EAPIL blog

The PAX Moot is a specialised moot court competition dedicated to students interested in Transnational Law and Private International Law issues. This year the Pax Moot Round is named after the Alegría Borrás Rodríguez (1943-2020).

The Borrás Round of the competition will require participants to deal with the complexities and nuances of how international conventions and European regulations interact with each other in the context of globalisation as well as situations such as Brexit where certain prior available instruments stop producing their effects. The case is grounded in the present challenging global events – the effects of COVID-19 virus on businesses and individuals, Brexit and environmental actions to reach carbon neutrality. The series of events to discuss involve the application of the Singapore Convention on Mediation and the European Order for Payment procedure.

The competition opens for the registration of the teams on 22 November 2022 and comprises a written and an oral round. The students participating in the PAX Moot will be required to address matters of jurisdiction, service of documents, settlement agreement and recognition of judgment in England.

More information about the competition and its timetable are available here. The rules of the competition are available here.

The new edition of the Commentary on EU-Zivilprozessrecht: EuZPR authored by Professor Dr. Dr. h.c. Peter Schlosser, Emeritus at the Ludwig Maximilian University of Munich, and Professor Dr. Dres. h.c. Burkhard Hess, founding Director at the Max Planck Institute Luxembourg, has just been released.

The revised and extended version of the commentary assesses and explains the ever-increasing importance of the coordination of cross-border civil proceedings in the European Area of Civil Justice. In an easy to handle style and with a specific look to the needs of legal practice, the commentary elucidates the entire acquis of the European procedural law in civil and commercial matters. The eminent authors comment the Brussels Ibis Regulation (being the core instrument of judicial cooperation in the Union), the EU-Regulations of the European Order for Payment, of the European Enforcement Order, the Small Claims Regulation and the Regulation establishing a European Account Preservation Order Procedure. The EU-Regulations on the Service of Documents and on the Taking of Evidence are equally commented. With regard to the latter, the commentary already provides valuable guidance on the forthcoming recasts of the upcoming regulations (applicable in 2022).

Extensive references to case law, especially of the European Court of Justice, but also of national courts and the legal literature are the building blocks of the Commentary. The authors equally focus on current challenges such as the ramifications arising from Brexit and the relations to other third states. Overall, this commentary is a must be for legal practitioners and for academics working in this field.

The European Parliamentary Research Service of the European Parliament has issued on November 18th, 2021, a Briefing on The United Kingdom’s possible re-joining of the 2007 Lugano Convention.

The summary of the briefing reads as follows:

The 2007 Lugano Convention is an international treaty that regulates the free movement of court judgments in civil cases between the Member States of the EU, on one hand, and the three EFTA states (Switzerland, Norway and Iceland), on the other. The convention effectively extends the regime of quasi-automatic recognition and enforcement of judgments that was applicable between EU Member States at the time under the Brussels I Regulation (No 44/2001).

Whereas the EU rules currently in force regulating the free movement of judgments in civil cases between the EU Member States – the 2012 Brussels I-bis Regulation (1215/2012) – bring about an even higher level of integration and presume, therefore, a very high level of mutual trust between the national judiciaries of the Member States, relations between the EU and EFTA Member States remain at the level of integration prescribed in 2001 by the Brussels I Regulation.

Following the expiry of the transition period provided for by the Withdrawal Agreement between the United Kingdom (UK) and the EU, the UK is no longer bound by either the Brussels I-bis Regulation or the 2007 Lugano Convention. Given the fact that the latter is open not only to EU and EFTA Member States, but also explicitly to third countries, the UK has made a bid to re-join the Lugano Convention. For a third country to become part of this legal regime, all parties to the convention must give their explicit consent. Whereas this has been the case with Switzerland, Norway and Iceland, the European Commission, acting on behalf of the EU as a party to the 2007 Lugano Convention, has indicated that it is not prepared to grant such consent, effectively blocking – for the moment – the UK’s reintegration within the Lugano regime of mutual recognition of civil judgments.

For the Commission, accession to the Lugano regime is bound up with the notion of close economic integration with the EU, presupposing a high level of mutual trust. Participation in the Lugano system should not therefore be offered to any third country that is not part of the internal market.

As announced earlier on this blog, the EAPIL Founding Conference will eventually take place on 2, 3 and 4 June 2022 in Aarhus, hosted by the Aarhus University.

Early bird registration for the conference ends on 30 November 2021. See here for further details.

A general presentation of the conference can be found here. See here for the full program as well as for details on venue, travel and accommodation.

For more information, please write an e-mail to Morten Midtgaard Fogt at mmf@law.au.dk.

The fourth issue of the Journal du droit international for 2021 has just been released. It contains two articles and several case notes relating to private international law issues, including the 2020 annual case-law review of EU private international law supervised by Louis d’Avout (University of Paris II).

In the first article, the International Law Association (ILA) pays tribute to the memory of Philippe Kahn (Hommage à Philippe Kahn, by Catherine Kessedjian, Geneviève Bastid Burdeau, Éric Loquin, Jean-Michel Jacquet, Marie Cornu, Ali Bencheneb & Franck Latty).

The English abstract reads:

Philippe Kahn was above all a researcher, an inventive person, an explorer. The French Branch of the International Law Association paid tribute to him on April 8, 2021. The tribute, in its entirety, is available on Youtube. The texts reproduced here concern only his scientific contributions highlighted by the authors in the various fields that his insatiable curiosity led him to tackle: international contracts, the financing of international trade, cultural heritage and the art market, outer space, to mention just a few aspects of his work.

In the second article, Gwendoline Lardeux (Aix-Marseille University) analyses some difficult private international law issues in real property matters (De certaines hypothèses délicates du droit international privé des immeubles).

The English abstract reads:

The autonomous concepts of European conflict of laws are progressively shaped, litigation after litigation, through Court of justice, as European substantive law as such is lacking. This jurisdiction is therefore referring to International private law goals to choose or reject any qualification. This is clearly the case for the immovable suit. The different regulations on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters provide indeed an exclusive jurisdictional competence to the courts of the situs rei « in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property » (see Reg. Brussels I bis, art. 24, 1°, al. 1er). Those both hypotheses are raising difficult legal qualification issues regarding numerous intricate contracts or institutions.

