Samenvatting PIL
Inleiding
1. What we will be discussing in this course
Brussels 1A regulation => jurisdiction on civil and commercial matters
Rome 1 => applicable law for contracts
Rome 2 => applicable law for non-contractual obligations
Legal basis in art. 81 TFEU: EU may adopt legislation on judicial cooperation
2. The 3 questions of PIL
1. Forum => jurisdiction: which court has jurisdiction to hear the case?
2. Lex causae => applicable law: which law applies to this situation?
3. Recognition and enforcement => what is the effect of a judgment of a foreign country?
- Second question does not automatically follow from the first (we have to kick this intuition)
o Not because a Belgian court has jurisdiction that it will apply Belgian law
o But when it does => Gleichlauf: the forum applies its own laws
- Third question is crucial, eg. Indian family is not helped when Belgian law applies to its situation,
because India is very reluctant in recognizing judgments of a non-commonwealth country
-Forum shopping
- You sue in the MS where the laws are favorable for you
- Reasons to forum shop
o Familiarity: you know the law and the procedure => false friend: recognition and
enforcement
o Language of the court
o Leniency of the judge: victim- or defendant-friendly of the judge or the court
o Gleichlauf
o Discovery and evidence: eg. English discovery law (obtain information before taking case
to court)
o Speed and complexity of the procedure: deep pocket clients take the case to a court
where it will take a long time (Torpedo)1 or sue in different courts
o Procedure: availability of a suit, procedure is always subject to lex fori (discussions about
statutes of limitation)
o Costs: costs follow the event in the UK, third party funding (crowdfunding, contingency
fee or commercial investments) depending on the jurisdiction
- Can lead to excessive/exorbitant/parochial jurisdiction: the court that establishes jurisdiction has
extremely little anchor points with the case
3. Friedrich Von Savigny
Very important person: his approach of PIL is still used today
He focusses on applicable law (2nd question of PIL)
-SITZ-theory: for every PIL-category (eg. Marriage, contracts, adoption, …) there is a natural legal order
This can be introduced as ‘the pigeonhole theory’ (but this immediately shows the limits of this
theory)
o Postmaster (the judge) needs to put the letters in the right pigeonhole: qualification of
the legal relationship (eg. a contract) => right pigeonhole: the connecting factor (eg. lex
contractus)
o This method is still applied in PIL
Problems with this theory
o Qualification of the legal relationship is not always clear
Eg. according to Von Savigny, the culpa in contrahendo is part of the contract, but
we would say that is a non-contractual liability
Pigeonholes defer depending on the nationality (and the legal intuition) of the
postmaster
o Connecting factor is not as universal as suggested by Von Savigny
1
Torpedo: you take the case to a court where it will take forever (Belgian or Italian court)
1
, There is no universal truth as to which pigeonhole/connecting factor you put your
qualification in
For that we must harmonize the qualification and the connecting factors
4. Application of the law
A. Characterisation (French: qualification) of the legal question
Putting the facts in a legal category to which a choice of law rule may be applied
≈ Mail room sorter: the judge puts the facts into a certain pigeon hole which will lead to the
parcel being delivered on one or other doorstep
B. Connecting factor
Which legal system connects most closely with this category of legal questions
Personal connecting factors (e.g. domicile, residence, nationality) >< causal connecting factors
(e.g. lex domicilii, lex contractus, lex loci contractus, lex loci actus, lex delicti, lex loci delicti
commissi, lex damni, lex situs, lex loci celebrationis, lex incorpoationis, lex protectionis)
C. Lex Causae
Substantive law of the legal system identified by step 2
5. History of PIL
-Art. 220 EEC: MS must negotiate about the reciprocal recognition and enforcement of judgements and
arbitration awards
But this must develop outside the European institutional framework
That leads to the Brussels Convention (1968) as the mother of the EU jurisdictional rules
o International treaty
o Accompanied by travaux prépartatoires => report Jenard
We left the Brussels convention and we now apply the Brussels Regulation, but
the court still refer to the report Jenard to mutatis mutandis interpret the
provisions of B1A
-Maastricht treaty
Treaty that works with pillars
For a long time, MS wanted to keep their sovereignty about justice
With MT: pillar on justice and home affairs => justice and home affairs became past of the EU
institutional framework => which means that nothing can change about justice, unless all MS
agree
Unanimity was abandoned, except for justice and home affairs (including PIL)
Important for exam: Ireland, UK and Denmark aren’t fully part of the justice and home affairs
o Ireland and the UK: opt-in
o Denmark: opt-out
-Treaty of Amsterdam
Introduced a legal basis for the EU institutions to act
EU could only act if necessary for the functioning of the internal market
-TFEU
Legal basis in art. 67 and 81 TFEU: EU can always harmonize, but especially when necessary for
the internal market
EU PIL is an area where the procedure of enhanced cooperation is most used (art. 20 EEC) 2 =>
applies only to those states that accepted it
-1957 -> 1968 -> 2001 -> 2012
1957: art. 220 EEC
1668: Brussels Convention
2001: Brussels I Regulation
2
Enhanced cooperation: min. 9 MS are allowed to set up advanced integration and cooperation for a particular field in the EU
