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European Private International Law

MODULE I. INTRODUCTION AND SOURCES

Lesson 1. Introduction

1. What is Private international law? Understanding different terminology.

The body of law devoted to providing solutions to international private relationships, i.e. a relationship
is considered to be international if its elements are connected to more than one country or
State/state. These elements may be: parties’ nationality; domicile, habitual residence, the locations of
assets, the location of an action, etc.…

In order to understand the essence of PIL as a discipline, as a system or body of law 3 ideas must be
highlighted:
• Despite the international element within the relationship, till very recently most of the
solutions were to be found at a national level. Each state has its own system of PIL.

• For this reason, the perspective of the State of the forum (ie. The state from which a cross-
border situation is built up and solved (the state of the seized court) is of maximum relevance.
This is the state from which we are facing the relationship, the one reaching the solution, the
state whose court is hearing the case, or from which the rules are giving the solution.

• Due to the fact that States are sovereign à there is a need of international cooperation

Conflicts of laws: a name used in common law jurisdictions.UK USA. Both national (inter-states) and
international conflicts.

Here for instance we have European private international law + Spanish private international law =
different rules coming from different sources and we need to find out which rules are applicable in
each case.

The Hague Convention: the EU (or ECC) had little interest in PIL, and now this is an almost full
competence of the EU. The decisions of The Hague Convention are meant to harmonize European
regulations. The idea is to have, not really the same law (unification), but following the same principles,
although the allowed discretion of the state.

Common law countries call PIL “choice of law” because one of the main issues is that there are often
many laws and one needs to choose between them in order to determine the governing law of the
case.

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2. Conditions of existence

The world is divided into states, which are sovereign and then every state has its own legal system.
This is due to the fact that societies have different needs, for political reasons, tradition, cultural
identity, etc. States may differ in the solution of the cases due to the difference of their legal systems.

1) Legal pluralism and legal diversity as the starting point of the discipline.
a. Different legal systems with different solutions to similar problems
b. Different jurisdictions

After the Westphalian peace states are sovereign and every state has its own system or
tradition. Different legal systems offer solutions to similar problems.

As a result, there are different jurisdictions, so far as different societies have different needs.
For instance, religion in Arab countries is very linked to politics, which is not the case in
Christian territories. Also, political reasons play a role, in terms of market openness for
example. At the end, it is all a matter of historical cultural identity. In family law for instance,
everything will depend on the concept accepted as family. Civil law and common law traditions
are also different.

An important fact is that State does not equal legal system. Many states nowadays, such as
the US or even Spain, are plurilegislative states. In civil matters in Spain, we can have a
plurilegislative regulation. The problem is that in an interregional relationship (Catalan marries
Valencian) the issue arising is very similar to an international one, but among jurisdiction,
application and enforcement, there is only a problem at the level of application. This part of
the law dealing with interregional conflicts is interregional law. We will solve the interregional
problems according to the same rules used to solve international issues, under the preliminary
title of the civil code (although the civil code rules are derogated for interregional situations).
We need a new rule to solve interregional problems.

This fragmentation and diversity causes legal uncertainty.

2) The existence of cross-border private relationships. Relationships and transactions have
connections with more than one jurisdiction or legal system. When a foreign element is
introduced in a relation everything changes. Depending on in which country you litigate the
result can be radically different. For example, UK courts are not able to lower penalty clauses
in the event of a non-performance or US courts allow for punitive damages to be imposed on
companies. Thus, it is crucial to know how to manage these international elements.

These two conditions (legal pluralism and cross-border private relationships) lead to problems because
there is not a clear legal framework: PIL aims to give continuity to the relationship. Uncertainty is the
main issue arising from these cross-border relationships, and we need PIL to give continuity to these
relationships.

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a) Private relationships and transactions have connections with more than one
jurisdiction/legal system

Ex.1. A German company (Handte Germany) manufactures goods and sells them to a French
company, Handte France. Handte France resells the products to a second French company, TMCS. The
goods are (apparently) defective.
Ex.2. Internet purchase. A consumer domiciled in Barcelona buys goods from an American brand
through the internet.
Ex.3. A tort is committed in Germany and the resulting damage arises in France
Ex.4. Same sex marriage between a Spaniard and a Russian.
Ex.5. An English man living in Benidorm dies in Spain. He has goods in UK, France and Spain. 2 sons.
One French ex-wife. One Spanish wife.

b) Different legal systems treat similar problems in different ways

Ex1. Penalty clause: it entails a remedy agreed in a commercial contract in the case of non-
performance of an obligation.
It is an attempt to estimate in advance the likely loss deriving from the non-performance of an
obligation

Judicial powers over penalty clauses:
If the clause is valid, English judges are not able to reduce the agreed amount. Even if the clause is
valid, French or Spanish judges are able to reduce the agreed amount

Ex2. Punitive damages: Such damages «are given to the plaintiff over and above the full compensation
for his injuries, for the purpose of punishing the defendant, of teaching him not to reoffend, and to
deter others from following his example» [Prosser (1971), p. 9]-. Common Law institution. A civil Law
judge cannot punish the defendant. He can ask for compensation, but not as a punishment.

Ex3. Different conceptions in family law. Clash of civilizations:
• Polygamy
• Repudiation
• Surrogate motherhood

To sum up, states may differ in the resolution of private situations.

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3. Object

We have seen that for the existence of private international law we need two conditions; relations
among countries and the existence of different legal systems and jurisdictions. When we talk about
Private International Law we are talking about a private law relationship with a foreign element.

The object is the existence of the foreign element that leads to private international relations. The
foreign element can come from anywhere (i.e. nationality of the parties, goods come from another
state, contract celebrated abroad...). The foreign element can be either objective or subjective. Even
internal relationships can form part of the object of private international law because of the willingness
of the party to introduce international law.

The object of PIL is Private international relationships. There are two main elements there:

i. International: foreign element à The object must be international, thus, have a foreign
element within the relationship. The international thing is the relation not the court.

a. Any element of the relationship can be foreign. But what about party autonomy?
Party autonomy is allowed. The answer of the question regarding whether it is
acceptable to be governed by PIL if the only international element is party autonomy
will be given to us by the national rules of each country. As we’ll see it is not enough
in BIR. So, even if we transform the national situation into an international situation,
the solution given comes from national law/ that situation belongs to PIL.

b. Relevance of the foreign element. Is the relevance of the foreign element something
to take into account? Mazda is a Japanese brand. A Spanish dealer sold the car to a
Spanish buyer. At that point, any international element is relevant. If the buyer decides
not to pay the full amount, the foreign element (place of production of the car) will
not be relevant, it will be diluted. But if there is a reclamation from the buyer to the
company, then it will be relevant. “A priori” any international element is relevant.
Afterwards it may be proved that is not relevant enough, but we can’t know it until
we have analyzed the case (we will never know at the starting point.)

c. Relativity. In a marriage between a Spanish man and a French woman, the foreign
element depends on the country. The foreign element however has been diminished
with the European regulation. It is “less foreign”, or the way we face it is in a way that
it is less foreign.

ii. Private:
a. Between private persons: persons not performing their activity as a public body. The
important element is how the person performs the activity and not its category per se.
b. International/foreign element: relationships that are connected to more than one
legal system.

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4. Private international law: What is it about? Three main areas: jurisdiction,
applicable law and recognition and enforcement.

The three main questions to be answered in Private International Law are:

1. Where can or should litigations be initiated? Who has jurisdiction over the matter?

2. Which law will the court apply? Which is the applicable law? Many times, local judges need to
apply international law since otherwise we cannot guarantee the continuity of private
international law. It must be noted that iuri novit curia doesn’t apply to foreign law, thus, the
parties need to prove that law before the judge.

3. Where can the resulting judgement be enforced? This is crucial because the judgment may
need enforcement in another state. When judges perform their power, they do it in a
territorial state. In order to allow the judgments to have effect in other states there are many
recognition mechanisms since this is very important to trade.

There’s a fourth question relating to cooperation between authorities, especially in procedural law.
Sometimes there are actions that must be done in other states such as notify a party that’s located in
a foreign country. In this case the Spanish court must ask for assistance to the foreign authorities.


5. Different perspectives / reality principle

• There is no a a global private international law. That is the idea of the Hague to create a global
PIL.
• PIL is just a part of a national legal system: every state has its own PIL
• This assumption = relativity principle (we will partially destroy it because of the EU integration)
o Why will this be the starting point?
o Cooperation between states à relevance of the EU

Now we have European private international law + national law.

In principle, every state has its own private international law which is part of its own legal system.
However, this is changing. If every state has its own set of private international law rules there is no
certainty since the solution to every case would depend on the international law of each country. At
the same time, there are global problems that should be tackled together with a common international
law. This is why the tendency today is to cooperate and unify the rules on private international law.
An example of this cooperation and tendency towards harmonization is the Hague Conference on
Private International Law.

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6. European Private International Law

There are three dimensions: internal (interregional), European and international. At all dimensions the
problems are very similar, but sometimes those conditions vary due to European integration. In this
course, we’ll study in depth European Private International Law. We’ll see that if the relation is only
within the EU the two initial requirements change a bit since legal pluralism is reduced within the union
and perhaps the foreign element is not as relevant. This is translated into that we may treat a relation
within member states which is different than if there is a non-member state. Double perspective:

• Ad intra: private relations within member states
• Ad extra: private relations with non-member states


7. Different legal sources / levels of rule-making

• National law level = sovereign national States. In the case of Spain there’s no private
international law code so the private international rules are very fragmented through different
laws such as the Código Civil, LOPJ, LA...

• International Law level: international conventions. The current tendency is to unify the
international rules through conventions. In such cases the source of the law is international
but the legislator is still the state. Nobody will oblige a country to be part of a convention. It is
usually the states who negotiate among them and they decide to unify the law and have a
treaty but now because of the ad extra power of the EU, sometimes it is not Spain but the EU
acting in the Hague conference and ratifying the convention in the name of the member states.
We have to know when it is the spanish legislator negotiating or the european union. The
space we have for the spanish legislator is very small.

• European Law level: the law maker is the EU. In this case, the legislator changes and it relies
on the European Union. The states have empowered the EU to legislate in some maters.


8. Purpose and methods

The purpose of Private International Law is:
• To facilitate private actors to engage in private relationships
• It is the bridge between different legal systems. How?
o Continuity: Allows the relationship to keep being valid
o Legal certainty in a multi-jurisdictional world

The idea of mutual recognition is that a judgement issued by a member state shall have the same effect
in another member state as their own judgements. This is called exclusion of exequatur. Example: A
judgement rendered in France can be executed in Spain without any exequatur procedure.

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Recapitulation (the most important):

• Conditions: legal pluralism + cross border relations



• Object: private + international


• Jurisdiction + applicable law + enforcement

• The solution is national in nature




Case of study

A Spanish company, domiciled in BCN acting as a plaintiff against a French company. The Spanish
company (buyer) claims failure of the purchase agreement since the goods were not delivered as
agreed in terms of quality and quantity. Questions:
a. Where can the Spanish company sue the French Company? Jurisdiction
b. Which law will determine whether the French company fulfilled the contract correctly? Choice of
law/applicable law
c. Will a judgment issued in France be enforced in Spain? Recognition and Enforcement


1. JURISIDICTION
What are the options for the Spanish company?
A) Bring court proceedings in France?
Will the French court accept jurisdiction?

B) Bring court proceedings in Spain?
Will the Spanish court assert jurisdiction?

Answer: Brussels I Regulation Recast (art. 4 and art. 7.1.b of the Regulation provide that either the
French court or the Spanish court may have jurisdiction).


2. CHOICE OF LAW
A) Which law will the competent court apply to solve the case? Which law will therefore be the
governing law of the contract? According to which rule (uniform law or conflict-of-laws rule)?

B) Both France and Spain are contracting parties of the United Nations Convention on Contracts for
the International Sale of Goods (Vienna 1980): uniform law. Chapter III establishes the obligations of
the seller and the buyer and the remedies in case of breach of those obligations. à between France
and Spain we have unified a substantive solution for sales.

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C) Is Regulation 593/2008 on the law applicable to contractual obligations (Rome I) (contracts
concluded after 17th December 2009) also applicable? In which cases? Usually, some parts of the
relationship might not be covered by the Vienna Convention. Therefore, the choice of law will apply
whenever the Vienna Convention will lack the needed provisions.


3. RECOGNITION AND ENFORCEMENT
Will the Spanish judgment be enforceable in France?
Will the French judgment be enforceable in Spain?

Brussels I Regulation recast contains a specific regime that facilitates the recognition and enforcement
of judgements coming from a MS.


Reading: The Role of Private International Law in Contemporary Society: Global Governance as a
Challenge

While in the United States the primary concern seems to be the extraterritorial effect of the law, the
approach of the Dutch was to formally assess its international jurisdiction based upon the applicable
jurisdiction rules and, as the second prong of private international law analysis, determine the applicable
law upon the conflict rules. (…) It is against this background that the interconnection of global governance
and private international law becomes evident and, thus, the interest in revisiting the foundations of the
discipline. (…) At the same time, this example shows that transnational litigation is truly becoming globally
connected, or, as it has been labelled in US doctrine, multipolar.

This development highlights the simple fact that States are not self-contained areas, but that they are closely
interrelated, for which reason the quest for a better global governance has to be on their legislative agenda
as a primary goal. That brings private international law and its mediating role to the forefront.
This point has first been understood in the various common law systems, where there has traditionally been
a closer interaction between private international law and public law. This is particularly the case in federal
states, such as the United States and Canada where the individual States could never legislate without
taking into account that they are part of an international community and thus that there is a public
dimension to every private international law situation. However, also in the European Union, where civil law
traditions are dominant, private international law is more and more utilized to facilitate policy objectives,
with as primary goals to facilitate the proper functioning of the internal market and the protection of
certain ‘weaker parties’ designated by EU law.

In the same vein, political considerations of private international law are gaining importance in the
academic debate on the coordination of legal systems. However, post-industrialization and
internationalization have shifted the focus of this debate, no doubt because of the State’s helplessness to
impose their policies in this context, making it more urgent to undertake common steps with a view to
protecting global commons. Global commons is a term cherished by public international law referring to
resources or areas beyond political power, including for example the protection of human rights, labor
rights and environmental protection. In other words, it is time for a more holistic approach.




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Lesson 2. European Private international law

1. Why European Private International Law?

Even if there are international elements within the relationships the solution is national in nature. Until
very recent times, each state has its own private international law system. The problem when there
are different private international law is that both systems can have jurisdiction. We can solve this
problem by cooperation between states in terms of unification.

We have conventions which aim to unify substantive law. We say the Vienna Convention, the rules
within it are substantive law rules. Unification is needed in order to achieve legal certainty and deal
with international situations:

- Unification of Private Law
o Uniform PL concerns the unification of substantive PL, e.g. material provisions on sales
contracts, as contained in the Vienna Convention on the Sales of Goods (CISG) or on
contracts for the carriage of goods, such as the CMR Convention on carriage of goods by
road.
o These conventions set out substantive rules of PL that are to apply only in an international
situation. Some apply to internal situations as well (Geneva Conventions on bills of
exchange, 1930)
o The ideal of uniform PL is almost impossible to achieve

However, this is very hard because it would suppose sovereign states to renounce to features that
might be extremely defining of their own culture, history or tradition.

- Unification of Private International Law: We have seen that one of the main objectives of PIL is to
give continuity and certainty to international relations. A possible solution to that problem could
be the unification of PIL. The first idea was to start with a whole global international law. However,
this was not possible because states were and are reluctant to give part of their sovereignty.
Besides, it will not only be difficult to agree on a particular law, but also on the interpretation of
the rules.

This unification is easier than PL unification, we have different international organizations which
aim to unify this body of law.
o Relevance of The Hague Conference but also other International organizations which aim
to unify private international law (Council of Europe, CIDIP)
o Universal international treaties - disadvantages:
- narrow scope of application (in substantive terms) (see the 40 Hague resolutions)
- there is no powerful decision-making center
- relatively small number of treaties
- relatively small number of contracting parties
- lengthy procedure (negotiations of conventions are time consuming; coming into
force, ratification, adoption into national law), and in the event of a modification,
the whole process needs to start again

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How did the EU react?

First: elaborating treaties with a special regime (closed)
Later: EU legislation (secondary law, mainly by means of European Regulations).

This actions taken by the EU are done always complying with the subsidiarity principle. Such principle
indicates that EU law should only be applied when it could better be solved by EU law rather than
national law. It is expressed in Article 5(3) TEU and requires that the EU regulates only matters where
the objectives of the proposed action cannot be satisfactorily achieved by the MS on the national level
and can be better achieved by the EU.


2. Historical development of EU private international law

Europe took little interest in issues of PIL in the 1957 Treaty on the EEC. The foundation treaty focused
on creating an internal market. The idea behind the European Economic Community (EEC) treaties
was an economic one, they were not concerned about private international law. In fact, they focused
on public international law in order to stablish boundaries and a common market but not on private
international law.

For this communitarization of PIL we can distinguish three phases:

1) Coordination

When the EEC was founded in 1957, the Rome Treaty focused on the creation of a common market
based on the freedom of movement for goods, persons, services and capital. Therefore, the rules were
almost exclusively rules on administrative and other public law. The original Rome Treaty contained
practically no mention of Private International Law with one exception:

Art. 220 Rome Treaty (today 293 TFEU)
“Member States shall, so far as is necessary, enter into negotiations with each other with a view to
securing for the benefit of their nationals:
- the protection of persons and the enjoyment and protection of rights under the
same conditions as those accorded by each State to its own nationals;
- the abolition of double taxation within the Community;
- the mutual recognition of companies or firms within the meaning of the second paragraph of
Art. 58, the retention of legal personality in the event of transfer of their seat from one country
to another, and the possibility of mergers between companies or firms governed by the laws
of different countries;
- the simplification of formalities governing the reciprocal recognition and enforcement of
judgments of courts or tribunals and of arbitration awards.
- the simplification of formalities governing the reciprocal recognition and enforcement of
judgments of courts or tribunals and of arbitration awards.”

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Therefore, Member States (MS) undertook to enter so far as is necessary into negotiations with each
other with a view to securing recognition and enforcement for the benefit of their nationals. This
article is telling the state that if you think it is necessary for your national and of course, the proper
function of the internal market, you can negotiate conventions. This included: mutual recognition of
juridical persons and the simplification of formalities governing the reciprocal recognition and
enforcement of judgments and arbitrations awards.

Following this article three conventions where negotiated:

• Brussels Convention on Jurisdiction and Recognition and Enforcement of Judgments in Civil

and Commercial Matters (1968). First, we can see it goes a little bit further by adding jurisdiction
(to recognition and enforcement). The Member States thought that for those freedoms to be
effective, another freedom was necessary: of judgment. The reason behind is that certainty was
necessary, the unique market was not going to work if we do not have the regulation that
provide us with this certainty. The Brussels Convention had the following characteristics:
o It is an international convention, and therefore it needs the signature, the ratification,
and the whole process.
o It is a closed convention meaning that it is linked to the EU (only signed by MS): it was
signed by 6 MS at the beginning; then each time a new MS became part of the EU had
to sign it with the whole process again: negotiation, signature, ratification...
Consequently, there are a lot of Brussels Conventions which is something difficult to
manage.
o The ECJ had not the power to interpret it. This was solved by the Luxembourg Protocol
(1971), which conferred the authority of interpretation of the Brussels Convention to
the European Court of Justice. The ECJ is the one that guarantees a common
interpretation. We will see which judges from the MS can ask about the interpretation
of a given provision to the ECJ*

• Lugano Convention: EFTA states (today Switzerland, Norway, Iceland). The Brussels
convention was closed and, therefore, could only be signed by MS. In order to allow to have
common rules on jurisdiction, recognition and enforcement with non-Member States the
Lugano Convention was created. The LC has been signed by those states together with the EU.
The idea was to extend the Brussels convention to those states which were not part of the EU.
Most of the EFTA states are now part of the European Union. Why did the MS ask the ECJ for an
interpretation on who had the power to negotiate the Lugano Convention? The question behind
that was if the EU had the power to negotiate as a single institution. We’ll answer this question
in unit 3.

• Rome Convention on the Law Applicable to Contractual Obligations (1980). This is a

multilateral convention. It is said that it is a need to Brussels convention to be effective. Multiple
jurisdictions provide the ability to choose which judge will be in charge of a given case (forum
shopping). Therefore, parties are going to choose the judge that benefit them the most. Each
state has its conflict of laws rules, and therefore, the applicable law might change. Through the
Rome Convention MS decided to eliminate this forum shopping by unifying conflicts of law rules
and stating the applicable law.

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*These conventions were interpreted only by the ECJ but there were official reports made by academics in
which those scholars interpreted the rules of the convention. Now the regulations have no reports but we
still use them. The role of the reports is more or less done by the preamble of the regulations.

At that time, the recognition and enforcement of arbitral awards were already within the NYC and all the
MS were part of the NYC. They thought there was no need to modify these rules. Arbitration is excluded
from the Brussels Convention.

Why did the MS decide to uniform the rules on jurisdiction? Unifying rules and jurisdiction makes the
enforcement easier. When you recognize or enforce a judgement you don’t do it without any control. The
first thing to control is the jurisdiction: maybe the judgement (from France) that you try to enforce (in Spain)
is something in which you had jurisdiction as well. If you unify the rules it is something that you don’t have
to do anymore. It is a way of simplifying the conditions to recognize the judgements. You do it through the
principle of mutual trust. The professor does not think that we have achieved the principle nowadays, as
far as we don’t trust the same a Polish judgement than a French judgement.

2) Cooperation

Art. K.1 of the Maastricht Treaty reads: “For the purposes of achieving the objectives of the Union, in
particular the free movement of persons, and without prejudice to the powers of the European
Community, Member States shall regard the following areas as matters of common interest: (...) 6.
judicial cooperation in civil matters. (...).”

The EU started focusing on Private International Law. One of the main changes was the introduction
of the cooperation in civil law. The Maastricht Treaty places judicial cooperation in civil matters under
the third pillar of the European integration, and created in this manner a legal base for the negotiating
and adoption of more comprehensive EU conventions (not regulations and directives) in the field of
PIL.

The three pillars were:
• European communities pillar handled economic, social and environmental policies. It
comprised the European Community (EC), the European Coal and Steel Community (ECSC, until
its expiry in 2002), and the European Atomic Energy Community (EURATOM) à Control EU
level
• The Common Foreign and Security Policy (CFSP) pillar took care of foreign policy and military
mattersà Control EU level
• Police and Judicial Co-operation in Criminal Matters (PJCCM) brought together co-operation
in the fight against crime. This pillar was originally named Justice and Home Affairs (JHA) à
Control MS level

This structure was introduced with the Treaty of Maastricht on 1 November 1993, and was eventually
abandoned on 1 December 2009 upon the entry into force of the Treaty of Lisbon, when the EU
obtained a consolidated legal personality.

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The EU had interest on creating a judicial cooperation in civil matters law, however, the legislators
were still the Member State since we’re in the third pillar. Therefore, since the law maker still relied
on MS in order to improve judicial cooperation in civil matters, negotiation and agreement between
different MS was required in order to create the wanted conventions.

Participation of the European Council in the law-making decision process: The Council could initiate
the process and be involved in these negotiations but the power still relied on MS. The achievements
under the cooperation phase were the following:
• Convention on Insolvency Proceedings (1995).
• Convention on the Service of Process (1997).
• Convention on the Service of Judicial and Extrajudicial Documents in Civil and Commercial
Matters (1997).
• Convention on Jurisdiction and Recognition and Enforcement of Judgments in Matrimonial
Matters (1998).

Three main ideas of this phase:
1. Judicial cooperation in civil matters is placed under the “third pillar”
2. The Legal law maker is still the state
3. Participation of the European council in the law- making decision process

The achievements under the cooperation phase were the following:
- Convention on Insolvency Proceedings (1995). Basis on Art. 220 TECC
- Convention on the Service of Judicial and Extrajudicial Documents in Civil and Commercial
Matters (1997).
- Convention on Jurisdiction and Recognition and Enforcement of Judgments in Matrimonial
Matters (1998).

These three important conventions were negotiated and signed but did not enter into force.



3) Comunitarization/Europeanization (empowering the EU to legislate)

It was only in 1997 when the Amsterdam Treaty introduced a wider concept of judicial co-operation
and brought the three core issues of PIL into the scope of the EC (Article 65 under (a), third indent; and
(b)). à This is the most important moment of PIL in the last century, giving rise to a new legislature.

The Amsterdam treaty introduced in title 4 passed the cooperation from the third pillar to the first
pillar. This means that MS give the European union the power to enact legislation on those issues. Now
we have the national one but also the European.

Legal basis – Article 65 of the Treaty establishing the European Community (1997):

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“Measures in the field of judicial cooperation in civil matters having cross-border implications, to be
taken in accordance with Article 67 and in so far as necessary for the proper functioning of the internal
market shall include: (...)
a. improving and simplifying:
- the system of cross-border service of judicial and extra-judicial documents
- cooperation in the taking of evidence
- recognition and enforcement of decisions in civil and commercial cases, including decisions
in extra-judicial cases;
b. promoting the compatibility of the rules applicable in the Member States concerning the conflict
of laws and of jurisdictions;
c. eliminating obstacles for the good functioning of civil proceedings, if necessary by promoting
the compatibility of the rules on civil procedure applicable in the Member States.”
(…)”

Art. 65 reinforces cooperation in civil matters having cross-border implications. It links the judicial
cooperation with the internal market, either it is necessary for the market or for the states.

Main features of the period:
• Moving matters of private international law from the third to the first pillar
• European Legislature
• Creation of the “European Judicial Area”
• PIL at the service of European law
• EPIL as a tool to achieve the European goalsàchange of paradigm
• EPIL does not only pursue the goal of certainty: it is based on the underlying aim of mutual
recognition and trust. Its goal is not only to pursue certainty, but also mutual recognition and
trust. Example: a judgment from Spain could be directly recognized and enforce in another country.
We haven’t achieved this stage yet, in order to do so, we need to gain trust on our (meaning MS)
courts. Let’s see if we are able to achieve this trust; are we able to trust all MS in the same way?
• EPIL an instrument to complete the fundamental freedoms of persons, goods, services and
capitals

Even though we have achieved mutual recognition, we still have some reasons why a state can deny
the enforcement of a judgement. There is a control in our national court for judgments rendered by
other courts. For instance, a Spanish court could deny the enforcement of a judgment from another
country because it goes against our public policy (meaning human rights, public order, principal or
fundamental values...) or because it is incompatible with a judgment rendered by our court or another
MS court.

When we say that it is probably one of the most important moments for PIL is because a paradigm
changes. Now, PIL aims and has the objective of facilitating European integration. We use PIL for
European integration and this is something that never happened before. It is based on the principle of
mutual trust. This means that we have been able to build up this system because we trust on the others
and this in fact has led us to an ideal which is the mutual recognition (a decision from a Member State
is directly enforceable in another MS, like having a national decision). However, we don’t trust all
courts on the same way.

PIL is an instrument to complete the fundamental freedoms: goods, services, people and capital.

14

Article 65 established 3 limits:

1. It needs a cross-border implication: it could not serve as the legal basis for measures
concerning purely domestic substantive or procedural situations unless these situations had,
at least to some extent, an international aspect.

2. It must be necessary for the good functioning of the internal market: measures based on that
article could be taken only insofar as necessary for the proper functioning of the internal
market. The subsidiarity principle also contributes to this limit.

3. Since it was introduced in Title IV (Visa, Asylum, Immigration title and Other policies related to
free movement of persons), three member states decided not to join these provisions: UK,
Ireland and Denmark. They decided not to join due to the visa and immigration provisions (not
to the ones referring to civil law).
a. For those states (UK, Ireland and Denmark), another policy was created. This policy is
known as opt-in policy; they decide on every single regulation if they want to join or
not.

Therefore, we should bear in mind the special situation with UK, Ireland and Denmark. In Denmark
case, every single regulation needs a special convention between Denmark and the EU. On the other
hand, the UK and Ireland can be considered as MS in most cases. Every time the EU enacts a new
regulation the UK and Ireland decide if they want to join or not. At the beginning the UK and Ireland
decided to be almost on every regulation. When BREXIT comes a reality they will be out of everything.

Lisbon Treaty (TFEU)

Title V, «Area of Freedom, Security and Justice» (AFSJ), Article 67 of the Treaty on the Functioning of the
European Union (TFEU):
4. The Union shall facilitate access to justice, in particular through the principle of mutual recognition
of judicial and extrajudicial decisions in civil matters”.

It must be noted that the EU does not follow the same regulation process for business rules than for
family rules. The latter requires unanimity while the former just requires majority. Family law
measures does not follow the ordinary procedure but the unanimity procedure. When unanimity is
not possible to be achieved, the council decides to ask for an enhanced cooperation. It is another way
of fragmentation. In some subjects we don’t even have the same rule through all member states. The
situation was as follows until the Lisbon Treaty. Afterwards, Article 65 EC was replaced by Article 81
TFUE which changed several things.

15


Art. 81 TFUE
1. 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.
2. For the purposes of paragraph 1, 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:
(a) the mutual recognition and enforcement between Member States of judgments and of decisions in
extrajudicial cases;
(b) the cross-border service of judicial and extrajudicial documents;
(c) the compatibility of the rules applicable in the Member States concerning conflict of laws and of
jurisdiction;
(d) cooperation in the taking of evidence;
(e) effective access to justice;
(f) 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;
(g) the development of alternative methods of dispute settlement;
(h) support for the training of the judiciary and judicial staff.
3. Notwithstanding paragraph 2, measures concerning family law with cross-border implications shall
be established by the Council, acting in accordance with a special legislative procedure. The Council shall
act unanimously after consulting the European Parliament.
The Council, on a proposal from the Commission, may adopt a decision determining those aspects of
family law with cross-border implications which may be the subject of acts adopted by the ordinary
legislative procedure. The Council shall act unanimously after consulting the European Parliament.
The proposal referred to in the second subparagraph shall be notified to the national Parliaments. If a
national Parliament makes known its opposition within six months of the date of such notification, the
decision shall not be adopted. In the absence of opposition, the Council may adopt the decision.


There are some measures:
Judicial cooperation in civil matters having cross-border implications (PIL)
• Jurisdiction of courts
• Proceedings before courts
• Conflicts of laws
• Mutual recognition and enforcement of judgments
• Cross-border service // taking of evidence

Legal framework: 17 regulations + 2 directives. The most important is Brussels I, Brussels II, Rome I,II,III
and IV Regulations.

16

IMPORTANT:
• Ad intra: (between MS) principle of subsidiarity
• Ad extra: (external dimension) very controversial issue1: the scope of the external competence
of the EU as regards civil judicial cooperation. There is no express conferral of powers.
o Art. 216 (1) TFEU: “The Union may conclude an agreement with one or more third
countries or international organizations where the Treaties so provide or where the
conclusion of an agreement is necessary in order to achieve, within the framework of
the Union's policies, one of the objectives referred to in the Treaties, or is provided for
in a legally binding Union act or is likely to affect common rules or alter their scope.”
o The notion of implied powers
§ When necessary to achieve treaty objectives within the framework of a EU
policy (ex civil judicial cooperation)
§ Where the common rules which have been established in the field may be
affected by the proposed International agreement.

Each time a state wants to sign a convention with a third state it has to demand it to the EU and the
EU will decide.

From the very beginning we don’t have a coherent system. It is not a coherent structure. One of the
main gaps of this legal framework is that we have unified PIL but we have not unified Private Law. It is
very difficult to find and define or interpret institutions because we don’t have the same institutions.
Even if we’ll study the Brussels Regulation, we’ll see that to define civil and commercial matters is a
big deal because there is not a common definition. The main problems are on defining. Another
difficult thing is that we don’t have a general part of private international law. We don’t have federal
cases going to a federal court. We always have national courts and an ECJ court interpreting rules. This
makes a very complex system.

- Civil, commercial and family law (substantial law) remain almost entirely national
- PIL is also private law
- Current gaps difficulties:
o No EPL, no common rules, notions or framework. The main difficulty could be solved
by unifying substantially. We do not agree, we do not have same legal systems.
Without unifying those legal systems we will not be able to solve the main problem.
o No system: harmonic set of rules. Therefore, we will need to know which regulation
applies to each case.
o No general part of EPIL: risk of inconsistency.

1
In “ad extra” situations: Apparently the MS are transferring or conferring the power to the EU but something
that was not clear was the scope of this power. What happens between member states and third states? There
are 3 important opinions on the issue (from three different conventions). There is nothing in Art. 81 about an
express conferral of external powers. Now we have art. 216 saying that there are implied external powers which
come either directly from the treaty and the competences given from the treaty or where the agreement is
necessary. The example of the Lugano convention is clear; in the negotiations of the convention, is the EU the
one that negotiates? The ECJ said that even if there is no implicit external competence it is an implied external
competence because in order to achieve the objectives of the area of security and justice we need the European
union negotiating. We have to go case by case. We cannot accept a general implied or external power of the EU.

17

o No European Constitution (somehow relieved with the Charter of Fundamental
Rights)
o No federal jurisdiction/the role of the ECJ is different Article 81 TFUE states that: “1.
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…
- Advantages:
o Every MS has its own private international law rules with different solutions:
unification of PIL by the EU gives a single tool to face these problems at least at a
European level
o Diversity of national PIL has additional costs/requires effort
o The application of national PIL may turn into an obstacle for the internal marketàit
may discourage European transactions
o Role of the ECJ; role of Commission; intensive cooperation (European Judicial
Network)

Even though it has some advantages, we gain trust. One of the biggest problems is the legal education.
Judges, courts, etc. are not aware. If national courts don’t know how to apply European law, the system
is not working. The big first issue is jurisdiction.

The idea is that arbitration has a different nature. It has a contractual nature and jurisdictional nature.
However, it has no executive power and the award may go to a court in order to be enforced.

Main features of EPIL

1. Evolutionary nature (evolution not yet finished):
o Coordination
o Cooperation
o Comunitarization

2. Special position of UK, Ireland (opt-in) and Denmark (absolute opt out)

3. Wide scope of EPIL:
o All three questions covered (jurisdiction, applicable law, foreign judgments) and cooperation
(Eur. Judicial Network / Atlas)
o EPIL encompasses commercial, civil, family law (art. 81.3 TFEU)
o Substantive and procedural Law

18


MODULE II. JURISDICTION AND RECOGNITION AND ENFORCEMENT

Lesson 3. Jurisdiction – Brussels I Regulation Recast

1. General questions. What is jurisdiction?

International jurisdiction is the judiciary jurisdiction. One thing is “international jurisdiction”, or
“normas de competencia internacional””, which tells us whether a court has jurisdiction to hear an
international case. “International jurisdiction” must be differentiated with:

• “Jurisdiction” alone, (“potestad jurisdiccional”), which is wide in scope: it covers both national
and international proceedings, and it it’s the judge’s duty to judge and execute the resolution.
• National rules on jurisdiction. In order to determine whether the civil court or the criminal
court will hear the case there are rules. As well as to determine if the court with jurisdiction is
in Madrid, Barcelona, Mataró, etc. We refer to procedural law.

The judge can only hear cases within the territory of Spain. Anything the Spanish judge may do outside
Spain requires the cooperation with a foreign authority, as the judge does not have jurisdiction outside
the national territory. We are going to talk only about this, exactly, the international jurisdiction of
national judges.

The international rules on jurisdiction may be found in our system in different sources.

1. European: There are some principles to follow to decide which rules the judge has to apply in
order to determine each jurisdiction. It first applies European rules, because of the principle
of supremacy. But, European law only applies as long as there is a European rule applicable to
the case. Indeed, we are not only talking about a vertical hierarchical pre-eminence, but also
about competence, which is horizontal.

2. International: If the issue is not foreseen in European law, which is composed of regulations
and their recasts (among which we find the Brussels I recast), the judge will have to look up in
the international rules. These are mainly composed of the Lugano Convention. However, the
Lugano Convention does not transcend the borders of Europe.

3. National: Finally, if no solution found in these two steps, one should find a solution in national
law, which is the LOPJ.

The rules of jurisdiction will tell us, from the Spanish perspective, when are the Spanish courts
competent to hear an international case and, from the European perspective, which courts from the
Member States have jurisdiction to hear international disputes.

We are going to deal now with the Brussels I Regulation Recast (need to know by heart). Then, when
we will turn to jurisdiction rules of Brussels II.

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A) General remarks

The international jurisdiction refers to the rules asserting and assigning the jurisdiction to a state. As
we’ll study, these rules usually take one element of the relationship and link it to one state in order to
assign jurisdiction.

Every state has the power to establish its own rules on international jurisdiction. Meaning they have
the power to decide in which cases they want their courts to hear international cases. Nevertheless,
they are subject to two international law principles that must be followed:

- General prohibition of denying justice. If because of every state deciding when its courts have
jurisdiction there’s no court which has jurisdiction, we’ll see that there’s what is known as a
necessity fora. Meaning that we cannot deny justice and we must find the way to giving justice.

- Immunity. Immunity is granted to international subjects: international organizations, states,
head of states and foreign ministers and foreign diplomats.

This rules assigning jurisdiction are based on reasonable features usually. However, it’s possible for a
state to decide to widen the jurisdiction of the courts unreasonably and this cannot be prohibited by
other States since they cannot interfere in the jurisdiction rules of a State. However, in this situation if
some States want to penalize this type of jurisdiction they can do so by not recognizing their
judgements.

If we know the court which is going to hear the case we know directly the court but, indirectly, the
procedural law to be applied which, in the end, will determine which will the applicable law be. This
happens because the courts will apply the conflicts of law rules of their state.

The conflicts of rules in Spain can be of national source (LOPJ), of international source (conventions)
or of European source. This conflicts of rules will tell us directly which state has jurisdiction and once
this is settled we’ll go to rules of national source of that state that say which courts within that state
has jurisdiction to hear the case. However, sometimes in some conventions not only say which state
has jurisdiction but also which court within that state.

Why was it important to unify the rules on jurisdiction?
• It unifies both Jurisdiction rules an RandE rules
• It creates like a federal set of rules with regard to jurisdiction
• It facilitates free movement of goods, persons , services and capitals = it facilitates the internal
market
• It is also the back door of the unification of private law. One of the biggest problems within
EPIL is the lack of EPL to answer questions like: what is a contract? A trot? A contract of a sale
of goods, a consumer, habitual residence… Brussels Convention and the ECJ case law is the
first step to build up a common private law
o Ensure and robust the free market: facilitates the internal market
o Provides certainty to the actors.
o Fill the gaps: there is no private law unification. This is based on notions, institutions
that differ from one state to the other. The ECJ from the beginning says that if we need
unification, in order to make it real we need an autonomous definition.

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Unification

Benefits of the unification of the rules of Jurisdiction
• Equal treatment of litigants
o High degree of predictably (where can I bring the proceedings)
o Less difficult filing an action abroad

• Facilitates the free movement of judgements

Autonomous interpretation

For this unification to be real, we need autonomous definitions, we need the same meanings. There is
a need of an autonomous interpretation of concepts. That is exactly what we see in the Case 29/76,
LTU v. Eurocontrol [1976] ECR 154.

1) Facts:

Eurocontrol, an international air-traffic-control organization with its seat in Brussels, sued LTU, a
German airline, for charges payable for the use of Eurocontrol’s services. The action was brought in a
commercial court in Brussels, and LTU challenge the court’s jurisdiction on the ground that the case
was not a commercial action. The court however held that under Belgian law it was commercial.
Judgment was given against LTU. When Eurocontrol tried to enforce the judgment in Germany, LTU
raised the same argument again: it raised that the proceeding where of a public nature.

2) Judgement:

“the concept in question must therefore be regarded as independent and must be interpreted by
reference, first, to the objectives and schemes of the convention and, secondly to the general
principles which stem from the corpus of the national legal systems”

If the interpretation of the concept is approached in this way, in particular for the purpose of applying
the provisions of title III of the conception, certain type of judicial decision must be regarded as
excluded from the area of application of the Convention, either by reason of the legal relationship
between the parties to the action or of the subject-matter of the action …..

Such is the case in a dispute which, like that between the parties to the main action, concerns the
recovery of charges payable by a person governed by private law to a national or international body
governed by public law….in particular when the use of their services in obligatory and exclusive.

The interpretation of the ECJ of that “civil and commercial matters” is made case by case, so many of
them must be taken into account in order to see whether the case is one of civil and commercial
matters. There is not a single definition of that concept of scope.