A full table of contents can be downloaded here.

An Austrian national (A) was born in 1975 as a woman. In 2010, at A’s request, the Austrian authorities changed A’ first name, and in 2016 A’s gender to “male”. A married a German male national in July 2019 in Berlin. On the same day, A gave birth to their common child there. The German authorities were unsure about how to enter A into the birth register.

On 21 January 2021, the Court of Appeal Berlin (Kammergericht) rendered a Solomonic judgment (docket number 1 W 1290/20, published in NJW-RR 2021, p. 387, paywall access here). It ruled that A was to be registered as the child’s mother, but that A’s gender was to be recorded as “male”. This solution was reached through applying a combination of the formal rules governing the birth register, conflict-of-laws rules, and an interpretation of substantive law.

The Court justified the registration of A as a “mother” by the formal procedural rules governing the German civil status (Personenstandsgesetz) as the lex fori. According to these rules, the person giving birth to the child is to be registered as the mother, independently of their gender. A’s status as a mother would follow from the fact that A had given birth to the child.

The Court also tried to justify this rather formalistic solution by the law applicable to the substantive legal relationship between A and the child. In order to do so, it had to identify the law applicable to kinship.

The Court highlighted that since the child has its habitual residence in Germany, German law applied to the relation of kinship (Article 19(1) 1 of the German Introductory Act to the Civil Code – EGBGB). Yet in addition to habitual residence, German international family law provides further connecting factors with the goal of establishing, as far as possible, a parent-child relationship. In particular, the relationship of descent from a parent can also be derived from the law of the state of this parent’s nationality (see Art 19(1) 2 EGBGB). In the present case, given A’s Austrian nationality, this would lead to Austrian law. Finally, kinship could also be established under the law governing the general effects of the marriage (Art 19(1) 3 EGBGB). Under German conflicts law, the general effects of same-sex marriages are, in the absence of a choice of law by the spouses, submitted to the law where the same-sex marriage is registered (Art 17b(4) EGBGB).  In the present case, this again led to German law. Hence, German and Austrian law apply to questions of kinship, with a preference for the law that is more likely to establish a parent-child-relationship.

A substantive problem is that the German Civil Code defines the mother of a child as the “woman who gave birth to the child” (sec. 1591 German Civil Code – BGB). A very similar provision exists under Austrian law (sec. 143 Austrian Civil Code – ABGB). Seemingly, these provisions do not allow a man to be registered as a mother.

However, the German Federal Court had previously held that the role of the mother and the female gender must always be attributed to the person giving birth to the child (Bundesgerichtshof, decision of 6 September 2017 – XII ZB 660/14). It is true that the Act on Transsexuals, on which the Federal Supreme Court had relied, was not applicable given that A had changed its name and gender abroad, i.e., under Austrian law. Nevertheless, the Berlin Court of Appeal followed the precedent set by the Federal Supreme Court. It argued that the notions “mother” and “woman” in sec. 1591 BGB would refer to a specific role in the procreation of the child, and were to be understood in a biological and not in a legal sense. Since A had given birth to the child, A would have to be considered as the mother and consequently also as a “woman” for the purposes of this provision.

The Berlin Court of Appeal also pointed out that A could not be registered as a father, despite being male. A did not meet the necessary requirements to be registered as the child’s father, as he was neither married to the mother at the time of the child’s birth, nor has his paternity been acknowledged or established by the court (sec. 1592 German Civil Code – BGB). Moreover, under German law, every child can only have one father and one mother. As A’s husband had been registered as the father, this role was precluded for A. The Court also pointed out that gender-neutral registration is not foreseen under German law.

In Austria, no special rules exist for transsexual persons as mothers. Yet the Court of Appeal pointed to the Austrian practice under which a woman who had changed her gender before giving birth to a child could be entered into the central civil status register as the mother. The result would be basically the same as under German law.

With regard to the recording of A’s gender in the birth register, the Berlin Court of Appeal referred to Art 7 EGBGB, which submits questions concerning the legal personality and legal capacity of natural persons to the law of their nationality. This provision would apply, by analogy, also to gender identity. Hence, Austrian law was applicable. The Court remarked that the Austrian authorities had issued a birth certificate for A with the gender “male”. Similar documents had been submitted for purposes of the wedding. The Austrian authorities had also recorded A’s gender as male when registering the child’s birth in the general civil status register. There could therefore be no serious doubt about A’s gender. The Austrian acts and documents would have to be respected in Germany. As a result, a man was registered as a mother.

The case illustrates the need for reform to German and Austrian family law. Both still are based on the assumption that the mother of a child is always a woman, which is no longer universally true, as illustrated by the present case. The Berlin Court of Appeal’s distinction between the sex in a biological sense and gender a legal sense can hardly convince when applied in a purely legal context. Where someone is recognised as having a certain gender, this must apply in all legal circumstances. The proper solution therefore would be to define the mother purely functionally as the person giving birth to remove the reference to a “woman” in both sec. 1591 German BGB and sec. 143 Austrian ABGB. This could be best done by a change of the law; in the absence of such reform, an adaptive interpretation is indispensable.

With regard to A’s gender, the Berlin Court of Appeal could have shortened its ruling. It should simply have accepted the Austrian documents on the basis of the CJEU case law that demands the recognition of civil status acts rendered in other Member States (see for the registration of names e.g. CJEU, C-391/09, Runevič-Vardyn and Wardyn). A conflicts analysis was therefore unnecessary in this context.

On 15 November 2021, the JURI committee of the European Parliament held a hearing on EU Private International Law. The focus was on issues that would need to be addressed in a review of the current rules, including as regards Corporate Due Diligence and SLAPPs (Strategic Lawsuits Against Public Participation).

Giesela Rühl (Humboldt University of Berlin, and Secretary General of EAPIL), Geert Van Calster (Leuven University), and Olivera Boskovic (Université Paris Déscartes) took part in the hearing.

The video recording of the hearing can be found here.

On 1 December 2021, at 3 pm CET, the University of Catania will host a webinar, in French, titled Différences culturelles et droit international privé de la famille (Cultural differences and Private International Law in Family Matters), organised by Pasquale Pirrone.

