Archive for category: Case law

A hearing in case C-799/24, Babcock Montajes, will take place on 4 February 2026. The Bundesgerichtshof (Germany) has referred to the Court a question on the interaction between articles 25 and 36 of the Brussels I bis regulation, and on the relevance of res judicata for the purposes of recognition:

1. Is the term ‘judgment’ in Article 36(1) of [the Brussels I bis Regulation] to be interpreted to the effect that the court of a Member State on which an agreement as referred to in Article 25 of [the Brussels I bis Regulation] confers exclusive jurisdiction (Article 31(2) of the … Regulation) must recognise a judgment by which a non-designated court of a Member State finds that the courts of that Member State have international jurisdiction if the judgment in question is an interim judgment, in other words, is not a decision which terminates a dispute?

2. If the answer to Question 1 is, in principle, in the affirmative: Does recognition of the interim judgment also depend on whether the interim judgment affirming the international jurisdiction of the courts of the Member State is binding on the non-designated court itself and/or whether the affirmation of international jurisdiction may be varied in the context of an appeal?

The parties to the main proceedings are a limited liability company incorporated under German law (hereinafter ‘Kanadevia’), which is the applicant at first instance and the respondent in the appeal on a point of law (Revision) before the German courts, and a public limited company incorporated under Spanish law (hereinafter ‘Babcock’), which is the respondent at first instance and the appellant in the appeal. The dispute concerns the performance of a contract concluded on 18 September 2017 for the construction of a waste treatment plant in San Sebastián (Spain), where Cologne (Germany) was designated as the place of jurisdiction in the event of a dispute.

Due to delays in execution, an amendment to the contract was signed on 8 August 2018 whereby Babcock was no longer required to perform part of its services. Kanadevia claimed additional costs related to the unperformed services and, on 28 March 2019, called on the bank guarantee provided by Babcock. After the amount was paid, Babcock reimbursed it to the bank.

On 30 July 2019, Babcock brought proceedings against Kanadevia before the Juzgado de primera instancia de Madrid (Court of First Instance of Madrid, Spain) with a view to obtaining the reimbursement of said amount. On 16 June 2020, the court declared that it had international jurisdiction but not territorial competence and referred the case to the Juzgado de primera instancia de San Sebastián (Court of First Instance of San Sebastián, Spain). Kanadevia did not challenge that decision. Instead, it lodged an application with the Juzgado de primera instancia de San Sebastián for a review of international jurisdiction. The application was rejected by that court on 9 December 2020 by reference to the previous order of the Juzgado de primera instancia de Madrid (Court of First Instance, Madrid).

On 8 August 2019, Kanadevia applied to the Landgericht Köln (Regional Court, Cologne, Germany) for a declaration that Babcock was obliged to reimburse it for the additional costs or to pay it damages for the partial non-performance of the services initially due. On 11 May 2021, the Landgericht Köln (Regional Court, Cologne) dismissed that action as inadmissible on the ground that, in accordance with Article 36 of the Brussels I bis regulation, it had to recognise the decision of the Juzgado de primera instancia de San Sebastián (Court of First Instance, San Sebastián). On appeal by Kanadevia, the Oberlandesgericht Köln (Higher Regional Court, Cologne) set aside the judgment of the Landgericht Köln (Regional Court, Cologne) and referred the case back to the latter after finding, in an ‘interlocutory judgment’, that the latter had international jurisdiction.

Babcock brought an appeal on a point of law (Revision) before the Bundesgerichtshof (Federal Court of Justice) against the decision.

The case has been allocated to a chamber of five judges (F. Biltgen, I. Ziemele, S. Gervasoni, M. Bošnjak, and A. Kumin reporting), with an opinion by advocate general N. Emiliou.

On 5 February 2026, advocate general A. Rantos will deliver his opinion in case C-232/25, Idziski, on the interpretation of Article 5(3) of the Brussels I Regulation (which corresponds to Article 7(2) of the Brussels I bis Regulation), in a case concerning personality rights. The questions are referred by the Sąd Najwyższy (Supreme Court, Poland):

1. Must Article 5(3) in conjunction with recitals 11 and 12 of [the Brussels I Regulation] be interpreted as meaning that in a case concerning the infringement of personality rights on the grounds of the content of a cinematographic work, the courts in a Member State in which the film was broadcast, which is different to the Member State in which the film was produced, have international jurisdiction to decide an action seeking:

(a)    non-pecuniary performance aimed at remedying the consequences of the infringement of personality rights, including an order for a statement containing an apology to be issued by the television channels that broadcast the film, regardless of the location from which it was broadcast, and also to be displayed on websites, as well as an order to display a similar statement prior to any broadcast of the film, regardless of the location from which it is broadcast, or

(b)    pecuniary performance (compensation) aimed at making good the entirety of the damage suffered in connection with the infringement of personality rights, inter alia in connection with the dissemination (broadcasting) of the film in other Member States,

having regard to the fact that:

– the applicants have their centre of interests and place of residence (head office) in that Member State,

– the applicants assert that their personality rights have been infringed as a result of the way in which the film depicts the soldiers belonging to a military unit from that Member State ([…]), whereby one of the applicants is a former soldier of that military unit, and the other is an association of former soldiers of that military unit, the particular aim of which, according to its articles of association, is to defend the memory, historical truth and dignity of that unit;

– given the historical, cultural and social context, the content of the film, including the way in which the soldiers of the abovementioned military unit ([…]) are depicted is objectively of considerable importance for the territory of that Member State?

2. In the event that the first question is answered in the negative, should Article 5(3) in conjunction with recitals 11 and 22 of Council Regulation (EC) No 44/2001 be interpreted as meaning that in a case concerning the infringement of personality rights on the grounds of the content of a cinematographic work, the courts in a Member State in which the film was broadcast that is different to the Member State in which the film was produced have international jurisdiction to decide an action seeking:

(a)    non-pecuniary performance aimed at remedying the consequences of the infringement of personality rights that occurred in connection with the broadcasting of the film in the Member State where the action was brought, including an order for an apology to be issued in this Member State, and also an order to display a corresponding statement prior to any broadcast of the film in that Member State, or

(b)    pecuniary performance (compensation) aimed at making good the damage suffered in connection with the infringement of personality rights as a result of the dissemination (broadcasting) of the film in the Member State where the action was brought,

having regard, where necessary, to the circumstances referred to in Question 1(1)–(3)?

The main proceedings relate to a film co-produced in Germany set during the Second World War, which was broadcast on television and on the internet in Germany and Poland. Certain events in the film allegedly refer to a Polish military unit that behaved in an anti-Semitic manner. A Polish national having belonged to said military unit, together with an association responsible for defending it, have brought proceedings before the Polish courts on the grounds that they consider that the film infringes their personality rights. The defendants contest the international jurisdiction of the Polish courts.

The decision will be taken by judges K. Jürimäe, K. Lenaerts, M. Gavalec, Z. Csehi, and F. Schalin (reporting).

The opinion of advocate general M. Szpunar in case C-873/24, Marwanak, on a European certificate of succession will be published as well on 5 February. By its request, the Bundesgerichtshof (Germany) is asking the Court several questions on Regulation No 650/2012 on matters of succession:

1. Is Article 68(l) of Regulation No 650/2012 to be interpreted as meaning that a European Certificate of Succession must contain the information required under the national law of the State in which the property is located for the recording of the heir as its owner in the land register in respect of immovable property forming part of the estate and located in a Member State other than the State of the issuing authority where the heir has requested that such information be included in the European Certificate of Succession for the purposes of recording him or her as its owner in the land register of the State in which the property is located and where, if the European Certificate of Succession is the only document presented in support of the application for registration, the recording, under the national law of the State in which the property is located, in the land register of that State can take place only if the European Certificate of Succession contains such information?
2. Does it make any difference to the answer to Question 1 whether, under the applicable succession law, the transfer of the estate will take place by way of universal succession?
3. Does it make any difference to the answer to Question 1 whether, instead of relying on the presentation of a European Certificate of Succession containing the information referred to in Question 1, the recording in the land register of the State in which the property is located, under the national law of that State, as referred to in Question 1, can also be obtained by the heir, or, after his or her death, his or her heir, presenting another document containing a declaration by the heir, or, after his or her death, by his or her heir, to the land registry of the State in which the property is located in addition to presenting a European Certificate of Succession that does not contain the information referred to in Question 1?

The applicants are the children of the deceased. For the purposes of the settlement of the estate in respect of the immovable property located in the Czech Republic, on 27 April 2023 they applied to the Amtsgericht (Local Court, Germany; ‘the Probate Court’) for the issue of a European Certificate of Succession. They asked that the designation of the immovable property forming part of the estate in the Czech Republic be included in the Certificate of Succession. In support of their application they argued that recording the order of succession in the land register based solely on the European Certificate of Succession was possible under the Czech Land Registry Law only if the immovable property that was the subject of the recording was explicitly specified in the European Certificate of Succession.

By order of 19 July 2023 the Probate Court rejected that application in so far as it had requested that the immovable property located in the Czech Republic be explicitly referred to. The Oberlandesgericht (Higher Regional Court, Germany) dismissed the appeal lodged against that ruling by order of 11 December 2023. It justified its reasoning by stating that including, for information purposes, individual assets of the estate which do not play a role in the presumptions and the protection of legitimate expectations under Regulation No 650/2012 would run counter to the intention of that regulation to create an instrument with formalised content that could be used in any Member State without any problems. There is no provision stipulating that the issuing authority has to make enquiries as to whether the deceased still owned the alleged asset of the estate at the time of death. The inclusion of individual assets of the estate would jeopardise the certainty of legal transactions if the mere assertion that they formed part of the estate, made by an heir in a formal supporting document, were to be included, thereby creating the impression of being official.

The applicants’ appeal on a point of law seeking the issue of a European Certificate of Succession that includes the specific designation of the immovable property forming part of the estate and located in the Czech Republic contests that ruling.

The case has been allocated to a panel composed by judges I. Jarukaitis, M. Condinanzi,  R. Frendo, A. Kornezov, and N. Jääskinen (reporting).

The Court will host the hearing in case C-190/25, Zelabrich Still, also on 5 February 2026. The request for a preliminary ruling, submitted by the Oberlandesgericht Stuttgart (Higher Regional Court, Stuttgart, Germany), concerns the interpretation of Article 19(1) and Article 63 of the Brussels II bis Regulation on matrimonial matters and matters of parental responsibility, in divorce proceedings between a German and Italian national (hereinafter, GT), and a Russian national (hereinafter, LS), both habitually resident in Germany:

1. Do Italian proceedings on the recognition of civil effects before the competent Corte d’Appello in Naples under Article 8(2) of the Agreement of 18 February 1984 between the Holy See and the Italian Republic, amending the ‘Concordato lateranense’ of 11 February 1929, constitute proceedings relating to marriage annulment within the meaning of Article 19(1) of the Brussels IIa Regulation?
2. If the answer to question 1 is in the affirmative:

Is a court first seised in Germany concerning a divorce to be decreed permitted, contrary to Article 19(1) of the Brussels IIa Regulation, to stay its proceedings under national rules in favour of the court second seised which has to rule on recognition of civil effects proceedings?

GT and LS got married in 2017 in accordance with canon law, in a Catholic church in Naples (Italy) (hereinafter referred to as the ‘concordat marriage’). On the same day, the marriage was registered with the civil registry office of that city. On January 2022, GT filed for divorce with the Amtsgericht Stuttgart (Stuttgart District Court, Germany); in the proceedings it will also be decided upon the compensatory distribution of pension rights and, at the request of LS, on post-marital maintenance.

On July 2022, GT applied to the Interdiocesan Ecclesiastical Court of Naples for the annulment of the concordat marriage. The annulment was pronounced by decision of that court on 28 February 2024, which was declared enforceable by the Supremo Tribunale della Segnatura Apostolica (Supreme Tribunal of the Apostolic Signatura) three months later (hereinafter the “ecclesiastical judgment”).

By order of 20 November 2024, the Amtsgericht Stuttgart (District Court, Stuttgart) stayed proceedings on the application for divorce, including the economic consequences thereof, on the ground that, if the concordat marriage were to be declared null and void by virtue of a decision recognising the ecclesiastical judgment, handed down by the Corte di Appello di Napoli (Court of Appeal, Naples), the divorce proceedings would become moot. LS has appealed against that order to the Oberlandesgericht Stuttgart (Higher Regional Court, Stuttgart, Germany), arguing that, in accordance with Regulation No 2201/2003, the obligation to stay proceedings lay not with the German court but with the Italian court.

Advocate general J. Richard de la Tour’s opinion will precede the judgement. The chamber is composed by judges K. Lycourgos, S. Rodin, N. Piçarra, N. Fenger, and O.  Spineanu-Matei (reporting).

Another hearing, this time a Grand Chamber one, will be held on 9 February 2026. In case C-41/25, Orsay, the Bundesgerichtshof (Federal Court of Justice, Germany) is asking whether the tax authority of a Member State may rely on customary international law of State immunity in order to escape the international jurisdiction of the courts of another Member State, conferred by Article 6(1) of Regulation 2015/848, on insolvency proceedings, to hear an action for revocation brought against that authority:

Must Article 6(1) of Regulation 2015/848 … be interpreted as meaning that, in view of the recognition of foreign insolvency proceedings, it contains an implied waiver by the Member States of the European Union of the principle of State immunity for actions in which the insolvency administrator, in accordance with the applicable insolvency law, claims that legal acts in relation to a Member State are voidable because they are to the detriment of the general body of creditors?

The Grand Chamber will be composed by K. Lenaerts, T. von Danwitz, K. Jürimäe (reporting), K. Lycourgos, I. Jarukaitis, I. Ziemele, J. Passer, F. Schalin, N. Piçarra, A. Kumin, N. Jääskinen, D. Gratsias, S. Gervasoni, N. Fenger, R. Frendo. An opinion by advocate general R. Norkus has been requested.

Finally, on 12 February 2026, advocate general M. Szpunar will publish his opinion in case C-14/25, Thüringer Aufbaubank. The Oberster Gerichtshof (Supreme Court, Austria) is asking the Court to interpret several provisions of Regulation 805/2004 creating a European Enforcement Order for uncontested claims:

Is Article 21(2) in conjunction with Article 25 of Regulation No 805/2004 … to be interpreted as meaning that certification of an enforceable authentic instrument (in this case, an enforceable notarial instrument drawn up by a German notary) as a European Enforcement Order, issued by the competent authority in the Member State of origin using the standard form in Annex III to that regulation, may not be reviewed in the Member State of enforcement even where – having regard to the date on which the authentic instrument was drawn up – the temporal scope of that regulation has manifestly not been respected?

The main proceedings concern an application, made on 14 February 2022, for enforcement of a claim established as a European enforcement Order on 19 January 2021 by the German competent authorities, on the basis of an authentic instrument drawn up by a German notary on 28 May 1999, and enforceable in Germany on 1 June 1999, i.e. before the entry into force of Regulation 805/2004 on 21 January 2005.

The decision of that court granting the application was subsequently overturned on appeal by the latter party. On appeal by the applicant for enforcement, the case came before the Oberster Gerichtshof (Supreme Court, Austria). That court states that the certification of the authentic instrument as a European Enforcement Order was carried out in “manifest” disregard of the temporal scope of Regulation No 805/2004, since, in accordance with Article 26 of that regulation, it applies only to authentic instruments drawn up or registered after its entry into force on 21 January 2005. That court therefore wonders whether Article 21(2) of the regulation, which prohibits any review of the substance of the certification as a European Enforcement Order in the Member State of enforcement, is applicable in the event of manifest disregard of the scope of Regulation No 805/2004 by the competent authorities in the Member State of origin.

The case has been assigned to a panel of three judges – N. Piçarra, N. Fenger and O. Spineanu-Matei (reporting).

— Note for those interested in arbitration: the publication of advocate general A. Biondi’s opinion in the case of Reibel, C-802/24, is expected on 26 February 2026.

The author of this post is Lydia Lundstedt, who is an Associate Professor and Senior Lecturer at Stockholm University and Linköping University.

As a consequence of the free movement logic, the country of origin principle in the EU E-Commerce Directive allows providers of information society services to rely on the legislation of their country of origin. The relationship between the country of origin principle and conflict of law rules has long been debated. In a recent case before the Swedish courts, this issue was decisive.

The Swedish Patent and Market Court of Appeal held in a decision of 12 March 2025 (case PMT 12383-21) that German law applied to a company established in Germany that markets and sells cosmetic products to Swedish consumers on the internet, regardless of whether the Swedish marketing rules were stricter than the German rules, i.e. the German company’s country of origin. This decision was made without the assistance of the Court of Justice of the European Union (CJEU), which had declined to answer the Swedish Court of Appeal’s question about the country of origin principle (Parfümerie Akzente, C-88/23). However, the matter has now been appealed to the Swedish Supreme Court. This blog post argues that the pending case is an opportunity to clarify the relationship between the E-Commerce Directive and EU conflict-of-laws rules.

Background

KTF Organisation AB, a Swedish service company for the cosmetics and personal care industry, brought an action before the Swedish Patent and Market Court, against Parfümerie Akzente GmbH, a company established in Germany. The Swedish company claimed that the Germany company was in breach of the Swedish marketing rules because it made misleading statements on its website and marketed and sold products online targeting the Swedish market without the proper product labelling. The German company argued that the country of origin principle meant that it could not be subject to requirements that were stricter than those laid down in German law.

The Swedish Patent and Market Court

The Swedish Patent and Market Court applied the Swedish effect country principle that holds that Swedish marketing law applies to marketing practices that have an effect in Sweden. According to the Swedish court, it was not necessary to adjust the Swedish rules in order to comply with the country of origin principle set out in Article 3 of the E-Commerce Directive, as implemented by Section 3 of the Swedish E-Commerce Act. Indeed, the court explained that the Swedish requirements could not be stricter than those laid down in German law as they both implement the EU Unfair Commercial Practices Directive, which is a full harmonization directive. The court found that the German company’s marketing practices violated the Swedish rules and prohibited it from using them.

Court of Justice

The German company appealed to the Swedish Patent and Market Court of Appeal, which in turn asked the Court of Justice of the European Union whether the country of origin principle in the E-Commerce Directive precluded national legislation (i.e. mSection 3 of the Swedish E-Commerce Act), which results in the Swedish rules implementing the Unfair Commercial Practices Directive not applying to service providers established in other Member States. The Court of Appeal also asked whether the “coordinated field” in the E-Commerce Directive covered product labelling rules.

In Parfümerie Akzente (C-88/23), the Court of Justice clarified that product labelling rules fall outside the coordinated field. It therefore did not address the Court of Appeal’s question concerning the country of origin principle, on the basis that the Court understood that question to proceed on the premise that the Swedish product labelling rules fell within that field.

Swedish Patent and Market Court of Appeal

In contrast to the Swedish product labelling rules, the Court of Appeal found that the allegedly misleading statements on the German company’s website fell within the coordinated field, and that the country of origin principle in Section 3 of the Swedish E-Commerce Act applied to this part of the Swedish company’s claim.

The Court observed that the text of Section 3 the E-Commerce Act differed from that of Article 3(2) of the E-Commerce Directive in that the Swedish provision does not state that the Swedish rules in the coordinated field may not restrict the free movement of information society services originating in another Member State. In addition, the Court noted that Section 3 does not state that Swedish rules may be applied as long as the service provider is not subject to requirements that are stricter than those laid down in the substantive law of the Member State in which the service provider is established, that is, what the Court of Justice had stated in eDate Advertising, C-509/09 and C-161/10.

Instead, the Court of Appeal found that the text of Section 3 of the Swedish E-Commerce Act supported the view that service providers established in other member states providing information society services in Sweden should never be hindered by Swedish rules within the coordinated field and that the country of origin principle should apply in full, regardless of whether the Swedish rules are stricter than those of the country of origin. The Court found that this interpretation was supported by the legislative history of the Swedish Act, its systematic structure, and the objective of the country of origin principle.

Although noting that the Court of Justice had not “expressly” answered the question about the country of origin principle, the Swedish Court stated that it was clear from the CJEU’s judgment that requirements relating to online advertising are covered by the E-Commerce Directive. Moreover, the Court of Appeal stated the E-Commerce Directive aims to ensure that the supervision of information society services takes place at the source of the activity, save for specific exceptional cases. Thus, the Swedish Court found that there was no obstacle under EU law to interpreting and applying the Swedish rules implementing the E-Commerce Directive as it did. The Swedish Court therefore rejected the Swedish company’s claim relating to misleading website statements on the merits.

Swedish Supreme Court

The Patent and Market Court of Appeal granted leave for the judgment to be appealed to the Swedish Supreme Court, and the Swedish company has appealed on several grounds. One of the grounds concerns the relationship between the Swedish effect country principle and the country of origin principle. The Supreme Court is expected to consider whether to grant leave to appeal (prövningstillstånd) in the spring of 2026.

Comment

It is a pity that the Court of Justice did not answer the question about the interpretation of the country of origin principle. The real issue here is the relationship between the country of origin principle in Article 3 of the E-Commerce Directive and Article 6(1) of the Rome II Regulation, which sets out a choice of law rule for acts of unfair competition. Although the content of Article 6(1), which refers to the law of the country where competitive relations or the collective interests of consumers are, or are likely to be, affected, does not deviate significantly from the Swedish effect country principle, as a rule of EU law, Rome II has the same normative status as the E-Commerce Directive. Thus, the conflict between the two EU instruments cannot be solved by the principle of the primacy of EU law, unlike a conflict between the Swedish effect country principle and the E-Commerce Directive.

The Rome II Regulation had not yet been enacted when the E-Commerce Directive was transposed into Swedish law, so the Swedish legislator was free to implement the country of origin principle in the E-Commerce Directive as a choice of law rule. This was implied by the CJEU in eDate Advertising, which ruled that the E-Commerce Directive “does not require transposition in the form of a specific conflict-of-laws rule.” In other words, Member States may decide the content of their choice of law rules, but these rules may not subject service providers to stricter requirements than those laid down in the Member State of origin. Today, however, Article 6(1) of the Rome II Regulation has replaced the Member States’ national choice of law rules (even unilateral rules such as the Swedish effect country principle).

The relationship between the country of origin principle in the E-Commerce Directive and Article 6(1) of the Rome II Regulation has long been debated. If the country of origin principle were a choice of law rule, it would take precedence over Article 6(1) pursuant to Article 27 of the same Regulation. Recital 35 of the Regulation may be read as supporting this view. It acknowledges that other EU instruments may contain conflict-of-law rules for specific matters and clarifies that the application of the law designated under Rome II must not restrict the free movement of goods and services as governed by instruments like the E-Commerce Directive, where such instruments cannot be applied in conjunction with the law designated under the Rome II Regulation. On the other hand, Article 1(4) and recital 23 of the E-Commerce Directive claim that the E-Commerce directive does not establish additional rules on private international law, which the eDate Advertising judgment seems to confirm, and an alternative reading of Recital 35 may also support this view.

This opportunity to clarify the relationship between these two principles should not be missed.

The judges of the UK Supreme Court and the Privy Council were quite busy last term with private international law matters.

The UK Supreme Court issued one judgment of relevance, whereas the Privy Council issued no fewer than three.

This post briefly outlines the issues and decisions in these four cases.

P&ID v Nigeria: Currency for Costs Order

The Supreme Court gave a ruling in Process & Industrial Developments Ltd v Nigeria [2025] UKSC 36 on 22 October 2025.

The Court of Appeal judgment in Nigeria v Process & Industrial Developments Ltd [2023] EWHC 2638 (Comm) has already been reported on the EAPIL blog.

In brief, P&ID obtained arbitral awards of US$6.6 billion plus interest at 7% in 2015 and 2017. Nigeria’s total liability at the date of trial exceeded $11 billion. Knowles J set aside those awards under section 68 of the Arbitration Act 1996 on the ground they were obtained by fraud and that the awards and the way in which they were procured were contrary to public policy (section 68(2)(g)). In the course of successfully challenging the awards, Nigeria incurred total unassessed costs (excluding interest) of £44.217 million. The costs were billed by Nigeria’s solicitors in sterling and Nigeria paid in sterling between November 2019 and November 2024. To make those payments, Nigeria presumedly had to convert naira, its national currency, into sterling.

The question was whether Knowles J had erred in awarding Nigeria’s costs in sterling rather than in naira. P&ID argued that the costs should have been denominated in naira because, for several years, and particularly since Nigeria ceased to peg its currency to the US dollar in 2023, the naira had fallen markedly against other currencies, including sterling. P&ID submitted that if Nigeria were awarded the costs in sterling, it would receive a substantial windfall at P&ID’s expense, since the sterling sums Nigeria had paid its solicitors had been equivalent to approximately 25 billion naira at the time of payment, whereas they were equivalent to 95 billion naira at the time of trial.

Quite sensibly, the Supreme Court held that:

It is consistent with the nature of the court’s costs jurisdiction and with legal certainty that there be a general rule that an order for costs should be made in sterling or in the currency in which the solicitor has billed the client and in which the client has paid or there is a liability to pay. That reflects the liability which the party has incurred by litigating in the English courts. There may, nonetheless, be circumstances in which the court chooses not to award costs in the currency in which the receiving party has paid its lawyers. If the court considers that the parties’ choice of the currency of payment is abusive or otherwise inappropriate, the court could properly make the costs order in sterling notwithstanding the party’s use of that other currency. Such a circumstance might arise, for example, if a party were to use a currency with which neither it nor its lawyers had a real connection, to speculate on making a profit by its appreciation in value. [25]

Krys v Farnum Place: Relevance of Success in Foreign Appeal for Decision Refusing Liquidator’s Application to Sanction the Appeal

The facts of Krys (as Liquidator of Fairfield Sentry Ltd (In Liquidation)) v Farnum Place LLC [2025] UKPC 43 (from the Court of Appeal of the Eastern Caribbean Supreme Court (Virgin Islands) were rather unusual.

At first instance, Bannister J refused an application by the Liquidator to sanction an appeal by the Liquidator in proceedings in the United States.

By interim orders pending the hearing of the appeal against Bannister J’s order, the Eastern Caribbean Court of Appeal (“Court of Appeal”) authorised the Liquidator to pursue the US Appeal. The Liquidator succeeded in the US Appeal on 26 September 2014.

The Court of Appeal had heard the appeal against Bannister J’s order on 17 July 2014 and reserved judgment. On 26 September 2014, the Liquidator’s lawyers sent a copy of the US Appeal judgment to the Court of Appeal. Over seven years later, on 10 March 2022, the Court of Appeal handed down judgment on the Liquidator’s appeal against Bannister J’s refusal to sanction the US Appeal. It dismissed the Liquidator’s appeal on the grounds that Bannister J’s decision was a proper exercise of his discretion. The Court of Appeal made no reference in its judgment to the Liquidator’s success in the US Appeal, seemingly due to oversight.

The issue was whether the Liquidator’s success in the US Appeal was clearly a material change in circumstances from those existing at the time of Bannister J’s order, which the Court of Appeal ought to have taken into account and which should have led it to allow the appeal.

The Privy Council thought that it was:

The Board is in no doubt that the SCCA decision was a material change in circumstances which the Court of Appeal should have taken into account. The decision was the outcome of the very appeal for which sanction was sought. The Board finds it impossible to see how it was not at least a material factor to take into account. [38]

Consequently, the Privy Council set aside the order of the Court of Appeal affirming Bannister J’s decision. Furthermore, the Privy Council allowed the appeal and ordered that sanction is granted for the Liquidator’s actions in bringing the US Appeal.

Credit Suisse v Ivanishvili: Double Actionability and Renvoi

In Credit Suisse Life (Bermuda) Ltd v Ivanishvili [2025] UKPC 53 (from the Court of Appeal for Bermuda), the Privy Council applied the double actionability rule and held that there was no room for renvoi in the Bermudian private international law of torts and obligations more widely. Interestingly, the Privy Council noted that it would have been open to either party to invite it not to follow the double actionability rule and instead to apply only the law of the place where the tort was committed [123]. As Dr Franziska Arnold-Dwyer argues in her post on this case, the Privy Council might have been receptive to such an argument had it been made.

Al Jomiah Power: Abolition of Rule in Geoprosco

In IGCF SPV 21 Ltd v Al Jomaih Power Ltd [2025] UKPC 54 (from the Court of Appeal of the Cayman Islands), the Privy Council had to decide whether the rule in Henry v Geoprosco International Ltd [1976] QB 726 represented the law of the Cayman Islands. The “rule”, abolished in the UK by section 33 of the Civil Jurisdiction and Judgments Act 1982 and in other common law jurisdictions, provides that where a defendant voluntarily appears before a foreign court to invite the court not to exercise its jurisdiction (under its own local laws) it will have submitted to the jurisdiction. This includes applying for relief (interim or otherwise) in the foreign proceedings, or applying for a stay in those proceedings in favour of another jurisdiction.

The Privy Council held that

Geoprosco has rightly been reversed in England and Wales and, by statute or case law, it has been reversed or not followed in other common law jurisdictions. It should form no part of Cayman law. [52]

Furthermore, the Privy Council held that the law of Cayman is as stated in Rubin v Eurofinance SA [2012] UKSC 46. In other words, “A step that is not consistent with or relevant to the challenge to the jurisdiction or obtaining a stay will usually be a submission to that jurisdiction.” ([56], quoting p 97 of Akai Pty Ltd v People’s Insurance Co Ltd [1998] 1 Lloyd’s Rep 90.

This post was prepared together with Aleksandra Karlińska (student researcher in EUSuccess Project at Jagiellonian University).

This post describes the outcome of the OP case, after the ruling given by the Court of Justice of the European Union (C-21/22), back in front of the referring court, as in 2025 the Regional Court in Opole (II Cz 438/21) finally decided on that matter. The detailed factual background of the case and the findings of the Court of Justice were outlined in a previous post on this blog.

In short, the case concerned the refusal by a notary to draft a notarial deed including a will  with a clause designating Ukrainian law as applicable to the succession.

The question was whether a third-country national may choose the law applicable in accordance with Article 22 of the Succession Regulation, when the bilateral agreement between the country of their nationality and the country of their habitual residence (in this case, Polish-Ukrainian Bilateral Agreement) does not explicitly provide for party autonomy.

Decision of the Court of Justice

In its judgement, the Court of Justice ruled that:

where a Member State is a party to a bilateral agreement concluded with a third State (before the entry into force of the Succession Regulation), which contains provisions laying down rules applicable to succession, it is those provisions which, in principle, are intended to apply, instead of these of the Succession Regulation (OP, para. 27);

and, consequently, that the Succession Regulation

does not preclude a situation where, under a bilateral agreement …, a third-country national residing in the Member State bound by that bilateral agreement does not have the right to choose the law applicable (OP, para. 37).

It was however left to domestic court to decide if indeed this particular bilateral agreement does not allow for choice of applicable law if it is simply silent on that matter. As AG Sánchez-Bardona noted in his Opinion (note 43) “it is for the referring court to decide on the interpretation of that aspect of the Bilateral Convention”.

Decision of the Polish Supreme Court

After the judgement of the Court of Justice the Regional Court referred the matter to the Polish Supreme Court asking for the issuance of a resolution (uchwała). Here it might be explained that a resolution of the Supreme Court is aimed at resolving a legal doubt encountered by a common court in its adjudication. A resolution is binding only in the specific case. Therefore, other courts are not formally bound by such a resolution. However, resolutions of the Supreme Court are respected by other courts to ensure uniformity of jurisprudence. As a result, they have an impact on the judicial practice of Polish courts.

On 9 October 2024, the Supreme Court refused to adopt a resolution. In its decision (III CZP 11/24), it concluded that the Regional Court’s motion did not meet the requirements stated in Article 390 § 1 of the Polish Code of Civil Procedure, as it did not involve genuine interpretative doubts. According to the Supreme Court, the Regional Court failed to demonstrate divergences in case law or legal literature and did not present arguments supporting alternative interpretations. Moreover, in view of the Supreme Court, the matter had already been resolved by the CJEU, which further eliminated the need for the resolution

Further Proceedings before the Regional Court

Obliged to decide on its own the Regional Court considered two potential interpretations of the Poland-Ukraine Bilateral Agreement. Based on the first view, the silence of the Bilateral Agreement on the choice of applicable law in successions leaves this matter outside the scope of the agreement, and therefore, the provisions of Polish and Ukrainian laws regulating these issues should apply in this matter. In such case choice of applicable law is possible in accordance with the Succession Regulation. Based on the opposite view, due to the wording of the agreement, Poland and Ukraine have excluded the possibility of choosing law applicable to successions.

