https://conflictoflaws.net/News/2020/08/CoL_Banner-1.png 0 0 Andrew Dickinson https://conflictoflaws.net/News/2020/08/CoL_Banner-1.png Andrew Dickinson2012-09-14 10:22:172012-09-14 10:26:34The Court of Justice – holiday over
The Court of Justice – holiday over
Amidst a raft of judgments and opinions handed down by the CJEU on 6 September 2012, are several of note which relate to the EU private international law instruments, as follows:
Brussels I Regulation
- Judgment: Case C-619/10, Trade Agency Ltd v Seramico Investments – application of Arts. 34(1) and (2) to the enforcement of an English default judgment, including an assessment as to whether the enforcement of a judgment given in default of appearance, without reasons, may be opposed on public policy grounds (answer: it depends).
- Judgment: Case C-190/11, Mühlleitner v Yusufi – the consumer contract provisions (Art. 15) may apply to a contract arising from directed activities of the kind referred to in Art. 15(1)(c) even if it has not been concluded at a distance.
- Opinion: Case C-456/11, Gothaer Allgemeine Versicherung AG v Samskip GmbH – a preliminary judgment on a question of jurisdiction (as to the validity and effectiveness of a choice of court agreement in favour of the courts of Iceland) is a “judgment” which must be recognised under the Regulation, and findings as to the validity and scope of the agreement are binding on the court addressed regardless of its status as res judicata in the Member State of origin or the Member State addressed.
- Judgment: Case C-170/11, Lippens v Kortekaas – the Regulation does not preclude a Member State court, acting under its own procedural rules, from summoning a party to appear as a witness before it.
- Opinion: Case C-332/11, ProRail NV v Xpedys NV – the Regulation does not preclude a Member State court, acting under its own procedural rules, from ordering the taking of expert evidence, partly in another Member State, provided that the performance of that part of the investigation does not require the cooperation of the authorities of that Member State.
It looks like it’s time to shake off the holiday season, and prepare for another year on the EU private international law rollercoaster.
Odd how the conclusiveness of the English certificate in C-619/10 is treated very differently from the certificate in Brussels II cases on the return of children… Heigh ho.
I would like to add to this impressive list a reference to the opinion of GA Sharpston in the case C-461/11 Radziejewski of September 13, 2012.
In her opinion, GA Sharpston said that the residence requirement of Swedish law on consumer debt relief was incompatible with the fundamental guarantee of the free movement (Article 45 TFEU). In the case under consideration, the Swedish debtor sought a discharge of debts under this national Act. However, he had previously moved to Brussels where he got a new employment. Thus, the residence requirement of the Swedish Act on debt relief was not met. Th referring court asked whether this requirement was compatible with Article 45 TFEU.
According to the Conclusions of GA Sharpston, neither the European Inslovency Regulation nor the Brussels I Regulation were (directly) applicable. This statement seems to be correct, as the Swedish Act is not mentioned by Annex A to the EIR and does not presuppose a divestment of the debtor (Article 1 and 2 EIR).The Brussels I Regulation was not applicable because the decison on the debt relief is not given by a court, but a publlic authority. Nevertheless, the Conclusions also address the legal situation under the EU-Instruments.
The GA held that the residence requirement restricted the free movement of Swwedish citizens within the EU. With regard to the justification of the restriction the GA held that the objective to guarantee the effectivness of the debt relief procedure (especially the need of assessing the financial situation of the debtor) could not justify the formal exclusion of all debtors domiceld outside of Sweden.
These conclusions are also interesting with regard to the ongoing discussion on the question whether relocations of COMI (Artcile 3 EIR) by debtors must be qualified as abusive if they take place only a few weeks before the filing of an application for the opening of insolvency proceedings in the MS of his or her new residence.
However, the conclusions must be seen in a wider perspective as the relationship between EU instruments of civil procedure and the fundamental freedoms is a major issue and the conclusion of GA Sharpston provide for interesting insights.