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The author of this post is Lydia Lundstedt, who is an Associate Professor and Senior Lecturer at Stockholm University and Linköping University. In the interest of transparency, the author makes known that she previously wrote an expert legal opinion on behalf of BSH Hausgeräte.

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On 25 February 2025, the Grand Chamber of the Court of Justice of the European Union (CJEU) rendered its long-awaited judgment in BSH Hausgeräte (C-339/22), on international jurisdiction over cross-border patent infringement disputes under Regulation (EU) No 1215/2012 (Brussels I bis). The CJEU ruled as follows.

First, a Member State court with jurisdiction under Article 4, based on the defendant’s domicile, over the infringement of a patent registered in another Member State, does not lose its jurisdiction when a defendant challenges the validity of that patent. In accordance with the clear wording of Article 24(4), however, that Member State court may not rule on the invalidity of that patent, “irrespective of whether the issue is raised by way of an action or as a defence”.

Second, a Member State court with jurisdiction under Article 4, based on the defendant’s domicile, over the infringement of a patent registered in a non-member State, may rule on the invalidity of that patent, when the issue is raised as a defence in an infringement action.

This judgment is a game-changer for the litigation of cross-border patent disputes in Europe because it allows right holders to consolidate all their claims in a single forum. In addition, the judgment may have implications beyond patent disputes. See here for a brief synopsis of the facts and the questions referred, here and here for a review of Advocate General (AG) Emiliou’s first and second opinions, and here for Pietro Franzina’s report on the judgment.

The Infringement Court does not Lose its Jurisdiction

The general rule in Article 4 gives jurisdiction to the courts of the Member State where the defendant is domiciled. The CJEU noted, however, that Article 4 is “subject to” exceptions, one of which is Article 24(4), which grants exclusive jurisdiction to the courts of the Member State for which a patent is granted, for proceedings involving its registration or validity. The CJEU stated that Article 24(4)’s wording is clear that it applies irrespective of whether registration or validity is raised as an independent action or as a defence in an infringement action. The CJEU reiterated therefore that a Member State court may not indirectly rule on the invalidity of that patent, but must declare that it does not have jurisdiction in accordance with Article 27. Recalling its judgment in GAT (C-4/03), the CJEU noted that Article 24(4) is justified by the fact that national authorities are involved in granting patents, and specialized courts (which often deal with patent cases) are best placed to adjudicate disputes about patent validity and registration.

That said, the CJEU clarified that a Member State court does not lose its jurisdiction over an infringement action, notwithstanding that “the examination of such an action does involve a thorough analysis of the scope of the protection conferred by that patent”. Recalling Duijnstee (288/82)  and IRnova (C 399/21), the CJEU explained that this is because Article 24(4) only covers validity and registration.

The CJEU stated that this interpretation followed from the scheme of the regulation because otherwise, the exception in Article 24(4) would eat up the general rule in Article 4 on the defendant’s domicile. Indeed, the defendant almost always challenges the validity of the patent in an infringement dispute. The CJEU explained that this also followed from the regulation’s objective of legal certainty because otherwise a defendant might, possibly at any stage of the proceedings, torpedo an infringement action by raising an invalidity defence. The CJEU explained further that this interpretation satisfied Article 24(4)’s objective of ensuring the exclusive jurisdiction of the courts of the Member State of registration, which are best placed to adjudicate validity issues, without going beyond what is necessary to achieve that objective. Lastly, the CJEU recognized that its interpretation meant that infringement and invalidity might be litigated in different Member State courts, and suggested that a Member State court seized of the infringement action could stay the proceedings if there was a reasonable, non-negligible possibility of that patent being declared invalid by the court of the Member State for which the patent was registered.

Article 24(4) on Exclusive Jurisdiction is not Directly or “Reflexively” Applicable

The CJEU held that it follows from the wording of Article 24(4) that it applies to Member States and, as conformed in IRnova, does not apply to non-member States. Indeed, the CJEU observed that the Brussels I bis Regulation “is a system of competence internal to the European Union which pursues objectives specific to it, such as the proper functioning of the internal market and the establishment of an area of freedom, security and justice.”

The CJEU recalled that the Brussels I bis Regulation applied when a legal relationship had an international element, and that this could be due to the subject matter of the proceedings being located in a third country. According to the CJEU, jurisdiction based on Article 4 encompassed infringements of third country patents as well as invalidity defences raised in the context of that infringement action.

However, the CJEU observed that Article 4’s jurisdiction could be limited by rules set out in the regulation that give effect to the EU and Member States’ treaty obligations (e.g. the 2007 Lugano Convention and agreements between a third State and a Member State concluded before the date of entry into force of Regulation (EC) No 44/2001). In addition, the CJEU noted that Articles 33 and 34 of the regulation permitted Member States to defer to the jurisdiction of the courts of third States under certain circumstances when the proceedings were lis pendens in a third State.

Beyond that, the CJEU held that international law, which is part of EU law, limited the rules in the Brussels I bis Regulation. Referring to Owusu, C 281/02, the CJEU recalled that it is not contrary to international law for a Member State court to adjudicate a dispute which has a connection to a third State, when jurisdiction is based on the defendant’s domicile. When exercising such jurisdiction, however, the CJEU held that a Member State court must observe the principle of non-interference. Consequently, the CJEU held that Member State court decisions must not affect the existence or the content of patents registered in third States, recalling that “the grant of a national patent is an exercise of national sovereignty.” However, the CJEU held that a Member State court may make an inter partes ruling on the validity of a patent granted in a third State when invalidity is raised as a defence in an infringement action, since such a ruling does not affect the existence or content of that patent.

A Game-changer for European Cross-border Patent Litigation  

This decision will likely make Europe an attractive forum for the litigation of cross-border patent disputes. Indeed, the judgment enables right holders to consolidate claims for the infringement of patents registered in all Member States before a single Member State court without risking that defendant will “torpedo” the action by a spurious invalidity defence. Granted, the infringement case may be stayed pending the outcome of a serious invalidity action brought in the courts of the Member State for which the patent is granted, but the infringement jurisdiction remains with the court of the defendant’s domicile, which leads to procedural economy.

De lega ferenda, the EU legislator might consider removing the language in Article 24(4) that codified GAT (i.e. “irrespective of whether the issue is raised by way of an action or as a defence.”), to allow Member State courts to make inter partes rulings on the validity of patents registered in other Member States.

As Advocate General Emiliou stated in his 22 February 2024 opinion, the “unfortunate [GAT] decision” goes beyond what is necessary to fulfil Article 24(4)’s objective of sovereignty. The language in Article 24(4) creates a paradox: a Member State court cannot rule on the validity of patents granted in other Member States, even though harmonization under the European Patent Convention (EPC), certain EU laws (e.g. the Biotech Directive 98/44/EC), and shared legal principles make them well-placed to do so. However, the same court can rule on the validity of patents from non-member States, where the lack of harmonization makes them less suited for such decisions.

Although BSH Hausgeräte concerned the third State, Türkiye, which, as a member of the EPC, has harmonized its patent law in accordance with the Convention, there is nothing in the judgment to suggest that it does not apply to third States in general, e.g. USA and China. That said, as more Member States become contracting parties to the Unified Patent Court Agreement (UPCA), the attractiveness of such an amendment to Article 24(4) declines. This is because the Unified Patent Court (UPC), as a court common to the contracting Member States, has jurisdiction to rule, with erga omnes effect, on the validity of patents registered in contracting Member States. Article 24(4) prohibits, however, the UPC from ruling on the validity of patents registered in Member States that are not contracting parties to the UPCA.

Another aspect of the judgment that makes patent litigation attractive in Europe is that the right holder can also consolidate infringement claims concerning patents registered in non-member States before the Member State courts where the defendant is domiciled, and that court can make an inter partes ruling on patent validity. In the recent ruling from the Düsseldorf Local division of the UPC in Fujifilm v Kodak (UPC_CFI_355/2023), the UPC avoided the question whether it had jurisdiction to adjudicate the revocation of a UK European patent, but confirmed its jurisdiction over the infringement action concerning this patent. Following BSH Hausgeräte, it is now clear that the UPC can adjudicate the validity of the UK patent in the context of the infringement action, but may not purport to invalidate or alter the content of the patent with erga omnes effect.

This jurisdiction can be limited pursuant to a treaty obligation. Indeed, Article 22(4) of the 2007 Lugano Convention, which is interpreted consistently with GAT, prevents the Member State courts and the UPC from making inter partes rulings on the invalidity of Swiss, Icelandic and Norwegian patents.

Although the subject matter jurisdiction of the UPC is limited to European (EPC) patents (Article 1 UPCA), the subject matter jurisdiction of national Member State courts covers also national patents, both national patents registered in Member States (e.g. a Swedish national patent) and in third States (e.g. USA and China). This means that the courts of the non-contracting Member States to the UPCA and the courts of the Member States during the transitional period (see Article 83 UPCA) might compete with the UPC. Compared to other important patent jurisdictions, such as the USA, which does not accept jurisdiction over foreign patent infringement disputes even when invalidity is not raised (see Voda, M.D. v Cordis Corp, 476 F. 3d 887 (Fed Cir 2007), the Member State courts’ jurisdiction is quite broad.

While the judgment refers to jurisdiction under Article 4, based on the defendant’s domicile, there does not seem to be any reason why the judgment would not also apply to jurisdiction based on Article 7(2) or Article 8(1). One can envision a situation where a defendant domiciled in a Member State commits a harmful act in another Member State, that gives rise to patent infringement in a third State, see Wintersteiger (C-523/10). One can also envision a situation where proceedings are brought against two companies, domiciled in different Member States, before a court of one of those Member States, for separately infringing the same national part of a European patent, see Solvay (C-616/10). There does not seem to be anything in international law that would limit the EU’s exercise of jurisdiction is such a scenario.

Implications Beyond Patent Disputes

Geert van Calster opines that the judgment’s reasoning likely extends to the other subject matters of exclusive jurisdiction in Article 24. I assume he means, for instance, that the fact that immovable property is located in a third State does not prevent a Member State court, with jurisdiction under Article 4, based on the defendant’s domicile, from making an inter partes ruling on title, in an action for damages for trespass. The same court however lacks jurisdiction to alter the title registration of immovable property located in a third State with in rem effect.

That said, it should be noted that Article 24(4) differs from Article 24(2) and perhaps the other rules in that article, as Article 24(4) does not allow a Member State court to make an inter partes ruling on validity for patents granted for other Member States. In contrast, a Member State court exercising jurisdiction on the basis of domicile, is not prevented under Article 24(2), from making an inter partes ruling on the validity, nullity or the dissolution of companies that have their seat in another Member State, or the validity of the decisions of their organs (see BVG (C-144/10)).

Looking ahead, a significant question is whether BSH Hausgeräte has broader implications for how the CJEU may be expected to rule on whether Member State courts may give effect, under national law, to third State choice of court agreements, when the Member State court has jurisdiction under Article 4. Following the CJEU’s reasoning in BSH Hausgeräte and its judgment in Coreck Maritime (C-387/98), Article 25 does not apply to choice of court agreements referring to the courts of third States.

Moreover, the CJEU indicated recently in Società Italiana Lastre (C-537/23) that such agreements were “contrary to the Brussels Ia Regulation” because they were inconsistent with regulation’s “objectives of foreseeability, transparency and legal certainty”. Thus, BSH Hausgeräte and Owusu might be understood to mean that Article 4 is mandatory unless another rule in the regulation (e.g. Articles 33–34 or Article 73) or a norm of international law limits this jurisdiction. Indeed, an argument can be made that the EU intentionally refuses to give effect to third State choice of court agreements outside of its treaty obligations, e.g. 2005 Hague Convention on Choice of Court Agreements.

That said, the situations involved in Articles 24 and 25 are not completely congruent as Article 25 raises the issue of party autonomy, which is arguably a fundamental right. Moreover, to require Member State courts to disregard third State choice of court agreements when they have jurisdiction on the basis of Article 4 would upset what has long assumed to be a question within the discretion of the Member States (see Arnaud Nuyts, Study on Residual Jurisdiction Review of the Member States’ Rules concerning the “Residual Jurisdiction” of their courts in Civil and Commercial Matters pursuant to the Brussels I and II Regulations (3 September 2007) para 96).

The answer to this question is reserved however for another day and another judgment by the CJEU.

This post was contributed by Fabien Marchadier, who is a professor of private international law at the University of Poitiers.

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On 4 October 2024, the Court of Justice of the European Union delivered its judgment in Case C-633/22 Real Madrid Club de Fútbol v. Société éditrice Le Monde. The judgment explores the relationship between the public policy exception in the Brussels instrument and the freedom of the press as enshrined in Article 11 of the Charter of Fundamental Rights.

Background of the Case

Considering that an article published in the newspaper Le Monde and widely reported in Spain had damaged their reputation, Real Madrid and a member of its medical team sought compensation from Spanish courts. The Spanish courts upheld their claim and handed down a heavy sentence against Le Monde and the journalist who wrote the disputed article, claiming that the football clubs Real Madrid and Fútbol Club Barcelona had retained the services of the head of a doping ring in the cycling world. The principal amount of damages was 330,000 euros (300,000 for the club and 30,000 for its employee).

Despite Le Monde published a letter of denial it had received from Real Madrid (but without any comment on it), the claimants sought the enforcement of the Spanish decision in France. In accordance with the Brussels I Regulation (no 44/2001), in force at the relevant time, they obtained two declarations of enforceability from a first instance court in Paris. The defendant lodged an appeal. The Cour d’appel of Paris overturned those declarations on the ground that that judgment was manifestly contrary to French international public policy and could not be enforced in France. This issue was that the penalties had, in the circumstances of the case, a deterrent effect on the involvement of the defendants in the main proceedings in the public discussion of matters of public interest such as to curtail the media’s ability to perform its information and monitoring role.

Real Madrid and Mr AE seized the French Court of cassation which decided to stay proceedings and to refer to the Court of Justice for a preliminary ruling. In essence, the French Court of cassation asked to the CJEU “whether and, if so, in what circumstances, the enforcement of a judgment ordering a newspaper publishing house and one of its journalists to pay damages by way of compensation for non-material damage suffered by a sports club and one of the members of its medical team for harm to their reputation caused by the publication of information about them must be refused, on the combined basis of Article 34(1) and Article 45 of Regulation No 44/2001, on the ground that it is liable to give rise to a manifest breach of the freedom of the press as enshrined in Article 11 of the Charter and, therefore, a manifest breach of public policy in the Member State in which enforcement is sought” (pt 28).

Judgment

The Court of Justice points out that the system for the circulation of judgments in Europe is based on a subtle balance between mutual trust and respect for fundamental rights. The public policy clause (art. 45, § 1, a reg. n° 1215/2012 and 34, § 1 reg. n° 44/2001) is a fundamental part of this balance. Refusing or revoking a declaration of enforceability of a judgment requires to demonstrate that such recognition is manifestly contrary to public policy in the Member State in which recognition is sought. This outcome should remain exceptional because it runs counter the main goals of the regulation.

The Court of justice states that the decision is not recognized if it infringes a fundamental principle of the state. To ensure that the prohibition of any review of the substance of a judgment of another Member State is observed, the infringement would have to constitute a manifest breach of a rule of law regarded as essential in the legal order of the Member State in which enforcement is sought or of a right recognised as being fundamental within that legal order (pt 37), including a rule of law regarded as essential in the EU legal order or of a right recognised as being fundamental within that legal order (pt 39). These fundamental rights are those recognised in the Charter of Fundamental Rights of the European Union, since the application of Regulation No 44/2001 by a national court constitutes an implementation of EU law within the meaning of Article 51(1) of the Charter (pt 41).

In accordance with the Charter, the right to freedom of expression enshrined in Article 11 will have the same meaning and scope as Article 10 of the European Convention on Human Rights (for details, see paragraphs 45-65). In the context of the recognition and enforcement of judgments, it requires the court of the requested State to ascertain whether the damages awarded in those judgments are manifestly disproportionate to the reputational harm in question and thus risk having a deterrent effect on future media coverage of similar matters in the Member State in which enforcement is sought or, more generally, on the exercise of the freedom of the press. To this end, it could be taken into account “all of the circumstances of the case, including not only the resources of the persons against whom judgment is given but also the seriousness of their wrong and the extent of the harm as found in the judgments at issue in the main proceedings” (pt 68).

However, the judge of the State in which enforcement is sought does not have to call into question the assessment of the conduct of Le Monde and its journalist by the court which handed down the decision. Nor should it reassess the reality and extent of the damage. In this respect, any discrepancy between those amounts and the amount of damages awarded in those judgments is not in itself sufficient (pt 70).

To conclude, the Court pointed out that “should it find that there is a manifest breach of the freedom of the press, that court should limit the refusal to enforce those judgments to the manifestly disproportionate portion, in the Member State in which enforcement is sought, of the damages awarded” (pt 73).

Assessment

The Court of Justice of the European Union confirms the ever-increasing influence of European law on the definition and implementation of the public policy exception (on the origins of this influence, see ECJ, 28 March 2000, C-7/98, Dieter Krombach v André Bamberski and ECJ, 11 May 2000, C-38/98, Régie nationale des usines Renault SA v Maxicar SpA and Orazio Formento). Its limits are beyond the control of individual States. The combined influence of European Union law and European human rights law, which the Court of Justice is relaying through the Charter of Fundamental Rights of the European Union (pts 45 et seq.), excludes certain principles that are nonetheless deemed essential by States (see, for example, ECHR, 3 May 2011, no. 56759/08 Négrépontis-Giannisis v Greece). Conversely, States have an obligation to incorporate the essential rights of the EU legal order and fundamental rights into their fundamental values. The freedom traditionally granted to States to determine, ‘in accordance with their national laws and practices, the requirements of their public policy’ (point 35) is therefore subject to review by the Court of Justice. The paragraph in point 35, constantly repeated since the Krombach case (cited above), has become a ‘clause de style’. Contrary to its assertions, the CJEU does not simply ‘review the limits’ within which public policy may impede the free movement of decisions in Europe. It defines, at least in part, the content of the concept. A ‘rule of law regarded as essential in the EU legal order’ or ‘a right recognised as being fundamental within that legal order’ is just as essential and just as fundamental in the legal order of the Member States, it points out (pt 39 – see also the conclusions of the AG at pt 189).

However, in the present case, the content of international public policy did not raise any particular difficulties. The right to freedom of expression is obviously capable of justifying a refusal to recognise a foreign decision (see ECHR, dec. no. 48198/99, 15 Jan 2004, Lindberg v Sweden). The Spanish decisions unquestionably interfered with the exercise of this right. However, was this interference proportionate? Above all, how is proportionality to be assessed in the context of judicial cooperation in civil matters which is based on the principle of mutual trust ? Each Member State is presumed to respect fundamental rights (in accordance with Opinion 2/13 – CJEU, Ass. pl., 18 Dec. 2014, Accession of the Union to the ECHR – recalled in paragraph 42). If the allegation of a breach of fundamental rights has not been raised before the court of origin, it cannot normally be examined by the court of the State addressed (rappr. CJEU, 16 Jul 2015, Diageo Brands BV, C-681/13, pt 64). If it has been examined, the prohibition on substantive review prevents it from being re-examined by the court of the requested State.

The Court of Justice provides a vade mecum designed to avert this risk, reiterating its precedents, which are nevertheless far from fully convincing. The manifest nature of the breach would reconcile all the opposites (pt 37). Yet there is little difference between review of the merits and of the existence of a manifest breach. The review may vary in intensity, but it does not change in nature. Manifest breach breaks the trust that supports the whole cathedral. It justifies, exceptionally and by way of derogation, the restoration of a control normally neutralised by mutual trust. It plays the role, in EU litigation, of the ‘manifest deficiency’ criterion used by the European Court of Human Rights to determine whether an EU Member State was obliged, under Article 6 of the ECHR, to review the decision of another Member State and deny it any legal effect (see ECHR, Grand Chamber, 20 May 2016, no. 17502/07, Avotins v Latvia, § 116).

