January 2024 at the Court of Justice of the European Union

The external activity of the Court of Justice resumes on 8 January 2024. On 11 January, Advocate General M. Szpunar will publish his opinion on C-632/22 (Assignation au siège d’une filiale de la défenderesse). I reported on the case on the occasion of the hearing, which took place last October. The Spanish Supreme Court has sent to Luxembourg these two questions in relation to service of process and the right to a due process in a competition case involving companies with seat in different Member States.

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?

A hearing on case C-187/23 Albausy, will take place at the very end of the month, on Wednesday 31. Faced with an application to grant a European certificate of succession by a (presumptive) heir, with other (equally presumptive) beneficiaries to the estate contesting the will, the Amstgericht Lörrach (Germany) asks several questions on Article 67 of the Succession Regulation (Regulation 650/2012):

(a)     Must point (a) of the second subparagraph of Article 67(1) of the Succession Regulation be interpreted as meaning that it also refers to challenges raised in the procedure for issuing the European Certificate of Succession itself, which the court is not permitted to examine, and that it does not refer only to challenges raised in other proceedings?

(b)     If the answer to Question (a) is in the affirmative: Must point (a) of the second subparagraph of Article 67(1) of the Succession Regulation be interpreted as meaning that a European Certificate of Succession may not be issued even if challenges have been raised in the procedure for issuing the European Certificate of Succession, but they have already been examined in the proceedings for the issuance of a certificate of inheritance under German law?

(c)     If the answer to Question (a) is in the affirmative: Must point (a) of the second subparagraph of Article 67(1) of the Succession Regulation be interpreted as covering any challenges, even if they have not been substantiated and no formal evidence is to be taken of that fact?

(d)         If the answer to Question (a) is in the negative: In what form must the court state the reasons that led it to reject the challenges and to issue the European Certificate of Succession?

At the time of registration, the second question seemed hypothetical as no other proceedings for the issuance of a national certificate were pending, nor is it for sure that the objections raised against the European certificate would be examined there. Further doubts on admissibility will certainly be discussed at the hearing. Should the Court of Justice answer on the merits, other provisions of the Succession regulation (i.e., not only its Article 67) will likely be interpreted as well for the Court to provide useful guidance to the national jurisdiction.

C-187/23 has been allocated to a chamber of five judges (E. Regan, Z. Csehi, M. Ilesic, I. Jarukauti, D. Gratsias). M. Campos Sánchez-Bordona will provide an opinion in due time.

No other requests directly concerning private international law are scheduled to be dealt with in January.

On a wider perspective, I would like to mention case C-4/23, Mirin. This Grand Chamber case, with judge M. Ilesic reporting and an opinion by J. Richard de la Tour, has been prompted by a change of gender (from female to male), followed by the change of the name and a number of documents, of a British national who had actually been born in Romania. The applicant identified as male, on 21 February 2017, by means of the Deed Poll procedure; on 29 June 2020, he obtained in the United Kingdom a Gender Recognition Certificate confirming the male gender identity. In May 2021, he contacted the competent Romanina authorities requesting, directly on the basis of the Deed Poll and the Gender Identity Certificate, that the change of gender and first name be entered in the birth certificate, that the appropriate change be made to the personal numeric code to reflect the male gender, and that a matching birth certificate be issued. He contested the negative to the application before the Judecătoria Sectorului 6 București (Court of First Instance, Sector 6, Bucharest), which is asking now the Court of Justice the following questions:

(1)     Does the fact that Article 43(i) and Article 57 of Legea nr. 119/1996 privind actele de stare civilă (Law No 119/1996 on civil status documents) do not recognise changes in civil status made in another Member State by means of the procedure for legal recognition of gender to entries concerning gender and first name by a transgender man who has dual nationality (Romanian and of another Member State) and require a Romanian citizen to bring, from the outset, separate judicial proceedings in Romania against the local Public Service for Personal Records and Civil Status – proceedings which have been held to lack clarity and foreseeability by the European Court of Human Rights (X and Y v. Romania, nos. 2145/16 and 20607/16, 19 January 2021) and which may lead to a decision contrary to that taken by the other Member State – constitute an obstacle to the exercise of the right to European citizenship (Article 20 of the Treaty on the Functioning of the European Union) and/or the right of citizens of the Union to move and reside freely (Article 21 of the Treaty on the Functioning of the European Union and Article 45 of the Charter of Fundamental Rights of the European Union) in conditions of dignity, equality before the law and non-discrimination (Article 2 of the Treaty on European Union; Article 18 of the Treaty on the Functioning of the European Union, and Articles 1, 20 and 21 of the Charter of Fundamental Rights of the European Union), respecting the right to private and family life (Article 7 of the Charter of Fundamental Rights of the European Union)?

(2)     Does the departure of the United Kingdom of Great Britain and Northern Ireland from the European Union affect the answer to the above question, in particular where (i) the procedure for changing civil status was commenced before Brexit and was completed during the transition period, and (ii) the impact of Brexit means that the person cannot benefit from rights attached to European citizenship, including the right to free movement and residence, except on the basis of Romanian identity or travel documents in which that person appears with a female gender and first name, contrary to the gender identity that has already been legally recognised?

A hearing is scheduled on 23 January 2024.