The first Commentary on the Service Regulation (1393/2007) in Greece has just been published. The volume sheds light on all aspects of cross border service within the EU, approaching the topic both from a domestic and an EU-case law viewpoint. Read more

On 14 December 2017  the CJEU has ruled on the scope of the Regulation (EC) No 805/2004  European Enforcement Order for uncontested claims – Case C-66/17.

As stated by the CJEU, ‘Article 4(1) and Article 7 of Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims must be interpreted as meaning that an enforceable decision on the amount of costs related to court proceedings, contained in a judgment which does not relate to an uncontested claim, cannot be certified as a European Enforcement Order.’

In the meantime, given the definition of an uncontested claim, a EEO can be issued only in relation to a condemnatory decision, not in relation to a declaratory one.

Facts and main proceedings

Mr and Mrs Chudas had brought a declaratory action before a Polish court of first instance to establish whether they had acquired the right of ownership over a motor vehicle. The DA Deutsche Allgemeine Versicherung Aktiengesellschaft (Germany) was summoned to appear in the proceedings as defendant, but did not appear.

The court delivered a default judgment, in which it held that Mr and Mrs Chuda? had acquired the right of ownership over the motor vehicle and ordered DA Deutsche Allgemeine Versicherung Aktiengesellschaft to pay the costs of the proceedings. Mr and Mrs Chudas then initiated the procedure in order to have to the costs of the proceedings certified as a European Enforcement Order.

The District court had doubts as to whether the type of decision felt within the substantive scope of the Regulation No 805/2004 and referred following question to the Court of Justice for a preliminary ruling.

Question for a preliminary ruling

[24] ‘Should Article 4(1) of Regulation … No 805/2004 …, read in conjunction with Article 7 of that regulation, be interpreted as meaning that a European Enforcement Order certificate may be issued in respect of a decision concerning reimbursement of the costs of proceedings contained in a judgment in which a court has established the existence of a right?’

Main considerations

According to the CJEU,

…

[31] Article 4(1) of that regulation defines a ‘judgment’ as encompassing any judgment given by a court or tribunal of a Member State, including ‘the determination of costs or expenses by an officer of the court’. Second, an enforceable decision on the amount of costs related to the court proceedings amounts, in principle, to a ‘claim’ within the meaning of the definition of that term provided by Article 4(2) of the regulation.

[32]  However, as has been noted in paragraph 29 of the present judgment, under the specific provisions governing costs related to court proceedings laid down in Article 7 of Regulation No 805/2004, a decision on the amount of such costs cannot be certified as a European Enforcement Order independently of a judgment on an uncontested claim. In so far as the decision on those costs is intrinsically linked to the outcome of the principal action, which alone justifies the certification of a judgment as a European Enforcement Order, the definitions laid down in Article 4 of that regulation cannot affect the applicability of the regulation.

Thanks to Horatia Muir Watt and Hélène van Lith for this post.

Sciences Po Law School is delighted to announce the 6th edition of the inter-university Private international law Moot Competition. Sciences Po Law School has been organizing a bilingual moot court on Private International Law in the past 5 years. This 6^th edition will be going global and will be called the PAX Moot. Read more

Following up on my previous post here, the United States Supreme Court granted certiorari on January 12, 2018 in Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. (No. 16-1220).  The grant was limited to the following question presented:

Whether a court may exercise independent review of an appearing foreign sovereign’s interpretation of its domestic law (as held by the Fifth, Sixth, Seventh, Eleventh, and D.C. Circuits), or whether a court is “bound to defer” to a foreign government’s legal statement, as a matter of international comity, whenever a foreign government appears before the court (as held by the opinion below in accord with the Ninth Circuit).

For some of my thoughts on this question, offered well in advance of this case, see here.

 

A working paper authored by Prof. Dr. Dres. h.c. Burkhard Hess, where he contests with strong arguments the suitability of the Lugano Convention (2007) to serve as a bridge between the UK and the EU after Brexit, has just been published at the MPI Luxembourg Working-Paper Series:

In the current discussion on the post-Brexit judicial cooperation in civil and commercial matters, many consider the ratification of the 2007 Lugano Convention (LC) by the United Kingdom as a suitable avenue for an alignment of the UK with the current regime of European co-operation. Similarly, the UK government has already shown some sympathy for this option. So far, the European Commission has not endorsed any official position.

At first sight, the 2007 Lugano Convention appears an ideal tool for maintaining the core of the existing system of judicial cooperation between the EU and the UK: Although the LC has not been amended to reflect the latest changes (and improvements) introduced with the Brussels Ibis Regulation, it nevertheless provides for the essential provisions of the Brussels regime on jurisdiction, pendency and recognition and enforcement. In addition, Protocol No 2 to the LC requires the courts of non EU Member States only to “pay due account” to the case-law of the Court of Justice of the European Union (ECJ) on the Brussels I Regulation. Hence, Protocol No 2 might provide an acceptable way for British courts to respect the case-law of the ECJ – without being bound by it – in the post-Brexit scenario.

However, as I am going to argue in this posting, the 2007 Lugano Convention is not the appropriate instrument to align judicial cooperation between the United Kingdom and the European Union after Brexit. In the first part, I will briefly summarize the functioning of Protocol No 2 of the LC, as demonstrated by the practice of the Swiss Federal Tribunal. The second part will address the cultural divergences between the continental and the common private international and procedural laws by making use of two examples related to the Brussels I Regulation: the scheme of arrangement, on the one hand, and anti-suit injunctions, on the other hand. As I will explain in my conclusions, only a bilateral agreement between the European Union and the United Kingdom can offer a solution which is suitable and acceptable for both sides.

To continue reading click here.