Droit international général

by Felix M. Wilke, University of Bayreuth, Germany

Most readers of this blog will be well aware that, according to the ECJ, the “place of performance” of a contractual obligation within the meaning of Article 7(1)(a) Brussels Ibis is not a concept to be understood independently from national law. Rather, in order to determine this place, one must apply the substantive law designated by the forum’s conflict-of-law rules. The ECJ has held so for decades, starting with Tessili (Case C-12/76, ECLI:EU:C:1976:133, at 13). Recent decisions by the ECJ have led me to doubt that Tessili still is lex terrae Europaea, at least as far as contracts with some relation to a right in rem in immovable property are concerned. (And I am not alone: Just today, Marion Ho-Dac analyses this issue as well over at the EAPIL Blog.)

The applicability of Article 7(1)(a) Brussels Ibis in the context of co-ownership agreements

To begin with, it is necessary to establish what Article 7(1)(a) Brussels Ibis has to do with co-ownership agreements. Article 24(1) Brussels Ibis might appear to be the more natural jurisdictional rule in this context. But it does not suffice that a case has some connection to property law. Article 24(1) Brussels Ibis only applies if the action is based on a right in rem. The Court has been characterising rights as rights in rem independently from national law (a point I would agree with). The main feature of a right in rem is its effect erga omnes (Wirkung gegenüber jedermann; effet à l’egard de tous – see Case C-292/93, ECLI:EU:C:1994:241– Lieber, at 14). Thus, Art. 24(1) Brussels Ibis will not apply to a dispute concerning rights whose effect is limited to other co-owners and/or the association of co-owners. Rather, Article 7(1)(a) Brussels Ibis comes into play. The Court considers the corresponding obligations as freely consented to, as they ultimately arise from the voluntary acquisition of property, regardless of the fact that the resulting membership in the association of co-owners is prescribed by law (Case C-25/18, ECLI:EU:C:2019:376 – Kerr, at 27). This applies, e.g., to a co-owner’s payment obligation arising from a decision taken by the general meeting of co-owners.

From Schmidt to Ellmes Property

Kerr only concerned the question of whether Art. 7(1)(a) Brussels Ibis applies to such disputes at all. The Court had reasoned (to my mind quite correctly) in Schmidt (Case C-417/15, ECLI:EU:C:2016:881, at 39) earlier that an action based on the alleged invalidity of a contractual obligation for the conveyance of the ownership of immovable property is no matter falling under Article 24(1) Brussels Ibis. It then had gone beyond the question referred to it and stated that Article 7(1)(a) Brussels Ibis applies, noting that this contractual obligation would have to be performed in Austria (being the location of the immovable property in question). Ellmes Property (Case C-433/19, ECLI:EU:C:2020:900, reported on this blog here and here) now combines the two strands from Kerr and Schmidt. This recent case again concerns a dispute in the context of a co-ownership agreement. One co-owner sued the other for an alleged contravention of the designated use of the respective apartment building (i.e., letting an apartment out to tourists). If this designated use does not have effect erga omnes, e.g. cannot be relied on against a tenant, the CJEU would apply Article 7(1)(a) Brussels Ibis. But once again, the Court does not stop there. It goes on to assert that “[The obligation to adhere to the designated use] relates to the actual use of such property and must be performed in the place in which it is situated.” (at 44).

A Tessili-shaped hole in the Court’s reasoning

In other words, the Court seems at least twice to have determined the place of performance itself, without reference to the applicable law – even though there does not seem to be any pertinent rule of substantive law that the Court would have been competent to interpret. A reference to Tessili or any decision made in its wake is missing from both Schmidt and Ellmes Property. (In his Opinion on Ellmes Property, Advocate General Szpunar did not fail to mention Tessili, by the way.) And in Ellmes Property, the Court proceeds to argue that this very place of performance makes sense in light of the goals of Brussels Ibis and its Article 7 in particular. The Court thus uses jurisdictional arguments for a question supposedly subject to considerations of substantive law.

“Here’s your answer, but please make sure it is correct.”

Admittedly, the statement in Schmidt was made obiter, and the Court locates the place of performance only “subject to verification by the referring court” in Ellmes Property. The latter might be a veiled reference to Tessili. But why not make it explicit? Why not at least refer to the Advocate General’s opinion (also) in this regard? And why the strange choice of the word “verification” for question of law? But the Court has not expressly overruled Tessili. Furthermore, I do not want to believe that it has simply overlooked such an important strand of its case-law presented to it on a silver platter by the Advocate-General, one arguably enshrined in the structure of Article 7(1) Brussels Ibis, anyway. Hence, I (unlike Marion Ho-Dac, although I certainly agree with her as to the low quality of the judgment in Ellmes Property) still hesitate to conclude that Tessili must be disregarded from now on. This assumption, however, leads to one further odd result. While the referring court that had asked the ECJ for clarification of the place of performance does receive a concrete answer, it now has to check whether this answer is actually correct. Granted, it is not uncommon for the Court to assign certain homework to the referring court. Yet here, the former employed some new standard and tasked the latter to check whether the result holds up if one applies the old standard.  I fail to see the point of this exchange between the national court and the Court of Justice.

(A full case note of mine (in German) on Ellmes Property, touching on this issue as well as others, is forthcoming in the Zeitschrift für das Privatrecht der Europäischen Union (GPR).)

Gilles Cuniberti  discusses Koch Films v Ouragan Films et al at the French Supreme Court, a case which as also signalled by Hélene Péroz. The judgment is an important one for it signals the continuing uncertainty of interpreting ‘provisional’ under Brussels Ia. In its earlier case-law (Ergo; Haras de Coudrettes) the SC took a more relaxed approach than a strict reading of CJEU St.Paul Dairy might suggest. Unlike Gilles I do not think the SC’s judgment here necessarily signals a return to orthodoxy. In rebuking the Court of Appeal for having too readily dismissed the measures as not being provisional, and in demanding it review whether the measures might not (also) be meant to preserve evidence, it could be said that the opposite might be true: as long as the measure at least in part preserves evidence, other motives do not endanger its provisional character.

En se déterminant ainsi, par une affirmation générale, sans rechercher si ces mesures, qui visaient à obtenir la communication de documents en possession des parties adverses, n’avaient pas pour objet de prémunir la société Koch contre un risque de dépérissement d’éléments de preuve dont la conservation pouvait commander la solution du litige, la cour d’appel a privé sa décision de base légale au regard des textes susvisés [7]

One will have to await future direction.

Geert.

EU Private International Law 3rd ed 2021, 2.559.

 

French SC holds that application by DE film producer, for discovery (involving bailiff) of ICT data from French corporation holding exclusive distribution rights, in spite of choice of court in favour of DE court, may be included in A35 BIa provisional or protective measures. https://t.co/XOxhdwDot6

— Geert Van Calster (@GAVClaw) January 27, 2021

Gilles Cuniberti on French SC in Koch Films v Ouragan Films et al
Provisional measures under BIa
Compare its earlier case-law in Ergo, and Haras de Coudrettes https://t.co/pCIypgvASu which, Gilles argues, has been overruled. https://t.co/WgaZaXhOnW

— Geert Van Calster (@GAVClaw) March 8, 2021

On 11 November 2020, the Court of justice issued a judgment on jurisdiction under Brussels I bis Regulation in respect of a dispute on the use of immovable property subject to co-ownership (Case C-433/19, Ellmes Property Services, already reported here and here). Both article 24, point 1, on rights in rem matters and article 7, point 1, a) on contractual matters were submitted to the interpretation of the Court.

