Droit international général

On 7 March 2022, the Conclusions & Decisions of the governing body of the Hague Conference on Private International Law (HCCH), i.e. the Council on General Affairs and Policy (CGAP), were released. Click here for the English version and here for the French version.

For official information on the ceremony of signatures and ratifications of instruments, click here (HCCH news item). For our previous post on the signature of the USA of the 2019 Judgments Convention, click here.

Although a wide range of topics was discussed, I would like to focus on two: publications and future meetings.

1) Publications

This meeting was very fruitful in getting the necessary approval for HCCH publications. There were three publications approved, ranging from family law to access to justice for international tourists.

Family law

The Council adopted the following decision: “12. CGAP approved the Practitioners’ Tool: Cross-Border Recognition and Enforcement of Agreements Reached in the Course of Family Matters Involving Children, subject to editorial amendments, for publication.”

The Report of the Experts’ Group on Cross-Border Recognition and Enforcement of Agreements in Family Matters Involving Children (meetings of 14-15 September and 29-30 November 2021) is available here. The Chair of the Experts’ Group is Professor Paul Beaumont. The work of this Expert’s Group has ended.

The draft of the Practitioners’ Tool: Cross-Border Recognition and Enforcement of Agreements Reached in the Course of Family Matters Involving Children has been made available. For French, click here.

As some of you may be aware, this tool is an alternative to the drafting of a binding instrument in this area. In 2017, the Experts’ Group drafted the following Conclusion and Recommendation for the attention of the Council on General Affairs and Policy of March 2018:

“Therefore the Experts’ Group recommends to the Council to develop a new Hague Convention that would build on, and add value to, the 1980, 1996 and 2007 Hague Conventions, and be developed with a view to attracting as many States as possible.”

The reasoning of the Experts’ Group was the following:

While the existing Hague Family Conventions encourage the amicable resolution of disputes involving children, they do not contemplate the use of “package agreements” (i.e., family agreements related to custody, access, relocation and/or child support and which may include spousal support and other financial matters, such as property issues) and do not provide a simple, certain or efficient means for their enforcement. From the Group’s experience it is recognised that such agreements are increasingly frequently used. Very often the matters covered require the simultaneous application of more than one Hague Family Convention while some elements of those package agreements are not within the scope of any of the existing Hague Family Conventions. This creates difficulties for the enforcement of package agreements.

Unfortunately (or fortunately depending on how people may view this), this initiative was not taken on board by Council in 2018. See here.

Apostille

The Council adopted the following decision: “31. CGAP approved the second edition of the Practical Handbook on the Operation of the Apostille Convention, subject to editorial amendments, for publication.” This draft is not yet publically available.

The first edition of the Apostille Handbook is available here.

Access to Justice for international tourists and visitors

The Council adopted the following decision: “3. CGAP approved the Practical Guide to Access to Justice for International Tourists and Visitors, subject to editorial amendments, for publication on the HCCH website.”

The draft of the Practical Guide to Access to Justice for International Tourists and Visitors is available here.

As with the recognition and enforcement of agreements reached in the course of family matters, the initial proposal was the developing of a new instrument.

At its meeting in 2013, the CGAP took note of the suggestion by Brazil to undertake work on co-operation in respect of protection of tourists and visitors abroad. See in particular Prel. Doc. No 3 of February 2018 – Final report concerning a possible future Convention on Co-operation and Access to Justice for International Tourists drafted by Professor Emmanuelle Guinchard.

2) Meetings

With regard to future meetings, there are a few meetings in the pipeline:

Special Commission meetings (SC) in 2022 (basically, a global meeting of experts):

• Special Commission on the practical  operation  of  the  2007 Child Support Convention and its Protocol  – to be held from 17 to 19 May (in-person meeting) – This will be the first meeting ever of the SC on this topic
• Special Commission on the practical  operation  of  the  1993  Adoption  Convention – to be held from 4 to 8 July (online meeting)
• Special Commission on the practical  operation  of  the  2000 Protecion of Adults  Convention – to be held from 9 to 11 November – Tnis will be the first meeting ever of the SC on this topic

And finally, the Working Group on matters related to jurisdiction in transnational civil or commercial litigation – to hold “two further meetings before the 2023 meeting of CGAP, with intersessional work as required”.

 

A research seminar on the topic “Hard Legal Problems and Comparative Legal Analysis: The case of parental child abduction in international and Islamic law” is organised by the Aberdeen Centre for Private International Law under the auspices of the Aberdeen Law School Research Seminar Series. The seminar will be delivered by Professor Anver Emon from the Faculty of Law of the University of Toronto, Canada, and will be held on Friday 11 March 2022, 5-6.30 p.m. (UK time), through MS Teams. For more information, click here.

