October 2023 at the Court of Justice of the European Union

The Court of Justice will not be extremely busy with private international law this October, but I am pretty sure the three cases – one of them in particular- have generated a lot of expectation beyond the usual crowd.

Advocate General J. Richard de la Tour will deliver his Opinion in case C-566/22, Inkreal, on Thursday 12. In the request for a preliminary ruling, the Nejvyšší soud (The Supreme Court, Czech Republic) submits the following question to the Court:

From the perspective of the existence of an international element, which is required for [the Brussels I bis regulation] to apply, is the application of that regulation to be based solely on the fact that two parties with their seat in the same Member State agree on the jurisdiction of courts of another EU Member State?

The main proceedings concern an application for the payment of EUR 153,740 plus interest and ancillary costs. The applicant, a company incorporated under Slovak law and established in Slovakia, is asking for the determination of the court having territorial jurisdiction to rule on the merits of the case pursuant to Law No 99/1963 – the code of civil procedure- as amended (the ‘CCP’).

The amount of EUR 153,740 corresponds to receivables assigned to the applicant by means of an agreement dated 8 December 2021. The receivables arose from an Agreement on a Financial Loan dated 29 June 2016 and Agreement on a Financial Loan dated 11 March 2017, entered into by the applicant’s legal predecessor, as the creditor, and the defendant, as the debtor. Both creditor and debtor are domiciled in Slovakia.

According to the Loan Agreements, ‘any ambiguities or disputes arising from the Agreement and in connection therewith shall be first resolved by negotiation aimed at reaching a solution acceptable for both parties. If the parties are unable to settle such a dispute, the dispute shall be settled by a court of the Czech Republic having substantive and territorial jurisdiction, in line with Law No 99/1963, the Code of Civil Procedure, as amended.’ The applicant holds that this is a valid prorogation agreement in a private law relationship involving international elements, pursuant to Article 25(1) of the Brussels I bis regulation, and there is no special or exclusive jurisdiction of another court pursuant to the regulation. The applicant states that, in view of the fact that the defendant is a legal entity having its registered office abroad with no plant or organisational unit in the Czech Republic, and that, at the same time, international jurisdiction of the courts of the Czech Republic is given pursuant to the Brussels I bis regulation, territorial jurisdiction cannot be determined in the standard fashion, as the conditions for determining territorial jurisdiction pursuant to the CCP are lacking or cannot be established. The applicant asked the Supreme Court to determine which court will hear and decide the matter.

The case will be decided by a chamber of five judges, with A. Kumin as reporting judge.

On the same day, the Court will publish its decision on C-21/22, OP, on Regulation (EU) No 650/2012 on matters of succession. I reported on the case here. In his Opinion delivered on 23 March 2023, related only to the second question asked, Advocate General M. Campos Sánchez-Bordona suggests the Court of Justice replies to the Sąd Okręgowy w Opolu (Regional Court, Opole, Poland) as follows:

Article 75 of Regulation (EU) No 650/2012 …, in conjunction with Article 22 thereof, is to be interpreted as not precluding a situation where, pursuant to a bilateral treaty concluded between a Member State and a third country before the accession of that Member State to the European Union, a national of the third country, who is resident in the Member State bound by the bilateral treaty, does not have the right to choose the law applicable to his or her succession.

Finally, on 17 October 2023, a hearing will take place in case C-633/22, Real Madrid Club de Fútbol. Here, the French Court of Cassation requests the interpretation of the ‘old’ Brussels Regulation in relation to the Charter of Fundamental Rights of the EU:

1) Must Articles 34 and 36 of the [Brussels I] regulation and Article 11 of the Charter of Fundamental Rights of the European Union be interpreted as meaning that a financial penalty imposed for harm caused to the reputation of a sports club by the publication of a story in a newspaper can manifestly infringe freedom of expression and therefore constitute a ground for refusing to recognise and enforce a judgment?

2) In the event of an affirmative answer, must those provisions be interpreted as meaning that the court in which enforcement is sought may find that the penalty is disproportionate only where the damages have been categorised as punitive either by the court of origin or by the court in which enforcement is sought and not where they have been awarded as compensation for non-material damage?

3) Must those provisions be interpreted as meaning that the court in which enforcement is sought may take account only of the deterrent effect of the penalty in the light of the resources of the person on whom the penalty is imposed, or may it have regard to other factors such as the seriousness of the wrong or the extent of the harm?

4) Can the deterrent effect in the light of the resources of the newspaper in itself form a ground for refusing to recognise and enforce a judgment due to a manifest infringement of the fundamental principle of freedom of the press?

5) Must the deterrent effect be understood as meaning that the financial stability of the newspaper is threatened or may it simply refer to an intimidating effect?

6) Must the deterrent effect on the newspaper publishing house and on a journalist as an individual be assessed in the same way?

7) Is the general economic situation of the print media a relevant factor when assessing whether, beyond the newspaper in question, the penalty is likely to have an intimidating effect on the media overall?

Background of the preliminary reference is a Spanish decision sentencing the newspaper Le Monde and one of its journalists to pay damages to Real Madrid and to AE, a member of its medical team, for damage to their reputation. Real Madrid and AE asked for the recognition and enforcement of the decision in France; the Paris Court of Appeal refused. On cassation, the referring court asks the Court a series of questions relating to the reason for refusal of recognition based on public policy (Article 34, point 1, of the Brussels I Regulation), read in the light of Article 11 of the Charter.

Judge T. von Danwitz will act as reporting judge for a decision to be taken by the Grand Chambre, benefiting from an Opinion by Advocate General M. Szpunar.

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

%d bloggers like this: