Harmonized interpretation of regimes of Judicial cooperation in civil matters? Some notes on recent case law of the Court regarding Brussels 1 bis, Lugano and the second generation regulations

Harmonized interpretation of regimes of Judicial cooperation in civil
matters?
Some notes on recent case law of the Court regarding Brussels 1 bis, Lugano
and the second generation regulations.
On 1 and 2 June 2022, the “Lugano experts meeting” 2022 took place. The PowerPoint of the
presentation on case law of the CJEU is attached hereby, as well as an extended version thereof.
The presentation given at the meeting of June 2022 took a wide view regarding some aspects: the
presentation pointed out and briefly discussed some specific, current issues – thus, on the one hand,
being selective and “focused” - situated in a broad context – thus, on the other hand, taking, also, a
“broad” view. In fact, the view taken in this presentation was particularly broad in the sense that
cases on various regimes of “Judicial cooperation in civil matters” were pointed out and included in
the presentation.1
As a matter of fact, anno 2022, one may observe, notably, a wide range of instruments that are
indicated as instruments of “Judicial cooperation in civil matters” (Chapter 3 of Title V of the Treaty
on the Functioning of the European Union), interpreted in a continuous stream of decisions
(judgments and orders) by the Court.
When looking at this broad range of regimes – thus looking at the regimes “in context” - and when
positioning regimes against one another, an issue that may arise is the one of determining the scope
of various regimes compared to one another, in order to determine which of the regimes
may/should be applied – taking into account thereby that some regimes are “optional” regimes
compared to others. The case law of the Court may be very relevant in this context. This issue is not
particularly addressed though in the presentation of June 2022.
The issue that is effectively addressed in the presentation and that also concerns a question of
looking at the regimes “in context” and positioning them next to each other, is the issue of the
potential harmonized interpretation CQ consistency in interpretation of the various regimes. Notably,
some criteria to determine the scope/applicability of the various regimes and some notions and
concepts when effectively applying the various regimes may appear to be recurrent – while some
others may be different – thus raising issues of (un)harmonized interpretation and (in)consistency in
interpretation.
Particularly, in the hypothesis that the Court has already given an interpretation in the context of one
particular regime, looking at the interpretation by the Court in that particular context might, possibly,
“facilitate” the interpretation of another regime, one could argue; but the issue might be to decide
when exactly one should act this way. In a more general way, the issue here is the issue of
(in)consistency and influence/interaction between regimes, of giving or not a harmonized
interpretation2
, of making possible deductions from decisions in one context to another context - in
1
The case law included, i.a., several cases on the second generation regulations. See also, for some case law on
international family law, the extended version of the Presentation, particularly slides 27 and 29.
2
In literature also sometimes indicated as issues of « coherent » or “uniform” interpretation. Cfr. also wordings
such as the “articulation between regulations”, “dimension traversale” etc.

one way or another: possibly in a harmonized way; possibly, ultimately, making deductions “a
contrario” or “a fortiori.”
Jurisprudence of the Court about having regard to the “context” of the provision and the “objective”
pursued by the legislation in question might be relevant here. Possible particularities of each regime
– including similarities or differences regarding the content of certain concepts and rules, the stage in
the whole mechanism of the regime of possible control- and sanction mechanisms and the
similarities/differences in modalities or (in)existence of control- and sanction mechanisms when
comparing one regime to another - might certainly be worth looking at as to their possible relevance
in this regard.
As far as a certain influence/interaction might be detected - or imagined as for the future -, it might
also be worth looking at the (possible) nature of this influence/interaction in the sense that one
might wonder whether it might only be influence in a one-way direction or, ultimately, also influence
and interaction taking place as by way of cross pollination.
In the presentation, such issues of (un)harmonized interpretation and (in)consistency of various
regimes are addressed, consecutively, at the stage of determining the applicability of regimes (the
stage of determining if a regime is applicable – Part I of the presentation) and, subsequently, at the
stage of application of regimes (the stage, once determined that a regime is applicable, of
determining how the regime should be applied – Part II of the presentation).
Regarding, firstly (part I), aspects of applicability of regimes, particular attention is paid to the
aspect/concept of “internationality/“cross-border”” as a possible requirement of applicability of a
regime as it also emerged e.g. in the Parking and Interplastics case.3
A short alert is also made in this
context regarding issues of discrimination and the Charter of Fundamental Rights.
Regarding aspects of applicability of regimes, it is pointed out, moreover, that a process of possible
revision of the Brussels 1 bis regulation is currently ongoing - ultimately possibly resulting in a further
convergence/divergence of criteria of applicability of the Brussels 1 bis regulation compared to other
regimes.
3
Judgment of 7 May 2020, Parking and Interplastics, joined cases C-267/19 and C-323/19, EU:C:2020:351. In its
ruling in the combined Parking and Interplastics cases, the European Court of Justice of the European Union
formulated a number of remarkable considerations that may intrigue and prompt a broader analysis. In
particular, the considerations in number 35 of the judgment deserve further attention. In number 35 of the
judgment, the Court held that the interpretation of Article 3(1) of Regulation No 1896/2006 is also, in principle,
used to establish the cross-border nature – “and thus the cross-border element” – of a dispute in order to be
able to apply Regulation No 1215/2012. “Since both of those regulations come within the field of judicial
cooperation in civil matters having cross-border implications, the interpretation of equivalent concepts used
by the EU legislature in them should be harmonized,” the Court added in number 35 of the judgment. Thus,
when interpreting a concept in the context of the Brussels 1a Regulation, the Court of Justice reverts to a
provision of the EPO Regulation cq its application and interpretation in the context of the EPO Regulation
(Regulation No 1896/2006), with the accompanying explanation about its legitimacy. The foregoing invites the
formulation of a number of notes on harmonized or non-harmonized interpretations of various judicial
cooperation regimes. The judgment in the combined Parking and Interplastics cases with the considerations
quoted above may thereby serve as an impetus cq step for further analysis.

Regarding, secondly (part II), aspects of application of regimes, particular attention is paid to issues
of consumer protection. The focus is on issues of uniformity or lack of uniformity in interpretation of
consumer concepts and of control- and sanction mechanisms – as well as the possible interaction
between those. The issues focused on are presented though in principle as an illustration of possible
ways of harmonized/unharmonized interpretation of concepts and mechanisms when it comes to
apply regimes.
While paying attention to issues of interpretation of consumer concepts and of control- and sanction
mechanisms, attention is paid thereby also to the question to what extent, ultimately, the
(in)existence of certain control- and sanction mechanisms in a particular instrument might influence
the assessment by the Court of the applicability itself of the instrument – and, broader, the
interaction between the uniformity or lack of uniformity in interpretation of certain concepts on the
one hand, the possible effect thereof on the applicability/possible activation of certain control and
sanction mechanisms of the instrument - possibly having as an effect the non-
applicability/impossibility to use the instrument itself -, on the other hand.
In a third part, the relevance of the foregoing is presented particularly in light of preliminary
questions to the Court: as said above, looking at the interpretation by the Court in one particular
context might, possibly, “facilitate” the interpretation of another regime – ultimately leading to the
issuance of an “Order” by the Court -, but the issue might be to decide when exactly one should act
this way.
Questions that may arise in this context include, inter alia, the following: what are national judges
“supposed to know already” when reflecting about asking or not a preliminary question to the Court;
how wide should the Court’s field of vision be when assessing whether a question should be
answered by Order or by Judgement, and when deciding about the content of the Judgment – taking
thereby or not into account the interpretation that has already been given to an element of another
instrument?
In this third part, particular attention is paid to Articles 53 and 99 of the Rules of Procedure of the
Court of Justice, especially as the application of these Articles might lead to issuing an “Order”
instead of a judgment.
As the presentation has been given on the occasion of the Lugano experts meeting, the presentation
particularly took the perspective of the Lugano convention – thus positioning the Lugano Convention
“in context”. However, as explained above, the view was broader in some regards and several issues
addressed were positioned taking also other perspectives in this broad context – the context of the
current situation, with its ongoing dynamics, within “Judicial cooperation in civil matters.”
The presentation is not intended to be exhaustive but rather intends to “explore”: the presentation
just includes some notes on issues of (un)harmonized interpretation of regimes, looking at recent
case law from the Court regarding, especially, the Brussels 1 bis Regulation, the Lugano Convention
and the second generation regulations – instruments that all focus on the regulation of procedural
aspects of civil and commercial cases, in principle with the exclusion of family issues.