This post was written by Paul Eichmüller and Verena Wodniansky-Wildenfeld, University of Vienna.

In a recent decision, the Austrian Supreme Court dealt with the interpretation of Article 10(2) of the Succession Regulation. It found that the latter provision does not establish an obligation to initiate probate proceedings ex officio in states having subsidiary jurisdiction. A national Austrian provision concerning the issue of these assets to third countries was thus considered in conformity with EU law, although Article 10(2) explicitly provides that the Member State shall have “jurisdiction to rule on those assets”. The court’s apparent classification of these questions as an acte clair is doubtful.

Facts

The Austrian courts were seized by a Canadian company. It was tasked by the Canadian courts to manage the estate of a German citizen, who had moved to Toronto where he established his habitual residence and eventually died in 2017. The deceased had a bank account in Austria where he and his son had jointly rented two safes containing gold “of substantial value”. The Canadian company then brought a request that the gold and the savings should be transferred to it so that it may become part of the general estate in Canada. However, the son opposed this request with regard to the gold on the basis that it was in fact in his own property and not in the deceased’s.

The court of first instance decided to transfer the money and the gold to the Canadian company, which was to hand it to the heirs as assessed in Canada. Concerning jurisdiction, the court based its decision on Article 10(2) of the Succession Regulation. The fact that it simply transferred the assets and did not conduct substantive probate proceedings was based on § 150 AußStrG (Austrian Non-Contentious Civil Procedure Act) – prescribing exactly this course of action in cases of Article 10(2) of the Succession Regulation. Appealing this decision, the son desired a full rejection of the claim on the grounds that § 150 AußStrG would be contrary to Article 10(2) and is thus not to be applied. The gold and the money should be handed to the heirs by Austrian courts themselves and not simply be transferred to the Canadian authorities (i.e. the authorised company).

The Decision by the Austrian Supreme Court

The Supreme Court ruled that issuing assets of the estate located in Austria, as long as no probate proceedings have been requested, does not violate Article 10(2) of the Regulation. This is laid down in § 150 AußStrG, which prescribes that upon request of a legitimised party, the assets must be transferred to the state in which the deceased had their last habitual residence. Its main argument was that the Succession Regulation does not oblige the competent Member States to initiate proceedings ex officio (para 31; also citing Hertel in Rauscher, EuZPR-EuIPR [2016] Art 23 EuErbVO para 49).

Furthermore, the objective of Article 10(2) of the Succession Regulation would not be thwarted by the Austrian provision, since § 150 AußStrG provides for the issue of assets only if no application for probate proceedings in Austria had been filed. Thus, the legal interests of the parties are protected and the subsidiary jurisdiction stipulated in Article 10(2) is respected. Issuing the assets would be a mere recognition of the foreign (Canadian) decision which legitimised the company to demand their transfer. As this decision originates in a third country, neither the Succession Regulation nor other acts of EU law are inapplicable to such a recognition (para 21).

The Supreme Court considered this assessment of the legal situation and the conformity with EU law to be sufficiently evident, so that a request for a preliminary ruling to the CJEU was not deemed necessary.

Assessment

To the extent that the jurisdiction established by Article 10(2) of the Succession Regulation is not combined with an obligation to initiate probate proceedings ex officio, the Supreme Court’s decision is to be followed.

In this respect, the procedural autonomy of the Member States is not restricted by EU law, thus the Regulation does not specify whether proceedings ought to be initiated either of the court’s own motion or upon application. The Regulation recognises the different procedural treatment of succession cases in the Member States, which is explicitly outlined, e.g., in Recital 29 (“Where succession proceedings are not opened by a court of its own motion”) and Article 14(c) (“if the proceedings are opened of the court’s own motion”) of the Succession Regulation. Hence, in contrast to probate proceedings in Austria, which are always initiated ex officio, other Member States (such as e.g. Germany, Belgium or Sweden) provide for the transfer of assets to the heirs ex lege without any proceedings being necessary. Therefore, a provision which prescribes that probate proceedings are initiated only on application in all cases where jurisdiction is based on Article 10(2) of the Succession Regulation (such as § 143 AußStrG in Austria) does indeed not violate EU law.

However, by issuing the gold and the savings to Canada, the Austrian authorities effectively transfer the jurisdiction for substantive probate proceedings over these assets to the Canadian authorities. This rejection of the Austrian jurisdiction over the assets located in its territory would happen outside the system of the Succession Regulation – which provides a transfer of jurisdiction in the cases listed in Article 6, but not whenever the court chooses to do so.