Regarding the first provision, the Court leads a classical and very brief analysis of the jurisdictional rule, leaning on the national judge to implement it in casu. On the contrary, the interpretation of the second provision deviates from the settled caselaw and the Court is more prescriptive towards the referring judge.

All in all, the reading of the judgment gives an impression of inconsistency and unfinished work.

Facts and Issues at Stake

 A British company is co-owner of an apartment in Austria, which is designated for residential purposes. However, it was using that apartment for touristic purposes by regularly renting it out to holidaymakers. Another co-owner, SP, sought the cessation of that “touristic use” on the ground that it is contrary to the designated use of that building and, therefore, it interferes with his right of co-ownership.

The question of international jurisdiction arose. SP seized the Austrian court following the exclusive jurisdiction provided for in article 24, point 1, of Brussels I bis Regulation, in favour of the court of the Member State in which the property is situated. The British company contested the jurisdiction of that court on the basis of the forum contractus, pursuant to article 7, point 1, a). For the referring court, both grounds of jurisdiction could be admissible under Austrian civil law. Therefore, the Court of justice ruled on both provisions.

Jurisdiction in Matters Relating to Rights in rem in Immovable Property: A Self-restraint Approach? Reasoning

The Court of justice first assessed whether the action brought by the co-owner against the British company was to be characterised as an action “in matters relating to rights in rem in immovable property” pursuant to article 24, point 1 of the Brussels I bis Regulation. This requires, in particular, that the action is based on a right in rem and not on a right in personam (see the CJEU judgment in Reitbauern, para. 45). A right in rem, existing in corporeal property, has effect erga omnes. The tricky point here was to determine whether the designated use of the building produces such effect. Is the co-owner entitled to oppose the residential purposes of his property beyond the co-ownership agreement, to third parties? For the Court of justice, it falls to the referring court to respond to this question, following its national legal framework. Therefore, the application in casu of article 24, point 1, remains unsure.

Assessment

Eventually, the national judge would have been in the same position without referring any question to the Court of justice, since its interpretation adds nothing to the settled caselaw in the field. The Advocate General Szpunar went much further in its opinion, clearly doubting of the application of this exclusive ground of jurisdiction. He stressed that “there was a considerable underlying interest at stake in the EU legislature’s decision to make the jurisdiction established by that article [24 point 1] exclusive in nature”, namely “a public interest”. It is characterised when “rights [are] capable of affecting the legal situation of any person (effect erga omnes) or of the public in general” (para. 62). No such public interest seems to be at stake here, as far as “adherence to contractual arrangements between co-owners relating to the designated use of an immovable property” is concerned (para. 68); this is a pure contractual issue, subject to private autonomy.

In that respect, despite the remaining divergence of national civil and property laws within the Member States, it was possible to give the domestic court a clearer guidance. Then I wonder why the Court of justice decided not to be more explicit in its interpretation. Did the Court exercise self-restraint to preserve national private laws? Numerous Member States are indeed still hostile to the European harmonisation in the field. If it is the Court’s motive, it is unfortunate. On the contrary, it seems necessary to reflect on what extent an approximation of core notions of private law within the EU could improve the uniform application of European PIL rules. This reflection is the natural follow-up of the “autonomous interpretation” based on EU law developed and applied by the Court of justice, including in the field of EU PIL.

Jurisdiction in Matters Relating to a Contract: A Return to Orthodoxy? Reasoning

Given the uncertainty of application of the exclusive jurisdiction provided for in article 24, point 1, the Court of justice also interpreted article 7, point 1, on contractual matters. The Court started to recall the great flexibility of the notion of “contractual matters”. By analogy with its judgment in Kerr, it held that “the co-owners are, on account of the co-ownership agreement, in a contractual relationship freely consented to” (para. 40). Therefore, the action brought by the co-owner against the British company, itself co-owner, is an action “in matters relating to a contract”.

Then, the Court implemented the complex connecting factor laid down in article 7, point 1, a) – since the special rules in respect of the contracts on sale of goods and the contracts regarding the provision of services did not apply here, i.e. the presumptions regarding the place of performance –. Remarkably, the Court of justice removed the classical conflict-of-laws reasoning inherited from its judgment in Tessili (contrary to the Advocate General Szpunar in his opinion, para. 83 in fine). Following this settled caselaw, if the parties did not agree on the place of performance, that place must be determined by the law governing the contract in question pursuant to the PIL rules of the forum.

However, the Court of justice decided here to locate “directly” the place of performance, without the intermediary of the applicable law to the contract. The obligation in question is the guarantee of a “peaceful enjoyment of the property subject to co-ownership” by the owner and “must be performed in the place in which it is situated” (para. 44), i.e. in Austria.

Assessment

This solution makes the application of article 7, point 1), a), much easier in practice. The “direct” reasoning followed by the Court of justice leads to a substantial designation of the competent jurisdiction, here the Austrian judge. The two-steps reasoning, i.e. the implementation of a conflict-of-laws rule in order to apply a jurisdictional rule, has always been criticized by a large majority of scholars. It is indeed unorthodox regarding the classical PIL methodology. Issue of competence is, in principle, independent from the solution of conflict-of-laws.

The law designated by the choice of law rules has generally to be determined under the Rome I Regulation, except if the contract in question was concluded before the entering into force of this text. It seemed to be the case here (see par. 84 of the opinion, and even before the entering into force of the 1980 Rome Convention), imposing the referring court to apply its previous national choice of law rules in contractual matters. This further difficulty was probably an additional incentive for the Court to remove the Tessili reasoning.

This “streamlined” interpretation was already followed by the Court, a few years ago, in a case related to the avoidance of a contract of gift of immovable property (see the CJEU judgment in Schmidt, para. 39). However, in both judgements, the Court of justice did not bother to mention the change of approach. This is unfortunate as it makes difficult to assess the scope of the solution.

It is, most probably, only an exception in the context of immovable property, based on its strong attraction on the place where the property is situated and on the resulting proximity with the forum. In that sense, the Court of justice has stated that this solution “meets the objective of predictability of the rules of jurisdiction laid down by Regulation n° 1215/2012 since a co-owner bound by a co-ownership agreement stipulating such a designated use may, when he or she arbitrarily and unilaterally changes that designated use, reasonably expect to be sued in the courts of the place where the immovable property concerned is situated” (para. 45).

However, the “simplification” of application of article 7, point 1), a), stays unclear. The Court of justice mentions that the obligation in question “relates to the actual use of such property” (para. 44 in fine). Following an a contrario reading, would the “direct” location of the place of performance still be the solution if the obligation relates to an abstract use of property? (in that sense, see here). And how to understand and to draw the line between actual and abstract use of property?

