Archive for category: Developments in PIL

The Swedish Labour Court held on 1 June 2022 (interim decision AD 2022 No. 33)  that an industrial action taken in Sweden in sympathy with Ukraine was not lawful as it was not proven that a lawful primary action had taken place in Ukraine according to Ukrainian law on international sympathy actions.

Since Russia invaded Ukraine earlier this year, the Swedish Dockworkers Union has taken industrial action to support Ukraine by refusing to load and unload Russian ships. As the trade union had given notice on a renewed industrial action to support Ukraine in May, the trade union pleaded to the Swedish Labour court that it should declare the industrial action lawful in an interim decision. As there is a collective agreement between the employer and the Swedish Dockworkers Union and consequently a strong mutual peace obligation, industrial actions may only be taken in extraordinary situations. One such extraordinary situation is a sympathy action.

Sympathy actions are lawful even though the collective agreement parties are bound by a collective agreement if the primary action is lawful, and the sympathy action is limited in time. This applies also when the sympathy action is taken in solidarity with someone in another country. In such a situation, the Swedish substantive law assessment is dependent on the content of foreign law even if both parties are Swedish. Another exception are political strikes that trade unions may take to demonstrate a political opinion if it is limited to a short period of time.

In the case, the trade union argued that the planned industrial action was a sympathy action to support Ukrainian and Belarusian trade unions in their industrial actions. According to Swedish labour law, the exception for sympathy actions is applicable also in international situations. The employer objected and stated that there were no lawful primary industrial actions in Ukraine or Belarus. As the Swedish substantive law assessment in this regard is dependent on the content of foreign law, the Labour Court pointed out that the parties had not presented proof of the content of foreign law.

Pursuant to the Swedish procedural code, foreign law is both a matter of fact and a matter of law. It is not subject to the principle of iura novit curia, but the court may use the knowledge it has or research the content of foreign law on its own motion. In the decision, the court seems not to have made any effort to research the content. If it would, it is not self-evident how to assess foreign law or even what law that shall be applied as some of the alleged primary industrial actions were taken in Ukrainian territory occupied by Russia.

After having declared that it was not a sympathy action, the Labour Court held that the planned industrial action was not either a lawful political industrial action as the intended time period of three weeks was too long. Hence, it would have been a disproportionate limitation of the employer’s right to conduct a business.

Due to the summer holiday, July 2022 will be a brief month at the Court in terms of delivery of judgments and opinions and the holding of hearings. Nevertheless, until then we are invited to attend, on Thursday 7th, the hearing in C- 639/21 Geos et Geos International Consulting, a case referred by the Cour de cassation (France), with these questions on the Brussels I bis Regulation:

1. Are Article 4(1) and Article 20(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to be interpreted as meaning that, where it is claimed that a company domiciled in a Member State, and being sued by an employee before the courts of that State, is the joint employer of that employee, who was engaged by another company, that court is not required to assess at the outset whether the employee is jointly employed by those two companies in order to determine whether it has jurisdiction to rule on the claims made against them?
2. Are those articles to be interpreted as meaning that, in such a case, the autonomy of the special rules of jurisdiction over individual contracts of employment does not preclude the application of the general rule that jurisdiction lies with the courts of the Member State in which the defendant is domiciled, set out in Article 4(1) of Regulation No 1215/2012?

The lawsuit at the national level was filed by PB, a former employee of the company Geos International Consulting, established in London, with the conseil de prud’hommes de Montpellier. The core of the matter is the payment of various sums in relation to PB’s dismissal. Alleging a situation of co-employment, PB is seeking to obtain joint and several judgments against the said company and its parent company, Geos, whose head office is located in Puteaux (France). While the conseil de prud’hommes concluded that the French courts had jurisdiction, the Montpellier Court of Appeal arrived at the opposite solution on the basis of Article 21(1) of Regulation No 1215/2012. On appeal, the Court of Cassation is asking about the interpretation of Article 4(1) and Article 20(1) of Regulation No 1215/2012.

The case has been assigned to the 2^nd chamber (judges S. Prechal, J. Passer, F. Biltgen, N. Wahl, and L. Arastey Sahún as reporting judge). It will benefit from an opinion by AG N. Emiliou.

On the same day, the decision on C-7/21 LKW WALTER will be handed down. The preliminary reference comes from the Bezirksgericht Bleiburg (Austria). I reported on the questions here, also announcing the opinion by AG P. Pikämae to be published on March 10, 2022.  There is no English translation so far of his proposal to the Court. An interim one could be:

1. Article 8, sections 1 and 3, of Regulation (EC) No. 1393/2007 (…), in relation to article 47 of the Charter of Fundamental Rights of the Union European Union, must be interpreted in the sense that it does not oppose a national regulation of the sentencing State according to which the term to file an appeal against a resolution materialized in a judicial document notified or transferred in accordance with Regulation (CE) n º 1393/2007 begins to run from the notification or transfer of the document in question, and not only after the expiration of the period of one week, provided for in section 1 of said article, to refuse to accept said document.
2. Article 45, section 1, letter b), and article 46 of Regulation (EU) No. 1215/2012 (…), in relation to article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted in the sense that the recognition and enforcement of a decision that has not been issued in the context of an adversarial procedure must be denied, if the appeal against such decision must be drawn up in a language other than the official language of the Member State in which the defendant resides or, if there are several official languages ​​in that Member State, other than the official language or one of the official languages ​​of the place where he resides, and, according to the law of the Member State in which the decision was issued, the non-extendable period for lodging the appeal is only eight calendar days.
3.  Article 18 TFEU must be interpreted as not applying to a situation in which the addressee of a judicial document has waived his right to refuse to accept service of said document in accordance with Article 8, section 1, of Regulation (EC) No. 1393/2007.

The judgment will be delivered by the 4^th chamber (judges C. Lycourgos, S. Rodin, J.C. Bonichot, L.S. Rossi, with O. Spineanu-Matei as reporting judge)

On Thursday 14^th, the same chamber, this time with judge Rossi reporting, will deliver the judgment on C-572/21, CC. The request comes from the Högsta domstolen (Sweden). It addresses the interpretation of Articles 8 and 61 of the Brussels II bis Regulation:

Does the court of a Member State retain jurisdiction under Article 8(1) of the Brussels II Regulation if the child concerned by the case changes his or her habitual residence during the proceedings from a Member State to a third country which is a party to the 1996 Hague Convention (see Article 61 of the regulation)?

The dispute on the merits concerns a couple – CC and VO-, and its son M, who was born in 2011. CC has had sole custody of M since his birth. M lived in Sweden until October 2019, when he began to attend a boarding school in Russia. Two months later, VO brought an action against CC claiming that he should be awarded sole custody of M. In the alternative, VO requested that he and CC should have joint custody of M and that their son should be permanently resident with him. CC contested the claims. Principally, she claimed on her own behalf that she should continue to have sole custody of M and, in the alternative, that she and VO should have joint custody of the son. In addition, CC claimed that the tingsrätten (District Court, Sweden) should dismiss VO’s action as inadmissible in so far as it concerned custody and residence. In support of the claim that the action was inadmissible, she argued that M was habitually resident in Russia and that the Swedish courts consequently lacked jurisdiction to rule on questions relating to parental responsibility over M. According to CC, M had acquired habitual residence in Russia in October 2019. She claims that, even if he had not acquired habitual residence then, M had, subsequently acquired habitual residence there. VO contested the claim raised by CC that the action was inadmissible. He argued that M was still habitually resident in Sweden and that, in any event, he was habitually resident in Sweden when the action was brought.

