The Written Observations Submitted in the Gambazzi Case

Many thanks to Prof. Koji Takahashi for sending the following text and the files with the written observations submitted in the Gambazzi case.

The written observations submitted to the European Court of Justice are normally unpublished. Earlier this year, I obtained the observations submitted in Case C-394/07 Gambazzi by the United Kingdom, the Republic of Italy and the Commission of the European Communities as well as the French translation of the observation of Italy supplied by the Court of Justice. The request was made under the United Kingdom Freedom of Information Act 2000 (My thanks are due to the United Kingdom Ministry of Justice and those helped me in the process). Since I was told that those observations were now regarded as being in the public domain, I think I should make them available to all rather than keeping them to myself. Please note that the United Kingdom is withholding the written observations submitted on behalf of the Hellenic Republic, Mr Gambazzi, Daimler Chrysler Canada Inc. and CIBC Mellon Trust Company since they did not consent to disclosure by the United Kingdom.

Commission observations

UK observations

Italy observations (in italian)

Italy observations (in french)

Note: On October the 1st Advocate General Poiares Maduro delivered his opinion in the joined Cases C?514/07 P, C?528/07 P and C?532/07 P.  The Opinion is connected with the information provided by Prof. Takahashi in as much as the central issue submitted to the ECJ is “to what extent do the principles of transparency of judicial proceedings and publicity of trial require members of the public to be allowed access to the written submissions filed with the Court by the parties to a case”.

Many thanks to Daniel Sarmiento Ramirez-Escudero for the hint.

Comments on this entry are closed.

  • Gilles Cuniberti November 20, 2009, 7:33 pm

    Many thanks for sharing this interesting information.

    The UK observations are worth the read. It is fascinating to see how the agent of the UK government and the barrister who was assisting her “understand” what happened in the English proceedings, which seems to mean that these specialists of English civil procedure are either unable, or unwilling, to say what really happened. And if they are only able to “understand” what’s happening in England, how is the ECJ supposed to know?

    It seems that, whichever mutual trust is imposed on English lawyers, their duty of full and franck disclosure does not extend to European courts. Well done: both AG Kokott and the ECJ were eventually unable to decide.

  • Adrian Briggs November 23, 2009, 7:23 am

    What is the cause of the criticism ? The submissions for the United Kingdom address the questions and propose answers. The account of the English procedure looks accurate and sufficient to explain why the submissions are, in the opinion of the United Kingdom, justified. One may or may not agree with their analysis, but it is surely unjustified to accuse them of concealing information. The reference was from Italy, not the United Kingdom; the questions were whether the judgment was to be recognised in Italy, not the United Kingdom. It is far from obvous what else the government was supposed to have said about that.
    As to the post hoc disclosure, the case was referred from Italy, not from the United Kingdom. If it is contended that documents which formed part of the record should have been made available, the disclosure should have been sought from Luxembourg or from Italy. Perhaps I am missing something, but this criticism seems wide of the mark.

  • Gilles Cuniberti November 23, 2009, 9:11 am

    Adrian,

    as far as I am aware, it is the first time that the ECJ is unable to assess the “facts” in a Jurisdiction and Judgments case. In previous ones, and in particular in public policy ones (Krombach and Renault), it had been able to understand what was going on and decide.

    Here, it could not, and expressly said so. This is because it did not understand English civil procedure and the procedure in that piece of litigation that it eventually gave guidelines rather than reached a decision. The only possibility for the court to understand was to get information from a knowledgeable and reasonably disinterested party. Only the UK qualified. You could have thought that the members of the ECJ were unable to understand the thourough explanation given by the UK because they drink too much Moselle wine and not enough English beer. But that is not what happened. The submission is poorly documented about what happened to Gambazzi. And the worst part is when the UK recognizes (the UK “understand”) that it does not offer accurate information. Indeed, it would have only been necessary for these two ladies to read conflictoflaws.net on a regular basis to learn more about the case, and in particular that Gambazzi did apply to the ECtHR.

    Now, of course, if your point is that the UK had not obligation to file any submission, and that therefore the ECJ should be happy with poor submission, then I guess we agree: no duty of full and franck disclosure to European courts.

  • Adrian Briggs November 23, 2009, 11:10 am

    To Gilles: If the Court thought the order for reference was inadequate or incomplete, it would have raised this of its own motion with the referring court. But as the question was whether recognition was consistent or inconsistent with Italian public policy, it was a matter for the Italian court to decide what information it required and (one supposes) to require the parties to adduce such evidence as was called for to allow the Italian court to make that decision on grounds of Italian law. I cannot see where the Court complained that it could not do the job reserved to it; rather, as I read it, it respected the line which separated its authority from that of the Italian court. Speaking for myself, I do not think the law would be well served if the Court were to start to lay down the rules of, or the result of applying the rules of, Italian public policy. I continue to think that the Court had all the information it needed to give the answer which the Italian court asked for. No doubt the case is now proceeding, exactly as it should, before the Italian courts.

