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The European Legal Forum - CONTENTS Issue 1-2023

Private International Law and International Civil Procedure

Simon Laimer, Experiences with the European Certificate of Succession: The CJEU and the Austrian Supreme Court

International Civil Procedure

CJEU 7 July 2022 – C-7/21 – LKW Walter – unalex EU-934 – Service Regulation 1393/2007 Article 8(1); Charter of Fundamental Rights of the European Union Article 47

CJEU 30 June 2022 – C-652/20 – Allianz Elementar Versicherung – unalex EU-935 – Brussels Ia Regulation 1215/2012 Articles 11(1)(b) and 13(2)

OGH (AT) 29 September 2022 – 3Ob126/22h – unalex AT-1329 – Brussels Ia Regulation 1215/2012 Articles 24(5), 55

Family Law and Successions

CJEU 1 August 2022 – C-501/20 – MPA – unalex EU-947 – Brussels IIa Regulation 2201/2003 Articles 3, 6 to 8 and 14; Maintenance Regulation 4/2009 Articles 3 and 7

CJEU 14 July 2022 – C-572/21 – CC – unalex EU-932 – Brussels IIa Regulation 2201/2003 Articles 8(1) and 61(a)

OGH (AT) 18 March 2022 – 6Ob47/22p – unalex AT-1320 – Brussels IIa Regulation 2201/2003 Article 8(1); Hague Child Abduction Convention Article 3

European Consumer Law

CJEU 27 October 2022 – C 485/21 – S.V. – unalex EU-952 – Directive 93/13/EEC Article 2(b); Directive 2011/83/EU Article 2(1)

Law of the European Organisations

High Court of Justice, England and Wales (UK) 15 February 2022 – [2022] EWHC 243 (Ch) – Marc John Wilson and other v. Moira McNamara and others – unalex UK-1574 – TFEU Article 49

The European Legal Forum is directed at an international readership and provides researchers and legal practitioners with in-depth information on current developments in case law and legislation. The journal is linked to the unalex portal.

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The European Legal Forum - CONTENTS Issue 5/6-2022

Apostolos Anthimos, Enforceability of CAS awards in Greece – a short survey

Private International Law and International Civil Procedure

International Civil Procedure

CJEU 20 June 2022 – C-700/20 – London Steam-Ship Owners’ Mutual Insurance Association – unalex EU-936 – Brussels I Regulation 44/2001 Articles 1(2)(d), 34(1) and (3)

CJEU 10 March 2022 – C-498/20 – BMA Nederland – unalex EU-927– Brussels Ia Regulation 1215/2012 Articles 7(2) and 8(2); Rome II Regulation 864/2007 Article 4

CJEU 2 June 2022 – C-196/21 – SR – unalex EU-937 – Service Regulation 2007 Article 5

Cour de Cassation (FR) 29 June 2022 – 21-10.106 – unalex FR-1552 – Brussels Ia Regulation Articles 6(1), 21(2); Geneva refugees Convention Article 16

Bundesgericht (CH) 27 January 2022 – 4A_449/2021 – unalex CH-642 – Lugano Convention 2007 Article 5(1)

Family Law and Successions

CJEU 2 June 2020 – C-617/20 – T.N., N.N. – unalex EU-938 – European Succession Regulation 650/2012 Articles 13 and 28

OGH (AT) 29 March 2022 – 4Ob209/21w – unalex AT-1322 – Brussels IIa Regulation Article 15(1)

BGH (DE) 26 January 2022 – XII ZB 306/19 – unalex DE-3694 – Hague Maintenance Convention 2007 Articles 23(7)(a) and 22(e)(i)

Insolvency Law

BGH (DE) 7 July 2022 – IX ZB 14/21 – unalex DE-3701 – European Insolvency Regulation 2015/848 Article 3(1)

Private International Law

OGH (AT) 22 June 2022 – 6Ob186/21b – unalex AT–1325 – Rome I Regulation Articles 1(2)(f) and 4; Rome II Regulation Articles 1 and 4

International and European Commercial and Company Law

CJEU 2 June 2022 – C-589/20 – Austrian Airlines – unalex EU-939 –Montreal Convention Articles 17(1), 20

BGH (DE) 27 September 2022 – X ZR 35/22– unalex DE-3703 – Passenger Rights Regulation Articles 5(1)(a) and 8(1)

International and European Business and Competition Law

CJEU 28 April 2022 – C-531/20 – NovaText – unalex EU-924 – Directive 2004/48/EC Articles 3 and 14

Law of the European Organisations

CJEU 14 December 2021 – C-490/20 – Stolichna obshtina, rayon ‘Pancharevo’ – unalex EU-905 – TEU Article 4(2); TFEU Articles 20, 21; Charter of Fundamental Rights

The European Legal Forum is directed at an international readership and provides researchers and legal practitioners with in-depth information on current developments in case law and legislation. The journal is linked to the unalex portal.

Request a free trial copy sending an email to: service@unalex.eu or click here for detailed information on subscription prices.

Find all cases in the unalex Case Collection and in the corresponding Compendia. (Please note: If you are not a registered user you can access 2 judgments per day for free.)

The European Legal Forum - CONTENTS Issue 4-2022

Private International Law and International Civil Procedure

International Civil Procedure

CJEU 21 December 2021 – 7 April 2022 – C-568/20 – H Limited – unalex EU-920 – Brussels Ia Regulation Articles 2(a), 39, 45, 46

CJEU 3 February 2022 – C-20/21 – LOT Polish Airlines – unalex EU-918 – Brussels Ia Regulation Article 7(1)(b); Denied Boarding Regulation 261/2004 Article 7

England and Wales Court of Appeal (Civil Division) (UK) 29 April 2022 – [2022] EWCA Civ 557 – Mincione v Gedi Gruppo Editoriale SPA – unalex UK-1572 – Brussels Ia Regulation Article 7(2)

Family Law and Successions

CJEU 7 April 2022 – C-645/20 – V A, Z A v. TP – unalex EU-919 – European Succession Regulation 650/2012 Article 10(1)(a)

OGH (AT) 26 April 2022 – 2Ob47/22h – unalex AT-1324 – Lugano Convention 2007 Article 1(2)(a)

Insolvency Law

CJEU 24 March 2022 – C-723/20 – Galapagos BidCo. – unalex EU-926 – Insolvency Regulation 2015/848 Article 3(1)

OGH (AT) 8 April 2022 – 17Ob12/21w – unalex AT-1323 – European Insolvency Regulation Article 6(1)

Private International Law

CJEU 3 March 2022 – C-421/20 – Acacia – unalex EU-928 – Rome II Regulation Article 8(2); Community Designs Regulation Articles 82(5) and 89(1)(d)

BGH (DE) 25 January 2022 – II ZR 215/20 – unalex DE-3693 – Rome II Regulation Article 1(2)(d)

Information on Current Issues

The new Brussels IIb Regulation

The European Legal Forum is directed at an international readership and provides researchers and legal practitioners with in-depth information on current developments in case law and legislation. The journal is linked to the unalex portal.

Request a free trial copy sending an email to: service@unalex.eu or click here for detailed information on subscription prices.

Find all cases in the unalex Case Collection and in the corresponding Compendia. (Please note: If you are not a registered user you can access 2 judgments per day for free.)

The European Legal Forum - CONTENTS Issue 2/3-2022

Transport Law

Pietro Sanna, Compensation for Maritime Travel Cancellation: The First Judgment by the Court of Justice of the European Union on Regulation (EU) No 1177/2010

Private International Law and International Civil Procedure

International and European Procedural Law

CJEU 21 December 2021 – C-251/20 – Gtflix Tv – unalex EU-910 – Brussels Ia Regulation 1215/2012 Article 7(2)

CJEU 6 October 2021 – C-581/20 – TOTO – unalex EU-899 – Brussels Ia Regulation 1215/2012 Articles 1(1) and 35

OGH (AT) 28 September 2021 – 2Ob6/21b – unalex AT-1309 – Brussels Ia Regulation 1215/2012 Articles 11(1)(b) and 13(2)

BGH (DE) 15 June 2021 – II ZB 35/20 – unalex DE-3689 – Brussels Ia Regulation Articles 1(2)(b), 25 and 31(2)(a)

Family Law and Successions

CJEU 10 February 2022 – C-522/20 – OE – unalex EU-917 – Brussels IIa Regulation 2201/2003 Article 3(1)(a)

CJEU 2 August 2021 – C-262/21 PPU – A – unalex EU-889 – Brussels IIa Regulation 2201/2003 Article 2(11) and 11(4); Dublin III Regulation 604/2013; 1980 Hague Convention Article 13(1)(b) and 20

England and Wales Court of Appeal (Civil Division) (UK) 29 March 2022 – [2022] EWCA Civ 409 – Luca Manetta v. Katia De Filippo – unalex UK-1573 – Brussels IIa Regulation Article 19(3)

OGH (AT) 15 November 2022 – 6Ob204/21z – unalex AT-1315 – Hague Child Abduction Convention 1980 Article 12

Law of the European Organisations

CJEU Union 18 January 2022 – C-261/20 – Thelen Technopark Berlin – unalex EU-914 – TFEU Article 49; Directive 2006/123/EC Articles 15(1), (2)(g) and (3)

The European Legal Profession

CJEU 31 January 2022 – C-55/20 – Minister Sprawiedliwości – unalex EU-915 – TFEU Article 267; Directive 2006/123/EC Article 4 point (6) and Article 10(6); Charter of Fundamental Rights of the European Union Article 47

The European Legal Forum is directed at an international readership and provides researchers and legal practitioners with in-depth information on current developments in case law and legislation. The journal is linked to the unalex portal.

Request a free trial copy sending an email to: service@unalex.eu or click here for detailed information on subscription prices.

Find all cases in the unalex Case Collection and in the corresponding Compendia. (Please note: If you are not a registered user you can access 2 judgments per day for free.)

The European Legal Forum - CONTENTS Issue 1-2022

Private International Law and International Civil Procedure

International Civil Procedure

CJEU 9 December 2021 – C-708/20 – BT – unalex EU-906 – Brussels Ia Regulation 1215/2012 Article 13(3)

CJEU 9 December 2021 – C-242/20 – HRVATSKE ŠUME – unalex EU-907 – Brussels I Regulation 44/2001 Articles 5(3), 22(5)

CJEU 30 September 2021 – C-296/20 – Commerzbank – unalex EU-897 – Lugano Convention 2007 Article 15(1)(c)

Bundesgericht (CH) 23 August 2021 – 5A_1071/2020 – unalex CH-637 – Lugano Convention 2007 Articles 1(2)(a) and 38

BGH (DE) 15 July 2021 – IX ZB 73/19 – unalex DE-3691 – Brussels Ia Regulation 1215/2012 Articles 49(2), 75(b)

Cour de Cassation (FR) 27 January 2021 – 19-16.917 – unalex FR-2548 – Brussels Ia Regulation 1215/2012 Article 35

Family Law and Successions

CJEU 9 September 2021 – C-277/20 – UM – unalex EU-893 – Succession Regulation 650/2012 Articles 3(1)(b), 83(2)

OGH (AT) 22 October 2021 – 8Ob119/21i – unalex AT-1313 – Brussels IIa Regulation 2201/2003 Article 3(1)(a)

Insolvency Law

CJEU 25 November 2021 – C-25/20 – Alpine BAU – unalex EU-904 – Insolvency Regulation 1346/2000 Articles 4, 28, 32(2)

Private International Law

CJEU 10 February 2022 – C-595/20 – ShareWood Switzerland – unalex EU-916 – Rome I Regulation 593/2008 Article 6(4)(c)

Cour de Cassation (FR) 19 September 2021 – 20-18.954 – unalex FR-2551 – Hague Convention 1978 on agency contracts Articles 5, 6 ; Rome I Regulation 593/2008 Article 3(1)(4)

International and European Commercial and Company Law

CJEU 6 October 2021 – C-613/20 – Eurowings – unalex EU-898 – Denied Boarding Regulation 261/2004 Article 5(3)

International and European Criminal Law

CJEU 6 October 2021 – C-338/20 – Prokuratura Rejonowa Łódź-Bałuty – unalex EU-900 – Framework Decision 2005/214/JHA Article 20(3)

The European Legal Forum is directed at an international readership and provides researchers and legal practitioners with in-depth information on current developments in case law and legislation. The journal is linked to the unalex portal.

Request a free trial copy sending an email to: service@unalex.eu or click here for detailed information on subscription prices.

Find all cases in the unalex Case Collection and in the corresponding Compendia. (Please note: If you are not a registered user you can access 2 judgments per day for free.)

The European Legal Forum - CONTENTS Issue 5/6-2021

Ş. Barış Özçelik , Civil Liability Regime for Artificial Intelligence: A Critical Analysis of European Parliament’s Proposal for a Regulation

Private International Law and International Civil Procedure

Apostolos Anthimos , Application of foreign law for examining limitation of action before Greek courts: Procedural acts and their repercussions in substance

International Civil Procedure

CJEU 9 September 2021 – C-208/20 and C-256/20 – Toplofikatsia Sofia and Others – unalex EU-894 – Evidence Regulation Regulation (EC) No 1206/2001 Article 1(1)(a); Brussels Ia Regulation 1215/2012 Article 5(1)

CJEU 15 July 2021 – C-30/20 – Volvo and Others – unalex EU-891 – Brussels Ia Regulation 1215/2012 Article 7(2); TFEU Article 101

Bundesgericht (CH) 26 August 2021 – 5A_370/2021 – unalex CH-638 –Lugano Convention 2007 Articles 1(2)(a) and 22(5)

Court of Appeal (Civil Division) (UK) 14 May 2021 – [2021] EWCA Civ 687 – Alta Trading UK Ltd and others v. Peter Miles Bosworth and others – unalex UK-1571 – Lugano Convention 2007 Article 18(1)

Family Law and Successions

CJEU 9 September 2021 – C-422/20 – RK – unalex EU-892 – Succession Regulation 650/2012 Articles 6a, 7(a), 22, 39 and 83(4)

OGH (AT) 26 May 2021 – 2Ob48/21d – unalex AT-1304 – European Successions Regulation 650/2012 Article 4

OGH (AT) 12 May 2021 – 6Ob83/21f – unalex AT-1302 – Hague Child Abduction Convention 1980 Article 8(2)

Private International Law

CJEU 15 July 2021 – C-152/20 and C-218/20 – SC Gruber Logistics – unalex EU-890 – Rome I Regulation 593/2008 Articles 3 and 8

BGH (DE) 3 March 2021 – IV ZR 312/19 – unalex DE-3688 – Rome I Regulation 593/2008 Article 7(4)(b); Rome II Regulation 864/2007 Article 19

International and European Commercial and Company Law

Sven Bates, Julian Godfray and Johanna Asplund , The EU, Iran, and the Blocking Regulation: Catch 22 Continued

Law of the European Organisations

CJEU 1 September 2021 – C-387/20 – OKR – unalex EU-895 – TFEU Article 267; European Succession Regulation 650/2012 Articles 22 and 75

The European Legal Forum is directed at an international readership and provides researchers and legal practitioners with in-depth information on current developments in case law and legislation. The journal is linked to the unalex portal.

Request a free trial copy sending an email to: service@unalex.eu or click here for detailed information on subscription prices.

Find all cases in the unalex Case Collection and in the corresponding Compendia. (Please note: If you are not a registered user you can access 2 judgments per day for free.)

The European Legal Forum - CONTENTS Issue 3/4-2021

Private International Law and International Civil Procedure

Maoli Francesca , Children’s right to information in civil proceedings: current practice and future perspectives in the EU area of freedom, security and justice

MiRI project “Minor’s Right to Information in civil actions” , The right of the child to information in cross-border civil proceedings – Guidelines on cross-border best practices

International Civil Procedure

CJEU 17 June 2021 – C-800/19 – Mittelbayerischer Verlag – unalex EU-885 – Brussels Ia Regulation 1215/2012 Article 7(2)

CJEU 3 June 2020 – C-280/20 – ZN v. Generalno konsulstvo na Republika Bulgaria – unalex EU-884 – Brussels Ia Regulation 1215/2012 Article 5(1)

CJEU 20 May 2021 – C-913/19 – CNP – unalex EU-883 – Brussels Ia Regulation 1215/2012 Articles 7(2), 7(5), 10, 11(1)(a), 13(2)

BGH (DE) 20 October 2020 – X ARZ 124/20 – unalex DE-3682 – Lugano Convention 2007, Articles 6(1), 15; Brussels Ia Regulation 1215/2012 Article 17

Family Law and Successions

CJEU 1 July 2021 – C-301/20 – UE, HC v. Vorarlberger Landes- und Hypothekenbank AG – unalex EU-888 – European Succession Regulation 650/2012 Articles 65(1), 69 and 70(3)

OGH (AT) 12 May 2021 – 6Ob66/21f – unalex AT-1303 – Brussels IIa Regulation 2201/2003 Article 21(1)

Insolvency Law

High Court Queen’s Bench Division (UK) 06 May 2021 – [2021] EWHC 1168 (QB) – Lars Windhorst v. Albert Levy – unalex UK-1569 – Brussels I Regulation 44/2001 Articles 34, 35 and 45; European Insolvency Regulation 1346/2000 Article 17(1)

The European Legal Forum is directed at an international readership and provides researchers and legal practitioners with in-depth information on current developments in case law and legislation. The journal is linked to the unalex portal.

Request a free trial copy sending an email to: service@unalex.eu or click here for detailed information on subscription prices.

Find all cases in the unalex Case Collection and in the corresponding Compendia. (Please note: If you are not a registered user you can access 2 judgments per day for free.)

The European Legal Forum - CONTENTS Issue 2-2021

Private International Law and International Civil Procedure

Apostolos Anthimos, Greek Supreme Court on Enforcement of UK Divorce Financial Payment

International Civil Procedure

CJEU 12 May 2021 – C-709/19 – Vereniging van Effectenbezitters – unalex EU-882 – Brussels Ia Regulation 1215/2012 Article 7(2)

CJEU 25 March 2021 – C-307/19 – Obala i lučice – unalex EU-875 – Brussels Ia Regulation 1215/2012 Articles 1, 7(1) and 24(1) ; Rome I Regulation ; Rome II Regulation ; Service Regulation 1393/2007

CJEU 24 November 2020 – C-59/19 – Wikingerhof – unalex EU-867 – Brussels Ia Regulation 1215/2012 Article 7(1) and (2)

OGH (AT) 27 November 2020 – 1Ob203/20i – unalex AT-1291 – European Order for Payment Regulation 1896/2006 Articles 20 and 26

Family Law and Successions

CJEU 16 July 2020 – C-80/19 – E. E. (Jurisdiction and law applicable to inheritance) – unalex EU-857 – European Succession Regulation 650/2012 Articles 3(2); 3(1)(g) and (i); 5, 7, 22 and 83(2) and (4)

OGH (AT) 25 February 2021 – 7Ob1/20b – unalex AT-1296 – European Successions Regulation 650/2012 Articles 21, 22 and 36

Insolvency Law

CJEU 22 April 2021 – C-73/20 – Oeltrans Befrachtungsgesellschaft – unalex EU-878 – Insolvency Regulation 1346/2000 Articles 4 and 13; Rome I Regulation Article 12(1)(b)

Private International Law

Mónika Csöndes, Curia of Hungary on the qualification of ‘indirect consequences’ of a traffic accident under the Rome II Regulation

Law of the European Organisations

Supreme Court (IE) 22 March 2021 – Appeal No: 76/2020 – Protégé International Group (Cyprus) Limited and Avalon International Management Inc. v. Irish Distillers Limited – unalex IE-143 – Charter of Fundamental Rights of the European Union Article 47

The European Legal Profession

CJEU 3 June 2021 – C-914/19 – Ministero della Giustizia (Notaries) – unalex EU-887 – TFEU Article 10; Council Directive 2000/78/EC Article 6

The European Legal Forum is directed at an international readership and provides researchers and legal practitioners with in-depth information on current developments in case law and legislation. The journal is linked to the unalex portal.

Request a free trial copy sending an email to: service@unalex.eu or click here for detailed information on subscription prices.

Find all cases in the unalex Case Collection and in the corresponding Compendia. (Please note: If you are not a registered user you can access 2 judgments per day for free.)

The University of Szeged Faculty of Law and the ELKH Centre for Social Sciences, Institute for Legal Studies are organizing an international online conference:

Cross-Border Litigation in Central-Europe: EU Private International Law before National Courts

The conference will present the main results of the EU-funded CEPIL research project (“Cross-Border Litigation in Central-Europe: EU Private International Law before National Courts”, 800789 — CEPIL — JUST-AG-2017/JUST-JCOO-AG-2017). The CEPIL project inquires whether EU PIL functions optimally in the CE Member States in order to secure “a Europe of law and justice”. It examines whether EU PIL instruments are applied in CE Member States in a correct and uniform manner, whether Member State courts deal appropriately with disputes having a cross-border element and whether the current legal and institutional architecture is susceptible of securing legal certainty and an effective remedy for cross-border litigants. The project’s research output will be published by Kluwer International.

The online conference will take place via Microsoft Teams on July 6, 2021.

The full programme of the event is available here.

Participation is free but online registration is kindly requested to receive the link to the conference, which will be emailed shortly before the event.

The European Legal Forum - CONTENTS Issue 1-2021

Private International Law and International Civil Procedure

International Civil Procedure

CJEU 25 February 2020 – C-804/19 – Markt24 – unalex EU-871 – Brussels Ia Regulation 1215/2012 Articles 7(1) and 21(1)(b)(i)

CJEU 10 December 2020 – C-774/19 – A.B., B.B. v. Personal Exchange International – unalex EU-869 – Brussels I Regulation 44/2001 Article 15(1)

CJEU 18 November 2020 – C-519/19 – DelayFix – unalex EU-866 – Brussels Ia Regulation 1215/2012 Article 25(1); Directive 93/13/EEC

CJEU 3 September 2020 – C-186/19 – Supreme Site Services and Others – unalex EU-862 – Brussels Ia Regulation 1215/2012 Articles 1(1) and 24(5)

Obergericht des Kantons Zürich (CH) 29 December 2020 – RT200133-O/U – unalex CH-633 – Lugano Convention 1988 Articles 46, 47 and 48

Family Law and Successions

CJEU 24 March 2021 – C-603/20PPU – MCP – unalex EU-874 – Brussels IIa Regulation 2201/2003 Article 10

BGH (DE) 28 October 2020 – XII ZB 187/20 – unalex DE-3681 – Brussels IIa Regulation 2201/2003 Articles 2, 21 and 46

OGH (AT) 29 June 2020 – 2Ob123/19f – unalex AT-1270 – European Successions Regulation 650/2012 Articles 3(1)(b), 3(1)(c), 24 and 25

International and European Labour Law

CJEU 17 March 2021 – C-585/19 – Academia de Studii Economice din Bucureşti – unalex EU-876 – Directive 2003/88/EC Articles 2(1), 3 and 6(b)

The European Legal Profession

CJEU 10 March 2021 – C-739/19 – An Bord Pleanála – unalex EU-872 – Directive 77/249/EEC Article 5

The European Legal Forum is directed at an international readership and provides researchers and legal practitioners with in-depth information on current developments in case law and legislation. The journal is linked to the unalex portal.

Request a free trial copy sending an email to: service@unalex.eu or click here for detailed information on subscription prices.

Find all cases in the unalex Case Collection and in the corresponding Compendia. (Please note: If you are not a registered user you can access 2 judgments per day for free.)

The European Legal Forum - CONTENTS Issue 5/6-2020

Private International Law and International Civil Procedure

Ilaria Queirolo and Stefano Dominelli, Articles 67 and 71 Brussels Ia Regulation ‘Lex Specialis Derogat Lex Generalis’ Principle: Some Critical Remarks

International Civil Procedure

Lucie Dolanská Bányaiová, Czech Supreme Court applies Lugano Convention

unalex EU-865

unalex EU-863

CJEU 16 July 2020 – C-73/19 – Movic – unalex EU-858 – Brussels Ia Regulation 1215/2012 Article 1(1)

unalex EU-853

unalex IE-141

unalex DE-3674

Family Law and Successions

CJEU 17 September 2020 – C-540/19 – Landkreis Harburg – unalex EU-864 – Maintenance Regulation 2/2019 Article 3(b)

International and European Commercial and Company Law

Transport Law

Stefano Dominelli, Disruption of flights and competent court(s): severability of claims under the Air passenger rights regulation and the 1999 Montreal convention in Italy after Guaitoli C-213/18 unalex EU-811

Current Information

Cristina González Beilfuss and Marta Pertegás Sender, In Memoriam Alegría Borrás Rodríguez (1943-2020)

The European Legal Forum is directed at an international readership and provides researchers and legal practitioners with in-depth information on current developments in case law and legislation. The journal is linked to the unalex portal. Request a free trial copy sending an email to: service@unalex.eu or click here for detailed information on subscription prices.

Find all cases in the unalex Case Collection and in the corresponding Compendia. (Please note: If you are not a registered user you can access 2 judgments per day for free.)

The European Legal Forum - CONTENTS Issue 2/3-2020

Evripidis Rizos, ECHR Judgement on the case Theodorou and Tsotsorou v Greece (5.9.2019) concerning the impediment to marriage due to affinity: How should Greece legislatively comply with the ECHR Judgement?

