September 2024 at the Court of Justice of the European Union

Back to normal activity as of 3 September, here is the planning in relation to cases on private international issues for this month.

Advocate General N. Emiliou’s second opinion in case C-339/22, BSH Hausgeräte, expected in July (see here), was re-scheduled and should be delivered on Thursday 5. On the same day, Advocate General J. Richard de la Tour will publish his opinion in case C-526/23, VariusSystems, in relation to a request from the Oberster Gerichtshof (Austria) on Article 7(1) of the Brussels I bis Regulation. The question reads:

Must Article 7(1)(b) of [the Brussels I bis Regulation] on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters be interpreted as meaning that, in the case of an action relating to a contract, the place of performance for the development and ongoing operation of software designed to meet the individual needs of a customer established in Member State A (in this case Germany) is at the place where

(a) the intellectual creation (‘programming’) behind the software is performed by the undertaking established in Member State B (in this case Austria); or

(b) the software reaches the customer, that is to say where it is accessed and used?

In the main proceedings, the applicant company has its registered office in Vienna and operates in the IT services sector. The defendant is established in Germany. The applicant developed software for the defendant to make it possible to evaluate corona tests in accordance with the requirements of the German legislature and for use in German testing centres. The subject matter of the contract was the initial and ongoing development and the ongoing operation of the software in Germany. There was no written contract nor any specific agreement on either a place of jurisdiction or a place of performance.

The applicant is now seeking payment from the defendant for the performance period from 1 January 2022 to 3 June 2022. According to her, the software had been specially adapted and further developed for the individual needs of the defendant; the software had been continuously adapted for use in Germany, but all work had been carried out in Vienna. The applicant thus based the jurisdiction of the court seised on the second indent of Article 7(1)(b) of the Brussels I bis Regulation – the services within the meaning of the contract had been provided or should have been provided in Vienna.

The defendant alleged that the court seised lacks international jurisdiction. In her understanding, since the characteristic service was the use of the processing software in Germany for German test subjects in accordance with the requirements of the German legislature, the relevant place of performance for all actions relating to a contract was the defendant’s registered office.

Both the court of first instance and the appeal court dismissed the action on the ground of lack of international jurisdiction, but for different reasons. According to the former, the contract at stake was a contract of sale and its place of performance was the defendant’s registered office in Germany. By contrast, for the latter the contract was one for the ‘provision of services’ within the meaning of the second indent of Article 7(1)(b) thereof. Under said provision, the place of performance in the case of the provision of services is the place where, under the contract, the services were provided or should have been provided. Non-location-based services are provided where they reach the beneficiary of the service. The software to be individually adapted to German conditions as a characteristic service was accessible in Germany.

The case has been allocated to a chamber of five judges, with F. Biltgen as reporting judge.

The decision in case C-86/23, HUK-COBURG-Allgemeine Versicherung II, will be handed down as well on Thursday 5. The Varhoven kasatsionen sad (Bulgaria) was asked to interpret Article 16 of the Rome II Regulation:

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?

On 14 March 2024 Advocate General M. Szpunar proposed to reply that Article 16

must be interpreted as precluding a national provision, such as that at issue in the main proceedings, which provides for the application of a fundamental principle of the law of a Member State, such as the principle of fairness, in the determination of compensation for non-material damage suffered by close family members of a person who died in a road traffic accident, from being regarded as an overriding mandatory provision within the meaning of that article, unless the court seised finds, on the basis of the existence of sufficiently close links with the country of the forum and a detailed analysis of the terms, general scheme, objective and context of the adoption of that directive, that it is of such importance in the national legal order that it justifies a departure from the applicable law designated pursuant to Article 4 of that regulation.

The decision corresponds to a chamber of five judges. O. Spineau-Matei is the reporting judge.

One week later, on Thursday 12, the Court will held the hearing in case C-395/23, Anikovi, against the background of an application filed by two children for permission to sell immovable property located in Bulgaria. During the marriage between their parents, the mother of the applicants had acquired three properties in Bulgaria for residential (holiday) purposes in her own name. As the acquisition took place during the marriage, the husband was a 50% co-owner of the assets. Following his death on 29 July 2015 in the Republic of Cyprus, the surviving wife and the two children inherited his half co-ownership share. All the members of the family are Russian nationals. The children and the mother live in Germany, where according to their statements they have their habitual residence.

Under Bulgarian national law, the disposal of a child’s immovable property, for example by sale, requires prior permission by a court in non-contentious proceedings. The children are thus applying to the national court for permission to sell the co-ownership shares of 1/6 each in the properties, with the sale price to be transferred to two bank accounts they own in Germany.

The Sofiyski rayonen sad (Bulgaria) is sending to Luxembourg the following questions on Regulation 2019/1111 (Brussels II ter):

Does the scope of Article 1(e) of [the Brussels II ter Regulation] cover non-contentious proceedings concerning the granting of permission by a court for the disposal, e.g. a sale, of immovable property or co-ownership shares in immovable property belonging to a child?