While the Succession Regulation does not prescribe how jurisdiction shall be exercised by a particular Member State, it does indeed prescribe that it must be exercised. The Austrian Supreme Court reasons that such a transfer is permissible because it does not interfere with the objectives of the regulation, as the alleged heirs could have brought a request to hold probate proceedings in Austria before anyway (para 27, 33). Yet, it thereby neglects that the transfer of jurisdiction would be final and thus deprives the heirs of the possibility to request proceedings in Austria at a later point in time. The Austrian courts may well choose to remain inactive until proceedings are requested, but then they have to remain exactly that – inactive. Hence, § 150 AußStrG – prescribing the opposite – is incompatible with EU law. While there might well be a case to see this differently, these arguments and the extensive criticism that has justly been raised about this issue by numerous respected Austrian scholars would have at least required a preliminary reference and leave the issue for the CJEU to decide.

The other reason given by the Supreme Court in support of its decision is the fact that it is bound by the recognition of the Canadian (third-state) judgment, which as such falls outside the scope of the Succession Regulation. Yet even when starting from the premise that the Canadian decision needs to be recognised, this will not necessarily result in an obligation of the Austrian authorities to transfer to the assets to Canada.

The decision of the Canadian Court confers upon the company the right (and duty) to collect the deceased’s assets as the estate trustee (para 2) – which is the standard for succession cases in Ontario. However, it did not directly decide on how the succession affects the assets. Recognising the company’s authorisation to receive the assets (i.e. its right of action) is only one of the requirements that need to be fulfilled so that the assets can be transferred to Canada. Yet, the Austrian courts still have to assess whether issuing the assets to a third state is consistent with Austrian law (including EU law).

The analysis shows that the legal question is far from clear and a preliminary reference to the CJEU would therefore have been necessary. While the Supreme Court was correct in its assessment that an ex officio initiation of probate proceedings is not required by the succession regulation, the rest of its judgment cannot be followed from this premise.

A new series of webinars on the application of the EU Succession Regulation in the Member States will be organised in the framework of the ELI SiG Family and Succession Law. In five webinars of two hours each, representatives of the Member States will talk about their experiences within their respective legal systems.

The organizers state the objectives of the event series as follows (emphasis added):

 

“Join us for the webinar series on the ‘Application of the EU Succession Regulation in the Member States’! 

The five webinars organized within the Special Interest Group on Family and Succession Law of the European Law Institute will take place between March and June 2022 and shall shed light on the actual practice regarding cross border succession cases in the Member States. The reporters will open the webinars with short introductory statements and will then take part in a lively panel discussion on the application of the EU Succession Regulation in their respective jurisdictions. The results of these webinars will be presented as comparative reports at an online conference in September 2022.

 

Attendance is free of charge. A ZOOM link will be sent to those who register by sending an e-mail to  zivilrecht@uni-graz.at

 

For more information see the program (provided below)!

 

Gregor Christandl        Jens Kleinschmidt       Jan Peter Schmidt

Univeristät Graz                   Universität Trier          Max Planck Institute

 

 

 

PANEL 1 TUESDAY, 15 MARCH, 4-6 pm CET Belgium Patrick Wautelet, Université de Liège Estonia Karin Sein, University of Tartu France Stefan Stade, ArteJURIS Cabinet d’Avocats, Strasbourg Portugal Afonso Patrão, University of Coimbra PANEL 2 TUESDAY, 5 APRIL, 4-6 pm CET Bulgaria Boriana Musseva, University of Sofia Latvia Janis Grasis, Riga Stradins University Malta Paul George Pisani, Notary Public, Victoria The Netherlands Katja Zimmermann, University of Groningen Spain Guillermo Palao Moreno, University of Valencia PANEL 3 TUESDAY, 26 APRIL, 4-6 pm CET Czech Republic Magdalena Pfeiffer, Charles University, Prague Germany Lena Kunz, University of Heidelberg Lithuania Katažyna Bogdzevic, Mykolas Romeris University Poland Anna Wysocka-Bar, Jagiellonian University Romania Daniel Berlingher, Vasile Goldis Western University of Arad PANEL 4 TUESDAY, 31 MAY, 4-6 pm CET Austria Brigitta Lurger, University of Graz Croatia Mirela Župan, University of Osijek Hungary Csongor István Nagy, University of Szeged Slovakia Elena Judova, Matej Bel University Slovenia Jerca Kramberger Škerl, University of Ljubljana PANEL 5 TUESDAY, 21 JUNE, 4-6 pm CET Cyprus Achilles Emilianides, University of Nicosia Finland Tuulikki Mikkola, University of Turku Greece Haris P. Pamboukis, Giorgos Nikolaidis, University of Athens Italy Domenico Damascelli, University of Salento Sweden Michael Bogdan, University of Lund ”

Additional information may be obtained from the accompanying PDF Document.

