Opinion of Advocate General Campos Sánchez-Bordona in the case C-343/19, Verein für Konsumenteninformation: ‘Dieselgate’-related claims and forum of the place where the damage occurred under Article 7(2) of the Brussels I bis Regulation

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A non-profit consumer protection association established in Austria is bringing an action before the Austrian courts against a motor vehicle manufacturer with its registered office in Germany. The association asserts claims for damages, assigned to it by the purchasers of motor vehicles, and seeks the payment of a fixed amount and a declaration establishing the liability of the defendant for all future damage. These claims are related to an alleged emission manipulation: had the purchasers been aware of the manipulation, they would have not purchased the vehicles or would have purchased them at a reduced price.

To establish the international jurisdiction of the Austrian court, the associations relies on  Article 7(2) of the Brussels I big Regulation. It argues, in particular, that the damage materialised in the form of a reduction in the value of the purchasers’ assets, at the earliest upon the purchase and transfer of the vehicles within the Austrian territory.

In those circumstances, the national court refers the matter to the Court of Justice and asks whether the ‘place where the harmful event occurred’ within the meaning of Article 7(2) of the Brussels I bis Regulation may be construed as the place in a Member State where the damage occurred, when that damage consists exclusively of financial damage that is the direct result of an unlawful act committed in another Member State.

This issue is thoroughly analyzed in today’s Opinion of Advocate General Campos Sánchez-Bordona. At point 81, the Opinion concludes:

Article 7(2) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that, where an unlawful act committed in a Member States consists of the manipulation of a product, the existence of which is concealed and only becomes apparent after the product is purchased in another Member State for a price that is higher than its actual value:

  • a purchaser of that product, who retains the product as part of his or her assets when the defect is made public, is a direct victim;
  • the place where the event giving rise to the damage occurred is the place where the event which created the defect in the product took place; and
  • the damage occurred in the place, situated in a Member State, where the victim purchased the product from a third party, provided that the other circumstances confirm the attribution of jurisdiction to the courts of that State. Those circumstances must include, at all events, one or more factors which enabled the defendant reasonably to foresee that an action to establish civil liability as a result of his or her actions might be brought against him or her by future purchasers who acquire the product in that place.

Interestingly, in particular at points 65 et seq., the Opinion addresses the doubts raised by the referring court and relating to the question whether, in the present case, the German courts are not better placed to examine the association’s action. If anything, that would be tantamount to the implantation of some variation of the forum non conveniens doctrine within Article 7(2) of the Brussels I bis Regulation in order to give preference either to ‘Handlungsort’ or ‘Erfolgsort’. However, according to the final point of the Opinion:

Article 7(2) of [the Brussels I bis Regulation] must be interpreted as meaning that it does not authorise the court for the place where the damage occurred to determine that it does or does not have jurisdiction based on an appraisal of the other circumstances of the case, aimed at identifying which court — itself or the court for the place of the event giving rise to the damage — is best placed, in terms of proximity and foreseeability, to decide on the dispute.’

Instead of presenting a synthesis of the Opinion (press release can be found here), it is best to recommend giving it an attentive lecture. Definitely a must-read.

Job Vacancy: Kiel University (Germany)

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Professor Susanne Lilian Gössl, Professor for Civil Law and Digitalization in Private Law, Comparative Law and Private International Law at Kiel University is looking for a highly skilled and motivated PhD candidate and fellow (Wissenschaftliche*r Mitarbeiter*in, 50% or 25%) to work in the areas of Civil Law and Digitalization in Private Law, Comparative Law and Private International Law.

For a detailed job description (in German) see https://www.goessl.jura.uni-kiel.de/de/aktuelles or as pdf .

Protection of Abducting Mothers in Return Proceedings: Intersection between Domestic Violence and Parental Child Abduction

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The POAM project (Protection of Abducting Mothers in Return Proceedings) is co-funded by the European Commission. It would have held an Experts’ Workshop in Milan today, but this event has of course been cancelled.

The project partners (the Universities of Aberdeen, Ludwig-Maximilians Munich, JJ Strossmayer Osijek and Milan-Bicocca) wanted to in any event share the project’s reports with the readers of this blog.

POAM explores the intersection between domestic violence and international parental child abduction within the European Union. The project is concerned with the protection of abducting mothers who have been involved in return proceedings under the 1980 Hague Abduction Convention and the Brussels IIa Regulation, in circumstances where the child abduction had been motivated by acts of domestic violence from the left-behind father.  POAM examines the usefulness of the Protection Measures Regulation and the European Protection Order Directive in the context of such return proceedings.

Protection of Adults in International Situations: ELI Report

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The European Law Institute‘s (ELI) members on 21 March 2020 approved the Report on the Protection of Adults in International Situations.

This report is the outcome of the work of a team of academics and professionals chaired by Pietro Franzina and Richard Frimston. It sets out the current legal framework on the protection of persons above 18 years old who are not in a position to protect their own insterests (due to an impairment or incapacity).

The Report acknowledges the importance in this field of the Hague Convention of 13 January 2000 on the International Protection of Adults and encourages further ratification of it. The Convention has been ratified by only nine EU Member States (and signed by an additional seven).

After investigating the institutional possiblities of EU action on this topic, the Report also calls for action, both legislative and non-legislative, to complement the Convention. Possible measures include providing a (limited) choice of juridisdiction and securing the effective circulation of private mandates.

German-Speaking Conference for Young Scholars in PIL: 2019 Conference Volume and 2021 Save the Date

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In case you are looking for something to read while many parts of the world are under some form of lockdown, you may be pleased to learn that the conference volume of the 2nd German-Speaking Conference for Young Scholars in PIL, which took place at University of Würzburg in 2019, has recently been published. It includes nine contributions by young researchers, including two English papers, on the conference theme of PIL between Tradition and Innovation as well as a keynote address by Professor Jürgen Basedow. Further information can be found on the publisher’s website.

What is more, the date and theme for the next iteration of the conference have just been announced. The conference will take place on 18 and 19 March 2021 (when Corona lockdowns will hopefully be no more than a distant memory) at the Max Planck Institute for Comparative and International Private Law in Hamburg and explore the theme of PIL for a better world: Vision – Reality – Aberration?. Further information can be found in the German and English Save-the-Date announcements as well as on the conference website.

Introduction to The Hague Conference on Private International Law and Its Work

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Dr. Gérardine Goh Escolar, First Secretary at the Hague Conference on Private International Law, has prepared a lecture on the main features of the Hague Conference and its work. The lecture is available in three languages (English, French and Spanish) in the UN Audiovisual Library of International Law.

You can watch the lectures here. 

At last – The “grave risk exception” guide under the HCCH Child Abduction Convention has been published

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The Hague Conference on Private International Law (HCCH) has announced that the Guide to Good Practice under the Child Abduction Convention: Part VI – Article 13(1)(b) is now available in both English and French.

Article 13(1)(b) of the HCCH Child Abduction Convention sets out: “Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that – b)   there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”

We expect to post a more detailed comment soon. In the meantime, see our previous post here.

The HCCH news item is available here.

Conflict of Laws .net now on Twitter

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Readers of our blog may be pleased to learn (if they have not already noticed) that since the beginning of the year, all our posts are automatically published to our brand-new Twitter account.

Whether you want to share and discuss our content or simply to receive all our latest posts directly in your Twitter feed, feel free to follow @PrIL_Blog!

New Contracting Parties to the HCCH Service and HCCH Evidence Conventions and a signatory State to the HCCH Judgments Convention

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Yesterday (4 March 2020) Viet Nam acceded to the HCCH Evidence Convention and the Philippines acceded to the HCCH Service Convention.  Ukraine signed the HCCH Judgments Convention.

The HCCH Evidence Convention will enter into force for Viet Nam on 3 May 2020. Pursuant to article 39 of the Evidence Convention, the accession will have effect only as regards the relations between Viet Nam and such Contracting States as will have declared their acceptance of the accession. Accordingly, this is a semi-open Convention similar to the HCCH Child Abduction Convention.

In the absence of any objection pursuant to its article 28, the HCCH Service Convention will enter into force for the Philippines on 1 October 2020. No objection has ever been made under the Service Convention (so far).

Ukraine has signed the HCCH Judgments Convention in accordance with its article 24. In order to consent to be bound by the treaty, Ukraine needs to deposit an instrument of ratification. In the meantime, a signatory State has the obligation not to defeat the object and purpose of a treaty prior to its entry into force (article 18 of the UN Vienna Convention on the Law of Treaties).

The HCCH Judgments Convention is not yet in force. In accordance with article 28: “This Convention shall enter into force on the first day of the month following the expiration of the period during which a notification may be made in accordance with Article 29(2) with respect to the second State that has deposited its instrument of ratification, acceptance, approval or accession referred to in Article 24.”

There are currently two signatory States: Uruguay and Ukraine. The act of signing a treaty does not count towards the timeline specified in article 28 of the HCCH Judgments Convention as it is not an instrument of ratification, acceptance, approval or accession.

The HCCH news item is available here.

Singapore and Fiji ratify the Singapore Convention on Mediation

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Singapore and Fiji have each deposited instruments of ratification at the UN Headquarters on 25 February 2020. The UN Convention on International Settlement Agreements Resulting from Mediation (“Singapore Convention on Mediation”) facilitates the cross-border enforcement of international commercial settlement agreements reached through mediation (see previous post here). To date, fifty-two States have signed the Convention. It will enter into force six months after the deposit of three instruments of ratification. The list of signatory States may be found here.