The difference between a public and a private body is also held to the logic of the ECJ.

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2. Brussels I Regulation Recast

The idea is that we need certainty to give security to the internal market.

The moment the Amsterdam treaty entered into force the Brussels Convention turned into a
regulation, which is a European piece of regulation that has a special feature because it is a regulation
(thus, directly applicative) but with the soul of a directive since in most of the cases there’s a time
between the entering into force of the regulation and the applicability in order to allow the Member
States to adapt their own legislation. The conversion into a regulation changed its name from Brussels
Convention to Brussels I Regulation.

In 2012 we started to apply the Regulation No 1215/2012 of the European Parliament and of the
Council of 12 December 2012 on jurisdiction and de recognition and enforcement of judgements in
civil and commercial matters (recast) (hereinafter, “Brussels I Regulation recast” or “BIRR”
indistinctively). Of course, it contained some “medidas transitorias” that still today will make us apply
the Brussels I Regulation in some cases.

Because Brussels I Regulation Recast is using concepts that we already have in our judicial system and
sometimes their meaning differs from one state to the other there is a need to uniform these terms in
order to achieve a homogeneous application. However, this was not stated in the regulation but
settled afterwards by the ECJ through case law. It must be noted that the ECJ will never give us a closed
definition of the terms but it will give us the general principles in order to find the definition and polish
the definition on a case to case basis.

One of the first examples the ECJ had to rule on are the concepts “civil and commercial”, whose
meaning must be settled in order to establish the scope of the convention of the Brussels I Regulation
Recast. In the case 29/76, LTU v. Eurocontrol the ECJ decided that there must be an autonomous
definition of civil and commercial for the whole EU, otherwise the aim of the BIRR wouldn’t be
accomplishable. We needed a coherent interpretation of the system. The ECJ stablished, that “the
concept in question must therefore be regarded as independent and must be interpreted by reference,
first, to the objectives and schemes of the convention and, secondly to the general principles which
stem from the corpus of the national legal systems”. On top of that, which is less relevant and more
particular to the facts of the case said that “certain judgements given in actions between a public
authority and a person governed by private law may fall within the area of application of the
Convention, this is not so where the public authority acts in the exercise of its powers”.

Lex fori: law of the state where the case is being judged.
Lex causae: law applicable to the case.

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The scope of application

Are the proceedings within the domain of the Regulation? 3 aspects
First, we need to look to the scope of application of the regulation, and analyse 3 aspects:
• Subject matter
• Geographical
o Territorial
o Personal scope of application or “European”.
• In-time

a) Subject matter – material scope of application

Art 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 or to the
liability of the State for acts and omissions in the exercise of State authority (acta iure imperii).” à
Subject matter = Civil and commercial matters

The nature of the court is not relevant, the relevant thing is the nature of the action, which must be
civil and commercial. When the state is acting as a public authority and public body, it is out of the
object of PIL.

Jurisprudence: C-172/91 Sonntag [1993] ECR I-1963 (claim alleging breach of duties of public office by
a German schoolteacher is civil/commercial even if not so seen in certain systems)

Facts: Thomas Waidmann, a pupil in a school administered by the Land Baden-Württemberg who, on
8 June 1984, during a school trip to Italy, suffered a fatal accident in the mountains. Criminal
proceedings were brought against the accompanying teacher, Mr Volker Sonntag, in the Bolzano
Criminal Court for causing death by negligence.
Waidmann’s relatives as civil parties seek an order against the accused teacher for compensation for
the loss caused by the accident.
Mr Sonntag was found guilty of causing death by negligence and ordered to make a provisionally
enforceable payment on account of LIT 20 million to the Waidmann family together with costs. The
judgment was served on Mr Sonntag and became final.
Mr Sonntag and the Land Baden-Württemberg maintained, inter alia, that the criminal judgment of
the Bolzano court related to a claim under public law, since the supervision of pupils by Mr Sonntag in
his capacity as a civil servant was a matter that fell within the province of administrative law.

Data to take into account:
• Compensation obtained in a judgement passed by a criminal court
• The supervision was carried out by a teacher in his condition of civil servant
• The injury caused was covered under a social insurance scheme governed by public law

Ruling: A claim for compensation for loss to an individual resulting from a criminal offence, even
though made in the context of criminal proceedings, is civil in nature unless the person against whom
it is made is to be regarded as a public authority which acted in the exercise of its powers. That is not
the case where the activity called in question is the supervision by a state-school teacher of his pupils
during a school trip.

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Exclusions
Art 1.2. This Regulation shall not apply to:
a. the status or legal capacity of natural persons, rights in property arising out of a matrimonial
relationship or out of a relationship deemed by the law applicable to such relationship to have
comparable effects to marriage;
b. bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal
persons, judicial arrangements, compositions and analogous proceedings;
c. social security;
d. arbitration (recital 12);
e. maintenance obligations arising from a family relationship, parentage, marriage or affinity;
f. wills and succession, including maintenance obligations arising by reason of death.

Recognition and enforcement of arbitral awards is excluded because we have the NY Convention (it is
one of the most controversial exclusions since we don’t really know the scope of the exclusion). But
many times, there are auxiliary proceedings (ie. enforcement measures, challenge of the arbitration
agreement, provisional measures).

Recital 12 says that arbitration is excluded (also the ancillary). But the court may consider that it has
jurisdiction according to its national law (not according to the Brussels I Regulation). Not all the
jurisdictions recognize the principle of kompetenz kompetenz. International arbitration is OUT of the
Regulation.The decision will not be enforced in another MS according to the rules of the Regulation.

Recital 12
This Regulation should not apply to arbitration. Nothing in this Regulation should prevent the courts
of a Member State, when seised of an action in a matter in respect of which the parties have entered into
an arbitration agreement, from referring the parties to arbitration, from staying or dismissing the
proceedings, or from examining whether the arbitration agreement is null and void, inoperative or incapable
of being performed, in accordance with their national law.

A ruling given by a court of a Member State as to whether or not an arbitration agreement is null
and void, inoperative or incapable of being performed should not be subject to the rules of recognition and
enforcement laid down in this Regulation, regardless of whether the court decided on this as a principal
issue or as an incidental question.

On the other hand, where a court of a Member State, exercising jurisdiction under this Regulation
or under national law, has determined that an arbitration agreement is null and void, inoperative or
incapable of being performed, this should not preclude that court’s judgment on the substance of the matter
from being recognised or, as the case may be, enforced in accordance with this Regulation.

This should be without prejudice to the competence of the courts of the Member States to decide
on the recognition and enforcement of arbitral awards in accordance with the Convention on the
Recognition and Enforcement of Foreign Arbitral Awards, done at New York on 10 June 1958 (‘the 1958 New
York Convention’), which takes precedence over this Regulation.

This Regulation should not apply to should not apply to any action or ancillary proceedings relating to, in
particular, the establishment of an arbitral tribunal, the powers of arbitrators, the conduct of an arbitration
procedure or any other aspects of such a procedure, nor to any action or judgment concerning the
annulment, review, appeal, recognition or enforcement of an arbitral award.

24

b) Geographical scope of application

It applies to all member states, including UK, Ireland and Denmark.

Territorial. What if Brexit? Special situation DK (Convention). The UK and Ireland had the opt-in
procedure and they opted in for the Brussels I. Denmark had a different system by which every time
the EU enacted a new type of legislation there had to be signed a convention between Denmark and
the EU. In this case there was a convention signed.

Personal. Connection with the EU. Those regulations do not apply to all situations but to situations
related to Europe. The difficulty is in the sense that it is not always the same. We don’t use the
connection nationality. Nationality is not relevant, domicile is relevant. The EU wants to protect
European domiciles. This only applies to jurisdiction. Only a state can decide if the defendant is
domiciled in that state.

• General rule (persona): Defendant’s domicile. Regulation applies if defendant is domiciled in
a EU Member State (art. 4 and 5). The reason is that it aims to benefit those domiciled in
Europe. The BIRR will not apply if it is proven that the defendant is domiciled outside the EU.
However, if he/she is domiciled inside or the domicile is unknown it will apply.
No possibility of exorbitant fora: those for a based in unreasonable basis (discriminatory)
Where is the domicile?
o Physical person: no European definition, reference to the national law of the Member
State concerned – art. 62. It is another concept which has not been possible to unify.
The treatment of this concept is seen close to the concept of nationality. In the case
of Spain, we can only determine Spanish citizens but not a foreign nationality.
o Legal person: open definition (either the statutory seat, the place of central
administration or the principal place of business) – art. 63. We have a European
concept.

• Defendants domicile in third countries. Residual rules of jurisdiction (national) each MS
applies its own rules to determine the jurisdiction of its courts.

Art. 6.2 BIRR 1. If the defendant is not domiciled in a Member State, the jurisdiction of the courts
of each Member State shall, subject to Article 18(1), Article 21(2) and Articles 24 and 25, be
determined by the law of that Member State.
2. As against such a defendant, any person domiciled in a Member State may, whatever his
nationality, avail himself in that Member State of the rules of jurisdiction there in force, and in
particular those of which the Member States are to notify the Commission pursuant to point (a)
of Article 76(1), in the same way as nationals of that Member State .

We talk about a defendant domiciled outside the EU. It says that whenever the defendant is
domiciled outside the EU, the domiciliary of a state, regardless of the nationality they have can
use the rules of jurisdiction of that state.

• If domicile unknown. The BIRR takes preference over the national rules. Only national law of
the European courts achieves the conclusion that defendant domiciled outside EU.

25

The Spanish court the first thing that has to do is where is the defendant domiciled. If he is domiciled
in a member state, the regulation applies. If he is domiciled outside of the member state we need to
see if we are in front of the exceptions of Art. 6. If it is one of the exceptions it applies the Regulation,
but if it is not an exception, the regulation will not apply, and national rules will apply.

Jurisdiction irrespective of the domicile. There are some EXCEPTIONS in which the BIRR applies
irrespective of the domicile of the defendant.
1. Where a court in a EC State has exclusive jurisdiction over the subject-matter of the
proceedings (ex. Where the case concerns rights in rem in land in such State)
2. Where there is a choice of court agreement in favor of a court of a MS
3. Where a court in another MS was seized first of proceedings involving the same cause of
action between the same parties
4. Consumer and labor contracts
C-412/98 Groupe Josi [2000] ECR I-5925
*C-281/02 Owusu [2005] ECR I-1445

In these exceptions, the BIRR will apply. The effect is that we will never apply national laws (LOPJ).
The rules on international jurisdiction are usually based on the principle of reasonability. They need
to present a connection. There are cases in which the states unreasonably get jurisdiction in a very
broad way. For instance, within the French Civil Code there is a rule that says that French citizens may
sue a defendant before the French court even if the situation has no connection (only nationality of
the claimant). When the defendant is domiciled within European union and we apply the regulation,
this fora are prohibited.

Example: Spanish domiciled in Argentina and an Argentinian domiciled in France. The Argentinian
wants to sue the Spanish in France. As the sued is outside the MS, we go to national law. According to
the law mentioned before which applies in France, any French living in France can sue in the French
courts. This benefits so much to the people domiciled in Europe as far as the Spanish may have assets
in Spain and the French decision is enforceable in Spain. In Spain, this kind of rule is not contemplated
in our LOPJ.

If there is no exception, we go to national jurisdiction but art. 6.2 BIRR.

Is BIRR applicable in a case involving a Spanish Company and a Mexican company?
• If the Mexican is the plaintiff? Yes. Mexican claiming in the EU.
• If the Mexican is the defendant? It depends whether we are in one of the exceptions of
jurisdiction irrespective of the defendant’s domicile.
• If there is a choice of forum or agreement in favor of Spanish courts? The domicile of the
Mexican does not matter because it is an exception.
• If there is a choice of forum agreement in favor of Mexican Court? It depends because the
defendant is domiciled within the European Union.
• If the dispute concerns the validity of a decision taken by a Spanish company?

Do we apply the regulation?
The regulation can NEVER give jurisdiction to the court of a non-member state.

26

c) Temporal scope of application


Article 81
“This Regulation shall enter into force on the twentieth day following that of its publication in the
Official Journal of the European Union.

It shall apply from 10 January 2015, with the exception of Articles 75 and 76, which shall apply from 10
January 2014.”

Article 66
1. This Regulation shall apply only to legal proceedings instituted, to authentic instruments formally
drawn up or registered and to court settlements approved or concluded on or after 10 January 2015.

27


Lesson 4. Heads of Jurisdiction

Introduction

Some cases:

PiNord, SL, based in Marseille, filed a complaint of unfair competition caused by an act of unlawful
advertising on a product that is marketed in Morocco, Tunisia and Algeria, against the company
"LogSud SL" constituted under Spanish law and based in Malaga.

The defendant’s domicile is in Spain, so although the events take place outside the EU, this situation is
connected with the EU. The jurisdiction must be Spanish (defendant’s domicile according to Brussels
I).

“Agents, SL”, formed in accordance with Spanish law and based in Burgos, brings an action against
“Manufacture, LTD", constituted according to the law of Quebec and based in Toronto, claiming for
termination and compensation for damage due to breach of contract. The commercial agency
contract was signed in Madrid with the purpose of introducing on the Spanish market the products
manufactured by "Manufacture, LTD“. The agreement contained a choice of jurisdiction clause
specifying the jurisdiction of the courts of Quebec for any litigation arising between the parties in
relation to the contract.

Here there is a choice of court agreement in favor of a court from a third state (uncovered situation by
BIR). However, not being the defendant domiciled in Europe, Brussels I does not apply anymore
(personal or subjective scope not verified), so there could be jurisdiction according to national law if
the LOPJ (internal jurisdiction rules) foresees so. If the Canadian company responds in the Spanish
courts, it waives tacitly the contractual choice of jurisdiction.

The company "Fruit SA" , with headquarters in Tetouan, bought 10 tons of dates to society "Palmyra,
LTD" based in Algiers. Under the contract, the seller had to deliver the goods to the port of Malaga.
The goods arrived at the port rotten. "Fruits, SA" wants to sue " Palmyra, SL".

There is a connection but Brussels I would not apply because the defendant is from Algeria, therefore
not from the EU: however, the connection goes with the delivery, so there may be a national
jurisdictional norm attracting jurisdiction in the LOPJ (art. 22.15.a) foreseeing such rules.


El reglamento de Bruselas i bis se aplica sin foros exhorbitantes. quien el demandante vive en Francia
podrá utilizar el foro exhorbitante francés. Las diferencias en materia de competencia tienen que ser
entre estados cada vez menores, por lo que se trata de reducir la discriminación entre ciudadanos
europeos. Cualquier ciudadano, europeo o no (aunque la gente que trabaja en Europa es cuidado
europeo), domiciliado en Francia puede utilizar los foros de competencia, exhorbitantes o no.










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Personal scope and international element

• General rule: Jurisdiction based on the defendant's domicile (art. 4). BIRR applies when the
defendant is domiciled in a MS. Why? Recital 13.

• Recital 13: There must be a connection between proceedings to which this Regulation applies
and the territory of the Member States. Accordingly, common rules of jurisdiction should, in
principle, apply when the defendant is domiciled in a Member State.

• Recital 15: The rules of jurisdiction should be highly predictable and founded on the principle
that jurisdiction is generally based on the defendant’s domicile. Jurisdiction should always
be available on this ground save in a few well-defined situations in which the subject-matter
of the dispute or the autonomy of the parties warrants a different connecting factor. The
domicile of a legal person must be defined autonomously so as to make the common rules
more transparent and avoid conflicts of jurisdiction.

• International element:
- Relevance of the presence of an international element (Foreign Element Theory)
- Irrelevance of the location of all other elements of the situation outside the EU

In the Owusu case the claimant and the defendant are both domiciled in the EU while other
members are in a different member state. The ECJ said that there is need of an international
element but there is no need that this international element is in the state of the parties. That
does not matter because the defendant domicile is in the European union.

o Forum non conveniens is a doctrine according to English law which allows the English
judge to decline jurisdiction in favor of other courts which are in a better position to
hear the case. Applying Brussels I is mandatory in cases in which it is applicable.

In case C-281/02, Owusu the ECJ decided:
- First, that the element of internationality required for the application of the Brussels
Convention (now BIRR) didn’t necessary have to appear because of the involvement
of two or more MS. On the contrary, if the internationality arose because of the
involvement of a non-contracting state and a member state BIRR was perfectly
applicable.
- On top of that it stablished that the link to apply BIRR could be as weak as to only be
the domicile of the defendant but nothing more.
- Thirdly, it stablished that the application of article 2 BIRR precluded any member state
of applying the “forum non conveniens” doctrine according to which its national law
enables him to stay proceedings in favor of a court of a non-contracting state if
deemed appropriate because it might be tried more suitably to the interest of all the
parties and the ends of justice.

ECJ case law is not law, since it isn’t a common law system, but it has more force than regular
jurisprudence.




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The Owusu case (C- 281/02, 1 March 2005):

The facts: Mr Owusu, a British national domiciled in the United Kingdom, suffered a very serious accident
during a holiday in Jamaica. He walked into the sea, and when the water was up to his waist he dived in,
struck his head against a submerged sand bank and sustained a fracture of his fifth cervical vertebra, which
rendered him tetraplegic.

Following that accident, Mr Owusu brought an action in the United Kingdom for breach of contract against
Mr Jackson, who was also domiciled in the UK. Mr Jackson had rented Mr Owusu a holiday villa in Mammee
Bay (Jamaica). Mr Owusu claimed that the contract, which provided that he would have access to a private
beach, contained an implied term that the beach would be reasonably safe or free from hidden dangers.
Mr Owusu also brought an action in tort in the United Kingdom against several Jamaican companies.

Mr Jackson and the Jamaican defendants applied to that court for a declaration that it should not exercise
its jurisdiction in relation to the claim against them both. In support of their applications, they argued that
the case had closer links with Jamaica and that the Jamaican courts were a forum with jurisdiction in which
the case might be tried more suitably for the interests of all the parties and the ends of justice (doctrine of
forum non conveniens) .

The ECJ ruling:
The question was to determine whether Article 2 of the Brussels Convention is applicable in circumstances
such as those in the main proceedings, that is to say, where the claimant and one of the defendants are
domiciled in the same Contracting State and the case between them before the courts of that State has
certain connecting factors with a non-Contracting State, but not with another Contracting State.
Nothing in the wording of Article 2 stipulates that there is a condition that there should be a legal
relationship involving a number of Contracting States

Of course, for the jurisdiction rules of the Brussels Convention to apply at all the existence of an
international element is required. The international nature of the legal relationship at issue need not
necessarily derive, for the purposes of the application of Article 2 of the Brussels Convention (i.e. art. 4 BIR),
from the involvement of a number of Contracting States. The involvement of a Contracting State and a non-
Contracting State, for example because the claimant and one defendant are domiciled in the first State and
the events at issue occurred in the second, would also make the legal relationship at issue international in
nature. That situation is such as to raise questions in the Contracting State, as it does in the main
proceedings, relating to the determination of international jurisdiction, which is precisely one of the
objectives of the Brussels Convention (i.e. BIR).

On the Forum non conveniens raised by Mr Jackson: According to the doctrine of forum non conveniens,
as understood in English law, a national court may decline to exercise jurisdiction on the ground that a court
in another State, which also has jurisdiction, would objectively be a more appropriate forum for the trial of
an action, that is to say, a forum in which the case may be tried more suitably for the interests of all the
parties and the ends of justice (i.e. “Best placed courts”).

An English court which decides to decline jurisdiction under the doctrine of forum non conveniens stays
proceedings so that the proceedings which are thus provisionally suspended can be resumed should it
prove, in particular, that the foreign forum has no jurisdiction to hear the case or that the claimant has no
access to effective justice in that forum.

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The ECJ held that: Application of the forum non conveniens doctrine, which allows the court seized a wide
discretion as regards the question whether a foreign court would be a more appropriate forum for the trial
of an action, is liable to undermine the predictability of the rules of jurisdiction laid down by the Brussels
Convention, in particular that of Article 2, and consequently to undermine the principle of legal certainty,
which is the basis of the Convention.

Recital 15 BIR: The rules of jurisdiction should be highly predictable and founded on the principle that
jurisdiction is generally based on the defendant’s domicile. Jurisdiction should always be available on this
ground save in a few well-defined situations in which the subject-matter of the dispute or the autonomy of
the parties warrants a different connecting factor. The domicile of a legal person must be defined
autonomously so as to make the common rules more transparent and avoid conflicts of jurisdiction.

Is there any room for Forum non conveniens doctrine under the system of European PIL?

That will depend to a great extent on the nature of the subject matter: some matters require the primacy
of the principle of predictability of jurisdiction rules while others, such as family law, may in certain cases
need a more flexible approach towards jurisdiction rules capable of taking into account the delicate
interests being protected. Check article 15 Brussels II bis Regulation on matrimonial!

The doctrine of forum non conveniens is not accepted under BIRR.



Relationship between the rules of jurisdiction

• Exclusive jurisdiction. On top of the pyramid we have exclusive jurisdiction. There are 5
subject matters for which only one court has jurisdiction:
o Immovable property
o Legal persons constitution
o Public registries
o Enforcement
o IP registries

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• Then we have prorogation of jurisdiction, taking into account the will of the parties (party
autonomy, the backbone of the system)
o Tacit: Jurisdiction by appearance (in a court lacking jurisdiction, when no exclusive
jurisdiction applies)
o Express: Choice of court agreements, where the autonomy of the parties plays an
important role (prorrogable by jurisdiction by appearance)

Then we have protecting the weaker parties.

• Legal jurisdiction: they are at the same level in the base of the pyramid, meaning that the
claimant may decide to go to one or the other indistinctly.
o General jurisdiction rule (the general fora): defendant’s domicile
o Special jurisdiction rules
§ Contracts (goods, services, others…) relevant = place of performance
§ Torts (ubiquity, mosaic)

Interaction between the different grounds for jurisdiction à Pyramid structure: arts. 4, 5, 6 BIR and
community connection, the domicile of the defendant, special jurisdictional fora, party autonomy
(arts. 25 y 26 BIR) and exclusive jurisdiction (art. 24 BIR).

Following Briggs analysis, we will answer the following questions:

1. Are the proceedings within the domain of the Regulation? Article 1, noting the specific
exceptions in art 1(2). If they are, we continue analyzing whether the court of a Member State
has or not jurisdiction.
2. Does a Member State have ‘exclusive jurisdiction, regardless of domicile’? Article 24. If it has
jurisdiction, that’s it. If not, we continue. In the following questions it operates as this.
The subject matter is so important that even if the defendant domicile is outside the EU there
is a link that makes reasonable the courts of a member state to hear the case. If the court of a
member state has exclusive jurisdiction according to Art. 24 we don’t look at the defendant
domicile.
3. Did the defendant enter an appearance, otherwise than to contest jurisdiction? Article 26
4. Do the insurance contract provisions apply? Articles 10-16
5. Do the consumer contract provisions apply? Articles 17-19
6. Do the employment contract provisions apply? Articles 20-23
7. Is there an agreement upon choice of court, in the form specified, for the courts of a Member
State? Article 25
8. Is the defendant domiciled in another Member State?
a. Article 7.1: special jurisdiction over matters relating to a contract
b. Article 7.2: special jurisdiction over matters relating to a tort/delict/quasi-delict
c. Article 7.5: special jurisdiction over claims arising from operations of branch or agency
9. Was a court in a Member State seized first of triply-identical (cause, object, parties)
proceedings, or a related action? Articles 29-32

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1. EXCLUSIVE JURISDICTION: article 24

General features

Regardless of where the defendant is domiciled: inside and outside the EU ex art. 24 in primis and art. 6.1 BIR,
there are 5 cases of exclusive jurisdiction are foreseen:

1. Rights in rem in immovable property or tenancies of immovable property. They have to be
registered in a public register, there is a state interest. If you need to enforce a decision against
an immovable property you would have to go to the state where the immovable is located.
2. The incorporation of companies and validity of decisions of their organs
3. The validity of entries in public registers
4. The registration or validity of registered intellectual property rights
5. The enforcement of foreign judgments


What are the reasons behind this exclusive jurisdiction?
• The proper administration of justice (correlation between declaratory and enforcement
proceedings)
• Reasons of proximity (courts best placed, for evidence seeking, etc.)
• The protection of interests of the State (tenancy of immovable property).

The grounds of the exclusive jurisdiction rules justify that (effects):
1. The defendant cannot grant a different MS court jurisdiction by virtue of voluntary
appearance: ex art. 26.1 in fine BIR. By the party autonomy we cannot exclude this mandatory
fora, the exclusive jurisdiction grounds. We can’t agree that we give the jurisdiction to another
court.
2. The parties cannot grant a different MS court jurisdiction by virtue of a choice of court
agreement: ex art. 25.4 in fine BIR.
3. A judgment given in another MS shall be refused, on the application of any interested party,
if it conflicts with art. 24: ex art. 45.1.(e).(ii) BIR (refusal of R&E)
4. Examination ex officio by MS’s courts: ex art. 27 BIR. This is very important. There are only 2
cases in which this verification is made by the judge ex oficio. In the rest of the cases the party
has to challenge the jurisdiction of the court. One of the cases in which that verification is ex
oficio is exclusive jurisdiction. Spanish court knows that a French court has jurisdiction, it must
verificate ex oficio.

As an exception, the wording of Art. 24 has to be strictly interpreted.

• Principal subject-matter v. Ancillary subject-matter: the matters referred to in art. 24 BIR are
the subject of exclusive jurisdiction only if they constitute the principal subject matter of the
proceedings of which the court is to be seized. If an ancillary subject-matter appears the case
has to be presented in another point.
• Only confer international jurisdiction to MS’s courts: it is for national rules to determine the
competent territorial court, unlike special jurisdiction rules of article 7 BIR.

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1) Rights in rem in immovable property

Article 24 BIRR
“The following courts of a Member State shall have exclusive jurisdiction, regardless of the domicile
of the parties:
1-In the proceedings which have as their object rights in rem in immovable property or tenancies of
immovable property, the courts of the MS in which the property is situated”

What are “rights in rem”? Autonomous interpretation given by the ECJ: Reichert case (C-115/88, 10
January 1990)

The facts: Dresdner Bank (the creditor) exercised an actio pauliana (available under French law) to
have a donation of immovable property set aside on the ground that it was made by its debtor in fraud
of its rights. Is the action pauliana a right in rem? No.

When the subject matter is a right in rem of an immovable property the only courts with jurisdiction
are the courts where the immovable property is located.

The definition of the ECJ of rights in rem (derechos reales) for the purpose of art. 24.1 BIR:
“actions which seek to determine the extent, content, ownership or possession of immovable property
or the existence of other rights in rem therein and to provide the holders of those rights with the
protection of the powers which attach to their interest”

Rights in rem v. rights in personam: where do we draw the line? Autonomous abstract notion of “rights
in rem” given by the ECJ (quoting the Schlosser Report’s statement) in the Gaillard case (C-518/99, 5
April 2001):

The case concerned an action of rescission of a contract of sale of immovable property and damages.
The ECJ held that: “the difference between a right in rem and a right in personam is that the former,
existing in an item of property, has effect erga omnes, whereas the latter can only be claimed against
the debtor”.

These are two definitions, one broad one, the second much clearer, applying the distinction we do in
Spanish law.

Rights in personam clarified:
• Actio pauliana: is based on the creditors personal claim against the debtor.
• Action for rescission of a contract of sale of immovable property: this action may have an
impact on the title of property, but it is based on the personal right that the claimant obtains
under the contract and may only be raised against the other party. The proceedings do not
have as their object rights which relate directly to immovable property and can be raised erga
omnes.
• Action to halt nuisance emanating from a particular use of immovable property (CEZ case, C-
343/04, 18 May 2006): it is not sufficient that a right in rem be involved in the action or have
a link with immovable property, it must be based on a right in rem and not in a right in
personam.

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Tenancies of immovable property

Why extend the exclusive jurisdiction rules to tenancies of immovable property considering that the
category does not add to the qualification of “rights in rem”?
• Tenancies are generally governed by special rules and it is preferable, in the light of their
complexity, that they be applied only by the courts of the MS in which they are in force
(Sanders case)
• State interest in controlling its use and protecting the rights of tenants

Irrespective of its nature (in rem or in personam): it applies to proceedings concerning rights and
obligations arising under an agreement for the renting of immovable property.

Short-term holiday lets

“However, in proceedings which have as their object tenancies of immovable property concluded
for temporary private use for a maximum period of 6 consecutive months, the courts of the MS in
which the defendant is domiciled shall also have jurisdiction, provided that the tenant is a natural
person and that landlord and tenant are domiciled in the same MS.”

There would be exclusive jurisdiction for both, the courts where the property is, and the courts of
residence of the parties, so long as it is private use, the one renting is a physical person, for a maximum
period of 6 consecutive months and both are residents of the same MS.

Additional jurisdiction granted to the courts of the MS where the defendant is domiciled. What if the
defendant is not domiciled in a MS? Art. 24.1.2º does not apply but parties can litigate before the
courts of the MS where the immovable property is situated.

When? All conditions must be fulfilled:
- Private use (i.e. holidays)
- Maximum period of 6 consecutive months
- Tenant a natural person (legal persons excluded)
- Landlord and tenant domiciled in the same MS

When all conditions are fulfilled the claimant can chose on sue the defendant in the domicile or the
courts of the location of the immovable property.

Risks of additional fora to that of the MS courts where the immovable property is situated? Concurrent
proceedings in MS courts à Lis alibi pendens rule of art. 31.1 BIR (…).

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Art. 24.1 – Some cases:

Erich Rösler v Horst Rottwinkel Case

1.- John L., domiciled in New York (US), brings proceedings in the United Kingdom to obtain the
possession of a house in Oxford occupied by Pedro J., a Spanish national.

Exclusive jurisdiction of the UK because immovable property located in London and the action is an
action in rem, possession.
2.- Samantha X., who is domiciled in North Corolina (US), is the owner of a house in Toulouse
(France). Jean, who owns an adjoining piece of land, brings proceedings in France to establish a right
of way over Samantha’s land.

Exclusive jurisdiction of France due to the property. The action is an action in rem, right of way.

3.- Yu W., a Japanese national domiciled in Tokyo, celebrates a contract with Fiodor D., a Russian
national domiciled in Moscow, for the sale of a house that Yu owns in Sitges (Spain). Following the
conclusion of the contract, which was celebrated in a hotel in Barcelona (Spain), Fiodor refuses to
pay the remaining part of the price of the house.

The principle subject matter is not action in rem but an action in persona. This is not a case of exclusive
jurisdiction.

4.- Greg, a German national domiciled in Berlin, and Sandra, a Spanish national domiciled in Sevilla,
conclude a contract of sale of immovable property situated in Tanger (Morocco). Once Greg has paid
the price, Sandra refuses to comply with the formal requirements in order to transfer the title of
property to Greg. Greg wants to sue Sandra in the Spanish courts.

There is no member state with exclusive jurisdiction because the immovable property is outside. The
defendant’s domicile is inside the EU. Should the Spanish court refuse? No clear answer. Should we
respect the jurisdiction of third states? No need for the EU to respect other countries exclusive
jurisdiction. We have to think in the efficiency of the judgment; will we be able to enforce the
Moroccan judgment? The idea is that we want the judgment to be enforced in morocco because the
property is there.


2) Companies

Article 24
“2. in proceedings which have as their object the validity of the constitution, the nullity or the
dissolution of companies or other legal persons or association of natural or legal persons, or of the
validity of the decisions of their organs, the courts of the MS in which the company, legal person or
association has its seat. In order to determine that seat, the court shall apply its rules of PIL.”

36

To determine the place of the seat we have to go to the PIL rules of the place of the seat. The ECJ has
developed a case law in which it determines that all MS have to apply the statutory seat. It relates as
well to the information of that company, registered in the public register.

Why exclusive ground for jurisdiction?
• To avoid conflicting judgments being given as regards the existence of a company or the
validity of the decisions of its organs
• Best placed courts because is in the MS of the company’s seat that information about the
company will have been notified and made public.

Principal subject matter of the proceedings:
• The validity of the constitution, the nullity and the dissolution of companies
• Validity of the decisions of the organs of the company


3) Validity of entries into public registers

Article 24
“3. In proceedings which have as their object the validity of entries in public registers, the courts of
the MS in which the register is kept.”

• Scope: entries in land and land charges registers and commercial registers.
• It extends only to proceedings, which have as their object the validity of such entry.
• It excludes:
o The legal consequences of entry in public registers
o Action against a party unwilling to cooperate with the registration


4) Registration or validity of patents

Article 24
“4. In proceedings concerned with the registration or validity of patents, trade marks, designs, or
other similar rights required to be deposited or registered, irrespective of whether the issue is
raised by way of an action or as a defense, the courts of the MS in which the deposit or registration
has been applied for, has taken place or under the terms of an instrument of the Union or
international convention deemed to have taken place.”

• Now ancillary subject-matters matter?
• GAT case (C-4/03, 13 July 2006): significant innovation introduced to the previous regime (BI)
• Unlike the exclusive jurisdiction rule regarding companies: in any proceedings which have as
their object the infringement of a patent, the validity of the patent lies at the core of the
dispute.

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Here, not only when the action of the validity of the intellectual property right is the principle action
but also when it comes as a defense. It is very common to sue someone because you think he has
violated a trademark or patent but the other party says that sues the validity of that trademark or
patent.

La competencia exclusiva la tendrán los tribunales cuando la acción sea principal. En materia de
propiedad intelectual la acción de validez de la patente o marca va siempre ligada a las violaciones que
se hacen de esa patente o marca. Lo normal es que demande a quien viola mi patente o marca y el otro
contravenga diciendo que esa patente o marca no existe. Aquí, aunque la validez del derecho de
propiedad intelectual se presente como defensa conocerá ese tribunal de manera exclusiva.

Thus, if the defendant does not challenge the validity of the patent: general and special jurisdiction
rules apply (art. 4 and 7.2 BIR)

But, if the defendant challenges the validity of the patent by way of defense: the court of the MS other
than those in which the registration of the patent has taken place must not entertain the question of
validity à exclusive jurisdiction


5) Enforcement of judgments

Article 24.5
“In proceedings concerned with the enforcement of judgments, the courts of the MS in which the
judgment has been or has to be enforced”
• Declaratory v. enforcement proceedings
• Declaratory and enforcement proceedings take place in the courts of the same MS.
• The debtor has assets in the territory of a MS (ad ex a bank account, immovable property, etc.)
other than of the MS whose courts had jurisdiction upon a claim the proceedings of which
rendered an executory judgment against it.


2. CHOICE OF COURT AGREEMENTS

Why to choose? CERTAINTY AND LEGAL SECURITY. You will know in advance which court will have
jurisdiction. That reduces costs. Everybody prefers to litigate at home because to go and litigate abroad
has risks, costs, etc.

Pros:
• Parties are the best judges of their interests
• Certainty ex ante and ex post of the competent MS court and:
o Procedural applicable law (lex fori regit processum). You will know as well which
procedural law will apply. Lex fori in foro propio à The law of the place chosen will be
applying, not to substantive issues but to procedural issues.
o Applicable law to the merits of the case (the court seisez applies the conflict of law
rules of the forum)

38

• Race to the courts: avoidance of forum shopping albeit dramatically reduced within the EU
through uniform conflict-of-law rules (i.e. Rome I and Rome II Regulations)
• Neutral forum.
• Specialized forum. We can choose a specialized judge.

Cons:
- Increase of negotiation costs. The claimant loses the possibility of using other forums provided
for in the regulation.
- Depending on the results of the negotiations: claimant unable to use general and special
jurisdiction rules more suitable to protect its interests

In the end there are more advantages than disadvantages. It is better to negotiate a choice of court
agreements. It can be agreed before and after the discussion arises. The agreement is reached mainly
when doing the contract, a clause inserted in the contract. Principle of separability à Even though the
contract is null and void the clause is not (independent contract).

Legal sources:
• Art. 25 BIR: former art. 23 BI with significant modifications
• Art. 3 Hague Convention 30 June 2005 on Choice of Court Agreements. The most important
thing is the efficiency of the clause. Thanks to the clause we have certainty and therefore you
need certainty in the clause really working, efficiency of the clause. This convention has only
been ratified by Mexico, Singapore, Montenegro and the EU. It has been signed by the USA,
China and in a way it was born as a way to compete with international arbitration.
International arbitration is a huge business, states do not want to lose that business. Making
choice of court agreements efficient is a way of competing with arbitration.

Article 25 BIRR (Prorrogation of jurisdiction)
“1. If the parties, regardless of their domicile, have agreed that a court or the courts of a Member
State are to have jurisdiction to settle any disputes which have arisen or which may arise in
connection with a particular legal relationship, that court or those courts shall have jurisdiction,
unless the agreement is null and void as to its substantive validity under the law of that Member
State. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. The agreement-
conferring jurisdiction shall be either:
(a) in writing or evidenced in writing;
(b) in a form which accords with practices which the parties have established between themselves;
or
(c) in international trade or commerce, in a form which accords with a usage of which the parties
are or ought to have been aware and which in such trade or commerce is widely known to, and
regularly observed by, parties to contracts of the type involved”

a) Scope of application of art. 25

1. Regardless of the parties’ domicile: significant innovation introduced to former art. 23 BI (“one
or more of whom is domiciled in a MS”). We don’t look at the nationality nor domicile of the
parties for the application of BIRR. We’re in the second exception of the BIRR scope of
application regarding domicile of the defendant.

39

International situation: undefined but see art. 1.2 HCCCA: “a case is international unless the parties
are resident in the same Contracting State and the relationship of the parties and all other elements
relevant to the dispute, regardless of the location of the chosen court, are connected only with that
State”. These two parties cannot internationalize the case. If everything is located in Spain they cannot
decide to give jurisdiction to the French Court.

2. Parties confer jurisdiction on a MS court: how to choose a court? The regulation does not cover
choice of court agreement in favor of third parties because it cannot confer jurisdiction to third
countries.
- A local MS court (court of First Instance of Barcelona) or the courts of a MS (courts of
Spain): “have agreed that a court or the courts of a MS”.
- Exclusivity presumed: “Such jurisdiction shall be exclusive unless the parties have
agreed otherwise”. If we don’t say anything, the clause gives exclusivity to that court.
Only the chosen courts will have jurisdiction to decide on that case.

Only the courts of a MS or of more than one MS? There are two type of choice of court agreements.
• Symmetric choice of court agreements conferring exclusive jurisdiction on MS courts: both
parties can choose the competent court
• Asymmetric choice of court agreements: only one of the parties to the contract is entitled to
choose the competent court à controversial validity. It benefits just one of the parties. For
example, if it allows the claimant to choose between France and Spain.

It is also possible to choose over hybrid clauses.

b) Effects:
- Prorogatio or positive effect: the parties confer jurisdiction to a MS court which shall have
exclusive jurisdiction unless otherwise agreed. We give jurisdiction to a court, which, in
principle, has no jurisdiction. This effect is easily accepted. States usually accept cases.
- Derogatio or negative effect: the parties derogate the general and special competent MS
courts. The idea is that you are excluding the competent court from hearing the case because
you have agreed something different. Under the regulation the courts have to accept both
effects. The chosen court has to accept the prorogation effect while the competent court has
to accept the derogatio effect.

c) Limits:
- Recital 19 and art. 25.4 BIR
- Exclusive jurisdiction: always void
- Weaker parties: consumers, individual employment and insurance contracts: valid observing
certain requirements

d) Efficiency of the choice of court agreement

Significant innovation to enhance the efficiency of choice of court agreements in Recital 22 and art.
31.2 and 3 BIR:

40

“in order to enhance the effectiveness of exclusive choice-of-court agreements and to avoid abusive
litigation tactics, it is necessary to provide for an exception to the general lis pendens rule in order to
deal satisfactorily with a particular situation in which concurrent proceedings may arise. This is the
situation where a court not designated in an exclusive choice-of-court agreement has been seized of
proceedings and the designated court is seized subsequently of proceedings involving the same cause
of action and between the same parties. In such a case, the court first seized should be required to stay
its proceedings as soon as the designated court has been seized and until such time as the latter court
declares that it has no jurisdiction under the exclusive choice-of-court agreement. This is to ensure that,
in such a situation, the designated court has priority to decide on the validity of the agreement and on
the extent to which the agreement applies to the dispute pending before it. The designated court should
be able to proceed irrespective of whether the non- designated court has already decided on the stay
of proceedings”

It is important to be able or guarantee the efficiency of the choice of court. Before the Brussels I recast,
that efficiency was not guaranteed. Today it is not perfectly guaranteed but it has improved. When
you enter into an agreement, conferring jurisdiction to a court you may expect that if the other party
violates the clause and sues you on another court, I do not have to go to that other court to say that it
does not have jurisdiction. This is a mistake because the court only verifies the jurisdiction ex officio in
2 cases: exclusive jurisdiction and when the defendant does not appeal.