The main speakers are Jean-Yves Carlier (Catholic University of Louvain) and Léna Gannagé (Saint Joseph University, Beirut). Fabrizio Marongiu Buonaiuti (University of Macerata) and Roberto Baratta (Roma Tre University), among others, will also intervene.

Attendance is free, via Teams. Further details here.

On 11 November 2021, the Court of Justice of the European Union delivered its judgment in Bank Sepah v. Overseas Financial Limited (case C‑340/20).

The judgment clarifies the effect of the freezing of assets pursuant to European (and U.N.) sanctions on the right of creditors to attach the said assets.

In this case, the sanctions were the restrictive measures against Iran  implemented by Regulation (EC) No 423/2007 of 19 April 2007 and several subsequent regulations replacing it (‘the Regulations’). Regulation 423/2007 froze the assets and resources of certain listed entities. One of them was Iranian bank Sepah.

Article 1 (h) and (j) of Regulation 423/2007 provided:

‘freezing of funds’ means preventing any moving, transfer, alteration, use of, access to, or dealing with funds in any way that would result in any change in their volume, amount, location, ownership, possession, character, destination or other change that would enable the funds to be used, including portfolio management;

‘freezing of economic resources’ means preventing the use of economic resources to obtain funds, goods or services in any way, including, but not limited to, by selling, hiring or mortgaging them;

The issue was whether attaching preventively assets subject to such sanctions fell within these definitions and was thus forbidden. In this case, U.S. creditors were seeking to enforce a French judgment against bank Sepah and had sought enforcement and conservative measures. In a judgment of July 10th, 2020, the French supreme court for civil and criminal matters (Cour de cassation) considered that the situation was clear enough for enforcement measures, but asked the CJUE whether the Regulations prevented granting conservative measures as well.

The US creditors were Delaware companies Overseas Financial Limited and Oaktree Finance Limited. They were seeking to enfore a French judgment against Bank Sepah, a company established in Iran.

After obtaining partial payments made between 2007 and 2011, Overseas Financial and Oaktree Finance on 2 December 2007 requested that the French Minister for the Economy authorise the release of the outstanding amount pursuant to Article 8 of Regulation No 423/2007. Overseas Financial and Oaktree Finance brought an action for annulment against the implicit rejection of their request before the Administrative Court of Paris, which dismissed that action by judgment of 21 October 2013.

On 17 May 2016, Overseas Financial and Oaktree Finance issued formal notices of attachment and sale against Bank Sepah before attaching, on 5 July 2016, receivables, shareholder rights and transferable securities held by a French bank. By judgment of 9 January 2017, the enforcement court of Paris confirmed those attachments and their amount, including the interest provided for by the judgment of the Court of Appeal of Paris of 26 April 2007. While Bank Sepah accepted that it was required to pay the principal amounts ordered against it, it argued that it was not liable for the interest and it therefore contested the enforcement measures before that enforcement court. It inter alia argued that it could not be held liable for interest, taking the view that it had been prevented from paying its debt by a case of force majeure arising from the freezing of its assets by Regulation No 423/2007, which had the effect of suspending the running of that interest.

The French Cour de cassation referred two questions to the CJEU.

The first was concerned with the meaning of the concept of changing the ‘destination’ of the frozen funds under Article 1(h). The referring Court wondered whether a subsequent freeze of the assets by a national conservative measure amounted to such a change.

More specifically, the Cour de cassation ruled that, while it thought it likely that an enforcement measure transferring the ownership of the frozen asset would change its destination, it was less clear for conservative measures, which would not result in such a transfer to the benefit of the creditor.

The Cour de cassation insisted on particular feature of French conservative measures: they not only freeze assets, but they also grant an in rem right to the creditor, and thus a right to paid in priority over the relevant funds.

The second question was whether the origin of the claim that the creditor sought to enforce was relevant. In the case at hand, the claims of the U.S. creditors were unconnected to the Nuclear Programme of Iran, or any other activity which justified the sanctions.

As to the first question, the CJEU responded that the freezing of assets under the Regulations do prevent further attachement, even if such attachements are not enforcement measures.

46 In terms of measures such as those at issue in the main proceedings, which establish a right to be paid on a priority basis over other creditors in favour of the creditor concerned, it must be stated, as the Advocate General observed in points 55 to 61 of his Opinion, that such measures have the effect of changing the destination of frozen funds and are liable to permit the use of frozen economic resources to obtain funds, goods or services.

47 It follows that such measures fall within the concepts of ‘freezing of funds’ and ‘freezing of economic resources’ within the meaning of Article 1(h) and (j) and Article 7(1) of Regulation No 423/2007.

48 The fact that such measures do not have the effect of removing assets from the debtor’s estate cannot call that conclusion into question.

49 (…) the concept of ‘freezing of funds’ encompasses any use of funds which results, inter alia, in a change in the destination of those funds, even if such use of the funds does not have the effect of removing assets from the debtor’s estate.

As to the second question, the CJEU noted that the Regulations made no such distinction, and held that it should not be relevant for determining the scope, and effect, of the freezing of funds and resources.

The judgment is essentially an exercise of construction of the relevant regulations. Given the very broad language used by the European lawmaker, such exercise was bound to result in an inclusion of the relevant measures in the forbidden uses of the funds. The court does not conduct any purposive interpretation.

While conservative measures grant in rem rights under French, they do not under the law of other Member States. The CJEU responded to the question as framed, but it insisted that the issue was the change of ‘destination’. It seems, therefore, that conservative measures should be considered as falling within the scope of the freezing of funds irrespective of whether they grant in rem rights or not.

In October 2021, the Spanish Supreme Court had the opportunity to show its willingness to follow the Court of Justice and to give an example of a good practice in a matter related to the application of Article 7(2) of the Brussels I bis Regulation.

The order (auto) of 7 October 2021, was delivered by the Plenary of the Civil Chamber, with M. Ignacio Sancho Gargallo as reporting judge, against the background of an action for damages suffered as a result of an infringement of competition law.