Finally, on the same day the Court will publish AG M. Spuznar’s opinion on C-354/21, Registrų centras, on a request sent by the Lietuvos vyriausiasis administracinis teismas (Lithuania) relating to Regulation 650/2012. The facts of the case are summarized here. The question reads:

Must point (l) of Article 1(2) and Article 69(5) of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession be interpreted as not precluding legal rules of the Member State in which the immovable property is situated under which the rights of ownership can be recorded in the Real Property Register on the basis of a European Certificate of Succession only in the case where all of the details necessary for registration are set out in that European Certificate of Succession?

The 5^th chamber (judges E. Regan, I. Jarukaitis, D. Gratsias, Z. Csehi, and M. Ilešič reporting) will take care of the interpretation.

The Swedish Supreme Court held in a decision of 8 April 2022 (case Ö 4651-21) that a defendant domiciled in Denmark can be ordered to produce documents to a Swedish court without assistance or allowance from Danish authorities.

The issue arose in the framework of proceedings for maintenance brought by a daughter in Sweden against her father, based in Denmark. The former asked the court to order that the latter produce such Danish annual tax assessment notices he could access through the Danish tax authority’s web page. When the father refused to produce the notices in question, the district court declined the subpoena on producing documents and ruled on the matter. The court of appeal changed the district court’s decision and held that the father should produce the documents. Against this background, the Swedish Supreme Court granted a review permit for the issue regarding the production of digital documents when the defendant is domiciled abroad.

The Supreme Court explained that, on the basis of sovereignty, the starting point is that a court can only take evidence abroad if the foreign state has approved for it. Hence, a Swedish court is limited to the taking of evidence that can be made in Sweden. In international situations, a Swedish court can ask foreign authorities for assistance in the taking of evidence abroad. Sweden is bound both by the 1970 Hague Evidence Convention and by the 1974 Nordic Evidence Convention. In addition to these conventions, there is also Regulation 1206/2001 on cooperation between the courts of the Member States (except Denmark) in the taking of evidence in civil or commercial matter, which will be replaced by Regulation 2020/1783. According to the Swedish Supreme Court, it is not necessary to apply the international conventions or the EU regulation when the production of documents concern documents available online.

Pursuant to Swedish procedural law, a party possessing a document that supposedly may have importance as evidence must produce the document to the court. The obligation to produce a document is, according to the preparatory works, intended to be of the same extent as the obligation to testify orally before the court. In assessing whether the Danish father could be considered to have possession of the tax assessment notices, the Supreme Court stated that possession for the taking of evidence should be interpreted broadly. In addition to referring to Swedish literature on the procedural code, the Swedish Supreme Court also referred to the requirement for possession as stated in Article 3 of the International Bar Association’s Rules on the Taking of Evidence in International Arbitration (2020) for a broad interpretation of the possession requirement for taking of evidence. The Swedish Supreme Court held that the possession requirement is met for digital documents stored on the internet when a person has an unconditional access to the document.

Even if the order to produce documents available online in fact is extraterritorial, the extraterritorial effect is not judicial, the Supreme Court continued. Therefore, it is irrelevant where the digital information is stored. If the person ordered to produce documents is domiciled abroad and the document is stored abroad, the legal possibility for the Swedish court is limited. Still, in such situations a Swedish court may order someone to produce documents under penalty of a fine just like in domestic situations unless the order forces the obliged person to act contrary to the laws of another country.

This is the second contribution to an online symposium on the ruling of the European Court of Justice, of 20 June 2022, in London Steam-Ship Owners’ Mutual Assistance Association Ltd v Spain. The first post was contributed by Adrian Briggs. Update:other contributions to the symposium have been published in the meanwhile, authored by Antonio Leandro and François Mailhé.

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The most significant consequence of the judgment of the CJEU in London Steam-Ship Owners might be the holding that the courts of the Member States requested to declare enforceable arbitral awards should verify whether the relevant arbitral tribunal respected the rule on lis pendens of the Brussels I bis Regulation.

According to the CJEU, the minimisation of the risk of concurrent proceedings, which that provision is intended to achieve, is one of the objectives and principles underlying judicial cooperation in civil matters in the European Union. Thus, a judgment on an arbitral award rendered in violation of lis pendens does not deserve deference, and should not qualify as a judgment in the meaning of Article 34(3) of the Brussels I Regulation.

Is the Objective of Avoiding Concurrent Proceedings so Essential in the EU?

As pointed out by Adrian Briggs, the CJEU rules that the rule of lis pendens should be applied by the courts of Member States in courts proceedings on arbitral awards. The CJEU suggests, it seems, that those courts should dismiss request to declare enforceable arbitral awards in case the rule on lis pendens would have been violated.

The proposition that the rule of lis pendens is so important that it should be applied by courts in exequatur proceedings of arbitral awards is very hard to reconcile with previous cases of the CJEU where the Court held that the doctrine of lis pendens is not important enough to become a ground for denying enforcement to judgments under the Brussels Regulations (I or II).

In Liberato, the CJEU held that

the rules of lis pendens in Article 27 of Regulation No 44/2001 and Article 19 of Regulation No 2201/2003 must be interpreted as meaning that where, (…) the court second seised, in breach of those rules, delivers a judgment which becomes final, those articles preclude the courts of the Member State in which the court first seised is situated from refusing to recognise that judgment solely for that reason. 

So, the doctrine of lis pendens is not important enough to exclude that a judgment which violated it be enforced in other Member States. Why does the same doctrine suddenly become so much more important in the context of arbitration?

Lis pendens and Jurisdiction Clauses: The New Rules

For the purpose of assessing the consequences of this case, it must be underscored that it was governed by the Brussels 44/2001. At the time, thanks to the (in)famous Gasser case, the rules of lis pendens fully applied to cases involving jurisdiction clauses.

As many readers will know, the rules on lis pendens were amended by the Brussels I Recast to overturn Gasser. Under Article 31(2) of the Brussels I Recast:

Without prejudice to Article 26, where a court of a Member State on which an agreement as referred to in Article 25 confers exclusive jurisdiction is seised, any court of another Member State shall stay the proceedings until such time as the court seised on the basis of the agreement declares that it has no jurisdiction under the agreement.

So, if the judgment in London Steam-Ship Owners is to be understood as extending to arbitration agreements the mandatory rules of the Brussels regime on jurisdiction clauses and lis pendens, then Article 31(2) should give a priority to arbitral tribunals over the courts of Member States which were not chosen by the parties.

The CJEU has opened the Pandora box. Does it contain an obligation for the courts of the Member States to stay proceedings once an arbitral tribunal seated in a Member State is seised?

This is an update on my monthly post on the Court of Justice of the European Union, in order to announce the publication today (Monday 20) of the decision in case C-700/20,  The London Steam-Ship Owners’ Mutual Insurance Association.

I reported on the facts and the questions referred by the High Court of Justice Business and Property Courts of England and Wales, United Kingdom here, but I believe it worth reproducing them again. The main proceedings are based on a dispute between London Steam-Ship Owners’ Mutual Insurance Association Limited (‘the Insurer’), having its registered office in the United Kingdom, and the Kingdom of Spain; it concerns claims for damages arising from the sinking off the coast of Spain of a vessel carrying fuel oil – the Prestige. The insurance contract contained, inter alia, an arbitration agreement governed by English law.

The Kingdom of Spain asserted its rights to receive compensation from the Insurer under the insurance contract, in the context of criminal proceedings instituted in Spain in 2002. Following a first-instance decision in 2013 and several appeals, the Spanish proceedings culminated in a finding that the Insurer was liable for the loss caused by the shipping accident subject to the limitation of liability provided for in the insurance contract. The Spanish court issued an execution order on 1 March 2019. On 25 March 2019, the Kingdom of Spain applied for recognition and enforcement of that order in the United Kingdom in accordance with Article 33 of the Brussels I Regulation. That application was granted. The Insurer appealed against that decision in accordance with Article 43 of the Brussels I Regulation.