Any view expressed in this document and the documents attached is the personal opinion of the
author and does not necessarily reflect the view of the Court of Justice

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CJEU
CASE-LAW
1 June 2022

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TABLE OF CONTENTS
Introductory remarks. Presentation: Lugano « in context » - narrow AND broad
I. Applicability
(1) CJEU Commerzbank as a stepping stone
(2) Taking some steps back: applicability « as such » of a regime
Alert: applicability/application and issues of discrimination/Charter
(3) Applicability, more – further steps
Alert: possible revision Brussels 1 bis itself
II. Application
(1) Application – introductory remarks
(2) Brussels 1 bis/Lugano and EEO, EPO and ESCP
A. Notion of consumer
B. Consumer protection, control and sanction mechanisms in various regimes
III. Preliminary rulings

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INTRODUCTORY REMARKS
PRESENTATION: LUGANO « IN CONTEXT » -
NARROW AND BROAD
Presentation on case law of the Court: will be narrow AND broad
NARROW: will focus on some aspects of some cases, without discussing them exhaustively,
thus zooming in, as if using a magnifying glass
BROAD: subsequently immediately zooming out, taking a quite broad view, as if looking
with telescope in space

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« AREA » OF FREEDOM, SECURITY AND
JUSTICE
Tempting to use image of SPACE
Association with « space »:
about dynamics going on in Area of Freedom, Security and Justice (association
« space »: « espace », « der Raum, « ruimte » …) - several instruments in this Area
Area: « Solar system » with Brussels 1 bis Regulation in centre?
Place Lugano in this « space »? (Lugano then itself in same/another « solar system » !?)
How « behave » in space? Cfr. Hereafter, looking at Lugano « in context »
looking at cases regarding several instruments,
regarding issues of (I) « applicability » of regimes
(II) « application » of regimes

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I. APPLICABILITY ISSUES
(1) CJEU Commerzbank (C-296/20) as a stepping stone:
« internationality » as an aspect of applicability of jurisdiction rules on consumer
protection
Regarding article 15 (1) (c) Lugano convention
= issues « internationality » in context discussing/assessing applicability special jurisdiction rules
(2) Taking some steps back: applicability « as such » of a regime and aspect
« internationality » thereby
Regime as such applicable? « Internationality » is sometimes an issue
Interesting in this regard: Parking and Interplastics, judgment on Brussels 1 bis (joined cases C-
267/19 and C-323/19), about Croatian procedure

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PARKING AND INTERPLASTICS, « CROSS-
BORDER »
Internationality, cross-border
Reference in nr. 34 judgment discussing “cross-border”, Brussels 1 bis, to EPO-
Regulation/CJEU Bondora (C-453/18 and C-494/14) on EPO, and said nr. 35 “harmonised
interpretation”
(EPO (Regulation 1896/2006), art. 3: « For the purposes of this Regulation, a cross-border case is one in which at least one of the parties is domiciled or
habitually resident in a Member State other than the Member State of the court seised. »)
seems broad, wide but
cfr. ESCP (Regulation 861/2007) (same as EPO): ZSE Energia (C-627/17), with reference document COM(2013)794
final: narrow, in any case different Brussels 1 bis
cf. Also documents on EPO itself (at time Brussels 1) (partly also arguing, at the time, with Lugano Convention),
see COM(2006)0374 and COM(2006)0057
cf. remark EEO (Regulation 805/2004) opinion nr. 25 Zulfikarpasic (C-484/15) about internationality and
differences
reference “consistency”, harmonised but European legislator in various regimes!?

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PARKING AND INTERPLASTICS – REFERENCE
TO EPO/BONDORA AND « HARMONISED »!?
Might possibly just say, regarding Parking and Interplastics, reference to EPO/Bondora and
“harmonised”:
if, regarding requirement “cross-border”, requirement “cross-border” would be fulfilled
(even) regarding EPO (quite narrow), then in any case fulfilled regarding Brussels 1 bis (which quite
broad)? Criterion EPO as just one way amongst other to fulfill criterion of “international” in the
context of Brussels 1 bis?
– harmonisation (purely, simply) in that sense?
But so, what can be seen here:
arguments, deductions, conclusions from EPO and case law on EPO towards
Brussels 1 bis
/ just showed up in context of EPO – cfr. Brussels 1 bis?

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ALERT: APPLICABILITY/APPLICATION AND
ISSUES OF DISCRIMINATION/CHARTER
Point of attention, when checking “cross-border” and applicability/application: issue of
discrimination/violation Charter (“connection with EU law”)
Cfr. Parking and Interplastics. Issues discrimination/violation Charter.
In PRIOR cases already tried to bring before the Court, but resulted in Orders. Hrvatska (C-657/18) and Eos
Matrix (C-234/19) Said: « purely internal », Court not competent
Compare Parking and Interplastics itself.
Court in Parking and Interplastics held: no discrimination on basis of nationality, no violation,
but so did check and assess in any case.

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(3) FURTHER STEPS/PARKING AND
INTERPLASTICS AND AFTER
In any case, MORE IN GENERAL, when asking if regime applicable in order to apply rules:
when criterion fulfilled « cross-border » Brussels 1 bis, not stop there to know if
indeed applicable in order to apply rules – need to take « further steps »
Cases/case law AFTER Parking and Interplastics regarding issues applicability:
Some include still issues « internationality », « cross-border »
sometimes referring to Judgment Parking and Interplastics
Parking and Interplastics « flies out »/going to live a life on its own
See notably C-280/20 (Generalno konsultstvo na Republika Bulgaria):
considerations Parking and Interplastics repeated in C-280/20, as
argument, formula, kind of mantra

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ALERT POSSIBLE REVISION BRUSSELS 1
BIS ITSELF
When comes to applicability: attention possible revision Brussels 1 bis – article 79 Brussels 1
bis Regulation
Particularly alert issue, affecting possibly scope, applicability of Brussels 1 bis: issues
Corporate Social Responsibility
Issues « access to justice » victims - Private International Law (including Brussels 1 bis) as « a
hinge » giving access/not to European judge - Issues in particular jurisdiction over non-EU-
defendants
connected claims third-country defendants (multiple defendants)
forum necessitatis
issue « forum non conveniens » (« disguised »?) in lis pendens rules Brussels 1 bis
note: forum necessitatis: interesting evolutions/discussions in international family
law, cfr. recent opinion in case C-501/20 international family law, touching the issue of forum
necessitatis, also in light of Charter
(outdated or not? recently – and with indication of what prior to this: https://eapil.org/2022/04/27/brief-overview-of-the-directive-proposal-on-
corporate-due-diligence-and-pil/)

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THE SOLAR SYSTEM AS WE KNOW IT …
Is about applicability – attention also other aspects and issues, issues/cases not mentioned
here …
Here, mainly about:
Regimes in the solar system as we know it, « given » order of things
Observe « how behave »
Brussels 1 bis at centre – « with satellites » - Lugano in this/another solar system
(ultimately in « parallel universe »?)
Point of orientation this system: Brussels 1 bis/…?
Brussels 1 bis - EPO etc.: issues « consistency », coherence, influence,
deductions etc., see Parking and Interplastics. Point(s) of orientation for Lugano?
Is about applicability (whether a regime applicable) – hereafter: once concluded applicable,
application: part of this returns in the context of « application » issues of regimes – also
Lugano « in context »

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II. APPLICATION ISSUES
When effectively applying a regime: notions, concepts – questions regarding relevance of
equivalent notions in other instruments
Stepping stone: Pillar Securisation (C-694/17, judgment on Lugano): notion « consumer »,
different regimes
Concept of consumer in jurisdiction rules versus concept in a directive on
consumer protection
Pillar Securisation: attention possible difference OBJECTIVES rules in one regime compared to
another
= about « consumers » cfr. Other notions e.g. « employees » etc. (« employment contract»)
Cfr.
Experts meeting 2017: (older) case Ryanair (C-168/16 and C-169/16 Noguiera) (if
employment contract: concept of « place in which the employee habitually carries out his work »?) – mentioned at that time
issues (in)consistency procedural rules (Brussels 1) – rules of applicable law (Rome 1)

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BRUSSELS 1 BIS/LUGANO AND
EEO/EPO/ESCP
Touching here classic, fundamental issue: consistency/inconsistency notions in jurisdiction
rules/rules of applicable law – possible differences in objectives
See recently book chapter AG M. Szpunar, « EU Private International Law: Consistency of the Scopes of Application and/or of the
Solutions » in B. Hess and K. Lenaerts (eds.), The 50th Anniversary of the European Law of Civil Procedure, 2020
So, attention, be careful in any case.
Possibility looking though also at other regimes – regimes other than those on applicable
law: other regimes also containing rules of jurisdiction/recognition and enforcement
Thus: Civil and commercial cases besides family law: EEO, EPO, ESCP!? (« second
generation regulations », optional instruments, complementary)
Attention though objectives these regulations: see particularly EPO and ESCP (« procedures »)
aiming easy, quick, cheap procedures; easy enforcement (no exequatur, almost no refusal
grounds, cfr. EEO)
When reflecting on « notions » etc.: Brussels 1 bis/Lugano and EEO/EPO/ESCP?