(where an agreement with all MS is impossible)
2
, 2012: Brussels Ia Regulation (= the Brussels Ibis Regulation = the Recast jurisdiction
Regulation)
There is a change in atmosphere: from Eu to assist the internal market to EU to assist the
individual
-Lugano Convention
International treaty by the EU and the EFTA3 states on the free movement of judgments
Is almost a copy-past of the Brussels I Regulation (not the Brussels Ia Regulation)
UK wanted to join Lugano
o But didn’t want to be an EFTA state: then you are subject to the EU rules, but you don’t
help with the making of it
o Thus UK joining the Lugano Convention must be accepted by all Lugano MS => EU
Commission advised the MS to not accept it
-BREXIT => EU PIL is still relevant for the UK after Brexit
Transitional period: there is a one year transitional period in which EU-law still applies on UK
cases (starting on 1/1/2021)
Retained EU-law: a big chunk of UK-law is implemented EU-law => UK copy-pasted that EU-law
and it continues to apply in the UK law
Acquired EU-law: EU-law still applies on cases introduced to the court before implementation
day (start of the transitional period on 1/1/2021)
-Main changes from Brussels I Regulation to Brussels Ia Regulation
Brought in line with the Hague Convention: to rely on the Regulation, it is no longer required
that one of the parties has domicile in the EU
Abolition of the exequatur
Introduction of lis pendans: when the same case (same subject matter and the same parties) is
pending before different courts of the EU MS’s, then the court second seized has to stay its
procedure (not when one of the cases is pending before a non-EU court)
For consumers and employers to be protected by the protected categories, it is no longer
required that the business partner has domicile in the EU
There is a restrictive effect of provisional measures when not ordered by a court
6. Overriding principles in the Regulation
The clue is that EU PIL has its own concepts that must be interpreted in an autonomous way and
not on a national level
Those overriding general principles determine the way the COJ interprets the regulation
-Effet utile: when the COJ does not have a strong argument, it will say that if we do not rule as we do,
the general aim of the EU law instrument would be undermined
-Mutual trust that other MS will properly apply the Regulation (only between MS!)
Gasser
o Case with Italian torpedo4 (race to court): mutual trust ensures that MS may not
circumvent the lis alibi pendans rule (even in case of an extreme blacklog)
o Recognition and enforcement (ultimate goal) is only possible if we harmonize
jurisdictional rules and create mutual trust between (the judge of) the MS that the other
(judge of the) MS will apply the regulation correctly
Turner
o Anti-suit injunctions5 are against the idea of mutual trust and undermine the effet utile of
the regulation
-Strict interpretation of exceptions to art. 4 B1A (BVG)
3
European Free Trade Association (Sweden, Lichtenstein, Iceland and Norway): want to be part of the EU for the internal market,
but not on the political part
4
A torpedo: an action that is brought by a stubborn party who want to take a case to a court where they hope the case will be
strung out, that it will take forever
5
Anti-suit injunction: you go to the court to oblige the other party to take a certain legal step or to restrain them from doing
something
3
, Actor sequitur forum rei: the general principle of the regulation is that a claimant should sue the
defendant in the place of the defendants domicile (art. 4)
Although this is the general principle, it comes very low in the hierarchy of jurisdictional rules
But all those higher jurisdictional rules must be interpreted restrictively (because they derogate
from the general rule)
-Predictability
Owusu
o Forum non conveniens6 is not allowed because it goes against the principle of
predictability (it is a mechanism that allows the judge to free wheel)
BVG: the ratio of B1A is to enable a party to say where disputes will have to be heard
-Autonomy
Eurocontrol: the concepts used in B1A must be interpreted in an autonomous way
The first question: jurisdiction
1. In general
A. Brussels Ia Convention
B. Scope of application: subject-matter
a. Civil and commercial matters
-Civil and commercial matters the Regulation will or will not apply depending on this) (art. 1 B1A)
Whatever the nature of the court or tribunal
<-> Public law
BUT it does apply to disputes between a public authority and a private individual, when the
former has not acted in the exercise of its public powers = acta iure imperii (Eurocontrol)
-Fahnenbrock: it is not because a public authority is involved that we automatically speak of acta iure
imperri => only when direct and immediate effect
-Kuhn: the court says we must look at the context (forget about direct and immediate effect)
-The message in Fahnenbrock, Kuhn, Dinant and Supreme Cite Services is that there is a coordinated
approach with a variety of general criteria that have been thrown about by CoJ
Not a clear line of cases
Only clarity is in the Obala case
o AG Bobek: it is impossible to make a magic formula to decide on civil and commercial
o But for the majority of the cases to decide about civil and commercial we look at the
foundation upon which the claim is based (civil or public law) and the procedural rights
and obligations between the parties and whether they give specific principles to the
parties referring to the legal relationships between parties
o Think whether the authority can do more then a private party could do
6
Forum non-conveniens: a common law theory which gives the judge freedom to not exercise the jurisdiction that would be
established based on the general rules
4