In its deliberations, the Regional Court considered the debate ongoing in previous proceeding before the CJEU. Specifically, it noted the divergence between the positions of the Hungarian government and the European Commission and those of the Polish and Spanish governments. According to Hungary and the EC, the choice of law is inadmissible, because the bilateral agreement does not grant the parties autonomy in this regard. The Polish and Spanish governments, on the other hand, took a different position, arguing that since the agreement does not exclude / forbid choice of law, it tacitly allows it, which would allow the application of Article 22 of the Succession Regulation, in accordance with the rules of interpretation of treaties in Articles 31-32 of the Vienna Convention.

According to the Regional Court, the CJEU gave priority to the Polish-Ukrainian Agreement based on Article 75 Succession Regulation. However, as the AG pointed out, this is only relevant if the agreement excludes the choice of law. If not, the issue remains unregulated and national conflict-of-law rules apply: in Poland – Article 22 Succession Regulation, and in Ukraine – Articles 70 and 71 Ukrainian private international law.

After consideration of all the indicated positions and opinions, the Regional Court decided to apply the principleof historical interpretation, noting that at the time the Poland-Ukraine Bilateral Agreement was concluded, the conceptof party autonomy in international successions was unknown in both countries. Hence, the admissibility of party autonomy must arise directly from the agreement in order to exist. In the absence of such a provision, a third-country national cannot exercise choose the law applicable to succession matters.

Conclusion and Practical Significance

This case is important not only for the understanding of Poland-Ukraine Bilateral Agreement, but also for other agreements that have been concluded by Poland with third States.

Poland has numerous such agreements on judicial cooperation concluded with third states, some of which do contain rules on international successions (for instance with Algeria (1976), Belarus (1994), Cuba (1982), North Korea (1986), Russia (1996), Vietnam (1993) and in the agreement concluded with Yugoslavia (1960), which applies nowadays in relations with Bosnia and Herzegovina, North Macedonia, Serbia and Montenegro).

The significance of the decision extends far beyond Polish-Ukrainian relations and might be useful as a guideline for interpretation of bilateral agreements in Poland and in other States.

On 2 December 2025, the Court of Justice gave its ruling in Apple Nederland Store (case C-34/24), on the interpretation of Article 7(2) of the Brussels I bis Regulation in cases regarding infringements of cartel law. A first comment on the judgment, by Burkhard Hess, was published on this blog the day after the judgment itself was rendered. Geert van Calster also analysed the ruling in his blog. The issues raised by Apple Nederland Store are further explored in two posts published in the EAPIL blog today.

The post below is the first in the series. The author is Jorg Sladič, a practising lawyer in Ljubljana, a former référendaire at the Court of Justice of the European Union, and an assistant professor at the European Faculty of law in Ljubljana and Catholic institute in Ljubljana (Slovenia). He is a co-author of a textbook on private international law of the European Union in Slovenian (Mednarodno zasebno Pravo Evropske unije, Ljubljana, 2018). His book ‘US Class Actions and European Models of Collective Redress Proceedings’ will be published by Springer in 2026.

The second contribution to the symposium on Apple Store Nederland, by Gilles Cuniberti, can be found here. As with all other on-line symposia offered through the EAPIL blog, readers are encouraged to share their views by comment on the posts. Those willing to submit guest posts, are encouraged to get in touch with the editors at blog@eapil.org. 

That evil day has come where the first meaningful judgment on private international law (the term used due to lack of a better term) and collective redress has been given by the Court of Justice (CJEU) in case C-34/24, Apple Store Nederland.

As far as terminology is concerned, in the USA and in most common law legal orders class action is used instead of the European term collective redress. The ELI/UNIDROIT Model Rules of European Civil Procedure use the term collective proceedings, in the EU the term used is also representative action.

Private international law (conflict of laws and conflict of jurisdictions) and collective redress cannot easily co-exist. Private international law means fragmentation caused by several legal orders, collective redress (nowadays called also representative action in the EU or collective proceedings in the ELI/UNIDROIT Model Rules) on the other hand requires uniformity and a judicial ‘one stop shop’ (the same solution for the whole mass harm situation). We might observe the development of complexity of lawsuits. American scholars have already observed that ‘problems of civil procedure that are daunting enough in ordinary litigation often assume nightmarish proportions when they arise in class actions’ (Wood, ‘Adjudicatory Jurisdiction and Class Actions’, Indiana Law Journal, 62 (1987), 597). In Canadian case-law we read: ‘Cases involving class actions raise unique jurisdictional challenges’ (Airia Brands Inc. v. Air Canada), para 69). If one adds conflict of laws and conflict of jurisdictions to the already daunting problems, the nightmare even becomes stronger.

Until very recently there was a general impression that collectivisation (as in representative actions litigated under national implementation measures of the  Representative actions Directive, or RAD) and Brussels I bis were irreconcilable, as stated by the CJEU in C-498/16, Schrems:

Article 16(1) of Regulation No 44/2001 [corresponding to Article 18 of the Brussels I bis Regulation] must be interpreted as meaning that it does not apply to the proceedings brought by a consumer for the purpose of asserting, in the courts of the place where he is domiciled, not only his own claims, but also claims assigned by other consumers domiciled in the same Member State, in other Member States or in non-member countries.

The CJEU followed his advocate general. According to the latter, the Brussels I Regulation

does not provide specific provisions on the assignment of claims or procedures for collective redress. This (presumed or real) lacuna has long been debated by the legal scholarship, which has expressed the view that the regulation is an insufficient basis for cross-border EU collective actions. The application of the consumer forum in cases of collective action is the object of heated debate (Opinion of Advocate General Bobek, C-498/16 Schrems, para 121).

As far as collective redress is concerned, there are no differences between the old and the new Brussels regulation. This opinion follows the common opinion in private international law according to which traditional connecting factors in one-on-one lawsuits are not fit or suitable for collective redress. Instead of recognition of US class actions (see, e.g., prof. Voet’s report on recognition of a US class action settlement in Belgium in the Lernout & Hauspie case), we have been faced with a rather technical issue of the scope of exceptional heads of jurisdiction in Brussels I bis in collective redress (or representative actions as the RAD puts it).

The issue at stake is the scope of forum actoris where qualified entities (or any other lead plaintiffs in US class actions or in international legal writing ideological or collective party according to Mauro Cappelletti) litigate in a collective lawsuit in Apple Store Nederland.

Prof. Hess already published a convincing analysis of the said ruling on this blog. While prof. Hess correctly and convincingly put the emphasis on a very peculiar interpretation and application of the exceptional nature of Art. 7(2) of the Brussels I bis regulation, scholars of collective redress eagerly awaited the ruling. There appears to be a direction in development of private international law and collective redress where traditional connecting factors and heads of jurisdiction get a new and different interpretation in collective redress. While the exceptional head of Article 7(2) Brussels I bis requires a traditional interpretation of exceptiones sunt strictissimae interpretationis, the CJEU recognised the problem of collective redress where the ‘supraindividual and perhaps even public interests’ to use a term used to describe qualified entities is at stake (Rechberger, Simotta, Grundriss des österreichischen Zivilprozessrechts, 9th edn, Manz 2017, p. 354).

Qualified Entities and Standing

While we might not always agree with prof. Hess’s reasoning that Dutch Foundations do not operate as ‘qualified entities’ under the RAD as the CJEU referred to WAMCA i.e. the Dutch legislation on collective redress, he correctly characterised legislating from the bench (judex in modo legislatoris), identified and exposed a conflict between collective redress and private international law that is also coming to the EU. However, the question might be whether the traditional restrictive approach frustrating the RAD and the interpretation put forward by Apple should be retained in this case (para 21 of the ruling)?

A different approach might help to understand the ruling in Apple Store Nederland according to which the exceptional nature of qualified entities (ideological or collective party) shall be the main guidance in collective redress. EU collective redress is litigated by a qualified entity for a represented harmed group.

The victims of a mass harm situation (same illegal practices relating to the violation of rights granted under Union law by one or more traders or other persons) form the represented group and are not litigants themselves. In Apple Store Nederland the CJEU uses the term ‘an entity qualified to defend the collective interests of multiple unidentified but identifiable users’.

The qualified entity is not a legal subject harmed by the mass harm situation, it is not a victim whose right would be infringed and has as such no personal interest in bringing proceedings for claiming damages (it is litigating uti cives).

The standing and interest in bringing proceedings of qualified entities are created entirely ex lege and are different from traditional one-on-one lawsuits (Jorg Sladič, Part XI Collective proceedings, paras. 19.035 and 19.154, in: Stadler, Smith, Gascón Inchausti, European Rules of Civil Procedure, A Commentary on the ELI/UNIDROIT Model Rules, Edward Elgar, 2023). Applied to general private international law this means that in case of collectives or ideological parties there

appears to be the territorial limitation of the authorisation to bring collective proceedings. The qualified claimant in any other collective redress than injunctive is in principle given standing solely on the territory of the state having adopted the qualified proceeding order. In injunctive collective redress the qualified claimant is given standing by the law or the administrative act of that state. However, the jurisdiction to adjudicate and the jurisdiction to enforce are strictly territorial. As a consequence, qualified claimants can only litigate before courts in the states where they were authorised to bring proceedings (Sladič, op. cit., para. 19.154).

In the EU the situation is quite different due to so called cross-border collective redress. The issue at stake is the standing and interest of the qualified entity and the interest of victims harmed by a mass harm situation.

This might explain the CJEU’s reasoning in para 64 of Apple Store Nederland according to which

As is apparent from the request for a preliminary ruling, under Netherlands law, a foundation or association which brings a representative action acts as an independent promoter of the interests of persons who, although not referred to individually, have similar interests. Those applicants thus exercise their own right, namely the right to represent and defend the collective interests of a ‘strictly defined group’ which brings together unidentified but identifiable persons, namely users, whether consumers or professionals, who have purchased apps created by developers on the App Store NL to which those persons had access by means of their Apple ID associated with the Netherlands and whose domicile or registered office is likely, for the majority of those users, to be located throughout the territory of that State.

The approach of the qualified entity as the collective or ideological party litigating uti cives for ‘multiple unidentified but identifiable users’ is accepted by the CJEU. If such an approach is accepted, then the interpretation of Article 7(2) of the Brussels I bis in traditional lawsuits is clearly ill suited for this case. Legislating from the bench in order to comply with the principle ubi ius, ibi remedium seems to be the only feasible (re)solution.

In the EU the limitation of standing of qualified entities to the territory of a single EU Member State has been avoided by so called cross-border collective redress regulated by the Article 4 RAD. According to recital (23) of the RAD where a qualified entity brings a representative action in a Member State other than that in which it is designated, that representative action should be considered a cross-border representative action. It is well known that the European Commission considers the lack of standing of qualified entities from one Member State in other Member States as a discriminatory act and requires ‘cross-border collective redress’.

However, the CJEU appears to have avoided the interpretation of the RAD by interpreting the Brussels I bis Regulation (as it was asked to by the Dutch judex ad quem) in such a way that the effet utile of legislation on qualified entities litigating uti cives in defending the interests of ‘multiple unidentified but identifiable users’ is emphasised. In other words, there appears to be a deliberate judicial action towards new interpretation of existing rules on (direct) international jurisdiction in order to favour cross-border collective redress. The classical re-interpreting of direct international jurisdiction in class actions is also coming to the EU.

Should the ruling in Apple Store Nederland be deemed a final nail in the coffin of cross-border collective redress under Article 4 RAD as the emphasis is not any longer on standing of qualified entities in collective redress litigated abroad in different Member States of the EU?

The discussion after Apple Store Nederland is now focused on heads of jurisdiction under Bussels Ibis allowing the forum actoris in collective redress. One might ask why create special conditions of admissibility allowing qualified entities to stand abroad in collective redress litigation in other Member States by Article 4 of the RAD only to see the heads of jurisdiction in Article 7(2) of the Brussels I bis Regulation extended to qualified entities?

The answer is that cross-border collective redress is quite a rare occurrence in praxi. Will qualified entities from Sweden engage in litigation in Greece only in order to comply with the actor sequitur forum rei under Article 4 of the Brussels I bis regulation? No economically sound litigant would do it. Or from the other point of view: will a Greek qualified entity litigate in Portugal? The answer is the same.

As far as this author is aware, there are only two cases reported of cross border collective redress. One was decided by the Belgian Court of Cassation some 20 odd years ago on cross-border collective injunctions litigated by the qualified entity British British Office of Fair Trading as a foreign government agency under EU consumer protection Directives. This litigation case ‘was the first ever cross-border court action in Europe to stop a trader in one country sending misleading advertising to consumers in another’ (Office of Fair Trading, Annual Report 2005–06, p. 8; Belgian Cour de cassation, judgment of 2 November 2007, Case C.06.0201.F., Sladič, op. cit., para. 19.172). The second was decided by the Rechtbank Breda in the Netherlands. The British Office of Fair Trading as a qualified entity from (then) another EU Member State, as a foreign government agency, had standing in a representative collective lawsuit under the then version of Art. 3:305a BW (Dutch Civil Code) in the Netherlands. The Rechtbank Breda ordered a Dutch company to stop sending misleading e-mails, advertisement and commercial letters to UK citizens (Rechtbank Breda, judgment No 170463 of 9 July 2008). Both cases are old, it might be difficult to apply them to modified legislative framework such as Brussels Ibis regulation, Rome I and II Regulations and the RAD. However, as the RAD as the lex generalis of collective redress in the EU was adopted in 2020 it is still premature to speak of death of cross-border collective redress. There might be some new developments in cross-border collective collective redress in the Iberian Peninsula as reported by professors Maria-Jose Azar-Baud and Miguel Sousa Ferro at a conference on collective redress on 7 and 8 April 2025 in Budapest.

Canadian Experience

Foreign experience in resolving the question of how to anchor direct international jurisdiction would be more than welcome. Certain foreign laws such as Canadian law already found the answer of how to anchor such jurisdiction by reinterpreting and extending the heads of jurisdiction. Canada applies since 1985 (Libman v. The Queen) a connecting factor (also) in tort cases called real and substantial connection test in individual and collective tort cases that is not known in the EU. We might report an one-on-one case in Club Resorts Ltd. v. Van Breda). The Canadian Supreme Court ruled, e.g., in Society of Composers. The said connecting factors was already reported by prof. Van Calster.

There appears to be no fundamental rule of jurisdiction in tort cases in Canada comparable to Art. 7(2) of the Regulation Brussels I bis. Nevertheless, the said Canadian connecting factor was extended from criminal cases  to civil cases and then to Canadian class actions by way of judicial re-interpretation ‘The real and substantial connection test has been a dominant, although not exclusive, test governing the issue of jurisdiction’ (Airia Brands Inc. v. Air Canada, para 52) The process of reinterpretation appears to be the main issue at stake also in Apple Store Nederland. We see a similar development as in Canada also at the CJEU. What is more, the development leading to a reinterpretation on both sides of the Atlantic is collective redress (or class actions).

However, in Canadian case-law on class actions we read:

Cases involving class actions raise unique jurisdictional challenges.  Unlike traditional litigation, which consists of an identifiable plaintiff actively selecting a jurisdiction and hence consenting to the jurisdiction, class actions involve at least one identifiable representative plaintiff and frequently unidentified members of a larger class. Typically in litigation, the question is whether the Ontario court has jurisdiction over a defendant, not whether it has jurisdiction over [absent foreign claimants].  Indeed, the purpose of class actions is, in part, to confer a benefit on absent class members. It is difficult to reconcile class actions that include unidentified claimants with traditional approaches to jurisdiction. In those circumstances, a real and substantial connection on an individualized basis may be elusive.  To allow for jurisdiction, either the members must be identified and present or consent to jurisdiction or there must be another doctrinal mechanism available to anchor jurisdiction.’ (Airia Brands Inc. v. Air Canada, para 69).

This point may also be construed in such a way that connecting factors known in traditional one-on-one lawsuits are ill suited to be applied in collective redress.

Commonality Test

I am in no way trying to imply that Canadian case-law contains better law than EU law. We might simply repeat what prof. Van Calster said some years ago: Airia Brands shows that the concerns are far from settled. The issue in anchoring international jurisdiction in collective redress has already been explored by legal writers (Saumier, ‘Transborder Litigation and Private International Law: the View from Canada’, in Cafaggi and Micklitz (eds.), New Frontiers of Consumer Protection – the Interplay Between Private and Public Enforcement, Intersentia, 2009, p. 361 at 369). If the Canadian legal formant is identified: in collective redress international jurisdiction shall be established with respect to the defendant and the representative’s plaintiff claim, then we get a solution that is also applied by the CJEU in the second part of the dispositif in Apple Store Nederland. Indeed,

any court having substantive jurisdiction in that State to hear a representative action brought by an entity qualified to defend the collective interests of multiple unidentified but identifiable users … has international and territorial jurisdiction, on the basis of the place where the damage occurred, to hear that action with regard to all those users.

That EU solution is not far away from the Canadian one. The setting of connecting factors in collective redress appears to be heavily influenced by characteristics of collective redress. On the other side of the Atlantic commonality is used to describe one of the prerequisites of class actions. ‘commonality itself [as the main characteristics of class actions] supplies the real and substantial connection sufficient to assert jurisdiction over non-resident class members’ (Monestier, ‘Personal Jurisdiction over non-resident Class – Members: Have We Gone Down the Wrong Road’, Texas International Law Journal, 45 (2010), 537 at 538). Commonality in the Apple Store Nederland case was described by the term ‘multiple unidentified but identifiable users who have purchased digital products’.

The CJEU did not mention the commonality test expressis verbis. However, at paras 67 and following, it argued that:

67. … the fact that it is impossible to determine, for each person alleged to be the victim of anticompetitive conduct, the place where the damage occurred, within the meaning of Article 7(2), does not mean that that provision does not apply. … in this case, that place corresponds to a well-defined geographical area, namely the whole of the territory to which the market affected by the relevant anticompetitive conduct belongs, with the result that it is not impossible to identify that place, which could, where appropriate, justify the application of the general criterion of jurisdiction laid down in Article 4(1) of Regulation No 1215/2012, namely that of the defendant’s domicile …

68. It follows from the foregoing that, in situations such as those at issue in the main proceedings, any court having substantive jurisdiction to hear a representative action brought by an entity qualified to defend the collective interests of multiple unidentified but identifiable users will have international and territorial jurisdiction, on the basis of the place where the damage occurred, within the meaning of Article 7(2) of Regulation No 1215/2012, to hear that action in its entirety. …

71. As regards the objective of proximity between the court seised and the subject matter of the dispute, it should be noted that the specific features of the representative actions in the main proceedings lead, in essence, to a situation where the court called upon to hear those actions is required to examine the existence of the alleged damage in relation to the strictly defined group consisting of unidentified but identifiable users who have suffered the same type of damage, resulting from anticompetitive conduct implemented throughout the territory concerned. [emphasis added] …

72. That conclusion also satisfies the requirement of predictability, in that it enables both the applicant and the defendant to identify the courts having jurisdiction. As regards, in the present case, Apple Distribution International, in so far as the App Store NL targets specifically the Netherlands market, it is predictable that a representative action for damages in respect of purchases made on that platform will be brought before any Netherlands court having substantive jurisdiction.

That said, a lesson to be drawn from comparative law in relying on the sufficient commonality as the real and substantial connection blurs the limits between the merits and the jurisdiction. Jurisdiction depends on the commonality, which itself depends on an early assessment of the merits (Monestier 2010, p. 550).

A EU criterion of a group consisting of unidentified but identifiable users who have suffered the same type of damage is the functional equivalent of the commonality in legal orders where the US class action was transplanted. The simplicity of that criterion is that it completely avoids the discussion on the place of damage and goes towards the place of the harmed group (or absent class members represented by the qualified entity) for anchoring the jurisdiction.

We cannot yet say that the EU would abandon the connecting point of the place where the harmful event occurred or may occur. However, the commonality is added to that criterion by reference to objective proximity. The EU criterion also requires due to objective proximity an in-depth assessment of isomorphic claims of ‘absent class members’ (passive group members) already in the stage of determining international jurisdiction. As a consequence, the commonality is both the connecting factor in allocating the jurisdiction to adjudicate and the criterion of efficiency in collective redress (a condition of admissibility, see e.g. Rule 212 of the European Rules of Civil Procedure).

The general conclusion is that collective redress required an adaptation of traditional heads of jurisdiction in collective redress in order to grant jurisdiction to the court of the place of damage. That adaptation in the EU has been performed by the CJEU acting in modo legislatoris.

In the end, traditionally there was always a fear in European Academia that in collective redress even fora in EU Member States could ‘bind absent class members without having jurisdiction over them’ and thus infringe upon the effet utile of Brussels I bis Regulation (see, in the US, Winters, ‘Jurisdiction over Unnamed Plaintiffs in Multistate Class Actions’, California Law Review, 73 (1985), p. 181(182)). However, this case involves a very unfavourable solution for a corporate defendant. Therefore the traditional fear of a lack of protection of absent class members (group consisting of unidentified but identifiable users who have suffered the same type of damage) was avoided.

Corporate defendants react to unfavourable rulings, we might à titre d’exemple refer to Volkswagen who appears to require in its general terms and conditions an ex ante renunciation by consumers of any alternative dispute resolution scheme (Hirsch, ‘Verbrauchergerechte Sammelklagen? Zur Schnittstelle von kollektivem Rechtsschutz und außergerichtlicher Streitbeilegung, Zeitschrift für Konfliktmanagement, 2019, p. 68). We might see in next years the large corporate defendants setting up a defence against the ruling in Apple Store Nederland by various restrictions and limitations of their general terms and conditions referring to the use of digital goods precluding the consumers and in fine the qualified entities to claim jurisdiction under Art. 7(2) of the Regulation Brussels Ibis. In the US class action waivers in general terms and conditions are used. The EU solution will be different, as such waivers will not be accepted in the EU (see the terms referred to in Article 3 (3), term 1(q) of the Council Directive 93/13 of 5 April 1993 on unfair terms in consumer contracts).

The decision in case C-240/24, BNP Paribas Fortis, will be delivered on 18 December.

After a Belgium bank refused to acknowledge the legitimation effect of a European Certificate of Succession issued in Poland, the issuing notary (the Notary in Krapkowice Justyna Gawlica – Krapkowice, Poland) started on its own motion proceedings to withdraw the certificate. In this context, he referred the following questions to the Cour of Justice:

1. Must Article 71(2) of Regulation (EU) No 650/2012 [on matters of succession] be interpreted as meaning that in the current proceedings to withdraw or modify a European Certificate of Succession that has been issued, the non-judicial authority issuing the certificate of succession is entitled to refer a question for a preliminary ruling pursuant to Article 267 of the TFEU?

and if the answer to that question is in the affirmative:

2. Does Article 71(2) of the above regulation allow for the costs of proceedings to withdraw or modify a European Certificate of Succession to be charged, based on national law, to a bank that was not a participant in the proceedings to issue this certificate, has not filed an application for its withdrawal or modification, but has questioned the legitimation effects of the certificate presented to it in such a way that has led to the issuing authority of its own motion starting proceedings to withdraw or modify the certificate, conducted with the participation of that bank?

and if the answer to that question is in the affirmative:

3.  Must Article 69(2) of the above regulation be interpreted as meaning that the bank to which a valid certified copy of a European Certificate of Succession is presented is not entitled to challenge the status as heir of the person identified in the certificate?

The case has been allocated to a chamber of three judges (M. Condinanzi, R. Frendo et N. Jääskinen as reporting judge). No opinion has been requested.

Additionally, I would like to report that on 11 December 2025, the Court of Justice published its ruling in case C-789/23, Tatrauskė. The request was made in proceedings between I. J. and the Registrų centras VĮ (Registers Centre, Lithuania), concerning the refusal by the latter of the request made by I. J. for the registration of information relating to her matrimonial property regime in the Lithuanian Register of Marriage Contracts. After the Regional Administrative Court of Vilnius dismissed as unfounded her action challenging the decision of the Registers Center , I.J. brought an appeal before the Supreme Administrative Court of Lithuania, the referring court. The question for a preliminary ruling concerns the interpretation of Article 21 of the TFUE:

Must Article 21(1) [TFEU] 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 information?

AG M. Szpunar’s opinion, published on May 22, 2025, was already commented on the blog. Following his views closely, the Court (Second Chamber) has ruled that Article 21(1) TFEU

must be interpreted as precluding legislation of a Member State under which the registration in the Register of Marriage Contracts of a marriage contract concluded in another Member State is subject to the requirement that that contract contain the personal identification number, issued by that first Member State, of at least one of the two spouses, where such a requirement is not laid down in respect of the registration, in that register, of a marriage contract concluded in that Member State and where the information contained in that contract make it possible to identify the persons who concluded that contract.

This post was written by Elizabeth Stuart Perry, Senior Lecturer/Associate Professor at Department of Law at Uppsala University and a Californian attorney. It is the third contribution to the EAPIL on-line symposium on the judgment of the Court of Justice of the European Union in Cupriak Trojan. The previous posts, by Laima Vaige and Alina Tryfonidou, can be found here and here, respectively.

On 25 November 2025, the Court of Justice of the European Union delivered a landmark judgment obliging all EU Member States to recognize same-sex marriages lawfully entered into in another Member State, even if they do not permit such marriages domestically.

This 27-Member-State Union’s constitutional drama may remind private international law experts of another that unfolded a decade ago in the federation of 50 diverse State legal systems known as the United States —also partially fueled by cross-border concerns — which also led to a landmark high court decision that signaled the end of marriage discrimination throughout the (American) Union.

This post revisits that United States Supreme Court decision from ten years ago, Obergefell v. Hodges, and explains its constitutional legal basis, briefly comparing its basis and practical consequences with those of the recent judgment of the Court of Justice.

Obergefell legalized same-sex marriage nationwide by requiring all States to recognize such marriages entered into in other States, very similarly to Cupriak-Trojan, but also to license —  within their own jurisdictions, under State law — such marriages. I thus offer an American point of view on the EU’s new “mutual recognition” model, in light of the US “constitutional rights” model.

The US Model: Obergefell v. Hodges

“The Constitution promises liberty to all within its reach…” — Justice Kennedy’s opening.

In Obergefell v. Hodges, the plaintiffs comprised 14 same-sex couples and two widowers whose same-sex marriages, lawfully performed in US States that allowed them, were not recognized by their home States, all of which at the time defined marriage as between a man and a woman.

On June 26, 2015, the US Supreme Court held, by a 5–4 majority, that the Fourteenth Amendment to the US Constitution requires that: (1) States must license marriages between two people of the same sex; and (2) States must recognize same-sex marriages lawfully performed in other States.

Justice Anthony Kennedy, writing for the majority (joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan), grounded the ruling in fundamental constitutional rights. The Court held that the right to marry is an inherent component of individual liberty protected by the Due Process Clause of the Fourteenth Amendment to the US Constitution, and thus that States denying same-sex couples the right to marry at home in their State or to have their cross-border marriages recognized violate the Equal Protection Clause shielding individuals from State overreach and infringement of their fundamental, constitutionally-guaranteed liberties.

The Fourteenth Amendment: At Obergefell’s Core

An introduction to the Fourteenth Amendment (1868) and its Due Process and Equal Protection Clauses here is warranted, as its clauses are not only the underpinnings of Obergefell but of many constitutionally-protected rights in the United States. Because of these clauses, not only federal but also state actors are obligated to protect the rights and liberties which Americans have enjoyed since the founding of the United States.

One thing to understand is that early American colonies, now known as the States of the Union, did not (and do not today) readily concede power to the federal-level government of limited, enumerated competencies defined in the founding “treaty” known as the US Constitution.

To entice the 13 original American colonies to ratify the Constitution — and thus to compromise their sovereignty to the extent necessary to create a “more perfect Union” where only a loose confederation of independent colonies had existed before — the Bill of Rights to the US Constitution (1789) was adopted, consisting of ten original Amendments assuring rights and liberties to the states and to their people as individuals. One could summarize this to say that rights in the US at the time were mainly negative rights, designed from a fear of overreach at the supra-State (federal) level.

In that context, the Fifth Amendment, ratified (along with the rest) in the year 1791, set boundaries on federal government interference with individual libraries. The Fifth Amendment Due Process Clause reads: “No person shall be… deprived of life, liberty, or property, without due process of law.” As the Supreme Court confirmed in Barron v. Baltimore (1833), US states were free to have their own constitutions and laws, which might — and often did — offer fewer individual protections, but the federal-level government was not.

And then, many decades later, there was a civil war, ultimately ending slavery and preventing a splintering of the young Union. The Fourteenth Amendment (1868) was drafted and ratified in the aftermath of the Civil War, specifically to address the conduct of the former Confederate States. Its architects, not entirely unlike the EU institutions of our era, sought to nationalize a floor of fundamental rights. They drafted the Fourteenth Amendment’s key clauses as near repetitions of the Fifth Amendment’s Due Process Clause, but with a revolutionary change, binding the States: Due Process Clause: “… nor shall any State deprive any person of life, liberty, or property, without due process of law”; Equal Protection Clause: “… nor shall any State deny to any person within its jurisdiction the equal protection of the laws”.

Since the adoption of these clauses — and their becoming applicable to the States through a doctrine called “incorporation” which is reminiscent of direct effect of EU Treaty articles in its piecemeal approach — it became US law that the “liberty” (in the Due Process Clause) protected from US State law deprivation includes most of the fundamental rights enumerated in the Bill of Rights as against the federal government.

Obergefell’s Legal and Social Consequences

In Obergefell, the Court emphasized that marriage represents “one of the vital personal rights essential to the orderly pursuit of happiness” and a union that “embodies the highest ideals of love, fidelity, devotion, sacrifice, and family”. The Court rejected arguments that extending marriage to same-sex couples would harm the institution of marriage, pointing out that married same-sex couples pose no risk to themselves or third parties.

By finding that the right to marry is protected from undue state law interference, the Court made clear that fundamental rights cannot constitutionally be subject to populist votes or majoritarian timetables. The rule of law, not majoritarian state legislatures, must protect them.

The Obergefell ruling had sweeping consequences: it generalized marriage equality across all 50 US states and required uniform recognition of same-sex marriages, relying on the supremacy of the US Constitution over state law, and of the right of the US Supreme Court to interpret it. Same-sex US couples gained access to the full array of marital rights: adoption and parental rights, inheritance, spousal benefits (e.g., health care, social security), tax treatment, next-of-kin status, and more.

By rooting the decision in the Fourteenth Amendment’s liberty and equality guarantees, the Court framed marriage equality not as a political preference but as a constitutional right tied to personal dignity, autonomy, and equality under law. This reasoning truly exemplifies the fundamental underpinnings of US law: if a state, at any level, does not have a strong and legitimate-enough interest to protect given its obligations to the people, it may not interfere with personal rights and liberties. The strongest personal rights require the strongest state interests to justify an interference, or a law that amounts to an interference cannot stand.

Comparing Models: Constitutional Rights vs. Mutual Recognition

The US perspective focuses on negative rights and has a relatively suspicious view of subjecting one’s liberty to the social contract that is living under the rule of law. From the US perspective, the topic of this post is a story of two legal systems built on a compromise between sovereign States and supranational institutions, where competence for family law — and all else not enumerated in the founding constitutional law — remains largely at the more local level, and where protecting minority rights to equal treatment by the state is in tension with local-level political will to retain legal distinctions that (at the supra level) are now deemed unjustified discrimination.

The decision of the Court of Justice relies on EU law’s conflict-of-laws / recognition regime, grounded in internal market freedoms and human rights under the Charter. It protects the liberty of EU citizens to move freely, with family, and not to suffer discrimination when doing so, but within the confines of EU competences.

The US decision relies on the State’s lack of a strong-enough justification to infringe the constitutionally-protected liberty to choose one’s partner, especially where equality before the law for those belonging to minority groups is threatened by laws allowing some but not others to marry. This is possible because the states have ratified constitutional laws that guarantee individual liberty and non-discrimination in such a way that the federal courts can rule unconstitutional even state-level laws infringing them. It raises a question I can pose to you for debate in the comments: in what ways might EU law one day justify a more comprehensive guarantee of EU-wide marriage equality?

