April 2024 at the Court of Justice of the European Union
After the Easter pause the Court of Justice will resume its core activities. As of today, two decisions and two opinions are expected in private international law matters in April 2024.
On Thursday 11 April , a chamber composed by judges O. Spineanu-Matei (reporting), J.C. Bonichot and L.S. Rossi will hand down its ruling in case C-183/23, Credit Agricole Bank Polska.
The request for a preliminary ruling from the Sąd Rejonowy dla Warszawy-Śródmieścia w Warszawie (Poland), lodged on 22 March 2023, focuses on Brussels I bis Regulation and jurisdiction in absentia.
In the main dispute, Credit Agricole Bank Polska SA (‘the applicant’), claimed the amount of 10 591.64 zlotys (PLN), plus interest and legal costs, under a credit agreement for the purchase of an Apple 11 Pro phone concluded by the applicant with the defendant. Both the credit agreement and the application indicated an address for the defendant. The referring court issued an order for payment in the context of writ-of-payment proceedings.
Attempts to serve a copy of the application together with a copy of the order for payment and instructions for the defendant were unsuccessful. The referring court appointed a representative in absentia, who is a lawyer, for the defendant; said representative lodged a statement of opposition to the order for payment, without raising any objections regarding jurisdiction on the part of the Polish court. The efforts of the referring court to establish the residential address of the defendant brought no results; it shall now asses ex officio its jurisdiction.
In this context, it addresses the following questions to the Court in Luxembourg:
Is Article 6(1) of [the Brussels I bis Regulation] to be interpreted as meaning that the provisions of that regulation apply to the determination of jurisdiction in a case against a consumer in absentia who is not a national of any Member State and regarding whom, first, it is known that his or her last known place of residence was in a Member State and, second, there is credible evidence that he or she is no longer domiciled in the territory of that Member State, where there is no credible evidence suggesting that he or she has left the territory of the European Union to return to the State of which he or she is a national?
Is Article 26(1) and (2) of [the Brussels I bis Regulation] to be interpreted as meaning that an appearance entered by a representative appointed in accordance with the national law of a Member State to represent that consumer in absentia replaces the appearance of the consumer and permits the assumption that a court of that Member State has jurisdiction despite the existence of credible evidence that the consumer is no longer domiciled in the territory of the Member State concerned?
On the same day, Advocate General M. Campos Sánchez-Bordona will deliver his opinion regarding C-187/23, Albausy. The case concerns the interpretation of Article 67 of the Succession Regulation, on the issuance of European Certificates of Succession. Article 67 provides that the issuing authority must issue the Certificate without delay when the elements to be certified have been established under the law applicable to the succession or under any other law applicable to specific elements. However, according to the second subparagraph of Article 67(1), the issuing authority “shall not issue the Certificate in particular if: (a) the elements to be certified are being challenged; or (b) the Certificate would not be in conformity with a decision covering the same elements”.
The questions submitted to the Court are as follows.
(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?
A hearing took place last January, as announced on this blog. The 5th Chamber (judges E. Regan, Z. Csehi, M. Ilešič -reporting-, I. Jarukaitis and D. Gratsias) will deliver its decision, also regarding the admissibility of the request, in due time.
Advocate General L. Medina’s opinion on C-394/22, Oilchart International, is expected one week later. The Hof van beroep te Antwerpen (Belgium) has requested a ruling of the Court of Justice to remove doubts on the first Insolvency Regulation [Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings]:
(a) Must Article 1(2)(b) of the Brussels Ia Regulation (Regulation No 1215/2012) in conjunction with Article 3(1) of the Insolvency Regulation (Regulation No 1346/2000) be interpreted as meaning that the term ‘bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings’ in Article 1(2)(b) of the Brussels Ia Regulation includes also proceedings in which the claim is described in the summons as a pure trade receivable, without any mention of the respondent’s previously declared bankruptcy, whereas the actual legal basis of that claim is the specific derogating provisions of Netherlands bankruptcy law (Article 25(2) of the Wet van 30 september 1893, op het faillissement en de surséance van betaling (Law of 30 September 1893 on bankruptcy and suspension of payment; ‘NFW’)) and whereby:
– it must be determined whether such a claim must be considered a verifiable claim (Article 26 NFW in conjunction with Article 110 thereof) or an unverifiable claim (Article 25(2) NFW),
– it appears that the question whether both claims can be brought simultaneously and whether one claim does not appear to exclude the other, taking into account the specific legal consequences of each of those claims (inter alia, in terms of the possibilities of calling for a bank guarantee deferred after the bankruptcy), may be determined in accordance with the rules specific to Netherlands bankruptcy law?