A mere violation of fundamental rights does not therefore justify refusal of recognition. It must be manifest. If the court of origin gave its decision without having weighed up the interests of each of the parties (right to reputation protected by Article 8, on the one hand, and right to freedom of expression protected by Article 10, on the other), a finding of manifest infringement is conceivable (if only for having ignored the fundamental rights of one of the parties), without carrying out a review of the merits, since the review carried out by the court addressed has not, in this case, been undertaken by the court of origin. On the other hand, if this review has already taken place, the very idea of a manifest breach is more difficult to accept (see CJEU, 16 July 2015, Diageo Brands, C-681/13, pt 64), especially if it took place in compliance with the criteria established by the case law of the European Court of Human Rights for arbitrating between two competing private interests (on these criteria, see ECHR, gde ch, 7 Feb. 2012, no. 40660/08, Von Hannover (no. 2), § 107), which appears to be the case in this case (see the Opinion of Advocate General Szpunar delivered on 8 Feb. 2024, pp. 68 and 120). It should then be considered, as the Advocate General did (pt. 131), that the interests in the balance before the court addressed are different. While the defendant’s interest remains the same, that of freedom of expression, the plaintiff’s interest is no longer limited to respect for his reputation. The right to enforcement of the decision complements it (more than it replaces it, however, so that the review by the court addressed would essentially be the same as that by the court of origin…).

In this case, a violation of freedom of expression is more than likely. Given the case law of the European Court of Human Rights, which is quoted at length to clarify the meaning and scope of Article 11 of the Charter of Fundamental Rights (pts 45 et seq.), freedom of the press is still highly valued today, even though the Strasbourg Court is increasingly reminding journalists of their duties and responsibilities. The article in question contributed to a debate of general interest (the issue of doping in sport) and Real Madrid had the opportunity to publish a denial. In this context, any sanction, however small, creates a chilling effect that the Strasbourg Court will not tolerate. But did the Spanish judgments clearly infringe freedom of expression? The answer to this question remains uncertain. However, it is crucial because it determines the very principle of applying the public policy exception. If it is not manifest, the infringement does not constitute grounds for non-recognition. The decision will be recognised. The requested State would not incur any liability before the European Court of Human Rights (see Avotins judgment, supra). Only the State of origin is exposed. If, following the finding of a violation, the proceedings are not reopened, enforcement of the decision in the requested State will never be called into question. Compensation for the damage suffered by the victim of the infringement of Article 10 (in this case the journalist and Le Monde) could then be limited to just satisfaction, which may be awarded by the Strasbourg Court (which will not happen in this case, as the European Court of Human Rights has declared the application against Spain inadmissible).

The final conclusion of the Court of Justice will undoubtedly remain the most controversial point of the judgment. Traditionally, when a foreign decision appears to be internationally irregular (because a ground for non recognition is constituted), it produces no effect in the forum. The outcome of the review by the court addressed is binary. Either the decision is recognised or it is not. In the latter case, the beneficiary of the judgment has no option but to bring an action on the merits (if it is still admissible …) before the courts of the State addressed. The partial effectiveness of the foreign decision is only conceivable if the operative part comprises several heads that are sufficiently independent from each other to be treated differently (for example, in this case, the conviction of the journalist on the one hand and that of the newspaper publishing company on the other). On the other hand, the court addressed does not have the power to modify the operative part of the foreign decision submitted to it for review. If the court adds to it, deletes from it or modifies it, the court is interfering in the foreign judicial process and would be carrying out a prohibited review. This prohibition is all the more important in relations between the Member States of the European Union, which are dominated by the principle of mutual trust. If the court addressed finds a clear breach of the right to freedom of expression and, consequently, a clear conflict between the foreign decision and public policy, it should refuse to give effect to it. Curiously, the Court of Justice invites that court to ‘limit the refusal to enforce those judgments to the manifestly disproportionate portion, in the Member State in which enforcement is sought, of the damages awarded’ (pt. 73). Achieving the objective of free movement of judgments is not definitively compromised. Other avenues are conceivable. It would therefore be sufficient for the court addressed to erase the excesses of the foreign decision for it to be recognised. In other words, even if certain findings by the court of origin are required (for example, the seriousness of the fault, the reality and extent of the damage), the Court of Justice authorises the court of the State addressed to reassess the operative part of the foreign decision and, if necessary, rewrite it. This is not a completely new idea. It was suggested by G.A.L. Droz (Variations Pordea. De l’accès au juge entravé par les frais de justice. À propos de l’arrêt de la Cour de cassation,1er Chambre civile, du 16 mars 1999, RCDIP 2000. 181). The departure from the prohibition on revision is pragmatic. It makes it possible to reconcile objectives that, in this case, conflict with each other. It is better to modify the amount of the fine imposed abroad and make the foreign judgment acceptable than to simply deny it any effect in France at all. The practical implementation of this directive is no less difficult to conceive with regard to financial penalties. It is obviously possible to assess whether they are proportionate or disproportionate by reference to various factors (in particular, the resources of the persons sentenced, the seriousness of their fault, the extent of the damage – point 68). Measuring disproportionality is a much more difficult exercise, especially if the court addressed considers that the disproportionality arises from the very principle of the sentence without departing from the findings of the court of origin. In this case, should the foreign decision not be deprived of all effect? Is it conceivable that the court addressed could order another form of remedy that would be more appropriate, for example, publication of a right of reply or of the judgment?

The European influence is therefore not only leading to an enrichment (at least quantitative) of public policy. It alters foreign judgments law by undermining, to a certain extent, the principle of mutual trust and the prohibition of review on the merits.

This post was written by Etienne Farnoux, who is Professor of Private Law at the University of Strasbourg. It is the third contribution to the EAPIL online symposium on the UK Supreme Court Judgment in UniCredit Bank GmbH v RusChemAlliance LLC [2024] UKSC 30. The previous contributions, by Manuel Penades and Faidon Varesis can be found here and here, respectively. Readers are encouraged to participate in the discussion by commenting on the posts.

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This brief commentary focuses on the discussion, in the UKSC UniCredit decision, of several points of French law revolving around the issue of whether French courts could be regarded as an available forum to issue an anti-suit injunction (for a broader presentation of the case, see the previous post by U. Grusic, and the other contributions to this online symposium ; see also, in French and before the UKSC decision, V. Carriou, C. Debourg, A. Lauvaux, Rev. arb., 2024. 285). This discussion arises as part of the more general issue of the ‘proper place’ to order an ASI, with regards to an arbitration with a foreign seat (here in France).

1. The Limited Scope of Supervisory Jurisdiction

When the arbitration agreement is governed by English law, the Supreme Court relies on ‘a presumption which treats the courts of England and Wales as the proper place in which to bring the claim for an anti-suit injunction unless the fact that the arbitration has a foreign seat makes it inappropriate to do so’ [93]. In response to a party’s allegation that the proper place was France, the Supreme Court points out that while ‘the courts of the place where an arbitration has its seat have the sole responsibility for supervising the arbitration and the primary responsibility for supporting the arbitration process […,] the power to grant such relief is not an aspect of either the supervisory or the supporting jurisdiction of the English court’ [96]. Since ‘no arbitration proceedings have been commenced or proposed’ [98], the supervisory responsibility of the courts of the seat of arbitration is not at stake. The mere fact that ‘in relation to any arbitration which may in future be brought, the parties have chosen to be subject to the supervisory jurisdiction of the French courts is not itself a reason why an English court cannot or should not uphold the parties’ bargain by restraining a breach of the arbitration agreement’ [100].

According to the Supreme Court, the only circumstance, at least in the present case, which would point to the contrary would be ‘where the exercise by the English court of its power to grant an anti-suit injunction would or might produce a clash with any exercise of jurisdiction by the French courts so as to give rise to any issue of comity’ [101]. This would not be the case here as the UKSC finds ‘no possibility that the French courts could be seized of the matter’ [101] for two reasons. First, ‘French courts have no power to grant anti-suit injunctions’ [101]. Second, ‘French courts would not have jurisdiction to determine a claim of any kind brought by UniCredit complaining of a breach by RusChem of the arbitration agreements’ [101].

2. Is it Really Impossible for French Courts to Grant an ASI?

The first point was not contested in Unicredit, and statements can be found to the same effect in the Commerzbank and Deutsche Bank cases. For instance, it was not disputed in the EWCA Deutsche Bank case that ‘French law does not have the ability to grant an ASI as part of its procedural toolkit’ [40]. This description of French positive law is certainly backed by extensive authority. While French law knows no shortage of procedural tools to overcome a party’s resistance to arbitration proceedings (negative effect of the competence-competence principle, for instance, or refusal to recognize a foreign judgment setting aside an arbitration clause), the view is generally held that enforcement of the arbitration agreement will usually not be achieved through injunctive relief and there is indeed no French law provision regarding ASIs, or a close equivalent. That said, there is no provision prohibiting French courts from granting an ASI either and the Cour de cassation has in past shown a willingness to issue something akin to an antisuit injunction in the context of international insolvency (Cour de cassation, première chambre civile, 19 November 2002, Banque Worms, n°00-22.334).

This shows the absence of philosophical opposition of French law to the institution and the mere fact that this solution has not yet been extended to arbitration and the protection of an arbitration clause does not mean that it will never be. For one thing, there seems to be growing support for such an extension from both practitioners and academics. Plus, in the past, the Cour de cassation has agreed to grant recognition to an American ASI protecting the jurisdiction of a foreign court designated by a forum selection agreement against proceedings brought before French courts themselves (Cour de cassation, première chambre civile, 14 October 2009, In Zone Brands, n° 08-16.369 and 08-16.549). Surely, recognizing a foreign ASI (even one targeting French proceedings) and issuing one are two different things, but one of the arguments justifying the solution in this last case according to the Cour de cassation was that the injunction aimed at ‘ensuring compliance with the agreement conferring jurisdiction entered into by the parties’.

One does not really see why French courts should refuse to lend their support directly to such a legitimate goal and thus enforce what should be the principal solution under French law, which is specific performance. This would of course be limited to ASIs directed against proceedings in non-EU States, as long as the Court of Justice sticks to its infamous West Tankers solution. Having come nonetheless to the conclusion that ASIs were unavailable in France, the UKSC could have stopped there as the position of English courts as the proper court seemed sufficiently justified (see for instance EWCA Deutsche Bank, [40]), but it did not.

3. The Convoluted Rules on Jurisdiction of French Courts to Order Interim Relief

It is indeed the second point that is developed by the Supreme court: ‘the fact that an arbitration has a French seat does not, of itself, confer jurisdiction on any French court to order interim relief’ [102]. Without getting too much into the weeds here, the French rules on the international jurisdiction of courts to order interim relief in the context of arbitration are somewhat circumvoluted.

The starting point is that Article 1449 of the Code de procédure civile empowers French courts to grant interim relief even if an arbitration agreement ‘exists’ but without laying out the rules regarding international jurisdiction. French academia, by and large, holds the view, reflected in the Unicredit decision, that when establishing international jurisdiction under Article 1449 of the Code de procédure civile, absent explicit rules of international jurisdiction, French courts are prompted to fall back on the by default international extension of the rules regulating territorial jurisdiction (or venue). In this system, the seat of the arbitral tribunal is insufficient to justify the jurisdiction of French courts to grant interim relief (and no ordinary rule would grant jurisdiction to French courts in the configuration of the case).

While that position can claim some support in the case law, it should also be said that the principle of international extension of the territorial rules of jurisdiction has never been construed as a hard and fast rule. The Cour de cassation is acutely aware of the essential difference between territorial and international jurisdiction and regularly underlines that in some cases the principle requires adaptation to account for the particularities of international relations. It would not be immensely surprising if, when considering international jurisdiction regarding interim relief, the Court considered giving a role as a connecting factor to the seat of the arbitral tribunal.

This in turn leads to a question: would such an adaptation be called for? The answer might depend on the type of interim relief sought. If an equivalent to an ASI were available in French law, it would seem strange not to grant international jurisdiction accordingly to French courts when the seat of the arbitral tribunal is in France. Several arguments point in that direction. First, the comparison with English law shows that the seat of arbitration in England certainly justifies jurisdiction to grant an anti-suit injunction. Second, the rules regarding the international jurisdiction of French courts acting as the supporting authority for arbitration may seem to be more adequate than the by default extension of territorial jurisdiction rules.

The jurisdiction of French courts as supporting authority, or ‘juge d’appui’, is provided for at Article 1505 of the Code de procédure civile. It includes a list of four alternative connecting factors: the seat of arbitration is in France; the parties have agreed on French procedural law to apply to arbitration proceedings; the parties have expressly agreed on the jurisdiction of French courts to rule on disputes relating to the arbitral proceeding; the parties are exposed to the risk of denial of justice. At least the first connecting factor would have granted jurisdiction to French courts in the present case.

The reason why these more adequate heads of jurisdiction are usually not discussed in the context of ASIs is because of the assumption that such a measure (if it were available) would be outside of the natural role of French courts acting as supervisory authority. Such a conclusion might not be unavoidable. Admittedly, the role of the juge d’appui is traditionally limited to difficulties in the constitution of the arbitral tribunal, but granting an ASI does contribute to giving full effect to the parties’ agreement to arbitrate while a torpedo action certainly endangers its efficiency. Even if such an injunction fell outside of the limited powers of the juge d’appui and was to be granted under Article 1449 of the code de procedure civile, the seat of the arbitral tribunal would undeniably constitute a more appropriate connecting factor than the mere extension of the rules of territorial jurisdiction.

4. A Cooperative Conception of the Supervisory Authority

Finally, it is convincing that, as concluded by the Supreme Court, ‘even if the French courts were an available forum, there is no reason which can be said to make it inappropriate for an English court to restrain a breach of the arbitration agreements by granting an injunction’ [104]. French law does not have an exclusive conception of the role of the supporting authority but one aimed at the success of the arbitral proceeding, and the enforcement of the commitment to arbitrate taken by the parties. This is illustrated, for instance, by the favorable treatment a foreign ASI protecting an arbitration agreement would likely receive in the French legal system, following the In zone Brands case. It also derives from the delimitation of the jurisdiction of the juge d’appui. The role of French courts acting as supporting authority is not limited to arbitral tribunals with a seat in France. Particularly the last item on the list (the risk of a denial of arbitral justice, see for instance Cour de cassation, première chambre civile, 1 February 2005, NIOC, n° 01-13.742 and 02-15.237), shows that the point is to allow arbitration to proceed rather than focusing exclusively on the location of the seat.

This post was written by Manuel Penades, who is Reader in International Commercial Law at King’s College London. It is the first contribution to the EAPIL online symposium on the UK Supreme Court Judgment in UniCredit Bank GmbH v RusChemAlliance LLC [2024] UKSC 30. The other contributions, by Faidon Varesis and Etienne Farnoux, can be found here and here, respectively. Readers are encouraged to participate in the discussion by commenting on the posts.

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1. The Relevance of the Law Governing Arbitration Agreements to English Antisuit Injunctions

The law governing arbitration agreements has recently attracted significant attention in English arbitration law. Compared to other jurisdictions, the issue has become disproportionally complex and the UKSC has done little to improve the situation. The relevance of the topic is not limited to cases where the jurisdiction of arbitrators is in question. Cases such as UniCredit Bank GmbH v RusChemAlliance LLC [2024] UKSC 30, Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb [2020] UKSC 38 or Sulamérica Nacional de Seguros SA v Enesa Engenharia SA [2012] EWCA Civ 638 show that the law governing arbitration agreements impacts directly on the court’s powers to enforce contractual promises to arbitrate. These three cases concerned the possibility to issue an antisuit injunction preventing a party from litigating claims allegedly subject to arbitration agreements. In Enka, the applicable law was critical to define whether the dispute in question was covered by the scope of the arbitration agreement. In Sulamérica, the effectiveness of the arbitration agreement was dependant on the law applicable to it. In both cases, the seat of the arbitration was located in England.

2. The Law Governing the Arbitration Agreement in UniCredit

The question in UniCredit was whether the English courts had jurisdiction to order a Russian company not to pursue court proceedings in Russia against a German bank when the parties had agreed to settle any dispute between them by arbitration in Paris under the ICC Rules and had chosen English law to govern their contracts (bonds in this case).

The English court’s equitable jurisdiction to grant an injunction ‘in all cases in which it appears to the court to be just and convenient to do so’ arises from section 37(1) of the Senior Courts Act 1981. Yet, when the defendant is not in the jurisdiction and the seat is not in England and Wales, the power of the court to issue an antisuit injunction is dependant on two requirements. First, that the claim falls under one of the gateways provided in para 3.1 of Practice Direction 6B allowing service of the claim against the foreign defendant out of the jurisdiction. Second, that England and Wales is the ‘proper place’ in which to bring the claim. The UKSC addressed both matters in UniCredit but this post is only concerned with the first requirement, as the second is discussed in this symposium by Faidon Varesis.

The gateway on which Unicredit relied is available when ‘a claim is made in respect of a contract […] governed by the law of England and Wales’ (para 3.1(6)(c) PD6B). The bonds stated that they were governed by English law but RusChemAlliance argued (and Unicredit did not contest until the last instance, see [19]) that the contract with which the application for antisuit injunction was concerned was the arbitration agreement, whose breach the injunction sought to impede. The bonds did not contain any selection of applicable law specifically addressed at the arbitration agreement. The question then was whether English law governed the arbitration agreement pursuant to the general choice of law provided in a different clause of the bonds.

To answer this question, the UKSC revisited the test that was established just four years ago in Enka. The relevant passages of that test read ([170]):

iv) Where the law applicable to the arbitration agreement is not specified, a choice of governing law for the contract will generally apply to an arbitration agreement which forms part of the contract.

v) The choice of a different country as the seat of the arbitration is not, without more, sufficient to negate an inference that a choice of law to govern the contract was intended to apply to the arbitration agreement.

According to these rules, the general choice of English law to govern the bonds was equally applicable to the arbitration agreements contained in them. The principle of separability did not prevent this result as, in the words of the UKSC in Enka, ‘separability is not a principle that an arbitration agreement is to be treated as a distinct agreement for all purposes but only that it is to be so treated for the purpose of determining its validity or enforceability [and] thus, does not require that an arbitration agreement should be treated as a separate agreement for the purpose of determining its governing law’ ([41]).

RusChemAlliance, however, argued that this conclusion should be displaced by one of the two exceptions that the UKSC had established in Enka, particularly [170(vi)(a)]:

vi) Additional factors which may, however, negate such an inference and may in some cases imply that the arbitration agreement was intended to be governed by the law of the seat are: (a) any provision of the law of the seat which indicates that, where an arbitration is subject to that law, the arbitration agreement will also be treated as governed by that country’s law.

According to RusChemAlliance, the fact that under French law (as the law of the seat) the arbitration agreements in the dispute at hand would be governed by the French rules applicable to international arbitration agreements meant that the choice in the bonds in favour of English law could not be extended to the arbitration agreements. The UKSC disagreed, and concluded that assuming this level of legal foresight by the mere choice of Paris as seat went ‘beyond what it may in practice be realistic to expect’ [52]. The ‘natural’ [22] interpretation was to conclude that the parties wanted English law to govern every clause in the bonds. Therefore, English law applied to the arbitration agreements and the case fell within gateway 3.1(6)(c) PD6B. More generally, the UKSC conceded that the exception in [170(vi)(a)] of Enka created significant uncertainty and decided to remove it.

3. The Lessons from UniCredit

Two main lessons follow from this part of the decision in UniCredit.