The 2025 judgment of the Court of Justice requires only recognition of already valid same-sex marriages from other EU states, but it does provide a functional equivalent to the US rule, a PIL solution for same-sex couples, albeit by creating a “two-tier” reality difficult to justify through the constitutional-rights, American lens, but admittedly more respectful of the remaining political divides in the (younger) Union.

This post was written by Laima Vaigė, Associate Professor and Senior Lecturer in Private International Law at Uppsala University. It is the first contribution to the EAPIL on-line symposium on the ruling of the Court of Justice in Cupriak-Trojan.

The Court of Justice of the European Union delivered a landmark Grand Chamber judgment in Cupriak-Trojan (C-713/23) on 25 November 2025. The ruling is concerned with the obligation of a Member State to recognise a same-sex marriage lawfully concluded in another Member State when the spouses, both EU citizens, return to their State of nationality.

The dispute concerned a Polish national and a Polish-German national, who had married in Germany and requested that their marriage certificate issued in Germany be recognised and transcribed in the Polish civil register. The request was refused, as Poland does not allow same-sex couples to conclude marriages (nor registered partnerships). The case was referred to the Court of Justice by the Polish Supreme Administrative Court, and because it is about “recognition” of a marriage lawfully concluded abroad, the judgment also has implications for private international law (PIL).

Key Reasoning

The Court of Justice held that Poland’s refusal to recognize a same-sex marriage lawfully concluded in Germany, and to transcribe the foreign marriage certificate, creates serious administrative, professional, and private inconveniences (para 51), prevents the couple from continuing their family life in Poland (para 52), and exposes them to serious obstacles in everyday life (para 53). Such a refusal therefore constitutes an obstacle to Article 21 of the Treaty on the Functioning of the European Union (TFEU) free-movement rights (para 54).

Although restrictions may in principle be justified (paras 55–56), the Court found that neither national identity nor public policy can justify the refusal. Recognition of a same-sex marriage concluded abroad does not undermine Poland’s national conception of marriage and does not require the introduction of same-sex marriage domestically (para 61). Consequently, the obligation of recognition “does not undermine national identity or constitute a threat to public policy” (para 62).

Any restriction must also comply with the Charter of Fundamental Rights of the EU (the Charter) (para 63). Article 7 of the Charter mirrors Article 8 of the European Convention on Human Rights (ECHR) (para 64), and the ECtHR has repeatedly confirmed that same-sex couples fall within both private and family life (see, e.g., Orlandi and others v. Italy). With reference to a number of judgments in which the ECtHR has held that Poland has breached its duties under Article 8 of the ECHR, the Court of Justice highlighted that Poland’s failure to provide legal recognition leaves couples in a “legal vacuum”, contrary also to Article 7 (paras 65–67). While Member States may choose how to provide recognition (para 69), they must establish some effective procedure (para 68). In Poland, transcription is the only available mechanism, and without it, recognition depends on inconsistent administrative discretion (paras 71–73). Since heterosexual couples can obtain transcription but same-sex couples cannot (para 74), the situation amounts to discrimination based on sexual orientation, prohibited by Article 21(1) of the Charter (para 75).

Finally, the Court underlined that Articles 20 and 21 TFEU and Articles 7 and 21 of the Charter are directly effective. National courts must disapply conflicting national law where it cannot be interpreted in conformity with EU law (para 76).

Implications for Domestic and EU Private International Law

In PIL, substantive validity of marriage concluded abroad is a crucial question for “recognition” – different genders being one of the substantive requirements for entering into marriage in Poland and some other States. Marriages can be concluded under different substantive laws, hence choice-of-law rules are needed to determine their substantive validity.

In some States, substantive validity of marriages concluded abroad is determined by the law of the habitual residence of the spouses (e.g., Estonia) or lex loci celebrationis (law of conclusion of marriage), e.g. Lithuania. In other States, among them Poland, it is determined by the law of nationality of the spouses. The Polish Prawo prywatne międzynarodowe (Polish PIL Act) of 4 February 2011 provides that law of nationality at the time of entering into marriage determines each spouse’s substantive capacity to marry (Article 48). There is also the ordre public safeguard (Article 7) to prevent validity of certain marriages in exceptional cases. Besides PIL rules, administrative rules on transcription apply, and these also contain ordre public exception (Prawo o aktach stanu cywilnego, i.e, Law on civil status records,  of 28 November 2014, Article 107(3)).

The Court does not engage with Polish PIL in its reasoning, and only briefly mentions the ordre public safeguard in Article 7 of  the Polish PIL Act in its description of the legal context (not directly relevant, because Article 48 leads to application of the Polish law). Once the ECJ turns to the substance, its analysis is framed entirely through EU free-movement law and the Charter. When the Court assesses “public policy” (paras 57–62), it does so not as an interpretation of the Polish ordre public exception in PIL but as an EU-law review of whether national identity or public policy can justify a restriction on Article 21 TFEU. In other words, the Court interprets the EU concept of public policy, or the EU ordre public , which cannot be determined unilaterally by Member States. As a result, Polish PIL plays only a marginal role: it is effectively displaced by the primacy of EU free movement and fundamental rights.

The Court highlighted in Cupriak-Trojan that Articles 20 and 21 TFEU and Articles 7 and 21(1) of the Charter have direct effect and national courts must ensure their effectiveness by disapplying the conflicting national provisions. Various provisions of national law can be disapplied as a result. As to private international law, there is a strong case for disapplying, in EU-law situations, the PIL rule that ties marriage validity to the spouses’ nationality. Instead, a marital status concluded in another EU Member State should follow the spouses, provided that they had a residence in the Member State where marriage was concluded (see para 52). Hence, in situations where EU law is applicable, habitual residence or lex loci celebrationis appear to work better as connecting factors in determining substantive marriage validity.

Do the concepts of “habitual residence” in PIL and “residence” in Coman (C-673/16) and Cupriak-Trojan coincide? They might, but not always, because a person can obtain habitual residence very quickly in certain situations. Meanwhile, “genuine residence” (para 51 in Coman) implies EU citizen who resides in the Member State where marriage was concluded for more than three months, under certain conditions provided in secondary EU law (art 7.1. of Free Movement Directive).

It can be observed that in the previous case-law on cross-border recognition of surnames, there was no requirement of residence. For instance, in Garcia Avello case, the surname was obtained while living in the country of birth, never changing the State of residence. In Freitag, the surname was obtained in Romania, while the applicant resided in Germany. The Court found violations of Article 21 TFEU. In both cases, the applicants had dual nationality. From the reasoning in Freitag, it appears that obtaining the new civil status in the place of nationality should also be acceptable. The requirement of residence hence applies, so far, only to cross-border recognition of marriages, but not surnames. Although the requirement of residence for entering into marriage works rather well in PIL, it does not stand on a strong footing, from the perspective of EU primary law, and even less so, from the perspective of the ECHR.

Although Cupriak-Trojan is a free-movement case, it must have consequences for EU PIL. EU secondary law (inter alia, the Brussels II ter and the Succession Regulation) must apply in compliance with EU primary law, which has now been interpreted. Where these instruments rely on marriage, Member States should not exclude same-sex spouses, provided that their marriage was concluded within the EU and involved at least one EU citizen lawfully residing in the State of conclusion. Given the direct effect of the relevant Articles, national courts must disapply conflicting national PIL rules and substantive law rules where these would undermine the required recognition for the purposes of EU law.

Loopholes and Narrow Readings

One can see in this case a “free-market logic” applied to civil status. The Court treats surnames, marriages, and legal genders as if they were legal products that must move freely in the Union, to ensure free movement of persons to which they are attached.

At the same time, these cases are not really about market integration. They concern the substance of rights attached to Union citizenship and reflect the growing constitutional role of fundamental rights in the EU legal order since the Charter acquired primary-law status. Indeed, free movement cannot function if a person, after moving or returning to a Member State, is no longer sure whether they are married, what their legal name is, or which gender is recognised in law. That uncertainty creates serious practical and legal obstacles to everyday life and deters free movement.

There are certain loopholes remaining, particularly where EU law does not reach. If the EU citizens marry in a third country and then return to their State of nationality (e.g. Poland), or if it is a third country nationals marrying in the EU and then moving to Poland, they cannot be helped by neither free movement nor EU Charter rights. In these situations, the couples can still claim infringement of the ECHR (Article 8, possibly in combination with Article 14).

Another problem is that in the region where heterosexuality is the social norm, narrow readings and outright refusals of implementation (of both ECtHR’s and Court of Justice’s judgments) have been increasingly common. Despite the judgments of the Court of Justice in Coman and Pancharevo, the child of two mothers in the latter case was never recognized as the child of the Bulgarian mother, and Mr. Coman’s husband never got a residence right in Romania.

In Coman, the Court used a narrowing phrase, “for the sole purpose of” (derived residence rights) in its reasoning and conclusions. This allowed readings that “interpretation relates only to the Directive”, which means that Mr. Coman needs to get a job in Romania (or otherwise satisfy Article 7(1) requirements of the Directive), and only in that scenario, his husband might claim the derived residence right. The Romanian authorities did not even use this reasoning, but simply dismissed the case on procedural grounds; a case is pending at the ECtHR, as a result. As to the aftermath of Pancharevo, the Bulgarian authorities decided that they needed to know which one of the mothers was the birth-giving mother, and, deciding it was not a Bulgarian national, refused to recognize the filiation of the child, thus the child had no right to Bulgarian citizenship, and subsequently, authorities could not issue a Bulgarian passport to the child in question.

The narrow readings of the Coman and Pancharevo cases were still possible due to narrow formulations of the Court, despite the fact that EU primary law was also interpreted in these cases: Article 21 TFEU, Article 4.2 TEU, and Article 7 of the EU Charter, in Coman, and Articles 20 and 21 TFEU, Article 4.2 TEU, Articles 7, 24 and 45 of the EU Charter, in Pancharevo.

In contrast to previous case-law, Cupriak-Trojan contains no narrowing formulation “for the sole purpose of” (transcription). On the contrary, the judgment explicitly references the loss of concrete legal effects when recognition is withheld: access to health insurance, registration of surnames (para 50), and enforceability of obligations between spouses and third parties (para 52). These examples show that recognition must preserve the practical ability of same-sex spouses to continue living “as married persons” and to “rely on their marital status” after returning to their home state (paras 52–53).

Transcription is only one means by which Member States may implement recognition, but implementation must be effective, not formalistic or symbolic. It follows that Member States should not provide a procedure that strips the marriage of its ordinary legal consequences. That means, in my reading, full recognition of the civil status for the purposes of private international law.

Is there room under EU law for downgrading a same-sex marriage to a registered partnership? The Court in Cupriak-Trojan did not address this because neither the facts nor the legal context allowed it.

The ECtHR’s case law might suggest that downgrading is compatible with the Convention, but it concerns recognition of marriages from any country, including possible marriage tourism. The EU context differs: it concerns only marriages concluded by EU citizens in the EU while lawfully residing in another Member State. If downgrading were permitted, a same-sex marriage would not be seen as a marriage under EU secondary legislation (except the Free Movement Directive), thereby potentially eliminating or reducing the legal effects that the Court appears concerned to preserve in Cupriak-Trojan.

In some countries, even the most basic legal effects are not available to registered partners (e.g., a registered partnership in Lithuania currently cannot be dissolved and has fewer effects than cohabitation in other EU countries). Perhaps downgrading can happen only where the registered partnership confers legal effects comparable to marriage. A simpler solution is that a lawfully concluded marriage remains a marriage and cannot be downgraded in the intra-EU context. If it is a marriage under EU primary law, it should remain a marriage under EU secondary law.

Even if the room for narrow readings is limited, it remains to be seen how the Polish court ultimately decides the case on the merits and how will the Polish legislator reacts.

In contrast to the approaches taken in other jurisdictions in the field of constitutional law, the judgment of the Court of Justice is not such a gigantic step, but respects both national identity of the recognizing state, as well as the logic of private international law.

This post was contributed by Burkhard Hess, who is professor at the University of Vienna. Two more contributions on the ruling of the Court of Justice in Apple Store Nederland appeared on this blog since this post was published, one by Jorg Sladic, the other by Gilles Cuniberti.

On 2 December 2025, the Grand Chamber of the Court of Justice gave its long-awaited judgment in case C-34/24, Apple Store Nederland.

The Court went for a fundamental expansion of Article 7(2) of the Brussels I bis Regulation (in the following: JR), reversing its prior case-law of the exceptional character of this special head of jurisdiction. The Grand Chamber held that in cases regarding infringements of cartel law via a platform addressed to specific Member States, each court in the Member State where the (pretended) damage occurred has (full) territorial jurisdiction to decide on the whole damage occurred in that Member State when the lawsuit is implementing a collective claim. Protagonists in consumer protection and in cartel damages will certainly welcome this outcome. However, the judgment’s line of argument does not convince me at all.

The Facts of the Case

In 2021 and 2022, two Dutch foundations brought representative actions against Apple Ireland before the District Court Amsterdam. They assert that they are acting in the interests of all users (consumers and professional users) of Apple products and services who have purchased products and services from App Store NL, an online platform. The plaintiffs pretend that Apple holds a dominant position in the market for distribution of apps which run on iOS and in the payment system for those apps (IAP) and that Apple is abusing its dominant position, within the meaning of Article 102 TFEU, by charging an  excessive commission on the sale price received.

The defendant contests the jurisdiction of the District Court Amsterdam. According to its submission, jurisdiction cannot be based on Article 7(2) JR, because the alleged harmful event cannot be located in Amsterdam since no specific event took place exclusively there. In the alternative, Apple argues that the referring court has jurisdiction only with respect to users who reside in Amsterdam or who made purchases in Amsterdam via App Store NL.

In an interlocutory decision of 16 August 2023, the Amsterdam court held, in relation to Apple Ireland, that Dutch courts have international jurisdiction on the basis of both alternatives of Article 7(2) JR: the place of the causal event and the place where the damage occurred. However, the court had difficulties in determining territorial jurisdiction. In addition, the court was uncertain about the effects of the representative actions having been brought, under Article 3:305a of the Dutch Civil Code (BW), by a legal person by virtue of its own right (that is, not as an agent, representative or assignee). Therefore, the Amsterdam court asks whether the collective nature of the claim could have a bearing on the determination of territorial jurisdiction, under Article 7(2) JR.

The Arguments of the Grand Chamber

In his Opinion of 26 March 2025, EU:C:2025:212, AG Campos Sánchez-Bordona referred to the constant jurisprudence of the Court according to which the special heads of jurisdiction are exceptions from the general rule (Art. 4 JR) and must be strictly interpreted. Moreover, the Opinion referred to the upcoming recast the Regulation and urged for judicial self-restraint in extending the scope of application of Article 7(2) JR.

The Grand Chamber (in the following: GC), however, adopts a different approach. Although the judgment starts by citing the Court’s jurisprudence on the strict interpretation of article 7(2) (para 44) and the requirement of a close relationship and proximity between the place of the damage, the GC finally deviates from its established case-law. The main arguments are found in the following paragraphs:

58. However, in the light of the Court’s interpretation of Article 7(2) of Regulation No 1215/2012, referred to in paragraph 50 of the present judgment, according to which that provision confers directly and immediately both international and territorial jurisdiction, the referring court asks which one or more of those courts with international jurisdiction would have territorial jurisdiction to hear that dispute. …

60. In the present case, it should be noted, first, that those connecting criteria cannot apply mutatis mutandis in the event, such as that at issue in the main proceedings, of the purchase of digital products, on an online platform, by an indefinite number of natural and/or legal persons who were unidentified at the time when the action was brought.

61. The difficulties in applying those connecting factors therefore require them to be adapted in order to preserve the effectiveness of Article 7(2) of Regulation No 1215/2012 and to contribute to the sound administration of justice.  …

64. As is apparent from the request for a preliminary ruling, under Netherlands law, a foundation or association which brings a representative action acts as an independent promoter of the interests of persons who, although not referred to individually, have similar interests. Those applicants thus exercise their own right, namely the right to represent and defend the collective interests of a ‘strictly defined group’ which brings together unidentified but identifiable persons, namely users, whether consumers or professionals, who have purchased apps created by developers on the App Store NL to which those persons had access by means of their Apple ID associated with the Netherlands and whose domicile or registered office is likely, for the majority of those users, to be located throughout the territory of that State.

65. That group must be determined in a sufficiently precise manner to enable interested persons to express their position on the outcome of the proceedings concerned and, where applicable, to receive compensation. In that regard, the Netherlands Government stated, at the hearing, that the outcome of a representative action for the defence of the collective interests of unidentified but identifiable persons is binding on the persons established in the Netherlands who belong to that group and who have not expressed their intention to refrain from participating in those proceedings.

66. In such circumstances, a court cannot be required, for the purpose of determining its territorial jurisdiction to hear such an action, on the basis of the place where the damage occurred, within the meaning of Article 7(2) of Regulation No 1215/2012, to identify, for each alleged victim taken individually, the precise place where the damage that may have been suffered occurred, since those victims are not identified individually at the time when that court ascertains whether it has jurisdiction; nor can it be required to identify one or some of those victims. …

68. It follows from the foregoing that, in situations such as those at issue in the main proceedings, any court having substantive jurisdiction to hear a representative action brought by an entity qualified to defend the collective interests of multiple unidentified but identifiable users will have international and territorial jurisdiction, on the basis of the place where the damage occurred, within the meaning of Article 7(2) of Regulation No 1215/2012, to hear that action in its entirety.

According to the GC, the new criterion (establishing jurisdiction) is consistent with the objectives pursued by Regulation No 1215/2012. It corresponds to “proximity”, as the damage resulted from the anticompetitive conduct throughout the whole country; and it is considered as predictable given that the defendant targeted the whole country. Finally, its permits a sound administration of justice due to the complexity of cartel damage cases (paras 70 – 74).

Assessment

If one examines the judgment’s arguments which practically overrule a standing caselaw of almost 50 years, there is not much substance to be found: The GC primarily refers to effectiveness and to the sound administration of justice (para 61). This starting point permits the Court to depart from the wording of Article 7(2) JR (“place of the damage”) and to replace it by the new criterion based on the associations’ own “right to represent and defend the interests of strictly defined group” (para 64). And the Court continues by saying: “In such circumstances, a court cannot be required … to identify, for each alleged victim taken individually, the precise place where the damage that may have been suffered occurred, since those victims are not identified individually.” No additional legal argument is provided to explain why a deviation from the clear wording of the Regulation is permissible. Here, I cannot refrain from wondering: Is this still an interpretation of a legal provision or does this (thin) line of reasoning amount to judicial law making?

In addition, the reader gets the impression that this deviation from the wording of Article 7(2) JR and from a constant jurisprudence of Court has no genuine foundation in the jurisprudence – in the operative paragraphs of the judgment, no supporting case law is quoted at all. And some of the few citations are even misleading. What remains are the basic arguments of “effectiveness” and “sound administration of justice.” However, these arguments should be used primarily by the legislator when establishing a new head of jurisdiction.

I would like to clarify here that I do not criticize the outcome of the proceedings as such, but primarily the manner in which the new head of jurisdiction has been justified, which I consider insufficient. It appears obvious that the driving idea behind the decision is the intent of the GC to facilitate collective redress in the constellation at hand by adapting the heads of jurisdiction under the Brussels Ibis Regulation to the (perceived) special needs of collective actions. This objective immediately triggers the question whether other heads of special jurisdiction should also be adapted to the (perceived) needs of collective litigation, in particular Article 7(1) JR.

An additional, more fundamental question raised by the decision concerns the internal balance of the Regulation: Until now, jurisdiction at the plaintiff’s domicile has been the exception, not the basic rule of the Brussels regime. Deviations from the basic rule are justified by specific protective needs of weaker parties. These needs are not visible here (even if the Court refers to the Appel users as “victims”); the GC facilitates private enforcement instead. It goes without saying that these aspects cannot be resolved in a judgment but must be discussed addressed through the legislative process.

There are further consequences of the judgment that need to be discussed: The new interpretation of Article 7(2) JR allows the organizer of a collective action to shop into his preferred local court, by a tailored description of a group of represented “victims”. In larger Member States such as Spain, Poland or Germany, where geographic distances are significant and court specialization varies, this reinterpretation may have considerable consequences. In this regard, the judgment amounts to an invitation to domestic forum shopping.

Finally, the judgment favours those EU Member States that do no longer require a specific designation of represented individuals in collective actions like the Netherlands (Article 3:305a of the BW) and Germany (Section 4 Verbraucherrechte-Durchsetzungsgesetz). By contrast, some Member States, like Austria, adhere to this criterion (Section 624 ZPO). The judgment does not assess the differences in the implementation of the Collective Actions Directive. Consequently, it will certainly intensify legislative competition among the Member States in this field and ultimately constrain legislative freedom of Member States in procedural law.

Final Remark

Is the Court of Justice beginning a new line of interpretation of the Brussels I bis Regulation? We will find the answer only in its future case-law. However, there are some signs of a broader approach in the judgment. The most telling one is found in the operative part which expressly uses the term “qualified entity”. This notion is a central element of the Collective Action Directive (1828/2020/EU) and describes the standing of associations to bring a collective action. In the case at hand, however, the use of this term appears misleading: the Dutch Foundations do not operate as “qualified entities” under the Collective Actions Directive. This indirect reference to non-applicable EU-instruments might be read as a sign of the willingness of the Court to further develop its case-law favouring collective redress in the context of the Brussels regime. It will certainly trigger additional preliminary references on the interpretation of the Brussels I bis Regulation.

Finally, the basic criticism remains: At the time when the ongoing recast of the Brussels I bis Regulation is being initiated and issues of collective redress are expected to be discussed, the Grand Chamber appears to pre-empt the work of the EU legislator. In case C-498/16, Schrems II, AG Bobek told the Court that creating a special regime within the Brussel I bis framework for collective redress was a matter for the EU legislator, and the Court followed that opinion. Now, the Grand Chamber effectively assumes competence to reshape the Regulation. It remains to be seen whether the EU lawmaker will endorse the Court’s case-law in the upcoming recast. A more balanced solution is still needed.

Since 2023, the Unified Patent Court (UPC) has served as a supranational patent litigation forum for 18 EU member states. On 3 October 2025 the UPC Court of Appeal delivered its first final judgment, in a dispute between Philips and Belkin concerning alleged infringement of a patent relating to wireless charging technology.

Although the UPC primarily applies the Agreement on the Unified Patent Court (UPCA), which constitutes a uniform set of rules for all contracting states, the judgment is also noteworthy also from a private international law perspective.

Specifically, there are two aspects of the judgment that are interesting from a private international law perspective. First, the court explicitly relied on the Brussels I bis Regulation to assess the res judicata effect of a prior German judgment to the dispute. Second, the UPC’s approach to filling gaps in the UPCA through uniform interpretation raises broader questions about the relationship between the UPCA and differing substantive law regimes of the member states, particularly in areas such as company law and employment law, as well as its interaction with EU choice-of-law instruments.

Summary

Philips initiated proceedings in Munich Local Division (Court of first instance of the UPC) for alleged patent infringement under the UPCA against Belkin and its managing directors. The court of first instance held that the managers were partly liable, but all parties involved appealed the decision to the UPC Court of Appeal.

Overturning the court of first instance’s judgment, the Court of Appeal found the managing directors not liable for patent infringement. Still, the Court of Appeal held that managing directors can be held liable on grounds of the UPCA. This obiter dictum conclusion seems to be reached regardless of the law applicable to the managing director’s employment contract or to the law applicable to the company which he or she directs.

Res judicata Effect of a Judgment from an EU Member State

In 2019, Philips had filed a lawsuit against Belkin for issues related to the patent in question for the UPC. That lawsuit was filed in a national German court that held that Belkin was not infringing Philip’s patent. For the UPC, Belkin argued that not only the operative part of the German judgment (i.e. the conclusions) should be binding under Article 36 of the Brussels I bis Regulation, but that also the arguments leading the court there should have res judicata effect for the UPC. Article 36 prescribes that a judgment from a member state shall be recognised in all other EU member states. Belkin’s procedural argument put this recognition mechanism in Brussels I to the test in a new context. First, it is not immediately apparent how the Brussels I bis Regulation is to work in relation to the UPC. Second, the issue of how to determine the res judicata effect of a foreign decision is also not self-evident. Shall it follow the law in the country where the decision was rendered, the country where it is to be recognised or shall it be autonomously determined?

As regards the application of the Brussels I bis Regulation in relation to the UPC, it can first be noted that the UPC works as a national court for the 18 contracting EU Member States. Hence, Chapter VI of the UPCA dealing with issues of international jurisdiction explicitly refers to the Brussels I bis Regulation and the 2007 Lugano Convention for determining the court’s international jurisdiction (Article 31 UPCA). Also, it follows from Article 34 of the UPCA that a UPC decision has legal effect in all contracting states where the European patent is valid. In other words, there is no need to recognise and enforce a UPC judgment in a UPCA contracting state.

In the present case, the recognition issue arose in the opposite direction from what is governed in Article 34 of the UPCA. A judgment from a UPCA contracting state (Germany) was to be recognised by the UPC. A somewhat peculiar circumstance is that the seat of the UPC is also located in Germany. Despite that both courts are located in Germany, the relation between the courts must go the way over EU private international law.

Being a (supra-)national court for the 18 contracting member states, one can regard the UPCA system as a separate jurisdiction in this manner. Even though the claimant’s option to initiate patent proceedings before the national courts in a UPCA contracting state is only available during a transition period, that period is lengthy. Similar situations may therefore arise for a considerable time. Moreover, the same issue of recognition will become relevant for judgments from EU Member States that are not contracting parties to the UPCA as well as in relation to the Lugano Convention States.

As regards how to determine the res judicata effect of a foreign decision, Belkin had argued that it follows from Gothaer Allgemeine Versicherung, C-456/11, EU:C:2012:719, that the recognition mechanism requires that not only the conclusion of a decision, but also the grounds for it shall be recognized. Here, the UPC made the remark that Gothaer Allgemeine Versicherung concerned the special situation when a foreign court has decided on the validity of a forum selection clause. Such a clause cannot be contested in more than one other country than the country chosen in the forum selection clause.

Instead, for determining the res judicata effect of a decision, the Brussels I bis Regulation relies on a conflict of laws inspired solution favouring the law in the country where the judgment was rendered. This idea was presented already in the 1979 Jenard Report and was last confirmed by the CJEU in BNP Paribas, C-567/21, EU:C:2023:452 (reported for this blog here). With references to the two judgments above, the UPC held in its judgment that the res judicata effect of the German judgment should be governed by German law.

Analyzing German civil procedural law the UPC held that only the operative part of the judgment is legally binding and has res judicata effect. Hence, Belkin’s res judicata argument had only effect for the German patents and for those companies in the dispute that had also been parties in the German national procedure.

UPC’s Method of Filling Gaps

Apart from the obvious EU private international law aspect of the UPC’s judgment in its application of the Brussels I bis Regulation, also the substantive law interpretation methodology in the judgment deserves some attention. As was mentioned above the UPC found that a managing director may be held liable for patent infringements that he or she ought to have had knowledge of, even if no such liability was imposed in the case at hand. Here, it is noticeable that the UPCA contains no explicit rules for holding a managing director or an employee liable. Nor has this been harmonized in the EU or among the contracting UPCA states. Given the substantive law diversity among the different states, one could think that issues not explicitly covered by the UPCA would be subject to private international law considerations.

That private international law should play a role in disputes for the UPC follows from Article 24 of the UPCA. This Article first sets out the sources of law on which the UPC shall base its decisions (EU law, the Agreement itself, international patent conventions and national law). Although national law appears at the bottom of the list, Article 24(2) expressly instructs the Court to determine the applicable national law through private international law rules.

Albeit, the explicit reference to private international law and the role for substantive national law, the UPC does not bother to take such a detour over conflict of law rules. Instead, the Court cuts straight to the chase and creates an autonomous personal liability mechanism in paragraphs 189–200 of the judgment.

Even if the court does not apply private international law rules, substantive national law plays a significant role in the creation of the personal liability mechanism for managing directors. With inspiration from German, Dutch and French case law, the UPC holds that personal liability for a managing director must be a possibility also under the UPCA.

Undeniably, taking the hard harmonization path that the UPC does has its advantages. Not least for the efficiency of the UPCA. Still, such a hard harmonization does not really take into consideration the various substantive law solutions for company law liability and employment law that managing directors probably try to comply with.

If one glances at how the issue would have been resolved under the Rome II Regulation containing rules on the law applicable for non-contractual obligations, there is the conflict of law rule for intellectual property rights in article 8 pointing out the law in the country where protection is sought. If one can count the UPCA regime as a “country” that would certainly speak in favour of the UPC’s conclusions and methodology for filling gaps. Also, it follows from Article 15 of the Rome II Regulation that “the determination of persons who may be held liable for acts performed by them” is an issue subject to the scope of the law applicable. However, it is a fact that substantive law in the EU differs when it comes to these issues. Also, when it comes to personal liability for directors of a company, the company law exception in Article 1 p. 2(d) of the Rome II Regulation could come into question.

In the pending CJEU case Wunner, C-77/24 the question whether personal liability is subject to the Rome II Regulation or out of its scope will probably be assessed. Just like in the UPC case, non-contractual liability for managing directors has been sought. In the opinion of advocate general Emiliou (Wunner), it is argued that such personal liability is not part of the exception, but part of the Rome II Regulation.

Comment

UPC’s first judgment makes it clear that the UPCA is a new creature in EU law. This is particularly shown in the UPC’s method for filling gaps. Unlike how gaps in EU regulation are filled with the applicable national law, UPC leaves little room for national substantive law differences. Also compared to most other substantive supranational legal frameworks like conventions, UPCA differs by having a uniform supreme court (the UPC). Still, future interactions between UPCA and private international law will quiet clearly arise regardless of the fact that the UPC seems not to resort to private international law without necessity.

Having reflected on the judgment, I cannot refrain from making a side remark about its language and formal structure. As for language, the judgment is in German. That in itself is not a problem. The problem is that no English translation has been made available, even though seven weeks have passed since the judgment was rendered. Today, it is safe to assume that anyone interested in EU law understands English, whereas the same cannot, whether one likes it or not, be said of German (or any other language). Notably, the UPC local courts in Germany, France and Italy allowed for the usage of English as late as when the UPC opened (see this press release of 1 June 2023). If the UPC wants to position itself  as a “player” in European law, it must improve its accessibility. The simplest way of doing so is to make sure that all precedent judgments are available in English. Preferably on the same day as the judgment is issued in its original language.

Another point relating to accessibility and readability is that the UPC has chosen an internationally unusual method of structuring its judgment. Instead of building arguments from the bottom up (like the Court of Justice of the EU and the European Court of Human Rights do), the UPC starts with its conclusions and explain them backwards. This method probably has advantages, but it makes the line of reasoning difficult to follow, at least in my view.

The Court’s activities are suspended during the so-called semaine blanche, i.e., between 3 and 7 November 2025. The first event related to private international law is the hearing that is set to take place on 12 November in case C-14/25, Thüringer Aufbaubank. The Oberster Gerichtshof (Austria) is requesting the interpretation of Regulation (EC) No 805/2004 creating a European Enforcement Order for uncontested claims on the in the context of the enforcement in Austria of a claim on the basis of a German notarial deed:

Is Article 21(2) in conjunction with Article 25 of Regulation (EC) No 805/2004 … to be interpreted as meaning that certification of an enforceable authentic instrument (in this case, an enforceable notarial instrument drawn up by a German notary) as a European Enforcement Order, issued by the competent authority in the Member State of origin using the standard form in Annex III to that regulation, may not be reviewed in the Member State of enforcement even where – having regard to the date on which the authentic instrument was drawn up – the temporal scope of that regulation has manifestly not been respected?

The facts can be summarized as follows. On 14 February 2022, Thüringer Aufbaubank filed an application with the Judenburg District Court (District Court of Judenburg, Austria) for enforcement against LN of a claim of EUR 25,000, plus interest, on the basis of a notarial deed drawn up in Germany on 28 May 1999, which became enforceable on 1 June 1999. In support of its application, Thüringer Aufbaubank produced the notarial deed and a European Enforcement Order certificate issued, without objection, on 19 January 2021 by the competent German authorities, using the form set out in Annex III to Regulation No 805/2004.

The Bezirksgericht Judenburg dismissed the objection raised by LN and granted the application for enforcement under the simplified procedure provided for in Article 54b of the EO.

