#17358 - Birr Jurisdiction And Arts.29 30

BRUSSELS I REGULATION RECAST

Jurisdiction = right of a court to adjudicate a dispute

A few theories

Territoriality: starting point, but insufficient
Sufficient connection: It is acceptable to take jurisdiction so long as there is a sufficient connection; this could take account of people and events outside territorial boundary. E.g.:
1. Connections between C and the court, e.g. language (wanting to litigate in own language); access (easier to hire local lawyers, and knows local context). Litigatns often want to litigate in their home courts; this is understandable and not necessarily unfair.
2. Usually connections of D, e.g. if D’s assets & residence is in State X, then she cannot complain about being sued there. This is usually a justification for general jurisdiction against D; usually it is held sufficient to establish jurisdiction.
3. Subject-matter connection.
4. Consent: usually a good justification.
5. Collateral jurisdiction: where there are a lot of claimants or parties, then might want to hear all in one court despite poor connection between each individual & the jurisdiction.
Interest of the state: i.e. concerns about procedural & substantive justice.

History of the BIRR

3 EU instruments culminated in the BIRR on jurisdiction & enforcement of judgments in civil and commercial matters which applies to proceedings commencing after 10 January 2015. It replaces the BIR 2001 and the Brussles Convention 1978.
The purpose of the Regulation is to promote & facilitate harmonized adjudication of civil & commercial claims throughout the EU and thereby promote the internal market (Arts.67(4) and 81 TFEU). More specifically, the Regulation (i) regulates civil jurisdiction within the EU, in particular harmonizing jurisdictional rules nad regulating conflicts of jurisdiction, and (ii) permits judgments of one MS to be recognised and enforced in other Member States (if one can enforce a German judgment, one is more likely to do business there). The CJEU has expanded the purpose & effect of the Brussels I Regime by interpreting it with greater emphasis on the wider policy of integration. Identifying the purpose is important as it aids our interpretation of its scope. Accordingly, the BIRR should be interpreted teleologically not literally.
‘Mutual trust and confidence’ is at the heart of the EU endeavour; we treat each of the MSs’ judgments with complete confidence and do not scrutinise the content of those judgments.
Matters of interpretation of BIRR can be referred to the CJEU by any court (Art.267 TFEU) but must be made by the Supreme Court if the interpretation is not acte clair (i.e. absolutely clear). Aids to interpretation include the preliminary reports to the Brussels Convention (and the later Accession Conventions) and previous CJEU case law on the Brussels Convention and the BIR. However, these reports may be outdated, and there is no doctrine of binding precedent in EU law; the words of the Regulations have also changed.
1. But the provisions of BIRR which are equivalent to previous Regulation are to be interpreted in the same way where the words are the same: Pula Parking v Tederahn.
2. The CJEU commonly adopts an autonomous meaning of the Regulation, i.e. it interprets a term or concept in the Regulation without necessarily linking it to the legal system of a given EU Member State, e.g. the notion of ‘contract’ under the Regulation is interpreted autonomously and may not coincide with the understanding under the national legal systems of MSs. This is said to be a uniform meaning independent of the rules of the domestic legal systems.
3. Courts, tribunals and judgments are given a wider definition than one might expect (Arts.2 & 3 BIRR).
Brexit: After the UK has left the EU, the BIRR rules will not apply as they depend on reciprocity to operate fairly between UK and EU parties to litigation.

Scope of BIRR: Subject-matter of the dispute must fall within the scope of the BIRR—‘civil and commercial matters’ and not specifically excluded (Art.1).
BIRR takes precedence: Treat the national rules as residual rules.
General jurisdiction under BIRR: Generally the BIRR engages when D is domiciled in a MS of the EU (Art.4). Ds not domiciled in the EU may be sued under national (common law) rules (Art.6).
1. However, there are some specific rules which apply irrespective of the D’s domicile:
  1. Art.24: Exclusive jurisdiction for e.g. rights in rem in immoveable property
  2. Art.25: Disputes falling within a jurisdiction agreement in favour of a court of a MS
  3. Where proceedings are continuing on the same matter between the same parties in another MS, irrespective of the parties’ domicile within or without the EU (and irrespective of the jurisdiction the other court adopts) the Regulation is engaged: Overseas Union v New Hampshire.
  4. ((Also, protective rules for consumers, insured, or employees: apply irrespective of the place of D’s domicile (e.g. if a consumer sues a US manufacturer)—but not in syllabus.))
2. As a corollary to general jurisdiction, a D domiciled in a MS shall be sued in that State and may only be sued in another MS where permitted by the Regulation (Arts.4 and 5).))