Finally, it seems that a same “direct” approach was recently followed by the Court in the field of prorogation of jurisdiction. In its judgment in DealyFix (reported here on this blog), where the enforceability of a choice of court agreement to a third party was at stake, the Court held that it can be enforced only if, under the (substantive) legislation of the Member State whose courts are designated in that clause, the enforceability is allowed. The Court of justice did not refer to the “rules of private international law of the court” designated in the agreement, as it did before in its judgment in CDC (see para. 65, regarding the “court seised of the matter”). By analogy, the same “renvoi” to PIL rules is laid down in article 25, §1 and recital 20 of the Brussels I bis Regulation, in case of alleged substantive invalidity of a choice-of-court agreement; the question shall be decided “in accordance with the law of the Member State of the court […] including the conflict-of-laws rules of that Member State”.

I wonder whether it could illustrate a latent tendency of the Court of justice to avoid the overriding conflict-of-laws reasoning, in favour of a direct application of the jurisdictional rules concerned. Such a “material approach” is convincing, but one could call the Court to be more explicit in its judicial policy. It would make its interpretation more convincing and effective.

Invitation by Angélique Devaux, Notary

The “Chaire du Notariat” of the University of Montreal is organising a webinar on 17 March 2021 at 9am (EST) on the impact in Quebec and in France of the new European Regulation on Successions.

Through practical cases, the speakers will deal with the resolution and prevention of disputes in matter international successions between France and Quebec by taking into consideration the scope of the New European Regulations on matrimonial property regimes and on successions.

Moderator:

Julie Loranger, Notary, Montreal (Canada), BCF Avocats

Speakers:

Me Angélique DEVAUX, Notaire, Cheuvreux Notaires, Paris (France), LL.M American Law IUPUI Robert McKInney School of Law

Me Jeffrey TALPIS, Montreal University, Head of Chaire du Notariat, corresponding of CRIDON Lyon

Professor Emeritus Georges Khairallah, Université de Paris II Panthéon – Assas, consultant au CRIDON de Paris, droit international privé

To enrol, see the website of the Chaire du Notariat.

As I seem to be in pedagogic blog mode today, a note on AdActive Media Inc v Ingrouille [2021] EWCA Civ 313. The case shows the complications that arise in recognition and enforcement proceedings outside of the Brussels regime. The proceedings were initiated prior to the end of the Brexit transition period however seeing as they involve a judgment from outside the EU, Brussels Ia was never engaged. Even had BIa been engaged, an interesting discussion would have ensued, I am sure, as to the impact of the arbitration exclusion on the case at issue.

The consultancy agreement between the parties (AdActive Media are incorporated in Delaware, Mr Ingrouille is resident in the UK) is by its express terms governed by the law of the State of California. It contains three provisions dealing with jurisdiction, two of which confer jurisdiction on US District and State Courts in California and the other provides for arbitration. The provision for arbitration expressly excludes claims by the company under two clauses, one of which (clause 7) contains covenants against the misuse and unauthorised disclosure of confidential information. Alleged breaches of clause 7 featured prominently in the claims made in the US proceedings. The relationship between these provisions and their effect is one of the issues arising on this appeal. The company argued before the judge who was asked to confirm recognition, that they were irreconcilable, and that the arbitration clause was ineffective. Alternatively, it argued that as the US proceedings included claims in respect of the misuse and unauthorised disclosure of confidential information, they were properly brought in the US Court.

Under the common law of recognition and enforcement, if the US proceedings were properly brought in the US Court in accordance with the terms of the consultancy agreement, that court is recognised as having jurisdiction over the claim against Mr Ingrouille and its judgment will prima facie be enforceable in England. However the lack of the Brussels’ regime mutual trust and harmonisation of jurisdictional rules means the English court will second-guess US jurisdiction under section 32 of the England and Wales Civil Jurisdiction and Judgments Act 1982 (I have copied the relevant extract below).

What follows are 50-odd paras of discussion of the scope of clause 7, reference to Fiona Trust and Enka, and a conclusion by Richards LJ that the judgment entered against Mr Ingrouille in the US proceedings cannot be enforced in England, by reason of the application of section 32(1) of the 1982 Act. Summary judgment was entered in favour of Mr Ingrouille.

Geert.

Successful appeal against the recognition and enforcement of a US (DC CAL) judgment on grounds of lack of US jurisdiction, resulting from issue being within scope of #arbitration clause interpreted under lex fori, EN law, not lex contractus, CAL law. https://t.co/iQELdp3FEg

— Geert Van Calster (@GAVClaw) March 5, 2021

S32:

“(1) Subject to the following provisions of this section, a judgment given by a court of an overseas country in any proceedings shall not be recognised or enforced in the United Kingdom if –

(a) the bringing of those proceedings in that court was contrary to an agreement under which the dispute in question was to be settled otherwise than by proceedings in the courts of that country; and

(b) those proceedings were not brought in that court by, or with the agreement of, the person against whom the judgment was given; and

(c) that person did not counterclaim in the proceedings or otherwise submit to the jurisdiction of that court.

(2) Subsection (1) does not apply, where the agreement referred to in paragraph (a) of that subsection was illegal, void or unenforceable or was incapable of being performed for reasons not attributable to the fault of the party bringing the proceedings in which the judgment was given.

(3) In determining whether a judgment given by a court of an overseas country should be recognised or enforced in the United Kingdom, a court in the United Kingdom shall not be bound by any decision of the overseas court relating to any of the matters mentioned in subsection (1) or (2).”

 

 

Invitation by Dr Orsolya Toth, Assistant Professor in Commercial Law, University of Nottingham

The University of Nottingham Commercial Law Centre will hold its inaugural Nottingham Arbitration Talk on Wednesday 17 March at 2-4 pm.  The Centre is delighted to welcome distinguished speakers to the event drawn from both academia and practice.  The Keynote address will be given by Professor Sir Roy Goode, Emeritus Professor of Law at the University of Oxford.  The speaker panel will host Angeline Welsh (Essex Court Chambers), Timothy Foden (Lalive) and Dr Martins Paparinskis (University College London).

The theme of the event will be ‘Procedure and Substance in Commercial and Investment Treaty Arbitration’.  It will address current and timeless issues, such as the influence of procedure on the parties’ substantive rights, the recent phenomenon of ‘due process paranoia’ in arbitration and the current state of the system of investment treaty arbitration.

All welcome and free to attend.  For detailed programme and registration please visit https://unclcpresents.eventbrite.co.uk

Rokkan v Rokkan & Anor [2021] EWHC 481 (Ch) is most excellent material for anyone looking to teach and /or understand the concept of ‘characterisation’ in private international law /the conflict of laws.

It also of course shows how qualification may be used (albeit here unsuccessfully) to try and reverse the unfortunate consequences of a particular action. In essence, claimant is a son of the deceased (she died in 2016 domiciled in the UK having lived there for a long time) who in her  2012 testament had been given the funds in two Norwegian bank accounts of the deceased, which she had emptied in 2014 via transfers to the UK.

Upon the 1979 death in Norway of her husband, the surviving spouse had applied for “uskifte” or “deferred probate” by which, in broad terms, the surviving spouse may apply to the court for an order by which (s)he is allowed to possess the whole of the joint estate of the deceased and the surviving spouse, and becomes subject to various obligations. The law provides that when the surviving spouse dies the joint estate is divided in two and each half passes to the heirs of the deceased spouse and the surviving spouse respectively (who may of course be the same).