The Landesgericht Leoben (Regional Court, Leoben, Austria) reversed that decision and ordered that enforcement be suspended and the acts already performed be annulled. That court considered that the notarial deed drawn up in 1999 did not fall within the scope ratione temporis of Regulation No 805/2004, which applies only to enforceable titles issued on or after 21 January 2005. By way of consequence, the recognition and enforcement in Austria of the notarial deed drawn up in Germany should be governed by the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, signed in Brussels on 27 September 1968 (OJ 1972 L 299, p. 32, hereinafter the ‘Brussels Convention’), which requires a prior exequatur procedure. The court considered as well that the issue of a European Enforcement Order certificate by the competent German authorities could not alter that conclusion, since it was still possible for the Member State of enforcement to verify that the certificate clearly complied with the scope of that regulation.

An appeal for review was lodged by Thüringer Aufbaubank before the Oberster Gerichtshof (Supreme Court, Austria), which is the referring court.

The case has been assigned to a chamber of three judges – N. Piçarra, N. Fenger, and O. Spineanu-Matei as reporting judge-. No opinion has been requested.

A second hearing is scheduled for Wednesday 19 November. The Juzgado de Primera Instancia no 1 of Fuenlabrada (Spain) asks the Court to rule on the interpretation of the Montreal Convention of 1999 for the unification of certain rules for international carriage by air, approved on behalf of the European Community by Council Decision 2001/539/EC of 5 April 2001, as well as on Regulation (EC) No 2027/97 of the Council of 9 October 1997 on air carrier liability in respect of the carriage of passengers and their baggage, as amended by Regulation (EC) No 889/2002.

Must Article 3(1) of Regulation (EC) No 2027/97 be interpreted as meaning that the liability of a Community air carrier in respect of the carriage of passengers and their baggage is also to be governed by Article 33 of the Montreal Convention in the case of carriage within a Member State of the European Union?

May Article 33(1) of the Montreal Convention be interpreted as meaning that the place where the carrier has a place of business through which the air transport contract has been entered into could be the principal and permanent residence of the passenger, if the contract was entered into online?

Must Article 33(1) of the Montreal Convention be interpreted as meaning that the place where the carrier has a place of business through which the contract has been entered into refers to the place in which the principal obligation of carriage by air was contracted for and not the place in which the ancillary service, from which the carrier’s liability arises, was contracted for, if the latter place differs from the former?

As to the facts of the case, it is worth mentioning that claimant in the main proceedings entered into an air transport contract with Vueling, an air carrier having its registered office in Viladecans (Barcelona), for a flight from Madrid airport to Barcelona airport, on 8 November 2023. The baggage was lost during that first leg of her journey. Because the applicant has not provided documentation, nor added any other information, regarding the contract for the second flight, from Barcelona to Rome (or regarding the return flights to Madrid), the referring court assumes that there was no ‘international carriage’, within the meaning of Article 1 of the Montreal Convention, and that the relevant carriage is national. By way of consequence, the Court of Justice is being asked to decide on the rules applicable to venue, i.e., to the distribution of local jurisdiction within a Member State (compare to C-213/18, Guaitoli, where the national court sought to ascertain whether Article 33, paragraph 1 of the Montreal Convention must be interpreted as governing not only the allocation of jurisdiction as between the States Parties to the convention, but also the allocation of territorial jurisdiction as between the courts of each of those States). An obvious question of legislative competence arises there.

The case has been assigned to a chamber of five judges (C. Lycourgos, O. Spineanu-Matei, S. Rodin, N. Piçarra and N. Fenger – reporting), with an opinion by advocate general D. Spielmann.

A third hearing concerning a private international law instrument will be held on 20 November. The referring court – the Obvodní soud pro Prahu 1 (District Court for Prague 1, Czech Republic) – has referred three questions on Regulation No 650/2012 on matters of succession in case C-98/24, Koda:

Must the provisions of Article 83(3) and (4) of Regulation No 650/2012, in conjunction with Article 3(1)(d) of Regulation No 650/2012, be interpreted as meaning that the term disposition of property upon death includes a declaration of disinheritance?

If the first question is answered in the affirmative, must Article 83(4) of Regulation No 650/2012 be interpreted as meaning that if, before 17 August 2015, the testator made several dispositions of property upon death that were in accordance with the law that the testator could have chosen in accordance with Regulation No. 650/2012, is the law deemed to have been chosen as the law applicable to the succession that law under which the testator last made a disposition upon death before 17 August 2015?

Must Article 26(2) of Regulation No 650/2012 be interpreted as meaning that, if the testator’s capacity to make a disposition was restricted due to the making of a disposition of property upon death before 17 August 2015 under the law that governed his or her succession as a whole, and if a subsequent change of that law has resulted in changes to the conditions for the exercise of his or her capacity to make a disposition, the testator’s capacity to make a disposition continues to be restricted in accordance with the law that would have been applicable to that testator’s succession if he or she had died on the day on which the agreement as to succession was concluded, regardless of the fact that, according to the law governing his or her succession as a whole at the time of death, the testator was entitled to terminate (revoke or modify) that agreement as to succession?

In the case at hand, the testator, L.K., had Czech and German nationality. He died on 24 August 2022 and was residing in the Czech Republic at the time. L.K. was married to E.K., who died on 9 January 2007.  They had two daughters, E.D. and N.K., as well as three grandchildren, who are the children of N.K. On 2 November 1999, L.K. and E.K. drew up a joint will (a “Berliner Testament”) in the Federal Republic of Germany, in accordance with the German Civil Code, which they partially amended on 8 February 2001 by means of a joint declaration.

After L.K.’s death, it emerged that he had left two authentic instruments relating to his estate. The first one is a declaration of disinheritance dated 23 June 2015, by which he disinherited his two daughters and their descendants. The second is a will dated 20 December 2017, in which he chooses Czech law as the law applicable to the succession, and appoints L.P. as sole heir.

The referring court states that, according to N.K. and her children, it is apparent from the joint will drawn up in 1999 that L.K. and E.K. intended to limit their freedom to make a will in the event of the death of one of them. Thus, in such a case, the survivor could only change the circle of his heirs by designating as such certain persons mentioned in the joint will and could therefore only choose between his daughters, E.D. and N.K., and their children.

On 18 January 2023, the Obvodní soud pro Prahu 1, represented by a notary acting as judicial commissioner, issued an order stating that the law governing the entire succession was Czech law, pursuant to Article 22(1) of Regulation No 650/2012. It also terminated N.K.’s status as a party to the succession proceedings and decided to continue the proceedings with L.P. only.

N.K. and her children appealed against that decision to the Městský soud v Praze (Municipal Court, Prague, Czech Republic). By decision of 10 July 2023, that court upheld the order of 18 January 2023 in so far as it had terminated N.K.’s status as a party to the proceedings. It set aside the remainder of the decision, stating that the testator’s capacity to amend or revoke the part of the joint will in which he had designated his grandchildren as his heirs was governed by German law and not by Czech law. The appeal court therefore referred the case back to the the Obvodní soud pro Prahu 1 instructing it to determine the content of German law, while specifying that only after such a step had been taken could the dispute over inheritance law between L.P. and the children of N.K. be resolved.

The hearing will probably focus on the competence of the Czech notary to raise preliminary questions. At its end, advocate general M. Campos Sánchez-Bordona Will announce the date of delivery of his opinion. The chamber is composed by judges I. Jarukaitis, M. Condinanzi, R. Frendo, A. Kornezov and N. Jääskinen (reporting).

Finally, on Thursday 27th the Court will deliver its decision in case C-643/24, Manuel Costa Filhos. Here, the Supremo Tribunal de Justiça (Supreme Court of Justice, Portugal) has referred three questions to the Court for a preliminary ruling concerning the interpretation of Regulation No 1393/2007 on the service od documents (no longer in force) and Regulation No 805/2004 creating a European Enforcement Order for uncontested claims:

In the event that, from a procedural perspective, the failure to send the standard form set out in Annex II to Regulation (EC) No 1393/2007 … cannot be rectified, on account of the declaratory proceedings having already given rise to a final judgment ordering payment, does Article 8(1) of that regulation, taking into account the right to a defence of the addressee of that document in accordance with the requirements of a fair trial, enshrined in the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union and in Article 6(1) of the [European Convention on Human Rights] preclude national legislation which considers service effected by registered letter with an acknowledgement of receipt to be invalid when it was not accompanied by the standard form set out in Annex II to that regulation?

Must Article 20(1) of Regulation (EC) No 805/2004 …, which provides that ‘a judgment certified as a European Enforcement Order shall be enforced under the same conditions as a judgment handed down in the Member State of enforcement’, be interpreted as meaning that the judgment debtor may oppose enforcement based on a European Enforcement Order relying on the same grounds on which he or she could rely in the case of enforcement based on a judgment handed down in the Member State of enforcement, in particular on the ground that he or she did not participate in the declaratory proceedings and that the service, effected by registered letter with an acknowledgement of receipt, was invalid because it was not accompanied by the standard form set out in Annex II to Regulation [No 1393/2007]?

In view of the objectives which led to the creation of the European Enforcement Order (Article 1 of Regulation No 805/2004) and of the minimum requirements for the service of documents applicable to the proceedings in which the judgment certified as a European Enforcement Order was handed down (Articles 13 and 14 of that regulation), which, according to recital 14 of that regulation, are characterised by either full certainty (Article 13) or a very high degree of likelihood (Article 14) that the document served had reached its addressee, does Regulation No 805/2004 preclude national legislation, such as that contained in Article 729(d), read in conjunction with Article 696[(e)(i)], of the [Código de Processo Civil (Code of Civil Procedure)], according to which the judgment debtor may oppose the enforcement on the ground that he or she did not participate in the declaratory proceedings and that the service, effected by registered letter with an acknowledgement of receipt, was invalid because it was not accompanied by the standard form set out in Annex II to Regulation No 139[3]/2007?

The questions were raised in proceedings between a company incorporated under Portuguese law, Manuel Costa & Filhos, Lda (hereinafter “Manuel Costa”) and a company incorporated under Estonian law, OÜ Wine Port of Paldiski (hereinafter “Wine Port”), concerning the enforcement in Portugal of a judgment delivered and certified as a European Enforcement Order in Estonia.

Wine Port had brought an action for payment against Manuel Costa before an Estonian court. The document instituting the proceedings and other documents in the proceedings were served on Manuel Costa by registered letter with acknowledgement of receipt. No translation into Portuguese was provided; the service was not accompanied by the standard form set out in Annex II to Regulation No 1393/2007 informing the latter company of its right to refuse to accept those documents.

Manuel Costa signed the acknowledgement of receipt, but did not take a position on the documents served and did not intervene in the proceedings before the Estonian court. In those circumstances, by a judgment served on Manuel Costa on 20 April 2022, the Estonian court ordered that company to pay the sum of EUR 41 831.47 to Wine Port.

On 22 June 2022, Manuel Costa was notified by registered letter that the judgment had become enforceable. The judgment was certified as a European Enforcement Order in accordance with Regulation No 805/2004. Wine Port brought enforcement proceedings against Manuel Costa before the Portuguese courts.

Manuel Costa raised an objection on the grounds that the service of the document instituting proceedings before the Estonian court was invalid in the absence of the standard form set out in Annex II to Regulation No 1393/2007. On this basis, the court of first instance ordered the suspension of enforcement. That decision was overturned on appeal.

Following an appeal lodged by Manuel Costa, the case came before Supremo Tribunal de Justiça.  This court states that, under Portuguese law, service of a document carried out without the standard form set out in Annex II to Regulation No 1393/2007 is null and void and that that nullity, together with the fact that the party against whom service was sought did not intervene in the proceedings on the substance in which the nullity was established, means that the judgment cannot be enforced. The Supremo Tribunal de Justiça further states that, according to the Court of Justice judgments C‑519/13, Alpha Bank Cyprus and C-354/15, Henderson, and the order in case C-346/21, ING Luxembourg, the absence of the standard form does not render the service invalid but merely gives rise to an obligation to regularise it. However, in those cases, the absence of the form was raised during the proceedings on the merits, that is to say, at a time when it was still possible to regularise said absence. In the case at hand that omission is relied on at a time when the main proceedings have come to an end, during the enforcement of the judgment delivered at the end of those proceedings.

The case has been assigned to the same chamber as C-14/25, Thüringer Aufbaubank, which will decide without an AG’s opinion.

— Update to the post of October 2025 at the Court of Justice: on 30 October 2025, the Court delivered its judgment in case C-398/24, Pome, not preceded by an opinion or a hearing. The ruling is concerned with the interpretation of Article 25, on choice of court agreements, of the Brussels I bis Regulation. A summary of the facts and the decision can be found at Geert van Calster’s blog.

In Cabris Investments, a case decided on 9 October 2025, the Court of Justice ruled on the interpretation of Article 25 of Regulation No 1215/2012 on jurisdiction and the recognition and enforcement of judgments (Brussels I bis).

Article 25 is concerned with choice-of-court agreements. It applies where the parties to a dispute, “regardless of their domicile”, have agreed to confer jurisdiction on “a court or the courts of a Member State”. If the agreement complies with the formal requirements set out in Article 25, then the court or courts chosen “have jurisdiction”. Such jurisdiction is “exclusive unless the parties have agreed otherwise”.

The Facts of the Case and the Questions Referred to the Court of Justice

On 6 May 2020, a consultancy contract was concluded between two companies established in the UK. The agreement featured a clause whereby the Commercial Court in Vienna was to have jurisdiction over any disputes arising out of or in connection with the contract. In 2023, one of the two companies sued the other in Vienna alleging that the latter had failed to fulfill its obligations under the contract.

The defendant challenged the jurisdiction of the Commercial Court, arguing that Article 25 of the Brussels I bis Regulation did not apply, given that, as a result of Brexit, the UK ceased to be bound by EU law on 31 December 2020, when the transition period contemplated in the Agreement concerning the withdrawal of the UK from the EU came to an end. In the opinion of the defendant, this made the choice-of-court clause inoperative.

The Commercial Court had doubts about the applicability of Article 25 of the Brussels I bis Regulation and sought clarification from the Court of Justice, noting  that Recital 13 of the Regulation provides that “[t]here must be a connection between proceedings to which this Regulation applies and the territory of the Member States”, and that, according to Recital 14, “[a] defendant not domiciled in a Member State should in general be subject to the national rules of jurisdiction applicable in the territory of the Member State of the court seised”.

The Court’s Ruling

The Court held in Cabris Investments that Article 25 of the Brussels I bis Regulation covers a situation in which two parties to a contract domiciled in the UK agree, during the transition period, on the jurisdiction of a court of a Member State to settle disputes arising from that contract, even where that court is then seised after the end of the said period.

The Court decided that the case would be determined without a submission from the Advocate General. As stated in Article 20 of the Statute, the Court may do so where it considers that the case “raises no new point of law” (doubts on the appropriateness of this choice have been expressed by Michael Wilderspin in a comment to a report on the ruling by Geert van Calster on LinkedIn).

On the merits, the reasoning of the Court revolves around four main findings.

First, a choice of court agreement has no legal effect for so long as no judicial proceedings have been commenced. The applicability and effects of such an agreement must accordingly be assessed as at the date on which the legal proceedings are brought, and from the standpoint of the court seised.

Second, the fact that Article 25 of the Brussels I bis Regulation applies “regardless of the domicile of the parties” indicates that the rule that it lays down is not subject to any condition relating to the domicile of the parties, or of one of them, in the territory of a Member State. In this respect, Article 25 differs from Article 23 of Regulation No 44/2001 (the Brussels I Regulation), which, for its part, required, for the application of the rule of jurisdiction based on an agreement conferring jurisdiction, that at least one of the parties to that agreement be domiciled in a Member State.

Third, the system of jurisdiction established by the Brussels I bis Regulation is internal to the EU and pursues EU-specific objectives, such as the proper functioning of the internal market and the establishment of an area of freedom, security and justice. Respect for the autonomy of the parties, as stated in Recital 14, is among the concerns which the Regulation seeks to address. Thus, unlike the rule laid down in Article 4, according to which jurisdiction lies generally with the courts of the Member State where the defendant is domiciled, Article 6(1) of that regulation provides that, if the defendant is not domiciled in a Member State, jurisdiction is, in each Member State, to be determined by the law of that Member State. Reliance on domestic rules, however, is explicitly made subject to the application of certain provisions of the Regulation itself, including Article 25 thereof. Consequently, a situation in which the defendant is not domiciled in a Member State, but the contractual parties have agreed that a court or courts of a Member State are to have jurisdiction to settle their contractual disputes, falls under Article 25, and the rules of jurisdiction of the law of the forum have no role to play.

Fourth, while it is true that a situation must have an international element to come within the scope of the Brussels I bis Regulation, the Court of Justice has already asserted (notably in Owusu) on various occasions that the latter requirement is met where the case is exclusively connected with a State outside the EU. In addition, as clarified in Inkreal, a situation in which the parties to a contract, who are established in the same Member State, agree on the jurisdiction of the courts of another Member State, has an international element, even if that contract has no further connection to the other Member State. By analogy, the Court added, the existence of an agreement conferring jurisdiction on the courts of a Member State, even though the contracting parties are domiciled in a third State, raises a question relating to the determination of the international jurisdiction of the courts and that such a situation therefore has the necessary international element.

The applicability of Article 25 in the case at issue, the Court finally observed, is consistent both with the objectives pursued by the latter provision, namely to respect the autonomy of the parties and to enhance the effectiveness of exclusive choice-of-court agreements, and with the broader objective of the Brussels I bis Regulation to improve legal certainty. The proposed reading contributes to preventing, in the Member States, the conflicts of jurisdiction that could arise if the situation were governed by the national rules of private international law of the Member States. Concurrently, it minimises the possibility of concurrent proceedings and averts the risk of irreconcilable judgments.

A Rather Plain Ruling, in the End

The conclusion reached by the Court of Justice in Cabris Investments is persuasive.

Choice of court agreements display a dual nature. They are essentially designed to produce procedural effects, but are normally embodied in contracts the purpose of which is to shape the parties’ substantive relationship.

Admittedly, situations exists where such a duality is a source of uncertainties. However, this is not necessarily the case in circumstances such as those at the origin of the Court’s ruling.

Basically, the issue was whether the Commercial Court in Vienna was bound, in the assessment of its jurisdiction, by the rule laid down in Article 25. This is a procedural question, which the Commercial Court had no option but to approach from the standpoint of the rules applicable in Austria at the time when the question arose, that is, in 2023, when the Commercial Court itself was seised of the proceedings. The applicable rules were the rules of the Brussels I bis Regulation, including, specifically, Article 25, as the conditions of applicability set out therein were all met in the circumstances.

Indeed, the Brussels I bis Regulation had then ceased to be effective in the UK. But this has implications for the UK (according to Article 67 of the Withdrawal Agreement, the Regulation’s rules on jurisdiction apply in the UK to proceedings instituted before the end of the transition period), not for Austria. This means that despite Brexit, the choice of an Austrian court, where it complies with Article 25, produces the two effects that a choice of court is meant to bring about: it confers jurisdiction on the chosen Austrian court and, unless the parties agreed otherwise, prevents the courts in the other EU Member States from asserting their jurisdiction over the case.

All in all, Cabris Investments confirms that the applicability of the Brussels I regime does not depend, as such, on the domicile of the defendant being in a Member State of the EU. The Court had already made clear in the Lugano Opinion that the application of the domestic rules of the individual Member States to proceedings brought against non-EU domiciliaries occurs within the framework of the jurisdictional system of the Brussels I regime itself, thereby indicating that the latter proceedings do not fall outside that regime: through the rule now enshrined in Article 6(1) of the Regulation, the Brussels I regime “resolves [the issue of jurisdiction arising from the said proceedings] by reference to the legislation of the Member State before whose court the matter is brought” (para 148).

The rules of the Regulation whose operation is left untouched by Article 6(1), such as Article 24 (on exclusive jurisdiction) and Article 25, both of which apply “regardless of the domicile of the parties” cannot be labelled as “exceptional”. The fact that they apply irrespective of whether the domicile of the defendant is in a Member State of the EU, or not, does not amount to a departure from a basic rule, for the simple reason that the Brussels I regime, when it comes to the applicability of its jurisdiction-conferring rules, does not generally distinguish between EU and non-EU defendants.

All proceedings, whether brought against EU or non-EU defendants, are subject in Member States to the Brussels I regime, provided  they come with the latter’s material and temporal scope. The domicile of the defendant may rather have an impact on the way in which the issue of jurisdiction is to be dealt: while some provisions apply regardless of the domicile of the defendants (or the parties to the proceedings), such as Articles 24 and 25, others apply only in litigation against EU domiciliaries (Articles 4, 7, 8, etc.), and others still (Article 6, with its referral to domestic rules) are only at play where the case is brought against a non-EU defendant.

What Role, if Any, for the Hague Choice of Court Convention in the Circumstances?

In an interesting post published a few days ago on Conflictoflaws, Salih Okur expresses surprise at the fact that, in Cabris Investments, the Court of Justice failed to assess the applicability of the Hague Convention of 30 June 2005 on exclusive choice of court agreements, which is in force for both the UK and the EU.

Article 216(2) of the TFEU entails that the Convention takes precedence over the Brussels I bis Regulation in cases falling within the scope of both texts. The Convention, however, comes with a disconnection clause in Article 26(6)(a) whereby, put shortly, the Regulation prevails over the Convention, in the Member States of the EU, where none of the parties is resident in a Contracting State that is not also a Member State of the EU. Since the proceedings before the Commercial Court in Vienna concerned two UK companies, the Convention, had it been applicable to the case, would have ultimately enjoyed priority over the Regulation.

Incidentally, I am assuming here that the relevant point time to determine whether a Contracting State is also a Member State of the EU should be the moment when the proceedings were instituted, not the moment when the agreement was made: note that, in the circumstances, the choice-of-court agreement was made when the UK was bound by EU law, including the international  conventions in force for the EU, whereas the lawsuit in Vienna commenced when the UK was bound by the Hague Convention by virtue of the instrument of accession it deposited on 28 September 2020. The matter cannot be further discussed here.

That said, Salih Okur observes in his post that the case did not fall within the scope of application of the Hague Convention, for it failed to meet the requirement of internationality set out by the Convention. In fact, the latter instrument only applies to “international cases” which, for the purposes of jurisdiction, means, according to Article 1(2), all cases “unless the parties are resident in the same Contracting State and the relationship of the parties and all other elements relevant to the dispute, regardless of the location of the chosen court, are connected only with that State”.

This is a fair point, although, to be precise, the Court of Justice contented itself with noting that, in the circumstances, aside from the jurisdiction clause, there was “no apparent link between the parties to the main proceedings and the Republic of Austria” (emphasis added), without specifying whether all the other “elements relevant to the dispute” were also tied to the UK alone.

Had the case been international within the meaning of Article 1(2) of the Convention, the Commercial Court in Vienna would have been required to resort to the Convention, rather than the Regulation, to assess the validity and the effects of the jurisdictional clause. Arguably, the treatment of the clause would have then been largely the same as under the Brussels I bis Regulation. Both texts provide for the enforcement of choice-of-court agreements concluded in writing, where they purport to confer exclusive jurisdiction to settle a dispute over a commercial contract on a court, or the courts, of a State bound by such texts, as it was the case in the circumstances.

Whether Brexit “Revived” the 1968 Brussels Convention Remains Unanswered

In its order for referral the Commercial Court in Vienna asked the Court of Justice to clarify how the matter should be dealt if Article 25 of the Brussels I bis Regulation were to be considered inapplicable, including whether the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters ought to be deemed applicable, “revived” as a result of Brexit. The positive answer provided by the Court of Justice to the question regarding the applicability of Article 25 made the issue moot.

It is hard to see on what grounds such a revival could be asserted under the applicable rules of the law of treaties. Be that as it may, those wishing to learn about the views of the Court of Justice on the matter have no option but to wait until another occasion arises.

Comment

The Danish judgment underscores the importance of interpreting international conventions and EU law consistently, ensuring that international rules prevail over conflicting national procedural norms. Challenges arise when national courts must “fill in the gaps” of an international instrument, as any supplementary rules must not undermine its purpose. In EU law, this principle is often referred to as the principle of effectiveness (“effet utile”).

The Swedish Supreme Court’s decision in NJA 2018 p. 957 illustrates the role of the principle of effectiveness in the context of a conflict between national procedural rules and EU jurisdiction rules. In applying the rule on tacit prorogation under Article 26 of the Brussels I bis Regulation (1215/2012), the Court rejected a direct application of Sweden’s procedural time limits, which would have extended the effect of tacit prorogation beyond the Regulation’s intended rationale. The Swedish Supreme Court’s approach mirrors that of the Danish case, emphasizing the need for caution when national procedures intersect with international and EU law.

— Stop it before it enters the EU !

As alluded to by Erik Sinander in his post on the judgment of the Grand Chamber of the CJEU in C‑600/23, Royal Football Club Seraing SA v. FIFA, et al. (“RFC Seraing”), the Court not only confirmed that the courts of EU Member States should have the possibility to review whether arbitral awards comport with EU public policy, but also ruled that arbitral awards should not produce effects before such review has been conducted.

The focus of the Court was on two specific effects: res judicata between the parties, and probative value vis-à-vis third parties. The Court reasoned on the finding that under the Belgian law of arbitration, arbitral awards produced certain effects immediately after being made, without prior review of whether any of the grounds for denying enforcement or recognition exists.

While I am not an expert in Belgian arbitration law, the findings of the Court echo and are consistent with the arbitration laws of many other States. Under French and Luxembourg arbitration laws, for instance, arbitral awards are res judicata on the very day when they are made, and they are more generally recognised (as opposed to enforceable) on that date. There is no requirement for any prior recognition procedure. In practice, whether the relevant award meets the requirement for recognition (ie whether any of the grounds for denying enforcement or recognition is met) will be verified incidentally, in judicial proceedings not concerned primarily with the award, but where the award will be relied upon by a party (for instance, to argue that it is res judicata).

In Seraing, the CJEU ruled that such immediate recognition of an arbitral award violates EU law. It concluded that:

the second subparagraph of Article 19(1) TEU, read in conjunction with Article 267 TFEU and Article 47 of the Charter, must be interpreted as precluding:

– the authority of res judicata from being conferred within the territory of a Member State on an award made by the CAS, in the relations between the parties to the dispute in the context of which that award was made, where that dispute is linked to the pursuit of a sport as an economic activity within the territory of the European Union and the consistency of that award with the principles and provisions of EU law which form part of EU public policy has not first been subject to effective review by a court or tribunal of that Member State that is authorised to make a reference to the Court of Justice for a preliminary ruling;

– probative value from being conferred, as a consequence of that authority of res judicata, on such an award within the territory of that Member State, in the relations between the parties to that dispute and third parties.

The conclusion would therefore seem to be that arbitral awards should not produce any effect within EU Member States before a review procedure could be made available to the parties. And indeed maybe to third parties.

Scope of the Obligation: Commercial Arbitration as well?

The first question raised by the judgment is that of its scope. The Court seems to insist on the fact that the relevant award was a CAS award which had decided a dispute linked to the pursuit of a sport as an economic activity within the territory of the European Union. It does so in the dispositive part of the judgment. It also does so by the structure of the judgment, which, after the Preliminary Considerations, has a first part which seems to be focused on arbitration in general, and a second focused on CAS arbitration.

This being said, I have not identified any part of the judgment where the Court actually says that the reasons for establishing a mandatory recognition procedure are only valid for sport arbitration. Quite to the contrary, it seems to me that all the reasons given equally apply to arbitration in general.

In particular, while the court repeatedly underscores that sport arbitration is, in effect, unilaterally imposed on athletes, it does not rely on this difference to reach any of its conclusions.

My sense, therefore, is that the scope of the judgment is much broader than sport arbitration. It applies to all forms of arbitrations, including most importantly commercial arbitration.

Scope of Obligation: Judgments?

Seraing is obviously concerned with the recognition of arbitration awards, not foreign judgments.

But one cannot help notice that the public policy exception equally applies for foreign judgments, including judgments from other Member States (see, eg, Brussels I bis Regulation, Article 45), and that it very likely includes European public policy.

There is, however, an important reason to distinguish between arbitral awards and judgments of other Member States. As the CJEU has ruled in London Steam-Ship,  “the mutual trust in the administration of justice in the European Union (…) does not extend to decisions made by arbitral tribunals”. They cannot, therefore, be trusted to apply correctly rules of EU law.

In contrast, the principle of mutual trust entails that the courts of other Member States are to be trusted in their application of rules of EU public policy. It follows that the rules on recognition of judgments in the Brussels instruments, which do not require any prior review of the foreign judgment, can more easily be justified.

What about, however, an English judgment ruling on an intra-EU dispute subject to the fundamental principles of EU law? Sadly, the application of the principle of mutual trust with our British friends has been terminated, and it may well be that Seraing could impact the common law of judgments of the Member States.

Content of Obligation

Seraing tells us that the rules on immediate recognition of arbitral awards do not comport with EU law. How should they be amended then?

It seems that there are three possible ways forward.

The first is to establish a mandatory recognition procedure, without which arbitral awards cannot be recognised in Member States.

The second is to change the date at which awards are recognised and abolish the retroactive effect of the review procedure.

The third is to distinguish between the grounds of non recognition and craft a special regime for the public policy exception. It is not immediately clear to me how that could work.

The Court of Justice will resume its public activity on 2 September 2025. The most relevant event regarding private international law this month is scheduled for Thursday 11th, when the opinion of AG Ćapeta in case C-196/24, Aucrinde, will be published. The hearing took place last April as reported here. In the case at hand, the tribunal judiciaire de Chambéry (France) requests the interpretation of the Recast Evidence Regulation for the first time since said regulation became fully applicable, asking in particular:

1) Does Article 12 of [the Recast Evidence Regulation] allow a national court to refuse to apply that regulation and to comply with the request from the requesting State, on the ground that the procedure specified in the request is contrary to fundamental principles of the national law of the requested State, and in particular Article 16-11 of the Civil Code?

2) If Article 12 of [the Recast Evidence Regulation] applies regardless of national law, how should Article 1 (right to dignity) and Article 7 (right to respect for private life) of the Charter of Fundamental Rights be interpreted and the links between them determined in order to establish whether or not such an application of the Regulation infringes the Charter of Fundamental Rights?

The reporting judge is T. von Danwitz. Not surprisingly, the case has been allocated to the Grand Chamber.

The publication of other opinions or decisions may be of interest for the readers of this blog even if they do not address directly PIL instruments. I would include under the category the opinion of AG J. Richard de la Tour in case C-43/24, Shipov, to be published on Thursday 4th. As already reported in the blog, the Varhoven kasatsionen sad (Supreme Court, Bulgaria) is trying to establish the consequences of the Court’s judgments in cases Coman and Pancharevo, 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 and C 490/20 in relation to the application of Directive 2004/38/EC 3 and Article 21(1) TFEU, 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?

Those dealing with maritime transport and civil liability should be aware of the publication, also on Thursday 4th, of the opinion of AG R. Norkus in case C-629/24, Costa Crociere e.a., where the French Court of Cassation has referred the following questions to Luxembourg:

Must Article 2, Article 3(1) and the first paragraph of Article 7 of Regulation (EC) No 392/2009 of the European Parliament and of the Council of 23 April 2009 on the liability of carriers of passengers by sea in the event of accidents,  and Annex I thereto, be interpreted as governing the liability of a maritime carrier operating a cruise having the characteristics of a package holiday within the meaning of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours? 

If the answer to the first question is in the affirmative, do those provisions of the Regulation govern the liability of that operator only where the personal injury relates to carriage by sea?

I would recommend as well to keep an eye on the decision of the Court, expected on Thursday 4 September, in C-203/24, Hakamp, where the main dispute concerns the determination of the social security legislation applicable to an employee resident in the Netherlands who performed activities, for an employer based in Liechtenstein, on a barge in Belgium, the Netherlands and Germany. As the Hoge Raad der Nederlanden put it itself, this request for a preliminary ruling raises the issue of how to determine whether an employee who is gainfully employed in two or more Member States can be deemed to perform a substantial part of his activities in the Member State of residence. The instruments at stake are Regulation (EC) No 883/2004 on the coordination of social security systems (the ‘Basic Regulation), and Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (the ‘Implementing Regulation’). The questions read:

What circumstances or types of circumstances are appropriate for assessing on the basis of Article 14(8) of the Implementing Regulation the question whether a person who normally pursues an activity as an employed person in two or more Member States pursues a substantial part of his activities in the State of residence in a case in which it is established that he performs activities there for 22 percent of his working time? Is it required in that respect that: (i) a circumstance be directly linked to the pursuit of activities, (ii) a circumstance contain an indication as to the place where the activities are performed, and (iii) quantitative conclusions can be drawn from the circumstance as to the weight that can be attributed to the activities that are performed in the State of residence as compared with the total of all the activities of the person concerned?

