EAPIL blog

Advocate General Szpunar’s opinion on C-651/21 – М. Ya. M. (Renonciation à la succession d’un cohéritier) was  published last Thursday. The request, from the Sofiyski rayonen sad (Bulgaria) relates to Article 13 of Regulation 650/2012 on matters of succession.

In the case at hand, M. T. G., a Bulgarian national who died in Greece, designated as heirs her daughter, her husband – the Greek national H. H. –, and her grandson – the applicant M. Ya. M. The applicant requests that the court register the waiver of the succession by H. H. A record of the civil case of the Magistrate’s Court, Athens, Hellenic Republic, was submitted in the proceedings, stating that H.H. appeared before that court on 28 June 2019 and declared his waiver of the succession. According to the request, H.H. stated that the deceased last resided in the town of H., region of Attica, Greece.

The referring court considers there is a ‘conflict of jurisdictions’ (sic), since, under the general rules of the regulation, jurisdiction is determined by the habitual residence of the deceased and not by that of the heirs. Subject to certain conditions, the latter courts have jurisdiction to receive waivers and acceptances; however, (under the regulation) they are under no procedural obligation to notify the court having jurisdiction in principle of such waivers or acceptances. In light of it, the referring court is uncertain as to the nature of the proceedings before it. In addition, it submits that the applicant in the proceedings at hand does not wish to have his own waiver of the succession of the deceased registered, but that of one of the other heirs, and that Bulgarian law does not provide for such a procedure. The principle of personal protection of rights before a court does not permit the registration of declarations of other persons eihter.

The national court has referred the following questions to the Court of Justice of the European Union:

(1) Is Article 13 of Regulation (EU) No 650/2012 […], read in conjunction with the principle of the protection of legal certainty, to be interpreted as precluding, after an heir has already had registered with a court of the State in which he or she is habitually resident his or her acceptance or waiver of the succession of a deceased person who was habitually resident in another State of the European Union at the time of his or her death, a request to have that waiver or acceptance subsequently registered in the latter State?

(2) If the answer to the first question is that such registration is permissible, is Article 13 of Regulation (EU) No 650/2012 […], read in conjunction with the principles of the protection of legal certainty and the effective implementation of EU law, and the obligation of cooperation between States under Article 4(3) [TEU], to be interpreted as permitting a request for the registration of a waiver of the succession of a deceased person effected by an heir in the State in which he or she is habitually resident by another heir residing in the State in which the deceased was habitually resident at the time of his or her death, irrespective of the fact that the procedural law of the latter State does not provide for the possibility to have a waiver of a succession registered on behalf of another person?

The case has been assigned to a chamber of three judges (M. Ilešič, reporting, together with I. Jarukaitis and Z. Csehi).

The Hague Academy of International Law has made known the programme of the summer course of Private International Law of 2023.

The course will be opened by Maarit Jänterä-Jareborg (Uppsala University) with a lecture on Women’s Rights in a World in Transition: The Challenges of Private International Law.

The general course, titled Responses to a Legally Fragmented World: A Private Law Perspective, will be given by Francisco Garcimartín (Autonomous University of Madrid).

The special courses will be as follows: Olivera Boskovic (Université Paris Cité), Tortious Liability in Contemporary Private International Law; Matthias Lehmann (University of Vienna), Crypto Economy and International Law;  Pedro J. Martinez-Fraga (New York University – School of Law), Evidence-Gathering, Transparency, and Risk Assessment in International Commercial Arbitration; Anselmo Reyes (Singapore International Commercial Court), The Use of Domestic Law to Regulate the Conduct of Individuals, Corporations and Governments Extra-Territorially; Geneviève Saumier (McGill University), Specialised National Courts and International Business Disputes;  Maja Stanivuković (University of Novi Sad), Property Rights of Individuals After Changes of Territorial Sovereignty.

The directors of studies will be Philippa Webb (King’s College London) and Verónica Ruiz Abou-Nigm (University of Edinburgh) for the English-speaking section, Lucie Delabie (Université de Picardie Jules Verne) and Malik Laazouzi (Université Paris 2 – Panthéon-Assas) for the French-speaking session.

All applicants are required to register online. A limited amount of scholarships is available. Registration period for full fee, scholarship, doctoral scholarship and Directed Studies applicants is between 1 November 2022 and 31 January 2023. Attendees will also be able to participate in the doctoral networking sessions coordinated by Vaios Koutroulis (Univesité libre de Bruxelles) and Alexia Pato (University of Girona), additional afternoon lectures, embassy visits and other social activities.

More information on the Academy’s programmes, including the upcoming Winter Course, may be found here.

As noted earlier on this blog, on 2 December 2022, from 4 pm to 5.30 pm (MET), EAPIL will hold a joint Seminar with the British Institute of International and Comparative Law (BIICL). The Seminar will focus on the review of the Rome II Regulation and will, in this context, shed light on the Study that was prepared in 2021 by BIICL and Civic Consulting to support the preparation of the Commission report on the Regulation’s application. The seminar will focus on general issues as well as a selection of specific subjects.

The Seminar will take place via Zoom. If you wish to join, please register here by 30 November 2022 at noon. Registered participants will receive the details to join the Seminar on 1 December 2022.

The Seminar’s programme is as follows:

4.00 pm
Introduction: Overview of the Study
Constance Bonzé, BIICL (UK)
Eva Lein, BIICL (UK)/University of Lausanne (Switzerland)

— FOCUS I

4.15 pm
Financial Loss
Xandra Kramer, University of Rotterdam (Netherlands)

— FOCUS II

4.25 pm
Artificial Intelligence
Martin Ebers, University of Tartu (Estonia)

—

4.35 pm
A View from Practice
Marie Louise Kinsler, KC, 2 Temple Gardens, London (UK)

—

4.45 pm
Discussion

For more information, please write an e-mail to secretary.general@eapil.org.

It is becoming a tradition for the EAPIL blog to announce the publication of the PAX Moot. It is now just around two weeks that the case has been published for the students who are keen to take part in a yearly moot competition on Private International Law.

This time the Pax Moot Round is dedicated to the memory of Peter Nygh, a leading international lawyer, former judge of the Family Court of Australia, co-rapporteur on The Hague ‘judgment project’, and representative for Australia in the negotiations of the Convention on the Protection of Children.

The Peter Nygh Round of the competition will require participants to deal with the complexities of Private International Law in a global setting: European, African and American incorporated companies, Panamanian-flag vessel, and health injuries to employees from Philippines. The factual situation in the case is set around a series of international transactions and situations related to the refueling of a vessel in the port of Antwerp. The this, the insolvency procedure of one of the subsidiary companies involved in the arrangement of the refueling further complicates the situation of the parties.

The students participating in the 2023 PAX Moot are required to address matters of jurisdiction, the relevance of the insolvency proceedings for the pending claims, the possibility of appointing an expert to investigate factual situations in another country, and determining the applicable law.

Student teams from all over the world will be able to register for the competition from 2 November 2022. This can be done via an online form available here.

The moot comprises a written and an oral round. More information about the competition and its timetable are available here.

On 18 October 2022, the European Commission adopted its 2023 Work Programme. As explained in the press release that accompanies the document, the programme aims to set out a bold and transformative agenda in the face of Russia’s aggression against Ukraine, rising energy prices and the knock-on effects on the economy, while defending Europe’s democratic values and pursuing long-term goals and interests.

The initiatives that the Commission plans to take, or pursue with particular interest, in the course of 2023 are listed in three annexes.

Annex I is concerned with the new policy and legislative initiatives that the Commission intends to propose. None of the items in this Annex is based on Article 81 TFUE, on judicial cooperation in civil matters. No reference is made in the document to two topics that formed (and still form) the object of discussion among academics and stakeholder, namely the recognition of parenthood and the protection of vulnerable adults.

Annex II, on REFIT initiatives (i.e., initiatives aimed at making EU law simpler, less costly and future proof), contemplates, among other things, a revision of alternative dispute resolution and online dispute resolution framework to improve enforcement of consumer law is expected. A strong alternative dispute resolution (ADR) framework will enable consumers and businesses to solve their disputes rapidly and at a low cost, out-of-court. The increase in online shopping during the pandemic has shown that there is room for overall simplification notably in cross-border disputes and cost-effective measures, e.g., through digital tools and collective ADR disputes mechanisms. The idea is to modernise the ADR framework in view of the rapid development of online markets and advertising and the need to ensure that consumers have access to fair, neutral and efficient dispute resolution systems.

Various procedures involving aspects of private international law are featured in Annex III, about the pending procedures that the Commission regards as a priority.

The proposed Directive on adapting non-contractual civil liability rules to artificial intelligence (the AI Liability Directive) appears in this list. Liability ranked amongst the top barriers to the use of AI by European companies. This is so because current national liability rules, in particular based on fault, are not suited to handling liability claims for damage caused by AI-enabled products and services. Under such rules, victims need to prove a wrongful action or omission by a person who caused the damage. The specific characteristics of AI, including complexity, autonomy and opacity (the so-called “black box” effect), may make it difficult or prohibitively expensive for victims to identify the liable person and prove the requirements for a successful liability claim. In particular, when claiming compensation, victims could incur very high up-front costs and face significantly longer legal proceedings, compared to cases not involving AI. Victims may therefore be deterred from claiming compensation altogether. Therefore, the objective of this proposal is to promote the rollout of trustworthy AI to harvest its full benefits for the internal market. It does so by ensuring victims of damage caused by AI obtain equivalent protection to victims of damage caused by products in general. It also reduces legal uncertainty of businesses developing or using AI regarding their possible exposure to liability and prevents the emergence of fragmented AI-specific adaptations of national civil liability rules. From a private international law perspective, the impact of the Directive and the (possible) future implementation in national rules and the relationship with the Rome II Regulation shall be investigated.

The list of priority pending procedures also include the proposed Directive on liability for defective products. Directive 85/374/EEC, which the proposal aims to repeal, has the objective to provide an EU-level system for compensating people who suffer physical injury or damage to property due to defective products. Since its adoption in 1985, there have been significant changes in the way products are produced, distributed and operated, including the modernisation of product safety and market surveillance rules. The green and digital transitions are underway and bring with them enormous benefits for Europe’s society and economy, be it by extending the life of materials and products, e.g. through remanufacturing, or by increasing productivity and convenience thanks to smart products and artificial intelligence. Therefore, the revision of the Directive seeks to ensure the functioning of the internal market, free movement of goods, undistorted competition between market operators, and a high level of protection of consumers’ health and property. In particular, it aims to: ensure liability rules reflecting the nature and risks of products in the digital age and circular economy; ensure there is always a business based in the EU that can be held liable for defective products bought directly from manufacturers outside the EU; ease the burden of proof in complex cases and ease restrictions on making claims, while ensuring a fair balance between the legitimate interests of manufacturers, injured persons and consumers in general; ensure legal certainty.