Under England and Wales inheritance laws there is no reserved share. For claimant to obtain part of the estate, he must qualify his claim as something else than one in inheritance. The routes he opts for, are contractual (the argument here being that by exercising the right of deferred probate, the now deceased undertook obligations which were contractual and are governed by Norwegian law) or in trust (applying for and being granted deferred probate gave rise to a trust, whereby the now deceased held the joint assets on trust for herself but also for the first deceased heirs. It is alleged that the trust is governed by Norwegian law).

The characterisation principles are laid out at 33 ff, with focus mostly on characterisation following lex fori. Miles J does not discuss the role of the Rome Regulations (one imagines parties had not done so either) and under Rome I in particular, plenty of exceptions (family relationships, constitution of trusts) might well kick in. At 39 ff for the contract claim and at 49 ff for the trust claim under the Hague Convention, he rather swiftly decides the arguments are contrived: the Norwegian regime is near-entirely determined by Statute and that the initial kick-off requires the surviving spouse to apply for it, does not in and of itself render the whole regime a contractual one.

Good teaching material. Geert.

EU private international law 3rd ed. 2021, ia para 1.13

 

Exquisite judgment to teach characterisation, conflict of laws
Deceased wife having applied for uskifte=deferred probate viz late husband estate under NOR law
Whether it put her under contractual (held: no) or trust (@HCCH_TheHague Convention; no) duties.
Held: inheritance issue. https://t.co/ZsGy3xMpe4

— Geert Van Calster (@GAVClaw) March 4, 2021

On 5 March 2021, the Conclusions & Decisions of the HCCH governing body, the Council on General Affairs and Policy (CGAP), were released. Click here for the English version and here for the French version.

Although there is a wide range of topics discussed, I would like to focus on three aspects: gender issues, the Jurisdiction Project and future meetings.

1) Today is International Women’s Day and there are important conclusions on gender issues. The Conclusions & Decisions No 52-54 read as follows:

“G. Geographic Representation

“52. Reaffirming the principles of universality and inclusiveness, CGAP reiterated its commitment to ensuring appropriate geographic representation at the HCCH. Recognising the importance of this issue, CGAP agreed to maintain this item on the agenda for its 2022 meeting. CGAP invited the  PB  to facilitate,  within  existing  resources,  informal  consultations  ahead  of  the  2022 meeting of CGAP,  through in-person meetings, while ensuring the opportunity for any HCCH Member to participate.

53. In the context of this discussion, CGAP also recalled the importance of ensuring appropriate gender representation.

54. CGAP requested the  PB  to  provide  a  historical  overview  of  geographic  and  gender  representation in the key bodies and groups of the Organisation ahead of the 2022 meeting of CGAP.” (our emphasis)

Awareness of gender representation is always a victory for everyone!

2) As you may know, a spin-off from the Judgments Project was the establishment of the Experts’ Group on the Jurisdiction Project. The purpose of this Group was to continue its discussions on “matters relating to direct jurisdiction (including exorbitant grounds and lis pendens / declining jurisdiction)”, “with a view to preparing an additional instrument”. It met 5 times.

A report of the Experts’ Group was presented to the CGAP. It includes an aide-mémoire of the Chair (Annex I) and a Summary of the Responses to the Questionnaire on Parallel Proceedings and Related Actions in Court-to-Court Cases (Annex II). See here the Report on the Jurisdiction Project.

Interestingly, three options on the possible types of future instrument(s) were discussed by the Experts’ Group but views were divided: [Option A] Binding instrument on direct jurisdiction, including on parallel proceedings; [Option B] Binding instrument on parallel proceedings, and a binding additional protocol on direct jurisdiction; [Option C] Binding instrument on parallel proceedings, and a non-binding instrument (e.g., model law, guiding principles, etc.) on direct jurisdiction (see page 5).

A clear and strong preference was expressed for Options A and C (experts were divided).

In my personal opinion Option C seems to be the more sensible option. As expressed by the experts favoring this option: “[…] with  a  common  consideration being that diverse legal backgrounds and jurisdictional rules from around the world would  make  a  binding  instrument  on  direct  jurisdiction  difficult  to  conclude  and  to  implement.  These experts also noted that Option A may not be feasible due to existing differences in opinion of experts and considering past similar attempts. In this context, they considered it more useful to develop  a  soft  law  instrument  on  direct  jurisdiction  and  were  open  to  considering  the  viability  of  different  types  of  soft  law  instruments  such  as  a  model  law,  principles,  or  guidelines.  Given  the  need  to  deal  with  parallel  proceedings  in  practice,  they  expressed  a  preference  for  developing  a  binding instrument on parallel proceedings.”

Following the conclusion of the work of the Experts’ Group on the Jurisdiction Project, a new Working Group on matters related to jurisdiction in transnational civil or commercial litigation was established, and Professor Keisuke Takeshita (Japan) was invited to chair the Working Group.

The Conclusion & Decision No 9 of the CGAP reads:

“9. In continuation of the mandate on the basis of which the Experts’ Group had worked, CGAP mandated:

a. The Working Group to develop draft provisions on matters related to jurisdiction in civil or commercial matters,  including  rules  for  concurrent  proceedings,  to  further  inform  policy  considerations  and  decisions  in  relation  to  the  scope  and  type  of  any  new  instrument.

b. The Working Group to proceed in an inclusive and holistic manner, with an initial focus on developing binding  rules  for  concurrent  proceedings  (parallel  proceedings  and  related  actions  or  claims),  and  acknowledging  the  primary  role  of  both  jurisdictional  rules  and  the  doctrine  of  forum  non  conveniens,  notwithstanding  other  possible  factors, in developing such rules.

c. The Working Group to explore how flexible mechanisms for judicial coordination and cooperation can support  the  operation  of  any  future  instrument  on  concurrent  proceedings and jurisdiction in transnational civil or commercial litigation.

d. The PB to  make  arrangements  for  two  Working  Group  meetings  before the 2022 meeting of CGAP, with intersessional work, so as to maintain momentum. If possible, one meeting will be held after the northern hemisphere summer of 2021, and another in early 2022, with a preference, where possible, for hosting in-person meetings” (our emphasis).

3) With regard to future meetings, there are a few meetings in the pipeline, among them:

Special Commission meetings (SC – basically, a global meeting of experts)

• Special Commission on the practical  operation  of  the  2007  Child  Support  Convention  and  its  Protocol – postponed to March-June 2022 (first SC meeting ever on this Convention & Protocol)
• Special Commission on the Apostille Convention + 12th e-APP Forum – to be held online in October 2021
• Special Commission on the practical  operation  of  the  1993  Adoption  Convention – postponed to July 2022

Edition  2021  of  HCCH  a|Bridged will focus  on  the  2005 Choice  of  Court  Convention (incl. and “subject  to  available  resources,  the  circulation  of  a  brief  questionnaire  to  elicit  reasons  as  to  why  more  States  have  not  become  party  to  the  Convention”).

In a judgment of 27 January 2021, the French Supreme Court for private and criminal matters (Cour de cassation) indicated its willingness to apply strictly the definition of provisional measures developed by the European Court of Justice in Reichert, Van Uden and Saint Paul Dairy Industries. Three years earlier, the Cour de cassation had ignored the limits sets by these rulings and extended the jurisdiction of French courts to order evidentiary measures beyond purely protective measures.