Must or can this assessment, in view of the answer to question 1, take into account: (i) the residence of the employee, (ii) the place of registration of the barge on which the employee performs his activities, (iii) the place of establishment of the owner and operator of the barge, (iv) the place where the vessel sailed during other periods in which the employee was not working on it and was not yet in the service of the employer, (v) the place of establishment of the employer, and (vi) the place where the employee boards and disembarks the vessel?

Over which period must it be assessed whether an employee pursues a substantial part of his activities in his State of residence?

Does the competent body of a Member State, in determining the legislation applicable, have discretion which the courts must in principle respect with regard to the concept of ‘substantial part of his activity’ in Article 13(1) of the Basic Regulation and, if so, how far does that discretion extend?

Finally, I would like to draw the reader’s attention to joint cases C-424/24, FIGC and CONI, and C-425/24, FIGC and CONI. Once more, the Court is asked about an issue touching upon the relationship between dispute resolution mechanisms in sport matters and ordinary jurisdiction, although this time the main proceedings do not concern sanctions imposed on athletes but on managers of a company carrying out a sporting activity, due to alleged misbehaviors in the exercise of business linked to said activity. In case C-425/24, the Tribunale Amministrativo Regionale per il Lazio (Italy) referred these questions to the Court of Justice:

Must EU law, and in particular Articles 6 and 19 TEU, in the light of Article 47 of the Charter of Fundamental Rights of the European Union and Article 6 of the ECHR, in relation to the principle of effective judicial protection, be interpreted as precluding:

– a national provision of a Member State, such as Article 2 of decreto-legge 220/2003 (Decree-Law No 220/2003), converted into legge 280/2003 (Law No 280/2003), as interpreted in Italian case-law, once the instances of national sports justice have been exhausted, from excluding recourse to judicial protection that confers a power on the national court (in this case, the administrative court) to annul disciplinary sanctions in sport and their future effects, and to suspend the effect of those sanctions as an interim measure, thereby limiting the national court to awarding equivalent compensatory protection, where it appears that the disciplinary power has been exercised unlawfully?

Must EU law, and in particular Articles 6 and 19 TEU, interpreted in the light of Articles 47, 48 and 49 of the Charter of Fundamental Rights of the European Union and Articles 6 and 7 of the ECHR, be interpreted, so as to ensure observance of the principles of the legality of criminal offences and penalties, of legal certainty and sufficient precision of offences, as well as of due process, as precluding:

– a national provision, such as Article 2 of Decree-Law No 220/2003, converted into Law No 280/2003 – as interpreted in Italian case-law – which, in accordance with the principle of autonomy of sports law as enshrined in national law and interpreted in Italian case-law, allows sports governing bodies to impose a disciplinary sanction on a sports manager prohibiting him or her from undertaking professional activities on the ground that he or she infringed a provision of the sporting federation’s rules (Article 4(1) of the Codice di Giustizia Sportiva FGCI (FGCI Sports Justice Code)), which establishes, by a general clause formulated in vague terms, that all members and managers are required to observe, in addition to the by-laws and other regulations of the federation, the principles of honesty, fairness and integrity?

Must EU law, and in particular Articles 45, 49, 56, 101 and 102 TFEU and Article 47 of the Charter of Fundamental Rights of the European Union, be interpreted as precluding:

– a national provision, such as Article 2 of Decree-Law No 220/2003, converted into Law No 280/2003, from allowing sports bodies to impose a disciplinary sanction on a manager of a sports club operating at international level which prohibits him or her from undertaking professional activities for 24 months at national and supranational level?

In C-425/24 the questions are basically the same. A common hearing for both cases will take place in Luxembourg on Thursday 17 September.

Following Brexit, the Brussels I bis Regulation ceased to apply in the UK. The regulation’s rules of jurisdiction in consumer and employment matters (Chapter II, Sections 4 and 5, Articles 17-23) were replaced by Sections 15A-15E of the Civil Jurisdiction and Judgments Act 1982.

The Explanatory Memorandum to the amendments to the 1982 Act introducing these provisions explains that their purpose was to ‘continue the particular protections offered to consumers and employees domiciled in the UK by the Brussels Ia Regulation’ (para 2.6) and that, since these protections ‘are not available in the common law and statutory provision of England and Wales and Northern Ireland, and only to a more limited extent in Scotland, apart from the Brussels regime, and so the Government has chosen to retain them’ (para 7.1).

The Brussels I bis protections, in a nutshell, consist of:

(1) limiting the number of jurisdictional bases on which the stronger party (supplier/seller/employer) can rely if it wants to sue the weaker party (consumer/employee) – the weaker party can usually only be sued in their domicile;

(2) enabling the weaker party to rely on multiple jurisdictional bases if they want to sue the stronger party, potentially opening multiple forums from which to choose when commencing proceedings;

(3) restraining party autonomy;

(4) finally, while Brussels I bis was in force in the UK, the doctrine of forum non conveniens did not apply.

Post-Brexit, several questions arise. Do Sections 15A-15E of the 1982 Act lay down all jurisdictional bases available in covered consumer and employment disputes, or is there any space left for the operation of traditional jurisdictional bases? Should the concepts used in the 1982 Act be interpreted in light of EU law or domestic law? Does forum non conveniens have any role to play?

Some of these questions were addressed by the Employment Appeal Tribunal (Auerbach J) on 12 June 2025 in Prähl v Lapinski [2025] EAT 77.

Facts

Mr Lapinski was formerly a member of a limited liability partnership. He commenced proceedings against the partnership and several individual defendants, as the employees or agents of the partnership, under the Equality Act 2010, alleging discrimination on the basis of a disability.

The parties agreed that the claim was of a nature that employment tribunals were empowered to consider under Sections 2 and 3 of the  Employment Tribunals Act 1996 (so-called ‘cause of action jurisdiction’). They further agreed that the claim fell within the territorial scope of the 2010 Act (so-called ‘territorial jurisdiction’).

However, some defendants were domiciled and present in Sweden. This raised the question of whether the tribunal had ‘international jurisdiction’ over those defendants. The defendants argued that the claimant ought to have obtained permission to serve them out of the jurisdiction (a traditional common law requirement for absent defendants) and that, in any event, the tribunal was forum non conveniens (a traditional common law power allowing English courts to refuse to exercise jurisdiction).

Judgment

The tribunal decided the case in favour of the claimant.

First, it held that, when Sections 15A-15E of the 1982 Act apply and point to the jurisdiction of an English tribunal, permission to serve out is not required ([68]).

Second, although the claimant did not have a contract of employment with the partnership in the sense of domestic English law, the tribunal held that this was an employment claim for the purposes of the 1982 Act. To reach this conclusion, the tribunal relied on the wide definition of ‘employee’, ‘employer’ and ‘matters relating to a contract of employment’ in the context of Brussels I bis ([70]-[74]).

Third, although the rule of jurisdiction over co-defendants in Article 8(1) of Brussels I bis is not specifically included in Sections 15A-15E of the 1982 Act, the tribunal held that the claimant should be able to rely on this jurisdictional basis, as his position could not be worse after Brexit, given the purpose of these provisions ([67], [76]-[79]).

Fourth, the tribunal held that, when Sections 15A-15E of the 1982 Act apply, forum non conveniens does not ([68]).

Comment

While the purpose of Sections 15A-15E of the 1982 Act is clear, it has not been implemented in the best possible way. Prähl v Lapinski reveals several shortcomings.

It is unclear whether Sections 15A-15E of the 1982 Act constitute a complete and self-contained ‘code’ of jurisdictional rules when a case falls within their scope. Under Brussels I bis, the weaker party is precluded from invoking domestic jurisdictional rules, even if they would be better-off under those rules. This principle applies equally to EU-domiciled (Case C‑462/06 Glaxosmithkline v Rouard EU:C:2008:299) and non-EU-domiciled defendants (Case C-604/20 ROI Land Investments Ltd v FD ECLI:EU:C:2022:807). With this in mind, the decision that, when Sections 15A-15E of the 1982 Act apply and point to the jurisdiction of an English tribunal, permission to serve out is not required is correct.

Similarly, the interpretation of Sections 15A-15E of the 1982 Act by with regard to concepts developed by the Court of Justice of the EU before Brexit is required by Section 15E(2). Therefore, the tribunal’s wide interpretation of the concepts of ‘employee’, ‘employer’ and ‘matters relating to a contract of employment’ is also correct.

However, the tribunal’s decisions regarding the availability of a rule of jurisdiction over co-defendants, despite Article 8(1) of Brussels I bis not being specifically included in Sections 15A-15E of the 1982 Act, and the unavailability of forum non conveniens are not beyond reproach.

It may be speculated that the reason why Article 8(1) of Brussels I bis is not specifically included in Sections 15A-15E of the 1982 Act is because its application in employment disputes within the EU is preserved by Article 20(1) of the regulation and not Article 21, which lists all other available jurisdictional bases when an employee sues the employer, while Section 15C(2), which sets out available jurisdictional bases when an employee sues the employer in the UK, only replicates the bases found in Article 21 of the regulation. Nevertheless, invoking a jurisdictional basis that is not included in the 1982 Act, requires more justification than merely noting its availability before Brexit and the reason behind the amendments to the 1982 Act. Ultimately, the tribunal’s decision on this point seems to be obiter, since the employee’s habitual place of work was in England, so there was arguably no need to rely on the rule of jurisdiction over co-defendants. This significantly weakens the persuasiveness of the tribunal’s decision on this point.

Finally, the tribunal failed to mention that the 1982 Act contains the following provision in Section 49 (‘Saving for powers to stay, sist, strike out or dismiss proceedings’):

Nothing in this Act shall prevent any court in the United Kingdom from staying, sisting, striking out or dismissing any proceedings before it, on the ground of forum non conveniens or otherwise, where to do so is not inconsistent with Hague Convention.

While the availability of forum non conveniens would undermine the purpose of Sections 15A-15E, the tribunal’s policy-based argument can hardly override what appears to be a clear statutory instruction in Section 49.

The author of this post is Federica Sartori, PhD student at the University of Pavia.

A pending case, Tatrauskė (C-789/23), offers the Court of Justice an opportunity to rule on the relationship between the EU citizens’ right to free movement and residence under Article 21 TFEU and national legislation on the registration of marriage property agreements.

The following remarks are based on the opinion given on the matter by AG Szpunar on 22 May 2025.

Background

An Italian-Lithuanian couple married in Italy and then moved to Lithuania, where the marriage was duly transcribed in the General Register Office. However, the chosen matrimonial property regime of separation of property was not recorded in Lithuania because the marriage certificate did not include the Lithuanian personal identification number of at least one of the spouses, as requirement under Lithuanian law for foreign marriage contracts pursuant to Article 68 of the Register Regulation. Consequently, the couple’s property regime in Lithuania would default to the statutory community of property.

On the recommendation of the Lithuanian authorities, the applicant therefore requested the  Italian authorities to supplement the marriage certificate by adding the missing data. The Italian authorities refused, stating that they could not certify the authenticity of an identification number assigned by foreign public authorities. This led to the preliminary reference to the Court of Justice.

It should be noted that this formality is no longer required as of 1 January 2023, pursuant to the reform introduced by decree No 1263 of 14 December 2022 . However, the application for registration was submitted before that date, and the applicant did not raise any objections on this point.

The requirement in question thus constitutes a restriction in the exercise of the rights under Article 21(1) TFEU, since the non-portability of the marriage property regime between Member States could directly affect personal decisions regarding where to live as a married couple.

Restriction on the Freedom of Movement and Residence

First of all, it is important to note that the Republic of Lithuania is not within the enhanced cooperation implemented by Regulation (EU) 2016/1103 in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes, which however does not regulate the registration of marriage contracts.

So in such a case the applicable law is the Lithuanian one, as this is the law of the (new) habitual residence of the couple, after their move to Lithuania (see art. 1.28 of Lietuvos Respublikos civilinis kodeksas, Lithuanian civil code). Nonetheless, Lithuanian law must be applied in compliance with EU law, including the provisions of Art. 21 TFEU.

This is a new issue, as the Court of Justice has so far only ruled on the registration of personal information such as name (see SaynWittgenstein; Runevič Vardyn and Wardyn; Bogendorff von Wolffersdorff; Freitag; cf. Tonolo), status (see Stolichna obshtina , rayon « Pancharevo »; cf. Di Napoli et al.) and gender identity (see Mirin).

According to the Advocate General, this existing case law cannot be transposed to the present case since civil status registers and marriage property regime registers serve different functions: the former ascertain the constituent elements of a person’s identity and private life (see SaynWittgenstein, paragraph 52), while the latter serve to make family assets enforceable against third parties.

Nonetheless, the difference in function does not preclude a possible restriction on the freedoms guaranteed by the Treaties. Therefore, the conditions necessary for the registration of the marriage contract in the appropriate register must also ensure compliance with Article 21 TFEU.

The Advocate General thus examines whether the Lithuanian requirement meets the criteria of serving an objective public-interest considerations (Coman and others, paragraph 41) and respecting the principle of proportionality to the objective legitimately pursued by national law, in the twofold components of appropriateness and necessity (see De Cuyper, paragraph 42; Tas-Hagen and Tas, paragraph 35). He concludes that Lithuanian law fails the necessity test and therefore imposes an unjustified restriction on the free movement of EU citizens.

Critical Remarks

The Advocate General’s conclusion is sound but prompts further reflections.

In general, the maintenance of public registers (including civil status registers and registers of marriage contracts) falls within the competence of the Member States. However, even in exercising this discretion, Member States must comply with and guarantee the exercise of the freedoms of movement and residence in another Member State pursuant to Art. 21 (1), TFEU (Mirin, paragraph 53; Coman and others, paragraph 37 et seq.; Bogendorff von Wolffersdorff, paragraph 32; Runevič-Vardyn and Wardyn, paragraph 63; SaynWittgenstein, paragraph 38; Grunkin and Paul, paragraph 16; Garcia Avello, paragraph 25).

National rules must not render the exercise of Article 21 TFEU rights impossible or excessively difficult (Mirin, paragraph 69; Freitag , paragraph 41), nor may they disadvantage their own nationals for exercising those rights (Direcţia for Evidenţa Personalized Yes Administrarea Bazelor de Date, paragraph 39 ff.; Freitag, paragraph 31 ff.; Kohll-Schlesser, paragraph 42; Thiele Meneses, paragraph 22).

It follows, therefore, that the previous case law can be transposed to the present case, albeit with the needed adaptations.

Indeed, in both contexts the legal reasoning is rooted in the concept of EU citizenship as a fundamental status(see Mirin, paragraph 51 ff.; Stolichna obshtina , rayon « Pancharevo », paragraph 41; Coman and others, paragraph 30; Ruiz Zambrano, paragraph 41; Bogendorff von Wolffersdorff, paragraph 29; Thiele Meneses, paragraph 18; Runevi č-Vardyn and Wardyn, paragraph 60; Grzelcyk, paragraph 31) from which derives, among others, the right to move and reside freely within the Union (Article 21 TFEU), subject to limitations in the Treaties.

Furthermore, both areas share the functionalization of the recognition of rights necessary for increasing the exercise of free movement and residence. Member States remain free to introduce or not the relevant institutions, such as same-sex marriage or the register of marriage contracts in their domestic systems.

However, a Member State’s refusal to recognise an entry in a civil status or marriage contracts register simply because the citizens exercised their right to free movement in another Member State of which they are also a national, constitutes an obstacle to the exercise of the rights under Article 21(1), TFEU (Mirin, paragraph 57) and may cause serious administrative, professional and private inconveniences (Runevič-Vardyn and Wardyn, paragraph 76; SaynWittgenstein, paragraph 67).

Generally, such a restriction can be justified only if it is based on objective public-interest considerations, regardless of nationality, and proportionate, i.e. appropriate and necessary to achieve a legitimate objective (Mirin, paragraph 59; Direcţia for Evidenţa Personalized Yes Administrarea Bazelor de Date, paragraph 50 ff.; Coman et al., paragraph 41; Kohll-Schlesser, paragraph 49; Bogendorff von Wolffersdorff, paragraphs 48, 72; Thiele Meneses, paragraph 29; Grunkin and Paul, paragraph 29).

In this case, no such objective public-interest can be identified, as suggested by the Advocate General, since requiring foreign authorities to provide the Lithuanian national identification number does not achieve the goal of ensuring the accuracy and legal certainty in public register. Foreign authorities cannot certify the correctness of a number that is not part of their legal system. On the other hand, it is unreasonable to prioritize a formal requirement (mentioning the personal identification number) over a substantive one (actually possessing it). Lithuania’s reform, which removed this requirement, confirms that the Lithuanian legislator has reconsidered the existence of a valid objective public-interest in the condition itself.

This reveals not only the absence of the necessity requirement, as the Advocate General noted, but also, contrary to their view, the absence of the appropriateness requirement. An impossible condition cannot logically be suitable or functional for any legitimate aim.

As a result, the Lithuanian legislation imposes a restriction on the exercise of EU citizens’ fundamental freedoms under Article 21 TFEU due to the absence of the required elements: objective public-interest, appropriateness and necessity.

Conclusions

The upcoming judgment of the Court of Justice, hopefully in line with the Advocate General’s opinion, will likely inaugurate a new line of case law in a still unexplored field. It could be developed in accordance with existing jurisprudence on names, status and gender identity, with necessary adaptations, and pave the way for greater harmonization of rules of the relevant legislation in this area within the European Union.

— The author discussed the subject matter of this post more fully in a post which appeared previously on the blog of SIDI, the Italian Society of International Law and EU Law.  

The author of this post is Pierfrancesco Rossi, tenured researcher of International Law at the University of Teramo.

On 5 June 2025, the Hague Court of Appeal declined to grant exequatur to a Ukrainian judgment holding Russian energy giant Gazprom jointly and severally liable for material damages incurred during Russia’s invasion of the country.

The Court relied on the 2019 Hague Judgments Convention, which was acceded to by the EU and ratified by Ukraine on 29 August 2022 (see Cuniberti in this blog) and entered into force for both parties, including all EU member States except Denmark, on 1 September 2023.

The ruling hinged on Article 2(5) Hague Convention, which leaves unaffected “privileges and immunities of States… in respect of themselves and of their property”. It held that, since Russia enjoyed immunity under international law for acts carried out in the exercise of sovereign authority, Dutch courts lacked jurisdiction to entertain exequatur proceedings.

Background

Syu Zhnyva, a Ukrainian agricultural company, operated grain silos in the Zaporizhzhia and Kherson regions. During Russia’s full-scale invasion and subsequent military occupation of those territories, the harvest stored in the silos was spoiled or looted – allegedly, by Russian troops. On 5 December 2022, Syu Zhnyva filed tort proceedings against the Russian Federation before the Commercial Court of Zaporizhzhia, seeking monetary compensation for the damages incurred. Russia failed to appear before the court.

Proceedings in Ukraine against Russia and Gazprom

On 2 February 2023, the Zaporizhzhia court upheld the plaintiff’s claims in full and awarded over 3.8 billion hryvnia in damages plus court expenses, amounting to approximately €85 million in total (the text of the judgment is here). While the court acknowledged that, in principle, foreign States enjoy immunity in claims relating to sovereign activities, it nevertheless held that a State forfeits immunity when it commits a war of aggression. This hardly came as a surprise. In fact, the court followed precedents set by the Supreme Court of Ukraine, which held that Russia’s immunity should be disregarded in individual claims relating to damages arising during the war (Third Civil Chamber, Judgment of 14 April 2022, on which see Badanova; see also Grand Chamber, Judgment of 12 May 2022, para. 49).

In a subsequent claim filed on 5 June 2024, Syu Zhnyva asked the same court to hold three companies of the Gazprom group jointly and severally liable with the Russian Federation for the payment of the damages. The plaintiff argued that Gazprom functioned as a mere alter ego of Russia, without alleging any direct involvement by Gazprom in the damage to its silos. In a judgment delivered on 27 August 2024 (the text is here), the court once again ruled fully in favor of the plaintiff and held Gazprom jointly and severally liable for the payment of the sums awarded by the 2 February 2023 judgment.

The Hague Court of Appeal Judgment

Syu Zhnyva asked the Hague Court of Appeal to recognize the judgment rendered against Gazprom. (No such request was made concerning the 2023 judgment against Russia: an important point to bear in mind). The application was based on Article 985 of the Dutch Code of Civil Procedure in conjunction with the 2019 Hague Judgments Convention.

The court first addressed the Convention’s applicability ratione temporis. Under Article 16, the Convention must be in force between the State of origin and the requested State “at the time the proceedings were instituted in the State of origin”. The court determined the operative date to be 5 June 2024, when proceedings against Gazprom were commenced, not 5 December 2022, when the plaintiff first sued Russia. This was a consequential finding: only the later date postdated the Convention’s entry into force for the EU and Ukraine. The court ruled that the close connection between the two judgments was immaterial, since each could in principle be recognized and enforced independently, and rejected Gazprom’s argument that the earlier date should be considered instead.

The Convention’s applicability ratione materiae, by contrast, was not definitively resolved. Gazprom invoked the Article 2(1)(n) carveout, whereby the Convention does not apply to “activities of armed forces…”. The court left the issue undecided, proceeding under the provisional assumption that the Ukrainian judgment did fall within the material scope of the Convention.

Finally, recalling that the Hague Convention does not affect State immunity (Article 2(5)), the court declined jurisdiction on the grounds that the proceedings concerned sovereign acts of a State (acta iure imperii). The immunity extended to Gazprom since it had been sued qua Russia’s alter ego. The court briefly considered whether immunity could be denied under the so-called “tort exception” enshrined in Article 12 of the 2004 UN Convention on State Immunity (UNCSI). The exception lifts immunity for “pecuniary compensation for death or injury to the person, or damage to or loss of tangible property… if the act or omission occurred in whole or in part in the territory of [the forum] State…”. The court doubted that Article 12 reflects customary international law (a key point, given that the UNCSI has not yet entered into force and its provisions are only relevant to the extent they codify custom). In any event, it held the tort exception inapplicable because it only applies before the courts of the State where the tort occurred.

Assessment

The Hague Court of Appeal was correct in denying exequatur, though not always for the most convincing reasons.

Applicability of the 2019 Hague Judgments Convention

For one thing, the applicability of the 2019 Hague Convention appears doubtful. The judgments against Russia and Gazprom were deemed to belong to different proceedings for the purposes of Article 16, even though they addressed the same subject matter, were issued by the same court and judge, and were docketed under the same case number (908/1100/22). One may wonder if a different conclusion would have been more appropriate. Admittedly, the Convention provides no guidance on how to determine the time of institution of proceedings, nor does it define the terms used in that provision (Brand, Coffee, Herrup, p. 178). Still, as this case shows, a downside of the court’s approach is that a post-judgment motion to extend liability to third parties could be used strategically to bring within the Convention’s temporal scope rulings that would otherwise fall outside. Permitting this tactic would disadvantage plaintiffs in jurisdictions where liability is extended through amendment of the original judgment or in the enforcement phase.

As to applicability ratione materiae, the case concerned activities of armed forces, which Article 2(1)(n) removes from the Convention’s scope. It is unclear why this point was left undecided. The court likely assumed that it was subsumed under the question of State immunity, which it addressed next, but in fact it was logically antecedent. Like any State organ, armed forces can act iure imperii or iure gestionis (see Lord Denning in I Congreso del Partido). State immunity applies only in the former case, while the Convention excludes both (Brand, Coffee, Herrup, p. 80).

State Immunity

Similarly, the outcome on State immunity was correct, but arguably not for the reasons given by the Court of Appeal. The court was right to recall that, in Jurisdictional Immunities, the ICJ held that exequatur proceedings involve the exercise of jurisdiction over foreign States and are therefore subject to State immunity. However, its finding that the tort exception could only potentially lift immunity before Ukrainian courts is at variance with Jurisdictional Immunities. There, the ICJ stated that “the Italian courts would have been obliged to grant immunity to Germany if they had been seised of the merits of a case identical to that which was the subject of the decisions of the Greek courts which it was sought to declare enforceable” (para. 131). Substituting the Netherlands, Russia and Ukraine into this reasoning, the court should have limited itself to verifying that State immunity had been respected in the State of origin.

The true reason why the tort exception did not apply is that, according to the ICJ (paras. 62-79), it does not cover armed activities (not everyone agrees, though: see Judge Gaja’s dissent). Also, the court did not engage with the Ukrainian courts’ argument that a State forfeits immunity when it commits serious breaches of international law. While this view directly contradicts Jurisdictional Immunities, Ukraine is not the first to deny immunity in the context of wartime reparations claims (in Italy, Constitutional Court Judgment No. 238/2014held Jurisdictional Immunities unconstitutional; and see similar outlier decisions in South Korea and Brazil). Whether this should be the case is a much debated issue in contemporary international law (see Franzina in this blog).

Piercing Gazprom’s Corporate Veil

Another interesting aspect of the judgment is its endorsement of piercing the corporate veil between Russia and Gazprom. The “alter ego” doctrine has frequently been invoked by Ukrainian parties in the hope of attaching the assets of Russian SOEs abroad (Alyoshin et al.).

In international law, the relationship between States and SOEs is most commonly examined in terms of attributing corporate acts to the State (see the ARSIWA) or determining whether corporate acts can attract State immunity (see Article 2(1)(b)(iii) UNCSI). SOE liability for wrongful state acts based solely on extensive control, without direct involvement in those acts, is less explored (Miles). While lifting the corporate veil in these circumstances is exceptional, it is not unheard of (see, in the US, Bancec and Crystallex). However, this issue has so far only arisen at the enforcement phase. This makes sense. State immunity from enforcement (which is distinct from immunity from adjudication: Jurisdictional Immunities, para. 113) turns on whether the property is in use for governmental purposes. Once an SOE is held liable for its State’s debts, its assets are typically fair game.

But, as this case shows, this strategy has inherent limitations at the adjudication stage, including in exequatur proceedings. Here the “alter ego” corporation will benefit from Russia’s immunity for acta iure imperii, plain and simple, no matter how commercial its activities or assets might seem. Invoking this doctrine in the context of enforcement proceedings against Russia is not likely to change the outcome. As the ICJ made clear in Jurisdictional Immunities (para. 124), enforcing a judgment issued in breach of State immunity from adjudication is a wrongful act in itself, even where the attached assets are earmarked for private purposes.

The only avenue that plaintiffs might reasonably explore leads to Italy. Following the controversial Judgment No. 238/2014, Italian courts have granted exequatur to foreign judgments that, in apparent violation of State immunity, held states liable for grave breaches of fundamental human rights (Stergiopoulos v. Iran; see Pavoni and Amoroso). Whether this route should remain available is, of course, a different matter (for further discussion, see here).

In a judgment of 28 January 2025, the Court of Appeal of Grenoble (France) ruled that a Luxembourg judgement could not be enforced in France in the absence of service of an Article 53 Brussels I bis certificate on the debtor, as it was not satisfied that the foreign judgment was enforceable.

Background

A Luxembourg bank had successfully sued in a Luxembourg court a borrower who would not reimburse a loan of 2.7 million Euros. The reimbursement of the loan was guaranteed by a mortgage over a property situated in the French Alps, where the borrower was likely a resident.

In 2018, the Luxembourg district court issued a judgment ordering the borrower to pay 1.8 million plus interest.

In 2023, the bank sought to enforce the judgment by attaching a French bank account of the borrower for an amount 2.6 million Euros. The borrower challenged the validity of the attachment in a French court.

First Instance Jugdment

Before the French first instance enforcement court (Juge de l’exécution du Tribunal judiciaire de Vienne), the lawyers of the borrower made a number of arguments, including that certain clauses of the contract were unfair and that the borrower being a customer, the jurisdiction clause in the contract was invalid and the foreign court lacked jurisdiction. These arguments were dismissed.

More interestingly, the lawyers insisted that no Article 53 Brussels I bis Certificate was produced, and even less served on the defendant.

The court also dismissed the argument by ruling that

1. the borrower knew of the judgment, since the bank had carried another enforcement measure over its property two years earlier, and
2. Article 53 does not expressly provide for an obligation to serve the certificate.

Clearly, the court did not master the details of the Brussels I bis Regulation (including, in particular, the existence of Article 43, which mandates the service of the certificate), that it probably rarely applies.

From a policy perspective, however, the intuition of the court was that, at this stage, service of the certificate (and indeed its existence) was a purely formal requirement which served no purpose. There was no need to inform the debtor of the fact that the creditor sought to enforce its judgment in France: it has already done so two years before. And a French enforcement officer did not really need any of the information contained in the certificate to enforce a Luxembourg judgment, which is identical to a French judgment.

The debtor appealed to the Court of Appeal of Grenoble.

Court of Appeal Judgment

The Court of Appeal allowed the appeal on the ground that the Article 53 certificate had not been served on the defendant.

The Court found that an Article 53 certificate had been issued by a Luxembourg court in 2018, but that the said certificated had never been served on the defendant.

The Court noted that Article 43 of the Brussels I bis Regulation does not indicate what the consequence of lack of service of the certificate is, but ruled that the sanction of lack of service could be deduced from the obligation of the creditor to show that the foreign judgment was enforceable in the country of origin, and that this obligation could not satisfied in the absence of service.

As a result, the Court concluded, the creditor was unable to demonstrate that the Luxembourg judgment was enforceable in Luxembourg, and thus that it was enforceable in France.

Interestingly enough, the Court introduced the following distinction:

• Late service of the Article 53 certificate cannot possibly impact the validity of enforcement measures carried out in the requested State, because the Brussels I bis Regulation does not govern enforcement per se.
• Lack of service of the Article 53 certificate is different, however, because, the Court ruled, it amounts to a lack of existence of said certificate. In the absence of a certificate, the creditor cannot show that the foreign judgment was enforceable in the Member State of origin. As enforceability of the foreign judgment is a requirement for its enforcement under the Brussels I bis Regulation, any enforcement measure carried out on the basis of this judgment should be invalidated.

The Court ultimately lifted the attachment carried out by the creditor over the bank account.

Assessment

Poor reasons

There are a number of logical flaws in the reasoning of the court.

The first is that the Court recognises that the Brussels I bis Regulation does not govern enforcement per se, as repeatedly held by the CJEU, but eventually rules that lack of service in violation of Article 43 can result in the invalidation of an enforcement measure.

The second is the proposition that lack of service of the certificate amounts to the inexistence of the certificate. Even from a French domestic procedural perspective, it is hard to find any basis for such a intellectual shortcut.

The third is that late service should be treated differently than lack of service. Again, the origin of this distinction is unclear.

Interesting questions

The case, however, raises two interesting questions.

The first is whether the existence of the certificate is a requirement for its enforcement in other Member States.

Article 42(1) provides that

For the purposes of enforcement in a Member State of a judgment given in another Member State, the applicant shall provide the competent enforcement authority with (…) b) the certificate issued pursuant to Article 53 …

Does this rule establish a requirement for enforcement, or is it merely a rule aimed at facilitating the intervention of enforcement authorities? There are not many differences between a French and a Luxembourg judgment, and one could understand that a French huissier (recently renamed commissaire de justice) could directly enforce a Luxembourg judgment without any of the information provided in the certificate. If the huissier enforces the judgment without a certificate, is this a ground for applying for a refusal of enforcement? Certainly, it does not appear in the list of Article 45.

The second interesting question is whether lack of service of the certificate should have any consequence. It could have been provided to the enforcement authority only, and thus satisfy Article 42(1). Again, it is hard to see how this violation of Article 43 could be sanctioned. Clearly, contrary to what the Court of Appeal of Grenoble rules, lack of service of the certificate has no impact on its enforceability in the country of origin, which is all what Article 39 requires for being enforceable in other Member States. And lack of service of the certificate is not a ground for applying for refusal of enforcement under Article 45.