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A. NOTION OF CONSUMER
B. CONSUMER PROTECTION – CONTROL AND
SANCTION MECHANISMS IN VARIOUS REGIMES
A. Notions - notion of consumer in various regimes
CJEU Vapenik (C-508/12), on EEO: concept « consumer » in EEO:
emphasis on coherence with Brussels 1 – in any case regarding aspect discussed in CJEU Vapenik (« C2C »?):
neither in Brussels 1, nor in EEO special protection consumer when C2C
But attention, other aspect(s), still possible difference with Brussels 1 bis:
concept in EEO (and EPO) including also « active » consumers?
If so (if EEO/EPO also including « active » consumers): might say broader concept
consumer in EEO/EPO than in Brussels 1 (bis), more protection consumer in that sense
B. But: control- and sanction mechanisms? (Maybe: broad notion, severe rule, but: check,
remedies? – in various regimes?)
In that regard, regarding control- and sanction mechanisms, interesting: CJEU Salvoni (C-
347/18), on Brussels 1 bis (about: check by judge at stage certificate (when appears that was wrong, violation rules
consumer jurisdiction, later on refusal ground but at this stage? May refuse deliver certificate /…, tasks and possibilities at
this stage? )? Court: no possibility for judge (said: later on refusal ground: afterwards still possibility refusal ground)).

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INTERPLAY BETWEEN REGIMES/CASE-LAW
Interesting: opinion nr. 72 Salvoni reference to EEO (indication difference Brussels 1 bis - EEO)
Comparison even broader? Might possibly even look also at EPO and ESCP (no refusal ground as in
Brussels 1 bis)
Ultimately deductions from Salvoni towards EPO/ESCP (legislation/case law)??
When looking this way: = issue possible influence case law Brussels 1 bis (/Brussels 1) on
other instruments?
But, ultimately: also other way around?? Cfr. Also Part 1 of this presentation, e.g. deductions from EPO/Bondora
on Brussels 1 bis, possible influence/deductions from case law other regimes on Brussels 1 bis
Cfr. Also Peter Mankowski (« The impact of the Brussels 1 bis Regulation on the « second generation » of European procedural law », in
Research Handbook on Brussels 1 bis, 2020): “(…) The ‘Second Generation’ refers to Brussels I/Ibis, not the other way round. There is not a single instance in the
Brussels I/Ibis regime of reference being made to the ‘Second Generation’. Yet in interpreting rules addressing parallel features, the relationship could be seen as
two-sided: whereas the interpretation of rules in a Regulation of the ‘Second Generation’ might profit from the wealth of experience gathered under Brussels I/Ibis,
the interpretation of rules in Brussels I/Ibis might au revanche avail itself of wisdom and standards previously
established under any Regulation of the ‘Second Generation’ where fitting.”
If so: = issue influence case law other regimes on Brussels 1 bis and question place Lugano in this, point(s) of orientation

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REGULATIONS AS POSSIBLE REVEALERS …
Even when say no impact etc.: might say sometimes these second generation
regulations « in frontline », thus asked preliminary questions to CJEU
Ultimately functioning as « canaries in coalmine »
when comes to how far can be gone regarding (loss of) protection of defendants,
particularly consumer-defendants? (cfr. e.g. Case law on EPO regarding inter alia service issues)
Ultimately when « throwing stone », making ripples in the water
and going further – as if skimming stones on water?
Cfr. E.g. current discussions on who may certify, in various regimes
Authority competent to certify and possible consistency or not between the regimes on this issue
CJEU Imtech Marine regarding EEO (EEO: « judge »)
– questions who may certify in other regimes - Brussels 1 bis, art. 53!? (case law Korana, Weil, Salvoni, …)
(= possible issue(s) when possibly amending Lugano/at national level?)

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In any case, when reflecting on control and sanction mechanisms, on remedies, on
who may do what, …
What might observe in any case: what « comes »/does not come afterwards (including:
refusal grounds/not) may be relevant
cfr. CJEU Salvoni on Brussels 1 bis
(« still refusal ground afterwards »)
cfr. CJEU Cornelius de Visser (C-292/10 – cfr. also later case-law) (EEO and Brussels
1, defendant with unknown address) on EEO (CJEU nr. 66: in EEO no refusal ground such as
art. 34 par. 2 Brussels 1 – issue « rights of defense » - severe)
(no refusal grounds afterwards, EEO in such a situation not available)
Regime thus sometimes (even) not available
Thus, back to beginning: aspects applicability

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III. PRELIMINARY RULINGS, ORDERS AND
JUDGMENTS
Both when about applicability and about application: possible exploring issues
influences/consistencies/differences etc. regimes, cfr. Part I and II this presentation
Raises questions regarding preliminary procedures:
about asking/not asking questions to CJEU,
about CJEU responding by judgment/order …
Ordonnance (Order) C-827/18 (MC) on Lugano convention: partly based on article 99 Rules of
procedure of the court of justice
Reference to case law CJEU Brussels 1 bis and Brussels 1 - Cfr. Issue what possibly (clearly) deduce from
case law other regimes.
Note: if Order: also orders might be interesting/relevant
if procedure continues and Judgment: ultimately influence decision by observations
Member States - also in sense possibly influencing « wideness » of discussion (especially by AG), by way
also possibly of submitting observations to the Court

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All in all: various regimes. Issues positioning one regime compared to another, issues possible “equivalent”,
identical/differences, deductions, objectives of regimes/rules …
Is partly classic issue, known: fundamental questions on influences one regime on another
Me myself: interesting to see how things evolve. “At gate”, not myself gatekeeper but “alerts”
Curious at court and curious broader.
Curious particularly: Lugano in context. Here: particularly in context Lugano, “Lugano in context”, Lugano
in broad panorama where dynamics going on
This presentation: just some points, meanwhile presenting some current issues, themes that are
currently discussed/debated to certain extent (at European-supranational/national level).
Cfr. You as experts, this meeting

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MAIN CASE-LAW: OVERVIEW, STRUCTURE
PRESENTATION
(introductory remarks)
I. “Applicability” of the Lugano Convention/of regimes:
Commerzbank (C-296/20) as a stepping stone
with Parking and Interplastics (Joined cases C-267/19 and C-
323/19)
+ other case law
II. “Application” of the Lugano Convention/of regimes:
Pillar Securisation (C-694/17) as a stepping stone
with Salvoni (C-347/18)
+ other case law
III. Preliminary rulings, Judgments and Orders – in conclusion:
Ordonnance MC (C-827/18) as a stepping stone

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(INTRODUCTORY REMARKS)
PRESENTATION: LUGANO « IN CONTEXT » -
NARROW AND BROAD
Presentation on case law of the Court: will be narrow AND broad
NARROW: will focus on some aspects of some cases, without discussing them exhaustively,
highlighting only 1 or 2 particular aspects,
thus zooming in, as if using a magnifying glass, optical lense
BROAD: subsequently, immediately zooming out, looking at wide panorama, taking a quite
broad view, paying attention to dynamics, fields of tension etc., as if looking with telescope in space

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« AREA » OF FREEDOM, SECURITY AND
JUSTICE/JUDICIAL COOPERATION IN CIVIL
MATTERS
Tempting to use image of SPACE: in broad view,
will not look only at regime of Lugano,
but will discuss Lugano in context,
looking at same time also at other regimes and how they « behave » in space.
Tempting talking about « space »: these instruments in Area of Freedom, Security and
Justice ( « space »: « espace », « der Raum, « ruimte » …)/Judicial cooperation in civil
matters
Lugano then itself in same/another « solar system » - with Brussels 1 bis
Regulation in centre!?

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THE SOLAR SYSTEM AS WE KNOW IT
In any case – while being selective - broad panorama: « Lugano in context »
Lugano and Brussels 1 bis,
but also e.g. EEO (805/2004), EPO (1896/2006) and ESCP (861/2007) Regulations
on which nowadays several cases Court (more case law available than in 2017)
EEO, EPO and ESCP: kind of « satellites »/regulations « turning around »
« centre »/Brussels 1 bis (and Brussels 1) Regulation
Looking at dynamics etc. taking place, ongoing – how they « behave » in space

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ANNO 2022
Anno 2022: several interesting cases on these regulations/on Brussels 1 bis in
interaction with these regulations
– cfr. Choice for cases such as Parking and Interplastics, and
Salvoni (both on Brussels 1 bis).
Thus, presentation:
using selection of cases on Lugano Convention as stepping stone
then case law Brussels 1 bis AND some cases on EEO/EPO/ESCP (in
addition to list case law Court provided with)

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CFR. WHOLE LIST CASE-LAW
List cases (cfr. Document with lists case-law):
Lugano decisions: 5 (4 judgments and 1 Order:
C-296/10, C-694/17, C-603/17, C-467/16 and C-827/18)
Lugano pending: 1 (C-358/21)
Brussels 1 bis decisions: 49
Brussels 1decisions: 15
Brussels 1 and Brussels 1 bis pending: 26
(and so will include, thus, even some cases not on these lists – i.a. on EEO, EPO and ESCP)

