EUROPEAN PRIVATE INTERNATIONAL LAW Ester di Napoli LUMSA

EUROPEAN PRIVATE INTERNATIONAL LAW Ester di Napoli LUMSA University, Rome 28 October – 4 November 2020 e. dinapoli@lumsa. it

BRUSSELS I AND BRUSSELS I-BIS REGULATIONS Regulation n. 44/2001(Brussels I): outcome of the process of “Europeanization” of Private International Law Declaration of enforceability (exequatur): “(17) By virtue of the same principle of mutual trust, the procedure for making enforceable in one Member State a judgment given in another must be efficient and rapid. To that end, the declaration that a judgment is enforceable should be issued virtually automatically after purely formal checks of the documents supplied, without there being any possibility for the court to raise of its own motion any of the grounds for nonenforcement provided for by this Regulation”. Regulation n. 1215/2012: Brussels I bis Regulation Articles 67 and 81 TFEU Article 267 of the TFEU: Interpretation of the Court of Justice of the EU – after the Lisbon Treaty (first instances); function of its activity

BRUSSELS I BIS REGULATION Recital 34 of the Preamble: Continuity between the 1968 Brussels Convention, Regulation (EC) No 44/2001 and this Regulation should be ensured, and transitional provisions should be laid down to that end. The same need for continuity applies as regards the interpretation by the Court of Justice of the European Union of the 1968 Brussels Convention and of the Regulations replacing it. Elements of continuity and discontinuity with Brussels I Regulation (CJEU case-law; third States; abolition of exequatur; strengthening of choice of court agreements). Inter-textual interpretation

BRUSSELS I BIS REGULATION OUTLINE Preamble: 41 recitals 81 articles: - Scope and definitions - Rules on jurisdiction - Rules on recognition and enforcement - Common provisions - Annexes (standard forms)

BRUSSELS I BIS REGULATION SCOPE 1. Temporal scope of application (ratione temporis) 2. Personal scope of application (ratione personae) 3. Material scope of application (ratione materiae)

1. TEMPORAL SCOPE OF APPLICATION (RATIONE TEMPORIS) Article 66: «This Regulation shall apply only to legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded on or after 10 January 2015. 2. Notwithstanding Article 80, Regulation (EC) No 44/2001 shall continue to apply to judgments given in legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded before 10 January 2015 which fall within the scope of that Regulation»

1. TEMPORAL SCOPE OF APPLICATION (RATIONE TEMPORIS) Article 81: «This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. It shall apply from 10 January 2015 (…). This regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties»

2. PERSONAL SCOPE OF APPLICATION (RATIONE PERSONAE) Domicile: the principal head of jurisdiction used by the rules on jurisdiction contained in the regulation Article 4: « 1. Subject to this regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State. 2. Persons who are not nationals of the Member State in which they are domiciled shall be governed by the rules of jurisdiction applicable to nationals of that Member State» Ordinary forum of the defendant

2. PERSONAL SCOPE OF APPLICATION (RATIONE PERSONAE) Article 5 : «Persons domiciled in a Member States may be sued only by virtue of the rules set out in Sections 2 to 7 of this Chapter» Recital 15 of the Preamble: «The rules of jurisdiction should be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile. Jurisdiction should always be available on this ground save in a few well defined situations in which the subjectmatter of the dispute or the autonomy of the parties warrants a different connecting factor. The domicile of a legal person must be defined autonomously so as to make the common rules more transparent and avoid conflicts of jurisdiction» .

2. PERSONAL SCOPE OF APPLICATION (RATIONE PERSONAE) Article 6 : « 1. If the defendant is not domiciled in a Member State, the jurisdiction of the courts of each Member State shall, subject to Article 18(1), Article 21(2) and Articles 24 and 25, be determined by the law of that Member State. 2. As against such a defendant, any person domiciled in a Member State may, whatever his nationality, avail himself in that Member State of the rules of jurisdiction there in force, and in particular those of which the Member States are to notify the Commission pursuant to point (a) of Article 76(1), in the same way as nationals of that Member State» . See the European e-Justice Portal for Member States’ communications to the EU Commission.