 

 

 

 

EFFORTS (Towards more EFfective enFORcemenT of claimS in civil and commercial matters within the EU) is an EU-funded Project conducted by the University of Milan (coord.), the Max Planck Institute Luxembourg for Procedural Law, the University of Heidelberg, the Free University of Brussels, the University of Zagreb, and the University of Vilnius.

The seventh EFFORTS Newsletter has just been released, giving access to up-to-date information about the Project, save-the-dates on forthcoming events, conferences and webinars, and news from the area of international and comparative civil procedural law.

In this framework, the EFFORTS International Exchange Seminar was organised and hosted online by the Max Planck Institute Luxembourg on February 25th, 2022: an account of the resulting engaged discussions between academics and practitioners in the field of cross-border enforcement of claims will be given in the Report on practices in a comparative and cross-border perspective, to be published soon on the Project website.

Regular updates are also available via the Project’s LinkedIn and Facebook pages.

Project JUST-JCOO-AG-2019-881802
With financial support from the Civil Justice Programme of the European Union

The Special Interest Group on Family and Succession Law of the European Law Institute will host a series of webinars on the Application of the EU Succession Regulation in the Member States, organised by a sub-group on Succession Law chaired by Gregor Christandl of the University of Graz.

The five webinars in the series will take place between March and June 2022 and will shed light on the actual practice regarding cross border succession cases in the Member States.

The reporters will open the webinars with short introductory statements and will then take part in a lively panel discussion on the application of the EU Succession Regulation in their respective jurisdictions. The results of these webinars will be presented as comparative reports at an online conference in September 2022. 

A message from Organizers and the programmme is available here.

Attendance is free of charge. A ZOOM link will be sent to those who register at zivilrecht@uni-graz.at.

The Conference represents the final event of the JUDGTRUST Project, funded by the Justice Programme of the European Union. The objective of the Project is to identify best practices and to provide guidelines in the interpretation and application of Regulation 1215/2012 (BI-bis). The JUDGTRUST Project is coordinated by the T.M.C. Asser Instituut and carried out in partnership with the University of Hamburg, the University of Antwerp and the Internationaal Juridisch Instituut.

The Conference will host panels on, inter alia, the scope of application, relationship with other instruments, rules on jurisdiction, provisional measures, as well as enforcement and recognition of foreign judgments. Additionally, the key findings from the National Reports of the EU Member States will be presented. It aims to bring together academics, policy makers and legal practitioners. It will take place on 21 – 22 April 2022 at the T.M.C. Asser Instituut, The Hague.

Further information and a link for registration can be found @ T.M.C. Asser Instituut – Events.

Speakers:
Prof. Dr. Markus Tobias Kotzur, University of Hamburg
Dr. Vesna Lazic, Asser Institute, The Hague; Utrecht University
Prof. Dr. Burkhard Hess, Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law
Mr. David Althoff, International Legal Institute, The Hague
Prof. Dr. Louise Ellen Teitz, Roger Williams University School of Law, Bristol, Rhode Island
Prof. Dr. Wolfgang Hau, Ludwig-Maximilians University of Munich
Prof. Dr. Antonio Leandro, University of Bari
Mr. Michiel de Rooij, Asser Institute, The Hague
Prof. Dr. Javier Carrascosa González, University of Murcia
Prof. Dr. Pietro Franzina, Catholic University of the Sacred Heart in Milan
Prof. Dr. Gilles Cuniberti, University of Luxembourg
Dr. Fieke van Overbeeke, International Legal Institute, The Hague
Dr. Mukarrum Ahmed, University of Lancaster
Prof. Dr. Jachin Van Doninck, Free University Brussels
Prof. Dr. Luis de Lima Pinheiro, University of Lisbon
Ms. Lisette Frohn, International Legal Institute, The Hague
Prof. Dr. Beatriz Añoveros Terradas, University of Barcelona
Dr. Pontian Okoli, University of Stirling
Prof. Dr. Francesca Clara Villata, University of Milan

Moderators:
Prof. Dr. Johan Meeusen, University of Antwerp
Prof. Dr. Marta Pertegás Sender, University of Antwerp
Dr. Fieke van Overbeeke, International Legal Institute, The Hague
Ms. Lisette Frohn, International Legal Institute, The Hague

Coordinator

JUDGTRUST is coordinated by Vesna Lazic, senior researcher in private international law at the Asser Institute. She is part of the ‘Public interest(s) inside/within international and European institutions and their practices’ research strand. She has published extensively on international trade law, international commercial arbitration, and European private international law.