The Insurer, for its part, initiated arbitration proceedings in London in 2012. In the resulting award it was established that the Kingdom of Spain would have to initiate arbitration proceedings in London in order to assert claims under the insurance contract. The Commercial Court of the High Court of Justice of England and Wales, before which enforcement of the award was sought under section 66 of the Arbitration Act 1996, entered a judgment in the terms of the award against the Kingdom of Spain in October 2013, which was confirmed on appeal. The Kingdom of Spain took part neither in the arbitration proceedings nor in the judicial proceedings in the United Kingdom.

The referring court asked the Court of Justice the following questions:

(1) Given the nature of the issues which the national court is required to determine in deciding whether to enter judgment in the terms of an award under Section 66 of the Arbitration Act 1996, is a judgment granted pursuant to that provision capable of constituting a relevant “judgment” of the Member State in which recognition is sought for the purposes of Article 34(3) of EC Regulation No 44/2001?

(2) Given that a judgment entered in the terms of an award, such as a judgment under Section 66 of the Arbitration Act 1996, is a judgment falling outside the material scope of Regulation No 44/2001 by reason of the Article 1(2)(d) arbitration exception, is such a judgment capable of constituting a relevant “judgment” of the Member State in which recognition is sought for the purposes of Article 34(3) of the Regulation?

(3) On the hypothesis that Article 34(3) of Regulation No 44/2001 does not apply, if recognition and enforcement of a judgment of another Member State would be contrary to domestic public policy on the grounds that it would violate the principle of res judicata by reason of a prior domestic arbitration award or a prior judgment entered in the terms of the award granted by the court of the Member State in which recognition is sought, is it permissible to rely on Article 34(1) of Regulation No 44/2001 as a ground of refusing recognition and enforcement or do Articles 34(3) and (4) of the Regulation provide the exhaustive grounds by which res judicata and/or irreconcilability can prevent recognition and enforcement of a Regulation judgment?

An opinion by AG Collins was published on May 5, 2022. He proposed the Court of Justice to answer that

“A judgment entered in the terms of an arbitral award pursuant to section 66(2) of the Arbitration Act 1996 is capable of constituting a relevant ‘judgment’ of the Member State in which recognition is sought for the purposes of Article 34(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, notwithstanding that such a judgment falls outside the scope of that regulation by reason of Article 1(2)(d) thereof.”

In practical terms, if followed by the Court of Justice, the Spanish decision would not be recognized in the UK under the Brussels Regulation. Very bad news for the Spanish government and also for all those, many, affected by the heavy oil spill, the worst marea negra ever experienced in Galicia.

The Grand Chamber, with M. Safjan acting as reporting judge, has decided otherwise in a decision already available  in English and French.

On the first and second questions, that she addresses together, the Court of Justice has decided

“Article 34(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 a judgment entered by a court of a Member State in the terms of an arbitral award does not constitute a ‘judgment’, within the meaning of that provision, where a judicial decision resulting in an outcome equivalent to the outcome of that award could not have been adopted by a court of that Member State without infringing the provisions and the fundamental objectives of that regulation, in particular as regards the relative effect of an arbitration clause included in the insurance contract in question and the rules on lis pendens contained in Article 27 of that regulation, and that, in that situation, the judgment in question cannot prevent, in that Member State, the recognition of a judgment given by a court in another Member State.”

And on the third

“Article 34(1) of Regulation No 44/2001 must be interpreted as meaning that, in the event that Article 34(3) of that regulation does not apply to a judgment entered in the terms of an arbitral award, the recognition or enforcement of a judgment from another Member State cannot be refused as being contrary to public policy on the ground that it would disregard the force of res judicata acquired by the judgment entered in the terms of an arbitral award.”

I expect the judgement and its reasoning to be very much commented in academic circles.

For the record, Prof. Adrian Briggs very kindly provided this piece of information in a comment to my post: “So far as concerns C-700/20, it should be noted that on March 1, the Court of Appeal, in The Prestige (No 5) [2022] EWCA Civ 238, ruled that the reference should not have been made as a matter of European law, and (in effect) remitted the matter to the judge with its advice that he should withdraw the reference. On March 31 the Supreme Court gave permission to appeal against the decision of the Court of Appeal.” If I am not wrong, the UKSC decision on the issue will be known this week as well.

On 2 June 2022, the CJEU ruled in Case C-196/21 that courts are not ‘applicants’ in the meaning of Article 5(2) of the 2007 Service Regulation and should thus not bear the costs of translating documents sent to foreign based third parties seeking to intervene in the court proceedings.

The reasons given by the CJEU are quite narrow and formalistic. Unfortunately, the decision does not address broader questions such as whether courts may impose translation of documents that they intend to serve, and whether third parties applying for intervening in judicial proceedings may benefit from a right to translation.

Background

Two parents who, it seems, were both residents in Romania, started proceedings in Romania for the dissolution of the marriage and various issues relating to parental responsibility over their child.

During the proceedings, various members of the family (siblings of the child, paternal grand father) residing in France applied for leave to intervene in the proceedings in support of the husband/father of the child.

The issue arose as to whether certain judicial documents to be served on the interveners by the court ought to be translated in French, and most importantly who should pay for it.

Burden of Translation Costs

Art. 5(2) of the 2007 Service Regulation, which has now become Article 9(2) the 2020 Service Regulation Recast, provides:

1.   The applicant shall be advised by the transmitting agency to which he forwards the document for transmission that the addressee may refuse to accept it if it is not in one of the languages provided for in Article 8.

2.   The applicant shall bear any costs of translation prior to the transmission of the document, without prejudice to any possible subsequent decision by the court or competent authority on liability for such costs.

In this case, the Romanian court had ruled that the parties to the original proceedings (ie the parents of the child) should bear the costs of translating the documents to be served on the interveners. The parents refused, and argued that they were no “applicant” in the meaning of Art. 5(2), but that the court was the “applicant”, since it had ordered transmission of the relevant documents to the addressees (here, the interveners).

Decision of the CJEU

The CJEU rules that a court cannot be considered as “the applicant” in the meaning of Art. 5(2).

The CJEU puts forward a number of arguments based on the wording of the Service Regulation, which distinguishes between courts and applicants.

It also refers to legislative history, and points to the explanatory report to the 1997 Service Convention, which stated with respect to a similar provision:

“applicant” means in all cases the party interested in transmission of the document. It therefore cannot refer to the courts.

Finally, the CJEU explains that courts are responsible for ensuring fairness of the service process, and that it would be weird if they were themselves applicants, as they would not be impartial in serving this function.

Assessment

This decision is a bit surprising in the narrowness of its focus. One wonders whether the most important issues raised by the case were not missed.

First, there is no obligation to translate documents under the Service Regulation. Art 5(2) addresses the issue of the burden of the costs of translation if the applicant chooses to translate the relevant document. The applicant is free to serve judicial documents without any translation, as the addressee may never use his right to refuse service on the ground of language. In this case, it seems likely that the addressees were all Romanian emigrés, and it may well be that they did not need any translation. So the first problem in this case was that the Romanian court had decided to impose immediate translation, and then was looking for someone to pay.

Indeed, isn’t the rationale of Art. 5(2) to put the burden of paying the costs of translation on anybody insisting on such translation at a stage where it is unclear whether it will be needed? In other words, Art 5(2) aims at avoiding an externality. It was much easier for the Romanian court to impose the (non existing) obligation in the first place if it knew it would not pay it.

The second issue raised by this case is that the ‘addressee’ was a third party applying to intervene in foreign proceedings. The critical question was therefore whether a party choosing to participate in judicial proceedings (as opposed to a defendant) should have any right of receiving a translation of judicial documents, and if so whether it would extend to documents exchanged by the original parties beforehand.

