Agrégateur de flux

La Cour de justice de l’Union européenne rappelle que le droit de rectifier l’identité de genre, donnée personnelle, est protégé par l’Union. Cette rectification, qui peut impliquer une exigence de preuve, ne saurait être soumise à un traitement chirurgical de réassignation sexuelle.

en lire plus

Stefano Dominelli (Università di Genova) has just published a book titled Regolamento Bruxelles I bis e US jurisdiction in personam: riflessioni e proposte su condivisioni valoriali, influenze e osmosi di metodi with Editoriale Scientifica. The book is written in Italian but also features conclusions in English.

The author has kindly shared the following summary with us:

The book analyses the basic principles of the EU’ and US international civil procedure in contract and tort law. The investigation shows how both systems are partly inconsistent with their respective premises – of legal certainty, on the one hand, and fairness and justice, on the other. The juxtaposition of the dogmatic approaches and their contextualisation in the light of the law in action makes it possible to reconstruct a common and shared principle which shapes solutions in both systems – that of the necessary existence of a minimum connection between the jurisdiction and the case. This conclusion opens up, to a limited extent, to a conceptual rapprochement between legal systems and to reflections on possible legal transplants that respect the characteristics of the local legal culture.

The whole book is available open access under this link.

Dr. Carlos Santaló Goris, Postdoctoral researcher at the University of Luxembourg, offers an analysis of the Opinion of Advocate General de la Tour in CJEU, Case C-713/23, Trojan

From Coman to Trojan

On 5 June 2018, the Court of Justice of the European Union (‘CJEU’) rendered its judgment in the case C-673/16, Coman. In this landmark ruling, the CJEU decided that Member States are required to recognize same-sex marriage contracted in another Member Stated to grant a residence permit to the non-EU citizen spouse of an EU citizen under the EU Citizens’ Rights Directive. The pending case C-713/23, Trojan goes a step further than C-673/16, Coman. On this occasion, the CJEU was asked whether EU law requires a civil registry of Poland, a Member State that does not provide any form of recognition to same-sex couples, to transcribe the certificate of same-sex marriage validly contracted in another Member State. A positive answer would imply that the same-sex marriage established under German law would be able to deploy the same effects as a validly contracted marriage under Polish law. While the CJEU has not yet rendered a judgment, on 3 April 2025, Advocate General de la Tour issued his Opinion on the case. While the CJEU might decide differently from AG de la Tour, the Opinion already gives an idea of the solution that might potentially be reached by the CJEU. This post aims to analyse the case and explore its implications should the CJEU side with AG de la Tour.

Background of the case

Mr. Cupriak-Trojan, a German-Polish citizen, and Mr. Trojan, a Polish national, got married in Germany, where they used to live. Then, they moved to Poland, where they requested to transcribe the German marriage certificate in the Polish civil registry. Their request was rejected on the ground that marriage is not open to same-sex couples under Polish law. It was considered that the transcription of the certificate would go against Polish public policy. Upon the rejection, the couple decided to contest the decision before Polish administrative jurisdiction. They considered that refusal to transcribe the certificate contravenes the right to freedom of movement and residence enshrined in Article 21 of the Treaty on the Functioning of the European Union (‘TFEU’) and Article 21 of the EU Charter of Fundamental Rights (‘EUCFR’) in light of the principle of non-discrimination under Article of 7 of the EUCFR. In other words, when they decided to move to Poland, the non-recognition of their marriage under Polish law hindered their right to freedom of movement and residence. Eventually, the case reached the Polish Supreme Administrative Court, which decided to submit the following preliminary reference to the CJEU:

‘Must the provisions of Article 20(2)(a) and Article 21(1) TFEU, read in conjunction with Article 7 and Article 21(1) of [the Charter] and Article 2(2) of Directive [2004/38], be interpreted as precluding the competent authorities of a Member State, where a citizen of the Union who is a national of that State has contracted a marriage with another citizen of the Union (a person of the same sex) in a Member State in accordance with the legislation of that State, from refusing to recognise that marriage certificate and transcribe it into the national civil registry, which prevents those persons from residing in the State in question with the marital status of a married couple and under the same surname, on the grounds that the law of the host Member State [(18)] does not provide for same-sex marriage?’

AG de la Tour’s analysis

AG de la Tour starts his analysis by acknowledging that matters concerning the civil status of persons depend on the national law of the Member States. However, the right of freedom of movement and residence imposes on Member States the recognition of the civil status of persons validly established in other Member States. In this regard, he recalls that the CJEU adopted a two-fold approach to civil status matters. In matters concerning an EU citizen’s identity (e.g. name or gender), Member States are required to include those identity details in the civil registries. However, in civil status matters concerning ties legally established in other Member States (e.g. marriage or parenthood), there is no such obligation, and recognition of those ties is limited to the ‘sole purpose of exercising the rights which the person concerned derived from EU law’ (para. 29).

