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Access to justice in times of corona

Access to justice in times of corona

When COVID-19 makes the case for greater digitalisation of justice*

Written by Emma van Gelder, Xandra Kramer and Erlis Themeli, with thanks to Elisabetta Silvestri (University of Pavia), Georgia Antonopoulou, Alexandre Biard and Betül Kas (Erasmus University Rotterdam, ERC-Co project ‘Building EU civil justice: challenges of procedural innovations – bridging access to justice’)

* posted on 7 April, text updated on 8 April

The disruption of society as a result of the pandemic has naturally also affected our justice system. While there is no total lockdown in The Netherlands, as of 16 March people working in non-vital sectors are required to stay at home, schools and universities are closed, and events and social gatherings are forbidden. These measures also meant that courts in the Netherlands had to restrict their daily activities. All courts were closed on 17 March and will stay closed in any case until 28 April 2020. This means that most court proceedings are postponed for the time being. To proceed with continuing obligations and proceedings, thereby ensuring ongoing access to justice, judiciaries around the world are increasingly adopting various forms of technology in their court procedures.

This blogpost sets out the Dutch approach of the judiciary to the COVID-19 crisis, and highlights some global examples of other approaches.

COVID-19’s disrupting effect to the functioning of the court system

COVID-19 caused a sudden lockdown of courts. Court hearings are delayed, resulting in complaints that the backlog in the judiciary will grow, and attorneys have urged for more cases to be processed. Against the background of the health safety measures by the RIVM (National Institute for Public Health and the Environment), the public is temporarily no longer allowed to attend the few court hearings that still do take place. The lockdown of courts and offices emphasises the need for remote access to courts and better communication between courts and their constituents.

The adoption of a General Regulation during the COVID-19 crisis

The Dutch Judiciary has taken steps to respond to these problems by adopting a general regulation on case-handling by the Judiciary during the COVID-19 period. The starting point of this regulation is that the courts will continue to deal with urgent cases, which are divided into serious urgent cases and other urgent cases. Urgent cases include certain hearings in criminal cases, insolvency cases, and family cases, particularly those concerning child protection. Judges work with digital files and have secured remote access from home. Law firms are also expected to have their staff working from home whenever possible, though not all law firms are closed.

The General Regulation deals among others with the attendance of courtroom hearings (Para. 1, sub 1.1 General Regulation), the use of secure email (Para. 1, sub 1.2 General Regulation) and closed hearings (Para. 1, sub 1.3 General Regulation). In principle oral hearings with the physical attendance of the parties will not take place during the COVID-19 period, unless the judge decides otherwise. Both serious and other urgent cases will take place as much as possible in writing or through telephone (video) connection. If the judge decides that an oral hearing with physical presence of the parties should take place, the guidelines of the RIVM are taken into account. Where possible, livestreaming will be used. Procedural guidelines that allow documents and messages to be sent through post or fax, can be sent via a safe email channel of the Judiciary.

Also there is a proposal pending on separate temporary ‘urgent’ COVID-19 legislation (spoedwetgeving COVD-19 Justitie en Veiligheid ), proposed by the Minister of Legal Protection, Sander Dekker, and by the Minister of Justice and Security, Ferdinand Grapperhaus. This proposal was submitted to the House of Representatives (tweede kamer) on 8 April 2020. It will expire on the 1st of September 2020, but with the possibility to extend it’s application. This proposal for legislation allows communication that normally is prescribed to take place physically, to take place through electronic means such as audio or video livestream. This enables annual general meetings to be held online or a testament by a notary to be signed online.

Positive side-effects: enhanced use of technology

Often, radical innovations are dictated by crisis. A positive side effect of the current health crisis is that it may boost the digitisation of the judiciary that has been severely hampered in the Netherlands (see our blogpost on EUCP; more extensively: Xandra Kramer, Erlis Themeli and Emma van Gelder, e-Justice in the Netherlands: The Rocky Road to Digitised Justice, 2018). To enable the functioning of the General Regulation, the IT department of the judiciary has extended the facilities for a telephone and video connection between the judiciary and external parties. Another side-effect boosting digitisation in the Dutch Judiciary regards the introduction of secure email to be used by parties and for filing procedural documents and communicating messages as of 9 April 2020. Several safeguards are required for the use of email, regarding the subject of the email and the capacity of the attachments to the email. Regarding signatures, no digital signature is prescribed, but a ‘wet’ signature scanned and uploaded through PDF (see para. 1.2.4 under 6 of the General Ruling). The moment of receipt of the e-mail within the secured email system of the Judiciary counts as the time of receipt (see para. 1.2.5 of the General Regulation).

