EU – EAPIL

What Is On At the CJEU?

by Marta Requejo Isidro
2 January 2020

Private International Law kept the Court busy in 2019 (23 cases were decided only on the “Brussels system”, either by judgment or order of the Court).

2020 looks promising as well. Three hearings are already scheduled for January: case C-80/19, E.E., from Lithuania (several provisions of the Succession Regulation); case C-59/19, Wikingerhof, from Germany (on Article 7 of the Brussels I bis Regulation – once again, on the delimitation between point 1, on matters relating to a contract, and point 2, on matters relating to a tort); case C-73/19, Movic, from The Netherlands (on Article 1 of the Brussels I bis Regulation – on the meaning of civil and commercial matters).

In case C-80/19, the Supreme Court of Lithuania for civil and criminal matters raised some old questions, together with some new. The old ones concern the characterization as a “court” of the Lithuanian notaries requested to deliver a certificate of succession rights, and to carry out other actions necessary for the heir to assert his or her rights; a question on the characterization of the certificate follows. Case C-658/17, WB, has obviously not put an end to all doubts on this (tricky, for sure) issue; looking at the literature, one has the impression it has actually triggered more.

The Supreme Court asks the CJEU some new and interesting questions. Except for Recitals 7 and 67, nowhere in the Regulation it is stated that it applies exclusively to successions having cross-border implications; however, from its objectives, one could hardly conclude differently (and this has already been confirmed by case C-20/17, Oberle). But, when is a situation likely to deploy this kind of consequences? To what extent an interested party’s declaration could have an impact on the characterization if, in practice, its effect would be to remove the cross-border links of the succession (thus making the life of the remaining heir much easier)?

The Lithuanian Court is asking as well about Article 22 and an implicit choice of the applicable law, in a case where also Article 83 (transitional provisions) is at stake. In addition, the question of a choice of court by the interested parties arises.

Three cases to be followed – and, should you happen to be in Luxembourg, three hearings to attend. All three preliminary references can be found at the website of the Court: not just the question as it has been published in the Official Journal, but a summary of the facts and grounds for the references, in all official languages.

CJEU Rules on the Law Governing Action for Payment by Liquidator but Not Set-off

Case law

by Gilles Cuniberti
16 December 2019

Curia On 21 November 2019, the Cour of Justice of the European Union ruled on the law governing an action for payment initiated by the liquidator of an insolvent company in CeDe Group AB v KAN Sp. z o.o. in bankruptcy (Case C‑198/18).

Insolvency proceedings had been opened against the plaintiff in Poland. The defendant was a Swedish company. The contract on the basis of which the liquidator was seeking payment was concluded before the opening of the insolvency and was governed by Swedish law. The defendant had claimed set-off in the Polish proceedings where its claim was rejected.

The liquidator sought a European order for payment in Sweden against the Swedish company. The latter claimed set-off again, and argued that Polish lw applied. The liquidator argued that, under Article 4 of the (old) Insolvency Regulation, set-off was governed by the law of the insolvency, i.e. Polish law.

Regarding whether the Insolvency Regulation applied in the context of the Swedish proceedings the Court ruled as follows:

Article 4 of [the Insolvency Regulation] must be interpreted as not applying to an action brought by the liquidator of an insolvent company established in one Member State for the payment of goods delivered under a contract concluded before the insolvency proceedings were opened in respect of that company, against the other contracting company, which is established in another Member State.

The Court, however, and most unfortunately, did not address expressly the issue of the law governing the claim for set-off before the Swedish courts, noting that its interpretation on the above issue did not “prejudge the law applicable to the application for set-off or the relevant rules for determining the law applicable to the action in the main proceedings”.

Common Minimum Standards of Civil Procedure: European Added Value Assessment

EU Legislation, Normative texts, Reports, recommendations, studies etc.

by Apostolos Anthimos
12 December 2019

On 28 November 2019 the European Added Value Unit published a study accompanying the European Parliament’s legislative own-initiative report on Common minimum standards of civil procedure.

The summary reads as follows:

The European Added Value Assessment (EAVA) estimates whether and to what extent adoption of EU minimum standards of civil procedure could generate European added value. The European added value is quantified as a percentage reduction of the total cost of civil procedure. The total cost of civil procedure is estimated based on data on the number of civil and commercial proceedings in the EU-28 and the cost of litigation in the Member States. Based on this analysis, the EAVA estimates that introducing EU common minimum standards of civil procedure could reduce annual costs for citizens and businesses in the European Union by as much as € 4.7 to 7.9 billion per annum. The European added value could be potentially generated through reduction of fragmentation, simplification and filling gaps in the current EU procedural rules. Furthermore, EU common minimum standards would contribute towards building mutual trust between judicial authorities of different Member States. Increasing trust has the potential to enhance legal certainty and stability for citizens and businesses, further reduce uncertainty and delay costs.

Jafferali and Watté on the general rules of Belgian and European private international law

Books

by Gilles Cuniberti
8 December 2019

Watte Nadine Watté and Rafaël Jafferali (both Free University of Brussels) have published a book presenting the General Rules of Belgian and European Private International Law.

The book focuses primarily on the general theory of choice of law. One of the goals of the authors is indeed to assess whether a coherent approach can be identified among the various EU PIL Régulations.

À ce stade du développement du droit international privé européen, les auteurs ont considéré qu’il était indispensable de vérifier, selon un schéma horizontal, si des règles générales du droit international privé figurent dans les divers règlements. Sont-elles énoncées de la même façon dans chacun d’eux soit de manière expresse (comme les lois de police et l’ordre public international), soit implicitement (telles la qualification et les questions préalables) ? Comment ont-elles évolué ou perdu de leur influence (tels le renvoi et la fraude au système juridique) ? Les auteurs ont déduit de leur analyse que ces règles générales dispersées dans les différents règlements sont communes.

More details can be found here. A full table of contents is available here.

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