3.1. The residual importance of implied choice of law for arbitration agreements

First, it confirms the residual role of implied choice of law, which in effect is squeezed out of the common law doctrine of the proper law of the contract for arbitration agreements. Enka and Kabab-Ji SAL (Lebanon) v Kout Food Group (Kuwait) [2021] UKSC 48 had already ruled that a choice of law to govern the contract should be generally construed as applying to the arbitration agreement set out (or incorporated by reference) in a clause of the contract. Yet, they had not excluded the possibility of an implied choice of law for arbitration agreements (in line with the traditional threefold test of the common law doctrine of the proper law). In fact, the extension of the choice of law from the contract to the arbitration agreement could have been seen as an implied choice of law inasmuch the UKSC acknowledged that such extension was ‘an inference’ which could be displaced in the exceptions provided in [170(vi)] to ‘imply that the arbitration agreement was intended to be governed by the law of the seat’.

The UKSC went a step further in UniCredit and declared that ‘if it were necessary or relevant to characterise the choice of law for the arbitration agreement signified by such a governing law clause as “express” or “implied”, I think it would be more apt to call it an “express choice” because it is identified by interpreting the express terms of the contact and is not based on any implied term’ ([27]). That is, what in the past could have been seen as an implied choice of law based on the terms of the contract or the circumstances of the case is now an express choice of law, which has simply been extended to cover the arbitration agreement using ‘the rules of contractual interpretation of English law as the law of the forum’ ([21], in line with [170(iii)] of Enka).

Enka also confirmed that ‘where there is no express choice of law to govern the contract, a clause providing for arbitration in a particular place will not by itself justify an inference that the contract (or the arbitration agreement) is intended to be governed by the law of that place’ ([170(vii)] of Enka). A reader could have reasonably understood this rule simply to mean that, in the absence of choice of law for the matrix contract, the choice of seat does not imply a choice of the seat’s law to govern the arbitration agreement. In fact, the UKSC had defined the implication of terms as a ‘process of inference’ in [35] of Enka.

With this background in mind, there was every reason to believe that the use of the term ‘inference’ in [170(v), (vi) and (vii)] of Enka referred to the possibility to construe a choice of law for the matrix contact or a choice of seat as implied choices of law for the arbitration agreement.

The result after UniCredit, read together with Enka, however, is that the ‘inference’ in [170(v) and (vi)] is, in reality, an express choice. The UKSC had already anticipated this reading in [39] of Kabab-Ji. Implied choice will, therefore, be reduced to two narrow scenarios.

One concerns instances where: 1) there is no express choice of law to govern the contract, 2) the parties have chosen an arbitral seat, and 3) something else in the arbitration agreement (whatever that might be) clearly indicates an undeclared intention to have the contract to arbitrate governed by the law of the seat. In practice, however, these cases will probably avoid the embroilment of the implied choice test and be resolved under the closest and most real connection test, which will generally also lead to the law of the seat (as per [170(viii)] of Enka).

The other possible avenue for implied choice will be the instances where parties select the law governing the matrix contract impliedly. The majority in Enka did not discuss the possibility to ‘infer’ that an implied choice of law for the main contract extends to the arbitration agreement. This is a significant gap between steps (vii) and (viii) in [170] of Enka and later decisions by the UKSC have failed to fill it. It was only the minority in Enka that addressed this possibility. In their view, it would be a ‘natural, rational and realistic’ inference and ‘simply the correct objective interpretation of the parties’ main contract and arbitration agreement’ ([228]). It is reasonable to expect this question to reach the UKSC in the future.

It is difficult to envisage a viable argument in favour of implied choice of law for arbitration agreements outside the discussed scenarios.

3.2. The uncertainty around the new section 6A of the Arbitration Act 1996 and a proposal to resolve it

The proposed choice-of-law rule for arbitration agreements in the Arbitration Bill provides that

6A Law applicable to arbitration agreement

(1) The law applicable to an arbitration agreement is—

(a) the law that the parties expressly agree applies to the arbitration agreement, or

(b) where no such agreement is made, the law of the seat of the arbitration in question.

(2) For the purposes of subsection (1), agreement between the parties that a particular law applies to an agreement of which the arbitration agreement forms a part does not constitute express agreement that that law also applies to the arbitration agreement. […]

After years of uncertainty and a lengthy review process, the new rule offers the possibility of a fresh start. The new section 6A eliminates implied choice of law entirely and replaces the closest and most real connection test with a hard-and-fast rule in favour of the law of the seat. The Bill also refines the wording of section 6A(2) to avoid litigation about the meaning of an express choice of law concerning the arbitration agreement. Yet, the UKSC has muddled the waters in UniCredit. By confirming that a generic express choice of law for the matrix contract, even without the definition of ‘Agreement’ as in Kabab-Ji, is an express choice for the arbitration agreement, it has opened the floodgates to the type of litigation that the introduction of section 6A tries to avoid. As argued in my written evidence before the House of Lords Committee tasked with the Arbitration Bill, what will follow from the adoption of the Bill is a new type of litigation concerned with whether an express choice of law is ‘sufficiently’ express to satisfy section 6A.

The arbitration agreements in UniCredit serve as illustration. The contracts provided that ‘This Bond and all non-contractual or other obligations arising out of or in connection with it shall be construed under and governed by English law’. This wide choice of law clause in not just ‘an agreement between the parties that a particular law applies to an agreement of which the arbitration agreement forms a part’ (section 6A(2)). The clause goes beyond the agreement (the bonds) and reaches ‘all non-contractual or other obligations arising out of or in connection with’ them. Would this be express enough for the purposes of section 6A(1)(a)? Importantly, in the transition between the Second Consultation and the Final Report, the Law Commission excluded the requirement that the choice of law clause for the arbitration agreement had to be ‘in the arbitration agreement itself’, which means that it should not be impossible to have express choices that are not in the arbitration agreement or that do not refer to it expressly.

This uncertainty could have been largely avoided by the UKSC.

The Court could have decided that the type of ‘inference’ in UniCredit (which followed [170(v)] of Enka) was just a case of implied choice of law for the arbitration agreement. This finding would not have operated under section 6A, which excludes implied choice. Alternatively, the UKSC could have clarified that, while such ‘inference’ might be deemed an express choice under the common law doctrine of the proper law, this would no longer apply under section 6A given the exclusion in section 6A(2). Yet, the Court refused to make such reassuring statements and, instead, declared that ‘depending on what the word “expressly” is taken to add to the word “agree”, this [ie, section 6A(2)] would not by itself alter the law as stated in Enka’ ([28]). What is more, the UKSC insisted on the idea, already mentioned in Enka, that ‘it does not matter’ whether a choice of law is express or implied, as ‘the distinction is of no legal significance’ ([27]). The reality is that, while express and implied choice might produce the same effects in common law, the distinction is of critical legal significance under section 6A. Express choice will be effective whereas implied choice will not. Turning its back to the imminence of section 6A and refusing to avoid unnecessary confusion was the wrong path for the UKSC. The reputation of English arbitration law and London as arbitral seat will suffer for it, and so will the parties who choose to arbitrate in London.

The paradox over the last years is that, while the proposal behind section 6A was motivated (in a significant part) by the ‘complex and unpredictable’ choice of law test for arbitration agreements after Enka (see Law Commission, ‘Review of the Arbitration Act 1996: Final Report and Bill’, para 12.20), that test has been simplified after UniCredit by eliminating the problematic exception in [170(vi)(a)] of Enka. In parallel, the definition of express choice of law confirmed in UniCredit will complicate the interpretation of section 6A and be a source of major uncertainty, which will require further court intervention.

While unlikely, this concern would justify a reconsideration of section 6A by Parliament before the passing of the Bill. A viable compromise would be to replace the current wording with the following:

(2) For the purposes of subsection (1), agreement between the parties that a particular law applies to an agreement of which the arbitration agreement forms a part constitutes express agreement that that law also applies to the arbitration agreement.

This wording would capture the essence of the common-sense approach insisted upon by the UKSC in Enka, Kabab-Ji and UniCredit while reaching a compromise between most of the voices that have participated in the review process. It would preserve party autonomy as well as the requirement of an express choice (hence eliminating the uncertainties around implied choice of law). It would also satisfy those who invoke the appropriateness to align the contract with the arbitration agreement while maintaining the default rule in favour of the law the seat.

4. The Jurisdiction of English Courts to Issue Antisuit Injunctions Concerning Arbitration Agreements Seated Outside of England & Wales When Solely the Matrix Contract is Governed by English Law

The analysis in UniCredit confirmed that, subject to the proper forum test, English courts have jurisdiction to issue antisuit injunctions regarding arbitrations seated abroad when the contract contains an English law clause and the parties have not indicated that the arbitration agreement is governed by any other law. The jurisdictional hook was the law governing the arbitration agreement.

The UKSC, however, did not exclude the possibility that this jurisdiction might also exist when the matrix contract alone, and not the arbitration agreement, is governed by English law. Unicredit only suggested this argument late in the appeal before the UKSC and the judgment did not address it. There is little doubt that this possibility will be explored in future cases, and rightly so.

While arbitration agreements might be separable from the matrix contract for validity and choice of law purposes, it is hard to deny that Unicredit’s request for an antisuit injunction before the English courts was made in respect of the contract that contained those agreements. In the context of the choice of law analysis, the UKSC declared in UniCredit that ‘even if the obligations created by the arbitration agreement were regarded as separate from the bond contract for this purpose, they are on any view “obligations arising … in connection with” the bond’ ([31]). It would be surprising if the expressions ‘in connection with’ and ‘in respect of’ received such disparate interpretations by English courts that one led to the inclusion of arbitration agreements contained in the document, whereas the other excluded them.

Further, case law has given a broad interpretation to the words ‘in respect of’. In Albon (t/a N A Carriage Co) v Naza Motor Trading SDN BHD & Anor [2007] EWHC 9 (Ch), Lightman J decided that ‘the formula of words in CPR 6.20(5) “in respect of a contract” [now para 3.1(6)(a) PB6B] does not require that the claim arises under a contract: it requires only that the claim relates to or is connected with the contract.  That is the clear and unambiguous meaning of the words used’ ([27]). The judge reinforced this reading by reference to the decision of Mann CJ in Trustees Executors and Agency Co Ltd v Reilly [1941] VLR 110, 111, who stated that

The words ‘in respect of’ are difficult of definition, but they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject matters to which the words refer.

Deripaska v Cherney [2009] EWCA Civ 849, [67], has confirmed this broad interpretation.

5. Conclusion

Pacta sun servanda lies at the core of UniCredit. This makes it an appealing decision which confirms England as a stronghold for arbitration and paves the way for a new field of arbitration-related litigation before English courts. Yet, it also complicates unnecessarily the success of the review of the Arbitration Act 1996. The UKSC should have achieved the former without causing the latter.

The post below was written by Pedro De Miguel Asensio, who is Professor of Private International Law at the Complutense University of Madrid. This is the third contribution to the EAPIL’s online symposium on Inkreal, after the posts of Sergi Gimenez and Gilles Cuniberti.

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The main contribution of the Inkreal judgment is to establish that Article 25 of the Brussels I bis Regulation allows the parties to a contract, even if they are domiciled in the same Member State and all the elements of the contract are located in that State, to confer jurisdiction to settle the disputes arising from the contract on the courts of another Member State. In fact, this case has provided the Court of Justice with the opportunity to address a question which had been referred to it previously, but which it was unable to rule on at the time because the request for a preliminary ruling was withdrawn by the Portuguese Supremo Tribunal de Justiça and the case removed from the register (EU:C:2017:237).

In particular, among the questions already referred to the Court of Justice in case C-136/16, Sociedade Metropolitana de Desenvolvimento, in connection with the practice relating to the conclusion contracts under the terms of the ISDA Master Agreement, was whether, in a dispute between two national companies of a Member State concerning swap contracts, the existence therein of clauses conferring jurisdiction in favour of another Member State constitutes a sufficient international element to give rise to the application of the Brussels I bis Regulation. Now, the Inkreal judgment in the framework of case C-566/22 answers a similar question in the affirmative and clarifies that the mere agreement of the parties to a contract designating the courts of a Member State other than that of their common domicile as having jurisdiction is sufficient for the legal situation to have an international element for the purposes of the jurisdiction rules of the Brussels I bis Regulation.

Although it is a criterion that could give rise to misgivings insofar as it could leave it to the parties to circumvent, within the limited framework of Article 25 of the Brussels I bis Regulation, the jurisdiction of the courts of the only Member State with which the contract is connected (as the Advocate General emphasised in his Opinion in Inkreal, EU:C:2023:768) and may sometimes cause serious inconvenience to one of the parties (as raised in the second of the questions referred for a preliminary ruling in case C-136/16), the approach adopted by the Court seems the better view. Its position reinforces: (a) consistency between the Brussels I bis Regulation and other Union instruments on judicial cooperation in civil matters (see I, infra); (b) the objectives of predictability and legal certainty in the application of the Brussels I bis Regulation (II, infra); and (c) the particular significance of the Union’s private international law instruments as an element of integration (III, infra).

I. Consistency between the Brussels I bis Regulation and Other Union Instruments on Judicial Cooperation in Civil Matters

The judgment confirms previous case law according to which the application of the rules of jurisdiction of the Brussels I bis Regulation is in any case subject to the existence of an international element, which corresponds to the fact that it is an instrument relating to judicial cooperation in civil matters having cross-border implications, in the terms of Article 81(1) TFEU. However, the judgment not only confirms that for such international element to be present it is sufficient that the situation raises “questions relating to the determination of the jurisdiction of the courts in the international sphere” (para. 22 referring to the IRnova judgmen, EU:C:2022:648), but also adds as a novelty the clarification that such a circumstance is present whenever the parties to a contract are established in a Member State other than the court seised on the basis of the relevant jurisdiction agreement, insofar as in such situations the question arises of determining the courts of which of those Member States has international jurisdiction to hear the dispute in question (paras. 23-25).

In order to reach that conclusion, the judgment attributes a particular relevance to the definition of “cross-border cases” in Article 3(1) of Regulation (EC) No 1896/2006 creating a European order for payment procedure, which provides that “a cross-border case is one in which at least one of the parties is domiciled or habitually resident in a Member State other than the Member State of the court seised”. Apart from the relevance given in the judgment to the coordination between the Brussels I bis Regulation and Regulation (EC) No 1896/2006, the approach taken by the Court of Justice also seems to be supported by the content of Regulation (EC 593/2008 on the law applicable to contractual obligations (Rome I Regulation).

Recital 15 to the Rome I Regulation states:

Where a choice of law is made and all other elements relevant to the situation are located in a country other than the country whose law has been chosen, the choice of law should not prejudice the application of provisions of the law of that country which cannot be derogated from by agreement. This rule should apply whether or not the choice of law was accompanied by a choice of court or tribunal.

Consequently, Recital 15 and Article 3(3) of the Rome I Regulation seem to be based on the assumption that the parties to a contract may choose a court of a Member State as having jurisdiction, even if all the relevant elements of the situation prior to their choice of forum (and law) are located in another Member State (regarding the interpretation of Article 3.3 Rome I Regulation in the context of insolvency proceedings, see CJEU Judgment of 8 June 2017, Vynils, C-54/16, EU:C:2017:433, concerning an apparently domestic Italian contract that conteined “a clause stating that English law is the chosen law and a clause choosing the jurisdiction of the London Maritime Arbitrators Association”, para. 20).

In so far as the judgment in Inkreal holds that the rules of jurisdiction in the Brussels I bis Regulation apply only where there is an element of internationality, for which it is sufficient that a purely domestic contract designates a court of another Member State as having jurisdiction, since such a situation “raises a question relating to the determination of international jurisdiction” (para. 24), it is also consistent with the approach underlying the Rome I Regulation. A sort of parallel may be drawn mutatis mutandis between that category and that of a situation “involving a conflict of laws” as regards the field of applicable law. Also, under the Rome I Regulation, in the different context of the applicable law, it is necessary to determine in which situations a foreign element is present, since the rules of the Rome I Regulation only apply “in situations involving a conflict of laws” (as stated in Article 1(1) and recently examined by the Court of Justice in its judgment of 14 September 2023, Diamond Resorts Europe and Others, C‑632/21, EU:C:2023:671, para. 51).

II. Objectives of Predictability and Legal Certainty in the Application of the Brussels I bis Regulation

The judgment highlights that making the application of Article 25 of the Brussels I bis Regulation subject to a finding that the contract has additional links (beyond the agreement conferring jurisdiction) with the Member State of the chosen court would undermine the objective of legal certainty and predictability. It would make it difficult for the designated court before which the action is brought to determine its jurisdiction and increase the risk of parallel proceedings and irreconcilable judgments (paras. 27 to 31).

Although the lis pendens rules of the Brussels I bis Regulation would significantly reduce the risk of parallel proceedings, there is no doubt that the requirement to identify additional elements capable of demonstrating the cross-border impact of the dispute would constitute a significant factor of uncertainty. Illustrative in that respect was the list of potential international elements in addition to the jurisdiction agreement contained in the third of the questions referred for a preliminary ruling in case C-136/16 in relation to the swap contracts at issue. Such elements included the fact that foreign companies were invited to submit proposals to participate in the contracts, that one of the parties is owned by a foreign entity, that under the terms of the contract the parties may transfer their rights and obligations to subsidiaries in other countries, that the contracts at issue had certain connections to contracts concluded with foreign entities, etc.

Moreover, hypothetically, it should be noted that if it had been decided that Article 25 of the Brussels I bis Regulation requires additional factors of internationality to be applied, a particularly broad interpretation in the context of the Union would have been justified. The outcome in practice might not be very different from that resulting from the new judgment.

For example, why would the following not be sufficient connections. First, the mere fact that for one of the parties the contract in question has connections to a different international contract which are relevant to that party. Second, the fact that one of the contracting parties belongs to a group of companies with connections to the Member State in which the designated court is located (for instance, this seemed to be the situation -perhaps with some additional elements- in the notorious El Majdoub judgment, concerning a contract between parties domiciled in Germany with a jurisdiction clause in favour of a court in Leuven (Belgium), see paras 10, 13 and 16 of CJEU Judgment of 21 May 2015, El Majdoub, C‑322/14, EU:C:2015:334).

III. Significance of EU Private International Law rules as an Instrument of Integration 

The broad scope of Article 25 Brussels I bis Regulation is also justified by the Court of Justice as reflecting mutual trust in the administration of justice within the Union and contributing to the development of an area of freedom, security and justice (para. 35). Indeed, the development of civil judicial cooperation within the Union, based on the principle of mutual recognition of judgments, has led to the creation of a judicial area, many elements of which are closer to the treatment of purely internal situations than to strictly international ones. This is reflected, for example, in the contrast between the treatment of situations in which lis pendens arises between Member States of the Union and those concerning parallel litigation in a Member State and a third State.

The criterion adopted in Inkreal is a further step in this direction of overcoming state borders, which is projected onto areas where party autonomy prevails and the choice of the courts of a Member State without any apparent connection with the dispute will typically respond to the legitimate interests of the parties. In practice, moreover, the choice of a court of that other Member State will normally go hand in hand with the choice of its law as the law applicable to the contract. As regards the position of the Member State in which all other elements of the contract are located, Article 3(3) of the Rome I Regulation will be relevant. According to that provision, the choice of law (and court) by the parties does not prejudice the application of provisions of the law of that other country which cannot be derogated from by agreement. Consequently, the mandatory rules applicable to the contract will be those of the Member State where all the other elements relevant to the contract are located and not those of the Member State whose courts adjudicate the case and whose law has been chosen by the parties (without prejudice, of course, to the effectiveness of the mandatory rules under Article 9 of the Rome I Regulation).

Given the specificity of the Union’s integration framework, and the particular scope of judicial cooperation in civil matters, the Court is justified in expressly rejecting that the provisions of the 2005 Hague Convention on Choice of Court Agreements should constitute a point of reference in the interpretation of Article 25 of the Brussels I bis Regulation. Pursuant to Article 1(1) of the Convention, its jurisdiction rules only apply either if the parties are not resident in the same State, or if some element relevant to the dispute other than the location of the chosen court has a connection with some other State (see “Explanatory Report” by T. Hartley and M. Dogauchi, paras. 41-43).

