Posts Tagged http://curia.europa.eu/juris/liste.jsf?language=en&num=C-523/14

On ‘civil and commercial’, and, again, notaries as courts. The CJEU in Pula Parking.

Issued on the same day as Zulfikarpašić, Pula Parking Case C-551/15 deals with similar core issues, with a few extras thrown in. 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.

Geert.

European private international law, second ed. 2016, Chapter 2, Heading 2.2.16.1.1. Chapter 6, Heading 6.2.1.

 

, , , , , , , , , , , , , , , , , , , ,

Leave a comment

On ‘civil and commercial’, lis alibi pendens and torpedoing one’s own action: the CJEU in Aertssen.

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.

Geert.

, , , , , , , , , , , , , , , , , , , , , , , , , , , ,

Leave a comment

%d bloggers like this: