EUROPEAN PRIVATE INTERNATIONAL LAW Ester di Napoli LUMSA University, Rome 5 March 2019 dnpstr@unife.it

matters relating to tort, delict or quasi-delict “(2) in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur” Potential harmful event; Tacconi (Case C-334/00) – pre-contractual liability/breach of rules of law (acting in good faith); Bier v. Mines de Potasse (Case 21/76): in case where the place of the happening of the event which may give rise to liability in tort and the place where the harmful event occurred are not the same: article 7, par. 2 (ex art. 5, par. 3) shall be interpreted by meaning both the courts of the place where the damage occurred and of the place of the event giving rise to it; Shevill c. Presse Alliance (Case C-68/93): defamation and privacy through newspaper; eDate Advertising v. X and Martìnez (joined Cases C-509/09 and C-161/10): defamation and violation of privacy by means of a publication on an Internet website: the CJEU distinguished the placing online of the content on a website from the regional distribution of media such as printed matter (due to the ubiquity of the content placed online).

matters relating to tort, delict or quasi-delict Principle of ubiquity Indirect damages – not covered by art. 7.2 regulation I bis Primary damage – consequenting damage Also the acting can be difficultly localized – uninterrupted chain of events - General principle: place of the origin of the damage

EXCLUSIVE JURISDICTION Article 24: «The following courts of a Member State shall have exclusive jurisdiction, regardless of the domicile of the parties: (1) in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the Member State in which the property is situated. However, in proceedings which have as their object tenancies of immovable property concluded for temporary private use for a maximum period of six consecutive months, the courts of the Member State in which the defendant is domiciled shall also have jurisdiction, provided that the tenant is a natural person and that the landlord and the tenant are domiciled in the same Member State; (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 associations of natural or legal persons, or the validity of the decisions of their organs, the courts of the Member State in which the company, legal person or association has its seat. In order to determine that seat, the court shall apply its rules of private international law;

EXCLUSIVE JURISDICTION (3) in proceedings which have as their object the validity of entries in public registers, the courts of the Member State in which the register is kept; (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 Member State in which the deposit or registration has been applied for, has taken place or is under the terms of an instrument of the Union or an international convention deemed to have taken place. … (5) in proceedings concerned with the enforcement of judgments, the courts of the Member State in which the judgment has been or is to be enforced”.

(express) CHOICE-OF-COURT AGREEMENTS (prorogation of jurisdiction) Trend, in EU PIL instruments, aimed at strenghthening the will of the parties (see also the Council decision 2014/887/EU of 4 December 2014, on the approval, on behalf of the European Union, of the Hague Convention of 30 June 2005 on Choice of Court Agreements). Article 25 regulates express prorogation of jurisdiction, regulating both the formal and essential validity of jurisdiction clauses. Article 26 regulates tacit prorogation of jurisdiction (the defendant, sued before a court, which is not in the place of his/her domicile’s one, enters into appearance without contesting its jurisdiction). Specific precautions in case of «protected contracts» (article 26, par. 2).

(express) CHOICE-OF-COURT AGREEMENTS (prorogation of jurisdiction) Article 25 establishes that “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 in the particular trade or commerce concerned. 2. Any communication by electronic means which provides a durable record of the agreement shall be equivalent to ‘writing’. … 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.

(express) CHOICE-OF-COURT AGREEMENTS (prorogation of jurisdiction) Contractual clauses Autonomous choice-of-court agreements  Parties can choose any court located in the territory of a Member State competent to decide over any present or future dispute arising from their contractual relationship (Benincasa, Case C-269/95) No reference neither to a third-country court nor to arbitration (recital 12 of the Preamble) Choice-of-court agreements prevail over the ordinary/general forum of the defendant’s domicile and the special/alternative rules on jurisdiction; they do not exclude exclusive rules on jurisdiction asymmetrical choice-of-court agreements

Practical case Facts: José, a Cuban citizen, has been living in Italy for 25 years. He works and has a family in Rome. On 10 January 2015, on his way back from London, where he had a business meeting, he remains blocked for more than 4 hours at Gatwick Airport: his Ryanair flight is delayed «due to reasons of force majeure». Therefore, he lands at Fiumicino Airport 3 hours and a half behind the scheduled time of arrival. José knows that, according to Regulation (EC) n. 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, he is entitled to a compensation of 250,00 euro. He duly fills in and submits the compensation claim through the Ryanair website, but receives no answer.

Practical case Questions: Jose’s attorneys: explain how you would organize your strategy: Where can he sue Ryanair? Explain your logical steps -------------------------- Ryanair’s attorneys: reply to José’s proceedings

Practical case Steps: Which EU PIL instrument applies? - temporal scope? - personal scope? - material scope? does the action for compensation and assistance to passengers in the event of denied boarding (…) fall within the scope of Regulation (EU) n. 1215/2012?

solution Case C-204/08, Peter Rehder v. Air Baltic Corporation: “The second indent of Article 5(1)(b) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that, in the case of air transport of passengers from one Member State to another Member State, carried out on the basis of a contract with only one airline, which is the operating carrier, the court having jurisdiction to deal with a claim for compensation founded on that transport contract and on Regulation No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights (…), is that, at the applicant’s choice, which has territorial jurisdiction over the place of departure or place of arrival of the aircraft, as those places are agreed in that contract”.

solution However: see Ryanair’s General Terms & Conditions of Carriage: Article 2.4: “Governing law and jurisdiction Except as otherwise provided by the Convention or applicable law, your contract of carriage with us, these Terms & Conditions of Carriage and our Regulations shall be governed by and interpreted in accordance with the laws of Ireland and any dispute arising out of or in connection with this contract shall be subject to the jurisdiction of the Irish Courts”. so-called click-wrap agreement (see decision of the High Court of Ireland, 26 February 2010) Does the choice oh court agreement between Ryanair and José meet the formal and substantial conditions set out in article 25 of Brussels I bis Regulation?