June 2022 starts at the Court of Justice with the publication of two decisions of PIL interest this Thursday, 2 June.

The first one, in case C-617/20, T.N. and N.N., focuses on the interpretation of Articles 13 and 28 of the EU Succession Regulation. The Hanseatisches Oberlandesgericht in Bremen (Germany), sent the following questions to the Court of Justice:

1. Does a declaration concerning the waiver of succession by an heir before the court of a Member State that has jurisdiction for the place of his or her habitual residence, which complies with the formal requirements applicable there, replace the declaration concerning the waiver of succession to be made before the court of another Member State that has jurisdiction to rule on the succession, in such a way that when that declaration is made, it is deemed to have been validly made (substitution)?
2. If Question 1 is to be answered in the negative: In addition to making a declaration before the court that has jurisdiction for the place of habitual residence of the party waiving succession which complies with all formal requirements, is it necessary, in order for the declaration concerning the waiver of succession to be valid, that the latter inform the court that has jurisdiction to rule on the succession that the declaration concerning the waiver of succession has been made?

3. If Question 1 is to be answered in the negative and Question 2 in the affirmative:

a. Is it necessary that the court that has jurisdiction to rule on the succession be addressed in the official language of the location of that court in order for the declaration concerning the waiver of succession to be valid and, in particular, in order to comply with the time limits applicable for making such declarations before that court?

b. Is it necessary that the court that has jurisdiction to rule on the succession receive the original documents drawn up in relation to the waiver by the court that has jurisdiction for the place of habitual residence of the party waiving succession and a translation thereof in order for the declaration concerning the waiver of succession to be valid and, in particular, in order to comply with the time limits applicable for making such declarations before the court that has jurisdiction to rule on the succession?

On 20 January 2022, Advocate General Szpunar had proposed to answer (the Opinion is not yet available in English) :

Articles 13 and 28 of Regulation (EU) No. 650/2012 (…) must be interpreted in the sense that the requirement, provided for in the law applicable to the succession, to submit the declaration regarding the waiver of succession to the competent court, that is to say the court of the habitual residence of the deceased at the time of death, constitutes a condition for the formal validity of the declaration. Therefore, in the event that the formal validity of said declaration is assessed in light of the law indicated in article 28, letter b), of the Regulation, non-compliance with that requirement does not entail invalidity of a statement made before the competent court pursuant to article 13 of Regulation No. 650/2012.

The deciding Chamber is composed by M. Ilešič (reporting judge) E. Regan, I. Jarukaitis, D. Gratsias, and Z. Csehi.

Also on 2 June 2022, a chamber of three judges (J. Passer, N. Wahl, and L. Arastey Sahún, the latter as reporting judge) will handle the judgment on case C-196/21, SR (Frais de traduction dans une procédure civile). The request for a preliminary reference, from the Tribunalul Ilfov (Romania), originates in a dispute concerning family and maintenance matters. The question arouse who has to bear the cost of translating into French the summonses or orders issued by the court with a view to service upon the interveners in the national proceedings: hence the need for the interpretation of Article 5(2) of the Service Regulation.

The next PIL hit of this month will be the hearing in C-291/21, Starkinvest, on Thursday 16, at 9.30. The background of the referral is a Belgian judgement ordering the Dublin-based company Soft Paris Parties Ltd, subject to a penalty payment of EUR 2 500 per breach, to cease all sales of products and services in the Benelux countries under a certain word mark. Some months after the judgment was served on the debtor, the claimant (Starkinvest Srl) issued an order for payment in the sum of EUR 86 694.22, which included EUR 85 000 in penalty payments. Starkinvest Srl has asked the Belgian court to make a European Account Preservation Order in the principal amount of EUR 85 000, over such sums as may be held in a French bank account of Soft Paris Parties Ltd.

For the referring court, it is unclear whether Starkinvest Srl is relying on an instrument ‘requiring the debtor to pay the creditor’s claim’ within the meaning of Article 7[(2)] of the EAPO Regulation. In addition, it has reservations based on Article 4 of the Regulation. According to the provision, a ‘claim’ is defined as ‘a claim for payment of a specific amount of money that has fallen due or a claim for payment of a determinable amount of money arising from a transaction or an event that has already occurred, provided that such a claim can be brought before a court’; in light of it, the question arises whether, bearing in mind that while the principle and basic amount of a penalty payment are established by judgment, the amount payable depends on possible future breaches by the debtor, such a payment can be regarded as a ‘claim’ in that sense. The national court has referred these questions to the Court of Justice :

1. Does a judgment which has been served, ordering a party to make a penalty payment in the event of breach of a prohibitory order, constitute a decision requiring the debtor to pay the creditor’s claim within the meaning of Article 7(2) of Regulation No 655/2014 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order procedure?
2. Does a judgment ordering a party to make a penalty payment, although enforceable in the country of origin, fall within the meaning of ‘judgment’ in Article 4 of Regulation No 655/2014 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order where there has been no final determination of the amount in accordance with Article 55 of Regulation 1215/12 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters?

Advocate General Szpunar will announce the date of delivery of his opinion at the end of the hearing. The Chamber in charge is composed by judges A. Prechal, J. Passer, N. Wahl, L. Arastey Sahún and F. Biltgen, with the latter acting as reporting judge.

The same Chamber has been appointed to adjudicate in case C-265/21, AB and AB-CD (Titre de propriété sur des oeuvres d’art), with the support of Advocate General Szpunar’s opinion, which will be published the same day (i.e., Thursday 16).

The request addresses the interpretation of ‘contract’ under Article 5 of the Brussels I Regulation, and in the Rome I Regulation. The national proceedings concern an action seeking the recognition of a title of ownership of works of art based on a double contract of sale, the first between the defendant and a seller and the second between this seller and the plaintiff. The referring court is at a loss regarding which the contract to consider in order to determine the place of obligation serving as the basis for the request, and to ascertain the substantive rules applicable to the merits:

1. Must the concept of ‘matters relating to a contract’, within the meaning of Article 5(1) of Regulation No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (‘the Brussels I Regulation’):

a. be interpreted as requiring the establishment of a legal obligation freely assumed by one person towards another, which forms the basis of the applicant’s action, and is that the position even if the obligation was not freely assumed by the defendant and/or towards the applicant?

b. If the answer is in the affirmative, what must the degree of connection between the legal obligation freely assumed and the applicant and/or the defendant be?

2. Does the concept of ‘action’ on which the applicant ‘relies’, like the criterion used to distinguish whether an action comes under the concept of matters relating to a contract, within the meaning of Article 5(1) of the Brussels I Regulation, or under ‘matters relating to tort, delict or quasi-delict’, within the meaning of Article 5(3) of that regulation (C‑59/19, paragraph 32), entail verification of whether the interpretation of the legal obligation freely assumed seems to be indispensable for the purpose of assessing the basis of the action?

3. Does the legal action whereby an applicant seeks a declaration that he or she is the owner of an asset in his or her possession in reliance on a double contract of sale, the first entered into by the original joint owner of that asset (the spouse of the defendant, who is also an original joint owner) with the person who sold the asset to the applicant, and the second between the latter two parties, come within the concept of matters relating to a contract within the meaning of Article 5(1) of the Brussels I Regulation?

a. Is the answer different if the defendant relies on the fact that the first contract was not a contract of sale but a contract of deposit?

b. If one of those situations comes within the concept of matters relating to a contract, which contract must be taken into consideration for the purpose of determining the place of the obligation which serves as the basis of the claim?

