european private international law - 7.3.2012 judr. tereza kyselovská

European Private International Law -

7.3.2012JUDr. Tereza Kyselovská

Literature• Interactive syllabi• Articles

• Ulrich Magnus,Peter Mankowski,Alfonso-Luis Calvo Caravaca. Brussels I Regulation (available on books.google)

JUDr. Tereza Kyselovská

Syllabus• Competences of the EU in the area of EPIL• Concept of autonomous interpretation• Prejudicial questions• Brussels I Regulation

– Scope of application– Case law– Your presentation


The EU competence • Judicial cooperation in civil matters • Article 81 (ex Article 65 TEC)

• The Union shall develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States.


The EU competence • … the European Parliament and the Council, acting in accordance with the

ordinary legislative procedure, shall adopt measures, particularly when necessary for the proper functioning of the internal market, aimed at ensuring:


The EU competence – the mutual recognition and enforcement between Member States of

judgments and of decisions in extrajudicial cases; – the cross-border service of judicial and extrajudicial documents; – the compatibility of the rules applicable in the Member States concerning

conflict of laws and of jurisdiction;– cooperation in the taking of evidence; – effective access to justice; – the elimination of obstacles to the proper functioning of civil proceedings, if

necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States


The reference for a preliminary ruling• Article 267 (ex Article 234 TEC)• The Court of Justice of the European Union shall have jurisdiction to give

preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;


The reference for a preliminary ruling• Where such a question is raised before any court or tribunal of a Member

State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.

• Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.


(European) Private International Law• Cross-border transaction, relationship, contract…• 2 and more states and their legal systems involved

-> 2 main questions arise:1. Law applicable2. Jurisdiction of courts


(European) Private International Law• Focus in rules of procedure -> determining court, FORUM• Why is forum so important?• Forum impacts:

– ?– ?– ?– ?


Regulation Brussels I• Therefore we will focus on procedural rules…

• COUNCIL REGULATION (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Regulation Brussels I)


Regulation Brussels I• Facilitate the judicial teratment of suits and judgments among the MS -

uniform rules for civil cross-border litigation• Different procedural formalities impede the judicial cooperation within the

internal market


Regulation Brussels I• Based on principle of mutual trust• Uniform and fair connecting factors• Principle of legal certainty, foreseeability in the application and

interpretation• To grant the parties the widest possible freedom to select the competent

forum• Principle of automatic recognition


Regulation Brussels I• Importance:

– Interpretation – the first and most important cases were on interpretation of Brussels Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters 1968 (predecessor of the Brussels I Regulation)

– Corner-stone and fundament of the European Judicial Area – judicial cooperation – necessity of free movement of judgments


Case-law1. Facts of the case (briefly) 2. Preliminary question(s) – “issue” (interpreted Article and notion)3. Decision of the ECJ – “rule”4. Key reasons of the decision5. Evaluation of the importance of the decision for the interpretation and

application of the Regulation6. Examples of other cases concerning the same notion or Articles7. Further reading – examples of books or Articles concerning the case

(notion, Article)


Case-law1. LTU v. Eurocontrol2. Rütter3. Sonntag


LTU v. Eurocontrol1. Interpretation of the concept „civil and commercial matters“

– Reference must not be made to the law of one of the states, but– to the objectives and schemes of the Brussels I and the general principles

which stem from the corpus of the national legal systems

2. Judgment given in an action between a public authority which acted in the exercise of its powers and a private person – excluded from Brussels I


Rüffer• The concept of "civil and commercial matters" within the meaning of the

Brussels I does not include actions such as that referred to by the national court brought by the agent responsible for administering public waterways against the person having liability in law in order to recover the costs incurred in the removal of a wreck carried out by or at the instigation of the administering agent in the exercise of its public authority.


Sonntag• 'Civil matters' within the meaning of the first sentence of the first

paragraph of Article 1 of the Brussels I cover an action for compensation for damage brought before a criminal court against a teacher in a State school who, during a school trip, caused injury to a pupil through a culpable and unlawful breach of his duties of supervision; this is so even where cover is provided under a social insurance scheme governed by public law.


Autonomous interpretation• Continuity between Brussels Convention and Regulation • The Vienna Convention on the Law of Treaties cannot be applied to

Regulation Brussels I (not international treaty)• Interpretation of the Brussels Convention:1. Questions of doubt to be answered without redress to a specific national

law2. Construction of terms and the gap-filling to be inferred from the

Convention itself


Autonomous interpretation• Interpretation of the Regulation Reference is made to the EU law as a whole, not to a specific national law

(exceptions) Does not exclude the use of the material on which the Regulation is based Allows reference to instruments that have influenced the wording of

Regulation (CISG, Rome Convention…) -> broad interconventional approach


Autonomous interpretation• The interpretation criteria: Verbal Historic Systematic Purposive interpretation (effect utile doctrine – single area of freedom,

security and justice)

Comparative interpretation General conformity with EU law Conformity with Human Rights (ECHR)


Regulation Brussels I• Scope of application:1. International element2. Territorial scope3. Material scope 4. Personal scope5. Entry into force6. No court discretion


Regulation Brussels I• Article 1

„This Regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters.“

->sets the scope ratione materiae of the Regulation


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Thank you for your attention

PROJECT „THEORY – SKILL – EXPERIENCE“reg. No. CZ.1.07/2.2.00/15.0198, Operational Program Education for Competitiveness

european private international law - 7.3.2012 judr. tereza kyselovská

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