And further
(b) Can the provisions of Article 25(2) [NFW] be regarded as compatible with Article 3(1) of the Insolvency Regulation, in so far as that legislative provision would allow such a claim (Article 25(2) NFW) to be brought before the court of another Member State instead of before the insolvency court of the Member State in which the bankruptcy was declared?
As already reported on the occasion of the hearing last February, the main proceedings concern a claim by the appellant, the Dutch company Oilchart International NV, for the payment of an invoice for the bunkering of an ocean-going vessel in the port of Sluiskil (the Netherlands). That invoice was still unpaid when the debtor became insolvent. Due to the provisions contained in bank guarantees, a claim for payment is being brought before a Belgian court.
The publication of the decision corresponding to joined cases C-345/22, Maersk, C-346/22, Mapfre España Compañía de Seguros y Reaseguros, and C-347/22, Maersk, is scheduled for Thursday 27. A Spanish Court of Appeal requires the interpretation of Article 25(1) of Regulation (EU) No 1215/2012 in the context of claims for damages based on the loss of goods transported by sea. They raise the issue as to the conditions under which a jurisdiction clause in a contract for the carriage of goods by sea evidenced by a bill of lading may be enforced against a third party that subsequently acquired those goods, thereby becoming a third-party holder of that bill of lading.
The questions are essentially the same in all three cases. I reproduce here those in C-345/22:
(1) Does the provision in Article 25 of [the Brussels Ia Regulation] which establishes that the automatic nullity of the agreement conferring jurisdiction must be examined in accordance with the law of the Member State on which the parties have conferred jurisdiction also apply – in a situation such as that in the main proceedings – to the question of the validity of the application of the clause to a third party who is not a party to the contract containing the clause in question?
(2) Where the bill of lading is delivered to a third-party consignee of the goods who was not involved in the conclusion of the contract between the shipper and the maritime carrier, is a rule such as that in Article 251 of the Shipping Law 14/2014 [Ley Ley 14/2014, de 24 de julio, de Navegación Marítima], which requires that, in order to be enforceable against that third party, the jurisdiction clause must have been negotiated “individually and separately” with that party, compatible with Article 25 and with the case-law of the Court of Justice interpreting that article?
(3) Is it possible under EU law for Member States’ legislation to establish additional validity requirements in order for jurisdiction clauses included in bills of lading to be enforceable against third parties?
(4) Does a rule such as that in Article 251 of the Law 14/2014 – which establishes that the subrogation of the third-party holder is only partial, and does not apply to prorogation of jurisdiction clauses – entail the introduction of an additional requirement for the validity of such clauses, contrary to Article 25 of the Brussels I bis Regulation?
In his opinion of 16 November 2023, Advocate General A.M. Collins proposes that the Court answer the questions referred as follows:
(1) Article 25(1) of [the Brussels I bis Regulation] must be interpreted as meaning that a jurisdiction clause agreed between a carrier and a shipper which is incorporated in a bill of lading is enforceable against a third-party holder of the bill of lading if, on acquiring that bill, it succeeded to the shipper’s rights and obligations. It is for the court seised of the matter to answer that question in accordance with national substantive law as established by applying its rules of private international law. The rule in that provision that the substantive validity of a jurisdiction clause is to be assessed in accordance with the law of the Member State of the court or courts designated in that clause does not govern the enforceability of a jurisdiction clause incorporated in a bill of lading against a third-party holder of that bill.
(2) Article 25(1) of [the Brussels I bis Regulation] must be interpreted as precluding national legislation under which a third party to a contract for the carriage of goods by sea concluded between a carrier and a shipper that acquires the bill of lading evidencing that contract is subrogated to all the shipper’s rights and obligations, with the exception of the jurisdiction clause incorporated therein, which is enforceable against it only where it negotiated that clause individually and separately.
The second prong of the answer could be (mistakenly) read as impling that Article 468 of the Spanish Ley de Navegación Marítima is non-compatible with EU law. The provision, entitled ‘Clauses on jurisdiction and arbitration’, actually includes a caveat to the contrary. It literally states:
Without prejudice to the provisions of the international agreements applicable in Spain and to the rules of [EU] law, clauses which provide for submission to a foreign jurisdiction or to arbitration abroad, contained in contracts for the use of a ship or in ancillary shipping contracts, shall be void and deemed not to exist if those clauses have not been individually and separately negotiated.
In particular, the insertion of a jurisdiction or arbitration clause in the printed terms and conditions of any of the contracts referred to in the preceding paragraph shall not in itself constitute evidence of compliance with the requirements laid down therein.
The decision on the joined cases will be taken by the 6th Chamber, composed by judges P.G. Xuereb, A. Kumin (reporting) and I. Ziemele.