4. Must Article 4 of Regulation (EC) No 593/2008 of 17 June 2008 on the law applicable to contractual obligations (Rome I) be interpreted as applying to the situation referred to by the third question referred for a preliminary ruling and, if so, which contract must be taken into consideration?

On 29 April 2022, Germany instituted proceedings before the International Court of Justice against Italy for allegedly failing to respect its jurisdictional immunity as a sovereign State by allowing civil claims to be brought against Germany based on violations of international humanitarian law committed by the German Reich between 1943 and 1945.

The First Jurisdictional Immunities Case (2008-2012)

More than ten years have passed since the International Court of Justice rendered its judgment in the case of the Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening). The Court was asked then to determine whether, in civil proceedings against Germany relating to acts committed by the Third Reich during the Second World War (such as deportation and forced labour), the Italian courts were obliged to accord Germany immunity.

In its judgment of 3 February 2012, the Court held that the action of the Italian courts in denying Germany immunity constituted a breach of Italy’s international obligations.

The International Court of Justice explained that, under customary international law as it presently stood, a State was not deprived of immunity by reason of the fact that it was accused of serious violations of international human rights law or the international law of armed conflict.

The New Proceedings

The 2022 proceedings, as stated in the application filed by Germany, arise from the fact that Italian domestic courts, notwithstanding the 2012 judgment, “have entertained a significant number of new claims against Germany in violation of Germany’s sovereign immunity”.

On 7 April 2022, the Court will deliver the judgment in C-568/20, H Limited. The request, with three questions, was lodged in November 2020 by the Oberster Gerichtshof (Austria); it concerns the interpretation of several provisions of Chapter III of the Brussels I bis Regulation, in addition to its Article 2(a). The dispute on the merits focuses on the enforcement of an order based on a decision of the High Court of Justice, Business and Property Courts of England & Wales, Commercial Court (QBD). AG Pikamäe’s opinion, published on December 16, 2021, proposed the following answers to the CJEU:

Articles 45 and 46 of [the Brussels I bis Regulation] should be interpreted as meaning that the court of the Member State addressed, to which an application for refusal of enforcement is made, may grant that application on the grounds that the judgment and the certificate, provided for in Article 53 of that regulation, adopted by the court of the Member State of origin breach the public policy of the Member State addressed, where the error of law relied upon constitutes a manifest breach of a rule of law regarded as essential in the legal order of the European Union and therefore in the legal order of that State. This is the case of an error affecting the application of Article 2(a) and Article 39 of that regulation requiring that the judgment of which enforcement is sought be given in a Member State.

When reviewing whether there has been a manifest breach of public policy in the Member State addressed through failure to comply with a substantive or procedural rule of EU law, the court of that State must take account of the fact that, save where specific circumstances make it too difficult or impossible to exercise the legal remedies in the Member State of origin, the individuals concerned must avail themselves of all the legal remedies available in that Member State with a view to preventing such a breach before it occurs.

The reporting judge is M. Safjan.

The decision on C-645/20, V A et Z A , is scheduled for the same day. The French Court of Cassation had addressed to the Court a single question on the interpretation of Article 10(1)(a) of the Succession Regulation, lodged in December 2020. AG M. Campos Sánchez-Bordona had suggested to reply as follows:

Article 10(1)(a) of [the Succession Regulation] must be interpreted as meaning that, in the case where the deceased did not have his last habitual residence in any Member State of the European Union, the court of a Member State in which a dispute in a matter of succession has arisen must declare of its own motion that it has jurisdiction to settle the succession as a whole if, in the light of facts alleged by the parties which are not in dispute, the deceased was a national of that State at the time of his death and was the owner of assets located there.

M. Ilešič was appointed reporting judge.

Easter vacation imposes a break on the publication of decisions and opinions. For PIL purposes, the next one will be the opinion of AG M. Richard de la Tour in C- 604/20 ROI Land Investments, a request from the Bundesarbeitsgericht (Germany), lodged on November 2020. The questions referred concern both jurisdiction and applicable law (the Rome I Regulation) in employment and (maybe, or) consumer matters:

1. Is Article 6(1) read in conjunction with Article 21(2) and Article 21(1)(b) of [the Brussels I bis Regulation] to be interpreted as meaning that an employee can sue a legal person – which is not his employer and which is not domiciled in a Member State within the meaning of Article 63(1) of the [Regulation] but which, by virtue of a letter of comfort, is directly liable to the employee for claims arising from an individual contract of employment with a third party – in the courts for the place where or from where the employee habitually carries out his work in the employment relationship with the third party or in the courts for the last place where he did so, if the contract of employment with the third party would not have come into being in the absence of the letter of comfort?
2. Is Article 6(1) of the [Brussels I bis Regulation] to be interpreted as meaning that the reservation in respect of Article 21(2) of the [the same Regulation] precludes the application of a rule of jurisdiction existing under the national law of the Member State which allows an employee to sue a legal person, which, in circumstances such as those described in the first question, is directly liable to him for claims arising from an individual contract of employment with a third party, as the ‘successor in title’ of the employer in the courts for the place where the employee habitually carries out his work, if no such jurisdiction exists under Article 21(2) read in conjunction with Article 21(1)(b)(i) of the [Regulation]?
3. If the first question is answered in the negative and the second question in the affirmative:

(a) Is Article 17(1) of the [Brussels I bis Regulation] to be interpreted as meaning that the concept of ‘professional activities’ includes paid employment in an employment relationship?

(b) If so, is Article 17(1) of the [Brussels I bis Regulation] to be interpreted as meaning that a letter of comfort on the basis of which a legal person is directly liable for claims of an employee arising from an individual contract of employment with a third party constitutes a contract concluded by the employee for a purpose which can be regarded as being within the scope of his professional activities?

4. If, in answer to the above questions, the referring court is deemed to have international jurisdiction to rule on the dispute:

(a) Is Article 6(1) of [the Rome I Regulation] to be interpreted as meaning that the concept of ‘professional activities’ includes paid employment in an employment relationship?

(b) If so, is Article 6(1) of the Rome I Regulation to be interpreted as meaning that a letter of comfort on the basis of which a legal person is directly liable to an employee for claims arising from an individual contract of employment with a third party constitutes a contract concluded by the employee for a purpose which can be regarded as being within the scope of his professional activities?

The delivery is expected on 28 April 2022. M. Safjan will be the reporting judge.

Mathilde Codazzi, who is a master student at the university Paris II Panthéon-Assas, contributed to this post.

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In a judgment of 3 November 2021, the French Supreme Court for private and criminal matters (Cour de cassation) confirmed the evolution of the French law of Sovereign Immunities after a statutory intervention in 2016 and its alignment on the 2004 UN Convention on Jurisdictional Immunities.

Background

A Dutch judgment from 27 September 2000 ordered a public Iraqi company, Rasheed Bank, to pay various amounts to Citibank, an American company. On this ground, Citibank carried out a protective measure on Rasheed Bank’s accounts in France, which was later converted into an attachment procedure after the Dutch judgment was declared enforceable by French courts. The Iraqi company seized French courts to challenge the conversion.

Issues

There were two main issues arising in this case:

• Whether Article 19 of the UN Convention on Jurisdictional Immunities required a connection between the assets attached and the claim, in addition to a connection between the goods and the entity against which the claim was brought, and
• Whether the creditor had to prove that the State voluntarily intended to allocate its property to a government non-commercial purpose,

Article 19(c) of the United Nations Convention on Jurisdictional Immunities of States and their Property (2004) provides that post-judgment measures of constraint may only be taken if and to the extent that (…) “it has been established that the property is specifically in use or intended for use by the State for other than government non-commercial purposes and is in the territory of the State of the forum, provided that post-judgment measures of constraint may only be taken against property that has a connection with the entity against which the proceeding was directed”.