Private International Law and International Civil Procedure

International Civil Procedure

CJEU 2 April 2020 – C-500/18 – Reliantco Investments – unalex EU-828 – Brussels Ia Regulation 1215/2012 Article 7(2) and 17(1)(c); Directive 2004/39/EC Article 4(1)

unalex EU-824

CJEU 13 February 2020 – C-606/19 – Flightright – unalex EU-826 – Brussels Ia Regulation 1215/2012 Article 7(1)(b); Denied Boarding Regulation 261/2004

Family Law and Successions

High Court of Ireland (IE) 30 July 2019 – [2019] IEHC 641 – unalex IE-140 – Brussels IIa Regulation 2201/2003 Articles 8, 15 and 17

OGH (AT) 28 March 2019 – 2Ob59/18t – unalex AT-1213 – European Succession Regulation 650/2012 Article 3

Insolvency Law

CJEU 4 December 2019 – C-493/18 – Tiger – unalex EU-816 – European Insolvency Regulation 1346/2000 Articles 3(1) and 25(1)

International and European Commercial and Company Law

CJEU 19 December 2019 – C-532/18 – Niki Luftfahrt – unalex EU-818 – Montreal Convention Article 17(1)

International and European Intellectual Property Law

CJEU 21 November 2019 – C-678/18 – Procureur-Generaal bij de Hoge Raad der Nederlanden – unalex EU-812 – Community Design Regulation 6/2002 Article 90(1)

OGH (AT) 24 September 2019 – 4Ob138/19a – unalex AT-1241 – Community Design Regulation 6/2002 Articles 19, 82(5)

The European Legal Forum is directed at an international readership and provides researchers and legal practitioners with in-depth information on current developments in case law and legislation. The journal is linked to the unalex portal. Request a free trial copy sending an email to: service@unalex.eu or click here for detailed information on subscription prices.

Find all cases in the unalex Case Collection and in the corresponding Compendia. (Please note: If you are not a registered user you can access 2 judgments per day for free.)

Notes and comment authored by Evripidis Rizos*:

ECHR Judgement on the case Theodorou and Tsotsorou v Greece (5.9.2019) concerning the impediment to marriage due to affinity: How should Greece legislatively comply with the ECHR Judgement?

Abstract: The European Court of Human Rights held recently that the annulment of a marriage between former siblings-in-law ten years after the solemnisation of the marriage due to a statutory prohibition of the Greek Law (Article 1357 of the Greek Civil Code) was a violation of Article 12 (right to marry) of the European Convention on Human Rights. This paper examines which is the best possible way for Greece to comply not just with this specific judgement but with the normative content of Article 12 in general as well concerning the affinity impediment. The paper concludes that the abolition of the collateral affinity impediment seems necessary. With respect to the lineal affinity impediment, the paper argues that its retention lies within the margin of appreciation of the Greek State, although some moderations seem necessary as well.

* Dr. Evripidis Rizos, Assistant Professor of Civil Law, Aristotle University Thessaloniki, Department of Law. Member of the EuLF national Board of Greece, email: eurizos@law.auth.gr.

The entire essay is published in the recent edition of the portal's legal journal The European Legal Forum 2/3-2020

Call for papers!

The EuLF is published 5-6 times a year. Authors are invited to submit on a rolling basis unpublished papers in the legal areas of Private International Law and International Civil Procedure, International and European Commercial and Company Law, International and European Business and Competition Law, International and European Intellectual Property Law, European Consumer Law, International and European Labour Law, Law of the European Organisations, as well as on the European Legal Profession itself. For more information as well as for details on submission please click here.

According to the judgement in case C-452/18 – XZ v Ibercaja Banco SA – delivered on 09 July 2020 by the Court of Justice concerning the interpretation of Articles 3 to 6 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29), the Court finds that:

Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as not precluding a term in a contract concluded between a seller or supplier and a consumer, which might be found by a court to be unfair, from being the subject of a novation agreement between that seller or supplier and that consumer, whereby the consumer waives the effects that would result from that term being found to be unfair, provided that that waiver is the result of the consumer’s free and informed consent, which it is for the national court to verify.

Article 3(2) of Directive 93/13 must be interpreted as meaning that a term in a contract concluded between a seller or supplier and a consumer for the purpose of amending a potentially unfair term in a previous contract concluded between them or for the purpose of dealing with the consequences of that other term being unfair may itself be regarded as not having been individually negotiated and, where appropriate, be found to be unfair.

Articles 3(1), 4(2) and 5 of Directive 93/13 must be interpreted as meaning that the requirement of transparency incumbent on a seller or supplier under those provisions means that, when concluding a mortgage loan agreement subject to a variable interest rate that contains a ‘floor’ term, the consumer must be placed in a position to understand the economic consequences that the mechanism initiated by such a term will cause for him or her, in particular by means of being provided with information on past changes in the index on the basis of which the interest rate is calculated.

Examination of Commission Decision 2010/87/EU of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EU of the European Parliament and of the Council, as amended by Commission Implementing Decision (EU) 2016/2297 of 16 December 2016 in the light of Articles 7, 8 and 47 of the Charter of Fundamental Rights has disclosed nothing to affect the validity of that decision.

Article 3(1) of Directive 93/13, read in conjunction with paragraph 1(q) of the Annex thereto and Article 6(1) of that directive, must be interpreted as meaning that:

– a term included in a contract concluded between a seller or supplier and a consumer with a view to resolving an existing dispute, whereby the consumer waives the right to submit to a national court claims that he or she could have submitted in the absence of that term, may be regarded as ‘unfair’, in particular where the consumer was not provided with the relevant information enabling him or her to understand the legal consequences for him or her;

– a term whereby the same consumer waives, in respect of future disputes, the right to take legal action based on his or her rights under Directive 93/13 is not binding on the consumer.

Please read the entire judgement of case C-452/18 here.

According to the judgement in case C-253/19 – MH, NI v OJ, Novo Banco SA – delivered on 16 July 2020 by the Court of Justice concerning the interpretation of Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (OJ 2015 L 141, p. 19), the Court finds that:

The first and fourth subparagraphs of Article 3(1) of Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings must be interpreted as meaning that the presumption established in that provision for determining international jurisdiction for the purposes of opening insolvency proceedings, according to which the centre of the main interests of an individual not exercising an independent business or professional activity is his or her habitual residence, is not rebutted solely because the only immovable property of that person is located outside the Member State of habitual residence.

The case will be added to the unalex Case Collection and to the unalex Compendium on the Insolvency Regulation (recast).

Please read the entire judgement of case C-253/19 here.

According to the judgement in case C-311/18 – Data Protection Commissioner v Facebook Ireland Ltd, Maximillian Schrems– delivered on 16 July 2020 by the Court of Justice concerning the interpretation of the first indent of Article 3(2), Articles 25 and 26 and Article 28(3) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31), read in the light of Article 4(2) TEU and of Articles 7, 8 and 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’);

the interpretation and validity of Commission Decision 2010/87/EU of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46 (OJ 2010 L 39, p. 5), as amended by Commission Implementing Decision (EU) 2016/2297 of 16 December 2016 (OJ 2016 L 344, p. 100) (‘the SCC Decision’); and

the interpretation and validity of Commission Implementing Decision (EU) 2016/1250 of 12 July 2016 pursuant to Directive 95/46 on the adequacy of the protection provided by the EU-US Privacy Shield (OJ 2016 L 207, p. 1; ‘the Privacy Shield Decision’), the Court finds that:

Article 2(1) and (2) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), must be interpreted as meaning that that regulation applies to the transfer of personal data for commercial purposes by an economic operator established in a Member State to another economic operator established in a third country, irrespective of whether, at the time of that transfer or thereafter, that data is liable to be processed by the authorities of the third country in question for the purposes of public security, defence and State security.

Article 46(1) and Article 46(2)(c) of Regulation 2016/679 must be interpreted as meaning that the appropriate safeguards, enforceable rights and effective legal remedies required by those provisions must ensure that data subjects whose personal data are transferred to a third country pursuant to standard data protection clauses are afforded a level of protection essentially equivalent to that guaranteed within the European Union by that regulation, read in the light of the Charter of Fundamental Rights of the European Union. To that end, the assessment of the level of protection afforded in the context of such a transfer must, in particular, take into consideration both the contractual clauses agreed between the controller or processor established in the European Union and the recipient of the transfer established in the third country concerned and, as regards any access by the public authorities of that third country to the personal data transferred, the relevant aspects of the legal system of that third country, in particular those set out, in a non-exhaustive manner, in Article 45(2) of that regulation.

Article 58(2)(f) and (j) of Regulation 2016/679 must be interpreted as meaning that, unless there is a valid European Commission adequacy decision, the competent supervisory authority is required to suspend or prohibit a transfer of data to a third country pursuant to standard data protection clauses adopted by the Commission, if, in the view of that supervisory authority and in the light of all the circumstances of that transfer, those clauses are not or cannot be complied with in that third country and the protection of the data transferred that is required by EU law, in particular by Articles 45 and 46 of that regulation and by the Charter of Fundamental Rights, cannot be ensured by other means, where the controller or a processor has not itself suspended or put an end to the transfer.

Examination of Commission Decision 2010/87/EU of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EU of the European Parliament and of the Council, as amended by Commission Implementing Decision (EU) 2016/2297 of 16 December 2016 in the light of Articles 7, 8 and 47 of the Charter of Fundamental Rights has disclosed nothing to affect the validity of that decision.

Commission Implementing Decision (EU) 2016/1250 of 12 July 2016 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the EU-US Privacy Shield is invalid.

Please read the entire judgement of case C-311/18 here.

According to the judgement in case C-249/19 – JE v KF – delivered on 16 July 2020 by the Court of Justice concerning the interpretation of Article 10 of Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (OJ 2010 L 343, p. 10), the Court finds that:

Article 10 of Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation must be interpreted as meaning that the expression ‘where the law applicable by virtue of Article 5 or Article 8 makes no provision for divorce’ applies only where the foreign law applicable makes no provision for divorce in any form.

The case will be added to the unalex Case Collection and the unalex Compendium on the Rome III Regulation.

Please read the entire judgement of case C-249/19 here.

On 14 July 2020, Austria deposited its instruments of ratification to the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Service Convention).

The Service Convention will enter into force for Austria on 12 September 2020.

For more on that please click here.

Easy access to the legislative text provided with keywords and helpful information on its application? Please use the menu on the left-hand side - unalex Legislative Texts!

According to the judgement in case C-343/19 – Verein für Konsumenteninformation v Volkswagen AG – delivered on 9 July 2020 by the Court of Justice concerning the interpretation of Article 7 (2) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1) the Court finds that:

Point 2 of Article 7 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that, where a manufacturer in a Member State has unlawfully equipped its vehicles with software that manipulates data relating to exhaust gas emissions before those vehicles are purchased from a third party in another Member State, the place where the damage occurs is in that latter Member State.

The case will be added to the unalex Case Collection.

Please read the entire judgement of case C-343/19 here.

The European Parliament and the EU Council Presidency (of Croatia) reached a provisional agreement on two amended regulations: one on the taking of evidence and a second on the service of documents. These amendments aim to modernise judicial cross-border cooperation between national courts by clearly pushing forward digitalisation to enhance efficiency in civil and commercial matters and to replace the earlier international, more laboriously system of the Hague Conventions between the Member States.

The planned amendments seek to:

• enable Courts to exchange documents fast, secure and effective electronically;

• install a decentralised IT system which will be composed of national, interoperable IT systems, without involving any EU institution;

• increase the use of distance communication, such as videoconferencing, to lower costs and help evidence to be taken more quickly;

• ensure data protection, e.g., by immediately deleting personal data which is deemed irrelevant for a specific case.

The provisional agreements will now be submitted for endorsement by EU Member States' ambassadors.

For more on that please read the corresponding press notices of the European Parliament and/or of the Council of the European Union.

According to the judgement in case C-380/19 – Bundesverband der Verbraucherzentralen und Verbraucherverbände - Verbraucherzentrale Bundesverband eV v Deutsche Apotheker- und Ärztebank eG – delivered on 25 June 2020 by the Court of Justice concerning the interpretation of Article 13 of Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR) (OJ 2013 L 165, p. 63), the Court finds that:

Article 13(1) and (2) of Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on consumer alternative dispute resolution and repealing Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on ADR) are to be interpreted as meaning that a trader who provides in an accessible manner on his website the general terms and conditions of sales or service contracts, but concludes no contracts with consumers via that website, must provide in his general terms and conditions information about the ADR entity or ADR entities by which that trader is covered, when that trader commits to or is obliged to use that entity or those entities to resolve disputes with consumers. It is not sufficient in that respect that the trader either provides that information in other documents accessible on his website, or under other tabs thereof, or provides that information to the consumer in a separate document from the general terms and conditions, upon conclusion of the contract subject to those general terms and conditions.

The Court argues, in essence, that:

With regard to the question of whether the information about the identity of the ADR entity or ADR entities by which that trader is covered must be provided in the general terms and conditions available on the trader’s website even where that website is not used to conclude contracts with consumers, it should be noted that Article 13(2) of Directive 2013/11 refers to the general terms and conditions of sales or service contracts between a trader and a consumer. However, this article does not limit the information obligation provided therein to cases where the trader concludes contracts with consumers via his website. (Paragraph 28)

Under that provision, information about the ARD entity or ARD entities by which the trader is covered must be provided on the trader’s website, ‘if the trader maintains a website, and, if applicable, in the general terms and conditions’, with the expression ‘and, if applicable’ showing that the information must not only be provided on the trader’s website but also be included in those general terms and conditions when they are available on that website. (Paragraph 29)

It follows that, in accordance with Article 13(2) of Directive 2013/11, the information obligation provided therein is not satisfied if a trader who publishes his general terms and conditions on his website omits that information but includes it elsewhere on his website. (Paragraph 30)

Moreover, as is apparent from Article 3(3) of Directive 2013/11, read in the light of recital 48 thereof, the directive applies without prejudice to the provisions on consumer information on out-of-court redress procedures contained in other EU legal acts, which apply in parallel to the information obligation laid down in that directive. (Paragraph 31)

However, it is apparent from Article 6(1)(t) of Directive 2011/83 that consumers must be informed of the possibility of having recourse to an out-of-court complaint and redress mechanism to which the trader is subject and of the methods for having access to it ‘before’ being bound by a distance or off-premises contract, or any corresponding offer. (Paragraph 32)

In that regard, the Court has already held that Article 6(1) of Directive 2011/83 seeks to ensure the communication to consumers, before the conclusion of a contract, both of information concerning the contractual terms and the consequences of that conclusion, allowing consumers to decide whether they wish to be contractually bound to a trader, and of information necessary for proper performance of that contract and, in particular, for the exercise of their rights (…). (Paragraph 33)

In order for the consumer to be able to benefit from that information to that end, the consumer must receive that information in good time before the contract is concluded and not simply at the stage of concluding the contract, given that the information provided before the contract is concluded is of fundamental importance for a consumer (…). (Paragraph 34)

Therefore, under Article 13(2) of Directive 2013/11 and Article 6(1)(t) of Directive 2011/83, it is not sufficient that the consumer receives the information about ADR referred to therein simply at the time the contract is concluded with the trader, whether in the general terms and conditions of the contract or in a separate document from those general terms and conditions. (Paragraph 35)

Please read the entire judgement of case C-380/19 here.

From 22 June 2020 to 5 October 2020 the feedback period concerning the public consultation on International enforcement of court rulings (HCCH Judgments Convention), launched by the European Commission, is open.

With the consultation the Commission is seeking the opinion of the various stakeholders impacted, in order to feed into the process of assessing a possible future initiative for accessing the Judgments Convention.

The stakeholders and targeted audience, whose view is considered particularly relevant, are such as: businesses and citizens involved or likely to get involved in international trade and investment; public authorities (including justice professionals); social partners organisations (trade unions and employers organisations), trade, business and professional associations, including consumer and business organisations, as well as professional organisations representing lawyers and members of research or academic institutions.

Interested stakeholders can contribute to this consultation by filling in an online questionnaire or, if unable to do so, contact the Commission via email.

For detailed information please click here.

On 23 June 2020, the Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (Apostille Convention) entered into force for Palau following the deposit of its instrument of accession on 17 October 2019. Palau is not a Member of the HCCH yet, and this is the first HCCH Convention that Palau has joined.

For more on that please click here.

Easy access to the legislative text provided with keywords? Please use the menu on the left-hand side - unalex Legislative Texts!

New rules allow EU consumers to defend their rights collectively. Parliament and Council negotiators reached a deal on the first EU-wide rules on collective redress, on Monday, 22 June 2020.

The Representative Action Directive is a part of the “New Deal for Consumers”, launched in April 2018 by the European Commission, to ensure stronger consumer protection in the EU. It includes stronger consumer rights online, tools to enforce rights and compensation, penalties for violating EU consumer law and improved business conditions.

Collective redress with the aim:

• To ensure that consumers are better protected in “mass harm” situations

• To enable organisations or public bodies to launch actions on behalf of consumers

• To strengthen the “Loser pays principle” as safeguard against abusive lawsuits

Please click here for more information on the main elements of the agreement.

With a Consultation Note published on 16 June 2020 the European Commission launches a comprehensive trade policy review process based on broad consultations with stakeholders, including public debates undertaken across the EU Member States and written submissions.

The topics addressed are:

• Supporting socio-economic recovery and growth

• Supporting SMEs

• Supporting the green transition and making trade more sustainable and responsible

• Supporting the digital transition and technological development

• Ensuring fairness and a level playing field

Stakeholders are invited to provide their responses to the questions set out in the Consultation note by 15 September 2020 to the functional mailbox: trade-policy-review-2020@ec.europa.eu

This Consultation note will be available in July in all EU official languages.

For more on that please click here.

Published in the Official Journal of the European Union - C 202 I/1 - on 16 June 2020: Council conclusions on shaping Europe’s digital future.

The published document recognises and stresses anew the importance of digital technologies in the transformation of the European economy and society, especially as a means to achieve a climate neutral EU by 2050 – as underlined in the European Green Deal – and to create jobs, advance education and new digital skills, enhance competitiveness and innovation, promote the common good and foster better inclusion of citizens.

Furthermore, it welcomes the European Commission’s recent Digital Package: communications ‘Shaping Europe’s digital future’ and ‘A European strategy for data’, as well as the White Paper ‘On Artificial Intelligence – A European approach to excellence and trust’.

The document comments on the following topics in detail: Data and cloud, artificial intelligence, enabling technologies and digital value chains, cyber security, 5G/6G and connectivity, environmental sustainability, e-Health, the Digital Services Act, media policy, electronic identification and trust services, public administrations, standards and blockchain, skills and education, international dimension as well as digital taxation.

With the document the Council emphasis the need to monitor progress towards the implementation of the actions announced in the 19 February 2020 Digital Package, including through an updated Digital Economy and Society Index; Calls upon the Member States, the European Parliament and social partners to contribute actively to the success of the Digital Package and invites the Commission to inform the Council periodically about the progress achieved with regard to the implementation of the measures announced in the Digital Package.

New date for the postponed Colloquium on Applicable Law in Insolvency Proceedings, originally scheduled on 15 May 2020 in New York, will be the 11 December 2020. The International Colloquium, in cooperation with the Hague Conference on Private International Law, will now be held in Vienna.

According to the notice on the Uncitral website: “The Colloquium will be conducted on an informal basis, that is, not as an intergovernmental group. Given the limited seating capacity of the room, admission is restricted to professionals who deal with applicable law in insolvency proceedings. Persons or organizations wishing to participate in the Colloquium should write to benjamin.herisset[a]un.org and aurelien.kamdem-bansi[a]un.org expressing their interest to participate and indicating their relevant experience.”

For more on that please click here.

According to the judgement in case C-74/19 – LE v Transport Aéreos Portugueses SA– delivered on 11 June 2020 by the Court of Justice concerning the interpretation of Article 5(3) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1), the Court finds that:

Article 5(3) of Regulation No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, read in the light of recital 14 of that regulation, must be interpreted as meaning that the unruly behaviour of a passenger which has justified the pilot in command of the aircraft in diverting the flight concerned to an airport other than the airport of arrival in order to disembark that passenger and his baggage falls within the concept of ‘extraordinary circumstances’, within the meaning of that provision, unless the operating air carrier contributed to the occurrence of that behaviour or failed to take appropriate measures in view of the warning signs of such behaviour, which it is for the national court to verify.

Article 5(3) of Regulation No 261/2004, read in the light of recital 14 of that regulation, must be interpreted as meaning that, in order to be exempted from its obligation to compensate passengers in the event of a long delay or cancellation of a flight, an operating air carrier may rely on an ‘extraordinary circumstance’ which affected a previous flight which it operated using the same aircraft, provided that there is a direct causal link between the occurrence of that circumstance and the delay or cancellation of the subsequent flight, which is for the national court to determine, having regard in particular to the conditions of operation of the aircraft in question by the operating air carrier concerned.

Article 5(3) of Regulation No 261/2004, read in the light of recital 14 of that regulation, must be interpreted as meaning that for an air carrier to re-route a passenger, on the ground that the aircraft carrying that passenger was affected by an extraordinary circumstance, by means of a flight operated by that carrier and resulting in that passenger arriving on the day following the day originally scheduled, does not constitute a ‘reasonable measure’ releasing that carrier from its obligation to pay compensation under Article 5(1)(c) and Article 7(1) of that regulation, unless there was no other possibility of direct or indirect re-routing by a flight operated by itself or any other air carrier and arriving at a time which was not as late as the next flight of the air carrier concerned or unless the implementation of such re-routing constituted an intolerable sacrifice for that air carrier in the light of the capacities of its undertaking at the relevant time, which is a matter for the national court to assess.

The case will be added to the unalex Case Collection.

According to the judgement in case C-581/18 – RB v TÜV Rheinland LGA Products GmbH, Allianz IARD SA – delivered on 11 June 2020 by the Court of Justice concerning the interpretation of the first paragraph of Article 18 TFEU, the Court finds that:

The first paragraph of Article 18 TFEU must be interpreted as meaning that it is not applicable to a clause, stipulated in a contract concluded between an insurance company and a manufacturer of medical devices, limiting the geographical extent of the insurance coverage against civil liability arising from those devices to harm that has occurred in the territory of a single Member State, since such a situation does not fall, as EU law currently stands, within the scope of application of EU law.

The case in short:

The dispute in the main proceedings concerns an insurance contract, entered into by Allianz and the manufacturer of breast implants, PIP, which contained a clause limiting the geographical extent of the insurance coverage against civil liability, arising from the manufacture of those implants, to harm that occurred in metropolitan France or in French overseas territories. The referring court is uncertain, in that context, as to the compatibility of that clause with the first paragraph of Article 18 TFEU, in that, since that clause fails to provide that that insurance coverage extends to harm that has occurred throughout the European Union, that would amount to indirect discrimination on grounds of nationality, which is prohibited, as a general rule, by that provision.

The Court argues, in essence, that:

The first paragraph of Article 18 TFEU can apply to that dispute only where (i) that dispute relates to a situation which falls within the scope of application of EU law and (ii) that situation does not fall within the scope of a specific rule on non-discrimination laid down by the FEU Treaty.

In order to determine whether the first condition is satisfied in this instance, it is necessary to examine, in the first place, whether that situation has been the subject of regulation under EU law.

In that regard, it is clear that there is not, in EU secondary law, any provision which imposes an obligation on the manufacturer of medical devices to take out civil liability insurance designed to cover risks linked to those devices or which regulates, in one way or another, such insurance. (Paragraph 37)

It follows that, as EU law currently stands, insurance covering the civil liability of manufacturers of medical devices with respect to harm linked to those devices is not the subject of regulation by EU law, unlike, for example, the area of civil liability insurance in respect of the use of motor vehicles, which is regulated by Directive 2009/103/EC of the European Parliament and of the Council of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability (OJ 2009 L 263, p. 11), which imposes an obligation on each Member State to take the appropriate measures to ensure that an insurance contract also covers harm caused on the territory of other Member States. (Paragraph 44)

That said, it is necessary, in the second place, to determine whether the situation giving rise to the discrimination claimed in the present case falls within the scope of a fundamental freedom laid down by the FEU Treaty. (Paragraph 45)

According to the Court’s case-law, it is the exercise of one of those freedoms that brings the situation in which that freedom is exercised within the scope of the Treaties, within the meaning of the first paragraph of Article 18 TFEU. It is also necessary that there be a specific connecting factor linking the person, service or goods concerned and the alleged discrimination. Such a connection is particularly evident when the person who has suffered the alleged discrimination is a person who has moved within the European Union (…). (Paragraph 46)

(…) it is accordingly necessary to examine whether there is a particular connecting factor linking the specific situation that gives rise to the alleged discrimination and the provisions of the FEU treaty on the various freedoms of movement, particularly those relating to the free movement of persons, the free movement of goods or the freedom to provide services. (Paragraph 47)

As regards, first, the free movement of Union citizens, the Court has held that the situation of a Union citizen who has made use of his or her freedom of movement falls within the scope of Article 18 TFEU (judgments of 13 November 2018 Raugevicius , C-247/17, EU:C:2018:898, paragraph 27, and of 13 June 2019, TopFit and Biffi, C-22/18, EU:C:2019:497, paragraph 29). (Paragraph 48)

However, it is clear that the applicant in the main proceedings, a German citizen who seeks the payment of insurance compensation for harm caused by the insertion of breast implants in Germany, the Member State in which she resides, has not made use of her freedom of movement. Consequently, there is no specific connecting factor linking the situation at issue in the main proceedings and the freedom of movement of Union citizens. (Paragraph 49)

To conclude the Court makes clear that:

(...) the dispute in the main proceedings relates not to the cross-border movement of goods in itself, but to the harm caused by the goods that have been so moved. That dispute concerns the issue whether it is possible, for a person such as the applicant in the main proceedings, to obtain, due to the harm resulting from the insertion of defective breast implants, compensation from an insurance company that entered into a contract with the manufacturer of those implants covering the risks associated with the use of those implants in metropolitan France or in the French overseas territories. It must be added that civil liability insurance taken out in those terms does not affect the marketing in another Member State of the products the risks from which that insurance is intended to cover, or their movement within the European Union. Since there is no effect on trade in goods and services within the European Union, the situation at issue in the main proceedings is not, therefore, comparable to the situation at issue in the case that gave rise to the judgment of 20 October 1993, Phil Collins and Others (C-92/92 and C-326/92, EU:C:1993:847, paragraphs 22 and 23). (Paragraph 56)

Consequently, the situation at issue in the main proceedings is not linked by any specific connecting factor to the provisions of the FEU Treaty on the free movement of goods. (Paragraph 57)

Please read the entire judgement of case C-581/18 here.