On 3 July 2025, Advocate General Norkus will deliver his opinion on case C-485/24, Locatrans. The request for a preliminary ruling, from the Cour de Cassation, Chambre sociale (Court of Cassation, Social Chamber, France), concerns the interpretation of the Rome Convention of 19 June 1980 on the law applicable to contractual obligations.

ES, the defendant in the main proceedings, worked as a driver for the Luxembourg transport company Locatrans from October 2002 to July 2014. According to the employment contract the transport would be carried out in several European countries; Luxembourg law was designated as the applicable law.

For the last eighteen months of the employment relationship, ES usually performed his work in France.

After Locatrans put an end to the employment relationship ES brought proceedings before the Conseil de Prud’hommes de Dijon (Labour Tribunal, Dijon) involving several claims for compensation. The Labour Tribunal considered that Luxembourg law was applicable to the performance and termination of the employee’s employment contract, and ruled against the plaintiff. On the appeal lodged by the latter, the cour d’appel de Dijon (Court of Appeal, Dijon) set aside the judgment. It held that, pursuant to Article 6 of the Rome Convention, the choice of Luxembourg law made by the parties could not have the result of depriving the employee of the protection afforded to him by the mandatory rules of French law, which would apply on the basis of the place where the employee habitually carried out his work.

Locatrans appealed on a point of law. The Cour de Cassation has referred the following question to the Court of Justice:

Are Articles 3 and 6 of the Convention on the law applicable to contractual obligations, opened for signature in Rome on 19 June 1980, to be interpreted as meaning that, in the case where the employee carries out the same activities for his employer in more than one Contracting State, the full duration of the employment relationship should, in order to determine the law which would be applicable in the absence of a choice made by the parties, be taken into account in order to determine the place where the person concerned habitually carried out his work or should the most recent period of work be taken into account where the employee, having worked for a certain time in one place, then carries out his activities in a lasting manner in a different place which is clearly intended by the parties to become a new habitual place of work?

In light of the the reasons stated in the request, the Court of Justice is asked to interpret the concept of ‘the country in which the employee habitually carries out his work in performance of the contract’ for the purposes of Article 6 of the Rome Convention. To do so, it will need to decide on the weight to be given to its own case law relating to Article 5 of the Brussels Convention 1968 as amended in so far as it contains a similar notion (see current Article 21 of the Brussels I bis Regulation).

The case has been assigned to a Chamber composed of five judges, with M. Kumin reporting.

A week later, on 10 July, the decision in C-99/24, Chmieka will be made public.  At stake are the scope of application ratione temporis of the Brussels I bis Regulation, the characterisation of a claim as pertaining to those under exclusive jurisdiction in matters of real estate rights and leases of buildings, and the conditions to sue multiple defendants in the courts for the place where one of them has his domicile. The referring court – Sąd Rejonowy w Koszalinie (First Civil Division of the District Court, Koszalin, Poland)-, asks:

(1) Must Article 66 of [the Brussels I bis Regulation] be interpreted as meaning that the ‘institution of legal proceedings’ means the lodging of an application by an applicant in a procedural matter or the lodging, by the defendant, of a request for review of the case after the definitive conclusion thereof,

and, depending on the answer to the above question:

(2) Must the provisions of Chapter II of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters

or the provisions of Chapter II of [Regulation No 1215/2012]

be interpreted as meaning that a person domiciled in one Member State may be sued in the courts of another Member State for payment of remuneration for the non-contractual use of immovable property situated in that other Member State?

In the main proceedings G.M.K. brought an action before the Sąd Rejonowy w Koszalinie [(‘the Sąd Rejonowy’)] on 15 March 2013 against T., S., M. and S.O. concerning the payment of remuneration for the non-contractual use of the municipality’s property situated in Koszalin (Republic of Poland) following the termination of a tenancy agreement. The applicant stated the residential address of all defendants in Poland. An order for payment was issued in the case, which was received at the address in Poland by one of the defendants on behalf of all the others. The order for payment was not challenged. It was found to be valid and enforceable.

By a letter addressed to the Sąd Rejonowy on 7 July 2023, S.O. successfully lodged a statement of opposition to the order for payment, requesting that the case be reviewed and the action of 15 March 2013 against her be dismissed. She contended that the Polish court lacked jurisdiction, as since 2007 she has been domiciled solely in the Kingdom of the Netherlands and has never concluded a tenancy agreement for the property in question with the municipality.

The applicant (G.M.K.) argues that there is such a strong legal link between the defendants that it is expedient to determine the case for payment together. They are all related and lived together in the applicant’s property. The tenancy agreement for that property was concluded solely by T.O. (the mother of the other defendants) in 1994. Termination of the tenancy agreement was notified to T.O. and an order was issued for the eviction of all the defendants from the property in question in 2007.

For this case the Court sits in a Chamber of three judges, with M. Jääskinen reporting.

In 2024 the French Cour de cassation submitted a request for a preliminary ruling to the Court of Justice on a subject with ties to private international law, although none of the questions raised focuses formally on a private international law instrument.

The case (C-350/24) is still ongoing. The request explaining the circumstances and legal background of the request can be found here.

The facts go back to 2007, when HJ and Crédit Agricole Corporate & Investment Bank concluded an employment contract governed by UK law. HJ worked for the Bank for a bit more than six years before being placed on sick leave.

In 2013, considering she had suffered discrimination on grounds of her sex and psychological harassment, she brought proceedings before the Conseil de prud’hommes (the French Labour Tribunal) seeking payment of various sums in respect of performance of the employment contract and by way of compensation.

The claims were dismissed by a judgment of 26 June 2019. HJ appealed. By a judgment of 27 May 2021, the Court of Appeal of Versailles held that HJ had failed to prove any relevant circumstances from which it would be appropriate to infer discrimination for the purposes of the applicable law. It also ruled that neither the existence of discriminatory harassment nor victimisation within the meaning of that law had been demonstrated.

HJ appealed to the Cour de Cassation, which, in turn, has sent three questions to the Court of Justice.

It should be noted that the applicability of the relevant UK legislation, i.e., the Equality Act 2010, is not disputed. It is also not contested that the said Act transposed correctly Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.

Rather, the debate has been prompted by the interpretation given by the French courts to specific sections of the Equality Act 2010. It originates in the fact that, while at the time of the alleged discrimination Article 19 of the Directive was applicable to the proceedings, by the time the Versailles Court of Appeal ruled on the matter the UK had left the European Union.

According to the Cour de Cassation, this raises doubts, in the first place, as to whether the Withdrawal Agreement can have the effect of calling into question retroactively the application of EU law.

By its second question, the Cour de Cassation seeks to determine whether the obligation of a court of a Member State to interpret its own national law in conformity with EU law also applies where that court is required to apply the law of another Member State. A similar question has actually already been put to the Court of Justice, which did not reply on account of the specificities of the case (see C-577/21, HUK-COBURG). The Cour de Cassation considers nontheless that a positive answer is inferrable from two other cases, namely C-519/19, Ryanair, paragraph 51, and C-247/21, Luxury Trust Automobil, paragraph 67. As a counterargument, the Cour points to the potential mutual trust problems that would arise if a national court could cast doubts on any law of another Member State.

Finally, by its third question the Cour de Cassation is asking whether, in case a national court applying the law of another Member State finds it impossible to give an interpretation in conformity with EU law, said court has the same obligations and powers it has when it applies its own national law.

The decision to ask for a preliminary ruling was adopted by the Cour de Cassation sitting as a full court. This is probably a sign of a high degree of disagreement within the Cour, likely to exist as well among French scholars. However, differently from courts of other Member States, the Cour de Cassation is succinct in its explanations, and does not include any reference to literature.

A case to be followed.

A significant decision for the current climate change debate was delivered on 28 May 2025, by the Higher Regional Court (OLG) of Hamm. The OLG in Hamm has dismissed the climate lawsuit brought by Peruvian farmer Saúl Luciano Lliuya against the energy company RWE. The court ruled that an appeal of this decision is not possible. However, the judgement is not necessarily a defeat for environmental defenders.

Lliuya is the owner of a house located below a glacial lake in the city of Huaraz at the foot of the Andes. He argued that CO2 emissions from RWE power plants had contributed to the glacial melt and thus increased the risk of flooding for his house. He filed his lawsuit against RWE in 2015 and lost his case in 2016 before the Regional Court at the company’s headquarters in Essen. The lawsuit then went to the next instance.

After an intensive hearing of evidence, which included a site visit in Peru in May 2022 and a two-day expert hearing in Hamm in March 2025, the OLG has now dismissed the plaintiff’s appeal.

I partially reproduce the press release available (in German) at the website of the OLG Hamm:

In the oral grounds for the judgment, Presiding Judge Dr. Rolf Meyer stated that the plaintiff may have a claim against the defendant under Section 1004 of the German Civil Code (BGB). If there is a threat of adverse effects, the polluter of CO₂ emissions may be obliged to take preventive measures. If the polluter definitively refuses to do so, it could be determined, even before actual costs are incurred, that the polluter must bear these costs in proportion to their share of the emissions.

The great distance between the defendant’s power plants and the plaintiff’s place of residence in Peru alone was not sufficient grounds to classify the lawsuit as unfounded. The presiding judge particularly emphasized the inaccuracy of one of the defendant’s arguments: The court’s legal opinion does not mean that every individual citizen can be sued in the future. This is contradicted by the fact that the causal contributions of a single person are so small that they cannot give rise to liability. Likewise, the defendant could not invoke its existing duty to provide water under German law to justify interference with the property of the plaintiff, who lives in Peru.

Nevertheless, the plaintiff’s appeal was dismissed because the evidence revealed that there is no concrete danger to his property. The probability that any water from the glacial lake would reach the plaintiff’s house within the next 30 years is only about one percent – ​​a figure that was considered too low. In addition, should this happen, the consequences for the plaintiff’s house would be negligible, as only a tidal wave would reach the house at a height of a few centimeters, and at a flow velocity that would not be able to endanger the structure of the house.

The court rejected the plaintiff’s objections to the expert’s method of this risk assessment. The court followed the expert’s assessment, which considered a specific risk analysis based on local conditions to be appropriate. The general statistical assessment preferred by the plaintiff, in particular the inclusion of a “climate factor” to increase the probability of occurrence, was rejected.

(Note: Under paragraph 1 of Section 1004 BGB, ‘Claims for removal and for injunction’, If the ownership is interfered with otherwise than by dispossession or withholding of possession, the owner may demand from the disturber the removal of the interference in question. If further interference with ownership is to be apprehended, the owner may seek an injunction.)

The environmental organization Germanwatch, which is supporting the Peruvian in the current appeal proceedings, considered the admission of evidence by the Higher Regional Court in Hamm a success. So far, this is the only lawsuit worldwide concerning corporate liability for climate risks that has made it to the evidentiary hearing. The environmental organization stated that the case had a signaling effect like no other climate lawsuit, and has already made legal history.

The decision, with file numner 5 U 15/17 OLG Hamm, will be published in www.nrwe.de.

Update: an analysis by Geert van Calster of the private international law aspects, also linking to the Germand and English versions of the document, and additional review of the judgment as a whole, can be found at https://lnkd.in/ejZNiKMM.

The author of this post is Antonio Leandro, Professor of Public and Private International Law at the University of Bari (Italy).

On 23 January 2025, the German Federal Court of Justice (Bundesgerichtshof) submitted a request for a preliminary ruling to the Court of Justice of the European Union concerning Article 6(1) of Regulation (EU) 2015/848 on insolvency proceedings (‘EIR’). The request has resulted in Case C-41/25, Orsay. The proceedings before the Court of Justice are currently pending.

Article 6(1) states that the

courts of the Member State within the territory of which insolvency proceedings have been opened in accordance with Article 3 shall have jurisdiction for any action which derives directly from the insolvency proceedings and is closely linked with them, such as avoidance actions.

The provision encapsulates the so-called vis attractive concursus of the courts that open and supervise the insolvency proceedings.

The Bundesgerichtshof asked whether the Article 6(1) of the EIR should be interpreted as meaning that

in view of the recognition of foreign insolvency proceedings, it contains an implied waiver by the Member States of the European Union of the principle of State immunity for actions in which the insolvency administrator, in accordance with the applicable insolvency law, claims that legal acts in relation to a Member State are voidable because they are to the detriment of the general body of creditors.

The Facts

The case revolves around avoidance proceedings brought in Germany by a German insolvency practitioner against the Treasury of the Republic of Poland in relation to VAT payments made by a debtor subject to insolvency proceedings in Germany (ECLI:DE:BGH:2025:160125BIXZR60.24.0).

The payments were made shortly after the request to open the German proceedings, but before the opening. Aware of the proceedings at the time of payment receipt, the Polish Treasury invoked its immunity from German jurisdiction. The lower courts sustained this defence and declined their jurisdiction. The case was then deferred to the Bundesgerichtshof.

While not disputing that tax impositions amount to acta iure imperii, the German Court argues that Member States might have impliedly waived their immunity within the EIR’s framework; otherwise, the effectiveness of the jurisdiction under Articles 3 and 6, the equal footing on which individuals and public authorities are put as ‘foreign creditors’ under Article 2(12), the efficiency of the proceedings within the EU judicial space made sure, among others, by the power to set aside and recover payments under avoidance rules of the lex concursus, would be seriously harmed.

State Immunity from Jurisdiction or …

The task for the CJEU is not easy, but not overly burdensome. It seems that the well-consolidated case law according to which the EU regime of jurisdiction applies to acts falling outside state sovereignty (acta iure gestionis) is not helpful. Neither may help the opposite principle crossing over public international law, EU law and domestic laws, according to which if the claim derives from acta iure imperii, and the dispute requires inquiring into State acts, immunity applies to bar jurisdiction, including that based on vis attractiva concursus.

The above is of little help because the action aims to recover payments and restore the pari passu relationship between other creditors and the foreign State receiving the tax payment. Undoubtedly, the debtor made such payments as required under its duty as a taxpayer, which abstractly rests on the subjection that taxpayers generally have vis-à-vis public powers. As a result, complaints about the effectiveness of tax payments, even for insolvency-law-based avoidance purposes, seem to require an assessment of the sovereign power to receive the payment.

Still, avoidance actions generally aim at challenging the act’s effectiveness without reviewing its validity. That is, the very actus iure imperii consisting in the power to levy taxes and collect revenues for governmental purposes, as well as the relationships between the State and the taxpayer, would not be evaluated.

Moreover, suppose the foreign State does not receive the tax payment. It would join the insolvency proceedings to get satisfaction, irrespective of its claim’s ranking. The EIR does not provide uniform privileged positions to public creditors lodging or otherwise being interested in foreign insolvency proceedings. Neither does it carve out the case of tax claims. On the contrary, as the Bundesgerichtshof rightly highlights, the EIR puts individuals and tax authorities on equal footing when defining ‘foreign creditors’ in Article 2(12) as owners of rights and interests that the EIR caters for through uniform rules or domestic laws (starting with the lex concursus).

One may argue that, if the State enforces such rights and interests, it would act as it does when ‘waiving’ immunity by bringing actions or counterclaims against private counterparts in adversarial proceedings. Put differently, immunity would only arise if the foreign State were the respondent in insolvency-related proceedings.

However, such comparisons make no sense, especially in relation to avoidance actions, and would result in a discrimination between public and private creditors that is inconsistent with the EIR’s regime. In fact, unlike private creditors or public bodies acting iure gestionis, tax authorities would be differently treated depending on whether they receive the payment before the opening of the insolvency proceedings in situations falling under avoidance rules of the lex concursus – by claiming immunity against the related avoidance action – or they lodge the outstanding payment in the proceedings – by seeking satisfaction as any other lodged creditors in compliance with the ranking set by the lex concursus.

… Immunity of Detrimental Acts from the lex concursus?

At closer inspection, the issue is not whether foreign States enjoy immunity from the jurisdiction under vis attractiva, but rather whether the States may claim that the payment received enjoys immunity from avoidance rules, notwithstanding that it is detrimental to the general body of creditors under the lex concursus.

Put differently, the issue boils down to determining under which law the ‘immunity’ of tax payments may be affirmed or negated. The answer flows from Article 16 of the EIR, as the Bundesgerichtshof seems to suggest in the final phrase of its decision. The provision preserves the legitimate expectations of those who had dealings with the debtor in Member States (and under laws) other than those in which the proceedings have subsequently been opened, to rely on the validity and effectiveness of the act according to its applicable law. In this case, the act at issue was a tax payment made under a foreign tax law with the foreign State as the receiver.

Consequently, if the foreign State demonstrates that the tax payment was and still is effective according to its applicable law, notwithstanding the subsequent opening of the insolvency proceedings against the taxpayer in another Member State, the payment will be immune from the avoidance action brought by the insolvency practitioner, without the need to indirectly achieve the same outcome by resorting to the doctrine of State immunity from the jurisdiction of insolvency courts.

Needless to say, the validity of this reasoning assumes that the ‘person’ whom Article 16 refers to also includes foreign States acting for sovereign purposes and that the ‘act’ detrimental to the general body of creditors also includes payments made under a foreign tax law. The ball now moves over to the Court of Justice.

In a judgment of 12 March 2025, the French supreme court for civil and criminal matters (Cour de cassation) decided that it would not align characterisation for the purpose of its national rules of international jurisdictional with the EU characterisation adopted in Granarolo.

As already reported on this blog, a few weeks later, the Court also asked the CJEU to reconsider Granarolo in the light of Wikingerhof.

Background

The case was concerned with a contract whereby a US company imported French beverages in the US. The US company had bought thousands of liqueurs each year from the French company between 2011 and 2015. In 2015, the US company informed the French company that it would not continue to import the products. A first dispute arose, which eventually lead to a New York court ruling that the American party owed nothing to the French party. The parties then continued to do business together for another few years, negotiating in parallel a distribution agreement. In 2019, the French company eventually sued in a French commercial court for brutal termination of the commercial relationship.

The French commercial court ruled that the action was delictual and retained jurisdiction on the ground that the damage (ie the termination) had occurred in France, but then dismissed the action on the merits. The Court of Appeal ruled that the action was contractual and declined jurisdiction on the ground that the place of performance of the import and distribution of the products was not in France.

The French Tort

Article L. 442-1, II of the French Commercial Code (renumbered in 2019) provides that one is liable for ‘terminating brutally’ an ‘established commercial relationship’. This provision is widely used in France for seeking damages where a commercial partner terminates a relationship without giving proper notice.

The Cour de cassation had charaterised this provision as tortious in nature for decades. In the context of private international law, this had led the Court to rule in 2014 that the applicable law to an action based on this tort was not to be determined pursuant to the 1980 Rome Convention, but rather by the lex loci delicti.

The characterisation was also relevant for the determination of the applicable jurisdictional rule. In the early 2000s, the Cour de cassation ruled several times that the action was delictual for jurisdictional purposes. As the reporting judge has recognised in this case, this issue was not merely technical, as the applicable rule allowed French courts to often retain jurisdiction in such cases.

EU Characterisation

As most readers will know, the issue of the characterisation of the French rule was referred to the CJEU, which ruled in Granarolo (Case C‑196/15) that, for the purpose of Article 5 of the Brussels I Regulation, the action is to be characterised as contractual ‘if a tacit contractual relationship existed between the parties’.

Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that an action for damages founded on an abrupt termination of a long-standing business relationship, such as the termination at issue in the main proceedings, is not a matter relating to tort, delict or quasi-delict within the meaning of that regulation if a tacit contractual relationship existed between the parties, a matter which is for the referring court to ascertain. Demonstration of the existence of a tacit contractual relationship of that kind must be based on a body of consistent evidence, which may include in particular the existence of a long-standing business relationship, the good faith between the parties, the regularity of the transactions and their development over time expressed in terms of quantity and value, any agreements as to prices charged and/or discounts granted, and the correspondence exchanged.

Aligning French PIL with EU PIL?

The detailed preliminary report of Justice Ancel and the conclusions of Advocate General Mallet-Bricout show that the members of the court debated the desirability of aligning the solutions of French law with EU PIL.

The first proposal put to the court was to align French PIL with EU PIL and to characterise the French rule, for PIL purposes, as contractual in nature “if a tacit contractual relationship existed between the parties”. AG Mallet Bricout argued, however, that this would amount to “a politically marked renunciation to the autonomy of national PIL”. She also argued that it would oblige the French supreme court to adopt a nuanced position, and distinguish on the basis of the existence of a tacit contractual which, she further argued, would introduce legal uncertainty compared with the French clear characterisation.

The second proposal put to the court was to partly align French PIL with EU PIL, only for jurisdictional purposes, but not for choice of law purposes. The AG recognised, however, that the benefits of this solution would be unclear, as the characterisation would continue to differ for choice of law.

The third proposal was not to align French PIL, and thus to keep a coherent characterisation between French PIL and French substantive law. The AG gave three main reasons in support of this solution. The first was that she was more convinced by and preferred the tortious characterisation over a contractual one. The second was that a delictual characterisation would grant more often jurisdiction to French courts. The third was that, she argued, the law governing a French action based on the relevant provision should be considered to fall within the scope of Article 6(3) of the Rome II Regulation. She remained silent, however, on whether having different solutions for EU and French PIL raised any problem of legal certainty and created unnecessary complexity.

The Judgment

The Court eventually ruled that, under French substantive law, the French rule was delictual in nature, and that, as a consequence, outside of the scope of EU law, an action based on the French tort should also be characterised as delictual in nature.

The French supreme court thus allows the appeal against the judgment of the Court of appeal, and refers the case to another court of appeal.

Diplomatic agents, consular officers and other persons serving as staff members at a State’s representation abroad mostly move from one State to another throughout their career, sometimes spending no more than a few years, if not months, before they are assigned to a new post at a different location. Their situation illustrates well what the life of a ‘highly mobile’ person may look like.

As with anybody else, the need may arise to determine the habitual residence of such persons. This occurs, inter alia, in connection with divorce proceedings, whenever the habitual residence of one or both spouses serves as a connecting factor under the applicable rules of private international law, as it is the case with the Brussels II ter Regulation, regarding jurisdiction, and the Rome III Regulation as concerns applicable law.

By a ruling given on 20 March 2025 in case C-61/24 (fictitiously renamed Lindenbaumer for ease of reference), the Court of Justice provided clarification as to how Member States’ courts are supposed to deal with the difficulties that can arise in these instances.

The Facts

DL and PQ, both German nationals, lived together in a rented accommodation in Berlin for more than ten years after their marriage. They then moved to Sweden, where they stayed for a couple of years, before moving to Moscow, in 2019, in an accommodation located in the compound of the German Embassy, where PQ worked as an Embassy Counsellor.

With a view to returning to Germany, the spouses kept, however, their accommodation in Berlin. One of their adult children resided there, although some parts of that accommodation were sublet until June 2020.

In January 2020, DL returned to Berlin to undergo surgery and remained there until February 2021. She then returned to Moscow, but finally left Russia in May 2021 and returned to Berlin, whereas PQ continued to live in Moscow.

In July 2021, PQ filed a divorce petition in Germany.

The jurisdiction of German courts was not at issue, as Article 3(b) of the Brussels II bis Regulation (as applicable then) confers jurisdiction over matrimonial proceedings, inter alia, on the courts of the Member State of the common nationality of the spouses.

Rather, the question arose of the applicable law. According to Article 8 of the Rome III Regulation, the law applicable to divorce, absent a choice by the parties, is the law of the State: (a) where the spouses are habitually resident at the time the court is seised; or, failing that (b) where the spouses were last habitually resident, provided that the period of residence did not end more than one year before the court was seised, in so far as one of the spouses still resides in that State at the time the court is seised; or, failing that (c) of which both spouses are nationals at the time the court is seised; or, failing that (d) where the court is seised.

On appeal, the divorce was deemed to be governed by Russian law, on the ground that the spouses did not have their habitual residence in one and the same State at the time of the petition, and that their last habitual residence was in Russia for the purposes of Article 8(b) of the Rome III Regulation.

The case reached the German Federal Supreme Court. The latter expressed doubts as to whether the interpretation of the concept of ‘habitual residence’ for the purposes of the Rome III Regulation should correspond to that of the same concept in the Brussels II bis Regulation, and wondered whether the posting in a State of one of the spouses as a diplomatic agent, the duration of the spouses’ physical presence in that State and the degree of social and family integration in that State constitute relevant, or even decisive, factors for establishing the spouses’ habitual residence under Article 8(a) and (b) of the Rome III Regulation.

The Court’s Ruling

In its ruling, the Court of Justice began by reiterating that the notion of habitual residence, as used in EU legislation, should not be construed as implying a reference to domestic law, and should rather be interpreted autonomously, taking into account the wording of the provisions that use it, their context and the objectives pursued.

Referring to the concept of habitual residence within the meaning of Article 3(a) of the Brussels II bis Regulation, the Court noted that the notion is characterised, in principle, by two factors: first, the intention of the person concerned to establish the habitual centre of his or her interests in a particular place; second, a presence in the Member State concerned that is sufficiently stable.

The same factors, the Court explained, are relevant to determine the habitual residence of the spouses for the purposes of the Rome III Regulation, given the close relationship between the two instruments. Reliance on the above factors ensures in fact the objective of legal certainty and predictability and the necessary flexibility in matrimonial proceedings, while preventing any abuse as regards the choice of the applicable law.

Against this background, the Court’s analysis revolved around three main points.

The Particular Nature of the Activity of Diplomatic Agents

The Court looked, first, at the relevance of the particular status of a diplomatic agent to the determination of the habitual residence of the agent themselves and his or her spouse.

The nature of the activity of a diplomatic agent posted in a foreign State, the Court said, militate, in principle, in favour of the absence of habitual residence of that agent and his or her spouse in that State.

However, although the status of diplomatic agent of one of the spouses is a relevant factor in the examination of the habitual nature of the spouses’ residence in the territory of the receiving State, as regards the assessment of the reasons for their presence in that State and the conditions of their stay, that factor is not in itself decisive for the purpose of precluding recognition of the habitual residence of the person concerned and of the members of his or her family in that State. The determination of the spouses’ habitual residence must in any case be made on the basis of all the factual circumstances specific to the case.

The Duration of the Presence of the Agent and his or her Spouse in the Receiving State

The Court explained that, as regards the criterion of the duration of the physical presence of the spouses in a State, the particular situation of diplomatic agents, by reason of the nature of their duties, and of their family members must be taken into account.

Those persons often retain a close relationship with the sending State to which they regularly travel. Moreover, since diplomatic agents are generally subject to a principle of rotation, the duration of their stay in the receiving State may be perceived as prima facie temporary, even though it may sometimes be of a significant length in practice. In those circumstances, the duration of the spouses’ physical presence in the territory of the receiving State does not, in itself, constitute a decisive factor as to the habitual nature of their residence in that State. It cannot be ruled out, in that regard, that the spouses may be present in that territory for a significant period of time while retaining the centre of their interests in the sending State, to which they regularly travel.

Social integration

The Court stressed that social integration in either the receiving or the sending State is a relevant factor for the purposes of determining the habitual residence of the spouses. That integration is such as to give concrete expression to the subjective element relating to the intention of the parties concerned to establish the habitual centre of their interests in a particular place. Family ties maintained in the sending State or, on the contrary, those created in the receiving State may also be relevant in the context of the analysis of all the factual circumstances specific to the individual case.

The Court’s Conclusion

Based on the foregoing, and having recalled that a person may have his or her habitual residence in only one State at a given time, the Court concluded that Article 8(a) and (b) of the Rome III Regulation must be interpreted as meaning that the status of diplomatic agent of one of the spouses and his or her assignment to a post in the receiving State preclude, in principle, the ‘habitual residence’ of the spouses from being considered to be established in that State. It acknowledged, however, that the position would be different if, following an overall assessment of all the circumstances specific to the case, including, in particular, the duration of the spouses’ physical presence and their social and family integration in that State, it was determined (i) that the spouses intend to establish in that State the habitual centre of their interests and (ii) that there is a sufficiently stable presence in the territory of that State.

Assessment

The judgment in Lindenbaumer provides some welcome clarification as regards the notion of habitual residence, as understood in EU private international law in family matters (and probably beyond), and as regards the evidence on the basis of which the habitual residence of a natural person should be determined in concreto.

In substance, however, as attested by the fact that the Court decided to proceed to judgment without an opinion by the Advocate General, the ruling does not really go beyond an orderly restatement of the Court’s own previous teachings on this topic

Those teachings can be resumed as follows.

First, the term ‘habitual residence’ denotes an autonomous notion of EU law, the specification of which depends on the facts of each individual case. The two assertions are not contradictory. Habitual residence is, as such, a legal notion, and must be construed, in cases falling within the scope of EU rules, against the background of EU law rather than by reference to the domestic law of a given State. That said, like other legal notions, it requires, at the application stage, that one refers to facts, and does so in a manner that leaves a significant margin of appreciation with the interpreter (the court seised of the matter).

In fact, while the abstract notion of habitual residence is shaped by EU law (the habitual residence of a person being where that person has established the centre of his or her interests), the question whether the habitual residence of a person is in State A rather than State B depends entirely, in concreto, by the factual circumstances of the case. In assessing those circumstances, the work of the interpreter is in no way ‘mediated’, let alone restricted, by legal constructs, presumptions and fictions.

Second, in order to determine the habitual residence of a natural person, one must carry out a comprehensive assessment of the pertinent circumstances, weighting each fact against the others. There is no such thing as a predetermined algorithm based on which the habitual residence of a person can be identified ‘mechanically’ in each and every case.

Far for proposing a ‘formula’ valid once and for all, the Court of Justice insists on describing the process through which one can specify the habitual residence of a person. The first stage of the process consists in collecting information about the life of the person concerned: his or her interests, his or her relations, etc. The following and final stage consists in appraising those indicia globally, having regard to their respective weight and their interaction (the actual weight of each element may depend on the way in which it relates to other elements, as it occurs, e.g., where two indicia, considered together, indicate that a place is especially meaningful for the person concerned, whereas the same indicia, taken in isolation would not corroborate that finding). All of this should be done with a view to identifying the ‘centre’ (in the singular) of the person’s interests at the material time.

Finally, although the Court remains nominally attached, in its rulings, to a dualist understanding of habitual residence, suggesting that one should look both at the actual ‘physical presence’ of the person in a State and at the intentions of that persons (i.e., his or her subjective posture towards that State), it is clear that the what is crucial, in determining the habitual residence of a person, is the combination of the two elements. Presence alone is meaningless, as is the person’s sheer intention. What essentially matters is whether the ties of a person with a given State are socially meaningful, which entails an assessment of the quality of those ties, as evidenced by the reasons why that person stays there, returns there, or otherwise cares for what happens there.

In the end, social integration is really all that matters when it comes to identifying the habitual residence of a person. Presence and intention are just the typical signs of social integration. While referring to the two elements may be useful for pedagogic purposes, what is at stake with habitual residence is, ultimately, the determination of the social environment where a person belongs, that is, the place where – having regard to all factors, no matter their objective to subjective nature – the person in question can be considered to be ‘at home’.

In January 2025, AG J. Richard de la Tour delivered his opinion in case C-536/23, Mutua Madrileña Automovilista, upon a request from the Landgericht München I (Regional Court of Munich I, Germany) asking the Court of Justice :

Must Article 13(2) of Regulation (EU) No 1215/2012 [the Brussels I bis Regulation], read in conjunction with Article 11(1)(b) of that regulation, be interpreted as meaning that a Member State of the European Union itself, in its capacity as an employer which has continued to pay the remuneration of its official who has (temporarily) become unfit for work as a result of a road traffic accident and which is subrogated to the official’s rights vis-à-vis the company, established in another Member State, that provides the civil liability insurance for the vehicle involved in that accident, may sue the insurance company as an ‘injured party’ within the meaning of that provision before the courts for the place where the official who is unfit for work is domiciled, where a direct action is permitted?

The opinion invites the Court of Justice to answer that Article 13(2) of the Brussels I bis Regulation, read in conjunction with Article 11(1)(b) of that regulation,

must be interpreted as meaning that a Member State, acting in its capacity as the employer to which the rights of the official injured in a road traffic accident have passed and for whom it continued to pay his or her salary may, as the ‘injured party’, sue the company insuring the civil liability resulting from the vehicle involved in that accident, which is established in another Member State, in the courts for the place where the administrative body employing that official has its registered office.

The judgment is expected on 30 April 2025. A previous post on this blog provides a short description of the dispute on the merits.