In the case at hand, the Spanish company Garutrans Gasteiz S.L. filed a claim against Paccar Inc. and its subsidiary DAF Trucks NV, domiciled, according to the lawsuit, in San Fernando de Henares (Spain). The case was assigned to the Commercial Court No. 3 of Madrid, which declared the application admissible. After the attempts to serve the process at the address indicated in the claim failed, the plaintiff indicated two new addresses, one in the United States and another in the Netherlands.

The Madrid court, by order of 18 January 2021, declared ex officio its lack of territorial jurisdiction and pointed to the commercial courts of Vitoria as competent, arguing the defendants have their registered office outside of Spain and the DAF trucks were acquired in Vitoria, where the plaintiff is domiciled.

By order of 12 April 2021, however, the Commercial Court No. 1 of Vitoria declared itself incompetent as well on the basis that three of the four trucks had been acquired in Navarra. The situation was therefore one of a negative conflict of jurisdiction.

The Supreme Court ruled that the Madrid court’s declaration of incompetence was premature, since according to Article 28, para. 1, of the Brussels I bis Regulation it should have summoned the defendants (NoA: the Regulation imposes such duty only in relation to defendants domiciled in a Member State other than the one where the judge seats; nothing is said about other defendants), so as to give them the possibility of appearing and accepting jurisdiction in accordance with Article 26 of the Regulation, or rejecting it through the procedural tool to the purpose. Only after, and only provided the defendant(s) does not appear, the court seised is entitled to analyse its jurisdiction and to declare ex officio it has none.

What is interesting about the order of the Supreme Court, however, is not the final conclusion, but the Court’s statements showing its awareness and disposition to follow the Court of Justice’s decision C 30/20, Volvo, in order to identify the place of the damage in the framework of Article 7(2) of the Brussels I bis Regulation.

The Volvo ruling corresponds to a request from a Madrid Court. There, the Court of Justice explicitly asserts that Article 7(2) of the Regulation determines both international and territorial jurisdiction. Moreover, the Court recalls that the centralisation of jurisdiction before a single specialised court may be justified in the interests of the sound administration of justice: as AG Richard de la Tour had suggested in his opinion, the technical complexity of the rules applicable to actions for damages for infringements of competition law provisions may militate in favour of such a centralisation of jurisdiction. In its absence, the courts of the place where the goods were acquired are territorially competent. This notwithstanding, should the buyer not have purchased the goods affected by the collusive arrangements in question within the jurisdiction of a single court, territorial jurisdiction is conferred on the courts of the place where the undertaking harmed has its registered office.

As already said, the Spanish Supreme Court did not need to apply the above-mentioned solutions to the case at hand, but profited from the occasion to endorse them and to explicitly revoke its previous understanding of Article 7(2) of the Brussels I bis Regulation.

The University of Toulouse (France) will host a conference on Notary’s Role in Private International Law (L’office du notaire en droit international privé) organised by Estelle Gallant, on 25-26 November 2021.

The conference will include sessions on the role of notary as competent authority in the field of private international law, the reception and circulation of public documents, the drawing up of deeds by notaries as well as roundtables on divorce by mutual consent, property regime of couples and international successions.

Speakers will include numerous PIL specialists:

• Scholars : Hugues Kenkack (Toulouse), Fabienne Jault-Seseke (Paris-Saclay), Patrick Wautelet (Liège), Pierre Callé (Paris-Saclay), Christine Bidaud (Lyon 3), Hugues Fulchiron (Lyon 3), Eric Fongaro (Bordeaux), Michel Farge (Grenoble-Alpes), Hélène Péroz (Nantes), Nathalie Joubert (Bourgogne-Dijon), Sara Godechot-Patris (Paris-Est Créteil), Sandrine Clavel (Paris-Saclay), Marc Nicod (Toulouse), Lukas Rass-Masson (Toulouse), Estelle Gallant (Toulouse) & Cyril Nourissat (Lyon 3)
• Notaries: Caroline Deneuville (Paris), Richard Crône (Paris) and François Tremosa (Toulouse) & Jean-Christophe Rega (Mission Europe du CSN),
• Legal practionners working with notaries : Mariel Revillard, Marion Nadaud (Bordeaux) & Sophie Chalas-Kudelko (Lyon)

The full programme is available here. Online registration is open here.

It is common practice for children to be registered in the country where they are born or where they hold nationality. But what if these countries fail to do so? A judgment of 18 October 2021 rendered by a judge of first instance in Montilla (Spain) gives an answer, which was reported in the blog run by José Carlos Fernández Rozas and on the webpage of the Consejo General del Poder Judicial. The judgment can still be appealed.

A child was born in March 2020 in Oran (Algeria) to a national of Cameron; the father is unknown. The Algerian authorities failed to register the child. One year later, mother and child entered Spanish territory, where they have been living since in a refugee centre in Montilla.

The judge decided that the child should be registered in the Spanish civil register, despite the absence of a previous registration in the country of its birth or nationality.

The Spanish judge stressed that competence for registering the child’s birth lay first and foremost with Algeria, the place of its birth, and with Cameron, the country of its nationality. Since these countries failed to exercise their competence, the judge found that Spain had both the right and the duty to register the child. The legal basis for doing so would be Article 9(2) of the Spanish Act on the Civil Register (Ley 20/2011, de 21 de julio, del Registro Civil), which provides that events and acts that have taken place outside Spain shall be registered in the Spanish register when required by Spanish law.

Most interesting is where the judge found the requirement to register the event of the child’s birth. In this regard, he referred to the highest-ranking legal sources available. In particular, he cited the Universal Declaration of Human Rights, and the various rights it grants to the individual. The judge used these sources to formulate some very far-reaching and important legal propositions. He emphasised that the registration of a person’s identity is “one of the most essential manifestations of the recognition of the individual as such”. It would be “the only form by which society and the law accept its existence”, and it would “facilitate the exercise of all of the rights that the law bestows from the time of birth”. Without an entry in the civil register, there would be no liberty to respect, and no right to recognise.

On a more technical level, the judge referred to Article 6 of the Universal Declaration of Human Rights, which says that “Everyone has the right to recognition everywhere as a person before the law”. He also referred to the UN Convention on the Rights of the Child, which had been signed and ratified by Spain, Article 7(1) of which sets out that “[t]he child shall be registered immediately after birth …”.