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CFR. OVERVIEW: FOCUS, SELECTION
I. “Applicability” of the Lugano Convention/of regimes:
Commerzbank (C-296/20) on Lugano as a stepping stone
with Parking and Interplastics (Joined cases C-267/19 and C-323/19) on
Brussels I bis
II. “Application” of the Lugano Convention/of regimes:
Pillar Securisation (C-694/17) on Lugano as a stepping stone
with Salvoni (C-347/18) on Brussels I bis
III. Preliminary rulings, Judgments and Orders:
Ordonnance MC (C-827/18) on Lugano as a stepping stone

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I. APPLICABILITY
(1) CJEU COMMERZBANK AS A STEPPING
STONE
(1) CJEU Commerzbank (C-296/20) as a stepping stone:
« internationality » as an aspect of applicability of jurisdiction rules on consumer
protection
Special jurisdiction rules consumers in Lugano convention - article 15 (1) (c) Lugano Convention
Requirement of an international element at the time the contract was concluded (to apply special jurisdiction rule)?
Case: parties to the consumer contract – the consumer and the professional counterparty – were, at the time that
contract was concluded, domiciled in the same State bound by Lugano convention; international element in the legal
relationship emerged only after that contract was concluded (transfer of the consumer’s domicile to another State
bound by Lugano convention – from Germany to Switzerland)
No requirement that the professional counterparty already pursued a cross-border activity at the time the contract
was concluded
Article 15 (1) (c) applicable
= issues « internationality » in context discussing/assessing applicability special jurisdiction rules

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(2) TAKING SOME STEPS BACK:
APPLICABILITY « AS SUCH » OF A REGIME
(2) Taking some steps back:
applicability as such of a regime and aspect « internationality » thereby (« cross-
border » element, « external element »): sometimes an issue
Interesting in this regard: Parking and Interplastics, Brussels 1 bis
(joined cases C-267/19 and C-323/19, judgment on Brussels 1 bis Regulation)

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Parking and Interplastics: regarding special Croatian procedure
issues competence Court
2 joined cases
one: defendant abroad;
other one: plaintiff abroad (in other Member State)
Brussels 1 bis?
(EEO mentioned but set aside: not « uncontested »)

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PARKING AND INTERPLASTICS, « CROSS-
BORDER »
Internationality, cross-border:
Reference in nr. 34 judgment discussing “cross-border”, Brussels 1 bis, to EPO/CJEU
Bondora (C-453/18 and C-494/14), and said nr. 35 “harmonised interpretation”
EPO, art. 3: « For the purposes of this Regulation, a cross-border case is one in which at least one of the parties is domiciled or habitually resident in a Member State other
than the Member State of the court seised. »
seems broad, wide but
cf. ESCP (same as EPO): ZSE Energia (C-627/17), with reference document
COM(2013)794 final: narrow, in any case different Brussels 1 bis
Cf. Also documents on EPO itself (at time Brussels 1):
- Commission statement COM(2006)0374
- and COM(2006)OO57: communication from the Commission to the
Parliament; interesting regarding amendment 39 (also in interaction, arguing with Lugano convention)
(quotes from these documents: see following slides)
cfr. remark EEO opinion nr. 25 Zulfikarpasic (C-484/15) about internationality and differences
reference “consistency”, harmonised but European legislator in various regimes?

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(QUOTES)
Quotes from cases/documents mentioned on previous slides:
CJEU Parking and Interplastics:
“33 Although Regulation No 1215/2012 uses the concept of ‘cross-border litigation’ in recitals 3 and 26, but does not define
that concept, it should be noted that Article 3(1) of Regulation (EC) No 1896/2006 of the European Parliament and of the
Council of 12 December 2006 creating a European order for payment procedure (OJ 2006 L 399, p. 1) defines the
equivalent concept of ‘cross-border case’ as a case in which at least one of the parties is domiciled or habitually resident in
a Member State other than the Member State of the court seised.
34 On the basis of that provision, the Court has held that, since the applicant in an order for payment procedure has its
registered office in a Member State other than that in which the court is situated, the dispute is cross-border in nature and
therefore comes within the scope of Regulation No 1896/2006 (see, to that effect, judgment of 19 December 2019,
Bondora, C-453/18 and C-494/18, EU:C:2019:1118, paragraph 35).
35 Such an interpretation of Article 3(1) of Regulation No 1896/2006 is also, in principle, used to establish the cross-border
nature, and, accordingly, the international element, of a dispute for the purposes of applying Regulation No 1215/2012.
Since both of those regulations come within the field of judicial cooperation in civil matters having cross-border
implications, the interpretation of equivalent concepts used by the EU legislature in them should be harmonised.”

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(QUOTES)
Document Commission mentioned in CJEU ZSE Energia, on ESCP:
Com(2013)794 : Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC)
No 861/2007 of the European Parliament and the Council of 11 July 2007 establishing a European Small Claims
Procedure and Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006
creating a European order for payment procedure
Preparatory document COM(2013)794 final, proposed amendment ESCP, indicating differences ESCP/Brussels 1 bis.
Cfr. Document p. 6:
“The Regulation currently applies only to disputes where at least one of the parties is domiciled or habitually resident in a Member State other than the
Member State of the court or tribunal seized. However, disputes involving parties domiciled in the same Member State which have an important cross-
border element and could therefore benefit from the European simplified procedure are left outside the scope of the Regulation. Examples include cases
where: • the place of performance of the contract is in another Member State, for example a lease contract for a holiday property situated in another
Member State; or • the place of occurrence of the harmful event is in another Member State, for example when parties are involved in a car accident in
a border region situated in another Member State; or • the enforcement of the judgment is to take place in another Member State, for example when a
judgment must be executed on the defendants salary which he receives in another Member State. In particular, where the claimant may choose under
the provisions of Regulation [(EC) No 44/2001]/[(EU) No 1215/2012] between the jurisdiction of the courts of the Member State where both him and the
defendant are domiciled and the jurisdiction of the Member State where for example the contract is performed or the harmful event took place, the
actual choice of the claimant in favour of the courts or tribunals of the Member State of the common domicile should not have the effect of depriving
him of the possibility to use the European Small Claims Procedure which would otherwise be available.”

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(QUOTES)
(Proposal at the time:
Proposed recital:
“(6) The European Small Claims Procedure applies to all claims with a cross-border element. This includes cases where the parties are both
domiciled in the same Member State and only the place of performance of the contract, the place where the harmful event takes place or the place
of enforcement of the judgment is situated in another Member State. In particular, where the claimant may choose under Council Regulation (EC)
No 44/200115[Regulation (EU) No 1215/2012 of the European Parliament and of the Council16] between the jurisdiction of the courts of the
Member State where both him and the defendant are domiciled and the jurisdiction of the courts of the Member State where the contract is
performed or the harmful event took place, the actual choice of the claimant in favour of the courts or tribunals of the Member State of the
common domicile should not have the effect of depriving him of the possibility to use the European Small Claims Procedure which would otherwise
be available. Furthermore, the European Small Claims Procedure should also be available in cases lodged before courts of EU Member States by or
against third country residents. (7) This Regulation should apply only in cross-border disputes, but nothing should prevent Member States from
applying identical provisions also to purely internal proceedings concerning claims of a low value.”
Proposed Article:
“2. This Regulation shall not apply where, at the time when the claim form is received by the court or tribunal with jurisdiction, all of the following
elements, where relevant, are in a single Member State: (a) the domicile or habitual residence of the parties; (b) the place of performance of the
contract; (c) the place where the facts on which the claim is based arose; (d) the place of enforcement of the judgment; (e) the court or tribunal
with jurisdiction. Domicile shall be determined in accordance with [Articles 59 and 60 of Regulation (EC) No 44/2001]/[Article 62 and 63 of
Regulation (EU) No 1215/2012].”)

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(QUOTES)
Proposed amendment ESCP in com(2013)794 did not take place, not broadened
Acknowledged by Court in ZSE Energia see CJEU ZSE Energia:
“(…), it must also be borne in mind, as the Slovak Government and the Commission have
pointed out in their observations, that the EU legislature expressed, during the adoption of
Regulation (EU) 2015/2421 of the European Parliament and of the Council of 16 December
2015 amending Regulation (EC) No 861/2007 (OJ 2015 L 341, p. 1), its desire not to extend
the definition of cross-border disputes, despite the Commission’s proposition to that effect
(COM(2013) 794 final). That will of the EU legislature would be disregarded if the fact that
an intervener was domiciled in a Member State other than that of the applicant and
defendant were sufficient to extend the scope of Regulation No 861/2007 to a dispute such
as that in the main proceedings.”