According to the judgement in case C-41/19 – FX v GZ – delivered on 4 June 2020 by the Court of Justice concerning the interpretation of, on the one hand, Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations and, on the other hand, Article 24(5) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, the Court finds that:

Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations is to be interpreted as meaning that an application opposing enforcement brought by the maintenance debtor against enforcement of a decision given by a court of the Member State of origin and which established that debt, which has a close link with the procedure for enforcement, falls within its scope and is within the international jurisdiction of the courts of the Member State of enforcement.

Pursuant to Article 41(1) of Regulation No 4/2009 and to the relevant provisions of national law, it is for the referring court, being a court of the Member State of enforcement, to adjudicate on the admissibility and the validity of the evidence adduced by the maintenance debtor, seeking to support the submission that he has predominantly discharged his debt.

The case will be added to the unalex Case Collection and to the unalex Compendium on the Maintenance Regulation.

Please read the entire judgement of case C-41/19 here.

On 14.5.2020 the European Commission published a document (2020/648 - Official Journal of the European Union – L 151/10) containing recommendations on vouchers offered to passengers and travellers as an alternative to reimbursement for cancelled package travel and transport services in the context of the COVID-19 pandemic.

The document stresses the following main aspects:

Regulations (EC) No 261/2004(6), (EC) No 1371/2007(7), (EU) No 1177/2010(8) and (EU) No 181/2011(9) of the European Parliament and of the Council (‘the Union passenger rights Regulations’) provide for passenger rights in the event of cancellations. In the event of a cancellation by the carrier, passengers have the choice, to be offered to them by the carrier, between reimbursement (refund) and re-routing. As re-routing is hardly applicable under the present circumstances, the de facto choice is mainly between the various possibilities for reimbursement.

Reimbursement of the full cost of the ticket is due within 7 days following the passenger’s request in the cases of air, sea and inland waterways transport, 14 days after the offer has been made or the request has been received for bus and coach transport and 1 month after the request in the case of rail transport. Under the Union legislation, the reimbursement can be made in money or in the form of a voucher. However, reimbursement by means of a voucher is only possible if the passenger agrees.

Directive (EU) 2015/2302 of the European Parliament and of the Council (‘the Package Travel Directive’) provides that, if a package trip is cancelled due to ‘unavoidable and extraordinary circumstances’, travellers have the right to get a full refund of any payments made for the package, without undue delay and in any event within 14 days after termination of the contract. In this context, the organiser may offer the traveller reimbursement in the form of a voucher. However, this possibility does not deprive the travellers of their right to reimbursement in money.

Similarly, where changes to a package travel contract (for example postponement) or a substitute package are proposed, and where those changes or the substitute package result in the traveller accepting a package of lower quality or cost or terminating the contract, a voucher may also be offered by the organiser, provided that travellers are not deprived of their right to reimbursement in money.

Therefore, to address the current situation the Commission already published 2 documents most recently:

On 18 March 2020, the Commission adopted Interpretative Guidelines on EU passenger rights Regulations in the context of the developing situation with COVID-19 (the document can be accessed here). The Commission recalled that passengers have the choice between cash reimbursement and reimbursement in the form of a voucher.

On 19 March 2020, informal guidance on the application of the Package Travel Directive in connection with COVID-19 has been published on the Commission’s website (the document can be accessed here), confirming the traveller’s right to get a full refund, but also stating that it is possible for the traveller to accept a voucher.

For details on the now published Recommendation with the subject matter vouchers which carriers or organisers may propose to passengers or travellers, as an alternative to reimbursement in money, and subject to the passenger’s or traveller’s voluntary acceptance and dealing with aspects such as, i.a., the protection against insolvency, recommended characteristics of vouchers, state aid, support for SMEs under the European Investment Fund or the Coronavirus Response Investment Initiative, please click here.

Judgement review and comment authored by Petr Bříza*:

The CISG and the Law Applicable to International Factoring, Assignment, Set-off and Late Payment Interests - Czech Supreme Court decision 29 January 2019 – 23 Cdo 427/2017 – VÚB a.s. vs. LITOZ, s.r.o. (unalex CZ-107)

In this decision the Czech highest instance court for civil and commercial law followed the majority suit of its foreign counterparts when deciding that the issues of set-off and the (late payment) interest rate fall outside the CISG’s scope. The Court relied heavily on the UNCITRAL Digest, which evidences the importance of this source and also of the worldwide CISG case-law collection in general. Regrettably, however, the Court misread the Digest regarding the set-off of claims arising from the same contract and adopted the solution, which deviates from, e.g., German or Austrian practice.

* Dr. Petr Bříza, LL.M., Ph.D., Senior Lecturer at the Commercial Department of the Law Faculty of the Charles University, Prague and partner of Bříza & Trubač law firm, email: petr.briza@brizatrubac.cz.

The entire comment is published in the recent edition of the portal's legal journal The European Legal Forum 1-2020

Call for papers!

The EuLF is published 5-6 times a year. Authors are invited to submit on a rolling basis unpublished papers in the legal areas of Private International Law and International Civil Procedure, International and European Commercial and Company Law, International and European Business and Competition Law, International and European Intellectual Property Law, European Consumer Law, International and European Labour Law, Law of the European Organisations, as well as on the European Legal Profession itself. For more information as well as for details on submission please click here.

According to the judgement in case C-641/18 – LG and Others v Rina SpA, Ente Registro Italiano Navale – delivered on 7 May 2020 by the Court of Justice concerning the interpretation of Articles 1(1) and 2 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and of recital 16 of Directive 2009/15/EC of the European Parliament and of the Council of 23 April 2009 on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations, the Court finds that:

Article 1(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that an action for damages, brought against private-law corporations engaged in the classification and certification of ships on behalf of and upon delegation from a third State, falls within the concept of ‘civil and commercial matters’, within the meaning of that provision, and, therefore, within the scope of that regulation, provided that that classification and certification activity is not exercised under public powers, within the meaning of EU law, which it is for the referring court to determine. The principle of customary international law concerning immunity from jurisdiction does not preclude the national court seised from exercising the jurisdiction provided for by that regulation in a dispute relating to such an action, where that court finds that such corporations have not had recourse to public powers within the meaning of international law.

The case will be added to the unalex Case Collection and to the unalex Compendium on Regulation Brussels I/Ia.

Please read the entire judgement of case C-641/18 here.

On 3 May 2020, the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters entered into force for Viet Nam following the deposit of its instrument of accession on 4 March 2020. The HCCH Evidence Convention currently has 63 Contracting Parties.

For more on that please click here.

Easy access to the legislative text provided with keywords? Please use the menu on the lefthand side - unalex Legislative Texts!

Judgement review and comment authored by Michael König*:

Much ado about almost nothing - The ECJ’s judgement of 14.5.2019 2019 - C-55/18 (Federación de Servicios de Comisiones Obreras [CCOO] v Deutsche Bank SAE) and its impact on German working time law.

In this decision (see unalex EU-809) the ECJ ruled that the Working Time Directive, in connection with Fundamental Rights of the European Union and the Framework Directive, precludes national law which does not require employers to establish a system for measuring the daily working time worked by each employee. According to the author this decision has received considerable media attention. In fact, it also requires an adjustment in German working time law, which, however, is unlikely to go beyond an obligation to provide accessible documentation of those working time data which employers already have to take note of and evaluate under current law.

*Dr. Michael König, LL.M. (Stellenbosch), Lawyer and Certified Specialist for Labour Law, Hamburg (Germany)

The comment is published in the recent edition of the portal's legal journal The European Legal Forum 1-2020

Call for papers!

The EuLF is published 5-6 times a year. Authors are invited to submit on a rolling basis unpublished papers in the legal areas of Private International Law and International Civil Procedure, International and European Commercial and Company Law, International and European Business and Competition Law, International and European Intellectual Property Law, European Consumer Law, International and European Labour Law, Law of the European Organisations, as well as on the European Legal Profession itself. For more information as well as for details on submission please click here.

According to the judgement in case C-191/19– OI v Air Nostrum Líneas Aéreas del Mediterráneo SA– delivered on 30 April 2020 by the Court of Justice concerning the interpretation of Article 4(3), Article 5(1)(c)(iii) and Article 7 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, the Court finds that:

Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, and in particular Article 7 thereof, must be interpreted as meaning that compensation is not payable to a passenger who had a single reservation for connecting flights in the case where that reservation was amended against the passenger’s will, with the result that, first, the passenger did not board the first of his or her reserved flights even though that flight went ahead and, second, the passenger was given a seat on a later flight which allowed him or her to board the second of his or her reserved flights and thus to reach his or her final destination at the arrival time originally scheduled.

The case will be added to the unalex Case Collection.

Please read the entire judgement of case C-191/19 here.

According to The Permanent Bureau (PB) of the HCCH a Guide to Good Practice on the Use of Video-Link under the 1970 Evidence Convention has been published in English and French. An electronic version is available for download on the Evidence Section of the HCCH website. The English version of the Guide can be accessed here.

According to the judgement in case C-692/19 – B v Yodel Delivery Network Ltd – delivered on 22 April 2020 by the Court of Justice concerning the interpretation of the provisions of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time, the Court finds that:

Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time must be interpreted as precluding a person engaged by his putative employer under a services agreement which stipulates that he is a self-employed independent contractor from being classified as a ‘worker’ for the purposes of that directive, where that person is afforded discretion:

- to use subcontractors or substitutes to perform the service which he has undertaken to provide;

- to accept or not accept the various tasks offered by his putative employer, or unilaterally set the maximum number of those tasks;

- to provide his services to any third party, including direct competitors of the putative employer, and

- to fix his own hours of ‘work’ within certain parameters and to tailor his time to suit his personal convenience rather than solely the interests of the putative employer,

provided that, first, the independence of that person does not appear to be fictitious and, second, it is not possible to establish the existence of a relationship of subordination between that person and his putative employer. However, it is for the referring court, taking account of all the relevant factors relating to that person and to the economic activity he carries on, to classify that person’s professional status under Directive 2003/88.

Please read the entire judgement of case C-692/19 here.

Stimulating the European Legal Discussion across Borders Through National Editorial Boards

In 2020, The European Legal Forum is celebrating its 20th anniversary. This is the moment for some major innovation to enhance the journal’s role as a forum for discussions of truly European dimension.

From 2020 on, a number of National Editorial Boards in various EU Member States together with a central coordinating board will be responsible for the editorial coordination of the journal, in order to connect the journal more closely to the ongoing national legal discussion.

From its very start back in 2001, The European Legal Forum has sought to embrace the uniform dimension of European law and of international uniform law. However, both European and uniform law live in legal practice in the Member States and Convention States respectively, in the institutions of the national legal systems and in the constant interaction with their national rules. Much of the ensuing discussion does not reach the European level but is contained within the national discussion, despite the fact that it is of great interest to the European legal public.

The organisation of the Board of editors of The European Legal Forum through National Editorial Boards under the common umbrella of one European legal journal will anchor the journal more closely in the legal discussion in each Member State. Who other than the leading researchers in each jurisdiction are better prepared to capture the discussion in their respective home jurisdiction? Who better to select the most relevant case law from their courts and put into evidence those aspects that make it a case of interest under the common principles of European law? Who other than the editors in the various Member States are better prepared for a joint discussion of legal issues of overall European interest?

The journal’s print edition will continue to be published (only) in English. The online edition of The European Legal Forum will in future also be open to publishing texts in other languages, which will be combined with a summary article in English in the print edition for the overall European readership.

The European Legal Forum is planning to establish National Editorial Boards over time in a growing number of Member States. We are delighted by the enthusiasm encountered by our new editors in the first Member States involved.

Welcome to the new editors and to those who will join them in the future!

Interested in setting up a National Editorial Board in your Country? Please contact us under: redaktion@unalex.eu

The European Legal Forum - CONTENTS Issue 1-2020

Editorial, Stimulating the European Legal Discussion across Borders:

Introduction of National Editorial Boards

Private International Law and International Civil Procedure

International Civil Procedure

unalex EU-819

CJEU 12 December 2019 – C-433/18 – Aktiva Finants – unalex EU-817 – Brussels I Regulation 44/2001 Article 43(1) and (3)

CJEU 5 December 2019 – C-421/18 – Ordre des avocats du barreau de Dinant – unalex EU-814 – Brussels Ia Regulation 1215/2012 Article 7(1)(a)

OGH (AT) 7 May 2019 – 6Ob218/18d – unalex AT-1222 – Brussels Ia Regulation 1215/2012 Article 7(2)

European Insolvency Law

CJEU 21 November 2019 – C-198/18 – CeDe Group – unalex EU-813 – European Insolvency Regulation 2000 Articles 4 and 6

International and European Commercial and Company Law

Petr Bříza, The CISG and the Law Applicable to International Factoring, Assignment, Set-off and Late Payment Interests; Notes on the Czech Supreme Court decision 29 January 2019 – 23 Cdo 427/2017 – VÚB a.s. vs. LITOZ, s.r.o. ( unalex CZ-107)

International and European Labour Law

Michael König, Much ado about almost nothing – The ECJ’s judgement of 14.5.2019 – C-55/18 (Federación de Servicios de Comisiones Obreras [CCOO] / Deutsche Bank SAE) and its impact on German working time law ( unalex EU-809)

European Criminal Law

CJEU 5 December 2019 – C-671/18 – Centraal Justitieel Incassobureau – unalex EU-815 – Council Framework Decision 2005/214/JHA Article 7(2)(g) and 20(3)

Information on Current Issues

Questions and Answers on BREXIT

The European Legal Forum is directed at an international readership and provides researchers and legal practitioners with in-depth information on current developments in case law and legislation. The journal is linked to the unalex portal. Request a free trial copy sending an email to: service@unalex.eu or click here for detailed information on subscription prices.

Find all cases in the unalex Case Collection and in the corresponding Compendia. (Please note: If you are not a registered user you can access 2 judgments per day for free.)

The Europen Law Institute (ELI) recently published a new report on The Protection of Adults in International Situations. The report is an outcome of a project led by Pietro Franzina (Catholic University of the Sacred Heart, Milan, Italy; formerly University of Ferrara, Italy), and Richard Frimston (Russell-Cooke Solicitors, UK). The project aimed at encouraging the European Union to consider both external action and the enactment of legislation in the field of protection of adults.

According to the ELI website: "The outcome is an analysis on the protection of adults in international situations. Where appropriate, it includes proposals regarding such protection as well as further issues surrounding the application of the Hague Convention of 13 January 2000 on the International Protection of Adults. It addresses the following issues: (a) the bases and scope of the Union’s competences as regards the protection of adults in international situations; (b) the strategies that the Union should consider following in order to enhance the protection of adults in the relations between Member States; and (c) further improvements that the Union may promote with respect to the Hague Convention of 13 January 2000 on the International Protection of Adults without making use of its external competence or its legislative powers. Such analysis and proposals are put forward in preparation for the Special Commission on the Convention that the Hague Conference on Private International Law plans to convene in 2022. The report also includes a checklist intended for practitioners, to encourage the development of private mandates within the ambit of the substantive laws of the Member States." For more information on the project please click here.

The entire report can be accessed here.

The Council on General Affairs and Policy (CGAP) met from 3 to 6 March 2020 with attendance from i.a. 68 HCCH Members. According to the press release of the HCCH the main outcome can be descibed in short that: "The projects on normative work include two further meetings of the Experts’ Group on Jurisdiction before CGAP 2021, the continuation of the Parentage / Surrogacy Project and the Tourists and Visitors Project, further work on the draft Practical Guide on cross-border recognition and enforcement of agreements reached in the course of family matters involving children and, subject to available resources, some exploratory work of the intersection of private international law and intellectual property and the monitoring of developments with respect to the private international law implications of distributed ledger technology (DLT)." Please click here to read the full statement.

All the Conclusions and decisions adopted which will map the route in the near future can be accessed here.

The European Legal Forum - CONTENTS Issue 5/6-2019

Private International Law and International Civil Procedure

Maria Elena De Maestri, The Common European Data Space and the Free Movement of Data originated in Outer Space

International Civil Procedure

CJEU 7 November 2019 – C-555/18 – K.H.K. – unalex EU-810 – European Account Preservation Order Regulation 655/2014 Articles 4(8) to (10), 5(a), 18(1) and 45

unalex EU-811

1215/2012 Article 7(1)(a); Montreal Convention Articles 19 and 33

CJEU 3 October 2019 – C-208/18 Petruchová – unalex EU-807 – Brussels Ia Regulation 1215/2012 Article 17(1); Rome I Regulation Article 6(1); Directive 2004/39/EC

CJEU 29 July 2019 – C-451/18 – Tibor-Trans – unalex EU-799 – Brussels Ia Regulation 1215/2012 Article 7(2)

OLG Innsbruck (AT) 7 May 2019 – 10R25/19f – unalex AT-1221 – European Account Preservation Order Regulation 655/2014 Articles 6, 8, 12 and 18

BGH (DE) 6 December 2018 – IX ZR 22/18 – unalex DE-3617 – Brussels I Regulation 44/2001 Articles 22(1), 23

European Insolvency Law

CJEU 18 September 2019 – C-47/18 – Riel – unalex EU-805 – Brussels Ia Regulation 1215/2012 Article 1(2)(b); European Insolvency Regulation 2000 Article 41

OGH (AT) 5 September 2019 – 17Ob12/19t – unalex AT-1234 – European Insolvency Regulation 2000 Article 25; European Enforcement Order Regulation Article 2

Private International Law

CJEU 9 October 2019 – C-548/18 – BGL BNP Paribas – unalex EU-808 – Rome I Regulation Article 14

CJEU 3 October 2019 – C-272/18 – Verein für Konsumenteninformation – unalex EU-806 – Rome Convention 1980 Articles 1(2)(e) and Article 5(4)(b); Rome I Regulation Articles 1(2)(f) and Article 6(4)(b); Council Directive 93/13/EEC Article 3(1)

Transport law; maritime law; aviation law

Audiencia Provincial de Valladolid 2 July 2019 – AAP VA 940/2019 – unalex ES-1240 – CMR Articles 31 and 51

The European Legal Forum is directed at an international readership and provides researchers and legal practitioners with in-depth information on current developments in case law and legislation. The journal is linked to the unalex portal. Request a free trial copy sending an email to: service@unalex.eu or click here for detailed information on subscription prices.

Find all cases in the unalex Case Collection and in the corresponding Compendia. (Please note: If you are not a registered user you can access 2 judgments per day for free.)

According to Maria Elena De Maestri*, space technologies, data and services can support numerous EU policies and key political priorities, including the competitiveness of European economy, migration, climate change, the Digital Single Market and sustainable management of natural resources. In this context the European programmes Galileo and Copernicus are able to foster and support many EU policies and to positively contribute to the daily life of European citizens. The potential areas of application of data and services derived from space systems (including satellite images, geo-positioning information and satellite communications) are huge and they are not yet fully exploited. What is already well known is that space infrastructures and space-based applications are able to generate a huge mass of data, which can be qualified as personal or non-personal, depending on the acquired information. The European Commission clearly states that one of the priorities of the Space Strategy for Europe is to facilitate the use of Copernicus data and information by strengthening data dissemination and setting up platform services, promoting interfaces with non-space data and services. Such a statement complies with the open dissemination policy that generally features space-based data all over the world (see remote sensing principles and earth observation data licence conditions). However, the acquisition, manipulation and dissemination of the acquired data have to be contextualised within the Common European Data Space. The contribution addresses the basic rules of the Common European Data Space and space data policies in order to point out similarities and possible conflicts in the application of the general EU data framework to data generated in outer space.

*Assistant Professor of International Law, EU-Space Erasmus Plus Jean Monnet Module, University of Genoa, Department of Law.

The essay is published in the recent edition of our legal journal The European Legal Forum 5/6-2019

Call for papers!

The EuLF is published 5-6 times a year. Authors are invited to submit on a rolling basis unpublished papers in the legal areas of Private International Law and International Civil Procedure, International and European Commercial and Company Law, International and European Business and Competition Law, International and European Intellectual Property Law, European Consumer Law, International and European Labour Law, Law of the European Organisations, as well as on the European Legal Profession itself. For more information as well as for details on submission please click here.

Call for proposals for action grants to promote judicial cooperation in civil and criminal justice.

Opening date: 21 January 2020. Deadline: 23 April 2020.

Tight project budget? Don't start from scratch! Use the possibilities of the unalex database technology.

If you are taking part in the current call JUST-JCOO-AG-2020 (details here) of the EU Commission’s civil justice programme please be informed that Justice projects can use the tools and database of the multilingual legal information platform unalex – www.unalex.eu –.

The platform's fully developed technical content management infrastructure provides the ground for all kinds of European legal projects. Special project sites can be created in the unalex project library (examples here) with project specific content, including the publication of reports/materials and project results with links to the collected sources that help projects to achieve long-term sustainability. unalex projects can be based on service agreement or on partnership.

For details contact us at: contact@unalex.eu.

The Permanent Bureau of the Hague Conference has recently published Volume XXIV of The Judges’ Newsletter (Summer-Fall 2019). As one article of the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (the “HCCH 1996 Child Protection Convention”), Article 11, is of particular relevance as it provides a basis of jurisdiction to the authorities of the State where the child is present to take urgent measures of protection, this publication is compiled to give special emphasis to this highly important “Urgent Measures of Protection”. In addition, it aims to address the shortcoming of a dedicated case law database such as INCADAT in the field of the application of the 1996 Child Protection Convention.

To read the entire publication please click here.

According to the judgement in joined cases C-453/18 and C-494/18 – Bondora AS v Carlos V.C. (Case C‑453/18) and XY (C‑494/18) – delivered on 12 December 2019 by the Court of Justice concerning the interpretation of Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29) and Article 7(2)(d) and (e) of Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure, the Court finds that:

Article 7(2)(d) and (e) of Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure and Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, as interpreted by the Court and read in the light of Article 38 of the Charter of Fundamental Rights of the European Union, must be interpreted as allowing a ‘court’, within the meaning of that regulation, seised in the context of a European order for payment procedure, to request from the creditor additional information relating to the terms of the agreement relied on in support of the claim at issue, in order to carry out an ex officio review of the possible unfairness of those terms and, consequently, that they preclude national legislation which declares the additional documents provided for that purpose to be inadmissible.

The case will be added to the unalex Case Collection and to the unalex Compendium on Regulation (EC) No 1896/2006 creating a European order for payment procedure.

Please read the entire judgement of joined cases C-453/18 and C-494/18 here.

According to the judgement in case C-433/18 – ML v Aktiva Finants OÜ – delivered on 12 December 2019 by the Court of Justice, concerning the interpretation of Article 43(1) and (3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, the Court finds that:

Article 43(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as not precluding a procedure granting leave for further consideration of an appeal in which, first, a court of appeal rules on the grant of that leave on the basis of the judgment delivered at first instance, the appeal brought before it, any observations of the respondent and, if necessary, other information in the file and, second, leave for further consideration must be granted, in particular, if there are doubts as to the correctness of the judgment in question, if it is not possible to assess the correctness of that judgment without granting leave for further consideration or if there is another significant reason to grant leave for further consideration of the appeal.

Article 43(3) of Regulation No 44/2001 must be interpreted as not precluding a procedure examining an appeal against a judgment on the application for a declaration of enforceability which does not require the respondent to be heard in advance when a decision in the respondent’s favour is made.

The case will be added to the unalex Case Collection and to the unalex Compendium on the Brussels I Regulation.

Please read the entire judgement C - 433/18 here: unalex EU-817.

According to the judgement in case C-421/18 – Ordre des avocats du barreau de Dinant v JN – delivered on 5 December 2019 by the Court of Justice, concerning the interpretation of Article 7(1)(a) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, the Court finds that:

Article 1(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that a dispute concerning a lawyer’s obligation to pay annual professional fees for which he or she is liable to the bar association to which he or she belongs comes within the scope of that regulation only if, in calling on that lawyer to perform that obligation, the bar association is not acting, under the national law applicable, in the exercise of public powers, which it is for the referring court to ascertain.

Article 7(1)(a) of Regulation No 1215/2012 must be interpreted as meaning that an action by which a bar association seeks an order that one of its members pay the annual professional fees for which he or she is liable and which are essentially intended to finance services, such as insurance services, must be regarded as constituting an action in ‘matters relating to a contract’, within the meaning of that provision, provided that those fees constitute consideration for services provided by that bar association to its members and those services are freely consented to by the member concerned, which it is for the referring court to ascertain.