The judge considered Article 7(1) of the Convention to be of direct and immediate effect because of its clear, precise and unconditional formulation. This was despite Article 7(2) of the Convention, under which the states party to the Convention shall implement the obligation to register, “in particular where the child would otherwise be stateless”. The judge argued that Article 7(2) was mainly focused on avoiding situations of statelessness, and that the registration was a condition prior to the granting of nationality because only persons recognised as having legal personality could be considered as nationals. In other words, the child had to be registered somewhere before nationality could be granted. Article 7(1) of the Convention would thus contain a binding obligation for Spanish tribunals to this effect.

The judge cited various other provisions, especially of the Spanish Constitution. Inter alia, Article 39(4) of the Constitution provides that “Children shall enjoy the protection provided for in the international agreements which safeguard their rights”.  He also referred to Article 96(1) of the Constitution, according to which validly concluded international treaties, once officially published in Spain, shall form part of the internal legal order.

The judgment requires the registration of children by local authorities where a child has been born abroad but not registered there. This is a significant principle that should also be followed by other nations. As a legal basis, they could use either the UN Convention on the Rights of the Child or, if they have not signed it, the Universal Declaration of Human Rights, which applies as customary international law.

Nevertheless, the judgment should not be overinterpreted. Even where a child has not been registered, it is entitled the plenitude of human rights, which exist from birth and are not preconditioned on registration. However, without being officially registered, the child (and also its mother) will encounter many difficulties in practical life. This is why registration is so important that it may be considered even as a human right that can be invoked everywhere.

— Special thanks to José Carlos Fernandez Rozas for his contribution to this post.

In a judgment of 9 November 2020, the Greek Supreme Court discussed a highly interesting issue, which is not often dealt with in practice. The question is whether foreign law (English law, in the circumstances) may apply to procedural acts due to take place in the forum (Greece), affecting directly the limitation of the action. Specifically, the issue had arisen of the consequences of the waiver of the lawsuit by the claimant/appellant, and the repercussions of its examination pursuant to either Greek or English law.

An insurance company, seated in the UK, provided insurance in connection with the contract for the sale of fuel concluded among the insured one and a ship carrier having seat in Greece. Due to an accident at sea, the insurance company reimbursed the insured one and, by endorsement, was handed over the bills of lading, which included a choice of English law. The insurance company, then, initiated proceedings against the carrier (which was also at the same time the shipowner) in Greece. Service of process took place on 7 July 2008, but on 16 February 2010 the claimant proceeded to the discontinuance of the action pursuant to Article 294 Greek Code of Civil Procedure. Ten days later, the insurance company filed a new action against the defendant, adding this time as defendant another company – notably the new shipowner – to which the ship was in the meantime sold and which incorporated the first one in its capacity of shipowner, succeeding in the related rights and obligations.

In the ensuing hearing before the Piraeus Court of first instance, both defendants pleaded that the action was time-barred, relying upon Article III(6) of the Hague-Visby Rules, which reads as follows:

Subject to paragraph 6bis the carrier and the ship shall in any event be discharged from all liability whatsoever in respect of the goods, unless suit is brought within one year of their delivery or of the date when they should have been delivered. This period, may however, be extended if the parties so agree after the cause of action has arisen.

The claimant countered that the first claim was filed within one year of the supposed delivery (which failed because of the accident). The discontinuance was made with the intention to correct some parts of the claim. The claimant supported that Greek law should apply. This would lead to the application of Article 263(2) Greek Civil Code, which allows the claimant to file a new claim within six months following the waiver of action. Should this happen, the interruption of limitation goes back to the filing of the initial action. Hence, in accordance with Greek law, this procedural act may not be interpreted as a complete and solemn waiver of the action.

On the contrary, the defendant, the first one, insisted, through all stages of the proceedings, that the choice agreed in favor of English law encompasses the interruption of limitation issue too (the outcome of the case with respect to the second defendant is not related to the matter discussed here).

The Supreme Court ruled in favor of the defendant/appellee. It underlined that the Hague-Visby Rules stipulate the one-year limitation; however, they do not address other issues connected to it, such as interruption and suspension. Consequently, the above matters should be examined by the proper law of the contract, i.e., English law, as evidenced in the bills of lading. Therefore, Greek law, and most importantly, Article 263 Greek Civil Code, may not be applied in the case at hand.

Following the above, the Supreme Court referred extensively to pertinent provisions of the Civil Procedure Rules (CPR) i.e. Parts 17.4 (Amendments to statements of case after the end of a relevant limitation period), 19.5 (Special provisions about adding or substituting parties after the end of a relevant limitation period), 38.2 (Right to discontinue claim), and 38.7 (Discontinuance and subsequent proceedings). It concluded that, pursuant to English law, the discontinuance of the claim can bring all or part of the proceedings instigated to an end by serving a formal notice of discontinuance. In other words, there is no such thing as a revival of the proceedings by means of a new claim filed within a specific period of time, similar to what is provided for by Article 263 Greek Civil Code.

The judgment was mostly based on the legal information related to the CPR, delivered by the Hellenic Institute of Comparative Law, which was requested to be furnished before the first instance court. In addition, the judgment gave very convincing answers to the appellant’s assertions, unknowingly following the same path taken by courts in other jurisdictions (see below, the second next paragraph).

It is necessary to underline the legal framework surrounding the case. The Supreme Court correctly applied Article 3(1) of the 1980 Rome Convention on the law applicable to contractual obligations. However, no further reference to other provisions of the convention is to be found in the text. Articles 1(2)h and 10(1)d were also pertinent to the case.

Article 1(2)h: The rules of this Convention “shall not apply to: […] (h) evidence and procedure, without prejudice to Article 14”.

Article 10(1):  “The law applicable to a contract by virtue of Articles 3 to 6 and 12 of this Convention shall govern in particular: […] (d) the various ways of extinguishing obligations, and prescription and limitation of actions.”

Additionally, reference could be made to Article 21 (Relationship with other conventions), where it is clearly stated that the Rome Convention “shall not prejudice the application of international conventions to which a Contracting State is, or becomes, a party”, for sufficiently justifying the application of Article 3 Hague-Visby Rules.