Which regulation determines the international jurisdiction of a court of a Member State of the European Union in non-contentious proceedings concerning the granting of permission by a court for the disposal, e.g. a sale, of immovable property or co-ownership shares in immovable property belonging to a child: (i) Article 7(1) of [the Brussels II ter Regulation] – the court for the place where the child is habitually resident – or (ii) Article 4(1)(c) of Regulation (EC) No 593/2008 [Rome I] or Article 24(1) of Regulation (EU) No 1215/2012 [Brussels I bis] – the court for the place where the immovable property is situated?

Are the rules of [the Brussels II ter Regulation] on international jurisdiction in matters of parental responsibility derogated from by a bilateral international agreement between a Member State (Bulgaria) and a third country (the Soviet Union or the Russian Federation) which was concluded before the Member State’s accession to the European Union, if that international agreement is not listed in Chapter VIII of [the said Regulation]?

O. Spineanu-Matei has been appointed reporting judge for this case, which will decided by a chamber of five judges and benefit from Advocate General J. Richard de la Tour’s opinion. The hearing will presumably help deciding whether the referring court is a jurisdiction for the purposes of Article 267 TFEU – a question likely to pop up again soon in cases on private international law instruments.

The decision in case C-501/23, Finanzamt Wilmersdorf will be delivered by a chamber of three judges (K. Jürimäe reporting) on Thursday 19. The Bundesgerichtshof (Germany) has sent three questions to the Court of Justice on the interpretation of Regulation 2015/848 (the Insolvency Regulation):

Is the first sentence of the third subparagraph of Article 3(1) in conjunction with Article 2(10) of Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (‘the European Insolvency Regulation’) to be interpreted as meaning that the place of operations of an individual exercising an independent business or professional activity constitutes an establishment even if the operations are carried out without any human means or assets?

If Question 1 is answered in the negative: Is the first sentence of the third subparagraph of Article 3(1) of the European Insolvency Regulation to be interpreted as meaning that, if an individual exercising an independent business or professional activity does not maintain an establishment within the meaning of Article 2(10) of the European Insolvency Regulation, the centre of main interests is presumed to be the place where the independent business or professional activity is exercised in the absence of proof to the contrary?

If Question 2 is answered in the negative: Is Article 3(1) of the European Insolvency Regulation to be interpreted as meaning that, in the case of an individual exercising an independent business or professional activity who does not maintain an establishment within the meaning of Article 2(10) of the European Insolvency Regulation, the centre of main interests is presumed to be the place of the individual’s habitual residence pursuant to the first sentence of the fourth subparagraph of Article 3(1) of the European Insolvency Regulation, in the absence of proof to the contrary?

The request has been made in the context of an application for the opening of insolvency proceedings. At the time of the lodging of the application the debtor maintained residences in Berlin, Monaco, Los Angeles and on the French Caribbean island of Saint-Barthélemy. He was the chairman of the supervisory board of Landbell AG, a public limited company incorporated under German law with its registered office in Mainz. His assets consisted of a bank balance in Monaco and holdings in companies incorporated under Monegasque law, which held assets, a securities account and shareholdings in Germany.

By order of 27 July 2021, the Amtsgericht (Local Court) seised of the case dismissed the application as inadmissible on the ground that it lacked territorial jurisdiction. More or less one year later, on appeal by a creditor, the Landgericht (Regional Court) set aside that order and referred the case back to the Local Court. It took the view that the centre of the debtor’s main interests is located at the place where the debtor carries out his independent activity as chairman of a supervisory board. The debtor expresses doubts as to the international jurisdiction of the German courts. By his appeal on a point of law, which was admitted by the Regional Court, he seeks to have the contested order set aside and the creditor’s immediate appeal dismissed.

Finally, on Thursday 26 the Court will publish the opinion of Advocate General J. Kokott in the Dutch case C-393/23, Athenian Brewery et Heineken, where the Hoge Raad der Nederlanden is requesting enlightment on Article 8(1) of the Brussels I bis Regulation:

In a case such as that at issue in these proceedings, must the court of the parent company’s domicile, when assessing its jurisdiction under Article 8(1) of the [Brussels I bis Regulation] with regard to a subsidiary established in another Member State, in the context of the close-connection requirement referred to in that provision, rely on the presumption – accepted as regards substantive competition law – that the parent company exercises decisive influence on the economic activity of the subsidiary which is the subject of the proceedings?

If the first question is answered in the affirmative, how is the criterion formulated in the judgments Kolassa (C-375/13, EU:C:2015:37) and Universal Music International Holding (C-12/15, EU:C:2016:449) to be interpreted? In such a case, where the parent company’s decisive influence on the economic activity of the subsidiary is disputed, is it sufficient for the assumption of jurisdiction under Article 8(1) of the [Brussels I bis Regulation] as regards the subsidiary concerned, that the existence of such a decisive influence cannot be excluded a priori?

A hearing on the case took place last June, where the attendants elaborated on what ‘foreseeability’ is in the context of Article 8, paragraph 1, of the Brussels I bis Regulation. It should be noted that further queries on the same provision, also from the Netherlands, are on the pipeline.