In a judgment of 2 April 2025, the French supreme court for private and criminal matters (Cour de cassation) ruled that there is no exception in Article 25 of the Brussels I bis Regulation to the enforcement of jurisdiction clauses to ensure the application of the overriding mandatory provisions of the forum. As a consequence, it declined jurisdiction on the ground of a clause providing for the exclusive jurisdiction of an Irish court despite the argument that a French international mandatory norm might apply.

The judgment is unsurprising. The Cour de cassation had already refused to consider that the applicability of a French overriding provision was a ground for denying enforcement to jurisdiction in 2008 in Monster Cable v AMS. The case, however, was concerned with a clause providing for the exclusive jurisdiction of an American court, and the judgment had thus applied the French common law of jurisdiction.

Background

The case was concerned with a woman (who was likely a French resident) who had opened an instagram account for professional use. For this purpose, she had accepted the general conditions of Meta platforms Ireland Limited, which included a clause granting jurisdiction to Irish courts.

She alleged that her account was hacked and sued Meta in France. Meta challenged the jurisdiction of French courts.

The French rule

The plaintiff argued that French courts should not enforce the jurisdiction clause on the ground that Article 1171 of the French civil code applied as an overriding mandatory provision.

Article 1171 establishes that clauses in adhesion contracts are unenforceable if they create a significant imbalance between the parties. The provision has been translated as follows:

In a standard-form contract, any term which is non-negotiable and determined in advance by one of the parties and which creates a significant imbalance in the rights and obligations of the parties to the contract is deemed not written.

The assessment of significant imbalance must not relate either to the main subject-matter of the contract nor to the adequacy of the price in relation to the act of performance.

To my knowledge, the Cour de cassation has never suggested that the provision might be an overriding mandatory provision.

Some French scholars discussing the case on social media have also pointed out that, even if it were an overriding mandatory provision, it is unclear whether the requirement that a jurisdiction clause would create a significant imbalance in the rights and obligations of the parties would be met.

The Judgment

The Cour de cassation did not even decide whether Article 1171 was an overriding mandatory provision.

It ruled, first, that the issue of the law applicable to jurisdiction clauses is outside the scope of the Rome I Regulation. The plaintiff had relied on Article 9 of the Rome I Regulation to justify her argument. The court rules implicitly that the Rome I Regulation was irrelevant for the purposes of the case.

The court then cited Article 25 of the Brussels I bis Regulation, and noted that it does not include any particular exception concerned  with overriding mandatory provision. It concluded that the argument based on the existence of a French overriding mandatory provision was thus inoperative, as it was irrelevant for the resolution of the case.

Assessment

As many readers will know, courts in other Member States have accepted to deny enforcement of jurisdiction clauses on the ground that an overriding mandatory provision applied.

In this case, the alleged overriding mandatory provision was a general rule of validity of contracts. The CJEU has recently ruled that it falls within the scope of the law governing the substantive validity of the jurisdiction clause within the meaning of Article 25. It is doubtful that the CJEU would accept that the Member States remain free to override the application of the law of the chosen court on the ground that an overriding mandatory rule of the non chosen court might apply.

The Brussels I bis Regulation only includes a rule on the obligation of the chosen court to retain jurisdiction. Unlike the 2005 Hague Convention, it does not include a rule on the obligations of non chosen courts. What should be the influence of Article 6 (c) of the Hague Convention, which provides that a non chosen court may retain jurisdiction if enforcing the clause would violate its public policy, on the interpretation of Article 25 of the Brussels I bis Regulation? But the case law of the CJEU on the relevance of the Hague Convention for the purpose of interpreting Article 25 lacks consistency. It sometimes rules that the 2005 Hague Convention is relevant, sometimes that it is not.

In April 2025, Advocate General J. Kokott will deliver her opinion on joint cases C-672/23 , Electricity & Water Authority of the Government of Bahrain e.a., and C-673/23, Smurfit Kappa Europe e.a. The publication is scheduled for Thursday 3. The EAPIL blog has already reported on these (partially identical) Dutch requests for a preliminary ruling concerning Article 8(1) of the Brussels I bis Regulation, applied to follow-on actions in competition law.

On the same day, Advocate General J. Richard de la Tour will make known his opinion regarding case C-713/23, Wojewoda Mazowiecki, a Polish request on which the blog has also reported, on the occasion of the hearing which took place last December. The question referred does not directly concern a private international law instrument, but the answer is certainly of interest for cross-border cases. The decision of the case will be a Grand Chamber one, with K. Jürimäe as reporting judge.

On 29 April, after the break due to the Easter vacation, a hearing will take place in case C-196/24, Aucrinde. In the main dispute, an individual brought proceedings before the Civil District Court in Genoa seeking  a declaration that he is the illegitimate son of a person already deceased. In addition, he is seeking the authorisation to use his father’s surname, an order that the competent registrar enters the future judgment into the record when it becomes final, and an order commissioning an expert’s report establishing his status as an illegitimate child, following exhumation of the body of the presumed father.

The investigating judge of the Civil District Court of Genoa ordered that an expert’s report be produced to determine whether the applicant has genetic characteristics matching those of the defendants to the proceedings, who are recognised children of the deceased.

The defendants objected to the tests and requested that samples be taken from their father’s body in France, where his remains are buried.

The investigating judge of the Civil District Court of Genoa appointed an expert to carry out a genetic comparison between the applicant and the body of the presumed father after exhuming the latter. The Civil District Court then sent the tribunal judiciaire de Chambéry (Court of Chambéry, France) a request for international mutual assistance in civil matters, asking for the exhumation of the body of the presumed father of the applicant. Said request was made pursuant to Regulation (EU) 2020/1783 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (the Recast Evidence Regulation).

The tribunal judiciaire de Chambéry, after explaining why it considers that his request falls under the scope of Article 267 TFEU, referred the following questions to the Court of Justice, inspired by the fact that under French law a body may be exhumed for the purposes of establishing parentage only if, during his or her lifetime, the person concerned gave his or her express consent:

1) Does Article 12 of [the Recast Evidence Regulation] allow a national court to refuse to apply that regulation and to comply with the request from the requesting State, on the ground that the procedure specified in the request is contrary to fundamental principles of the national law of the requested State, and in particular Article 16-11 of the Civil Code?

2) If Article 12 of [the Recast Evidence Regulation] applies regardless of national law, how should Article 1 (right to dignity) and Article 7 (right to respect for private life) of the Charter of Fundamental Rights be interpreted and the links between them determined in order to establish whether or not such an application of the Regulation infringes the Charter of Fundamental Rights?

Not surprisingly, the ruling will be issued by the Grand Chamber and will be preceded by an opinion, this time authored by Advocate General T. Ćapeta.

On 6 March 2025, the Danish Supreme Court held in a decision that an abducted child should not be returned to Ukraine under the 1980 Hague Convention on the Civil Aspects of Child Abduction (1980 Hague Convention). The court found grounds to refuse the return, emphasizing that while the war in Ukraine influenced the situation, the decision was based on the practical difficulties of travel and family circumstances rather than on fears for the war itself.

Background

In the summer of 2021, a Ukrainian woman gave birth to a child in Ukraine. The father lived with the mother and child intermittently until Russia’s fullscale invasion of Ukraine in February 2022. A few weeks after the invasion, both parents agreed that the mother and child should move to Poland to reunite with the mother’s other child. After nine months in Poland, the mother moved with the children to Denmark.

Until May 2023, the father maintained contact with the child via video calls. In August 2023, he filed a lawsuit in a Danish family court, seeking the child’s return to Ukraine under the 1980 Hague Convention. As is set out in Article 3 of this convention, the general principle is that a wrongfully removed child promptly shall be returned. However, Article 13 provides exceptions, including when the return would expose the child to grave risks.

The Supreme Court’s Decision

After lower courts reached different conclusions, the case was appealed to the Danish Supreme Court.

The first whether the child’s habitual residence had changed at the time of removal. Here, the court held that the relevant point of time to determine that was December 2022. The first issue was whether the child’s habitual residence had changed. The court determined that as of December 2022, despite nine months in Poland, the child’s habitual residence was still in Ukraine. Consequently, the child’s relocation to Denmark without the father’s consent was an abduction under the 1980 Hague Convention.

Even if the prerequisites for a wrongful removal were fulfilled, the court continued to assess whether the exceptions to order a return could be applied. Under Article 13(b) of the 1980 Hague Convention, a state may refuse to order a return if there is a grave risk that the child is physically or psychologically harmed or placed in an intolerable situation. Holding that the child had a very close connection to his mother as the primary caregiver, the length of the stay in Denmark, the child’s limited contact with the father and the circumstances in Ukraine, the court concluded that a return would put the child in an intolerable situation. As regards the situation in Ukraine, the court held that it would be hard for the mother and her other child to travel to Ukraine.

Comment

At first glance, it may seem that the war in Ukraine was the deciding factor in this case. However, the Supreme Court did not base its decision on the dangers of war itself but rather on the practical challenges it created, particularly travel difficulties and the impact on the child’s family relationships.

Importantly, this ruling does not establish a blanket refusal for all removals from Ukraine. Instead, it highlights that each case must be assessed individually, considering the specific impact of the war on the child’s well-being and family situation.

The decision in case C-57/24, Ławida, has been scheduled for delivery on 27 March 2025. The Sąd Okręgowy w Gliwicach (Poland) has referred to the Court of Justice the following question:

Must Article 13 of Regulation (EU) No 650/2012 [on succession] be interpreted as meaning that it does not apply in a situation where, in addition to a declaration of waiver of the succession being received, that declaration must additionally be approved by a court in order to be effective pursuant to the laws of the Member State of habitual residence of the person submitting it, for instance where the declaration is submitted after the expiry of the deadline?

In the case at hand, the appellant BA, represented by her father, made an application for the court to approve her being freed from the legal consequences of failure to submit, in a timely manner, a declaration of waiver of the succession following the death of her relative ZJ, and submitted the relevant declaration at the same time.

ZJ died in Germany, where he also had his habitual residence at the time of his death.

BA lives in Poland, as do other persons who were statutory heirs of the deceased, and who have already waived the succession.

The preliminary ruling is to be taken by judges N. Jääskinen (reporting), A. Arabadjiev and R. Frendo. No opinion was asked for; there has been no hearing.

The Court of Justice gave on 6 March 2025 its ruling in Anikovi. The case concerns the scope of application of the Brussels II ter Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and its relationship with conventions concluded by a Member State with a third country.

The facts of the case can be summarised as follows. Non-contentious proceedings were brought in Bulgaria on behalf of two Russian minors with a view to obtaining authorisation to sell, with the consent of their mother, the shares they own in three immoveable properties in Bulgaria. Both minors had their habitual residence in Germany.

Uncertain of its jurisdiction, the Sofia District Court referred two questions to the Court of Justice. First, whether the case comes within the material scope of the Brussels II ter Regulation, rather than the Brussels I bis Regulation. Article 24(1) of the latter Regulation, the referring court recalled, confers jurisdiction in proceedings over rights in rem in immovable property on the courts of the Member State in which the property is situated. Secondly, the Court of Justice was requested to indicate what weight, if any, should be given in Bulgaria, in the proceedings in question, to the 1975 treaty on legal assistance in civil, family and criminal cases, concluded in Moscow between the Union of Soviet Socialist Republics, as it was then, and Bulgaria. Article 25 of the treaty provides that parent-child relationships are governed by the law of the Contracting Party in whose territory they have a common domicile, adding that jurisdiction, in this and other matters, “shall be exercised by the authorities of the Contracting Party of which the child is a national or in whose territory he is domiciled or resident”.

The Material Scope of the Brussels II ter Regulation

The Court of Justice held that the proceedings come with the purview of the Brussels II ter Regulation. It observed that the latter regulation applies in matters relating, inter alia, to the exercise of parental responsibility, noting that, as specified in Article 1(2)(e), the said matters concern, in particular, “measures for the protection of the child relating to the administration, conservation or disposal of the property of a child”. The Court also observed that the Brussels I bis Regulation, for its part, governs civil and commercial matters, but excludes from its scope, pursuant to Article 1(2)(a), “the status and legal capacity of natural persons”.

The judicial authorisation sought in the circumstances, the Court noted, “is a measure taken having regard to the status and legal capacity of the minor, which aims to protect the best interests of that minor”. Thus, regardless of the subject matter of the legal act concerned, the measure in question “constitutes a protective measure for the child relating to the administration, conservation or disposal of the child’s property in the exercise of parental responsibility within the meaning of Article 1(2)(e) of the Brussels II ter Regulation, which relates directly to the legal capacity of a natural person concerned, within the meaning of Article 1(2)(a) of the Brussels I bis Regulation”.

Accordingly, the proceedings come within the scope of the former regulation and fall outside of the scope of the latter. The finding echoes the conclusions reached by the Court in Schneider, a case regarding non-contentious proceedings concerning the right of an adult under guardianship to dispose of immovable property, and in Matoušková, on proceedings for the approval by a court of an inheritance settlement agreement between the surviving spouse and the minor children of the deceased represented by a guardian ad litem.

The Court observed on this basis, that, in the circumstances, in accordance with Article 7(1) of the Brussels II ter Regulation, it is the courts of the Member State in which the children are habitually resident at the time the court is seised (the courts of Germany) which, in principle, have jurisdiction to grant the authorisation sought on behalf of the two Russian minors.

The Relationship between the Regulation and the 1975 Russo-Bulgarian Treaty

The Court of Justice went on to assess whether, in the circumstances, the Sofia District Court was permitted to rely, for the purposes of assessing its jurisdiction, on the 1975 treaty between Bulgaria and Russia (which is not specifically mentioned among the conventions that the regulation preserves), no matter whether this would result in the provisions of the Brussels II ter Regulation being derogated.

The admissibility of the question was challenged by the Spanish Government on the ground that the referring court failed to elaborate on the connection of the convention to the subject matter of the main proceedings and did not explain in which way the provision of the treaty might run counter to the rule of jurisdiction laid down in Article 7(1) of the Regulation. The Court of Justice, however, dismissed the challenge, noting that it was clear from the order for reference that Bulgarian courts would normally rely on the treaty to declare that they have jurisdiction, as the courts of the State in which the immovable property is situated.

On the substance of the question, the Court of Justice began by noting that Article 351(1) TFEU enables Member States to respect the rights which third States derive, under international law, from agreements concluded prior to 1958, or prior to accession, and to comply with their corresponding obligations, provided the third State in question can require the Member States concerned to observe such obligations. Where its conditions of application are met, the rule allows derogations from the application of any provision of EU law, whether primary or secondary law. Article 351(2) adds that, to the extent that such agreements are not compatible with the Treaties, the Member States concerned are to take all appropriate steps to eliminate the incompatibilities established.

Recalling its own case-law, the Court of Justice explained that it is for the courts of the Member States to ascertain whether a potential incompatibility between EU law and an international convention, as referred to in Article 351 TFEU, can be avoided by interpreting that convention, to the extent possible and in compliance with international law, in such a way that it is consistent with EU law. If this proves impossible, the Member States concerned are obliged, as said, to take the necessary measures to eliminate such incompatibility of that convention with EU law, including, where appropriate, by denouncing it. However, pending such elimination, Article 351 TFEU permits the courts in the Member States in question to continue to apply that convention.

The Court of Justice refrained from assessing whether the Russo-Bulgarian treaty contains rules that the Russian Federation may require that Member State to respect, and whether the latter treaty is incompatible with the Brussels II ter Regulation in that those two legal instruments do not provide that the same court has jurisdiction in the circumstances under discussion. While leaving both evaluations to the referring court, the Court of Justice explained that the context of the above verification, it will be necessary to take into account not only Article 7(1) of the Brussels II ter Regulation, but also Article 7(2) of that regulation, according to which paragraph 1 of that article “shall be subject to Articles 8 to 10” of that regulation, wording which reflects the will of the EU legislature to provide, in certain situations, for the jurisdiction of courts other than those of the child’s place of habitual residence, those courts being designated on the basis of the criterion of proximity.

Article 10(1), on choice of court, could be of special interest here, as it provides – the Court of Justice observed – that jurisdiction may be conferred on the courts of a Member State other than the State of their habitual residence, provide, among other conditions, that the child concerned has a substantial connection with the former State. The provision indicates that such connection may exist “in particular” with the State of habitual residence of at least one of the holders of parental responsibility, the State where the child had a former habitual residence, or the State of nationality of the child. The list is not exhaustive, and it may therefore also be established that there is a substantial connection on the basis of another factor, including, as the case may be, by virtue of the situation of the immoveable property to which the authorisation relates. Of course, all the other conditions laid down in Article 10 need to be met for a court in the latter State to asset its jurisdiction. In the circumstances, this means that the referring court could entertain the case in accordance with Article 10 if it established (i) that the case has a concrete and significant connection with Bulgaria, having regard to the personal interests of the child concerned, (ii) that, given that in non-contentious proceedings, such as those at issue in the main proceedings, there is no defendant party, the mother of the minor, as the sole holder of parental responsibility, expressly accepts the jurisdiction of that court in the course of the proceedings after having been informed of her right not to accept it, and (iii) that the exercise of that jurisdiction is in the best interests of the child.

If the referring court were to find that the Russo-Bulgarian treaty is incompatible with the Brussels II terRegulation in so far as it confers jurisdiction on courts other than those designated by Articles 7 to 10 of that regulation, it will have to examine whether that incompatibility can be avoided by adopting an interpretation of that treaty that is consistent with that regulation. If that is not possible and it does not itself have the power to eliminate that incompatibility, the referring court will, in the fourth place, be able to apply the rules of that treaty and disregard those of the Brussels II ter Regulation.

The Court of Justice considered it appropriate to emphasise that, while the courts of the Member States are required to verify whether any incompatibility between EU law and an earlier bilateral convention can be avoided by adopting an interpretation of that convention (“so far as possible and in compliance with international law”), that is consistent with EU law, they are not required to verify whether a similar incompatibility can be avoided by interpreting or applying EU law in a manner that is consistent with that convention.

This entails, the Court indicated, that the Sofia District Court must not have recourse to the possibility of asserting its jurisdiction under Article of the Brussels II ter Regulation, instead of applying the general rule of jurisdiction set out in Article 7(1) of that regulation, “with the aim of reconciling EU law with the Russo-Bulgarian Treaty and, in so doing, of finding that, in the circumstances of the dispute in the main proceedings, that treaty is compatible with EU law in so far as they both provide for the same court to have jurisdiction in that dispute”.

To summarise, a court in a Member State, seised of a matter that comes within the scope of both the Brussels II ter Regulation and a convention in force with a third country, must begin by assessing whether, in the circumstances, the third State in question may require, under the convention, that the courts in the Member State in question comply with the provisions in the convention. In the affirmative, if respect for the convention appears to prevent the State concerned from complying with the regulation, the seised court must assess whether the relevant provisions of the convention can be interpreted (in accordance with the rules of interpretation in force in international law) in a way that is consistent with EU law. If this is not the case, then the court is permitted, under Article 351(1) TFEU, to derogate from the regulation.

The obligations imposed on the Member State concerned in accordance with Article 351(2) TFUE to eliminate any established incompatibility between EU law and prior agreements with third State remain in place, but this does not prevent the courts in that Member State from applying, in the meanwhile, the agreements in question.

This month starts with the publication, on Thursday 6, of the decision in case C-395/23, Anikovi, reported here, on the interpretation of Regulation (EU) 2019/1111 (Brussels II ter Regulation) and its relation to an international treaty between a Member State and a third one. The Sofiyski rayonen sad (Sofia District Court, Bulgaria) referred to the Court of Justice three questions in the frame of non-contentious proceedings brought by two minors of Russian nationality and resident in Germany, acting with the consent of their mother, with a view to obtaining authorisation to sell the shares they hold in three immovable properties located in Bulgaria:

(1) Does the scope of Article 1[(2)](e) of [the Brussels II ter Regulation] cover non-contentious proceedings concerning the granting of permission by a court for the disposal, [for example] a sale, of immovable property or co-ownership shares in immovable property belonging to a child?

(2) 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, [for example] 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 [the Rome I Regulation] or Article 24(1) of Regulation [No 1215/2012] – the court for the place where the immovable property is situated?

(3) 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 ([the Republic of] 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 that regulation]?

AG J. Richard de la Tour delivered his opinion on 28 November 2024. With direct reference in the text to Professors Hélène Gaudemet-Tallon and Marie-Élodie Ancel on the subject of the definition of the term ‘decision’ in Article 2(a) of Regulation No 1215/2012, which considers ‘equivalent’ to the notion under Article 2(1) of the Brussels IIb Regulation, AG de la Tour posits that “a distinction must be drawn between two types of non-contentious judicial measures, namely ‘purely receptive measures’ and ‘non-contentious decisions’ in which the court ‘without having to settle “a dispute between the parties” nevertheless expresses its will”. He therefore concludes the preliminary reference is admissible.

On the merits, he proposes the Court to answer:

[The Brussels II ter Regulation] must be interpreted meaning that in accordance with the first paragraph of Article 351 TFEU, it does not affect the application of a bilateral agreement concluded with a third State by a Member State before the date of its accession to the European Union, under which the court of the Member State in which the property is located has exclusive jurisdiction to rule on an application for authorisation to sell immovable property belonging to a minor who is a national of that third State, where that court gives its ruling having regard to the best interests of the child.

The preliminary reference was assigned to a chamber of five judges (K. Lenaerts, C. Lycourgos, L. Arastey Sahún, S. Rodin, and O. Spineanu-Matei acting as reporting judge)

The publication of the judgment in case C-61/24, Lindenbaumer, is scheduled on Thursday 20. The Bundesgerichtshof (Germany) requests the interpretation of ‘habitual residence’ under the Rome III Regulation on the law applicable to divorce and legal separation. The referring court is seized with divorce proceedings between a spouse of German nationality who moved from Germany, first to Sweden and, two years later, to Russia. In all cases, the move was due to the fact that her husband, a counsellor with diplomatic status, was assigned to the German embassy in those States. While the husband’s application for divorce was dismissed under German law in the first instance, at second instance the divorce was granted on the basis of Russian law, which the court held to be applicable in accordance with Article 8(b) of the Rome III Regulation, because the spouses had a ‘habitual residence’ in Moscow.

The Bundesgerichtshof is asking:

Which criteria should be used to determine where the spouses are habitually resident within the meaning of Article 8(a) and (b) of the Rome III Regulation?  In particular: Does a posting as a diplomat affect or even preclude the assumption of habitual residence in the receiving State? Must the physical presence of the spouses in a State be of a certain duration before it can be assumed that habitual residence had been established there? Does the establishment of habitual residence require a certain degree of social and family integration in the State in question?

No opinion was requested. The case will be decided by a chamber of five judges (C. Lycourgos, S. Rodin, N.J. Piçarra, N. Fenger, and O. Spineanu-Matei as reporting judge).

Approaching the end of the month, on March 27, AG M. Campos Sánchez Bordona will deliver his opinion in case C-34/24, Stichting Right to Consumer Justice et Stichting App Stores Claims, reported here, on the occasion of the hearing held last December. The preliminary reference engages the interpretation of Article 7(2) of the Brussels I bis Regulation in relation to venue in proceedings for the defence of collective interests:

– Question 1 (Handlungsort)

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?

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?

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)

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?

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?

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 allocated to the Grand Chamber (K. Lenaerts, T. von Danwitz, Biltgen, I. Jarukaitis, L. Arastey Sahún, A. Kumin, N. Jääskinen, I. Ziemele, J. Passer, Z. Csehi, B.M.P. Smulders, M. Condinanzi, F. Schalin, S. Gervasoni, and O. Spineanu-Matei acting as reporting judge).

Finally, on the same day a three-judges chamber (S. Rodin, N.J. Piçarra and O. Spineanu-Matei, again reporting), will hand down the decision in case C-67/24, Amozov, on another request from the Sofiyski rayonen sad (Sofia district court). No opinion has been asked for, and no hearing has taken place in relation to this case.

The referring court is seized of an action brought by a Bulgarian national residing in Bulgaria against three defendants residing in Canada, namely his former wife -a Canadian national-, and his two children -who have dual Bulgarian and Canadian nationality-, all three being maintenance creditors pursuant to a judgment delivered by a Canadian court. The applicant has asked the referring court to modify the maintenance obligations set by said judgment.

The preliminary ruling request focuses on the Maintenance Regulation (Regulation No 4/2009), the interpretation of which is needed to ascertain whether it applies in the present case and, if so, whether it confers jurisdiction on the national court seized :

1. Must recital 15 of [the Maintenance Regulation] be interpreted as allowing national case-law according to which the international jurisdiction of courts examining applications for maintenance payments for persons who are habitually resident in a third State (in this case Canada) is determined pursuant to national law and not the regulation?

2. Must Articles 3 and 8 of [the Maintenance Regulation] be interpreted as allowing national case-law according to which the concept ‘application for maintenance payments’ does not cover an application for a reduction in maintenance payments and Articles 3 to 6 of the regulation apply only to applications for the granting of maintenance payments?

3. Must Article 6 of [the Maintenance Regulation] be interpreted as meaning that the concept ‘common nationality’ also covers cases where one or more parties have dual nationality, or does it only cover cases of completely identical nationalities?

4. Must Article 7 of [the Maintenance Regulation] be interpreted as allowing, where the maintenance debtor makes an application for a reduction in the maintenance payments, that application to be regarded as an ‘exceptional’ case where the maintenance creditor is habitually resident in a third State and has no other connection with the European Union other than his or her nationality?

The Grand Chamber of the Court of Justice has rendered today, 25 February 2025, its much awaited ruling on case C-339/22, BSH Hausgeräte.

The Court was requested to clarify the scope of Article 24(4) of Regulation No 1215/2012 (Brussels I bis) as regards disputes relating to the infringement of patent rights when the invalidity of a foreign patent is raised as a defence, and to address the issue of the potential “reflexive effect” of the latter provision in relation to patents registered in third countries.

The questions referred to the Court were presented and discussed by Lydia Lundstedt on this blog here, here (with reference to AG Emiliou’s first opinion) and here (concerning AG Emiliou’s second opinion).

The Scope of the Rule of Exclusive Jurisdiction inArticle 24(4)

In its ruling, the Court held, to begin with, that Article 24(4) of the Brussels I bis Regulation must be interpreted as meaning that

a court of the Member State of domicile of the defendant which is seised, pursuant to Article 4(1) of that regulation, of an action alleging infringement of a patent granted in another Member State, does still have jurisdiction to hear that action where, in the context of that action, that defendant challenges, as its defence, the validity of that patent, whereas the courts of that other Member State have exclusive jurisdiction to rule on that validity.

Referring to its own ruling in GAT, the Court observed that where a court of the Member State in which the defendant is domiciled is hearing, pursuant to Article 4(1), an action alleging infringement of a patent granted by another Member State, in the context of which the defendant challenges, as its defence, the validity of that patent, that court “cannot establish, indirectly, the invalidity of that patent”, and must rather declare that it does not have jurisdiction, pursuant to Article 27, “as regards the issue of the validity of that patent, in the light of the exclusive jurisdiction of the courts of the Member State in which the patent is granted”.

However, the Court added, the question arises whether, in such a situation, the court of the Member State in which the defendant is domiciled still has jurisdiction to hear that infringement action or whether it must declare that it does not have jurisdiction in respect of any aspect of dispute relating to the patent granted by another Member State.

In this regard, the Court noted that the exclusive jurisdiction contemplated in Article 24(4) covers only proceedings “concerned with the registration or validity of patents”. As such, the provision does not concern, inter alia, patent infringement actions, although the examination of such an action does involve a thorough analysis of the scope of the protection conferred by that patent in the light of the patent law of the State in which that patent was granted. In other words, the exclusive jurisdiction rule in Article 24(4) concerns “only the part of the dispute relating to the validity of the patent”, with the consequence that a court of the Member State in which the defendant is domiciled, which has jurisdiction, under Article 4(1) of the Brussels I bis Regulation, in an action alleging infringement of a patent granted in another Member State, “does not lose that jurisdiction merely because, as its defence, that defendant challenges the validity of that patent”.

Proceedings Regarding the Infringement of a Patent Granted in a Third State

The Court went on to consider the situation where a court in a Member State is seised of proceedings regarding the infringement of a patent granted in a third State. In this respect, the Court noted that Article 24(4) of the Brussels I bis Regulation does apply to a court of a third State and, consequently, does not confer any jurisdiction, whether exclusive or otherwise, on such a court as regards the assessment of the validity of a patent granted or validated by that State.

As a result,

if a court of a Member State is seised, on the basis of Article 4(1) of the regulation, of an action alleging infringement of a patent granted or validated in a third State in which the question of the validity of that patent is raised, as a defence, that court has jurisdiction, pursuant to Article 4(1), to rule on that defence, its decision in that regard not being such as to affect the existence or content of that patent in that third State or to cause the national register of that State to be amended.

The Court observed that the jurisdiction “in principle” of the courts of the Member State in which the defendant is domiciled which are seised of such a dispute over the part of that dispute relating to the validity of a patent granted in a third State “may be limited by special rules”, such as those laid down in Article 73 of the Regulation on the relationship with the 2007 Lugano Convention. Furthermore, in the circumstances referred to in Articles 33 and 34 of the Regulation, on extra-EU parallel litigation, a court of a Member State whose jurisdiction is based on Article 4 of the Regulation “may be prompted to recognise the jurisdiction of the courts of third States, by staying proceedings, or even terminating the proceedings before it, where proceedings are already pending before a court of a third State at the time when that first court is seised”.

That said, the Court observed, it is necessary to determine whether the jurisdiction, based on Article 4(1) of the Regulation, of a court of a Member State to rule on the issue of the validity of a patent granted or validated in a third State where that question is raised as a defence in the context of an infringement action brought before that court, is restricted by general international law.

In that regard, the Court recalled that the rules and principles of general international law “are binding, as such, upon the EU institutions and form part of the EU legal order”, and noted that, consequently, “a measure adopted by virtue of the powers of the European Union, such as the Brussels I bis Regulation, must be interpreted, and its scope limited, in the light of those rules and principles”.

Indeed, “the jurisdiction of the courts of a Member State, based on the fact that the defendant is domiciled in that Member State, to rule in a dispute which is connected, at least in part, because of its subject matter, with a third State, is not contrary to the international law principle of the relative effect of treaties”. Still, the jurisdiction of the court of the defendant’s domicile “must be exercised without infringing the principle of non-interference, according to which a State may not interfere in cases which essentially come within the national jurisdiction of another State”.

In the exercise of its powers, the Court explained, “a State may grant, validate and register intellectual property rights which, within that State, confer on their holder exclusive intellectual property rights, such as a patent”. One of the reasons why the rule now enshrined in Article 24(4) of the Brussels I bis Regulation confers exclusive jurisdiction on the courts of a Member State which has granted a patent to rule on disputes concerned with the registration or validity of that patent is that the grant of a national patent is an exercise of national sovereignty.

Based on the above remarks, the Court explained that, where a judicial decision annulling a patent affects the existence or, in the event of annulment in part, the content of those exclusive rights, only the courts having jurisdiction in that State may give such a decision: it follows from the principle of non-interference that “only the courts of the third State in which a patent is granted or validated have jurisdiction to declare that patent invalid by a decision that may cause the national register of that State to be amended as regards the existence or content of that patent”.

By contrast, the court of the Member State in which the defendant is domiciled which is seised on the basis of Article 4(1) of the Brussels I bis Regulation, of an infringement action in the context of which the issue of the validity of a patent granted or validated in a third State is raised as a defence, does have jurisdiction to rule on that issue if none of the restrictions resulting from Article 73 or Article 33 and 34 of the Regulation is applicable, given that the decision of that court sought in that regard “is not such as to affect the existence or content of that patent in that third State, or to cause its national register to be amended”.

That decision, the Court added, “has only inter partes effects, that is to say, a scope limited to the parties to the proceedings”. Thus,

where the issue of the validity of a patent granted in a third State is raised as a defence in an action alleging infringement of that patent before a court of a Member State, that defence seeks only to have that action dismissed, and does not seek to obtain a decision that will cause that patent to be annulled entirely or in part.

In particular, under no circumstances can that decision include a direction to the administrative authority responsible for maintaining the national register of the third State concerned.

— The EAPIL blog plans to host an analysis of the judgment in the coming days.

