1. EUROPEAN PRIVATE INTERNATIONAL LAW
Ester di Napoli
LUMSA University, Rome
16 October 2019

2. 3. Material scope of application (ratione materiae)
Autonomous/uniform interpretation of the expressions contained in the Regulation + express definitions given by the Regulation. Article 1 confines the scope of the Regulation to claims under private law, as distinct to public law. As The notions of private and public law differ in the MSs  CJEU: the concept of «civil and commercial matters» shall be given an autonomous meaning: «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)»

3. 3. Material scope of application (ratione materiae)
Matters expressly excluded from its scope of application (Article 1, par. 2): “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; (e) maintenance obligations arising from a family relationship, parentage, marriage or affinity; (f) wills and succession, including maintenance obligations arising by reason of death”.

4. 3. Material scope of application (ratione materiae)
Examples:
The Regulation does not apply to a dispute between a private person and a public authority, where the dispute arises out of acts done by the public authority in the exercise of its powers as such (LTU v. Eurocontrol, Case 26/76);
The Regulation applies to a dispute between an individual and a public authority when the relevant legal relationship between them does not involve the exercise by the State of powers going beyond those existing under the rules applicable to relations between private persons (Tiard v. Staat der Nederlanden, Case C-266/01).

5. 3. Material scope of application (ratione materiae)
Examples:
The Regulation does not apply to claims for compensation brought against a Member State, where the legal action derives from operations conducted by armed forces during the Second World War (Lechouritou v. Germany, Case C-292/05).
The Court held that «Disputes of that nature do result from the exercise of public powers by one of the parties to the case, as it exercises powers falling outside the scope of the ordinary legal rules applicable to relationships between private individuals … Since that field as such must be regarded as not falling within the scope of the Brussels Convention, the unlawfulness of such acts cannot justify a different interpretation» (paras. 34 and 43).

6. 3. Material scope of application (ratione materiae)
Examples: - Although the Regulation does not apply to criminal proceedings themselves, it does apply to a civil claim in tort, even when it is made ancillarily to a prosecution in a criminal court (Sonntag v. Waidmann, Case C-172/91).

7. RULES ON JURISDICTION In addition to the forum of the defendant:
Special/alternative jurisdiction (arts. 7-9)
Jurisdiction over the so-called «protected contracts» when a contracting party is a «weaker party» (arts )
Exclusive jurisdiction (art. 24)
Choice-of-court agreements / Prorogation of jurisdiction (arts )
Mechanisms of coordination: lis pendens and related actions (arts )

8. RULES ON JURISDICTION
Special/alternative jurisdiction: Section 2 specifies a variety of cases in which, by way of derogation from Article 5, a defendant who is domiciled in one MS may be sued in another MS: choice left to the claimant. Article 7: “A person domiciled in a Member State may be sued in another Member State: (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 point (b) does not apply then point (a) applies; …”

9. The concept of «contract»
Nothing specified in the Regulation as to the (autonomous) definition of «contractual matters»: interpretation by the CJEU given in relation to Regulation (EC) n. 44/2001 – - The notion of «contract»: an obligation freely assumed from one party towards another; - It extends to a relationship which involves close links of the same kind as those between the parties to a contract (in the strictest sense): an obligation to pay a sum of money which has its basis in the relationship esisting between an association and its members by virtue of membership are contractual matters within article 7, par. 1 (Peters v. ZNAV, Case 34/82)

10. The concept of «contract»
Pre-contracual obligations do not fall within the scope of article 7, par. 1 (Tacconi, Case C-334/00): a claim of loss caused by the unjustified breaking off of pre-contractual obligations (i.e. an obligation to make good damage caused by the unjustified breaking off of negotations, derived from breach of a rule requiring the parties to act in good faith in negotiations with a view to the formation of a contract).

11. CONTRACTS FOR SALES OF GOODS
«Goods» – tangible movables: article 7, par. 1, does not apply to sales of land or of intangible property (such as patents and copyrights); it implies the transfer of ownership of goods in return for payment of a monetary price, so it does not apply to contracts for the hire of goods. «Mixed» transactions similar to a sale of goods, such as hire-purchase, are probably included.
- The determination of the place of delivery, in a case involving the carriage of the goods, has been addressed by the CJEU in the case Electrosteel (Case C-87/10). The case involved an Italian seller and a German buyer: account must be taken of all the relevant terms of the contract which are capable to clearly identifying the place of delivery, including terms which are generally recognised and applied through the usages of international trade and commerce, such as the Incoterms drawn up by the International Chamber of Commerce.

12. CONTRACTS FOR SALES OF GOODS
Incoterms in the version published in 2010 (
Examples:
Sale ex-works (EXW): means that the seller delivers when it places the goods at the disposal of the buyer at the seller’s premises or at another named place (i.e., works, factory, warehouse, etc.). The seller does not need to load the goods on any collecting vehicle, nor does it need to clear the goods for export, where such clearance is applicablethe place of delivery will be the seller’s country

13. CONTRACTS FOR SALES OF GOODS
Free on Board (FOB): means that the seller delivers the goods on board the vessel nominated by the buyer at the named port of shipment or procures the goods already so delivered. The risk of loss of or damage to the goods passes when the goods are on board the vessel, and the buyer bears all costs from that moment onwards the place of delivery will be the port of loading.

14. CONTRACTS FOR THE PROVISION OF SERVICES
As, again, the concept of ‘provision of services’ is not defined neither in Regulation 44/2001 nor in Regulation 1215/2012:
The CJEU established that the concept of service implies, at least, that the party who provides the service carries out a particular activity in return for remuneration. Accordingly, it ruled that a contract under which the owner of an intellectual property right (such as copyright) grants its contractual partner a license to use that right in return of remuneration is not a contract for the provision of services within article 7, par. 1, let. b) first indent, since such contract does not involve an activity by the licensor, but only an obligation by the licensor not to challenge the use of the right by the licensee, and it is immaterial whether the licensee is obliged to use the right licensed (Falco v. Weller-Lindhorst, Case C-533/07);
Where services are provided in several MS: the place of the main provision of services (Wood Floor Solutions, Case C-19/09).

15. RULES ON JURISDICTION [follows] Article 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;
(3) as regards a civil claim for damages or restitution which is based on an act giving rise to criminal proceedings, in the court seised of those proceedings, to the extent that that court has jurisdiction under its own law to entertain civil proceedings;
(4) as regards a civil claim for the recovery, based on ownership, of a cultural object as defined in point 1 of Article 1 of Directive 93/7/EEC initiated by the person claiming the right to recover such an object, in the courts for the place where the cultural object is situated at the time when the court is seised;
(5) as regards a dispute arising out of the operations of a branch, agency or other establishment, in the courts for the place where the branch, agency or other establishment is situated;
(6) as regards a dispute brought against a settlor, trustee or beneficiary of a trust created by the operation of a statute, or by a written instrument, or created orally and evidenced in writing, in the courts of the Member State in which the trust is domiciled;
(7) as regards a dispute concerning the payment of remuneration claimed in respect of the salvage of a cargo or
freight, in the court under the authority of which the cargo or freight in question:
(a) has been arrested to secure such payment; or
(b) could have been so arrested, but bail or other security has been given;
provided that this provision shall apply only if it is claimed that the defendant has an interest in the cargo or freight or had such an interest at the time of salvage.

16. 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);
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).

17. 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;

18. 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 defence, 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”.