Perhaps the most important side effect of this crisis would be the experience with these implemented facilities. Using remote access to courts, secure emails, video conferencing and other electronic means for a protracted period will provide the Ministry of Justice and Security important lessons on how to better utilize these. Video conferencing is of course not new in the Netherlands, but it is not used at a wide scale, particularly not in civil cases.

Challenges

While these side-effects must be praised, in reality there are a number of challenges caused by this ‘sudden’ shift towards digitisation that cannot be neglected. The lack of face-to-face contact results in an absence or lesser extent of non-verbal cues such as body language, tone of voice, facial expression. Especially in family law cases – often involving emotional discussions – this may prove a challenge and can risk miscommunication. Another challenge relates to the identification of parties; if e-mail is used, it can be difficult to ensure that the documents are also received by the correct person. In the Netherlands, judicial officers play an important role in securing the correct service of documents. Another challenge – although less relevant in the Dutch context – relates to vulnerable users having no or limited access to the internet or having minimum skills with digital technology. The absence of an offline channel forms a challenge for access to justice in certain cases.

The exclusion of public attendance during a court hearing, challenges the principles of a public hearing and transparency. To counter these challenges, attendance of maximum of three journalists is still allowed, and more decisions are published on the website of the judiciary (rechtspraak.nl). For example, the website of the administrative law department (Afdeling Bestuursrechstpraak) of the Council of State, states that decisions are temporarily published online and posted on their internal website and rechtspraak.nl.

Also, across the Dutch borders, examples of challenges are found. For example, small criminal cases in France – such as ‘immediate appearances’ (comparution immédiate), rarely allow for online hearings or other forms of digitalisation.

In Germany, since 2013 § 128a ZPO (German Civil Procedure Code) gives the possibility of using video-conferences for the oral negotiation and the hearing of evidence in civil litigation. Although all German states have equipped their judiciaries with the necessary technology, they are not widely used in practice. The current approach to face the corona crisis consists rather of the postponement of non-urgent proceedings. However, first signs towards a stronger move of the digitization of justice appears to be driven by the judiciary of Nord-Rhine-Westphalia.

Other global developments

Similar approaches to the COVID-19 crisis can be seen around the globe.

For instance, the UK has adopted the Coronavirus Act 2020 (hereinafter: Act). Regarding provisions on digitisation, Point 53 and 54 of the Act enshrine the expansion of the availability of live links in criminal proceedings and in other criminal hearings. Furthermore, point 55 and 56 of the Act rule that public participation in proceedings will be conducted by video or audio, and live links are used in magistrates’ court appeals for requirements or restrictions imposed on a potentially infectious person. The Economist, quotes in a paper of 4 April 2020, that before the COVID-19 crisis, about 200 cases a day were being heard at least partially via conference-call and video link in the UK. By March 31st this number had increased to around 1800 cases.

Richard Susskind, launched a new website at the outset of the corona crisis, in order to create a platform to share experiences of ‘remote’ alternatives to traditional court hearings. The website provides an overview of interesting developments on a global level. In any event, Susskind can be delighted as he has noted a sudden spike of sales of his recent book ‘Online courts and the future of justice’.

Also in Italy extensive measures for the administration of justice during the Covid-19 period are adopted. A recent statutory instrument (18 March 2020),which applies until 15 April 2020, rules that most cases are postponed and all deadlines provided for by laws are suspended. Exceptions apply to certain urgent cases. From 16 April 2020 through June 30, other measures can be taken which comply with the health safeguards concerning COVID-19, for example court access can be limited. The Court of Cassation uses video technology to decide appeal cases. It required an adaption of the procedural rules to allow video connection for the judges unable to travel due to the COVID-19 crisis.

