December 2024 at the Court of Justice of the Europen Union

The Court of Justice will be quite active before the Christmas break. Not so much, though, regarding PIL, with only one judgement scheduled for publication, in addition to one hearing.

On Thursday 5, the Court will deliver its decision on C-389/23 Bulgarfrukt, a preliminary reference from the Amtsgericht Wedding (the German Court for European orders for payment) on Regulations No 1393/2007 (the Service Regulation) and No 1896/2006 (order for payment procedure).

The main dispute relates to an European order for payment issued on 4 January 2019 by the Amtsgericht Wedding at the request of the applicant, established in Germany, against the defendant, established in Bulgaria, pursuant to Regulation No 1896/2006. Service was effected via the Bulgarian authorities, in accordance with Regulation No 1393/2007. The Bulgarian receiving agency then certified that service had taken place on 26 July 2019. However, it was not apparent from the certificate provided for in Article 10(1) of Regulation No 1393/2007 that there had been delivery to a person, service by electronic means, posting in a letterbox or any other form of deposit. Rather, in point 12.2.1.3 of that form, it was stated that the document had been served by another method. Detailed information on the matter was drafted in Bulgarian, translated freely into German [the German is translated into English as follows: ‘Article 50(2) of the GPK (Bulgarian Code of Judicial Procedure): The person has left the address and its (current) address is not entered in the register. The notifications (…) are deemed to have been lawfully served.’]

On 24 April 2020, the Mahngericht (German Court for European orders for payment), taking the view that proper service had been effected, issued the declaration of enforceability in accordance with Article 18(1) of Regulation No 1896/2006.

By fax of 1 March 2021, the defendant filed a statement of opposition to the order for payment and applied, by way of alternative, for restitutio in integrum. With regard to the substance of the matter, it claimed that it had become aware of the European order for payment for the first time on 24 February 2021 in the context of enforcement measures, attaching a statement in lieu of oath to that effect. Following information from the court concerning the remedies available, it stated, by document of 25 March 2021, that it intended to lodge a complaint concerning service under Paragraph 1092a of the Zivilprozessordnung (Code of Civil Procedure; ‘the ZPO’).*

* Paragraph 1092a of the ZPO is a provision of national law relating to a specialised legal remedy. It reads as follows:

Remedy in the event of failure to serve or to effect proper service of the European order for payment

(1) 1 The defendant may apply for the annulment of the European order for payment, if the European order for payment

1. 1. 1. was not served on him or her, or
      2. was served on him or her in a manner that does not meet the requirements of Article 13 to 15 of Regulation (EC) No 1896/2006.

2  The application must be filed within one month from the time at which the defendant had or could have had knowledge of the issuance of the European order for payment or the lack of service. 3 Should the court allow the application for one of the reasons set out in the first sentence, the European order for payment shall be annulled.

(2) 1 Should the court already have declared the European order for payment enforceable pursuant to Article 18 of Regulation (EC) No 1896/2006 at the time of the application under the first sentence of subparagraph (1), and should it now allow the application, it shall declare the compulsory enforcement under the order for payment to be inadmissible. 2 The third sentence of subparagraph (1) shall apply accordingly.

[…]

In the view of the referring court, service of the European order for payment had not been properly effected. It considers, in addition, that Paragraph 1092a(1) of the ZPO infringes the provisions of Regulation No 1896/2006, in particular Articles 16 and 17 thereof. Thus the following questions for a preliminary ruling under Article 267 TFEU:

1. Are Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000, and Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure to be interpreted as precluding a provision of national law which provides that a European order for payment must be annulled by the court in the context of proceedings in the event of failure to serve or to effect proper service on the defendant?

2. If Question 1 is answered in the affirmative: Must the aforementioned regulations be interpreted as precluding a provision of national law which provides that enforcement of a European order for payment must be declared inadmissible in the event of failure to serve the order for payment or to effect proper service on the defendant?

3. If Question 1 is answered in the affirmative: Must Regulation No 1896/2006 be interpreted as meaning that a defendant who is aware that a European order for payment has been issued, but on whom that order has not yet been served or on whom service has not yet been properly effected, cannot yet effectively object to it?

The decision, by judges Biltgen (reporting), Arastey Sahún and Passer, is not accompanied by an Advocate General’s opinion.

A hearing on case C-34/24 Stichting Right to Consumer Justice et Stichting App Stores Claims will take place on Tuesday 10. The case in the main dispute concerns collective actions for damages brought by Dutch foundations against Apple Inc. (domicile in the US) and Apple Distribution International Ltd. (with seat in Ireland), under the Netherlands wet afwikkeling massaschade in collectieve actie (Law on the Settlement of Mass Claims in Collective Action, ‘WAMCA’), as a result of alleged infringements of Article 102 TFEU causing users of the Netherlands Apple App Store to suffer damage.

