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The CJEU renders its first decision on the EAPO Regulation – Case C-555/18
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 a summary and an analysis of the CJEU Case C-555/18, K.H.K. v. B.A.C., E.E.K.
Introduction
On 7 November 2019, the CJEU released the very first decision on Regulation 655/2014 establishing a European Account Preservation Order (“EAPO Regulation”). From the perspective of European civil procedure, this instrument is threefold innovative. It is the first uniform provisional measure; it is also the very first ex parte piece of European civil procedure (and reverses the Denilauer doctrine); and the first one which, though indirectly, tackles civil enforcement of judicial decisions at European level. This preliminary reference made by a Bulgarian court gave the CJEU the opportunity to clarify certain aspects of the EAPO Regulation. Read more
Ensuring quality of ODR platforms: a new (voluntary) certification scheme in France
By Alexandre Biard, Erasmus University Rotterdam (ERC project – Building EU Civil Justice)
In a previous post published in November 2018, we presented policy discussions that were (at that time) going on in France, and aimed at introducing a new regulatory framework for ODR platforms. As also explained in an article published in September 2019 (in French), ODR tends to become a new market in France with a multiplication of players offering services of diverging qualities. Today this market is in need of regulation to ensure the quality of the services provided, and to foster trust among its users. Read more
Mutual Trust v Public Policy : 1-0
In a case concerning the declaration of enforceability of a UK costs order, the Supreme Court of the Hellenic Republic decided that the ‘excessive’ nature of the sum (compared to the subject matter of the dispute) does not run contrary to public policy. This judgment signals a clear-cut shift from the previous course followed both by the Supreme and instance courts. The decisive factor was the principle of mutual trust within the EU. The calibre of the judgment raises the question, whether courts will follow suit in cases falling outside the ambit of EU law.
[Areios Pagos, Nr. 579/2019, unreported]
THE FACTS
The claimant is a Greek entrepreneur in the field of mutual funds and investment portfolio management. His company is registered at the London Stock Exchange. The defendant is a well known Greek journalist. On December 9, 2012, a report bearing her name was published in the digital version of an Athens newspaper, containing defamatory statements against the claimant. The claimant sued for damages before the High Court of Justice, Queens Bench Division. Although properly served, the respondent did not appear in the proceedings. The court allowed the claim and assigned a judge with the issuance of an order, specifying the sum of the damages and costs. The judge ordered the default party to pay the amount of 40.000 ? for damages, and 76.290,86 ? for costs awarded on indemnity basis. The defendant did not appeal.
The UK order was declared enforceable in Greece [Athens CFI 1204/2015, unreported]. The judgment debtor appealed successfully: The Athens CoA ruled that the amount to be paid falls under the category of ‚excessive‘ costs orders, which are disproportionate to the subject matter value in accordance with domestic perceptions and legal provisions. Therefore, the enforcement of the UK order would be unbearable for public policy reasons [Athens CoA 1228/2017, unreported]. The judgment creditor lodged an appeal on points of law before the Supreme Court.
THE RULING
The Supreme Court was called to examine whether the Athens CoA interpreted properly the pertinent provisions of the Brussels I Regulation (which was the applicable regime in the case at hand), i.e. Article 45 in conjunction with Art. 34 point 1. The SC began its analysis by an extensive reference to judgments of the CJEU, combined with recital 16 of the Brussels I Regulation, which encapsulates the Mutual Trust principle. In particular, it mentioned the judgments in the following cases: C-7/98, Krombach, Recital 36; C-38/98, Renault, Recital 29; C-302/13, flyLAL-Lithuanian Airs, Recital 45-49; C-420/07, Orams, Recital 55), and C-681/13, Diageo, Recital 44. It then embarked on a scrutiny of the public policy clause, in which the following aspects were highlighted:
- The spirit of public policy should not be guided by domestic views; the values of European Civil Procedure, i.e. predominantly the European integration, have to be taken into consideration, even if this would mean downsizing domestic interests and values. Hence, the court of the second state may not deny recognition and enforcement on the grounds of perceptions which run contrary to the European perspective.
- The gravity of the impact in the domestic legal order should be of such a degree, which would lead to a retreat from the basic principle of mutual recognition.
- Serious financial repercussions invoked by the defendant may not give rise to sustain the public policy defense.
- In principle, a foreign costs order is recognized as long as it does not function as a camouflaged award of punitive damages. In this context, the second court may not examine whether the foreign costs order is ‘excessive’ or not. The latter is leading to a review to its substance.
- The proportionality principle should be interpreted in a twofold fashion: It is true that high costs may hinder effective access to Justice according to Article 6.1 ECHR and Article 20 of the Greek Constitution. However, on an equal footing, the non-compensation of the costs paid by the claimant in the foreign proceedings leads to exactly the same consequence.
- In conclusion, the proper interpretation of Article 34 point 1 of the Brussels I Regulation should lead to a disengagement of domestic perceptions on costs from the public policy clause. Put differently, the Greek provisions on costs do not form part of the core values of the domestic legislator.
In light of the above remarks, the SC reversed the appellate ruling. The fact that the proportionate costs under the Greek Statutes of Lawyer’s fees would lead to a totally different and significantly lower amount (2.400 in stead of 76.290,86 ?) is not relevant or decisive in the case at hand. The proper issue to be examined is whether the costs ordered were necessary for the proper conduct and participation in the proceedings, and also whether the calculation of costs had taken place in accordance with the law and the evidence produced. Applying the proportionality principle in the way exercised by the Athens CoA amounts to a re-examination on the merits, which is totally unacceptable in the field of application of the Brussels I Regulation.