In Canada, some courts are encouraging counsel and the public to use alternative dispute resolution forms in order to reduce delays now that many court hearings are postponed for the time being. The use of technology in out-of-court dispute resolution is more widespread and accepted, resulting in various forms of online dispute resolution (ODR). For example, in the COVID-19 period, ODR procedures offer benefits of virtual hearings centralizing disputes regardless of geographical distances between parties, paperless processes, flexibility and convenience enabling parties to participate from their own home computer. Positive side-effects are cost and time reductions as online procedures eliminate inter alia travel costs. In any case, the Covid-19 crisis may lead to a ‘wake-up’ call among lawyers and parties to consider the ability of ODR/ADR as a viable option of dispute resolution.

In Colombia, on 19 March new procedural rules were enacted to allow for virtual conferences and videoconferencing in Colombian Courts.

In Brazil, Brazilian courts work with the Cisco system enabling videoconference for court proceedings.

Also in Kenya, digitalisation is welcomed, as a Kenyan Judge has used Zoom for remote hearings and is now planning to oversee more than 20 court hearings over video link, including verdicts, rulings on appeals as well as applications.

Conclusion

It remains to be seen if the rapid uptake of digitisation will continue after the COVID-19 crisis comes to an end. In any case, the present health crisis shows the ability to implement emergency legislation and of the judiciary to amend a vast array of procedures in a short period of time.

Jurisdiction over financial damages – the A-G Opinion in the Volkswagen Case before the CJEU

from Raphael de Barros Fritz, Hamburg

The assessment of a court’s jurisdiction based on Art. 7 (2) of the Brussels Ibis Regulation in cases involving exclusively financial damages has been a continuous challenge (cf., e.g., ECJ, 12.09.2018, Case C-304/17 (Löber); ECJ, 16.06.2016, Case C-12/15 (Universal); ECJ, 28.01.2015, Case C-375/13 (Kolassa)). Against this background, the Advocate General’s opinion in the Volkswagen emissions scandal case (Campos Sánchez-Bordona, Opinion of Advocate General delivered on 02.04.2020, Case C-343/19 (Volkswagen)) sets forth some important guidelines when determining a court’s jurisdiction pursuant to Art. 7 (2) of the Brussels Ibis Regulation.

In the Volkswagen case, an Austrian consumer organization is pursuing claims for damages assigned by 574 purchasers of vehicles as well as a declaration establishing the liability of Volkswagen for as yet unquantifiable future damages. The assignors have all purchased their vehicles in Austria not directly from Volkswagen itself, but from either a commercial dealer or a private seller. The question is whether this gives the Austrian court called upon to decide the case jurisdiction under Art. 7(2) of the Brussels Ibis Regulation.

Assignees as direct victims

Before discussing the main question presented by the Austrian court, the Advocate General addresses two important preliminary issues. The first is whether the assignees are direct or merely indirect victims of Volkswagen’s tortious behavior. It is well-settled in the ECJ’s case-law that the place where the damages arose includes only the place where initial damages sustained by a direct victim ensued. Thus, the damages being claimed cannot be merely the consequence of damages arising elsewhere (cf. ECJ, 19.09.1995, C-364/93 (Marinari), paragraphs 14 and 15; ECJ, 29.07.2019, Case C-451/18 (Tibor-Trans), paragraph 27). Since none of the assignees in the Volkswagen case have purchased vehicles directly from Volkswagen, one could argue that the assignees are only indirect victims of Volkswagen’s tortious behavior (i.e., manipulation of the cars’ engines) for their damages are only the consequence of the damages incurred by the commercial dealers and private sellers from whom they purchased theirs cars.

Yet the fact alone that a claimant has not established contractual relations with the tortfeasor does not necessarily makes him an indirect victim of the latter’s behavior (ECJ, 29.07.2019, Case C-451/18 (Tibor-Trans)). In accordance with this ruling, the Advocate General also concludes that the lack of contractual relations between Volkswagen and the assignees does not necessarily precludes them from claiming damages as direct victims. He argues instead that the loss of value of the vehicles did not become a reality until the manipulation of the engines was made public. Therefore, neither the commercial dealers nor the private sellers who owned the cars before the assignees experienced any loss. As a result, the damages suffered by the assignees cannot be deemed as a mere consequence of the commercial dealers’/private sellers’ damages and the ones among them who retained the vehicles as part of their assets at the time the defect has been made public are to be considered as the direct victims of Volkswagen’s tortious actions (points 40 et seq., 81).

