1. CROSS-BORDER PROCEEDINGS IN CIVIL AND COMMERCIAL MATTERS IN EUROPE: INTERNATIONAL CONTRACTS AND NON-CONTRACTUAL LIABILITY
Ester di Napoli
LUMSA University, Rome
9 and 10 March 2017

2. CONCURRENT PROCEEDINGS
Brussels I bis aims at: 1. Reducing the risk of irreconciliable judgments; and 2. Increasing co-ordination in the exercise of the judicial functions within the EU so as to: a. promote litigation economy; and b. avoid waste

3. CONCURRENT PROCEEDINGS
Mechanism of:
Lis alibi pendens: problems related to proceedings simultaneously pending in courts of different MSs in respect of similar/related disputes (articles 29-32) and
related to proceedings simultaneously pending in courts of a MS and a third country (articles – new provision)

4. LIS ALIBI PENDENS
Article 29: “1. Without prejudice to Article 31(2), where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established. 2. In cases referred to in paragraph 1, upon request by a court seised of the dispute, any other court seised shall without delay inform the former court of the date when it was seised in accordance with Article Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court”. simple test of chronological priority

5. LIS ALIBI PENDENS
Article 31: “1. Where actions come within the exclusive jurisdiction of several courts, any court other than the court first seised shall decline jurisdiction in favour of that court. 2. 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 seised, any court of another Member State shall stay the proceedings until such time as the court seised on the basis of the agreement declares that it has no jurisdiction under the agreement. 3. 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 favour of that court. 4. 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”.

6. LIS ALIBI PENDENS
Autonomous definition of the moment when the court shall be deemed to be seised (article 32). Lis pendens and third countries (article 33): “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.

7. Practical case
Facts: Tim, domiciled in Lisboa has a contract with Tom, who is domiciled in Rome: the latter is a self- employed commercial agent, who carries out his activity on Tim’s behalf, in Italy, Germany and France. Tim terminates the contract relying on the breach of Tom’s contractual obligation. Tom does not understand the reasons of such termination and decides to start legal proceedings against Tim.

8. Practical case Questions: 1. In which Member State/s can Tom sue Tim?
2. Can Tom start legal proceedings both in Italy and in Portugal?
Show your reasoning

9. SOLUTION
CJEU, Wood Solutions v. Silva Trade SA, Case C‑19/09 Under Article 1(2) of Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents, a commercial agent has authority to negotiate the sale or the purchase of goods on behalf of the principal, and, where appropriate, to negotiate and conclude such transactions on behalf of and in the name of that principal. In addition, under Article 3 thereof, a commercial agent ‘must … make proper efforts to negotiate and, where appropriate, conclude the transactions he is instructed to take care of[,] communicate to his principal all the necessary information available to him [and] comply with reasonable instructions given by his principal’.

10. SOLUTION
CJEU, Wood Solutions v. Silva Trade SA, Case C‑19/09 1. The second indent of Article 5(1)(b) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that that provision is applicable in the case where services are provided in several Member States. 2. The second indent of Article 5(1)(b) of Regulation No 44/2001 must be interpreted as meaning that where services are provided in several Member States, the court which has jurisdiction to hear and determine all the claims arising from the contract is the court in whose jurisdiction the place of the main provision of services is situated. For a commercial agency contract, that place is the place of the main provision of services by the agent, as it appears from the provisions of the contract or, in the absence of such provisions, the actual performance of that contract or, where it cannot be established on that basis, the place where the agent is domiciled.

11. Rules on RECOGNITION and enforcement
«State of origin»  «requested State/Member State addressed» Recital 27: For the purposes of the free circulation of judgments, a judgment given in a Member State should be recognised and enforced in another Member State even if it is given against a person not domiciled in a Member State. Decisions issued in Switzerland, Norway, Iceland  2007 Lugano Convention

12. Rules on RECOGNITION and enforcement
Article 2, lett. a): autonomous notion of «judgment»: “means any judgment given by a court or tribunal of a Member State, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as a decision on the determination of costs or expenses by an officer of the court. For the purposes of Chapter III, ‘judgment’ includes provisional, including protective, measures ordered by a court or tribunal which by virtue of this Regulation has jurisdiction as to the substance of the matter. It does not include a provisional, including protective, measure which is ordered by such a court or tribunal without the defendant being summoned to appear, unless the judgment containing the measure is served on the defendant prior to enforcement”. Arbitral awards? Temporal scope of application of Chapter III: article 66

13. Rules on RECOGNITION and enforcement
Chapter III, articles 36 ff. (Section I – recognition; Section II – enforcement) “1. A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required. 2. Any interested party may, in accordance with the procedure provided for in Subsection 2 of Section 3, apply for a decision that there are no grounds for refusal of recognition as referred to in Article 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”.