Background

The case was concerned with a contractual dispute between a French and a German company in the film industry. The contracts provided for the jurisdiction of German courts. As the German company wondered whether several French companies had commited the budget agreed upon by the parties to the production of a film and a series, it applied ex parte to a French commercial court for the appointment of a judicial officer (huissier de justice) with the task of conducting “computer investigation” and “gathering data”.

Picture: Neal Davis

The judgment is short on the description of the measure, but it seems that the huissier was supposed to enter the premises of the French companies and collect data from their computer.

The French companies challenged the jurisdiction of the French court to grant such a measure.

Article 35 of the Brussels I bis Regulation

Because of the jurisdiction clauses, French courts lacked jurisdiction on the merits. Their jurisdiction could only be grounded in Article 35 of the Brussels I bis Regulation. However, in order to avoid that parties bypass the jurisdiction of the chosen court (or any other court having jurisdiction on the merits), the ECJ has limited the scope of this provision to protective measures. As is well known, the ECJ has consistently defined ‘provisional, including protective measures’ in the meaning of this provision as:

referring to measures which, in matters within the scope of the Convention/Regulation, are intended to preserve a factual or legal situation so as to safeguard rights the recognition of which is otherwise sought from the court having jurisdiction as to the substance of the case.

The concept, thus, is limited to measures which ‘preserve a situation’. Despite the title of Article 35, they actually only include protective measures. This narrow definition was codified in Recital 25 of the preamble of the Brussels I bis Regulation, which codified Saint Paul Dairy Industries in the following terms:

The notion of provisional, including protective, measures (…) should not include measures which are not of a protective nature, such as measures ordering the hearing of a witness.

Which Purpose?

The critical issue was thus to define the purpose of the requested measure.

The lower court had found that the aim of the measure was to prepare the proceedings on the merits by gathering information. It had thus ruled that the requested measure was not protective, as it did not aim at preserving any legal or factual situation. It had also held that the measure was not provisional either, as the provision of the information could not be undone.

The Supreme Court allowed the appeal. It ruled that the reasons of the lower court were too general, and that it should have explored whether the requested measure did not also aim at preserving evidence.

Assessment

In 2018, the French Supreme Court had allowed the appointment of judicial experts for the purpose of conducting investigations in France and establishing facts without any assessment of whether there was any need to preserve a situation. As foreign courts had jurisdiction on the merits, these judgments were arguably non compliant with the case law of the CJEU defining the scope of Article 35. It seems that these decisions have now been overruled, and rightly so.

The COVID-19 Pandemic has impacted on commercial dispute resolution in China, Singapore and Australia. The important question is whether these impacts will be transformed into legal doctrines and shape the development of law for commercial dispute resolution in the long term.

Experienced panellists will consider how Covid-19 has promoted online trials in China, influenced forum non conveniens and other aspects of international commercial litigation in the Singapore courts, and challenged service of process outside Australia and other private-international-law related issues.

In 2021, besides this panel discussion, the Centre for Asian and Pacific Law (CAPLUS) at the Sydney Law School will organize a series of events on the (post)development of Covid-19 in the Asia-Pacific region focusing on social justice, civil rights and religion, and trade and investment legal issues.

Moderator:

Professor Vivienne Bath’s teaching and research interests are in international business and economic law, private international law and Chinese law. Professor Bath has extensive professional experience in Sydney, New York and Hong Kong, specialising in international commercial law, with a focus on foreign investment and commercial transactions in China and the Asian region.

Panellists:

Dr. Wenliang Zhang is an Associate Professor at Renmin University of China Law School. He has been teaching and doing research in the field of international disputes resolution, with a focus on international jurisdiction and global judgments recognition. His works appear in peer-reviewed international journals including Vanderbilt Journal of Transnational Law, Journal of International Dispute Settlement, Yearbook of Private International Law and Chinese Journal of International Law.

Dr. Adeline Chong is an Associate Professor at the School of Law, Singapore Management University. She has published in leading peer-reviewed journals such as the LQR, ICLQ, LMCLQ and JPIL. She is the co-author of Hill and Chong, International Commercial Disputes: Commercial Conflict of Laws in English Courts (Oxford, Hart, 4th edn, 2010). She is the Project Lead of the Asian Business Law Institute’s project on the Recognition and Enforcement of Foreign Judgments in Asia. Her work has been cited by the Singapore, Hong Kong, New South Wales and New Zealand Court of Appeals, the Singapore and New Zealand High Courts, the UK Law Commission, as well as in leading texts on conflict of laws. She has appeared as an expert on Singapore law before a Finnish court and issued a declaration on Singapore law for a US class action.

Dr. Jie (Jeanne) Huang is an Associate Professor at the Sydney Law School. She teaches and researches in the fields of private international law and digital trade. She has published four books and authored many articles in peer-reviewed law journals, such as Journal of Private International Law and Journal of International Economic Law. She is the Deputy Director of CAPLUS. She also serves as an Arbitrator at the Hong Kong International Arbitration Center, Shanghai International Economic and Trade Arbitration Commission (Shanghai International Arbitration Center), Nanjing Arbitration Commission and Xi’an Arbitration Commission. She has also appeared as an expert witness for issues of Chinese law and private international law at the courts in Australia and the US.

Webinar via Zoom, Friday 12 March, 1pm AEST.

Once registered, you will receive Zoom details closer to the date of the webinar.

CPD Points: 1

Registration: https://law-events.sydney.edu.au/talkevents/aftermath-of-pandemic

New publication 25% off discount offer:

New Frontiers in Asia-Pacific International Arbitration and Dispute Resolution

Edited by Luke Nottage, Shahla Ali, Bruno Jetin & Nubomichi Teramura

Discount 25% by applying Code 25NEWF21

 

You are kindly invited for the conference on “Regional Migration Governance: Soft Law and the Diffusion of Policies on Integration and Inclusion (Focus on South America Regionalism)” by Dr. Verónica Ruiz Abou-Nigm (senior Lecturer in Private International Law at Edinburgh Law School and the principal investigator of the GCRF funded project Migration in Latin America (MiLA)) on March 9, 2021, Tuesday between 12.30-13.30 (GMT+3). The conference is organised by Bilkent University as a part of the Talks on Migration Series within the Jean Monnet Module on European and International Migration Law. It will be held via zoom, free of charge. Please contact us (Jmmigration@bilkent.edu.tr) for participation.

 

On 17 September 2020 the Court of Justice of the EU issued a judgement in the case of WV v Landkreis Harburg (C-540/19) concerning the interpretation of the jurisdictional rules of the EU Maintenance Regulation, in particular its Article 3(b). An opinion in this case was prepared by AG Sánchez-Bardona.

Factual Background

WV’s mother lived in a residential care home for the elderly in Germany. In accordance with § 1601 of the German Bürgerliches Gesetzbuch, WV, the son, was required to provide maintenance to his mother. However, he failed to do so. As the mother did not have adequate means to cover expenses, she received, under the German Sozialgesetzbuch, social assistance from a public body – the Landkreis Harburg. Pursuant to § 94(1) Sozialgesetzbuch, maintenance claims are by way of statutory subrogation transferred to the public body providing social assistance. Relying on this provision, the Landkreis Harburg lodged an application with the Amtsgericht Köln (Germany) claiming from WV the payment of maintenance arrears and regular maintenance for the future.

