September 2023 at the Court of Justice of the European Union
Holidays are over and September 2023 will be a busy month at the Court of Justice also as regards private international law, starting with the delivery of the Opinion by AG Emiliou in case C-90/22, Gjensidige, and of two decisions by the third and the fifth chamber respectively (both formations of five judges) already on Thursday 7.
The request for a preliminary ruling in Gjensidige comes from the Lietuvos Aukščiausiasis Teismas (Lithuania). In the case at hand, the proceedings in cassation focus on the legal provisions governing the significance of an agreement conferring jurisdiction, entered into by the parties to a contract for international carriage, in the context of determining both the jurisdiction of the court hearing the dispute that arose from that contract and the legal consequences of a breach of the lis pendens rules. The national court is asking the following:
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?
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?
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?
One the same day the Court will hand down its judgement in cases C-590/21, Charles Taylor Adjusting, and C-832/21 Beverage City Polska.
The request for a preliminary ruling in case C-590/21 was lodged by the Areios Pagos (Court of Cassation, Greece). It concerns the interpretation of Article 34(1) and Article 45(1) of the Regulation No 44/2001 (Brussels I), in proceedings on the recognition and enforcement by a court of a Member State of judgments issued by a court of another Member State which have the effect of deterring parties, which had brought proceedings before another court of the former Member State, from continuing the proceedings pending before it. The questions referred read:
(1) 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?
(2) 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 [(1)] 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 [Astikos Kodikas (Greek Civil Code)] and the principle of protection of that right that underpins the entire system of Greek procedural law, as laid down in [Article 176, Article 173(1) to (3) and Articles 185, 205 and 191] of the [Kodikas Politikis Dikonomias (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?
In his Opinion delivered on 23 March 2023, AG Richard de la Tour proposes propose that the Court of Justice answer as follows:
Article 34(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that a court of a Member State can refuse to recognise and enforce a decision on the ground that it is contrary to public policy based on the fact that that decision prevents the continuation of proceedings pending before another court of that Member State, in that it awards to one of the parties provisional damages in respect of the costs and expenses incurred by it in bringing those proceedings, where the reasons given are, first, that the subject matter of those proceedings is covered by a settlement duly established and ratified by the court of the Member State delivering that decision, and, second, that the court of the other Member State before which those proceedings were brought lacks jurisdiction by virtue of a clause conferring exclusive jurisdiction.
It is now for judges K. Jürimäe, M. Safjan, N. Piçarra, N. Jääskinen (as reporting judge) and M. Gavalec to decide.
In case C-832/21, Beverage City Polska, the Oberlandesgericht Düsseldorf (Higher Regional Court for Civil and Criminal Matters of Düsseldorf, Germany), made a request for a preliminary ruling on the interpretation of Article 8, point 1, of the Brussels I regulation, in relation to Article 122 of Regulation (EU) 2017/1001 on the European Union trade mark. The main proceedings engaged the owner of a Union trademark, established in the United States, and a distributor and its supplier, respectively domiciled in Germany and Poland, regarding the alleged violation by them of said trademark. The Court of Justice is asked to complete its jurisprudence on the requirements of the special rule established in Article 8, point 1, of Regulation No. 1215/2012, which allows several persons domiciled in different Member States to sue before the courts of the domicile of only one of them, whereas the claims filed before the referring court are directed against several companies and their administrators, against whom the action has been filed not only in their capacity as representatives of such companies, but also in their personal capacity.
AG Richard de la Tour’s Opinion, March 23, 2023 proposes the Court to answer:
Article 8(1) of Regulation (EU) No 1215/2012 …, read in conjunction with Article 122 of Regulation (EU) 2017/1001 …, must be interpreted as meaning that more than one defendant, domiciled in different Member States, may be sued in the courts for the place where one of them is domiciled that are seised, in the context of infringement proceedings, of claims brought against them by the proprietor of an EU trade mark where the defendants are alleged to have infringed that trade mark in a materially identical manner through each of their acts in a supply chain. It is for the court seised to assess whether there is a risk of irreconcilable judgments resulting from separate proceedings, taking into account all the relevant material in the case file.