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(QUOTES)
2 Documents regarding EPO (at time Brussels 1):
Com(2006)0374 final
Communication from the Commission to the European Parliament pursuant to the second
subparagraph of Article 251 (2) of the EC Treaty concerning the common position of the Council on
the adoption of a Regulation of the European Parliament and of the Council creating a European
order for payment procedure
Commission statement, DECLARATION OF THE COMMISSION:
« The Commission declares that the definition of the term "cross-border case" in the context of this
Regulation is not an interpretation of the obligation foreseen in Article 65 of the Treaty to limit the action
of the Community to matters having cross-border implications, but only one among other possibilities to
limit the scope of application of this Regulation in the context of Article 65.
It is not necessary to limit the scope of application by reference to a general definition of "cross-border"
in the instruments relating to private international law. »

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(QUOTES)
And: COM(2006) 57 final Amended proposal for a Regulation of the European Parliament and of the Council creating a
European order for payment procedure
Discussions about requirement cross-border as such (possibility to include also domestic cases)/cross-border in sense at
least 1 party in another Member State/cross-border in sense at least 1 party in another State etc.
Interesting regarding amendment 39 (also in interaction, arguing with Lugano convention): Member State/State:
“Amendment 39 aims at defining the concept of “cross-border case” for purposes of this Regulation. While the Commission can
accept the restriction of the Regulation to crossborder cases and agrees to a large extent with the proposed definition, it cannot
accept the reference to “Member State” with respect to the domicile or habitual residence of the parties. The reference to
“Member State” with respect to the parties has significant legal and political consequences. This reference means that the
European order for payment procedure cannot be used by non-EU domiciled claimants or against non-EU domiciled defendants,
in certain cases where European Union courts have jurisdiction, in particular under Council Regulation No (EC) 44/2001 of 22
December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. Prohibiting
the use of the procedure by non-EU domiciled claimants is highly doubtful in the light of existing international obligations of the
European Union, in particular obligations arising under GATT 1994, the GATS and the TRIPS Agreement. Also, the combined
application of the future instrument with the 1988 Lugano Convention on jurisdiction and the recognition and enforcement of
judgments in civil and commercial matters creates highly undesirable situations with respect to claimants domiciled or habitually
resident in a non-EU State party to that Convention. Finally, the definition raises questions under the Agreement on the European
Economic Area.”

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PARKING AND INTERPLASTICS – REFERENCE
TO EPO AND « HARMONISED »!?
Might possibly just say, regarding Parking and Interplastics, reference to EPO and “harmonised”:
if, regarding requirement “cross-border”, requirement “cross-border” would be
fulfilled (even) regarding EPO (quite narrow), then in any case fulfilled regarding Brussels 1 bis
(which quite broad)?
– harmonisation (purely, simply) in that sense? Criterion EPO as just one way amongst
other to fulfill criterion of “international” in the context of Brussels 1 bis?
So, what can be seen here:
arguments, deductions, conclusions from EPO
/ Just showed up in context of EPO – cfr. Brussels 1 bis?
Paying attention thereby:
- EPO and ESCP: definition “cross-border”: is requirement “international element”, but also, at the same time criterion for application jurisdiction rules, scope (besides other
requirements scope such as substantive scope, so assuming no other issues regarding scope) (thus: criterion internationality + criterion “application”, for procedure, part
jurisdiction rules – to be distinguished from part recognition and enforcement: between Member States; part recognition and enforcement may follow after EPO/ESCP-
procedure or not)
- While Brussels 1 bis: requirement “cross-border element” is just, only the beginning – attention distinguish other/following steps to check if part jurisdiction of Brussels 1 bis is
applicable (to be distinguished also from part recognition and enforcement: between Member States) (not necessarily falling together element “internationality” element
“scope”: difference cross-border – requirements jurisdiction rules. Not said automatically that Brussels 1 bis applicable (besides substantive etc.)
Attention Brussels 1 bis: is only the beginning, in any case still different other steps, cfr. More case law. Cfr.
hereafter

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ALERT: APPLICABILITY/APPLICATION AND
ISSUES OF DISCRIMINATION/CHARTER
Point of attention (alert, note): when going on and proceeding this way, about cross-
border and applicability: issue of discrimination and violation Charter (connection
with EU law)
Cfr. Parking and Interplastics. Parking and Interplastics issues discrimination (article 18
TFEU)/violation Charter (previously Pula Parking C-551/15: cannot circulate under Brussels 1 bis)
Alleged discrimination - alleged reverse discrimination; alleged violation article 47
Charter (Right to an effective remedy and to a fair trial).
Said: no discrimination on basis of nationality, no violation, but so did check and
assess in any case.
(note, reflecting on discrimination and violation Charter, interesting hereby also:
interesting issue in this case: issue not circulating under Brussels 1 bis – Court: without discrimination on basis nationality
interesting; Court, formulating it in as a « moreover »: reference to existence of « alternative remedies »
note hereby:
might look from perspective plaintiff and perspective defendant
quid when looking at some national special procedures containing requirement that defendant may not be domiciled abroad –
see on this previously C-412/97, regarding compatibility with European law (with extensive divergent opinion AG) – quid in current context, where EPO
and ESCP? EPO and ESCP argument to abolish this requirement/EPO and ESCP to be considered as available alternatives remedies/…?)

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« ALERT »
In cases prior to Parking and Interplastics (« saga », cfr. Opinion AG in C-307/19 point 2,
going back to CJEU Pula Parking) already tried to bring before the Court, but resulted in
Orders (« Ordonnances »).
“Saga”: “This case is another episode in what has now become a rather rich procedural saga of unpaid parking tickets and notaries. (2)” Footnote:
Previously on unpaid parking tickets and notaries in Croatia, see, amongst others, judgments of 9 March 2017, Pula Parking (C-551/15, EU:C:2017:193); of 9 March 2017,
Zulfikarpašić (C-484/15, EU:C:2017:199); and of 7 May 2020, PARKING and Interplastics (C-267/19 and C-323/19, EU:C:2020:351). See also orders of 11 April 2019, Hrvatska
radiotelevizija (C-657/18, not published, EU:C:2019:304), and of 6 November 2019, EOS Matrix (C-234/19, not published, EU:C:2019:986).
Orders Hrvatska (C-657/18) and Eos Matrix (C-234/19) Said: « purely internal », Court not
competent (although said meanwhile something about discrimination)
Interesting thereby in orders:
situations compared with situations in CJEU Zulfikarpasic (regarding EEO) and CJEU
Pula Parking (regarding Brussels 1 bis). Said: not asked for an EEO. Regarding Brussels 1 bis:
Said Pula Parking external element (in light of jurisdiction), whereas now « purely internal. »
said no possibility assess violation article 18 TFUE and Charter - cfr. Quote:

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« ALERT »
(Quote from Eos Matrix:
« 24 À cet égard, la juridiction de renvoi fait état de l’existence d’une inégalité de traitement des ressortissants croates
par rapport aux ressortissants des autres États membres qu’elle estime être constitutive d’une discrimination à rebours au
titre de l’article 18 TFUE. Néanmoins, ainsi qu’il ressort des points 20 et 22 de la présente ordonnance, les règlements
nos 805/2004 et 1215/2012 ne sont pas applicables à l’affaire au principal et cette juridiction ne fournit aucun autre motif
permettant d’identifier les raisons pour lesquelles l’affaire dont elle est saisie présenterait un lien avec le droit de l’Union.
Or, des perspectives purement hypothétiques liées à la libre circulation des décisions judiciaires ne suffisent pas à fonder
la compétence de la Cour pour examiner une demande de décision préjudicielle au regard de l’article 18 TFUE
(ordonnance du 11 avril 2019, Hrvatska radiotelevizija, C-657/18, non publiée, EU:C:2019:304, point 25). »
« 27 S’agissant, en quatrième lieu, de l’article 6, paragraphe 1, de la CEDH, il est de jurisprudence constante que la Cour
n’est pas compétente, en vertu de l’article 267 TFUE, pour statuer sur l’interprétation de dispositions du droit international
qui lient des États membres en dehors du cadre du droit de l’Union. S’il est acquis, par ailleurs, que l’article 6,
paragraphe 1, de la CEDH correspond, en substance, à l’article 47 de la charte des droits fondamentaux de l’Union
européenne (ci-après la « Charte »), il importe de rappeler que le champ d’application de la Charte, pour ce qui est de
l’action des États membres, est défini à l’article 51, paragraphe 1, de celle-ci, aux termes duquel les dispositions de la
Charte s’adressent aux États membres uniquement lorsqu’ils mettent en œuvre le droit de l’Union (ordonnance du 11 avril
2019, Hrvatska radiotelevizija, C-657/18, non publiée, EU:C:2019:304, point 28 et jurisprudence citée). »)