Hence, the broad interpretation of Article 25 of the Brussels I a Regulation and its application to purely domestic contracts does not apply to jurisdiction agreements designating the courts of a third State, even if it is a State with which the Union and its Member States are bound by the 2005 Hague Convention on Choice of Court Agreements. Nor does it apply directly in situations where the effectiveness of jurisdiction agreements in favour of a third State is governed by the domestic law of the Member State seised.

Concluding remarks

Unlike in case C-136/16, Sociedade Metropolitana de Desenvolvimento, the Court was not requested in Inkreal to clarify if the application of such a jurisdiction agreement may be waived where the choice of the courts of a Member State other than that of the nationality of the parties causes serious inconvenience for one of those parties and the other party has no good reason to justify such choice. However, the reasoning by the Court seems to support the view that within the specific framework of the Brussels I bis Regulation (and its interplay with the Rome I Regulation) such a concern is of limited significance. This is without prejudice that the possible review of the regulatory framework in order to provide certain protection to small or medium-sized enterprises in a position of contractual imbalance against choice of forum agreements unilaterally imposed on them, is an issue that merits special attention. In any event, such protection would be especially necessary with regard to jurisdiction agreements in favour of the courts of a third State, which in principle fall outside the scope of the Brussels I Regulation.

— This post is based on the post published in Spanish by the author on 8 February 2024, and a short case comment to be published in the journal La Ley Unión Europea.

On 8 February 2024, the CJEU ruled in Inkreal s.r.o. v. Dúha reality s.r.o. (Case C‑566/22) that Article 25 of the Brussels I bis Regulation applies to clauses stipulated in domestic contracts if such clauses provide for the jurisdiction of the court of another Member State.

Most early commentators have welcomed this judgment, including Geert van Calster, Pedro de Miguel Asensio and Matthias Weller.

The Advocate General, however, had opined differently. Should Inkreal be praised for promoting party autonomy? Should it be criticised, instead, for extending the reach of EU law beyond its competence?

In the coming days, the EAPIL Blog will host an online symposium on Inkreal. Readers interested in participating should contact the editors of the blog (blog@eapil.org), or directly comment on the posts in the symposium.

This post was written by Felix M. Wilke.

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Many papers and posts have already appeared on the EU rule of law crisis, in particular on serious doubts regarding the independence and impartiality of the judiciary in certain Member States. In light of the recent judgment against Poland (C-204/21), more are likely to follow. For the most part, the discussion concerns potential reactions under primary law and the effects the crisis already has had on the European Arrest Warrant. There have been some predictions that the crisis also would affect judicial cooperation in civil and commercial matters (e.g. by Frąckowiak-Adamska). Indeed, how could it not? In this post I want to flag some issues and ideas to be fleshed out in a later publication, based on a presentation I gave at the IAPL Summer School 2023. As always, comments are very much welcome.

Mutual Trust and its Limits

It all goes back to mutual trust. According to the CJEU, mutual trust in particular means the presumption that other Member States comply with EU law and with the Charter of Fundamental Rights (Opinion 2/13). If we know or have very good evidence that another Member State’s judiciary is not independent or impartial, and the Member State thus cannot guarantee the right to a fair trial, this assumption seems to have been rebutted. One can hardly do business as usual, i.e. continue to apply instruments like Brussels Ibis that are based on mutual trust as if nothing had changed.

We actually have famous precedent for that from the field of judicial cooperation in criminal matters. In LM, the Court of Justice held that the “real risk” of a breach of the fundamental right to an independent tribunal “is capable of permitting the executing judicial authority to refrain, by way of exception, from giving effect to a [European Arrest Warrant]”. Granted, Article 1(3) of the Framework Decision on the European Arrest Warrant contains the express admonition that the Decision does not modify the Member States’ obligation to respect fundamental rights – even though the immediately prior provision of paragraph 2 requires them to execute any European Arrest Warrant based on mutual recognition.

In one area based on mutual trust, then, courts in one Member State can under certain circumstances review whether trust is actually warranted. This has been dubbed “horizontal Solange” (Canor), as opposed to “reverse Solange” (von Bogdandy et al.) and the good old regular “Solange” (Germany’s Constitutional Court). As long as – solange – there are no systemic violations of the rule of law, each Member State should cooperate with the others. So, should we pull a “horizontal Solange” in civil and commercial matters? Should it perhaps be a “modified horizontal Solange”, adjusted to the specifics of civil proceedings?

Horizontal Solange as Part of Public Policy Reservations

One obvious answer is that we have been doing so in civil and commercial matters, anyway. For the Brussels Regime has always contained a public policy reservation (now Art. 45(1)(a) Brussels Ibis). Public policy is the classic tool of trust management (M. Weller). It is accepted that violations of procedural fundamental rights in another Member State can trigger this reservation. While Brussels Ibis lacks a clear statement on fundamental rights like Article 1(3) Framework Decision on the European Arrest Warrant, the obligation to respect the fundamental rights of the Charter exists as a matter of course when Member States are “implementing” EU law (Article 51(1) of the Charter). Thus, even if the vague Recital 38 Brussels Ibis did not exist, public policy must be interpreted against the backdrop of the Charter. More importantly, even instruments of judicial cooperation in civil and commercial matters without a written public policy reservation must be interpreted as allowing a review of potential fundamental rights violations in another Member State.

But to rely on public policy does not come without obstacles. Should the burden of proof rest with the applicant even where there are systemic deficiencies in another Member State? Should an application even be necessary? The seriousness of the rule of law problems and their relation to the public interest might suggest a negative answer, but this would likely ask too much of those tasked with enforcing foreign judgments, in particular non-judicial bodies. And what about the unwritten condition of exhaustion of all remedies in the Member State of origin (Diageo Brands)? Some would say that it does not make sense, period. At least it does not make sense if the foreign judiciary as such does not meet the standards of independence and impartiality. Systemic deficiencies obviate the exhaustion requirement as it itself is based on mutual trust.

Doubts about the Existence of “Courts” and “Judgments”

Speaking of independence and impartiality: Has not the CJEU held in Pula Parking – even though the actual problem was that Croatian notaries did not conduct inter partes proceedings – that these two features characterize “courts” for the purposes of Brussels Ibis? Without them, a national body is no “court”. Without being a “court”, it cannot give “judgments” within the meaning of Article 2(a) Brussels I bis. This calls into question already the scope of application of Chapter III of Brussels I bis (and, thinking it through to the end, also the application of the lis pendens rules). If this is not met, there would be no recognition and enforcement. The result thus would seem to be the same as after a successful application relying on public policy.

The scope of application, however, must be checked ex officio, and a failure to exhaust national remedies in the Member State of origin clearly could not change the nature of body that gave the decision. Hence, the requirements could be quite different from the public policy reservation. On the other hand, again, to require an assessment of the independence and impartiality of other Member States’ bodies in every single case would put the institutions in the Member State addressed in over their heads.

Exploiting Private Parties?

Moreover, one could characterize this approach with some merit as exploiting civil and commercial matters, ultimately: the parties of such matters to address a crisis not of their making. I feel a certain unease about this, and I do not think I am the only one who feels that way. Granted, to make a Member State a less attractive forum could be an effective tool of bringing about change in that State. And it does seem paradoxical to continue to apply an instrument of mutual trust where serious doubt has been cast on this trust.

Yet we can hardly blame a claimant for having pursued her claim in a certain Member State, even less so when jurisdiction in that State was based on entirely uncontroversial grounds, perhaps even on Brussels Ibis itself. To put a stop to EU judicial cooperation in civil matters without an individual violation of the defendant’s/debtor’s fundamental rights also would be questionable from the perspective of the claimant’s/judgment creditor’s fundamental rights. The ECtHR has recognized that the enforcement (even) of foreign judgments is an integral part of the guarantee of Article 6(1) ECHR (Hornsby v. Greece, McDonald v. France, Avotiņš v. Latvia). Then again, if one negated the scope of application of Brussels Ibis, at least national rules of recognition and enforcement could still apply.

Tentative Conclusions

I am inclined to let national bodies operate on the prima facie basis of a foreign “judgment” for now. There is less risk of legitimizing such bodies this way than accepting preliminary references from them (as the CJEU does, C-132/20). A potential gamechanger would be a decision under Article 7(2) TEU. Yes, such a decision seems unlikely. But the inadequacy of solutions under primary law do not imply the necessity of sweeping modifications of the rules for cross-border proceedings.

I would relegate the rule of law issues to the public policy clauses (whether express or implied). This implies court proceedings upon application (typically) of the debtor. The interpretation and application of the public policy reservation must sufficiently accommodate the applicant’s right to a fair trial. For example, if the applicant can establish systemic rule of law violations, she must not have exhausted all remedies in the State of origin. One could also be more liberal with the requirement of “manifest” violations. Additionally, I would advocate for a similar unwritten exception to the lis pendens rules, in line with LM. If there is the “real risk” that a later judgment from another Member State could not be recognized and enforced due to public policy, there is no point in staying one’s own proceedings. It will be hard to establish this real risk, to be sure. But that is not necessarily bad – civil and commercial matters are not the right place to try to solve systemic problems.

On 9 March 2022, the CJEU ruled on the concept of “consumer” under Article 17(1)(c) of Brussels I bis Regulation (Wurth Automotive, Case C-177/22).

According to the CJEU, national court may take into account the “impression” created by a person’s conduct towards the other contracting party in order to deny the former consumer status. Behaving like a trader may therefore lead to the consumer being deprived of his/her procedural protection provided by Brussels I bis Regulation, Section 4. Although this solution is already found in the Gruber judgment (paras 51-52), the facts of this new case are quite different. It is therefore questionable whether the analogical reasoning followed by the Court is fully justified.

Facts and Issue

A person, domiciled in Austria bought a second-hand car over the Internet from a German seller. In practice, however, she had asked her partner, a provider of an online car sales platform, to handle the purchase for her. The contract mentioned that it was concluded between the buyer, described as a “trader” and the German seller. The buyer did not ask for any modification. A few months later, she brought an action for warranty of hidden defects against the German seller before the Austrian court.

Did the Austrian court have jurisdiction based on the consumer’s domicile pursuant to Article 18(1) Brussels I bis Regulation?  And to begin with, was there a “consumer” at all?

The German seller argued that the contract was a B2B contract and raised an objection to international jurisdiction. The Austrian court referred the matter to the Court of Justice to find out how to overcome the factual uncertainties surrounding the characterisation of the “consumer” in this case.

Classical Criterion: Private Consumption’s Purposes of the Contract

As recalled by the CJEU, the concept of consumer within the meaning of Article 17(1) of the Brussels I bis Regulation is based on the purposes (present or future) pursued by the conclusion of the contract. These purposes must be (for the most part) private or, put differently, for non-business use. The rest, in particular the professional status of the person (i.e., whether the person is employed or self-employed) does not matter. In the present case, the buyer was the regular web designer for her partner’s online car sales platform. The only question to be analysed by the referring court here is therefore whether this car was purchased for personal purposes or (mainly) for the pursuit of a professional activity.

Proof of the Private Consumption’s Purposes: From Objective Assessment to Behavioural Analysis

In order to ascertain the private purposes of the contract, the national court must first and foremost rely on the evidence which objectively results from the case in question. But what if this evidence is insufficient? According to the CJEU, the national court may take into account more subjective, “psychological” elements, by checking whether the alleged consumer’s behaviour gave the impression to the other party (i.e. the trader) that she was acting for business purposes.

Consequently, the Court of justice held that

even if the contract does not as such serve a non-negligible business purpose, … the individual must be regarded, in view of the impression he or she has given to the other party acting in good faith, as having renounced the protection afforded by those provisions (para 32, by analogy, Gruber, C‑464/01, para 53).

Hence, a B2C dispute can be removed from Section 4 of Brussels I bis Regulation by a form of “implied waiver” by the consumer.

How to Assess the Behaviour of the Customer?

In order to assess the behaviour of the buyer, the national court must rely on a body of evidence showing “the impression created by that person’s conduct on the other contracting party” (Section 2 of the operative part). In the case at hand, this impression could be revealed (inter alia) by a lack of a reaction on the part of the person relying on the status of consumer to the terms of the contract designating him or her as a trader, by the fact that she had concluded the contract through a professional intermediary in the field of covered by the contract (her partner) or by the fact that, after the contract was signed, the latter had asked the seller about the possibility of mentioning the VAT on the invoice (Section 2 of the operative part).

In addition, where it proves impossible to determine certain circumstances surrounding the conclusion of a contract, the national court must assess the evidentiary value of the available information “in accordance with the rules of national law, including whether the benefit of the doubt must be given to the person relying on the status of consumer” (Section 3 of the operative part). This is a classic expression of procedural autonomy in EU law. Even though the “consumer” within the meaning of Article 17 of the Brussels I bis Regulation is an autonomous concept of EU law, the national court’s assessment shall be based on the lex fori (within the limits of the principles of equivalence and effectiveness).

Critical Assessment

In contrast to the Gruber judgment, the present case did not involve a contract with a twofold private and professional purpose. It was thus not a question of assessing the “non-negligible business purpose” of the contract in order to exclude consumer procedural protection. Therefore, the consideration of the behaviour of the consumer acting as a trader does not have the same scope here as in Gruber. The CJEU is certainly aware of this since it insists on the “good faith” of the professional contractual party as a counterbalance (paras 34 and 37). The good faith of the other party is a necessary condition for denying the consumer his/her procedural protective regime, whereas in theory he/she should be entitled to it in the case of a contract concluded for entirely private purposes.

The implicit reason why the consumer may lose procedural protection is that traders need legal certainty in contractual matters. Either they are dealing with a consumer and they know (and can anticipate) that the consumer enjoys a favourable regime. Or they are doing business with a partner of their own category and party autonomy fully applies. Vis-à-vis a careless or negligent consumer who, inter alia, did not deny entering into the contract as a “trader”, it can be considered that his/her professional co-contracting party was not able to anticipate and integrate the “risk” of concluding a contract with a weaker party.

From a rational point of view, the solution can be approved. But based on the functional logic of consumerism, offering a derogatory regime to protect the weaker party, one may have a doubt. Was the poker player in the judgment Personal Exchange International (analysed here) more of a consumer than this buyer of a second-hand car? The methodology provided by the Court of Justice is not easy to handle and implies a tricky case-by-case analysis. It is therefore not sure that in the end legal certainty will really be strengthened.

In a post published on this blog in 2022, I addressed the relationship between private international law (PIL) and strategic climate change litigation, focusing on claims brought or supported by children and youth applicants. In those disputes, where plaintiffs are mostly seeking to hold States accountable for the violations of international and/or constitutional law, private international law was bound to have very little, if anything, to contribute.

However, in the same blog post, I also pointed at some developments in the “underworld” of climate change litigation, hinting to the emergence of new court strategies, whereby climate activists (not necessarily children or youth) direct their claims towards big transnational corporations, following in the footsteps of Milieudefensie et al. v. Royal Dutch Shell plc.

“Private” claims of this kind are bound to speak the language of PIL, at least in cases where a foreign element is involved.

Recent developments in the field of climate change litigation confirm this trend. The Four Islanders of Pari case borrows the ordinary tools of private law (tortious liability) in order to hold a foreign transnational corporation accountable for its overall CO2 emissions. This case is particularly interesting for two reasons. First, owing to its timing and the kind of damage alleged by the applicants, this case fits in a wider context of litigation, which is presently involving (or trying to involve) several international bodies and tribunals, thus evidencing a certain complementarity of action, or at least a commonality of end-goals, between private and public international law (A). Second, from the specific standpoint of PIL, this case differs from its predecessors (notably from Luciano Lliuya v. RWE AG) for being beyond the scope of application of EU PIL, the conflict of laws issues raised therein being governed by domestic (Swiss) PIL (B).

A. The Broader Context: the Courtroom Fight against Sea Level Rise.

It is probably not incorrect to read the Four Islanders of Pari case as one small piece of a bigger puzzle, consisting of a fully-fledged courtroom fight against sea level rise, ie one of the most immediate consequences of climate change. Unsurprisingly, this fight is presently carried out primarily by low-lying insular States and their inhabitants: owing to their specific conformation, these islands (mostly situated in the Pacific area) are particularly vulnerable to the short-term effects of climate-change on sea levels, which are exposing them to the risk of recurrent flooding, fresh water salinization and, eventually, (total or partial) disappearance by the year 2050, or sooner.

Against this backdrop, a group of small insular States (eventually supported by a group of like-minded States) have promoted, or is seeking to promote, initiatives before two major international tribunals. In October 2022, a group of States led by Vanuatu announced the preparation of a draft Resolution, intending to prompt the UN General Assembly to seek an advisory opinion from the ICJ “on the obligations of States in respect of climate change”.

The text of the Draft Resolution was circulated among all UN member States at the end of November 2022, with a view to putting it to a vote in early 2023. In parallel with these developments, on 12 December 2022, the Commission of Small Island States on Climate Change and International Law (representing Barbuda, Tuvalu and Palau) has submitted another request for an advisory Opinion to a different international tribunal, the ITLOS.

In both cases, the advisory Opinions seek to clarify the climate change-related legal obligations placed upon States by a rich body of public international law, including the UN Charter, the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, the UN Framework Convention on Climate Change, the Paris Agreement, the UNCLOS, and rules of general international law, such as the duty of due diligence, the rights recognized in the Universal Declaration of Human Rights, the principle of prevention of significant harm to the environment. For evident reasons, a special emphasis is placed on the protection of the marine environment, on the specific vulnerability of Small Island developing States and on the interests of future generations.

Although non-binding, such advisory Opinions may entail authoritative statements of law with legal effects (see ITLOS, Maritime Delimitation in the Indian Ocean, paras. 202-205) and carry great legal weight and moral authority, thus contributing, in their way, to the elucidation and development of international law (ICJ). They could be, in particular, a preliminary step in the quest for greater accountability of international actors vis-à-vis the protection and the restoration of a viable (marine) environment.

Besides the actions undertaken directly by States, the inhabitants of small Pacific islands have been equally active before  judicial or quasi-judicial international bodies.

Among the first initiatives undertaken under the aegis of the International Covenant on Civil and Political Rights (ICCPR), there is a communication to the UN Human Rights Committee (UNCHR) filed in 2015 by a citizen of Kiribati. Claiming that climate change had turned its place of origin in an “untenable and violent environment” , which forced him and his family to migrate, the author of the Communication contested New Zealand’s decision to deny the refugee status. While unsuccessful on the merits (the UN Committee found the denial issued by New Zealand’s authorities was not clearly arbitrary and did not amount to a manifest error or a denial of justice), this initiative is still producing systemic effects for climate asylum-seekers worldwide (see, for example, a recent judgment of the Italian Court of Cassation, quoting the View adopted by the UNHRC).

More recently, a group of Islanders of the Torres Strait filed another Communication with the UNHRC, alleging the violation, by Australia, of a number of ICCPR provisions. They put forth, in particular, Australia’s failure to adopt adequate adaptation measures to protect their lives and way of life, their homes and their culture against the threats posed by sea level rise. In September 2022, the UNCHR found a violation of Article 17 (right to private and family life) and of Article 27 (protection of minorities) of the ICCPR. It ordered the respondent State to pay adequate compensation for the harm suffered by the plaintiffs and to conceive and implement effective measures to secure the communities’ continued safe existence on their respective islands, in meaningful consultations with the communities’ members.

Most interestingly for the readers of this blog, however, public international law has not been the only weapon brandished by the inhabitants of small island States in the fight against rising sea levels.

B. Quid Private International Law? The Four Islanders of Pari Case.

Within the framework of this broader effort to counter the effects of climate change, small State islanders have not neglected the “private side” of court litigation, ie the disputes between private entities before national (civil) courts.

In August 2022, four residents of the island of Pari (Indonesia) introduced a request for conciliation before the Justice of the Peace of the Canton of Zug (Switzerland). This is a preliminary step mandated by the Swiss Civil Procedure Code for pursuing a civil action (Article 198 Swiss CCP).