In the present case, AG de la Tour considers that the non-recognition of the same-sex marriage amounts to a ‘restriction on the exercise of the right’ to freedom of movement and residence under EU law (para. 32). Subsequently, he proceeds to examine whether such restriction is compatible with the right for respect for private and family life guaranteed by Article 7 of the EU Charter of Fundamental Rights (‘EUCFR’). He examines this issue through the lens of the European Court of Human Rights (‘ECtHR’) case law on Article 8 of the European Convention of Human Rights (‘ECHR’), the equivalent provision of Article 7 of the EUCFR. It should be reminded that the EUCFR expressly acknowledges in its Article 53 the ECHR and the ECtHR case law as the term of reference for establishing the minimum standards for its interpretation. In this regard, the ECtHR has repeatedly stated that Article 8 of the ECHR requires its contracting States to provide same-sex couples with a ‘specific legal framework’. Nonetheless, contracting States are not required to legalize same-sex marriages and enjoy a margin of discretion to decide how the recognition of the same-sex couple provided.

Based on the referred ECtHR case law, it appears that the non-recognition would constitute a restriction on the right to freedom of movement and residence incompatible with the EUCFR. At this point, the question arises whether such recognition should be done by entering the same-sex marriage certificate into the civil registry. Here, AG de la Tour considers that EU law does not require the marriage licence transcription. As he mentioned at the beginning of his reasoning, ‘Member States’ obligations in terms of civil status relate only to the determination of a Union citizen’s identity’ (para. 38). In his view, the registration of foreign marriage certificate ‘falls within the exclusive competence of the Member States’ (para. 42). Member States can thus refuse the transcription of the marriage certificate if the recognition of the same-sex marriage can be achieved through other means. This discretion is given to Member States to decide whether they enter a foreign same-sex marriage in their civil registry or not would also be in line with the ECtHR case law, which acknowledges States a wide margin of appreciation on how to recognize foreign same-sex marriages.

In the case of Poland, since there is no kind of legal framework for same-sex couples in this Member State, the only possible solution appears to be the registration of the marriage certificate. Therefore, as an exception, and given the specific Polish circumstances, AG de la Tour considers that Poland would be required to entry into its civil registry of the same-sex marriage.

Recognition yes, transcription no

The fil rouge of AG de la Tour’s reasoning was to find a manner to provide recognition for same-sex marriages without overstepping on the Member States’ competences in matters concerning the civil status. Finding that right to freedom of movement and residence entails an obligation to transcribe the marriage certificate would not be ‘in strict compliance with the division of competences between the European Union and the Member States’ (para. 55). That would imply that an understanding of the ‘freedom of movement and residence of Union citizens which may be exercised without limit so far as concerns personal status’ (para. 56). Such a solution that would depart from the well-established CJEU case law on this matter, moving ‘from an approach based on the principle of free movement of a Union citizen that is limited to his or her identity, to an approach based solely on the right to respect for his or her family life’ (para. 57). This why AG de la Tour adopted a solution that allows recognition without the need for transcription of the marriage licence in the civil registry.

Regarding the recognition of same-sex marriages, it should also be noted that AG de la Tour leaves the Member States with wide discretion on how same-sex marriage is recognized. This means that the marriage does not necessarily need to be recognized as a marriage. They could be recognized in the form of a civil partnership. That is, for instance, the solution that exists under Italian law. Article 32bis of the Italian Private International Law Act provides that ‘a marriage contracted abroad by Italian citizens with a person of the same sex produces the effects of the civil union regulated by Italian law’. Based on AG de la Tour’s reasoning, had Poland had a similar, he would have accepted the recognition of a same-sex marriage in the downgraded form of a civil partnership and the transcription of the marriage certificate would have been required.

Promoting the effectiveness of the ECtHR case law through EU law

On its reasoning, AG de la Tour strongly relies on the ECtHR case law. This does not come as a surprise. Other LGBT rights cases involving civil status matters and the right to freedom of movement contain similar references to the ECtHR jurisprudence. The most recent example is the C-21/23, Mirin in which the CJEU found that Romania had to recognize the gender change that occurred in another Member State. The main basis of this ruling was the ECtHR judgment, in which Romania had been found in violation of Article 8 of the ECHR because Romanian law did not provide a clear procedure to obtain legal gender recognition (X and Y v. Romania).