Something new in Art. 31.2 is that it gives another possibility to the defendant, to go to the chosen
court and tell that court that it has jurisdiction.

A CASE OF BREACH OF A CHOICE OF COURT AGREEMENT
A Spanish company and a Belgian company agree that the Court of Frankfurt shall have exclusive
jurisdiction. The Belgian company sues the Spanish company before a Belgian Court (based on “special
jurisdiction – Article 7”).
a) Importantly, the Belgian Court is not authorized to examine its jurisdiction ex officio when
express submission exists (only authorized when exclusive jurisdiction exists or there is default
by the defendant – Articles 27 and 28).
b) Defendant needs to challenge the jurisdiction of the Belgian Courts. Short deadlines.
c) New Art 31.2 and 3 BIR. Go to the German court and acting as a claimant, claim whatever I
want to claim.
d) For the previous regime envisaged in BI and the actual regime foreseen under the Lugano
Convention 2007 à Gasser case (C-116/02, 9 December 2003)

e) Substantive requirements – Consent

a) Consent: the parties must’ve consented to the choice of court agreement.

Significant innovation and introduction of an element of divergence into the unified regime of choice
of court agreements:
• Art. 25.1 BIR: “ (…) unless the agreement is null and void as to its substantive validity under the
law of that Member State.”
• Recital 20: “Where a question arises as to whether a choice-of-court agreement in favour of a
court or the courts of a Member State is null and void as to its substantive validity, that question

41

should be decided in accordance with the law of the Member State of the court or courts
designated in the agreement, including the conflict-of- laws rules of that Member State.”

What is “substantive validity”? à Formation of consent:
• Lack of capacity of the parties
• Substantive grounds of invalidity such as fraud, mistake, misrepresentation or duress.

What about the “law of the Member State of the court or courts designated in the agreement,
including the conflict-of- laws rules of that Member State”?

• A question of characterization: substantive or procedural?
• If substantive: national conflict-of-law rules or European conflict-of-law rules of the seized
court?
• Rome I Regulation on the law applicable to contractual obligations: art. 1.2.(e) expressly
excludes choice of court agreements from its material scope of application.

f) Formal requirements and severability

b) Formal requirements: uniform (art. 25.1 and 2 BIR)
The court shall check that there was “true agreement” between the parties. The choice of court
agreement shall be either:
• In writing or evidenced in writing/ “in writing” is equivalent to any communication by
electronic means which provides a durable record (art. 25.2 BIR): the Salotti case (C-24/76, 14
December 1976) for “in writing” requirement under general conditions of sale:
o A choice of court clause clearly written in the reverse side of a written contractual
document did not satisfied the formal requirements
o The text of the contract signed by both parties itself contains an express reference to
GC (not necessarily to the jurisdiction clause)
o The GC is available to the other party at the time of the conclusion of the agreement.
• In a form which accords with inter partes usages: practices which the parties have established
between themselves
• In a form which accords with international trade usages: of which the parties are aware + in
such trade is widely known to the parties and regularly observed by parties to contracts of the
type involved in the particular trade/commerce

The formal requirements are uniform: Castelletti case (C-159/97, 16 March 1999): “The specific
requirements covered by the expression 'form which accords' must be assessed solely in the light of the
commercial usages of the branch of international trade or commerce concerned, without taking into
account any particular requirements which national provisions might lay down.”

c) Principle of Severability (art. 25.5 BIR)

Significant innovation:
“5. An agreement conferring jurisdiction which forms part of a contract shall be treated as an
agreement independent of the other terms of the contract.
The validity of the agreement conferring jurisdiction cannot be contested solely on the ground that the
contract is not valid.”

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Therefore, it is possible for a MS court to hold the contract invalid without depriving the choice of
court agreement of validity. However, it is also possible for the ground on which the contract is invalid
to apply equally to the choice of court agreement: it all depends on the circumstances and the
applicable law.

Because of the doctrine of separability, the validity of the choice of court clause doesn’t depend on
the validity of the contract as a whole, so a clause can be valid even if the contract as a whole is not
(art. 25.5 BIRR). In order to determine the validity of the clause we must apply the lex fori of the chosen
court, as can be seen from the article.

Review: The parties cannot exclude the application of exclusive jurisdiction rules. We can consider the
autonomy as the backbone of the whole system because we are dealing with civil and commercial matters.
We have the express party autonomy; parties expressly agree to give the jurisdiction to a given court. There
is also party submission to enter a jurisdiction by appearance.


Jurisdiction by appearance

Art. 26 BIR:
1. Apart from jurisdiction derived from other provisions of this Regulation, a court of a Member
State before which a defendant enters an appearance shall have jurisdiction. This rule shall not
apply where appearance was entered to contest the jurisdiction, or where another court has
exclusive jurisdiction by virtue of Article 24.

• Jurisdiction based on the procedural behavior of the parties: claimant files a lawsuit before a
specific court and defendant appears and does not contest the jurisdiction. This behavior is
considered a tacit submission to the court. It has the same effects; prerogative and derogative
as the ones we saw the other day.
• Limit: exclusive jurisdiction of the courts of another MS. They cannot be derogated by a tacit
submission.
• It applies in weaker party contracts but there is safeguard clause:

Art 26.2
”In matters referred to in Sections 3, 4 or 5 where the policyholder, the insured, a beneficiary of
the insurance contract, the injured party, the consumer or the employee is the defendant, the court
shall, before assuming jurisdiction under paragraph 1, ensure that the defendant is informed of his
right to contest the jurisdiction of the court and of the consequences of entering or not entering an
appearance.”

In our system there is no rule regulating that. This is a good example of a no adaptation of national
rules to international ones.

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3. GENERAL JURISDICTION

Article 4
1. Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality,
be sued in the courts of that Member State.

This is what we call “the general rule”. It is considered the general rule because we don’t look at the
subject matter of the situation, of the dispute; we only look at the defendant domicile. We don’t look
either at the location of other elements of the relation. Of course, there are exceptions to this general
rule.

Scope of the general for a

- It is considered the ‘general fora’, regardless of subject matter of the dispute, the type of
action, or the location of the other elements of the relationship.
- Exceptions: exclusive jurisdiction, choice of court agreements, entering an appearance
- Ratio: The state of the defendant's domicile is the most legitimate due to reasons of procedural
economy

Determination of the domicile

Physical person: no European definition, reference to the national law of the Member State
concerned – art. 62. A Spanish judge cannot determine that someone is domiciled in a foreign country
applying Spanish law. Usually, domicile and habitual residence is the same concept.
Legal person: open definition (3 options to determine this domicile à either the statutory seat, the
place of central administration or the principal place of business) – art. 63. Usually the 3 elements are
in the same state, but it can happen that the company has the same 3 elements in two countries, then
both countries will have jurisdiction.

We consider that it is the natural fora, all legal systems consider the defendant domicile as a natural
court because we believe that the state of the defendant domicile is the most legitimate to hear the
case because in a way we are attacking the good of the person of the defendant. Usually the defendant
will have his/her assets within that state.

Defendant’s domicile plays two roles:
(i) Criteria of application of BIRR; and
(ii) General fora

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4. SPECIAL JURISDICTION

Art 7 “A person domiciled in a Member State may, in another Member State, be sued…”:
Scope of application:
- Defendant domiciled in a MS
- May be sued in another MS

Therefore, the Special Jurisdiction is only applicable when the defendant is domiciled in a Member
State. We cannot apply a special rule if the person is not domiciled in a MS. The claimant always can
start proceedings in the defendant’s domicile. In art. 7 they give the claimant another possibility, the
special jurisdiction. This is because this special jurisdiction fora are based in the principle of proximity
and foreseeability.

Grounds of jurisdiction based in the principle of proximity and foreseeability (Recital 16):
- Principle of proximity: if there is “a close connection between the Court and the action”
- Principle of foreseeability: “The existence of a close connection should ensure legal certainty
and avoid the possibility of the defendant being sued in a court of a Member State which he
could not reasonably have foreseen”

The EU legislator understands that besides the defendant domicile there is another court, which may
hear the case. At that case, we look at the subject matter, there is a relationship between the subject
matter and the court.

Special jurisdiction confers international jurisdiction based on the close relationship between the
Court and the dispute; while General jurisdiction confers international jurisdiction based on the close
relationship between the Court and the defendant.
- Also seen as a counterbalance to the strict protection of the defendant. There is a protection
over the defendant. They are giving the claimant another possibility, this means
counterbalancing.
- Optional rule of jurisdiction that clearly gives an advantage to the plaintiff
- Rule that confers direct and special (local) jurisdiction. Not only national but territorial
jurisdiction. We don’t need to go to national law to determine territorial jurisdiction.
- Restrictive interpretation. The ECJ said that it has to be interpreted restrictedly

Art 7 “A person domiciled in a Member State may, in another Member State, be sued…”:
Several special forums regulated in art. 7:
• Contracts (art. 7.1)
• Tort liability (art. 7.2)
• Civil liability based on criminal proceedings (art. 7.3)
• Civil claim for recovery of cultural objects (art. 7.4)
• Branch, agencies and establishments (art. 7.5)
• Trust actions (art. 7.6)
• Actions for payment of remuneration in case of salvage of a cargo or freight (art. 7.7)

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I. Contracts

Art 7 A person domiciled in a Member State may, in another Member State, be sued:
1. (a) in matters relating to a contract, in the courts for the place of performance of the obligation
in question;
(b) For the purpose of this provision and unless otherwise agreed, the place of performance of the
obligation in question shall be:
- In the case of the sale of goods, the place in a Member State where, under the contract, the
goods were delivered or should have been delivered,
- In the case of the provision of services, the place in a Member State where, under the
contract, the services were provided or should have been provided,
(c) If subparagraph (b) does not apply then subparagraph (a) applies;

It has three levels. It is one of the most complex provisions of the regulation.

(a) in matters relating to a contract, in the courts for the place of performance of the obligation in
question (…) we have to see if there is a relation with a contract

When does a claim relate to a contract? We need an Autonomous definition “in matters relating to a
contract”, there is not a clear definition. The ECJ interprets article 7.1 and each time says whether a
relationship enters into the matters relating to a contract. Meaning of autonomous definition (most of
the times congruent with national Law). Broad interpretation of the ECJ. Not a given
definition**Handte case

The Handte case (C-)

It follows that the phrase "matters relating to a contract", as used in Article 5(1) of the Convention, is
not to be understood as covering a situation in which there is no obligation freely assumed by one
party towards another.

It follows that the phrase "matters relating to a contract", as used in Article 5(1) of the Convention, is
not to be understood as covering a situation in which there is no obligation freely assumed by one party
towards another.

Where a sub-buyer of goods purchased from an intermediate seller brings an action against the
manufacturer for damages on the ground that the goods are not in conformity, it must be observed
that there is no contractual relationship between the sub-buyer and the manufacturer because the
latter has not undertaken any contractual obligation towards the former.

Apart from the fact that the manufacturer has no contractual relationship with the sub-buyer and
undertakes no contractual obligation towards that buyer, whose identity and domicile may, quite
reasonably, be unknown to him, it appears that in the great majority of Contracting States the liability
of a manufacturer towards a sub-buyer for defects in the goods sold is not regarded as being of a
contractual nature.

46

• It has to exist an undertaking freely entered into by one party in relation to another (Handte)
(e.g. unilateral engagements taken by one of the parties). It covers unilateral obligations of a
party against another.
• ‘relating to a contract’à very broad scope
• It does not include torts and pre-contractual liability
• Coherent interpretation BI, RI and RII (whereas 7 RI)

Includes proceedings related:
(i) Actions for breach of contract;
(ii) Actions seeking performance of contract;
(iii) Actions claiming nullity of contract
(iv) Actions based on unilateral commitments (donations, acknowledgment of debts...)

Connecting factorà the place of performance of the obligation. Which obligation? If someone has
performed an obligation in a MS, it is reasonable that the court of that MS hears the case.

If I have the same term in different regulations I can use the ECJ cases concerning the term in Brussels
I to interpret the same term in Rome I.


a) General rule (letter a): “in matters relating to a contract, in the courts for the place of performance of
the obligation in question” – i.e. Spanish Courts shall retain jurisdiction if Spain is the place of
performance of the obligation in question. You have to determine which is this obligation in question.

b) Two special rules (letter b):
ü International sale of goods: Spanish Courts shall retain jurisdiction if Spain is the place of
delivery of the goods to the purchaser, unless otherwise agreed. The obligation is the delivery of
the goods, it is the characteristic obligation of the contract. It is the obligation, which allows
distinguishing one contract from another.
ü Provision of services: Spanish Courts shall retain jurisdiction if Spain is the place of provision of
the services, unless otherwise agreed.

c) Closing provision (letter c): When b) is not applicable, a) shall apply.

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(a) in matters relating to a contract, in the courts for the place of performance of the obligation in
question (…)

First step. Which is the obligation in question?
This obligation is the obligation upon which the claimant founded his action (la obligation que sirve de
base a la demanda).

Second step: place of performance à as established by the parties into the contract or lex contractus.
Usually the obligation will be in the contract. Sometimes the contract does not say the place of
performance. Applying the lex contractus, the law applicable to that contract was determining the
place of performance in cases in which the parties did not agree on the place of performance.
However, it has changed now. Once the judge had determined the jurisdiction, it applied the applicable
law. Now it is the contrary, it has to determine applicable law prior to establishing jurisdiction.
The European legislator decided that a change or modification was needed, which is in letter b.

We have two special rules now.
(b) for the purpose of this provision and unless otherwise agreed, the place of performance of the
obligation in question shall be:
- in the case of the sale of goods, the place in a Member State where, under the contract, the
goods were delivered or should have been delivered,
- in the case of the provision of services, the place in a Member State where, under the contract,
the services were provided or should have been provided.

(à principle of concentration of proceedings in the place of performance of the obligation in question)

Any claim on a sale of goods, the jurisdiction is within the court of the place of delivery. The parties
can exclude the application of letter b.

Unless otherwise agreed à the parties may agree that paragraph b) should not apply to their contract.
In such cases, shall one choose another place, but not different from point a)? Its relationship with
choice of court agreement (article 25):

• Is it a:
o “sale of goods” agreement; or
o “provision of services” agreement?

• If yes; in principle, “unless otherwise agreed”
o Courts of the place of delivery shall retain intl. jurisdiction
o Courts of the place of provision of services shall retain intl. jurisdiction

• If not; letter a) of art. 7.1 is applicable:
o Determination of the “obligation in question”
o Determination of the “place of performance of the “obligation in question”

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e) Sale of goods

• Autonomous definition of sale of goods. Problems.
• Obligation in question: delivery of goods
• Place of performance: Place of delivery in a MS, under the contractà including INCOTERMS
(general terms used in international commerce and they determine the moment in which the
risk of the liability goes from one party to the other): Electrosteel case.

If there is no agreementà autonomous definition: ECJ Car Trim: identify the final place of delivery:
• Physical transfer of the goods to the purchaser or
• The place at which the goods are handed over to the first carrier No lex contractus
o “where the physical transfer of the goods took place, as a result of which the purchaser
obtained, or should have obtained actual power of disposal over those goods at the
final destination of the sales transaction”

Some sale of goods contracts are continuous. In the case of goods the obligation in question is the
delivery of the goods. He considers that it is closer to the contract. When you have to deliver the goods
in a place, that place is for sure closer to the court. Place of performance has to be determined. Usually
that place will be agreed by the parties (Goods have to be delivered in…). However not all incoterms
determine the place of delivery.

If the parties do not agree on a specific place, there is no clause in the contract saying which is the
place of delivery. In Car Trim, the ECJ said that when there is no agreement with regard to the place of
performance of the delivery of the goods, it has to be identified the final place of delivery, which will
usually be the physical transfer of the goods to the purchaser or the place at which the goods are
handed over to the first carrier.

The Car Trim case (C-)
The referring court contemplates two places, which could serve as the place of delivery for the purposes
of fixing an autonomous criterion, to be applicable in the absence of a contractual provision. The first
is the place of the physical transfer of the goods to the purchaser and the second is the place at which
the goods are handed over to the first carrier for transmission to the purchaser.

It must be held, in concurrence with the referring court, that those two places seem to be the most
suitable for determining by default the place of performance, where the goods were delivered or should
have been delivered.

It should be noted that the place where the goods were physically transferred or should have been
physically transferred to the purchaser at their final destination is the most consistent with the origins,
objectives and scheme of Regulation No 44/2001 as the ‘place of delivery’ for the purposes of the first
indent of Article 5(1)(b) of that regulation.

That criterion is highly predictable. It also meets the objective of proximity, in so far as it ensures the
existence of a close link between the contract and the court called upon to hear and determine the
case. It should be pointed out, in particular, that the goods which are the subject-matter of the contract
must, in principle, be in that place after performance of the contract. Furthermore, the principal aim of

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a contract for the sale of goods is the transfer of those goods from the seller to the purchaser, an
operation which is not fully completed until the arrival of those goods at their final destination.

The role of the INCOTERMS (Electrosteel case)
• It may be necessary to examine whether they are stipulations which merely lay down the
conditions relating to the allocation of the risks connected to the carriage of the goods or
the division of costs between the contracting parties, or
• Whether they also identify the place of delivery of the goods. As regards the Incoterm, ‘Ex
Works’, which is relied on in the dispute before the referring court, it must be held that that
clause entails not only the application of Rules A5 and B5, entitled ‘Transfer of risks’, and Rules
A6 and B6, entitled ‘Division of costs’, but also – and separately – the application of Rules A4
and B4, entitled ‘Delivery’ and ‘Taking delivery’.

Multiple places of delivery:

Try to identify the place where the delivery was principally to be performed:
1. Multiple places of delivery in a MS: identify the place where the delivery was principally to be
performed or in a negative case the claimant may choose (ECJ Color Drack 3.5.2007): 1 court
2. When there are several places of delivery in different MS and there is no one place of gravity
or «principal place of performance»à not Art. 7 but Art. 4 (defendant’s domicile)

When several places of delivery and each one represents a sufficient link or proximity with a given
MSà the court may conclude that there are two places of delivery and that there is special jurisdiction
over the whole of the claim in either of them at claimant's election. Not said by ECJ

Case in which a company was selling printers to another company located in Austria. Different places
in Austria were the final destination of the goods. The ECJ said that if a principle place of delivery can
be identified in economic terms, it is the court to have jurisdiction to hear the case. If there is no
possibility to identify that place of delivery then the claimant may choose.



f) Provision of services

• Autonomous definition of provision of services. Problems with distribution agreements, they
can be considered provision of services or sale of goods. The ECJ says that the distribution
agreement is a provision of services, not a sale of goods.

• Obligation in question: provision of services.

• Place of performance: Place where services are provided. The parties in the contract may
determine it. If we don’t have it, the ECJ avoid the need to go to the lex contractus.

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Multiple places of delivery:

• Try to identify the place where the delivery was principally to be performed, economically
speaking (ECJ Wood Floor Solutions 11.3.2010).
• When this is not possible the court may conclude that there are two places of provision of
services and that there is special jurisdiction over the whole of the claim in either of them at
claimant's election. Ex: air tranport (ECJ Air Baltic 9.7.2009). both courts have jurisdiction to
hear the case.


Agency contracts:

The courts with special jurisdiction will be the ones of:
• The principal place of services
o If not possible à domicile of the agent

The ECJ said that we must first identify the principal place of the provision of the services. If we cannot
find it, we will go to the domicile of the agent. If there is no principal place of performance, the courts
will be those of the domicile of the agent.


g) Closing provision (c)

(c) If subparagraph (b) does not apply then subparagraph (a) applies;
• Unless otherwise agreed by the parties
• Other contracts different from sale of goods, 7.1 b) à joint venture, sale of a immovable, sale
of shares
• Place of performance in a non-MS

If we cannot apply letter b) we go back and apply letter a). However, there are a few exceptions. If we
cannot characterize the contract as a sale of goods or provision of services we have to go back to letter
a).


Some cases:

Case 1: A (Spanish company) is your client. According to your client, it has been the exclusive agent of
B (French company) in Spain for the last 10 years. B has unlawfully terminated the (oral) contract they
had entered into. Your client wants to sue B, claiming compensation for damages, but is not sure where
can the claim be filed.
Both Spain and France. Spain due to the application of the rules of special jurisdiction (applying Art. 7)
and France because is the place of the defendant.

Case 2: A is a Spanish Law firm providing legal services to B (a US company). There is an agreement but
not a choice-of-jurisdiction clause. A made a big mistake and B decides to sue A. where can B sue A?
General jurisdiction, applying Brussels I regulation B can sue A in Spain because it is the defendant. We
have to see the place of performance of the service. The obligation in question is the provision of
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services, if it is outside of the EU, you cannot use art. 7. If the services were given in Spain, then Art. 7
apply.
If the parties have not agreed on place where the legal advice are taking place. We have to go to Rome
I and determine which is said there.

Case 3: Ambrosi, established in Nice (France), had been distributing in France the food products made
by Granarolo, established in Bologna (Italy), for approximately 25 years, without a framework contract
or exclusivity agreement. By registered letter of 10 December 2012, Granarolo informed Ambrosi that
from 1 January 2013 its products would be distributed in France and Belgium by another French
company. Taking the view that that letter amounted to an abrupt termination of their established
business relationship, within the meaning of Article L. 442-6 of the Commercial Code, which did not
comply with a minimum notice period that took account of the duration of their relationship, Ambrosi
brought an action for damages against Granarolo before the tribunal de commerce de Marseille
(Commercial Court, Marseille, France) on the basis of that provision. See case C-196/15, Granarolo
SpA,


II. Torts

Art 7: "A person domiciled may be sued in another Member State:
2. In matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful
event occurred or may occur;

Sometimes, the line is very difficult to determine. There are some grey areas in which member states
do not agree. The interface between Art 7(1) and (2) is not easy to determine.

A forum based on principle of proximity: a court which has a close connection with the facts giving
rise to the dispute à facilitates administration of justice, the evidence, etc.

Autonomous definition of tort, delict and quasi delict: «All actions which seek to establish the liability
of a defendant and which are not related to a contract within the meaning of Art 5(1)» à ECJ
Kalfelis1988. There is a negative definition of tort, delict and quasi delict. When there is no contractual
relationship, we are under Art. 7. The content of the provision is very broad.

What are the contents of this expression?
• Pre-contractual liability
• Car and other traffic accidents
• Damages (body or causing death)
• Infringement of personality rights
• Products liability
• Environmental damages
• Unfair competition

The ECJ has a broad interpretation of contracts. What the ECJ does is to see whether there is a contract,
and only in case it considers that there is no contractual relationships, it analyzes whether art. 7
applies.

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International and territorial jurisdiction
It aims to be a balanced forum for both parties not protecting one party more than the other. Actions
covered:
- Claim for damages
- Preventive actions. Consumer’s association’s cases.
- Injunctions

We don’t have to look at the LOPJ to know which court may have jurisdiction; we will know that, thanks
to Art. 7.1 (geographical jurisdiction also).

The rule: The courts having jurisdiction are those for “the place where the harmful event occurred”.
This is a really vague definition. Place of the harmful event: we have the task to identify the place
where the harmful event occurred.

• Most of the times very easy: eg. A pedestrian is knocked down by a car and treated in hospital
in the same city.

• Cases where the damage and the events leading up to it are geographically SEPARATED à
Mines de Potasse d’Alsace à UBIQUITY RULE. Chemical products causing damage to tulips in
Netherlands. In this case, the ECJ created a principle of ubiquity saying that both courts could
be considered to be located at the place where the harmful event occurred: the place where
the chemical products were discharged and the place where the damage had effect.

As a result, if the damage occurs or has effects in different places, the claimant may choose to
sue in:
o Courts of the place where the damage occurred. There we will find the evidence of an
accident, for example.
o Courts of the place where the harmful event giving rise to the damage occurred.

The damage, which locates jurisdiction:
o Damage to the immediate victim: not to indirect victims
o Effect test: the place where the damage is suffered
o Direct damage. Not secondary damages suffered by the victim

• The same victim suffers damages in different MS sà Fiona Shevill à MOSAIC PRINCIPLE
o Assert jurisdiction in respect of all the damage à (origin of damages) where the
publisher of the newspaper in question is established, since that is the place where
the harmful event originated and from which the libel was issued and put into
circulation.
o Any court of a MS where the damage occurred, claiming only as much as the damage
suffered in that MS: (places of effect) before the courts of each Contracting State in
which the publication was distributed and where the victim claims to have suffered
injury to his reputation, which have jurisdiction to rule solely in respect of the harm
caused in the State of the court seized.

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These rules are mainly for:
- IP rights, personality rights, etc.
- Not really in product liability (manufacturer)
- Not in cuasi-criminal (place of origin/direct damages)


Internet the medium: Case of an alleged infringement of personality rights by means of content
placed online on an Internet website. It is necessary to adapt the interpretation by adding the
possibility of claiming the total amount of the damage at the ‘center of gravity of the dispute’ à
• State in whose territory the information at issue is objectively and particularly relevant and
where, at the same time,
• The holder of personality rights has his ‘center of interests’.
o There the claimant will be able to claim for the whole damage. However, it is also
possible to go state by state.

Infringement of IP rights or copyright: different solution
- Why? Principle of territoriality
- Action for infringement of a trademark:
o The courts where such trademark is protected: place of damage
o The courts of the Member State of the place of establishment of the advertiser: place
giving rise to the damage

Some cases:

Case 1. A German driver goes to FR on holiday. There he injures a British tourist. The latter returns to
UK, where he suffers pain, incurs medical expenses and financial losses (he is self-employed and cannot
work because of the accident) and is permanently disabled. Can he sue the driver in England under
article 7)?
We may wonder if art. 7 (2) in matters relating to tort, delict or quasi-delict, in the courts for the place
where the harmful event occurred or may occur; may apply : we cannot sue in the UK (through article
7). This section (and article) only applies to direct damages (the place of the accident), not to indirect
damages (appearing later as a result of the damage), which is not like saying that you do not have the
right to claim those damages: you have that right, but in France (where the direct damages occurred),
but not in the UK under article 7.

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Case 2.- a British company manufactures a machine, which it sells to a retailer in England. A Spanish
businessman buys it from the retailer and takes it back to Spain, where he uses it. He is injured owing
to a defect in the machine. Can he sue the British manufacturer in tort in Spain?
The origin of the damage (you are claiming against the manufacturer in tort). according to the ECJ the
place of jurisdiction is the place where the product has been manufactured (where the damage
occurs). In products liability you go to the place of manufacture, not to the ubiquity rule (cases of
environment, etc.)


Case Law Analysis:

How was Fiona Shevill case (the victim suffers damages in different MS) altered?
• Now the media is worldwide, and we are talking about personality rights (diffamation), even
if the harmful event happened in Austria, the relevant thing is going to be the center of interest
(because the damage is worldwide, it is very difficult to determine the place of the damage).
usually, the center of gravity or center of interest will be the domicile (then the claimant can
go for the whole damage, but in the case of “edate?”

• IP rights are protected by the principle of territoriality, so an action of infringement of a
trademark can be claimed in the place of damage (the placee where the trademark is
ptetected) and int he place of establishment of the advertiser. We come back to the Fiona
Case criteria.


III. Consumer contracts

1. Access to justice à difficulties faced by consumers

• Consumers are often not aware of their rights
• If they are, they may not know how to claim them
• The small amounts involved inhibit consumers from taking legal action
• They may have to litigate abroad
• Application of a foreign law
• Difficulties in finding a lawyer and it is expensive to find one.
• Sometimes the consumer may have to claim the recognition of the decision
• Different procedural rules from one State to the other, etc.

If we want consumers to use the common market, we need them to trust it, that’s why it is important
to grant the consumer he or she will have access to access.

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2. Jurisdiction over consumer contracts in BIR

How can the consumer be protected from a jurisdictional point of view?

1. To establish special jurisdictional rules: forum actoris (it is a forum based on claimant) à The
general rule protects the defendant. Here, generally, the defendant will be the company. So,
to protect the consumer, we should change this general rule and grant the consumer to litigate
“at home”.
2. To limit party autonomy
3. Control jurisdiction in Recognition and enforcement: guarantee that the court rendering the
case applies correctly the rules. (Reminder: one of the reasons of rejection is that the court has
not applied correctly the rules of jurisdiction)


3. Section IV of the BIRR devoted to consumer protection

In order for section IV to be applicable, there is a special scope of application. It does not protect all
consumers in any circumstance.

• SCOPE OF APPLICATION: it only protects certain consumers.
o Regardless of the defendant's domicileà new within BIR (recast)!!!! à it extends the
protective rules to cases in which the defendant is domiciled outside the European
Union. This happens only when the defendant is the supplier or the professional.
o Who is a consumer? Article 17 BIR gives a definition of consumer.
o What is a consumer contract?

• SPECIAL RULES ON JURISDICTION
o Consumer vs. Professional à Consumer’s domicile (forum actoris) or professional’s
domicile
If we are under the scope of application of Section IV, in case a consumer is acting
against the supplier, he will have the possibility to sue at the professional’s domicile
or at the consumer’s domicile.
If the professional is domiciled outside the EU, the only option for the consumer is to
sue the supplier in the consumer’s domicile.

o Professional vs. Consumer à Consumer’s domicile only
When the professional is acting as a claimant and the consumer is the defendant, the
reference will be (as for the general rule) the defendant’s domicile.

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4. Subjective and objective scope of application

Article 17 BIR (recast):
1. In matters relating to a contract concluded by a person, the consumer, for a purpose which
can be regarded as being outside his trade or profession, jurisdiction shall be determined
by this Section, without prejudice to Article 4 and point 5 of Article 5, if:
a. it is a contract for the sale of goods on instalment credit terms; or
b. it is a contract for a loan repayable by instalments, or for any other form of credit,
made to finance the sale of goods; or
c. in all other cases, the contract has been concluded with a person who pursues
commercial or professional activities in the Member State of the consumer's
domicile or, by any means, directs such activities to that Member State or to
several States including that Member State, and the contract falls within the scope
of such activities.
2. Where a consumer enters into a contract with a party who is not domiciled in the Member
State but has a branch, agency or other establishment in one of the Member States, that
party shall, in disputes arising out of the operations of the branch, agency or establishment,
be deemed to be domiciled in that State.
3. This Section shall not apply to a contract of transport other than a contract which, for an
inclusive price, provides for a combination of travel and accommodation.


Who is a consumer according to article 17 BIR (Recast)

• Consumer = “Someone who makes the contract for a purpose which can be regarded as being
outside his trade or profession”: simple definition, developed though case law by the ECJ
(judicial interpretations have provided further details)

• One party to the contract shall be a consumer (natural person), and the other a professional:
Rome I introduces such requirement. It does not apply to contracts between 2 consumers. It
only covers natural persons.

• Autonomous (forget the definition under Spanish law), restrictive (because it is an exception
to the general rule) and teleological (the ECJ has said that only those persons who are legally
and economically weak deserve the jurisdictional protection and they do not expect litigation)
elements for the interpretation of a “consumer”:
o The quality of “consumer” depends on his position in a given contract: Benincasa v.
Dentalkit.
- Even if Benincasa was weaker, section IV only protects consumers as final
consumers. The contract was a franchise agreement, which are per se
comprehends two professionals.

o The consumer must be party to the proceedings on the contract which he made (the
dispute cannot be assigned to a company): Shearson Lehman Hutton.

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o What happens in case of consumer associations or national bodies pursuing rights “on
behalf of”? à Section IV is only applied to natural persons and not to consumer
associations: a consumer association is not a natural person. Usually the consumer
assigns the rights to consumer associations, but as a consumer, there is a loss of the
protection of Section IV.

o A person who concludes a contract in part within and in part outside his trade or
profession may not rely on the special rules of jurisdiction: Johan Gruber (only when
professional destiny is marginal)à if you present yourself as a professional and,
afterwards, you want the protective rules to be applicable, even if you can really be
considered a consumer, you will lose the protection of Section IV. The ECJ said that if
you are partially a business man, you expect litigation so Mr Gruber was not
considered a consumer. This is unless the professional destiny is just marginal (a really
small part).


5. Consumer contracts covered by article 15 BIR

Being a consumer is not enough. Article 15 derives two types of contracts, and mentions other cases:

• Contracts for the sale of goods on instalment credit terms (ventas a plazo) à enough with
this.

• Contracts for a loan repayable by instalments or any other form of credit made to finance the
sale of goods à enough with this.

• “all other cases”... the contract has been concluded by:
o A person who pursues commercial or professional activities in the MS of the
consumer’s domicile à the professional has a presence in the consumer’s domicile.
o Or by any means directs such activities to the consumer’s domicile (see underneath in
the Pammer case) in such cases, we require:
- Target activity test (we need a willingness from the part of the supplier.
Otherwise, it opens the possibility to be sued anywhere. Here the ECJ says
there is a need to demonstrate the willingness of the supplier to direct the
activities to the consumer’s domicile)
+
- And the contract falls within the scope of such activities à Emrek C-218/12

In all other cases of point three of this slide, there is a need of a link between the contract and the
place of the consumer. Passive consumers mean consumers that have been attacked by suppliers
while they were in their domicile. There are two requirements to demonstrate that the link exists and
these are the ones above regarding the target activity test and that the contract falls within the scope
of such activities.

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Target activity test

• By any means the professional directs such activities to the consumer’s domicile:
o What is the exact meaning of “directing activity”?
o Importance in e-commerce: Pammer
- On the basis of what criteria, a trader whose activity is presented on its
website or on that of an intermediary can be considered to be ‘directing’ its
activity to the Member State of the consumer’s domicile?
- Whether the fact that those sites can be consulted on the internet is sufficient
for that activity to be regarded as such.
- Disclaimer??? Is the consumer protected in those cases? The web page
expresses the intention not to direct activities to some states

Being on the net is not enough to be considered as directing activities since otherwise this
would mean that any company with a website could be sued in any MS. The declaration
distinguished between passive and active websites. Passive website means there’s no way of
contracting through the website, you can look the product but you have to contact them to
purchase, while an active website allows the consumer to contract by clicking a button. The
declaration stated that companies having passive websites could not be considered as to be
“directing such activities”, thus, don’t fall under art. 17 BIRR while active websites do.

However, this joint declaration was reinterpreted by the ECJ in Pammer case. The preliminary
question to the ECJ was regarding what was considered a direct activity. The ECJ said that even
if it’s a passive website if we can proof the intention of the supplier of directing these activities
to a consumer’s domicile it will be considered as directing activities to such places.

• The following matters, the list of which is not exhaustive, are capable of constituting evidence
from which it may be concluded that the trader’s activity is directed to the Member State of
the consumer’s domicile:
o Mentioning that it is offering its services or its goods in one or more Member States
designated by name.
o Use of a top-level domain name other than that of the Member State in which the
trader is established, for example ‘.de’, or use of neutral top-level domain names such
as ‘.com’ or ‘.eu’
o Mention of an international clientele composed of customers domiciled in various
Member States
o Use of a language or a currency other than the language or currency generally used in
the Member State in which the trader is established (with the possibility of making
and confirming the reservation in that other language)
o Mention of the international nature of the activity at issue, such as certain tourist
activities
o Mention of telephone numbers with the international code
Criteria: Evidence of the willingness of the supplier to direct the activities to the consumer’s
domicile.
Non exhaustive list: target activity test in order to proof intent by the supplier

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“Scope of such activities” à Emrek C-218/12

Facts: Mr Emrek, domiciled in Saarbrücken (Germany) was looking for a second-hand motor vehicle.
Mr Sabranovic operates a business selling second-hand motor vehicles (France), a town close to the
German border. At the material time, he had an Internet site which contained the contact details for his
business, including French telephone numbers and a German mobile telephone number, together with the
respective international codes. Having learned from friends, and not from the Internet site, of
Mr Sabranovic’s business and the possibility to purchase a motor vehicle, Mr Emrek went to the business
premises of that undertaking in Spicheren and concluded a written contract for the sale of a second-hand
motor vehicle with Mr Sabranovic at his premises.
Is Mr Emrek a consumer contracting in the terms of Art 15 BIR?

ECJ à the application of Article 15(1)(c) is not subject to the conclusion of a consumer contract at a
distance, the Court added to the non-exhaustive list other factors concerning, in particular, the
‘establishment of contract at a distance’ and the ‘conclusion of a consumer contract at a distance’, which
are of such a nature as to establish that the contract relates to an activity directed to the Member State of
the consumer’s domicile. The causal link which is the subject matter of the first question must be regarded
as constituting evidence of ‘directed activity’ in the same way as the establishment of contract at a distance,
which gives rise to the consumer being contractually bound at a distance.


à No need of a cause link between the web page and the conclusion of the contract. The only need is
that the supplier is willing to direct its activities to the consumer’s domicile.




Recap on Special Jurisdiction (consumer) rules:

• Whenever the consumer acts as a plaintiff
o The courts of the MS where the consumer is domiciled: forum actoris
o The courts of the MS where the supplier is domiciled
• The supplier may only bring proceedings against the consumer in the courts of the MS where
the consumer is domiciled.
• Choice of court agreements are very limited: only acceptable in the conditions laid down in art.
19 RBI.

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Lesson 5. The verification of jurisdiction – Lis alibi pendens and related

actions

Verification of jurisdiction

Article 27
Where a court of a Member State is seized of a claim which is principally concerned with a matter
over which the courts of another Member State have exclusive jurisdiction by virtue of Article 24, it
shall declare of its own motion that it has no jurisdiction. à ex-officio verification of jurisdiction

Article 28 (article 19 see)
Where a defendant domiciled in one Member State is sued in a court of another Member State and
does not enter an appearance, the court shall declare of its own motion that it has no jurisdiction
unless its jurisdiction is derived from the provisions of this Regulation. à ex-officio verification

The court has to make sure that the non-appearance is something derived from the will of the party.
The judge must be sure that the defendant is correctly and duly notified. The judge will have to wait
one year, if after one year there is no solution, he will examine ex officio the jurisdiction.

Ex-officio verification in exclusive jurisdiction

• Aim: The need to ensure coordination of the judicial function performed in MS through the
control of the grounds of jurisdiction. à Irrelevance of the parties’ will

• Art 27: In which cases should the judge control by his/her own motion? Why?
o Conditions of applicability:
§ The court of a MS, being the one principally seized of the matter, sees it has
no jurisdiction over it à ‘principal as opposed to purely incidental Eg: title to
ownership of a property, may be a preliminary matter to establishing validity
of a contract of sale to the said property.
§ The claim falls within the scope of those matters governed by exclusive
jurisdiction rules laid down in Art 24 BIRecast
§ A different court of another MS has exclusive jurisdiction of the matter.

o If more than one State has exclusive jurisdiction à Art 31 à first seized court

Some cases:

Case 1.- A Spanish consumer (San Sebastian) buys through internet a set of kitchen products from a
British company. The set is not in conformity with the quality offered and after having tried to solve it
though a friendly way without a reply decides to sue the company: Where?
Imagine there is a Brach of that British company in Bilbao (it appears in the web and is the one in
charge of the orders)?

61

Case 2.- Same situation but the company is FR with its domicile in Burdeos. The Spanish consumers
sees the offer in the web but in a trip to Burdeos buys the set.
Ex-officio verification in non-appearance

Article 28:
• The courts must conduct an examination, on its own motion, as to jurisdiction in the event of
the defendant’s failure to appear
• In all other cases the examination is only conducted by the court seised if expressly requested
by defendant that has appeared à since his uncontested appearance is considered equivalent
to tacit acceptance of jurisdiction
• In this second case the examination only takes place after the confirmation of the failure of
the defendant to appear.