  • Koji Takahashi November 23, 2009, 8:18 pm

    My understanding is that it is sufficient for the Court of Justice to give a guideline so that the courts of the Member States can apply it in specific cases. I think that the Court of Justice in Gambazzi has given a sufficient guideline and the UK observation was sufficient to aid that task. In fact, there is not much point for the Court of Justice to pronounce a definite conclusion in this particular case since the broad equitable power of the English courts on which the freezing orders rest means that the way the English courts will exercise the discretion will be different from one case to another.
    Anyway, a more interesting question for me is the transparency of the decision making process of the Court of Justice. The point noted by Prof. Requejo immediately below my contribution may be an aspect of it.

  • Gilles Cuniberti November 24, 2009, 9:14 am

    Prof Takahashi,

    I am afraid that before Gambazzi, the Court of Justice had always made it clear that uniformity and predictability are paramount in jurisdiction and judgments matters. As a consequence, it would not give mere guidance and would indeed reach final decisions. And it did so quite clearly with other creatures of Equity, namely antisuit injunctions, including 2 months before Gambazzi (see West Tankers). For this purpose, it has not let the discretion of the English court get into the way.

  • Adrian Briggs November 24, 2009, 9:35 am

    Gilles, is that really correct ? The court in Turin was required by the Convention or Regulation (it does not matter which) to apply rules of Italian public policy. In relation to that, all the European Court considers itself authorised to do is to place outer limits on the permissible application of that public policy, exactly as it did in Krombach and in Renault. In Krombach, for example, it did not rule that recognition would be contrary to German public policy; it ruled that the German court was entitled to take account of the fact that K had been refused permission to present his defence to the French court in person. It did not tell the German court what conclusions to draw; it certainly and manifestly did not undertake the detailed factual investigation necessary to lead to a final conclusion as to what German public policy required, because that it not its job, and quite possibly because it did not have the time and information. It simply explained what the Convention meant and invited the German court to make its decision. That is, for practical purposes, exactly same as was done in relation to the question referred by the court in Turin. Call that giving guidelines if you like; but it is all the Court is authorised to do. If you need another case to illustrate how the Court sees its role where questions of recognition are presented by courts which do not disclose enough of the facts to allow anyone to understand what was really going on, surely Hendrickman would be that case ? There may have been an order made against Gambazzi in the English court’s equitable-now-statutory jurisdiction, but the order debarring him from defending is not equitable. It is a procedural order of a kind by which a court – any court, as the European Court observes – controls proceedings before it and deals with what is finds to be disobedience. The reference to equity is, in this context, surely immaterial.

  • Gilles Cuniberti November 24, 2009, 9:54 am

    Adrian,

    Two comments:

    first, this is not the point I was just making, because it is not the point Prof Takahashi had made. But it seems you and I agree on the fact that Equity is immaterial here.

    Second, I take your point on the peculiarity of referrences regarding public policy. The ECJ should only be concerned with the outer limits of Italian public policy, not its actual content. However, in Gambazzi, although both the ECJ and the AG recalled that it was not for them to define national public policy, they did not explain why they were giving only “guidelines” on this ground. AG Kokott expressly said that there was a difference between Krombach and Gambazzi, because

    “the situtation in Krombach was clear and unambiguous in fact and in law” (§ 46),

    while in Gambazzi

    “important details of the proceedings before the Court of the State of origin are not described adequately in the order for reference” and “it will therefore be for the referring court to ascertain the facts and to give the final decision …” (§ 48).

    Then, of course, we go back to our first debate: AG Kokott wishes that the (Italian) order for referrence be more precise, but how could it be, since the issue is what happened in proceedings before the (English) Court of origin.

  • Burkhard Hess November 24, 2009, 2:08 pm

    This is an interesting discussion which in my opinion addresses two different issues:

    The first issue relates to the role and the function of the governments in the referral proceedings under Article 234 EC-Treaty. According to Gilles’ understanding, the governments shall provide information to the ECJ about the legal and factual background of the referred case. Such information is certainly helpful, but as far as I understand the role of Member States under Art. 23 (2) of the ECJ’s statute, their task is not to inform the Court about these issues, but to present their observations in order to inform the court about their legal position in the pending referral. If the Court wishes to get more information it can request this information either from the Parties or the Member States under Article 24 ECJ Statute. Under Article 23 (2) ECJ Statute, the role of Member States resembles the role of an amicus curiae which assists the Court by submitting legal and factual information and draws the attention to specific issues. However, the position of a Member State is different if its own legal or procedural system is (indirectly) the object of the referral (for potentially being contrary to Community law). In this situation, the Member State may submit a statement in order to “defend” its own system. In Gambazzi, the position of the UK government was in-between, as the referral of the Italian Court mainly addressed the proceedings in England.