14. Rules on RECOGNITION and enforcement
Article 39:
”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”
Abolition of exequatur (regulation 44/2001)
Article 41: “1. Subject to the provisions of this Section, the procedure for the enforcement of judgments given in another Member State shall be governed by the law of the Member State addressed. A judgment given in a Member State which is enforceable in the Member State addressed shall be enforced there under the same conditions as a judgment given in the Member State addressed. …”

15. Rules on RECOGNITION and enforcement
The foreign judgment is subject to the same conditions as a local judgment. Authentic instruments and court settlements – article 58 ff.

16. Rules on RECOGNITION and enforcement
Substantive requirements: No review of the merits (mutual trust); Judgments need not be final (discretion of the court addressed for the enforcement – articles 38 and 51)

17. Rules on RECOGNITION and enforcement
Exceptions as to the enforcement (exhaustive) - article 45
On the application of any interested party, the recognition of a judgment shall be refused:
(a) if such recognition is manifestly contrary to public policy (ordre public) in the Member State addressed;
(b) where the judgment was given in default of appearance, if the defendant 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 him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so;

18. Rules on RECOGNITION and enforcement
Exceptions as to the enforcement (exhaustive) - article 45 (c) if the judgment is irreconcilable with a judgment given between the same parties in the Member State addressed;  Hoffmann v. Krieg (Case 145/86) (d) if the judgment is irreconcilable with an earlier judgment given in another Member State or in a third State involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State addressed; or (e) if the judgment conflicts with: (i) Sections 3, 4 or 5 of Chapter II where the policyholder, the insured, a beneficiary of the insurance contract, the injured party, the consumer or the employee was the defendant; or (ii) Section 6 of Chapter II.

19. Rules on RECOGNITION and enforcement
Hoffmann v. Krieg (Case 145/86) – judgments are irreconcilable with each other for the purpose of Article 45 where they entail mutually exclusive legal consequences (the Court found that there was irreconcilability between a German maintenance order and a subsequent Dutch divorce, as regards the period following the divorce, on the assumption that the maintenance order necessarily presupposed the continued existence of a matrimonial relationship).

20. OTHER EU PIL MEASURES
Regulation (EC) n. 805/2004 creating a European Enforcement Order for uncontested claims
Regulation (EC) n. 1896/2006 creating a European order for payment procedure
Regulation (EC) n. 861/2007 establishing a European Small Claims Procedure
Regulation (EU) n. 655/2014 establishing a European Account Preservation Order (EAPO) procedure to facilitate cross-border debt recovery in civil and commercial matters
At the claimant’s choice
These three Regulations put into practice the principle of mutual recognition of judgments in civil matters. Their main aim is to simplify and speed up the cross-border recognition and enforcement of creditors’ rights in the European Union. In this respect they contribute both to building a genuine area of justice in the European Union, and to implementing the Single Market

21. Regulation (EC) n. 805/2004 creating a European Enforcement Order for uncontested claims
«Uncontested Claims Regulation» It applies from 21 October 2005 in then 24 existing MSs The Regulation applies between all Member States of the European Union with the exception of Denmark (no one can apply to a Danish Court for an EU enforcement order, and that an EU enforcement order will not be enforced in Denmark). The principle of mutual recognition is the cornerstone of judicial co-operation in civil matters within the Union. Regulation (EC) No 805/2004 of the European Parliament and of the Council created the European Enforcement Order for uncontested claims. The European Enforcement Order permits the use of judgments, court settlements and authentic instruments throughout all Member States. It abolishes intermediate proceedings (“exequatur”) in the Member State of enforcement

22. Regulation (EC) n. 805/2004 creating a European Enforcement Order for uncontested claims
It dispenses, under certain conditions, with all intermediary measures in the Member State in which enforcement is sought that have been necessary so far for decisions delivered in another Member State in the verifiable absence of a dispute over the nature or extent of a debt. Those conditions mainly concern the service of documents in the case of judgments by default. Abolishing exequatur enables creditors to obtain quick and efficient enforcement abroad without involving the courts in the Member State where enforcement is applied for in time- consuming and costly formalities.