The decision corresponds to judges E. Regan, D. Gratsias, M. Ilešič (reporting judge), I. Jarukaitis and Z. Csehi.
Three further decisions will be published the following week, i.e. on Thursday 14.
C-632/21, Diamond Resorts Europe e.a., is a Spanish request from the Juzgado de Primera Instancia e Instrucción n.º 2 de Granadilla de Abona on the law applicable to contractual obligations under Regulation No 593/2008 (Rome I) and (to some extent) its predecessor, the 1980 Rome Convention. The succinct presentation of the facts according to the English summary of the request establishes that an action was brought before the referring Spanish court seeking the annulment of two contracts (of 14 April 2008 and of 28 June 2010) concluded between a UK company and the applicants in the main proceedings, Mr JF and Ms NS, of British nationality. The contracts relate to the purchase of points which enable consumers to use accommodation belonging to the club owned by the defendant in Europe, including Spain. Consumers are not allocated specific accommodation, even for a specified period each year; instead, they are offered a brochure of accommodation and must request availability for each property at a particular time.
These are the questions referred to the Court:
1) Are the 1980 Rome Convention … and Regulation No 593/2008 on the law applicable to contractual obligations to be construed as applying to contracts in which both parties are United Kingdom nationals?
If the answer to the first question is in the affirmative
2) Is Regulation No 593/2008 to be construed as applying to contracts concluded before its entry into force, pursuant to Article 24 of that regulation? If the answer is no, must a club-points-based timeshare contract be treated as falling within the scope of Articles 4(3) or (5) of the 1980 Rome Convention, including where the consumer has chosen the law of a State other than his or her State of habitual residence as the applicable law? Further, if the answer is that such contracts can come under either provision, which set of rules takes priority?
3) Irrespective of the answers to the second question, is a club-points-based timeshare contract to be treated as a contract for the acquisition of rights in rem in immovable property or association-type rights in personam?
– If it is considered that rights in rem are acquired, for the purposes of determining the law applicable, which of Article 4(c) and 6(1) of Regulation No 593/2008 is applicable by way priority, including in the event that the consumer chooses the law of a State other than that of his or her State of habitual residence as the applicable law?
– If it is considered that rights in personam are acquired, are those rights to be treated as a tenancy of immovable property, for the purposes of Article 4(c), or as a provision of services, for the purposes of Article 4(b)? Further, and in any event, is Article 6(1) applicable by way of priority in so far as the contract is with a consumer and/or user, including where the consumer chooses the law of a State other than that of his or her State of habitual residence as the applicable law?
4) In all of the above cases, is national legislation which states that ‘all contracts concerning rights relating to the use of one or more immovable properties situated in Spain during a specified or specifiable period of the year are subject to the provisions of this Law, regardless of the place or the date on which such contracts were concluded’ to be interpreted as being compatible with the provisions governing the applicable law laid down in the 1980 Rome Convention and in Regulation No 593/2008?
No Opinion has been asked for. The Court will decide in a chamber of three judges, namely L. Arastey Sahún, F. Biltgen (as reporting judge) and J. Passer.
On the same day, the same chamber will hand down the judgment in case C-821/21, Club La Costa e.a., corresponding again to a Spanish request; no Opinion precedes the decision. Six questions have been referred to the Court on the Brussels I bis and Rome I Regulations:
In relation to Regulation (EU) No 1215/2012 …:
1. In the case of consumer contracts to which Article 18(1) of the Brussels I Regulation is applicable, is it compatible with that regulation to interpret the term ‘the other party to a contract’ used in that provision as encompassing only a person who signed the contract, such that it cannot include natural or legal persons other than those who actually signed the contract?