The Rechtbank Amsterdam (Netherlands) requires the interpretation and application of Article 7(2) of Regulation (EU) No 1215/2012. The central question raised is which court has territorial jurisdiction to settle these disputes and whether the Regulation offers the possibility of applying national referral rules allowing for the concentration of related claims.

Question 1 (Handlungsort)

(a) In a case such as that at issue in these proceedings, where the alleged abuse of a dominant position within the meaning of Article 102 TFEU took place in a Member State by means of sales through an online platform operated by Apple and aimed at the entire Member State, with Apple Ireland acting as exclusive distributor and commission agent of the developer and deducting commission from the purchase price, what should be considered to be the place where the harmful act occurred within the meaning of Article 7(2) of the Brussels Ia Regulation? Is it relevant in this regard that the online platform is in principle accessible worldwide?

(b) Does it matter in this context that these proceedings concern claims brought under Article 3:305a BW (the Netherlands Civil Code) by a legal person whose purpose, by virtue of its own right, is to represent the collective interests of multiple users having their registered offices in different jurisdictions (in the Netherlands: ‘arrondissementen’: districts) within one Member State?

(c) If, on the basis of question 1(a) (and/or 1(b)), not only one but several internal territorially competent courts are designated in the Member State concerned, does Article 7(2) of the Brussels Ia Regulation preclude the application of national (procedural) law that allows referral to a single court within that Member State?

Question 2 (Erfolgsort)

(a) Is it possible that, in a case such as that at issue in these proceedings, where the alleged damage occurred as a result of purchases of apps and digital in-app products through an online platform operated by Apple (the App Store), with Apple Ireland acting as exclusive distributor and commission agent for the developers and deducting commission from the purchase price (and where there has been both an alleged abuse of a dominant position within the meaning of Article 102 TFEU and an alleged infringement of the prohibition on restrictive agreements within the meaning of Article 101 TFEU) and where the place where those purchases took place cannot be determined, only the registered office of the user can serve as the connecting factor for the place where the damage occurred within the meaning of Article 7(2) of the Brussels Ia Regulation? Or are there also other connecting factors in this situation which could be applied to identify a competent court?

(b) Does it matter in this context that these proceedings concern claims brought under Article 3:305a BW by a legal person whose purpose, by virtue of its own right, is to represent the collective interests of multiple users having their registered offices in different jurisdictions (in the Netherlands: ‘arrondissementen’: districts) within a Member State?

(c) If, on the basis of question 2(a) (and/or 2(b)), an internal territorially competent court in the Member State concerned is designated which has jurisdiction only over the claims of some of the users in that Member State, while other territorially competent courts in the same Member State have jurisdiction over the claims of other users, does Article 7(2) of the Brussels Ia Regulation preclude the application of national (procedural) law which allows referral to a single court within that Member State?

The case has been assigned to the Grand Chamber, with judge Spineanu-Mattei reporting. Advocate General Campos Sánchez-Bordona will announce the date of delivery of his opinion at the end of the hearing.

Although not directly on the interpretation of PIL instruments, it is worth mentioning as well case C-713/23 Wojewoda Mazowiecki, echoing to some extent C-4/23, Mirin (decided on 4 October 2024). On the merits, the case concerns an appeal on a point of law against the refusal to enter into the civil registry in a Member State a certificate of a same-sex marriage between persons who are citizens of that Member State; the marriage was contracted in another Member State of which one of those persons is a citizen. Relying on international law provisions as well as on Union law ones, the Naczelny Sąd Administracyjny (Poland) questions the compatibility of said refusal with Article 20(2)(a) and Article 21(1) TFEU:

Must the provisions of Article 20(2)(a) and Article 21(1) TFEU, read in conjunction with Article 7 and Article 21(1) of the Charter of Fundamental Rights of the European Union and Article 2(2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC be interpreted as precluding the competent authorities of a Member State, where a citizen of the Union who is a national of that State has contracted a marriage with another citizen of the Union (a person of the same sex) in a Member State in accordance with the legislation of that State, from refusing to recognise that marriage certificate and transcribe it into the national civil registry, which prevents those persons from residing in that State with the marital status of a married couple and under the same surname, on the grounds that the law of the host Member State does not provide for same-sex marriage?

Judge Jürimäe will act as reporting judge within the Grand Chamber, which will benefit from Advocate General Richard de la Tour’s opinion.