March 2024 at the Court of Justice of the European Union

As regards private international law, March 2024 starts at the Court with the delivery of AG N. Emiliou’s opinion on C-774/22, FTI Touristik, on Thursday 7 – an opinion previously scheduled for February.

By its single question, the Amtsgericht Nürnberg (Germany) asks the CJEU whether Article 18(1) of the Brussels I bis Regulation determines, not only international judicial jurisdiction, but also internal territorial jurisdiction. In addition, this court questions the foreign element required for the application of the Brussels I bis regulation.

In the dispute in the main proceedings, a consumer filed a claim against FTI, a professional providing tourist services, in relation to a package trip. Both parties to the dispute are domiciled in the same Member State, namely Germany; the only cross-border element is constituted by the destination of the trip outside that Member State. The consumer sued before the court of his domicile. FTI relies on the rules of German territorial jurisdiction to argue lack of jurisdiction, in that these rules designate as territorially competent jurisdiction that of the headquarters of FTI Touristik.

According to the referring court, under national rules it does not have territorial jurisdiction to hear the dispute. Venue could only be deduced from the application of the Brussels I bis Regulation, more specifically its Article 18, paragraph 1. Thus the question:

Is Article 18(1) of [the Brussels I bis Regulation] to be interpreted as meaning that, in addition to providing for international jurisdiction, the rule also concerns a provision on the territorial jurisdiction of national courts in matters relating to a travel contract where both the consumer, as a traveller, and the other party to the contract, the tour operator[,] have their seat in the same Member State, but the travel destination is situated not in that Member State but abroad (so-called ‘false internal cases’) with the consequence that the consumer can make contractual claims against the tour operator supplementing national provisions on jurisdiction at the court of his or her place of residence?

The case has been allocated to a chamber of five judges (S. Prechal, N. Wahl, J. Passer, L. Arastey Sahún, and F. Biltgen acting as reporting judge).

One week later, on Thursday 14, AG M. Szpunar will communicate his opinion on C-86/23, HUK-COBURG-Allgemeine Versicherung II. The Varhoven kasatsionen sad (Bulgaria) asks :

Must Article 16 of Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II Regulation) be interpreted as meaning that a rule of national law, such as that at issue in the main proceedings, which provides for the application of a fundamental principle of the law of the Member State, such as the principle of fairness, in the determination of compensation for non-material damage in cases where the death of a close person has occurred as a result of a tort or delict, may be regarded as an overriding mandatory provision within the meaning of that article?

This question is raised in the context of an action for compensation against the insurance company HUK-COBURG, for the moral damage suffered by the parents of the deceased on a traffic accident. The accident took place in Germany; at the time it happened, there was a valid civil liability insurance contract between the driver and the German insurance company HUK-COBURG-Allgemeine Versicherung AG.

The parents of the deceased are Bulgarian nationals permanently resident in Bulgaria. In 2017 they filed claims with the Sofiyski gradski sad (Sofia City Court) against the German insurer for payment of insurance compensation for each parent as compensation for non-material damage suffered as a result of the death of their daughter. The request was declared partially founded at first instance; the appeal court overruled, finding the claimants had not demonstrated that the pain and suffering suffered had caused damage to their health, which, under German law applicable under Article 4(1) of the Rome II Regulation, would constitute a prerequisite for compensation for non-pecuniary damage. The court also rejected the argument put forward by the parents according to which Bulgarian law should be applied under Article 16 of the Rome II Regulation.

On cassation, the Varhoven kasatsionen sad (Supreme Court of Cassation), noted that there is contradictory case law from the Bulgarian courts on the question of whether the Bulgarian provision at stake constitutes a mandatory provision derogating within the meaning of Article 16 of the Rome II Regulation, leading, in the main dispute, to the exclusion of German law.

The preliminary reference will be addressed by judges C., Lycourgos,  J.C. Bonichot, S. Rodin, L.S. Rossi, and O. Spineanu-Matei acting as reporting judge.

Next event with interest for PIL readers is the hearing of March 20, regarding case C-227/23, Kwantum Nederland et Kwantum België. The questions by the Hoge Raad der Nederlanden (Netherlands) are:

1. Does the situation at issue in these proceedings fall within the material scope of EU law?

Should the preceding question be answered in the affirmative, the following questions are also submitted:

2. Does the fact that copyright on a work of applied art forms an integral part of the right to protection of intellectual property enshrined in Article 17(2) of the Charter mean that EU law, in particular Article 52(1) of the Charter, in order to limit the exercise of copyright (within the meaning of Directive 2001/29/EC) on a work of applied art by application of the material reciprocity test of Article 2(7) Berne Convention for the Protection of Literary and Artistic Works requires this limitation to be provided for by law?

