May 2024 at the Court of Justice of the European Union

On 7 May 2024, Advocate General J. Richard de la Tour will deliver his Opinion in case C-4/23, Mirin. I reported on this case related to the recognition of changes on civil status of a European citizen with dual nationality on the occasion of the hearing last January. For the record, here are the questions the Judecătoria Sectorului 6 București (Romania) is asking Luxembourg:

(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?

As announced, the decision will be one of Grand Chamber.

One week later (that is, on 14 May) those interested in patents and in the interpretation of Article 24(4) Brussels I bis are invited to attend on site the second hearing in case C-339/22, BSH Hausgeräte, or to watch it on-line the same day, from 14.30 pm. The Svea hovrätt (Svea Court of Appeal, Stockholm) referred to the Court of Justice for a preliminary ruling questions requiring, among other, a declaration on the so called effet réflexe of Article 24 grounds for jurisdiction:

(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], 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 [Brussels I bis Regulation] to be interpreted as being applicable to a court of a third [State], that is to say, in the present case, as also conferring exclusive jurisdiction on a court in [Türkiye] in respect of the part of the European patent which has been validated there?

After Advocate General N. Emiliou delievered his Opinion (commented by Lydia Lundstedt here), the Court handed over the case to the Grand Chamber at the request of the Fourth Chamber originally in charge of rendering the decision. The reopening of the oral phase of the proceedings has been ordered in accordance with Article 83 of the Rules of Procedure of the Court.

The interested parties referred to in Article 23 of the Statute of the Court of Justice of the European Union have been asked to focus their submissions on the question concerning the potential “reflexive effect” of Article 24(4) in relation to patents registered in third countries. The Court’s order contains an annex with a list of 7 questions for the parties to answer at the hearing, which all focus on that question (available in Swedish or French).

The application of the Brussels I bis Regulation (and its predecessors) to situations within the scope of Article 24 that feature strong connections to third states raises difficult issues. So far, the Court has either avoided to address those issues (C-281/02 (Owusu) paras 47-52) or has dealt with them in a summary fashion (C‑399/21 (IRnova) paras 34-35, (reported on this blog here). It is not surprising that this case has attracted significant attention and has been the subject of a Virtual Workshop on Conflict of law.net with Professor Marta Pertegás Sender and discussed in other blogs (see GavLaw).

Finally, on 16 May the Court will render its decision in C-222/23, Toplofikatsia Sofia, a Bulgarian-originating case I also reported on when the preliminary reference was published in the Official Journal (see here). As explained, the request is the first one on the new Service Regulation. This notwithstanding, the bulk of the questions concern the notion of ‘domicile’ under Brussels Ibis and their answers seem to be easy inferrable from already existing case law of the Court. By way of consequence, the Fourth Chamber (C. Lycourgos, J.C. Bonichot, S. Rodin, L.S. Rossi, and O. Spineanu-Matei reporting), has not asked for an Opinion. The questions read:

Is Article 62(1) of [the Brussels I bis Regulation], read in conjunction with Articles 18(1) and 21 TFEU, to be interpreted as precluding the concept of a natural person’s ‘domicile’ from being derived from national legislation which provides that the permanent address of nationals of the forum State is always situated in that State and cannot be transferred to another place in the European Union?

Is Article 5(1) of [the Brussels I bis Regulation], read in conjunction with Articles 18(1) and 21 TFEU, to be interpreted as permitting national legislation and national case-law under which a court of a State may not refuse to issue an order for payment against a debtor who is a national of that State and in respect of whom there is a reasonable presumption that the court lacks international jurisdiction because the debtor is likely to be domiciled in another EU State, which is apparent from the debtor’s declaration to the competent authority that he has a registered address in that State? In such a case, is the date on which that declaration was made relevant?

Where the international jurisdiction of the court seised is derived from a provision other than Article 5(1) of [the Brussels I bis Regulation], must Article 18(1) TFEU, read in conjunction with Article 47(2) of the Charter of Fundamental Rights, be interpreted as precluding national legislation and national case-law under which an order for payment may be issued only against a natural person who is habitually resident in the forum State, but a finding that the debtor, if a national of that State, has established that he is resident in another State cannot be based solely on the fact that he has given the first State a registered address (‘current’ address) that is in another State of the European Union, if the debtor is unable to demonstrate that he has entirely moved to that other State and has no address in the territory of the forum State? In this case, is the date on which the declaration concerning the current address was made relevant?

If the answer to the first part of the third question is that the issue of an order for payment is permissible, is it permissible under Article 4(1) of [the Brussels I bis Regulation], read in conjunction with Article 22(1) and (2) of [the Recast Service Regulation], as interpreted in the judgment in Case C-325/11, Alder, and in conjunction with the principle of effective application of EU law in the exercise of national procedural autonomy, for a national court of a State in which nationals cannot give up their registered addresses in the territory of that State and cannot transfer them to another State, when it receives an application for an order for payment in proceedings in which the debtor is not involved, to obtain information in accordance with Article 7 of [the Recast Service Regulation] from the authorities of the State in which the debtor has a registered address about the debtor’s address in that State and the date of registration there, in order to determine the debtor’s actual habitual residence before the final decision is given in the case?

— Thanks to Lydia Lundstedt, Associate Professor and Senior Lecturer at Stockholm University, for contributing to this post.