Posts Tagged Civil and commercial
In this post I, unusually, offer questions rather than tentative answers. I hope you’ll enjoy the pondering and of course I have ideas of my own on all of these issues. Thank you Michiel Poesen for alerting me to Carles Puigdemont et al’s case in the Belgian civil courts.
The case is not about trying to employ the Belgian courts to have a Spanish Supreme Court judge removed from the case. (Contrary to what De Standaard report in their title – in an otherwise informative piece). Pablo Llarena had commented on the case (specifically: rejecting an argument raised by the defence) at an academic conference. Rather, as I understand the case (public detail is scant), applicants suggest the alleged violation of impartiality infringes their right to such impartiality which in Belgium at least, is a civil right, constitutionally guaranteed.
The case therefore is one in tort. The exact request to the court is as yet unknown: provisional measures? damages? One assumes the very finding by a Belgian court of a finding of partiality and hence infringement of fundamental rights, will be employed in any future trials in Spain.
So far a little context. Here are the questions:
- What kind of law is engaged here?: is this private international law? Is it public international law? (see prof Hess’ contribution to the Recueil, on the private /public divide).
- Are the proceedings ‘international’ enough to trigger the application of private international law; are they simply ‘Spanish’ and what impact does that have on the jurisdiction of the Belgian courts;
- Are such proceedings ‘civil and commercial’ within the meaning of the Brussels regime; specifically, what is the impact of a Supreme Court judge spending much of their time engaging in what has to be considered a ‘public’ function, now speaking at an academic conference. (Think Kuhn, Fahnenbrock etc.).
- If the Brussels I regime is triggered, what type of provisional measures is possible?
- If the Brussels I regime is triggered, how does Article 7(2) apply; where is the locus delicti commissi and where the locus damni; how does e-Date apply if at all;
- Along similar lines: how does applicable law apply given that defamation is exempt from Rome II; (see Belgium’s regime in Articles 99-100 WIPR in particular); and
- What is the impact, if any, of chances of enforcement of the judgment in Spain.
These are the issues I suspect will be of some relevance in the conflicts field. Happy pondering.
Kuhn: ‘Civil and commercial’ viz bearers of Greek bonds. Bot AG applies Fahnenbrock’s ‘direct and immediate effect’ and distinguishes Kolassa.
Advocate-General Bot opined on 4 July 2018 in the case of C-308/17 Leo Kuhn, domiciled at Vienna, who had purchased through an Austrian bank, Greek sovereign bonds. Pursuant to a forced exchanged /haircut carried out by Greece in March 2012, the bonds were replaced with new bonds with a lower nominal value. Mr Kuhn sued to have the initial borrowing terms enforced.
The Advocate-General is of course aware of the similarities with Fahnenbrock – in which he himself had also opined but was not followed by the Court. He first of all points out the similarities between the service Regulation and the Brussels I Recast (both e.g. limiting their scope of application to ‘civil and commercial’ matters), however also flags the specific recitals (in particular: recital 12) suggesting that in the context of the services Regulation the analysis needs to be done swiftly hence only cases which prima facie fall outside the scope of application (including where they manifestly (see the dictum of Fahnenbrock and para 50 of the AG’s Opinion in Kuhn) are not covered by that Regulation.
Coming next to the consideration of the application of ‘civil and commercial’, the facts of this case reflect very much the hybrid nature of much of sovereign debt litigation. In my view yes, the haircut took place within the wider institutional nature of Greece’s debt negotiations with the EU. Yet the ‘collective action clause’ (CAC) which was not part of the original terms and conditions (there was no CAC in the original lex causae, Greek law, but there is one in the newly applicable lex causae, English law: at 63 of the Opinion), was negotiated with the institutional holders of the bond and crammed down the minority holders like Mr Kuhn (at 66). The AG suggest that this does not impact on the qualification of the changes being ‘immediate and direct’, this being the formula employed by the Court in Fahnenbrock.
I am not so sure of the latter but it will be up to the CJEU to decide.
The Advocate General note bene subsequently ‘completes the analysis’ in case the CJEU disagrees with this view, and finds that if the issue is civil and commercial, it can be litigated under Article 7(1)’s rule on special jurisdiction for contractual obligations (the AG at para 88 ff distinguishes the case from C-375/13 Kolassa (in which the CJEU saw no contractual bond between the issuer of the bonds and the acquirer on the secondary market), the obligation at issue, he suggests, having to be performed in Greece. As for the latter element, the Advocate General does refer for the determination of the place of performance to the initially applicable law: Greek law, leaving the later lex causae, English law, undiscussed.
Whether the Court will follow the AG remains of course to be seen.
I reported earlier on the November 2015 draft ‘Judgments project’ of the Hague Conference on private international law, otherwise known as the draft convention on the recognition and enforcement of judgments relating to civil and commercial matters. The working group now has a February 2017 draft out. (The project nota bene has even increased in relevance given Brexit).
