Comments on: Freeport v Arnoldsson: Art 6(1) of the Brussels I Regulation

By: Andrew Dickinson

Andrew Dickinson — Mon, 22 Oct 2007 08:37:06 +0000

We can all agree, I think, as to the result but disagree as to the means used. Had the reasoning used been deployed by an English High Court judge struggling to escape from the chains of an unquestionably binding and widely criticised Court of Appeal decision, one might (and I, for one, put it no higher than that) have some sympathy. This, however, emanates from the European Court of Justice, the supreme court of the European legal order, queen of all she surveys (and her empire grows ever larger). The Court is not bound by its earlier decisions, still less by throwaway remarks not necessary for the resolution of the (curious) question put to it in Reunion Europeenne. Had the Court said “this went further than both the decision and the terms of the 1968 Convention required” or even “this went further than the decision required and we can see why it has caused confusion and dissatisfaction in some quarters”, its decision in Freeport would not have raised doubts. By deploying a judicial sleight of hand, however, the Court calls into question, once again, whether it is deserving of our (common) trust as the arbiter of an increasingly broad civil justice regime under EC law. Like the principle of mutual trust in other Member State courts formulated in the Gasser and Owusu decisions, it is a fiduciary relationship from which the “beneficiaries” are not free to withdraw. But the importance of the Court’s role in our personal and professional lives is too important to allow the re-writing of history to pass without remark.

By: Alex Layton

Alex Layton — Fri, 19 Oct 2007 15:41:33 +0000

Ahem. RIP para. 48 of Réunion. This decision was surely inevitable: it was plain that the ECJ had not thought through the implications of its decision in Réunion, as the Court of Appeal pointed out in Watson v. First Choice [2002] I.L.Pr. 8. So, for once, I am with Adrian on this one.

I also agree that this Art 6(1) involves an assessment by the court of whether the test of irreconcilability is satisfied – an exercise of a kind undertaken by courts in all legal systems – but NOT the exercise of a discretion (at least in the sense in which that term is invariably understood in common law systems). The point can be neatly illustrated by reference to Art 28. IF the proceedings are related (an assessment, very possibly engaging Art 28(3)), THEN the court has a discretion under Art 28(1) which it will exercise in deciding whether or not, in all the circumstances, to grant a stay.

By: Jacco Bomhoff

Jacco Bomhoff — Fri, 19 Oct 2007 12:04:09 +0000

The problem, in my view, is not so much the fact that the Court did not recant earlier (as prof. Briggs writes: when could they have?), but the fact that they change course now in such an oblique way. This causes difficulties not only within the Regulation system itself (what about the prized objective of legal certainty?) but also, more generally, for the development of theories of precedent for the European legal order.
As to the use of the term ‘discretion’, I realize that art. 6(1) does not offer discretion of the kind involved in English discretionary doctrines such as forum non conveniens. But to the extent that the connection required by art. 6(1) comes in the form of a ’standard’ rather than a ‘rule’, I would be inclined to think that discretion in a broader sense could be an appropriate term.

By: Martin George

Martin George — Thu, 18 Oct 2007 22:20:21 +0000

Indeed, but surely that presupposes that the ECJ would have to hear a case on Article 6(1) and the relevant paragraph in Reunion Europeenne in order to airbrush it from the books (as it has just done in Freeport)?

The offending paragraph comes from a case in which Article 6(1) was, on the facts, inapplicable. Is it not, therefore, within the realm of the ECJ’s competence (what isn’t?) to undo what it had said rather quicker than it did do, in a case where Article 6(1) was, on the facts, inapplicable?

By: Adrian Briggs

Adrian Briggs — Thu, 18 Oct 2007 18:42:16 +0000

As the Court is not given to issuing press releases when it realises that it may have taken a wrong turn, when, during the last 10 years, did it fail to take advantage of an opportunity to recant the offending paragraph 50 ? It is fair to criticise the court for mistakes it makes. It is right to asperse it when it spurns an opportunity to put right a mistake previously made. But it is not to be blamed, surely, for not doing the impossible. As to ‘discretion’, I understand that the test to be used within Art 6.1 involves judgment, but I would not have thought that it was accurate to call it discretion.

By: Asunto C-98/06, 11.10.2007, Freeport plc c. Olle Arnoldsson « Àrea de Dret Internacional Privat

Thu, 18 Oct 2007 16:33:25 +0000

[...] el comentario de esta sentencia por Jacco Bomhoff (Leiden University) disponible en [...]

By: Martin George

Martin George — Thu, 18 Oct 2007 11:42:54 +0000

I’m not inclined to be as charitable.

Yes, they may have changed their minds, but it has taken them 10 years to do it. Moreover, when they do finally rectify their egregious error in Reunion Europeenne, they do it with a judgment that (as Jacco intimates above) leaves behind more questions than it does answers. Rather than Keynes, I would look to Thomas Moore: it’s out of the frying pan and into the fire for Article 6(1).

By: Adrian Briggs

Adrian Briggs — Thu, 18 Oct 2007 06:47:19 +0000

Fair enough, but courts aren’t the only ones who make mistakes. The basic advice of Keynes, that when you find you are wrong you should change your mind, seems to have been followed here. We should be happy that this piece of bad law has been airbrushed out of the books and should, perhaps, not be too loudly critical of the way it happened. Ends and means; ends and means…