The place where the damages arise

A second issue the Advocate General had to resolve was whether the place where the damages arose amounts to the place where the vehicles were physically located. He answers this in the negative (points 72 and 73). The location of the vehicles is – from the defendant’s perspective – unforeseeable and does not establish a proximity between the court and the dispute. Thus, the place where the damages arose is the place where the act pursuant to which the vehicles became part of the purchasers’ assets took place, i.e., the place where the transactions occurred (point 74). It is interesting to note that the Advocate General is referring here to a noticeable action (the transaction entered into by the parties) in order to physically allocate damages which per se (because purely financial) are actually non-physical (point 53). Furthermore, it is no coincidence that the Advocate General briefly mentions bank accounts in his reasoning. For his line of argument in the Volkswagen case resembles to a great extent the ECJ’s ruling in the Universal case, where the Court held that the place where the damages arose was the place where a settlement had been executed between the parties and not the place where the bank account was located from which the obligations arising out of the settlement had been paid (i.e., the place where – like the place where the purchased cars where located in the Volkswagen case – the loss had materialized) (ECJ, 16.06.2016, Case C-12/15 (Universal), paragraphs 31 and 32).

In addition to the ECJ’s ruling in the Universal case, a comparison may be drawn between the Advocate General’s reasoning in the Volkswagen case and Advocate General Bobek’s opinion in the Löber case. There, Advocate General Bobek submitted that a person incurs damages at the place where he or she enters into a legally binding and enforceable obligation to dispose of his or her assets in a detrimental manner and not at the place where the pecuniary loss becomes apparent (Bobek, Opinion of Advocate General delivered on 08.05.2018, Case C-304/17 (Löber), points 73, 82). Applied to the Volkswagen case, this reasoning means that the place where the damages arose cannot be allocated to the place where the cars were physically located and thus where the pecuniary losses became perceptible, but rather to the place where the assignees entered into a legally binding and enforceable obligation to pay the purchase price. This reasoning is also sound if one (as the Advocate General in the Volkswagen case) considers the damages incurred by the purchasers to be the (negative) difference between the price paid and the value of the tangible goods received in return (points 36 and 37). For if the parties, for example, enter into a contract to sell (i.e., a bilateral promise of sale) or a sales contract (i.e., a contract of sale) under a legal system like the German one, where a sales contract by itself does not transfer ownership in the subject-matter of the contract, the financial damages occurring due to the (negative) difference between the price paid and the value of the tangible goods received in return take place already at the moment in which the purchaser enters into the contract to sell or the contract of sale: from this moment on, the obligation to pay the purchase price is part of his assets and it is not compensated by his claim against the seller, creating thereby a (negative) balance in his estate.   .    

General principles for determining jurisdiction under Art. 7 (2) of the Brussels Ibis Regulation

With these issues out of the way, the Advocate General deals with the concrete question posed by the Austrian court.

He begins his analysis by throwing some light upon the reasoning of the ECJ in some of its previous rulings regarding the construction of Art. 7 (2) of the Brussels Ibis Regulation in cases involving pure financial damages. He suggests that what the ECJ was doing in reality in the cases Löber, Universal and Kolassa was to develop a two-prong approach for assessing a court’s jurisdiction at the place where the damages arose: on the first step, a court called upon to decide a case must determine whether the damage arose at the place it sits. Once this has been done, the court must take into consideration the “other specific circumstances” of the case at hand in order to ascertain whether the rationale underlying Art. 7(2) of the Brussels Ibis Regulation supports its jurisdiction (points 56, 59).

It is, however, not possible to conclude with exactitude after reading the Advocate General’s opinion whether he proposes to use this two-prong approach in every case involving financial damages or only in those cases where the fact pattern resembles the facts in the Löber, Universal and Kolassa cases. Two passages of the Advocate General’s opinion suggest the latter. On point 59 he states that the second step of the approach proposed may be required for purely financial damages and on points 70 and 71 he seems to try to fit the facts of the Volkswagen case into the facts of the Löber, Universal and Kolassa cases in order to justify the application of the two-prong approach to the case at hand.