2. If the term ‘the other party to a contract’ is interpreted as encompassing only a person who actually signed the contract, in situations in which both the consumer and ‘the other party to a contract’ are domiciled outside Spain, is it compatible with Article 18(1) of the Brussels I Regulation to conclude that the international jurisdiction of the Spanish courts cannot be determined by the fact that the group of undertakings to which ‘the other party to a contract’ belongs includes companies that are domiciled in Spain but did not sign the contract or signed different contracts other than that in respect of which a declaration of nullity is sought?
3. If ‘the other party to a contract’, as referred to in Article 18(1) of the Brussels I Regulation, provides evidence that its domicile is established in the United Kingdom in accordance with Article 63(2) of the regulation, is it compatible with that provision to conclude that a domicile so established delimits the option that can be exercised under Article 18(1)? And, in addition to that, is it compatible with that provision to conclude that it does not simply establish a mere ‘presumption of fact’, or that that presumption is overturned if ‘the other party to a contract’ carries on business outside the jurisdiction of its domicile, or that the onus is on ‘the other party to a contract’ to demonstrate that its domicile, as determined in accordance with the provision cited, is the same as the place where it carries on its business?
In relation to Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008:
4. In the case of consumer contracts to which the Rome I Regulation is applicable, is it compatible with Article 3 of that regulation to conclude that clauses determining the applicable law, which are included in the ‘general conditions’ of the contract signed by the parties or which are included in a separate document which is expressly referred to in the contract and is shown to have been provided to the consumer, are valid and applicable?
5. In the case of consumer contracts to which the Rome I Regulation is applicable, is it compatible with Article 6(1) of that regulation to conclude that it can be relied on by a consumer and by the other party to a contract?
6. In the case of consumer contracts to which the Rome I Regulation is applicable, is it compatible with Article 6(1) of that regulation to conclude that, if the conditions laid down therein are satisfied, the law indicated in that provision will in all cases be applied in preference to that indicated in Article 6(3), even though the latter may be more favourable to the consumer in the particular case?
In the main proceedings, Mr NM, a British national domiciled in the United Kingdom, concluded in Spain in 2018 a timeshare contract under Spanish Law 4/2012 of 6 July 2012. Mr NM’s wife, also a British national domiciled in the UK, was a party to the contract as well, as was, through its Spanish branch, the entity Club La Costa (UK) PLC, a British company domiciled in the UK which directs its commercial activities to Spain and other countries, including the UK. The timeshare contract contained a clause according to which it ‘shall be interpreted in accordance with English law and shall be subject to the exclusive jurisdiction of the English courts.’ Mr NM brought an action against the other party to the contract, Club La Costa (UK) for a declaration of nullity of that contract before the referring court together with a claim for a refund of payments made PLC. The claim was directed as well against another four companies, three of British nationality and a fourth of Spanish nationality; none of them had participated in the conclusion of the contract at issue in the main proceedings; they had, though, in the conclusion of other contracts in which Club La Costa (UK) PLC was not involved. The disputed issue in the main proceedings is whether the Spanish courts have jurisdiction to hear the claim. It is also necessary to determine what the applicable law is. In this regard, albeit not the subject matter of a question to the Court of Justice, the doubts of the referring court are raised by the fact that under Spanish procedural law, if a foreign law is applicable, the party which invokes that law must confirm the existence and content of that law. Spanish law also lays down rules on the admission of evidence under foreign law.
Finally, the decision by judges L. Arastey Sahún, F. Biltgen (as reporting judge) and J. Passer in case C-393/22, EXTÉRIA, not accompanied by a previous Opinion, will be published on 14 September 2023. Here, the Nejvyšší soud (Supreme Court, Czech Republic) asks the Court in Luxembourg whether Article 7(1)(b) of Regulation No 1215/2012 must be interpreted ‘as meaning that the concept contract for the provision of services also includes a contract to enter into a future contract (pactum de contrahendo), in which the parties undertook to enter into a future contract that would be a contract for the provision of services, within the meaning of that provision’.
