CJEU Rules on the Material Scope of the Brussels I bis Regulation
This post was contributed by Vincent Richard, who practices with Wurth Kinsch Olinger in Luxembourg.
On 4 October 2024, the Court of Justice delivered its judgment in case C‑494/23 [Mahá]. The decision, which was rendered without an Opinion from the Advocate General, provides a useful clarification on the material scope of Regulation No 1215/2012 (Brussels I bis).
Facts of the Case
Two Czech residents purchased a vehicle in Germany, which was subsequently seized by Czech police on the grounds that it may have been involved in a theft committed in France. The vehicle was then placed in the custody of the Czech court. According to the CJEU decision, two French residents have also claimed their right to the vehicle, presumably within the Czech criminal procedure. Afterwards, the two Czech residents made an application to have the vehicle returned.
However, Czech procedure prescribes that the vehicle can be returned from the custody of the court only if all persons concerned give their consent. The two French residents were notified of the Czech application to have the vehicle returned, but they did not answer, which under Czech law means that they did not consent.
Consequently, the Czech parties lodged two actions before the Czech district court. The first one seems to be governed by criminal procedure and aims at the return of the seized vehicle. The second one is a civil law action aimed at substituting the consent of the French residents (who neither responded to the notification nor appeared in court) so that the Czech parties could have the vehicle returned within the criminal procedure. Czech law prescribes that the tribunal having jurisdiction for the release of the vehicle can also hear the civil action aiming to substitute consent.
Preliminary Questions
However, the Czech district court and the court of appeal ruled that the Brussels Ibis regulation applied to the civil action, but that they had no jurisdiction under that instrument. The court concluded that only Art. 26(1) concerning jurisdiction based on appearance could potentially apply, but that the French residents had failed to appear.
The Czech plaintiff then appealed on a point of law to the Czech Supreme Court, which referred, in essence, the following two questions to the CJEU: Is the Brussels I Regulation applicable to this case? If yes, on what grounds can the court retain jurisdiction, aside from Article 26(1), which is not applicable when the defendants do not appear in court?
CJEU’s Ruling
The ruling of the CJEU is pleasantly short compared to the Court’s habitual standards.
The Court recalls its previous case law on the autonomous notion of civil and commercial matters which excludes matters opposing private parties to public authorities acting in the exercise of their public powers (C-581/20 TOTO and Vianini Lavori and C‑98/22, Eurelec Trading).
In these decisions, and the previous ones on the delineation of civil and commercial matters, the court focused on the object of the dispute in order to classify disputes between public authorities and private parties as civil and commercial matters. In doing so, the Court adopted a broad interpretation of the notion of civil and commercial matters under the Regulation (see for example C-551/15, Pula Parking or C-186/19, Supreme Site Services) except where the cause of action is based on criminal law.
In the case at hand, the Court of Justice ruled that the civil action is a direct consequence of the seizure of the vehicle, which is itself a criminal law procedure where the State exercised public powers. The Court ruled that the action for substituting consent is an incidental proceeding which takes place prior to the release of the vehicle from the court custody and that it can be treated as a preliminary issue, which cannot justify the application of the Regulation if the object matter of the dispute (the release of the vehicle) falls outside its scope (C-190/89, Rich).
The CJEU thus ruled that the Brussels I bis Regulation does not apply to the civil action seeking to substitute the defendant’s consent in the context of an application to release an item from the custody of a court.
The answer is not surprising and it has beneficial practical consequences, as it allows the Czech courts to hear this issue, for which they are better positioned than the French courts. It is nevertheless a noteworthy decision, as it is one of the rare instances where the Court applies the exercise of public powers criterion in an action between two private parties.
Perhaps I am missing something, but if the police have seized a person’s property, and that person now seeks to recover it from detention, he relies on his title to do so. The law of the situs requires consent, or a non obstat, from the other interested party, but allows the court to supply this if it is missing. All legal systems have provision for the court to supply an unwilling party’s consent (or, as where the court appoints conveyancing counsel to execute a conveyance when the defendant refuses to execute a conveynce), but it would be a great surprise to be told that this meant that the vindication or recovery action was not civil or commercial. After all, in C-364/93 Marinari v Lloyd’s Bank, in which a lorryload of promissory notes had been confiscated by the criminal authorities, the claim of M against the Bank was civil or commercial. It does not seem to have occurred to anybody that as it all arose from the criminal confiscation, the compensatory claim was not civil or commercial. Such things happen when the Court decides that a proper Opinion will only get in the way of justice.