I could have titled this post ‘spot the differences’ for of course there are changes in formulation between current and previous version. However my main point of concern remains: the absence of Wally: some type of institutional redress which will assist courts in the interpretation of the Convention. Article 23 now calls for uniform interpretation, and there will, one assumes, be a report accompanying its adoption. (Judging by the size of commentaries on the EU mirror, Brussels I Recast, this could turn out to be a very sizeable report indeed). However without a court system ensuring uniformity of application, the Convention in my view will risk being a dead duck in the water.
Geert. (Not by nature pessimistic. But probably realistic).
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2.
Issued on the same day as Zulfikarpašić, Pula Parking Case C-551/15 deals with similar core issues, with a few extras thrown in (see also the review by Burkhard Hess here). Pula Parking, a company owned by the town of Pula (Croatia), carries out, pursuant to a decision of the mayor of that town, the administration, supervision, maintenance and cleaning of the public parking spaces, the collection of parking fees and other related tasks. In September 2010, Mr Tederahn, who is domiciled in Germany, parked his vehicle in a public parking space of the town of Pula. Pula Parking issued Mr Tederahn with a parking ticket. Since Mr Tederahn did not settle the sums due within the period prescribed, Pula Parking lodged, on 27 February 2015, with a notary whose office is in Pula, an application for enforcement on the basis of an ‘authentic document’. A notary issued a writ of execution on 25 March 2015, on the basis of that document. In his opposition, Mr Tederahn put forward a plea alleging that the notary who issued the writ of execution of 25 March 2015 did not have substantive and territorial jurisdiction on the ground that that notary did not have jurisdiction to issue such a writ on the basis of an ‘authentic document’ from 2010, against a German national or a citizen of any other EU Member State.
Does the Brussels I recast apply at all? And does it relate also to the jurisdiction of notaries in the Republic of Croatia?
On the temporal scope of the Brussels I Recast, the Court repeats its (Brussels Convention) Sanicentral (Case 25/79) finding: the only necessary and sufficient condition for the scheme of the Regulation to be applicable to litigation relating to legal relationships created before its entry into force is that the judicial proceedings should have been instituted subsequently to that date. Accession timing is irrelevant to the case: per C-420/07 Apostolides the Act of Accession of a new Member State is based essentially on the general principle that the provisions of EU law apply ab initio and in toto to that State, derogations being allowed only in so far as they are expressly laid down by transitional provisions.
On the substantial scope of the Brussels I Recast Regulation, for the issue of ‘civil and commercial’ the Court refers to its standing case-law (particularly most recently Aertssen and Sapir). In casu, it would seem (the national court is asked to confirm) that the parking debt claimed by Pula Parking is not coupled with any penalties that may be considered to result from a public authority act of Pula Parking and is not of a punitive nature but constitutes, therefore, mere consideration for a service provided. Brussels I applies.
However, notaries in casu do not act as courts: in a twin approach with Zulfikarpašić, the Court holds that the writ of execution based on an ‘authentic document’, issued by the notary, is served on the debtor only after the writ has been adopted, without the application by which the matter is raised with the notary having been communicated to the debtor. (at 58) Although it is true that debtors have the opportunity to lodge oppositions against writs of execution issued by notaries and it appears that notaries exercise the responsibilities conferred on them in the context of enforcement proceedings based on an ‘authentic document’ subject to review by the courts, to which notaries must refer possible challenges, the fact remains that the examination, by notaries, in Croatia, of an application for a writ of execution on such a basis is not conducted on an inter partes basis.
European private international law, second ed. 2016, Chapter 2, Heading 22.214.171.124.1. Chapter 6, Heading 6.2.1.
Siemens: Debt arising from the unjustified repayment (by the authorities) of a fine for infringement of competition law excluded from Brussels I.
The Court held in C-102/15 Siemens just before mine and their summer break. It had escaped my attention. At issue was whether debt arising from the unjustified repayment of a fine for infringement of competition law falls within the scope of application of the Brussels I Recast. It does not. The Court distinguished flyLAL: while private actions brought to ensure compliance with competition law fall within the scope of the Regulation, a penalty imposed by an administrative authority in the exercise of the regulatory powers conferred upon it under national legislation comes within the concept of ‘administrative matters’, excluded from the scope of Regulation No 44/2001 in accordance with Article 1(1) thereof.(at 35).
An action in unjust enrichment related to the interest due, following to and fro, imposition and rescinding, ending finally in confirmation of the fine, is intimately bound up with that fine and therefore follows it in the exclusion.
A judgment of note for those who wish to keep complete overview.
(Handbook of) European private international law, 2nd ed. 2016, Chapter 2, Heading 126.96.36.199 ff.
The November 2015 draft Hague ‘Judgments’ project. A powerful potion or a cauldron full of jurisdictional spells?
The November 2015 draft ‘Judgments project’ of the Hague Conference on private international law, otherwise known as the draft convention on the recognition and enforcement of judgments relating to civil and commercial matters, is a very ambitious project which at the same time risks exposing some of the inherent weaknesses of the modus operandi of the Hague Conference. This is not the right forum for an exhaustive analysis. Rather, I would like to flag some areas of interest. Inevitably, an obvious point of reference is the European Union’s Brussels I (Recast) regime.