Such reliance on the ECtHR case law also serves to expose that Member States do not duly implement the ECtHR rulings. Poland has been found twice in violation of Article 8 of the ECtHR for not providing same-sex couples with any kind of formal legal recognition (Przybyszewska and Others v. Poland and Formela and Others v. Poland). While the Polish government has proposed an act introducing a civil partnership regime open to same-sex couples, it has not been approved yet. Furthermore, such an initiative only appeared after a more progressive government emerged out of the 2023 Polish general election. The situation is similar in other Member States such as Romania or Bulgaria. These Member States have been also called out by the ECtHR (Buhuceanu and Others v. Romania and Koilova and Babulkova v. Bulgaria) for not providing any sort of legal recognition for same-sex couples. However, unlike in Poland, no legislative changes are expected on this matter in the near future. If the CJEU adopts AG de la Tour’s solution, all these Member States would have to allow the recognition of same-sex marriages contracted in other Member States, even if in the downgraded form of civil partnership. Unlike the Council of Europe with regards to the ECtHR rulings, the EU counts with more effective means to ensure that CJEU rulings are followed by Member States. Formally, the Commission could even trigger an infringement procedure against them in case they do not comply with the judgment in C-713/23, Trojan. Therefore, EU law would become the indirect path to make Member States comply with the ECtHR rulings.

The potential for reverse discrimination

The solution proposed by AG de la Tour entails the risk of recreating a situation of reserve discrimination of same-sex couples that have not left Poland against those who have obtained certain legal status for the relationship in other Member States while exercising the right to freedom of movement. A same-sex couple moving who married or entered a civil partnership in a Member State would be able to attain the recognition of their marriage or civil partnership in a Member State that does not provide any legal framework for same-sex relationships. This is as far as EU law can go in this matter, given domestic family law matters strictly fall within the scope of Member States competencies.

It should also be noted that going to another Member State to get a marriage licence because the Member State where the same-sex couple resides does not provide any legal recognition would not be sufficient to achieve the recognition of such marriage in the Member State of residence. As AG de la Tour pointed out in his Opinion in C-4/23, Mirin, a close link needs to exist between the person and the Member State where the legal gender recognition is obtained (para. 71 and 72). Otherwise, there would be an abuse of EU law. The same would apply in the case of a marriage. Going to another Member State with the only purpose of obtaining a marriage licence and circumventing domestic law that does not provide a legal status for same-sex couples. The same-sex couple would have to establish a close link with the Member State where they seek to contract their marriage.

 

A collection of essays honoring Marc Fallon has recently been published by Larcier under the title Vers un code européen de droit international privé? Further information can be found here. The collection, edited by Jean-Yves Carlier and Stéphanie Francq (both professors at the Université Catholique de Louvain, as the honoree), brings together some twenty contributions (mostly […]

On 4–5 December 2025, the Department of Law at the University of Ferrara will host the XXII edition of the Conference of Young Scholars of International Legal Studies, dedicated to “The Principle of Good Faith in International and European Union Law”.

The organizers have issued a call for papers open to scholars of public and private international law and EU law, who are currently enrolled in a PhD program or who have obtained their PhD no more than five years ago.

To apply, authors must submit an abstract (no more than 600 words), in either Italian or English, along with a curriculum vitae, by 22 June 2025, to the following email address: giovaniinternazionalisti2025@gmail.com.

Further information is available here.

Par arrêt du 2 avril 2025, la Cour de cassation renvoie à la Cour de justice une question préjudicielle concernant la qualification de l’action en rupture brutale de relations commerciales établies afin que les juges de Luxembourg précisent si une telle action est de nature contractuelle ou délictuelle au sens des textes européens de conflit de lois.

en lire plus

The Ulrich Huber round of the Pax Moot competition ended on Friday in the Meuse-Rhine Euroregion, at the University of Maastricht to be precise.

During three fierce days 34 Moot teams from all over Europe and as far as Georgia, Kazakhstan, India, Singapore and Uzbekistan pleaded against each other. They argued about whether self-employed content moderators for social media companies could be considered employees; about how to locate the damage that consists of the stress and mental health harm suffered by these digital nomads; about whether a UK subsidiary of an Irish company could be considered to be domiciled in the EU; about whether the proceedings instituted by a foundation under the Dutch WAMCA should be characterised as contract or tort; about whether a settlement in front of a UK court could be recognised under the 2019 Hague Judgments Convention and much more. They relied on old and new case law, reports and legal scholarship.

At the end, the University of Ljubljana won the competition, with Jindal Law School as the runner-up. The other two teams that made it to the semi-finals were the Universities of Sofia and Paris-Saclay.

The prize for the best memorials went to ESADE Business School, with the University of Ghent in second place, and Paris Dauphine and Sofia Universities in shared third places.

Jana Ušen won the best pleader’s award, followed by Brin Smole, both of Ljubljana University. In the third position was Joshua Tan and in fourth Ong Xin Yan, both of Singapore Management University.