The Court argues, in essence, that:

it is evident from the order for reference that registration with the bar association constitutes a legal obligation to which practising as a professional lawyer is subject, and that individuals wishing to practise that profession must be a member of a bar association and must comply with decisions taken by that association, notably as regards the payment of fees. (Recital 31)

And that, in those circumstances, Article 7(1)(a) of Regulation No 1215/2012 must be interpreted as meaning that an action by which a bar association seeks an order that one of its members pay the annual professional fees which he or she is obliged to pay is not, in principle, an action ‘in matters relating to a contract’, within the meaning of that provision. (Recital 32)

But that, however, it cannot be ruled out that, in addition to the relations imposed by law, a bar association may also establish contractual relations with its members and thus, in so far as those fees constitute consideration for services freely consented to, including insurance services, which that bar association may have negotiated with a third party with a view to obtaining more advantageous terms for its lawyer members, the obligation to pay those fees would be of a contractual nature and, therefore, an action initiated with a view to ensuring that that obligation is performed would come within the scope of Article 7(1)(a) of Regulation No 1215/2012. (Recital 33)

The case will be added to the unalex Case Collection and to the unalex Compendium on the Brussels Ia Regulation.

Please read the entire judgement C - 421/18 here: unalex EU-814.

According to the judgement in case C - 493/18 – UB v VA, Tiger SCI, WZ, acting as UB’s trustee in bankruptcy, Banque patrimoine et immobilier SA – delivered on 4 December 2019 by the Court of Justice, concerning the interpretation of Article 3(1) and Article 25(1) of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings, the Court finds that:

Article 3(1) of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings must be interpreted as meaning that an action brought by the trustee in bankruptcy appointed by a court of the Member State within the territory of which the insolvency proceedings were opened seeking a declaration that the sale of immovable property situated in another Member State and the mortgage granted over it are ineffective as against the general body of creditors falls within the exclusive jurisdiction of the courts of the first Member State.

Article 25(1) of Regulation No 1346/2000 must be interpreted as meaning that a judgment by which a court of the Member State in which the insolvency proceedings were opened authorises the trustee in bankruptcy to bring an action in another Member State, even if that action falls within the exclusive jurisdiction of that court, cannot have the effect of conferring international jurisdiction on the courts of that other Member State.

The case will be added to the unalex Case Collection and to the unalex Compendium on the Insolvency Regulation 1346/2000.

Please read the entire judgement C - 493/18 here: unalex EU-816.

On 26 November 2019, New Zealand signed the HCCH Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance (Child Support Convention). Its entry into force depends on ratification.

For more on that please click here.

The European Legal Forum - CONTENTS Issue 4-2019

Private International Law and International Civil Procedure

Chiara Cellerino, More on the constitutional justification of the Achmea ruling and “less” on … its impact on the Investment Court System

International Civil Procedure

CJEU 9 September 2019 – C-347/18 – Salvoni – unalex EU-802 – Brussels Ia Regulation 1215/2012 Article 53; Charter of Fundamental Rights of the European Union Article 47

CJEU 10 July 2019 – C-722/17 – Reitbauer and others – unalex EU-797 – Brussels Ia Regulation 1215/2012 Article 24(1) and (5)

CJEU 27 June 2019 – C-518/18 RD – unalex EU-801 – Regulation 805/2004 creating a European Enforcement Order for uncontested claims Article 3(1)

Supreme Court (UK) 29 July 2019 – [2019] UKSC 40 – Akçil and others v. Koza Ltd and another – unalex UK-1545 – Brussels Ia Regulation 1215/2012 Article 24(2)

BGH (DE) 22 May 2019 – XII ZB 523/17 – unalex DE-3636 – Lugano Convention 2007 Articles 34(2) and (1)

OLG Karlsruhe (DE) 20 December 2018 – 4 U 31/18 – unalex DE-3623 – Lugano Convention 2007 Article 24

Family Law and Successions

CJEU 5 September 2019 – C-468/18 – C-658/17 – R. v. P. – unalex EU-803 – Maintenance Regulation 4/2009 Article 3(a) and (d) and Article 5

International and European Intellectual Property Law

CJEU 5 September 2019 – C-172/18 – AMS Neve and others – unalex EU-804 – European Trade Mark Regulation No 207/2009 Article 97(5)

International and European Labour Law

CJEU 14 May 2019 – C-55/18 – CCOO – unalex EU-809 – Charter of Fundamental Rights of the European Union Article 31(2); Directive 2003/88/EC Articles 3, 5, 6, 16 and 22; Directive 89/88/EEC Articles 4(1), 11(3) and 16(3)

European Criminal Law

Højesteret (DK) 17 August 2018 – 108/2017 – The Prosecution Service vs. T– unalex DK-107 – Charter of Fundamental Rights of the European Union Article 50; Third Driving Licence Directive

Find all cases in the unalex Case Collection and in the corresponding Compendia. (Please note: If you are not a registered user you can access 2 judgments per day for free.)

On 22 November 2019, Austria signed the HCCH Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Service Convention). Its entry into force depends on ratification.

For more on that please click here.

In the sixth meeting of the Experts’ Group on Parentage / Surrogacy, taking place from 29 October to 1 November 2019 in The Hague, the 22 Experts from different States present mainly focused on proposing provisions for developing:

• a general private international law instrument on the recognition of foreign judicial decisions on legal parentage; and

• a separate protocol on the recognition of foreign judicial decisions on legal parentage rendered as a result of an international surrogacy.

Significant progress towards a Draft Convention and a Draft Protocol was made. The results of the meeting, contained in a preliminary document, can be read here.

According to the judgement in case C - 213/18 – Adriano Guaitoli, Concepción Casan Rodriguez, Alessandro Celano Tomassoni, Antonia Cirilli, Lucia Cortini, Mario Giuli, Patrizia Padroni v easyJet Airline Co. Ltd – delivered on 7 November 2019 by the Court of Justice, concerning the interpretation of Article 33 of the Convention for the Unification of Certain Rules for International Carriage by Air, concluded at Montreal on 28 May 1999 and approved on behalf of the European Community by Council Decision 2001/539/EC of 5 April 2001 (OJ 2001 L 194, p. 38, ‘the Montreal Convention’), of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1), and of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, the Court finds that:

Article 7(1), Article 67 and Article 71(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, and Article 33 of the Convention for the Unification of Certain Rules for International Carriage by Air, concluded in Montreal on 28 May 1999 and approved on behalf of the European Community by Council Decision 2001/539/EC of 5 April 2001, must be interpreted as meaning that the court of a Member State hearing an action to obtain both compliance with the flat-rate and standardised rights provided for in Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, and compensation for further damage falling within the scope of that convention, must assess its jurisdiction, for the first head of claim, in the light of Article 7(1) of Regulation No 1215/2012, and, for the second head of claim, in the light of Article 33 of that convention.

Article 33(1) of the Convention for the Unification of Certain Rules for International Carriage by Air, concluded at Montreal on 28 May 1999, must be interpreted, as regards actions for damages falling within the scope of that convention, as governing not only the allocation of jurisdiction as between the States Parties to the convention, but also the allocation of territorial jurisdiction as between the courts of each of those States.

The case will be added to the unalex Case Collection and to the unalex Compendium on the Brussels Ia Regulation.

Please read the entire judgement C - 213/18 here: unalex EU-811.

According to the judgement in case C - 555/18 – K.H.K. v B.A.C., E.E.K. – delivered on 7 November 2019 by the Court of Justice, concerning the interpretation of Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters, the Court finds that:

Article 4(10) of Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters must be interpreted as meaning that an order for payment, such as that at issue in the main proceedings, which is not enforceable, does not constitute an ‘authentic instrument’ within the meaning of that provision.

Article 5(a) of Regulation No 655/2014 must be interpreted as meaning that ongoing proceedings for an order for payment, such as those in the main proceedings, may be regarded as proceedings ‘on the substance of the matter’ within the meaning of that provision.

Article 45 of Regulation No 655/2014 must be interpreted as meaning that judicial vacations are not covered by the concept of ‘exceptional circumstances’ within the meaning of that provision.

The case will be added to the unalex Case Collection and to the unalex Compendium on the European Account Preservation Order.

Please read the entire judgement C - 555/18 here: unalex EU-810.

Opinion (5/2019) on the revision of the EU Regulations on service of documents and taking of evidence in civil or commercial matters published by the European Data Protection Supervisor. The opinion contains advice on two Commission proposals for the revision of both Regulations, in particular with regard to the use of an IT system for their purposes.

You can access a summary of the document (published in OJEU 2019/C 370/07) here.

The full text of this Opinion can be found in English, French and German on the EDPS website www.edps.europa.eu. Please click here for the English version.

The Hague Conference on Private International Law and the World Intellectual Property Organization jointly published a Guide dealing with the intersection of private international law and intellectual property. The Guide aims to provide a tool of support to the work of judges and lawyers around the world.

The Guide is authored by Dr. Annabelle Bennett, Former Judge, Federal Court of Australia, Sydney, Australia and Mr. Sam Granata, Judge, Court of Appeal, Antwerp, Belgium, and Benelux, Court of Justice, Luxembourg.

The Guide can be accessed here.

According to the judgement in case C - 759/18 – OF v PG – delivered on 3 October 2019 by the Court of Justice, concerning the interpretation of Article 2(7), Article 3(1), and Articles 12 and 17 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, the Court finds that:

Article 3(1) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, must be interpreted as meaning that, in the case of an application for divorce, where the applicant brings proceedings before a court of the Member State of the spouses’ common nationality, although their habitual residence is in another Member State, that court has jurisdiction to rule on that application pursuant to point (b) of that provision. As the defendant is not required to give consent, it is not necessary to examine whether a failure on the part of the defendant to raise an objection that that court lacks jurisdiction constitutes tacit consent to the court seised having jurisdiction.

Article 3(1) and Article 17 of Regulation No 2201/2003 must be interpreted as meaning that, in a situation such as that at issue in the main proceedings, the fact that the couple seeking dissolution of their marriage have a minor child is irrelevant for the purposes of determining the court having jurisdiction to rule on the application for divorce. Since the court of the Member State of the spouses’ common nationality, seised by the applicant, has jurisdiction to rule on that application under Article 3(1)(b) of that regulation, that court cannot, even where there is no agreement between the parties on the matter, raise an objection that it lacks international jurisdiction.

Article 12(1)(b) of Regulation No 2201/2003 must be interpreted as meaning that, where a court of the Member State of the spouses’ common nationality, seised by the applicant, has jurisdiction to rule on divorce proceedings pursuant to Article 3(1)(b) of Regulation No 2201/2003, the condition relating to the acceptance of jurisdiction laid down in Article 12(1)(b) of that regulation cannot be regarded as satisfied where parental responsibility is not the subject of the proceedings and the defendant has not entered an appearance. In that situation, the court seised, which has jurisdiction to rule on the divorce of the spouses, does not have jurisdiction under Article 12(1)(b) of Regulation No 2201/2003 and Article 3(d) of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations to rule on issues relating to parental responsibility and maintenance obligations, respectively, in respect of the child concerned.

The concept of ‘parental responsibility’, as defined in Regulation No 2201/2003, must be interpreted as covering decisions relating to, in particular, custody of the child and the child’s place of habitual residence, but it does not include parental contributions towards the costs of the child’s care and upbringing, which is covered by the concept of ‘maintenance obligations’ and comes within the scope of Regulation No 4/2009.

The case will be added to the unalex Case Collection and to the unalex Compendium on the Brussels IIa Regulation.

Please read the entire judgement C - 759/18 here.

According to the judgement in case C - 548/18 – BGL BNP Paribas SA v TeamBank AG Nürnberg – delivered on 9 October 2019 by the Court of Justice, concerning the interpretation of Article 14 of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (‘Rome I’), the Court finds that:

Article 14 of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (‘Rome I’) must be interpreted as not designating, directly or by analogy, the applicable law concerning the third-party effects of the assignment of a claim in the event of multiple assignments of the claim by the same creditor to successive assignees.

The case will be added to the unalex Case Collection and to the unalex Compendium on Rome I.

Please read the entire judgement C - 548/18 here: unalex EU-808.

According to the judgement in case C - 272/18 – Verein für Konsumenteninformation v TVP Treuhand- und Verwaltungsgesellschaft für Publikumsfonds mbH & Co KG – delivered on 3 October 2019 by the Court of Justice, concerning the interpretation of Article 1(2)(e) and Article 5(4)(b) of the Convention on the law applicable to contractual relations of 19 June 1980 (‘the Rome Convention’), of Article 1(2)(f) and Article 6(4)(b) of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), the Court finds that:

Article 1(2)(e) of the Rome Convention and Article 1(2)(f) of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) must be interpreted as not excluding from the scope of that convention or of that regulation contractual obligations, such as those at issue in the main proceedings, which are based on a trust agreement for the purposes of administering shares in a limited partnership.

Article 5(4)(b) of the Convention on the law applicable to contractual relations and Article 6(4)(a) of Regulation No 593/2008 must be interpreted as meaning that a trust agreement pursuant to which the services owed to a consumer must be provided in the country of the consumer’s habitual residence at a distance, from another country, do not fall within the scope of the exclusion in those provisions.

Article 3(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that a term in a trust agreement concluded between a professional and a consumer for the management of shares in a limited partnership, such as those at issue in the main proceedings, which has not been individually negotiated and according to which the applicable law is the law of the Member State of the partnership’s seat, is unfair, within the meaning of that provision, where it leads the consumer into error by giving him the impression that only the law of that Member State applies to the contract, without informing him that under Article 5(2) of the Convention on the law applicable to contractual relations and Article 6(2) of Regulation No 593/2008 he also enjoys the protection of the mandatory provisions of the national law that would be applicable in the absence of that term.

The case will be added to the unalex Case Collection and to the unalex Compendium on Rome I.

Please read the entire judgement C - 272/18 here: unalex EU-806.

The European Legal Forum - CONTENTS Issue 3-2019

Pietro Sanna, Cross-Border Transfer of Companies in the EU in the post-Polbud Era

Private International Law and International Civil Procedure

International Civil Procedure

CJEU 6 June 2019 – C-361/18 – Weil – unalex EU-795 – Brussels I Regulation Articles 54, 1(1)and 1(2)(a)

CJEU 2 May 2019 – C-694/17 – Pillar Securitisation – unalex EU-791 – Lugano Convention 2007 Article 15 ; Directive 2008/48/EC Articles 2 and 3

CJEU 11 April 2019 – C-464/18 – Ryanair – unalex EU-789 – Brussels Ia Regulation Articles 7(5) and 26

CJEU 11 April 2019 – C-603/17 – Bosworth, Hurley – unalex EU-790 – Lugano Convention 2007 Title II, Section 5 (Articles 18 to 21)

Family Law and Successions

CJEU 23 May 2019 – C-658/17 – WB – unalex EU-794 – Succession Regulation 650/2012 Article 3

BGH (DE) 10 July 2019 – IV ZB 22/18 – unalex DE-3633 – Succession Regulation 650/2012 Articles 83, 27, 25 and 22

England and Wales Court of Appeal (Civil Dision) (UK) 17 April 2019 – Giusti v. Ferragamo – [2019] EWCA Civ 691 – unalex UK-1542 – Brussels IIa Regulation Article 19

Private International Law

CJEU 8 May 2019 – C-25/18 – Kerr – unalex EU-792 – Brussels Ia Regulation Article 7(1)(a) ; Rome I Regulation 593/2008 Article 4(1)(b) and (c)

Law of the European Legal Profession

CJEU 7 May 2019 – C-431/17 – Monachos Eirinaios – unalex EU-793 – Directive 98/5/EC Article 3(2)

Supreme Court of Ireland (IE) 31 July 2019 – C-431/17 – Volkmar Klohn v. An Bord Pleanala – [2019] IESC 66 – unalex IE-133 – European Lawyers’ Services Directive Articles 1 and 5

The European Legal Forum is directed at an international readership and provides researchers and legal practitioners with in-depth information on current developments in case law and legislation. The journal is linked to the unalex portal. Request a free trial copy here.

Find all cases in the unalex Case Collection and in the corresponding Compendia. (Please note: If you are not a registered user you can access 2 judgments per day for free.)

According to the judgement in case C - 47/18 - Skarb Pánstwa Rzeczpospolitej Polskiej - Generalny Dyrektor Dróg Krajowych i Autostrad v Stephan Riel (acting as liquidator) - delivered on 18 September 2019 by the Court of Justice, concerning the interpretation of Article 1(2)(b) and Article 29(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters and of Article 41 of Council Regulation (EC) No 1346/2000 of 29 May 2000 on the law applicable to contractual obligations, the Court finds that:

Article 1(2)(b) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that an action for a declaration of the existence of claims for the purposes of their registration in the context of insolvency proceedings, such as that at issue in the main proceedings, is excluded from the scope of that regulation.

Article 29(1) of Regulation No 1215/2012 must be interpreted as not applying, even by analogy, to an action such as that in the main proceedings which is excluded from the scope of that regulation but falls within the scope of Regulation No 1346/2000.

Article 41 of Council Regulation (EC) No 1346/2000 of 29 May 2000 on the law applicable to contractual obligations must be interpreted as meaning that a creditor may, in the context of insolvency proceedings, lodge a claim without formally indicating the date on which it arose, where the law of the Member State within the territory of which those proceedings were opened does not impose an obligation to state that date and where that date may, without particular difficulty, be inferred from the supporting documents referred to in Article 41 of that regulation, which it is for the competent authority responsible for the verification of claims to determine.

The case will be added to the unalex Case Collection and to the corresponding unalex Compendia.

Please read the entire judgement C‑25/18 here: unalex EU-804.

According to the judgement in case C‑502/18 - CS and Others v České aerolinie a.s.- delivered on 11 July 2019 by the Court of Justice, interpreting the scope of application of Article 5(1)(c) and Article 7(1) of Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, (...), read together with Article 3(5) of the same Regulation, the Court finds that:

Article 5(1)(c) and Article 7(1) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, read together with Article 3(5) of Regulation No 261/2004, must be interpreted as meaning that, in the case of connecting flights, where there are two flights that are the subject of a single reservation, departing from an airport located within the territory of a Member State and traveling to an airport located in a non-Member State via the airport of another non-Member State, a passenger who suffers a delay in reaching his or her destination of 3 hours or more, the cause of that delay arising in the second flight, operated, under a code-share agreement, by a carrier established in a non-Member State, may bring his or her action for compensation under that regulation against the Community air carrier that performed the first flight.

The case will be added to the unalex Case Collection and to the corresponding unalex Compendium.

Please read the entire judgement C‑502/18 here: unalex EU-820.

According to the judgement in case C‑163/18 - HQ, IP, legally represented by HQ, JO v Aegean Airlines SA - delivered on 10 July 2019 by the Court of Justice, interpreting the scope of application of Article 8(2) of Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights (...), read in the light of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours, the Court finds that:

Article 8(2) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, must be interpreted as meaning that a passenger who, under Council Directive 90/314/EECof 13 June 1990 on package travel, package holidays and package tours, has the right to hold his tour organiser liable for reimbursement of the cost of his air ticket, can no longer claim reimbursement of the cost of that ticket from the air carrier, on the basis of that regulation, even where the tour organiser is financially incapable of reimbursing the cost of the ticket and has not taken any measures to guarantee such reimbursement.

The case will be added to the unalex Case Collection and to the corresponding unalex Compendium.

Please read the entire judgement C‑163/18 here: unalex EU-821.

The European Legal Forum - CONTENTS Issue 2-2019

Eleni Tzoulia, “Influencer Marketing” on Social Media: Consumer Protection Issues from the Perspective of EU Law

Private International Law and International Civil Procedure

Simon Laimer, Christoph Perathoner, Jurisdiction Based on Place of Performance in the Case of a Multimodal Transport. Notes on ECJ 11-07-2018 – C-88/17 – Zurich Insurance plc, Metso Minerals Oy ./. Abnormal Load Services (International) Ltd (unalex EU-764)

International Civil Procedure

CJEU 28 February 2019 – C-579/17 – Gradbeništvo Korana – unalex EU-787 – Brussels Ia Regulation Articles 1(1), 1(2) and 53

CJEU 14 February 2019 – C-554/17 – Jonsson – unalex EU-786 – Regulation No 861/2007 Articles 16 and 19

CJEU 14 February 2019 – C-630/17 – Milivojević – unalex EU-785 – TFEU Articles 56 and 63; Brussels Ia Regulation Articles 17(1) and 24(1)

Family Law and Successions

Tribunal Supremo (ES) 5 December 2018 – STS 4139/2018 – unalex ES-1157 – Succession Regulation 650/2012 Article 22

Private International Law

CJEU 31 January 2019 – C-149/18 – Da Silva Martins – unalex EU-783 – Rome II Regulation Articles 16 and 27; Directive 2009/103/EC Article 28

Kammergericht, Berlin (DE) 18 February 2019 – 22 U 138/17 – unalex DE-3626 – Rome I Regulation Article 7(2)

Law of the European Organisations

CJEU 28 February 2019 – C-9/18 – Meyn – unalex EU-788 – Directive 2006/126/EC Articles 2(1) and 11(6)

New Publications

Table of Abbreviations II

Conference Calendar III

Masthead IV

The European Legal Forum is directed at an international readership and provides researchers and legal practitioners with in-depth information on current developments in case law and legislation. The journal is linked to the unalex portal. Request a free trial copy here.

Find all cases in the unalex Case Collection and in the corresponding Compendia. (Please note: If you are not a registered user you can access 2 judgments per day for free.)

In the essay, “Influencer Marketing” on Social Media: Consumer Protection Issues from the Perspective of EU Law, Eleni Tzoulia* addresses the specific challenges for the consumer’s financial freedom which influencer marketing reserves and which the author, in her study, endeavours to highlight and comment upon. Therefore, the author examines the rights granted by Directive 2005/29 to influencers’ followers in their capacity as consumers and presents the conditions under which influencer marketing constitutes an unfair commercial practice.

In the context of her study the author comes to the conclusion:

“that the influencer’s followers in social media fall in principle under the EU consumer concept. On the other hand, the influencer himself is an intermediary trader in so far as he carries out marketing on behalf of third parties in a way resembling a regular professional activity. Under these circumstances, the influencer’s social media activity falls within the scope of EU consumer law and in particular under scrutiny of Directive 2005/29 on unfair commercial practices."

And that in light of this legislation, as the author points out "the influencer’s activity raises concerns as regards in particular: (a) how its commercial character has to be highlighted in order not to confuse social media users, (b) under which circumstances it can constitute unfair harassment, and (c) whether it can impose by coercion or undue influence transactional decisions on social media users taking advantage of the latter’s subliminal dependence on the influencer.”

The essay is published in the recent edition of our legal journal EuLF 2-2019 request a free trial copy here.

*Ph.D., LL.M. (Heidelberg), Attorney-at-law and adjunct lecturer for Commercial law in the Aristotle University of Thessaloniki Greece (AUTH).

On 2 July 2019 the Convention on the Recognition and Enforcement of foreign judgments in Civil or Commercial Matters was concluded. The aim of the Convention is, most of all, to promote effective access to justice for all and to facilitate rule-based multilateral trade and investment, and mobility, through judicial co-operation and, furthermore, to complement the Convention of 30 June 2005 on Choice of Court Agreement.

According to its Article 1:

1. This Convention shall apply to the recognition and enforcement of judgments in civil or commercial matters. It shall not extend in particular to revenue, customs or administrative matters.

2. This Convention shall apply to the recognition and enforcement in one Contracting State of a judgment given by a court of another Contracting State.

According to its Article 28 it enters into force under the following conditions:

1. This Convention shall enter into force on the first day of the month following the expiration of the period during which a notification may be made in accordance with Article 29(2) with respect to the second State that has deposited its instrument of ratification, acceptance, approval or accession referred to in Article 24.

2. Thereafter this Convention shall enter into force –

(a) for each State subsequently ratifying, accepting, approving or acceding to it, on the first day of the month following the expiration of the period during which notifications may be made in accordance with Article 29(2) with respect to that State;

(b) for a territorial unit to which this Convention has been extended in accordance with Article 25 after the Convention has entered into force for the State making the declaration, on the first day of the month following the expiration of three months after the notification of the declaration referred to in that Article.

Please find the full text of the Convention here.

According to the judgement in case C - 159/18 - André Moens v Ryanair Ltd - delivered on 26 June 2019 by the Court of Justice, the Court rules that:

Article 5(3) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, read in the light of recitals 14 and 25 thereof, must be interpreted as meaning that the presence of petrol on a runway of an airport which led to its closure and, consequently, the long delay of a flight to or from that airport, falls within the concept of ‘extraordinary circumstances’ within the meaning of that provision, when the petrol in question does not originate from an aircraft of the carrier that operated that flight.

Article 5(3) of Regulation No 261/2004, read in the light of recitals 14 and 15 thereof, must be interpreted as meaning that the presence of petrol on a runway of an airport which has led to the closure of that runway, the nature of which is established as an ‘extraordinary circumstance’, must be regarded as a circumstance which could not have been avoided even if all reasonable measures had been taken within the meaning of that provision.

