The Written Observations Submitted in the Gambazzi Case

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,

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.

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, 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.

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.

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.

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.