The EAPIL asked us to share information about their Webinar “What Measures Should the EU Adopt to Enhance the Protection of Adults in Europe?” on 10 March from 17 to 19.00 Central European Time (GMT +1). You can register until 9 March.

This is in response to the European Commission’s public consultation on the need for improved EU cooperation in the field of the protection of adults, in conjunction with the Hague Convention of 2000.

Also of note is that the Hague Conference on Private International Law is in the process of drawing up a practical handbook and has launched its consultation with Member States on the the draft practical handbook.

 

 

The EAPIL Young Research Network is looking forward to welcoming the academic and research community to the beautiful city of Dubrovnik on 14 and 15 May 2022 for a closing conference on the EAPIL Young Research Network’s third research project with the title: Jurisdiction Over Non-EU Defendants – Should the Brussels Ia Regulation be Extended?

The research project aimed at facilitating a critical discussion of the possibility envisaged in Article 79 of the Brussels I bis Regulation of extending the personal scope of the jurisdictional rules contained in the Regulation.

The conference will include a presentation of the research project and its core results as well as discussions with the representatives of the European Commission, the Hague Conference on Private International Law and leading scholars. The Conference will be held at the Inter-University Centre located at the address Don Frana Bulića 4, in close vicinity of the Dubrovnik historical centre.

There is no fee for attending the conference and we are providing limited assistance in booking the most appropriate accommodation (as explained in the application form).

Please direct all inquiries regarding the conference to youngresearch@eapil.org.

The Conference Program is available here; the Application Form here.

The EAPIL Young Research Network is looking forward to welcoming the academic and research community to the beautiful city of Dubrovnik on 14 and 15 May 2022 for a closing conference on the EAPIL Young Research Network’s third research project with the title: Jurisdiction Over Non-EU Defendants – Should the Brussels Ia Regulation be Extended?

The research project aimed at facilitating a critical discussion of the possibility envisaged in Art. 79 Brussels Ibis Regulation of extending the personal scope of the jurisdictional rules contained in the Regulation.

The conference will include a presentation of the research project and its core results as well as discussions with the representatives of the European Commission, the Hague Conference on Private International Law and leading scholars. The Conference will be held at the Inter-University Centre located at the address Don Frana Buli?a 4, in close vicinity of the Dubrovnik historical centre.

There is no fee for attending the conference and we are providing limited assistance in booking the most appropriate accommodation (as explained in the application form).

Please direct all inquiries regarding the conference to youngresearch@eapil.org.

• Conference Program
• Application Form

On 2 March 2022 the US signed the Hague Convention of 2 July 2019 on the recognition and enforcement of foreign judgments in civil or commercial matters. Five more States have already signed the Convention, namely Costa Rica, Israel, the Russian Federation, Ukraine and Uruguay.

So far, none of the above States has ratified the Convention. According to Article 28, two ratifications are needed for the Convention to enter into force.

In July 2021, the European Commission presented a proposal for a Council decision on the accession to the Convention by the European Union. In December 2021, the Council forwarded the draft Council decision to the European Parliament, the consent of which is a precondition for the adoption of the decision pursuant to Article 218 of the TFEU.

Today, 2 March 2022, the United States of America (USA) signed the HCCH 2019 Judgments Convention. This made the world’s largest economy the sixth signatory state to the new legal instrument, following Uruguay, Costa Rica, Israel and, intricately, Ukraine and the Russian Federation. However, read in conjunction with the recent proposal of the European Commission, the U.S. signature demonstrates the (still) strong interest in a global legal framework for judicial cooperation in the recognition and enforcement of foreign judgments.

Originally posted on the NGPIL website

The NGPIL previously announced a Prize of 300 British Pounds Sterling for the best paper on Nigerian conflict of laws for an undergraduate and/or postgraduate scholar studying in Nigeria, or any Nigerian lawyer five years call or below practicing and residing in Nigeria.

A call for paper commenced in September 2021 with submissions received from participants across various States in Nigeria, entries from undergraduates and postgraduates in law, and early years post-call practitioners.

Following the submission deadline on 10 January 2022, the NGPIL made an assessment that Mr Solomon Adegboyo, an LLM student at the University of Ibadan, emerged winner of the competition.  Mr Adegboyo’s winning entry is titled “Tort in the Conflict of Laws: A Comparative Analysis”. Mr Olawale Adeosun, an LLM student at the University of Lagos, emerged the first runner up. Miss Hope Olajumoke a Nigerian law graduate (1 year post call to the Bar, Ekiti State University) emerged the 2nd runner up.

The response to the call was very encouraging and it is hoped this will be the springboard to encouraging, nurturing, and strengthening the foundations of private international law in Nigeria from earlier stages of academia and practice. This initiative will also assist with targeting areas of improvement such as addressing the lack of materials and resources on conflict of laws in Nigeria.