Lis pendens

• The problem of parallel litigation:
o Aims of the BIRrecastà free movement of judgements/one judge/competing
judgements may hamper that goal
o Potential of irreconcilable judgements
o the same claim seeks the advantage of an early favorable judgment à race to
judgments

à Lis pendens rule aims to avoid such parallel litigation- the reason: cost and avoiding
divergent judgments

• No acceptance of Forum non-convenienceà Owusu case

• No acceptance of Antisuit injunction à is a court order rendered against a private party with
the aim either of preventing that party raising an action in another forum, or forcing that party
to discontinue such an action if already started
o BIRegulation: Art 29-30 only when the parallel litigation was in different MS
o BIRrecast remedies this gap for cases in which third country litigation parallels EU
litigation (art. 4 and 7)

Turner V. Grovit C-159702
Turner was a young solicitor who worked for HaradaLtd, a company that came under the control of Mr
Grovit. Turner’s contract of employment as group solicitor stated that he would be based in London or ‘as
you may be directed’. In 1997, he was moved to Madrid, where he worked at the office of a Spanish
company called Changepoint SA. It was the Spanish member of the same group. The move was intended to
be temporary: he was still employed by Harada. The Spanish company paid Harada.

A few months after arriving in Madrid, Turner found that the whole group of companies was involved in a
tax fraud. Turner was expected to defend the companies but he resigned and returned to UK.
He brought proceedings against Harada before English courts. He got a favorable judgment.
Grovit responded by bringing proceedings against Turner in Spain in the name of the Spanish company.
Damages for unjustified departure were claimed and for bringing a baseless claim in the UK

62

Turner brought proceedings in the UK for an antisuit injunction. The Court of Appeal found that the Spanish
proceedings had been brought in bad faith.
A reference was made to ECJ.
Lis pendens between member states (article 29)

General rule. For cases with:
• Same cause of action (Meaning: broad concept)
• Same parties
• Same object

The following rules of lis pendens apply:
• Any court other than the court first seized shall of its own motion stay its proceedings until
such time as the jurisdiction of the court first seized is established.
• In cases referred to in paragraph 1, upon request by a court seized of the dispute, any other
court seized shall without delay inform the former court of the date when it was seized in
accordance with Article 32.
• Where the jurisdiction of the court first seized is established, any court other than the court
first seized shall decline jurisdiction in favor of that court.

Art 30 Uniform definition of “when a court is seized”
For the purpose of this section, a court shall be deemed to be seized:
1. At the time when the document instituting the proceedings or an equivalent document is
lodged with the court, provided that the plaintiff has not subsequently failed to take the steps
he has required to take to have service effected on the defendant, or
2. If the document has to be served before being lodged with the court, at the time when it is
received by the authority responsible for service, provided that the plaintiff has not
subsequently failed to take the steps he was required to take to have the document lodged
with the courts

In Practice: When may lis pendens arise?
• if a claimant launches parallel litigation in two courts
• If a defendant counterclaims in a different court from that in which a claim is brought

Italian Torpedoà Gasser
Relationship between Art 25 and 27 BIR?

Art 31(2) BIRR
3.Without prejudice to Article 26, where a court of a Member State on which an agreement as referred
to in Article 25 confers exclusive jurisdiction is seized, any court of another Member State shall stay the
proceedings until such time as the court seized on the basis of the agreement declares that it has no
jurisdiction under the agreement.
4.Where the court designated in the agreement has established jurisdiction in accordance with the
agreement, any court of another Member State shall decline jurisdiction in favor of that court.
5.Paragraphs 2 and 3 shall not apply to matters referred to in Sections 3, 4 or 5 where the policyholder,
the insured, a beneficiary of the insurance contract, the injured party, the consumer or the employee is
the claimant and the agreement is not valid under a provision contained within those Sections.

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Lis pendens and third states (article 33 BIRR)

Article 33 BIRR
1. Where jurisdiction is based on Article 4 or on Articles 7, 8 or 9 and proceedings are pending before a
court of a third State at the time when a court in a Member State is seised of an action involving the
same cause of action and between the same parties as the proceedings in the court of the third State,
the court of the Member State may stay the proceedings if:
a) it is expected that the court of the third State will give a judgment capable of recognition and,
where applicable, of enforcement in that Member State; and
b) the court of the Member State is satisfied that a stay is necessary for the proper administration
of justice.

2.The court of the Member State may continue the proceedings at any time if:
a) the proceedings in the court of the third State are themselves stayed or discontinued;
b) it appears to the court of the Member State that the proceedings in the court of the third State
are unlikely to be concluded within a reasonable time; or
c) the continuation of the proceedings is required for the proper administration of justice.

3. The court of the Member State shall dismiss the proceedings if the proceedings in the court of the
third State are concluded and have resulted in a judgment capable of recognition and, where
applicable, of enforcement in that Member State.
4. The court of the Member State shall apply this Article on the application of one of the parties or,
where possible under national law, of its own motion.

The forum of non-conveniens and Brussels I Regulation recast (Owshu Case, page 26)


Interim measures (Case 1)

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Lesson 6. The recognition and enforcement of foreign State court

judgements. Recognition and enforcement under Brussels I Recast

I. Generalities

What is Recognition and Enforcement?

A foreign court has already given a judgment, that needs to be recognized in a foreign state. The reason
is that we litigate in the defendant’s domicile, but the defendant might not have assets in that precise
state. this is a typical situation in PIL: judgments given in a foreign court, that require recognition in
Spain.

The territoriality principle implies that legal systems only perform within the boundaries of their own
state. For that, we need rules for recognition and enforcement.

- It is one of the three sectors of PIL besides jurisdiction and choice of law.
- Will the Spanish court recognize or enforce a foreign judgment purporting to determine the
issue between the parties?

Until this moment we have been focusing on the court, which will litigate in an international context.
In this case, a foreign court has already settled the dispute between the parties and now this judgment
needs to be recognize or enforced in another state. The typical situation in civil and commercial
matters is the one in which we litigate in the courts of the defendant domicile, the judgment condemns
the defendant to pay a certain amount of money. If in that state the defendant does not have property
to pay the debt recognized by the court, there would be a need to recognize and enforce the judgment
in another state.

Why?
- Territoriality Principle: The judgments of a State’s court have no force by themselves in
another State. The operation of legal systems is, in general, territorially circumscribed.
- International context à need to avoid repeated litigation and conflicting decisions
- States have:
o Interest in promoting international transactions
o At the same time, they have reasons to deny a foreign judgment the same force they
grant to their own judgments:
§ The foreign court had no jurisdiction (when Spanish courts had exclusive
jurisdiction over the matter. i.e. immovable property situated in Spain)
§ Public order: judgments in family matters. i.e. not allow divorce between two
spouses, because it was the woman who had repudiated the husband.
§ Rights of defense: the procedural rules have not been followed properly.
§ Need of a translation of a document
§ Cases of lack of trust of the legal system in which the decision has been given
(The authority had actual power to give the decision)
- Rules on recognition and enforcement control that a foreign judgment fulfills certain formal
and substantive conditions.

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According to the territoriality principle (legal systems can only make force within the boundaries of
their states), in principle, in order to have effects of a decision in a different state, we would need to
re-litigate again there, which could lead eventually to conflicting decisions. We try to avoid this through
recognition and enforcement rules.

II. Key Concepts

Effects of foreign judgments:
• Res judicata effect: precludes re-litigation of the same issue. Sometimes, in an international
context, the person may need to seek to invoke this effect.
• Enforceability effect: a judgment ordering the defendant to pay a certain sum of money to the
plaintiff (monetary), to do or refrain from doing something (non-monetary à specific
performance). Enforce in civil and commercial matters.
• Enter into a Public Registry: make a change on the information that was published therein (i.e.
to alter the cancelation of a mortgage).
• Constitutive effect: a judgment which creates, modifies or extinguishes a legal relationship
(the typical example is an ad ex divorce decree, where the judge is required to extinguish the
relationship).

Depending on the effect attached to the foreign judgment, we will differentiate between different
mechanisms of recognition and enforcement.

Important distinction in this field (proper vocabulary of PIL):

• Recognition. Depending on the context we use the general or the particular definition:
o In general (broad scope): means to recognize in the State addressed all the effects that
a foreign judgment has in the State of origin (res judicata, declaratory, enforceability).
That is, to recognize any of the effects the enforcement has in the state of origin, in the
state addressed.
o In particular (narrow scope): means to recognize in the State addressed the effects of
a foreign judgment other than enforceability effect. (avoid re-litigating in Spain when
you succeeded in German courts – seeking to recognize the foreign judgment, but not
necessarily the enforceability of it).

• Exequatur: is an autonomous procedure, which has as its object only to declare a foreign
judgment enforceable in the State addressed (declaration of enforceability). Despite its name
(“exequatur” = “execution”), this procedure also extends to foreign judgments, which do not
have an enforceability effect (declaration of recognition). Prior to enforcement all judgments
need to obtain the exequatur stating whether the judgment is recognized or not. Once you
have obtained the exequatur you can commence the enforcement proceedings just as if the
judgment had been given in the courts of that state. Until that moment, the judgment was
foreign; after the exequatur, domestic.
o Exequatur is mandatory before commencing execution proceedings or entering public
Registers for foreign decisions from countries which lack agreement with Spain
(excluded in BIRR – Lugano Convention or Ley de Cooperación Judicial Internacional)
o Differentiation: State of Origin and State Addressed.

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Example: The judgment has attached res judicata in Germany. You need the German judgment to be
enforced in Spain. Needing the exequatur means that you need a court to give another decision on the
possibilities of this decision to be recognized and enforced in Spain. This autonomous procedure only
has as object to analyze the foreign judgment and decide if it is recognized. You only talk about
exequatur about those decisions that have attached the enforceability effect, you don’t talk about
exequatur regarding judgments that don’t have attached the enforceability effect and that will only be
recognized.

This exequatur procedure was costly and time-consuming, in the EU all the aims have been putt o
abolish the exequatur. In the scheme of Brussels I regulation, it is not mandatory to obtain this
declaration of recognition or enforceability prior to enter into a public registry or starting enforcement
proceedings. Under autonomous system of private international law, exequatur is mandatory. You can
actually appeal the decision if you don’t agree before “Audiencia Provincial” or before the “Tribunal
Supremo”. While the exequatur has not finish you cannot initiate any enforcement proceeding.

• Enforcement: refers to the procedure, which has as its object to compel debtors to comply
with the judgment of the court. Ad ex in order to recover a debt, the claimant (creditor) applies
for judicial enforcement and obtains the recovery by way of the attachment of the debtor’s
bank accounts or the debtor’s property that, once auctioned, allows the auction proceeds to
pay the amount owed to the creditor.

III. Brussels I Recast: introduction

Scope of application:
• Judgment given in a MS, which shall be recognized in another MS: inter partes.
• In commercial and civil matters (article 1 BIR), material scope of the regulation.
• Irrelevance whether the court of the MS of origin (i.e. which gave the judgment) based its
competence on the jurisdiction rules of BIR or on its own rules (i.e. LOPJ). Exception:
provisional measures (art. 2.a). 2º. BIR). Irrelevance of domicile or nationality of the parties
(recital 27).
• “Judgment”: autonomous definition ex art. 2.a) BIR
o Judgment given by a court of a MS
o Whatever it may be called: decree, order, etc., and decisions on the determination of
costs by an officer of the court
o No requirement judgment be final and conclusive (see art. 38.a), 44.2 and 51 BIR).
Provisional judgment/ provisional decisions, pending in the state of origin, can also be
recognized and enforce in another MS. If that decision is challenged in the state of
origin, the enforcement in the other MS must be paralyzed.
• Provisional measures: only included under the BIR (only benefit from this regulation if).
o Ordered by a MS court having jurisdiction by virtue of BIR
o Ordered with the defendant being summoned; or
o The judgment containing the measure is served to the defendant prior to
enforcement.
§ If not, does not mean they are prohibited, only means that they will not
benefit from the trust and speed granted by the BIRR.
• Authentic instruments”: art. 2.c) BIR

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• “Court settlement”: art. 2.b) BIR

Chapter III BIR: arts. 36 to 60 (& recitals 26 to 33)
• Principle of Mutual Recognition (art. 81 TFEU)
• Principle of Mutual Trust (Recital 26)
• Principle of Free circulation of judgments within the EU (Rec. 27)

If the judgment is not given in a MS:
• Lugano Convention 2007. It has also a regime on recognition and enforcement, which deviates
a bit from the one under Brussels I Recast.
• Multilateral and bilateral conventions
• Ley de Cooperación Jurídica Internacional

* Difference between BIR and Lugano Convention. In Lugano the fact that a judgment given in another
MS has attached the enforceability effect does not emanate directly from the decision but from the
court of the member state addressed. The foreign judgment was not enforceable because being
enforceable in the state of origin but because when the party wanted to initiate enforcement
proceedings before the courts of another MS it had to apply for a declaration of enforceability in that
court and then this declaration was served on the defendant in case he/she wanted to refuse the
enforcement of the decision.

The innovation introduced into the Brussels I recast is automatic enforcement, the enforceability effect
emanates directly from the foreign judgment, a result of the operation of the law. I directly act the
court to commence the proceedings. The first measure of enforcement will be served to the defendant
(auto despachando la ejecución). He/she will have a period of 10 days to decide whether he wants to
refuse the recognition of that foreign judgment and apply for the exequatur and paralyze the
enforcement proceedings.

In theory we have the different scenarios covered by BIR:
- Automatic recognition à No exequatur
- Automatic recognition à Exequatur and suspension of enforcement proceedings
- Enforcement proceedings

Another option is that I directly apply for the recognition of the foreign judgment, to avoid the risk of
the debtor or the losing party challenging the enforcement with an exequatur.
When you are the defendant, you can also ask for the non-recognition of the judgment if you realize
that the foreign court has no competence or jurisdiction. Solicitas un procedimiento de exequatur
solicitando el no reconocimiento en base al Art. 45.

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IV. Brussels I Recast: outline of the mechanisms

Automatic recognition: art. 36.1 BIR. It is set to be the cornerstone of the scheme of Brussels I.
“A judgment given in a Member State shall be recognized in the other Member States without any
special procedure being required”. (= no exequatur required mandatorily, he can decide if he wants to
have an exequatur or not).

Example: A obtained a judgment in a French court against B, by which it declared cancelled a mortgage
contract of movable property registered in Spain (a boat). A wants to enter the judgment into the
Spanish Public Registry.
• “Without any special procedure being required” = no previous exequatur (declaration of
recognition) required à automatic. From the perspective of A, it only needs to produce a copy
of the judgment obtained in a French court and a certificate that it has to request to the
French court, it has to fulfill formal requirements (comply with the standard form established
in Annex 1 of BIR, Art. 53).
• Incidental recognition: does not oblige other courts or authorities of the same MS
• The authority (registrar in the example) does not control ex officio the grounds for refusal
listed in article 45 BIR. The Spanish register will only check that the formal requirements have
been complied with.
• Only fulfillment of formal requirements set out in art. 37 BIR. This automatic recognition also
means that the recognition undertaken by the registrar has only incidental effects. This means
the decision of the registrar to allow the entrance of the foreign judgment on the Public
Registry does not oblige any other courts or authorities of the MS addressed. If the Spanish
registrar decides to enter that judgment at any moment, the other party, the unsuccessful
party may apply for the exequatur.

Automático significa que no me va a mirar nada el registrador, este practica la inscripción. Es evidente
que este reconocimiento que implica de facto reconocer la sentencia extranjera, pero esto no tiene
efecto frente a los tribunales o otro legislador porque en cualquier momento la parte que no esté
conforme puede solicitar un exequátur, porque este es el único procedimiento sobre el sí o el no del
reconocimiento de una decisión con eficacia erga omnes. Cuando solicito el reconocimiento automático
para ahorrar dinero y tiempo, tengo que tener en cuenta esto. Si el exequátur finaliza diciendo que no
se reconocerá la sentencia, el registrador dejará sin efecto la inscripción. El reglamento facilita a
cualquier persona que tiene una sentencia de un estado miembro que no tenga que pasar por un
exequátur. Si tienes la inscripción y al poco se inicia un procedimiento de exequátur se pide la
suspensión de la ejecución.

Automatic enforcement: art. 39 BIR
“A judgment given in a Member State which is enforceable in that Member State shall be enforceable
in the other Member States without any declaration of enforceability being required”. (= no need of an
exequatur).

The enforceability effect within the context of Brussels I Recast emanates from the foreign decision.
The exequatur may be very pacific or complicated depending on the interests at stake.

Example: A obtained a judgment in a French court ordering B to return a boat to A. B brings the boat
to Italy. The judgment is directly enforceable in Italy.

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- “Without any special procedure being required” = no previous exequatur (declaration of
enforceability) required à automatic
- In the example, the judgment is enforceable in France, so it is in Italy where the boat now is
situated.
- A can commence the procedure for the enforcement of the French judgment in Italy which
will be governed by Italian procedural law (art. 41 BIR).
- The Italian court does not control ex officio the grounds for refusal listed in article 45 BIR.
- Fulfillment of formal requirements set out in art. 42 BIR.

Recognition arising as an incidental question: art.36.3 BIR.

“If the outcome of proceedings in a court of a Member State depends on the determination of an
incidental question of refusal of recognition, that court shall have jurisdiction over that question”. Only
when refusal of recognition is the incidental question.

Example: A, domiciled in Barcelona, obtained a judgment in a German court against B, by which it
declared the contract between the parties void. Subsequently, B sues A before the Spanish courts for
breach of that contract. A raises as a bar the judgment given in German courts for the new proceedings
started against him.

You want to recognize the res judicata effect to avoid the same parties to face the same proceedings
solved in Germany. The question of recognition does not arise as a principal question, it only raises as
a principal question in exequatur. A tries to preclude the initiation of the proceedings, answers B with
an exception of res judicata. If the plaintiff (B) does not refuse the recognition of that judgment,
automatic recognition; but if it seeks to refuse it (because it is against the public order in Spain), the
court has competence to decide if the judgment must be recognized or not according to Art. 45. The
resolution of that court regarding the recognition or not, has only effects between the parties (388
LEC).

Differentiation:
• Main object: breach of the contract
• Incidental question: the contract is void according to German courts (the question of
recognition is not the principal question, but only incidental)

Effects of recognition arising as an incidental question:
• Res judicata effect: avoids initiating new proceedings involving the same cause of action
between the same parties in the courts of another MS
• The court dealing with the principal question has jurisdiction to decide on the refusal of
recognition and enforcement as an incidental question: arts. 388 et seq. LEC (“De las
cuestiones incidentales”). See DF 25ª.2ª LEC
• It is only “automatic” if the defendant invokes the recognition of the judgment of another MS
as an incidental question (i.e. as a bar (res judicata) to initiate the new proceedings) and the
plaintiff does not seek the refusal of the recognition of the judgment
• Otherwise, the court shall determine if the foreign judgment can be recognized on the grounds
of refusal alleged by the party seeking the refusal of recognition ex art. 45 BIR
• Incidental recognition: does not oblige the other courts of the same MS à exequatur

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EXEQUATUR: art. 46-51 BIR
• Declaration of enforceability or non-enforceability, and declaration of recognition or non-
recognition: although subsection 2 of section 3 refers to “Refusal of enforcement” (art. 36.2
BIR)
• When?
o At the outset
o Once automatic recognition or enforcement and incidental recognition has been
already applied for before a court or authority (Public Registry): arts. 38.b) and 44 BIR
• The competent court will decide on the recognition of a foreign judgment on the grounds
exhaustively set out in art. 45 BIR
• Principal recognition: the decision obliges the other courts and authorities of the same MS.
This is different to incidental question.
• The competent court in Spain: Disposición Final 25ª LEC, which develops Brussels I Recast
adapting the mechanisms to Spanish procedural law.
o Declaration of recognition: Juzgado de primera instancia ex arts. 50 and 51 LEC
o Declaration of non-enforceability once automatic enforcement has been initiated: JPI
competent for the enforcement procedure.



V. Brussels I Recast: formal requirements


Automatic recognition and enforcement: arts. 37 and 42 BIR
They are only needed in cases of automatic recognition and enforcement:
• A copy of the judgment
• The certificate issued by the court of the MS of origin at the request of the interested party
(art. 53): certificate is issued using the form set out in Annex I BIR
• Only if the court/authority of the MS addressed requires it: a translation of the contents of the
certificate or a translation of the judgment if it is unable to proceed without it à see art. 57
(translations required under BIR: official language of the MS addressed done by a person
qualified in one of the MS).

Automatic enforcement of provisional measures: art. 42.2 BIR à same formal requirements +:
• The certificate must contain a description of the measure and certify that:
o The court of MS origin has jurisdiction to the substance of the matter
o The judgment is enforceable in the MS of origin
o A measure ordered without the defendant being summoned to appear àproof of
service of the judgment

Exequatur: art. 47.3 BIR
• A copy of the judgment + translation of it where necessary. No certificate in the exequatur, we
are not in front of automatic recognition nor enforcement.
• Claim according to art. 437 LEC (ex DF 25ª.4 LEC)

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VI. Brussels I Recast: Procedures

Automatic recognition: art. 38 BIR
• The court or authority of the MS addressed may suspend the proceedings in whole or in part,
IF:
o The judgment is challenged in the MS of origin
o Has been submitted an application for exequatur

Automatic enforcement: art. 40-44
• The declaration of enforceability emanates from the court of the MS of origin (unlike Lugano
Convention: automatic declaration of enforceability before the courts of the MS addressed,
see Recital 26) à by operation of law derives the power to proceed to any protective measures
existing under the law of the MS addressed: to ensure that there will be sufficient assets to
enforce the judgment.
• Lex fori regit processum: the enforcement procedure is governed by the law of the MS
addressed (art. 41 BIR)
• Thus à see Recital 30: the grounds for refusal or suspension of enforcement envisaged under
the law of the MS addressed shall also apply (i.e. arts. 556, 559 and 560 LEC):
o If they are not incompatible with the grounds for refusal of art. 45 BIR
o Recognition of the judgment will only be refused on the grounds provided for in art.
45 BIR.
• The certificate (+judgment where necessary) shall be served on the debtor in reasonable time
before the first enforcement measure: art. 43/Recital 32
• If exequatur is applied for during the enforcement proceedings, the court of the MS addressed
may and ex parte (debtor) (art. 44.1 BIR)
o Limit the enforcement proceedings to protective measures
o Make enforcement conditional on the provision of security
o Suspend, either wholly or in part, the enforcement proceedings
• The court of the MS addressed shall and ex parte (debtor) suspend the enforcement
proceedings where the judgment is challenged in the MS of origin (art. 44.2 and Recital 31). It
does not say “may” but “shall”.

Exequatur: arts. 46-52 BIR and DF 25ª.4 LEC
• The court shall decide on the application for refusal of enforcement or recognition, or
application for enforcement or recognition à without delay (art. 48 BIR) à LEC:
o The application shall be lodged with the court in 10 days following the date on which
the first enforcement measure was served on the debtor
o 10 days for the defendant to contest
o Parties may be summoned to appear in court if hearing of the case
o The judge will deliver the judgmentà auto
• The judgment may be appealed against it by either party à and the appeal may also be
contested by either party (arts. 49 and 50 BIR): Audiencia Provincial y Tribunal Supremo
• Those courts may stay the proceedings if the judgment has been challenged in the court of the
MS of origin (art. 51 BIR)

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VII. Brussels I Regulation: grounds for refusal

Grounds for refusal under BIR. We must remember the principle of mutual trust. In civil and
commercial matters the judges don’t act ex officio, the interested part has to issue the refusal.
• Set out in art. 45.1 BIR: exhaustive list for recognition and enforcement
• Ex parte: “on the application of any interested party”
• The foreign judgment cannot be reviewed as to its substance in the MS addressed (art. 52) à
but see public policy (infra). Perhaps the court of the MS addressed thinks that the decision
given by the court of Germany was unfair, but it does not matter because it cannot review that
decision.
• General rule: the jurisdiction of the court of the MS of origin cannot be reviewed and public
policy cannot be applied to jurisdiction rules, to refuse the judgment given on the other MS
(ad ex exorbitant jurisdiction rules or fora). As a general rule, I never control the jurisdiction of
the court of the state of origin.
à Exception: A review of jurisdiction is only permitted in relation to the exclusive
jurisdictions of art. 24 and to the protective jurisdictions on consumers, insured
persons and employees of arts. 10-23 (art. 45.1.e).

1. Recognition is manifestly contrary to the public policy of the MS addressed
v Exceptional “manifestly”: is not sufficient that the judgment is wrong as to its substance and
conclusion à art. 52 BIR. This ground of refusal may be raised in exceptional cases.
v Public policy is a national concept but the ECJ may review the limits within which MS courts
can have recourse to their public policy and find an excessive use thereof contrary to the
Regulation.

2. The judgment was given in default of appearance (violation of right of defense):
v And, the defendant has not been served with the document instituting the proceedings in
sufficient time and in such a way as to enable him to arrange for his defense
v Unless, the defendant failed to commence proceedings to challenge the judgment when it was
possible for him to do so. If once the defendant was served with the decision and had the
opportunity to challenge the decision but failed to do that, he/she will not be able to ask for
this default of appearance under BIR.

3. Irreconcilability with a judgment given between the same parties in the MS addressed à To avoid
contradictory judgments. It does not say that it has to be earlier.

4. Irreconcilability with an earlier judgment in another MS or a third State involving the same cause of
action and between the same parties + provided that the earlier judgment fulfills the conditions
necessary for recognition in the MS addressed à priority rule. This will be a successful ground of
refusal if the judgment given earlier complies with the conditions exposed in the Ley de cooperación
juridica internacional (in case of third states) or BIR (in case of European states).

5. Judgment given in violation of the jurisdictional rules on weak parties or exclusive jurisdiction set
out in BIR

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VIII. Brussels I Recast: Authentic instruments and court settlements

Special regime provided for authentic instruments and court settlements: arts. 58-60 BIR à they can
be automatically enforced (certificate using the form set out in Annex II) and only refused if such
enforcement is manifestly contrary to the public policy of the MS addressed.

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MODULE III. APPLICABLE LAW

Lesson 7. General ideas. Introduction to the choice of law

1. Introduction

Once the court has decided it has jurisdiction, it has to decide according to which law it is going to
resolve the issue. It is not necessarily the case that the Spanish courts will solve the case according to
Spanish law. Which law will be applied by the court to solve the international dispute?


2. Unilateralism and multilateralism

Unilateral method (Italian statutists) à private international law it is an expression of state
sovereignty, it seeks public interests. They see international relationships as conflicts of laws of states.
The determination of applicable law must start from the law. Each state has to determine the scope
of application of its law in a unilateral way. There were laws so close to the person, that they applied
to the person no matter who that person was (marriage, legal capacity, succession law, are so linked
to the person that it applied regardless of where the person was, they would go with the person)
whereas there were other laws linked to the territory, applying to anyone in the territory. The law was
the one determining the scope of application (if it was more personal or more linked to the territory).

Until the 19th century it was like this.

Multilateral method (Savigny) à in the 20th century, private international law was not because of the
state, it was not defending public interests, but private ones. It has no social function. Instead, private
law regulates private interests. When we come to an international case, there is a clash between
private intentions. According to him every international situation has a seat, a natural home. It departs
from the international relationship, not from the statutory provision. The goal of method is to find the
seat of every international relationship.

Every state has its own international law. In order to determine the seat, we use conflict of law rules,
or choice of law rules. It is not a substantive law rule, that’s why we also call it indirect method,
because there is no substantive law, the choice of la rule does not solve directly the case (that’s why
it is indirect). The only thing it does it is to determine the law applicable (it is a rule of reference). It
only tells us what is the seat of that relationship, regarding the closest connection of that law with the
relationship (natural seat) (example: article 4 Rome I, or article 8 Rome III, or article 9 CC).

We use both methods, even if the most important one in Europe is the multilateral (choice of law)
method.

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3. Function, structure and typology of choice of law rules

Function: When localizing the seat, the legislator will take into account many elements of the relation.

Structure of a choice of law rule:

• Subject-matter: it refers to the legal category used by the choice of law rules: a contract, a
tort, a divorce, parental responsibility

o The problem in order to determine which choice of law rule we have to apply to each
case is called characterization (classification, calificación). It is something that at the
national level the judge does automatically, but in an international situation, legal
categories differ from one state to the other, and the same facts may be interpreted
differently depending on the legal system that we are based in. In order to find out
the choice of law rule, we have to fit the fight into one of the legal categories of the
choice of law rules.

- Example. According to Spanish law, when we treat product liability, we
consider that tort (not contractual). However, according to French law,
that relationship is contractual. Characterization will suppose deciding
according to which law we define the issue. Art. 12.2 CC in Spanish law
deals with characterize.

• Connecting factor: This is something within the choice of law. It refers to the criteria used by
the legislator to link, to connect the subject matter to the law of the state.
o Subjective: The nationality, domicile, habitual residence.
o Objective: the place of performance of the obligation, place of celebration of the
marriage, place of damage.
o Party autonomy: the willing of the parties.
They are those criteria used by the legislation to connect a subject matter to a governing law.

• Governing law: the interplay between the subject matter and the connecting factor leads us
to a governing law, considered close to the relationship. This is the reason why we consider
that law is the one meant to resolve the dispute. Therefore, first we apply choice of law, and
then the governing law (Lex Causae, the law applicable to the situation). It can be either:
o Lex Fori (law of the forum, of the court analysing the case)
o A foreign law
There is no uniform way of application of foreign law. There is still no coherent system of
private international law.

When Savigny created Choice of law rule, it was neutral, because the rule would localize the
seat without knowing the contract of that law. Lex Fori and foreign law were treated with no
preference among them. The 21st century was different, as not all of the rules are actually
neutral.

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Typology: there are different typologies of choice of law. The important thing is to identify the
different choice of law rules.

1. Taking into account the subject matter

a. General or specific choice of law rules:
i. General à Art. 10.9 CC: If we analyse the subject matter, this is a very general
case, applying to non-contractual obligations, including environmental
damages, violations of personality rights, etc. This is too broad.
ii. Specific à This article has been superseded by Rome II Regulation: different
choice of law rules for different non-contractual obligations. These are
specialized rules. The reason for specialization is to localize a close legal
system, and having a very general subject matter, only one rule for so many
non-contractual obligations may lead to more conflicts.
Today the trend is to specialize the rule instead of having a general one.

b. From its geographical application:

i. Universal choice of law rules: today most of the international conventions
contain universal choice of law rules, which mean that the state having the
common choice of law rule go beyond the principle of reciprocity, and oblige
themselves to apply the choice of law rule to any conflict. They apply the
choice of law rule regardless of the international relation the case has with
other states. They agree to apply the common choice of law rule even if the
result of applying Rome I (art. 4), would lead to an applicable law of another
(foreign) state. Therefore, the European compromise is made regarding the
common choice of law rule (then the applicable law may perfectly be foreign).

ii. Territorial choice of law rules: it only applies when the applicable law is the
law of a contracting state.

2. Taking into account the connecting factor

a. Rigid or flexible choice of law rules

i. Rigid choice of law rules: the legislator uses only one of the elements of the
international relationship and does not allow any discretion to the judge.
When Savigny created the choice of law rule, he allowed no discretion to the
judge. The problem with rigid rules is that it may lead us to applying a law
which is not at all close to the case.

ii. The tendency is to go towards a more flexible rule. Having rigid rules but with
the possibility to introduce flexibility through scape clauses. Looking at Article
4 Rome I, there is a list in paragraph 1 which is a rigid rule. However, in
paragraph 3, there is a scape clause. If we have a escape route, if the judge
considers that the case is more closely connected to another country, the law
of that country shall apply. Applying flexible rules does not work in practice.

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b. One connecting factor or several connecting factors: the relationship between the
multiple CF:
i. Subsidiary (only when the principal connecting factor does not exist, we go to
the next one (art. 8 of Rome III). In a way it seeks the validity.
ii. Alternative (we can apply any connecting factor provided by the choice of law
court – art. 11).

3. Taking into account the governing law: art. 6 Rome I Regulation
a. Neutral oriented choice of law rules: there is no substantive result behind. Art. 10.9
civil code is neutral (it does not look at the lex causae).
b. Substantive/materially oriented choice of law rules: They depend on the subject and
they have an aim behind. Rome I Regulation article 6: it protects the consumer, it is an
exception to what we have seen up to this point, and the aim is to protect the weak
(this is applicable in cases of consumers, minors, etc.)
Now the tendency of the law is to have an aim materially oriented (consumer contract,
maintaining obligations).

Unilateral method: direct method. Dating from the middle ages. We also call them special
international law rules. They are substantive, and apply to international situations (i.e. The Vienna
Convention for the international sale of goods). Depending on the matter we have a law with regard
to the international situation (international sale of goods) and another to the national regulation (civil
and commercial code). Because the international sale of goods has different features (transport, etc.),
it has another regulation.

1) Overriding mandatory rules: they express a public interest, important, crucial values for a
state. They are usually economic, political and social values for the state. They apply to any
situation regardless of the international aspect of it. Definition: art. 9 Rome I. The main feature
is that they apply to any situation, regardless of the international character of the situation.
Art. 9 Rome I: definition. In a legal system, we have some mandatory rules, rules that the
parties cannot derogate by agreement. These rules apply always, regardless of the law
applicable to the international situation. Not always the rule will tell us when it is overrided.

2) Uniform substantive law: We call them like this but also as special private international law.
They are substantive law and they apply to international situations, for instance, the Vienna
Convention for international sale of goods. It contains substantive law rules. It tells us about
the obligations. The solution is within the rule. Depending on the matter we will have a
regulation, a law with regard to the international situation and another for the national sale
of goods. The international element is within the subject matter, we apply the Vienna
Convention to the international sale of goods, we don’t apply this convention to national sale
of goods.

The overriding mandatory rules of the fora are the ones that oblige.

1. Overriding mandatory provisions (internationally mandatory provisions, lois de police, lois
d’application immédiate)

Unilateral elements manifest themselves in EPIL primarily in the form of overriding mandatory rules.

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Rules that are applicable to a situation irrespective of the lex causae. They oust the normally applicable
law, or at least certain parts of it, and, in so doing, they upset the normal operation of conflict-of-law
rules

Normally, rules will be held to be overriding mandatory provisions only if they are judged necessary
for the maintenance or protection of some extremely important interest of the state that enacted
them and they will apply only if the situation has some connection with that state.

They express a public interest in the broader sense. They are of an economic and social nature

Definition: art. 9 Rome I
9.1 Overriding mandatory provisions are provisions the respect for which is regarded as crucial by a
country for safeguarding its public interests, such as its political, social or economic organization, to such
an extent that they are applicable to any situation falling within their scope, irrespective of the law
otherwise applicable to the contract under this regulation.
9.2 Nothing in this Regulation shall restrict the application of the overriding mandatory provisions of the
law of the forum.
9.3 Effect may be given to the overriding mandatory provisions of the law of the country where the
obligations arising out of the contract have to be or have been performed, in so far as those overriding
mandatory provisions render the performance of the contract unlawful. In considering whether to give
effect to those provisions, regard shall be had to their nature and purpose and to the consequences of
their application or non-application.

Takeaways:
• Art. 9 Overriding mandatory provisions – protection of ordopolitic rules

• Autonomous definition to avoid different interpretation.
o Nevertheless, each MS decides which of its rules are overriding mandatory

• Arts. 9.1 and 9.2 lex fori overriding mandatory rules. Imposes no restriction

• Art. 9.3 – facultative character- Shy approach. Third country overriding mandatory rules

They are internal (national) rules which the State considers crucial for safeguarding public interest and
values à For this reason, those rules always apply regardless of the international character of the
situation. They cannot be derogated by the parties.

They are a subgroup of the ius cogens rulesà but there is an important difference
• The internal ius cogens rules cannot be derogated by the parties but do not apply when the
governing law is a foreign law
• The international ius cogens rules = overriding mandatory rules always apply; they have to be
seen as an exception to the choice of law rules

A patent license agreement. Two mandatory rules.
• those agreements have to be concluded in writing
• Spanish and European competition law

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Eg: A Spanish company concludes a patent agreement with a German company for the exploitation of
a German patent in Spain. Governing Law: German law
• the contract does not need to be in writing
• Spanish competition law always has to apply

Typology
• Rules of security, public order. Eg those for the manufacture and composition of products
• Economic measures: competitions law
• Measures to protect weak parties: consumers, workers, minors…
• Provisions for the protection of Human Rights

Ahora tenemos los dos métodos, y debemos aplicarlos. En el proceso de aplicación surgen problemas,
que cuando aplicas una norma en una aplicación interna no aparecen. Por ejemplo, calificación,
reenvío, etc. (Leer 3 Arts.)
Hay tres problemas fundamentales. Lo primero que debemos plantearnos es la competencia ¿quién o
cual es el juez competente? Las normas nos dicen en que casos los jueces pueden conocer de una
situación privada internacional. Estas normas se encuentran en diferentes fuentes: europeas,
internacionales, autónomas o nacionales. Hemos visto principalmente las europeas. ¿Cómo saber qué
fuente utilizar y donde está la norma? No solo va a depender de principio de primacía del derecho
(jerarquía), también hay que conjugarlo con un tema de competencia. La UE no tiene una competencia
exclusiva en este ámbito y no hay normas de todos los ámbitos europeos. Para saberlo hay que
determinar el ámbito de aplicación de cada norma.
Cada instrumento tiene su propio ámbito de aplicación. Una vez sabemos de donde saco las normas de
competencia judicial internacional, debo saber cuales son. Hacemos referencia a los criterios, aquí
tenemos la pirámide. Cuando aplicamos estos foros, hay una serie de problemas, como los
procedimientos paralelos, conexos, etc. son otras normas que están en el reglamento que nos ayudan
a ver como se interrelacionan los distintos criterios. En el 7.1.b se invierte, porque debemos saber la ley
aplicable previo a saber la competencia.

Hay distintos modelos y niveles de normas. El principal objetivo del espacio de cooperación civil es el
reconocimiento mutuo. Si la sentencia ha sido dictada en un Estado y cumple con los requisitos, tendrá
efectos en cualquier otro Estado. Ese estadio de reconocimiento mutuo solo lo tenemos de pocas
decisiones: sentencia respecto a una deuda frente a la que no te has opuesto, en materia de secuestro
de menores, en materia de derecho de visita, o cuando se ha seguido uno de los procedimientos
europeos. De algún modo, hay un control en el Estado de destino. Lo que ocurre es que ese control
varía. El más cercano al reconocimiento mutuo es el de Bruselas I, porque tanto el reconocimiento como
la ejecución son automáticos, no hay exequátur ni reconocimiento ad hoc para conocer la sentencia o
declarar una sentencia ejecutiva.

Primero hay que declarar la competencia, después se debe resolver el asunto. Para resolverlo debemos
saber cual es el derecho aplicable. No siempre el juez español responderá aplicando la ley española, no
siempre es la respuesta automática, eso generaría fórum shopping e inseguridad jurídica. ¿Cómo
determina el juez el derecho aplicable a una situación privada internacional? Hay dos métodos: a)
normas de conflicto (más utilizado) y b) método unilateral, decir en qué casos determinadas normas
estatales se aplican a situaciones internacionales. Hoy veremos los problemas de aplicación de las
normas de conflicto. Esos problemas los vamos a determinar según donde los encontremos el
problema.

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Lesson 8. Methodological problems and escape devices

Questions of applicability

We have already seen choice of law rule / conflict of law rule. Some of the scholars claim the need to
have a general part of private international law.


General ideas

When applying the choice of law rule, different questions/problems may ariseà questions of
applicability. Different problems taking into account different issues.


1. Problems arising from the subject-matter

a. Characterization

In national conflicts of laws systems consists in the assignment of the legal question raised by the
factual situation of a case to the appropriate legal category used by the lex fori.

National legal systems have different legal categories. Characterization of a legal question depends on
the legal categories. According to which categories shall the court do the characterizations? The legal
categories of which legal system? According to which law must the judge do the characterization? The
judge knows the lex fori legal categories.

Calificas conforme a lex fori, interpretas conforme a la lex fori (Categorías jurídicas que tú conoces).
Hay que subsumir los hechos en una de las categorías jurídicas para encontrar la norma a aplicar. El
problema es que las categorias juridicas no son siempre las mismas.

We do not control the applicable law used by the judge and this can lead to a problem with the
recognition and enforcement in another state. The problem usually arises with regard to borderline
cases (grey areas)à i.e. limitations of actions (prescripción). In Spain it is substantive, therefore
contractual matter. If the norm of conflict takes us to the US, which law considers the limitation as
something formal, of the procedure; this different classification will not apply. *Succession law /
matrimonial property regimes.

Algunos ordenamientos jurídicos defienden que en vez de calificar conforme a la lex fori, debería
hacerse conforme a la lex causae; pero en realidad eso es un problema, porque no conoces la ley que
aplica al fondo, eso es precisamente lo que buscas con la calificación.