2. PERSONAL SCOPE OF APPLICATION (RATIONE PERSONAE) Recital 16: «In addition to the defendant’s domicile, there should be alternative grounds of jurisdiction based on a close connection between the court and the action or in order to facilitate the sound administration of justice. The existence of a close connection should ensure legal certainty and avoid the possibility of the defendant being sued in a court of a Member State which he could not reasonably have foreseen. This is important, particularly in disputes concerning non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation» . Forum shopping

2. PERSONAL SCOPE OF APPLICATION DOMICILE OF INDIVIDUALS Article 62 (domicile of an individual): « 1. In order to determine whether a party is domiciled in the Member State whose courts are seised of a matter, the court shall apply its internal law. 2. If a party is not domiciled in the Member State whose courts are seised of the matter, then, in order to determine whether the party is domiciled in another Member State, the court shall apply the law of that Member State» . The British concept of “domicile” is contained in par. 9 of Schedule 1 to the Civil Jurisdiction and Judgment Order 2001 (SI 2001/3929): an individual is domiciled in the UK if: “(a) he is resident in the United Kingdom; and (b) the nature and circumstances of his residence indicate that he has a substantial connection with the United Kingdom”.

2. PERSONAL SCOPE OF APPLICATION DOMICILE OF LEGAL PERSONS Article 63 (autonomous definition of «domicile of a legal person» ): « 1. For the purposes of this Regulation, a company or other legal person or association of natural or legal persons is domiciled at the place where it has its: (a) statutory seat; (b) central administration; or (c) principal place of business. 2. For the purposes of Ireland, Cyprus and the United Kingdom, ‘statutory seat’ means the registered office or, where there is no such office anywhere, the place of incorporation or, where there is no such place anywhere, the place under the law of which the formation took place. 3. In order to determine whether a trust is domiciled in the Member State whose courts are seised of the matter, the court shall apply its rules of private international law”.

3. MATERIAL SCOPE OF APPLICATION (RATIONE MATERIAE) Autonomous/uniform interpretation of the expressions contained in the Regulation + express definitions given by the Regulation. Article 1 confines the scope of the Regulation to claims under private law, as distinct to public law. As The notions of private and public law differ in the MSs CJEU: the concept of «civil and commercial matters» shall be given an autonomous meaning: « 1. This Regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii)»

3. MATERIAL SCOPE OF APPLICATION (RATIONE MATERIAE) Matters expressly excluded from its scope of application (Article 1, par. 2): “ 2. This Regulation shall not apply to: (a) the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship or out of a relationship deemed by the law applicable to such relationship to have comparable effects to marriage; (b) bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings; (c) social security; (d) arbitration; (e) maintenance obligations arising from a family relationship, parentage, marriage or affinity; (f) wills and succession, including maintenance obligations arising by reason of death”.

3. MATERIAL SCOPE OF APPLICATION (RATIONE MATERIAE) Examples: - The Regulation does not apply to a dispute between a private person and a public authority, where the dispute arises out of acts done by the public authority in the exercise of its powers as such (LTU v. Eurocontrol, Case 26/76); - The Regulation applies to a dispute between an individual and a public authority when the relevant legal relationship between them does not involve the exercise by the State of powers going beyond those existing under the rules applicable to relations between private persons (Tiard v. Staat der Nederlanden, Case C-266/01).

3. MATERIAL SCOPE OF APPLICATION (RATIONE MATERIAE) Examples: - The Regulation does not apply to claims for compensation brought against a Member State, where the legal action derives from operations conducted by armed forces during the Second World War (Lechouritou v. Germany, Case C-292/05). The Court held that «Disputes of that nature do result from the exercise of public powers by one of the parties to the case, as it exercises powers falling outside the scope of the ordinary legal rules applicable to relationships between private individuals … Since that field as such must be regarded as not falling within the scope of the Brussels Convention, the unlawfulness of such acts cannot justify a different interpretation» (paras. 34 and 43).

3. MATERIAL SCOPE OF APPLICATION (RATIONE MATERIAE) Examples: - Although the Regulation does not apply to criminal proceedings themselves, it does apply to a civil claim in tort, even when it is made ancillarily to a prosecution in a criminal court (Sonntag v. Waidmann, Case C-172/91).