The claim is directed towards Holcim, a corporation established in Switzerland and specialized in cement-production activities. Holcim figures among the so-called Carbon Majors, ie the hundred or so companies that account for more than 70% of global greenhouse gas emissions since the dawn of the industrial age (see also here). More specifically, the plaintiffs are trying to establish a direct correlation between Holcim’s significant pro-rata contribution to such emissions (0.42% of global industrial CO2 emissions since 1750: source) and the adverse effects suffered by the local ecosystem on Pari Island. For these purposes, these plaintiffs are supported by a wide transnational networks of NGOs, whose alliances straddle the North-South divide [HEKS/EPER (Switzerland); ECCHR (Germany); Walhì (Indonesia)].

Reporting on this case is rather difficult, as no procedural documents have been made available to the general public yet. The analysis below is based on the information provided by the website dedicated to the case, which does not, however, provide for a comprehensive summary of the complaint. As mentioned above, this case is interesting for two main reasons: the type of relief sought by the claimants and the PIL issues raised therein.

The Claim and the Relief Sought

According to what we presently know about the case, four Indonesian claimants “are demanding justice on behalf of the island of Pari, which is facing imminent ruin, and are taking Holcim to court”. The income and subsistence of these plaintiffs is highly dependent on fishing and tourism, ie activities that are severely affected by the rise in sea levels, which has reached a 20 cm increase globally and which threatens the very existence of the island over the next 30 years (see here).

Holcim is asked, inter alia, to “provide proportional compensation for the climate-related damage the plaintiffs have already suffered in Pari Island”. The claim is therefore based, in all probability, on the general rule on civil liability, likely interpreted in the light of international human rights law. Claims of this kind, based on extra contractual liability or a general duty of care, are not new to climate change litigation against States (see, for example A Sud v Italy) or private corporations (Milieudefensie et al. v. Royal Dutch Shell plc or Luciano Lliuya v. RWE AG). However, according to the database of the Sabin Center for Climate Change Law, the Swiss case “is novel and unprecedented ” as it combines compensation (the Lliuya approach) and reduction of GHGs (the Milieudefensie approach).

In fact, in addition to the demand for compensation, the action brought by the four islanders of Pari seeks to compel Holcim to cut CO2 emissions by 43% by 2030, compared to 2019 figures (or to reduce their emission according to the recommendations of the climate science in order to limit global warming to 1.5°C) and to contribute towards adaptation measures on Pari Island. This reference to the 1.5° threshold (set by the Paris Agreement) is an obvious hint of that the case is partly based, or at least relies on, obligations defined by public international law. It thus evidences a certain “confluence” of public and private international law. This request for injunctive relief additionally serves to highlight the commonalities that exist between the Four Islanders of Pari case and the claims advanced by the litigation directed towards States in varied fora around the globe (see again this post).

The Applicable PIL Regime

While being the first case of this kind in Switzerland, the Four Islanders of Pari closely reminds of the German Luciano Lliuya v. RWE AG. Therein, a Peruvian farmer (supported by the NGO Germanwatch) is suing a German electricity company based on its estimated contribution to global industrial greenhouse gas emissions since the beginning of industrialization. These emissions, it is contended, have contributed to the melting of mountain glaciers near Huaraz, and to the correlated rise in the water level of a glacial lake located above his town. As a consequence, his property is currently threatened by floods.

There is, however, an important difference between the two cases. While Lliuya falls within the scope of application of the Brussels I bis and the Rome II Regulations, the Four Islanders of Pari will be entirely governed by the 1987 Swiss Act on PIL (SwAPIL). This vouches for some caution in assessing the translatability to the latter of the “lessons” thus far learned from the former.

The first lesson derivable from Lliuya is that establishing jurisdiction in this kind of cases is a relatively straightforward matter, based on the widely accepted principle of actor sequitur forum rei. Suing in the place of domicile of the defendant under Article 4 of the Brussels Ibis Regulation, as interpreted in Owusu, guarantees access to a (European) forum. The same conclusion seems to apply, prima facie, within the different framework of the SwAPIL. Its Article 2, which functionally corresponds to Article 4 of Regulation 1215/2012, does not enable the seized court to exercise any discretion in deciding whether or not to hear the case (see Goldwin p. 137, a contrario). Pragmatically, the fact that (economically disadvantaged) third state plaintiffs might be required to pay court fees or warranties in order to access the local forum should not be particularly problematic from the standpoint of the right to a court, in cases where litigation is supported by external funding through NGOs or by other means (eg crowdfunding).

The progression of Lliuya before German courts additionally shows that jurisdiction is particularly important as it indirectly determines the applicable procedural law, governing fundamental issues such as the admissibility of the action or the justiciability of the claim. Moreover, in cases like Lliuya or the Four Islanders of Pari, other procedural issues such as the burden of proof, the means and the standard of evidence will play a pivotal role in determining the chances of failure or of success of the action. This means that the choice of forum remains a cornerstone in the litigation strategy of climate change cross-border cases.

Concerning the applicable law, the SwAPIL does not provide for a specific conflict of law rule for environmental damage, along the lines of Article 7 Rome II. As well known, the latter sets out a policy-oriented rule of conflict empowering the person(s) seeking compensation for damage, who is given the choice between the law of the State where the event giving rise to the damage occurred and the law of the State in which the damage occured.

From the standpoint of PIL, the determination of the applicable law might indeed be the major point of contention in the Four Islanders of Pari case, in the light of the very different choice made in this respect by the Swiss legislator. Article 133 SwAPIL provides, at its 2^nd paragraph, that where the parties to the dispute are not habitually resident in the same State, torts are governed by the law of the State where the tort was committed (l’État dans lequel l’acte illicite a été commis/das Recht des States…in dem die unerlaubte Handlung begangen worden ist/ il diritto dello Stato in cui l’atto è stato commesso). However, when “the result” occurred in another State, the law of such state applies if the tortfeasor should have foreseen that the result would have occurred there. (English translation provided by Dutoit, p. 595). Therefore, SwAPIL seems to contemplate the well-known alternative between place of the event giving rise to damage and place of the damage, similarly to EU PIL, but it does not confer any choice upon the alleged victim. Conversely, the foreseeability clause set out by the second part of Article 133 SwAPIL, 2^nd paragraph, raises a new problem in terms of burden of proof, in relation to which Swiss legal scholarship is divided (Dutoit, p. 595-6).

Unfortunately, as the procedural documents of the Four Islanders of Pari case have not been made available online, it is impossible to properly assess the precise petitum and to determine whether, and to what extent, the tort alleged by the Islanders is Distanzdelikt, or even a ubiquitous tort. There are many factual elements that might be relevant in this respect, such as the place where Holcim is headquartered (as the place where the main decisions in terms of environmental sustainability and green policies are taken); the concrete places (likely scattered around the world) in which Holcim is undertaking its material production activities; and Indonesia, as the place where the specific damage alleged by the plaintiffs materialized (provided that this was foreseeable by Holcim). The possibility of triggering the escape clause under Article 15 SwAPIL must also be taken into account (ie. the application of the law of the State with which the case presents “a much closer” connection). It would be interesting to know whether, in concreto, the plaintiffs are pleading for the applicability of Swiss or a foreign law.

C. Conclusions and Future Trajectories

The Four Islanders of Pari case is still at its very initial stage and deserves to be monitored closely in the near future. Its very existence confirms, however, that private international law is becoming and will become increasingly important in strategic climate change litigation, when this is directed towards private companies such as the Carbon Majors. In a way, disputes of this kind may be seen as complementary to the initiatives undertaken under the aegis of public international law by particularly affected States. There is, in particular, a commonality of objectives, despite the obvious difference in both legal petita and remedies brought before national and international courts.

Another interesting lead to be followed in the future concerns the role played by PIL in cases brought by EU-based claimants against EU-based corporations, based on allegations of false or misleading advertisement. Cases of this kind, which are mushrooming throughout the world’s jurisdictions, may seem purely domestic at a first glance. However, the fact that plaintiff and defendant are, in most cases, domiciled/established in the same State does not exclude, as such, the possibility that the “affected market” may extend beyond national borders, especially where the defendant is a big transnational corporations operating worldwide.

An example of such cases might be the recent FossielVrij NL v. KLM, where a group of environmental organizations is suing (in the Netherlands) the national airline KLM, owing to its ‘Fly Responsibly’ advertisement campaign (which is based on allegedly false claims of “climate neutrality” or “CO2ZERO”).

The (unofficial English translation of the) application is regrettably very concise as concerns the reasoning on jurisdiction and (especially) applicable law. It merely states  that “since both [the applicant] and KLM have their registered offices in the Netherlands, the Dutch court is competent to take cognizance of this dispute. As a result, Dutch law will also apply to the claims of Fossil Free against the defendant”.

While acknowledging, in the application, the wide reach of the Fly Responsibly campaign (here, § 179 : “The campaign will be rolled out worldwide on 13 December in a number of vital, fast-growing markets, the UK, Norway, Sweden, Germany, the US, Canada, Brazil and China”), implemented through TV ads, physical ads at Schiphol Airport, online “banner” ads on KLM websites, marketing emails and targeted ads on social media platforms (here, § 183), the application does not elaborate further on the relationship between the specific claim, the Rome II Regulation and the several options opened under its Article 6.

Cases of this kind also deserve to be closely followed by the private international lawyer.

The author of this post is Cristina González Beilfuss (University of Barcelona).

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The MPA case (Case C-501/20), decided by the CJEU on 1 August 2022, deals, at first sight, with a fairly unusual divorce scenario. The Spanish wife and the Portuguese husband are two members of the contract staff of the European Union working in the latter’s delegation in Togo. Leaving this aspect aside, the case, however, turns out to be quite ordinary. As highlighted by Advocate General Szpunar in his opinion, the situation of European citizens posted to a third State for work reasons is fairly commonplace.

EU expats might have an expectation to be able to divorce in the European Union, particularly, when their connection with the third State in question is tenuous. This seems to be the case here. The spouses were formerly based in Guinea – Bissau; whether they were already employed by the EU at that stage cannot be ascertained by reading the judgment or the Advocate General’s Opinion, but can be safely assumed. In any case, their degree of integration in either Guinea Bissau or Togo seems to be relative. The couple chose to get married in the Spanish Embassy in Guinea-Bissau and the Spanish wife came to Spain to give birth to their two children in 2007 and 2015. It therefore might have seemed only natural to her to file the divorce petition in Spain.

The divorce claim was, in fact, quite standard; she sought the dissolution of the marriage, a decision on the custody of the two children of the marriage and the award of maintenance for the children, including the use of the family home in Togo. But apparently the husband refused to accept that the marriage was over, which is why the divorce became contentious. This was most unfortunate because empirical research has shown that habitual residence is very often not examined unless it is a contested matter, as happened in this case. The court of first instance declined hearing the case. The decision was appealed, because the wife wanted to divorce. The Court of Appeal in Barcelona subsequently made a request for a preliminary ruling on a number of issues.

As regards the dissolution of the marriage, which is the aspect dealt with in this entry, the most significant question referred to the CJEU was the interpretation of the rule formerly contained in Article 6 of Regulation 2201/2003. Many commentators have found this rule confusing, particularly in connection with Article 7 (residual jurisdiction). A clarification by the CJEU is therefore most welcome.

The CJEU chose to interpret the rule literally. A spouse who is habitually resident in a Member State or who is a national Member State can only be sued in another Member State in accordance with the rules of jurisdiction contained in the Regulation. This entails that in an expat situation only the courts in the Member State of the defendant’s nationality (i.e. in the case at hand the courts in Portugal) can have recourse to domestic residual jurisdiction rules. The courts in the Member State of the plaintiff’s nationality have to decline hearing the case. This is what the requesting Court, the Court of Appeal in Barcelona, has done in a decision rendered on the 21 October 2022.

The purpose of this post is not to question the interpretation of the CJEU nor the decision of the Spanish Court. The main problem is, in my view, that the rule as such does not make sense. In the context of marriage dissolution in the strict sense, i.e. in connection with the continuation of the matrimonial bond, there is, in my view, no justification for protecting the defendant, i.e. the spouse that does not want the divorce and making life difficult for the spouse who wants to dissolve the marriage. The rule is moreover only workable if the divorce is contentious and one can distinguish between a defendant and a plaintiff. Would the Spanish court have been able to resort to its domestic rules of jurisdiction had the spouses decided to jointly request the divorce?

 And what are the consequences of the rule? If the Spanish wife wants to divorce in the EU, she has to go to Portugal. Whether Portuguese courts have jurisdiction is, however, uncertain. Article 62 of the Portuguese Código de proceso civil grants international jurisdiction to Portuguese courts when the action may be brought before a Portuguese court under the rules of territorial jurisdiction. Such rules allocate jurisdiction to the courts of the habitual residence or domicile of the plaintiff. The Portuguese courts also have jurisdiction if the fact that gave rise to the cause of action in the lawsuit or any facts leading to the cause of action have taken place in Portugal. Since the Spanish wife never had an habitual residence or domicile in Portugal and there is no factual connection to Portugal, the only possibility left would be to argue that Article 62(c) of the Código de proceso civil, containing a forum necessitatis, applies. The rule seems to be more open ended than the European forum necessitatis as available under the Maintenance, the Succession, the Matrimonial Property and the Registered Partnership Regulations. It grants jurisdiction to the Portuguese courts when effect cannot be given to the invoked right other than through an action filed in Portuguese territory or the claimant has appreciable difficulty in commencing an action abroad, as long as there is a relevant connecting element, either personal or physical, between the subject matter of the dispute and the Portuguese legal order.

A forum necessitatis is, in principle, only available exceptionally if the proceedings in question cannot reasonably be brought or conducted or would be impossible in the third State in question. This has been examined by the Court of Appeal of Barcelona in relation to the maintenance claim ancillary to the divorce petition. Following the guidance given by the CJEU in the MPA decision, the court undertook a detailed analysis of the procedural conditions in Togo and their consequences on the individual case and reached the conclusion that there is no evidence that access to court would not be possible or extraordinarily difficult in Togo.

If the Portuguese courts reached the same conclusion and the Portuguese forum necessitatis was also found to be inapplicable, the Spanish wife would have to seek divorce in Togo. And assuming that they accepted to hear the case, would the courts in Togo dissolve the marriage?  In accordance with Article 714 of the Code des personnes et familles of Togo, the courts in Togo would, in the absence of a common nationality of the spouses, apply the law of their common domicile i.e. the law of Togo. Under the law of Togo divorce is available either on the basis of mutual consent (which is not the case here) or in the absence thereof, on the ground of fault. The Spanish wife would have to plead and prove that marital life had become intolerable as a result of infidelity, excesses, abuse or insults attributable to her husband; that the family life and the safety of children are seriously compromised by notorious misconduct, moral or material abandonment of the home or the sentencing of one of the spouses to a firm sentence exceeding four years of imprisonment. Other grounds are impotence or definitive medical sterility or a refusal to consummate the marriage. Failing that the required separation period would be of at least five years. A stark contrast to the situation under Spanish law which takes the position that nobody should be forced to stay in a marriage he or she no longer wants and accepts divorce on unilateral demand! And to the situation under Portuguese law where divorce can be requested after a de facto separation of only one year!

A forum patriae thus appears to be necessary in order to guarantee access to divorce, not to court. Given the development of EU citizenship which the CJEU has repeatedly stated is destined to be the fundamental status of nationals of the Member States, it is outdated to provide a forum patriae only if spouses hold the nationality of the same Member State, and to treat the situation of an expat couple of EU citizens in the same manner as that of a couple where only one spouse is an EU citizen and even more so as the situation of a couple of an EU citizen and a third State national who happens to be a national of the third State in question.

The implications of EU citizenship in connection with access to European courts were not analysed in the MPA case, simply because the argument was not raised. In his Opinion on Case C‑603/20 PPU, which the CJEU did not follow, Advocate General Rantos derived from Article 20 of the TFUE a right to have parental responsibility examined by a court of a Member State, if the child is an EU citizen (paras 76 and 77). The idea should be further explored in connection with marriage dissolution.

The 2006 Commission Proposal for the amendment of Regulation 2201/2003, which was withdrawn included a provision stipulating that, where neither of the spouses is habitually resident in the territory of a Member State and the spouses do not have the common nationality of a Member State, the courts of a Member State should be competent by virtue of the fact that: (a) the spouses had their common previous habitual residence in the territory of that Member State for at least three years; or (b) one of the spouses had the nationality of that Member State (Article 7 of the Proposal). Life would have been easier for the Spanish wife had this proposal been adopted. In the end, she has been lucky though, because the husband has returned to the EU! Otherwise she would continue being trapped in a marriage that she no longer wants.

This is the last post in the series dedicated to the empirical analysis of the ECJ’s case law in the field of EUPIL. The previous posts can be found here and here.

This post is slightly different from its predecessors, as the angle of analysis is reversed. Rather than (just) analysing the characteristics of the ECJ’s case law in the field of EUPIL, this post purports to use such case law as an indicator of the transformations in the working methods of the ECJ itself. I refer back to my previous posts as concerns the methodology and definitions upon which this research is based.

The starting point of my analysis is the objective set out by Recital 6 of the Court’s Rules of Procedure (RoP): these aim at “maintain[ing] the Court’s capacity, in the face of an ever-increasing caseload, to dispose within a reasonable period of time of the cases brought before it”.

Chart 1  below shows, in this respect, that this objective is being pursued by the Court in a rather effective manner.

Chart 1

The red line in Chart 1 indicates the evolution over time of the Court of Justice’s overall workload (and not only of preliminary reference procedures). The numbers on the vertical axis shall therefore be interpreted as indicating the total amount of cases filed each year. As I could not find any official statistics pertaining to the 70s, 80s and early 90s, this data was obtained very pragmatically. I used the “advanced search” form on Curia.eu: for each year since 1976, I selected the time frame 01/01 to 31/12, filtering the results based on the type of court (Court of Justice), and the type of date (date of the lodging of the application initiating the proceedings). The red line portrays the results thus obtained. For the sake of consistency, I used this methodology for all the years between 1976 and 2022, even if official statistics are available since 1997. The divergence between the two sets of data (official and unofficial) is negligible (< 5 per year).

What happened in 1979? I am actually not sure. It looks like a huge number of cases on the status, remuneration and benefits of officials were filed that year. For most of these cases, there is no judgment, which probably means they were withdrawn at some point. Their effective impact on the workload of the ECJ remains therefore undetermined.

The line in dark green shows the average length (expressed in calendar days) of preliminary reference procedures in the field of EUPIL (this data is global, as it refers to cases decided with and without an Opinion of the AG, as well as cases that have been withdrawn and removed from the register).

The line in lighter green (which overlaps with the former until 2001) portrays the average length of preliminary references decided with an Opinion of the AG, the line in blue those which dispensed with it. The interruptions in the latter mean that there were no cases decided without an AG’s Opinion in the corresponding years.

Finally, the line in violet represents the average length of urgent preliminary reference procedures (PPUs) in the field of EUPIL. These cases, all dealing with family law, are decided with the support of the AG Opinion (formerly, a View) and a hearing. The average length of the proceedings remains remarkably low: to the present days, 80 calendar days (on this topic, see also this document).

Against this backdrop, the objective set out by Recital 6 seems met: the average length of (ordinary) preliminary reference procedures has been following, over the last years, a decreasing trend. How could the Court manage such result, despite its increasing workload?

Of course, there have been important institutional changes over these four decades: the progressive enlargements of the EU, the devolution of certain competences to the General Court and to the Civil Servant Tribunal (and back again) have all had an indisputable impact on the Court of Justice’s caseload. The purpose of this post, however, is to demonstrate that much was done also from the standpoint of internal (re)organization and working methods. In this respect, the analysis of the procedural treatment reserved over time to EUPIL preliminary references shows the noteworthy adaptability of the Court of Justice’s internal functioning and its ability to optimize the use of its resources. As we will see, there have been significant transformations as concerns the use of judicial formations (A), of the AGs’ Opinions (B) and of hearings (C). This will also be the opportunity to come back on the issue of informal specialization of the Members of the Court, which I remarked in my first post (D).