Also in the list of the Commission’s priorities is the proposed Directive on Corporate Sustainability Due Diligence. An overview of the Commission proposal has already appeared on this blog. As suggested in a recommendation of GEDIP that has recently been brought to the attention of the readers of this blog (see here), the Proposal may need to be reconsidered and improved in various respects.

Another priority pending procedure is the proposed Directive on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against public participation”, or SLAPPs). The initiative has been the object of a dedicated post on this blog.

Finally, the Commission intends to include among its priorities the initiatives it has taken regarding the digitalisation of judicial cooperation in cross-border civil and commercial matters, i.e., the proposed Directive on digitalisation of judicial cooperation and the proposed Regulation on the digitalisation of judicial cooperation and access to justice in cross-border civil, commercial and criminal matters. An illustration is found in this post.

The proposed Directive on consumer credits and the proposed Regulation on the law applicable to the third-party effects of assignments of claims equally feature in the list of the priority pending legislative proposals.

This post, written by Pascal de Vareilles Sommières, who is a Professor at the University of Paris 1 Panthéon-Sorbonne, is the seventh in a series concerning the proposed codification of French Private International Law. Previous posts relating to the French Draft Code addressed the issues of renvoi, foreign law, the recognition of marriages, companies and parentage. A German perspective on the draft was also offered here.

Article 15 is the first provision in the title II of the French Project of Code of Private International Law (the Code project), on “Jurisdiction of courts”. It reads as follows:

Unless provided otherwise in this code, jurisdiction of French courts results from the rules on venue in domestic procedural law, which are extended to international matter – subject to their adjustment as it may be required for that matter –, especially the rule on venue based on the domicile or on the habitual residence of the defendant.

Overview of Article 15

Under Article 15, legal bases for jurisdiction of French courts over cross-border disputes are basically to be found in the French rules on venue (place of the lawsuit) as they apply in domestic proceedings, except if a specific rule on jurisdiction has been codified and applies to the case. A striking feature of this rule is that it does not address the jurisdictional issue by itself, but by reference to other rules that were made for domestic litigation. It has been coined as a default rule – or a “principle” in the words of the Report to the Minister of Justice on the project of Code of Private International Law (the Report), recalling (p. 15) that it comes from a former ruling by the Cour de cassation (see the Report, p. 15 at footnote 5, referring to Cass. Civ. 19 October 1959 Pelassa, and Cass. Civ. 30 October 1962 Scheffel). As a default rule, the rule applies in any particular case with the proviso that the case is not covered by a specific rule on jurisdiction within the Code project. As such, it has the importance of a general principle: exceptions may exist, but they keep the status of exceptions, inspired by data specific to the category for which they are provided, and applying only to cases falling in that category.

One particular jurisdiction basis for French courts that draws on this rule is where the domicile or the habitual residence of the defendant is in France: Article 15 expressly mentions the extension of the corresponding venue rule (French Code of civil procedure, Article 42) to disputes arising in an international setting. Such a jurisdiction rule (well known in Latin: Actor sequitur forum rei), is classical in comparative private international law and consequently gained its status as a principle in EU jurisdiction rules in civil and commercial matters (Article 4 of the Brussels I bis Regulation). Needless to say, Actor sequitur… is not the only rule on venue in the French Code of civil procedure, and, under Article 15 of the Code project, others shall extend to international litigation before French courts – at least, each time they are not ruled out by a specific provision on jurisdiction that the Code project enacts.

In some cases, the Code project sets up straightforward specific rules on jurisdiction for international litigation before French courts, as in the field of personal status, where Article 34 provides for jurisdiction of French courts if the domicile or habitual residence of the person whose status is at stake is located in France at the time when the dispute is introduced before the court.

Rules on jurisdiction in the field of contractual and non-contractual obligations (Articles 88 and 91) are good examples of less straightforward jurisdiction rules laid down by the Code project. On the one hand, they draw on rules of venue applying to domestic litigation (French Code of civil procedure, Article 46) and, to that extent, they belong to these venue rules adjusted to international litigation mentioned by Article 15 (see the Report, p. 16). On the other hand, they appear within the Code project as specific legal rules (Article 88 §2; Article 91 §2), proper to international disputes. Under these provisions, in contractual matters, legal bases for jurisdiction of French courts are the place of delivery of the goods and the place of provision of the service; in extra-contractual matters, legal bases for jurisdiction of French courts are the place of the harmful event and the place where the damage is suffered. Of course, in both fields, French rules on jurisdiction apply subject to international convention or EU law (Article 88 §1; Article 91 §1); and we all know that EU law in civil and commercial matters does not rule out the rules on jurisdiction of Member State courts, if the defendant is domiciled in a country which is not a EU Member State (Article 6 of the Brussels I bis Regulation).

General Assessment of Article 15

Is the rule laid down by the Code project in Article 15 a satisfactory one? We must confess our frowning on reading it. The reason is that, in our opinion, the reference to rules on venue in domestic disputes, as default rules on jurisdiction issues in international litigation, made by Article 15 of the Code project, falls beside the point.

The mere fact for the Report to emphasize that the general rule provided by Article 15 belongs to those provisions, in the Code project, intending to consolidate advances previously gained (“acquis”), or to maintain traditional solutions in spite of scholarly criticism (p. 15), remains unsatisfactory to us.

A first reason for scepticism is that the extension of domestic rules on venue to international litigation, when it comes to determining legal bases of jurisdiction of a country’s courts, is enshrined in the Code project, even though this extension principle is said to fall under criticism of commentators: one expects a response to that criticism by the drafters of the Code project prior to have it set aside. A second reason is that it is awkward for the Code project drafters to set up, as a default rule or principle on jurisdiction of courts in international disputes, a mere reference to rules on venue  made for domestic disputes, especially when it is simultaneously admitted that “no one today denies the specificity” of the nature of international jurisdiction of a country’s courts and of the rules laid down to fix it, compared to domestic venue (see the Report, p. 15).

Everyone interested in EU law on jurisdiction in civil and commercial matters knows the huge amount of dissatisfaction left in practice by criteria like the place of performance of obligation, the place of delivery of goods, and the place of provision of service, as grounds for jurisdiction in the field of contracts. The same dissatisfaction stems from criteria like the place of the harmful event and the place of damages, used for the same purpose in the field of torts. Having them endorsed by French rules on international litigation just because they are used as venue grounds in domestic proceedings is at least questionable, as is questionable the assertion by the Report that “the extension principle [of domestic venue provisions] has the advantage that it provides for a connecting factor easy to implement each time one cannot find in the Code project a specific rule for the relevant matter” (p. 15). The sentence would be more correct saying “easy to find” rather than “easy to implement”. But the mere fact, for a criterium used by a provision addressing a given issue, to be easy to find does not make this criterium reasonable and reliable when drafting another provision on a different issue.

So, if the point is to avail of default rules proper to answer the question whether or not a particular case falls within the jurisdiction of French courts (so that they may handle the jurisdiction issue even though there is no jurisdiction rule specific to the matter to which that case belongs), it is suggested here that a good approach would have been to listen to scholarly criticism and to assess counterproposals. Unfortunately, space lacks – due to the format of this blog – to develop here on this issue. This quick overview will only express our disappointment that the only other idea mentioned in the Report (and actually used in the Code project), for assertion of jurisdiction by French court where no ground specific to the matter can be found, is about resorting to the “natural judge theory” (doctrine du juge naturel) and consequently sticking to the French citizenship as a default basis for jurisdiction of French courts (see Code project, art. 17, and the Report, p. 16 to 18).

A Few Suggestions

Beside the well-known usual criticism under which citizenship/nationality of one of the litigants falls as a ground of jurisdiction in civil and commercial matters, another remark finds its way here: why did the Report and the Code project give short shrift to other possible solutions?

Extension of Brussels I reg. recast (2012) rules on jurisdiction, especially where the defendant is not domiciled in a EU Member State, could have been explored: there are pros and cons.

How about the forum legis jurisdiction? Comparative private international law shows a tendency for this ground of jurisdiction, formerly unfashionable, to come back to the forefront. EU jurisdiction law shows that providing for jurisdiction of the courts of a given country over a case, where the law of that country is applicable to that case, may well prove satisfactory (Articles 5 to 7 of Regulation No 650/2012 in matters of succession). An article recently published depicted quite clearly the influence, before common law courts, of the idea that, for a court, applicability of the law in force in its forum is a relevant basis for the jurisdiction of that court (R. Garnett, “Determining the Appropriate Forum by the Applicable Law”, [ICLQ vol 71, July 2022 pp 589–626]). Even in France, voices make the case for a better relation between forum and jus in private international law (see, among others, S. Corneloup, « Les liens entre forum et ius : réflexions sur quelques tendances en droit international privé contemporain », in Mélanges B. Ancel, LGDJ/IPROLEX, 2018, p. 461-475). This tendency probably finds its rationale in this idea that where a country claims applicability of its law through its choice-of-law rule, the best way to increase efficiency of this claim is to support it by an additional claim, made by that country through its choice-of-court rules, that its courts have jurisdiction. This jurisdiction should certainly not be exclusive of jurisdiction of the courts of any other country (at least in principle), but making it available to the parties is good for them, in terms of predictability, and good for the country whose law claims to be applicable, in terms of authoritativeness of its law.

Whether this point is decisive is open to debate, but one may expect from a lawmaker that it addresses such an issue when codifying its private international law.

This post was written by Verena Wodniansky-Wildenfeld, Vienna.

The Austrian Constitutional Court proceeds further on the way to equal treatment of heterosexual and homosexual couples. In its decision of 30 June 2022, it ruled that the requirements for establishing parenthood of same-sex partners must not be stricter than the ones for opposite-sex partners.

Facts of the Case

Two women lived together as registered partners with a child. After the child’s birth, the partner of the mother sought to be legally registered as the child’s parent. This request was refused by the authorities, as she could not be considered the “father” in the sense of the law and the child had been conceived naturally and not through artificial insemination, as required for the registration as a co-mother. Thereupon, she filed a complaint with the Austrian Constitutional Court on the grounds of the discriminatory nature of the legal provisions applied in the case at hand.

Legal Problem

Under the current Austrian statutory law, the registered female partner of the biological mother can be considered as the “other parent” only in the case of medically assisted reproduction (Section 144(2) ABGB).

In cases where the biological mother and her female partner are married to each other, as well as in cases where the birth was not preceded by medically assisted procreation, Austrian law does not provide any possibility for the acknowledgement of parenthood.