Under the inexhaustible leadership of Marta Pertegás, expect the Pax team to be back with a new case in October/November, to be pleaded in Sofia in roughly one year’s time. Pax Moot is co-funded b y the European Commission.

Reciprocity in the field of recognition and enforcement of foreign judgments has long been a subject of passionate debate. While some scholars question its desirability, others firmly defend it as a legitimate legal requirement. What remains undeniable is that the topic continues to spark intense discussion and scholarly interest.

A clear illustration of this ongoing debate is provided by two recent publications addressing the issue from different perspectives and jurisdictions.

The first is an enlightening open-access article by Eszter PAPP and Nobumichi TERAMURA, titled “Enforcing Singapore Judgments in Cambodia: Reciprocity Under the Loupe“. The paper explores the practical and legal challenges related to the enforcement of Singaporean money judgments in Cambodia, with a specific focus on the requirement of reciprocity.

The abstract reads as follows:

Abstract:
This article examines the feasibility of enforcing Singapore money judgments in Cambodia, focusing on the “guarantee of reciprocity” – an ambiguous yet critical condition. It is ambiguous because Cambodian courts have not yet interpreted it. It is critical because it is perceived as the main obstacle to enforcing foreign judgments. Without a treaty-based mutual enforcement mechanism between Cambodia and Singapore, it is unclear whether a Singapore money judgment could be enforced in Cambodia or if a judgment creditor’s application would be dismissed in any event citing lack of reciprocity. Following an analysis of the laws of Cambodia, Singapore, and Japan, the article concludes that there is no legal obstacle before the Cambodian courts to enforce a Singapore money judgment. The flexible interpretation of the guarantee of reciprocity outlined in this article would enhance access to justice, eliminate a trade barrier, and make the investment environment more attractive in Cambodia.

The second is a case comment written by myself (in French) on a decision of the Tunisian Cour de cassation that addresses the reciprocity requirement in the context of the enforcement of foreign judgments, under the title “La réciprocité en matière d’exequatur?: Quoi de nouveau?? Observations sous l’arrêt de la Cour de cassation n° 6608 du 13 mars 2014” (Reciprocity in the Recognition of Foreign Judgments: What’s New? Commentary on Court of Cassation Ruling No. 6608 of 13 March 2014)

The (English) abstract reads as follows:

Abstract:
The enforcement of foreign judgments in Tunisia is governed by Article 11 of the 1998 Code of Private International Law, which states that enforcement cannot be allowed if, inter alia, the reciprocity principle is not observed. This case note analyzes and reviews this issue in light of the Tunisian Cour de cassation’s decision No. 6608 of 13 March 2014. In this decision, the Court ruled that, in the absence of an international cooperation agreement, reciprocity is a factual matter, and its respect must be presumed. It is therefore up to the party contesting this presumption to provide evidence of its non-existence. This decision provides a valuable clarification of the nature and legal framework of reciprocity under Tunisian law, particularly regarding the burden of proof.

Together, these two contributions offer a concise yet comprehensive look at how the principle of reciprocity is interpreted and applied in different legal systems.

Stefano Dominelli (Univ. of Genova) has authored ‘Regolamento Bruxelles I bis e US jurisdiction in personam: riflessioni e proposte su condivisioni valoriali, influenze e osmosi di metodi’ (Editoriale Scientifica, Napoli, 2025). The volume, in Italian (with the conclusive chapter also translated in English) is freely accessible online. He has shared the following presentation of his […]

Le Parlement européen et la Cour de justice de l’Union européenne réunis pour leur deuxième dialogue annuel

AW "T"
Principes du droit communautaire
Avocat général Spielmann : une juridiction nationale est tenue d’écarter ou de considérer comme juridiquement inexistant l’arrêt d’une juridiction de rang supérieur qui ne satisfait pas à l’exigence d’un tribunal établi préalablement par la loi

I am grateful to Charlotte de Meeûs for her summary below of the most extensive review of TPLF in the EU. It would look to me that the lack of firm support by the study for any of the 3 options it outlines (see below), probably makes it veer towards the first: which one that is, is for readers to find out at the end of this post.

Charlotte inter alia has her own comparative overview here, has also published on the use of TPLF in public interest litigation, and discusses costs recovery (one of the important elements to TPLF) in the context of the ECHR here: I am most happy that as a scholar in the know, she was prepared to write on the study for the blog.

Geert.

*****

European Commission publishes long-awaited study mapping the use and regulation of third-party litigation funding in the EU.

On 21 March 2025, the European Commission published the BIICL study “Mapping Third Party Litigation Funding in the European Union” (the Mapping Study). The Mapping Study provides a comprehensive examination of the legal frameworks, practices, and stakeholder perspectives on third-party litigation funding (TPLF) across EU Member States and selected non-EU countries, including Canada, Switzerland, the United Kingdom, and the United States.