In addition to carving out the different steps a court must undertake in order to determine its jurisdiction under Art. 7 (2) of the Brussels Ibis Regulation, the Advocate General also clarifies some ambiguities in previous rulings of the ECJ pertaining to the second step of the forum court’s analysis  (cf., for example, ECJ, 16.06.2016, Case C-12/15 (Universal), paragraph 27; ECJ, 28.01.2015, Case C-375/13 (Kolassa), paragraph 47; ECJ, 16.01.2014, Case C-45/13 (Kainz), paragraph 24). He reasons that this second step does not authorizes the court of the forum to ascertain whether it is best placed,  in terms of proximity and foreseeability, to decide the matter as compared to the court of the place of the event giving rise to the damage (points 60-66, 80). Instead, the sole purpose of the examination of the “other specific circumstances” of the case is to confirm (or reject) the jurisdiction of the court of the place where the damage occurred based on the proximity of the court to the dispute (or the lack thereof) (point 80). For the court of the forum cannot disrupt the abstract ex-ante balancing of interests carried out by the legislator in Art. 7 (2) of the Brussels Ibis Regulation. The legislator, however, has deemed both the courts of the place where the event giving rise to the damages and the courts of the place where the damages have arisen as being equally suited for hearing a tortious case. Consequently, a national court cannot undermine this legislative intent by engaging in a comparison between the courts of these two places.   

Conclusion

To sum up, the Advocate General’s opinion touches on different issues of pivotal importance when assessing a court’s jurisdiction under Art. 7 (2) of the Brussels Ibis Regulation. Besides laying down the two-prong approach to be followed by national courts in (at least some) of the cases involving purely financial losses when determining their jurisdiction pursuant to Art. 7 (2) of the Brussels Ibis Regulation, the Advocate General also discusses the question of whether a purchaser who acquired some goods without directly transacting with the tortfeasor can still be deemed as a direct victim of the latter’s tortious behavior and how to precisely determine where a financial damage has arisen.

The A-G’s opinion is here.

Opening Pandora’s Box – The interaction between human rights and private international law: the specific case of the European Court of Human Rights and the HCCH Child Abduction Convention

Written by Mayela Celis

It is undeniable that there is an increasing interaction between human rights and private international law (and other areas of law). This of course adds an additional layer of complexity to private international law cases, whether we like it or not. Indeed, States can be sanctioned if they do not fulfill specific criteria specified by the European Court of Human Rights (ECtHR). Importantly, the European Convention on Human Rights has been considered to be an instrument of European public order (ordre public), to which 47 States are currently parties.

I have recently published an article entitled “The controversial role of the ECtHR in the interpretation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, with special reference to Neulinger and Shuruk v. Switzerland and X v. Latvia” (in Spanish only but with abstracts in English and Portuguese in the Anuario Colombiano de Derecho Internacional). To view it, click on “Ver artículo” and then click on “Descargar el archivo PDF”, currently pre-print version, published online in March 2020.

Below I include briefly a few highlights and comments.

As its name suggests, this article explores the controversial role of the ECtHR in the interpretation of the HCCH Child Abduction Convention. It analyses two judgments rendered by the Grand Chamber: Neulinger and Shuruk v. Switzerland (Application no. 41615/07) and X v. Latvia (Application no. 27853/09). And then it goes on to analyse three more recent judgments and in particular, whether or not they are in line with X v Latvia.

The article seeks to clarify the applicable standard that should be applied in child abduction cases as there has been some confusion as to the extent to which Neulinger applies and the impact of X v. Latvia. Indeed Neulinger seemed to suggest that courts should conduct a full examination of the best interests of the child during child abduction proceedings, which is blatantly wrong. X v. Latvia clarifies Neulinger and provides a detailed and thoughtful standard to avoid conducting “an in-depth examination of the entire family situation and of a whole series of factors…” but at the same time upholds the human rights of the persons involved and strikes, in my view and as noted by the Court, a fair balance between the competing interests at stake – those of the child, of the two parents, and of public order.

The article then examines three recent judgments rendered by several chambers of the ECtHR (not the Grand Chamber): K.J. v. Poland (Application no. 30813/14), Vladimir Ushakov v. Russia (Application no. 15122/17), and M.K. v. Grèce (Requête n° 51312/16). M.K. v. Grèce, which was rendered in 2018, has put the ECtHR in the spotlight again. Surprisingly, this precedent has ignored the standard established in X v. Latvia and has followed only Neulinger. The precedents of the Grand Chamber of the ECtHR are binding on the chambers so it is stupefying that this could happen. Nevertheless, I have concluded that the outcome of the case is correct.