 A. The Transformations of Judicial Formations

Two important observations can be drawn from the stock chart below: first, EUPIL preliminary references have always represented a negligible part of the ECJ’s total caseload, having amounted to less than ten cases per year until the early 2000s. Second, there has been a considerable shift, over the years, as concerns the judicial formation adopted by the ECJ to decide on the questions raised by these cases.

Chart 2

In the early days of the ECJ’s activity under the 1971 Protocol on the interpretation of the 1968 Brussels Convention, most of the EUPIL preliminary references were decided by the full court. It must be assumed this was a clear and conscious stance taken by that Court with respect to EUPIL cases, and not just the indirect result of a different era, when the ECJ, counted only nine Members and had a very limited caseload, thus having the opportunity to resort to the plenum as the default judicial formation. To the contrary, it is apparent from the judgment rendered in Tessili that the Court could already operate in smaller deciding panels (two “Presidents of Chambers” are mentioned in the part of the decision listing the composition of the court).

The preference for the Full Court, manifested by this early case law, should come as no surprise: the cases decided by this formation between 1976 and 1980 (De Bloos, Mines des Potasse, LTU, to name a few) laid the foundations of modern EUPIL, defining extremely important methodological and terminological issues that still shape today’s way of approaching the new generation of EUPIL Regulations.

What was that “Full Court”, however? It was certainly nothing similar to today’s Full Court, regulated by Article 60 RoP and Article 16 of the Statute. It was admittedly surprising to note that the Full Court of the early days consisted of sometimes 9, sometimes 7 judges, following patterns whose underpinning logic is not immediately perceivable by the external observer. It looks like this “Full Court” was indeed a rather flexible judicial formation, counting a “bigger” and a “smaller” plenum, corresponding in essence to what we call today Full Court and Grand Chamber (I am drawing this information by this scholarly article of 2001).

With the exception of the initial period going from mid-70s until the 80s and another intermission in the early 90s, Chambers of five judges have remained the most common judicial formation for EUPIL cases. The first EUPIL preliminary reference deferred a Chamber of three judges was case 120/79, on maintenance obligations. Since then, this judicial formation has been seldom employed throughout three decades, having become more recurrent over the last years. This can be seen as an integral part of the ECJ’s overall attempt to optimize the use of its resources, including its personnel. Only 6 (7,6 %) of the cases deferred to a Chamber of three since 2003 was decided with the support of the Opinion (2003 being the point in time when the AG’s Opinion was no longer systematically required for all cases: see infra Section B). In practice, this means that these cases did not raise legal questions that, owing to their novelty, importance or technical complexity, called for the advisory intervention of the AG. A Chamber of three is overall more efficient when deciding this type of cases, insofar as the average length of the proceedings before it is 337 calendar days, compared to 437 calendar days that are needed, on average, by a Chamber of five to adjudicate without an Opinion.

A final word on the Grand Chamber which, as we know it, was created in 2003. Owusu was the first EUPIL preliminary reference assigned to this judicial formation, which has been used rather sparingly over time (only 3.8 % of EUPIL preliminary references were assigned to it). The period between 2006 and 2009 was marked, however, by a veritable boom of Grand Chamber cases. This was, after all, an “era of first times”: the first ever preliminary references on the Brussels IIbis Regulation (C-405/06) and on the 1980 Rome Convention (cases ICF and Koelzsch), as well as the first occasion for the ECJ to test the Brussels regime against the challenges brought along by the Internet (cases Pammer and Alpenhof, eDate).

B. The Opinion of the AG

Speaking of eDate, have you ever noticed that its “ancestor”, Shevill, has not one, but two Opinions, delivered by two different AGs? Same things for Marinari, also filed in 1993. As correctly indicated by AG Léger, it could “infrequently happe[n]…, by reason of the reopening of the oral procedure and as a result of happenstance in the order of business of the Court”, that two Opinions are delivered in the same case. The Shevill judgment explains, in this respect, that the case was initially assigned to the Sixth Chamber of the Court (chamber of five) and referred, after hearing the Opinion of AG Darmon in July 1994, « back to the Court », meaning the Full Court. The oral phase of the procedure was consequently reopened before this bigger judicial formation, and a new Opinion was delivered by a different AG, Mr. Léger. In Marinari, the issue was, again, the reopening of the oral phase of the procedure, without any referral to a different judicial formation. Again, two different AGs delivered an Opinion in the case. The fact triggering the second intervention of the AG is, therefore, the reopening of the oral phase of the procedure as such, and not the referral to a different judicial formation.

While the merits of having two different AGs delivering an Opinion in the same case could lie in the potentially different point of view introduced into the debate, thanks to a “fresh start” to the study of the case file, this working method could be deemed inefficient insofar as at least four different persons (the two AGs and their respective référendaires) are called to work on the same case from scratch (in practice, the two AGs adopted the same stance in both Marinari and Shevill).

The reopening of the oral procedure is only ordered in exceptional circumstances and is not a common occurrence. This has not happened again in EUPIL cases since 1993, but it could potentially happen. The new RoP provide, in Article 83, that the Court may at any time order the opening or reopening of the oral part of the procedure, in particular if it considers that it lacks sufficient information or where a party has submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court, or where the case must be decided on the basis of an argument which has not been debated between the parties or the interested persons referred to in Article 23 of the Statute. It is worth noting, however, that today the reopening of the oral phase of the procedure no longer entails the intervention of two different Advocates General. I can mention two cases, both outside the field of EUPIL, where an order under Article 83 RoP was adopted: C-168/16 and, more recently, C-530/20. In both, a single AG delivered two subsequent Opinions. It seems therefore that the Court is nowadays favouring efficiency over the plurality of views, consistently with the general objective of reducing the length of the proceedings set out in Recital 6 RoP. Also noteworthy is that the involvement of a single AG in each case is now provided also for the delivery of Opinions (in French, Avis) requested in accordance with Article 218 (11) TFEU (Recital 5 RoP).

The biggest innovation concerning the role of the AG –  also made in the attempt to increasing the ECJ’s overall efficiency – happened in 2003. Before this date, the AG had to deliver an Opinion for all preliminary references brought before the Court. This explains why, up to that moment, 100% of the EUPIL preliminary references decided by a chamber of three judges came with an Opinion, whereas only the 7,6 % of the cases assigned to such judicial formation after 2003 called for the AG’s advisory intervention.

Nonetheless, Chart 3 below demonstrates that the great majority of EUPIL preliminary references is decided, even after 2003, with the support of the AG’s Opinion.

Chart 3

Of all EUPIL cases having dispensed with an Opinion, 60 % have been assigned to a chamber of three, and 40 % to a chamber of five. 16% have been decided through a reasoned order under Article 99 RoP (all of them adopted by a Chamber of three, except for C-518/99). The possibility to define a case by means of a reasoned order explains the existence of a certain number of cases decided without an Opinion even before 2003.

C. Hearings

Another area where the Court has striven to increase its efficiency concerns the holding of hearings. According to Recital 6 to the RoP, “in order to maintain the Court’s capacity, in the face of an ever-increasing caseload, to dispose within a reasonable period of time of the cases brought before it, it is also necessary to continue the efforts made to reduce the duration of proceedings before the Court, in particular by … providing for the Court to be able to rule without a hearing if it considers that it has sufficient information on the basis of all the written observations lodged in a case”. As I mentioned in my previous post, a hearing shall be held, according to Article 76 RoP, when it has been requested by an interested person that has not participated in the written phase of the procedure.

Chart 4 below shows the evolution in the use of hearings in EUPIL preliminary reference procedures.

Chart 4

The analysis of more than forty years of case law in a given field of law is also a journey through different drafting styles, used by the Court in its judgments. This is why, in a certain number of cases, it was not possible to determine whether or not a hearing was held. This concerns, in particular, the cases filed between 1984 and 1985. More recently, a certain number of judgments only mention the observations of the parties, without referring either to a “written procedure” or, more explicitly, to “a hearing”. Where there was no AG Opinion, or when this did not clarify this point, these cases were also classified in the “unsettled” category.

This said, it must be noted that the recent trend goes, quite indisputably, towards reducing the number of hearings held in EUPIL cases. Intuitively, holding a hearing will delay the procedure, and it makes sense to limit this effect to the cases where an oral procedure is necessary for the correct understanding of either the legal questions referred to the Court or of the context in which they were raised, as well as in the cases where it serves to preserve the right to be heard of the parties and the interested persons listed in Art. 23 of the Statute. Overall, hearings have been held in 14% of the cases assigned to a Chamber of three and in 62% of the cases decided by a Chamber of five. This percentage drops to 54.6 % in cases decided by a Chamber of five after the current RoP have come into force. There is, however, a certain number of EUPIL cases decided before 2012, whose judgment only contains references to the written phase of the procedure. It must be assumed that, therein, a hearing was not held, and that the possibility to dispense with the oral procedure existed also under the previous RoP.

D. The Specialization of Judges and AGs

To conclude this survey of the transformations made, in the quest for more efficiency, to the working methods of the ECJ, I wish to come back to the issue of informal specialization of judges and AGs, which I remarked in my first post, focusing solely on the 2015-2022 time frame.

I came back to this issue with ambivalent feelings, and I do not have any conclusive opinion on this topic, although I am keen on confirming my initial impression. Chart 5, below, shows the rate of intervention of different AGs in EUPIL cases since 1976.

Chart 5

The picture is indeed quite fragmented, but two observations are in order. First, just eight AGs have been in charge of 50% of the total EUPIL cases (right side of the pie chart), whereas the other 50% of cases is shared between 51 different AGs. Second, the eight AGs on the right side of the chart have all exercised their functions in recent times (late AG Bot, who was the first among them to arrive at the Court, was appointed in 2006). It could therefore be concluded that specialization of AGs – if any – is a relatively recent trend, with the last 15 years testifying of a certain tendency to see a smaller number of AGs systematically involved in EUPIL cases.

Chart 6 below is a variation of Chart 5, taking into account the evolution over time of appointments of AGs to EUPIL preliminary references (click here for a slightly larger picture).

Chart 6

In the attempt to increase the readability of the chart, only AGs having been appointed in more than five EUPIL cases have been named. The category “others”, in yellow, accounts for the remaining cases and groups 27 different AGs (for 74 cases). As remarked above, the specialization appears stronger in recent times, with the yellow category disappearing completely between 2011 and 2017. The recent spike in the yellow category has a clear explanation. AGs Jääskinen, Saugmandsgaard Øe and Bobek, who have been highly active in the field of EUPIL, have ceased their functions in 2019 and 2021 respectively. We are now, it seems, in a phase of transition, where new AGs have taken over and might develop, in the coming months/years, a similar informal specialization in EUPIL cases. Quite remarkable is, in this respect, AG Pikamäe, who already appears in the Chart despite his recent appointment.

The exact same situation exists with respect to Reporting Judges, with the notable difference that only two of the judges appearing on the right side of the pie chart are presently still working at the Court. In this domain domain, the turnover effect will be even higher in the coming months.

Chart 7

Chart 8. Click here for a slightly larger picture.

 

As I already mentioned, the specialization of AGs and Reporting Judges, if any, is purely informal, and should be taken as an objective data emerging from the analysis of existing case law: some among them have simply dealt with EUPIL cases more often than others. This approach could favour internal efficiency, since prior dealings with a certain subject matter could reduce the time needed for assessing the case and take a stance on the legal question it raises. It remains, at the same time, flexible enough to ensure the correct functioning of the Court (for example in terms of equitable distribution of cases among judges/AGs and the prompt dealing of PPUs and PPAs). A more rigid approach to specialization (such as the formal institution of specialized chambers) might jeopardize the achievement of this second “organizational” objective.

I am coming back to the topic of a recent post published on this blog, where I analyzed the trends emerging from seven years (2015-2022) of ECJ case law in the field of judicial cooperation in civil matters.

I would like to thank the readers of this blog, who gave me feedback and ideas for new research directions. Building on these suggestions, I purport to write a series of related posts on specific aspects of EU Private International Law (EUPIL) cases brought before the Luxembourg Court.

The planned posts aim to promote a more comprehensive understanding of the ECJ’s rulings on EUPIL instruments, by bringing attention on the very first part of the judgment: despite being often overlooked by legal scholars, this can be quite interesting in its own way.

The present post, the first in the series, will focus on the origin of the EUPIL preliminary references brought before the ECJ (third red box in order of appearance).

The second post in the series will look into the role of States within the preliminary reference procedure and their respective level of “engagement” with EUPIL cases, as evidenced by the observations filed with the ECJ pursuant to Article 23 of its Statute (eighth red box in order of appearance; I am very grateful to Martin Margonski for the suggestion).

A third post will use the case law in EUPIL to highlight the internal transformation of a Court – the ECJ – that has seen its caseload increase by more than 450% since 1976, while succeeding in keeping the average length of proceedings more or less constant over the last two decades. Against this backdrop, the analysis of the case law in the field of EUPIL demonstrates the ECJ’s great adaptability to an ever-increasing demand for preliminary rulings and the efforts made for ensuring a more rational use of its own human and material resources.  This concerned, in particular, the use of judicial formations, AGs’ Opinions and hearings (first, seventh and ninth red boxes in order of appearance).

A. Methodology

All these research questions presuppose a “dynamic” analysis of the evolution of the ECJ’s case law in the field EUPIL over time. Because of this, it was no longer possible to exclude from the analysis the (substantial) case law developed under the 1968 Convention, at the risk of altering the statistical validity of the conclusions drawn from the collected data.

For this reason, these new blog posts are based on a larger database, and ‘EUPIL’ is now understood as encompassing also the 1968 Brussels Convention and the 1980 Rome Convention,  in addition to the instruments already included in the scope of the pre-existing analysis. As a reminder, these are Regulations 44/2001 and 1215/2012, the Lugano II Convention, Regulation 1347/2000, Regulation 2201/2003 (since no cases have yet been filed under the new Brussels II-ter Regulation); Regulation  4/2009; the Rome Regulations (593/2008, 864/2007 and 1259/2010); the Succession Regulation and the ‘smaller’ Regulations (EAPO, EPO, EEO, ESC, Service and Evidence I Regulations). The Regulations on matrimonial and registered partnership property issues have been taken into account, but there is currently no request for interpretation concerning them.

The time frame covered by the research is consequently no longer limited to the last seven years, taking into account the totality of the ECJ’s case law in EUPIL since 1976, when the first cases on the interpretation of the 1968 Brussels Convention were filed.

B. The Origin of Preliminary References in EUPIL Cases.

As announced above, this first post deals with the origin of requests for preliminary rulings on EUPIL instruments. “Origin” is understood in a twofold way: first, as geographic origin (1) and, second, as “procedural” origin, meaning by this the status and ranking of the domestic court making the referral (2).

1.  The Geographic Origin of Preliminary References in EUPIL.

Where are the requests for preliminary rulings in EUPIL coming from? Does this have an impact on the substance of the legal solution shaped by the ECJ?

The first question is relatively easy to answer. The referring court is identified in the very first lines of the judgment. When taken individually, this datum might not be overly significant. Conversely, a systematic compilation of the origin of all the preliminary references raised in the field of EUPIL could reveal interesting trends and national attitudes towards this area of EU law.

In my previous post, the analysis of the last seven years of case law  evidenced remarkable differences in the amount of preliminary rulings requested by each Member State. The new survey, based on a broader database, just confirms these conclusions. It also confirms Germany’s leading role as undisputed propeller of EUPIL case law before the ECJ.

Chart 1

The chart above shows the number of referrals under the Brussels-Lugano regime in shades of blue, the Rome regime in shades of green, the referrals in the field of family law in shades of red, successions in black and “smaller” procedural regulations in shades of yellow. Evidence and Service have their own distinctive colours.

It is apparent that there still exist considerable differences among the Member States. Nonetheless, in assessing Chart 1, due regard should be paid to the seniority of EU Membership: clearly, national courts belonging to the Member States who joined the EU at an earlier date had, over the last 46 years, more opportunities to refer cases, including EUPIL cases,  than those who joined in the 2004, 2007 or 2013 enlargements. I created the chart below in the attempt of obtaining a better picture of the “chronological evolution” of the Member States’ requests for preliminary rulings on EUPIL instruments (click here to enlarge the picture).

Chart 2

The colours used should give a more immediate understanding of the changing balances, over time, between “elder” and “younger” Member States: the shades of blue indicate founding Member States; the shades of pink those which joined in 1973; the shades of orange/yellow designate the Iberian enlargement; the shades of brown the 1995 accession; the shades of green the biggest expansion so far, occurred in 2004. Black and dark grey are used, respectively, for Romania and Bulgaria, which joined in 2007. Greece (1981) and Croatia (2013) have their own distinctive colours (violet and red).

It must be stressed that each country’s contribution is calculated not according to the number of cases referred to Luxembourg, but rather on the number of interpretations requested with respect to the EUPIL instruments mentioned above. For example, in case C-307/19, the referring Croatian court requested the interpretation of the Service Regulation, the Brussels Ibis Regulation, the Rome I and the Rome II Regulations. This case is therefore counted 4 times in the chart above (which explains the big red smear corresponding to 2015). Here, an amended version of the chart, showing the number of cases filed with the ECJ, regardless of the number of EUPIL instruments involved in each of them.

Seniority alone cannot explain the considerable differences in the amount of preliminary rulings referred by Member States of comparable size and seniority (eg. France and Germany), or between countries which are very dissimilar in both respects (eg. Italy and Austria). Spain is another good example of the relative unimportance of the seniority factor: a Member State since 1985, this country is a late bloomer when it comes to preliminary references in the field of EUPIL, the first Spanish referrals dating of 2014 (two cases on the Service Regulation).

It can be assumed that, in today’s cosmopolitan world, all Member States are exposed to international commerce and cross-border mobility of people, even if maybe not equally so. As a result, their domestic courts will naturally come in contact with (EU)PIL cases and might find themselves in the position of harboring a “reasonable doubt” on the interpretation of one of the instruments mentioned in Section A. Under those circumstances, said courts should (or shall, depending on their status) refer a preliminary question to the Court of Justice. Seen from this standpoint, the results presented in Charts 1 and 2 are particularly interesting, insofar as they trigger further questions as to (a) the effective impact, if any, of the geographic origin of the preliminary reference on the solution given by the ECJ to the legal questions submitted to its consideration; and (b) the underlying reasons for the greater activism of certain Member States’ courts.

(a) The (Ir)Relevance of the Geographical Origin of the Preliminary Reference

As for the first question, it could be very tempting to answer in the affirmative: the geographic origin of the preliminary reference might play a role. After all, the referring court belongs to a given legal system and, in the decision raising its interpretive doubts, it will logically present the problem from the standpoint of its national law. This circumstance could, hypothetically, introduce a national bias in the reasoning of the ECJ and influence the result of the preliminary reference procedure.

Nonetheless, there are, in my view, two arguments that vouch for the dismissal of such fears.

The first argument profits from the benefit of hindsight: a closer look at the ECJ’s case law reveals that it has always endeavoured to “detach” its interpretation of the legal concepts used by EUPIL instruments from the meaning they acquire under the national law(s) of the Member States, according to the well-known principle of autonomous interpretation. It can be added that, in the more complicated cases, the ECJ has the possibility of asking its Research Department for a comparative study on the meaning of a given legal concept in the Member States (these notes are sometimes published on the Court’s website). There is, therefore, a concrete effort to go beyond the specific circumstances of the case, including its geographic origin, with a view to shaping an interpretive solution that could easily be transposed and implemented in any Member State.