23. Regulation (EC) n. 805/2004 creating a European Enforcement Order for uncontested claims
A claim is considered to be uncontested when: - the debtor has expressly agreed to it by admission (article 3(1)(a)); - the debtor has never objected to it, in compliance with the relevant procedural requirements under the law of the Member State of origin, in the course of court proceedings (article 3(1)(b)); - the debtor has not appeared or been represented at a court hearing regarding that claim after having initially objected to the claim in the course of the court proceedings, provided that such conduct amounts to a tacit admission of the claim or of the facts alleged by the creditor under the law of the Member State of origin (article 3(1)(c)).

24. Regulation (EC) n. 1896/2006 creating a European order for payment (EOP) procedure
The Regulation applies between all Member States of the European Union with the exception of Denmark ( no one can apply to a Danish Court for an EOP, and that an EOP will not be enforced in Denmark). The procedure does not require presence before the court. The claimant only has to submit his application, after which the procedure leads its own life. It does not require any further formalities or intervention on the part of the claimant. If a statement of opposition is filed within the time limit of 30 days automatic transfer of the case to ordinary civil proceedings (unless the claimant has explicitly requested that the proceedings be terminated in that event)

25. Regulation (EC) n. 1896/2006 creating a European order for payment procedure
The EOP procedure is optional, to the extent that it is up to the claimant to chose to use it rather than any of the other available ways in which the same claim could be made. The decision to reject an application does not prevent the claimant from pursuing the claim again in any appropriate proceedings, including the EOP and also before the same court that rejected the application.

26. Regulation (EC) n. 861/2007 establishing a European Small Claims Procedure
The Small Claims Regulation seeks to improve and simplify procedures in civil and commercial matters where proceeding do not exceed a certain amount. Initially, the value of a claim did not have to exceed 2000 € at the time when the claim form is received by the court or tribunal with jurisdiction. Then, Regulation (EU) 2015/2421 amended Regulation (EC) No 861/2007, increasing the ceiling as regards the value of a claim to 5000 €, excluding all interest, expenses and disbursements. Area of claims of low value especially those made by individuals against businesses or other individuals where the time, effort and cost involved can often be grossly disproportionate to the value of the claim. The Regulation applies between all Member States of the European Union with the exception of Denmark. The Small claims procedure operates on the basis of standard forms. It is a written procedure unless an oral hearing is considered necessary by the court. The Regulation also establishes time limits for the parties and for the court in order to speed up litigation. The Regulation provides for four standard forms.

27. Regulation (EC) n. 861/2007 establishing a European Small Claims Procedure
The procedure sets forth in the regulation places emphasis on the need for relative simplicity of the proceedings, notably that the procedure should largely be written. The role of the court is strengthened significantly as regards managing the progress of the case and in determining the issues between the parties in relation to the claim and the potential for parties to make use of the procedure without the need for, and attendant expense of, legal advice.

28. Regulation (eu) n. 655/2014 establishing a European Account Preservation Order procedure (EAPO)
The European Account Preservation Order (EAPO) lets a court in one EU country freeze funds in the bank account of a debtor in another EU country. The procedure may be used in cross- border cases only, whereby the court carrying out the procedure or the country of domicile of the creditor must be in a different Member State than the one in which the debtor's account is maintained. It makes EU debt recovery easier. It’s an alternative to existing legal procedures in each EU country; it applies from 18 January 2017.

29. Regulation (eu) n. 655/2014 establishing a European Account Preservation Order procedure (EAPO)
Advantages The procedure is quick and happens without informing the debtor (ex parte). This ‘surprise effect’ stops debtors moving, hiding or spending the money. The Regulation does not apply in Denmark and the UK. So: creditors based in Denmark or the UK cannot apply for an EAPO and a creditor cannot get an EAPO on a Danish or UK bank account.

30. Lowest common denominators: claimant’s choice no exequatur/simplicity/speed Standard forms

31. Practical case
Tappeti s.p.a. is an Italian company having its legal seat in Florence. It sells 5 carpets to Jorge, a Spanish citizen domiciled in Berlin. Tappeti s.p.a. sends the goods to Jorge’s domicile, but Jorge is not happy with the colour of the carpets: so he wants neither to pay 5.021,00 euro as agreed… nor to send them back to Italy. In their contract, the parties have agreed on the jurisdiction of the Court of Florence for any dispute that could have arisen between them.

32. Practical case
You are the Italian company’s attorney: suggest your client a strategy on where and how (and why) to start legal proceedings against Jorge; also explain your client Jorge’s possible steps (from the EU Private International Law perspective) Are there alternative ways to proceed to the debt recovery?  Standard forms: justice.europa.eu/content_dynamic_forms-155-en.do