Solutions:

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• National PILà the characterization has to be done according to the legal categories of the lex
fori. What happens when the legal category is unknown in the lex fori? The solution is for the
judge to make a FUNCTIONAL CHARACTERIZATION, which is made in two steps:
o The judge has to analyze the function of that institution under the foreign law. Once
the judge knows the main features of that institution:
o The judge needs to find the closest equivalent to that institution within the Spanish
system, in terms of the function of the institution. It will apply the choice of law rule
of that “analogous” institution.

• EPILà AUTONOMOUS CHARACTERIZATION. States cannot characterize according to lex fori
(neither the lex causae). When applying European Regulations (such as Rome I, II, III…), the
characterization must be made according to the legal categories set at the European level.
That is, the concepts used by the Brussels I Regulation Recast, the ones given by the ECJ...
Sometimes states do not agree on a common definition; for instance, marriage or public policy
(exceptions).
o In those cases of inexistence of autonomous characterization (and in practice, really
exceptionally), the lex fori will indeed be applicable.


The judge, therefore, must firstly go to the source, see what is the legal category we are talking about
in order to be able to determine which is the choice of law rule applicable to that case (the choice of
law rule that applies to the legal category).

As a result, the determination of the scope of application is a complex issue: Although the national
law provision (according to which we characterize using the lex fori), the Civil Code for instance, will
only be consulted for a characterization if it is impossible to find a legal category in European
Regulations or international treaties and bilateral agreements. In case of lacking characterization even
in national law, there will correspond the functional characterization.


b. Preliminary question

Sometimes the subject matter of a choice of law rule presumes the existence of a given relationship.
In order to solve the main question of the case, we need first to solve a preliminary question. The
answer to the main question depends on the answer to a preliminary (incidental) question
Eg: art. 9.2. CC à Choice of law rule regarding the matrimonial property regime (marriage).

Case: STS 20th November 2011
Two Spanish nationals were resident in Mexico where they married and where they decided to fix their
habitual residence. Some years later, they decided to move to Barcelona. They both passed away and
their children discuss the law applicable to their matrimonial property regime as a principal question.
This law is Mexican law but the validity of the marriage also arises as a preliminary question. This
question will be solved by the Spanish choice of law rules.

This may raise a preliminary question issue: which is the law applicable to the preliminary question?
Marriage.

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Three possible solutions:
a) To apply the same substantive law which applies to the principal question. If we determine
that the applicable law to the matrimonial regime is Mexican law, we can apply Mexican law
to solve the validity of the marriage. Eg same law which applies to the matrimonial property
regime
b) To apply the choice of law rule of the forum (lex fori) to that preliminary question: eg. Arts.
9.1, 49 and 50 CC (choice of law rule with regard to the validity of marriage). This is the one
we use and you apply the same choice of law rule to solve both. No tiene sentido que el
mismo juez de respuestas distintas en función de si una cuestión se le plantea como principal
o incidental, no se puede permitir, por eso aplica la norma de conflicto del foro. à We use b
c) Apply the choice of law rule of the lex causae of the principal question.

For example, previous to the succession question I need to solve first the filiation question.


2. Problems arising from the connecting factor.

Conflit mobile

• Immutable connecting factorsà cannot change in time. Eg place of an immovable property,
the place of a celebration of a wedding, the place of a person’s birth, the place of a contract’s
conclusion, etc.

• Mutable connecting factorsà the connecting factor can change over time, for example a
person’s habitual residence, domicile (→ Domicile, habitual residence and establishment) or
nationality.

o What happens when there is a change in time with regard to the connecting factor? It
may create a conflict mobileà it is necessary to identify which point in time is
relevant for determining the applicable law (i.e. habitual residence at the time of
death). This decision refers to the question as to whether the former law continues to
apply, the new law applies retroactively, or the new law only applies after the change
of the connecting factor.

The point in time is most often specifically expressed in the conflict rules. Ex. 21.1.
Succession Regulation, establishes that the law applicable to the succession is the law
of the habitual residence of the disease at the time of death.

o If not solution within in the choice of law rules, there are two possibilities:

§ Application of both laws (art. 17 HC 1996 minors). Then we consider the
relationship applying two laws, which is not easy.

§ Application of the law determined by the connecting factor at the moment the
relationship was created, before the change (in case of filiation the law at the
moment the child is born, and not the moment of proceedings). This is the most

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common solution: if the connecting factor is nationality, (we don’t use it anymore)
and the child changes his nationality, we will take into account the nationality
when the child was born


3. Problems arising from the governing law consequence

When taking into account the governing law we find 3 problems: renvoir, not unified legal systems and
public policy exception.

a. Renvoir

The problem of renvoir concerns the question of whether a reference from the choice of law rule to a
foreign legal system encompasses that system’s substantive law or the whole system, therefore
containing its conflict-of-laws rules:
• In the first case (encompasses that system’s substantive law), the substantive law of the
designated state is applicable.
• However, if the reference directs to the legal system (containing the choice of law rules), there
are 2 possibilities:
o The foreign choice of law rule refers back to the lex fori. In such a case, the substantive
rules of the law of the forum (→ lex fori), are applicable (the choice of law rules use
different connecting factors such as habitual residence/nationality)
o The foreign choice of law rule refers to the law of a third State. In cases of
transmission to a third legal system, the substantive law of the third system will be
applied.

The choice of law rule refers to a foreign law. Shall this reference be made to the substantive law or
should we take into account the conflict of law rules? If we take into account all the system, when we
analyze the foreign choice of law rule we can see that it uses another connecting factor, and we will
have a reference back to the lex fori or to another system, creating a situation of potential constant
“renvoir”, that is, the choice of law rules of both systems point to each other, so that no solution may
be found.

i. Historical development

The problem of renvoir was primarily seen in jurisprudence: One of the most famous first decisions is
the case Forgo decided by the French Court de Cassation. François-Xavier Forgo was born in Bavaria in
1801 and died in France in 1869. Forgo had not created a will, so legal succession was applied.
• According to Bavarian law, relatives of Forgo’s mother would have been appointed as heirs,
whereas,
• According to French law, the estate passed to the French treasury.

Starting from French private international law as → lex fori, Bavarian law was designated because
Forgo originated from Bavaria. Forgo had no French domicile permit and accordingly lacked legal
domicile in France. The choice of law rule used the connecting factor domicile but Forgo did not have

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domicile in France (they referred to the whole Bavarian system, because they consider the Bavarian
choice of law rules).

However, according to Bavarian private international law, the actual domicile – and not the legal
domicile–was decisive, so that Bavarian law referred back to French law.
Accordingly, French substantive law was applied by the French Court de cassation with the
consequence that Forgo’s estate passed to the French treasury. Esto lo hace Francia para quedarse
todo el patrimonio el Estado. Si solo se refiriera a la ley sustantiva, no se hubiera redirigido a Francia.


ii. Reasons for and against the doctrine of Renvoir:

Pros:
1. International uniformity of decisions. By strengthening the likelihood that a case will be
decided in a uniform manner irrespective of where an action is brought à 2 important
advantages.
a. First, application of the same law irrespective of the competent court helps to avoid
limping legal relationships, ie. legal relationships that are recognized in one country
but not in another.
b. Second, it enhances the legal certainty and predictability of the applicable law. Parties
to an international relationship accordingly know the law that governs their legal
relationship.

When the Spanish judge applies a foreign law, the Spanish judge has to put himself in the
place of a foreign judge. The law applicable to succession law is the applicable to the
diseased at the time of death. UK national who died in Benidorm. The English judge will
solve the succession of the English citizen according to Spanish law. (+legal certainty)

2. Homeward trendà reference to conflict-of-laws rules serves the so-called homeward trend,
in that it leads to the application of the lex fori in cases of remission.

3. It allows the application of a most closely connected law

Our provision is in Art. 12.2 Civil Code. Solo se acepta el reenvío cuando la reemisión es al derecho
español. Lo llamamos reenvío de retorno o reenvío de primer grado. El TS dice que no es obligatorio
para el juez aplicar el reenvío. Si la reemisión que hace la norma de conflicto es a todo el sistema
extranjero, aceptas el reenvío. Cada país decide si acepta o no el reenvío.

Cons:
1. It creates legal uncertainty à no certainty as regards the applicable law
2. Problem of infinite renvoi, not obeying the will of the legislator (conflict rule)

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iii. Attitudes towards the doctrine of renvoir

1. National
a. Exclusion of renvoir. The national jurisdiction may decline to accept renvoir at all. EG:
Greece, Denmark, Sweden
b. Acceptance of renvoir: they differ regarding their regulatory systems. They usually
accept it in certain circumstances à Spain: the Spanish legal system accepts renvoir
of first degree, that is, when reference is made to the lex fori. Only in the “Ley
cambiaria y del cheque” when reference is made to the law of a third state

Art 12.2. CC: Accepting renvoir means introducing a high degree of complexity. Today the new
trend is to accept it, but it is not mandatory for the judge, and only in certain circumstances: it
allows the Spanish judge to apply Spanish law so it facilitates international harmony of solutions.
It cannot be accepted when it changes the ‘rationale’ of the conflict rule: eg party autonomy

2. International

In international treaties containing uniform conflict-of-laws rules, renvoir is usually excluded. As a
result of the harmonization within the concerned Member States, the problem of renvoir no
longer arises among these states. Today most of the choice of law rules are universal, they can
refer to the law of a third state.

3. EPIL

Most of the European Regulations exclude renvoir: Rome I, Rome II. The Succession Regulation
accepts it in some circumstances in order to achieve international harmony of solutions (see art
34(1) Succession Regulation). This is because they use choice of law rules based on the party
autonomy-connecting factor. If the connecting factor is the will of the parties, we cannot change
it.

Cuando el juez español aplique Roma I, este no aceptará el reenvío. En materia contractual, por
tanto, nunca lo aplicará. En función de la norma que aplique el juez habrá reenvío o no. Si el punto
de conexión (connecting factor) es jurídico puede plantear problemas de caracterización.


b. States with more than one legal system

i. General and common questions

A large number of States have more than one legal systemà non-unified legal systems (more or less
50% of States in the world) Why does this happen? Different reasons: historic origin the most common

Types:
• Territorial: different rules apply in different parts of the territory (eg: Spain, USA, UK, Canada)
• Personal: different rules apply to different groups of persons (eg: because of different
religions, different castes). Non-unified legal systems. This happens in Africa, India, etc.

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The existence of different legal systems in a State raises two types of questions:

• Interregional/interpersonal conflicts, which emerge in that State. We will not deal with these
conflicts.

• In international cases when the choice of law rule refers to the law of a non-unified legal
system as the governing law. The question, which arises then is: which law within the non-
unified legal system applies?. This is a problem that concerns all States (unified and non-
unified). International situation in which the conflict of law rule refers to the law of a non-
unified legal system, we must know which of the different laws applied in that state is the one
we need to apply. If the choice of law rules refers us to Spanish law in a matrimonial case, we
will have to know if we apply Spanish Law, Catalan Law, etc.

The relevance of the problems arising from non-unified legal systems from a PIL perspective was
introduced by UK in the framework of The Hague Conference. The first time a rule on non-unified legal
systems was introduced in a International conventionà1961àHague Convention on the form of
testamentary dispositions.

ii. Different solutions (in order to select which law will govern that international situation)

• Indirect solutionà it refers first to the rules in force in the State with a non-unified legal
system. Ir a la norma interna del estado pluriligeslativo que soluciona dicho conflicto interno.
Eg. This is the Spanish solution within PIL internal rules: art. 12.5 CC

“Cuando una norma de conflicto remita a la legislación de un Estado en el que coexistan
diferentes sistemas legislativos, la determinación del que sea aplicable entre ellos se hará
conforme a la legislación de ese Estado” (se refiere a que se atenderá a lo que la propia ley de
lugar (código civil) diga de los conflictos interregionales). Las normas de conflicto del Titulo
preliminar de CC han quedado desplazadas por todos los reglamentos, pero el Art. 16 remite a
esas normas para conflictos internos.

What happens in the absence of such internal conflict-of-laws rules? (US has no laws, which
solved interregional problems, in fact each state has its own private law system). The Spanish
judge has to apply an analogy of the solutions. Depending on the case at hand, and on the
source applied by the Spanish judge, he can find other solutions:

• Direct Solutionà the conflict rule uses territorial ‘connecting factors’, which therefore refer
directly to the governing law: eg habitual residence. Eg: Art 22 Rome I Regulation (direct
solution), which tells us directly the law applicable. This is possible because it uses territorial
connecting factors. If we look at Rome I, it uses habitual residence as the main connecting
factor. What happens when the connecting factor is a personal one? Eg: nationality? It does
not give a solution. The judge tries to look for the most closely connecting law.
The Spanish judge, when applying Rome I has to follow the direct solution.

• Mixed solutionà Eg: art. 36 and 37 Succession Regulation.

A nivel interno el punto de conexión nacionalidad se convierte en vecindad civil.

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Art. 36 Succession Regulation
1. Where the law specified by this Regulation is that of a State which comprises several territorial units
each of which has its own rules of law in respect of succession, the internal conflict-of-laws rules of that
State shall determine the relevant territorial unit whose rules of law are to apply.
2. In the absence of such internal conflict-of-laws rules:
(a) any reference to the law of the State referred to in paragraph 1 shall, for the purposes of
determining the law applicable pursuant to provisions referring to the habitual residence of the
deceased, be construed as referring to the law of the territorial unit in which the deceased had his
habitual residence at the time of death;
(b) any reference to the law of the State referred to in paragraph 1 shall, for the purposes of
determining the law applicable pursuant to provisions referring to the nationality of the deceased, be
construed as referring to the law of the territorial unit with which the deceased had the closest
connection;
(c) any reference to the law of the State referred to in paragraph 1 shall, for the purposes of
determining the law applicable pursuant to any other provisions referring to other elements as
connecting factors, be construed as referring to the law of the territorial unit in which the relevant
element is located.
3. Notwithstanding paragraph 2, any reference to the law of the State referred to in paragraph 1 shall,
for the purposes of determining the relevant law pursuant to Article 27, in the absence of internal
conflict-of-laws rules in that State, be construed as referring to the law of the territorial unit with which
the testator or the persons whose succession is concerned by the agreement as to succession had the
closest connection.

• 36.1 à Main rule à indirect solution = Rome I
The problem is that in many cases states do not have such internal rules (eg: USA)
o Spain: art. 16 CCà the determination of the applicable law in interregional cases is
made according to the same conflict rules used for international cases with some
changes. Rules which are found in the Preliminary Title of the CC.
Eg: connecting factor nationality = vecindad civil (only Spanish citizens have a vecindad
civil). Therefore when the deceased is a foreigner there is no internal rule.

• 36.2 à Subsidiary rule à the rule which will be used in the majority of cases. 3 subsidiary
rules based on the direct method
a) a rule for the determination of the HR of the deceased
b) a rule for cases when nationality is the connecting factor
c) Closing clause

• 36.3à Special rule for formal validity

Art 37 à non-unified legal systems: interpersonal conflicts of laws
In relation to a State which has two or more systems of law or sets of rules applicable to different
categories of persons in respect of succession, any reference to the law of that State shall be construed
as referring to the system of law or set of rules determined by the rules in force in that State. In the
absence of such rules, the system of law or the set of rules with which the deceased had the closest
connection shall apply.

Indirect method + Close connection

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c. Public policy exception

Ordre public/Public policy à when the choice of law rule refers to a foreign law, it may violate our
fundamental values. We always have a safeguard: the public policy exception clause. Therefore, having
applied the applicable law to the case at hand à the final question which may arise is whether the
result complies with the indispensable legal standards of the forum.

All states have constitutional values and principles, which this clause is meant to protect: that it
precisely the reason why this clause is contemplated in all international and national private
international law systems. It is seen as a clause to limit the influence of foreign law on the domestic
legal system, as it restricts the application of foreign law.
i.e. In Spain we would never accept polygamy, or divorce only allowed to men (discriminatory)


Art 12.3 CC
Together with overriding mandatory rules, the application of the Public policy clause may interfere in
the choice of law process in order to disregard the application of a foreign law (negative side of the
same coin). It has to be understood as a safeguard

When the choice of law rules refer to a foreign governing law, it may happen that the foreign law
violates our fundamental principles. We won’t accept a rule, which discriminates between men and
women. The content of the public policy depends on each state. Each state has its own constitutional
principles. The idea is to defend those values, which are crucial. In a way it is the negative part of the
same coin as the overriding mandatory rule. We apply the choice of law rule here, and the result of
that application is something, which is against our values. We will never accept a polygamy marriage,
or a repudiation (divorce only allowed to men).

Contents: Fundamental principles and fundamental values of a State, particularly Constitutional
fundamental rights and Human rights within international Conventions

The Public policy clause requires a ‘manifest’ violation of domestic law à restricted interpretation

It allows for certain degree of discretionarily of the judge. It will depend on the degree of connection
between the relationship and the State. à the less connected, the lower the intensity of the public
policy clause = attenuation of the public policy clause

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MODULE IV. FAMILY LAW

Lesson 9. Marriage and matrimonial crises

9.1. Divorce, legal separation and marriage annulment

(Brussels II Bis Regulation)

1. Introduction

The personal element takes relevance. We do not only have conflicts of law, but also what we call clash
of civilizations. This is so because the differences of substantive law are huge (they are based many
times on religion, tradition and other concessions). For example: a marriage under Islamic law is not
the same as a marriage under our law.

Here the public policy exception is much more used (and not only general public policy exceptions, but
also there are specific public policy exceptions).

Within the EU, family law was not a matter of interest at the beginning, and Brussels Convention
excludes family law, except one matter: maintenance obligations, which were already covered under
the Brussels Convention. Europe even before the free movement had a lot of cases where one of the
parties claimed maintenance obligations.

Within the EU, family law was not a matter of interest. Brussels Convention excluded family law
matters, and Brussels Regulations did so, except for maintenance obligations because there were a lot
of cases where one of the parties claimed maintenance obligations (it was a big economic issue at that
time).

We had to wait until the Maastricht Treaty, where even if civil cooperation was located in the third
pillar there was the starting idea that matters of family law were also a concern to the EU. In fact, we
see how at that time there was a Brussels II Convention that never entered into force (considered for
Brussels IIbis Regulation). The ECJ, even if it could interpret the rules under EU conventions, let family
law matters to be interpreted by an official report by ALEGRÍA BORRÁS.

Many changes have been done, but not with regard to jurisdiction rules. This changes completely with
the Amsterdam Treaty. When we talk about family law, the proceeding to adopt any EU instrument is
different because we apply the unanimity rule. Sometimes, MS have not issued a commitment and
some of the instruments have been taken through enhanced cooperation (EU of different speeds).

After the Amsterdam treaty, the EU gained power to unify rules on family law matters with the
unanimity rule. It is not the only legislator nor the only international legislator, though, unifying PIL
rules on family law: there is also the Hague Conference.
In this field, there is not the only legislator trying to unify the rules on those issues, there are other IO
trying to unify as well on PIL. So we have first EU rules, then international rules and last national rules.
This is probably the field where the different sources interact the most.

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The European Private International body of law (EPIL) is made of the following instruments:
• Regulation Brussels II bis, covering rules on jurisdiction and recognition and enforcement on
divorce, legal separation and marital annulment, and on parental responsibility
o Divorce
o Parental responsibility
• Rome III Regulation, devoted to conflicts of law rules on divorce and legal separation. This
instrument has been taken into “enhanced cooperation” (not all states apply Rome III, we have
to see which ones do)
• Regulations that will apply from 2019 on:
o Regulation 2016/1103 on matrimonial property regimes
o Regulation 2016/1104 on property consequences of registered partnerships
• Regulation 4/2009 on Maintenance Obligations, containing rules on jurisdiction, applicable
law and recognition and enforcement.
• Regulation on Succession

This started to worry the EU from 2000. But we still have the international source plus the national
source. If there is something not regulated in EPIL, we need to go to international and national sources.
For instance, for the law applicable to parental responsibility we need to apply a Hague Convention
because there is no EU regulation for this.

The EU wants to open the market and make free movement possible but taking into account that
differences on substantive law, even between MS, are huge.

The idea behind all this unification is to make life easier. Result has been the opposite: they have made
our lives more difficult.

First concern was to make this ineract with other sources. There are many Hague Conventions.
Sometimes, the same regulation refers to a protocol or convention of the Hague Conference. We won’t
study them in this course. But other times the regulation changes or amends rules in a Hague
Convention. So we have to apply both instruments and know where the regulation prevails and when
a given provision in a Hague Convention fully applies, partially applies or does not apply.

Second concern was that most of these rules would be PIL rules, there is no harmonization or
unification of substantive law. But this touches in many ways some rules on substantive law. For
instance, same-sex marriage is allowed in many MS but is forbidden in other ones. For instance, every
state will decide whether a concrete relationship fits in a registered partnership based on their laws.

Third concern is fragmentation. The EU thinks that on the one hand there is a link or legal status, but
on the other hand there are ancillary issues such as property or maintenance obligations. It may very
well happen that a judge assumes jurisdiction on divorce but denies jurisdiction on property.
That’s why we need a complete vision.

COUNCIL REGULATION (EC) No 2201/2003 of 27 November 2003 (Brussels II bis) sets out rules on
jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters
of parental responsibility.

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It repeals Regulation No 1347/2000 (Brussels II), which only covered parental responsibility in
connection to matrimonial matters, and had therefore been harshly criticized. Regulation Brussels II
bis contains new rules on parental responsibility that apply regardless of whether they appear in
connection to divorce proceedings. The provisions on matrimonial matters have been carried over
from the Brussels II Regulation practically unchanged.

Regulations Brussels II and Brussels II bis were preceded by a Convention of 28 May 1998 on the same
subject matter. This instrument was negotiated between the member states because the Union as
such had at that time no competence in matters of civil cooperation. It never entered into force.
However, since the relevant rules on matrimonial matters have remained virtually unchanged
the Explanatory Report drawn by Professor Alegria Borras and published in the Official journal is still
relevant for the interpretation of the present Regulation. The Practice Guide published by the
Commission on Regulation Brussels II bis is primarily devoted to the rules on parental responsibility; it
does only contain a summary about the operation of the rules on matrimonial matters in Annex I.





















This image gives an overview of the temporal and material scope of the Convention of 28 May, the
Brussels II and the Brussels II bis Regulations.
The Convention of 28 May 1998 never entered into force (temporal scope) and covers jurisdiction,
recognition and enforcement in matrimonial matters.
The Brussels II Regulation No 1347/2000 entered into force on 1March 2001 and was repealed by
Brussels II bis Regulation (Article 46). It covers the jurisdiction, recognition and enforcement in
matrimonial matters and parental responsibility when connected to divorce proceedings.
Brussels II bis Regulation No 2201/2003 entered into force on 1 August 2004 and has been applicable
from 1March 2005 (Article 72). It covers jurisdiction, recognition and enforcement in matrimonial
matters and matters of parental responsibility.


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2. Scope of application of Regulation Brussels II bis

Article 1 Scope
1. This Regulation shall apply, whatever the nature of the court or tribunal, in civil matters relating to:
(a) divorce, legal separation or marriage annulment;
(b) the attribution, exercise, delegation, restriction or termination of parental responsibility.

Article 2 Definitions
For the purposes of this Regulation:
1. the term ‘court' shall cover all the authorities in the Member States with jurisdiction in the
matters falling within the scope of this Regulation pursuant to Article 1;
2. the term ‘judge' shall mean the judge or an official having powers equivalent to those of a
judge in the matters falling within the scope of the Regulation;
3. the term ‘Member State' shall mean all Member States with the exception of Denmark;

We have first to determine the subject-matter, in-time and personal scope of application. In R&E
matters there are special temporal rules of application, but for the rules of jurisdiction date is 1 March
2005.

In many cases the only way of solving a situation is through international cooperation. For instance, in
the case of child abduction.

a. Material

Regulation Brussels II bis applies in civil matters relating to divorce, legal separation or marriage
annulment. The Preamble clarifies at Paragraph (8) that only the dissolution of the matrimonial ties is
covered and that ancillary issues such as maintenance or matrimonial property are not included in the
Regulation’s substantive scope of application (Article 1.3). Parental responsibility matters that
regularly arise in connection to matrimonial proceedings such as custody and access or visitation rights
are also covered.

The subject-matter refers to divorce, legal separation, marriage annulment and parental
responsiblity. Now we concentrate in the first three matters.

Brussels IIbis Regulation does not cover ancillary issues. Recital (8): this Regulation only refers to
dissolution of matrimonial ties and not to ancillary matters such as property regime, this is out of BIIBR
because those are independent issues and sometimes special rules on jurisdiction or special choice of
law rules will have a concrete aim to protect the best interest of the child which you cannot find here
in divorce rules (possibility of fragmentation). The reason is that jurisdiction rules aim something else:
minor or whatever.

It does not cover either preliminary issues such as validity of the marriage.

So only rules on jurisdiction to determine the competent court to disolve the ties.

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The nature of the court or tribunal dealing with the dissolution of the matrimonial bond is irrelevant.
Article 2.1 establishes that the term ‘court' shall cover all the authorities in the member states with
jurisdiction in the matters falling within the scope of this Regulation. The Regulation therefore sets out
rules on jurisdiction and the recognition of decisions that also apply when according to the rules in
force in the respective member state the dissolution of the matrimonial ties is granted by
administrative authorities.

We are used to one judge hearing everything in family matters. But when there is an international
element, it may be very well happen that a court is competent over the dissolution of matrimonial ties
and another court is competent over parental responsibility. We have to change our minds.

Puede coincidir que un juez sea competente para todo, pero lo frecuente es que no sea así.

b. Temporal

Regulation Brussels II bis entered into force on 1st August 2004 and became applicable on 1st March
2005 (Article 72).

With regard to rules on R&E, Article 64 BIIBR sets up a transitional period for cases in which the
proceeding may have started before that date but the judgment may have been rendered after that
date.

c. Territorial

Regulation 2201/2003 does not apply in Denmark in accordance with Articles 1 and 2 of the Protocol
No 22 on the position of Denmark annexed to the Treaty on European Union and Treaty on the
Functioning of the European Union. The United Kingdom and Ireland decided to opt in and are
therefore bound by the Regulation (see paragraph (30) of the Preamble).

d. Personal

If one of the spouses is national of a MS (or domiciled in UK or Ireland), or being a third national has
his habitual residence in a MS or being a third national has his habitual residence in a third state, BIIBR
applies BUT if no court has jurisdiction according to Articles 3, 4 and 5, then and only then MS can
apply their own national rules.
1. See according to which source the court is assessing jurisdiction
2. See whether you are in one of the situations of Articles 6 and 7
3. If yes, analyze Articles 3, 4 and 5
4. If not, national court can apply their own rules

Esplugues vs. Miami
- She Spanish
- He Spanish
- Habitual residence in Miami
- According to which source the Spanish court is assessing its jurisdiction? BIIRB. If one
of the parties present divorce proceedings before Spanish courts, can the court hear?
Yes because they are both Spanish nationals. Has Spanish court jurisdiction 11

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- Which are the elements the judge will consider to see where the parties have their
HR? Working place, nationality, duration of the stay.
Según dice la noticia, hay un procedimiento iniciado en Miami. ¿Qué pasa con esto? Para que haya
litispendencia tienen que ser MS. En este caso, no se da la situacion de litispendencia del Art. 19 BIIBR.
What happens then? The Spanish judge has to accept jurisdiction or he has to wait until the Miami
courts determine their jurisdiction? We have Spanish lis pendens rules in LOPJ. Read for next session.

Si ella fuera andorrana, estamos en el supuesto de un esposo nacional de un país tercero y residente
en un país tercero casado con un esposo nacional español. BIIBR aplica pero cuando vas a aplicarlo te
das cuenta de que es una excepcion del artículo 7 porque ni el artículo 3 ni el 4 ni el 5 dan competencia
al juez español, por tanto el MS puede aplicar su normativa interna. Aplicaría una regla unilateral que
establece foros de conexidad que hacen competente al juez español, el Article 22.quater.c) LOPJ, pero
que tampoco da competencia porque tiene los mismos foros que la BIIBR: “En materia de relaciones
personales y patrimoniales entre cónyuges, nulidad matrimonial, separación y divorcio y sus
modificaciones, siempre que ningún otro Tribunal extranjero tenga competencia (ESTO ES UN ERROR,
lo dicen todos los internationalprivatistas), cuando ambos cónyuges posean residencia habitual en
España al tiempo de la interposición de la demanda o cuando hayan tenido en España su última
residencia habitual y uno de ellos resida allí, o cuando España sea la residencia habitual del
demandado, o, en caso de demanda de mutuo acuerdo, cuando en España resida uno de los cónyuges,
o cuando el demandante lleve al menos un año de residencia habitual en España desde la interposición
de la demanda, o cuando el demandante sea español y tenga su residencia habitual en España al menos
seis meses antes de la interposición de la demanda, así como cuando ambos cónyuges tengan
nacionalidad española.”

Regulation Brussels II bis applies in civil matters relating to divorce, legal separation or marriage
annulment. The Preamble clarifies at Paragraph (8) that only the dissolution of the matrimonial ties is
covered and that ancillary issues such as maintenance or matrimonial property are not included in the
Regulation’s substantive scope of application (Article 1.3). Parental responsibility matters that
regularly arise in connection to matrimonial proceedings such as custody and access or visitation rights
are also covered (but do not be covered by the present e-learning course).

This illustration summarises the contents of Brussels II bis.
First there is the preamble; seven chapters and six Annexes follow.
Chapter I deals in its Articles 1 – 2 with scope and definitions.
Chapter II, meaning Articles 3 – 20, includes rules on jurisdiction.
Chapter III covers in its Articles 21 – 52 recognition and enforcement.
Chapter IV is related to cooperation between the central authorities in matters of parental
responsibility (Articles 53 – 58).
The relation with other instruments is regulated in chapter V (Articles 59 – 63).
Chapter VI gives attention to transitional provisions (Article 64) and chapter VII to final provisions
(Articles 65 – 77).

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Subject matter scope of application (art. 1 and art. 2)

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This image refers to the material scope of Brussels II bis.
• Purely domestic cases are not covered.
• Cross-border cases are partly covered.
• Cross-border cases concerning divorce, legal separation, marriage annulment and parental
responsibility fall within the scope of Brussels II bis.

Whereas recognition of a marriage, ancillary measures like name, property consequences,
maintenance obligations, trusts and succession issues and preliminary issues like capacity to marry and
validity of a marriage do not fall within the scope of Brussels II bis.

The nature of the court or tribunal dealing with the dissolution of the matrimonial bond is
irrelevant. Article 2.1 establishes that the term ‘court' shall cover all the authorities in the member
states with jurisdiction in the matters falling within the scope of this Regulation. The Regulation
therefore sets out rules on jurisdiction and the recognition of decisions that also apply when according
to the rules in force in the respective member state the dissolution of the matrimonial ties is granted
by administrative authorities.

The institutions of legal separation and annulment are not known in every European legal system, as
indicated in Question A.1 of the national sections. The aim of the Regulation is not to harmonize
substantive law. Whether it is or not possible to obtain a decision granting a legal separation or an
annulment of a marriage in a given member state is an issue that depends on the law applicable as
determined by the Private international law rules in force in that member state (see Thematic Unit 2
on the applicable law and Question A. 4 of the national sections). It might therefore well be that
jurisdiction as regards legal separation is granted to the courts of a member state, but that in that
member state it is not possible to obtain a legal separation because the law that applies to the matter
does no establish the institution.

Regulation 2201/2003 does not apply in Denmark in accordance with Articles 1 and 2 of the Protocol
No 22 on the position of Denmark annexed to the Treaty on European Union and Treaty on the
Functioning of the European Union. The United Kingdom and Ireland decided to opt in and are
therefore bound by the Regulation (see paragraph (30) of the Preamble).

Regulation Brussels II bis entered into force on 1st August 2004 and became applicable on 1st March
2005 (Article 72).

Transitional Provisions are laid down in Article 64.

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3. Jurisdiction in matrimonial matters

Article 3 General Jurisdiction
1. In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the
courts of the Member State
(a) in whose territory:
— the spouses are habitually resident, or
— the spouses were last habitually resident, insofar as one of them still resides there, or
— the respondent is habitually resident, or
— in the event of a joint application, either of the spouses is habitually resident, or
— the applicant is habitually resident if he or she resided there for at least a year immediately
before the application was made, or
— the applicant is habitually resident if he or she resided there for at least six months
immediately before the application was made and is either a national of the Member State in
question or, in the case of the United Kingdom and Ireland, has his or her ‘domicile' there;
(b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the
‘domicile' of both spouses.
2. For the purpose of this Regulation, ‘domicile' shall have the same meaning as it has under the legal
systems of the United Kingdom and Ireland.

There is no hierarchy, they are alternative: there is no party autonomy. The legislator is avoiding forum
shopping: the substantive law on divorce is really different. Spain for instance has non-causal divorce,
which makes it very easy to get a divorce, but other systems require causes, etc. The parties being able
to come to Spain to divorce is avoided. Even if we have Rome III unifying conflict of law rules, it is an
instrument made by enhanced cooperation. As long as there is only enhanced cooperation, there

We have indirect party autonomy in three cases: there is no hierarchy (objective fora, there is no party
autonomy, unless in joined application).

For this matter, we must highlight arts. 6 and 7 BIIBR.

Regulation 2201/2003 sets out rules of jurisdiction that determine the member state in which
proceedings on divorce, legal separation or annulment can be initiated.

Brussels IIbis Regulation uses different foras which are alternative (no hierarchy) and objective (no
party autonomy). To avoid bad forum shopping, the EU legislator does not want parties to pick the
courts because the substantive law on divorce is really different. For instance, we are a very easy
divorce country (there is not a causal divorce). Indeed, the RIIIR has been adopted through enhanced
cooperation and not unification because of these huge differences. AÑOVEROS thinks that we should
limit party autonomy but still allow it. There is a way though where there is limited party autonomy:
joint application (presentar divorcio de común acuerdo).

Rules of international jurisdiction that exist under the law of the member states are in principle not
applicable if one of the spouses is habitually resident in a Member State or is a national of a member
state or in the case of Ireland and the United Kingdom is domiciled therein (Article 6).

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Art. 6 BIIBR ‘Exclusive nature of jurisdiction under Articles 3, 4 and 5’:
“A spouse who:
(a) is habitually resident in the territory of a Member State; or
(b) is a national of a Member State, or, in the case of the United Kingdom and Ireland, has his or her
‘domicile' in the territory of one of the latter Member States,
may be sued in another Member State only in accordance with Articles 3, 4 and 5”

Exclusivity of application means that when one of the spouses is in one of those situations, Brussels II
bis applies.

Regulation 2201/2003 sets out rules of jurisdiction that determine the member state in which
proceedings on divorce, legal separation or annulment can be initiated. These rules are only about
international jurisdiction: the specific court or authority within a member state with competence in a
given case is determined by national rules of procedure.

Rules of international jurisdiction that exist under the law of the member states are in principle not
applicable if one of the spouses is habitually resident in a Member State or is a national of a member
state or in the case of Ireland and the United Kingdom is domiciled therein (Article 6).

















This figure explains the principle of Article 6 Brussels II bis.
• If one spouse is a national of a member state, other than the UK or Ireland, Brussels II bis
Regulation applies.
• If one spouse is domiciled in the UK or Ireland, Brussels II bis applies.
• If one spouse is a third country national with habitual residence in an EU member state,
Brussels II bis Regulation applies.
• If one spouse is a third country national with habitual residence in a third state, Brussels II bis
Regulation applies.
• If both spouses are third country nationals with habitual residence in a third state, Brussels II
bis Regulation does not apply. In this case domestic provisions on international civil
procedure apply.

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By way of exception national rules on international jurisdiction however come into play if there are no
Courts in any member state with jurisdiction on the matter under the residual jurisdiction rule of
Article 7 (see Question A. 2 of the national sections). This rule was clearly established by the ECJ in the
Sundelind López case (Case C-68/07).

Article 7 Residual jurisdiction
1. Where no court of a Member State has jurisdiction pursuant to Articles 3, 4 and 5, jurisdiction shall be
determined, in each Member State, by the laws of that State.
2. As against a respondent who is not habitually resident and is not either a national of a Member State
or, in the case of the United Kingdom and Ireland, does not have his ‘domicile' within the territory of one
of the latter Member States, any national of a Member State who is habitually resident within the
territory of another Member State may, like the nationals of that State, avail himself of the rules of
jurisdiction applicable in that State.

This figure explains the exception of Article 7 (residual jurisdiction).
• If one spouse is a national of a member state, other than the UK or Ireland, Brussels II bis
Regulation applies. But if no court in a member state has jurisdiction, domestic provisions on
international civil procedure apply.
• If one spouse is domiciled in the UK or Ireland, Brussels II bis applies. But if no court in a
member state has jurisdiction, domestic provisions on international civil procedure apply.
• If one spouse is a third country national with habitual residence in an EU member state,
Brussels II bis Regulation applies. But if no court in a member state has jurisdiction, domestic
provisions on international civil procedure apply.
• If one spouse is a third country national with habitual residence in a third state, Brussels II bis
Regulation applies. But if no court in a member state has jurisdiction, domestic provisions on
international civil procedure apply.
• If both spouses are third country nationals with habitual residence in a third state, Brussels II
bis Regulation does not apply. That is why domestic provisions on international civil procedure
apply.

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There is no general jurisdiction rule in matrimonial matters. Instead, Article 3 of Regulation Brussels II
bis establishes seven grounds that grant jurisdiction to the courts of member states. These grounds
are not placed in any hierarchical order but operate in an alternate manner. A court must of its own
motion declare that it has no jurisdiction, if it is seized in a case over which it has no jurisdiction under
the Regulation and over which a court of another member state has jurisdiction according to the
Regulation (Article 17). If there is no court with jurisdiction under the Regulation in any member state,
the requested court might derive jurisdiction based on its own national rules of international civil
procedure (residual jurisdiction: Article 7, see also Question A. 2 of the national sections).

Once art. 6 and 7 are confirmed, we say that a court has jurisdiction according to article 3.

This graph highlights the preliminary negative test of the seized court’s jurisdiction.

• Does the national court have international jurisdiction according to Article 3 of the Brussels II
bis Regulation?

Spouses may raise an application for divorce in the courts of the Member State of:
e. their habitual residence, or
f. their last habitual residence if one of them still resides there, or
g. the habitual residence of either spouse in case of a joint application, or
h. the habitual residence of the respondent, or
i. the habitual residence of the applicant, provided that he or she has resided there for at
least one year before making the application, or

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j. the habitual residence of the applicant, provided that he or she has resided there for at
least six months before making the application and he or she is a national of that Member
State, or
k. their common nationality (common “domicile” in the case of the UK and Ireland).

o If the answer is “Yes”, the court hears the case.
o If the answer is “No”, the following question will come up: Does a court of another
member state have international jurisdiction according to the Regulation?
§ If the answer is “Yes”, the court will declare that it has no international
jurisdiction on its own motion (Article 17).
§ If the answer is “No”, international jurisdiction will be determined according
to the domestic rules on international jurisdiction (residual jurisdiction, Article
7).

The fact that there are so many available grounds of jurisdiction may result in more than one member
state having jurisdiction over the same case. Once different proceedings concerning the same marriage
have been instituted in different member states, the lis pendens rule established in Article 19.1 applies.
The lis pendens rule also operates if the actions in the first and the second procedure differ and one of
the procedures is about legal separation and the other about divorce or annulment.

The provision on lis pendens applies the prior tempore rule. The court second seized must stay the
proceedings until the court first seized decides whether it has jurisdiction. If this is the case, the court
first seized will hear the case and the court second seized will decline jurisdiction in favour of the court
first seized. In that case, the party who brought the relevant action before the court second seized may
bring that action before the court first seized. Article 16 determines when a court is deemed to be
seized.

The grounds of jurisdiction in Article 3 can be classified according to the main factor that is used as a
ground of jurisdiction, habitual residence or nationality.

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This image points out different grounds of international jurisdiction for divorce, legal separation and
marriage annulment.
• There are six different grounds of jurisdiction based on habitual residence (Article 3.1.a).
• A single ground of jurisdiction is based on nationality (Article 3.1.b).
• Two other grounds may be found in Articles 4 and 5.