RULES ON JURISDICTION In addition to the forum of the defendant: Special/alternative jurisdiction (arts. 7 -9) - Jurisdiction over the so-called «protected contracts» when a contracting party is a «weaker party» (arts. 10 -23) - Exclusive jurisdiction (art. 24) - Choice-of-court agreements / Prorogation of jurisdiction (arts. 2526) - Mechanisms of coordination: lis pendens and related actions (arts. 29 -34)

RULES ON JURISDICTION Special/alternative jurisdiction: Section 2 specifies a variety of cases in which, by way of derogation from Article 5, a defendant who is domiciled in one MS may be sued in another MS: choice left to the claimant. Article 7: “A person domiciled in a Member State may be sued in another Member State: (1) (a) in matters relating to a contract, in the courts for the place of performance of the obligation in question; (b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be: - in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered, - in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided; (c) if point (b) does not apply then point (a) applies; …”

THE CONCEPT OF «CONTRACT» Nothing specified in the Regulation as to the (autonomous) definition of «contractual matters» : interpretation by the CJEU given in relation to Regulation (EC) n. 44/2001 – www. europa. eu - The notion of «contract» : an obligation freely assumed from one party towards another; - It extends to a relationship which involves close links of the same kind as those between the parties to a contract (in the strictest sense): an obligation to pay a sum of money which has its basis in the relationship esisting between an association and its members by virtue of membership are contractual matters within article 7, par. 1 (Peters v. ZNAV, Case 34/82)

THE CONCEPT OF «CONTRACT» Pre-contracual obligations do not fall within the scope of article 7, par. 1 (Tacconi, Case C-334/00): a claim of loss caused by the unjustified breaking off of pre-contractual obligations (i. e. an obligation to make good damage caused by the unjustified breaking off of negotations, derived from breach of a rule requiring the parties to act in good faith in negotiations with a view to the formation of a contract).

CONTRACTS FOR SALES OF GOODS - «Goods» – tangible movables: article 7, par. 1, does not apply to sales of land or of intangible property (such as patents and copyrights); it implies the transfer of ownership of goods in return for payment of a monetary price, so it does not apply to contracts for the hire of goods. «Mixed» transactions similar to a sale of goods, such as hire-purchase, are probably included. - The determination of the place of delivery, in a case involving the carriage of the goods, has been addressed by the CJEU in the case Electrosteel (Case C-87/10). The case involved an Italian seller and a German buyer: account must be taken of all the relevant terms of the contract which are capable to clearly identifying the place of delivery, including terms which are generally recognised and applied through the usages of international trade and commerce, such as the Incoterms drawn up by the International Chamber of Commerce.

CONTRACTS FOR SALES OF GOODS Incoterms in the version published in 2010 (https: //iccwbo. org/resources-for-business/incoterms-rules/incotermsrules-2010/): Examples: - Sale ex-works (EXW): means that the seller delivers when it places the goods at the disposal of the buyer at the seller’s premises or at another named place (i. e. , works, factory, warehouse, etc. ). The seller does not need to load the goods on any collecting vehicle, nor does it need to clear the goods for export, where such clearance is applicable the place of delivery will be the seller’s country

CONTRACTS FOR SALES OF GOODS - Free on Board (FOB): means that the seller delivers the goods on board the vessel nominated by the buyer at the named port of shipment or procures the goods already so delivered. The risk of loss of or damage to the goods passes when the goods are on board the vessel, and the buyer bears all costs from that moment onwards the place of delivery will be the port of loading.

CONTRACTS FOR THE PROVISION OF SERVICES As, again, the concept of ‘provision of services’ is not defined neither in Regulation 44/2001 nor in Regulation 1215/2012: - The CJEU established that the concept of service implies, at least, that the party who provides the service carries out a particular activity in return for remuneration. Accordingly, it ruled that a contract under which the owner of an intellectual property right (such as copyright) grants its contractual partner a license to use that right in return of remuneration is not a contract for the provision of services within article 7, par. 1, let. b) first indent, since such contract does not involve an activity by the licensor, but only an obligation by the licensor not to challenge the use of the right by the licensee, and it is immaterial whether the licensee is obliged to use the right licensed (Falco v. Weller-Lindhorst, Case C-533/07); - Where services are provided in several MS: the place of the main provision of services (Wood Floor Solutions, Case C-19/09).