Aims and structure of the Mapping Study

The EC’s initiative was undertaken in response to the European Parliament’s Resolution adopted in September 2022, calling for the Commission to regulate the TPLF market. Upon request of the Commission, the Mapping Study was conducted by the British Institute of International and Comparative Law (BIICL) and Civic Consulting, and supported by various national experts.

 The extensive Mapping Study is divided into two main sections. First, a legal analysis carried out by national experts describing the regulation and practice of TPLF in the selected jurisdictions. Second, the results of the stakeholders’ consultation, gathering the opinions of various stakeholders (e.g., lawyers and law firms, businesses, litigation funders, consumer organisations, academics, public authorities, members of the judiciary) on the possible regulation of TPLF and its practical operation.

Key Findings

On the TPLF regulatory landscape, the Mapping Study finds that within the EU, specific regulation of TPLF is largely absent, except in the context of consumer collective redress following the national transpositions of the Representative Actions Directive – RAD 2020/1828.

This means that TPLF is primarily governed by national contract law and national civil procedure. In jurisdictions outside the EU, such as Canada and the UK, regulation primarily stems from case law, while TPLF in the USA is subject to an interplay of federal and state regulations. Logically, the absence of regulation at national level also means that very few countries have provisions similar or equivalent to provisions laid down in the 2022 Parliament Resolution on TPLF.

On the use of TPLF in the selected jurisdictions, the Mapping Study shows in essence that TPLF practices vary widely depending on the jurisdiction and the sector concerned. TPLF is indeed used in a wide variety of sectors. The selection of funded claims as well as the terms of litigation funding agreements diverge depending on the funder and the claim at hand.

In this context, the Mapping Study emphasises the difficulties arising from the broad diversity in funding practices and from the lack of available data. In the words of the authors of the Study, caution regarding the results of the Study is needed as

“[t]his variety makes general conclusions regarding practices of litigation funders difficult, and it also implies that the results of this consultation are not necessarily a complete picture of litigation funding in the EU, but rather provide a summary of those practices that were observed by the participating litigation funders and other stakeholders” (p. 637).

On the views of stakeholders regarding the use and regulation of TPLF, it is interesting to note that, amongst the 231 stakeholders who took part in the consultation, most views on TPLF were (at least partially) positive. Around 34% of stakeholders indeed viewed TPLF as having only positive effects, 24% considered TPLF to have both positive and negative effects and 17% only perceived negative effects.

Lawyers, litigation funders, and, importantly, consumer organisations generally viewed TPLF as having predominantly positive effects, whereas businesses (excluding lawyers and funders) perceived TPLF more negatively. The main positive effects listed by stakeholders were better access to justice, professionalism and expertise provided by funders in complex cases and filtering effect for non-meritorious cases. Among the four most cited negative effects of TPLF, stakeholders mentioned the reduced compensation for the funded party due to the remuneration owed to the funder; conflicts of interests arising from the involvement of a third-party litigation funder; the control or influence that the funder has on litigation (including on substantive and procedural decisions regarding legal proceedings and settlements); and possible frivolous claims funded by TPLF.

Regarding the question whether regulation of TPFL was needed, the majority (58%) of respondents found that TPFL should be regulated. However, among these 58%, the Mapping Study showed that there was little willingness for regulation exclusively at national level (29% of stakeholders were of the opinion that regulation should take place at EU level and 25% answered that regulation should take place at both EU and national level).

Interestingly, stakeholders also pointed out the issues that were in their view the most in need for regulation, by giving scores of “effectiveness” to the measures proposed in the 2022 Parliament Resolution on TPLF.

The issues that obtained the higher “effectiveness scores” were transparency requirements, conflicts of interests, capital adequacy and responsibility for adverse costs. However, although these issues received the highest “effectiveness score”, none of the measures envisaged in the 2022 Parliament Resolution on TPLF, except for transparency requirements, are considered to be “rather effective”.

Opinions diverged however regarding the type of regulation needed. The Mapping Study identified three possible routes for TPLF regulation namely:

No regulation: this position is based on the argument that there is no evidence that TPLF has negative effects and that overly strict regulation could drive litigation funders away from the EU market. This position adds that the existing national rules (e.g., general contract law and civil procedure, consumer protection, financial and banking rules and collective redress laws) are sufficient and should be used in parallel with courts’ supervision to address some issues linked to TPLF.

Light-touch regulation: this position, adopted by the widest number of stakeholders, is in favour of adopting basic rules governing TPLF without being too specific or too strict so as to drive litigation funders away from the EU market. Regulation would in this scenario not only increase predictability for funders and funded parties but also avoid placing an excessive burden on the courts insofar as regulation of TPFL is concerned. The issues identified as needing regulation include transparency and disclosure of the existence of litigation funding agreements, capital adequacy requirements and consumer protection.

Strong regulation: this position, which focuses on the negative effects associated with TPLF, favours the adoption of a comprehensive regulation of the TPLF market, in line with the approach proposed in the 2022 Parliament Resolution on TPLF. This position contends that while TPLF practices should not be excessively limited, the (negative) impact that TPLF may have on litigation requires some controls through regulation.

Next steps

It is said that information gathered in the context of the Mapping Study will inform the European Commission’s policy decisions regarding TPLF. However, it remains to be seen what steps the European Commission will take following the publication of the Mapping Study and whether and how it will further react to the 2022 Parliament Resolution on TPLF.

The Commission has indeed not explicitly confirmed whether it is inclined to follow one of the three possible routes for TPLF regulation identified in the Mapping Study, nor whether it will take any formal initiative in this respect.

In the meantime, one will therefore have to continue closely to monitor  possible national developments viz the practices of litigation funders, starting with the final report of the UK Civil Justice Council (CJC) reviewing litigation funding and its possible regulation in the UK, which is said to be  expected by summer 2025.

Charlotte de Meeûs.

Alace
Espace de liberté, sécurité et justice
Protection internationale : selon l’avocat général Richard de la Tour, un État membre peut désigner des pays d’origine sûrs par un acte législatif et doit divulguer, à des fins de contrôle juridictionnel, les sources d’information qui fondent cette désignation

Hamoudi / Frontex
Droit institutionnel
Action en dommages et intérêts contre Frontex : l’avocat général Norkus analyse la répartition de la charge de la preuve en ce qui concerne l’existence d’un préjudice dans les affaires d’expulsions collectives

État belge (Preuve du lien de dépendance)
Citoyenneté européenne
Un ressortissant d’un pays tiers, parent d’un citoyen de l’Union, bénéficie d’un droit de séjour dérivé de plus de trois mois dans l’État membre d’accueil s’il apporte la preuve, d’une part, qu’il était à la charge de ce citoyen dans son pays d’origine à la date à laquelle il a quitté ce dernier et, d’autre part, qu’il est à la charge dudit citoyen à la date d’introduction de sa demande de carte de séjour, lorsque plusieurs années se sont écoulées entre ces deux dates

Sangas
Espace de liberté, sécurité et justice
L’État membre où réside une personne recherchée ne peut refuser l’exécution d’un mandat d’arrêt européen visant à assurer la présence de cette personne lors de la poursuite d’une procédure pénale

As reported on this blog, the European Commission published on 26 February 2025 a proposal for a directive amending Directives 2006/43, 2013/34, 2022/2464 and 2024/1760. The initiative, part of the Omnibus Simplification Package, seeks to adjust certain corporate sustainability reporting and due diligence obligations. On 1 April 2025, the European Parliament invoked the urgent procedure […]

L’arrêt Federici c/ France peut paraître décevant : la Cour rejette l’un des griefs comme manifestement mal fondé et ne conclut pas à la violation du droit à la présomption d’innocence invoqué par le requérant. Une lecture attentive du raisonnement européen permet cependant de mettre au jour, par une lecture en creux, les éléments qui pourraient permettre à l’avenir d’aboutir à un constat de violation.

en lire plus

If you do use the blog for research or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.

Advocate-General Kokott opined last week in Joined Cases C-672/23 and C-673/23 Electricity & Water Authority of Government of Bahrain ea v Prismiian ea .

After her Opinion in Athenian Brewery, where the CJEU itself was less claimant friendly than the AG had opined,  it is the second Kokott AG Opinion on the use of anchor defendant mechanism in follow-on antitrust damages claims in quick succession.

Case C‑672/23 concerns the determination of the joint and several liability of the defendants for damage claimed as arising from an infringement of the prohibition on cartels under EU law in the form of a cartel in relation to underground and submarine cables and related products, works and services.  The claim in the main proceedings is directed not only against the companies mentioned in the relevant Commission Decision but also against other companies that fall into three groups of undertakings. These have at their centre Prysmian Cavi e Sistemi Srl, ABB AB and Nexans France SAS. Of all the defendants, only Draka Holding BV, which is a subsidiary of Prysmian Cavi e Sistemi and itself holds all of the shares in the capital of Prysmian Netherlands BV, is established in Amsterdam, Netherlands. All of the other defendant companies (collectively ‘Draka and others’) each have their registered office in other locations within and outside the Netherlands. Claimants in the main proceedings in this case, the Electricity & Water Authority of the Government of Bahrain and others (collectively ‘EWGB and others’), operate high-voltage networks in the Gulf States. Damage arguably took place outside the EEA.