The second argument is based on a more pragmatic consideration: the fact that some national courts engage the Luxembourg Court more often than others does not limit, in any event, the (geographic) scope of the legal debate. The dialogue triggered by the preliminary reference procedure is never a one-to-one conversation between the ECJ and the referring court. To the contrary, all Member States (and even some non-Member States) can take part to the discussion by submitting written and oral observations pursuant to Article 23 of the ECJ’s Statute. As I have already announced, there will be a separate post on this topic and it makes no sense to go deeper into it now. It suffices to say that these observations can be a way, for each State, of introducing a “national perspective” on the desirable approach to the solution of a preliminary question, regardless of its contingent origin.

It shall also be added that Member States have made (and still make) extensive use of this instrument. Particularly telling are, in this respect, the very first cases addressed by the ECJ, the (in)famous Tessili and De Bloos, both decided in 1976. The judgments rendered therein testify of the firm resolution of the UK to submit its observations on those questions, despite not even being, at that time, a Party to the 1968 Convention. In the next post, it will also be shown that some national governments have been considerably active, over the years, in filing written and oral observations in the cases brought before the ECJ (by courts of other Member States), despite the relatively low direct engagement of their own national courts with the preliminary reference procedure.

(b) The Reasons Behind the Differential Engagement of Member States’ Courts with Luxembourg

As I mentioned above, courts in Member States should/shall refer a preliminary reference to the ECJ when they are faced with a reasonable doubt on the interpretation of a EUPIL instrument. It would be simply illogical and totally out of touch with reality to explain the result presented in Chart 1 as the consequence of a lack of self-assurance of German and Austrian courts.

The causes of the differential engagement of Member States’ courts with the preliminary reference procedure must be sought elsewhere, and are multi-factorial at best.

It is safe to assume that some non-legal, but rather socio-economic criteria will also play a role (for example, the attitudes and dispositions of the local population towards court litigation, which is a conditio sine qua non of the preliminary reference procedure). The comprehensive identification of these factors remains extremely difficult and is beyond the purpose of this blog post. Nonetheless, based on an open-ended, experimental approach to this research, I tried to compare the data on the geographic origin concerning the preliminary references on EUPIL instruments and those raised in “related” matters, such as judicial cooperation in criminal matters or public procurement, the latter being understood as the “public counterpart” of private law contracts. The ECJ’s case law in the field of public procurement is, in this respect, particularly revealing, insofar as it shows opposite trends as compared to the case of EUPIL, with a striking and overwhelming activism of Italian (administrative) courts and a very low rate of engagement of their German and Austrian counterparts.  It must be concluded that there are considerable variations in the geographic origin of preliminary references  across the different branches of EU law. This circumstance offers no further explanation to the results presented in Chart 1, but warns against too quick or too broad generalizations about the existence of national “attitudes” or “prejudices” towards the procedure under Article 267 TFEU.

Coming back to the field of EUPIL, a combined reading of the data concerning the geographic and the procedural origin of the preliminary references raised in this subject-matter might pave the way to some additional (and highly speculative) explanations of the results presented in Chart 1.

2. The Procedural Origin of Preliminary References in EUPIL.

Over the last 46 years, almost a half of the preliminary questions raised in relation to EUPIL instruments came from the Member States’ Supreme Courts, followed by first instance courts as a distant second.

Chart 3

There could be, in my view, two explanations of this result.

The first one is grounded in the Member States’ procedural laws: some of them may provide for the possibility of leapfrog appeals to the Supreme Court, with a view to conclusively settling procedural issues (such as international jurisdiction) at an early stage of the proceedings (see, for example, the mechanism set out by Article 41 of the Italian Code of Civil Procedure). While the existence of such procedural devices could in principle offer an explanation to the data portrayed in Chart 3, the persuasiveness of this hypothesis will finally depend on how frequent and available such mechanisms are at the national level, which is for a comprehensive study in comparative procedural law to determine.

A second explanation, which I personally find more convincing and of more general application, is based on the CILFIT criteria. Said otherwise, Supreme Courts tend to raise preliminary questions more frequently than lower courts simply because they are under the legal obligation to refer when faced with a reasonable doubt on the interpretation of a EUPIL instrument, unless this doubt can be solved with the application of the acte clair or éclairé doctrines. Conversely, lower courts retain the discretion, and not the obligation, of referring the case to Luxembourg when faced with a comparable doubt (unless they are acting as a court of last resort in a given matter).

In my opinion, this result could be combined with the data on the geographic origin in two ways.

(a) Divergent National Interpretations of the CILFIT Criteria

First, it must be remembered that the CILFIT criteria provide domestic courts with “general guidance”, that could be subject to different interpretations. A research note commissioned in 2019 to the Research Department of the ECJ confirms that the understandings and practical applications of those criteria vary considerably among Member States. It is also noteworthy that, while this research note was not requested with specific reference to the field of EUPIL, it mentions on several occasions its instruments when providing for concrete examples of the divergent applications of the acte clair or éclairé doctrines by national Supreme Courts.

In a 2001 case relating to jurisdiction over insurance contracts under the 1968 Brussels Convention, the Irish Supreme Court sought guidance in the Schlosser Report and concluded that “there [was not] any necessity for a reference to the Court of Justice of the EC pursuant to the 1971 Protocol to the Convention”. The Joint Chambers of the Italian Court of Cassation seem to consider, in a rather general statement, that the line separating the scope of application of the Brussels I and the Insolvency Regulations is an acte clair (despite the huge ECJ case law on this point), not subject to the obligation of a referral to Luxembourg (Order No. 10233 of  26 April 2017). Further examples of the acte clair and acte éclairé doctrines can be found in a Maltese and in two Latvian Supreme Court cases on the recognition and enforcement of judgments in civil and commercial matters (respectively, GIE Pari Mutuel Urbain (PMU) v Bell Med Ltd & Computer Aided Technologies Ltd, 224/2006/1 and judgments SKC-771/2018 (C30672916) and SKC-414/2017 (C30465614)) and in a Slovenian Supreme Court case on the temporal scope of application of the Brussels I Regulation ( Order III Ips 164/2008 of 3rd February 2009). In a Romanian EUPIL case, the domestic court refused the referral to Luxembourg owing to the expiration of the deadline set by national procedural law for the inter partes phase of the proceedings, marking the beginning of the deliberation phase in which no referrals to the ECJ should be allowed (decision 786/CM/2011 of the Curtea de Apel de Constanța).

There are, moreover, plenty of examples where domestic Supreme Courts have not referred a preliminary question under Regulation 2201/2003, based on diverse considerations relating to the inherent characteristics of the procedure before the ECJ. For example, the Lithuanian Supreme Court did not raise a question on an inconsistency in the Lithuanian text of Article 12 of Regulation 2201/2003. This Court feared, in particular, that a referral from its side would have prompted similar initiatives from other Member States’ courts and would have, finally, increased the workload of the ECJ to the detriment of the prompt decision of preliminary references in matters of family law (decision no e3K-3-426-969/2016). Both in Malta and in the UK, the seized courts expressed reasonable doubts as to the correct interpretation of a provision of the Brussels IIbis Regulation, but refused a referral to the ECJ fearing undesirable delays to the national procedure (case 35/16/1JVC, decided on 6 January 2018 (Malta) and case In the matter of N (Children) [2016] UKSC 15 (UK)). I just remark, in relation to the British case, that the average length of a PPU procedure before the ECJ is 80 calendar days (60, a couple of years back) and, within this time frame, the cases are decided with a hearing and an Opinion of the AG.

There is no need of entering into the merits of these national interpretations of the CILFIT criteria. It suffices to say that divergent national interpretations of the obligation to refer could provide for a (certainly partial) explanation of the uneven geographic distribution of preliminary references in EUPIL cases.

(b) The Practical Effects of the Application of the CILFIT Criteria and National Procedural Law

Second, the fact that the majority of EUPIL preliminary questions are referred by Supreme Courts can have important practical reverberations for the parties to these disputes. These parties might have to sit through three court instances before having a definite answer on issues, such as jurisdiction or applicable law, that should usually be defined in limine litis. This means lengthy litigation, especially in those Member States where the Supreme Court might not have the power to decide the case itself, in conformity with the ECJ’s ruling, having conversely to remit the case to the lower court(s). Lengthy litigation entails, in turn, high(er) costs, that might be an incentive to desist or to settle the case at an earlier stage, before a referral to Luxembourg becomes mandatory.

These remarks may open a new perspective on the interpretation of the data on the geographic origin of the preliminary references. The costs relating to access to justice and, more generally, to court litigation, the availability of funding, the existence of collective redress procedures in a given legal system might be among the (legal) factors behind the uneven distribution of EUPIL referrals among Member States, insofar as these features of domestic procedural law might increase the likelihood of bringing a case as far as the court of last resort.

3. Final Remarks on the Procedural and Geographic Origin of EUPIL Preliminary References.

It should finally be noted that, albeit general, the leading role of Supreme Courts does not equally characterize all Member States. In some of them, the trend is actually reversed, with first and second instance courts taking up the most prominent role.

Chart 4

Also noteworthy is the temporal dimension of the involvement of Supreme Courts. Data from Germany and Austria are consistent in showing a greater activism of first and second instance courts between 2008 and 2018.

Chart 5

Incidentally, this time frame corresponds to the point in time where 1) the Treaty of Lisbon entered into force, lifting the procedural limitations to ASFJ referrals from courts other than courts of last resort and 2)  but  ECJ’s case law in the field of EUPIL starts to get more diversified. In fact, the first request for a preliminary ruling that does not concern the Brussels-Lugano regime dates of 2006 and concerns Regulation 2201/2003. Non-Brussels/Lugano cases have become recurrent in the following years.

Chart 6 below is a breakdown of Chart 3. It considers the procedural origin of the referrals raised in the different subject-matters (grouped by macro-areas) covered by EUPIL instruments.

Chart 6

This result needs little explanation: in family law (Regulation 2201/2003, Regulation 4/2009, Regulation 1259/2010), successions, applicable law (Regulations 864/2007 and 593/2008, as well as the Rome Convention)  and in the “smaller Regulations”, the role played by Supreme Courts is not as prominent as in the field jurisdiction, recognition and enforcement of foreign judgments in civil and commercial matters. Also noteworthy is the comparison of data relating to post-Lisbon referrals: 47 % of the overall referrals made after 2009 in the field of civil and commercial matters still come from supreme courts, as opposed to 39 % of the referrals in family law, 33 % in successions and 5,5 % of the cases concerning the smaller procedural Regulations (including Evidence and Service).

This might mean that lower courts could be more keen on using their discretionary power to refer when dealing with an sub-field of EUPIL lacking the support of a longstanding and well-established supranational case law, or, alternatively, when a fundamental interest of the person is at stake. Significant, in this last respect, is the fact that only 5 of the 17 PPU cases thus far decided by the ECJ in the domain of EUPIL were referred by a Supreme Court. These cases all dealt with parental responsibility, abduction and maintenance in situations involving a minor.

This post was authored by François Mailhé, who is Professor of Private Law at the University of Picardie Jules Verne. It is the fourth in a series of posts regarding the ruling of the European Court of Justice, of 20 June 2022, in the case of London Steam-Ship Owners’ Mutual Assistance Association Ltd v Spain. The first post was contributed by Adrian Briggs, the second one by Gilles Cuniberti, and the third one by Antonio Leandro.

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Much has already been said on this case and this post does not contend to address all the issues both dealt with and raised by the decision.

Rather, I would like to submit, as a summer food for thought, a topical methodological problem exampled by this decision after several others: that of the bias tending to analyse all problems through the articles of the Regulation at stake. More precisely, I would suggest Brussels I as a whole shouldn’t have been applied in that case and that the reason for those opposite findings by the ECJ can also be explained because it preferred interpreting article 34 rather than the scope of the Regulation as a whole.

It all starts with what I contend to be a poorly presented prejudicial question. It did ask whether, first, the English decision at stake was a “judgment” preventing recognition of the Spanish decision under Article 34 of Brussels I, second if it may be such even if it was taken in accordance with the Arbitration Act 1996. The question therefore focused on Article 34 and, by doing so, begged for the answer.

Indeed, if one looks at the issue through Article 34 and the notion of irreconcilability, then the Hoffmann case, on Article 34’s ancestor, Article 27 Brussels Convention, is the relevant case-law. In that decision, the ECJ held that a decision on the status of a natural person, a matter outside the scope of the Convention, could still be considered from Article 27 perspective as long as it “entailed legal consequences which were mutually exclusive” with the other judgment. It was a very pragmatic decision, allowing to solve the conflict between Article 27 (that solved the problem) and Article 1 (on the scope of the Convention). It allowed to disregard the subject-matter of the judgment if it may have consequences in the field of what was the Brussels convention at the time. Disregarding the arbitration exclusion was, therefore, an obvious choice considering the phrasing of the question.

What is more, asking whether Article 34 could be applied even if the judgment had a specificity under national law (the Arbitration Act 1996) was also a good way to get a specific answer. National specificities are obviously irrelevant.

What was relevant, though, was the topic of this national act: arbitration. There lied the problem.

Article 1(2) had been forgotten in the question and bypassed too quickly by the Court in its answer, who considered the problem was identical to that in Hoffmann. But what worked for 1(2)(a) was not adapted to all other exclusions of Article 1(2). Relevant for a conflict of substance (status of natural persons, succession and wills, etc.) since its solution eventually only considers substance (that of the consequences of those conflicting decisions), it is hardly adapted to procedural exceptions. Arbitral awards, and therefore decisions about them, intervene almost by essence on contractual and liability matters, all matters dealt with by the Regulation. Most often, the final decision will be about such remedies as liability and damages, or avoidance of a contract. How may such a decision not be conflicting with other judicial decisions between the same parties and matters?

The problem of arbitration is that it is not a different matter, hence no different decisions, but a different procedure. Using an analysis of the substance of any final award and an associated judgment therefore amounts to strip the arbitral aspect of the litigation and to deprive the exclusion clause of article 1(2)(d) of the Regulation of any effet utile. One may just have to compare with what could have been the reasoning with a judgment pronounced within the scope of the Insolvency Regulation recast. There again, comparing the substance of the decisions would have revealed a potential conflict between mutually exclusive legal consequences, and therefore, according to that line of reasoning, the exclusion of the Insolvency Regulation…

Falling back on Article 34 and the Hoffmann decision was therefore too simple a way to bypass the arbitration issue. In the conflict between the problem to solve and the scope of the Regulation, the latter is obviously to be addressed first. Indeed, there is no real conflict: there was no question, once Brussels I would have been declared applicable, that the issue would have to be solved by Article 34… The question of the scope of a Regulation arises first since its rules only play within its limits. And the London Steam-Ship case shows how such a line of reasoning is not only an issue of logic, but also of policy. The policy issue, indeed, was not the narrow interplay between two such decisions, but rather the scope of the arbitration exclusion in Brussels I, an issue that has not always been clearly addressed. This issue of the limits of the Regulation itself should have been at the core of the prejudicial question, not the conditions of Article 34 facing a specific judgment.

It is not the first time such a narrow analysis is at play, though. One may remember, for example, the Owusu decision. Where, in that decision, the question was whether or not forum non conveniens was compatible with the Convention, the Court went in depth as to the “imperative” nature of the sole Article 2 of the Convention to reject it. This method prevented the Court to pose a principle of exclusion of forum non conveniens within the scope of the Brussels Convention itself, a solution far simpler (and more efficient) than interpreting its Article 2, which was not answering that problem at all. Indeed, resorting to specific articles of the Regulation, silent on new issues, often leads to just ignoring them.

I do not know whether, at least in this London Steam-Ship case, the Court was perfectly aware of this methodological choice. But it is that of a young Court, applying a young law. A French author cannot but think of the exegetic school of French law that endured in case-law for decades after the Code civil was enacted, restricting itself to the strict meaning of its articles even when new issues arose. This is what the ECJ did, here again, by preferring to interpret the technical rule rather than trying a systemic analysis.

The Court has found maturity in other branches of European law, displaying much subtility and a much wider vision to address complex issues. Private international law, as this other branch of law harmonising relations between member State laws, could benefit from such a change in perspective.

On 19 May 2022, the CJEU rendered an inadmissibility order in case C-722/21, Frontera Capital. The request for a preliminary ruling originated from a Spanish notary, who delivered a European order for payment (EOP) under Regulation 1896/2006. She relied, for that purpose, on the parallel competence vested on Spanish notaries for the delivery of domestic orders for payment (Articles 70-71 of the Spanish law on notaries). The notary in question was subsequently sanctioned by the Dirección General de los Registros y del Notariado for having issued the EOP ultra vires. In her opinion, however, all the conditions set out by Regulation 1896/2006 were satisfied (§ 5 of the inadmissibility order), hence the referral to the CJEU.

While being inadmissible on a number of grounds (i.e., the lack of an actual dispute in the main proceedings and the doubtful characterisation of the referring authority as a ‘court or tribunal’ of a Member State under Article 267 TFUE: cf § 14 and § 16 of the order), this case confirms that the interaction between notaries, theirs competences under domestic law and the EU private international law (EU PIL) remains, to the present days, problematic.

This finding is further evidenced by the number of preliminary questions raised on this issue (nine in total) since 2015, ie the year when Pula Parking and Zulfikarpašić brought the relationship between notaries and EU PIL on the table of the Luxembourg judge for the first time.

Read in conjunction with this past case law, Frontera Capital provides the opportunity for a broader discussion on some recurrent obstacles that hinder the smooth interplay between EU PIL Regulations – particularly the statutory definitions they set out – and national laws, especially in the subject matters where the intervention of legal professionals other than judges is more common at the comparative law level.

Five Years of CJEU Case Law

Cross-border cases are nothing new to European notaries, who are generally well versed in PIL and eager supporters of its further harmonisation by the EU (see, for example, points 3, 4 and 5 of the Proposal of the Notaries of Europe for the Conference on the Future of Europe). The requests for preliminary rulings thus far decided by the CJEU and involving, more or less directly, these professionals can be broken down into three main categories.

In the field of civil and commercial matters, the referring courts in Pula Parking and Zulfikarpašić – concerning, respectively, the Brussels I bis and the EEO Regulation – asked for clarifications regarding the status of Croatian notaries as ‘courts’ for the purposes of those Regulations, in cases where these professionals were acting in the exercise of the powers conferred to them under domestic law with respect to the delivery of executive titles based on ‘trustworthy documents’. A similar question was raised – directly by the seized notary – in the more recent case Frontera Capital. As I argued elsewhere, the choice of the Spanish legislator as concerns the creation of a monitorio notarial was liable to create Pula Parking-alike scenarios. And, in fact, while the Spanish notary just asked if the EOP Regulation was correctly applied in the specific case, her question could be rephrased as concerning its own status as ‘court’ under Article 5 n 3 of the EOP Regulation, given that such characterization would enable a Spanish notary to issue EOPs in compliance with this instrument (as it is the case for Hungarian notaries).

A second group of cases concern the Succession Regulation, but raise similar questions. Cases WB and EE requested, inter alia,  an interpretation of its Article 3(2), thus prompting the ECJ to address both the ‘procedural preconditions’ and the substance of the definition of court set out by that provision, having specific regards to the tasks entrusted to Polish and Lithuanian notaries. More recently, case OKR also raised several questions concerning the interpretation of Regulation 650/2012. Just like Frontera Capital, the case was nonetheless deemed inadmissible because the referral came directly from a (Polish) notary, lacking the requirements set by Article 267 TFEU (as summarized by Dorsch Consult) to qualify as ‘national court or tribunal’ for the purposes of that provision.

A final group of issues, which is beyond the scope of this blogpost, originates from the joined cases C-267/19 and C-323/19, requiring the CJEU to assess again the Croatian legislation on the notarial competence in debt collection based on trustworthy documents. Here, the CJEU rejected the argument whereby the finding in Pula Parking and Zulfikarpašić, that is inapplicability of the EU uniform regimes on recognition and enforcement of judgments to Croatian notarial deeds, coupled by the non inter partes character of the Croatian procedure, could amount to an infringement of the principle of non-discrimination (Article 18 TFEU) and the right to a fair trial (Article 47 of the Charter). Similar arguments were advanced (and rejected) in case C-234/19.