To substantiate its finding the CJEU argues, in essence, that:

events may be classified as ‘extraordinary circumstances’, within the meaning of Article 5(3) of Regulation No 261/2004, if, by their nature or origin, they are not inherent in the normal exercise of the activity of the air carrier concerned and are outside that carrier’s actual control, both conditions being cumulative;

in relation to the question as to whether the presence of petrol on a runway of an airport which led to its closure and, consequently, the long delay of a flight to or from that airport, falls within the concept of ‘extraordinary circumstances’ within the meaning of that provision, when the petrol in question does not originate from an aircraft of the carrier that operated that flight, it should be noted that, logically, such a circumstance cannot be regarded as intrinsically linked to the operation of the aircraft that made that flight. And consequently, such a circumstance cannot be regarded as inherent, by its nature or origin, in the normal exercise of the activity of the air carrier concerned;

it is beyond the effective control of the air carrier concerned, given that the maintenance of the runways is in no way within its competence and that the decision of the competent airport authorities to close runways at an airport is binding on air carriers;

an air carrier faced with a decision of the airport authorities to close a runway of an airport, is bound to comply with it and to await the decision of those authorities to reopen that runway or any alternative measure. Therefore, this air carrier, did not have the option of taking any reasonable measures, established in Article 5(3) of Regulation No 261/2004, to avoid the extraordinary circumstance in question;

therefore, an air carrier is to be released from its obligation to pay passengers compensation under Article 5(1)(c) and Article 7 of Regulation No 261/2004 if the carrier can prove that the cancellation or delay of 3 hours or more is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.

Please read the entire judgement C - 159/18 here.

Today the European Council adopted the new regulation Brussels IIa recast.

According to the press release of the European Council the new rules amend several aspects of the existing Brussels IIa regulation and foresee in particular the following 6 aspects:

(1) clearer rules on the opportunity for the child to express his/her views with the introduction of an obligation to give the child a genuine and effective opportunity to express his/her views;

(2) the complete abolition of exequatur for all decisions in matters of parental responsibility. This will save time and money for citizens whenever a decision needs to circulate from one member state to another. This abolition of exequatur is accompanied by a number of procedural safeguards;

(3) enhanced and clearer rules on intra-EU child abduction cases with the introduction, for example, of clear deadlines to ensure that these cases are treated in the most expeditious manner;

(4) clearer rules on the circulation of authentic instruments and extra-judicial agreements. The text foresees that agreements on divorce, legal separation or matters of parental responsibility, will be allowed to circulate when they are accompanied by the relevant certificate;

(5) clearer provisions on the placement of a child in another member state, including the need to obtain prior consent for all placements, except where a child is to be placed with a parent;

(6) the harmonisation of certain rules for the enforcement procedure. While the enforcement procedure remains governed by the law of the member state of enforcement, the regulation includes some harmonised grounds for suspending or refusing enforcement, thereby giving more legal certainty to parents and children.

The new rules will apply 3 years after the publication of the regulation in the official journal.

Please find the document 8214/19, COUNCIL REGULATION on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast) here.

According to the judgement in case C - 361/18 - Ágnes Weil v Géza Gulácsi - delivered on 6 June 2019 by the Court of Justice, concerning the interpretation of Article 1(1) and (2)(a) and Article 53 of Regulation (EU) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and Commercial matters, the Court finds that:

Article 54 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that a Member State’s court hearing an application for a certificate certifying that a judgment given by the court of origin is enforceable must, in a situation such as that at issue in the main proceedings, where the court which gave the judgment to be enforced did not adjudicate, when giving that judgment, on whether that regulation was applicable, ascertain whether the dispute falls within the scope of that regulation.

Article 1(1) and (2)(a) of Regulation No 44/2001 must be interpreted as meaning that an action, such as that at issue in the main proceedings, concerning an application for dissolution of the property relationships arising out a de facto (unregistered) partnership, comes within the concept of ‘civil and commercial matters’ within the meaning of Article 1(1) of that regulation and falls, therefore, within the material scope of that regulation.

To substantiate its finding the CJEU argues, in essence:

The fact that, according to Article 55 of that regulation, the production of such a certificate for the purposes of enforcing a judgment is not mandatory cannot call in question the obligation of a court requested to issue it to ascertain whether the dispute giving rise to the judgment given falls within the scope of Regulation No 44/2001.

That conclusion is supported by the fact that the enforcement procedure, under Regulation No 44/2001, precludes, like enforcement under Regulation No 1215/2012, any subsequent review on the part of a court of the Member State addressed of whether the action giving rise to the judgment for which enforcement is sought falls within the scope of Regulation No 44/2001, the grounds for challenging the declaration that a judgment is enforceable being exhaustively laid down by that Regulation.

And in Addition, the CJEU reasons that it should also be noted that, by ascertaining whether it is competent to issue the certificate under Article 54 of Regulation No 44/2001, a court is continuing the previous judicial proceedings by guaranteeing the full effectiveness thereof and carries out a procedure judicial in nature, with the result that a national court ruling in the context of such a procedure is entitled to refer questions to the Court for a preliminary ruling.

Furthermore, concerning the second question the Court finds:

That it must be borne in mind that the exclusion in Article 1(2)(a) of Regulation No 44/2001 is an exception which, as such, must be strictly interpreted. In relying on the objective of Regulation No 44/2001 of maintaining and developing an area of freedom, security and justice by facilitating the free movement of judgments, the Court has held that the exclusions from the scope of that regulation are exceptions which, like all exceptions, must be strictly interpreted .

The court adds, that in addition, an interpretation of the concept of ‘rights in property arising out of a matrimonial relationship’, within the meaning of Article 1(2)(a) of Regulation No 44/2001, according to which a de facto (unregistered) partnership, such as that at issue in the main proceedings, does not fall within the scope of that provision, is supported by the legislative amendment made to that exclusion by Regulation No 1215/2012. The court states that that exclusion was extended by that regulation beyond rights in property arising out of a matrimonial relationship, in relation only to relationships deemed comparable to marriage. Consequently, on pain of depriving that latter amendment of all meaning, Article 1(2)(a) of Regulation No 44/2001 cannot be interpreted as being applicable to a de facto (unregistered) partnership such as that at issue in the main proceedings.

The case will be added to the unalex Case Collection and to the corresponding unalex Compendium on Regulation Brussels I/Ia.

Please read the entire judgement C - 361/18 here: unalex EU-795.

According to the judgement in case C - 658/17 - WB - delivered on 23 May 2019 by the Court of Justice, concerning the interpretation of Articles 3(2), 3(1)(i) and 3(1)(g) of Regulation (EU) No 650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, the Court finds that:

The second subparagraph of Article 3(2) of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession must be interpreted as meaning that failure by a Member State to notify the Commission of the exercise of judicial functions by notaries, as required under that provision, is not decisive for their classification as a ‘court’.

The first subparagraph of Article 3(2) of Regulation No 650/2012 must be interpreted as meaning that a notary who draws up a deed of certificate of succession at the unanimous request of all the parties to the procedure conducted by the notary, such as the deed at issue in the main proceedings, does not constitute a ‘court’ within the meaning of that provision and, consequently, Article 3(1)(g) of that regulation must be interpreted as meaning that such a deed does not constitute a ‘decision’ within the meaning of that provision.

Article 3(1)(i) of Regulation No 650/2012 is to be interpreted as meaning that a deed of certification of succession, such as that at issue in the main proceedings, drawn up by a notary at the unanimous request of all the parties to the procedure conducted by the notary, constitutes an ‘authentic instrument’ within the meaning of that provision, which may be issued at the same time as the form referred to in the second subparagraph of Article 59(1) of that regulation, which corresponds to the form set out in Annex 2 to Implementing Regulation No 1329/2014.

According to the case facts:

WB’s father, who died on 6 August 2016, was a Polish national with his habitual residence in Poland. WB was one of the parties to the procedure relating to her father’s succession, instituted before Ms Bac, in her capacity as a notary established in Poland, to obtain a deed of certification of succession. That document was drawn up by that notary on 21 October 2016 in accordance with Polish law.

The deceased was a trader who carried on economic activity near the German-Polish border. WB wished to ascertain whether any capital had been placed in one or more German banks and to be made aware, if so, of the amount of that capital likely to be included in the estate. To that end, on 7 June 2017 WB asked to be issued with a copy of the deed of certification of succession drawn up by that notary and the attestation confirming that that deed constitutes a decision in a matter of succession within the meaning of Article 3(1)(g) of Regulation No 650/2012, submitted using the form set out in Annex 1 to Implementing Regulation No 1329/2014. In the alternative, in the event of a refusal to grant that request, the applicant in the main proceedings asked to be issued with a copy of the deed of certification of succession and the attestation confirming that that deed constitutes an authentic instrument in a matter of succession for the purposes of Article 3(1)(i) of Regulation No 650/2012, submitted using the form set out in Annex 2 to Implementing Regulation No 1329/2014.

By record of 7 June 2017, a notarial assistant performing his duties within the office managed by Ms Bac refused to grant those requests. He stated, in essence, that the deed of certification of succession was a ‘decision’ as defined in Article 3(1)(g) of Regulation No 650/2012 and that, since the Republic of Poland had not given the Commission notification, as required under Article 3(2) of that regulation, it was not possible for him to provide the certification using the form set out in Annex 1 to Implementing Regulation No 1329/2014. With regard to WB’s request in the alternative, the notarial assistant indicated that the classification of the deed of certification of succession as a ‘decision’ prevented it from being an ‘authentic instrument’, so that, although it satisfied the conditions set out in Article 3(1)(i) of Regulation No 650/2012, it was not possible to issue the corresponding attestation using the form set out in Annex 2 to Implementing Regulation No 1329/2014.

On 7 June 2017 WB brought an action before the referring court, claiming that the deed of certification of succession met all the requirements for classification as a ‘decision’ within the meaning of Article 3(1)(g) of Regulation No 650/2012 and that the Republic of Poland’s failure to notify the Commission of notaries drawing up deeds of certification of succession in accordance with the last subparagraph of Article 3(2) and Article 79 of that regulation did not alter the legal nature of the deed of certification of succession.

To substantiate its finding the CJEU argues, in essence:

That regarding the definition of the term ‘court’, according to the first subparagraph of Article 3(2) of Regulation No 650/2012, that term means any judicial authority and all other authorities and legal professionals with competence in matters of succession which exercise judicial functions or act pursuant to a delegation of power by a judicial authority or act under the control of a judicial authority, provided that such other authorities and legal professionals offer guarantees with regard to impartiality and the right of all parties to be heard and provided that their decisions under the law of the Member State in which they operate may be made the subject of an appeal to or review by a judicial authority and have a similar force and effect as a decision of a judicial authority on the same matter.

The Court makes clear that the Republic of Poland’s failure to notify the Commission of notaries who exercise judicial functions, as provided for in the second subparagraph of Article 3(2) of Regulation No 650/2012, is of merely indicative value. The Court argues that the objective of Regulation No 650/2012, which is to ensure the proper administration of justice within the European Union, would be seriously undermined were it open to each Member State to determine, by refraining from including or, on the contrary, including, authorities and legal professionals who exercise judicial functions like courts in the communication to the Commission referred to in Article 79 of Regulation No 650/2012, whether those authorities and professionals are to be classified as a ‘court’, within the meaning of the first subparagraph of Article 3(2) of that regulation, without complying with the requirements expressly listed in that provision. In consequence the Court states that it must be independently determined whether a notary who draws up a deed of certification of succession at the unanimous request of all the parties to the procedure conducted by the notary satisfies the conditions set out in the first subparagraph of Article 3(2) of Regulation No 650/2012 for classification as a ‘court’ within the meaning of that provision. The Court reasons that under the first subparagraph of Article 3(2) of Regulation No 650/2012, non-judicial authorities or legal professionals with competence in matters of succession are included in the concept of ‘court’, within the meaning of that provision, where they exercise judicial functions or act pursuant to a delegation of power by a judicial authority or act under the control of a judicial authority, provided that they satisfy the conditions listed in that provision. The Court further argues, although judicial functions and notarial functions are separate functions, it is nonetheless apparent from recital 20 of Regulation No 650/2012 that, in the context of that regulation, the term ‘court’ should be given a broad meaning, which also encompasses notaries where they exercise judicial functions in relation to certain matters of succession. Conversely, that same recital specifies that the term ‘court’ should not cover non-judicial authorities of a Member State empowered under national law to deal with matters of succession, such as the notaries in most Member States, where, as is usually the case, they do not exercise judicial functions.

Thus, the Courts states, it is necessary to determine whether, in the context of Regulation No 650/2012, a notary who draws up a deed of certification of succession exercises judicial functions within the meaning of Article 3(2) of that regulation. The Court summarizes that, according to its own rulings, the exercise of judicial functions means that the person concerned has the power to rule of his own motion on possible points of contention between the parties concerned and in order for an authority to be regarded, in the light of the specific nature of its activities, as exercising a judicial function, it must be given the power to decide a legal dispute The Court makes clear that this is not the case where the powers of the professional concerned are entirely dependent on the will of the parties.

The Court concludes that, therefore, an authority must be regarded as exercising judicial functions where it may have jurisdiction to hear and determine disputes in matters of succession. That criterion applies irrespective of whether the proceedings for issuing a deed of certification of succession are contentious or non-contentious. As those notarial activities relating to the issuing of a deed of certification of succession may be exercised only at the unanimous request of the interested parties, without affecting the prerogatives of the court in the absence of agreement between the parties, they have no decision-making powers. Consequently, since a deed of certification of succession, such as that at issue in the main proceedings, is not issued by a court within the meaning of Article 3(2) of Regulation No 650/2012, such a deed does not constitute a ‘decision’ in a matter of succession for the purposes of Article 3(1)(g) of that regulation.

The Court analysing, whether Article 3(1)(i) of Regulation No 650/2012 is to be interpreted as meaning that a deed of certification of succession, such as the Polish deed of certification of succession, drawn up by a notary at the unanimous request of all the parties to the procedure conducted by the notary, constitutes an ‘authentic instrument’ within the meaning of that provision, which may be issued at the same time as the form referred to in the second subparagraph of Article 59(1) of that regulation, which corresponds to the form set out in Annex 2 to Implementing Regulation No 1329/2014, argues that under Article 3(1)(i) of Regulation No 650/2012, ‘authentic instrument’ means a document in a matter of succession which has been formally drawn up or registered as an authentic instrument in a Member State and the authenticity of which relates to the signature and the content of the authentic instrument and has been established by a public authority or other authority empowered for that purpose by the Member State of origin.

The Court notes, as in the present case, notaries have the power, under Polish law, to draw up instruments relating to a succession, and the deed of certification of succession is formally registered as an authentic instrument and have, according to Polish law, the same effects as a final order establishing succession. And additionally, a notary is required to carry out checks, which may lead to him refusing to draw up the deed of certification of succession, so that the authenticity of that instrument relates to both its signature and its content. Conclusively, the Court, therefore, finds that a deed of certification of succession, such as that at issue in the main proceedings, satisfies the conditions laid down in Article 3(1)(i) of Regulation No 650/2012. And accordingly, it constitutes an authentic instrument, a copy of which may be issued together with the form referred to in the second subparagraph of Article 59(1) of that regulation, which corresponds to the form set out in Annex 2 to Implementing Regulation No 1329/2014.

The case will be added to the unalex Case Collection and to the corresponding unalex Compendium on Regulation No 650/2012.

Please read the entire judgement C - 658/17 here: unalex EU-794.

On 17 May 2019, got published in the Official Journal of the European Union (OJEU, L 130 /92), DIRECTIVE (EU) 2019/790 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC.

In its recital 3 the Directive stresses that:

Rapid technological developments continue to transform the way works and other subject matter are created, produced, distributed and exploited. New business models and new actors continue to emerge. Relevant legislation needs to be future-proof so as not to restrict technological development. The objectives and the principles laid down by the Union copyright framework remain sound. However, legal uncertainty remains, for both rightholders and users, as regards certain uses, including cross-border uses, of works and other subject matter in the digital environment. As stated in the Commission Communication of 9 December 2015 entitled ‘Towards a modern, more European copyright framework’, in some areas it is necessary to adapt and supplement the existing Union copyright framework, while keeping a high level of protection of copyright and related rights. This Directive provides for rules to adapt certain exceptions and limitations to copyright and related rights to digital and cross-border environments, as well as for measures to facilitate certain licensing practices, in particular, but not only, as regards the dissemination of out-of-commerce works and other subject matter and the online availability of audiovisual works on video-on-demand platforms, with a view to ensuring wider access to content. It also contains rules to facilitate the use of content in the public domain. In order to achieve a well-functioning and fair marketplace for copyright, there should also be rules on rights in publications, on the use of works or other subject matter by online service providers storing and giving access to user-uploaded content, on the transparency of authors' and performers' contracts, on authors' and performers' remuneration, as well as a mechanism for the revocation of rights that authors and performers have transferred on an exclusive basis.

Therefore, in the sense of the aforementioned, according to Article 1 of the Directive, concerning the scope and subject matter:

This Directive lays down rules which aim to harmonise further Union law applicable to copyright and related rights in the framework of the internal market, taking into account, in particular, digital and cross-border uses of protected content. It also lays down rules on exceptions and limitations to copyright and related rights, on the facilitation of licences, as well as rules which aim to ensure a well-functioning marketplace for the exploitation of works and other subject matter.

Furthermore, Article 1, makes clear that:

Except in the cases referred to in Article 24, this Directive shall leave intact and shall in no way affect existing rules laid down in the directives currently in force in this area, in particular Directives 96/9/EC, 2000/31/EC, 2001/29/EC, 2006/115/EC, 2009/24/EC, 2012/28/EU and 2014/26/EU.

The published Directive states that its text is also with relevance for the European Economic Area (EEA).

The Directive enters into force on 6 June 2019.

On 17 May 2019, got published in the Official Journal of the European Union (OJEU, L 130 /82), DIRECTIVE (EU) 2019/789 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes, and amending Council Directive 93/83/EEC.

In recital 2 the Directive stresses that:

The development of digital technologies and the internet has transformed the distribution of, and access to, television and radio programmes. Users increasingly expect to have access to television and radio programmes, both live and on-demand, through traditional channels, such as satellite or cable, and also through online services. Broadcasting organisations are therefore increasingly offering, in addition to their own broadcasts of television and radio programmes, online services ancillary to such broadcasts, such as simulcasting and catch-up services. Operators of retransmission services, which aggregate broadcasts of television and radio programmes into packages and provide them to users simultaneously with the initial transmission of those broadcasts, unaltered and unabridged, use various techniques of retransmission, such as cable, satellite, digital terrestrial, and mobile or closed circuit IP-based networks, as well as the open internet. Furthermore, operators that distribute television and radio programmes to users have different ways of obtaining the programme-carrying signals of broadcasting organisations, including by means of direct injection. There is a growing demand, on the part of users, for access to broadcasts of television and radio programmes not only originating in their Member State, but also in other Member States. Such users include members of linguistic minorities in the Union, as well as persons who live in a Member State other than their Member State of origin.

Therefore, in the sense of the aforementioned, according to Article 1 of the Directive, concerning the subject matter:

This Directive lays down rules that aim to enhance cross-border access to a greater number of television and radio programmes, by facilitating the clearance of rights for the provision of online services that are ancillary to the broadcast of certain types of television and radio programmes, and for the retransmission of television and radio programmes. It also lays down rules for the transmission of television and radio programmes through the process of direct injection.

The Text of the Directive is also with relevance for the European Economic Area (EEA).

The Directive enters into force on 6 June 2019.

According to the judgement in case C‑25/18 - Bryan Andrew Kerr v Pavlo Postnov, Natalia Postnova - delivered on 8 May 2019 by the Court of Justice, concerning the interpretation of Article 7(1)(a) of Regulation (EU) No 1215/2012 (Brussels Ia) and of Article 4(1)(b) and (c) of Regulation (EC) No 593/2008 (Rome I), the Court finds that:

Article 7(1)(a) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that a dispute concerning a payment obligation arising from a decision taken by a general meeting of the owners of property in a building, which does not have legal personality and has been specifically established by law in order to exercise certain rights, — where that decision has been taken by a majority of members, but binds all members — must be regarded as falling within the concept of ‘matters relating to a contract’ within the meaning of that provision.

Article 4(1)(b) of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) must be interpreted as meaning that a dispute, such as that at issue in the main proceedings, concerning a payment obligation resulting from a decision of a general meeting of the owners of property in an apartment building, relating to the costs of maintaining the communal areas of that property, must be regarded as relating to a contract for the provision of services, within the meaning of that provision.

The case will be added to the unalex Case Collection and to the corresponding unalex Compendium on Brussels Ia and Rome I.

Please read the entire judgement C‑25/18 here: unalex EU-792.

According to the judgement in case C‑631/17 - SF v Inspecteur van de Belastingdienst - delivered on 8 May 2019 by the Court of Justice, interpreting the scope of application of Article 11(3)(e) of Regulation (EC) No 883/2004 on the coordination of social security systems, the Court finds that:

Article 11(3)(e) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, as amended by Regulation (EU) No 465/2012 of the European Parliament and of the Council of 22 May 2012, must be interpreted to the effect that a situation such as the one at issue in the main proceedings in which a person, whilst working as a seaman for an employer established in a Member State on board a vessel flying the flag of a third State and travelling outside of the territory of the European Union, maintained his residence in his Member State of origin, falls within the scope of that provision, such that the applicable national legislation is that of the Member State of residence of that person.

According to the key case facts:

From 13 August to 31 December 2013, SF, a Latvian national residing in Latvia, worked as a steward for Oceanwide Offshore Services B. V., an undertaking established in the Netherlands. SF carried on that activity on board a vessel flying the flag of the Bahamas which, during that period, sailed over the German part of the continental shelf of the North Sea. The Netherlands tax authorities issued SF with a notice of assessment for 2013 in respect of income tax and social insurance contributions. Following a complaint made by SF against that assessment, the Inspector upheld the notice only in so far as it declares SF to be liable for the social contributions to the Netherlands social insurance scheme for the period from 13 August to 31 December 2013.

The Court argues, in essence:

That, as a starting point, the mere fact that a worker carries on his activities outside the territory of the European Union is not sufficient to exclude the application of the EU rules on free movement of workers, in particular Regulation No 883/2004, as long as the employment relationship retains a sufficiently close connection with that territory.

The Court holdes that the worker, SF, does not come under the special rules under Articles 12 to 16 of Regulation No 883/2004 concerning persons who have been posted, those pursuing an activity in two or more Member States, those who elected voluntary or optional insurance, or those who are contract staff of the European institutions. Pointing out that SF, furthermore, does not come under the situations covered by subparagraphs (a) to (d) of Article 11(3) of Regulation No 883/2004 concerning persons pursuing an activity as an employed person in a Member State, civil servants, persons receiving unemployment benefits, or persons called up or recalled for service in the armed forces or for civilian service in a Member State. The Court reasons that it is apparent from the wording of Article 11(3)(e) of Regulation No 883/2004 that ‘any other person to whom subparagraphs (a) to (d) do not apply shall be subject to the legislation of the Member State of residence, without prejudice to other provisions of this Regulation guaranteeing him/her benefits under the legislation of one or more other Member States’.

Furthermore, the Court makes clear that the wording of that provision does not make any provision for limiting its scope to economically non-active persons. Arguing that a restrictive interpretation of Article 11(3)(e) of Regulation No 883/2004 limiting its scope solely to economically non-active persons may deprive persons who do not come under the situations referred to in subparagraphs (a) to (d) of Article 11(3) or other provisions of Regulation No 883/2004 of social security cover because there is no legislation which is applicable to them.

The Court observes that that interpretation also cannot be called into question by the Explanatory notes of the Commission, or the Practical guide concerning the applicable legislation in the EU, EEA and in Switzerland, drawn up and approved by the Administrative Commission for the Coordination of Social Security Systems and published in December 2013. The Court states that even though those documents are useful tools for interpreting Regulation No 883/2004, they are not legally enforceable and cannot, therefore, bind the Court in the interpretation of that regulation.

The Court concludes that, therefore, a situation such as the one at issue in the main proceedings is governed by Article 11(3)(e) of Regulation No 883/2004 which stipulates that the applicable national legislation is that of the Member State of residence of the interested party.

Please read the entire judgement C‑631/17 here.

In Case C‑694/17 – Pillar Securitisation Sàrl v Hildur Arnadottir- delivered on 2 May 2019, the Court of Justice answers the question referred, whether Article 15 of the Lugano II Convention must be interpreted as meaning that, for the purposes of ascertaining whether a credit agreement is a credit agreement concluded by a ‘consumer’ within the meaning of Article 15, it must be determined whether the agreement falls within the scope of Directive 2008/48 in the sense that the total cost of credit in question does not exceed the ceiling set out in Article 2(2)(c) of that directive and whether it is relevant, in that regard, that the national law transposing that directive does not provide for a higher ceiling, as follows:

Article 15 of the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed on 30 October 2007, which was approved on behalf of the Community by Council Decision 2009/430/EC of 27 November 2008, must be interpreted as meaning that, for the purposes of ascertaining whether a credit agreement is a credit agreement concluded by a ‘consumer’ within the meaning of Article 15, it must not be determined whether the agreement falls within the scope of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC, in the sense that the total cost of credit in question does not exceed the ceiling set out in Article 2(2)(c) of that directive, and that it is irrelevant, in that regard, that the national law transposing that directive does not provide for a higher ceiling.

