Judgment and Reference on Brussels I Regulation
The ECJ delivered its judgment in case C-347/08 (Vorarlberger Gebietskrankenkasse) on Artt. 9 (1) (b), 11 (2) Brussels I Regulation on 17 September and held as follows:
The reference in Article 11(2) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to Article 9(1)(b) thereof must be interpreted as meaning that a social security institution, acting as the statutory assignee of the rights of the directly injured party in a motor accident, may not bring an action directly in the courts of its Member State of establishment against the insurer of the person allegedly responsible for the accident, where that insurer is established in another Member State.
(See with regard to this case also our previous post which can be found here).
Further, there is a new reference pending at the ECJ on Artt. 2 and 5 (3) Brussels I Regulation (C-278/09, Martinez) which has been referred by the Tribunal de grande instance Paris:
Must Article 2 and Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters be interpreted to mean that a court or tribunal of a Member State has jurisdiction to hear an action brought in respect on an infringement of personal rights allegedly committed by the placing on-line of information and/or photographs on an Internet site published in another Member State by a company domiciled in that second State – or in a third Member State, but in any event in a State other than the first Member State – :On the sole condition that that Internet site can be accessed from the first Member State,On the sole condition that there is between the harmful act and the territory of the first Member State a link which is sufficient, substantial or significant and, in that case, whether that link can be created by:– the number of hits on the page at issue made from the first Member State, as an absolute figure or as a proportion of all hits on that page,– the residence, or nationality, of the person who complains of the infringement of his personal rights or more generally of the persons concerned,– the language in which the information at issue is broadcast or any other factor which may demonstrate the site publisher’s intention to address specifically the public of the first Member State,– the place where the events described occurred and/or where the photographic images put on-line were taken,– other criteria?
So where does a Tribunal de Grande Instance get its power to make a reference for a preliminary ruling ?
I could not get a hold on the French judgment, but I would think that it got its power from Article 68 of the Treaty, and the fact that there was no remedy against its decision under national law (just as, I guess, the first instance court in the Vorarlberger case).
Otherwise, it would have to be that the fact that Mr Martinez is the former boyfriend of Kylie Minogue made a difference here, but I am not sure it is relevant as a matter of European procedural law.
Well, it may be. The Landesgericht Feldkirch in the Vorarlberger case was exercising appellate jurisdiction from a District Court (Bezirksgericht Dornbirn) in circumstances in which, I believe, there was said to be no further right of appeal. But in Martinez, I see nothing to suggest that this was anything other than a first instance court exercising original jurisdiction, and in which circumstances one would suppose there was some right of appeal. That leaves the Kylie factor, which one should never under-estimate. I think your second explanation has the edge.
I think Kylie herself said (well, sang) it best.
I am grateful to Emmanuel Asmar, the counsel for Olivier Martinez, for providing me with the order of the Tribunal de Grande Instance of July 6th, 2009, which refered the question to the ECJ.
The Court agreed to refer the case to the ECJ on the basis of Article 267 of the Treaty on the Functioning of the European Union, that is … the Lisbon Treaty! As a consequence, the court did not even wonder whether there was any remedy against its decision.
The Kylie factor happens to be much stronger than expected. Or do European elites already know the outcome of the Irish vote?
Vote ? What is this thing you call a vote ?
A vote is something that one is given twice when your government doesn’t like the way you used it the first time around…….
Mind you, the Kylie factor is nothing particular to Continental courts’ practice. Does anyone remember the case of Mr. Polanski (Polanski v. Condé Nast Publications Ltd.,  UKHL 10)? The Lords were all too eager to establish a video link between England and France, without any recourse to the Hague Evidence Convention, let alone to the applicable European Evidence Regulation. There you have got a real celebrity case, used for advertising the modernness of English procedural law and – of course – of “England and Wales: The Jurisdiction of Choice”.
Am I missing something ? A person who happens to be in France, and who is a witness in proceedings before the English court, is willing to give his oral testimony to an English court by videolink. No request is necessary, as the witness is perfectly happy to give his evidence to the English court directly. I can see that this raises a question of English law as to the legality of allowing such evidence to be given in this way, particularly where the witness in question is a fugitive from justice. But as there is no need to ask the French courts, or anyone else in France, to do anything, as the witness has volunteered to give the evidence directly, where does Regulation 1206.2001 fit in ?
Well, now you may have to ask Swiss courts…
How about sovereignty? It is a well-known question of concern if a State willing to take evidence abroad must use the applicable instruments of international judicial assistance, or if it is permitted to “catch as catch can”. As far as I can see, this Aerospatiale problem is discussed as well under the European Evidence Regulation, and the majority opinion (at least in Germany, where foreign states’ sovereignty is thoroughly respected) is that recourse to the Regulation is mandatory, regardless of what the witness is willing to do.
I am not in a position to comment on the manner in which Germany respects the sovereignty of foreign states. But suppose a person physically present in Germany makes a witness statement, or swears an affidavit, which will be used in proceedings before an English court. The idea that this may only be done via the arthritic mechanisms of the Evidence Regulation is not serious; and if the evidence may therefore be given to an English court in written form from an office in Germany, it is hard to see that the issues are any different if it is given orally. If this threatens the sovereignty of the Federal Republic, well, one can only wonder.
The Evidence Regulation is not quite so arthritic as it may seem. According to Article 10 (4), the requested court may be asked “to use communications technology at the performance of the taking of evidence, in particular by using videoconferences and teleconferences.” Compared to this, some of the most recent bilateral Treaties of the UK on judicial assistance in relation to third States seem quite a lot more out of date. For example, the Treaty with the United Arab Emirates of 2006 (7 December 2006, Cm 7185 =  UKTS 1 UAE) does not refer to videoconferencing at all.
Further, it is quite interesting that the Evidence Regulation is indeed applied when foreign States want to taking evidence on British soil directly (Rb. Amsterdam, September 22, 2004, NIPR 2005 no. 266, 359).
Well, perhaps very slightly interesting. If this is the way the Dutch courts wish to obtain their evidence from a particular person in England, no-one is going to stop them from using the Regulation to obtain the assistance of the English courts. I’m still struggling to locate the rule which says, in terms, that if a witness is willing to give his or her evidence, and the (suppose) English court is willing to receive it, it is necessary to invoke a Regulation before the two entities can do as they wish.
As far as cross-border videoconferencing is concerned, the required “rule” is in England, inter alia, to be found in Annex 3 (no. 4) to Practice Direction – Evidence 29.1.: “It should not be presumed that all foreign governments are willing to allow their nationals or others within their jurisdiction to be examined before a court in England or Wales by means of VCF”.
Of course, I am not quite sure if a CPR practice direction is binding for (or interesting enough to) English courts.