Case C‑673/23 likewise concerns the determination of the joint and several liability of the defendants in the main proceedings at first instance for damage which is alleged to have arisen as a result of two infringements of the prohibition of cartels under EU law, in this case not established by the European Commission, rather by the Italian national competition authority. The claim in the main proceedings at first instance was directed not only against the companies mentioned in that decision but also against other companies that fall into two groups of undertakings. These have at their centre, on the one hand, Smurfit Kappa Italia SpA, and, on the other hand, Toscana Ondulati SpA. Of those defendants, only Smurfit International BV is established in Amsterdam, Netherlands. All of the other companies (collectively ‘Smurfit and others’) each have their registered office in other locations within and outside the Netherlands.

The questions referred are very detailed indeed (see (17) of the Opinion). They essentially request from the CJEU a roadmap to determine the justifiable use of the anchor mechanism in cases like these. Particularly after Athenian Brewery, national courts arguably have enough material to make that assessment themselves, however the courts at Amsterdam had of course referred these cases prior to Athenian Brewery having been held.

The AG first of all and succinctly recalls

• the principles of an ‘undertaking’ in EU antitrust law [(30):

“in order for it to be found that the parent company and the subsidiary company form an economic unit, the claimant must not only establish the economic, organisational and legal links between these companies, but also prove that there is a specific link between the economic activity of that subsidiary company and the subject matter of the infringement by the parent company”

• and the core application of A8(1) Brussels Ia in the antitrust context (32): (A8(1)’s condition of close relatedness is

“fulfilled where several undertakings that participated in an infringement of EU competition rules, established by a decision of the Commission, are the subject of claims based on their participation in that infringement, despite the fact that they participated in that infringement in different places and at different times” (reference to CJEU CDC); and

” The same is also true of claims based on a company’s participation in an infringement of the EU competition rules which are directed against that company and against its parent company and in which it is alleged that those companies together form one and the same undertaking” (reference to CJEU Athenian Brewery).

The AG then entertains the referring court’s question on whether the prospect of success of the claim against the anchor defendant must be taken into account. ‘Prospect of success’ is a better translation than the translation elsewhere in the Opinion of the questions referred, where the Dutch term ‘toewijsbaarheid’ is translated as ‘admissibility’. The referring court clearly seeks guidance on the relevance of the merits of the claim.

The AG concludes on this section

“account is to be taken of the prospects of success of the claim against the anchor defendant, but only as an indication that the claimant has not artificially fulfilled the conditions for that provision’s applicability, which may be true in the case of a manifestly unfounded claim.”

‘Prospect of success’ must be an echo of common law CPR (a ‘real issue to be tried’), although we do not quite know: the AG, as is her MO, refers to no scholarship in her Opinion.

On this point I do not think the authorities support the conclusions which the AG draws from it.  She writes (37)

“Article 8(1) of the Brussels I bis Regulation must not be abused by bringing a claim against several defendants for the sole purpose of removing one or more of them from the jurisdiction of the courts of the State in which that defendant or those defendants is or are domiciled. That would be the case if there were firm evidence to support the conclusion that the claimant artificially fulfilled, or prolonged the fulfilment of, the conditions for that provision’s applicability.” (references omitted)

References were to CJEU CDC, and what the AG writes (37) is correct.

However the AG then jumps to the claim being ‘manifestly unfounded’: (38)

“For that to be the case, however, it is not sufficient that the claim against the anchor defendant should (possibly) appear to be unfounded. Rather, the claim must be manifestly unfounded or contrived or be devoid of any real interest to the claimant at the time when it is brought.”

In the original German, the Opinion uses ‘unbegründet’, which clearly refers to substantial merit of the case, not procedural or other inadmissability (and indeed this is also how the referring court has intended its question).

In support of her position in (38) the AG refers (other than to her Opinion in Athenian Brewery and to Mengozzi AG in Freeport) to CJEU Reisch Montage para [33]. This CJEU para does not however talk about the claim being unfounded, manifest or not. Rather it is summary of the judgment, right before its operative part and it addresses procedural inadmissability (due to a pending bankruptcy proceeding). In Reisch Montage the CJEU does not address meritorious prospect of success at all.

Whether the likelihood of success of an action against a party before the courts of the State where it is domiciled (some kind of merits review, therefore) is relevant in the determination of whether there is a risk of irreconcilable judgments for the purposes of A8(1), was raised in Freeport but not answered by the CJEU, for such answer was eventually not necessary for the preliminary reference at issue.