According to the case facts:

in March 2005, Ms Arnadottir, who is a resident of Iceland, obtained a loan of ISK 193 621 074 (Icelandic króna), the equivalent of more than EUR 1 000 000, from Kaupthing Bank Luxembourg (KBL). That loan was to be reimbursed by a single transfer by 1 March 2010 at the latest. The purpose of the loan was to enable Ms Arnadottir to acquire shares in the Icelandic company Bakkavör Group hf in which she was an employee.

A guarantee for the repayment of the loan was given by the Bakkavör Group, repayment which, according to the referring court, would have taken place at the earliest in 2009. The guarantee was signed by two directors of that company, one of whom was Ms Arnadottir herself. Subsequently, KBL was divided into two entities. One of those entities, Pillar Securitisation, claimed repayment of the loan obtained by Ms Arnadottir.

Since Ms Arnadottir was still in default of repayment of that loan, in 2011 Pillar Securitisation brought an action before the Luxembourg courts pursuant to a term of the loan agreement that conferred jurisdiction to those courts.

The Tribunal d’arrondissement de Luxembourg (District Court, Luxembourg, Luxembourg) held that it lacked jurisdiction to hear the case on the ground that Ms Arnadottir should be regarded as a ‘consumer’ within the meaning of Article 15 of the Lugano II Convention. It considered that the clause that granted jurisdiction to the Luxembourg courts should be struck out on the ground that it did not satisfy the conditions for derogation provided for by Article 17 of the Lugano II Convention.

On appeal, the Cour d’appel (Court of Appeal, Luxembourg) upheld the lack of jurisdiction of the Luxembourg courts to hear Pillar Securitisation’s claim in a judgment of 27 April 2016.

Pillar Securitisation then brought an appeal on a point of law on the ground that the Cour d’appel (Court of Appeal) had disregarded Article 15 of the Lugano II Convention. In particular, it submits, first, that the Cour d’appel (Court of Appeal) erred in finding that Ms Arnadottir had acted for non-commercial purposes. Second, it claimed that that court had misinterpreted Article 15 of the Lugano II Convention in finding that a loan for more than EUR 1 000 000, such as that at issue in the main proceedings, could have been taken out by a ‘consumer’ within the meaning of Article 15.

Pillar Securitisation argued that to determine whether a loan agreement is a contract concluded by a consumer within the meaning of Article 15 of the Lugano II Convention, it must be determined whether that agreement is a ‘consumer credit agreement’ within the meaning of Directive 2008/48. It claims that this is apparent from Professor Fausto Pocar’s Explanatory Report on the convention (OJ 2009 C 319, p. 1). Thus, that directive applies only to credit agreements involving a total amount of credit of more than EUR 200 and less than EUR 75 000, unless the national law transposing that directive provides for a higher ceiling. Given that Luxembourg law does not provide for such a higher ceiling, the loan agreement in the main proceedings does not fall within the scope of the directive and, accordingly, Article 15 of the Lugano II Convention does not apply.

To substantiate its finding the CJEU argues, in essence:

That as regards the interpretation of the Lugano II Convention, it must, first of all, be noted that that convention is drafted in terms almost identical to the corresponding articles in Regulations Nos 44/2001 and 1215/2012 and a converging interpretation of those provisions that are equivalent must be ensured.

The Court notes that Article 15 of the Lugano II Convention concerns contracts concluded by a person, the consumer, for a purpose that can be regarded as being outside that person’s trade or profession. Those contracts are specified in Article 15(1)(a) to (c). As the Court has held, as regards the equivalent provision in Regulation No 44/2001 as reproduced in Regulation No 1215/2012, apart from certain transport contracts excluded from the scope of the rules on jurisdiction with regard to consumers by Article 15(3) of that convention, Article 15(1)(c) thereof covers all contracts, whatever their purpose, if they have been concluded by a consumer with a professional and fall within the latter’s commercial or professional activities.

The Court further points out that as to the purpose of the Lugano II Convention, that convention does not seek to harmonise the substantive law on consumer contracts, but to provide, as Regulation No 44/2001, then Regulation No 1215/2012, rules that determine which court has jurisdiction to hear a case in civil and commercial matters, in particular, in respect of a contract between a trader or professional and a person acting outside his trade or profession, in order to protect the latter in such a case. In pursuing that objective, the convention does not provide for a scope limited to any particular amounts and covers all types of contracts except for those stipulated in Article 15(3) thereof.

The Court states that having regard to the distinct purposes of Directive 2008/48 and of the Lugano II Convention, the fact that a credit agreement, such as that at issue in the main proceedings, does not fall within the scope of Directive 2008/48 on the ground that the total amount of credit is above the ceiling of EUR 75 000 set out in Article 2(2)(c) of that directive has no bearing on determining the scope of Article 15 of the Lugano II Convention.

Furthermore, the Court reasons that, if the thresholds relating to the total amount of credit of Directive 2008/48 were to limit the scope of Article 15 of the Lugano II Convention, this would lead to a situation in which persons who had concluded a credit agreement the amount of which was less than EUR 200 could not rely on the protection laid down in Article 15. Such a situation would not be consistent with the objectives of the Lugano II Convention, since there is no substantive difference regarding the presumed weakness of a person who has concluded a credit agreement for EUR 100 and another who has concluded such an agreement for EUR 200. The Court adds that, as regards the maximum ceiling of EUR 75 000, a consumer who has concluded a credit agreement for more than that ceiling is not any less deserving of the protection set out in Article 15 of the Lugano II Convention.

In relation to Professor Fausto Pocar’s Explanatory Report on the convention (OJ 2009 C 319, p. 1), which Pillar Securitisation has cited to substantiate its argumentation, the Court points out that in paragraph 81, that report states that Article 15 of the Lugano II Convention considerably widens the range of consumer contracts, compared with the previous provisions that it replaced and that the report adds that the broad concept of consumer contracts extends the scope of the protection offered and encompasses all the contracts regulated as consumer contracts by EU directives, including consumer credit agreements in so far as such agreements are regulated by Directive 2008/48. The Court makes clear that in that context, the reference to that directive must be read as an example and cannot be read as implying that, as regards credit agreements concluded by a consumer, only those covered by Directive 2008/48 that do not exceed the maximum provided in that directive, fall within the scope of Article 15 of the Lugano II Convention.

The case will be added to the unalex Case Collection and to the corresponding unalex Compendium on Lugano II.

Please read the entire judgement C‑694/17 here.

According to the judgement in case C - 614/17 – Fundación Consejo Regulador de la Denominación de Origen Protegida Queso Manchego v Industrial Quesera Cuquerella SL, Juan Ramón Cuquerella Montagud, - delivered on 2 May 2019 by the Court of Justice, in relation to the term "evocation" as used in Article 13(1)(b) of Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs, the Court finds that:

1. Article 13(1)(b) of Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs must be interpreted as meaning that a registered name may be evoked through the use of figurative signs.

2. Article 13(1)(b) of Regulation No 510/2006 must be interpreted as meaning that the use of figurative signs evoking the geographical area with which a designation of origin, as referred to in Article 2(1)(a) of that regulation, is associated may constitute evocation of that designation, including where such figurative signs are used by a producer established in that region, but whose products, similar or comparable to those protected by the designation of origin, are not covered by it.

3. The concept of the average consumer who is reasonably well informed and reasonably observant and circumspect, to whose perception the national court has to refer in order to assess whether there is ‘evocation’ within the meaning of Article 13(1)(b) of Regulation No 510/2006, must be understood as covering European consumers, including consumers of the Member State in which the product giving rise to evocation of the protected name is made or with which that name is geographically associated and in which the product is mainly consumed.

Please read the entire judgement C - 614/17 here.

The Court of Justice adopts new rules on whether or not to allow appeals to proceed in cases which have already been considered twice. Under the new rules, an appeal brought against a decision of the General Court concerning a decision of an independent board of appeal of one of the following offices and agencies will not proceed unless the Court of Justice first decides that it should be allowed to do so: the European Union Intellectual Property Office (EUIPO) (Alicante, Spain); the Community Plant Variety Office (CPVO) (Angers, France); the European Chemicals Agency (ECHA) (Helsinki, Finland); the European Union Aviation Safety Agency (EASA) (Cologne, Germany). According to the new amendments appeals will only be allowed to proceed where they raise an issue that is significant with respect to the unity, consistency or development of EU law.

Those new amendments are inserted in Title V of the Rules of Procedure of the Court of Justice of 25 September 2012: ‘Chapter 1a - Prior determination as to whether appeals under Article 58a of the statute should be allowed to proceed -.

According to these amendments, Article 170a prescribes that:

“the appellant shall annex to the appeal a request that the appeal be allowed to proceed, setting out the issue raised by the appeal that is significant with respect to the unity, consistency or development of European Union law and containing all the information necessary to enable the Court of Justice to rule on that request. If there is no such request, the Vice- President of the Court shall declare the appeal inadmissible”.

“the request that the appeal be allowed to proceed shall not exceed seven pages and shall be drawn up taking into account all the formal requirements contained in the Practice Directions to parties concerning cases brought before the Court, adopted on the basis of these Rules”.

The amendments take effect on 1 May 2019.

Please find the corresponding press release (No 53/19, Luxembourg, 30 April 2019) here.

Read the entire amendments, published in the Official Journal of the EU, on 25 April 2019 (L 111/73), here.

In the Case C-198/18 - CeDe Group AB v KAN Sp. z o.o. (in insolvency)- Advocate General Bobek delivered, on 30 April 2019, his opinion in relation to the following question referred: Must Article 4 of Regulation No 1346/2000 be interpreted as meaning that it applies to an action which is brought before a Swedish court by the liquidator of a Polish company — which is the subject of insolvency proceedings in Poland — against a Swedish company for payment of goods delivered under an agreement into which the companies entered before that insolvency?

According to the case introduction:

The liquidator of PPUB Janson sp.j. (‘PPUB’), a Polish company the subject of insolvency proceedings in Poland, lodged before the Swedish courts an application against CeDe Group AB (‘CeDe’), a Swedish company, claiming payment for goods delivered under a pre-existing contract between PPUB and CeDe, which is governed by Swedish law. In the course of those proceedings, CeDe claimed a set-off in respect of a larger debt owed to it by PPUB. The liquidator had previously refused that set-off within the framework of the Polish insolvency proceedings. During the course of the procedure before the Swedish courts, PPUB’s liquidator assigned the claim against CeDe to another company, KAN sp. z o.o. (‘KAN’), which subsequently became insolvent. However, KAN’s liquidator refused to take over the claim at issue, with the result that KAN (in insolvency) is now party to the litigation.

The Högsta domstolen (Supreme Court, Sweden) harbours doubts as to the law applicable to such a set-off claim. Before the referring court, KAN claimed that the set-off claim should be heard under Polish law, whereas CeDe submitted that that issue should be examined under Swedish law.

In his opinion the AG Bobek proposes that:

Article 4 of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings must be interpreted in the sense that it does not apply to the determination of the law applicable to a claim which is the subject of an action brought before the courts of a Member State by the liquidator of a company subject to insolvency proceedings in another Member State, where that action seeks payment from another company on the basis of contractual obligations entered into before that insolvency.

Please find the entire opinion here.

On 26 April 2019 the European Commission published the 2019 EU Justice Scoreboard, which gives a comparative overview of the independence, quality and efficiency of justice systems in EU Member States.

The key findings of the 2019 edition include:

Some positive trends on the efficiency of justice systems, i. a., that since 2010, in nearly all of those Member States, the length of first instance court proceedings has decreased or at least remained stable.

That challenges as regards perception of judicial independence are growing, e.g., that in two-thirds of Member States, the perception of judicial independence has improved, as compared to 2016. However, compared to last year, the public's perception of independence has decreased in about three-fifths of all Member States.

That quality of justice is increasing especially because online access to court judgments has improved, especially as regards the publication of judgments of the highest instance: 19 Member States now publish all civil/commercial and administrative judgments.

Please find the corresponding summary press release here.

Read the entire 2019 EU Justice Scoreboard here.

The European Legal Forum - CONTENTS Issue 1-2019

Private International Law and International Civil Procedure

Eva Maria Huber, Kristin Nemeth, Conference Report ‘Die Europäischen Güterrechtsverordnungen’ – The Regulations Regarding the Property Regimes of International Couples

International Civil Procedure

CJEU 6 February 2019 – C-535/17 – NK – unalex EU-784 – Brussels I Regulation 44/2001 Article 1(2)(b); Insolvency Regulation 1346/2000 Articles 4(1) and 13

CJEU 16 January 2019 – C-386/17 – Liberato – unalex EU-781 – Brussels I Regulation Articles 5(2), 27 and 35(3); Brussels IIa Regulation 2201/2003 Articles 19, 22(a), 23(a) and 24

CJEU 22 November 2018 – C-627/17 – ZSE Energia – unalex EU-780 – Small Claims Regulation 861/2007 Articles 2 and 3

CJEU 15 November 2018 – C-308/17 – Kuhn – unalex EU-779 –Brussels Ia Regulation 1215/2012 Article 1(1)

BGH (DE) 13 December 2018 – V ZB 175/15 – unalex DE-3612 – Brussels I Regulation 44/2012 Article 38

OGH (AT) 11 June 2018 – 4Ob88/18x – unalex AT-1172 – Brussels I Regulation 44/2001 Articles 1 and 33

High Court – Chancery Division (UK) 6 June 2018 – [2018] EWHC 1374 (Ch) – Gerardo Moreno de la Hija – unalex UK-1539 – European Enforcement Order Regulation 805/2004

Family Law and Successions

CJEU 17 January 2019 – C-102/18 – Brisch – unalex EU-782 – European Succession Regulation 650/2012 Article 65(2); Implementing Regulation 1329/2014 Article 1(4)

High Court - Family Division (UK) 29 October 2018 – [2018] EWHC 3054 (Fam) – unalex UK-1510 – Brussels IIa Regulation Recital 13 and Article 15

Audiencia Provincial (ES) 16 October 2018 – AAP B 6494/2018 – unalex ES-1156 – Convention on the Rights of the Child Articles 3, 8 and 9.2

Insolvency Law

CJEU 14 November 2018 – C-296/17 – Wiemer & Trachte – unalex EU-778 – European Insolvency Regulation 1346/2000 Article 3(1)

New Publications

Table of Abbreviations II

Conference Calendar III

Masthead IV

The European Legal Forum is directed at an international readership and provides researchers and legal practitioners with in-depth information on current developments in case law and legislation. The journal is linked to the unalex portal. Request a free trial copy here.

Find all cases in the unalex Case Collection and in the corresponding Compendia. (Please note: If you are not a registered user you can access 2 judgments per day for free.)

Published in The European Legal Forum 1 -2019: Conference Report on ‘Die Europäischen Güterrechtsverordnungen’ - The Regulations Regarding the Property Regimes of International Couples written by Eva Maria Huber, Kristin Nemeth*

According to the authors:

“The regulations 2016/11031 and 2016/11042 which entered into force on 29 January 2019 substantively change the Private International Law (PIL) of matrimonial property regimes and the property consequences of registered partnerships. Prof. Dr. Stefan Arnold, LL.M. [University of Münster] and assoz. Prof. Dr. Simon Laimer, LL.M. [University of Innsbruck] took this as an opportunity to organise a conference on the new legal situation, which took place from 16-17 November 2018 in Innsbruck. The (...) report will provide an overview of the contributions, which analysed the new rules from both the practical as well as the academic side. (...)”

The authors announce that:

“All presentations held will be published in a compendium with the Verlag Österreich in the course of 2019. It will be a first important contribution allowing a coherent and critical picture of the content of the new regulations.”

* Univ.-Ass. Mag. Eva Maria Huber and Ass.-Prof.in Dr.in Kristin Nemeth, LL.M., both University of Innsbruck (Austria).

The European Legal Forum is directed at an international readership and provides researchers and legal practitioners with in-depth information on current developments in case law and legislation. The journal is linked to the unalex system. Request a free trial copy here.

According to the judgement in Case C‑483/17 – Neculai Tarola v Minister for Social Protection - delivered on 11 April 2019 by the Court of Justice, the Court finds that:

Article 7(1)(a) and (3)(c) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC must be interpreted as meaning that a national of a Member State who, having exercised his right to free movement, acquired, in another Member State, the status of worker within the meaning of Article 7(1)(a) of that directive, on account of the activity he pursued there for a period of two weeks, otherwise than under a fixed-term employment contract, before becoming involuntarily unemployed, retains the status of worker for a further period of no less than six months under those provisions, provided that he has registered as a jobseeker with the relevant employment office.

It is for the referring court to determine whether, in accordance with the principle of equal treatment guaranteed in Article 24(1) of Directive 2004/38, that national is, as a result, entitled to receive social assistance payments or, as the case may be, social security benefits on the same basis as if he were a national of the host Member State.

The Court argues, in essence, that "it should (...) be borne in mind that, as stated in recital 20 and Article 24(1) of Directive 2004/38, all Union citizens residing on the basis of that directive in the territory of the host Member State, including those retaining their status of worker or self-employed person under Article 7(3)(c) of that directive, enjoy equal treatment with the nationals of that Member State within the scope of the FEU Treaty [e.g. Article 21(1) Treaty on the Functioning of the European Union], subject to such specific provisions as are expressly provided for in the Treaty and secondary law."

The Court emphasis that, "where national law excludes persons who have worked in an employed or self-employed capacity only for a short period of time from the entitlement to social benefits, that exclusion applies in the same way to workers from other Member States who have exercised their right of free movement." And, that "it is, therefore, for the referring court, which alone has jurisdiction to interpret and apply national law, to determine whether, under that law and in accordance with the principle of equal treatment, the appellant in the main proceedings is entitled to the social security benefits or social assistance payments that he claims in the case in the main proceedings."

Please read the entire judgement C‑483/17 here.

In Case C -464/18 – ZX v Ryanair DAC - delivered on 11 April 2019, the Court of Justice finds that:

Article 7(5) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that a court of a Member State does not have jurisdiction to hear a dispute concerning a claim for compensation brought under Article 7 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, and directed against an airline, established in the territory of another Member State, on the ground that that company has a branch within the territorial jurisdiction of the court seised, without that branch having been involved in the legal relationship between the airline and the passenger concerned.

Article 26(1) of Regulation No 1215/2012 must be interpreted as not applying in a case, such as that at issue in the main proceedings, where the defendant has not submitted observations or entered an appearance.

The case will be added to the corresponding unalex Compendium on Brussels Ia.

Please read the entire judgement C - 464/18 here: unalex EU-789.

In Case C-603/17 – Peter Bosworth, Colin Hurley v Arcadia Petroleum Limited and Others - delivered on 11 April 2019, the Court of Justice finds that:

The provisions of Section 5 of Title II (Articles 18 to 21) of the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed on 30 October 2007, the conclusion of which was approved on behalf of the Community by Council Decision 2009/430/EC of 27 November 2008, must be interpreted as meaning that a contract between a company and a natural person performing the duties of director of that company does not create a relationship of subordination between them and cannot, therefore, be treated as an ‘individual contract of employment’, within the meaning of those provisions, where, even if the shareholder(s) of that company have the power to procure the termination of that contract, that person is able to determine or does determine the terms of that contract and has control and autonomy over the day-to-day operation of that company’s business and the performance of his own duties.

The case will be added to the corresponding unalex Compendium on the Lugano Convention 2007.

Please read the entire judgement C-603/17 here: unalex EU-790.

In the Case C‑208/18 - Jana Petruchová v FIBO Group Holdings Limited- Advocate General Tanchev delivered his opinion in relation to the following question referred, whether a natural person which engages in trade on the international currency exchange market (‘the FOREX market’) must be regarded as a consumer within the meaning of Article 17(1) of the Brussels Ia Regulation or whether, by reason of the knowledge and expertise required to engage in that trade, of the complex and atypical nature of the contract at issue, and of the risks incurred, that person cannot be considered a consumer, so that he falls outside the scope of the section affording protection.

According to the case facts:

On 2 October 2014, Ms Petruchová, residing in Ostrava (Czech Republic), and FIBO Group Holdings Ltd (‘FIBO’), a brokerage company established in Limassol (Republic of Cyprus), entered into a contract entitled ‘Terms of Business’ (‘the Framework Agreement’). The purpose of the Framework Agreement was to enable Ms Petruchová to make transactions on the FOREX market by placing orders for the purchase and sale of the base currency, which FIBO would carry out through its online trading platform. To that end, the Framework Agreement provided for the conclusion of what are referred to as individual contracts for difference (‘CfD’) between Ms Petruchová and FIBO. A CfD being a financial Instrument with the purpose to buy and then sell a base currency to make a profit on the difference in the exchange rates applicable, respectively, to the purchase and the sale of the base currency, in relation to the quote currency.

On 3 October 2014, Ms Petruchová entered into a CfD with FIBO (‘the CfD at issue’). In relation to that CfD and the order placed by Ms Petruchová, she claims that her profit would have been three times higher if the order had been executed in a timely manner, instead with a delay of 16 seconds, due to long queues of orders built up in FIBO’s trading system.

Although clause 30 of the Framework Agreement provided that, in any dispute arising between the parties, the Cypriot courts were to have international jurisdiction, Ms Petruchová brought an action before the Krajský soud v Ostravě (Regional Court, Ostrava, Czech Republic), alleging unjust enrichment of FIBO.

In the present case the Court of Justice is called upon to interpret the notion of a ‘consumer’ within the meaning of Article 17(1) the Brussels Ia Regulation.

With the consequence that, by accepting the status of consumer, Article 18(1) of that regulation provides, by way of derogation from Article 4(1) and Article 7(1) thereof, that a consumer within the meaning of Article 17(1) may sue the other party to a contract, not only in the courts of the Member State where that party is domiciled, but also in the courts for the place where the consumer is domiciled. Articles 17, 18 and 19 of the Brussels Ia Regulation, which make up Section 4 of Chapter II thereof, entitled ‘Jurisdiction over consumer contracts’, serve to ensure adequate protection for the consumer, as the party deemed to be economically weaker and less experienced in legal matters than the other, commercial, party to the contract.

Futhermore, the Court of Justice is asked whether Article 17(1) of the Brussels Ia Regulation should be interpreted in a manner consistent with Article 6 of the Rome I Regulation.

Additionally the referring court essentially asks the Court of Justice whether a person who is considered a ‘retail client’ within the meaning of Article 4(1)(12) of Directive 2004/39 must be regarded as a consumer within the meaning of Article 17(1) of the Brussels Ia Regulation.

The AG proposes that the Court should give the following reply to the questions referred:

Article 17(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters is to be interpreted as meaning that a person who concludes a contract for difference must be regarded as a consumer if that contract is concluded for a purpose outside that person’s trade or profession. It is irrelevant, in that regard, that the person actively places his own orders on the international currency exchange market; that contracts for difference fall outside the scope of Article 6 of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I); or that the person is a retail client within the meaning of Article 4(1)(12) of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC.

Firstly, he takes the view that a person who concludes a CfD cannot be denied the status of a consumer on the sole ground that the conclusion of CfDs requires specific knowledge and expertise. This would be tantamount to excluding CfDs from the scope of Articles 17, 18 and 19 of the Brussels Ia Regulation. He argues that it is beyond question that financial instruments such as CfDs fall within the scope of those provisions. Indeed, pursuant to Article 17(3) of that regulation, the only contracts excluded from the scope of Articles 17, 18 and 19 of the Brussels Ia Regulation are certain types of transport contracts. And that it would follow that, failing any express provision to the contrary, financial instruments fall within the scope of those provisions.

Secondly, he points out that knowledge and experience are irrelevant in order to determine whether a person is a consumer within the meaning of Article 17(1) of the Brussels Ia Regulation.

Thirdly, he stresses that it cannot be argued that classification as a consumer within the meaning of Article 17(1) of the Brussels Ia Regulation should be denied on the ground that the transaction carried out under the contract exceeds a certain amount. Had this been the intention of the EU legislature, that provision would lay down a threshold for the value of the contract.

Fourthly, he makes clear that it is irrelevant that the person actively places his own orders on the FOREX market. Article 17(1) of the Brussels Ia Regulation does not require that the consumer acts in any particular way. It does not require that the consumer remains passive, or that the other party is responsible for the performance of the contract.

Fifthly, in his opinion, the risks involved in the conclusion of CfDs, cannot preclude classification as a consumer within the meaning of Article 17(1) of the Brussels Ia Regulation.

And finally, sixthly, he emphasis that with regard to whether, should a person carry out financial transactions regularly, over an extended period of time, and for significant amounts of money, that person should be regarded as entering into those transactions by way of (secondary) profession and that those transactions would then fall outside the scope of Article 17(1) of the Brussels Ia Regulation as they would have been concluded for a purpose within that person’s (secondary) profession.

Please read the entire Opinion of the AG Tanchev here.

The Council of the European Union adopted on 9 April 2019 a document containing the Council's conclusions ''Towards an ever more sustainable Union by 2030''. The document establishes a set of conclusions on the implementation by the EU of the UN Agenda 2030 on Sustainable Development, which was established in 2015 and comprises a set of 17 Sustainable Development Goals (SDGs). In the Annex of the document the Council stresses the EU's interest to continue to play a leading role in implementing the 2030 Agenda and recalls its commitment to create and maximise synergies between the social, environmental, and economic dimensions of sustainable development, by taking into account the interlinkages between the 17 SDGs.

Please read the entire document here.