Readers of the EAPIL Blog may recall that in late 2023 the High Court of England and Wales applied the forum non conveniens doctrine and refused to hear the dispute in Limbu v Dyson Technology Ltd [2023] EWHC 2592 (KB), thus giving the defendants what I called a ‘Brexit Dividend’. I set out the facts of the case, which involves supply chain liability, in my post covering the High Court judgment and they need not be repeated here. On 13 December 2024, the Court of Appeal of England and Wales allowed the claimants’ appeal (Limbu v Dyson Technology Ltd [2024] EWCA Civ 1564; Popplewell LJ delivered the leading judgment, with which Warby LJ and Vos MR agreed).

Judgment

Before Dyson, English courts had dealt with the application of the forum non conveniens doctrine to many cases involving business-related human rights and environmental abuses. A common feature of these cases was that, where the doctrine was applicable (cf Case C-281/02 Owusu v Jackson), the natural forum was held to be in the country where the human rights or environmental abuse in question occurred and the jurisdiction of English courts depended on whether justice could be obtained in the foreign natural forum. This was the key issue in landmark cases like Connelly v RTZ, Lubbe v Cape and Vedanta. In cases like this, the claimant starts on the back foot, since they have to persuade the court that there is a real risk that they will not obtain substantial justice in the natural forum, always a difficult task that involves serious comity concerns.

Dyson is, to the best of my knowledge, the first reported case where an English court has held that, where a foreign claimant sues a multinational enterprise headquartered in England for business-related human rights abuses occurring abroad, the natural forum for the litigation is England if the defendant’s liability is claimed to arise from decisions made or omitted to be made in its English headquarters and if the claimant has access to high-quality legal representation in England (referred to as ‘a “Tesla” service’ by the Court of Appeal at [59]). The consequence of this is that England is the appropriate forum and there is no need for the court to assess the quality of justice in foreign jurisdictions.

One can get a feel for the thrust of the Court of Appeal’s reasoning from the following extracts from the judgment:

the claims against Dyson UK and Dyson Malaysia do not fall to be treated as of equal importance in this regard. The claim against [Dyson UK] is the primary claim… The reality is that Dyson UK is the principal protagonist and Dyson Malaysia a more minor and ancillary defendant to the claim against [Dyson UK]. [36]

The case against Dyson UK was the primary claim and it was necessary to focus particularly on the issues which would arise in relation to that claim. The promulgation of the policies took place in England and their relevance to the Vedanta routes to whether there existed a duty of care in negligence, including the allegation that they are flawed, points towards England. The allegation of breach by Dyson UK in failing to take steps to see that the policies were implemented in Malaysia, and failing to respond adequately to what was or ought to have been known about the abuse, which is at the heart of the allegations of breach for both the negligence and other tort claims, is an allegation of a failure occurring amongst the management in England and is alleged primarily to have occurred in England, although it will also focus to some extent on conduct in Malaysia. The complaints made by Mr Hall [a British specialist in human and migrant rights] were made to Dyson UK and the alleged failure to take steps to act on them is primarily a failure of English personnel in England. [38]

the main focus of the trial would be…on Dyson UK’s role and activity in England. [39]

In a case such as the present, where there is a huge imbalance between the impoverished and vulnerable claimants and the well-resourced and commercially experienced defendants, and the allegations are of very serious human rights abuses, there is a particular need to ensure equality of arms in the conduct of litigation if justice is to be served… If the defendants can be expected to have the very high standard of legal service in Malaysia which their resources permit, but the claimants only a lesser standard, whereas in England the claimants will also be represented by experienced and well-resourced solicitors, as the evidence establishes that they will, that is a factor, although only one factor, which favours England as a more appropriate forum. This is not something which gives rise to a real risk of substantial injustice at Spiliada stage 2. However, it is a consideration in the overall assessment of the appropriate forum in which the case may most suitably be tried, because inequality of arms in one of the two fora is a factor pointing to the other as more appropriate. [59]

The bulk of the documentation in the case is likely to be that relevant to the central issue of responsibility for the alleged abuse in the supply chain. That will predominantly be located at Dyson UK, where the policies were devised and promulgated and where the alleged failures to implement them will have taken place. So too will be documents relevant to what Dyson UK knew and how it responded. [66]

Comment

At the moment, London is probably the leading global centre of transnational business and human rights and environmental litigation. The Court of Appeal judgment in Dyson cements this position of London even further, since it limits the operation of the forum non conveniens doctrine in this context. The judgment, however, leaves open at least three broader questions.

First, can the Court of Appeal’s approach be applied not only in supply chain liability cases but also in cases involving parent company liability (i.e. cases involving ‘foreign direct liability’ in general) or even climate change? I do not think there is anything in the judgment that restricts this approach to supply chain liability cases.

Second, should English courts be getting the lion’s share of transnational business and human rights and environmental litigation, at the expense of the development of expertise in other countries, especially in the Global South? I am not sure that this is the case, despite occasional victories that victims of business-related human rights and environmental abuses have had in England.

Third, the business and human rights movement has a very negative view of the forum non conveniens doctrine. But the Court of Appeal judgment in Dyson shows that the doctrine is flexible enough to be applied in a ‘business and human rights-friendly’ way. Instead of focusing its efforts on trying to get rid of the forum non conveniens doctrine, an unlikely prospect in common law countries that do not have other mechanisms to deal with parallel litigation, which is a possibility in all transnational litigation, including business and human rights and environmental litigation, perhaps the better strategy of the business and human rights movement would be to call for the application of the doctrine in a ‘business and human rights-friendly’ way. For a well-elaborated academic proposal on how to achieve this, which is in line with the Court of Appeal judgment in Dyson, see Ekaterina Aristova’s recent book on Tort Litigation against Transnational Corporations, which was the subject of a recent symposium on the EAPIL Blog.

Finally, I should say that the judgment is not completely immune from technical criticism. Consider the following three points.  First, the court has arguably placed too much importance on the defendants’ domicile as a jurisdictional factor, even conflating it with presence. For instance, the following statement reads better as a summary of the reasons behind Article 4(1) of the Brussels I bis Regulation than the application of stage 1 of the Spiliada test in cases of service of the claim form without permission:

domicile…is…an important connecting factor. The reason it is an important connecting factor in relation to jurisdiction is because…domicile here connotes a degree of permanence and allegiance to the country’s institutions, including its courts, which means that the party can reasonably expect, and be expected, to meet claims against it in such courts in the absence of sufficient countervailing factors… The importance of presence or domicile is at the heart of the difference in the burden of proof between service in and service out cases. [34]

Second, in the future, clever claimants are likely to strategically limit their claims involving broader business-related human rights and environmental abuses to those abuses that have a link with decisions made or omitted to be made in England, thus potentially taking such claims out of their wider contexts and achieving a degree of forum shopping. Third, if the ability to obtain ‘a “Tesla” service’ in England is a relevant and strong factor under stage 1 of the Spiliada test, is it not something that systemically works in favour of proceedings in England, given the high-quality of London litigators and deep pockets of London litigation funders?

It is for these and similar reasons that one cannot say for certain that the Court of Appeal judgment in Dyson is the last word on the application of the forum non conveniens doctrine in business and human rights and environmental litigation in England. But it has been nearly two months since the judgment and, to the best of my knowledge, no permission to appeal has been granted.

This post was written by Ottavia Cazzola, a PhD candidate at the University of Barcelona Barcelona participating in Action Grant “Towards Universal Parenthood in Europe (UniPAR)” (JUST-2023-JCOO; Project ID: 101137859).

On 4 December 2024, the Spanish Supreme Court issued a decision stating that the recognition of a foreign judgment establishing filiation regarding the commissioning parents of two children born via surrogacy in the United States is contrary to Spanish public policy.

Facts

A Spanish couple entered into a surrogacy agreement in Texas (US) with a surrogate and her husband. On 23 July 2020, the 73rd Civil District Court of Bexar County (Texas) issued a decision validating the agreement and stating that the commissioning parents “shall be the parents of any child to whom the co-defendant (the surrogate) …gives birth to, by virtue of the surrogacy agreement”. This decision also established inter alia the commissioning parents’ right to immediate custody and access to the children after their birth.

On 29 October 2020, two children were born. Almost one month after their birth, on 20 November 20, the 73rd Civil District Court of Bexar County (Texas) issued a second decision stating that the commissioning parents were the parents of both children and instructed the Texas Department of State Health Services and the Civil Registry to issue original birth certificates naming the commissioning parents as the parents of both children.

Legal Background

Once back in Spain, the commissioning parents requested the recognition of the 20 November American judgment. In accordance with the provisions of the Spanish Act on Cooperation in Civil and Commercial Matters a special exequatur procedure is required for the recognition of foreign judgments. It is done by means of a contradictory procedure with the intervention of the public prosecutor’s office.

The First Instance Court dismissed the claim stating that the recognition of the foreign judgment was not possible since surrogacy contracts are forbidden under Spanish law and therefore are contrary to Spanish public policy. The Court stated that the commissioning parents had intentionally traveled to the United States in order to circumvent Spanish law.

The first instance decision was appealed on grounds that the best interests of both children were being infringed by not recognizing the American judgment. The Court of Appeals sustained the decision of the First Instance Court and stated that “it is within the framework of the public policy where the best interest of the child must be satisfied and not on the fringes of it or in contravention or alteration of it”.

The commissioning parents appealed once again but this time to the Spanish Supreme Court, which ruled on two issues: (i) whether the recognition of the 20 November American judgement violates Spanish public policy and (ii) whether the non-recognition of the foreign judgment infringes the best interests of the children involved.

Judgment

The Spanish Supreme Court considered that the 20 November American judgment was contrary to Spanish public policy and could not be recognized. The reasons why are as follows:

First, it considered that the surrogacy contract itself is contrary to Spanish international public policy. In the words of the Spanish Supreme Court:

what violates the dignity and the free development of the personality, both of the surrogate and of the children born under the surrogacy agreement, is the conclusion of the surrogacy contract itself, in which the woman and the child are treated as mere objects.

Furthermore, “the claim that a contract, even if “validated” by a foreign judgment, can determine filiation is in itself contrary to public policy”.

The Spanish Supreme Court continues stating that in cases like the one at hand,

the pregnant woman is obliged from the beginning to give up the child she is gestating and renounces to any right derived from her maternity before delivery, even before conception. The future child, who is deprived of the right to know its origins, is “objectified” because it is conceived as the object of the contract, which the pregnant woman (and, in this case, also her husband) undertakes to deliver to the commissioning parents.

Emphasizing this, the Spanish Supreme Court elaborates on why surrogacy undermines the dignity of the surrogate and the child: by commodifying gestation and filiation and enabling third parties to negotiate and exploit women that may be in a poor financial situation, and as a consequence of this, creating a gap in which only those with sufficient funds may gain access to this kind of practices.

Second, under Spanish law, surrogacy is a form of violence against women. It is stated as such in the Spanish Sexual and Reproductive Health and Voluntary Termination of Pregnancy Act. Furthermore, the Spanish Supreme Court points out that the European Parliament’s resolution of 17 December 2015 on the Annual Report on Human Rights and Democracy

condemns the practice of surrogacy, which undermines the human dignity of the woman since her body and its reproductive functions are used as a commodity; considers that the practice of gestational surrogacy which involves reproductive exploitation and use of the human body for financial or other gain, in particular in the case of vulnerable women in developing countries, shall be prohibited and treated as a matter of urgency in human rights instruments.

Third, the “right to be a parent” does not exist under Spanish law. The Spanish Supreme Court refers to Paradiso and Campanelli v. Italy when stating that Article 8 of the European Convention on Human Rights does not guarantee the right to found a family and, that the mere desire to become a parent  is not protected. To further emphasize this point, the Spanish Supreme Court reminds the parties that “a person’s desire to be a parent, however noble it may be, cannot be fulfilled at the expense of other people’s rights”, quoting the Spanish Bioethics Comity’s 2017 Resolution.

Regarding the best interest of the child, the Spanish Supreme Court, in accordance with its own case law and that of the ECtHR’s, considers that it is sufficiently protected since Spanish law allows the establishment of filiation between the child and the commissioning parent with whom it is genetically connected and/or the adoption of the child when a de facto family relationship exists.

Lastly, the Spanish Supreme Court underlines that this solution satisfies the best interest of the child in concreto but, also takes into account the equally worthy of protection fundamental rights of the surrogate and children in abstracto. These rights could be adversely affected if foreign judgments establishing filiation in cases like the one at hand were easily recognized in Spain, since commercial surrogacy practices, which as already mentioned, are unlawful under Spanish law, would be facilitated.

Comment

The Spanish Supreme Court is clearly stating that a surrogacy agreement categorically contravenes Spanish public policy. The surrogacy agreement in itself is contrary to Spanish public policy since it commodifies filiation and gestation, and by considering the surrogate and the child as objects, violates the dignity of both of them. It also clarifies that the child’s best interest must be considered, not outside or instead of public policy but in the framework of the protection of fundamental rights provided by the public policy exception. Hence, the Court is stressing that, when considering the best interest of the child, other rights, such as the fundamental rights of the surrogate, and those of children in absracto, may not be voided or affected.

In conclusion, from the perspective of the Spanish Supreme Court, a foreign judgment establishing filiation via a surrogacy agreement contravenes Spanish public policy, and therefore cannot be recognized, even by virtue of the principle of the best interest of the child. The children’s best interest is being upheld given that under Spanish law, there are specific procedures for the determination of filiation with all the necessary protection and legal guarantees for the children involved.

Lastly, this is not the first time that the Spanish Supreme Court ruled that surrogacy is contrary to Spanish public policy. It did so before on 6 February 2014,  but that case concerned the recognition of a foreign birth certificate. On 31 March 2022 a second decision was issued in which the Supreme Court also stated that surrogacy was against public policy. The case was, however, about the establishment of filiation by means of the Spanish institution of “posesión de estado”, not about the recognition of a foreign judgment or document.

This post has been written by Delphine Porcheron, Maître de conférences HDR, University of Strasbourg.

On 14 November 2024, the Administrative Court of Paris dismissed a lawsuit filed by Rwandan citizens and associations seeking to hold the French State accountable for its role in the 1994 genocide against the Tutsi in Rwanda, a massacre that resulted in the deaths of nearly one million people. The plaintiffs based their case, in part, on the findings of a 2021 report by a French commission of historians (the Duclert report), which acknowledged the ‘heavy and overwhelming responsibility’ of the French State in the events leading up to and during the genocide. The report highlights France’s political and military responsibility on several fronts: its continued blindness in supporting the ‘racist, corrupt, and violent regime’ in power in Rwanda during this period; the adoption of an ethnonationalist perspective aligned with that of the Rwandan government between 1990 and the beginning of 1994; France’s growing international isolation; and the structure and functioning of French institutions, which hindered the ability to critically assess the decision-making process. However, it is important to note that the Commission’s mandate did not include assessing legal liability, and it refrained from making any determinations on that matter (see interview with Raffaëlle Maison, La France et le génocide rwandais, La vie des idées).

The ‘Acts of Government’ Exception

The ruling of 14 November 2024 offers no further clarification on this matter. As expected, the Administrative Court determined that it lacked jurisdiction to hear the claim. In reaching this conclusion, the Court invoked the doctrine of ‘acts of government’, which holds that actions related to the conduct of France’s international relations are immune from judicial review. This principle is grounded in the constitutional separation of powers: the immunity afforded to the French State before its own courts is intended to protect the autonomy of the executive in managing France’s foreign policy.

This decision may seem somewhat distant from considerations of private international law, especially for readers of this blog based in France. Indeed, even if the ‘act of government’ doctrine had been waived, the issues of conflicts of jurisdiction and laws would typically not arise: French administrative courts have jurisdiction to hear disputes pertaining to French administrative activities and this jurisdiction is contingent upon, in principle, the application of French administrative law.

An Increasing Number of Actions are Being Brought before National Courts

However, the growing number of claims for damages brought before national courts in response to serious human rights and international humanitarian law violations committed by States outside their own territory raises important questions about the potential role of private international law in addressing such cases (for a more detailed analysis, see forthcoming, D. Porcheron, ‘Les actions transnationales en réparation de crimes internationaux commis par un État: l’émergence d’un nouveau contentieux’, Rev. crit. DIP 2025, and for further discussion on the challenges of linking different branches of law in this context, see C. McLachlan, ‘Entre le conflit de lois, le droit international et l’application internationale du droit public: le droit des relations externes des Etats’, Rev. crit. DIP 2018, pp. 191 et seq. and J. Bomhoff, ‘The Reach of Rights: ‘The Foreign’ and ‘The Private’ in Conflict of Laws, State Action and Fundamental Rights Cases with Foreign Elements’, Law and Contemporary Problems, vol. 71, no. 3, 2008, pp. 39 et seq.).

The Problem of Judicial Restraint

For several years, ‘private litigation’ for reparations against States has been gaining ground, driven by the abolition or limitation of the ‘doctrines of avoidance’ that restricted judicial review in some States (see E. Lagrange, ‘L’efficacité des normes internationales concernant la situation des personnes privées dans les ordres juridiques internes’, RCADI vol. 356, 2012). In this context, certain domestic courts have increasingly been willing to waive the jurisdictional immunity of foreign States. For example, in the Seoul Court of Appeal’s decision of 23 November 2023 (see Rev. crit. DIP 2024-3, p. 603, note by David J. Lee), the court lifted Japan’s sovereign immunity in a case brought by women who were victims of sexual slavery during World War II. Similarly, in Karla Christina Azeredo Venancio da Costa e Outro v. República Federal da Alemanha, ARE 954858/RJ, judgment of 23 August 2021, the Brazilian Supreme Court lifted Germany’s immunity for acts committed during the same period. Moreover, some national courts are now limiting, or even abolishing, the ‘political question’ doctrine when States are being challenged in their own courts. For a discussion on the redefinition of Crown acts of State and foreign acts of State in the UK, see Ugljesa Grusic, Torts in UK Foreign Relations, Oxford University Press, 2023.

The Question of Choice of Law

Once judicial restraints are overcome, the cases raise important questions regarding the applicable law for compensating the damages suffered by victims. One such case is the decision of the Dutch Supreme Court on 19 July 2019, which addressed a tort claim brought by civilian victims of the 1995 Srebrenica massacre perpetrated by the Bosnian Serbs army. On the issue of applicable law, the Court ruled that Dutch law should apply, in conjunction with international human rights law. Similarly, readers of the EAPIL blog will recall the Green Desert case, in which the Danish Supreme Court examined the applicable law in a case involving the actions of the Danish army in Iraq in 2004. Another notable example is the English Supreme Court’s decision in Zubaydah on 20 December 2023. In this case, the Court addressed the liability of the UK government for its alleged complicity in the CIA’s wrongful conduct concerning the unlawful imprisonment and torture by the CIA of Mr. Zubaydah, applying section 12 of the Private International Law (Miscellaneous Provisions) Act 1995 (see the comments of U. Grusic, in EJIL Talk! and EAPIL blog). Likewise, the Seoul Court of Appeal referred to the conflict of laws rules in force at the time of the events, alongside international law, in its decision on compensation claims brought by Korean women against Japan.

Beyond the differences between legal systems and contexts, the increasing number of such reparation cases raises critical questions about the role of private international law in this context, as well as the appropriate conflict of laws rules to apply. It also invites a broader reflection on the role of national courts. In a long-awaited ruling delivered on 2 December 2024, the Brussels Court of Appeal ordered the Belgian State to compensate five Métisses women who were abducted, placed in religious institutions on racial grounds, and ultimately abandoned during Belgium’s colonial period in the Congo. This landmark decision marks a pivotal step toward justice and reparation, setting Belgium on a new path of accountability for its colonial past. But are national courts always the most suitable forum for hearing such claims? If not, what alternative mechanisms could ensure that these claims are addressed with the seriousness they deserve?

This post was written by Elena Alina Onţanu, Assistant Professor at the University of Tilburg, and Carlos Santaló Goris, Postdoctoral Researcher at the University of Luxembourg.

The Bulgarfrukt judgment is the latest in a series of cases submitted by national judges to the Court of Justice of the European Union (CJEU) in which the service of an European Order for Payment (EOP Regulation) had proved problematic while the EOP was declared enforceable.

In the present judgment, the CJEU was requested by the German Court of Berlin-Wedding to interpret whether the national rule providing for the annulment of a wrongly declared enforceable EOP due to service issues is in line with the duties set by the EOP and the 2007 Service Regulations (Regulation 1393/2007). The solution chosen by Section 1092a German Code of Civil Procedure (‘ZPO’) lead to the annulment of an EOP, but such outcome raised doubts from the perspective of the 2007 Service Regulation interpretation of consequences of problematic service and prior CJEU judgments on the matter.

Before Bulgarfrukt, There Was eco-cosmetics and Catlin Europe

Prior to Bulgarfrukt, in Joined Cases C‑119/13 and C‑120/13, eco cosmetics, the CJEU was asked whether it was possible to request the review under Article 20 of the EOP Regulation of an already declared enforceable EOP which had not been served on the debtor following the standards of service set in Articles 13 to 15 of the EOP Regulation. The review procedure allows declaring null and void an enforceable EOP under certain circumstances. The CJEU adopted a restrictive interpretation of the review remedy, considering that the lack of service in accordance with the minimum standards is not among the valid grounds to request the review of the EOP. Nonetheless, at the same time, it considered that national law should provide a specific remedy to invalidate the declaration of enforceability of an EOP which is not served on the defendant in accordance with the referred minimum standards on the service of documents.

Following the eco cosmetics case the German legislator introduced a specific solution in the German Code of Civil Procedure (‘ZPO’): Section 1092a that establishes that:

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

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 Articles 13 to 15 of Regulation [No 1896/2006].

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. 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) Should the court already have declared the European order for payment enforceable pursuant to Article 18 of Regulation [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. The third sentence of subparagraph 1 shall apply accordingly.

(3) The decision shall be delivered by court order. The court order shall not be open to appeal. Paragraph 1092(2) to (4) shall apply mutatis mutandis.

As it will be exposed, this provision is the core issue in Bulgarfrukt.

After eco cosmetics, the second case in which an issue of service of an EOP reached the CJEU is C-21/17, Catlin Europe. In this case, the issue concerning the service of the EOP was not about the minimum standards of the EOP Regulation. Instead, it was a matter regarding the language in which the documents were served. Article 8 of the 2007 Service Regulation (now Article 12 of the 2020 Service Regulation) provides that the documents have to be served in a language that the recipient understands or an official language of the Member State where the documents are served. It also requires informing the recipients of the documents about their right to refuse them, if the documents are not served in one of those languages. There is a specific standard form to inform the recipients about their right to refuse the documents and its use is mandatory according to the Regulation and CJEU case law.

In Catlin Europe, the defendant, a German-registered company, was served an EOP issued in the Czech Republic. The EOP was issued in the Czech language and the defendant was not informed about its right to refuse the documents when the EOP was served. The EOP was declared enforceable and the defendant requested its review. The ground to justify the review was that the EOP had not been properly served because it had not been informed about its right to refuse the EOP which was not in the German or a language it understood. The CJEU considered that not informing the recipient about its right to refuse the documents that are not served in the correct language ‘cannot render invalid either the document to be served or the procedure for service’ (para. 49). It also added that ‘in the case of irregular service such as that at issue in the main proceedings, the European order for payment has not validly become enforceable and the period in which the defendant may lodge a statement of opposition has not started to run’ (para. 53). Therefore, since the EOP is not validly enforceable, it cannot be reviewed. The review remedy is only open against enforceable EOPs.

The case Bulgarfrukt the service had not been carried out in accordance with the minimum standards established by Articles 13-15 EOP Regulation, nor had the defendant been informed about its right to refuse the documents based on the standard form contained in Annex II of the 2007 Service Regulation. This sets the Bulgarfrukt judgment at the crossroads of the cases eco cosmetics and Catlin Europe, with the CJEU trying to clarify whether the infringement of the standards of service under the EOP Regulation and Service Regulation have the same consequences on an EOP.

Factual and Legal Background

This case has its roots in an EOP issued by the Local Court of Berlin-Wedding in Germany against a debtor domiciled in Bulgaria. When the EOP was served in Bulgarian, the German court was informed that ‘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’ (para. 18). The German court considered it a valid service, and after the deadline to oppose the EOP expired, it declared the EOP enforceable.

Upon learning about the enforceable EOP, Bulgarfrukt considered that the EOP had not been served respecting the minimum standards set in Articles 13 to 15 of the EOP Regulation. Therefore, the debtor decided to apply for the annulment of the EOP before the Local Court of Berlin-Wedding based on Section 1092a ZPO, the specific German remedy against enforceable EOPs that have not served following the EOP’s minimum standards on service. However, this court had doubts about the compatibility of Section 1092a ZPO with the EOP and Service Regulations. The main problem appeared to be the fact that Bulgarfrukt could apply for this remedy ‘even though the time limit for lodging a statement of opposition to such a European order for payment has not yet started to run’ (para. 24). Among other arguments, the court also wondered whether the lack of service in accordance with those minimum standards could have as a consequence the invalidity of the service itself. In particular, the court referred to the case Catlin Europe, where the CJEU had the possibility of ‘subsequently correct an omission’ on the service of an EOP effected following the rules on service of the 2007 Service Regulation (para. 27).

At this stage, the Local Court of Berlin-Wedding decided to submit a preliminary reference with three questions. Only the first one would be addressed by the CJEU, and it reads as follows:

‘Are Regulation [No 1393/2007] and Regulation [No 1896/2006] 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?’

In other words, the CJEU was asked to determine whether the provision under the ZPO that establishes the annulment was compatible with the EOP and the 2007 Service Regulations. In answering the question the CJEU proceeds to rephrase it from the perspective of the EOP Regulation and the minimum standards regarding service contained in Articles 13-15 of the Regulation.

The CJEU’s Analysis

In its judgement, the CJEU proceeds on a detailed step-by-step examination of the characteristics of the EOP procedure, when and how the defendant is able to become aware of the order, the possibility of the debtor to oppose the EOP, the effects the opposition has in terminating the European procedure, its transfer to a national or European Small Claims Procedure, and its reliance on national procedural rules for all the aspects not dealt with by the regulation (Case C-144/12, Goldbet Sportwetten; Case C‑18/21, Uniqa Versicherungen). The Court turns then to the minimum standard requirements contained in Articles 13-15 regarding the service of the EOP reminding the reader of its judgment in the eco cosmetics discussing these minimum rules and the consequences for not complying with them (i.e. opposition does not start to run, effect on declaration of enforceability).

In Para 42 the Court sets that the aspects regarding the service of EOPs not regulated by the EOP Regulation must be decided in accordance with the Service Regulation based on Article 27 EOP Regulation and in accordance with its interpretation in Catlin Europe. From this point on the analysis of the CJEU focuses on the language requirements that have to be observed to guarantee the recipient of the documents is able to understand the meaning and scope of the action brought against him and that this is able to effectively prepare for his defence in accordance with the requirements of the Service Regulation. The documents appear not to have been served on Bulgarfrukt in accordance with Article 8(1) 2007 Service Regulation (now more extended in 12(1)-(2) 2020 Service Regulation), informing the recipient via the Annex II standard form of its right to refuse the documents served if these are not drafted in a language this understands or the official language of the Member State where service is carried out. As the use of the standard form is mandatory, there is no margin of discretion for involved authorities in accordance with CJEU judgments in Henderson case, as well as in relation to the EOP procedure according to the Catlin Europe judgment. The failure to attach the standard form in Annex II requires the authorities to remedy the situation by transmitting the form and appropriately informing the recipient of its rights. A breach of fulfilling these obligations under Article 8(1) 2007 Service Regulation would not render invalid the document serve – in this case, the EOP – or the service procedure because this would be ‘incompatible with the objectives pursued by that regulation’ (para 48). Hence, a national legislation that would establish as penalty for those omissions the invalidity of the document served or of the service would be infringing the 2007 Service Regulation according to the Henderson judgment (para 49). Therefore, such interpretation of the national legislation would not be possible.

In the last part of the analysis the Court brings together the requirements of the Articles 13-15 of the EOP Regulation, the solution of the national law providing legal remedies for situations in which it becomes apparent that the EOP was not served in accordance with the minimum standards, and their interaction with the duties set by the 2007 Service Regulation, deciding to prioritise the objectives of the EOP Regulation over the Service Regulation.

The CJEU concludes that ‘in order not to undermine the objectives pursued by Regulation No 1393/2007 [n.n. 2007 Service Regulation], it must be held that that case-law is not applicable where the national court annuls a European order for payment’ for service issues. The solution establish by the German law in Section 1092a ZPO is not precluded by the provisions of the EOP and 2007 Service Regulation; hence, the national court before which the remedy of Section 1092a ZP is requested can annul an EOP.

Between Service Regulation and National Implementation Legislation: Which to Prioritise?

In Bulgarfrukt, the CJEU was tasked with a challenging choice: keeping on its prior case-law establishing that the requirements of the Service Regulation are applicable in EOP procedures, or follow a new path, namely: prioritise the national remedies for invalidly issued declarations of enforceability of EOPs due to service problems. The Court decided to go with the second option. In doing so the Court had to make a distinction between the non-compliance with the minimum standards of service set by Articles 13-15 EOP Regulation and the failure to communicate the standard form set in Annex II of the 2007 Service Regulation.

In making this disjunction, the Court is able to exit the conundrum of which of the two regulations should apply as well as not affecting the mandatory nature of communicating to the recipient the Annex II standard form and the right to refuse the documents served. If the CJEU retained the Service Regulation applicable and ruled the solution of invalidity of the EOP or of the service procedure established by the German legislation as compatible with the provisions of the two regulations, this would have led to a change of the CJEU case-law in relation to service. A failure to communicate the standard form would no longer request only a remedy of the omission by providing the information but could result in an annulment of the documents served. Would such interpretation be applicable only for EOPs or also in case of other procedures? This would have been a problematic development in relation to the service of other type of court procedures.

Furthermore, establishing that a national rule adopted to provide a solution to deal with a situation as that in the eco cosmetics is incompatible with the Service Regulation would set aside the use of such solution based on Article 26 EOP Regulation. The Bulgarfrukt judgment avoided this problematic by deciding that the Service Regulation case-law is not applicable in these circumstances. Furthermore, it allowed to retain a national legislation for the implementation of EOP Regulation that appeared reasonable with the objective the EOP aims to achieve in case the claim is contested. This also permitted the Court to retain the German legislative implementation of the eco cosmetics case-law as consistent with the EOP Regulation.

The irregularity of the service not complying with the minimum standards is sufficient to activate the national mechanism in conjunction with Article 26 EOP Regulation. The downside of this solution is that it can lead to different approaches as to when the Service Regulation is applicable or not. When national legislation annuls the EOP that is not regularly served, the Service Regulation is not applicable. What should the solution be when such national legislation does not set for the annulment of the EOP? Germany seems to be an exception in this regard as most Member States did not adopt specific national legislation following the eco cosmetics judgment. Is the Service Regulation and its case-law to be retained applicable in this second instance? Maybe the CJEU will have other occasions to clarify such hypothesis. The service of EOP in accordance with the minimum standards set by Articles 13-15 EOP Regulation has proven a challenge for national authorities in a number of cases, and Bulgarfrukt is likely not to be the last one in which service issues come up for the CJEU consideration.

Green Light to the German Legislative Implementation of eco-cosmetics

For the time being, the other main contribution of Bulgarfrukt is that it dissipates the doubts concerning the compatibility of the German legislative solution to eco cosmetics judgment and the EOP Regulation. The German case on the implementation is quite unique since it is the only Member State that adopted a specific legislative solution in response to eco cosmetics. For instance, in Luxembourg, the courts fabricated an ad hoc solution by extending by analogy the general appeal remedy foreseen in the Luxembourg civil procedural system against enforceable EOPs which were not served in accordance with the minimum standards of service of the EOP Regulation.

The fact that national law has to provide a solution for the remedy against an enforceable EOP that was not properly served following the minimum standards exposes the need to address this issue within the text of the EOP Regulation. In the event of a reform of the EOP Regulation, the EU legislator should consider introducing a specific remedy for such cases. For example, it could also expressly expand the review mechanism to these specific cases. Such a solution would be in line with what AG Bot defended in his Opinion on eco cosmetics. The existence of a solution within the EOP Regulation is also a guarantee of uniformity, assuring that defendants will have clear access to remedy against enforceable EOPs no matter the Member State in which they apply for an EOP. This would also solve some of the problematic of considering the Service Regulation or not based on the diversity of the national solutions of dealing with a wrongly declared enforceable EOP.