The issue was discussed in England, pre Brexit. In the first instance judgment in Sabbagh v Khoury, Carr J’s extensive merits review hinged on the CJEU instruction ‘to take account of all the necessary factors in the case-file’ per CJEU Freeport at [41]. The Court of Appeal on majority confirmed the need for a rather extensive merits review.

I do not think this is what A8(1) either requires or indeed sanctions, and I agree with Lady Justice Gloster, who dissented in the Sabbagh appeal, [178]:

‘the operation of a merits test within Article [8](1) does give rise to risk of irreconcilable judgments, which can be demonstrated by reference to the present facts’,

and [179]

“the overwhelming tenor of the CJEU authorities is to emphasise the fundamental aim of eliminating, rather than simply reducing, a risk of irreconcilable judgments. This aim is achieved if Article [8](1) does not incorporate a merits test and is undermined if it does do so.”

Article 8(1)’s ‘so closely connected’ test clearly requires some appreciation of the facts and the legal arguments, as well as a certain amount of taking into account the defendant’s arguments, however only with a view to assessing relatedness with a view to avoiding irreconcilable judgments. This in my view does not amount to a merits test, whether a wide or a narrow (‘manifestly unfounded’) one and this remains an important difference with the common law ‘real issue to be tried’ requirement.

(40) ff the AG then zooms in on some issues related to the prospect of success (in my opinion the CJEU will not follow on prospect of success and, practising judicial economy, will not entertain these questions).

As she notes, these questions are only raised viz the exercise of jurisdiction, and they are (43) “a complex legal question calling for in-depth examination” – a question which I suspect may be referred again if and when the Dutch courts do exercise jurisdiction. This includes [(44) ff) how attributability of damage to an adverse effect on competition in the internal market, must be interpreted where damage arguably occurred outside of the EEA, and the general issue of territorial scope of A101 TFEU. (In my view the answer may be much more straightforward perhaps than seemingly suggested in the submissions, by focusing on the claims essentially being in compensation for damage following breach of statutory duty). This section also discusses substantive issues of presumption of control in competition law.

(68) ff then returns to the issues of jurisdiction, addressing ia the topic of groups of undertakings, taking into account that in one of the cases it is the  downstream liability of a subsidiary company for an infringement committed by its parent company that is at stake. Intense reference here of course to CJEU Athenian Brewery.

(79) ff addresses the role of the foreseeability of the co-defendant’s being sued in the jurisdiction of the anchor defendant.

I wholly agree with the AG’s view (81) that “foreseeability is not.. an independent criterion that is examined alongside the other elements defining the fulfilment of the provision at issue.” And, (82)

there is no requirement under Article 8(1) of the Brussels I bis Regulation for the co-defendant him or herself to have specifically foreseen that he or she would be sued in the jurisdiction of the anchor defendant. Rather, abstract foreseeability, in the form of the ability of an informed and reasonable defendant to foresee before which courts he or she might be sued outside his or her State of domicile, is sufficient.

(83) a ‘close connection’ with the defendant, such as here through the group undertaking issue, is particularly relevant in this respect.

I have seen many instances recently where opposing counsel banks on lack of predictability to propose rejecting jurisdiction. I would welcome a finding by the CJEU that brings that interpretative rule back to its true nature.

(87) ff then addresses territorial jurisdiction under A8(1). Statutory interpretation as the AG argues, points to a strong yes (reference ia to FTI Touristik) as does linguistic comparison and the report Jenard, despite the CJEU not having yet ruled on the issue viz A8(1) specifically. If there are two anchor defendants in the same Member State, and subject to the effectiveness of EU jurisdictional law not being impaired, national CPR ought to be allowed to join the case against both, but only I assume in one of the courts where the conditions of A8(1) are fulfilled (see (97) “a court which considers itself to lack jurisdiction may take up the option to make a reference to another court available under its national procedural law, provided that the effective enforcement of the Brussels I bis Regulation is not restricted as a result”).

All in all a very relevant Opinion, CJEU judgment is one to watch!

Geert.

EU Private International Law, 4th ed. 2024, 2.516.

https://bsky.app/profile/gavclaw.bsky.social/post/3lm7gymxlkk24

https://www.linkedin.com/posts/geert-van-calster-60abab9_more-on-the-blog-later-after-athenian-brewery-activity-7314912971514662913–mmY?utm_source=share&utm_medium=member_desktop&rcm=ACoAAAHHS6oB7DOA8jUedLLahLDL6cEwepyHYwA

https://x.com/GAVClaw/status/1909147234995782066

On 20 March 2025, the Danish Supreme Court ruled (in case BS-34884/2024-HJR) that a Chinese arbitral award could not be enforced in Denmark due to a lack of proper service. Background In 2020, a Chinese arbitral tribunal held that the investments that an investor had made for a company should be repaid. Since the defendant […]