Court of Appeal

In a judgment of 17 October 2019, the Paris Court of Appeal upheld the conversion of the protective measure into an attachment procedure. After recalling the content of Article 19 of the UN Convention on Jurisdictional Immunities, the Court of Appeal ruled that there must be a connection between the assets attached, which must be linked to a private law transaction, and the entity against which the claim was brought. It then ruled that requiring a connection between the assets attached and the claim would be contrary to Article 6(1) of the ECHR and the right of access to justice, as it would disproportionately infringe the creditor’s right to enforce judgments, without pursuing a legitimate purpose.

The Court of Appeal also held that Article 19 of the UN Convention on Jurisdictional Immunities does not require the creditor to demonstrate the State’s will to allocate the attached assets to a commercial purpose. It recalled the principle of unattacheability of State assets and that the burden of proof lies on the creditor, before finding that in light of the circumstances, the assets deposited on the accounts were to be allocated to ends other than government non-commercial purposes: the cash-deposit account was opened at a time where Rasheed Bank presented itself as independent from the Iraqi State and frequently performed commercial transactions, a use that cannot have changed since due to the freezing of Iraqi assets in 1990.

Rasheed Bank challenged this judgment on several grounds.

First, it argued that although Article 19 of the UN Convention on Jurisdictional Immunities does not require a connection between the attached assets and the creditor’s claim to allow the seizure, it does not prohibit it either. According to the Iraqi public company, the Court of Appeal failed to give adequate reasons by ruling that requiring a link between the attached assets and the claim was contrary to Article 6(1) of the ECHR. Rasheed Bank claimed that since the UN Convention of Jurisdictional Immunities reflects customary international law, the Court of Appeal could not rule the requirement of a connection between the attached assets and the claim contrary to Article 6(1) of the ECHR without first verifying whether requiring this connection would be contrary to customary international law. It also sustained that the right to have access to justice of Article 6(1) ECHR may be restricted by a limitation whose purpose is legitimate and which is proportionate to this purpose; according to Rasheed Bank, the Court of Appeal’s reasoning lacks a legal basis as it failed to indicate how requiring a connection between the attached assets and the claim would infringe the creditor’s right to enforce judgments without pursuing a legitimate purpose.

Second, Rasheed Bank argued that by virtue of customary international law, in order to attach specifically used assets or assets used for other than government non-commercial purposes, the creditor must demonstrate the will of the State or of its emanation to allocate the attached assets to a commercial purpose.

Supreme Court

The Supreme Court upheld entirely the judgment of the Court of Appeal.

It ruled that customary international law, as codified by Article 19 of the UN Convention on Jurisdictional Immunities, provides that apart from the situations where the State has expressly consented to post-judgment measures of constraint or allocated or earmarked property for the satisfaction of the claim, his property or that of its emanations located on the territory of the forum may only be seized, pursuant to a judgment or an arbitral award, if it is “specifically in use or intended for use by the State for other than government non-commercial purposes” and have “a connection with the entity against which the proceeding was directed”. Hence the Supreme Court found that the Court of Appeal had rightly ruled that the taking of post-judgment enforcement measures does not require a connection between the attached assets and the claim: they must only be connected to the entity against which the measures are carried out.

The Supreme Court also ruled that the Court of Appeal rightly inferred from the circumstances that the assets were not destined to a government non-commercial use, without shifting the burden of proof. It held that the account seized, because it was opened in the course of commercial transactions, was by nature intended to serve  ends other than non-commercial purposes.

Assessment

The judgment must be viewed in the light of the recent reform of the French law of sovereign immunities.

Until 2016, the French law of immunities was entirely judge made. The leading case was Eurodif, where the Cour de cassation had ruled in 1984 that the scope of the immunity of enforcement of foreign states extended to all assets which did not have a connection with the commercial activity which gave rise to the claim. In other words, a claim arising from the trade of grain by a state could not be satisfied on assets affected to the oil activities of a state.

In 2016, the French Parliament adopted statutory provisions replicating Article 19 of the UN Convention on Jurisdictional Immunities. These provisions are found in the French Code of civil enforcement proceedings (Code des procédures civiles d’exécution), in particular in Art. L. 111-1-2.

This case, however, did not fall within the temporal scope of these statutory provisions. This likely explains why the Court did not simply refer to them (as the Court of Appeal had), but rather applied directly Article 19 as customary international law. While many provisions of the Convention certainly reflect customary international law, whether Article 19 actually does is unclear, but the Cour de cassation has long shown that it has no intention of embarking into any nuanced analysis in this respect.

They key question arising in this case was whether Article 19 necessarily excludes the rule in Eurodif. The argument of the appeal was that Article 19 was silent, and thus neutral in this respect, and that the Court could have kept this long standing requirement. The argument is rejected, and the court rules that the old requirement of a connection between the attached assets and the claim is obsolete.

In March 2022 the Court of Justice will publish three judgments and three opinions.

Judgments

The decisions correspond to cases C-421/20, Acacia (3 March), C-498/20, BMA Nederland (9 March), and C-723/20, Galapagos BidCo (24 March).

Case C-421/20, Acacia, is a request for a preliminary ruling from the Oberlandesgericht Düsseldorf in a case opposing Bayerische Motoren Werke Aktiengesellschaft against an Italian company, Acacia S.R.L. The defendant manufactures rims for motor vehicles in Italy and sells them throughout the European Union. In Germany, it markets rims under the name ‘WSP Italy’, including the ‘Neptune GT’ model. The claimant considers that the distribution of the rims in Germany by the defendant constitutes an infringement of its Registered Design, whereas the defendant invokes the repair clause in Article 110 of the Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (Community Designs Regulation, CDR). The questions referred concern both the international jurisdiction and the applicable law, and require the interpretation of provisions of the CDR and of the Rome II Regulation:

1. In proceedings for an infringement of Community designs, can the national court dealing with the infringement proceedings having international jurisdiction pursuant to Article 82(5) of the CDR apply the national law of the Member State in which the court dealing with the infringement proceedings is situated (lex fori) to subsequent claims in relation to the territory of its Member State?
2. If Question 1 is answered in the negative: Can the ‘initial place of infringement’ for the purposes of the CJEU judgments in Cases C‑24/16, C‑25/16 (Nintendo v BigBen) regarding the determination of the law applicable to subsequent claims under Article 8(2) of Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (‘Rome II’) (‘the Rome II Regulation’) also lie in the Member State where the consumers to whom internet advertising is addressed are located and where goods infringing designs are put on the market within the meaning of Article 19 of the CDR, in so far as only the offering and the putting on the market in that Member State are challenged, even if the internet offers on which the offering and the putting on the market are based were launched in another Member State?

Advocate General M. Szpunar had published his opinion in October 2021. No English version is available so far. My translation would be the following:

‘Article 1(1) of Regulation (EC) No. 864/2007 (…) and Article 88 (2) as well as Article 89 (1) (d) of Council Regulation (EC) No. 6/2002 (…) are to be interpreted as meaning that a case in which a court of a Member State is seized pursuant to Article 82(5) of the latter Regulation of an infringement action by a right holder resident in this State against an infringer resident in another Member State, which concerns the offer for sale and the placing on the market of the goods in question in the first Member State, there is a connection to the law of different States within the meaning of Art 1(1) of Regulation No. 864/2007 and, consequently, Article 8(2) of that regulation determines the law applicable to subsequent claims relating to the territory of that Member State.

Article 8(2) of Regulation No 864/2007 must be interpreted as meaning that the term “[country] in which the act of infringement was committed” within the meaning of that provision, insofar as it relates to the determination of the infringement action subsequent claims asserted, relates to the country in which the original infringing act on which the conduct reproached is based was committed.’