In order to legally become the “other parent”, the only way left is via “stepchild adoption” (section 197(4) ABGB), which is neither a duty nor a right. This situation differs from the case of heterosexual spouses: the man who is married to the mother at the time of the child’s birth is ex lege considered to be its father, never mind how the child is conceived. Moreover, a man may acknowledge fatherhood even if the child was conceived by someone else (whether through natural or medically assisted reproduction). Neither of these options are available to the wife or female partner of the biological mother.

Decision

The Austrian Constitutional Court considers this statutory situation as an unjustified unequal treatment of the mother’s female partner with regard to her legal status as “other parent” in comparison to a man in the same constellation. The court invoked in particular the right to private life and the principle of equality (Articles 14 and 8 ECHR, which form an integral part of Austrian constitutional law). Furthermore, it referred to the legal interest of the child (particularly Article 8 ECHR and the implementation of the UN Charter on the Rights of the Child) and that of a legal parent who wants to take responsibility for the child.

The Constitutional Court rejects the objections by the Federal Government, who argued that the unequal treatment under the law would be justified. According to the Court, a man’s fundamental aptitude for natural procreation is not sufficient to tie paternity to less stringent conditions than the parenthood of a woman who cannot have “fathered” the child. The Court was moreover not persuaded by the approval of the German legal situation by the ECtHR, which puts same-sex couples in a significantly worse position than the Austrian one due to the mere possibility of adopting the child.

Assessment

Following the decision concerning the implementation of marriage for homosexual couples, the direction the Constitutional Court has taken this time is hardly surprising. In stating that the unequal treatment of homosexual and heterosexual couples cannot be justified, the Court finds itself in agreement with large parts of the Austrian literature. Certainly, the Court does not deny the existence of factual differences between men and women with respect to natural procreative capacity. The prohibition of discrimination, however, prevents the legislature from attaching different legal consequences to this gender-specific distinction and the sexual orientation. The provision of the ABGB was therefore repealed as unconstitutional and as further consequence, will be ceased to be in force by the end of 2023.

The question arises which implications the decision will have for national conflict-of-law rules. De lege lata, the latter only explicitly governs descent from the father. A possible solution would be to apply the general clause in Section 1(1) IPRG and thus extend the rule on paternity to co-motherhood. Accordingly, the common nationality of both married parents or that of the child in the case of unmarried parents would determine the applicable law. Nevertheless, a clear solution would be preferable also in this matter.

It remains to be seen whether the Austrian legislator will find a solution that does justice to the desire for permanence of parenthood, the protection of the social family, and the best interests of the child.

Filip Šaranović (Queen Mary University of London) is the author of Freezing Injunctions in Private International Law, recently published by Cambridge University Press.

The blurb reads:

The extent of available pre-judgment asset preservation relief is widely regarded as a unique characteristic of English law and one of the key factors attracting international commercial litigation to the English courts. By taking a novel view of the theoretical foundations of a freezing injunction, this book challenges the long-established view that such an injunction is an in personam form of relief whose sole purpose is to prevent unscrupulous defendants from making themselves judgment-proof. Dr Šaranović combines historical and comparative perspectives to identify several theoretical flaws in the court’s jurisdiction to grant this popular form of interim relief. The book demonstrates that the current application of private international law rules in this field leads to inequality among litigants and illegitimate encroachment upon the sovereignty of foreign states. It proposes a range of possible solutions to alleviate concerns about the scope of freezing injunctions both in the domestic and international arena.

Further information available here.

On 9, 10 and 11 November 2022, a Special Commission devoted to the Hague Convention of 13 January 2000 on the international protection of adults will meet in the Hague.

The Hague Adults Convention applies in international situations to the protection of persons aged 18 or more who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their interests. It lays down a comprehensive set of private international law rules in this area: rules on jurisdiction to give measures of protection, on the law applicable both to measures of protection and powers of representation conferred by an adult in contemplation of a possible loss of autonomy, on the recognition and enforcement of measures of protection across Contracting States, and on cooperation between the authorities of such States.

Today, fourteen States are bound by the Hague Adults Convention, the latest to join being Greece (actually, the Convention entered into force for Greece yesterday, 1 November 2022).

Why a Special Commission, and How It’s Been Prepared

While the Hague Adults Convention has generally proved to work well in practice, the Council on General of Affairs and Policy of the Hague Conference on Private International Law considered, in 2019, that the time had come to convene a Special Commission for the purpose of reviewing the practical operation of this instrument.

Preparation work began shortly afterwards, with a questionnaire addressed to States aimed to determine the issues that the Special Commission ought to address (the responses are found here), followed by a questionnaire on the practical operation of the Convention (see here the responses).

Since April 2021, a working group constituted for this purpose has been meeting regularly with the aim to draft a Practical Handbook on the Convention and, more generally, to discuss the various documents that the Special Commission will consider in its meeting (or serve as a background to it). As a member of the working group, the author of this post enjoyed the intense and fruitful exchanges that occurred among the members, and witnessed the amazing job carried out by the Permanent Bureau to assist the group and, generally, to get everything ready for the Special Commission.

The meeting of the Special Commission will only open to delegates designated by States and invited observers (by the way, the European Association of Private International is among the observers: as the readers of the blog may recall, EAPIL received a similar invitation in May 2022 to attend the first meeting of the Special Commission on the Hague Maintenance Convention and Protocol). Of course, the Conclusions that the Special Commission will adopt will be made available once the meeting is over.

What to Expect from the Meeting (1): A Substantial Contribution to the Understanding of the Convention

The November 2022 meeting is the first such meeting devoted to the Hague Adults Convention. In fact, the work carried in preparation of the Special Commission over the last year and a half, and its finalisation by the Special Commission, represents the first major collective exercise of this kind regarding the Convention.

This is in itself remarkable, especially if one considers that, over the years, several Special Commission meetings have taken place to discuss the operation of other Hague instruments. For instance, the Special Commission charged with reviewing the operation of the Hague Convention of 1980 on the civil aspects of international child abduction has met seven times, and the next meeting – due to take place in October 2023 – is already under preparation.

As a matter of fact, some practically important issues regarding the Hague Adults Convention had not been the object of detailed analysis before the working group and the Permanent Bureau engaged in this exercise.

One such issue is whether, and in which manner, the Convention applies to ex lege powers of representation, that is powers of representation that, according to the law of some States, a person close to the adult (e.g., their spouse) is entitled to exercise for the purposes of protecting them. A preliminary document, drawn up by the Permanent Bureau with the assistance of the working group provides an account of the questions that surround these powers, and discusses how they could (or should) be dealt with under the Convention.

Doubts have been raised in literature and among practitioners as regards the way in which the Hague Adults Convention deals with advance directives concerning matters of health, welfare and other personal matters. This topic, too, is the object of a preliminary document.

The Special Commission will offer a unique opportunity to collect the views of States and observers on these and several other issues. The finalised Practical Handbook (the latest revised draft is available here) will eventually help shape a common understanding of the operation of the Convention, notably as regards the issues that have prompted doubts and disputes.

While the Practical Handbook and the Conclusions of the Special Commission will not be formally binding on State courts and other authorities, the consensus that the Commission will be able to record on the various topics under discussion will in fact serve as a guideline for anybody having to do with the Convention.

What to Expect from the Meeting (2): A New Wave of Ratifications

One recurring criticism concerning the Hague Adults Convention is that it is in force only for relatively few States. Admittedly, the pace of ratifications has been disappointing.

Experts generally agree that the Convention significantly facilitates the handling of cross-border cases, and authorities in Contracting States frequently report about the benefits offered by the Convention in cases governed by its rules, compared with cases for which the Convention is of no avail (e.g., when the need arises to coordinate proceedings before local courts with proceedings in a State that is not bound by the Convention). Yet, several States have apparently never considered joining the Convention, and many among those that have expressed an interest in ratifying the Convention have so far contented themselves with taking preliminary steps in that direction.

The Special Commission of November 2022 is likely to encourage new ratifications and accessions. There are various reasons for that.

To begin with, the Convention has slowly come under the limelight, these last years. There has been an increase in the number of scholarly writings and academic initiatives regarding the protection of adults, and the practical importance of the topic is no longer challenged. The Special Commission itself is meant, inter alia, to draw the attention of States and stakeholders on the problems surrounding the international protection of adults, and will further increase the visibility of the Convention. All this will plausibly lead more States to consider joining the Convention, or work at its ratification.

Secondly, the Special Commission will enable States to develop a more thorough understanding of the Convention. The benefits of ratification should in fact prove easier to assess based on the information collected in preparation of the Special Commission. The work that individual Contracting States are expected to carry out in the future should also be of help in this respect. Reference is made to the “Country Profiles” that States are invited to prepare in accordance with a draft that the Commission will discuss. The States that will join the Convention in the future will thus be able to rely on a rich collection of data produced both by the Hague Conference and by the current parties. The will not bear the price, in terms of information, that “pioneer” States must face when joining a uniform regime whose actual functioning has not been fully tested or is not thoroughly documented.

What to Expect from the Meeting (3): A Step Towards a Limited Amendment to the Convention Itself?

So far, the Hague Adults Convention has been ratified only by European States. Apart from Switzerland, Monaco and the UK, all of the States parties to the Convention are also Members of the European Union.

As the readers of this blog know, EU institutions have on various occasions expressed the view that the protection of adults in cross-border deserves greater attention on the part of Member States and the Union itself.

Building on the conclusions adopted by the Council in June 2021, the European Commission launched a public consultation in December 2021 on the measures that the Union should adopt in this field (EAPIL issued a position paper in response to that consultation), and published a study on the matter. The Commission is reportedly working at an impact assessment study that would accompany a possible proposal for a regulation.

One of the hurdles that the Union faces in this area is that the EU cannot itself become a party to the Hague Adults Convention, for this is only open to States. This means that the EU could, at best, authorise the Member States that have not yet done so to ratify the Convention “in the interest of the Union”, as it occurred with the Hague Convention of 19 October 1996 on the protection of children.

At a workshop organised by the Czech Presidency of the Council of the EU in September 2022, the question has been put forward by the First Secretary of the Hague Conference, Philippe Lortie, of whether it would make sense to amend the Convention so as to include a “REIO clause”, i.e., a clause that would enable regional economic integration organisations, such as the EU, to join the Convention. Other provisions in the Convention could be amended on the same occasion: these additional changes would not alter the substance of the Convention, but rather clarify the meaning of provisions whose uniform interpretation could otherwise be difficult to achieve. The possible scope of the various amendments, together with the issues that this move would entail, are outlined in a dedicated preliminary document that has also been prepared in view of the Special Commission.

