Class 9 Flashcards
(9 cards)
Art. 8 – Special Jurisdiction: multiple parties
A8 aims at sound administration of justice: Consolidation
to avoid possibility of conflicting judgments across the EU
when there are more defendants, in several Member States, you can sue all of them in the Member State of one defendant: the ‘anchor’ defendant.
Condition of ‘provided the claims are so closely connected that it is expedient to hear and determine them together to avoid irreconcilable judgments’ was added in 189/87 Kalfelis
When is a case so closely connected?
C-539/03 Roche: it is not sufficient that there be a divergence in the outcome of the dispute. The divergence must also arise in the context of the same situation of law and fact
Residual Jurisdiction – art. 6
When the defendant is not domiciled in a Member State, and no other jurisdictional rule of BIa applies, the national, ‘residual’ rules of PIL apply
! Judgments on the basis of national residual rules that are civil and commercial and not excluded from
the scope of application, travel under Title III Recognition and enforcement
Art. 29 – same action
Where the same action, between the same parties is brought before the courts of two MSs, A29 obliges the court seized second to ‘wait’ (aka ‘stay’ the case)
What is required for the ‘guillotine rule’ of A29 to apply is same subject matter, same cause of action, same parties
Where one dispute is about the enforcement of a contract, and the other about the annulment of the contract, they do have “the same subject matter”: two sides of same coin
When you are claimant in one proceeding and defendant in the other,
you can be ‘same parties’
Article 32 explains when a court is deemed to be ‘seized’
Art. 30 – ‘related actions’
If one of the conditions of art. 29 is not met, A30 may apply:
‘related’ rather than ‘identical’ actions pending in different courts (often as a result of A8(1);
and no obligation to stay, more flexibility.
Provisional or protective measures – Art. 35
Provisional measures are always possible by the Court which has substance matter jurisdiction
All other courts may exercise their national CPR rules on provisional measures even if they do not have substance matter jurisdiction
The measure has to be provisional or protective
Recognition and enforcement
A judgment given in a MS shall be recognized in the other MS without any special procedure (36)
A judgment given in a MS which is enforceable in that MS shall be enforceable in the other MS without any declaration of enforceability being required (39)
Res judicata is not required for R&E
Grounds of refusal A45
Public policy
Rights of defence
Irreconcilability with other judgments between the same parties in
the recognising state
Conflict with provisions on insured, consumers, employees or exclusive jurisdiction
A45 (!): the authorities in the recognising Member State do not review the correctness of the judgment, nor do they review whether jurisdiction was correctly exercised (art. 45(3)) – except for provisions on insured, consumers or exclusive jurisdiction
Public Policy
Real Madrid case
allow national courts to review the compatibility of foreign legal decisions with fundamental rights. A similar pattern has emerged in the context of judicial cooperation in criminal
matters, where recent case law on the European Arrest Warrant illustrates the ECJ’s inclination to adjust the rigid application of mutual trust by weighing judicial cooperation obligations against the need to respect fundamental rights (Case C-261/22, GN). Overall, a clear shift towards integrating fundamental rights assessments into EU instruments traditionally based on mutual trust seems to be emerging.
In conclusion, despite the Court’s emphasis on the narrow scope of public policy, Real Madrid vs Le Monde shows a tendency of the ECJ to expand the scope of review by enforcing courts. By testing whether damages may be considered manifest breaches of fundamental rights, the ECJ effectively calls for a substantive review of foreign judgments to safeguard fundamental rights. This raises the question of whether the ECJ is implicitly encouraging national courts to horizontally control one another when fundamental rights are at stake, despite the principle of mutual trust, to complement the vertical control on the Member States exercised by the Court itself.”