The judgment will be adopted by the fifth chamber – E. Regan, K. Lenaerts, C. Lycourgos (as reporting judge), I. Jarukaitis and M. Ilešič.

Case C-498/20, BMA Nederland, was referred to the Court of Justice by the Rechtbank Midden-Nederland. The applicant in the main dispute is ZK, in his capacity as successor to JM, liquidator in the bankruptcy of BMA Nederland BV (‘BMA NL’); the defendant is BMA Braunschweigische Maschinenbauanstalt AG (‘BMA AG’). Stichting Belangbehartiging Crediteuren BMA Nederland acts as intervening party.

In the main proceedings, the liquidator seeks a declaration that BMA AG has breached its duty of care towards the general body of creditors of its sub-subsidiary – the bankrupt company BMA N L- ; that it has thereby acted unlawfully; and that it is liable for the damage suffered by the general body of creditors. In addition, he seeks a declaration that BMA AG is obliged to pay to the estate of BMA NL, for the benefit of the general body of creditors, damages equal to the non-recoverable part of the claims of the general body of creditors against BMA NL.

The Stichting seeks a declaration that BMA AG has acted unlawfully (i) towards all the creditors involved in the bankruptcy of BMA NL, (ii) towards the creditors who relied on BMA NL’s having fulfilled its obligations towards them, since BMA AG was supposed to provide BMA NL with adequate financing for that purpose, (iii) or towards the creditors who could have taken measures to prevent their claims against BMA NL from remaining unpaid had they been aware in advance of the cessation of further financing by BMA AG. The Stichting also claims that BMA AG should be ordered as a third party to pay to each of BMA NL’s creditors, at its first request, the entire amount (including interest) owed by BMA NL to that creditor.

The national court asks the following sets of questions to the Court of Justice:

Question 1

(a) Must the term ‘place where the harmful event occurred’ in Article 7, point 2, of Regulation (EU) No 1215/2012 [Brussels I bis] be interpreted as meaning that ‘the place of the event giving rise to the damage’ (Handlungsort) is the place of establishment of the company which offers no redress for the claims of its creditors, if that lack of redress is the result of a breach by that company’s grandparent company of its duty of care towards those creditors?

(b) Must the term ‘place where the harmful event occurred’ in Article 7, point 2, of the [Brussels I bis Regulation] be interpreted as meaning that ‘the place where the damage occurred’ (Erfolgsort) is the place of establishment of the company which offers no redress for claims of its creditors, if that lack of redress is the result of a breach by that company’s grandparent company of its duty of care towards those creditors?

(c) Are additional circumstances required which justify the jurisdiction of the courts of the place of establishment of the company which offers no redress and, if so, what are those circumstances?

(d) Does the fact that the Netherlands liquidator of the company which offers no redress for the claims of its creditors has, by virtue of his statutory duty to wind up the estate, made a claim for damages arising from tort/delict for the benefit of (but not on behalf of) the general body of creditors affect the determination of the competent court on the basis of Article 7, point 2, of the [Brussels I bis Regulation]? Such a claim implies that there is no room for an examination of the individual positions of the individual creditors and that the third party concerned cannot avail itself of all the defences against the liquidator which it might have been able to use in respect of certain individual creditors.

(e)     Does the fact that a portion of the creditors for whose benefit the liquidator makes the claim have their domicile outside the territory of the European Union affect the determination of the competent court on the basis of Article 7, point 2, of the [Brussels I bis Regulation]?

Question 2

Would the answer to Question 1 be different in the case of a claim made by a foundation which has as its purpose the protection of the collective interests of creditors who have suffered damage as referred to in Question 1? Such a collective claim implies that the proceedings would not determine (a) the domiciles of the creditors in question, (b) the particular circumstances giving rise to the claims of the individual creditors against the company and (c) whether a duty of care as referred to above exists in respect of the individual creditors and whether it has been breached.

Question 3

Must Article 8, point 2, of the [Brussels I bis Regulation] be interpreted as meaning that, if the court seised of the original proceedings reverses its decision that it has jurisdiction in respect of those proceedings, such a reversal also automatically excludes its jurisdiction in respect of the claims made by the intervening third party?

Question 4

(a) Must Article 4(1) of Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations [Rome II Regulation] be interpreted as meaning that ‘the place where the damage occurs’ is the place where the company which offers no redress for the damage suffered by its creditors as a result of the breach of the duty of care referred to above has its registered office?

(b) Does the fact that the claims have been made by a liquidator by virtue of his statutory duty to wind up the estate and by a representative of collective interests for the benefit of (but not on behalf of) the general body of creditors affect the determination of that place?

(c) Does the fact that some of the creditors are domiciled outside the territory of the European Union affect the determination of that place?

(d) Is the fact that there were financing agreements between the Netherlands bankrupt company and its grandparent company which nominated the German courts as the forum of choice and declared German law to be applicable a circumstance which makes the alleged tort/delict of BMA AG manifestly more closely connected with a country other than the Netherlands within the meaning of Article 4(3) of the Rome II Regulation?

The opinion of Advocate General M. Campos Sánchez-Bordona was requested only in relation to the fourth question. In order to answer it he addressed as well the exclusion of non-contractual obligations arising out of the law of companies from the scope of Regulation Rome II under its Article 1(2)(d). I provide here a non-official translation into English:

Article 1(2)(d) of the Rome II Regulation must be interpreted in the sense that it excludes from its scope of application the non-contractual obligations resulting from the infringement of the duty of diligence of partners or administrators when the law attributes the responsibility before third parties, derived from said infraction, to the partners or administrators for company law-related reasons. By contrast, liability arising from a breach of the generic duty of care is not excluded from the scope of the Regulation.

Article 4 (1), of the Rome II Regulation must be interpreted in the sense that the country where the damage occurs is the one where a company has its domicile, when the damage suffered by its creditors is the indirect consequence of economic losses initially suffered by the company itself. The circumstance that the actions are brought by a bankruptcy administrator in his capacity as insolvency liquidator, or by an entity for the defence of collective interests, in favour (but not on behalf) of all the creditors, is without incidence on the ascertainment of such a country. The domicile of some creditors outside the European Union is equally irrelevant.

Article 4(3) of the Rome II Regulation is to be interpreted as meaning that a pre-existing relationship between the tortfeasor and the direct victim (such as, for example, a financing agreement, for which the parties have chosen the applicable law) is an element to be weighed together with the rest of the circumstances, in order to establish whether there is, between the harmful event and a certain country, a manifestly closer connection than that of the same event and the country whose law would apply under Articles 4(1) and (2).

Judges N. Jääskinen, N. Piçarra and M. Safjan (reporting judge) will adjudicate.

The ruling in C-723/20, Galapagos BidCo, will be one delivered by a chamber of five judges (E. Regan, I. Jarukaitis acting as reporting judge, M. Ilešič, D. Gratsias and Z. Csehi), without a previous opinion. The case is pending before the Bundesgerichtshof (Germany), which has referred the following questions in relation to Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (the new insolvency regulation):

1. Is Article 3(1) of Regulation (EU) 2015/848 to be interpreted as meaning that a debtor company the statutory seat of which is situated in a Member State does not have the centre of its main interests in a second Member State in which the place of its central administration is situated, as can be determined on the basis of objective factors ascertainable by third parties, in the case where, in circumstances such as those in the main proceedings, the debtor company has moved that place of central administration from a third Member State to the second Member State at a time when a request to have the main insolvency proceedings opened in respect of its assets has been lodged in the third Member State and a decision on that request has not yet been delivered?
2. If Question 1 is answered in the negative: Is Article 3(1) of Regulation (EU) 2015/848 to be interpreted as meaning that:

(a)     the courts of the Member State within the territory of which the centre of the debtor’s main interests is situated at the time when the debtor lodges the request to have insolvency proceedings opened retain international jurisdiction to open those proceedings if the debtor moves the centre of its main interests to the territory of another Member State after lodging the request but before the decision opening insolvency proceedings is delivered, and

(b)     such continuing international jurisdiction of the courts of one Member State excludes the jurisdiction of the courts of another Member State in respect of further requests to have the main insolvency proceedings opened received by a court of that other Member State after the debtor has moved its centre of main interests to that other Member State?