The prospect of a direct involvement of the EU as a party to the Hague Convention raises some politically sensitive questions, both for the Member States (external action by the Union is a delicate subject) and for the Union itself. One should consider, among other things, that an amendment to the Convention would take several months to complete: if that path were to be taken, the plans of the European Commission regarding new legislation in this area would likely need to be put on hold for some time, and adapted to the changed context.

The implications of the Union becoming a party to the Convention, however, would also be practically significant. Among other things, the Court of Justice would find itself in a position to issue preliminary rulings on the Convention, thereby in fact playing a key role in the uniform interpretation of its provisions.

It remains unclear whether States (not just EU Member States) may in fact have an appetite for this and/or other changes to the Convention. The Special Commission will provide a first opportunity to discuss this prospect. The topic, however, will likely be rediscussed in the broader context of the next meeting of the Council on General Affairs and Policy of the Conference, due to be held in March 2023.

This is the second and final part of a post contributed by Estelle Gallant, regarding the provisions on parentage in the proposed codification of French PIL. The first part can be found here. 

As explained in the first part of this post, the French draft code of private international law devotes an entire sub-section to parentage. After the presentation of the general choice of law rule related to biological parentage (Article 59), it is proposed to shed light on the two special rules in the same matter (Articles 60 and 61).

As regard the general rule codified in Article 59, the substitution of the national law of the child for the national law of the mother is the most positive contribution of the draft. By contrast, the two special rules of the draft, namely Articles 60 and 61, fall short of expectations, not always providing the expected simplifications or clarifications.

Special Rule on Voluntary Acknowledgement of Children (Article 60)

While innovative in certain respects, Article 60 of the draft Code is – for the most part – a reworking of positive law, resulting from a combination of Article 311-17 of the Civil Code and its interpretation by the courts. Although some of the difficulties pointed out in the literature and not necessarily resolved in the case law have been resolved by the draft, not all have been.

Specifically devoted to the voluntary acknowledgement of a child (i.e. declaration of a person that s/he is the parent of the relevant child), whether paternal or maternal, Article 60 distinguishes between substantive validity and formal validity of the acknowledgement, which is a novelty compared with the current system.

Substantive Validity of Voluntary Acknowledgement

Article 60(1) is innovative since it presents itself as an exception to the general provisions.

The solution of the derogation closes a doctrinal controversy that concerned both the methodological nature of the rule in Article 311-17 of the Civil Code and its scope of application. By making the rule on voluntary acknowledgement a derogation from the general rule, it follows that the general rule is purely and simply put aside as soon as an acknowledgement of a child is concerned. This solution is problematic under the current regime because it contributes to putting aside the law of the mother which may validate voluntary acknowledgement, but it is no longer problematic in the context of the draft: even by derogating from the general rule, the special rule merely offers an additional alternative connecting factor to that contained in the general rule. The derogation thus no longer seems to be contrary to the spirit of favouring the establishment of parentage out of marriage which is the overarching principle of the provisions on voluntary acknowledgement.

The conflict-of-laws rule (Article 60(1)) contains an alternative connecting factor to validate the acknowledgement of a child: the national law of the person making the acknowledgement or the national law of the child on the day of the acknowledgement. This is the same rule as the one currently found in the civil code (Article 311-17). The methodological nature of this rule is unclear: is it a “substance-oriented” choice of law rule, a rule of necessary application, a substantive domestic rule ordering the taking into consideration of foreign laws or perhaps even a rule of recognition of a situation? The drafters of the draft Code have remained deaf to these questions and have reproduced the provision almost identically. This being said, the methodological nature of the text is less important once its scope is clearly established and its implementation clarified.

The draft Code contains (in Article 60(4)) what may again be analysed as a special public policy clause, allowing recourse to French law in cases where neither of the two national laws referred to in Art 60(1) allows the validation of the acknowledgement. The purpose of the provision is to further strengthen the principle of favouring the establishment of parentage by voluntary acknowledgement. The provision is similar to the one that is proposed under Article 59, but the triggering factor is different. In the case of acknowledgement, French law will displace the foreign law that does not allow acknowledgement only in the event that the child is domiciled in France.

Lastly, it is regrettable that the draft code has not cared to define the notion of voluntary acknowledgement of children. Case law has revealed a difficulty of characterisation in situations that would have deserved particular attention, such as the case where the child has a birth certificate mentioning the mother’s name or the father’s name (Civ. 1ère, 28 May 2015, no. 14-18.100). Such cases have been dealt with under Article 311-17 of the Civil Code, whereas such a solution would certainly be worth discussing.

Challenges to Voluntary Acknowledgement

Following on from Article 60(1), Article 60(2) codifies judge made rules accepted since 1999 (Civ. 1ère, 6 July 1999, no. 97-19.453).  Disputes as to the truthfulness of the acknowledgement or to its validity, are subject cumulatively to the national law of the author and the national law of the child on the day of the acknowledgement. While acknowledgement is favoured by alternative connecting factors and the requirement that only one of these laws validates the acknowledgement, challenges to acknowledgements are disfavoured by the requirement that the requirements of two laws are applied cumulatively. Since the solution is not without criticism (in particular, why should preventing a child from destroying a parentage be more protective than the reverse?), it is regrettable that it has not been rethought.

Formal Validity of the Act of Voluntary Acknowledgement.

Article 60(3) provides a rule concerning the conditions of form for validly registering of voluntary acknowledgement of a child.  It adds to the two alternative connecting factors already provided for the substantive conditions of acknowledgement, a third connecting factor involving the law of the State in whose territory the act of acknowledgement is drawn up. This is a traditional solution as regards the form of documents and makes it possible not to penalise excessively for reasons of form a document which would otherwise be valid in substance.

Substantive Rule

As indicated earlier in the commentary on Article 59, Article 60(5) contains a substantive rule specific to conflicts of filiation/parentage and, more specifically, to conflicts of acknowledgements. Based on a chronological principle, the text indicates that “an acknowledgement, as long as it is not annulled, deprives of effect any subsequent acknowledgement of the child in the same line”. It is thus understood that in the presence of two voluntary acknowledgements established in two different States, the first should first be contested in order to be able to rely on the second. The solution is to be approved; it might have deserved to be generalised to all modes of establishment of filiation.

Special Rule on Enjoyment of a Status (Article 61)

Article 61 of the draft code of private international law more or less reproduces the current Article 311-15 of the Civil Code by giving effect to the substantive provisions of domestic law relating to “enjoyment on a status” (possession d’état) a concept specific to French law which draw consequences from the fact that a person raises a child as if s/he was his own. However, two clarifications are made by the draft text.

On the one hand, it limits the scope by referring only to provisions concerning the establishment of filiation (for example, Article 314 of the Civil Code, which allows the restoration of the presumption of paternity of the husband).

On the other hand, it indicates that the provision applies only by way of derogation from the preceding provisions, i.e. both with regard to the general rule and with regard to the special rule on voluntary acknowledgement. The clarification regarding the scope of the exception is interesting, as the solution contradicts that adopted very recently by the Court of Cassation. In a judgment of 23 March 2022, the Court of Cassation ruled that Article 311-15 of the Civil Code constituted a derogation only from Article 311-14 and not from the rule in Article 311-17. In other words, according to this judgment, as soon as Article 311-17 is applicable, it excludes Article 311-15 of the Civil Code.

Even if it has been cleaned up in this way, it is surprising that this provision relating to the French rules on enjoyment of a status has been retained in the draft Code: the complexity of the rule has been denounced many times, its application is extremely rare and its usefulness is unconvincing.

This November, more precisely on Tuesday 15, The Court will hand down the decision in C-646/20, Senatsverwaltung für Inneres und Sport, a request from the German Bundesgerichtshof on the Brussels II bis Regulation. The issue is whether a private divorce granted in Italy further to concurring statements by the spouses before the civil registrar can be recorded in the German register of marriages without any additional recognition procedure. Here the questions referred to the Court of Justice:

Is the dissolution of a marriage on the basis of Article 12 of Decreto Legge (Italian Decree-Law) No 132 of 12 September 2014 (‘DL No 132/2014’) a divorce within the meaning of the Brussels IIa Regulation?

If Question 1 is answered in the negative: Is the dissolution of a marriage on the basis of Article 12 of DL No 132/2014 to be treated in accordance with the rule in Article 46 of the Brussels IIa Regulation on authentic instruments and agreements?

A short description of the facts can be read here.

As our editor Martina Mantovani has already reported, the case is one of few on PIL allocated to the Grand Chamber (Lenaerts, Bay Larsen, Arabadjiev, Prechal, Regan, Rodin, Jarukaitis, Ilešič, Bonichot, Safjan, Kumin, Arastey Sahún, Gavalec, Csehi, Spineanu-Matei, and Safjan as reporting judge). Advocate General Collins’s opinion was delivered on 5 May 2022. In his view,

The dissolution of a marriage by a legally ordained procedure whereby spouses each make a personal declaration that they wish to divorce before a civil registrar, who confirms that agreement in their presence not less than 30 days later after having verified that the conditions required by law for the dissolution of the marriage have been met, namely that the spouses do not have minor children or adult children who are incapacitated or severely disabled or economically dependent and the agreement between them does not contain terms concerning the transfer of assets, is a divorce judgment for the purposes of Council Regulation (EC) No 2201/2003.

For a short comment on the Opinion see Francesca Maoli in this blog.

A second decision will be handed down on Thursday 24, on C-358/21, Tilman. Tilman SA, a company governed by Belgian law, concluded in 2010 with Unilever Supply Chain Company AG, a company governed by Swiss law, an agreement by which the appellant undertook to wrap and package boxes of tea bags for a fixed price. In 2011, the parties signed a second agreement amending the price agreed. A dispute arose later in relation to the increase in the price charged by the appellant; the respondent paid the invoices only in part. The appellant brought proceedings in Belgium for payment of the outstanding amounts.

Before the court of first instance, the respondent contended that, in accordance with its general terms and conditions, only the English courts have jurisdiction to hear and determine the dispute. By judgment of 12 August 2015, the court of first instance ruled that the Belgian courts have jurisdiction to hear and determine the dispute, but that the contract is governed by, and must be interpreted in accordance with, English law.

The appellant lodged an appeal against that judgment. In its view, the contract must be governed by, and interpreted in accordance with Belgian law. The respondent brought a cross appeal, claiming that it is not the Belgian courts which have jurisdiction but rather the English courts.

The judgment delivered on 12 February 2020 by the Cour d’appel de Liège (Court of Appeal, Liège) (‘the judgment under appeal’)  upheld the plea alleging a lack of jurisdiction raised by the respondent and held that, pursuant to the clause conferring jurisdiction contained in the respondent’s general terms and conditions, the Belgian courts have no jurisdiction to hear and determine the dispute.

