Case law Developments in PIL

November 2023 at the Court of Justice of the European Union (and an Update on October)

In November 2023, the Fourth Chamber of the Court of Justice, with C. Lycourgos presiding and O. Spineau-Matei reporting, will hand down her decision in case C-497/22, Roompot Service. The scheduled delivery date is Thursday 16. The request for a preliminary ruling, from the Landgericht Düsseldorf (Germany), was lodged on 22 July 2022, focuses on Article 24 of the Brussels I bis Regulation. The question reads:

Must the first sentence of Article 24(1) of [the Brussels I bis Regulation] be interpreted as meaning that a contract which is concluded between a private individual and a commercial lessor of holiday homes in relation to the short-term letting of a bungalow in a holiday park operated by the lessor, and which provides for cleaning at the end of the stay and the provision of bed linen as further services in addition to the mere letting of the bungalow, is subject to the exclusive jurisdiction of the State in which the rented property is situated, irrespective of whether the holiday bungalow is owned by the lessor or by a third party?

Advocate General J. Richard de la Tour’s opinion was published on June 29. He offers a principal answer and a subsidiary one:

The first subparagraph of Article 24(1) of [the Brussels I bis Regulation] must be interpreted as meaning:

principally, that it does not apply to a contract under which holiday accommodation in a holiday park is made available by a tourism professional for short-term personal use;

in the alternative, that it covers a claim for repayment of part of the price paid following a change by one of the parties to the terms of a contract for the rental of holiday accommodation.

This double proposal relates to the fact that, according to Mr. Richard de la Tour, in light of the decision in C-289/90, Hacker, the contractual relationship in the case at hand should be classified as a ‘complex contract’ within the meaning of that case-law. By way of consequence, the provision by a tourism professional of accommodation in a holiday park for short-term personal use does not fall within the scope of the first subparagraph of Article 24(1) of the Brussels I bis Regulation. The subsidiary answer comes into play only if the Court of Justice gets nevertheless to a different conclusion, thus holds that the contract in question relates exclusively to the letting of holiday accommodation, as in the judgment in C- 8/98, Dansommer.

The next PIL event will take place on Thursday 30. Advocate General N. Emiliou’s opinion on C-339/22, BSH Hausgeräte, will then be published. The main proceedings, before the Svea hovrätt, Patent- och marknadsöverdomstolen (Sweden), concern international jurisdiction regarding patents under the Brussels I bis Regulation. Here are the questions referred:

  1. Is Article 24(4) of [the Brussels I bis Regulation] to be interpreted as meaning that the expression ‘proceedings concerned with the registration or validity of patents … irrespective of whether the issue is raised by way of an action or as a defence’ implies that a national court, which, pursuant to Article 4(1) of that regulation, has declared that it has jurisdiction to hear a patent infringement dispute, no longer has jurisdiction to consider the issue of infringement if a defence is raised that alleges that the patent at issue is invalid, or is the provision to be interpreted as meaning that the national court only lacks jurisdiction to hear the defence of invalidity?
  2. Is the answer to Question 1 affected by whether national law contains provisions, similar to those laid down in the second subparagraph of Paragraph 61 of the Patentlagen (Patents Law; ‘the Patentlagen’), which means that, for a defence of invalidity raised in an infringement case to be heard, the defendant must bring a separate action for a declaration of invalidity?
  3. Is Article 24(4) of the [the Brussels I bis Regulation] to be interpreted as being applicable to a court of a third country, that is to say, in the present case, as also conferring exclusive jurisdiction on a court in Turkey in respect of the part of the European patent which has been validated there?

A hearing on the case took place last May. The deciding chamber is composed by judges C. Lycourgos, O. Spineanu-Matei (reporting), J.C. Bonichot, S. Rodin, and L.S. Rossi.

Finally, I would like to report on the hearing on case C-632/22, Volvo (Assignation au siège d’une filiale de la défenderesse), which actually happened on October 18. The request, from the Spanish Supreme Court, was lodged on 10 October 2022. On the website of the Court of Justice it falls under the category ‘Competition’. On the merits, the problem is rather one of service of process in a cross-border setting:

  1. In the circumstances surrounding the litigation relating to the trucks cartel, described in this order, is it possible to interpret Article 47 of the Charter of Fundamental Rights of the European Union, in conjunction with Article 101 of the Treaty on the Functioning of the European Union, in such a way that service of process on a parent company against which an action for damages for the harm caused by a restrictive trade practice has been brought is considered to have been properly effected when such service was effected (or attempted) at the place of business of the subsidiary company established in the State in which the legal proceedings were brought, while the parent company, which is established in another Member State, has not entered an appearance in the proceedings and has remained in default?

2. If the previous question is answered in the affirmative, is that interpretation of Article 47 of the Charter compatible with Article 53 of the Charter, in the light of the case-law of the Spanish Tribunal Constitucional (Constitutional Court) on the service of process on parent companies established in another Member State in disputes relating to the trucks cartel?

The background of the request is easy to understand. Following publication of the Decision of the European Commission of 19 July 2016 (Case AT. 39824 – Trucks), in Spain thousands of proceedings for damages have been lodged by purchasers of vehicles affected by the trucks cartel. Almost all actions were brought by small or medium undertakings which had purchased a very small number of trucks, or even just one truck, in the period in which the cartel operated. None of the undertakings (parent companies) penalised by the European Commission has its registered office in Spain. Given that, in the majority of the proceedings, the amount claimed is not very high, the costs involved in having to translate the application and, where necessary, any annexes, may be disproportionately high. To avoid such costs and the time delay entailed by the necessary international judicial cooperation, the applicants in those proceedings frequently ask for the service of process at the business address of the subsidiary company in Spain, even though the defendant parent company is established in another Member State.

The preliminary reference has been assigned to the Fifth Chamber (judges E. Regan, M. Ilešič, I. Jarukaitis, D. Gratsias, and, exceptionally, K. Lenaerts), which will supported by the opinion of 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

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