3. Must Articles 2, 3 and 4 of Directive 2001/29/EC and Articles 17(2) and 52(1) of the Charter, read in the light of Article 2(7) BC, be interpreted as meaning that it is solely for the EU legislature (and not for national legislatures) to determine whether the exercise of copyright (within the meaning of Directive 2001/29/EC) in the European Union can be limited by application of the material reciprocity test provided for in Article 2(7) BC in respect of a work of applied art whose country of origin within the meaning of the Berne Convention is a third country and whose author is not a national of an EU Member State and, if so, to define that limitation clearly and precisely (see judgment of 8 September 2020, Recorded Artists Actors Performers, C 265/19, EU:C:2020:677)?

4. Must Articles 2, 3 and 4 of Directive 2001/29/EC, read in conjunction with Articles 17(2) and 52(1) of the Charter, be interpreted as meaning that as long as the EU legislature has not provided for a limitation of the exercise of copyright (within the meaning of Directive 2001/29/EC) on a work of applied art by application of the material reciprocity test of Article 2(7) BC, EU Member States may not apply that test in respect of a work of applied art whose country of origin within the meaning of the Berne Convention is a third country and whose author is not a national of an EU Member State?

5. In the circumstances at issue in the present proceedings and given the time of the establishment of (the predecessor of) Article 2(7) BC, are the conditions of the first paragraph of Article 351 TFEU satisfied for Belgium, meaning that Belgium is therefore free to apply the material reciprocity test provided for in Article 2(7) BC, taking into account the fact that in the present case the country of origin acceded to the Berne Convention on 1 May 1989?

The case revolves around the question whether an object of applied art, namely a chair designed in the United States of America, enjoys, in the Netherlands and in Belgium, copyright protection as a “work of applied arts”. The main dispute confronts Vitra, which holds the rights to the chair, and Kwantum, which operates a chain of interior design stores in the Netherlands and Belgium, on the grounds that the latter has marketed a chair which, according to Vitra, would infringe its copyright.

Before the referring court, Kwantum notes that the chair has, in more than 70 years of existence, never benefited from copyright protection in its country of origin – the United States of America. She argues in particular that Vitra cannot invoke such protection in Belgium and the Netherlands, having regard to the criterion of material reciprocity contained in Article 2(7) of the Berne Convention, which constitutes an exception to the principle of national treatment provided for in Article 5, paragraph 1, of this convention.

The deciding judges will be A. Arabadjiev, T. von Danwitz, P.G. Xuereb, A. Kumin, plus I. Ziemele as reporting judge. AG M. Szpunar will announce the date of delivery of the opinion at the end of the hearing.

Finally, on March 21, the same chamber, this time with A. Kumin reporting, will publish the decision in C-90/22, Gjensidige. I reported briefly on facts and questions here. AG N. Emiliou’s opinion was published on December 14, 2024. The Lietuvos Aukščiausiasis Teismas (Lithuania) asks:

1. Can Article 71 of Regulation No 1215/2012 [the Brussels I bis Regulation], 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] also in cases where a dispute falling within the scope of both those legal instruments is the subject of an agreement conferring jurisdiction?

2. 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 [the Brussels I bis Regulation] be interpreted more broadly, as covering not only Section 6 of Chapter II of that regulation but also Section 7 thereof?

3. After assessment of the specific features of the situation and the resulting legal consequences, can the term “public policy” used in [the Brussels I bis Regulation] 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], 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?

AG Emiliou did not consider it necessary to answer to the first question in light of what he deemed the correct answer to the following ones. He proposes the Court to interpret Article 45(1)(a) and (e)(ii) of the Brussels I bis regulation as meaning:

that the grounds for the refusal of recognition set out therein do not apply to a situation in which the court of origin established its jurisdiction on the basis of one of several rules contained in a specialised convention, within the meaning of Article 71 of Regulation No 1215/2012, which include – but do not classify as exclusive – a choice-of-court agreement, and when the court of origin was not the court designated by the choice-of-court agreement concluded by the parties concerned.

And also

as meaning that an error, when established, as to the determination of the applicable law cannot, per se, lead to the recognition of a judgment being refused on the ground that it is contrary to the public policy of the State addressed.