Before the Court of Cassation, the appellant does not contest that it signed a contract containing a reference to the respondent’s general terms and conditions, which are available on the latter’s website. By contrast, it claims that the judgment under appeal wrongly treats the agreement at issue in the same way as a ‘contract concluded online’ in the context of which the buyer is required ‘to tick a box indicating (that he) accepts the seller’s general terms and conditions before being able to finalise his purchase’. The appellant was in no way prompted to accept the respondent’s general terms and conditions formally by clicking on the corresponding box on the latter’s website. It therefore concludes that the judgment under appeal is not legally justified: it fails to ensure that the conditions, in particular the jurisdiction clause, were actually communicated to the appellant and that it expressly agreed to them.

The Belgium court has referred the following question on the 2007 Lugano Convention to the Court of Justice:

Are the requirements under Article 23(1)(a) and (2) of the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed in Lugano on 30 October 2007, satisfied where a clause conferring jurisdiction is contained in general terms and conditions to which a contract concluded in writing refers by providing the hypertext link to a website, access to which allows those general terms and conditions to be viewed, downloaded and printed, without the party against whom that clause is enforced having been asked to accept those general terms and conditions by ticking a box on that website?

The case has been assigned to a chamber of three judges (Arastey Sahún, Passer,  Biltgen – as reporting judge). It did not required the AG’s opinion.

As of today, a hearing is foreseen in C-658/22, Rzecznik Praw Dziecka et Prokurator Generalny, on child abduction, for early December; it may take place earlier, though. The referring court is the Sąd Apelacyjny w Warszawie ((Court of Appeal, Warsaw, Poland). In the main dispute, the Prokurator Generalny (Public Prosecutor General) and the Rzecznik Praw Dziecka (Commissioner for Children’s Rights) are seeking the suspension of the enforcement of the final order given by the Regional Court of Wrocław on 15 June 2022, and of the final order given by the Sąd Apelacyjny w Warszawie on 21 September 2022 in the action brought by T.C., with M.C. as an intervening party, to obtain an order requiring children to be returned to Ireland, and the application lodged by T.C. seeking a declaration stating that the final decision is enforceable.

This post, written by Estelle Gallant, who is a Professor at the University of Toulouse Capitole, is the sixth in a series of posts concerning the proposed codification of French Private International Law. It is split into two parts: part one appears below, whereas part two will be published tomorrow. Previous posts relating to the French Draft Code addressed the issues of renvoi, foreign law, the recognition of marriages and companies. A German perspective on the draft was also offered here.

The French draft code of private international law devotes an entire sub-section to parentage, comprising five subdivisions (labelled ‘paragraphes’ in French). They distinguish various aspects of international parentage, which is certainly a good initiative: biological parentage, medically assisted parentage with a third-party donor, surrogate motherhood carried out abroad, the effects of parentage and adoption are thus covered by Articles 59 to 70 of the draft code.

Currently, the French Civil Code contains fragmented provisions on biological filiation (Articles 311-14 to 311-17), on the one hand, and adoption, on the other (Articles 370-3 to 370-5). Case law has supplemented these provisions.

The draft Code devotes a first subdivision to biological parentage, containing three articles articulated around a general rule (Article 59 of the draft Code) and two special rules (Articles 60 and 61 of the draft Code). These three provisions are presented by the drafters (see page 35 of the report on the draft code) as a recast of the existing system (see above, Articles 311-14 to 311-17 Civil Code). Indeed, analysis shows that the draft takes up the existing legal structure and system. Only the general rule is really recast, the two special rules being merely reworded and clarified at the margin.

This commentary will briefly present the general rule on biological parentage pursuant to Article 59 of the draft code; the special rules laid down in Articles 60 and 61 will be analysed in a later post. Within the general rule, the replacement of the national law of the mother by the national law of the child is the most positive contribution of the draft (see infra).

By stating that “unless the present Code provides otherwise, the establishment and contesting of parentage” are governed by the national law of the child, the rule in Article 59 is presented as a general  principle. It means that the rule applies in the absence of a special rule.

Scope of Article 59

Article 59(1) of the draft Code refers to “the establishment and contesting of parentage”, whereas the provision currently in force refers to “parentage”. The clarification is useful in that it improves the readability of the provisions.

The text contains an unprecedented clarification as regards the inclusion in the scope of the article of the settlement of conflicts of parentage (Article 59(2)). The solution is marked by a certain logic and has to be combined with the special rule in Article 60. This latter provision is specifically concerned with voluntary acknowledgements of children (ie declaration by a person that he is the parent (typically father) of the child) and will be analysed in a later post.

New Connecting Factor

The current Article 311-14 of the Civil Code, by designating the national law of the mother on the day of the child’s birth to govern his or her filiation, is now the subject of unanimous criticism, in particular for its unequal and unspecific nature. The draft thus seeks to respond to the criticism by designating the child’s national law, a proposal that had been made by scholars as early as 1972. That said, the solution will remain relatively isolated, since in comparative private international law it is the connection to the child’s habitual residence that is generally retained.

Like the current text, the draft provides a solution to the change of nationality (conflit mobile) by fixing the connection to the child’s nationality on the day of birth. The solution is to be approved.

Public Policy Clause

One of the strongest criticisms levelled at the connection to the mother’s nationality was that it had the defect of preventing the establishment of the paternal parentage when the mother was of a personal status prohibiting the establishment of paternal parentage out of marriage, even in the presence of a French defendant or a French child or a child residing in France. Although the public policy exception may have been used by case law to cancel this result, its systematic use in such cases is only recent (Civ. 1ère, 26 October 2011, no. 09-71.369 ; Civ. 1ère,  27 September 2017, no. 16-19.654 ; Civ. 1ère, 16 December 2020, no. 19-20.948).

It may be noted that the draft Code provides for precisely this hypothesis in Article 59(3):

If, by reason of discrimination related to the circumstances of his or her birth, the [applicable] law denies the child the right to establish his or her filiation, French law shall apply, provided that the French courts have jurisdiction under the present Code.

The rule can be analysed as a special public policy clause allowing French law to be substituted for the prohibitive foreign law, if the French courts are seised. The link required between the situation and the territory of the forum for the exception to be triggered is fulfilled if French courts have jurisdiction under French rules of international jurisdiction. Pursuant to Article 34 of the draft Code, the courts with jurisdiction in matters of filiation are those of the place of domicile or habitual residence of the child.

The alignment between the criterion of jurisdiction and the criterion of triggering public policy is interesting and will make it possible, more than in the past, to cover all situations that are likely to trigger the public policy exception, i.e in case of strong proximity to France (e.g. French child or child residing in France, but also, above all, French defendant or defendant residing in France).

Diego Zambrano, Mariah Mastrodimos and Sergio Valente (Stanford Law School) have posted The Full Faith and Credit Clause and the Puzzle of Abortion Laws on SSRN.

The abstract reads:

Even before Dobbs overturned Roe v. Wade, states and legal observers were debating the constitutionality of another abortion-related law: Texas SB8. In mid-2021, Texas adopted a powerful new anti-abortion bill that barred anyone from performing abortions in the state of Texas starting at six weeks of pregnancy. But instead of empowering government officials to enforce its provisions, SB8 relied entirely on private lawsuits. The Texas abortion law triggered a discussion over the use of private enforcement actions to attack federal constitutional rights. Critics argued that Texas indirectly nullified the then-established constitutional right to abortion, that the Supreme Court surrendered traditional tools to review state legislation, and that SB8’s private enforcement regime was a procedural Frankenstein that violated due process norms. These discussions remain relevant even after the Supreme Court’s overturning of Roe because blue counties with elected prosecutors may refuse to enforce state criminal abortion laws, and states will continue to consider private enforcement schemes to regulate abortion, interstate travel, and other individual rights. Indeed, California recently adopted a gun control statute that is modeled on SB8’s private enforcement scheme.

Most importantly, for our purposes, some states like California have countered SB8 with legal provisions that seek to shield in-state residents from out-of-state claims and even prohibit the enforcement of SB8 awards. The question, then, is not only whether new private enforcement schemes can survive constitutional challenges but whether other states can respond by shielding their own residents.

In this essay we focus on the constitutionality of one legislative response to SB8 adopted by California—AB 1666, a law that seeks to shield in-state medical providers from SB8-style actions by prohibiting California courts from serving as a venue for SB8 claims and barring enforcement of Texas SB8 judgments. California’s main concern was that California doctors could face crippling liability under SB8 for prescribing abortion pills via telemedicine to patients in Texas. The Constitutional problem, however, is that AB1666’s provisions will face challenges under the Full Faith and Credit Clause of Article IV (the “FFC”). This raises a wealth of questions about conflict of laws, interstate relations, horizontal federalism, and the federal Constitution.

In a sense, the FFC is the unheralded workhorse of the original constitution, single-handedly maintaining a system of federalism in which states are obligated to recognize and enforce other states’ laws and judgments. Without it, states would be free to ignore each other’s’ laws, weakening any semblance of a national union and lending a hand to political polarization. Indeed, growing polarization will increase pressure on the FFC, as states seek ways to battle each other over topics like abortion, guns, and LGBTQ related laws.

Focusing specifically on the interaction of California’s AB1666, Texas SB8, and the FFC, we argue that California will probably be able to take advantage of exceptions to the FFC to defend its pro-choice laws. An analysis of recent doctrine demonstrates that California’s venue bar is likely constitutional. The judgment enforcement provision, however, will face trickier challenges and its constitutionality under the FFC is too close to call. The central question going forward is whether courts will interpret the FFC in a flexible and pragmatic manner—allowing for capacious exceptions—or will, by contrast, apply a tight leash on state legislative schemes.

Prompted by a kind invitation to participate in the International Weekend  of ABILA (American Branch of the International Law Association, NY, 20-22 October 2022), I took a moment to reflect about past achievements and future challenges for private international law (PIL) in the European Union.

We were three speakers in the panel (Karin Kizer and David W. Rivkin  also took part), introduced and moderated by Ronald A. Brand, Michael S. Coffee and Louise Ellen Teitz. The description of the panel read:

This panel will focus on the institutions, players, and issues that are important in the global development of rules of private international law. The panelists will include a global representation of institutional and practitioner perspectives. The discussion will be built around a set of questions dealing with both current practical issues raised by private international law developments and projections for the future.

We were asked to include arbitration in the presentations.

The assignment proved not easy. I confess I got stuck at the very first stage, i.e., how to define ‘achievements’ and ‘challenges’ in PIL: are they different when the ‘PIL’ under examination is of European source?  I guess the answer is that, indeed, EU instruments and case law (of the Court of Justice) in PIL exist as part of a bigger plan: they serve European integration. By way of consequence, assessing PIL developments requires evaluating whether they promote integration or, on the contrary, act as a hindrance to it.