Opinions

Let’s move now to the three opinions.

The one of Advocate General P. Pikamäe in case C-7/21, LKW WALTER, is expected on Thursday 9. The  questions come from the Bezirksgericht Bleiburg (Austria), on a case involving LKW WALTER internationale Transportorganisation AG, a company registered in the Austrian commercial register which operates in the field of international carriage of goods, and several defendants. The applicant is claiming EUR 22 168.09 plus interest and costs from the defendants on the ground of lawyers’ liability, because the defendants had failed to comply with the time limit to lodge in Slovenia an objection against a Slovenian decision on enforcement served on the applicant.

It is in those proceedings that the request for a preliminary ruling is made:

1.  Are Articles 36 and 39 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union and the principles of effectiveness and equivalence (principle of sincere cooperation under Article 4(3) TEU), to be interpreted as precluding a provision of a Member State which provides for, as the sole remedy against a decision on enforcement issued by the court without prior adversarial proceedings and without an instrument permitting enforcement, and solely on the basis of the allegations of the party seeking enforcement, an objection, which must be lodged within eight days in the language of that Member State, even if the decision on enforcement is served in another Member State in a language which the addressee does not understand, and the objection is already rejected as being out of time if it is lodged within twelve days?
2.  Is Article 8 of Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service of documents, read in conjunction with the principles of effectiveness and equivalence, to be interpreted as precluding a national measure which provides that, upon service of the standard form set out in Annex II informing the addressee of his or her right to refuse to accept the document within a period of one week, the period also begins to run in respect of bringing the appeal provided for against the decision on enforcement served at the same time, for which a period of eight days is laid down?
3. Is Article 18(1) of the Treaty on the Functioning of the European Union to be interpreted as precluding a provision of a Member State which provides for, as the remedy against a decision on enforcement, an objection, which must be lodged within eight days, and that time limit also applies where the addressee of the decision on enforcement is established in another Member State and the decision on enforcement is not written either in the official language of the Member State in which the decision on enforcement is served or in a language which the addressee of the decision understands?

One week later – thus, on Thursday 17-, M. J. Richard de la Tour will deliver his opinion in C-604/20, ROI Land Investments, a request from the Bundesarbeitsgericht (Germany). In the main proceedings, the defendant is a company operating in the real estate sector; the seat of its central administration is in Canada. The applicant, domiciled in Germany , had been working for the defendant on the basis of a ‘service agreement’ since the end of September 2015. As the parties felt that there was uncertainty surrounding the applicant’s employment status, they decided ‘to transfer’ the contractual relationship to a Swiss company that was to be newly established. In mid-November 2015, they agreed to terminate the ‘service agreement’ with retroactive effect. An accompanying letter from the applicant states that he signed the agreement subject to the condition that an equivalent agreement be concluded in relation to an executive management contract in respect of the Swiss company to be established.

On January 2016, the defendant established a subsidiary, R Swiss AG, under Swiss law. On February 2016, the applicant concluded a written contract of employment with R Swiss for a position as its director; the same day the parties signed a ‘patron agreement’ (as per the terminology used by the parties, commonly referred to as a ‘letter of comfort’). The contract of employment was to be subject to Swiss law.

On July 2016, R Swiss notified the applicant that the contract of employment was to be terminated. By judgment of 2 November 2016, the Arbeitsgericht Stuttgart (Stuttgart Labour Court, Germany) found that the termination was ineffective and ordered R Swiss to pay the applicant a certain amount of money. This judgment became final, but R Swiss did not discharge its payment obligation. Later, bankruptcy proceedings were opened in respect of the assets of R Swiss under Swiss law. At the beginning of May 2017, those proceedings were discontinued owing to a lack of insolvency assets.

In the main proceedings, the applicant seeks, on the basis of the letter of comfort, payment from the defendant of the sums owed by R Swiss according to the aforementioned judgment of the Stuttgart Labour Court. The action was dismissed at first instance on the ground that the German courts lack international jurisdiction. The Berufungsgericht (Court of Appeal), on the other hand, found that the German labour courts do have jurisdiction and upheld the action. By its appeal on a point of law brought before the referring court, the defendant seeks to have the decision at first instance restored.

The success of the defendant’s appeal on a point of law depends therefore crucially on whether the German courts have international jurisdiction. That jurisdiction could arise, first, from Article 21(2) read in conjunction with Article 21(1)(b)(i) of the Brussels I Regulation (question 1), second, from Paragraph 48(1a) read in conjunction with Paragraph 3 ArbGG, although the applicability of that national rule is unclear (question 2) and, third, from Article 18(1) of the Brussels I Regulation, if the applicant can be regarded as a ‘consumer’ within the meaning of that provision (question 3). If the German courts do in fact have jurisdiction, the question also arises as to which national law is applicable to the letter of comfort (question 4). The questions referred to the Court of Justice are:

1. Is Article 6(1) read in conjunction with Article 21(2) and Article 21(1)(b) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (‘Brussels I Regulation’) to be interpreted as meaning that an employee can sue a legal person – which is not his employer and which is not domiciled in a Member State within the meaning of Article 63(1) of the Brussels I Regulation but which, by virtue of a letter of comfort, is directly liable to the employee for claims arising from an individual contract of employment with a third party – in the courts for the place where or from where the employee habitually carries out his work in the employment relationship with the third party or in the courts for the last place where he did so, if the contract of employment with the third party would not have come into being in the absence of the letter of comfort?
2. Is Article 6(1) of the Brussels I Regulation to be interpreted as meaning that the reservation in respect of Article 21(2) of the Brussels I Regulation precludes the application of a rule of jurisdiction existing under the national law of the Member State which allows an employee to sue a legal person, which, in circumstances such as those described in the first question, is directly liable to him for claims arising from an individual contract of employment with a third party, as the ‘successor in title’ of the employer in the courts for the place where the employee habitually carries out his work, if no such jurisdiction exists under Article 21(2) read in conjunction with Article 21(1)(b)(i) of the Brussels I Regulation?
3. If the first question is answered in the negative and the second question in the affirmative:

(a) Is Article 17(1) of the Brussels I Regulation to be interpreted as meaning that the concept of ‘professional activities’ includes paid employment in an employment relationship?

(b) If so, is Article 17(1) of the Brussels I Regulation to be interpreted as meaning that a letter of comfort on the basis of which a legal person is directly liable for claims of an employee arising from an individual contract of employment with a third party constitutes a contract concluded by the employee for a purpose which can be regarded as being within the scope of his professional activities?

4. If, in answer to the above questions, the referring court is deemed to have international jurisdiction to rule on the dispute:

(a) Is Article 6(1) of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) to be interpreted as meaning that the concept of ‘professional activities’ includes paid employment in an employment relationship?

(b) If so, is Article 6(1) of the Rome I Regulation to be interpreted as meaning that a letter of comfort on the basis of which a legal person is directly liable to an employee for claims arising from an individual contract of employment with a third party constitutes a contract concluded by the employee for a purpose which can be regarded as being within the scope of his professional activities?

Finally, Advocate General A.M. Collins’s opinion on C-18/21, Uniqa Versicherungen should be available on the last Thursday of March. I refer to the explanation of the case I made previously, when announcing the hearing last January.