WV submitted that German courts lack jurisdiction. The lower instance court shared this view, noting that, according to Article 3(b) of the Maintenance Regulation, jurisdiction lies with the court for the place where the creditor is habitually resident. At the same time the concept of “creditor” is defined in Article 2(1)(10) of this Regulation as meaning “any individual to whom maintenance is owed or is alleged to be owed”. Hence, only the creditor personally can make use of the ground listed in Article 3(b). The dispute reached the Bundesgerichtshof, which referred a preliminary question to the CJEU.

Previous Jurisprudence of the CJEU

As reminded in the opinion and in the judgement, the Brussels Convention and Brussels I Regulation included jurisdictional rules for maintenance claims (until Maintenance Regulation has started to be applied on 18 June 2011). Pursuant to these rules, jurisdiction lies with the courts of the defendant’s domicile (based on general rule – Article 2 Convention; Article 4 Regulation) and with the courts for the place where the maintenance creditor is domiciled or habitually resident (Article (5)(2) of both acts).

The CJEU ruled on the interpretation of Article (5)(2) of the Convention in Blijdenstein (C- 433/01), a case similar, as to its factual background, to the one considered in Landkreis Harburg. The Court stated in Blijdenstein that Article 5(2)

cannot be relied on by a public body which seeks, in an action for recovery, reimbursement of sums paid under public law by way of an education grant to a maintenance creditor, to whose rights it is subrogated against the maintenance debtor.

The CJEU explained on that occasion that the general principle is that the courts of the State in which the defendant is domiciled are to have jurisdiction “and that rules of jurisdiction which derogate from this general principle cannot give rise to an interpretation going beyond the cases expressly envisaged.” (24)

The “derogation provided for in Article 5(2) of the Convention is intended to offer the maintenance applicant, who is regarded as the weaker party in such proceedings, an alternative basis of jurisdiction (…) that specific objective had to prevail over the objective of the rule contained in the first paragraph of Article 2 of the Convention, which is to protect the defendant as the party who, being the person sued, is generally in a weaker position.” (29).

Then, it submitted that “a public body which brings an action for recovery against a maintenance debtor is not in an inferior position with regard to the latter. Moreover, the maintenance creditor, whose maintenance has been covered by the payments of the public body, is no longer in a precarious financial position.” (30) Additionally, “the courts of the defendant are better placed to determine the latter’s resources.” (31)

AG’s Opinion Arguing the Need to Depart from Blijdenstein

The AG’s Opinion submitted numerous reasons for which the CJEU should depart from Blijdenstein. The AG underlined the differences between Brussels Convention and Maintenance Regulation, analyzed the CJUE’s “new” jurisprudence relating to the latter (namely: Sanders and Huber, C-400/13; V, C-499/15; R, C-468/18), in particular as regards the regulation’s overarching principles, like protection of maintenance creditors or the effective recovery of maintenance claims in cross-border situations. Additionally, with reference to the Hague Protocol on the law applicable to maintenance obligations, the advantages of the coincidence between ius and forum were sketched.

Departure from Blijdenstein and its Justification

The CJEU shared the views of the AG and departed from Blijdenstein jurisprudence. In practical terms, it means that public bodies like Landkreis Harburg might file claims against maintenance debtors at the place of maintenance creditor’s habitual residence, which in most instances would coincide with their own.

The CJEU underlined that Article 3 of the Maintenance Regulation:

contains neither a general principle, such as jurisdiction of the court for the defendant’s domicile, nor derogating rules which would have to be interpreted strictly (…) but rather a number of criteria which are equal and alternative (…). (29)

and

does not specify that the claim must be brought by the maintenance creditor himself or herself before the courts identified in paragraphs (a) and (b) [and therefore does not] preclude a claim relating to a maintenance obligation from being brought by a public body, to which the claims of that creditor have been transferred by way of statutory subrogation, before one or the other of those courts. (31)

Consistent with the opinion, the CJEU also pointed to the fact that the Maintenance Regulation, as opposed to Brussels Convention and the Brussels I Regulation, does apply no matter domicile or habitual residence of the defendant. Hence:

refusing to allow a public body subrogated to the claims of a creditor to bring an action before the courts where that creditor is habitually resident in circumstances where the maintenance debtor is domiciled in a third State is most likely tantamount to requiring that public body to bring its action outside the European Union. (35)

This would result in legal and practical difficulties, which go against the objective of the effective recovery of maintenance claims.

The CJEU convincingly added that:

The transfer of the maintenance creditor’s claims to such a public body impairs neither the interests of the maintenance debtor nor the predictability of the applicable rules of jurisdiction; that debtor must, in any event, expect to be sued either before the court for the place where he or she is habitually resident or before the courts for the place where that creditor is habitually resident. (38)

The CJEU also referred to Hague Protocol, underling that its Article 10 provides that the right of a public body to seek reimbursement of a benefit provided to the creditor in place of maintenance is governed by the law to which that body is subject. This:

ensures, in the vast majority of cases – which are those in which the seat of the public body and the habitual residence of the creditor are in the same Member State – a parallel between the rules on jurisdiction and those concerning the applicable substantive law. (43)

According to a press release of the Spanish Constitutional Court, on 23 February 2021 the Plenary has partially ruled in favor of the Government of Catalonia (the Generalidad de Cataluña/Generalitat de Catalunya) and, consequently, declared unconstitutional part of the provisions of the Spanish Regulation on International Adoption approved by Royal Decree 165/2019 of 22 March 2019, implementing Law 54/2007 of 28 December 2007 on International Adoption.

Before the Constitutional Court, the Generalidad claimed that the Regulation infringed its statutory powers in the field of social services and the protection of minors. The Court has ruled that the State has indeed encroached on the powers of the Autonomous Communities in that field, in its international dimension. The reason is that the Regulation goes too much into the detail of the legal status of ‘accredited bodies’ and has entirely centralised, without recourse to cooperation mechanisms, a number of executive tasks such as the recognition, suspension and revocation of the accreditation of intermediary bodies, as well as the monitoring and control of the activity and some tasks related to the national registering of accredited bodies.

On the other hand, according to the Court, the State, in so far as it has jurisdiction over international relations, may conclude bilateral agreements to promote reciprocal relations with other States; establish the list of countries excluded from the regime of international adoption due to war, disaster and other serious reasons; and suspend as a precautionary measure adoptions in progress for these reasons.

Similarly, the State may entrust executive tasks corresponding to the regional institutions to a Sector  Conference such as the Delegate Committee on Social Services, composed of representatives of all the autonomous communities and cities. The Committee decides by consensus and, failing that, by majority, on the maximum number of international adoption files to be dealt with each year in relation to each country, and on their distribution between the Autonomous Communities and the accredited bodies. It also decides on the approval of the basic model contract for international adoptions.

