concern and evokes the “political dimension” of this field of law remarked by Professor Kinsch in his Hague Academy Course. The latter is linked, among others, to a consistent rhetoric of the EU Commission, which tends to highlight the benefits and advantages that “mobile citizens” can derive from the unified and pan-European EUPIL regimes.

In this vein, the Commission’s initial Proposal for the Brussels IIb Regulation stressed that a Recast was needed in conformity with the objectives set by the Juncker Commission’s Political Guidelines. According to these Guidelines, judicial cooperation among EU Member States had to “be improved step by step keeping up with the reality of increasingly mobile citizens across the Union getting married and having children, by building bridges between the different justice systems and by mutual recognition of judgments, so that citizens can more easily exercise their rights across the Union”. In line with these objectives, the Commission is presenting the new rules as a tangible proof that “the EU works to protect our children and families, ensuring that Member States enforce each other’s judicial decisions” (see the promotional video available here). In particular, “considering the growing number of Member States which allow out-of-court agreements on legal separation and divorce or on matters of parental responsibility, the new rules will facilitate the circulation of [authentic] instruments and [out-of-court] agreements” (here).

In the end, this “pragmatic argument” based on the consideration that EUPIL should keep in touch with an evolving reality in order to serve properly the interests of its final intended users, found no space in the Senatsverwaltung für Inneres und Sport, but could hypothetically become an additional interpretive tool in future cases, in those field of substantive private law presenting a similar evolution.

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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