Conference on recent developments in the European Law of civil procedure

The first conference day began with a presentation by Cristina M. Mariottini. In her contribution she focused on the scope of Brussels I (recast) and more specifically on the recent CJEU judgements concerning the interpretation of the term “civil and commercial matters”. After giving an overall guidance on how the court came to develop its functional approach, she mainly focused on the judgments of Pula Parking d.o.o. (C-551/15) and Supreme Site (C-186/19). In Pula Parking d.o.o. it was contested whether proceedings on the payment of a parking ticket fall within the scope of the Brussels I bis Regulation as Pula Parking was publicly owned and acted on a mandate of the mayor of Pula who represents a public authority. However, and despite these public implications, the CJEU decided that the case nevertheless falls within the scope of the Regulation. It based its decision on the fact that the matter at hand still concerned a contractual obligation and that Pula Parking sought enforcement through a notary just like any other private individual would have to do.

With regards to the Supreme Site case, it was again irrelevant for the classification of the matter as civil or commercial matter that the contract at hand was concluded for military purposes and therefore again within the realm of public power. Instead the CJEU decided contrary to the PIL assumption that the purpose of the underlying contractual relationship is relevant for the classification.

The second speaker of the first day was Marta Pertegás Sender and she highlighted the recent developments with regards to prorogation clauses falling within the scope of the Brussels I (recast) Regulation. Furthermore, she explained how the 2005 Choice of Court Convention operates and provided a short analysis of the Ermgassen & Co Ltd case. This is one of the first reported applications of the 2005 Choice of Court Convention. Additionally, Marta Pertegás Sender also drew the attention of the audience to the fact that the United Kingdom (UK) just announced its accession to the 2005 Choice of Court Convention which prior to the Brexit applied to the UK through the membership of the European Union (EU).

Patrick Thieffry was the third speaker. He illustrated that the dividing line between arbitration and the Brussels I (recast) Regulation is in fact not as clear as suggested by the arbitration exception in Article 1 and Recital 12 of the Regulation. Therefore, he highlighted that while interim relief and arbitration-related court litigation do fall within the scope of the Brussels I (recast) Regulation, arbitration tribunals, anti-suit injunction and the jurisdiction matter do not fall within its scope. Furthermore, he concluded that there is still some uncertainty with regards to the matter of recognition and enforcement of judgements on the merits which are based on a breach of an arbitral reward. With regards to this last point, further clarifications by the CJEU would be welcomed.

The fourth presenter of the day was Alexander Layton and the topic of his presentation was the interplay between contract and tort cases within Regulation 1215/2012 and the Lugano Convention 2007. In order to demonstrate the dividing line between the two concepts he illustrated the development of both notions in the case law of the CJEU. Beginning with Kalfelis (C-189/87) the concept of ‘tort, delict or quasi-delict’ was interpreted by the court as including any action that was not connected to a contract and was at the same time intended to prove the defendant’s liability. This first case clearly separated the two concepts of contract and tort. One of the following key cases was Handte (C-26/90) which determined that a matter falls within the scope of ‘matters relating to a contract’ if the relevant parties freely entered into their mutual obligations.

However, since 2017 the case law of the CJEU seems to have shifted towards a broader interpretation of the notion ‘matters relating to a contract’ thereby decreasing legal certainty. In his contribution Alexander Layton therefore questioned the practicality of such wider interpretation and recommended a more coherent demarcation in the CJEU’s future case law.

The final presenter before the lunch break was Agnieszka Frąckowiak-Adamska. In her presentation she addressed the notions of mutual trust and rule of law with regards to the possible refusal of recognition of a foreign judgement within the EU. In that regard she highlighted that mutual trust is the cornerstone of the relationship between the Member States. Afterwards, she went on to examine the extraordinary circumstances that might allow the refusal of a foreign judgement and looked in particular at the pending cases before the CJEU regarding the position of Poland.

After the lunch break, the focus of the conference shifted to the HCCH 2019 Judgments Convention. Ning Zhao introduced this new instrument and clarified the scope and operation of this new Convention. She was followed by Matthias Weller who further elaborated on the implications of the new HCCH 2019 Judgments Convention. Furthermore he focused on the Convention’s rules on recognition and enforcement as well as on how it will operate if compared to the instruments based on mutual trust within the EU.

The first conference day ended with a round table about the future prospects of the HCCH 2019 Judgments Convention. One interesting contribution to this round table came from Norel Rosner. He stressed the active participation of the EU during the negotiations of the Convention and illustrated the steps already taken by the EU with regards to a possible accession to the Convention. Furthermore, he highlighted the positive effect that an EU accession to this Convention might have, taking also into account that EU based judgments would circulate in other Contracting States outside the EU.

On the second day of the conference, the two first presentations referred to two essential aspects of international civil procedure. First, Georg Haibach introduced the main elements of the new Regulation on the Service of Documents. This regulation is expected to be adopted and published in the OJ of the EU in December 2020. It will take the form of a Recast of Regulation 1393/2007. The new Regulation should ensure a better use of digital means for the cross-border transmission of judicial and extrajudicial documents in the Member States of the EU. The Member States shall ensure that electronic transmission of such documents is possible three years after the entry into force of the Regulation that is by March 2025.

Second, Pavel Simon gave a presentation on the current status of the cross-border taking of evidence in civil and commercial matters in the EU. Interestingly, he stressed the importance of the good operation of the forms that ensure the functioning of this Regulation in practice. Judges regard the suitability of the forms as the most important aspect of this Regulation. In that regard, Judge Simon recommended the E-Justice Portal (website) as the main hub of judicial cooperation in civil justice. Furthermore, his presentation also referred to case law of the CJEU on the Evidence Regulation (such as the Lippens and the Pro-Rail cases) according to which taking of evidence under the national rules of the requesting court remains possible in situations covered by the Regulation. In parallel with the Recast of the Service Regulation, the proposed Recast of the Evidence Regulation, which aims at maximizing the use of current technologies in cross-border taking of evidence is soon to be completed.

The third presenter of the day was Xandra Kramer. She focused mainly on the European Account Preservation Order, the European Payment Order (EPO) and the case law resulting out of these two instruments. An interesting contribution with regards to Xandra Kramer’s presentation was made by Carlos Santaló Goris who had gathered information on the use of the EPO in different Member States. According to him, Lithuania seems to be one of the Member states that make the most use of the EPO within the EU.

The final part of the Conference, focused on the implications that Brexit will have on the Hague Conventions and the Lugano Convention.

In her presentation Helena Raulus stressed that within the withdrawal agreement between the UK and the EU it was only stipulated that proceedings started before the 1 January 2021 will still fall within the scope of the Lugano or Brussels I Regulation. However, for proceedings started after that date it will depend on the final agreement between the EU and the UK. Furthermore, even though the EFTA states have shown their overall interest in a UK accession to the Lugano Convention, the EU is still indecisive, possibly because of the ongoing negotiations between the EU and the UK.

An interesting contribution to the final discussion came from Christophe Bernasconi. He elaborated in great detail on the progress and implications that Brexit has on the position of the UK with regards to the HCCH Conventions. Additionally, he announced that the UK had just accepted the accession of some states to the 1970 Evidence Convention and the 1970 Divorce Convention.

Overall, the Conference offered a well-structured and interesting overview of the recent developments with regards to the law on civil procedure within the EU.  The programme and further details about this Conference are available on the ERA website.