RULES ON JURISDICTION [follows] Article 7 “ (2) in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur; (3) as regards a civil claim for damages or restitution which is based on an act giving rise to criminal proceedings, in the court seised of those proceedings, to the extent that court has jurisdiction under its own law to entertain civil proceedings; (4) as regards a civil claim for the recovery, based on ownership, of a cultural object as defined in point 1 of Article 1 of Directive 93/7/EEC initiated by the person claiming the right to recover such an object, in the courts for the place where the cultural object is situated at the time when the court is seised; (5) as regards a dispute arising out of the operations of a branch, agency or other establishment, in the courts for the place where the branch, agency or other establishment is situated; (6) as regards a dispute brought against a settlor, trustee or beneficiary of a trust created by the operation of a statute, or by a written instrument, or created orally and evidenced in writing, in the courts of the Member State in which the trust is domiciled; (7) as regards a dispute concerning the payment of remuneration claimed in respect of the salvage of a cargo or freight, in the court under the authority of which the cargo or freight in question: (a) has been arrested to secure such payment; or (b) could have been so arrested, but bail or other security has been given; provided that this provision shall apply only if it is claimed that the defendant has an interest in the cargo or freight or had such an interest at the time of salvage.

MATTERS RELATING TO TORT, DELICT OR QUASI-DELICT “(2) in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur” Potential harmful event; Tacconi (Case C-334/00); Bier v. Mines de Potasse (Case 21/76): in case where the place of the happening of the event which may give rise to liability in tort and the place where the harmful event occurred are not the same: article 7, par. 2 (ex art. 5, par. 3) shall be interpreted by meaning both the courts of the place where the damage occurred and of the place of the event giving rise to it; - Shevill c. Presse Alliance (Case C-68/93): defamation and privacy through newspaper; - e. Date Advertising v. X and Martìnez (joined Cases C-509/09 and C-161/10): defamation and violation of privacy by means of a publication on an Internet website: the CJEU distinguished the placing online of the content on a website from the regional distribution of media such as printed matter (due to the ubiquity of the content placed online). -

EXCLUSIVE JURISDICTION Article 24: «The following courts of a Member State shall have exclusive jurisdiction, regardless of the domicile of the parties: (1) in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the Member State in which the property is situated. However, in proceedings which have as their object tenancies of immovable property concluded for temporary private use for a maximum period of six consecutive months, the courts of the Member State in which the defendant is domiciled shall also have jurisdiction, provided that the tenant is a natural person and that the landlord and the tenant are domiciled in the same Member State; (2) in proceedings which have as their object the validity of the constitution, the nullity or the dissolution of companies or other legal persons or associations of natural or legal persons, or the validity of the decisions of their organs, the courts of the Member State in which the company, legal person or association has its seat. In order to determine that seat, the court shall apply its rules of private international law;

EXCLUSIVE JURISDICTION (3) in proceedings which have as their object the validity of entries in public registers, the courts of the Member State in which the register is kept; (4) in proceedings concerned with the registration or validity of patents, trade marks, designs, or other similar rights required to be deposited or registered, irrespective of whether the issue is raised by way of an action or as a defence, the courts of the Member State in which the deposit or registration has been applied for, has taken place or is under the terms of an instrument of the Union or an international convention deemed to have taken place. … (5) in proceedings concerned with the enforcement of judgments, the courts of the Member State in which the judgment has been or is to be enforced”.

CHOICE OF COURT AGREEMENTS Choice-of-court agreements / Prorogation of jurisdiction (arts. 2526) When the parties, regardless of their domicile, agree that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction, unless the agreement is null and void as to its substantive validity under the law of that Member State. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. + formal validity + article 26

MECHANISMS OF COORDINATION lis pendens and related actions (arts. 29 -34) - Preserving harmony and coherence - What does it happen when a choice of court is made? - “a court shall be deemed to be seised” - intra and extra-EU situations

CONCURRENT PROCEEDINGS Brussels I bis aims at: 1. Reducing the risk of irreconcilable judgments (promoting harmony of decisions); and 2. Increasing co-ordination in the exercise of the judicial functions within the EU so as to: a. promote litigation economy; and b. avoid waste of time

CONCURRENT PROCEEDINGS Mechanism of: Lis alibi pendens: problems related to proceedings simultaneously pending in courts of different MSs in respect of similar/related disputes (articles 29 -32) and related to proceedings simultaneously pending in courts of a MS and a third country (articles 33 -34 – new provision)

LIS ALIBI PENDENS Article 29: “ 1. Without prejudice to Article 31(2), where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established. 2. In cases referred to in paragraph 1, upon request by a court seised of the dispute, any other court seised shall without delay inform the former court of the date when it was seised in accordance with Article 32. 3. Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court”. simple test of chronological priority