The European Court of Human Rights (ECHR) delivered on 10 April 2019 the following advisory opinion requested by the French Court of Cassation (Request no. P16-2018-001) concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother:

In a situation where, as in the scenario outlined in the questions put by the [French] Court of Cassation, a child was born abroad through a gestational surrogacy arrangement and was conceived using the gametes of the intended father and a third-party donor, and where the legal parent-child relationship with the intended father has been recognised in domestic law:

1. the child’s right to respect for private life within the meaning of Article 8 of the Convention* requires that domestic law provide a possibility of recognition of a legal parent-child relationship with the intended mother, designated in the birth certificate legally established abroad as the “legal mother”;

2. the child’s right to respect for private life within the meaning of Article 8 of the Convention does not require such recognition to take the form of entry in the register of births, marriages and deaths of the details of the birth certificate legally established abroad; another means, such as adoption of the child by the intended mother, may be used provided that the procedure laid down by domestic law ensures that it can be implemented promptly and effectively, in accordance with the child’s best interests.

Comment: for its Opinion the Court undertook a comparative-law survey covering forty-three States Parties to the Convention. The Opinion contains the results of the survey. The Court observed and particularly stressed that "the question to be addressed in the present case explicitly includ[ed] the factual element of a father with a biological link to the child in question". And, that "the Court [would, therefore,] limit its answer accordingly, (...) making [it] clear that it [could] be called upon in the future to further develop its case-law in this field, in particular in view of the evolution of the issue of surrogacy".

Read the entire Opinion of the ECHR here.

*Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4.XI.1950.

In Case C - 617/17 - Powszechny Zakład Ubezpieczeń na Życie S.A. v Prezes Urzędu Ochrony Konkurencji i Konsumentów - delivered on 3 April 2019, the question referred, resumed in essence, whether the principle of ne bis in idem enshrined in Article 50 of the Charter* must be interpreted as precluding a national competition authority from fining an undertaking in a single decision for an infringement of national competition law and for an infringement of Article 82 EC [Treaty], is answered by the Court of Justice as follows:

The principle of ne bis in idem enshrined in Article 50 of the Charter of Fundamental Rights of the European Union, proclaimed in Nice on 7 December 2000, must be interpreted as not precluding a national competition authority from fining an undertaking in a single decision for an infringement of national competition law and for an infringement of Article 82 EC. In such a situation, the national competition authority must nevertheless ensure that the fines are proportionate to the nature of the infringement.

To give reasons for its decision, the Court argues, in short summary:

That [in general] the ne bis in idem principle must be observed in proceedings for the imposition of fines under competition law. That principle thus precludes an undertaking being found liable or proceedings being brought against it afresh on the grounds of anti-competitive conduct for which it has been penalised or declared not liable by an earlier decision that can no longer be challenged. And that it thus follows from the Court’s case-law that the principle of ne bis in idem aims to prevent an undertaking from ‘being found liable or proceedings being brought against it afresh’, which assumes that that undertaking was found liable or declared not liable by an earlier decision that can no longer be challenged.

But the Court emphases, that article 50 specifically targets the repetition of proceedings concerning the same material act which have been concluded by a final decision. The Court makes clear that in a situation where, in accordance with the second sentence of Article 3(1) of Regulation No 1/2003, a national competition authority applies national competition law and Article 82 EC in parallel, there is in fact no such repetition.

Therefore, the protection which the principle of ne bis in idem aims to afford against the repetition of prosecution leading to a criminal sentence bears no relation to the situation in which national and EU competition law are applied in parallel in a single decision. But the Courts ads that where the national competition authority imposes two fines in a single decision in respect of an infringement of national competition law and of an infringement of Article 82 EC, that authority must ensure that, taken together, the fines are proportionate to the nature of the infringement, which, in the case in the main proceedings, is for the referring court to ascertain.

Read the entire judgement C - 617/17 here.

*Charter of Fundamental Rights of the European Union, proclaimed in Nice on 7 December 2000.

In Case C-501/17 - Germanwings GmbH v Wolfgang Pauels - delivered on 4 April 2019, the Court of Justice finds that:

Article 5(3) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, read in the light of recital 14 thereof, must be interpreted as meaning that damage to an aircraft tyre caused by a foreign object, such as loose debris, lying on an airport runway falls within the notion of ‘extraordinary circumstances’ within the meaning of that provision.

However, in order to be released from its obligation to pay passengers compensation under Article 7 of Regulation No 261/2004, an air carrier whose flight has been subject to long delay due to such ‘extraordinary circumstances’ must prove that it deployed all its resources in terms of staff or equipment and the financial means at its disposal in order to avoid the changing of a tyre damaged by a foreign object, such as loose debris, lying on the airport runway from leading to long delay of the flight in question.

For further details see the press release No 45/19, Luxembourg, 4 April 2019 and/or read the entire judgement C‑501/17 here.

Opinion of the AG Tanchev in Case C-722/17 - Norbert Reitbauer, Dolinschek GmbH, B.T.S. Trendfloor Raumausstattungs-GmbH, Elektrounternehmen K. Maschke GmbH, Klaus Egger, Architekt DI Klaus Egger Ziviltechniker GmbH v Enrico Casamassima - delivered in relation to the following question referred, where the referring court asks the Court of Justice to examine in essence whether the exclusive jurisdiction rules, provided in Article 24(1) and (5) of the Recast Brussels I Regulation, should, in relation to the ‘opposition proceedings’, be determined on the basis of the function of the action as a whole or on the basis of the actual and individual objections raised.

The present reference from the Bezirksgericht, Villach (District Court, Villach, Austria) concerns the interpretation of Articles 7 and 24 of Regulation (EU) No 1215/2012 in the context of Austrian ‘opposition proceedings’ which in this case basically amount to an actio pauliana* (in particular, for the purposes of Article 7 of that regulation) .

The present reference has been brought in the context of the ‘opposition proceedings’ provided for in Paragraph 232 of the Exekutionsordnung (Austrian Enforcement Code, ‘the EO’) in a dispute arising with respect to the distribution of proceeds from a judicially ordered auction of a house. The action is between the traders Norbert Reitbauer, Dolinschek GmbH, B.T.S. Trendfloor Raumausstattungs-GmbH, Elektrounternehmen K. Maschke GmbH, Klaus Egger and Architekt DI Klaus Egger Ziviltechniker GmbH (‘the applicants’), on the one hand, and Dr Enrico Casamassima (lawyer, ‘the defendant’), on the other. The applicants contend that their claim over the proceeds of the sale takes precedence over the defendant’s claim and that the Austrian court has jurisdiction under the Recast Brussels I Regulation.

According to the case facts:

The defendant and Isabel C. (‘the debtor’) are resident in Rome, Italy, and lived together, at least until the spring of 2014. In 2010, they purchased a house in Villach, Austria; and the debtor was registered in the land register as being the sole owner. Contracts for extensive renovation work of the house were entered into between the debtor and the applicants, contracts which were entered into with the ‘participation’ of the defendant. Because the costs of the renovation work far exceeded the original budget, payments to the applicants were suspended. From 2013 onwards, the applicants were therefore involved in judicial proceedings in Austria against the debtor; in early 2014, the first judgment was handed down in favour of the applicants, and others followed. The debtor appealed against those judgments.

On 7 May 2014, in Italy before a court in Rome, the debtor acknowledged the defendant’s claim against her with respect to a loan agreement, amounting to EUR 349 772.95, and undertook to pay this amount to the latter within five years under a court settlement. In addition, the debtor undertook to have a mortgage registered on the house in Villach (Austria) in order to secure the defendant’s claim. On 13 June 2014 a (further) certificate of indebtedness and pledge certificate was drawn up under Austrian law in Vienna by an Austrian notary to guarantee the above arrangement (pledge 1). With this certificate, the pledge on the house in Villach was created on 18 June 2014. The judgments in favour of the applicants did not become enforceable until after this date. The pledges on the house of the debtor held by the applicants, obtained by way of legal enforcement proceedings (pledge 2), therefore rank behind the contractual pledge 1 in favour of the defendant.

On 3 September 2015, the court in Rome confirmed that the court settlement of 7 May 2014 constituted a European Enforcement Order. In order to realise the pledge, the defendant applied in February 2016 to the referring court (District Court, Villach) for an order against the debtor, requiring a compulsory auction of the house in Villach. The house was auctioned off in the autumn of 2016 for EUR 280 000. The order of entries in the land register shows that the proceeds would go more or less entirely to the defendant because of pledge 1.

With a view to preventing this, the applicants brought an action for avoidance (Anfechtungsklage) in June 2016 before the Regional Court, Klagenfurt, Austria against the defendant and the debtor. The action was dismissed by that court ‘due to a lack of international jurisdiction in view of the [debtor’s and the defendant’s] domicile’ outside of Austria. In July 2017, that decision became final. At the same time the applicants filed an opposition before the referring court at the hearing of 10 May 2017 regarding the distribution of the proceeds from the compulsory auction, and subsequently brought opposition proceedings, as provided for in the EO, against the defendant.

In these opposition proceedings, the applicants seek a declaration that the decision regarding the distribution to the defendant of EUR 279 980.43 was not legally valid in so far as: (i) the debtor had damages claims against the defendant of at least the same amount as the claim arising from the loan agreement, with the result that a claim no longer existed (they claim that the debtor confirmed that the defendant had placed orders with the applicants without her knowledge and consent); and (ii) the certificate of indebtedness and pledge certificate of June 2014 were drawn up merely as a formality and for the purpose of pre-empting and preventing the applicants from bringing any enforcement proceedings in relation to the house.

The defendant submitted a plea of lack of jurisdiction against the opposition proceedings. The applicants argue that the referring court has jurisdiction pursuant to Article 24 of the Recast Brussels I Regulation.

Starting his legal analysis AG Tanchev clarifies that in his view Article 24(1) and (5) of that regulation is not applicable in the present case, but, comes to the conclusion that in fact it is Article 7(1) of the same regulation which may provide the legal basis for the jurisdiction of the referring court in this case.

AG Tanchev proposes that the Court should answer the questions referred, whether legal proceedings which are termed under the EO as ‘opposition proceedings’ come within the scope of Article 24(5) of the Recast Brussels I Regulation, when such proceedings concern a disagreement between competing creditors over the distribution of proceeds from a judicially ordered auction of a house, as follows:

Article 24(5) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that the opposition proceedings pursuant to Paragraph 232 of the Austrian Enforcement Code do not come within the scope of application of that provision. Instead, it is necessary to examine the individual objections raised by the applicants. The objections concerning both the non-existence of the claim arising from a loan agreement underlying the judicially ordered auction, and the fact that the creation of the pledge for that claim under a loan agreement was invalid due to the preferential treatment of creditors are not sufficiently close to the enforcement proceedings and, therefore, do not justify the exclusive jurisdiction under that Article 24(5).

Article 24(1) of Regulation No 1215/2012 must be interpreted as meaning that it is not applicable to a dispute between creditors regarding the distribution of proceeds from a judicially ordered auction, and in which objections are raised which seek to contest the existence of the underlying claim and — similarly to an actio pauliana — allege unenforceability of the creation of the pledge in rem .

However, in a situation such as that at issue in the main proceedings, anactio pauliana, which originates in the execution of a contractual obligation between the applicants and the debtor, may be covered by the rule of international jurisdiction provided for in Article 7(1)(a) of Regulation No 1215/2012.

Comment: Giving his legal analysis, the AG Tanchev adds, as an obiter dictum, that it may be interesting to point out the analysis of the Schutzwürdigkeitsgesichtspunkte, as applied by the German Courts in cases such as this one (the conflict of laws solutions are oriented by a prior evaluation of the point of view that deserves the highest degree of protection): the applicable law is selected by choosing the law governing the legal relationship that deserves the highest judicial protection among the three legal relationships within the scheme of the actio pauliana, to respect the principle nemo liberalis nisi liberatus. In particular, in substantive law, this means protecting the creditor when the contract was artificially created to deprive him of his rights or when the rights of the transferee are less schutzwürdig (deserving of protection) because of the gratuitous nature of the transfer. In conflict of laws, the protection of the three subjects involved in an actio pauliana may well be achieved by applying the law that the parties in good faith expect to be applied.

Please read the entire Opinion of the AG Tanchev here.

*Apparently, in around 150 to 125 BC, a praetor named Paulus first allowed an action that enabled the creditor to challenge any acts carried out fraudulently by the debtor to the detriment of that creditor, an action that later became known as an actio pauliana. Article 1167, I, of the French ‘Code Napoléon’ provides for the first codified rule on the ‘action paulienne’ and states that creditors ‘peuvent aussi, en leur nom personnel, attaquer les actes faits par leur débiteur en fraude de leurs droits’.

According to a notice from the depositary of the HCCH, published on 29 March 2019, the depositary communicates that the ratification regarding the signature and ratification in relation to the accession to the Hague Conventions on choice of court agreements and on maintenance by the United Kingdom is suspended until 13 April 2019 or 23 May 2019.

Source here.

Since December 2017, the European Commission has been preparing for a “no-deal” scenario. It has published 90 preparedness notices, 3 Commission Communications, and has made 19 legislative proposals.

While the European Union continues to hope that it will not be the case, this means that if the Withdrawal Agreement is not ratified by Friday 29 March, a “no-deal” scenario may occur on 12 April. The EU has prepared for this scenario and has remained united throughout its preparations. It is now important that everyone is ready for and aware of the practical consequences a “no-deal” scenario brings.

The Commission has held extensive technical discussions with the EU27 Member States both on general issues of preparedness and contingency work and on specific sectorial, legal and administrative preparedness issues. The Commission has now also completed its tour of the capitals of the 27 EU Member States. The aim of these visits was to provide any necessary clarifications on the Commission's preparedness and contingency action and to discuss national preparations and contingency plans. The visits showed a high degree of preparation by Member States for all scenarios.

Member States have also been engaged in intensive national preparations. An overview of residency rights in the EU27 Member States as well as direct links to national preparedness websites are available in a press release published by European Commission.

Please read the entire European Commission - Press release here.

In Case C 129/18 - SM v Entry Clearance Officer, UK Visa Section - delivered on 26 March 2019, the Court of Justice finds that:

The concept of a ‘direct descendant’ of a citizen of the Union referred to in Article 2(2)(c) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC must be interpreted as not including a child who has been placed in the permanent legal guardianship of a citizen of the Union under the Algerian kafala system, because that placement does not create any parent-child relationship between them.

However, it is for the competent national authorities to facilitate the entry and residence of such a child as one of the other family members of a citizen of the Union pursuant to Article 3(2)(a) of that directive, read in the light of Article 7 and Article 24(2) of the Charter of Fundamental Rights of the European Union, by carrying out a balanced and reasonable assessment of all the current and relevant circumstances of the case which takes account of the various interests in play and, in particular, of the best interests of the child concerned. In the event that it is established, following that assessment, that the child and its guardian, who is a citizen of the Union, are called to lead a genuine family life and that that child is dependent on its guardian, the requirements relating to the fundamental right to respect for family life, combined with the obligation to take account of the best interests of the child, demand, in principle, that that child be granted a right of entry and residence in order to enable it to live with its guardian in his or her host Member State.

For further details see the press release No 41/19, Luxembourg, 26 March 2019 and/or read the entire judgement C‑129/18 here.

On 21 March 2019, got published in the Official Journal of the European Union (OJEU, L 79 I/1), REGULATION (EU) 2019/452 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 19 March 2019 establishing a framework for the screening of foreign direct investments into the Unions.

In its recitals the Regulation:

stresses that there is currently no comprehensive framework at Union level for the screening of foreign direct investments on the grounds of security or public order, while the major trading partners of the Union have already developed such frameworks;

highlights that foreign direct investment falls within the field of the common commercial policy and that, in accordance with point (e) of Article 3(1) TFEU, the Union has exclusive competence with respect to the common commercial policy; and

emphasis that is important to provide legal certainty for Member States' screening mechanisms on the grounds of security and public order, and to ensure Union-wide coordination and cooperation on the screening of foreign direct investments likely to affect security or public order making clear that common framework is without prejudice to sole responsibility of Member States for safeguarding their national security, as provided for in Article 4(2) TEU and that it is also without prejudice to the protection of their essential security interests in accordance with Article 346 TFEU.

As a consequence, according to its Article 1 (1), this [new] Regulation establishes a framework for the screening by Member States of foreign direct investments into the Union on the grounds of security or public order and for a mechanism for cooperation between Member States, and between Member States and the Commission, with regard to foreign direct investments likely to affect security or public order. It includes the possibility for the Commission to issue opinions on such investments.

In accordance with this Regulation, Member States may maintain, amend or adopt mechanisms to screen foreign direct investments in their territory on the grounds of security or public order (for further details on screening mechanism of Member States see Article 3).

The Regulation enters into force on 11 October 2020.

Please find the new Regulation (EU) 2019/452 here.

In Case C 221/17 - M.G. Tjebbes, G.J.M. Koopman, E. Saleh Abady, L. Duboux v Minister van Buitenlandse Zaken- delivered on 12 March 2019, the questions referred:

Must Articles 20 and 21 TFEU, in the light of, inter alia, Article 7 of the [Charter], be interpreted — in view of the absence of an individual assessment, based on the principle of proportionality, with regard to the consequences of the loss of nationality for the situation of the person concerned from the point of view of EU law — as precluding legislation such as that in issue in the main proceedings, which provides:

(1) that an adult, who is also a national of a third country, loses, by operation of law, the nationality of his or her Member State, and consequently loses citizenship of the Union, on the ground that, for an uninterrupted period of 10 years, that person had his or her principal residence abroad and outside the [Union], although there are possibilities for interrupting that 10-year period;

(2) that under certain circumstances a minor loses, by operation of law, the nationality of his or her Member State, and consequently loses citizenship of the Union, as a consequence of the loss of the nationality of his or her parent, as referred to under (1) ...?’

are answered by the Court of Justice as follows:

Article 20 TFEU, read in the light of Articles 7 and 24 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding legislation of a Member State such as that at issue in the main proceedings, which provides under certain conditions for the loss, by operation of law, of the nationality of that Member State, which entails, in the case of persons who are not also nationals of another Member State, the loss of their citizenship of the Union and the rights attaching thereto, in so far as the competent national authorities, including national courts where appropriate, are in a position to examine, as an ancillary issue, the consequences of the loss of that nationality and, where appropriate, to have the persons concerned recover their nationality ex tunc in the context of an application by those persons for a travel document or any other document showing their nationality. In the context of that examination, the authorities and the courts must determine whether the loss of the nationality of the Member State concerned, when it entails the loss of citizenship of the Union and the rights attaching thereto, has due regard to the principle of proportionality so far as concerns the consequences of that loss for the situation of each person concerned and, if relevant, for that of the members of their family, from the point of view of EU law.

For further details read the entire judgement C-221/17 here.

The Council on General Affairs and Policy (CGAP) of the Hague Conference on Private International Law met from 5 to 8 March 2019. According to the Conclusions & Recommendations adopted during its meeting (read the document here) the CGAP approved, i.a., the final draft of the WIPO-HCCH Guide on “When Private International Law meets Intellectual Property Law – A Guide for Judges” and asked the Permanent Bureau to cooperate with WIPO regarding the publication and promotion of the Guide. Furthermore, the CGAP invited the Permanent Bureau to cooperate with the WIPO Secretariat to publish the Guide and encouraged joint HCCH-WIPO activities aimed at widely promoting the Guide among judiciaries and other relevant stakeholders.

The foreword of the Guide states that "[its] objective is to give judges and legal practitioners an overview of how private international law (PIL) may apply in intellectual property (IP) disputes. Conscious of this being a complex subject, the Guide is designed to be as user-friendly as possible. It is written in straightforward language and includes diagrams to help explain key concepts that may find application in many States.

It also includes examples – both hypothetical examples of possible disputes where PIL and IP might interact and real-life examples of national, regional and international laws that may be relevant in such disputes. The real-life examples of laws are drawn mainly from those jurisdictions that the authors know best, namely Australia, Belgium and the European Union. They are purely illustrative: this short introductory Guide does not offer a comprehensive overview of all relevant laws, and each reader should complement it with more detailed study of the law relevant to their jurisdiction.

The Guide should be considered as a stepping-stone that will help judges and lawyers when they are resolving cross-border IP law issues. It does not advocate any particular approach to substantive issues of law or provide any solutions in individual cases; rather, by highlighting the main issues in this complex area, it aims to assist judges and lawyers in many different States to make informed decisions."

The Guide is prepared by Dr. Annabelle Bennett, Former Judge Federal Court of Australia, Sydney, Australia and Mr. Sam Granata, Judge Court of Appeal, Antwerp, Belgium, and Benelux Court of Justice, Luxembourg.

Please find the Guide on “When Private International Law meets Intellectual Property Law – A Guide for Judges”: here.

In Case C 579/17 - BUAK Bauarbeiter-Urlaubs- u. Abfertigungskasse v Gradbeništvo Korana d.o.o. - delivered on 28 February 2019, the question referred, resumed in essence, whether Article 1 of Regulation No 1215/2012 must be interpreted as meaning that an action for payment of wage supplements in respect of annual leave pay brought by a body governed by public law against an employer, in connection with the posting of workers to a Member State where they do not have their habitual place of work, or in the context of the provision of labour in that Member State, or against an employer established outside of the territory of that Member State in connection with the employment of workers who have their habitual place of work in that Member State, falls within the scope of application of that regulation, is answered by the Court of Justice as follows:

Article 1 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that an action for payment of wage supplements in respect of annual leave pay brought by a body governed by public law against an employer, in connection with the posting of workers to a Member State where they do not have their habitual place of work, or in the context of the provision of labour in that Member State, or against an employer established outside of the territory of that Member State in connection with the employment of workers who have their habitual place of work in that Member State, falls within the scope of application of that regulation, in so far as the modalities for bringing such an action do not infringe the rules of general law and, in particular, do not exclude the possibility for the court ruling on the case to verify the merits of the information on which the establishment of that claim is based, which is a matter to be determined by the referring court.

According to the case facts:

BUAK, established in Vienna (Austria), is a body governed by public law that is responsible for collecting the funds required to satisfy claims under the BUAG*. It is more particularly responsible for the management and payment of claims to paid annual leave of workers in the construction sector. Korana, an undertaking established in Slovenia, posted workers to Austria in respect of construction works.

On 18 October 2016, BUAK brought an action before the Arbeits- und Sozialgericht Wien (Labour and Social Security Court, Vienna, Austria) seeking the payment, by Korana, of EUR 38 447.50 plus interest and costs, in respect of wage supplements owed by that company, under Section VIb of the BUAG, for the working days completed by workers posted by that company to Austria during the period between February and June 2016. In support of its application, BUAK claimed that, as a leave pay fund, it was entitled, on the basis of the BUAG, to obtain a wage supplement from the employer, consisting inter alia of payments in respect of annual leave and management costs, calculated for each working day completed by a worker in the construction sector in Austria, according to a method of calculation fixed by law.

By a judgment of 28 April 2017, delivered in the absence of Korana, that court upheld BUAK’s claim in full. That judgment, which was notified to Korana on 21 June 2017, acquired force of res judicata in the absence of any opposition on the part of the latter. During the procedure which led to the delivery of that judgment, that court appears not to have examined whether it had jurisdiction in accordance with Regulation Brussels Ia.

On 31 July 2017, for the purposes of the execution of that judgment, BUAK brought before that court an application for the issue of the certificate referred to in Article 53 of that judgment. The referring court notes that the issue of such a certificate, under Article 53 of Regulation Brussels Ia, is subject to the condition that the procedure which led to the judgment of 28 April 2017 relates to civil and commercial matters, for the purposes of Article 1(1) of that regulation, which is not clearly apparent from the circumstances of the case in the main proceedings.

Reflecting the unusual situation that the main proceedings were already finished and had not dealt with the question of jurisdiction in accordance with Regulation Brussels Ia and a corresponding interpretation of Article 1 thereof, the Court, in relation to the question of admissibility of the request for a preliminary ruling, comes to the finding that:

The procedure for the issue of a certificate under Article 53 of Regulation Brussels Ia, in circumstances such as those at issue in the main proceedings, is judicial in character, with the result that a national court ruling in the context of such a procedure is entitled to refer questions to the Court for a preliminary ruling.

To give reasons for its decision, the Court argues, in short summary:

The system established by Regulation Brussels Ia is based on the abolition of exequatur, which implies that no control is exercised by the competent court of the requested Member State, since only the person against whom enforcement is brought can oppose the recognition or enforcement of the judgment affecting him. It is apparent from the combined provisions of Articles 37 and 42 of that regulation that, for the purposes of the recognition and enforcement in a Member State of a judgment delivered in another Member State, the applicant must produce solely a copy of the judgment concerned accompanied by the certificate issued, in accordance with Article 53 of that regulation, by the court of origin. That certificate is to be served on the person against whom enforcement is sought prior to any enforcement measure, in accordance with Article 43(1) of that regulation.

The functions thus performed by that certificate in the system of Regulation Brussels Ia justify, in particular in a situation such as that at issue in the main proceedings, where the court which delivered the judgment to be enforced did not rule, at the time of the judgment, on the applicability of Regulation Brussels Ia, that court being obliged, at the time of the issue of that certificate, to determine whether the dispute comes within the scope of application of that regulation. In such a case, as the Advocate General noted in essence in point 52 of his Opinion, by determining whether it is competent to issue the certificate under Article 53 of Regulation Brussels Ia, that court is continuing the previous judicial proceedings by guaranteeing the full effectiveness thereof, to the extent that, in the absence of certification, a judgment is not capable of circulating freely within the European judicial area. Such a conclusion responds to the need to guarantee rapid enforcement of court judgments while ensuring the legal certainty which is the basis of mutual trust in the administration of justice in the Union.