Huge congratulations to the winner and thank you to our runners-up and other participants!

I reviewed the first instance judgment in Skat v Solo Capital Partners here and concluded that it endangered the effet utile of Brussels Ia (and Lugano). Justice Baker had concluded that all SKAT’s claims were inadmissible as a consequence of Dicey Rule 3. The Court of Appeal has now largely reversed, [Skatteforvaltningen v Solo Capital Partners Llp [2022] EWCA Civ 234] thereby resurrecting a £1,4 billion claim.

SKAT (Danish customs and excise) seeks the return of amounts it says it was wrongly induced to pay out as tax refunds. SKAT is not seeking to recover due and unpaid dividend tax or indeed any tax, because the foundation of its argument is that in the case of the alleged fraud defendants there was no liability to pay tax, no shares, no dividends, no tax and no withholding tax. There was never a taxpayer/tax authority relationship between the Solo etc Applicants or the alleged fraud defendants and SKAT. The mere fact that the alleged fraud is committed in the context of taxation or against a foreign tax authority is insufficient to bring the matter within the rule [SKAT’s counsel arguments, [30]-[31]). To allow the defendants to escape their liability, not in a tax fraud but in a general conspiracy, would also run counter the fraus omnia corrumpit principle [ditto, 62], a point which Flaux C agrees with obiter [146] in a case of a major international fraud..

Flaux C is much less verbose than the submissions before him. Yet again a jurisdictional point was allowed to be litigated to great length – albeit one may appreciate counsel and clients’ energy on those issues given the value of the claim.

[127] the basis of the claim is fraudulent misrepresentation. It is not a claim to unpaid tax or a claim to recover tax at all. It is a claim to recover monies which had been abstracted from SKAT’s general funds by fraud [128]. Even though SKAT may be an emanation of the Danish state, the Dicey revenue rule does not apply [128], neither does the wider sovereign powers rule within Dicey Rule 3:

‘In bringing a claim to recover the monies of which it was defrauded, SKAT is not doing an act of a sovereign character or enforcing a sovereign right, nor is it seeking to vindicate a sovereign power. Rather it is making a claim as the victim of fraud for the restitution of monies of which it has been defrauded, in the same way as if it were a private citizen.’ [129]

This latter reasoning falls short I find of proper criteria to guide its future application, although more is said at [130]: the claim to recover the money is at the core of the Chancellor’s reasoning here and that claim is a straightforward money claim, and [133] ‘the claims are ones which could just as well be brought by a private citizen’. That is the kind of argument which echoes CJEU authority on civil and commercial and to my mind the Court of Appeal could have helped us all by pointing out more specifically to what degree Dicey Rule 3 be informed by CJEU authority on ‘civil and commercial’, regardless of Brexit.

That there would be a detailed examination of the Danish tax regime and possible criticism of it and of SKAT’s systems and control, does not somehow convert the claim into one to enforce that tax regime. Recognition of foreign revenue laws is permissible under Dicey Rule 3 [138].

The position of one of the defendants, ED&F Man, is different in the sense that there is no allegation that they were implicated in a fraud. Although it is alleged that misrepresentations were made by them, the misrepresentations are said to have been negligent.

SKAT has to accept that as against those defendants the claim is inadmissible by virtue of Dicey Rule 3 unless it can satisfy the Court: (i) that the claim is a “civil and commercial matter” not a “revenue matter” for the purposes of Article 1(1) of the Brussels Recast Regulation; and (ii) that the operation of Dicey Rule 3 is precluded because, contrary to the judge’s analysis, it would impair the effectiveness of the Brussels Recast Regulation.

Contrary to the conclusion the judge reached the Court of Appeal finds that the claim against ED&F Man is a “revenue matter” falling outside the Brussels Recast Regulation. Here the Court of Appeals applies parity of reasoning with its assessment of the other claims: [150]:

Whilst the test for the application of Dicey Rule 3 may not be identical to that for determining what is a “revenue etc matter” for Article 1(1) of the Brussels Recast Regulation, it can be seen that its application leads to the same answer. If Dicey Rule 3 applies (as SKAT has to accept it does in relation to the claim against ED&F Man) then by the same reasoning, the basis for the claim by SKAT against those defendants is either a right which arises from an exercise of public powers or a legal relationship characterised by an exercise of public powers, from which it necessarily follows that the claim is a revenue matter outside the Brussels Recast Regulation.

Unfortunately therefore the effet utile argument (that application of Dicey rule 3 impairs the effectiveness of BIa /Lugano, as I had argued in my earlier post) is not discussed [153].