    The second issue also seems interesting to me. It relates to the content of the public policy exception (Article 27 no 1 JC; 34 no 1 JR). The comments reveal different understandings of public policy. For some commentators (as Adrian Briggs) public policy appears to be mainly a matter of national law and interpretation (French, Italian or German public policy). Gilles Cuniberti largely refers to European standards (or guidelines). This different understanding of public policy is also apparent from the discussion about the abolition of exequatur in the Maintenance Regulation. At an ERA-conference in Trier some weeks ago Salla Saastamoinen of the EC-Commission argued that the abolition of exequatur in the Maintenance Regulation was justified by the harmonisation of the conflict of laws rules in that instrument. According to her statement, the harmonisation of conflict of laws rules will lead to identical results concerning the applicable law in the EC-Member States and thereby avoid the application of the public policy exception in exequatur proceedings. However, if public policy is determined by national law (and not by EC standards), the application of the public policy in the Rome instruments will still entail different results. The question is whether we are heading towards a European public policy exception in private international law. It seems to me that there are still considerable differences in the Member States and among scholars on the proper interpretation of public policy in EC instruments.

  • Adrian Briggs November 24, 2009, 2:53 pm

    To the second issue raised by Professor Hess: No doubt there are those in the Commission who wish to see the notion and role of public policy detached from national laws and turned into a matter of ‘Community Public Policy’, or some such thing. This, after all, was proposed when a draft of what became the Rome II Regulation was considered by the Member States: ‘Community Public Policy’ was proposed as the basis for an Art 24 which would have required the mandatory non-application of laws which would have awarded non-compensatory damages. That proposal was later withdrawn. The United Kingdom objected to it (House of Lords EU Committee, 8th Report of Session 2003-04); it may be that other Member States did as well. The result appeared to be that public policy was, in this area of legislative activity, left to be governed and defined by national law, as it always had been. As Professor Hess says, the question may indeed be whether we are heading towards a form of European public policy. In spite of the fact that the very idea has been rejected every time it has been raised, the answer presumably is that the proposal will be put and put again until the Commission gets the only answer in which it is interested. The average Irish elector will recognise the procedure.

  • Koji Takahashi November 24, 2009, 6:24 pm

    As regards the point on equity, the exact source of the power of the English court to debar defence has long been an enigma to me. It is one of the sanctions available for contempt of court. I understand that the inherent jurisdiction is the source of power to issue various sanctions for contempt (See e.g. M.S. Dockray, “The Inherent Jurisdiction to Regulate Civil Proceedings” 113 (1997) LQR 120, 123), “inherent” in the sense that it predates any statutory power under the Supreme Court of Judicature Acts 1873. I would have thought that it was based on the equitable power or at least heavily influenced by it. Prior to the 1873 Act, did the common law court as well as the equity court have inherent jurisdiction to do whatever necessary in order to ensure the effectiveness of the orders they made? If this is a question to common law lawyers, I am also interested in whether the courts of any civil law countries (which do not know equity) have anything equivalent to the English inherent jurisdiction. I would be grateful to be enlightened.

  • Martin George November 24, 2009, 7:28 pm

    Re ‘Community Public Policy’, I would have thought that those in the Commission who think this has a nice ring to it have a fairly large presumption to overcome: there is no such thing. Public policy, by its very nature, is given life through national concepts and ideals. A pan-European uniform public policy theory would only work if the social, moral and economic (and, indeed, public/human rights law) values that underpin our national legal systems were the same.

  • Andrew Dickinson November 25, 2009, 10:40 am

    A few thoughts on Community public policy.

    The first problem, of course, is in deciding on the definition, and from that determining the content, of this “Community public policy”. Let’s assume, however (for the sake of argument) that those who guide us in these matters can reach agreement on a suitable definition (for example, “a manifest breach of a fundamental principle of the Union’s law” with specific – non-exhaustive – examples such as a breach of the European Covention on Human Rights or, perhaps, the Charter of Fundamental Rights.

    The second problem is deciding the stage of the judicial process “Community public policy” should apply in civil and commercial matters. Should it be at the stage of determining the parties’ obligations in accordance with harmonised rules of applicable law (Rome I and Rome II)? Or at the stage of enforcing a Member State judgment, whatever its subject matter (Brussels I)? Or both?

    Thirdly, one would need to resolve (with due regard to Strasbourg jurisprudence) questions such as whether Member States’ legislatures and courts enjoy any margin of appreciation in the application of Community public policy and, if so, how different exercises of that power might be reconciled without, at the same time, undermining the object of harmonisation of public policy or rendering the change disproportionate or contrary to the principle of subsidiarity (given that the Community, through the ECJ, already regulates the outer limits of national public policy under Rome I, Rome II and Brussels I).