GROUNDS OF JURISDICTION:

4. Grounds of jurisdiction based on habitual residence

Art. 3.1.(a) BIIBR: “in whose territory:
— the spouses are habitually resident, or
— the spouses were last habitually resident, insofar as one of them still resides there, or
— the respondent is habitually resident, or
— in the event of a joint application, either of the spouses is habitually resident, or
— the applicant is habitually resident if he or she resided there for at least a year immediately before
the application was made, or
— the applicant is habitually resident if he or she resided there for at least six months immediately before
the application was made and is either a national of the Member State in question or, in the case of the
United Kingdom and Ireland, has his or her ‘domicile' there;”

We need an autonomous definition, we can’t apply lex fori or lex causae. The national court has to
decide case by case whether there is habitual residence in that state. The ECJ has said it corresponds
to a place which reflects some degree of integration in a social and family environment (very broad).

Article 3. 1 (a) contains grounds of jurisdiction based on the habitual residence of one or both spouses.
The notion of habitual residence should be given an autonomous interpretation. The ECJ dealt with
the notion in connection to the jurisdiction rule on parental responsibility established in Article 8 of
the Regulation. According to the ruling in case C-523/07 habitual residence corresponds to the place
which reflects some degree of integration in a social and family environment. It is for the national court
to establish the habitual residence, taking account of all the circumstances specific to each individual
case.

This figure below examines the concept of habitual residence which is an autonomous concept of
European Law. In the area of European Family Law, this concept is used in Articles 5 and 8 ROM III,
Articles 3 and 8 Brussels II bis and the proposals COM(2011) 126 and COM(2011) 127.

Habitual residence has got an autonomous meaning. The term was interpreted by the ECJ in case C-
523/07 on parental responsibility as corresponding to a place which reflects some degree of
integration in a social and family environment.

103




















It is for the national court to establish the habitual residence, taking into account circumstances
specific to each individual case. The following circumstances may be taken into account:
• duration of the stay on the territory of one member state
• regularity of the stay on the territory of one member state
• conditions of the stay on the territory of one member state
• reasons for the stay on the territory of a member state
• nationality
• working place and conditions
• linguistic knowledge
• family and social relationships
• other related factors

The grounds of jurisdiction based on habitual residence are:
• the habitual residence of the spouses
• the last habitual residence of the spouses insofar as one of them still resides there
• the habitual residence of the respondent
• in the event of a joint application the habitual residence of either spouse
• the habitual residence of the applicant if he or she resided there for at least a year immediately
before the application was made
• the habitual residence of the applicant if he or she resided there for at least six months
immediately before the application was made and is either a national of the Member State in
question or, in the case of the United Kingdom and Ireland, has his or her ‘domicile’ there

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5. Grounds of jurisdiction based on nationality

Article 3.1 (b) grants jurisdiction also to the courts of the member state of the nationality of both
spouses or, in the case of the United Kingdom and Ireland, of the ‘domicile' of both spouses.

Cases of plurality of nationality were dealt with by the ECJ in the Hadadi case (case C-168/08).
According to the operative part of the judgment, where spouses each hold the nationality of the same
two member states, the courts of those member states of which the spouses hold the nationality have
jurisdiction under that provision and the spouses may seize the court of the member state of their
choice.


6. Other grounds of jurisdiction

The Regulation contains two additional grounds of jurisdiction that might be relevant in particular
cases.

According to Article 4 the court in which proceedings are pending on the basis of Article 3 shall also
have jurisdiction to examine a counterclaim, insofar as the latter comes within the scope of this
Regulation.

Article 5 deals with the conversion of legal separation into divorce and takes account of the fact that
under the law of certain member states (e.g. Italy) legal separation is a required preliminary step to
divorce (for further information please see Question A. 1 of the national sections). Article 5 provides
that a court of a member state that has given a judgment on a legal separation shall also have
jurisdiction for converting that judgment into a divorce, if the law of that member state so provides.


7. Recognition of judgments in matrimonial matters

Chapter III of Regulation Brussels II bis deals with the recognition and enforcement of judgments.
According to Article 59 of the Regulation it supersedes conventions which have been concluded
between two or more member states and relate to matters governed by the Regulation (see
further Chapter V and Question D. 3 of the national sections).
A judgment on divorce, legal separation or annulment rendered in one member state shall be
recognised in all other member states without any special procedure being required (Article 21.1). This
particularly means:
• That no special procedure shall be required for updating the civil-status records of a member
state on the basis of a final judgment relating to divorce, legal separation or marriage
annulment given in another member state (Article 21.2). The authorities competent to update
the civil-status records will decide whether the foreign judgment can be recognised under the
rules of the Regulation.
• Where the recognition of a judgment is raised as an incidental question in a court of a member
state, that court may determine that issue (Article 21.4).

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Any interested party may, however, apply for a decision that the judgment be or not be recognised.
The procedure follows the rules established in Section 2 of Chapter III in relation to the enforcement
of decisions in matters of parental responsibility. The authorities competent for this procedure have
been communicated by the member states to the Commission and this information has been published
in the Official Journal. Local jurisdiction is determined by the internal law of the member state in which
proceedings for recognition or non-recognition are brought. The European Judicial Atlas in civil and
commercial matters provides a tool in order to locate the specific court that is competent in a
particular case.















This image deals with the recognition of a foreign judgment on divorce, legal separation, marriage
annulment.
• The rule is automatic recognition: by updating the civil status records on the basis of the
foreign judgment and by raising the recognition of the foreign judgment as an incidental
question before the courts of a member state
• There is an exception to the rule: by applying for a decision recognising the foreign judgment
before the authority designated by a member state.

Judgments on matrimonial matters rendered in one member state shall in principle be recognized in
the other member states. The regulation clearly establishes that under no circumstances may a
judgment be reviewed as to its substance (Article 26) and that the recognition of a judgment may not
be refused because the law of the member state in which such recognition is sought would not allow
divorce, legal separation or marriage annulment on the same facts (Article 25).

According to Article 24 the jurisdiction of the court of the member state of origin of the decision,
whose recognition is sought, may not be reviewed.

Article 22 contains the grounds of non-recognition for judgments relating to divorce, legal separation
or marriage annulment. Recognition of a decision on matrimonial matters may be refused:
• if such recognition is manifestly contrary to the public policy of the member state in which
recognition is sought;

106

• where it was given in default of appearance, if the respondent was not served with the
document which instituted the proceedings or with an equivalent document in sufficient time
and in such a way as to enable the respondent to arrange for his or her defense unless it is
determined that the respondent has accepted the judgment unequivocally;
• if it is irreconcilable with a judgment given in proceedings between the same parties in the
member state in which recognition is sought; or
• if it is irreconcilable with an earlier judgment given in another member state or in a non-
member state between the same parties, provided that the earlier judgment fulfils the
conditions necessary for its recognition in the member state in which recognition is sought.

A party seeking recognition must produce (Article 37):
• a copy of the judgment which satisfies the conditions necessary to establish its authenticity;
• a certificate issued using the standard form set out in Annex I of the Regulation. This
certificate is granted by the competent court or authority of the member state of origin of the
decision whose recognition is sought;
• in the case of a judgment given in default the original or certified true copy of the document
which establishes that the defaulting party was served with the document instituting the
proceedings or with an equivalent document; or any document indicating that the defendant
has accepted the judgment unequivocally.

If the documents referred to under (b) and (c) are not produced, the court may specify a time for their
production, accept equivalent documents or, if it considers that it has sufficient information before it,
dispense with their production (Article 38.1).

Documents only need to be translated if the requested authority so requires. In such circumstances
the translation shall be certified by a person qualified to do so in one of the member states (Article
38.2).

No legalisation or other similar formality shall be required in respect of the documents (Article 52).

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9.2. Law applicable to divorce and legal separation

(Rome III Regulation)

Rome III Regulation is the result of an enhanced cooperation under the rules the TEU and the TFEU.
Enhanced cooperation is the result of not achieving the unanimity rule. Since during the course of the
negotiations of the Proposal presented by the Commission, it became clear that there were
insurmountable difficulties that made unanimity impossible both then and in the near future, a group
of member states was authorized to adopt the Regulation with effects only between
themselves. Rome III Regulation is therefore only binding in the member states participating in the
enhanced cooperation namely in Belgium, Bulgaria, Germany, Spain, France, Italy, Latvia, Lithuania,
Luxembourg, Hungary, Malta, Austria, Portugal, Romania and Slovenia and Greece.


Geographical scope of application of Rome III

This picture visualizes the geographical scope of the Rome III Regulation.
10. The 14 member states participating in the enhanced cooperation concerning Rome III
Regulation are marked in green – meaning Belgium, Bulgaria, Germany, Spain, France, Italy,
Latvia, Luxembourg, Hungary, Malta, Austria, Portugal, Romania and Slovenia. Lithuania’s
surface is yellow as it has announced its will to join the enhanced cooperation in June 2012.
11. The 12 member states not participating in the enhanced cooperation are coloured in red.

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1. Scope of application


a. Material

It needs an international element because it applies to situations involving conflict of law.

It only applies to divorce and legal separation (difference between BIIBR and RIIIR because they could
not reach an agreement on marriage annulment and they decided the question of validity was out of
the regulation). Marriage annulment is not covered so we apply national rules.

In the same way we said Brussels I, Rome I and Rome II had to be interpreted coherently as a whole
body of law (not exactly a system because there were some subject matters excluded) we say Brussels
IIbis and Rome III have to be interpreted consistently as body of law.

b. Personal?

No. One of the features of this regulation (and all the rest of Rome regulations) is its universal
character. Which is the relationship between having a universal character but being a regulation based
on an enhanced cooperation? The participating states (in green) have to apply RIIIR to determine the
applicable law even if this is the law of a non-participating MS (in red) or of a third state.

When the courts of a participating states is hearing a divorce case, it will always apply Rome III,
regardless of the applicable law (if it is of a non-participating state or a participating state). Polish
couple living in Barcelona but choosing to apply Polish law. The applicable law will be determined
thanks to the rules of Rome III.

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2. Choice of law provisions on the law applicable to divorce and legal
separation


Chapter II of the Regulation contains uniform choice of law provisions on divorce and legal separation
that apply in the member states bound by the enhanced cooperation. The member states not
participating continue to apply the choice of law provisions of their respective national private
international law system (for further information please consult Question A. 4 of the national sections).

a) Agreements of the law applicable to divorce or legal separation

Regulation Rome III grants to the spouses a limited choice of law. Should they not have made use of
such possibility or should the choice not be valid, the Regulation establishes provisions in order to
determine the legal system that applies to divorce or legal separation.

Laws can be chosen

Under Article 5 the spouses may agree to designate the law applicable to divorce and legal separation,
provided that they choose among the following laws:
• the law of the State where the spouses are habitually resident at the time the agreement is
concluded; or
• the law of the State where the spouses were last habitually resident, in so far as one of them
still resides there at the time the agreement is concluded; or
• the law of the State of nationality of either spouse at the time the agreement is concluded; or
• the law of the forum.

Habitual residence should be given an autonomous meaning. The ECJ dealt with the notion in
connection to the jurisdiction rule on parental responsibility established in Article 8 of the Regulation
Brussels II bis. According to the ruling in case C-523/07 habitual residence corresponds to the place
which reflects some degree of integration in a social and family environment. It is for the national court
to establish the habitual residence, taking account of all the circumstances specific to each individual
case.

The concept of habitual residence is an autonomous concept of European Law.

In the area of European Family Law, this concept is used in Articles 5 and 8 ROM III, Articles 3 and 8
Brussels II bis and the proposals COM(2011) 126 and COM(2011) 127.

Habitual residence has got an autonomous meaning.

The term was interpreted by the ECJ in case C-523/07 on parental responsibility as corresponding to a
place which reflects some degree of integration in a social and family environment.

It is for the national court to establish the habitual residence, taking into account circumstances
specific to each individual case.
The following circumstances may be taken into account:

110

• duration of the stay on the territory of one member state
• regularity of the stay on the territory of one member state
• conditions of the stay on the territory of one member state
• reasons for the stay on the territory of a member state
• nationality
• working place and conditions
• linguistic knowledge
• family and social relationships
• other related factors

If one or both of the spouses hold the nationality of more than one state, spouses can choose the law
of any of the nationalities they hold.

The agreement designating the applicable law may be concluded and modified at any time, but at the
latest at the time the court is seized. During the course of the proceeding an agreement might still be
possible, if the law of the forum so provides and under the condition set out in that law (see Question
A. 5 of the national sections).


Rules about substantive and formal validity

Articles 6 and 7 establish rules in connection to the substantive and formal validity of such agreements
about the applicable law.

Article 6 of the Regulation establishes that the existence and validity of an agreement on choice of law
or of any term thereof, shall be determined by the law which would govern it under the Regulation if
the agreement or term were valid. However, a spouse may rely upon the law of the country in which
he or she has his or her habitual residence at the time the court is seized in order to establish that he
or she did not consent if it appears from the circumstances that it would not be reasonable to
determine the effect of his or her conduct in accordance with the law governing the agreement.

The Preamble of the Regulation clearly points out that “the informed choice of both spouses is a basic
principle of this Regulation”. It is stated under para. (18) that each spouse should know the legal and
social implications of the choice of applicable law, since the possibility of choosing the applicable law
by common agreement should be without prejudice to the rights of, and equal opportunities for, the
two spouses. Hence, the preamble says, judges in the participating member states should be aware of
the importance of an informed choice on the part of the two spouses concerning the legal implications
of the choice-of-law agreement concluded.

According to Article 7 the agreement shall be expressed in writing, dated and signed by both spouses.
Any communication by electronic means which provides a durable record of the agreement shall be
deemed equivalent to writing.



In some member states additional requirements may exist in relationship to such agreements
particularly if they are included in for example a marriage contract. Additional formal requirements of

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the law of the participating member state in which the spouses have their habitual residence at the
time the agreement are also applicable. If the spouses are habitually resident in different participating
member states at the time the agreement is concluded and the laws of those states provide for
different formal requirements, the agreement shall be formally valid if it satisfies the requirements of
either of those laws. If only one of the spouses is habitually resident in a participating member state
at the time the agreement is concluded and that state lays down additional formal requirements for
this type of agreement, those requirements shall apply. (see Question A. 6 of the national section for
further information)




















The purpose of this regulation is to unify conflict of law rules, it does not contain a substantive
harmonization and especially relevant in this regard is Article 13 RIIIR.

Article 13 RIIIR refers to same-sex marriage and in fact it is a provision that BIIBR does not contain
(there is nothing on that there), which was discussed and negotiated to include in BIIBR as it is in RIIIR
but was not included because there was not an agreement. There is nothing in BIIBR saying that the
court of a MS not recognizing same-sex marriage won’t apply BIIBR to determine its jurisdiction.
Tenemos claro que si el tribunal español va a divorciar a un matrimonio español lo va a hacer, pero
otro tribunal de un país que no reconoce el matrimonio homosexual no tendrá por qué reconocerse
competente porque entenderá que no hay matrimonio. ¿Qué pasaría entonces? AÑOVEROS cree que
el TJUE diría que no está obligado a divorciar conforme a BIIBR. El Artículo 13 RIIIR lo trata con la ley
aplicable, pero BIIBR no dice nada porque los MS no han querido acordarlo.

The RIIIR allows agreements of choice of law in matters relating to divorce and legal separation. This
is the first connecting factor. It is positive because it allows parties to agree by themselves and it gives
legal certainty, but is also dangerous. We have to put some limits to party autonomy. Party autonomy
is greater than before, but always submitted to limits.
How does the RIIIR limit party autonomy?

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1. Article 5 RIIIR establishes 4 options for the parties (EU legislator thinks all of those laws are
closer to the marriage):

“(a) the law of the State where the spouses are habitually resident at the time the agreement
is concluded; or
(b) the law of the State where the spouses were last habitually resident, in so far as one of them
still resides there at the time the agreement is concluded; or
(c) the law of the State of nationality of either spouse at the time the agreement is concluded;
or
(d) the law of the forum.”

Any of these laws may be chosen. Article 5 RIIIR fixes in time those connecting factors, and the
time is the time when the agreement is concluded: time of the agreement.

Paragraph 2 says: “Without prejudice to paragraph 3, an agreement designating the applicable
law may be concluded and modified at any time, but at the latest at the time the court is
seized.”
Paragraph 3 says: “If the law of the forum so provides, the spouses may also designate the law
applicable before the court during the course of the proceeding. In that event, such designation
shall be recorded in court in accordance with the law of the forum.” So if I sue my spouse before
the Spanish courts and I do the claim according to Spanish law, and my spouse replies
according to Spanish law and the Spanish court accepts that according to LEC, that is an
alternative.

Only the laws determined in advance by the EU legislator may be chosen by the parties.

2. Informed consent. This is very important because we allow the parties to choose the applicable
law but we have to make sure that they know what they are doing. If it is a vulnerable party,
we have to be careful. Rules in:

o Article 6 RIIIR: “The existence and validity of an agreement on choice of law or of any
term thereof, shall be determined by the law which would govern it under this
Regulation if the agreement or term were valid.”
Exception in paragraph 2: “Nevertheless, a spouse, in order to establish that he did not
consent, may rely upon the law of the country in which he has his habitual residence at
the time the court is seized if it appears from the circumstances that it would not be
reasonable to determine the effect of his conduct in accordance with the law specified
in paragraph 1.” Imaginemos que de acuerdo con el derecho aplicable elegido por las
partes, el silencio de una de las partes se condiera aceptación. Para demostrar que no
has dado tu consentimiento se te aplicará la ley de tu residencia habitual. Es un
supuesto que en materia de derecho contractual podría darse, pero en derecho de
familia cuesta ver un caso en el cual el silencio sea positivo.


o Article 7 RIIIR: “The agreement referred to in Article5 (1) and (2), shall be expressed in
writing, dated and signed by both spouses. Any communication by electronic means
which provides a durable record of the agreement shall be deemed equivalent to

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writing.” This is a substantive rule of PIL, it is telling us how it has to be the agreement:
in writing, dated and signed, that’s the minimum. Ahora bien, es posible que
determinados OJ exijan requisitos de forma ad solemnitatem, en ese caso ese extra
tambien se aplicaría. Es lo que dicen los apartados 2, 3 y 4.

“2. However, if the law of the participating Member State in which the two spouses
have their habitual residence at the time the agreement is concluded lays down
additional formal requirements for this type of agreement, those requirements shall
apply.
3. Ifthespousesarehabituallyresidentindifferentpartici- pating Member States at the
time the agreement is concluded and the laws of those States provide for different
formal requirements, the agreement shall be formally valid if it satisfies the
requirements of either of those laws.
4. If only one of the spouses is habitually resident in a participating Member State at
the time the agreement is concluded and that State lays down additional formal
requirements for this type of agreement, those requirements shall apply.”

Un punto de conexión es la autonomía de la voluntad. Pero hay otros porque lo normal es que el
tribunal determine el derecho aplicable conforme al Artículo 8.

Leer artículos 8, 10 y 12 RIIIR y Sahyouni case.


b) Applicable law to divorce and legal separation in absence of an agreement

Where no applicable law is chosen, Article 8 applies.

According to Article 8 divorce and legal separation are subject to the law of the state:
• where the spouses are habitually resident at the time the court is seized; or, failing that
• where the spouses were last habitually resident, provided that the period of residence did not
end more than 1 year before the court was seized, in so far as one of the spouses still resides
in that State at the time the court is seized; or, failing that
• of which both spouses are nationals at the time the court is seized; or, failing that
• where the court is seized.

Habitual residence should be given an autonomous meaning. The ECJ dealt with the notion in
connection to the jurisdiction rule on parental responsibility established in article 8 of the Brussels II
bis - Regulation. According to the ruling in case C-523/07 habitual residence corresponds to the place
which reflects some degree of integration in a social and family environment. It is for the national court
to establish the habitual residence, taking account of all the circumstances specific to each individual
case.



This figure examines the concept of habitual residence which is an autonomous concept of European
Law. In the area of European Family Law, this concept is used in Articles 5 and 8 ROM III, Articles 3 and

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8 Brussels II bis and the proposals COM(2011) 126 and COM(2011) 127. Habitual residence has got an
autonomous meaning.

The term was interpreted by the ECJ in case C-523/07 on parental responsibility as corresponding to a
place which reflects some degree of integration in a social and family environment. It is for the
national court to establish the habitual residence, taking into account circumstances specific to each
individual case.
The following circumstances may be taken into account:
• duration of the stay on the territory of one member state
• regularity of the stay on the territory of one member state
• conditions of the stay on the territory of one member state
• reasons for the stay on the territory of a member state
• nationality
• working place and conditions
• linguistic knowledge
• family and social relationships
• other related factors

Roma III solo aplica cuando el divorcio lo ha dictado una autoridad pública, y no cuando se trata de un
divorcio privado.

Therefore, if the parties do not choose applicable law, in any regulation there is a list of connecting
factors to determine the law applicable to that divorce. So the judge, if there is no agreement of the
parties or if this is invalid, will go directly to Article 8 RIIIR.

Article 8 RIIIR is a subsidiary rule. If the first connecting factor is fulfilled we will have to go to letter a.
Only if letter a does not apply, we will go to letter b.


c) Application of the law of the forum and public policy

There are two other provisions that are important in these regulations. These are Articles 10 and
Article 12 RIIIR.

Why there are two articles? The rationale is that the EU is saying the minimum. A law which is
discriminatory or not accepting divorce, that for sure is contrary to EU public policy. It is possible not
to reject the law applicable (Article 12 RIIIR).

We won’t accept a (Islamic) law that does not recognize divorce but only repudiation by the husband.

Sahyouni case and questions raised by the ECJ:
§ He from Syria and from Germany
§ She from Syria and from Germany
§ Both have their HR in Germany
§ He wants to divorce and decides to do it in Syria under Islamic law
§ No authority was involved, in Syria it is private divorce
§ He wants to recognize this divorce in Germany

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§ Why is this a European problem? R&E rules apply to decisions coming from MS and this comes
from outside the EU. How comes that the ECJ hears this case if we refer to German internal laws
of R&E?
§ Entre MS en temas de R&E, solo en contadas ocasiones compruebas la competencia. Pero cuando
te viene un Estado tercero, ese control lo haces y es en ese momento en que el juez alemán tiene
que aplicar RIIIR para saber la ley aplicable a este divorcio. El juez alemán para reconocer una
institucion de un Estado tercero tiene que ver la ley aplicable a esa institucion, duda y por eso
aplica RIIIR pero RIIIR no cubre los divorcios privados, RIIIR solo determina la ley aplicable cuando
el divorcio lo ha dictado una autoridad pública (notario, juez u otra).
§ Problema: los alemanes, pensando que RIIIR cubría los divorcios privados, anuló la ley interna de
forma que no hay norma interna alemana aplicable a un divorcio privado y ahora el ECJ dice que
RIIIR no aplica a esto y tienen que modificar su CC.

Article 10 RIIIR à if a divorce is discriminatory or the resulting law does not recognize divorce we won’t
accept that. Right to divorce is part of our EU public policy.


d) Lis alibi pendens rule

En el Reglamento el juez está obligado a suspender el procedimiento a instancia de parte.

When dealing with third states, we have a specific rule enacted: LCJI. Under Article 39 dealing with this
issue, el juez español podrá suspender el procedimiento a instancia de parte, no está obligado.

Art. 39 LCJI: “Cuando exista un proceso pendiente con idéntico objeto y causa de pedir, entre las mismas
partes, ante los órganos jurisdiccionales de un Estado extranjero en el momento en que se interpone una
demanda ante un órgano jurisdiccional español, el órgano jurisdiccional español podrá suspender el
procedimiento, a instancia de parte y previo informe del Ministerio Fiscal, siempre que se cumplan los
siguientes requisitos:
a) Que la competencia del órgano jurisdiccional extranjero obedezca a una conexión razonable con el litigio.
Se presumirá la existencia de una conexión razonable cuando el órgano jurisdiccional extranjero hubiere
basado su competencia judicial internacional en criterios equivalentes a los previstos en la legislación
española para ese caso concreto.
b) Que sea previsible que el órgano jurisdiccional extranjero dicte una resolución susceptible de ser
reconocida en España.
c) Y que el órgano jurisdiccional español considere necesaria la suspensión del procedimiento en aras de la
buena administración de justicia.”

Muy discrecional, estás dando mucha libertad al juez.Por ejemplo, un caso en que se ha inciado
procedimiento de divorcio en Miami. Hablamos de bilateralización: bilateralizarás tus normas. Si fuera
el americano, ¿tendría competencia? Si la respuesta es sí, has pasado el test de equivalencia.

En principio, el juez español puede suspender el procedimiento si se ha notificado a las partes, etc. El
sistema que prevé el reglamento es mucho más seguro porque sabes que todos los jueces de la UE
suspenderán en caso de litispendencia internacional.

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9.3. Matrimonial Property Regime

1. Legal framework:

Sources:

• COUNCIL REGULATION (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation
in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in
matters of matrimonial property regimes
• UNCIL REGULATION (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in
the area of jurisdiction, applicable law and the recognition and enforcement of decisions in
matters of the property consequences of registered partnerships
• Articles 9.2 and 9.3 CC


2. Regulation (EU) 2016/1103 on Matrimonial Property Regimes

1) Introduction

We are going to see the property relationships during marriage and what happens when this ends.
This is enforced but not yet applicable. We still apply in terms of jurisdiction LOPJ, in terms of applicable
law Articles 9.2 and 9.3 CC and in terms of R&E LCJI.

In the exam, we will only be asked about the Regulations.

Big differences exist in substantive law. The result of applying the law of one state and the law of
another is of maximum relevance because a legal separation system or a gananciales system has
nothing to do. But also in PIL. The solution given by given MS is also completely different.

At the end it was clear that negotiations were ending in a not unanimity rule. This is why
participating states decided to approve the Regulation under enhanced cooperation under the rules
of TEU and the TFEU. Participating States:
• Sweden, Belgium, Greece, Croatia, Slovenia, Spain, France, Portugal, Italy, Malta,
Luxembourg, Germany, The Czech Republic, the Netherlands, Austria, Bulgaria, Finland and
Cyprus (joined in March 2016)

So, MS not participating in enhanced cooperation their own national rules for jurisdiction, R&E and
applicable law.
Another important feature is that the Regulation is not a tool to harmonize or unify substantive rule,
but only jurisdiction/applicable law/R&E.

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2) Scope of application

There is no reference to situations involving conflict of laws because it contains also rules on
jurisdiction. This does not mean that is applies to internal situations because of course a cross-border
situation or international element is needed.

The EU private international law instruments on applicable law, which establish at the beginning of
their text that their scope is limited to circumstances involving a conflict of laws, implicitly refer to the
cross-border situation. In contrast to this, the instruments concerning either jurisdiction, or jurisdiction
and applicable law, jointly, do not refer or allude to the cross-border situation in setting out their scope
of application; they only mention the substantive law institution which is the target of their rules.

a. Material (subjet-matter)


Not covered:
Not covered

a) the legal capacity of

Covered: spouses

Matrimonial Property Regimes b) the existence, validity or

recognition of a marriage;


c) maintenance obligations;
d) the succession to the
estate of a deceased
spouse;
e) social security;
f) the entitlement to
transfer or adjustment
between spouses,
g) the nature of rights in
rem relating to a property
h) any recording in a register
of rights in immoveable

or moveable property



Definitions: Art. 3
• Matrimonial property regime: “a set of rules concerning the property relationships between
the spouses and in their relations with third parties, as a result of marriage or its dissolution”.
• Matrimonial property agreement including “any agreement between spouses or future
spouses by which they organise their matrimonial property regime.

Definitions in Article 3 RMPR are not enough.

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In order to truly understand the scope of the term ‘matrimonial property regime’ and ‘matrimonial
property agreement’ recital 18 of the Matrimonial Property Regimes Regulation is essential. Also art.
27 Matrimonial Property Regimes Regulation contains elements which help to clarify the referred
autonomous concepts (it refers to the law applicable to MPR). Recital 18 brings up several ideas.

“Recital 18: The scope of this Regulation should include all civil-law aspects of matrimonial property
regimes, both the daily management of matrimonial property and the liquidation of the regime, in
particular as a result of the couple's separation or the death of one of the spouses. For the purposes
of this Regulation, the term ‘matrimonial property regime’ should be interpreted autonomously
and should encompass not only rules from which the spouses may not derogate but also any
optional rules to which the spouses may agree in accordance with the applicable law, as well as
any default rules of the applicable law. It includes not only property arrangements specifically and
exclusively envisaged by certain national legal systems in the case of marriage but also any property
relationships, between the spouses and in their relations with third parties, resulting directly from
the matrimonial relationship, or the dissolution thereof.”

Firstly, the Regulation follows a civil approach with regard to the understanding of matrimonial
property regime setting itself apart from the common law approach. According to the continental
European tradition, a marriage implies from the beginning a series of patrimonial relationships
between the spouses which will last throughout the marriage (matrimonial property regime). These
are extinguished (liquidated) from the time of separation, divorce or death. The matrimonial property
regime must be distinguished from the patrimonial relationships between spouses upon divorce,
separation or death. Those relationships refer to the effects of divorce or death (for instance, spousal
support or a compensatory pension) and they are linked to the existence of a previous marriage The
Matrimonial Property Regimes Regulation only refers to first category of relationships, i.e. “both the
daily management of matrimonial property and the liquidation of the regime, in particular as a result
of the couple's separation or the death of one of the spouses” and exclude therefore the second ones.

Second, The recital insists on the need of an autonomous definition of the term matrimonial property
regime. According to recital 18 it “…shall encompass not only rules from which the spouses may not
derogate but also any optional rules to which the spouses may agree in accordance with the applicable
law, as well as any default rules of the applicable law.” It therefore covers the so-called primary and
secondary regime. In this latter case, it covers the agreed regime (optional rules) through a marital
property agreement and the default regime (any default rules of the applicable law). Furthermore,
recital 18 adds “It includes not only property arrangements specifically and exclusively envisaged by
certain national legal systems in the case of marriage but also any property relationships, between the
spouses and in their relations with third parties, resulting directly from the matrimonial relationship,
or the dissolution thereof.”

Matrimonial Property Regimes Regulation does not cover those agreements (often included in the
notarial deed) which have a different objective from the determination of the matrimonial property
regime even if the reason for their existence is a matrimonial link. This means that the Regulation does
not cover those agreements which aim to establish the patrimonial relationships between the spouses
upon divorce or legal separation. Agreements which may have varied contents which may range from
maintenance obligations to compensatory pensions, etc..

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However sometimes it will be really difficult to differentiate between a liquidation of the matrimonial,
property regime upon divorce and the obligation to pay maintenance. The agreements as to succession
which may be included in the notarial deed are also not covered by the Regulation.

So, this second idea is basically saying that we need an autonomous definition because differences in
substantive law between MS are enormous.

There is a primary regime and a secondary regime.
Ø When we talk about the primary regime, we refer to mandatory law which applies to any
marriage just because of the marriage.
Ø The secondary regime may be:
o Optional à capitulaciones
o Default à it depends: separación/gananciales/mixto
Ø These rules are within the concept of MPR in the Regulation: primary regime plus secondary
regime.

El Reglamento solo regula REM y su liquidación. Lo primero que tenemos que hacer es ver: ¿es un
pacto relacionado con el REM? Es un tema de calificacion funcional: ver qué funcion cumple una
determinada institucion en un determinado sistema, si es un tema alimenticio (maintenance), si es de
REM, etc. Si la funcion es regular las relaciones durant el matrimonio, es REM. En pactos, es muy
importante que una interpretacion autónoma nos lleve a hacer depeçage de un pacto en
maintenance/REM. Leer subject-matters not covered.

We go to Article 27 RMPR for scope of applicable law:

b. Personal

The Regulation does not contain any rules on the personal scope of application.

c. In-time

In force since 20 July 2016, but not applicable for participating MS in enhanced cooperation until 29
January 2019. The law applicable will take time, only when marriage celebrated or choice made after
this date.


3) Jurisdiction

First idea is that the Regulation refers to MS. We have to understand participating states, NOT ALL MS.
The rest of MS apply their own rules on jurisdiction.

It follows the principle of unity of the court. If possible, it is better one court dealing with divorce and
REM, death and REM. We will see in which cases it is possible.

• When the Regulation refers to the courts of a MS = Participating State

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• The rest of MSà its own rules on Jurisdiction

• The main principle is the unity of the court. Recital 32 “To reflect the increasing mobility of
couples during their married life and facilitate the proper administration of justice, the rules on
jurisdiction set out in in this Regulation should enable citizens to have their various related
procedures handled by the courts of the same Member State. To that end, this Regulation
should seek to concentrate the jurisdiction on matrimonial property regime in the Member
State whose courts are called upon to handle the succession of a spouse in accordance with
Regulation (EU) No 650/2012, or the divorce, legal separation or marriage annulment in
accordance with Council Regulation (EC) No 2201/2003”

Recital (32) connects rules on jurisdiction in matters of MPR to rules on jurisdiction under the
Successions Regulation or Brussels IIbis Regulation because usually (not always) questions of
MPR arise when the marriage is disolved or one of the spouses dies. Having this principle in
mind, it designs the rules on jurisdiction on this base.

• The MPR Regulation addresses jurisdiction in matrimonial property disputes in 3 different
scenarios:
1. Disputes arising in connection with the death of one of the spouses (Article 4),
2. Disputes arising in connection to a crisis (Article 5), or
3. in other cases concerning the spouses’ matrimonial property regime (Articles 6 and
ss.)

Article 5 Jurisdiction in cases of divorce, legal separation or marriage annulment

“1. Without prejudice to paragraph 2, where a court of a Member State is seised to rule on an
application for divorce, legal separation or marriage annulment pursuant to Regulation (EC) No
2201/2003, the courts of that State shall have jurisdiction to rule on matters of the matrimonial
property regime arising in connection with that application.
2. Jurisdiction in matters of matrimonial property regimes under paragraph 1 shall be subject to
the spouses' agreement where the court that is seised to rule on the application for divorce, legal
separation or marriage annulment:
(a) is the court of a Member State in which the applicant is habitually resident and the applicant
had resided there for at least a year immediately before the application was made, in accordance
with the fifth indent of Article 3(1)(a) of Regulation (EC) No 2201/2003;
(b) is the court of a Member State of which the applicant is a national and the applicant is habitually
resident, and had resided there for at least six months immediately before the application was
made, in accordance with the sixth indent of Article 3(1)(a) of Regulation (EC) No 2201/2003;
(c) is seised pursuant to Article 5 of Regulation (EC) No 2201/2003 in cases of conversion of legal
separation into divorce; or
(d)is seised pursuant to Article 7 of Regulation (EC) No 2201/2003 in cases of residual jurisdiction.
3. If the agreement referred to in paragraph 2 of this Article is concluded before the court is seised
to rule on matters of matrimonial property regimes, the agreement shall comply with Article 7(2).”

Es muy importante tener en la cabeza los foros de Bruselas IIbis. En los cuatro primeros foros del
Artículo 3 BIIBR no se necesita acuerdo de las partes porque son foros que las partes pueden prever,
no sorprenden. En los foros 5, 6 y 7 (1 año, 6 meses) de BIIBR sí que se sorprende al demandado, por
eso se exige algo más en el párrafo 2 del Artículo 5 RMPR: “spouses’ agreement”.

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Jurisdiction in cases of divorce, legal separation or marriage annulment
It lays down a different jurisdictional system depending on the jurisdiction grounds used by the plaintiff
to the matrimonial crisis (one
a) Claims based on grounds of jurisdiction provided for in art. 3.1. a) 1-4 and 3.1.b) Brussels II bis
Reg.
o principle of unity in one court
o why? The less surprising for the defendant
o No need of agreement by spouses
b) Claims based in ground of jurisdiction provided for in art. 3.1. a) 6 and 7, art. 5 or 7 Brussels II
bis Reg.
o no automatic jurisdiction
o agreement by the parties à if there is no agreement art. 6 applies
o ratio: avoid the automatic application in cases which benefit the plaintiff or could
be unexpected for the defendant (art. 7 national rules)

à Requirements for the agreement: Art. 5.3

Queremos que el mismo juez conozca del divorcio y el REM para evitar dos litigios: concentración. De
hecho, a nivel nacional tiene la obligación. Pero hay que conocer las normas de Bruselas IIbis para
entender cómo hace la conexión el Art. 5 RMPR. En unos casos hay un vínculo muy fuerte, es previsible
por tanto que el juez que conoce del divorcio conozca tambien del REM. Pero si el demandante está
utilizando un foro como el de los 6 meses, no es previsible, no hay esa vis atractiva y solo la va a haber
si hay pacto entre las partes expreso. Si hay acuerdo en esos casos, conocerá el juez. Si no lo hay,
aplican Arts. 6, 7 y 8 RMPR.

Art. 6 Jurisdiction in “other cases”
Where no court of a Member State has jurisdiction pursuant to Article 4 or 5 or in cases other than
those provided for in those Articles, jurisdiction to rule on a matter of the spouses' matrimonial
property regime shall lie with the courts of the Member State:
a) in whose territory the spouses are habitually resident at the time the court is seised; or failing
that
b) in whose territory the spouses were last habitually resident, insofar as one of them still resides
there at the time the court is seised; or failing that
c) in whose territory the respondent is habitually resident at the time the court is seised; or failing
that
d) of the spouses' common nationality at the time the court is seised.

Foros en cascada o subsidiarios.

Art. 6, 7 and 8 Jurisdiction in “other cases”
§ Which cases:
o When there is no agreement by the spouses according to art. 5.2
o In cases not related to a matrimonial crisis nor to the death of one of the spouses
§ Jurisdiction rules
o Express and tacit submission
o Art 6: hierarchic grounds of jurisdiction

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Forum necessitatis

Alternative jurisdiction: art. 9

Leer Articles 4, 5, 6 (no agreement or situation not connected to a divorce or legal separation or the
death), 7 (agreement between the parties, express submission) and 8 (entering an appearance, tacit
submission also allowed) and 9 RMPR.


4) Applicable law

• Principle of unity of the applicable law: the same law will govern all aspects of the MPR,
regardless of the situation of the immovable property: art. 21

• Choice of law by the parties: art. 22

o The Matrimonial Property Regimes Regulation allows the parties to choose the law
applicable to their matrimonial property regime.
o Recital 45, in order to facilitate spousal management of property, the proposed
regulation authorises them to choose the law applicable to all the property covered
by their matrimonial property regime, regardless of the nature or location of the
property. This choice may be made at any moment—before the marriage, at the time
of celebration of the marriage, or during the course of the marriage.
o This option given to the parties has to be limited in order to prevent a choice of a law
having little relation to the couple’s real situation or past history: it must be based on
the law of habitual residence or on the nationality of one of the spouses or future
spouses. option-based party autonomy

• Potential chosen laws could be:
a) the law of the State where the spouses or future spouses, or one of them, is habitually
resident at the time the agreement is concluded, or
b) the law of a State of nationality of either the spouse or the future spouse at the time
the agreement is concluded.

• The connecting factors are set at the time the agreement is concluded. This avoids any
problem that a change in the connecting factor may raise (for example, a change in the
habitual residence) and allows the parties to use it in their matrimonial property agreement.

• The law applicable to the formal validity of the choice of law agreement and matrimonial
property agreement
o Relevance of informed consent
o Arts. 23-25

• Applicable Law in the absence of choice by the parties: art. 26

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• The law applicable to the matrimonial property regime and to the matrimonial property
agreement shall be the law of the State provided for in art. 26 Matrimonial Property Regimes
Regulation.

• Art 26 sets out a choice of rule with subsidiary connecting factors:
a) of the spouses' first common habitual residence after the conclusion of the marriage;
or, failing that
b) of the spouses' common nationality at the time of the conclusion of the marriage; or,
failing that
c) with which the spouses jointly have the closest connection at the time of the
conclusion of the marriage, taking into account all the circumstances.

• Lois de police and Public policy exception

o Lois de police: art. 30
§ The court applies its own overriding mandatory rules, i.e. those provisions the
respect for which is regarded as crucial by a Member State for safeguarding
its public interests, such as its political, social or economic organisation, to
such an extent that they are applicable to any situation falling within their
scope, irrespective of the law otherwise applicable to the matrimonial
property regime, according to the Regulation.
§ These are rules which allow the judge or competent authority to avoid the
usual application of the choice of law rule and instead apply the lex fori as an
exception.
§ The key question is to determine what the States consider to be overriding
mandatory rules, and which, therefore, may fit within the definition given by
the European legislature
§ The European legislature gives as an example of lois de police the rules for the
protection of the family home: recital 53

o Public policy of the forum art. 31
§ The main difficulties will arise with regard to same-sex marriages, and other
rules provided for in some legal systems (generally Third States) which violate
the principle of non-discrimination, (for instance, polygamy and repudiation
and its effects when liquidating the matrimonial property regime)
§ With regard to same-sex marriages, the Regulation does not force the
participating States to apply it to those relationships that they do not
recognise: art. 9

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Lesson 10. Parental responsibility

Jurisdiction and applicable law. Brussels II bis Regulation. The Hague Convention 1996 for the
protection of children. à No se explicará ley aplicable porque no hay instrumento comunitario, aplica
el Convenio de la Haya de 1996.