In order to protect the best interests of minors, and having in mind as well the rights of the adopters, the effect of the judgement has been put off for one year from its publication. In this way, an immediate legislative vacuum adversely affecting minors -in particular those involved in international adoption proceedings initiated prior to the decision- is prevented. Additionally, the declarations of unconstitutionality and nullity contained in the decision ‘shall not affect consolidated legal situations such as those established by final administrative measures, or those which have been decided by a judgment having the force of res judicata’.

The ruling is accompanied by a dissenting vote from two Justices. In their view, the application should have been dismissed in its entirety since the Generalidad does not have the competence it claims – hence there is no possible trespassing on the side of the State. According to the magistrates, the Generalidad has no power to intervene in the extra-judicial phase of an international adoption taking place abroad. By contrast, it has competence for the protection of children who are in distress or at risk ; however, neither minors in other Autonomous Communities nor those in another State fall under its scope, even if they may be adopted by Catalans. The principle of territoriality makes it impossible to acknowledge Catalonia’s competence to protect minors residing abroad. Furthermore, adoptable minors abroad are not in a situation of risk or distress, since they reside in institutions who look after them.

All in all, a complicated political setting. Difficult to assess whether, in practice, it works in favor or against the main stakeholders : the children, the adopters, the families.

Today (3 March 2021) Israel signed the HCCH Convention of 30 June 2005 on Choice of Court Agreements (2005 Choice of Court Convention) and the HCCH Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (2019 Judgments Convention). The HCCH news item is available here.

It should be noted that in order to consent to be bound by the treaties, Israel would need to deposit an instrument of ratification, acceptance or approval under each instrument. In the meantime, a signatory State has the obligation not to defeat the object and purpose of a treaty prior to its entry into force (article 18 of the UN Vienna Convention on the Law of Treaties).

The 2005 Choice of Court Convention has currently 32 Contracting Parties. The act of signing does not make Israel a “Contracting Party” (yet) but it is definitely a good step forward and an excellent sign of the relevance of the Convention today.

The 2019 Judgments Convention is not yet in force. In accordance with its article 28: “This Convention shall enter into force on the first day of the month following the expiration of the period during which a notification may be made in accordance with Article 29(2) with respect to the second State that has deposited its instrument of ratification, acceptance, approval or accession referred to in Article 24.”

There are currently three signatory States: Israel, Uruguay and Ukraine. The act of signing a treaty does not count towards the timeline specified in article 28 of the 2019 Judgments Convention as it is not an instrument of ratification, acceptance, approval or accession.

 

 

Charlemagne Dagbedji (University of Corsica) organises a webinar (in French) titled “Effective Recognition of Non-Judicial Divorce” (L’efficacité internationale du divorce sans juge).

The webinar aims at assessing the international legal acquis on non-judicial divorce, with a special focus on the means to ensure its cross-border recognition. It requires to analyse private international law rules but also to adopt a comparative law approach and a practical perspective.

It will take place on 25 March 2021, 2 to 4 PM (CET).

The speakers are André Giudicelli (University of Corsica), Alex Tani (University of Corsica), Alain Devers (University of Lyon 3 & Lawyer at the Lyon Bar), Charlemagne Dagbedji (University of Corsica) and Sonia Ben Hadj Yahia (University of Corsica).

Program and registration here.

There is a benefit to the pace of work becoming so hectic that I cannot post on CJEU case-law swiftly: others have analysis to which I can refer. In the case of CJEU C-804/19 BU v Markt24 GmbH, Anna Wysocka-Bar has posted analysis this morning (Opinion Saugmandsgaard Øe here).

BU whose place of residence is at Salzburg (Austria) signed an employment contract for carrying out cleaning work in Munich (Germany) for Markt24 GmbH, whose registered office is also located in Munich. The contract was signed in a bakery in Salzburg, where Markt24 also had an office. BU was never allocated any work, the employment contract was terminated and BU claims outstanding wage at the Landesgericht Salzburg.

The CJEU refers to Holterman to define employment [25] and holds [26] that the presence of a contract of employment is relevant for triggering the protective regime: not its actual exercise a least of the lack of performance of the contract is not attributable to the employer [28].

This issue was not sub judice however reasoning mutatis mutandis I would suggest the attributability or not to the employer be subject to the putative lex loci laboris per A8 Rome I.

Having established that A21 BIa applies, the question is how a ‘‘place where or from where the employee habitually carries out his work’ may be determined if no work has been carried out. At 41:

in the case where the contract of employment has not been performed, the intention expressed by the parties to the contract as to the place of that performance is, in principle, the only element which makes it possible to establish a habitual place of work (…) That interpretation best allows a high degree of predictability of rules of jurisdiction to be ensured, since the place of work envisaged by the parties in the contract of employment is, in principle, easy to identify

In casu, that place is Munich albeit [46] Salzburg might also still be an option given as A20 BIa makes A7(5)’s branch jurisdiction applicable (“as regards a dispute arising out of the operations of a branch, agency or other establishment, in the courts for the place where the branch, agency or other establishment is situated”). Whether the conditions for that Article apply, is for the court at Salzburg to determine.

The CJEU’s emphasis on predictability in my view also means that if a place is agreed yet the employee, without agreement from the employer, de facto carries out the work elsewhere, the agreed place must take precedent.

The CJEU also holds [34] that the employment title of BIA exhaustively harmonises jurisdiction: more favourable national CPR rules (in casu granting jurisdiction to the employee’s residence and /or place of payment of the remuneration) become inoperable.

An important judgment.

Geert.

EU Private International Law, 3rd ed. 2021, para 2.278 ff.

The Organization of American States (OAS) is organizing a virtual forum as noted in the poster above. For more information, click here.

This virtual forum will address the report: Improving transparency: international law and State cyber operations – fifth report drawn up by Professor Duncan B. Hollis. This report is available here and has been translated into the four official languages of the OAS: Spanish, English, French and Portuguese.

While this report touches upon international law in general, it may still be of interest to some of our readers.

 

On 24 February 2021 the Court of Justice of the EU issued a judgement in the case BU v Markt24 GmbH (C-804/19) following a request for a preliminary ruling from the Landesgericht Salzburg (Austria). The case concerns jurisdictional rules for employment contracts in Brussels I bis Regulation, in particular its Article 21. The opinion in this case was prepared by AG Øe.

Background

BU whose place of residence is in Salzburg (Austria) signed the employment contract for carrying out cleaning work in Munich (Germany) for Markt24 GmbH, whose registered office is also located in Munich. BU signed the contract with an employee acting as intermediary of Markt24. The contract was signed in a bakery in Salzburg, even though Markt24 had an office in this city at that time. It was agreed that BU would start working on 6 September 2017, but she was never allocated any work, even though she could be contacted by telephone and was prepared to work. BU has not received remuneration, but she was registered with the Austrian social security institution as an employee. On 15 December 2017, the defendant terminated the employment contract. On 27 April 2018, BU filed a claim to the Landesgericht Salzburg (Austria) asking for outstanding wage and other payments for the period of her employment.