Apart from this last group of cases – that are illustrative of the limited scrutiny the CJEU can exercise on domestic justice reforms – all the above mentioned preliminary rulings call into question the possibility of characterizing notaries as ‘courts’, for the purposes of either Art. 267 TFEU or specific EU PIL instruments (or both).

Notaries as Courts: Recurrent Difficulties

The difficulties thus far encountered in classifying notaries as ‘courts’ stem from the friction between the uniform statutory definitions (if any) of ‘court’ adopted by EU law and the ever-changing legal environment of 27 Member States, who lack a common understanding of the notarial profession (cf, on this point, the Specific Study of the CEPEJ on the Legal Professions: Notaries prepared by the CNUE)

On the one side, in the attempt of unburdening an ailing court system, the procedural laws of Member States tend to be inspired by ‘local’ policy choices, based on a culturally-embedded understanding of the role of each legal profession within the broader justice machinery. On the other side, however, EU law remains largely anchored to a more traditional (and uniform) concept of ‘court’, grounded in the exercise of ‘judicial functions’. For this reason, although notaries are, at present, often called to perform their duties in matters that fall into the scope of application of EU PIL Regulations, they are not, in most cases, entitled to initiate a direct dialogue with the CJEU thorough Art. 267 TFEU, when they harbour doubts as concerns the correct interpretation of their provisions or their own status as ‘courts’ under one of said instruments. Regarding this last issue, the problem seems exacerbated by the regulatory approach adopted by the EU legislator with respect to the statutory definitions of court or tribunal under the different EU PIL Regulations.

The (In)Direct Dialogue with Luxembourg

Cases such as OKR and Frontera Capital prove that notaries may feel the need to establish a direct communication channel with Luxembourg under Art. 267 TFEU when they harbour doubts as to the correct interpretation of a provision of EU PIL. And this not just for the sake of the proper application of EU law, but also to ensure the correct performance of their duties and avoid incurring in professional liability or sanctions. In this respect, however, the stance taken by the CJEU is quite clear and well-established: to be regarded as a ‘court or tribunal’ within the meaning of Article 267 TFEU, ‘it must be determined … whether [the referring body] is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature’ (OKR, § 23).

In OKR, the CJEU deemed that, in the proceedings at stake in that case, the notary was not required to decide a legal dispute (§ 24), insofar as (s)he did not take decision of a judicial nature ‘either when he or she confirms his or her refusal decision or when he or she considers the complaint to be well founded’ (OKR, § 28). Nonetheless, the Court placed a special emphasis put on ‘the specific capacity’ and ‘the particular legal context’ in which the referring authority operates (OKR, § 23), which suggests that the question as to whether a notary could be considered a ‘court or tribunal’ of a Member State for the purposes of Art. 267 TFEU should be answered on a case-by-case basis, having due regard of the specific features of the notarial proceedings at issue.

In any case, it should not be too hastily concluded that the eventual exclusion of notaries from the procedure set out by Art. 267 TFEU is liable to hamper the uniform interpretation of EU law. According to the CJEU, the existence of complaints before courts against notarial decisions ensures, on any view, the effectiveness of the mechanism of the reference for a preliminary ruling and the achievement of its objective (cf. § 33 OKR). And, in fact, this is what happened after the OKR order, where one of the parties appealed the notarial order before a court, who then referred a new request for preliminary ruling to the Luxembourg Court (case C-21/22, pending).

The Plethora of Statutory Definitions of ‘Court’ in EU PIL

The second recurrent issue emerging from the CJEU case law concerns the characterisation of notaries as ‘courts’ under specific instruments of EU PIL. In this regard, the CJEU has explicitly acknowledged that the definitions retained by EU PIL Regulations may be broader than that developed under Art. 267 TFEU (§ 31 OKR). This means, in practice, that a notary could qualify as ‘a court’ for the purposes of EU PIL, without nonetheless be entitled to refer a request for preliminary ruling to the CJEU.

While a comprehensive analysis of the definitions of court set out by EU PIL Regulations would be beyond the scope of this blogpost, this table may be a useful starting point for identifying some very general trends in the drafting techniques used for this purpose.

Firstly, it is worth remarking that there is no ‘one-size-fits-all’ definition of ‘court’. Rather, definitions tend to be context-dependent (as evidenced by the Recitals of the Regulations dealing with family law, successions and insolvency) or even implied (as it was the case under the 1968 Brussels Convention and the Brussels I Regulation). Such definitions tend to be more sophisticated in matters where the intervention of authorities other than courts is more established (eg family and succession law).

Secondly, and relatedly, there is no single approach to the drafting and structuring of the definitions of court. Rather, current definitions make use of at least 5 different drafting techniques, including:

(a) the ad hoc assimilation, by the EU legislator, of specific non-judicial bodies to ‘courts’ in the main body of the Regulation, without nonetheless providing a ‘general’ definition thereof (e.g. Article 3 Reg. Brussels I bis and Article 4(7) of the EEO Regulation);

(b) the ‘open renvoi’ to domestic legal systems, based on sheer functional equivalence (i.e., not accompanied either by a uniform general definition of ‘court’ or by an obligation of notification to the Commission: e.g. Article 62 of the 2007 Lugano Convention and Article 2(2)(1) of the Brussels II ter , which follows in the footsteps of its predecessors: cf § 34 of the Opinion of AG Collins in C-646/20).

(c) the ‘conditional renvoi’ to the designation by Member States, where the domestic appointment of an entity as ‘court’ must be coupled by the notification to the Commission (e.g. Articles 5 n. 3 and 79 of the EPO Regulation);

(d) the establishment of a core-definition, setting out minimum requirements (e.g. the power to ‘take decisions’) but otherwise relying entirely on national laws (e.g. Insolvency Regulations).

(e) the establishment of well-rounded general definitions, complemented by detailed Recitals and accompanied by an obligation of notification to the Commission (most of the instruments dealing with family law and successions).

Thirdly, owing to the variety of drafting techniques used by the EU legislator, these definitions present variable degrees of flexibility and, therefore, a varying aptitude for prompt adaptability to domestic judicial reforms. In fact, under the approach sub a), any change to the scope of the definition of ‘court’, aimed at the inclusion of domestic notaries therein, cannot by attained based on analogical reasoning (see again here) and would probably require a legislative amendment of the main body of the concerned EU Regulation(s). This approach is indisputably more cumbersome than a sheer change to the Annexes (e.g. Art. 2(2) of Regulation 4/2009) or to the lists established by the Commission and made public through the European Judicial Network.

Finally, while the definitions set out in the field of family and succession law appear strikingly homogeneous as regards both their substantive contents and their increasing sophistication, including the explicit acknowledgment of the role played by notaries in those domains, the field of civil and commercial matters stands out of its sectoral inhomogeneity and remarkable methodological fragmentation. Of the 8 EU PIL instruments covering this domain, 3 (Brussels Convention, Brussels I Regulation; EAPO Regulation) are completely silent on the matter of knowing what constitutes ‘a court or tribunal’; 2 (Brussels I bis and the EEO Regulations) follow the approach sub a); 1 (Lugano Convention) adopts the approach sub b); 2 opt for the approach sub c) (the EPO and possibly the Small Claims Regulation). This lack of uniformity may unnecessarily complicate the application of those Regulations in practice.  

Lingering Doubts

In the light of the above, it is not surprising that the characterization of notaries as courts has posed important challenges in many concrete cases.  Nonetheless, the identification of what constitutes ‘a court’ for the purposes of EU PIL should be easy (or, at list easier) in the instruments that set out an obligation of notification to the Commission, called to draw up a list of such authorities that complements the statutory definition eventually established the legislator.

In this respect, the case WB has shed light on the normative value of such lists. Therein, the CJEU held that the notifications to the Commission, and the lists established on that basis, ‘creat[e] a presumption that the national authorities declared [therein] constitute ‘courts’’. Nonetheless, ‘the fact that a national authority has not been mentioned in such a notification cannot, per se, be sufficient for it to be concluded that that authority does not satisfy the conditions set out in Article 3(2) [of the Succession Regulation]’(emphasis added).

It is worth stressing that, in WB, the CJEU’s ruling finds a solid ground in the letter of a Regulation providing for one of the most sophisticate provisions on the meaning of ‘court’ to be found in EU PIL. Art. 3(2) of the Succession Regulation sets out a well-defined general definition, which is not only accompanied by specific and uniform minimum requirements, but also explicitly assimilates notaries to courts when they exercise ‘judicial functions’. These should be understood, in essence, as referring to the ‘exercise of decision making power’, irrespective of the (contentious or non-contentious) nature of the proceedings within which it takes place. Therefore, ‘an authority must be regarded as exercising judicial functions where it may have jurisdiction to hear and determine disputes’, that is to ‘rule on its own motion on possible points of contention between the parties’ (judgment in WB, § 55-56). In turn, this ‘exercise of decision-making power’ is what justifies the requirement of compliance with fundamental procedural principles (Opinion in WB, § 78).

In the post-WB era, the real question remains as to whether, and to what extent, the CJEU’s finding on the normative value of the lists established by the Commission is transposable to other EU PIL instruments, such as the EPO Regulation, where the obligation of notification is not coupled by an explicit statutory definition of ‘court’. Therein, there are no minimum requirementsagainst which the status of a non-judicial authority can be assessed in case it does not feature in the lists established by the Commission or by the concerned Member State. This was indeed the most interesting question raised by Frontera Capital: Article 5 n. 3 of the EPO Regulation extends the status of court to ‘any authority in a Member State with competence regarding’ not only ‘European orders for payment’, but also ‘any other related matters’. Therein, the real issue would have been as to whether a parallel competence regarding domestic orders for payment can be considered a ‘matter related to EOPs’, thus bringing Spanish notaries under the umbrella of the definition under Article 5 n. 3, despite the lack of formal communication to the Commission.

Future Outlooks

What happens if a notary does not fulfil the requirements for a characterisation as ‘court’? Extant CJEU case law, especially the rulings under the Succession Regulation, clarify that, in that case, the notary is not bound by the uniform rules of jurisdiction, and the resulting notarial deed won’t circulate in other Member States as a ‘judgment’. It could, however, circulate in other Member States under the regime for authentic instruments, if such deed corresponds to the uniform definition thereof.

As opposed to the definitions of ‘courts’, the notion of ‘authentic instrument’ profits from a remarkable uniformity across the several EU PIL Regulations, the baseline of these definitions being always the Unibank judgment, rendered by the CJEU under the 1968 Brussels Convention. Civil law notaries are, in most cases, among the authorities empowered to confer the character of ‘authenticity’ (see Recitals 31 of Regulations 2016/1103 and 2016/1104).

The CJEU has therefore readily vested the status of ‘authentic document’ upon a ‘deed of certification of succession, drawn up by a notary at the unanimous request of all the parties to the procedure conducted by the notary’ (WB, § 66, emphasis added) and upon a ‘national certificate of succession’, by which the notary ‘establish[es] the undisputed subjective rights of, and the legally relevant facts relating to, natural and legal persons, [thereby] protect[ing] the legal interests of those persons and of the State’ (EE § 52, emphasis added).

Consent, expressed through the unanimous request of all parties or through the idea of undisputed rights, lies at the core of the notarial competence regarding authentic instruments, just as the notion of dispute is the benchmark against which the ‘exercise of judicial function’ by the notary shall be assessed. While being apparently clear-cut, the distinction between consent and dispute could become remarkably blurred with respect to certain legal assessments entrusted to the notaries, where this professional is called to adjudicate on rights that are only ‘presumptively undisputed’, at the unilateral request of one of the parties. Reference is made, primarily but nor exclusively, to the delivery of orders for payment by the notary based on documentary evidence unilaterally supplied by the creditor, and without the prior hearing of the defendant. In such cases, the distinction between dispute and consent does not provide a definite answer to the question as to whether such order for payments, lacking a prompt challenge by the debtor, could eventually circulate intra-EU as authentic instruments.

The negative answer finds support in another element of the European definition thereof, that is the requirement whereby an authentic instrument shall be ‘formally drawn up’ as such in the Member State of origin. This open renvoi to domestic formalities renders the EU definition of authentic instrument only ‘semi-uniform’, insofar as EU law nowhere explains what it takes for an authentic instrument to be ‘formally drawn up’ as such in the issuing Member State. In one of the few academic works that approach this topic from a PIL perspective, late Professor Fitchen described the ‘basic steps required for the drawing-up of a notarial authentic instrument’ as follows (pp. 28-29):

The notary will first ensure that each party is fully aware of the nature and meaning of the proposed transaction; he will also impartially advise each party upon the available options by which the desired transaction could be accomplished. After this, the notary will draft an appropriate legal document. … Having prepared the document in draft, the notary will then read it aloud to the parties. Assuming each party then indicates that he understands the transaction and that he still wishes to proceed with it, the notary will then invite [the parties] to sign the document. At this stage the document is still a private document. The private document only becomes an authentic instrument/public document once the notary, having declared upon it that he has read it to the parties, that they have expressly approved all their declarations within it, and that they have then signed it ‘before’ him, finally draws it up as an authentic instrument by signing it himself then formally applying his notarial seal to the document as a notary of his civil law legal system.

Evidently, these formal or procedural requirements are strictly linked to, and reinforce, the idea of unanimous consent that underpins authentic instruments and should be seen as an integral part of the uniform definitions established by EU Regulations. It is highly doubtful that such requirements could be deemed satisfied with respect to notarial documents that are, at once, issued at the unilateral request of one of the parties and based on the sheer acquiescence of the party who would suffer the detrimental consequences stemming therefrom. 

The author of this post is Lydia Lundstedt, Senior lecturer at the Stockholm University.

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Jurisdiction over foreign patent disputes is again the subject of two new requests for preliminary rulings by the Swedish Patent and Market Court of Appeals. The latest referral, BSH Hausgeräte (C-339/22), concerns the scope of Article 24(4) of Regulation No 1215/2012 (Brussels I bis Regulation) with respect to infringement disputes when the invalidity of a foreign patent is raised as a defence. It also concerns the potential “reflexive effect” of Article 24(4) in relation to patents registered in third countries.

The first question reads as follows (my translation):

Is Article 24(4) of Regulation (EU) 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to be interpreted so that the words ‘proceedings concerned with the registration or validity of patents . . .irrespective of whether the issue is raised by way of an action or as a defence,’ mean that a national court which, in accordance with Article 4(1) of that regulation, has established its jurisdiction to hear an infringement action no longer has such jurisdiction to determine the infringement action if an objection is raised that the patent in question is invalid, or is that provision to be interpreted as meaning that the national court only lacks jurisdiction to determine the invalidity objection?

The second (related) question is (my translation):

Is the answer to question 1 affected by the existence of provisions in national law, similar to those in the second paragraph of Section 61 of the [Swedish] Patent Act, which stipulate that an invalidity objection raised in an infringement action requires the defendant to bring a separate action for a declaration of invalidity in order to be admissible?

The third question concerning the potential “reflexive effect” of Article 24(4) reads (my translation):

Is Article 24(4) of the Regulation to be interpreted as applying in relation to a court in a third country, that is to say, in the present case so that it also confers exclusive jurisdiction on the courts of Turkey for the part of the European patent validated there?

The background is that the German company BSH Hausgeräte GmbH brought proceedings before the Swedish Patent and Market Court against the Swedish company Aktiebolaget Electrolux for the infringement of its European patents validated in Austria, Germany, Spain, France, UK, Greece, Italy, Netherlands, Sweden, and Turkey. Electrolux responded by alleging that the foreign patents were invalid and that the Swedish court therefore lacked jurisdiction to hear the infringement actions concerning the foreign patents.

Electrolux argued that the wording of Article 24(4) of Brussels I Regulation, which codifies the CJEU ruling in GAT (C-4/03), clearly covers infringement actions in which invalidity objections have been raised. It argued further that infringement and invalidity cannot be separated because a valid patent is a prerequisite for an infringement. In addition, Electrolux argued that there was nothing to prevent it from raising invalidity objections before the Swedish court and that the second paragraph of Section 61 of the Swedish Patent Act, which requires an invalidity objection to be raised as an independent action and not merely as an objection in an infringement action, only concerns Swedish patents. In addition, Electrolux argued that pursuant to Article 8 of Regulation (EC) No 864/2007 (Rome II), Swedish law was not applicable and that Swedish law could not either be applied by analogy.

BSH argued that the Swedish court had jurisdiction over the infringement actions pursuant to Article 4 of the Brussels I bis Regulation based on Electrolux’s domicile and the Swedish court did not lose this jurisdiction because Electrolux contested the patents’ validity. It argued further that its action principally concerned infringement, not invalidity so Article 24 and 27 of the Brussels I bis Regulation were not engaged. In addition, BSH argued that pursuant to the second paragraph of Article 61 of the Swedish Patent Act, the court should disregard Electrolux’s invalidity objections unless Electrolux brought separate invalidity actions in the countries where the patents are validated. In such case, BSH argued that the Swedish court could stay the infringement proceedings until the invalidity proceedings became final. Lastly, BSH argued that Article 24(4) of the Brussels I bis Regulation did not apply in relation to third countries.

The Swedish Patent and Market Court held that it lacked jurisdiction over the foreign patents. In short, it held that Article 24(4) applied when invalidity objections were raised in an infringement action concerning foreign patents and that the fact that Electrolux had yet to bring invalidity actions in the countries of registration was not relevant. In addition, the court held that it must also decline jurisdiction over the Turkish part of the European patent because Article 24(4) of the Brussels I bis Regulation was an internationally accepted principle.

BSH appealed to the Patent and Market Court of Appeals. The Court found that the wording of Article 24(4) did not clearly indicate whether it covered infringement actions once invalidity had been raised in objection and that this question was not answered by the GAT decision or the CJEU’s subsequent case law. Concerning the application of Article 24(4) to third country patents, the Court observed that it was not clear from the wording of Article 24(4) of the Brussels I Regulation whether it applied, in contrast to Articles 33 and 34 of the Brussels I Regulation on lis pendens and related actions, which clearly state that that they apply in relation to third countries. The Court also noted that this question had not been answered in Owusu (C-281/02), where the CJEU held that Article 2 of the Brussels Convention (now Article 4 Brussels I bis Regulation) on jurisdiction of the basis of domicile applied to disputes involving relations between the courts of a Contracting State and a non-Contracting State.

An earlier referral, IRnova (C-399/21) also concerns the scope of Article 24(4) of the Brussels I Regulation, but this time in the context of a patent entitlement action when the basis for the action is that the claimant is the true inventor.

The question reads as follows:

Is an action seeking a declaration of better entitlement to an invention, based on a claim of inventorship or co-inventorship according to national patent applications and patents registered in a non-Member State, covered by exclusive jurisdiction for the purposes of Article 24(4) 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?

The background is that the Swedish company IRnova AB brought proceedings before the Swedish Patent and Market Court against the Swedish company FLIR Systems AB for entitlement to patent applications and patents that FLIR Systems AB had applied for and registered in third countries (USA and China) by FLIR Systems AB. The companies had previously had a business relationship. IRnova alleged that one of its employees had developed the inventions, or at least, had made such a substantial contribution to the inventions that he was to be regarded as a co-inventor and that IRnova was therefore the rightful owner. FLIR Systems AB objected to the Swedish court’s jurisdiction and the Patent and Market Court dismissed IRnova’s action. The court held that Article 24(4) of the Brussels I bis Regulation was an internationally accepted principle and therefore should apply in relation to third countries. The court held further that an entitlement action based on inventorship was so closely related to the registration and invalidity of patents that Article 24(4) was engaged.

IRnova AB appealed to the Patent and Market Court of Appeal. The Court noted that the answer to this question was not clear from the CJEU’s previous case law including Duijnstee (288/82), where the CJEU held that Article 16 of the Brussels Convention (now Article 24(4) Brussels I bis Regulation) does not apply to a dispute between an employee for whose invention a patent has been applied for or obtained and his employer, where the dispute relates to their respective rights in that patent arising out of the contract of employment.