1. Legal framework

Parental responsibility is not a very common concept in substantive law. Broad concept containing all
measures aiming to protect the minor’s person and property.

a) Sources

• JURISDICTION
§ Brussels IIa Regulation: arts. 8-15 and 20 (arts. 10 and 11 deal with child abduction) + arts. 16-
19 (common provisions)
§ Hague Convention 19 October 1996: arts. 5-14
§ LOPJ: art. 22 quáter, d)

• RECOGNITION AND ENFORCEMENT
§ Brussels IIa: arts. 21-52 + DF 22ª LEC
§ HC1996: arts. 23-28
§ Ley de Cooperación Jurídica IMC: arts. 41-61

• COOPERATION
§ Brussels IIa Regulation: arts. 53-58
§ Hague Convention 19 October 1996: arts. 29-39
§ Ley de Cooperación Jurídica IMC: arts. 5 et seq.

b) Relationship between instruments (jurisdictional rules)

The relationship between instruments is not easy. We will start with rules on jurisdiction, we will see
rules on the Regulation which are more or less the same as in HC96 and very similar to LOPJ. HC96
does not have clauses saying what to do in cases of more than one instrument. Instead, BIIa contains
article 61 saying when it is applicable.

• BIIa: child habitually resident in a MS (other than Denmark): see art. 61 and art. 14 BIIa. But, see
art. 12.4 BIIa (child habitually resident in a third State which is not a Contracting State of the HC96)
Rule is:
Ø If HR of the child is in a MS, we apply BIIa.
Ø If HR child is in a contracting state not a MS, we apply HC96.
Ø If HR child in a third state, if there is a rule giving jurisdiction to the courts of a MS, we
apply BIIa:
o 9-13
o 14 (residual jurisdiction)

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• HC96: child not habitually resident in a MS but habitually resident in a Contracting State; i.e.: art.
13 BIIa (jurisdiction based on the child’s presence in Spain) does not apply in Spain since the child
is not habitually resident in a MS à art. 6 HC96 applies instead

• LOPJ: Residual jurisdiction: child habitually resident in a third State not party to the HC96


2. Brussels IIbis Regulation

I. Scope of application

Temporal and geographical scope of application same as in BIIBR.

Material scope

We have to understand which issues are covered because “parental responsibility” is very broad, much
broader than in our substantive law.

Art. 1.b): The Regulation applies to “the attribution, exercise, delegation, restriction or termination of
parental responsibility”.
• Whatever the nature of the court or tribunal
• In civil matters

Case: petition to renew passport is a civil matter? ECJ says it is a civil matter because it is part of
parental responsibility.

Meaning of the term “parental responsibility” ex art. 2.7 BIIa:
• All rights and duties relating to the person or the property of a child. Not a closed list.
• Which are given to a natural person or a legal person, i.e. holder of parental responsibility (see
art. 2.8)
• By: i) judgment (see art. 2.4), ii) operation of law; or iii) an agreement having legal effect
• It shall include:
1) Rights of custody (see art. 2.9): in particular, the right to determine the child’s place
of residence
2) Rights of access (see art. 2.10): in particular, the right to take a child to a place other
than his habitual residence for a limited period of time
Case ‘A’ C-523/07 has to do witht BIIa (ya veremos por qué) and is a civil matter because parental
responsibility is very broad and measures of protection are taken by the public authority although it is
a public authority acting as such. En BIIa es un civil muy amplio: no es como Bruselas I que cuando hay
una autoridad pública actuando como tal, ya no aplica.

• “Parental responsibility” in particular includes: non-exhaustive list of matters ex art. 1.2:
o Rights of custody and access
o Guardianship and curatorship and the like
o Designation and functions of a person having charge of the child or child’s property or
who represents or assists the child

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o Measures for protection of a child in relation to the administration, conservation or
disposal of the property of a child
o The placement of a child in a foster family or in institutional care
o + Recital 5: measures on parental responsibility independently of any link with a
matrimonial proceeding

• “Parental responsibility” in particular excludes ex art. 1.3:
o The establishment or contesting of a parent-child relationship à Filiación queda fuera.
Por ejemplo, validez de un contrato o ejercución de una sentencia de maternidad
subrogada.
o Adoption
**Los efectos de la filiacion o la adopcion, sí se incluyen pero la filiacion o la adopción en
sí mismas no.
o The name and forenames of the child
o Emancipation
o Maintenance obligations: see Regulation Nº 4/2009 on Maintenance Obligations
o Succession: see Regulation Nº 650/2012 in matters of Succession
o Measures taken as a result of criminal offences committed by children

The term of “child”: unlike HC96 which ex art. 2 applies to children from the moment of their birth
until they reach the age of 18 years; the Regulation leaves this question to national law à in Spain ex
art. 9.1 Cc (law of the nationality determines whether a person is a child).

Meaning of “civil matters” (Recital 7): autonomous interpretation, see ECJ case C-435/06, “C” and ECJ
Case C-523/07, “A”: the placement of a child in a foster family is a “civil matter” covered by the
Regulation where that decision was adopted in the context of public law rules relating to child
protection.


II. Jurisdiction

Overview of the system:

à General rule: article 8. It must be noted that there’s a Hague Convention of 1996, from which all
Member States are part. Art. 61 BIIBR stablishes when to apply Brussels II Bis Regulation and when to
apply the Hague Convention. Generally speaking, when the children have their habitual residence in a
Member State BIIBR applies.

à Exceptions: article 9, articles 10 and 11, article 12 (prorogation) and article 15.

à Special rules: articles 13 (rule taking into account the presence of the child in a MS) and 14 (national
rules of jurisdiction when according to the previous rules there is no MS with jurisdiction).

o Art. 8: General jurisdiction rule based on the habitual residence of the child in a MS (courts of
HR of the child). Rule subject to arts. 9 and 12 (see art. 8.2 in fine)

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o Art. 9: Exception to the general rule based on the modification of a judgment on access rights
when a child changes his habitual residence from one MS to another MS
o Art. 12: Prorogation of jurisdiction à another exception to the general rule:
§ Art. 12.1 and 2: Jurisdiction of a divorce court in matters of parental responsibility
§ Art. 12.3: Jurisdiction of a MS court with which the child has a substantial connection
§ Art. 12.4: Forum necessitatis
o Art. 13: Jurisdiction based on the presence of a child in a MS: in Spain, art. 6 HC96 (parallel
provision) applies instead.
o Art. 15: Transfer to a court better placed to hear the case
o Art. 20: Provisional measures
o Art. 14: Residual Jurisdiction à national law of MS

à The jurisdictional rules only identify the court of the MS with international jurisdiction over parental
responsibility matters à national laws identify the local competent court within that MS.

Common provisions:
o Art. 16: Seising of a court
o Art. 17: Examination of the jurisdiction of the court ex officio
o Art. 18: Examination as to admissibility
o Art. 19.2 and 3: Lis pendens rule à prior tempore potior iure


1) General jurisdiction rule: Art. 8 BIIa

“1. The courts of a Member State shall have jurisdiction in matters of parental responsibility over a
child who is habitually resident in that Member State at the time the court is seised.”

Why? Best interest of the child (complex concept) and all the evidence is in the HR of the child.

Recital 12: The grounds of jurisdiction in matters of parental responsibility are shaped on the light of
the best interests of the child, in particular on the criterion of proximity.

Concept of “habitual residence”: not defined by the Regulation but shall be interpreted autonomously,
i.e. in accordance with the objectives and purposes of the Regulation. The ECJ case law has given some
guidance as to the factors which shall be taken into account in determining the HR of a child à ECJ
Case “A” and EJC Case C-497/10 “Mercredi”:

• The only autonomous definition of HR we have by the ECJ regards parental responsibility. So
the leading cases are in this subject. This is not a legal concept, the national court has to
establish the HR taking into account the clues given by the ECJ.
• The HR of a child must be established on the basis of all the circumstances specific to each
individual case. Objective + subjective element.
• It is for the national court to establish the HR of the child
• In case “A” the children had been moved by their parents from one MS to another MS and the
question which arose was whether the HR had also shifted even though only a few weeks had
elapsed.

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• The mere physical presence of the child in a MS is not enough to establish HR so that IN
ADDITION other factors must be chosen which are capable of showing that the presence is not
in any way temporary and the residence of the child reflects some degree of integration in a
social and family environment. To that end, in particular:
o Duration, regularity, conditions and reasons for the stay in a MS and the family’s move
to that MS
o The child’s nationality, the place and conditions of attendance at school
o The child’s linguistic knowledge and the family and social relationships of the child in
that MS
o The parent’s intention to settle permanently with the child in another MS manifested
by certain tangible steps: purchase or lease of a residence or lodging an application
for social housing with the relevant services of that MS

à Important objective element: physical presence + integration.
For integration: where family lives (the lower the age of the kid the more important it is),
where parents work and duration/regularity of the job, where the kid attends school (different
an international school where they learn the language of the country or a school where they
integrate more in that community) or child nationality of linguistic knowledge of the child.
à Important subjective element: parent’s intention to settle.
In Case A, HR of the family would be in Finland because the family applies for social housing
there and this shows an intention to settle there.

• The “Mercredi” case concerned a baby girl aged just 2 months at the time that she was
removed by her mother from England to France. The ECJ added that the child’s age is liable to
be of a particular importance:
o As a general rule: the environment of a young child is essentially a social and family
environment determined by the reference person with whom the child lives, by whom
the child is in fact looked after and taken care of.
o Therefore, and since the environment is fundamental in determining the HR of the
child, the factors to be taken into account in the case of a child of school age are not
the same as those to be considered in the case of an older or younger child.

• In the case of an infant child who has been staying with her mother only a few days in a MS
other than that of her HR to which she has been removed, the relevant factors include:
o First: the duration, regularity, conditions and reasons for the stay in that MS and for
the mother’s reasons to move to that MS
o Second, the mother’s geographic and family origins and the family and social
connections which the mother and child have with that MS.

Acquisition of a NEW HR: when a child lawfully moves from one MS to another MS, the acquisition of
a new HR shall coincide with the loss of the HR in the former MS. The term “habitual” can be misleading
since it is not impossible that a child might acquire HR in a MS on, or not very long after, the very day
of arrival there.

The jurisdiction is determined at the time the court is seised of proceedings à principle of
perpetuatio fori: a change of HR of the child while the proceedings are pending does not itself entail
a change of jurisdiction in a pending case (exception: art. 15 BIIa)

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Case British national and Pakistani national: HR in England as long as it is a temporary issue that will
last only for 3 year during which they attend an international school. There is the intention to go back
to England.
Variation to the case: copiar Danae.


2) Continuing jurisdiction of the child’s former habitual residence: Art. 9 BIIa

Art. 9 BIIBR states that the judge of the former residence keeps the jurisdiction during the three
months after the change of residence. This applies to the case in which there’s a divorce and then a
parent decides to move with the children to another MS. Art. 9 BIIBR states that:

“1. Where a child moves lawfully from one Member State to another and acquires a new habitual
residence there, the courts of the Member State of the child's former habitual residence shall, by
way of exception to Article 8, retain jurisdiction during a three-month period following the move
for the purpose of modifying a judgment on access rights issued in that Member State before the
child moved, where the holder of access rights pursuant to the judgment on access rights continues
to have his or her habitual residence in the Member State of the child's former habitual
residence.”

Ø Situation in which a mixed couple divorces and a child moves legally from one MS to
another. In order to encourage amendments, it keeps jurisdiction of that court for 3
months.

POLICY: holders of PR are encouraged to agree the necessary adjustments of previously-ordered
access rights before the move takes place. Failing that à to apply to the court of the MS of the child’s
former HR (a guarantee that the person who can no longer exercise access rights as before may not
seise the court of the MS of the new HR of the child)

All CONDITIONS stated in art. 9 shall be fulfilled:
• Lawful move from one MS (origin) to another MS (new): consent given by another holder of
PR or consent not necessary
• A decision on access rights has been issued by the court of the MS of origin, i.e. there is a need
for modification of access rights by a judge
• The child acquires HR in the new MS within a 3-month period
• The holder of access rights still has their HR in the MS of origin

“9.2. Paragraph 1 shall not apply if the holder of access rights referred to in paragraph 1 has
accepted the jurisdiction of the courts of the Member State of the child's new habitual residence by
participating in proceedings before those courts without contesting their jurisdiction.”

• The holder of access rights must not have accepted the change of jurisdiction.

The jurisdiction of the courts of the MS of origin only extends to the modification of access rights à if
the holder of access rights wants to discuss any other question of PR, he/she shall seise the courts of
the new MS.

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3) Prorogation of jurisdiction: Art. 12 BIIa

Art. 12 BIIBR foresees the possibilities to the parties to agree in a competent court always in the best
interest of the child.
- Art. 12.1 BIIBR refers to this situation when there’s a divorce proceeding
- Art. 12.3 BIIBR refers to the same situation without divorce proceeding.
It has to be interpreted restrictively because we are giving jurisdiction to a court different from the
court of HR of the child.

Limited possibility to choose the competent court other than that in which the child is habitually
resident:
Ø The matter is connected with a pending divorce, legal separation or marriage annulment (arts.
12.1 and 2)
Ø The child has a substantial connection with that other MS (art. 12.3)
Ø Forum necessitatis (art. 12.4)

a. Art. 12. 1 and 2 BIIa

“1. The courts of a Member State exercising jurisdiction by virtue of Article 3 on an application for
divorce, legal separation or marriage annulment shall have jurisdiction in any matter relating to
parental responsibility connected with that application where:
(a) at least one of the spouses has parental responsibility in relation to the child;
and
(b) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner
by the spouses and by the holders of parental responsibility, at the time the court is seised, and is in
the superior interests of the child.”

ALL CONDITIONS MUST BE MET:
§ The child is not habitually resident in the MS whose courts are seised on the basis of art. 3
BIIa
§ It applies whether or not the child is the child of both spouses
§ At least one of the spouses has PR
§ The spouses and all holders of PR accept the jurisdiction of that MS court whether
expressly or by unequivocal conduct
§ The jurisdiction of that MS court is in the superior interests of the child

“2. The jurisdiction conferred in paragraph 1 shall cease as soon as:
the judgment allowing or refusing the application for divorce, legal separation or marriage
annulment has become final;
(b) in those cases where proceedings in relation to parental responsibility are still pending on the
date referred to in (a), a judgment in these proceedings has become final;
(c) the proceedings referred to in (a) and (b) have come to an end for another reason.”
We are in the case of HR in a third state because Bolivia is neither a MS nor a CS. We apply rules on
BIIa for this case, which can lead to national rules on jurisdiction.

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b. Art. 12.3 BIIa

“3. The courts of a Member State shall also have jurisdiction in relation to parental responsibility in
proceedings other than those referred to in paragraph 1 where:
(a) the child has a substantial connection with that Member State, in particular by virtue of the
fact that one of the holders of parental responsibility is habitually resident in that Member State or
that the child is a national of that Member State
AND
(b) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner
by all the parties to the proceedings at the time the court is seised and is in the best interests of
the child.”

ALL CONDITIONS MUST BE MET:
• Courts of a MS other than those which have jurisdiction according to art. 3 (matrimonial crisis)
and 8 (child’s habitual residence)
o The child has a SUBSTANTIAL CONNECTION with that MS, in particular:
o One of the holders of the PR is habitually resident there, or
o The child is a national of that MS
o Those circumstances are not exclusive (i.e. “in particular”): it is possible to base the
connection on others
• All parties to the proceedings accept the jurisdiction of those courts (expressly or otherwise
unequivocally)
• The jurisdiction is in the best interests of the child

Relevant case law interpreting art. 12.3 BIIa: ECJ Case C-656/13 “L v. M” and ECJ Case C-436/13, “E v.
B”

c. Art. 12.4 BIIa

“4. Where the child has his or her habitual residence in the territory of a third State which is not a
contracting party to the Hague Convention of 19 October 1996 on jurisdiction, applicable law,
recognition, enforcement and cooperation in respect of parental responsibility and measures for the
protection of children, jurisdiction under this Article shall be deemed to be in the child's interest, in
particular if it is found impossible to hold proceedings in the third State in question.”

Forum necessitatis: impossibility to hold proceedings in the court of the third State where the child is
habitually resident

If you can demonstrate that courts can’t hear the case, there is a war or there is a situation where you
can’t hold a proceeding on PR. Since there is forum necessitatis, we would determine jurisdiction based
on the child’s interest.





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4) Presence of the child in a member state: Art. 13 BIIa

“1. Where a child's habitual residence cannot be established and jurisdiction cannot be determined
on the basis of Article 12, the courts of the Member State where the child is present shall have
jurisdiction.
2. Paragraph 1 shall also apply to refugee children or children internationally displaced because of
disturbances occurring in their country.”

• Child not habitually resident in a MS + jurisdiction of a MS cannot be based on art. 12 =
jurisdiction of the courts of the MS where the child is present
• Child present in Spain à art. 6 HC96 applies (ex art. 61 BIIa): parallel provision of art. 13 BIIa


5) Residual jurisdiction: Art. 14 BIIa

“Where no court of a Member State has jurisdiction pursuant to Articles 8 to 13, jurisdiction shall
be determined, in each Member State, by the laws of that State.”

• HC96 or LOPJ
• The decision given by a MS court will be recognised and enforced in another MS irrespective
of whether the has court based its jurisdiction on BIIa or national rules on jurisdiction.
• Remember: art 17 BIIa (ex officio examination of jurisdiction)


6) Transfer to a court better placed to hear the case: Art. 15 BIIa

Idea similar to forum non conveniens, which departs from the rationale whereby there is another court
with a better position. Art. 15 BIIBR is basically providing a forum non conviniens option to the judge.

• Art. 15 BIIa contains an innovative rule which allows, by way of EXCEPTION, the seised court
to transfer the entire case or a specific part thereof to the court of another MS if the latter is
better placed to hear the case

• Recital 13: once a case has been transferred to the court of another MS it cannot further be
transferred to a third court

• Conditions for the transfer ex art. 15.3 BIIa à the child must have a “particular connection”
with the other MS and that connection exists if:
o The child has acquired HR there after the court of origin was seised (exception to the
perpetuatio jurisdictionis rule ex art. 8 BIIa), or
o The other MS is the former HR of the child, or
o It is the place of the child’s nationality, or
o Its is the HR of the holder of PR, or
o The child owns property there and the case concerns measures for the protection of
the child relating to the administration, conservation or disposal of this property

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• + Both MS courts must be convinced that a transfer is in the best interest of the child à judges
should co-operate to assess it on the basis of the specific circumstances of the case either
directly or through the respective central authorities (art. 15.4 and 53 BIIa)

• The transfer may take place ex art. 15.2 BIIa:
o On application from a party, or
o Of the courts’s own motion, if at least one of the parties agrees, or
o On application of a court of another MS, if at least one of the parties agrees

• Procedure: a MS court faced with a request or which wants to transfer the case of its own
motion has TWO OPTIONS ex art. 15.1 BIIa:














• When is the transfer of the case in the best interests of the child? The assessment should be
based on:
o Principle of Mutual Trust, and
o The assumption that the courts of all MSs are, in principle, competent to deal with the
case à important role of central authorities providing information to the judges on
the situation in the other MS

• Recent case law on the interpretation of art. 15 BIIa: ECJ Case C-428/15, Child and Family
Agency v. J.D.

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Sesión secuestro de menores.

El Convenio de la Haya de 1980 es un convenio de cooperación de autoridades porque lo único que
prevé es la acción directa: retornar al menor al Estado de residencia del que ha sido sustraido porque
lo contrario supone un perjuicio y un cambio brusco para el menor, los tribunales del Estado en que se
retiene al menor no son los tirbunales mejor situados para decidir sobre la patria
potestad/custodia/responsabilidad parental en general.
El RBIIB parte de un concepto de responsabilidad parental muy amplio: incluye desde tutela, curatela
o cualquier medida de proteccion de menores.

Se plantearon varias opciones:
a) No tocar el tema de la sustraccion
b) Aplicar el convenio cuando el menor queda però si se trata de una sustraccion
intracomunitària que la regulacion fuese pròpia europea
c) Llegar a una tercera opción à es lo que se hace

El articulo 8 dice que el juez competente es el juez de la HR del menor porque se entiende que es el
juez que està en una major disposicion para conocer de cualquier asunto que afecte al menor. Primero
porque puede ver al menor y valorar su entorno social y otras coses que otro juez no puede. Luego se
establecen excepciones, una de elles la sustracción. Pero hace una cosa muy curiosa: incorpora el
convenio de la Haya però lo altera con una sèrie de modificaciones. Dato curioso: el TJUE puede
interpretar por esta incorporacion por referencia el convenio de la Haya del 80.

El RBIIB prevé:
a) Acción directa de restitución
(si el juez español, que no ocurre, hubiera dicho que no retornaba)
b) Ir a los tribunales italianos para que conozcan de la custodia, reclamar toda la documentacion
(hay cooperacion internacional porque el juez español està obligado a pasar todo al juez
italiano)

Si se otorga la custodia al padre en los tribunales italianos cuando entran en el fondo del asunto, puede
modificar además la orden de no retorno del juez español sin posibilidad de recurso del juez español.

Una cosa es la competencia para determinar la patria potestad y custodia del menor y otra muy
diferente para la acción de retorno del menor.

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MODULE V. CONTRACTS AND TORTS

Lesson 11. Contracts

1. Introduction: unification

Within the framework of international business law the way the different actors of the market have to
interrelate between themselves is through contract law. We are dealing with transactions, which are
connected with transactions coming from different jurisdictions. International contracts require
certainty in international business. States try to solve the uncertainty problem through unification,
using different techniques:

• UNIFICATION OF INTERNATIONAL JURISDICTION RULES

• UNIFICATION OF INTERNATIONAL SUBSTANTIVE RULES of Private International Law, giving
direct solutions. States agree on an international convention to unify substantive law. The
Vienna convention, for example, does not contain choice of law rules but substantive rules.
Those substantive rules give a direct solution.

We see that in the framework of the European Union, there have been attempts to unify
substantive law but states are quite reluctant to that kind of unification. In terms of the
functioning of the internal market, we know that private law has been harmonized (i.e.
consumer law) but in all those cases, this harmonization has been done for the proper
functioning of the internal market.

There has been usually a minimum harmonization and not a maximum harmonization.

When talking about minimum harmonization, the directive establishes the minimum standard
and allows the state to go further and to legislate further. Do we still need private international
law when we talk about this harmonization? Yes, because directives establish the standard
and then it depends on each member state and its decision to go further or not. Why are states
reluctant when talking about substantive unification? Due to their sovereignty; they have not
committed to give up their sovereignty.

o Minimum harmonization allows the state to go further. For example, to protect
more the consumer.
o Maximum harmonization is close to unification because the state cannot do
anything out of the norm. Maximum harmonization directives, in fact, have the soul
of a regulation. EPIL regulations, most of the times, have the soul of a directive, they
need implementation.

There was a proposal in 2011 to unify the rules on CESL. This proposal did not pass, so there
is no unification in the matter. The idea was to create a codification of contract law and to
have the European contract law code. We still don’t have a code on contract law.

• UNIFICATION OF INTERNATIONAL CHOICE OF LAW RULES (Rome I Regulation)
o Alternative much simpler than unification substantive Law

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o Is seen as a complement to unification of jurisdiction rules. Why? Because of the forum
shopping created by the common rules on jurisdiction, we needed to unify choice of
law rules. For example, Art. 230, which is the legal basis for the Brussels Convention
was seen as a complement. The founders of the EEC thought that as a complement of
the Brussels convention, there was the need to unify choice of law rules in matters
related to contracts.
o Preserves diversity
o EU. Rome I Regulation.
o Soft law: The Hague conference elaborates the principles on choice of law in
international commercial contracts. The principles have to be implemented into the
contracting states. If the EU decides to join the principles, the Rome I regulation will
need to change, specially talking about overriding mandatory rules. Son de 2015, es
relativamente reciente. Son normas parecidas a Roma I, solo supondrían unos
cambios, pero Europa debe plantearse cuando adoptarlos.

2. Determination of the applicable law

In order to determine the applicable law we must first determine if there is unified substantive law for
that matter. For example, if we are before a case involving a Sale of Goods between a Spanish company
and a French company we have to know that there’s the Vienna Convention on Sale of Goods which is
a unified source of substantive law. It must be noted that the parties can opt out of the Convention, in
which case we’ll have to go to the RIR to determine the applicable law. However, in those elements
not covered by the Vienna Convention we will apply Rome I Regulation in order to determine the
applicable law.

If there isn’t a unified substantive law on that matter and we’re before an EU court (except Denmark)
we’ll apply Rome I Regulation in order to determine the applicable law.

3. Rome I regulation

The aim of this regulation is to determine the law applicable to a contract, the governing law of a
contract. We call this law lex contractus. We will see that the regulation has general rules based on:
• A subjective connection, or the autonomy of the parties. Parties are free to choose the law
governing the contract. Art. 3.
• However, the parties do not always choose that governing law to the contract. Rome I
establishes therefore an objective connecting factor in Art. 4.
• Some rules can still influence that law: overriding mandatory rules of Art. 9.
• There are special rules for weaker party contracts. We will only see consumer contracts.
• Rome I Regulation is a complete system of private international law. We will find rules of
application of choice of law rules. They deal with public policy exception, Renvoir, non-unified
legal systems, etc.

Scope of application

We must start analyzing the scope of application, which is stated in Art. 1 of the Regulation.

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Territorial Scope of Application

All Member states of the EU, except Denmark, apply Rome I Regulation to any situation. This is true,
irrespective of the universal character (a third state will never be obliged to apply a European
regulation).

Recital number 6
The proper functioning of the internal market creates a need, in order to improve the predictability of
the outcome of litigation, certainty as to the law applicable and the free movement of judgments, for
the conflict-of-law rules in the Member States to designate the same national law irrespective of the
country of the court in which an action is brought.

Denmark is excluded because they decided not to join Chapter IV of the EU which talks about the
judicial cooperation on civil matters. In order to apply this regulation to Denmark there should be a
convention between the EU and Denmark. Nevertheless, Denmark is part of the precursor of Rome I
Regulation, thus, in the case of Denmark, Rome Convention (and not Rome Regulations) will apply.


Personal Scope of Application

The personal scope of application derives the universal application of the regulation.
• Any law specified by this Regulation shall be applied whether or not it is the law of a Member
State à RIR has a universal application character, manifested in art. 2 RIR, which means that
the choice of law rules can refer to any law regardless of whether it is the substantive law from
a Member State or a third state.
• The relevant factor being the seized court (which has to be a court of a MS): no matter where
the parties are established nor their nationality
o BIRR determines jurisdiction
o Rome I: the judge determines applicable law to the case (except in Denmark), and that
law can be any law

In order to avoid forum shopping and uncertainty we have to unify choice of law rules. Rome I
Regulation has a universal character. The meaning of that is that all Member States have the obligation
to apply Rome I, and must apply the law that the Regulation tells them to apply. All member states
except Denmark will apply Rome I Regulation in any situation, even if it has a connection with
Denmark. Danish Tribunals will never apply Rome I.

El elemento a tener en cuenta es que esté conociendo el tribunal de un Estado Miembro. Por ejemplo,
el Art. 25 aplica de un modo parecido a Roma I, pues no tenemos en cuenta el domicilio de las partes,
sino la ley que quieren aplicar. En el ámbito de la competencia tenemos diferentes fuentes, y es
importante saber cuando aplica cada una. Puede que los tribunales españoles tengan competencia
conforme a Bruselas I, conforme a la ley del poder judicial, etc. En cambio, para norma aplicable en
régimen contractual solo tenemos Roma I.

Complete system of PRL: Conflicts of law rules and rules of application


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Temporal Scope of Application

- If the contract was concluded before September 1st 1993 the Spanish courts will apply art.
10.5 Cc.
- If it was concluded after such date but before December 17th 2009 European courts will apply
the Rome Convention.
- If the contract was concluded after December 17th 2009 we will apply the Rome I Regulation
(art. 29 RIR).

It must be noted that due to the lack of knowledge of RIR by judges and lawyers still today there are
cases heard by the supreme court in which they wrongly directly apply the rules contained in the
Spanish civil code.


Material Scope of Application

This can be found in art. 1 RIR. According to such article there must be an international element since
it reads “in situations involving a conflict of laws”. This international element leads us to two ideas.

- First, an internal situation only connected to a Member State will not fall under the material
scope of application unless the parties choose the law of another country as applicable law, in
which case we will apply RIR. Thus, party autonomy is an element which may be used to
internationalize a national contract. E.g.: all elements of a contract related to one system
(Spain), but they decide to solve the conflict using English law. The solution given by the
regulation is in art. 3.3.

- Second, it only applies to international conflict of law. The possibility of applying RIR to internal
conflicts of laws within states is the option of the State. Do we apply Rome I to solve
interregional problems? Art. 22 allows the MS to solve the conflict but Spain has decided not
to use that possibility and we still apply art. 10.5 of the Civil Code.

On top of having an international element it must be related to “contractual obligations in civil
and commercial matters.” As said by the ECJ, in order to ascertain whether we’re before
contractual obligation in civil and commercial matter we’ll require an autonomous definition.
Handte Case.

The paragraph follows that it will not apply to public situations. There are some exclusions to the
general rule. In art. 1.2 RIR we have other specific exclusions. In order to determine the law applicable
to those contractual obligations we need something else:

a) Legal capacities. This is a usual exclusion.

b) When the Rome Convention was approved or ratified, the relevant issues were the patrimonial
issues. This is because Rome I does not deal with family law issues. Here we have Rome V
concerning matrimonial property regimes but also a regulation on register partnerships.

c) Obligations under bill of exchange, tax, etc.

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d) Arbitration agreements and agreements on the choice of court. As we mentioned before, art.
25 BIRR stated that in order to determine the substantial validity of the clause we must go to
the lex fori of the chosen court (the law of the court chosen by the parties). If such court is, for
example, Spain, in order to determine the applicable law to the clause to ascertain its validity
we’ll not apply RIR (since it’s excluded from it) but will have to go to art. 10.5 Cc. Spanish court
will determine the law applicable to the choice of court agreement according to Spanish
national choice of law rules

Recital 13 says that the law includes choice of law. Conforme a que derecho vamos a poder
determinar la validez de la clausula de elección de tribunal. Se aplicará norma de conflicto en
materia contractual, Roma I lo excluye y voy al 10.5, que me dirá la lex contractus.
Probablemente, al final unifiquemos también esas normas.

e) Questions governed by the law of companies. We are discussing to have a new regulation for
company law. This unification has been done through the ECJ case law. In fact, we have unified
but through case law. We are discussing whether there is the need to codify that unification.

f) Agency contract. Letter (g) excludes the relationship between the principal and the third party
in an agency agreement since usually there’s no contractual relationship among them. In an
agency agreements we have the principal, the agent and the third. The principal who contracts
with the agent and the agent who contracts with the third. The relationship between the
principal and the agent is covered by the Rome I regulation. The relationship between the
agent and the third is also included (sale of goods commonly). What is not covered by the
regulation is the relationship between the principal and the third, and the liability of them.

g) Constitution of trusts
h) Conclusion of contracts
i) Insurance


Determination of the lex contractus

The basic aim of RIR is the determination of the lex contractus (the law applicable to the contract). In
order to do so Rome I Regulation establishes a subjective connecting factor in art. 3 RIR, basing the
determination of the governing law on the freedom of the parties; party autonomy. In the absence of
agreement on the law applicable art. 4 RIR establishes an objective connecting factor. Even if we apply
those cases and we determine the lex contractus, this lex contractus can be influenced by overriding
mandatory rules as mentioned in art. 9 RIR. Finally we have specific rules on weaker party contracts.


c. Choice of law by the parties

Basic principle Rome Regulation (Recital 11): contract is governed by the law chosen by the parties (Art.
3).

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Art. 3 : Freedom of choice
1. A contract shall be governed by the law chosen by the parties. The choice shall be made expressly or
clearly demonstrated by the terms of the contract or the circumstances of the case. By their choice the
parties can select the law applicable to the whole or to part only of the contract.
2. The parties may at any time agree to subject the contract to a law other than that which previously
governed it, whether as a result of an earlier choice made under this Article or of other provisions of this
Regulation. Any change in the law to be applied that is made after the conclusion of the contract shall
not prejudice its formal validity under Article 11 or adversely affect the rights of third parties.
3. Where all other elements relevant to the situation at the time of the choice are located in a country
other than the country whose law has been chosen, the choice of the parties shall not prejudice the
application of provisions of the law of that other country which cannot be derogated from by agreement.
4. Where all other elements relevant to the situation at the time of the choice are located in one or more
Member States, the parties' choice of applicable law other than that of a Member State shall not
prejudice the application of provisions of Community law, where appropriate as implemented in the
Member State of the forum, which cannot be derogated from by agreement.
5. The existence and validity of the consent of the parties as to the choice of the applicable law shall be
determined in accordance with the provisions of Articles 10, 11 and 13.

The cornerstone is party autonomy. As we will see, there is no need to have a contact between the
contract and the chosen law. Parties can choose any law, even if there is no relationship between that
law and the contract. In other systems, such as in our (Art. 10.5) we see that the parties may choose
the law applicable to the contract as far as there is a connection between the law and the contract.
You may choose the law due to expertise, to select a neutral forum, etc. there are many reasons why
the parties may decide to choose their law applicable to the contract. The most important reason is
that it gives them certainty; they know the legal certainty in which to accommodate their acts.

There is an important distinction between choice of law and substantive party autonomy. Today we
are discussing conflictual party autonomy. Parties are free to determine the lex contractus, they can
choose the legal framework of their relationship. Under the lex contractus, it will be determined the
freedom that parties have. Under contract law most of the provisions are not mandatory. Once we
have determined the legal framework, we will find out there which is the substantive freedom of the
parties. Under Spanish law, substantive party autonomy it is regulated in Art. 1255 (los límites son la
ley, la moral y el órden público). There we find what is mandatory and what is not mandatory.

In accordance with Recital 12, not because of the existence of the choice of court agreement we can
reach the conclusion that parties wanted to apply that law. Si las partes eligen someterse a un tribunal,
cualquier tribunal puede determinar que la ley aplicable es la existente en una choice of court. You
need several elements, for example considering language of the contract. If you don’t take into
account different elements, your conclusion will not be adequate.

An implied choice is possible, but such a choice must nevertheless be real.

Wording matters, there is no direct solution to that. We must go to indirect solution in Art. 12.5.

The parties may submit different parts of the contract to different laws. We can split the contracts
(despeçage) but we cannot lose the coherence of the contract. We cannot say that we apply Spanish
law to the obligations of one of the parties and German law to the application of the other party. A

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common case is when the parties decide that the arbitration law is submitted to the law of the seat
(lex arbitri) but the contract is submitted to another law.

The choice may refer to any specific national law. We cannot submit the contract to soft law, to the
lex mercatoria. We have to choose the law of a state, and we cannot escape from any law, we cannot
say that we create a contract so well defined that we will only apply the contract. We should determine
the lex contractus.

They may agree the chosen law at any moment even after the main contract has been concluded. It
is a separate part of that contract; it is a clause that has autonomy in itself. If according to the
applicable law at the moment of celebration of the contract, if afterwards I change the law applicable
we cannot prejudice the former validity of the agreement.

There are different limitations. The validity of law agreement will be determined in accordance with
the law chosen even if the choice should turn out to be invalid.

One of the main problems when there are foreign elements is uncertainty. States have been working
trying to find a solution to that uncertainty. For Denmark applies the Rome Convention, but not the
Regulation.

The cornerstone of the regulation is party autonomy. We said that in case the parties don’t use their
autonomy, the regulation needs to say which is the law applicable to that situation. Even if we
determine the lex contractus, that law can be influenced by overriding mandatory rules.

There are limits to the party autonomy, 3 kind of limits:
- Art. 3.3 and 3.4
- Weak party contracts
- Overriding mandatory provisions.


Art. 3 – Freedom of choice

3. Where all other elements relevant to the situation at the time of the choice are located in a country
other than the country whose law has been chosen, the choice of the parties shall not prejudice the
application of provisions of the law of that other country which cannot be derogated from by agreement.

The situation is in fact an internal situation, all subjective and objective elements are connected only
to another MS. However, there is an express choice of law in favor of the law of another state. This
means that mandatory law of that state connected should apply. It looks like a fraud of law made by
the parties. This article 3.3 is an anti-fraud provision. Internal situation submitted to a foreign law. It is
under the scope of the regulation but the solution given by the regulation is that it is not a choice of
law, but ”incorporation by reference”. Lo que no puedes es derogar el derecho imperativo, en lo que
no contradiga lo “mandatory” podrá aplicarse el derecho escogido por las partes.

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Art. 3.4. Where all other elements relevant to the situation at the time of the choice are located in one
or more Member States, the parties' choice of applicable law other than that of a Member State shall
not prejudice the application of provisions of Community law, where appropriate as implemented in the
Member State of the forum, which cannot be derogated from by agreement. Art. 1.4 à Rome I is
applicable to Denmark and considered a MS under Art. 3.4 and 7.

This is a huge limit to party autonomy. If the contract has contacts within MS parties cannot choose
the law of a third state if it prejudices a EU mandatory rule. Sometimes, the European secondary law
(directives) tells us what is mandatory.

There is an agent performing a provision of services in the UK and Company Eaton in California acting
as a principal. The choice of law was California. Ingm sued Eaton in UK Courts. A European directive
established compensation to the agent not provided under Californian law. This compensation
provided by the directive can be considered a mandatory European law? At that time, there was
neither 3.3 nor 3.4, and those provisions come from INGMAR case. The ECJ said that it is mandatory
European law. The ECJ focused on the preservation of competition (public dimension) and protect the
commercial agent (private dimension).

Overriding mandatory rules are a smaller group of rules, which apply in any case, regardless of the lex
contractus.

Example: Agreement between a German and Spanish Company to develop a German patent in Spain.
There are 2 types of mandatory rules:
- Spanish competition law. It aims to preserve the Spanish market, that it is an overriding
mandatory rule, which applies even if the contract is governed by Germany.
- That agreement must be in writing. If the contract is subject to Spanish law, it must be
respected but if it is subjected to German law, it must not be respected.

Art. 3.4 is trying to protect the active consumer. However, as it applies in any case, it seems that it is
limiting party autonomy excessively.

d. Closest connection – Rome Convention

• Lacking parties’ choice
• Too vague

1. Art. 4.2 Presumption (iurs tantum). This presumption said that the law most closely connected
was the law of the habitual residence of the party performing the obligation of the contract.
The characteristic obligation of a contract is the one that allows differentiating that contract
from another. The payment obligation is never the characteristic obligation.

In the case of a sale of goods the characteristic obligation is the delivery of good and in the
case of provision of services, where the services are provided. Civil judges were not applying
this provision as common law lawyers. Civil lawyers were going directly to the presumption,
not thinking which was the most closely connected law while common law judges were not
going directly to the presumption but tried to determine first the law applicable. This was a

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very difficult connection. That ended up with a different or non-unified application of Art. 4.
When the Rome Convention came to be a Regulation, art. 4 was a necessary change.
Habitual residence/place of business
Characteristic performance

2. Art. 4.5 Exception:
Characteristic performance cannot be determined
«It appears from the circumstances as a whole that the contract is more closely connected
with another country»

To understand Article 4 Rome I, it is important to know how this article was foreseen under the Rome
Convention and why it changed. This Art. 4 under the Convention is the most flexible connection that
we ever had under the Spanish system, as far as it allows the judge to consider the different
circumstances of the case and determine which is the law most closely connected to the issue.

Article 4 Rome I Regulation

This article is using only one connecting factor, and it is not a flexible connecting factor. Rome I is giving
a rigid solution in the absence of choice of law rules.

REMEMBER à We interpret the concepts in European regulations according to an autonomous
definition. However, some of those concepts thcannot be defined autonomously.

Today one of the most important problems in EPIL is characterization, we have to characterize
everything autonomously and this is a difficult process because we do not share the same concepts.