The title of this piece of course hints at the relevance of claim formulation. It is also exaggerated: SKAT cannot conjure up fraud elements out of nowhere to reinvent a tax claim as one in mere tortious and fraudulent misrepresentation. However it is clear that in cases that are somewhat murky, claim formulation will be crucial to navigate Dicey Rule 3.

Geert.

EU Private International Law, 3rd ed. 2021, para 2.28 ff.

Thank you Ali Malek QC (successful for defendants) for bringing this AM's CA's judgment in SKAT to my attention.
Dicey rule 3, foreign public law, revenue matters
Appeal only partially succeedshttps://t.co/UQwg8caiGf
Review of the first instance judgmenthttps://t.co/r7WXwAoaXl

— Geert Van Calster (@GAVClaw) February 25, 2022

Yesterday (1 March 2022) the Institute of International Law approved a declaration on the aggression in Ukraine. The declaration is available by clicking the following links:

Declaration of the Institute of International Law on Aggression in Ukraine – 1 March 2022 (EN)-1

Déclaration de l’Institut de Droit international sur l’agression en Ukraine – 1 mars 2022 (FR)

The current developments in Ukraine and the measures and sanctions currently in place have undoubtedly an impact across all areas, including private international law. See for example the measures adopted by the European Union here.

I include an excerpt of the declaration below:

The Institute recalls that the ongoing military operations call ipso facto for the application of international humanitarian law, including the rules relating to occupation, as well as all the other rules applicable in times of armed conflict. It recalls also that persons responsible for international crimes as defined by international law may be prosecuted and sentenced in accordance with the law in force.

Faithful to its mission, the Institute remains convinced that, while international law alone cannot prevent the outbreak of violence, it must remain the compass by which States are guided, and it is more than ever determined to strengthen its work to promote “the progress of international law”. The Institute adds its voice to that of other actors in the international community, including the learned societies acting in defense of the rule of law, who call for an end to the war in Ukraine and the settlement in good faith of disputes between the States concerned through all appropriate means of peaceful settlement.

Shuai Guo (China University of Political Science and Law of Beijing) authored a book titled Recognition of Foreign Bank Resolution Actions, published by Edward Elgar. The book is part of the series of Elgar monographs in private international law.

This timely book offers a comprehensive study of the mechanism that gives effect to foreign bank resolution actions. In particular, it focuses on how the legal framework for the recognition of foreign bank resolution actions should be structured and proposes detailed legal principles on which effective frameworks should be based.

Shuai Guo conducts both normative and positive law analysis to investigate the status quo of available legal instruments that are used to recognise foreign resolution actions within three representative jurisdictions: the European Union, the United States and mainland China. Building on the traditional legal doctrines of private international law, financial law and insolvency law, this book proposes ten principles that should be applied to foreign bank resolution actions, offering innovative ideas for further research and study. Additionally, it fills the gap in scholarly research on the issue of cross-border bank resolution and formulates rules that would facilitate effective resolution actions across borders to achieve a global orderly resolution for banks.

Recognition of Foreign Bank Resolution Actions will be key reading for researchers and students in the fields of private international law, finance and banking law. The technical legal issues addressed throughout the book will also appeal to insolvency and banking lawyers, as well as policy makers within the field.

The table of contents can be accessed here.

As announced a few weeks ago, the European Association of Private International Law has set up a Working Group charged with responding to a public consultation launched by the European Commission, aimed at gathering evidence on the measures that the EU may adopt to enhance the protection of vulnerable adults in Europe.

The Group consists of seven members: Pietro Franzina (Catholic University of the Sacred Heart, Milan), Estelle Gallant (Toulouse 1 Capitole University), Cristina González Beilfuss (University of Barcelona), Katja Karjalainen (University of Eastern Finland), Thalia Kruger (University of Antwerp), Tamás Szabados (Eötvös Loránd University), Jan von Hein (University of Freiburg).

A webinar will take place on 10 March 2022 from 5 pm to 7 pm CET, organised by the Working Group. The Group intends to present a preliminary draft response and receive feedback from interested experts, practitioners and stakeholders.

Attendance is free, but prior registration is required. Those interested in attending the webinar are invited to fill in the form available here by 9 March at noon.

For information, please write to the Group’s co-chair, Pietro Franzina, at pietro.franzina@unicatt.it.