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« ALERT »
Parking and Interplastics itself:
« might possibly circulate afterwards » (paraphrased) (- issue hypothetical, prospective) (attention possible unprevisibility if will
circulate/where exactly might finally be recognized and enforced) ; said (regarding two, joined, cases):
Quote Parking en interplastics:
Nr 27
“In order to establish whether the Court has jurisdiction to answer the questions referred for a preliminary ruling, it is necessary to verify that the cases in the main proceedings have a
connection with EU law. In that regard, it must be observed that, like the case that gave rise to the judgment of 9 March 2017, Pula Parking (C-551/15, EU:C:2017:193), two oppositions have
been lodged before the referring court against enforcement orders issued by notaries for the purposes of recovering debts.”
Nr 28
“Where Regulation No 1215/2012 is applied, following such oppositions, judicial decisions which are capable of being recognised and enforced in another Member State will, in
principle, be adopted. The factor that connects them with EU law, which justifies the Court’s jurisdiction to answer the questions raised by the referring court, may therefore be derived from
the applicability, in the present cases, of that regulation (see, to that effect, judgment of 25 May 2016, Meroni, C-559/14, EU:C:2016:349, paragraph 44).”
said, regarding Brussels 1 bis, external element: not purely internal cfr. above about case where plaintiff abroad in reference to EPO and
CJEU Bondora
connecting somehow two worlds? (world of jurisdiction rules/rules of recognition and enforcement)
Note: regarding reference to CJEU Meroni: compare CJEU Meroni (Meroni C-559/14 point 44) in context applying rules of recognition and
enforcement Brussels 1 - Meroni: was about Brussels 1 recognition, application rules themselves (whereas here in fact Brussels 1 bis not « applicable »)
Note: conclusion in case Parking and Interplastics anyhow (cfr. Previously Pula Parking) not circulating, not falling under Brussels 1 bis – civil and
commercial matters, but issue notaries
In any case, MORE IN GENERAL, when asking if regime applicable in order to apply rules: when criterion fulfilled « cross-border » Brussels 1 bis,
not stop there to know if indeed applicable in order to apply rules

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(3) APPLICABILITY, MORE – FURTHER
STEPS
(3) Further steps
So, in any case when asking if system, regime applicable: not stop with
internationality, cross-border.
Cfr. “international”: still check whether should apply this source/another PIL-source
(might be cross-border ultimately but still another source e.g. national PIL-source). (“lien
de rattachement” …). So: apply Brussels 1 bis/another source? (might be cross-border
but another PIL-source)
(attention always distinguishing Rules applicability jurisdiction – recognition and
enforcement)

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FURTHER STEPS …
When continuing on issues applicability, particularly jurisdiction, checking further:
more case law, including CJEU C-327/10 (Hypoteční banka, “Lindner”), including also older
as well as more recent case law such as CJEU Owusu (C-281/02)
Cfr. Remarks in judgment (i.a. nr. 31) and opinion Lindner: quote:
“31 It is true that the foreign nationality of one of the parties to the proceedings is not taken into account by the rules of jurisdiction laid down by
Regulation No 44/2001. However, as the Advocate General has noted in point 65 of her Opinion, a distinction must be made between, on the one hand, the
conditions under which the rules of jurisdiction pursuant to that regulation must apply and, on the other, the criteria by which international jurisdiction is
determined under those rules.”
In fact distinguish several subsequent steps, including
issue « internationality »
issue criterion applicability jurisdiction rules
issue determination of competent judge(s) according to jurisdiction rules
Attention thereby wordings e.g. « may be » applicable/ « is » applicable

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PARKING AND INTERPLASTICS AND AFTER
Cases/case law after Parking and Interplastics: still issues « internationality », sometimes referring to Judgment
Parking and Interplastics
Parking and Interplastics « flies out »/going to live a life on its own
See notably C-280/20 (Generalno konsultstvo na Republika Bulgaria) (see also e.g., regarding “connection with EU law, C-
550/19, nrs. 26-27)
Regarding (legal) basis for the need of « internationality », see, regarding case C-280/20 in comparison with judgment C-393/18 in
international family law, Brussels II bis regulation (interesting in this case: numbers 38 and following of judgment)
(referring to recitals in preamble Brussels 1 bis/case law Court/legal basis instrument (article 81 TFEU: « civil matters having cross-border
implications »/…)):
https://conflictoflaws.net/2021/cjeu-on-the-scope-of-the-brussels-i-bis-regulation-in-the-context-of-a-dispute-between-an-employee-and-a-
consulate-in-the-case-zn-c-280-20/
(Parking and Interplastics itself: referring in nr. 30 to CJEU Maletic, Owusu, preamble recitals 3 and 26)
Considerations Parking and Interplastics repeated in C-280/20, as argument, formula, kind of mantra
Meanwhile and currently, apparently still discussions/issues/indications
(interesting also recently: judgments/opinions C-421/20, with opinion, and C-804/19, with opinion – referring to other
case law. See particularly nr. 2 and 44 opinion C-421/20)

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Interesting might have been: case C-62/22 But withdrawn!
(Question in C-62/22 was: « Is Article 18(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012
on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to be interpreted as meaning that, in addition to
regulating international jurisdiction, the provision also lays down a rule to be observed by the adjudicating court as to the territorial jurisdiction of
the national courts in matters pertaining to travel contracts where both the consumer, as the traveller, and his or her contractual partner, the tour
operator, are domiciled in the same Member State, however the destination is not in that Member State but is located abroad, with the consequence
that the consumer can bring contractual claims against the tour operator before the court for his or her place of domicile as a supplement to
national rules?”
Prior to C-62/22: similar case C-317/20, but that case withdrawn – Order of the Court.
Recently C-62/22, but now also very recently C-62/22 withdrawn.
(case C-62/22: would have taken over e.g. some considerations Parking and
Interplastics/…? Might, possibly, have been interesting occasion to emphasize some
points/…)

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ALERT POSSIBLE REVISION BRUSSELS 1
BIS ITSELF
When comes to applicability: attention possible revision Brussels 1 bis – article 79 Brussels 1
bis Regulation
Particularly alert issue, affecting possibly scope, applicability of Brussels 1 bis: issues
Corporate Social Responsibility
Issues « access to justice » victims - Private International Law (including Brussels 1 bis) as « a
hinge » giving access/not to European judge - Issues in particular jurisdiction over non-EU-
defendants
connected claims third-country defendants (multiple defendants)
forum necessitatis
« forum non conveniens » (« disguised »?) in lis pendens rules lis Brussels 1 bis
note: forum necessitatis: interesting evolutions/discussions in international family
law, cfr. recent opinion in case C-501/20 international family law, touching the issue of forum
necessitatis, also in light of Charter
(recently (thus, outdated discussions/not?) – and with indication of what prior to this: https://eapil.org/2022/04/27/brief-overview-of-the-directive-
proposal-on-corporate-due-diligence-and-pil/)

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THE SOLAR SYSTEM AS WE KNOW IT …
Is about applicability – attention also other aspects and issues, issues/cases not mentioned
here … (note: pending case Lugano C-358/21 (Tilman) mentioned Brexit)
Regimes in the solar system as we know it, « given » order of things
Observe « how behave »
Brussels 1 bis at centre – with satellites - Lugano in this/in another solar system (ultimately in
« parallel universe »?)
Point of orientation: Brussels 1 bis/…? Brussels 1 bis - EPO etc.: « consistency » etc., see
Parking and Interplastics
Issues consistency, coherence, influence and deductions
When interpreting Lugano ultimately « jump over »? (even when not yet decided in context
Brussels 1 bis?)
Is about applicability

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APPLICABILITY/APPLICATION
Is, so, about applicability, whether is source (= First part this presentation)
Once applicable, application, cfr. Second part this presentation, some interesting
cases, using again a decision on Lugano (Pillar Securisation) as stepping stone.
Issues notions, concepts …
Pillar Securisation (and Salvoni, as well as other cases mentioned) also on
consumers/consumer protection, as some issues in first part, but will also see broader
- dynamics, tensions, some debated issues… Thus, issues consumers and consumer
protection illustrative.
part of what mentioned above returns in the context of « application » of regimes

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II. APPLICATION
(1) APPLICATION: INTRODUCTORY
REMARKS
When effectively applying a regime: notions, concepts - questions regarding relevance of
equivalent notions in other instruments
Stepping stone: Pillar Securisation (C-694/17, judgment on Lugano): notion « consumer »,
different regimes
Concept of consumer in jurisdiction rules versus concept in directives
Cfr. Also other case law (including Petruchová C-208/18 and other case law)
Issue, question often: concepts: or ?
Pillar Securisation: attention possible difference objectives rules in one regime compared to another
= about « consumers » cfr. Other notions e.g. « employees »
On « employment contract »: C-603/17, on Lugano (is employment contract?). Experts
meeting 2017: case Ryanair (C-168/16 and C-169/16 Noguiera) (if employment contract:
concept of « place in which the employee habitually carries out his work »?) – mentioned at
that time issues (in)consistency procedural rules – rules of applicable law