Structure of art. 4 à 4.1 – list system for 8 types of contacts (to be known by heart)

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The party performing the characteristic obligation is the party doing the “hard work”. It is easier to pay
than to deliver the goods in the proper way. That’s why Rome I Regulation chooses the habitual
residence of the party performing the characteristic obligation.

4.2 – Law of the country where the party required to effect the characteristic performance of the
contract has his habitual residence à Characteristic performance: the one, which allows to distinguish
one contract from another. Generally not the payment

4.3 – Exception clause to 4.1 y 4.2 based on the closer connection of the contract with a country other
than the one indicated in 4.1 or 4.2. This should be applied ex officio by the court.
If Art. 1 is applicable it is difficult to convince the judge to apply Art. 4.3

4.4 – closing clause
According to Art. 3 and 4 we have determined the lex contractus. That law can be influenced by
overriding mandatory rules.

e. Overriding mandatory provisions

Article 9
9.1 Overriding mandatory provisions are provisions the respect for which is regarded as crucial by a
country for safeguarding its public interests, such as its political, social or economic organization, to such
an extent that they are applicable to any situation falling within their scope, irrespective of the law
otherwise applicable to the contract under this regulation.
9.2 Nothing in this Regulation shall restrict the application of the overriding mandatory provisions of the
law of the forum.
9.3 Effect may be given to the overriding mandatory provisions of the law of the country where the
obligations arising out of the contract have to be or have been performed, in so far as those overriding
mandatory provisions render the performance of the contract unlawful. In considering whether to give
effect to those provisions, regard shall be had to their nature and purpose and to the consequences of
their application or non-application.

• Art. 9 Overriding mandatory provisions – protection of ordopolitic rules
• Autonomous definition to avoid different interpretation. Nevertheless each MS decides which
of its rules are overriding mandatory
• Arts. 9.1 y 9.2 lex fori overriding mandatory rules. Imposes no restriction
• Art. 9.3 – facultative character- Shy approach. Third country overriding mandatory rules

Overriding mandatory rules of the court seized, which is hearing the case do always apply. From the
Spanish perspective, the Spanish judge will always apply Spanish overriding mandatory rules. 9.3 refer
to overriding mandatory rules of a third state, meaning not the state of the lex contractus, nor the
state of the forum. We have a situation connected to different states: the state of the forum, the state
of the lex contractus, but also a third state. Is the judge obliged to apply the overriding mandatory
rules of a third state? The importance of Art. 9.3 is that it refers to the obligations arising out of the
contract have to be or have been performed.

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IGMAR CASE

Territorial scope application of Council Directive 86/653/EEC relating to self-employed commercial
agents, especially the territorial scope of those provisions that guarantee compensation to the
commercial agent after termination of contract.

Directive 86/653 does not contain any provision on territorial scope: this void was partially filled by
some MS with a unilateral approach, so there are no common provisions on that issue.

The ECJ makes a decision on three essential queries:
1. Does Directive 86/653 enclose mandatory rules?
2. If this is so, which is their territorial scope?
3. Do these provisions only apply to intra-community relationships?

Ingmar had acted as Eaton Leonard’s exclusive agent for the sale of its tube and pipe bending machines
and associated equipment for the aircraft and automotive industries in the United Kingdom and
Ireland since 1989. In 1996, Eaton Leonard terminated the agency agreement. As a result, Ingmar
issued proceedings, claiming unpaid commission and compensation under the Commercial Agents
Regulations.

Proceedings initiated before an English court seeking compensation for damage suffered as a result of
the termination of the contract. Choice of law clause which stipulated that the contract was to be
governed by the law of the State of California (USA). This choice must be restricted when there is a
mandatory rule that is to be necessarily applied due to public policy.

The British Regulations, which implemented Directive 86/653, embrace some provisions that define
its territorial scope but they do not regulate the issue in question, that is, the choice of a law of a non
MS. British legislation does not pose any doubt whenever the parties choose the law of a MS, because
there is no public policy reason to apply these Regulations, even if the commercial agent develops his
activities in the UK.

The question is whether the Regulations that guarantee compensation are a mandatory rule to be
applied even if the principal is not established in a MS and the chosen law is one of a non MS.

Art. 17 and 18 are overriding mandatory rules in light of the goal sought: protection of commercial
agents and preservation of competition.
• Private dimension: defending an individual because of an unbalanced contractual relationship
• Public interest: to obtain competition in similar conditions in the EU.

Territorial scope of articles 17 and 18 is defined by the carrying-on of the activity of the commercial
agent in a MS. Whenever this connection is produced, art. 17 and 18 must be necessarily applied,
irrespective of the choice of law made by the parties.

ECJ determines plainly the applicability of Directive 86/653 to all commercial agents, to every agency
contract, whether internal, intra – European or international

This judgement has to be analysed from two different perspectives:

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• First, when the law of the contract is one of a non-MS
o If the commercial agent does not carry on his activity within the Community, articles
17 and 18 do not claim an interest to be applied. Never mind where the habitual
residence is located, the central administration or the principal place of business of
the commercial agent or the principal, neither his nationality.
o Nonetheless, when the commercial agent does carry on his activity within the
Community, articles 17 and 18 ought to be applicable, whatever the proper law is
(always?)

• Second, when the law of the contract is one of a MS
If the commercial agent does not carry on his activity in a MS, articles 17 and 18 of Directive
86/653 are applicable as the domestic mandatory rules of the lex contractus.

On the other hand, when the commercial agent does carry on his activity in a MS, do the implementing
provisions on indemnification or compensation play the role of mandatory rules against other MS laws
in an intra - European situation? Can the parties freely choose the law of any MS? (UNAMAR)

UNAMAR case

In 2005, Unamar, as commercial agent, and NMB, as principal, concluded a commercial agency
agreement.
The agreement provided that it was to be governed by Bulgarian law and included an arbitration clause
(Chamber of Commerce in Sofia).
In 19 December 2008, NMB informed its agents that it was obliged to terminate their contractual
relationship.

Unamar brought an action before a Belgian Court for an order that NMB pay various forms of
compensation provided for under the Belgian Law on commercial agency contracts.
NMB in turn brought an action against Unamar for payment of outstanding freight.
As regards the applicable law, Article 27 of the Belgian Law on commercial agency contracts was
directly applicable as a ‘mandatory rule’ and which thus rendered the choice of foreign law ineffective.

“Without prejudice to the application of international conventions to which Belgium is a party, any
activity of a commercial agent whose principal place of business is in Belgium shall be governed by
Belgian law and shall be subject to the jurisdiction of the Belgian courts”.

The Court of Appeal took the view that the Law on commercial agency contracts was not part of public
policy, nor of Belgian international public policy, within the meaning of Article 7 of the Rome
Convention.

In addition, it considered that the Bulgarian law chosen by the parties also allowed Unamar, as the
maritime agent of NMB, the protection of Directive 86/653, even if that directive provided for only a
minimum level of protection. The principle of the freedom of contract of the parties had to prevail
and, therefore, Bulgarian law was applicable.

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The Court of Cassation takes the view that it appears from Article 27 of that law that the objective it
pursues is to offer an agent whose principal place of business is in Belgium the protection of the
mandatory rules of Belgian law, irrespective of the law applicable to the contract.

Preliminary ruling:
Having regard, not least, to the classification under Belgian law of the provisions at issue in this case
(Articles 18, 20 and 21 of the [Law on] commercial agency contracts) as special mandatory rules of law
within the terms of Article 7(2) of the Rome Convention, must Articles 3 and 7(2) of the Rome
Convention, read, as appropriate, in conjunction with [Directive 86/653], be interpreted as meaning
that special mandatory rules of law of the forum that offer wider protection than the minimum laid
down by [Directive 86/653] may be applied to the contract, even if it appears that the law applicable
to the contract is the law of another Member State of the European Union in which the minimum
protection provided by [Directive 86/653] has also been implemented

ECJ ruling:
Articles 3 and 7(2) of the Convention on the law applicable to contractual obligations must be
interpreted as meaning that the law of a MS of the European Union which meets the minimum
protection requirements laid down by Council Directive 86/653/EEC relating to self-employed
commercial agents and which has been chosen by the parties to a commercial agency contract may be
rejected by the court of another MS before which the case has been brought in favour of the law of
the forum, owing to the mandatory nature, in the legal order of that MS, of the rules governing the
situation of self-employed commercial agents, only if the court before which the case has been brought
finds, on the basis of a detailed assessment, that, in the course of that transposition, the legislature of
the State of the forum held it to be crucial, in the legal order concerned, to grant the commercial agent
protection going beyond that provided for by that directive, taking account in that regard of the nature
and of the objective of such mandatory provisions.

• Why should the consumer be protected from a conflicts of law perspective?
• How can the consumer be protected?
• Art 6 establishes a special conflicts of law rule which aims to protect the consumer


NIKIFORIDIS case
Lex contractus of the contract was German. Due to the crisis in Greece there were salary cuts affecting
Greece. That overriding Greek mandatory rules cannot be applied because Greece is not the state were
the performance of the obligation is to be done. The ECJ made a distinction between the application
of an overriding mandatory rules and taking into account those rules as a fact. You can take into
account the rules as a fact, but it is not an obligation.

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f. Consumer contracts

Why should the consumer be protected from a conflicts of law perspective? How can the consumer
be protected?

Art 6 establishes a special conflicts of law rule which aims to protect the consumer

• Scope of application: it only protects certain consumers
o Who is a consumer? Same definition as in BIR

o What is a consumer contract? Material scope of application à CONSUMER
CONTRACTS COVERED BY ART. 6 RC
§ Limited material scope of application
• Supply of goods or services
• Contract for the provision of credit for that object.
§ Exclusions
• Contract of carriage: “package tours” covered
• A contract for the supply of services where the services are to be
supplied to the consumer exclusively in a country other than that in
which he has his habitual residence.

o Territorial conditions of application
§ Art 6 RC only protects the so-called “passive consumer”: three situations


• Special conflict of law rule
o Limiting party autonomy: comparison between the chosen law and the law of the
consumer’s residence

o Special objective connection: the law of the consumer’s habitual residence

Difficulties encountered
o Restricted material scope of application: only certain contracts were
covered
o The active consumer (mobile consumer) was not protected

Possible solutions
o Consumer protection Directives set up rules which aim to grant the
consumer (all consumers) the minimum protection afforded by the
Directive
o Modification of Art 5: Regulation Rome I Art 6 + 3.4 RRI






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Lesson 12. Torts

Rome II Regulation: Applicable Law
(Regulation (EC) No. 864/2007 of the European Parliament and of the Council of 11 July 2007 on the
law applicable to non-contractual obligations).

I. Rome II Regulation: scope and general features


1. General features

• Intended to complement both: BIRrecast and RIR. We have to understand the RIIR as a
complement of both the BIR and the RIR. The Rome Convention was considered to be a
complement of the Brussels Convention. In fact, when the Rome Convention was proposed,
the proposal included both contractual and non-contractual obligations, but at the end an
agreement was not reached, and they focused only on contractual obligations. Then, the
Amsterdam Treaty entered into force and the EU institutions started to work on a Regulation.

According to BIR, you may have more than one court having jurisdiction (ex. general rule +
special jurisdiction), and this situation may cerate forum shopping. Rome I and II are
complements to BIR because they aim to avoid the forum shopping. The court will apply the
same conflict of law rule, and therefore, the case will be solved according to the same law no
matter which court hears the case.

• It sets forth a uniform set of conflict of law rules applicable to torts and related subjects
(unjust enrichment, negotiorum gestio and culpa in contrahendo). Rome II is a set of rules
unifying choice of law rules. It is a complete system, There are both conflict of law rules and
rules solving problems of applicability (revoir, plurilegislative system, public policy exception).

• It constitutes the general regime on the law applicable to non-contractual obligations. Rome
Regulations have a universal character. If the situation is covered within the scope of
application of the Regulation, the MS courts must apply it instead of its national conflict of law
rule (10.9 CC).

• Its legal bases: art. 81 TFEU (former 65.b EC Treaty) sets also the bases (history of Rome II: the
fathers of the ECC decided to unify choice of law rules in civil and commercial matters in
contractual and non contractual, so the EU decided to start with contractual obligations. when
the treaty of Amsterdam gave the power to the European legislator, Rome II was born)

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2. Scope of application

Its crucial to know in which situations applies.

a) Territorial

All Member States except Denmark (opt-out system and no convention) à Danish judges (courts) will
continue to apply its national conflict-of-law rules on torts (they will not apply Rome II regulation, but
Spanish courts will apply it even if there are contacts with Denmark, because of the universal scope of
application).

Ex. damage occurred in Copenhagen. A Spanish driver causes a damage to a UK citizen in Copenhagen.
The Spanish Courts hear the case. They will do it according to Rome II, regardless of the contact with
Denmark.
If the Danish court was the one hearing the case, it would apply Danish national conflict of law rules.

b) Personal

• Universal scope of application (article 3). Any law specified by this Regulation shall be applied
whether or not it is the law of a Member State.

• The relevant element to determine the application of Rome II regulation is the seized court of
a MS (but Danish): no matter where the parties are established nor their nationality = The
regulation determines the law applicable to ‘intra-Community’ and ‘extra-Community’ cases.
Neither do we take into account the place of the damage.

The court of a MS will always apply Rome II, because it had a universal character, no matter the
relationship the situation has with third states. Even if the applicable law is the law of a 3rd state, Rome
II still applies.

c) Material (subject-matter)

• Situations involving a conflict of laws à internationality (foreign element) = any situation
connected to more than one legal system and that potentially implies a conflict of laws. We
have a very similar article to art. 1 of RIR. In RIIR is were the regulation is requiring the
existence of a foreign element. It applies only to international situations. It does not apply,
then, in the case of interregional conflicts. In the case of interregional problems in Spain, we
apply 10.9

• Any foreign element triggers the application of the Regulation à what about party autonomy?
à art. 14(2): The idea behind this provision is that even if its covered by the regulation
situation, the choice is not considered as a choice of law, its part of our substantive law
because you cannot avoid the application of the ius cogens connected to that law.

• Non-contractual obligations arising from civil and commercial matters: autonomous concepts
(ECJ decisions, we can sue them in regard to Rome I, Rome II and BIR) including unjust
enrichment, negotiorum gestio and culpa in contrahendo

• Civil and commercial matter: does not matter the nature of the court + in the case of a public
authority, it has to act as a private person (acta iure gestionis)

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• Non-contractual obligations: claim the liability of a defendant without the existence of a
contractual obligation (obligation freely entered)

• Excluded matters: non-contractual obligations in civil and commercial matters that are
excluded, due to several reasons.
o Usual exclusions (some similarities with Rome I Regulations)
o Relevant ones (different form Rome I):
§ (f) Nuclear damage. The reason for it is that there is already an international
convention
§ (g) Non-contractual obligations arising out of violations of privacy and rights
relating to personality, including defamation.
à national conflict-of-law rules: art. 10.9 Civil Code


The MS could not reach and agreement, because substantive law differs enormously from one MS to
the other.

Ex. we have an international situation in which someone is claiming for defamation before an Spanish
court. The Spanish court will use our national choice of court rule (10.9 CC) à lex loci delicti comissi
(law of the place where the damage occurs). Art. 10.9 Cc is our national choice of law rule. It uses the
law of the place where the damage occurs.

d) Time

The relevant date will be taken into account at the moment where the event giving rise to the damage
occurs. We do not take into account where the claimant starts the proceedings, but where the event
giving rise to the damage occurs. If it occurs after 11 January 2009 the regulation applies.

• It applies from 11 January 2009
• Relevant date: the moment when the event giving rise to the damage occurs (art. 31)
If the event has occurred before, we apply 10.9 CC
• If there is a temporal lapse between that event and the moment when the damage arises à the
Regulation only applies if the former has occurred after 11 January 2009

3. Relationship with other instruments

Existing international conventions: art. 28

a) International Conventions concluded between MS and Third States à prevail over RIIR (we do not
apply RIIR in these subject matter), because they have an universal character and Spain has ratified
them:

• Hague Convention 4 May 1971 on the law applicable to traffic accidents

• Hague Convention 2 October 1973 on the law applicable to product liability

b) International Conventions concluded exclusively between MS à RIIR prevails over them

Other provisions of EU law: art. 27 à principle of lex specialis
It establishes the relationship between RIIR and secondary legislation in specific matters which may
contain rules on choice of law. As far as they are lex specialis, they prevail.

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II. Party Autonomy

Freedom of choice

We will not use it a lot, because it is not very common. Ex ante is difficult, and ex post as well. In the
case of professionals it can be agreed before, but not in the case of consumers.

Art 14 allows the parties to choose the applicable lawà this freedom also encompasses unjust
enrichment, negotiorum gestio and culpa in contrahendo

Parties are allowed to choose any State law (MS or non-MS)

• No need to choose a connected law

• LIMITS: 14.2 and 14.3 (like 3.3 and 3.4 Rome I). We have to rememebr that the etrm MS
incldiues Denmark

• The choice can be exercised either by an explicit or tacit agreement. An implied choice is
possible, but such a choice must nevertheless be real à demonstrated with reasonable
certainty by the circumstances of the case.

• Freedom of choice is not allowed in 2 cases:

o Art. 6 competition
o Art. 8 infringement of IP rights
§ Why?
• Due to a supra-individual function of these branches of the legal
system where the are important public interest at stake
• Due to the complexity that the choice may introduce

• Despite the resistance to accept the role of party autonomy its practical consequences will not
be very relevant


III. General rule for torts

In the absence of choice

Article 4
1. Unless otherwise provided for in this Regulation, the law applicable to a non-contractual
obligation arising out of a tort/delict shall be the law of the country in which the damage occurs
irrespective of the country in which the event giving rise to the damage occurred and
irrespective of the country or countries in which the indirect consequences of that event occur.
2. However, where the person claimed to be liable and the person sustaining damage both have
their habitual residence in the same country at the time when the damage occurs, the law of
that country shall apply.
3. Where it is clear from all the circumstances of the case that the tort/delict is manifestly more
closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that
other country shall apply. A manifestly closer connection with another country might be based
in particular on a preexisting relationship between the parties, such a contract, that is closely
connected with the tort/delict in question.

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• In the absent of choiceà art. 4. The starting point of the Regulation is the traditional rule on
this area: the lex loci delicti commissi (see Article 4.1). Nevertheless, the Regulation lays down
a wide range of exceptions to that rule, which reduce notably its scope of application.

• Structure:
o 1. Lex loci deliciti commissi
o 2. Exceptions
§ General exceptions
- Common habitual residence
- Escape rule: the closest connection
§ Subject-matter exceptions (some not truly exceptions)
- Product liability
- Unfair competition and acts restricting competition
- Environmental damage
- Infringement of intellectual property rights
- Industrial action


General rule: Lex loci deliciti commissi

If parties have their habitual residence in different countries, the applicable law is the law of the
country where the damage arises, i.e. the lex loci delicti commissi (Article 4.1).


General excpetions


1. Common habitual residence

• If the parties have their common place of residence in one State, the law of this State shall
apply, irrespective of the place of damage.
• The common place of residence, therefore, has a rank superior to the lex loci delictià why?
• The connecting factor refers to the person claimed to be liable, who does not necessarily
coincide with the person who caused the damage (e.g., cases of vicarious liability) and the
person who has sustained the damage.
• The concept of habitual residence: Article 23.
o In cases of legal persons, the relevant criterion is the central administration of the
company, i.e. the place where the administration of the activities of the legal person
takes place on a regular basis.
o it does not specify the HR natural persona. Yes if they are engaged in an independent
business à the principal place of business

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2. Place of damage = lex dami

• If parties have their habitual residence in different countries, the applicable law is the law of
the country where the damage arises, i.e. the lex loci delicti commissi (Article 4.1).

• This rule applies in a subsidiary way: it only applies when the damage is not governed by a
special rule (Articles 5-9), the parties have not chosen a different law (Article 14), have their
habitual residence in different countries (Article 4.2), and the case is not more closely
connected with the law of another country (Article 4.3).

• “Where the damage occurs irrespective of the country in which the event giving rise to the
damage occurred and irrespective of the country or countries in which the indirect
consequences of that event occur” = lex damni

• Recital 17à in cases of personal injury or damage to property, the country in which the
damage occurs “should be the country where the injury was sustained or the property was
damaged”.
o Why? The Regulation tries to solve two kind of problems:
§ Distance torts:
• When the causing event is located in one country but the damages are
suffered in another country, the Regulation opts for the second (lex
loci laesionis instead of lex loci actus). The law applicable shall be the
law of the country where the damage occurs irrespective of where the
event causing the damage has taken place.
• The connecting factor is a neutral criterion, not a material-oriented
criterion, and refers to the links with the territory of a country, not
with its legal system.
• This rule departs from the “principle of ubiquity” of Brussels I
§ Only grants relevancy to the direct damage (i.e., first or direct impact). The
indirect or consequential damages are not taken into account as a connecting
factor
• Eg: Spanish Citizen has an accident in in Franceà French law applies.
The financial or non-material damages sustained in country Spain
deriving from that accident are not relevant for the determination of
the law applicable.
• If damage occurs in several countriesà the laws of all the countries
concerned have to be applied in a parallel manner to the various parts
of the damage


o Escape rule: it is an exception, it applies restrictively
where it is clear from all the circumstances of the case that the tort/delict is manifestly
more closely connected”.
A manifestly closer connection with another country might be based in particular on a
preexisting relationship between the parties, such a contract, that is closely connected
with the tort/delict in question.

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3. Escape rule

• Purpose of this clause: to introduce a certain degree of flexibility in the system allowing the
judge to apply a different law from that designated by Articles 4.1 (loci delicti) or 4.2 (common
residence):
o exceptionally, when the tort is manifestly more closely connected with another
country, the law of this country will apply
o Can only be invoked in exceptional cases: the wording of Article 4.3 reads “where it is
clear from all the circumstances of the case that the tort/delict is manifestly more
closely connected”.
• The clause aims to encounter the center of gravity of the tort and, therefore, material-
oriented results should not be incorporated in that test.

• The Regulation reduces the uncertainty that the escape clause may introduce by adding a
presumption: “A manifestly closer connection with another country might be based in
particular on a preexisting relationship between the parties, such as a contract, that is closely
connected with the tort/delict in question.”


IV. Special rules for torts

1. Product liability

• Why a special rule for product liability? à unsuitability of the lex loci delicti commissi:
o It can lead to a law which presents a marginal connection with the case
o The place of damage may be completely unforeseeable to producers and unexpected
to the victim

• Art. 5 RII sets forth a cascade system of connecting factors inspired on the CH73 but attempts
to simplify it. The idea is to combine different factors, in a way which meets the legitimate
expectations of the victims while being not completely unforeseeable to the producer

• 4 connecting factors are combined in art. 5.1 RII:
o HR of the parties
o Place of marketing of the product
o Place of acquisition
o Place of damage

• The purpose of art. 5.1 RII is to find a law that at the same time:
o Meets the legitimate expectations of the victim
o Is not completely unforeseeable to the producer

• Outline of the cascade system:
1. First we have to consider party autonomy (art. 14)
2. Then, article 5.1 establishes that Without prejudice to article 4(2), the law
applicable to a non-contractual obligation arising out of damage caused by a

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product (…) is:” therefore, if they have a common habitual residence, the law of
that place. Then, rules of article 5.1 (in this order):
a. HR victim + product marketed (Art. 5.1.a)
b. Acquisition of the product + product marketed (Art. 5.1.b)
c. Damage occurs + product marketed (Art. 5.1.c)

If we would not consider where the product is marketed, the producer would be exposed to the law
of any country. There is nothing on the Regulation which allows us to conclude that it includes not only
selling but also advertising. However, she considers that we can apply the same doctrine as in Pammer
by analogy (target activity test). We are waiting for a ruling from the ECJ.

Then, 5.1 paragraph 2:
+ Predictability clause à law of the State of the HR of the producer (art. 5.1. second paragraph)

However, the law applicable shall be the law of the country in which the person claimed to be liable
is habitually resident if he or she could not reasonably foresee the marketing of the product, or a
product of the same type, in the country the law of which is applicable under (a), (b) or (c).

• When we talk about the marketing of products, we refer no to the product causing the
damage, but a similar product produced by the same producer is enough
• The producer has to foresee the marketing of that product or a similar product in that state,
otherwise, you cannot apply the law of the state provided by 5.1 a, b or c, but the law of the
country in which the person claimed to be liable is habitually resident.

o The expression “failing this” of the cascade system means that if the conditions of
letter a) are met but the law designated is not foreseeable to the producer, letters b)
and c) must still be checked before applying the predictability clause
o What if none of the conditions of letter a) to c) are met? Doctrine argues that the
predictability clause should be applied by analogy. The judge has to determine the
closest applicable law.

La cláusula de predictibilidad se aplica en cada caso: cascada en cada uno; no se verifica al final, sino
en cada caso.

+ Escape Clause à Art. 5.2 RII (equivalent to the escape clause of art. 4.3 RII): where it is clear from
all the circumstances of the case that the tort is manifestly more closely connected with a law other
than:
• The law of the State of the common HR of the parties (art. 4.2 RII)
• That indicated in art. 5.1 RII

à Article 5 is superseded by the Hague Convention 1973 in Spain

* Marketed: what happens when it is marketed though the internet? Where can we say it was
commercialized? The professor understands that in cases of advertisement on the internet, the
interpretation applicable in article 17 (directing activities…) can be applied here by analogy, but we are
still waiting for the interpretation of the ECJ in this matter.

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2. Unfair competition and acts restricting free competition (art. 6)

• Applicable to non-contractual obligations arising out of:
o An act of unfair competition: arts. 6.1 and 2
o An act restricting free competition: art. 6.3

• Party autonomy is not allowed (6.4), because this branch of law has a supra-individual
function.

• No intervention of the law of the state of common HR of the parties (art. 4.2 RII) and no
intervention of an escape clause à they could frustrate the “ordering of the market” function
of this rule

• Art. 6 serves the function of specifying the locus delicti in relation to a MARKET NOT with a
territory à Why?

o Affected market criterion
§ Each State organizes its own MARKET à an institutional framework in which
all participants (supply and demand) are to play in accordance with the rules
of unfair competition and free trade law established by it.
§ The INTEREST of each State is that its competition rules apply to any
participant in its market à any conduct that may have a SUBSTANTIAL
REPERCUSSION on its market.

o Unfair competition (Art. 6.1 RII)
§ Non-contractual obligations arising out of an act of unfair competition
§ Connecting factor: the law of the State where competitive relations or the
collective interests of consumers are affected or ar likely to be affected
§ The concept includes acts such as: misleading advertising, forced sales,
boycotts or misleading business reputation
§ It applies to actions brought by other competitors and by consumer
associations
o Unfair competition affecting a particular competitor (Art. 6.2 RII)
§ Cases of industrial espionage, inducing breach of contract or corruption
§ Exception: affect DIRECTLY private interests and only INDIRECTLY public
interests (the market). Therefore, art. 4 applies (including PARTY AUTONOMY
ex art. 14 RII, common HR and escape rule)

o Restriction of free competition (6.3 RII)
§ Recital 23 for the concept: prohibitions on agreements between
undertakings, decisions by associations of undertakings and concerted
practices wich have as their object or effect the prevention, restriction or
distortion of competition within MSS or within the internal market,
prohibitions of abuse of a dominant position within a MSS or within the
internal market, where such agreements, decisions, concerted practices or
abuses are prohibited by arts. 101 and 102 TFEU (formerly arts. 81 and 82 ECT)
or by the law of a MS.
§ Covers private damages à public remedies are excluded from the Regulation
§ Recital 22: covers violations of both national law and EU Competition law à
in the latter case the law applicable shall be the law of the MS on whose
market the anti-EU Competition law act causes effects.

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We are dealing with private claims. Public claims and remedies are excluded form the
Regulation. According to Recital 22: covers violations of both national law and EU
Competition law à in the latter case the law applicable shall be the law of the MS on
whose market the anti-EU Competition law act causes effects.

o Market Affected in ONE STATE (letter a)
§ The law applicable to a non-contractual obligation arising out of a restriction
of competition shall be the law of the State where the market is affected or is
likely to be affected

o Market Affected in MORE THAN ONE STATE (letter b)
§ Ad ex: as a consequence of a concerted practice a company has suffered
damages in 8 different MS

The law of each MS shall apply on a distributive basis: need to prove and apply
the law of each MS à To diminish this burden and avoid forum shopping

The person seeking compensation for damages may choose to base his claim
on the lex fori provided that:

§ He sues before the MS courts of the defendant’s domicile, AND

§ The law of the forum is amongst the States directly and substantially affected

If there is more than one defendant and the claimant sues in the MS courts for the
place where any of them is domiciled ex art. 8.1 BIR à the person seeking
compensation for damages can only choose to base his claim on the lex fori if:

§ The restriction of competition on which the claim against each of these
defendants relies directly and substantially affects also the market in the MS
of the seized court.


3. Environmental damages (art. 7 RII)

The law applicable to a non-contractual obligation arising out of environmental damage or damage
sustained by persons or property as a result of such damage shall be the law determined pursuant
to Article 4(1), unless the person seeking compensation for damage chooses to base his or her claim
on the law of the country in which the event giving rise to the damage occurred.

• Recital 24 defines environmental damage. It covers adverse change in a natural resource
(water, land or air), impairment of a function performed by that resource for the benefit of
another natural resource or the public, impairment of the variability among living organisms.

• Civil liability arising from environmental damages caused to public goods and sustained by
persons or property as a result of the environmental damage

• Structure of the rule:

o First: PARTY AUTONOMY (art. 14)
o Second: Lex loci delicti commissi (art. 4.1) UNLESS the person seeking compensation
for damage chooses to base his claim on the law of the State in which the event giving
rise to the damage occurred

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• The rule presupposes a distance tort: place of damage v. place of the event giving rise to
damage

• At the claimant’s choice: Why? See Recital 25 Environment enjoys a high level of protection
given the positive externalities it generates

The PRINCIPLE OF THE POLLUTER PAYS and the PRINCIPLE OF PRIORITY TO CORRECTIVE ACTION
AT SOURCE justifies the PRINCIPLE OF DISCRIMINATING IN FAVOUR OF THE PERSON SUSTAINING
DAMAGE (an incentive to bring action which benefits not only the claimant but also the entire
Planet).

• When can the claimant choose the applicable law? Recital 25: left to the procedural law of the
forum


We are allowing the victim to choose between: covers adverse change in a natural resource (water,
land or air), impairment of a function performed by that resource for the benefit of another natural
resource or the public, impairment of the variability among living organisms
- The law of the place where the damage occurs
- The law of the place in which the event giving rise to the damage occurred

This has sense in cases of distant torts, where these 2 places are different. The rule is protecting the
victim. The EU legislator wants to avoid that the company locate their factories in states with lower
standards.


4. Intellectual property rights (art. 8 RII)

• The rule enshrines the universal acknowledge principle of LEX LOCI PROTECTIONIS: the law of
the State for which protection is claimed. We apply the lex loci protectionisà law of the state
for which protection is claimed

• Ratio of the LEX LOCI PROTECTIONIS: Intellectual property is an intangible asset recognised
or granted to a person by the State to monopolise its use à each State applies its own law
to infringements of intellectual property rights recognised or granted for its territory
(principle of territoriality).

• Party Automony not allowed (art. 8.2 RII)/Nor article 4.2 and 3 à exclusivity of art. 8 RII

• Concept: see Recital 26 copyright, related rights, the sui generis right for the protection of
databases and industrial property rights. Concept established by Recital 26: Regarding
infringements of intellectual property rights, the universally acknowledged principle of the lex
loci protectionis should be preserved. For the purposes of this Regulation, the term
‘intellectual property rights’ should be interpreted as meaning, for instance, copyright, related
rights, the sui generis right for the protection of databases and industrial property rights.


Special rule in the case of an infringement of a unitary community intellectual property right (8.2): the
law applicable shall, for any question that is not governed by the relevant Community instrument, be
the law of the country in which the act of infringement was committed.

ARTICLE 9-12 NO ENTRAN EN EL EXAMEN

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5. Industrial action (art. 9 RII)

• Purpose of the rule: to prevent that industrial action taken in one State is governed by the law
of another State in which the financial losses arisen out of that industrial action may be
suffered.

• Background of the rule: ECJ Case C-18/02, DFDS Torline on the interpretation of art. 5.3 BI
(now, art. 7.2 BIR). The case concerned the legality of industrial actions promoted by Swedish
Trade Union against a Danish shipowner established in Denmark. Distance torts: the industrial
action took place in Sweden but the shipowner alleged that the damages were suffered in the
place where it had its establishment. From a conflict-of-laws perspective, this idea would imply
that the law of the State in which the damage is suffered imposes the standard of behavior to
trade unions acting in another State.

• Art. 9 is a clarification of the lex loci delicti commissi and not an exception to it: the law
applicable to civil liability arising from an industrial action is the law of the State where the
action is carried out and not the law of the State in which the financial losses consequence of
that action are suffered.

• Structure of the rule:

o First: PARTY AUTONOMY (art. 14 RII)
o Second: Common HR of person liable and victim (art. 4.2 RII)
o Third: Place where the industrial action is carried out (art. 9 RII)

• Concept in Recital 27: lex fori since since it varies from one MS to another and governed by
each MS’s internal rules.


V. Unjust enrichment, negotiorum gestio and culpa in contrahendo

1. Unjust enrichment (art. 10 RII)

• Ad ex payments made by mistake

• Structure of the rule:
o First: PARTY AUTONOMY (art. 14 RII)
o Second: Law applicable to a PRE-EXISTING RELATIONSHIP BETWEEN THE PARTIES (art.
10.1 RII): that relationship covers contracts and torts and is closely connected with
that unjust enrichment
o Third: COMMON HR of the parties (art. 10.2 RII)à relevant moment is when the event
giving rise to the enrichment occurs
o Forth: Place where the unjust enrichment takes place (art. 10.3 RII)

+ SCAPE CLAUSE (art. 10.4 RII): manifestly closer connection

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2. Negotiorum gestio (Art. 11 RII)

• Act performed without due authority in connection with the affairs of another person

• Structure of the rule:

o 1: PARTY AUTONOMY (art. 14 RII)
o 2: Law applicable to a PRE-EXISTING RELATIONSHIP BETWEEN THE PARTIES (art. 11.1
RII): that relationship covers contracts and torts and is closely connected with that
non-contractual obligation
o 3: COMMON HR of the parties (art. 11.2 RII)à relevant moment is when the event
giving rise to the damage occurs
o 4: Place where negotiorum gestio was performed (art. 11.3 RII)

+ SCAPE CLAUSE (art. 11.4 RII): manifestly closer connection


3. Culpa in contrahendo (Art. 12 RII)

• Damages arising from dealings prior to the conclusion of the contract and directly linked to
the negotiations: violation of duty to disclosure, provision of misleading information and
breakdown of negotiations

• Structure of the rule:
o 1: PARTY AUTONOMY (art. 14 RII)
o 2: LEX CONTRACTUS (art. 12.1 RII): regardless if the contract was actually concluded
or not à Rome I
o 3: SUPPLEMENTARY RULE (cascade system or alternativity?): art. 12.2 RII. “Or” or
“failing that”? Parallel structure to art. 4 RII
a) Lex loci damni
b) Common HR of the parties
c) SCAPE CLAUSE: manifestly closer connection


VI. Common provisions

• Scope of the Applicable Law: art. 15 RII
o Principle of unity of the applicable law to non-contractual obligations
o Non-exhaustive list: “in particular” à intends to be as broad as possible
o Parallels art. 12 RI

• Overriding Mandatory Provisions: art. 16 RII
o No express definition unlike art. 9 RI but it can be extended to RII; see ECJ Case C-
369/96 and C-374/96, Arblade
o Only contemplates the application of overriding mandatory provisions of the forum
unlike art. 9 RI: Why? i) scarce role in this field and, ii) possible overlap with rules of
safety and conduct of the lex loci damni

• Rules of Safety and Conduct: art. 17 RII
o Follows art. 7 CH71 and 9 CH73 but gives more flexibility to the judge

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o “In assessing the conduct of the persona claimed to be liable, account shall be taken,
as a matter of fact and in so far is appropriate, of the rules of safety and conduct
which were in force at the place and time of the event giving rise to the liability”
o When the lex causae and the law of the place of the event giving rise to liability do not
coincide
o “in so far as appropriate”: means that the lex causae in key in determining the liability
but the rules of safety and conduct of the law of another State specify the elements
of liability laid down by the lex causae
Ex: Under the lex causae the good or bad faith of the liable person are
relevant, the rules of safety and conduct shall specify those elements

• Direct Action against the Insurer: art. 18 RII
o Alternative conflict of law rule to determine the law applicable to the direct action
against the insurer
o Victim may bring his actions against the insurer of the person liable if:
§ law applicable to the non-contractual obligation so provides, or
§ law applicable to the insurance contract so provides
o Limited scope of application: only direct action the rest of the obligations and duties of
the insurer are governed by the lex contractus

• Subrogation (art. 19 RII)
o Whether the insurer has a right of action against the person liable by way of
subrogation
o When the insurer has the duty to satisfy the victim or has already satisfied the victim,
the law which governs that duty (lex contractus) shall determine whether and to what
extent the insurer is entitled to exercise the rights that the insured victim (the creditor)
may have against the liable person (the debtor)

• Multiple Liability (art. 20 RII)
o Several persons liable = different laws applicable and one of them satisfies the victim
(total/partial): debtor’s right to compensation against the other debtors governed by
the law applicable to the debtor’s non-contractual liability towards the victim

• Formal Validity (art. 21 RII) and Burden of Proof (art. 22 RII) à parallel to arts. 11 RI and 18
RI

• Renvoi excluded: art. 24 RII/ Direct Method for Plurilegislative Systems (territorial basis): art.
25/ Public Policy: art. 26 + Recital 32 for punitive damages


Renvoir exluced, same rules for plurilegislative states

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CASES

1. In 20120, a traffic accident occurred in Spain involving two cars. The first was registered in France,
the second in Spain. The passenger of the French car initiated proceedings in France against the
driver of the same car. Both parties had their habitual residence in France. Which is the applicable
law?

For the jurisdiction, we use BIRR as the defendant is domiciled within the EU. French court has
jurisdiction because the defendant is domiciled in France. Art. 7.2.
Applicable law: art. 4.2 RIIR as the court is European (so judge has to apply EU Regulations) and RIIR
has a universal scope of application. In this case, as all the elements are connected to the EU, we would
apply RIIR anyways. We go first to art. 2 and then to the general rule.

SO:
Rome IIàseized court of a MS (France: the defendant is domiciled in France) + tort
4.2 However, where the person claimed to be liable and the person sustaining damage both have their
habitual residence in the same country at the time when the damage occurs, the law of that country
shall apply.
Therefore law of France

2. A&Co, a German company manufactures in Germany a machine which is used to separate liquids
from solids. B, habitually resident in UK is seriously injured while using the machine in the course of
her employment in UK. The machine was marked and acquired by B’s employer in UK, and it alleged
that B’s injures are caused by a defect in the machine resulting from the manufacturing process in
Germany. B sued A&Co in UK.

Jurisdiction: BIRR applies since the defendant is domiciled within the EU. Therefore, UK courts have
jurisdiction. The machine is produced in Germany, the special jurisdiction of art. 7.2 says German is
competent. However, the damage occurs in UK. Both courts have jurisdiction???.
General rule to determine applicable law: art. 5.1.b)

SO:
Rome II à tort + seized court of a MS
Art. 5.1
Without prejudice to Article 4(2), the law applicable to a non-contractual obligation arising out of
damage caused by a product shall be: (a) the law of the country in which the person sustaining the
damage had his or her habitual residence when the damage occurred, if the product was marketed
in that country; or, failing that,
Law of UK

3. A&Co is a UK company. It manufactures in UK “smell alike” perfumes for sale on the Italian Mkt.
the fragrance seek to replicate the fragrance of leading brand perfumes manufactured by B&Co a
French company, but are packaged in a way which does not result in confusion between the two
company’s products. B&Co brings proceedings in UK claiming an injunction and damages from A&Co.

It’s a case of fair competition. Art. 6.2: it says that art. 4 general rule applies. The effective market is
the Italian market, thus, Italian law applies. In unfair competition, we understand the lex damni as the
effective market, and the place where the damage occurred is the market.

SO:
UNFAIR COMPETITION. ART. 6
2. Where an act of unfair competition affects exclusively the interests of a specific competitor, Article
4 shall apply.
Place of damageà market affectedà Italy. Italian law.

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