The next question would then be what ‘integration’ entails, how to measure recent PIL contributions of the EU legislature and of the Court thereto, and what future challenges to integration, posed specifically in the area of judicial cooperation in civil and judicial matters, can be predicted at this stage.

As fascinating as (for instance) the impact on mutual trust of the threats to courts and judges’ independence in some EU countries may be, or whether imposing informational obligations to the Member States creates more transparency or is rather counterproductive, upon reflection a pure ‘European-integration’ approach seemed unfit for the purposes of the ABILA invitation. I gave it up; the topic may still be worth for further thought in another context. Considering the likely (American) audience attending the ILW of ABILA, a walk through the latest developments in EU law and the case law of the Court of Justice looked more appropriate – and already proved too much for the time I had .

From this point of departure, I was happy to report that the political attention to judicial cooperation in civil and commercial matters has not declined in the last years. The legislature has obliged adopting new regulations (Regulation 2016/1103 on matrimonial property regimes; Regulation 2016/1104 on the property consequences of registered partnerships), amending  existing ones (Regulation 2015/2421 amending the Regulations on the small claims and the order for payment procedures), and also recasting some (Regulation 2015/848 on insolvency proceedings; Regulation 2019/1111 on matrimonial matters and matters of parental responsibility; Regulation 2020/1783 on taking of evidence; Regulation 2020/1784 of the European Parliament on service of documents).

Indeed, most of the legislative activity of the last decade in the field of PIL is inward-looking. It focuses on strengthening judicial cooperation in the ‘inner circle’ composed of Member States: the task is far from being complete.

From a purely legal (as opposed to political) standpoint, a little bit more surprising is that in some legal instruments a concern for the EU-citizens is made explicit, even where the rules at hand would apply almost equally to non-EU-rooted claimants or defendants: see recital 1 of Regulation 2019/1111; or recitals 8, 32 or 35 of Regulation 2016/1103.

In comparison, the outward-looking activity of the EU lawmaker remains restricted. That is not to say that it has not progressed, both in quantity (meaning, accession to international conventions on PIL, as well as decisions on acceptance of accession of other countries), and in approach. When adopting new legal acts, in addition to resorting to laconic compatibility clauses, the EU legislature keeps an eye on being consistent with existing international conventions: Regulation 2019/1111 is a proof. A wish for judicial cooperation in civil and commercial matters appears in (some) agreements of a general scope, such as the Framework Agreement between the European Union and its member States, of the one part, and Australia, of the other part, in force since 22 October 2022: see its Article 32, comprising a specific mention to facilitating and encouraging the arbitral resolution of international civil and private commercial disputes.

That attention has been given to the civil prong of the European area of justice must be taken as good news.

Visiting the EU Parliament Legislative Train Schedule, the future looks not so promising. And yet there is much to do. There is definitely no PIL legislative overproduction in the Union; however, already with what exist it is easy to get lost.

One of the greatest difficulties in presenting European PIL as a true system to a third-State audience derives from the asymmetries of the instruments as regards geographical scope. The fact that there are several ‘Europes’ in Europe does not only impact on the practical manageability of the rules; it also jeopardizes declared valuable objectives, such as the concentration of closely related claims before the courts of a single Member State. This puzzling situation resulting from a variety of political motives affects above all family matters (in a large sense), but not only. The state of affairs is not likely to change any soon. For the future, the lawmaker should at least take care of making it visible. Sometimes he already does: because of the particular position of Denmark, Article 122, para 3, of the 2017 EU Trademark Regulation clarifies that reference to the Brussels regulation shall include, where appropriate, the Agreement between the European Community and the Kingdom of Denmark. Sometimes he does not: a provision similar to the one just referred to is missing in the GDPR.

Moving to the rules themselves, the newest ones on jurisdiction show an increasing degree of sophistication.

To ABILA I mentioned, by way of example, the provisions allowing for the limitation of proceedings (ad. ex., Article 13 of Regulation 2016/1103), which I see as a ‘distant cousin’ of the forum non conveniens doctrine. I also described the EU fora as being predictable, an assertion which was met with some skepticism in the panel. It is understandable. On paper, all grounds for jurisdiction in the European instruments obey to typical values (certainty, proximity) and reflect the outcome of balances (between the right of access to court of the claimant, and the right to a due process of defendant, with the necessary bias to protect one of the parties or to promote a particular substantive policy, as the case may be). In practice, reality beats the imagination of the legislator and puts the system continuously to a test.

Faced with a problem common to all legal systems, what still makes the European Union unique is the preliminary ruling mechanism (beyond the rightness or wrongfulness of the rulings: the Court can’t please everyone). Its very existence opens up the possibility of reacting to changes uniformly and in a relative short time. When requested by a national jurisdiction, no matter whether first instance, first or second appeal, the Court of Justice’s intervention to adjust the written rules or to shed light on their limits is not a choice – no certiorari.

In civil and commercial matters, the prototypical example of a need for constant adaptation are torts in the internet. Strings of requests for preliminary rulings get to Luxembourg based on variations of very similar facts, pushing the task of the Court of Justice to the verge of the distinction between interpretation and application of the European rules (see C-172/18, AMS Neve, and C-104/22, Lännen, as an example). That the workload of the Court does not decrease, but just the opposite, is to me a sign of trust and of good health of the system, thus an achievement.

In the area of enforcement there is much pending. The big European accomplishments in the last years remain confined to the free movement of titles from and to Member States. The (partial) abolition of exequatur, the possibility to ask for a European account preservation order, the availability of certificates and standards forms to  ease and speed the application for enforcement in a country other than that of delivery of the judgement… benefit Member States’ decisions.

Creditors should be aware that the recent ruling of the Court of Justice in C-568/20, H Limited, does not open wide a door to titles from third States. In my reading of the Court’s decision (which may be wrong), the Brussels I bis Regulation is still limited to the recognition and enforcement in a Member State of decisions of other Member States. It applies, after a foreign judgement has been recognized, to the steps following said recognition, such as an order for payment (if adopted in full compliance with the conditions set forth in the EU regime). The entry into force of the 2019 Hague Convention, when it takes place, will ease the enforcement of non-European titles only to some extent. No doubt there is room for improvement.

Finally, there was, of course, arbitration. In the panel, the discussion revolved around arbitration in the aftermath of the Achmea (C-284/16) and Komstroy (C-741/19) rulings.

I fail to see a difference for commercial arbitration in the pre- and post-Achmea scenarios (in this line, para 54 of C-284/16, resumed in C-741/19): at least, in theory. In any event, decisions such as C-700/20, London Steam-Ship Owners’ Mutual Insurance Association and earlier ones indicate that the main game is played elsewhere.

Among the many doctrinal suggestions for the recast of the Brussels I bis Regulation some focus on arbitration. Personally, I doubt the Commission wants to engage once again in the debate. Whatever the outcome of the ongoing revision of the Regulation, I presume Article 73, para 2, will remain. If this is so, a general line of reasoning of the Court regarding compatibility clauses is worth recalling: said clauses ‘cannot have a purport that conflicts with the principles underlying the legislation of which [they are] part’ (C‑533/08, TNT Express Nederland, at 51, and C- 452/12, Nipponkoa, at 37, on the relationship of the Brussels regime and the Convention on the Contract for the International Carriage of Goods by Road (CMR)). Difficult to imagine that Article 73 could constitute an exception in this regard, or the reasons why.

I did not have the time to present these thoughts in detail, nor other reflections regarding, among other, conflict of law rules. In exchange, I had the pleasure to listen to my two co-panelists on developments in the US and, quite intensively, in the already mentioned concerns of the arbitration world. A summary by S. Labi can be found in Oil-Gas-Energy-Mining-Infrastructure Dispute Management (OGEMID).

The author of this post is Lydia Lundstedt, who is a Senior Lecturer at the Stockholm University.

On 20 October 2022, Advocate General Szpunar delivered his opinion (not yet available in English) in Grand Production (C-423/21) on the interpretation of Article 3(1) of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society.

Marta Requejo Isidro reported on the questions referred by Oberster Gerichtshof (Austria) here.

In essence, the first question in the case is whether a streaming platform operator that retransmits tv broadcasts can be said to communicate works contained in those broadcast to the public in the meaning of Article 3(1) when internet users circumvent geo-blocking measures that the operator put into place to block access to the EU territory. Article 3(1) reads:

Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.

Background

The plaintiff, Grand Production d.o.o., a company incorporated under Serbian law, produces audio-visual entertainment programmes which are broadcast on Serbian territory by a Serbian broadcaster. The third defendant, GO4YU d.o.o Beograd (hereinafter GO4YU), also incorporated under Serbian law, has an agreement with the Serbian broadcaster to retransmit the broadcasts on its streaming platform. GO4YU Belgrade does not have the right however to retransmit Grand Production’s programmes outside Serbia and Montenegro and must block access to these programmes outside these territories. GO4YU’s platform is otherwise available both inside and outside Serbia. The first and fourth defendants are Austrian companies related to GO4YO that market the platform and conclude contracts with subscribers of the platform and the second defendant is a chairman of the board and sole shareholder of one of these related companies.

Grand Production claims that the defendants are infringing its copyright because its programmes are accessible on GO4YU’s platform to users worldwide. It claims that users can circumvent GO4YO’s geo-blocking measures and that GO4YO is aware of this. Grand Production applied to the Austrian courts for world-wide interlocutory measures against all defendants but only succeeded in obtaining an order against GO4YU Belgrade limited to the territory of Austria. Grand Production appealed to the referring court.

Platform Operator Infringes if Works are Accessible in the EU …

AG Szpunar opined that concept of ‘communication to the public’ within the meaning of Article 3(1) applies to a situation where the operator of a streaming platform retransmits works contained in a television broadcast originally made outside the EU, when the works are accessible without restriction within the EU (paras 22-26).  Szpunar explained that the CJEU’s decision in ITV Broadcasting (C-607/11) made clear that Article 3(1) covers a retransmission of works in a television broadcast where the retransmission is made by an organisation other than the original broadcaster, over the internet, even though the other organization’s subscribers are within the reception area of the television broadcast and may lawfully receive the broadcast on their televisions (para 22).

Szpunar explained that the fact that the subscribers in the ITV case were in the reception area of the television broadcast did not mean that the ITV case did not apply in a situation where the subscribers were not in reception area of the television broadcast. Szpunar noted that the CJEU made this clarification to respond to the argument that there was no “new public”, that is, a public different from the public to which the original television broadcast was directed. The CJEU held that the new public criterion was not relevant where the internet retransmission was made by different technical means from the original television broadcast.