Since the documents initiating the action could not be served on the defendant, a procedural representative in absentia was appointed. The representative contested jurisdiction of the Austrian court. It seems that, in accordance with domestic law in place in Austria, namely § 4(1)(a) Arbeits- und Sozialgerichtsgesetz (“ASGG” – Law on the labour and social courts), Landesgericht Salzburg would have jurisdiction, based on the place of residence of the employee and also the place where the remuneration was to be paid. At the same time there were doubts whether jurisdiction exists under Brussels I bis Regulation, in particular its Article 21(1)(b)(i), which grants jurisdiction to courts for “the place where or from where the employee habitually carries out his work”. Landesgericht Salzburg decided to refer a preliminary ruling to the CJEU asking few alternative questions.

Is Section 5 of Chapter II Brussels I bis Applicable at All, If No Work Was Actually Performed?

The Court reminded that the concept of an “individual contract of employment” referred to in Brussels I bis Regulation must be given an autonomous interpretation (point 24). As flows from its previous jurisprudence, this concept “presupposes a relationship of subordination of the employee to the employer; the essential feature of an employment relationship is that for a certain period of time one person performs services for and under the direction of another in return for which he or she receives remuneration” (point 25). If the above conditions are met, parties are bound by a “contract of employment” within the meaning of the Regulation, “irrespective of whether the work which is the subject of that contract has been performed or not” (point 26).

Hence, the CJEU stated that Section 5 of Chapter II Brussels I bis (namely, its special jurisdictional rules for employment contracts) “must be interpreted as applying to a legal action brought by an employee domiciled in a Member State against an employer domiciled in another Member State in the case where the contract of employment was negotiated and entered into in the Member State in which the employee is domiciled and provided that the place of performance of the work was located in the Member State of the employer, even though that work was not performed for a reason attributable to that employer.”

Does Brussels I bis Allow for the Application of Domestic Rules on Jurisdiction If More Beneficial to the Employee?

As rightly underlined in the opinion, the fact that the rules of the ASGG are more favorable to the employee is irrelevant, as section 5 of Chapter II Brussels I bis does not provide for certain minimum standards of the protection of employees, which might be further developed by the national legislation (points 43-44 of the opinion). Instead, this Regulation provides for a unified system of jurisdictional rules. If a dispute falls within the scope of application of Brussels I bis, its rules of jurisdiction must take precedence over national ones (points 30-32 of the judgement). Hence, the CJEU ruled that the provisions set out in Section 5 of Chapter II Brussels I bis preclude the application of national rules of jurisdiction, irrespective of whether those rules are more beneficial to the employee.

How to Understand Article 21(1)(b)(i) Brussels I bis, If the Work Was Never Actually Performed?

As underlined in the opinion, the Court has never before had a chance to explain how to understand the concept of the “place where the employee habitually carries out his work”, in case no work was actually performed (point 23 of the opinion). The Court noted that this concept refers to “the place where, or from which, the employee in fact performs the essential part of his or her duties vis-à-vis his or her employer” (point 40). The Court shared also the view presented in the opinion that:

in the case where the contract of employment has not been performed, the intention expressed by the parties to the contract as to the place of that performance is, in principle, the only element which makes it possible to establish a habitual place of work (…) That interpretation best allows a high degree of predictability of rules of jurisdiction to be ensured, since the place of work envisaged by the parties in the contract of employment is, in principle, easy to identify (point 41).

The Court had no doubt that in the case at hand that place is Munich (Germany).

At the same time, the Court underlined that in accordance with Article 20 Brussels I bis Regulation, section 5 of its Chapter II applies without prejudice to, inter alia, Article 6 point 5, which provides that a person domiciled in a Member State may be sued in another Member State, “as regards a dispute arising out of the operations of a branch, agency or other establishment, in the courts for the place where the branch, agency or other establishment is situated”. The Court noted that Landesgericht Salzburg should determine whether that provision may also be applicable in the case given that Markt24 had an office in Salzburg at the beginning of the employment relationship.

CJEU stated that Article 21(1)(b)(i) of Brussels I bis must be interpreted as meaning that an action may be brought before the court of the place where or from where the employee was required, pursuant to the contract of employment, to discharge the essential part of his or her obligations towards the employer. This is however without prejudice to Article 7(5) of the Regulation.

Is Article 7(1) Brussels I bis Applicable to an Employment Relationship, If No Work Was Actually Performed?

One of the questions was not answered either in the opinion or in the judgement, as there was no doubt that Section 5 of the Chapter II Brussels I bis does apply to the case at hand. By this question Landesgericht Salzburg wanted to clarify whether Article 7(1) Brussels I bis might apply to the employment relationship, in such specific circumstances, when no work was actually performed and whether § 4(1)(a) or (d) of the ASGG could be applied. It is not clear whether the ASGG was supposed to be applied instead of Article 7 Brussels I bis or somehow indirectly by the intermediation of it.

Last week’s Opinion of Advocate General Rantos (successor to Sharpston AG) in C-603/20 PPU SS v MCP is of note for its emphasis on the principle of mutual trust that lies at the foundation of European Private International Law. Brussels IIa is not staple diet for the blog and I shall leave more intense analysis to others. In short, the AG opined that a Member State retains jurisdiction under the Regulation, without limit of time, if a child habitually resident in that Member State was wrongfully removed to, or retained in, a non-Member State where it in due course became habitually resident.

The third country at issue is India, a non-Hague Convention State, as opposed to the UK, now also a third country but a Hague State. Note that in future A97(2) Brussels IIa Recast give clear priority to A13 Hague Convention’s lis alibi pendens rule, in cases where the conditions for that article are fulfilled: see Cusworth DJ today in AA & BB [2021] EWFC 17 at 27).

Of note to the blog is the AG’s emphasis on mutual trust, at 62 ff:

all Member States comply, in principle, with EU law justifies recognising, subject to certain conditions, the jurisdiction of the courts of the Member State to which a child was abducted and where he or she has acquired a habitual residence. By contrast, if a child has been abducted to a non-Member State, the cooperation and mutual trust provided for in EU law cannot apply. Therefore, having regard to the context of Article 10 of Regulation No 2201/2003, there is no justification for accepting the jurisdiction of the courts of that non-Member State, including in the case where the abducted child has acquired his or her habitual residence in the latter State.

and at 84

Regulation No 2201/2003 is based on cooperation and mutual trust between the courts of the Member States, which allows, subject to certain conditions, jurisdiction to be transferred between those courts. Since provision is not made for cooperation and mutual trust in the case of courts of a non-Member State, it appears to me entirely justified and consistent with that regulation for the courts of the Member State in which a child was habitually resident before his or her abduction to a non-Member State to continue to have jurisdiction for an unlimited period of time, with a view to ensuring that the best interests of that child are protected.

With this he dismissed the view of the referring court,  that A10 BIIA should be interpreted as having a territorial scope confined to the Member States because otherwise the jurisdiction retained by the Member State of origin would continue to exist indefinitely. In that court’s view, that Member State would thus be in a stronger position jurisdictionally vis-à-vis a non-Member State than a Member State.

Geert.

EU Private International Law, 3rd ed. 2021, various places (see Index: ‘Mutual Trust’).

Opinion Rantos AG C-603/20 PPU Brussels IIa.
MS retains jurisdiction, without limit of time, if a child habitually resident in that MS was wrongfully removed to (or retained in) a non-MS where she, following such removal (or retention), in due course became habitually resident. https://t.co/8E9KUJxcSK

— Geert Van Calster (@GAVClaw) February 23, 2021