By way of conclusion, the legal community seems to be divided as to whether or not X v Latvia sets a good precedent. Human rights lawyers seem to regard this precedent favourably, whereas private international law lawyers seem to be more cautious. This article concludes that X v. Latvia was correctly decided for several reasons based on Article 13(1)(b), Article 3 of the HCCH Child Abduction Convention and the need to provide for measures of protection. Both human rights and private international law can interact harmoniously and complement each other. The efforts of the human rights community to understand the Child Abduction Convention are evident in the change of direction in X v. Latvia. Both human rights lawyers and private international law lawyers should make an effort to understand each other as we have a common goal and objective: the protection of the rights of the child.

News

The Greek Supreme Court on the date of service of documents abroad: The end of a contemporary Greek tragedy

The Greek Supreme Court of Cassation (Areios Pagos) rendered a very important decision at the end of June, which is giving the final blow to a period of procedural insanity. A provision in force since the 1st of January 2016 is forcing claimants to serve the document instituting proceedings abroad within 60 days following filing. Failure to abide by the rule results to the deletion of the claim as non-existent. As a consequence, the claimant is obliged to file a new claim, most probably being confronted with the same problem.

[Supreme Court of Cassation (Areios Pagos) nr. 1182/2022, available here.

Facts and judgment in first instance

The dispute concerns two actions filed on 31.01.2017 and 31.03.2017 against defendants living in Monaco and Cyprus respectively. The claimant served copies of the action by using the main channels provided for by the 1965 Hague Service Convention (for Monaco; entry into force: 1-XI-2007) and the Service of Process Regulation nr. 1393/2007. Service to the defendant in Monaco was effected on 08.05.2017, whereas service to the defendant in Cyprus on 19.06.2017. Both actions were dismissed as non-existent (a verbatim translation would be: non-filed) due to the belated service to the countries of destination [Thessaloniki Court of 1st Instance 2013/2019, unreported]. The claimant filed a second (final) appeal, challenging the judgment’s findings.

The overall picture before the decision of the Supreme Court

So far, the vast majority of Greek courts was following the rule in exactly the same fashion as the first instance court. Article 215 Para 2 of the Greek Code of Civil Procedure reads as follows: … the claim is served to the defendant within a term of 30 days after filing; if the defendant resides abroad or is of unknown residence, the claim is served within 60 days after filing. The rule applies exclusively to ordinary proceedings, i.e., mostly civil and commercial matters, with the exception of some pertinent disputes, which are regulated under a special Book of the Code of Civil Procedure [Book 4, Articles 591-465: Special Proceedings]

A countless number of motions were dismissed as a result of this rule since 2016. Courts were refusing claims even when the defendants were appearing before the court, submitting pleadings and raising their defense. Only claims addressed to defendants living in countries which are neither EU member states nor Hague Convention signatories, are ‘saved’. Article 134, in connection with Article 136 Greek of Code of Civil Procedure has established half a century ago the notorious system of fictitious service, akin to the French system of remis au parquet (Article 683 Code de Procédure Civile). This system still applies for countries such as the United Arab Emirates or Madagascar, however not for Cyprus or Monaco, due to the prevalence of the EU Regulation and the Hague Convention, anchored in the Constitution (Article 28). Hence, the non- production of a service certificate is no obstacle for the former, whereas any service certificate dated after the 60 days term is not considered good service for the latter, leading to the dismissal of the claim.

The decision of the Supreme Court

Against this background, the Supreme Court was called to address the matter for the first time after nearly six years since the introduction of the new provision.

The Supreme Court began with an extensive analysis of the law in force (Article 134 Code of Civil Procedure; EU Service Regulation; Hague Service Convention, and Article 215 Para 2 Code of Civil Procedure). It then pointed out the repercussions of the latter rule in the system of cross-border service, and interpreted the provision in a fashion persistently suggested by legal scholarship: The 60 days term should be related with the notification of the claim to the Transmitting Authority, i.e., the competent Prosecutor’s office pursuant to Article 134 Code of Civil Procedure and the declarations of the Hellenic Republic in regards to the EU Service Regulation and the Hague Service Convention.