COMMENTS
As mentioned in the introduction, the ruling of the SC departs from the line followed so far, which led to a series of judgments denying recognition and enforcement of foreign (mostly UK) orders and arbitral awards [in detail see my commentary published earlier in our blog, and my article: Recognition and Enforcement of Foreign Judgments in Greece under the Brussels I-bis Regulation, in Yearbook of Private International Law, Volume 16 (2014/2015), pp. 349 et seq]. The decision will be surely hailed by UK academics and practitioners, because it grants green light to the enforcement of judgments and orders issued in this jurisdiction.
The ruling applies however exclusively within the ambit of the Brussels I Regulation. It remains to be seen whether Greek courts will follow the same course in cases not falling under the Regulation’s scope, e.g. arbitral awards, third country judgments, or even UK judgments and orders, whenever Brexit becomes reality.
News
Registration Open: Webinar Series on the Future of Cross-border Parenthood in the EU
As announced on this blog and on the blog of the EAPIL, a series of webinar has been organised under the title The Future of Cross-Border Parenthood in the EU – Analyzing the EU Parenthood Proposal.
This is just a quick reminder for those who also read the EAPIL blog – and a new announcement for those who do not – that registration is open through the form available here.
The programme of the series is as follows:
- 3 May 2023, webinar chaired by Claire Fenton-Glynn: Surrogacy in comparative perspective (Jens Scherpe), and What’s in it? Subject matter, scope and definitions (Cristina González Beilfuss)
- 10 May 2023, webinar chaired by Fabienne Jault-Seseke: The EU Proposal and primary EU law: a match made in heaven? (Susanne Gössl), and The law governing parenthood: are you my father? (Tobías Helms)
- 17 May 2023, webinar chaired by Nadia Rustinova: The mutual recognition of decisions under the EU Proposal: much ado about nothing? (Alina Ontanu), and Who decides on parenthood? The rules of jurisdiction (Maria Caterina Baruffi)
- 24 May 2023, webinar chaired by Steven Heylen: Authentic documents and parenthood: between recognition and acceptance (Patrick Wautelet), and The European certificate of Parenthood: a passport for parents and children? (Ilaria Pretelli)
The series of webinars is organized by Cristina González Beilfuss (Universitat de Barcelona), Susanne Gössl (Universität Bonn), Ilaria Pretelli (Institut Suisse de Droit Comparé), Tobias Helms (Universität Marburg) and Patrick Wautelet (Université de Liège) under the auspices and with the support of EAPIL, the European Association of Private International Law.
Jürgen Basedow 1949-2023
Jürgen Basedow, a giant of private international law (and numerous other disciplines), has died – suddenly, and completely unexpectedly, on April 6. He was my teacher (though only briefly so in a formal position), my predecessor as director of the Hamburg Max Planck Institute (where he served as director 1997-2017) and my colleague as an emeritus. His (impressive) vita is still visible on the MPI website.
Words fail me, as they have many, and so I will not attempt to write more here. A longer appreciation of his life and work and personality is in preparation. Until then, you may wish to read one or more of the following announcements that I am aware of; please announce in the comments or by email what I may have overlooked.
Also, the Hamburg Max Planck Institute is setting up a virtual book of condolences. Please consider sharing your own appreciation there, even if you have already written them up somewhere else.
RIP.
Longer appreciations:
Corinna Budras at Frankfurter Allgemeine Zeitung
Federico Garau at conflictuslegum
José Carlos Fernández Rozas at his personal blog
Konrad Duden / Matteo Fornasier in EuZW 2023, 395-396
Eva-Maria Kieninger / Ralf Michaels in RabelsZ 87 (2023), 229-235
Anatol Dutta / Christian Heinz in JZ 2023, 610-611
Brief online announcements:
Max Planck Institute for International and Comparative Law, Hamburg
Università degli Studi di Pavia
International Academy of Comparative Law
Brief appreciations on social media (incomplete)
Vasco Becker-Weinberg, Pejovic Caslav, Axel Halfmeier, Matthias Kurth, Michael Kubiciel, Monopolkommission, Gülüm Özçelik, Mateusz Pilich
Final Call for Participation in the EAPIL Working Group Survey on the Reform of the Brussels Ibis Regulation
The following information has kindly been provided by Tess Bens, Research Fellow at the Luxembourg Max Planck Institute:
In September 2022, an EAPIL Working Group met for a conference in Luxemburg to discuss the perspectives and prospects of a reform of the Brussels Ibis Regulation. There were panels on the role and scope of the Brussels Ibis Regulation, collective redress, third state relationships, jurisdiction and pendency, and recognition and enforcement. As a result of the conference, Professor Hess and a team of Researchers of the Max Planck Institute Luxembourg published a preliminary Working Paper which put forward 32 proposals for the reform of the Brussels Ibis Regulation.
Parallel to the preliminary Working Paper, a survey was set up to collect reactions and comments on the proposals. By now, over 60 participants from many different Member States have answered the survey. Participation in the survey is open to anybody interested in the reform of the Brussels I bis Regulation, irrespective of whether they are a member of the European Association for Private International Law. Your input is greatly appreciated. Please note that the survey will be open until 15 April 2023.