Moreover, in the scheme of Regulation Brussels Ia, the issue of the certificate is entrusted to the court which is most familiar with the dispute and which, as regards the substance, is most able to confirm that the judgment is enforceable. Therefore, by issuing such a certificate provided for in Article 53 of that regulation, the court of origin implicitly confirms that the judgment given in default which must be recognised and enforced in another Member State falls within the scope of application of that regulation, in view of the fact that the issue of the certificate under Article 53 of that regulation is possible only on that condition.

*The Bauarbeiter-Urlaubs- und Abfertigungsgesetz 1972 (Law of 1972 regulating paid leave and severance pay of workers in the construction sector) (BGBl. 414/1972)

The case will be added to the corresponding unalex Compendium on Brussels Ia.

Find the case in the unalex Case Collection under: unalex EU-787.

Having regard to Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code, and in particular Articles 131(b) and 265(a) thereof, the European Commission adopted COMMISSION DELEGATED REGULATION (EU) 2019/334 of 19 December 2018 amending Delegated Regulation (EU) 2015/2446 as regards the time-limits for lodging entry summary declarations and pre-departure declarations in case of transport by sea from and to the United Kingdom of Great Britain and Northern Ireland, the Channel Islands and the Isle of Man. This regulation applies from the day following that on which the Treaties cease to apply to and in the United Kingdom pursuant to Article 50(3) of the Treaty on European Union. With the exception that a withdrawal agreement concluded with the United Kingdom in accordance with Article 50(2) of the Treaty on European Union has not entered into force by that date.

Please find the COMMISSION DELEGATED REGULATION (EU) 2019/334 published at the Official Journal of the European Union - L 60/1 - on 28 February 2019: here.

A year to celebrate: The HCCH turned 125 - On 12 September 1893, Tobias Asser, Dutch Jurist, Scholar and Statesman, opened the first Session of the HCCH. According to the foreword by Christophe Bernasconi, Secretary General of the HCCH, this special edition of the HCCH annual report 2018 has been prepared to commit to history the commemorations marking the 125th Anniversary of the HCCH. At the same time this report also records other achievements of the HCCH during 2018.

Please find the HCCH Annual Report 2018: here.

The European Asylum Support Office (EASO) has published a new Practical Guide on the best interests of the child in asylum procedures.

According to the EASO: This practical guide has been developed by EASO with the support of a group of experts from Belgium, Denmark, Finland, Ireland, Norway and Romania, as well as the European Commission, the European Union Agency for Fundamental Rights (FRA), the United Nations High Commissioner for Refugees (UNHCR) and the United Nations Children’s Fund (Unicef). The aim of this practical guide is to help to identify and highlight the key milestones for the implementation of the best interests of the child. This is done in order to support EU+ states in applying the best interests’ principle and enhancing the guarantees within asylum procedures for children. EU+ states should establish child-friendly asylum processes that ensure the protection of the child throughout the procedure in line with EU and international law. This new practical guide aims to provide guidance and support to the competent national authorities on the required guarantees and safeguards which will ensure that the child’s best interests are given primary consideration when making decisions affecting the child in the asylum procedures.

(Source: EASO webpage -www.easo.europa.eu-)

In the Case C-129/18 - SM v Entry Clearance Officer, UK Visa Section- Advocate General Campos Sánchez-Bordona delivered his opinion in relation to the following questions referred:

Is a child who is in the permanent legal guardianship of a Union citizen or citizens, under “kefalah” or some equivalent arrangement provided for in the law of his or her country of origin, a “direct descendant” within the meaning of Article 2.2(c) of Directive 2004/38*?

Can other provisions in the Directive, in particular Articles 27 and 35, be interpreted so as to deny entry to such children if they are the victims of exploitation, abuse or trafficking or are at risk of such?

Is a Member State entitled to enquire, before recognising a child who is not the consanguineous descendant of the EEA national as a direct descendant under Article 2.2(c), into whether the procedures for placing the child in the guardianship or custody of that EEA national was such as to give sufficient consideration to the best interests of that child?

In his opinion Advocate General Campos Sánchez-Bordona indicates that: a child who is merely under the legal guardianship of an EU citizen, under the Algerian Kafala system, cannot be classed as a ‘direct descendant’ of that citizen within the meaning of the directive.

He argues that: kafala is a form of guardianship under which an adult Muslim assumes responsibility for the care, education and protection of a minor and acquires legal guardianship temporarily (until the child reaches the age of majority), without creating a relationship of filiation and does not equate to adoption, which is expressly forbidden in that country. Moreover, kafala is revocable.

The Advocate General than considers that: that child may, however, fall within the category of ‘other family members’ if the other requirements are satisfied and following completion of the procedure laid down in the directive, in which case the host Member State must facilitate his or her entry and residence in that Member State in accordance with national legislation, having weighed the protection of family life and the defence of the child’s best interests. The Advocate General recalls that the protection of the child’s best interests must be the primary consideration in decisions and orders adopted in relation to the child.

For further details see the press release No 16/19, Luxembourg, 26 February 2019 and the opinion of AG Campos Sánchez-Bordona.

*Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p.77)

The Spanish Ministry of Justice announced on 16 February 2019 (source: see here), to invalidate the Instruction of the Directorate General of Registries and Notaries (Dirección General de los Registros y del Notariado - DGRN) sent to the consular registers which opened the door to the registration of children born abroad after surrogacy through the presentation of a DNA test that certifies the paternity or maternity of one of the parents.

In accordance with this announcement, the General Directorate of Registries and Notaries, published on 21 February 2019 in the official journal of the Spanish State (BOE 212.2019), instructions on updating the registry regime of the filiations of those born after surrogacy declaring void the former Instruction of the DGRN of 14 February 2019 on the actualisation of the registration regime of the filiations of those born after surrogacy. On the occasion, and calling for an international solution, the Ministry of Justice makes clear that:

Surrogacy constitutes a phenomenon in which there is a serious violation of the rights of minors and pregnant mothers. The preferential interest of the former must be safeguarded in any case, and at the same time the action of the public authorities must guarantee women adequate protection against the danger of abuse of situations of vulnerability that is completely unacceptable. It is also clear that the lucrative activity of the mediating agencies that operate in this field cannot be considered to be in accordance with the law. For the rest, this problem is not limited to Spain, but is carried out in an external environment, which would require coordinated international action to deal with it effectively. As long as that international framework is not available, and without prejudice to the adoption of appropriate and more forceful measures to tackle this practice in Spain, the phenomenon must be treated with the necessary rigor which makes necessary a treatment that allows assessing all the circumstances that arise in each particular case, meaning a valid and sufficient proof of the facts, data and declarations of will. This is much more the case especially in the light of clear abuses against pregnant women.

(The publications are only available in Spanish.)

The Hague Conference published the revised draft Guide to Good Practice on Article 13(1)(b) of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (find document no 7 of February 2019 here) to seek Council’s approval to publish the final Guide.

In accordance with the introduction of the published draft document:

"This Guide to Good Practice addresses Article 13(1)(b) of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter, the “1980 Convention” or simply “the Convention”), also known as the “grave risk exception”. (...)

The introduction elaborates that: "The objective of this Guide is to promote, at the global level, the proper and consistent application of the grave risk exception in accordance with the terms and purpose of the 1980 Convention, taking into account interpretative aids such as the Convention’s Explanatory Report, as well as past Conclusions and Recommendations of the Special Commission, and existing Guides to Good Practice on the 1980 Convention. To achieve this objective, the Guide offers information and guidance on the interpretation and application of the grave risk exception, and shares good practices taken from a variety of jurisdictions."

The text of the introduction emphasis that: "Although the Guide focuses on Article 13(1)(b), other provisions of the 1980 Convention and other international instruments are referenced to the extent that they may play a role in the application of this Article. In particular, where it is in force between Contracting Parties, the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (hereinafter, the “1996 Convention”), may benefit children who are subject to international child abduction by supplementing and strengthening the 1980 Convention in various important respects.14 The website of the HCCH (< www.hcch.net >), contains updated information as to whether a State involved in an Article 13(1)(b) case is also Party to the 1996 Convention (under “Protection of Children,” then “Status Table”)."

The Guide's introduction makes clear that: "Although addressing interpretative issues from a general perspective, the Guide is not intended to direct the interpretation of Article 13(1)(b) in individual cases. This remains “an exclusive matter for the authority competent to decide on the return,” having due regard to the particular facts of each individual case. It is well known that 1980 Convention cases are highly fact-specific, and courts, Central Authorities and others are urged to keep this in mind when consulting this Guide."

On the 16 of February 2019 entered into force REGULATION (EU) 2016/1191 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 6 July 2016 on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents in the European Union and amending Regulation (EU) No 1024/2012.

This new Regulation got adopted in order to promote the free movement of persons within the European Union. It sets out a system for further simplification of administrative formalities for the circulation of certain public documents and their certified copies where those public documents and the certified copies thereof are issued by a Member State authority for presentation in another Member State. It therefore adopts concrete measures to simplify the existing administrative requirements.

In accordance with its Article 2 (1) this Regulation applies to public documents issued by the authorities of a Member State in accordance with its national law which have to be presented to the authorities of another Member State and the primary purpose of which is to establish one or more of the following facts: (a) birth; (b) a person being alive; (c) death; (d) name; (e) marriage, including capacity to marry and marital status; (f) divorce, legal separation or marriage annulment; (g) registered partnership, including capacity to enter into a registered partnership and registered partnership status; (h) dissolution of a registered partnership, legal separation or annulment of a registered partnership; (i) parenthood; (j) adoption; (k) domicile and/or residence; (l) nationality; (m) absence of a criminal record, provided that public documents concerning this fact are issued for a citizen of the Union by the authorities of that citizen's Member State of nationality. Additionally, in accordance with Article 2 (2), it also applies to public documents the presentation of which may be required of citizens of the Union residing in a Member State of which they are not nationals when those citizens wish to vote or stand as candidates in elections to the European Parliament or in municipal elections in their Member State of residence, under the conditions laid down in Directive 93/109/EC and Council Directive 94/80/EC respectively.

With regard to the above-mentioned documents the Regulation foresees, i.a., exemptions from legalisation and similar formality, and simplification of other formalities relating to certified copies, as well as simplification of other formalities relating to translations and multilingual standard forms.

Young Private International Law in Europe

Despite common rules, mutual interests, and similar challenges, a pan-European discussion of private international law issues among the ‘junior faculty’ is still missing. We want to change this by creating a network that brings young scholars together and allows a truly European exchange in the context of a particular topic.

With that purpose in mind, a small group of young scholars from various European countries has been engaging in a closer dialogue to address a common issue – namely the ‘recognition/acceptance of legal situations’ as required by the ECJ regarding names and, most recently, marriages. Each group member gathered information regarding their home jurisdiction and drafted a (preliminary) national report. Awareness, legal rules, and methodological approaches differ – sometimes tremendously.

On April 5, 2019, the group will meet in Würzburg (Germany) to present and discuss the preliminary results of the comparative study. During the first session (2.30 – 3.30 pm), which will form an annex to the German Young Private International Law Conference in Würzburg (see here) and is open to the public, an overview will be given and particular methodological issues will be addressed. Afterwards, the group and a limited number of external participants will have the chance to engage in a more in-depth discussion in the context of a workshop (4 – 6 pm). The working language for both sessions is English. We cordially invite any ‘junior faculty’ member of universities in EU Member States who is interested in the topic and the network itself to join us. For the public session, please register here (when prompted, select ‘Friday: project presentation “Recognition of Status”). If you are also interested in joining the workshop, we would kindly invite you to write a short e-mail to Susanne Gössl (sgoessl@uni-bonn.de) or Martina Melcher (martina.melcher@uni-graz.at) by March 1, 2019. Both sessions are free of charge, but for the workshop only a limited number of places is available. In exceptional cases, we might be able to reimburse some of the travel costs.

Further information and a detailed programme are available here.

(Source: text of the official invitation)

In Case C‑630/17 - Anica Milivojević v Raiffeisenbank St. Stefan-Jagerberg-Wolfsberg eGen - delivered on 14 February 2019, the Court of Justice rules, in essence, that national law cannot invalidate, by a retroactive, general and automatic rule, credit agreements concluded with foreign lenders which were not authorised to provide credit services in that Member State; Jurisdiction of the national court to determine whether a person taking a loan for a dual purpose is a consumer.

The Court of Justice, answering the questions referred, finds that:

Article 56 TFEU must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, which has the effect, inter alia, that credit agreements and legal acts based on those agreements concluded in that Member State between debtors and creditors established in another Member State who do not hold an authorisation, issued by the competent authorities of the first Member State, to operate in that State, are invalid from the date on which they were concluded, even if they were concluded before the entry into force of that legislation.

Article 4(1) and Article 25 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters preclude legislation of a Member State, such as that at issue in the main proceedings, which, in the context of disputes concerning credit agreements featuring international elements which fall within the scope of that regulation, allows debtors to bring an action against non-authorised lenders either before the courts of the State in which they have their registered office or before the courts of the place where the debtors have their domicile or head office and restricts jurisdiction to hear actions brought by creditors against their debtors only to courts of the State on the territory of which those debtors have their domicile, whether they are consumers or professionals.

Article 17(1) of Regulation No 1215/2012 must be interpreted as meaning that a debtor who has entered into a credit agreement in order to have renovation work carried out in an immovable property which is his domicile with the intention, in particular, of providing tourist accommodation services cannot be regarded as a ‘consumer’ within the meaning of that provision, unless, in the light of the context of the transaction, regarded as a whole, for which the contract has been concluded, that contract has such a tenuous link to that professional activity that it appears clear that the contract is essentially for private purposes, which is a matter for the referring court to ascertain.

The first subparagraph of point 1 of Article 24 of Regulation No 1215/2012 must be interpreted as meaning that an action ‘relating to rights in rem in immovable property’ within the meaning of that provision, constitutes an action for the removal from the land register of the mortgage on a building, but that an action for a declaration of the invalidity of a credit agreement and of the notarised deed relating to the creation of a mortgage taken out as a guarantee for the debt arising out of that agreement does not fall within that concept.

For further details see the press release No 13/19, Luxembourg, 14 January 2019 or read the entire judgement C‑630/17 here.

The case will be added to the corresponding unalex Compendium on Brussels Ia and the unalex Case Collection.

In the opinion of the European Economic and Social Committee (EESC), published at the Official Journal of the European Union - C 62/56 -, on 15 February 2019, the EESC makes general comments on the Taking of Evidence Regulation and on the proposed Service of Documents Regulation and calls on the Commission to take into account the observations in this document concerning their proposals.

Please find the document here.

In Case C‑231/18 - NK- delivered on 7 February 2019, the Court of Justice finds that:

The term ‘local markets’ in Article 13(1)(p) of Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85, as amended by Regulation (EU) No 165/2014 of the European Parliament and of the Council of 4 February 2014, must be interpreted as referring neither to the transaction carried out between a livestock wholesaler and a farmer nor to the livestock wholesaler himself, so that the exception provided for in that provision cannot be extended to include vehicles transporting live animals directly from farms to local slaughterhouses.

The Court argues, in essence, that in relation to the wording of Article 13(1)(p) of Regulation No 561/2006: "it should be observed that that provision does not concern the generic term ‘markets’ but the more specific term ‘local markets’. That term leaves no room for doubt that the exception set out in that provision is circumscribed according to the places of departure and destination of transports of live animals, as farms are not the same as ‘local markets’ selling cattle. Similarly, the adjective ‘local’ necessarily implies that the ‘markets’ concerned designate not the actual carrying out of transactions relating to the transportation of live animals, regardless of where those transactions take place, but rather precisely determined locations, distinct from, on one hand, farms or agricultural holdings and, on the other hand, local slaughterhouses, in the geographical area referred to in Article 13(1)(p) of Regulation No 561/2006." The Court adds that: "Consequently (...) it follows (...) that a ‘local market’ cannot be the same as the place of establishment of a farm or agricultural holding, which precludes the possibility of live animals being directly transported by a livestock wholesaler from that farm or agricultural establishment to the local slaughterhouse."

Read the entire judgment C‑231/18 here.

In Case C–535/17 - NK, liquidator in the bankruptcies of PI Gerechtsdeurwaarderskantoor BV and of PI v BNP Paribas Fortis NV- delivered on 6 February 2019, the Court of Justice answers the question if a claim for damages against a third party brought by the liquidator, pursuant to the task assigned to him in Article 68(1) of the Law on insolvency of administering and liquidating the bankrupt estate, on behalf of all the creditors of the bankrupt, on the grounds that that third party acted wrongfully (consisting in an alleged failure to fulfil its monitoring obligations in relation to a withdrawal of PI which gave rise to the loss suffered by the creditors) towards the creditors, the proceeds of which, if the claim succeeds, accrue to the estate, is covered by the exception in Article 1(2)(b) of [Regulation No 44/2001], as follows:

Article 1(1) and (2)(b) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that an action, such as that at issue in the main proceedings, concerning a claim for damages arising from liability for a wrongful act, brought by the liquidator in insolvency proceedings and the proceeds of which, if the claim succeeds, accrue to the general body of creditors, is covered by the concept of ‘civil and commercial matters’ within the meaning of Article 1(1), and therefore falls within the material scope of that regulation.

The Court argues, in essence, that "according to the case-file submitted (...), the action brought by the liquidator against Fortis is an action for liability for a wrongful act. The purpose of such an action is therefore for Fortis to be found liable on the basis of an alleged failure to fulfil its monitoring obligations, under which it ought to have refused the cash withdrawals made by PI (...), because, according to the liquidator, the withdrawals gave rise to the loss suffered by the creditors." The Court takes on the view that "therefore, having regard to these factors, such an action is based on the ordinary rules of civil and commercial law and not on the derogating rules specific to insolvency proceedings."

The Court stresses that "even if, in the main proceedings, the existence of a link with insolvency proceedings is undeniable, since an action brought by the liquidator in the interests of the creditors is concerned, the fact remains that, as is apparent from the documents before Court, such an action may be brought by the creditors individually, whether before, during or after the conduct of the insolvency proceedings."

Furthermore, the Court makes clear that "an action such as that at issue in the main proceedings, which may be brought by the creditor himself, so that it does not fall under the exclusive competence of the liquidator, and is independent of the opening of insolvency proceedings, cannot be considered a direct and inherent result of those proceedings. It must be held, therefore, that such an action is based not on derogating rules specific to insolvency proceedings but, on the contrary, on the ordinary rules of civil and commercial law, and therefore does not fall outside the scope of Regulation No 44/2001."

Read the entire judgment C‑535/17 here.

The case will be added to the unalex Case Collection and corresponding unalex Compendium.

In Case C-149/18 - Agostinho da Silva Martins v Dekra Claims Services Portugal SA - delivered on 31 January 2019, the Court of Justice answers the questions, firstly, whether the national legislation in force in Portugal prevails as an overriding, mandatory rule within the meaning of Article 16 of the Rome II Regulation, secondly, whether that rule constitutes a provision of Community law laying down a conflict-of-law rule within the meaning of Article 27 of the Rome II Regulation and, thirdly, whether in the light of Article 28 of Directive 2009/103, it must be concluded that the limitation period set out in Article 498(3) of the Portuguese Civil Code is applicable where a Portuguese citizen is the victim of a road traffic accident in Spain, as follows:

Article 16 of Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) must be interpreted as meaning that a national provision, such as that at issue in the main proceedings, which provides that the limitation period for actions seeking compensation for damage resulting from an accident is three years, cannot be considered to be an overriding mandatory provision, within the meaning of that article, unless the court hearing the case finds, on the basis of a detailed analysis of the wording, general scheme, objectives and the context in which that provision was adopted, that it is of such importance in the national legal order that it justifies a departure from the law applicable, designated pursuant to Article 4 of that regulation.

Article 27 of Regulation No 864/2007 must be interpreted as meaning that Article 28 of Directive 2009/103/EC of the European Parliament and of the Council of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability, as transposed into national law, does not constitute a provision of EU law which lays down a conflict-of-law rule relating to non-contractual obligations, within the meaning of Article 27 of that regulation.

The Court argues, in essence, that in the context of the Rome Convention, a plea relating to the existence of a ‘mandatory rule’ within the meaning of the legislation of the Member State concerned must be interpreted strictly and that it is settled case-law of the Court, that it is, in that context, for the national court, in the course of its assessment of whether the national law which it proposes to substitute for that expressly chosen by the parties to the contract is a ‘mandatory rule’, to take account not only of the exact terms of that law, but also of its general structure and of all the circumstances in which that law was adopted in order to determine whether it is mandatory in nature in so far as it appears that the legislature adopted it in order to protect an interest judged to be essential by the Member State concerned.

The Court emphasis that by analogy, it must be held that, with regard to the possible identification of an ‘overriding mandatory provision’, within the meaning of Article 16 of the Rome II Regulation, the referring court must find, on the basis of a detailed analysis of the wording, general scheme, objectives and the context in which that provision was adopted, that it is of such importance in the national legal order that it justifies a departure from the applicable law, designated pursuant to Article 4 of that regulation. The Court stresses that although it is not for the Court of Justice to assess the provisions in question, it must be pointed out that, in spite of the variety of national rules of prescription and limitation, Article 15(h) of the Rome II Regulation expressly makes such rules subject to the general rule on determining the law applicable, and that no other provision of EU law establishes specific requirements with regard to the limitation period for actions such as that at issue in the main proceedings. Therefore, in those circumstances the application to an action seeking compensation for damage resulting from an accident of a limitation period other than that laid down in the law designated as applicable would require the identification of particularly important reasons, such as a manifest infringement of the right to an effective remedy and to effective judicial protection arising from the application of the law designated as applicable pursuant to Article 4 of the Rome II Regulation.

In relation to the second and third question referred the Court sees it appropriate to examine these two together to clarify whether Article 27 of the Rome II Regulation must be interpreted as meaning that Article 28 of Directive 2009/103, as transposed into national law, constitutes a provision of EU law which lays down a conflict-of-law rule relating to non-contractual obligations, within the meaning of Article 27 of that regulation. In its finding the Court makes clear that under Article 27, the Rome II Regulation is not to prejudice the application of provisions of EU law which, in relation to particular matters, lay down conflict-of-law rules relating to non-contractual obligations and in that connection, it must be observed that there is nothing in the wording or the objectives of Directive 2009/103 to suggest that it is intended to lay down conflict-of-law rules. The Court argues that the directive is in fact limited to requiring Member States to adopt measures guaranteeing that the victim of a road traffic accident and the owner of the vehicle involved in that accident are protected. In accordance with its objective of protecting the victims of accidents caused by motor vehicles, Article 28 of Directive 2009/103 in fact allows the adoption of rules that are more favourable for those victims than those required under the directive, that provision concerns solely the transposition legislation of a Member State and does not concern the question of whether, in a specific case, those more favourable rules are to be applied rather than the rules of other Member States. Therefore, the Court finds that in such a case, the national transposition legislation is assessed only once the law applicable has initially been determined in accordance with the provisions of the Rome II Regulation.

Find the case in the unalex Case Collection under unalex EU-783

In the Case C-25/18 - Brian Andrew Kerr v Pavlo Postnov, Natalia Postnova - Advocate General Kokott delivered his opinion in relation to the legal situation described as:

“Which national court has international jurisdiction under the Brussels Ia Regulation where an association of property owners has brought an action seeking to enforce payment of contributions for the maintenance of a property, but the defaulting property owners are domiciled in another Member State? This question arises in the present case in connection with a payment obligation arising from resolutions made by an association of property owners which does not have legal personality under national law.”

And where:

“The referring court is uncertain in this context whether, rather than the general jurisdiction of the domicile of the defendant, the special jurisdiction of the place of performance of the obligation in question can be applied in so far as the claims for payment in question constitute ‘matters relating to a contract’ within the meaning of Article 7(1)(a) of the Brussels Ia Regulation. The referring court would also like to know whether the Rome I Regulation is applicable to resolutions made by an association of property owners like that in the present proceedings and by which conflict-of-law rules claims arising from such resolutions are to be assessed substantively.”

In his opinion Advocate General Kokott indicates that: Notwithstanding exclusive jurisdiction under the first alternative in the first subparagraph of Article 24(1) in conjunction with the first alternative in the first sentence of Article 8(4) of Regulation (EU) No 1215/2012 (Brussels Ia), proceedings concerning claims arising from decisions which are taken by the majority of the members of an association of property owners without legal personality, but which bind all members, including those who did not cast a vote, are to be regarded as matters relating to a contract within the meaning of Article 7(1)(a) of Regulation (EU) No 1215/2012 (Brussels Ia).

And that: Article 7(1) of Regulation (EU) No 1215/2012 (Brussels Ia) is to be interpreted as meaning that

– the performance of a management task by the organs of an association of owners, within which decisions regarding expenditure for building maintenance are taken, is not to be classified as ‘services’ within the meaning of the second indent of point (b);

–the place of performance of a payment obligation arising from such decisions is to be determined on the basis of the law applicable to the legal relationship in question under the conflict-of-law rules of the forum State in accordance with point (a).

For further details see the full text of the Opinion of AG Kokott in C-25/18 delivered on 31 January 2019.

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Opening date: 31 January 2019. Deadline: 27 June 2019.

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