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

Judgments

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

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

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

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

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

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

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

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

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

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

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

Question 1

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

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

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

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

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

Question 2

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

Question 3

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

Question 4

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

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

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

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

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

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

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

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

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

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

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

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

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

Opinions

Let’s move now to the three opinions.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Institute for Private International and Comparative Law of the University of Cologne (Professor Mansel) is looking to appoint one to two Research Assistant(s) (Wissenschaftliche/r Mitarbeiter/in) on fixed-term contracts for 2 years, with contract extension possible, based in Cologne. The successful candidate(s) can be appointed full time (39.83 hrs/week) or part-time (19.92 hrs/week), with the latter option allowing for the completion of a PhD thesis. A German State Exam in law with above-average marks is required. In addition, proficiency in the Dutch, Italian, Spanish, or French language is an advantage. The remuneration will be based on pay group 13 TV-L.

The University of Cologne promotes equal opportunities and diversity in its employment relationships. Women are expressly invited to apply and will be given preferential treatment in accordance with the LGG NRW. Applications from severely disabled persons are very welcome. They will be given preferential consideration if suitable for the position.

Interested candidates are invited to send their detailed application including the usual documents in a single .pdf file by 20 March 2022 to ipr-institut@uni-koeln.de, for the attention of Professor Mansel.

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

In a judgment of 9 February 2022, the French Cour de cassation ruled that the “relationship existing between the parties” required by Article 10(1) of the Rome II Regulation in order to apply the law governing this relationship to a claim of unjust enrichment cannot be found in a contract existing between one of the parties to the non-contractual obligation and a third party, nor in the performance by a party of obligations arising from mandatory provisions of the law applicable to the said contract.

Article 10(1) of the Rome II Regulation reads:

If a non-contractual obligation arising out of unjust enrichment, including payment of amounts wrongly received, concerns a relationship existing between the parties, such as one arising out of a contract or a tort/delict, that is closely connected with that unjust enrichment, it shall be governed by the law that governs that relationship.

Background

Pursuant to a decision of German courts, a German notary was ordered to pay damages to a French bank for failure to comply with his obligation of due diligence (‘obligation de vigilance’: the judgment does not elaborate on this point). The notary’s claim against his civil liability insurer, German company HDI Versicherung, was rejected on the ground that the insurance contract did not cover damage intentionally caused by the insured party. However, pursuant to a German federal statute which requires the insurer to compensate even such damage, HDI Versicherung still compensated the bank. HDI Versicherung then sought to recover from the notary’s professional society (Chambre des notaires) and its insurer, but its claim was rejected by German courts on the ground that it had not been brought within the contractual time period. HDI Versicherung eventually brought a claim for unjust enrichment against the bank in France to obtain restitution of the amount paid under § 812 of the German Civil Code.

Ruling of the Metz Court of Appeal

In a judgment of 30 June 2020, the Court of Appeal of Metz ruled that German law applied to the action for restitution of payment wrongly received pursuant to Article 10(1) of the Rome II Regulation, on the ground that the compensation was paid by reason of the relationship existing between HDI Versicherung and the notary and of the event giving rise to the damage suffered by HDI Versicherung and the notary was governed by German law, and that the payment had occurred pursuant to mandatory provisions of German law.

The bank appealed and argued that German law cannot apply to the non-contractual obligation between the notary’s insurer and the bank as there was no existing relationship between them.

Ruling of the Cour de Cassation

The French Supreme Court ruled that neither a contract concluded by one of the parties to the non-contractual obligation with a third party, nor the performance of obligations imposed by mandatory provisions of the lex contractus of that contract could characterize the “relationship existing between the parties” in the meaning of Article 10(1) of the Rome II Regulation. Hence the law governing the contract could not apply to the unjust enrichment claim.

It held:

the relationship existing between the parties to the non-contractual obligation cannot result from a contract concluded by one of the parties with a third party, nor from the performance by a party of obligations arising from the contract imposed by the law applicable to this contract.

Assessment

The scope of the judgment is narrow. The only issue before the Court was whether the lower court had properly applied Article 10(1). The language of the provision clearly clearly limits its scope to existing relationships between the parties to the quasi-contractual claim. The lower court had applied it outside of its scope, and was wrong for this reason alone.

It would have been good to know how the Cour de cassation would have applied the other paragraphs of the Article 10, but it did not need to for the purpose of deciding the appeal, and unsurprisingly did not.

Article 10(2) provides for the application of the law of the common habitual residence of the parties, and was thus irrelevant for this case as well. Article 10(3) then provides for the application of the “law of the country in which the unjust enrichment took place“. It seems clear that this would have designated France, where the French bank had received the payment.

Finally, Article 10(4) provides for a common and general exception clause. In this context, it seems that the contract between HDI Versicherung and the notary should have been highly relevant. Article 10(4), however, provides that the exception clause should only be applied if the non-contractual obligation arising out of unjust enrichment would have been manifestly more closely connected with a country other than the country otherwise designated under Article 10. Would it be so in this case?