First, the text itself. The Working Group’s report, which accompanies the draft, explains the history and development of the text and the various options taken. No need to repeat it here. The approach of the Convention is the same ‘mission creep’ which the 1968 Brussels Convention had to resort to, to enhance the free movement of judgments between Member States. Given that the most widespread reason for refusal of recognition and enforcement (R&E), are accusations of excessive or inappropriate exercise of jurisdiction, one can only truly co-ordinate R&E if one also co-ordinates jurisdiction. The Hague Convention takes this route in Articles 5-6, (Exclusive) bases for recognition and enforcement. Following this co-ordination of jurisdictional rules, Article 7 then limits the ground upon which R&E may be refused.
Of note is that Article 4(2)’s ban on merits review (when assessing the possibility of recognition and enforcement), probably does not extend to judgments issued by default. The Article is not clear on what is meant exactly: the first para of Article 4(2) rules out ‘review of the merits’. The second para suggests ‘The court addressed shall be bound by the findings of fact on which the court of origin based its jurisdiction, unless the judgment was given by default.’ Not being bound by findings of fact does not necessarily entail a possibility for merits review, and the text can probably do with clarification at this point.
Article 5(e)’s special jurisdictional rule for contracts, has been clarified compared with earlier versions, however the text remains subject to plenty of room for debate.
Article 8’s room for refusing R&E when the exclusive jurisdictional rules of the Convention were infringed, or where matters excluded from the Convention were at issue, could in our view do with tidying up. It currently mingles scope for refusal of R&E as such, in the case of infringement of the exclusive jurisdictional rules, with discussion of excluded matters as ‘preliminary issues’ only – a clear reference to the EU’s experience with arbitration. Without editorial perfection, however, this article, in combination with Article 2’s excluded matters, risks similar and protracted debate as was /is the case under Brussels I (and the Recast).
Further, the modus operandi, and institutional consequences of the Convention. As indicated, an exhaustive review of the Convention is not possible here. That is due in large part to the extensive comments which one could address vis-a-vis each individual entry of the text. Rather like in the case of each individual provision of the Brussels regime. In the case of the latter, the CJEU is exercised on a very regular basis with the determination of the precise meaning of the heads of jurisdiction. In the Hague process, there is no such institution. One has to rely on the application of the Convention by the signatory States. At some point, one has to assess whether it is tenable not to have some kind of review process at The Hague, lest one risks the Convention being applied quite differently in the various signatory States. Coupled with the additional lawyer of complication were the EU to accede (which it is bound to; however would it really be progress to create additional layers of differentiation?), the CJEU itself might have difficulty accepting a body of judicial review, where the text to be reviewed borders so closely unto the Brussels regime.
C-523/14 Aertssen is not a corner piece of the Brussels I jigsaw. Rather, a necessary if unexciting piece of the puzzle’s main body. Aertssen NV, of Belgium, had a gripe with VSB Machineverhuur BV and others, of the Netherlands. Aertssen alleged fraud in VSB’s dealings with the company. It employed a well-known feature of Belgian (and French, among others) civil procedure, which is to file complaint with the investigating magistrate. This launches a criminal investigation, to which civil proceedings are attached.
Aertssen’s subsequent action of attachment of VSB’s accounts in The Netherlands, risked being stalled by the Dutch courts’ insistence that the group launch new legal action in The Netherlands. Aertssen obliged pro forma with this initiation of new proceedings, subsequently to aim to torpedo them. Aertssen would rather the Belgian courts continue with their own, criminal investigation and that action in The Netherlands, other than action in attachment, be put on hold, at least until the Belgian proceedings be finalised.
In essence therefore, the case before the CJEU needs to determine whether the Aertssen action in Belgium is of a ‘civil and commercial’ nature, and if it is, whether the actions in Belgium and The Netherlands meet the requirements of the lis alibi pendens rule of Article 27 (old) of the Brussels I-Regulation. The CJEU replied in the affirmative to both.
Precedent for the ‘civil and commercial’ issue, other than the usual suspects, was available per Sonntag, Case C-172/91, where the Court held that civil matters within the meaning of the first sentence of the first paragraph of Article 1 of the Brussels Convention, cover an action for compensation for damage brought before a criminal court. In Aertssen, The CJEU used the term ‘private law relationship’ to describe the legal relationship between the parties concerned. Even though, other than in Sonntag where the criminal proceedings were launched by the State prosecutor, Aertssen itself had triggered the criminal investigation, its ultimate aim is to obtain monetary compensation.
The subsequent question was whether per Article 27, lis pendens exists. Reference is best made to the judgment itself for the application of the The Tatry criteria (Case C-406/92): the two cases pending need to involve the same parties, pursuing the same cause of action (the facts and the rule of law relied on) and with the same object (meaning the end the action has in view). The CJEU held among others that the question whether the parties are the same cannot depend on the position of one or other of the parties in the two proceedings.
The remainder of the judgment deals with the meaning of the term ‘court first seized’ in Article 30 of the Regulation, and the relevance of national rules of civil procedure in same.
It is not often that a party aims to torpedo its own proceedings and the procedural intricacies of the case are rather complex. However the CJEU keeps a level head, with in the end transparent results.