May 2025 at the Court of Justice of the European Union
Regarding Private International Law, May 2025 will be a quiet month at the Court of Justice. Subject to updates, there is just one opinion scheduled, to be published on Thursday 22. In case C-279/24, Liechtensteinische Landesbank, AG R. Norkus has been asked to support the Court acting in a chamber of five judges (I. Jarukaitis, A. Arabadjiev, M. Condinanzi, R. Frendo and N. Jääskinen, the latter as reporting judge), in a request for a preliminary ruling from the Oberster Gerichtshof (Supreme Court, Austria).
The main dispute opposes AY, a consumer resident in Italy, to Liechtensteinische Landesbank, a bank headquartered in Austria. In 2013, AY had opened a securities deposit account and a current account with Liechtensteinische Landesbank. In accordance with the bank’s general terms and conditions, all legal relationships between the parties to the contract were governed by Austrian law. In 2016, AY attended an event in Italy at which a bank employee introduced the bank to the investors present. In 2017 and 2018, he bought on his own initiative unsecured exchange traded notes through the bank, giving purchase orders by remote communication; he also bought shares in the fund that had been presented at the Padua event. Having suffered a financial loss as a result of the purchases, AY filed with the Austrian courts an action for compensation for the damages suffered. The lower courts dismissed his claim. AY brought an appeal on a point of law before the Oberster Gerichtshof (Supreme Court).
In a nutshell, AY argues that, after 2016, the bank directed its activity towards Italy within the meaning of Article 6(1)(b) of Regulation No 593/2008. By way of consequence, the choice of law contained in the bank’s general terms and conditions is unfair, for the consumer’s attention was not drawn to the fact that, pursuant to Article 6(2) of the Regulation, he may rely on the protection of the mandatory provisions of the law in force in the country where he has his habitual residence.
The Austrian Oberster Gerichtshof asks the Court of Justice to decide on the following issues:
- Must the legal consequences of orders for the acquisition of financial products placed by a consumer domiciled in State A (here Italy) on the basis of an ongoing business relationship with a bank domiciled in State B (here Austria) be assessed in accordance with the law resulting from Article 6 of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I Regulation) if the conditions for the application of Article 6 of the Rome I Regulation were met when the individual orders were placed but not when the business relationship was entered into and the parties had at that time chosen the law of State B for the entire business relationship in accordance with Article 3 of the Rome I Regulation?
- If question 1 is answered in the affirmative:
Is the exception in Article 6(4)(a) of the Rome I Regulation applicable where a bank opens accounts for a consumer domiciled in another Member State on the basis of a contract and subsequently acquires financial products for the consumer on the basis of the consumer’s orders that are attributed to the accounts, where the consumer may (also) place the orders by means of remote communication?
- If question 1 is answered in the affirmative and question 2 is answered in the negative: Must a choice of law made before the conditions for the application of Article 6 of the Rome I Regulation were met be regarded as unfair within the meaning of Article 3(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts […] after those conditions were met if the contract does not refer to the legal consequences of Article 6(2) of the Rome I Regulation?
Albeit not directly related to the interpretation of PIL acts, two further cases are worth being mentioned in the blog in view of their potential consequences for cross-border private relationships. The first is C-43/24, Shipov, where, among other, the Varhoven kasatsionen sad (Supreme Court, Bulgaria) is asking whether
the obligation of the Member States of the European Union to recognise a person’s civil status as established in another Member State under the law of that State, which is recognised in the case-law of the European Court of Justice (in the judgments in Cases C 673/16 1 and C 490/20 2 in relation to the application of Directive 2004/38/EC 3 and Article 21(1) TFEU9, also apply in relation to gender as an essential element of the civil status entry, and does a change of gender, established in another Member State, on the part of a person who also has Bulgarian nationality, require that fact to be recorded in the corresponding registers of the Republic of Bulgaria?
A hearing will take place on Thursday 22.
The second case worth following is C-789/23, Tatrauskė. The Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court, Lithuania) has referred the following question to the Court of Justice:
Must Article 21(1) of the Treaty on the Functioning of the European Union be interpreted as precluding national legislation under which a marriage contract concluded in another Member State of the European Union may not be recorded in the Register of Marriage Contracts if the marriage contract does not contain the personal identification number of at least one of the parties to that contract, as provided by the Population Register of the Republic of Lithuania, where, in circumstances such as those of the present case, the competent authorities of the Member State in which the marriage contract was concluded refuse to provide an extract from that contract supplemented by the relevant personal identification data?
AG M. Szpunar’s opinion will be delivered on Thursday 22.