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Ryanair etc., issues: known as broader issue
Touching here classic, fundamental issue: consistency/inconsistency notions in jurisdiction
rules/rules of applicable law – possible differences in objectives
See recently book chapter M. Szpunar, « EU Private International Law: Consistency of the
Scopes of Application and/or of the Solutions » in B. Hess and K. Lenaerts (eds.), The 50th
Anniversary of the European Law of Civil Procedure, 2020
So, attention, be careful in any case.
Possible looking though also at other regimes, regimes other than those on applicable
law: other regimes also containing rules of jurisdiction/recognition and enforcement
Regimes international family law? Sometimes said own characteristics etc. family law
But, civil and commercial cases besides family law: EEO, EPO, ESCP!? (= regulations
already mentioned in first part: EEO 805/2004, EPO 1896/2006, ESCP 861/2007)

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EEO, EPO and ESCP (« second generation regulations »):
Cfr. Brussels 1, Brussels 1 bis and Lugano: issues jurisdiction/recognition and
enforcement in civil and commercial matters, in essence not family law
Regimes: « optional instruments» -
EEO (if conditions fulfilled) « complementary » to Brussels 1 bis
EPO and ESCP optional (« European ») procedures
(Almost) same rules international jurisdiction as Brussels 1 bis

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curia.europa.eu
« SIMILAR » REGIMES!? - BUT ATTENTION
OBJECTIVES
Attention though objectives:
See particularly EPO and ESCP
(« procedures »): aiming easy, quick, cheap procedures
easy enforcement (no exequatur, almost no refusal grounds, cfr. Also EEO)
When reflecting on « notions »: Brussels 1 bis/Lugano and EEO/EPO/ESCP?

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(2) BRUSSELS 1 BIS/LUGANO AND EEO,
EPO AND ESCP
So: Brussels 1 bis/Lugano and EEO, EPO and ESCP
Hereafter, from this perspective, some remarks:
A. Firstly, regarding « notions » in regimes - particularly notion of « consumers »
B. Secondly, regarding issues of « protection » of consumers – broader: « control and
sanction mechanisms » in regimes
Point of attention thereby: consistenties, possible deductions, … positioning regimes EEO,
EPO and ESCP - Brussels 1 bis/Lugano?

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curia.europa.eu
A. NOTION OF CONSUMER
Notions - notion of consumer
CJEU Vapenik (C-508/12), on EEO: concept « consumer » in EEO:
emphasis on coherence with Brussels 1
– in any case regarding aspect discussed in CJEU Vapenik (« C2C »?): neither in
Brussels 1, nor in EEO special protection consumer when C2C
(note: reference to CJEU Vapenik in judgment and opinion Pillar Securisation)
But attention, other aspect(s), still possible difference with Brussels 1 bis:
special requirements « consumer contract » Brussels 1 bis not repeated in EEO (and
neither in EPO):
thus no need that additional requirements Brussels 1 bis fulfilled?
Thus, concept in EEO (and EPO) including not only « passive » consumers, but also
including « active » consumers – offering more protection to consumer-defendants, because
broader concept?

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curia.europa.eu
If so (if EEO/EPO also including « active » consumers): might say broader concept
consumer in EEO/EPO, more protection in that sense
But: control- and sanction mechanisms?
Maybe
severe rule,
but: check, remedies?
(rules on the one hand,
but their enforcement (including checks, remedies – « caliber » of the rules and role of all
actors: role judge, defendant, …; task/possibilities judge/defendant ?) on the other hand?
In that regard, interesting: CJEU Salvoni (C-347/18), on Brussels 1 bis (and other case law
on Brussels 1 bis, when looking in a broader way - broader extensions). Cfr. Hereafter,
control and sanction mechanisms

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curia.europa.eu
B. CONSUMER PROTECTION – CONTROL
AND SANCTION MECHANISMS IN VARIOUS
REGIMES
Consumer protection – control and sanction mechanisms in various regimes
So, interesting here: CJEU Salvoni (C-347/18)
Salvoni about Brussels 1 bis:
check by judge at stage certificate (when appears that was wrong, violation
rules consumer jurisdiction, later on refusal ground but at this stage? May refuse deliver
certificate /…, tasks and possibilities at this stage? )?
Court: no possibility for judge (said: later on refusal ground: afterwards still
possibility refusal ground).
Interesting: no check jurisdiction consumer rules at stage issuing certificate, -
not allowed at this stage – CJEU: afterwards still possibility refusal ground
(compare previously CJEU Weil on Brussels 1 on checking scope – CJEU Weil recently briefly pointed out in opinion C-568/20)
“45 As regards the right to an effective remedy referred to in Article 47 of the Charter, that right has not been infringed given that Article 45 of
Regulation No 1215/2012 enables the defendant to rely, in particular, on a potential breach of the rules on jurisdiction provided for in Chapter II,
Section 4 of that regulation in respect of consumer contracts.”

curia.europa.eu
curia.europa.eu
Case Salvoni (C-347/18) several interesting aspects, including:
interesting: difference consumer jurisdiction rules/directives consumer
protection
interesting: opinion nr. 72 Salvoni reference to EEO (indication difference
Brussels 1 bis - EEO)!

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curia.europa.eu
OPINION SALVONI: BRUSSELS 1 BIS AND
EEO. SALVONI AND BEYOND/MORE
Opinion, comparison with EEO:
Salvoni opinion nr. 72 reference EEO (there obligation check, if requirements not fulfilled
no possibility obtain certificate – difference Brussels 1 bis)
“72.My conclusion on this point is not called into question by the case-law in which the Court has examined the nature of the procedure by which a
judgment is certified as a European Enforcement Order for the purposes of Regulation No 805/2004. 27 The duty of the court of origin to verify that all
requirements for certification as a European Enforcement Order are met derives expressly from Article 6 of Regulation No 805/2004, a provision that finds
no equivalent in Regulation No 1215/2012.
Footnote 27: See especially, judgments of 17 December 2015, Imtech Marine Belgium (C-300/14, EU:C:2015:825, paragraphs 46 and 47), and of 16 June
2016, Pebros Servizi (C-511/14, EU:C:2016:448, paragraph 25).”
EEO: not issue certificate at all. While Brussels 1 bis no check in this regard at stage
issuing certificate.
Note: Might raise issue what if wrongly certificate/what if refused? (EEO itself: possibility withdrawal; case law e.g. Vapenik was
about situation that refused; compared to other regimes such as Brussels 1 bis – what foreseen/made (im)possible at European level/at national
level)
Thus, EEO more « severe » than Brussels 1 bis, more « protective »?
Comparison EEO/Brussels 1 bis?/comparison even broader? Cfr. hereafter

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curia.europa.eu
Brussels 1 bis/EEO:
might point out hereby CJEU Cornelius de Visser (CJEU C-292/10, defendant
with unknown address): no possibility issue EEO when defendant unknown address (cfr.
Also later decision Court on EEO, CJEU C-518/18 RD v SC) 1) (so, see nr. 66 of the
judgment in comparison with Brussels I where refusal ground, whereas no refusal
ground EEO)
(Cfr. – in same line as case law Cornelius de Visser? - said already by some scholars regarding EEO, in reference to case law
Collect Incasso (CJEU C-289/17) and Zulfikarpasic (C-484/15) : « CJEU quite severe regarding respect for rights of defense » in these cases (said:
« strict application of standards guaranteed by these instruments »))
Should acknowledge: EEO almost no refusal grounds, but quite demanding at stage
issuing certificate. With possibility withdrawal afterwards (court origin) – might wonder: is
kind of (pure) shift from country enforcement to country origin? (or not pure shift?)
Might wonder broader: Brussels 1 bis, EEO, EPO and ESCP?

curia.europa.eu
curia.europa.eu
Broader, Brussels 1 bis and EEO + EPO/ESCP
Cfr. Again Salvoni: Said Salvoni afterwards refusal grounds: comparing with EPO/ESCP!?
(with deductions possibly from Salvoni?)
EPO and ESCP: hardly refusal grounds, no refusal ground in sense Brussels 1 bis
regarding consumer jurisdiction rules –
on the other hand: « review » (with court of origin) – might compare what possible
Country enforcement/Country of origin
but … ESCP « stripped-down version » of Brussels 1 bis in some regards, when comes
to protection defendants, particularly consumer- defendants
/each system own fair « balance » and possibly on some points just organized
otherwise – each system own fair system and balance in itself, regarding EPO and ESCP
going along with the aims of these regulations?
Cfr. earlier writings/explorations i.a. https://de.slideshare.net/vvde/european-law-and-national-procedural-law-some-considerations-following-a-
few-cases-of-the-european-court-of-justice-regarding-crossborder-debt-recovery-in-the-eu-251080844
Ultimately deductions from Salvoni towards EPO/ESCP??