‘Civil and commercial matters’?
1. Autonomous meaning is given to ‘civil and commercial matters’.
Public law matter excluded under Art.1?
1. **Excludes ‘revenue, customs or administrative matters’ even if otherwise civil & commercial.
2. **Excludes acta de jure imperii (act of imperial power).
3. The line can be difficult to draw but there is evidence that the scope of the Regulation is being widely rawn, i.e. that exclusions are narrowly defined. The court has focused on the legal basis of the claim (i.e. nature of the claim) and the relationship between the parties (i.e. capacity in which the parties acted in relation to that claim).
4. Focus on capacity of parties: LTU v Eurocontrol: Public law claims are excluded; those claims which are generally regarded by MSs as a matter of private law are within the scope.
  - FACTS: LTU were a German air carrier, had been subjected to a Belgian judgment from a case brought by Eurocontrol, an international air safety organisation. The case was about whether LTU had paid their dues to Eurocontrol. Belgian court had expressly said this is a matter of private law, a matter of debt, so it was claimed that it was a civil and commercial matter, thus that BIRR applied.
  - HELD (CJEU): Not a civil & commercial matter. The capacity in which Eurocontrol was bringing the claim was as a public body concerned with air safety. NB that Eurocontrol was not a state but a supranational body.
5. Focus on nature of claim or obligation: Freistaat Bayern v Blijurisdictionenstein:
  - FACTS: Bavaria sought to recover a maintenance grant given to a child on behalf of the child’s father. German law places an obligation on parents to support their children, and if they do not do so, state steps in and is subrogated to the claim. State wanted to enforce the judgment against the parent in another country. UK argued it was a public matter.
  - HELD: Civil and commercial matter falling within the BIRR.
6. Ask how did the r’ship between the parties arise? Frahuil v Assitalia SpA: If governed by private law then within BIRR.
7. **But public authority can act in a private capacity, in which case within BIRR scope: Sonntag v Waidmann:
  - FACTS: Teacher had acted negligently and student injured.
  - HELD: This was a private law claim arising in tort.
8. Example of acta de jure imperii: Lechouritou v Greece Case: Actions by injured parties against a State for war reparations were not civil and commercial matters. The powers exercised by the State giving rise to the damage were obviously an exercise of acta de jure imperii.
9. May still be manifestation of public authority even if looks like a private law claim in debt: Hellenic Republic v Kuhn: An action in contract to recover debt was outside the scope of the Regulation. The Greek State had retroactively altered the terms of a private debt when the State was in exceptionally difficult financial straits. Those acts were a manifestation of public authority.
10. Example of private law claim even though by tax authorities: HMRC v Sunico: An action by the tax authorities for damages for conspiracy to defraud the tax authorities was within the scope of Regulation as the claim was founded on the ordinary law of tort.
11. ****If form of action is in private law, then civil & commercial matter: Realchemie Nederland v Bayer CropScience: Even if action results in a fine payable to the court it can be within civil & commercial matters if the form of the action is in private law.
12. If actually contractual debt, civil and commercial matter: Pula Parking v Tederahn: A parking ticket issued by a public authority is not an exercise of governmental authority, it is a contractual debt and is therefore governed by the Brussels Regulation
  - Provided the authority does not issue penalties resulting from the governmental authority: Therefore need to be careful that the government authority structures the penalty as a contractual debt rather than a fine.
13. Obligation to protect consumers? Verein fur Konsumenteninformation v Henkei: An obligation to protect consumers can give rise to a private law right if it can be enforced by any individual.

Lawyers can structure a claim to fall within or without the Regulations. This is unique to common law systems, which allow Cs to structure proceedings...

#17358 - Birr Jurisdiction And Arts.29 30 - Conflict of Laws

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