The AG concluded that if an internet retransmission is also available outside the territory in which the original television broadcast was received, it is necessarily addressed to a wider audience than that of the television broadcast in question and therefore a fortiori constitutes a communication to the public within the meaning of Article 3(1) (para 23).

Szpunar also explained that the fact that the original television broadcast is directed at a territory outside the EU does not preclude a retransmission of that broadcast on the internet from being regarded as a communication to the public within the meaning of Article 3(1), ‘in so far as that retransmission is available in the territory to which the [Infosoc] directive applies.’ (para 25).

… unless the Operator Uses Geo-blocking Measures

AG Szpunar opined however that if an operator of a streaming platform that retransmits television broadcasts containing works uses geo-blocking measures, it does not infringe the communication to the public right in Article 3(1), even though users circumvent these measures to access the works on the territory of the EU (para 45).

AG Szpunar explained that pursuant to CJEU case law, digital rights management tools which include geo-blocking can give rise to legal effects under EU law (para 31). AG Szpunar referred inter alia to the CJEU’s decisions in Svensson (C-466/12) and VG Bild-Kunst (C-392/19), where the CJEU explained that the operator of a website could use access restrictions and anti-embedding measures to limit the public to which the works contained therein are communicated and that anyone circumventing these restrictions would communicate the works to a new public. AG Szpunar maintained that similar reasoning could be applied to geo-blocking measures such as those at issue in the case at hand:

If the copyright owner (or its licensee) has applied such a blocking measure, its transmission is directed only to the circle of persons who access the protected content from the territory defined by the copyright owner (i.e. the territory where access is not blocked). The rightholder therefore does not make any communication to the public in other territories.

If Grand Production’s entertainment programmes on GO4YU Belgrade’s streaming platform are subject to geo-blocking in such a way that access to them can in principle be obtained only from Serbia and Montenegro, GO4YU Belgrade does not carry out any communication of these programmes to the public within the European Union. (para 36-37) (my translation).

AG Szpunar explained that the mere fact that the operator of the platform is aware that users might circumvent the geo-blocking measures is not sufficient for holding the operator responsible, but that the situation would be different if the operator had “deliberately applied ineffective” geo-blocking measures (42-44).

With respect to the second question which concerned whether the related companies could be directly liable for the communication to the public, AG Szpunar opined that companies that have no influence on either the content made available on the platform or on the geo-blocking measures do not themselves communicate the works to the public within the meaning of Article 3(1) (46-53).

Side-steps whether the “Centre of Interests” Basis for Jurisdiction Applies to Copyright Infringements on the Internet

AG Szpunar proposed that the referring court’s third question on the interpretation of Article 7(2) of the Brussels I bis Regulation be dismissed because it was not relevant to the outcome of the dispute in the case at hand.

In essence, the national court asked whether the CJEU’s case law on violations of personality rights on the internet should be applied to copyright infringements on the internet. The referring court noted that the CJEU’s case law on the application of Article 7(2) to copyright infringement on the internet had been criticized. Pursuant to this case law (Pinckney (C-170/12) and  Pez Hejduk (C‑441/13)), the CJEU held that given the territorial nature of copyright protection, a court seised on the basis of the occurrence of damage within its territory has jurisdiction to rule only on the damage caused within its own territory and that the courts of other Member States retain jurisdiction to rule on the damage to copyright caused in their respective territories.

This is in contrast to the Court’s case in Bolagsupplysningen and Ilsjan (C-194/16) and eDate Advertising and others (C-509/09 and C-161/10) on violations of personality right on the internet, where the courts of the Member State where the victim has its centre of interests has jurisdiction to rule on all damage and can hear actions for rectification and removal of unlawful content.

AG Szpunar explained however that Article 7(2) of the Brussels I bis Regulation is not applicable to the case at hand. The third defendant is domiciled outside the EU (in Serbia) so in accordance with Article 6(1) of the Brussels Recast, the Austrian courts are to apply their national rules on jurisdiction. The other three defendants are domiciled in Austria so in accordance with Article 4 of the Brussels Recast, the Austrian courts’ jurisdiction is not territorially limited. Moreover, AG Szpunar noted that there is no indication that Grand Production (the would-be victim) has its centre of interest in Austria.

Comment

I was surprised that AG Szpunar did not refer to the CJEU case law in Football Dataco (C‑173/11) concerning an infringement of a sui generis database right and L’Oréal (C-324/09) concerning trade mark infringement where the Court held that the mere fact that a website containing protected content (e.g. data or a trademark) is accessible in a particular Member State is not sufficient for concluding that the operator of the website is infringing in that Member State (see Football Dataco (C‑173/11), para 36-41 and L’Oréal (C-324/09), para 64-67).

The CJEU explained that if mere accessibility was sufficient, websites, although obviously targeting persons outside the territory of a Member State, but nevertheless technically accessible in that State, would wrongly be subject to the application of that Member State’s laws. The CJEU held that it was up to the national courts to assess on a case-by-case basis whether there is evidence that discloses an intention on the part of the operator to target persons in that Member State (or the EU in the case on an EU trademark).

According to the CJEU, some factors that could disclose such an intention were whether the content of the website was of particular interest to users in the Member State, whether the website operator’s renumeration was based on the number of users from that Member State, whether the Top-Level Domain was a country code of the Member State. I agree with AG Szpunar’s conclusion that an operator that uses effective geo-blocking measures does not disclose an intention to target persons in the blocked Member State. That said, the mere fact that a website operator neglects to use such measures should not automatically lead to the conclusion that the operator infringes in every Member State where the website is technically accessible.

With respect to question about the interpretation of Article 7(2), I think the CJEU’s case law is clear that the centre of interest basis of jurisdiction does not apply to infringements of intellectual property rights due to the territorial nature of protection. This is certainly the case for the economic right associated with copyright. The situation might be different however if an author alleged an infringement of moral rights. This was however not the case here. Moreover, as AG Szpunar rightly explained, Article 7(2) was not applicable to the case.

This post was written by Hans van Loon.

As reported in this blog before the European Commission on 23 February 2022 adopted a proposal for a directive on corporate sustainability due diligence.

At its annual meeting in 2021, the European Group for Private International Law (GEDIP) had adopted a Recommendation to the EU Commission concerning the PIL aspects of corporate due diligence and corporate accountability. The EAPIL blog covered this development, too.

While some of the recommendations proposed by GEDIP are reflected in the Draft Directive, the Draft fails to take into account several crucial recommendations concerning judicial jurisdiction and applicable law. This will detract from its effectiveness.

In particular:

• The Proposal, while extending to third country companies lacks a provision on judicial jurisdiction in respect of such companies;
• The Proposal, while extending a company’s liability to the activities of its subsidiaries and to value chain co-operations carried out by entities “with which the company has a well-established business relationship”, lacks a provision dealing with the limitation of the provision on co-defendants in the Brussels I bis Regulation (Article 8(1)) to those domiciled in the EU;
• The Proposal lacks a provision allowing a victim of a violation of human rights to invoke, similar to a victim of a violation of environmental damage under Article 7 of Regulation 864/2007 (Rome II), also the law of the country in which the event giving rise to the damage occurred, and does not prevent companies from invoking a less strict rule of safety or conduct within the meaning of Article 17 of Rome II;
• The provision of the Proposal on the mandatory nature of the provisions of national law transposing the Directive (Article 22 (5)) is insufficient because (1) the words “in cases where the law applicable to actions for damages to this effect is not that of a Member State” are redundant and (2) all these provisions of national law transposing the Directive should apply irrespective of the law applicable to companies, contractual obligations or non-contractual obligations.

GEDIP therefore, on the occasion of its meeting in Oslo, 9-11 September 2022 adopted a Recommendation concerning the Proposal for a directive of 23 February 2022 on Corporate Sustainability Due Diligence, following up on its Recommendation to the Commission of 8 October 2021. The text of the Recommendation can be found here.

Jonathan Harris and Campbell McLachlan are the editors of Essays in International Litigation for Lord Collins (OUP, 2022). As its title makes clear, this is a collection of essays written to honour Lawrence Collins, who was a leading practitioner (partner at Herbert Smith, then judge, eventually on the UK Supreme Court), but also the general editor of the leading English work on private international law, Dicey, Morris and Collins on the Conflict of Laws.

This book contains a collection of essays written by many jurists who have been privileged to count Lawrence Collins as friend, mentor, and colleague over the course of a remarkable career of more than fifty years in practice and at the Bench. Lawrence’s own contribution is coincident with the rising importance in practice of issues in the conduct of international litigation. It also considers cross-border litigation as it is developing globally and the role of the national judiciary in international cases. The book highlights the reshaping of English private international law, particularly following the withdrawal of the United Kingdom from the European Union. It also discusses the development of international arbitration and the impact of public international law.

The contributors include Jonathan Harris, Horatia Muir Watt, Fausto Pocar, Hans van Loon, Elizabeth Gloster, Campbell McLachlan, David Lloyd Jones, Richard Aikens, Andrew Dickinson, Trevor Hartley, Alex Mills, Jonathan Mance, Linda Silberman, Frank Iacobucci, David McClean and Peter North.

More information can be found here.

In its judgment in the case of ROI Land Investments, C-604/20, rendered on 20 October 2022, the CJEU discussed two key features of the employment protection mechanisms of the Brussels I bis Regulation.

Firstly the Court clarified who is to be considered an employer by holding that the employer is not necessarily the entity that formally concluded the employment contract with the employee. Secondly, the CJEU held that the Regulation’s rules on jurisdiction over defendants domiciled outside the EU are mandatory and exclusive. More favourable national jurisdictional rules for the employee do not trump the rules of the Brussels I bis Regulation.

Legal Background

Employment contracts are subject to special jurisdiction rules in the Brussels I bis Regulation in order to protect the employee as being the typically weaker party. The employment protection mechanisms of the Regulation give an employee more forum shopping opportunities than an employer as well as limit the possibility to include forum selection clauses in employment contracts. Also, the special jurisdictional rule that gives the employee a chance to initiate proceedings in the member state where he or she habitually carries out work is one of the extraordinary rules of the Regulation that applies regardless of whether the defendant is domiciled in an EU member state or elsewhere.

Facts

In November 2016, a German labour court held that the termination of an employment contract between a German employee and a Swiss company was unlawful. According to the judgment, the employer should pay the former employee outstanding remuneration amounting to 442 500 USD. Shortly after the judgment, the Swiss company went bankrupt.

As the former employee had not received the outstanding remuneration from the Swiss company, he filed a lawsuit against the Canadian parent company, ROI Land Investments, on the grounds of a “patron agreement”. In the patron agreement, the Canadian parent company had assured liability for the obligations of the Swiss subsidiary. In addition to the patron agreement, the employee had actually initially been hired directly by the Canadian parent company before his employment contract was transferred to the Swiss subsidiary.