The date of actual service should be disconnected from the system initiated by Article 215 Para 2 Code of Civil Procedure. The Supreme Court provided an abundance of arguments towards this direction, which may be summarized as follows: Violation of Article 9 Para 2 Service Regulation 1393/2007 (meanwhile Article 13 Para 2 Service Regulation 2020/1784); contradiction with the spirit of Article 15 of the Hague Service Convention, despite the lack of a provision similar to the one featured in the EU Regulation; violation of the right to judicial protection of the claimant, enshrined in the Greek Constitution under Article 20; violation of Article 6 (1) of the European Convention of Human Rights, because it burdens the claimant with the completion of a task which goes beyond her/his sphere of influence.

For all reasons above, the Supreme Court overturned the findings of the Thessaloniki 1st Instance court, and considered that service to the defendants in Monaco and Cyprus was good and in line with the pertinent provisions aforementioned.

The takeaways and the return to normality

The judgment of the Supreme Court has been expected with much anticipation. It comes to the rescue of the claimants, who were unjustly burdened with an obligation which was and still is not under their controlling powers. The judgment returns us back to the days before the infamous provision of Article 215 Para 2, where the domestic procedural system was impeccably finetuned with the EU Regulation and the Hague Service Convention.

The Relationship between the Hague Choice of Court and the Hague Judgments Convention

Aygun Mammadzada (Swansea University) will be the main speaker at the upcoming MECSI Seminar, scheduled to take place on 22 November 2022, at the Catholic University of the Sacred Heart in Milan.

The title of the seminar is The Relationship between the Hague Choice of Court and the Hague Judgments Convention – A Major International Breakthrough?

Zeno Crespi Reghizzi (University of Milan) will serve as discussant.

Attendance is free, on site and on line (via MS Teams). Further information, including the link to join the seminar on line, are found here.

For queries, write an e-mail to pietro.franzina@unicatt.it.

[This post is cross-posted at the EAPIL blog.]

The boundaries of the insolvency exclusion under the EAPO Regulation: A recent judgment from Slovakia

Carlos Santaló Goris, Researcher at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law and Ph.D. candidate at the University of Luxembourg, offers an analysis of some aspects of a judgment concerning the EAPO Regulation rendered by the District Court of Žilina (Okresný súd Žilina), Slovakia.

Can insolvency practitioners apply for a European Account Preservation Order (“EAPO”) against insolvent debtors to freeze their bank accounts? The District Court of Žilina (Okresný súd Žilina) in Slovakia confronted this issue in an EAPO application it received on January 2022. The EAPO Regulation expressly excludes the use of the EAPO Regulation for “claims against a debtor in relation to whom bankruptcy proceedings, proceedings for the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions, or analogous proceedings have been opened” (Art. 2(2)(c) EAPO Regulation). This is the same exclusion that can be found in Art. 1(2)(b) the Brussels I bis Regulation. Recital 8 of the EAPO Regulation reiterates that the Regulation “should not apply to claims against a debtor in insolvency proceedings” remarking that the EAPO “can be issued against the debtor once insolvency proceedings as defined in Council Regulation (EC) No 1346/2000 (now Regulation No 2015/848)”. At the same time, Recital 18 states that that exclusion should not prevent the use of an EAPO “to secure the recovery of detrimental payments made by such a debtor to third parties”.

In the instant Slovakian case, an insolvency practitioner requested an EAPO application against an insolvent debtor. The objective was to integrate the funds recovered through the EAPO into the insolvency estate. The insolvency practitioner applied for the EAPO once no assets were found in Slovakia. The EAPO application included a request to investigate the debtors’ bank accounts in Austria. One of the creditors suspected the debtor “had misappropriated funds and stashed them in offshore accounts”. The District Court of Žilina (Okresný súd Žilina) considered that, since the EAPO was requested against the debtor, such a request fell within the insolvency exclusion. Thus, the EAPO Regulation was not applicable. This court embraced the most literal sense of the insolvency exclusion. However, from a teleological perspective, the insolvency exclusion aims at preventing individual creditors from using the EAPO to undermine an insolvency estate during bankruptcy proceedings. In this case, the EAPO was used in favour of the insolvency estate. Had the EAPO been successful, it would have served to increase it.

The present case serves as an example to show that the boundaries of the EAPO insolvency exclusion are blurred. Perhaps, in the future, a similar case might reach the CJEU and help cast further light on the EAPO’s insolvency exclusion.