In light of the above, the answer to the question depends on the interpretation given under the aforementioned provisions of the Rome Convention. Put differently, the crucial issues are, whether the interruption of limitation is covered by the wording of Article 10(1)d, and whether the discontinuance and the subsequent filing of the claim should be considered as procedural matters, therefore not covered by the Rome Convention pursuant to Article 1(2)h.

The situation is similar under the Rome I Regulation on the law applicable to contractual obligations, see Articles 12(1)d and 1(3). So far, no preliminary reference has been submitted concerning the questions above. The general trend is to include all aspects of limitation within the scope of the Regulation (interruption, suspension, commencement), even if they are carried out by procedural means. The procedural nature attributed to limitation by virtue of domestic law (here: UK) does not affect the proper application of the Rome I Regulation. In any case, procedural rules related to limitation must be considered as part of the applicable law of the contract (in German: Vertragsstatut).

The Rome II Regulation on the law applicable to non-contractual obligations contains similar provisions, namely Articles 1(3) and 15(h). However, there are visible differences in the wording of the latter provision. Article 15(h) is more precise. It stipulates that the law specified under the Regulation provides, among other things, the rules relating to the commencement, interruption and suspension of a period of prescription or limitation.

Two judgments issued by English courts shed light to the issue: Pandya v Intersalonika General Insurance Co SA,  [2020] EWHC 273 (QB) (the text is not yet accessible on open sources), and Johnson v Berentzen & Anor [2021] EWHC 1042 (QB) (26 April 2021).These cases relate to car accidents with cross-border element.

In the first case, a UK citizen was injured by a Greek national on the island of Kos. The claim against the Greek insurance company was filed in England. The action was registered with the court; however, service was not effectuated within 5 years following the accident, which renders the action time-barred pursuant to Greek law. The claimant considered that the application of Greek law for the service of process by an English court is absurd. The court had a different view: it ruled that the procedural nature of service forms here part of the interruption of limitation issue. The resemblance to the ruling of the Greek Supreme Court is evident. A right to appeal was refused.

In the second case, the accident occurred on Scottish soil. The perpetrator was domiciled in Germany, whereas the victim in England. The issue revolved again around belated service of the claim. The attempt of the claimant to deconstruct the judgment of the court in the Pandya v Intersalonika case remained unsuccessful. Nevertheless, the court granted the request of the claimant to proceed out of time, by providing an extension in accordance with Scottish law.

A webinar in English on The resolution of the Institut de Droit International on Human Rights and Private International Law will take place on 12 November 2021, from 16.30 to 18.30 CET, organised by the Interest Group on Private International Law of the Italian Society of International Law (SIDI).

The speakers will be Fausto Pocar and Patrick Kinsch.

Attendance is free. Those wishing to join the webinar are invited to send an e-mail to sidigdipp@gmail.com.

A new issue of the online Belgian Revue de droit international prive / Tijdschrift voor internationaal privaatrecht is now available.

The issue features a rich selection of case law. It includes rulings given by the European Court of Human Rights (on family matters and surrogacy), the Court of Justice of the European Union (on succession, the taking of evidence, parental responsibility, employment contracts and torts matters).

Also included are rulings of the Belgian Constitutional Court and Court of Cassation, as well as the Court of Appeal of Antwerp and the Council for Immigration Disputes. The topics covered include matters of citizenship, rectification of birth certificate, service of judicial decisions, choice of jurisdiction clause in the context of the Lugano Convention, marriage, cross-border insolvency, and international protection of minors requesting humanitarian visa.

The section dedicated to doctrinal views contains a scholarly article by Annekatrien Lenaerts analysing a decision of the Belgian Court of Cassation issued on 18 June 2021 dealing with the communication of a court decision following the service of another judicial document on the basis of national procedural law and the European Service Regulation.

The decision has a particular importance according to the author as it is the first decision ruling that the addition of a copy of a judicial decision to the documents to be communicated to the party after service of one or more procedural documents does not amount to a valid service in accordance with the provisions of the Service Regulation, nor does it lead to the running of the appeal period according to Article 1051(1) of the Belgian Judicial Code.

The Court held that a judicial decision is only validly served at national level if it is expressly mentioned in the bailiff’s writ as the subject of the service. Further, it clarifies that a legally valid service at EU level requires that the decision to be mentioned as the document to be served, both in the application for service by the transmitting agency on the receiving agency using the standard form provided for that purpose and in the receiving agency’s notice of service, as well as in the form for the addressee stating that he has the right to refuse to receive this document.

The author concludes that although this solution may seem strict or formalistic at first glance, it is the only appropriate option in view of the protection of the addressee’s rights of defence. Only if a document is actually and expressly brought to the defendant’s attention in a way that allows the party to truly understand its content and purport, can the addressee effectively know his rights with regard to that document and institute a useful legal remedy against it.

Finally, the last part of the review is dedicated to legislative developments in the area of private international law.

The previous issues of the journal may be freely accessed here.

Marco Pasqua, who has been serving as the social media manager of the European Association of Private International Law, is now also an editor of the blog. His first post, on the 2022 Work Programme of the Commission, has just been published and can be found here.

Marco is a PhD student at the Catholic University of Milan.

On 19 October 2021, the European Commission adopted its 2022 Work Programme, setting out its key initiatives and the next steps in the agenda for the year ahead towards a post-COVID-19 Europe greener, fairer, more digital and more resilient.

The Commission Work Programme, by informing how political priorities will be coped to turn them into concrete action, is composed of four Annexes: the first addresses new policy and legislative initiatives; then, the second is in charge of simplifying existing legislation; it follows the third, focused on pending priority legislative files the Commission would the co-legislators to take the swiftest action on; finally, as consequence of the previous ones, the forth, based on intended withdrawals of pending proposals.

Among the new policy initiatives under the Annex I, the one dealing with private international law and having Article 81 TFUE as legal basis to be relied upon relates to the recognition of parenthood between Member States.

While the establishment of this civil status governing the legal relationship between a child and another person is disciplined by the domestic family law, the recognition of the parenthood already established abroad, crucial in cases of acquisition of nationality, residence, EU citizenship, maintenance and succession, is dealt with by private international law rules. Because currently parenthood established in one Member State may not be recognised in another, problems when travelling or moving to another Member State arise, endangering the child’s rights resulting from parenthood.