    Whatever answers are given to these questions, there would appear to be (at least) two fundamental problems with the concept of “Community public policy”. First, a disconnect between the nature of the overriding principle (a principle of Community law) and the rule (whether a rule regulating civil obligations, or a rule regulating the content and effects of a judgment, whatever its subject matter and link to the Community) which it overrides. “Community public policy” must, in some sense, have mandatory effect. To give overriding effect, for example, to the Charter of Fundamental Freedoms or other principles derived from the Treaties with respect to national rules of the kinds described would (as it seems to me) fundamentally alter their sphere of application. Thus, the Charter provides (Art. 51) that it is “addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States
    only when they are implementing Union law”. To give it the status of “Community public policy” would give it a much wider effect. So too, other “general principles of Community law”, which have hitherto operated only as a brake on the Community legislature.

    Secondly, a disconnect between the treatment of the “free movement of judgments” and the free movement of goods, services, establishment and capital. It must be recalled that the “free movement” of judgments is not one of the columns of the internal market, although the principle of mutual recognition is recognised in Art. 67(4) of the TFEU. Instead, the mutual recognition of judgments has been developed to serve the internal market. Similarly, the harmonisation of rules of applicable law is thought to serve the internal market both directly (by increasing legal certainty in judicial dispute resolution) and indirectly (by promoting confidence between Member States in the enforcement of judgments). If “Community public policy” were to be adopted in this area, however, there would be a greater degree of control over Member States’ ability to derogate from the principle of mutual recognition of judgments (and of the requirement to apply particular laws in determining obligations) than from their obligations not to restrict the free movement of goods etc., where they may continue to invoke national considerations of public policy, public morality, public security etc. within the limits prescribed by Community jurisprudence. This seems very strange and requires a convincing explanation as to why we should swallow it.

    The Commission’s primary motivation in raising the spectre of “Community public policy” would appear to be to make more palatable its proposal to abolish the requirement of exequatur in the current Brussels I review (just as in the case of the Rome II proposal, its role was to smooth objections to the application of foreign laws requiring the payment of excessive non-compensatory damages). In my view, that proposal is misguided. As a solution, however, “Community public policy” does not assist. Member State courts, which have their own international obligations (for example, under the European Convention on Human Rights) cannot assume that other Member States’ courts (by giving judgment in a case before them) have acted consistently with international (or Community) standards so that a further review of the judgment is unnecessary. The public policy exception must remain in some form and, if that is the case, there is no convincing explanation as to why it should be “Community public policy” rather than national public policy. Equally, the principle of res judicata (itself a general principle of Community law) must remain in some form as a ground for opposing recognition and enforcement. The Brussels I enforcment procedures undoubtedly need some adjustment to make them more efficient, and bring them into the 21st Century, but “Community public policy does not provide an obvious part of the solution.

  • Emmanuel Guinchard November 25, 2009, 9:48 pm

    There seem to be two issues here: a procedural one and a substantive one. The procedural one: Art 234 (and I believe the same applies to Art 68, at least until 1st December) gives no jurisdiction to the ECJ to apply EC Law (see the ECJ itself in Costa, 1964). The ECJ has jurisdiction to interpret EC Law, not to apply it. It is up to the national court to apply EC Law. However, sometimes the interpretation is so obvious that the national court is in little doubt as to how it should apply EC Law. Moreover, the ECJ has sometimes the necessary information to make the determination itself, and it does! But this is not completely orthodox… Therefore, I agree with Adrian Briggs when he says “It did not tell the German court what conclusions to draw […] Call that giving guidelines if you like; but it is all the Court is authorised to do” (November 24, 9h 35 a.m.). Adrian Briggs also seems to oppose the very idea of a Community public policy (November 24, 2h 53 p.m.). This is the substantive issue. The matter is complex. But let’s look at the issues in turn. The EU will adhere to the European Convention of Human Rights (Lisbon Treaty). In any case, all the MS are parties to the ECHR. So the first question is not what the EU Commission plans to do. The right question is: what are the requirements of the European Convention of Human Rights? I am perfectly aware that some commentators are not that keen on the ECHR. But the ECHR is positive law. Under Art. 6 ECHR, you have a right to enforce your judgment. This is the Hornsby case (ECHR, 1997). The case took place in Greece. It did not involve cross-border issues. However, it was soon suggested in academia that this right could apply in the international context (1998). This is now case-law: Art. 6 applies to both domestic and foreign judgments (ECHR, 2001). We now have a couple of ECHR cases on the exequatur, see Dinu for example (2008). But we still lack a clear understanding of the requirements and limitations of Art. 6 in the international context. Any idea? Or should we just apply ECHR case-law on Art. 6 in the domestic context, i.e. is EU a single entity for the purposes of Art. 6?