LIS ALIBI PENDENS Article 31: “ 1. Where actions come within the exclusive jurisdiction of several courts, any court other than the court first seised shall decline jurisdiction in favour of that court. 2. Without prejudice to Article 26, where a court of a Member State on which an agreement as referred to in Article 25 confers exclusive jurisdiction is seised, any court of another Member State shall stay the proceedings until such time as the court seised on the basis of the agreement declares that it has no jurisdiction under the agreement. 3. Where the court designated in the agreement has established jurisdiction in accordance with the agreement, any court of another Member State shall decline jurisdiction in favour of that court. 4. Paragraphs 2 and 3 shall not apply to matters referred to in Sections 3, 4 or 5 where the policyholder, the insured, a beneficiary of the insurance contract, the injured party, the consumer or the employee is the claimant and the agreement is not valid under a provision contained within those Sections”.

LIS ALIBI PENDENS Autonomous definition of the “moment when the court shall be deemed to be seised” (article 32). Lis pendens and third countries (article 33): “ 1. Where jurisdiction is based on Article 4 or on Articles 7, 8 or 9 and proceedings are pending before a court of a third State at the time when a court in a Member State is seised of an action involving the same cause of action and between the same parties as the proceedings in the court of the third State, the court of the Member State may stay the proceedings if: (a) it is expected that the court of the third State will give a judgment capable of recognition and, where applicable, of enforcement in that Member State; and (b) the court of the Member State is satisfied that a stay is necessary for the proper administration of justice. 2. The court of the Member State may continue the proceedings at any time if: (a) the proceedings in the court of the third State are themselves stayed or discontinued; (b) it appears to the court of the Member State that the proceedings in the court of the third State are unlikely to be concluded within a reasonable time; or (c) the continuation of the proceedings is required for the proper administration of justice. 3. The court of the Member State shall dismiss the proceedings if the proceedings in the court of the third State are concluded and have resulted in a judgment capable of recognition and, where applicable, of enforcement in that Member State. 4. The court of the Member State shall apply this Article on the application of one of the parties or, where possible under national law, of its own motion.

PRACTICAL CASE Facts: José, a Cuban citizen, has been living in Italy for 25 years. He works and has a family in Rome. On 10 January 2015, on his way back from London, where he had a business meeting, he remains blocked for more than 4 hours at Gatwick Airport: his Ryanair flight is delayed «due to reasons of force majeure» . Therefore, he lands at Fiumicino Airport 3 hours and a half behind the scheduled time of arrival. José knows that, according to Regulation (EC) n. 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, he is entitled to a compensation of 250, 00 euro. He duly fills in and submits the compensation claim through the Ryanair website, but receives no answer.

PRACTICAL CASE Questions: Jose’s attorneys: explain how you would organize your strategy: Where can he sue Ryanair? Explain your logical steps -------------Ryanair’s attorneys: respond to José’s proceedings

PRACTICAL CASE Steps: - Which EU PIL instrument applies? - temporal scope? - personal scope? - material scope? does the action for compensation and assistance to passengers in the event of denied boarding (…) fall within the scope of Regulation (EU) n. 1215/2012?

SOLUTION • Case C-204/08, Peter Rehder v. Air Baltic Corporation: “The second indent of Article 5(1)(b) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that, in the case of air transport of passengers from one Member State to another Member State, carried out on the basis of a contract with only one airline, which is the operating carrier, the court having jurisdiction to deal with a claim for compensation founded on that transport contract and on Regulation 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 (…), is that, at the applicant’s choice, which has territorial jurisdiction over the place of departure or place of arrival of the aircraft, as those places are agreed in that contract”.

SOLUTION However: see Ryanair’s General Terms & Conditions of Carriage: Article 2. 4: “Governing law and jurisdiction Except as otherwise provided by the Convention or applicable law, your contract of carriage with us, these Terms & Conditions of Carriage and our Regulations shall be governed by and interpreted in accordance with the laws of Ireland any dispute arising out of or in connection with this contract shall be subject to the jurisdiction of the Irish Courts”. so-called click-wrap agreement (see decision of the High Court of Ireland, 26 February 2010) Does the choice oh court agreement between Ryanair and José meet the formal and substantial conditions set out in article 25 of Brussels I bis Regulation?