Council Conclusions on the future of European Civil Justice

The Council conclusions on the Future of Civil Justice Cooperation were published yesterday at the OJEU (C 419, 12.12.2019, p. 6). They may be accessed here

CJEU on Article 43 Brussels I

The Court of Justice delivered today its judgment in case C‑433/18 (« ML v Aktiva Finants OÜ »), which is about Brussels I:

« 1. Article 43(1) of Council Regulation (EC) No 44/2001 […] must be interpreted as not precluding a procedure granting leave for further consideration of an appeal in which, first, a court of appeal rules on the grant of that leave on the basis of the judgment delivered at first instance, the appeal brought before it, any observations of the respondent and, if necessary, other information in the file and, second, leave for further consideration must be granted, in particular, if there are doubts as to the correctness of the judgment in question, if it is not possible to assess the correctness of that judgment without granting leave for further consideration or if there is another significant reason to grant leave for further consideration of the appeal.

2. Article 43(3) of Regulation No 44/2001 must be interpreted as not precluding a procedure examining an appeal against a judgment on the application for a declaration of enforceability which does not require the respondent to be heard in advance when a decision in the respondent’s favour is made”.

Source: here

CJEU on Article 1(1) and 7(1)(a) Brussels I bis

The Court of Justice delivered last week (5 December 2019) its decision in case C‑421/18 (“Ordre des avocats du barreau de Dinant v JN“), which is about the Brussels I bis Regulation:

“Article 1(1) of Regulation (EU) No 1215/2012 […] must be interpreted as meaning that a dispute concerning a lawyer’s obligation to pay annual professional fees for which he or she is liable to the bar association to which he or she belongs comes within the scope of that regulation only if, in calling on that lawyer to perform that obligation, the bar association is not acting, under the national law applicable, in the exercise of public powers, which it is for the referring court to ascertain.

CJEU on Article 3(1) and 25(1) Insolvency Regulation

The Court of Justice delivered last week (4 December 2019) its decision in case C‑493/18 (“UB v VA and alii), which is about the Insolvency Regulation:

“1. Article 3(1) of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings must be interpreted as meaning that an action brought by the trustee in bankruptcy appointed by a court of the Member State within the territory of which the insolvency proceedings were opened seeking a declaration that the sale of immovable property situated in another Member State and the mortgage granted over it are ineffective as against the general body of creditors falls within the exclusive jurisdiction of the courts of the first Member State.

General approach on the reform of the Evidence and Service Regulations

The “Council adopted today its negotiating position (general approach) on two amended regulations, one on the taking of evidence and a second on the service of documents. The Council Presidency will now start negotiations with the European Parliament on the basis of these mandates.

[…]

Changes in both regulations include the mandatory use of an electronic decentralised IT system, composed of interconnected national IT systems, for the transmission of documents and requests between member states. The draft regulations also task the Commission with the creation, maintenance and future development of a reference software which member states can choose to apply as their back end system, instead of a nationally-developed IT system.

Regarding the service of documents, under the draft new rules documents can be served electronically and directly on addressee with a known address in another member state, where his or her express consent is given in advance. The service can be performed through qualified electronic registered delivery services or, under additional conditions, by e-mail.

The draft new rules also promote the use of videoconferencing or other distance communication technology in the taking of evidence which implies hearing a witness, party or expert present in another member state”.

To know more, see here and there

CJEU on Article 4 Insolvency Regulation

The Court of Justice delivered on 21 November 2019 its judgment in Case C‑198/18 (CeDe Group AB v KAN sp. z o.o., in liquidation), which is about Article 4 Insolvency Regulation:

“Article 4 of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings, as amended by Council Regulation (EC) No 788/2008 of 24 July 2008, must be interpreted as not applying to an action brought by the liquidator of an insolvent company established in one Member State for the payment of goods delivered under a contract concluded before the insolvency proceedings were opened in respect of that company, against the other contracting company, which is established in another Member State”.

Source: here

Grand Chamber of the CJEU on Article 47 of the Charter of Fundamental Rights and Poland

The Court of justice delivered on 19 November 2019 its judgement in case “A. K. v Krajowa Rada Sądownictwa (C‑585/18), and CP (C‑624/18), DO (C‑625/18) v Sąd Najwyższy, third party: Prokurator Generalny”, which is about the Rule of Law in Poland:

« Article 47 of the Charter of Fundamental Rights of the European Union and Article 9(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as precluding cases concerning the application of EU law from falling within the exclusive jurisdiction of a court which is not an independent and impartial tribunal, within the meaning of the former provisions. That is the case where the objective circumstances in which that court was formed, its characteristics and the means by which its members have been appointed are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of that court to external factors, in particular, as to the direct or indirect influence of the legislature and the executive and its neutrality with respect to the interests before it and, thus, may lead to that court not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society must inspire in subjects of the law. It is for the referring court to determine, in the light of all the relevant factors established before it, whether that applies to a court such as the Disciplinary Chamber of the Sąd Najwyższy (Supreme Court).

International Seminar on the Protection of Children on the Move and Kafala

On 14 and 15 November 2019, an “International Seminar on the Protection of Children Across Borders: The 1996 HCCH Convention on the Protection of Children” was held in Rabat, Morocco.

The Conclusions and Recommendations may now be read, on the HCCH website, here

Source: here

Progress in The Hague on the Parentage / Surrogacy Project

From 29 October to 1 November 2019, the Hague Experts’ Group on Parentage / Surrogacy met for the sixth time. The meeting focused on proposing provisions for developing both a general private international law instrument on the recognition of foreign judicial decisions on legal parentage; and a separate protocol on the recognition of foreign judicial decisions on legal parentage rendered as a result of an international surrogacy arrangement. The feasibility of making provisions in relation to applicable law rules and public documents was also considered.

Extract of the report of the meeting in relation to a draft convention:

“Recognition of foreign judgments on legal parentage by operation of law

10. The Group agreed that the recognition regime should occur by operation of law and be subject to the satisfaction of certain indirect grounds of jurisdiction in the State where the judgment was issued.

a. Indirect grounds of jurisdiction

11. The Group agreed on the need to limit the grounds for indirect jurisdiction to ensure that there is sufficient proximity between the subject matter and the State of judgment. The Group agreed on the following alternative indirect grounds of jurisdiction that would have to be fulfilled at the time when proceedings were initiated:

(a) the child’s habitual residence, noting the need for another ground in exceptional circumstances based on presence such as for refugee children;

(b) the respondent’s habitual residence, noting that the State might be the respondent in certain jurisdictions.

12. The Group recognised that in certain cases a real and substantial connection could be a very useful ground, provided that further clarification be given as to the application of such a connecting factor.

13. The Group agreed that grounds for indirect jurisdiction relating to party autonomy (i.e., choice of court and submission to the jurisdiction of the court) should not be included in light of the subject matter of the proceedings (legal parentage).

b. Grounds for refusal of recognition

CJEU on the European Account Preservation Order

The Court of Justice delivered yesterday its judgement in case C‑555/18 (K.H.K. v B.A.C., E.E.K):

“1. Article 4(10) of Regulation (EU) No 655/2014 […] to facilitate cross-border debt recovery in civil and commercial matters must be interpreted as meaning that an order for payment, such as that at issue in the main proceedings, which is not enforceable, does not constitute an ‘authentic instrument’ within the meaning of that provision.