This is why, in the absence of uniform private international law rules on this issue, both on applicable law and on procedures for the recognition of judgments, a Commission Proposal aimed to ensure that parenthood, as established in one Member State, is to be recognised across the EU is expected in the 2022, so that children maintain their rights in cross-border situations, in particular when their families travel or move within the Union. Surely, if this initiative combines the work to ensure that the Union of equality becomes a reality for all and the need for a less bureaucracy, in so far as promoting the free movement of public documents and recognition of the effects of civil status records, the crux of the matter, politically speaking, will relate to the recognition obstacles new forms of parenthood day-by-day face in the EU when exercising their parenthood-based rights. A tough challenge? Yes, but the Union is full of colors and “if you are parent in one country, you are parent in every country” is urgent to come a reality from a legal point of view too.

Another private international law issue pointed out to be dealt with will be to strengthen judicial cooperation on the protection of vulnerable adults in cross-border situations.

The absence of uniform private international law rules on this field of law, the diversity of Member States’ law on jurisdiction, applicable law and the recognition and enforcement of protection measures, and the limited accessions to the key international instrument in this area, mainly represented by the Hague Convention of 13 January 2000 on the international Protection of Adults, raise considerable problems. However, it remains to be discovered how this will be pursued since no specific legislative initiative is expected to be addressed in the 2022, at least at EU level by the European Commission. A missed opportunity? Given the need, it seems so.

Finally, the new policy initiatives across the six headline ambitions put forward by the President von der Leyen in the Political Guidelines, building on her 2021 State of the Union speech (i.e. “The European Green Deal”, “A Europe fit for the digital age”, “An economy that works for people”, “A stronger Europe in the world”, “Promoting our European way of life”, “A new push for European democracy”) will affect lots fields of law, private international law included; on the other, Annexes II, III and IV will not.

Therefore, the European Commission will start discussions with the Parliament and Council to establish a Joint Declaration on the EU’s legislative priorities the co-legislators agree upon to take swift action.

The Research Center on Private International Law (EDIEC – EA 4185) of the University of Lyon III – Jean Moulin (France) will host a three-day conference to understand whether EU Private International Law should be considered as a comprehensive system (Existe-t-il un système de droit international privé de l’Union européenne?), organised by Ludovic Pailler and Cyril Nourissat, on 17 to 19 November 2021.

The presentation of the conference reads as follows:

The ambitious program proposed by the organizers does not only aim to take stock of a vicennial construction of the law of judicial cooperation in civil matters. It should also allow the speakers to assess whether this field of Union law is merely a pile of autonomous texts (at most likely to constitute a few large blocks – family, obligations, etc.) or whether, beyond that, a comprehensive work is taking shape, a true “system” of private international law, in particular thanks to the many judgments handed down by the Court of Justice of the European Union. This event will also be an opportunity to question the necessity of a system of private international law in order to constitute the area of civil justice called for by the European Commission. In order to take up this major scientific challenge, the colloquium brings together eminent European authors, specialists in Private international law and Union law. Their analysis will be usefully completed by a comparative approach from points of view from outside the Union (China, Maghreb, USA) and by the intervention of practitioners (lawyers, bailiffs, notaries), better able to evaluate the usefulness of a system for their daily work.

Speakers include numerous PIL specialists, scholars as well as senior officials and practitioners:

Louis d’Avout (Paris II Panthéon-Assas), Etienne Farnoux (Strasbourg), Marie Vautravers (European Commission), Tania Jewczuk (French Ministry of Justice) Sandrine Clavel (Paris Saclay), Laurence Idot (Paris II Panthéon-Assas), Edouard Treppoz (Paris 1 Panthéon-Sorbonne), Yves El Hage (Lyon 3), Hélène Gaudin (Toulouse 1 Capitole), Bernard Haftel (Sorbonne Paris Nord), Lukas Rass-Masson (Toulouse 1 Capitole), Carine Brière (Rouen), Jean-Baptiste Racine (Paris II Panthéon-Assas), Malik Laazouzi (Paris II Panthéon-Assas), Emmanuelle Bonifay (Aix-Marseille), Mathias Audit (Paris 1 Panthéon-Sorbonne), Johanna Guillaumé (Rouen), Marie-Elodie Ancel (Paris II Panthéon-Assas), Stéphanie Francq (UCLouvain), Samuel Fulli-Lemaire (Strasbourg), Amélie Panet (Lyon 3), Marion Ho-Dac (Artois), Laurence Usunier (Cergy-Pontoise), Kamalia Metiyeha (Paris 1 Panthéon-Sorbonne), Pierre Callé (Paris-Saclay), Fabienne Jault-Seseke (Paris-Saclay), Michael Wilderspin (former administrator, European Commission), Blandine de Clavière (Lyon 3), Sylvaine Poillot Peruzzetto (French Cour de Cassation), Alain Devers (Lyon 3), Marc Cagniart (Notary, Paris), Alice Meier-Bourdeau (Lawyer, Paris Bar), Mathieu Chardon (Baillif), Emmanuel Guinchard (Liverpool), Sami Bostanji (Tunis), Claudia Lima Marques (Porta Alegre), Gustavo Cerqueira (Nîmes), Nicolas Nord (Strasbourg), Fabien Marchadier (Poitiers) and Jérémy Heymann (Lyon 3).

The full programme is available here.

For registration, please write to marie.brossard@univ-lyon3.fr

It had to be anticipated that Brexit would have detrimental consequences for private litigants. Some have nurtured the hope, however, that the UK-EU Trade and Cooperation Agreement would mitigate some of the damage. This idea was dealt a blow by a recent judgment by the Higher Regional Court (Court of Appeal) of Munich. The court dismissed a suit brought by a British Private Limited Company (Ltd.) for the company’s supposed lack of legal personality.