When suing the Canadian company in German courts, issues of how the patron agreement was to be characterized under the Brussels I bis Regulation arose. The former employee argued that German courts should have jurisdiction under the Brussels I bis Regulation’s rules on either employment contracts or the rules on consumer contracts. Whereas the court of first instance concluded that there was German jurisdiction, the court of appeal came to a contrary conclusion even if the patron agreement was characterized as a consumer contract.

In its request for a preliminary ruling from the CJEU, the German Supreme Labour Court (Bundesarbeitsgericht) presented a third way of characterizing the patron agreement by noting that it under German law, it would be considered a surety bond (Bürgschaft). On the other hand, the Bundesarbeitsgericht noted that no employment contract would have been made without the patron agreement from the Canadian parent company. In essence, the main legal issues can be summarized as regarding whether the patron agreement should be characterized as an employment contract and if the jurisdictional rules of the Brussels I bis Regulation must be applied in relation to a defendant domiciled outside the EU.

Who is an Employer?

The first question that the CJEU interpreted in its judgment was whether the patron agreement could consitute an employment relation that triggers the special jursidictional rules for such contracts found in section 5 of the regulation. In the case at hand, the answer to that question boiled down to whether the Canadian mother company could be seen as an “employer”.

Previously, the CJEU has ruled on the employee notion under the Brussels I bis Regulation. First, in Holterman Ferho Exploitate, C-47/14, the Court held that also a CEO could be considered an employee if he “for a certain period of time performed services for and under the direction of that company in return for which he received remuneration”. According to the CJEU, the subordination prerequisite (“for and under the direction of that company”), could be met also for persons in management positions as long as their ability to influence the actual governing body of the employer corporation is “not negligible” (Holterman Ferho Exploitate, p. 47).

A few years after the Holterman Ferho Exploitate judgment, the CJEU was given an opportunity to develop what was meant by a not negligible influence under the equivalent rules in the Lugano II Convention in Bosworth and Hurley, C-603/17. Here, the CJEU held that even if the shareholders of the employer company have the power to terminate the contract for a CEO, the CEO is not to be considered an employee if “that person is able to determine or does determine the terms of that contract and has control and autonomy over the day-to-day operation of that company’s business and the performance of his own duties”.

ROI Land Investments, completes the notion of employment relation under EU private international law by clarifying that not only the formal employer, but also the actual employer may be sought under the special jurisdictional rules for employment contracts. Both the court and the Advocate General came to the same conclusion in this part, but their arguments differ. Advocate General Jean Richard de la Tour proposed in his opinion, which is not yet available in English, that a third party who was directly benefitting from the work performed by the employee (“un intérêt direct à la bonne exécution dudit contrat”) should be considered an employer. In practice, the Advocate General’s and the Court’s solutions are probably not very different, but from a system-logical perspective, it is satisfactory that the Court sticks to the existing employee notion instead of inventing a new prerequiste. Now, the chosen employer notion mirrors the employee notion by focusing on the subordination relation.

According to the judgment, a patron agreement is not not necessarily in itself enough to stretch the employer notion (p. 33). To assess actual subordination between the presumptive employer and the employee, a national court must look into the employment history and, if there is e.g. a patron agreement, consider what that has meant for the employment relation (p. 35). In the case at hand, the patron agreement was a presumption for the entrance of the employment contract. Such a situation indicates that there is an employment relation.

Must the Jurisdictional Rules Apply when the Defendant is Domiciled Outside the EU?

Regarding the application of the Brussels I bis Regulation in relation to a defendant domiciled outside the EU, the CJEU noted that the clear exceptions in Article 6 trump national jurisdictional rules. As the rule in Article 21 p. 2 stating that an employee may initiate proceedings in the Member State where he or she habitually works is one of those, it shall be applied in the member states regardless of whether national rules would have been more favourable to the employee.

Consumer Contract?

As there had also been doubts in the national procedure if the patron agreement could be characterized as a consumer contract, the CJEU ruled also over this issue. Just in line with the wording of the consumer notion in Article 17 of the Brussels I bis Regulation, the court held that a prerequisite is that the contract is entered for purposes outside someone’s trade or profession. The court stressed that this is not only applicable for self-employed business owners, but also for employees (p. 55). According to the court, a patron agreement entered into between an employee and a third party not mentioned in the formal employment contract, cannot be considered to be outside the employee’s profession.

Conclusion

In a world where complex employment contract relations are common, the judgment may possibly hinder bad faith international outsourcing by giving employees the chance to claim liability from the actual employer. Still, the very special circumstances in the case make it a little hard to generalize how far the employer notion can be drawn in the future.

The infamous Wirecard scandal, which involved a German public limited company (AG) reporting non-existing assets and earnings to the tune of several billions of euros, has triggered a wave of litigation not only in Germany, but in several countries.

Facts

One such action was brought in an Austrian court by an Austrian investor against the German auditor of Wirecard AG. Simultaneously, he sued a member of Wirecard’s supervisory board domiciled in Austria (the Aufsichtsrat in the two-tier system of German corporate law). This happened to be the only member of the supervisory board living in the court’s district; the action did not include any other of the board members, who lived elsewhere.

Issue

Absent any other connection to Austria, it was disputed whether the Austrian court had jurisdiction over the German auditor of Wirecard on the basis of Article 8(1) of the Brussels I bis Regulation, which allows to combine several actions in one court. This presupposes that “the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments”.

Holding

The Austrian Supreme Court (OGH) held that the conditions of Article 8(1) of the Brussels I bis Regulation were met, and that consequently the Austrian court had jurisdiction over both the member of Wirecard’s supervisory board and the German auditor.

Rationale

The OGH underlines that the damage suffered by the claimant was allegedly caused through violations of duties by both defendants. It also stresses that the same remedy is sought against both of them.

In the eyes of the OGH, the fact that both actions are based on very different legal foundations would not matter. In this respect, the OGH refers to the CJEU‘s decision in Freeport, where the Court ruled that Article 8(1) of the Brussels I bis Regulation allows bringing two claims with different legal bases in the same forum (id., para 47).

The auditor alleged that the claimant had artificially created a situation to fulfil the conditions for the applicability of Article 8(1) and that the court should therefore reject the provision’s application in line with CJEU, Cartel Damage Claims (CDC) Hydrogen Peroxide, paras 32–33. However, the OGH held that the defendant did not provide any evidence for such fraus legis, and therefore considered Article 8(1) to apply.

Assessment

The decision stretches Article 8(1) of the Brussels I bis Regulation way beyond its limits.

The two actions barely had any connection with each other. The auditor and the supervisory board are not only entirely independent of each other and have very different relationships with the Wirecard AG and the claimant, they also have entirely different duties: While the auditor is required to provide a report about the financial situation of the client, the board has a duty to supervise the board of directors. The auditor’s report helps it in the exercise of this function and provides factual data for it. While it is true that both the auditor and the supervisory board must check the financial condition of the company, the supervisory board can generally rely on the auditor’s work and only has to check its overall soundness and consistency; on the other hand, it must also take into account other information than the report provided by the auditor. The court could thus come to the conclusion that the auditor is liable, but the supervisory board not, or vice versa. There is thus no danger of irreconcilable judgments, as required by Article 8(1).

Even more worrying is that the OGH closes its eyes to the claimant’s manipulation to fulfil the conditions of the provision. That the OGH requires concrete evidence from the claimant seems overly demanding; the facts already known speak for themselves. The action was directed against the only board member that was domiciled in Austria, and not against any other. Bringing this action was thus quite obviously nothing more than a thinly veiled scheme to drag the German auditor into an Austrian court. Nevertheless, the OGH chooses to ignore this reality and even refuses to submit a preliminary question to the CJEU as the Austrian court’s jurisdiction seems so clear.

The decision is an extreme example but may be illustrative of similar developments in other Member States. It is to be feared that Article 8(1) of the Brussels I bis Regulation may be abused for more schemes to create artificial bases of jurisdiction where none exists. The CJEU must close this door to such manipulations by making the conditions of the provision and the requirements for their disproof more explicit.

Symeon Symeonides (Alex L. Parks Distinguished Professor of Law at Willamette University – College of Law) has made available on SSRN a draft of his paper on Choice of Law in Torts Arising from Infringement of Personality Rights that is being published in the 6th issue of the Revue de droit des affaires internationales/ International Business Law Journal.

The abstract of the article reads as follows:

This Article is a contribution to a conference held at the University of Paris-V on the localization of injuries in international or multistate torts, including those arising from cross-border infringements of personality rights, such as defamation or invasion of privacy.

The Article necessarily takes for granted the European Union’s rules on jurisdiction and choice-of-law and proposes a new choice-of-law rule for infringement of personality conflicts, which were excluded from the scope of the Rome II Regulation of 2007.

The proposed rule would amend Article 7 of Rome II, which at present covers only environmental torts. The amendment would reverse the starting point of the choice-of-law process by making the lex loci commissi the default rule, calling for the application of the law of the state of the injurious conduct or omission. However, the amendment would also authorize the application of the law of the state of the resulting injury (lex loci damni) if: (a) the occurrence in that state was objectively foreseeable, and (b) the claimant formally and timely requests the application of that law.

The paper focuses particularly on infringements committed through the internet. These are seen as difficult because of the ubiquity and borderlessness of the internet and a number of additional factors, which include considerable differences among various countries substantive law, jurisdiction, and choice of law.

Symeonides is arguing that in the localization of damage in cross-border torts concerning infringement of personality rights the localization of the injury should not be the only determinative factor in choice-of-law decisions in these conflicts. According to the author a number of additional factors besides the locus of the injury should guide these decisions. These are the place of the injurious conduct, the parties’ domiciles, the place of their relationship if any, and the content of the laws of each contact state (for more sophisticated enquiries). Several objections can be raised against these additional factors given that they cannot be easily compressed into simple black-letter rules that would be in line with the aim of the Rome II to deliver legal certainty and predictability in the EU. The author discusses them in relation to each additional factor. However, the approach followed by Article 7 Rome II for environmental damages may present the legislator with this possibility given that several EU Member States follow it for choice-of-law rules concerning infringement of personality rights giving the victim the possibility to choose between two to four applicable laws. For the time being, Rome II expressly excluded from its scope non-contractual obligations arising out of “violations of privacy and rights relating to personality, including defamation” (Article 1(2) letter (g) Rome II).

The last part of the paper provides suggestion for replacing the present wording of Article 7 Rome II with a provision that would be broader and would cover cross-border torts such as human rights violations, infringement of personality rights as well as all other torts not covered by special provisions of Rome II.