A UK Ltd. based in Berlin sought injunctive relief for alleged price fixing against a German competitor before the courts of Munich. While the Munich Regional Court (LG München I), as the lower court, in its decision (LG München I, 37 O 3787/21) ruled on the merits of the case, the Munich Higher Regional Court (OLG München), in a non-appealable ruling at second instance (OLG München, 29 U 2411/21 Kart), squarely denied the capacity of the Ltd. to be a party of the proceedings.

The Court of Appeal argued as follows: Since the UK Ltd. as the claimant was not incorporated in an EU Member State, its legal capacity was to be assessed under German international company law using the real seat theory, according to which a company is subject to the law of the place of its headquarters. This was German law since the Ltd. had its basis in Berlin according to the court’s assessment.

After the Munich court had clarified the applicability of German substantive company law to non-EU companies based in Germany, it further ruled that the UK Ltd. would be legally non-existent as such since it does not fulfill the conditions of any of the corporate forms provided by German law. These corporate forms are exhaustive because of the principle of numerus clausus, and they do not include a Ltd.

The court admitted that a Ltd. based in Germany may have to be considered as a partnership under German law (Gesellschaft bürgerlichen Rechts or offene Handelsgesellschaft), or in the case of a single shareholder, as a merchant. Nevertheless, it rejected the action brought by the Ltd. as inadmissible because of its non-existence as a Ltd.

Some German authors had opined that the Trade and Cooperation Agreement between the EU and the UK would call for a different conclusion.  Particularly the clauses on national and most-favoured-nation treatment therein would require the recognition of companies incorporated under English law.

Not so, said the Munich court. It stressed that Articles 128(b), 129 and 130 of the Trade and Cooperation Agreement merely guarantee the free movement of trade goods and services, capital and investment, but not the freedom of establishment. It also pointed to Annex 20 Headnotes No. 9 of the Agreement, according to which the obligation of national treatment does not extend to legal persons incorporated in the UK and having their seat in the EU (paras. 21-22).

The judgment seems particularly stern, rigid, and ultimately misguided. Already the indiscriminate application of the real seat theory to all third countries is debatable: Some German authors rightly question whether the non-recognition of companies incorporated in such evolved legal systems as the Swiss or the British is indeed justified.

But it is even more wrong to reject such recognition under the EU-UK Trade and Cooperation Agreement. The freedom to provide goods and services explicitly guaranteed in this Agreement is hardly worth anything if the provider will not be legally recognised and cannot assert its rights in court. How should it bring a claim e.g. for an unpaid service?

The fact that the principle of national treatment does not apply to companies based in the EU does not suggest otherwise. It may justify a different treatment for companies incorporated in the UK and based in the EU with regard to the applicable corporate law rules. For example, the liability of shareholders or the rights of management could be subject to the law of the member state in which the company has its seat. But the principle of national treatment certainly does not permit the outright rejection of actions brought by UK companies based in the EU.

The decision of the Munich Higher Regional Court shows the unforeseeable consequences that Brexit may have, even for persons situated within the European Union. The model of operating as a Ltd., which was popular for a while in Germany, especially among small companies, harbours far-reaching dangers and can become a boomerang for many of the companies incorporated in this way, which were supposed to shield the shareholders from personal liability.

It would have been desirable if the Munich Higher Regional Court had removed further uncertainties by departing from the seat theory for British companies and granted these companies legal capacity. At least the Court should have given the Ltd. the chance to correct its corporate denomination in the action and bring the claim as a partnership or merchant. Under German procedural law, the Court is obliged to inform the party about this possibility, and it is unclear whether it has done so.  Outrightly rejecting the claim amounts to barring access to court. Such practice could be questioned under Article 6 of the ECHR.

In November 2021 the activity of the Court of Justice in the field of Private International Law appears to be limited to two decisions, both expected on the 25.

The first judgement corresponds to the request for a preliminary ruling from the Paris Court of Appeal in C- 289/20, IB, on Article 3 of Regulation Brussels II bis:

Where, as in the present case, it is apparent from the factual circumstances that one of the spouses divides his time between two Member States, is it permissible to conclude, in accordance with and for the purposes of the application of Article 3 of Regulation 2201/2003, that he or she is habitually resident in two Member States, such that, if the conditions listed in that article are met in two Member States, the courts of those two States have equal jurisdiction to rule on the divorce?

AG Campos Sánchez-Bordona’s opinion was published on 8 July 2021. It is not yet available in English. My translation:

Article 3, paragraph 1, letter a), of Council Regulation (EC) No. 2201/2003 (…) must be interpreted in the sense that, for the purposes of the attribution of jurisdiction, only one habitual residence of each spouse can be recognized.

When a spouse shares his life between two or more Member States in such a way that it is not possible, in any way, to identify one of them as that of his habitual residence within the meaning of Article 3 (1) (a) of the Regulation No. 2201/2003, international jurisdiction will have to be determined in accordance with other criteria of the Regulation and, where appropriate, the residuals fora in force in the Member States.

In the same hypothesis, and provided the application of Regulation No. 2201/2003 and the residual fora above-mentioned does not confer international jurisdiction to any Member State, jurisdiction may be exceptionally attributed to the courts of the Member States of a non-habitual residence of a spouse.

The judgement is to be delivered by a chamber of five judges – A. Prechal, J. Passer, F. Biltgen, N. Wahl and S. Rossi, the latter as reporting judge.

The decision on C-25/20, Alpine Bau, corresponds to a request by the Višje sodišče v Ljubljani (Slovenia), on Article 32(2) of the old insolvency regulation:

Is Article 32(2) of Regulation No 1346/2000 to be interpreted as meaning that the rules on the time limits for lodging creditors’ claims, and the consequences of lodging claims out of time under the law of the State in which the secondary proceedings are being conducted, apply to the lodgement of claims in secondary proceedings by the liquidator in the main insolvency proceedings?

Last May, AG Campos Sánchez-Bordona had proposed the following answer:

Article 32(2) of … Regulation (EC) No 1346/2000 … is to be interpreted as meaning that where the liquidator for the main insolvency proceedings lodges claims in secondary proceedings, the time limits for the lodgement of those claims, and the consequences of lodging claims out of time, are governed by the law of the State in which the secondary proceedings were opened.

The judgement will be delivered by judges K. Jürimäe (acting as juge rapporteur), S. Rodin and N. Piçarra.