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curia.europa.eu
So might ask if possible deductions from Salvoni towards EPO and ESCP
(legislation/case law)
Cfr. Also e.g. possible deductions from CJEU Weil (C-361/18) regarding Brussels 1
towards EPO and ESCP (regarding some aspects)?
(/possible deductions from CJEU Bondora (C-453/18 and C-494/14) regarding EPO itself towards EPO itself but
regarding other aspects than in Bondora?):
Issue possible influence case law Brussels 1 (bis) on other instruments
Ultimately: also other way around??
Also possible influence case law on EEO/EPO/ESCP on Brussels 1 bis/Brussels 1 bis
interpreted « in light of » case law on those regulations?

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curia.europa.eu
Cfr. Peter Mankowski
« The impact of the Brussels 1 bis Regulation on the « second generation » of European procedural
law », in Research Handbook on Brussels 1 bis, 2020:
“(…) The ‘Second Generation’ refers to Brussels I/Ibis, not the other way round. There is not a single
instance in the Brussels I/Ibis regime of reference being made to the ‘Second Generation’. Yet in
interpreting rules addressing parallel features, the relationship could be seen as two-sided: whereas the
interpretation of rules in a Regulation of the ‘Second Generation’ might profit from the wealth of
experience gathered under Brussels I/Ibis,100 the interpretation of rules in Brussels I/Ibis might au
revanche avail itself of wisdom and standards previously established under any Regulation of the
‘Second Generation’ where fitting.
100 As it happened, e.g. in Ibrica Zulfikapašić v. Slaven Gajer (Case C-484/15), ECLI: EU: C:2017:199 paras
36, 38.”

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curia.europa.eu
Cfr. CJEU Parking and Interplastics first part this presentation:
influence?/
shows up in that context and as idea « harmonisation», should also be
applied beyond?
- (just) overall idea « uniformity », at least regarding some aspects?
(Ultimately point of orientation also other regimes than Brussels 1 bis, what said in that
context (while not (yet) said in context Brussels 1 bis itself)?
(Note: regarding issue interpretation Brussels 1 (bis) in light of/taking into account (interpretation of) instruments other than Brussels 1 bis:
cfr. In this regard the comments of B. Hess on Lugano in MPI working paper 2018 on Lugano, p. 5-6
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3118360
See also in this regard S. Giroud, N. Meier and R. Rodriguez, « Le règlement Bruxelles 1 bis, un modèle pour une nouvelle convention de Lugano? »,
2014, p. 444 and following
And see also experts meeting 2017)
Here, regarding issues of application
(first part: issues of applicability)? And Lugano in this regard??

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curia.europa.eu
Might transpose/extend?
Note: Issues deductions from EPO/ESCP to Brussels 1 bis(/Lugano): can observe different
systems organised differently in some regards (review e.g. at court of origin)/sometimes
seemingly less control- and sanction mechanisms, less remedies etc - cfr. Aims of regulations
quick, easy, cheap procedure, easy enforcement
Thus, possibly attention when looking at rules/case law:
Might possibly be sometimes very severe/even more severe regarding respect in any case, at least minimum
standards protecting defendants – cfr. Also in that sense service issues (CJEU eco cosmetics (C-119/13 and C-120/13), CJEU
Catlin Europe (C-21/17): CJEU severe when it comes to respect for service rules)?
Sometimes possibly going along with/reasoning according objectives and thus less severe regarding respect
for some issues?
cfr. In this context e.g. CJEU Thomas Cook (C-245/14) on EPO – strict application of review
mechanism (« no second chance » to oppose for defendant), CJEU quite severe for defendant in situation Thomas Cook,
comment Prof. Nourissat: « caractère impitoyable » de l’EPO - « no mercy »
(Interesting: pending case Uniqa (C-18/21) on EPO (time-limits and Covid-19))
In this regard possibly attention when transposing/extending?

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REGULATIONS AS POSSIBLE REVEALERS …
Even when say no impact etc.: might say sometimes these second genreation
regulations « in frontline », thus asked preliminary questions to CJEU
Ultimately functioning as « canaries in coalmine » when comes to how far can be
gone regarding protection of defendants, particularly consumer-defendants?
(whereas regulations might to a certain extent function as « mirrors » (/tests) for
changing or maintaining certain elements of national procedures: regulations might also
function as « mirrors » for Brussels I bis/…?)
Ultimately when « throwing stone », making ripples in the water
and going further – as if skimming stones on water?
Cfr. E.g. current discussions on who may certify, in various regimes
(see hereafter)

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WHO MAY CERTIFY
Cfr. Issue who may certify, competent authority to certify? Authority competent to certify
and possible consistency or not between the regimes on this issue
CJEU Imtech Marine regarding EEO (EEO: « judge ») – questions who may certify in other
regimes
Brussels 1 bis!?
CJEU Korana (Buak, C-579/17 on Brussels 1 bis), Weil (C-361/18, on Brussels 1), Salvoni (C-347/18, on Brussels 1 bis)
In cases (judgments/opinions): comparisons different systems, own characteristics etc.
e.g. in opinion Korana: in some regards system Brussels 1 bis compared to Brussels 1 to EEO – referring thereby to CJEU
Imtech Marine on EEO etc.
Should also be judge in context Brussels 1 bis? Argument Salvoni hereby? (« acte judiciaire », judicial nature of the act, but
limited control, and in opinion Salvoni indicated difference Brussels 1 bis – EEO, at least in some respects) Brussels 1 bis
different than Brussels 1 anyway, other architecture? Freedom of Member States in this regard?
= Possible issue when possibly amending Lugano/at national level?

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In any case, when reflecting on remedies, control and sanction mechanisms, who may
do what etc. … What might observe in any case: what « comes »/does not come
afterwards (including: refusal grounds/not) may be relevant
cfr. CJEU Salvoni on Brussels 1 bis
CJEU Salvoni: “45 As regards the right to an effective remedy referred to in Article 47 of the Charter, that right has not been infringed given that Article 45 of Regulation No 1215/2012 enables the
defendant to rely, in particular, on a potential breach of the rules on jurisdiction provided for in Chapter II, Section 4 of that regulation in respect of consumer contracts.”
(still refusal ground afterwards)
cfr. CJEU Cornelius de Visser (EEO and Brussels 1, defendant with unknown address) on EEO
(CJEU nr. 66: in EEO no refusal ground such as art. 34 Brussels 1 – issue « rights of defense » - severe)
“66 As is clear from paragraph 57 of the present judgment, the defendant, by opposing, in accordance with Article 34(2) of Regulation No 44/2001, recognition of the judgment issued against
him, will have the opportunity to ensure respect for his rights of defence. That guarantee would, however, be lacking if, in circumstances such as those of the main proceedings, a judgment by
default issued against a defendant who was unaware of the proceedings was certified as a European Enforcement Order.”
Dictum: “3. European Union law must be interpreted as precluding certification as a European Enforcement Order, within the meaning of Regulation (EC) No 805/2004 of the European
Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims, of a judgment by default issued against a defendant whose address is unknown.”)
(= older decision but more recently see C-518/18)
(no refusal grounds afterwards, EEO in such a situation not available)
Regime thus sometimes (even) not available
Thus, back to beginning: aspects applicability

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Both when about applicability and about application: possible exploring issues
influences/consistencies etc. regimes
Raises questions regarding preliminary procedures:
about asking/not asking questions to CJEU,
about CJEU responding by judgment/order …
Lugano in that context, in this regard: part III, preliminary questions, judgments and
orders

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curia.europa.eu
III. PRELIMINARY RULINGS
Stepping stone: Ordonnance (Order) C-827/18 (MC)
stepping stone also for some remarks on
Provoking a decision CJEU by asking a preliminary question (= from
perspective referring national court, asking/not asking a preliminary question)
Influencing the decision (some remarks from perspective of Member
States: observations) – (also provoking that expressed on some issues/that some
issues included – “wideness” of the response in the opinion/judgment)

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curia.europa.eu
Ordonnance C-827/18: based on article 53 + article 99 rules of procedure of the Court of justice
Order C-827/18 based on article 53 Rules of procedure of the court of justice
article 53, paragraph 2 in combination with article 94:
Rules of procedure of the court of justice
Article 53 Procedures for dealing with cases
1. Without prejudice to the special provisions laid down in the Statute or in these Rules, the procedure before the Court shall consist of a written part and an oral
part.
2. Where it is clear that the Court has no jurisdiction to hear and determine a case or where a request or an application is manifestly inadmissible, the
Court may, after hearing the Advocate General, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.
3. The President may in special circumstances decide that a case be given priority over others.
4. A case may be dealt with under an expedited procedure in accordance with the conditions provided by these Rules.
5. A reference for a preliminary ruling may be dealt with under an urgent procedure in accordance with the conditions provided by these Rules.
Article 94 Content of the request for a preliminary ruling
In addition to the text of the questions referred to the Court for a preliminary ruling, the request for a preliminary ruling shall contain:
(a) a summary of the subject matter of the dispute and the relevant findings of fact as determined by the referring court or tribunal, or, at least, an account of the
facts on which the questions are based;
(b) the tenor of any national provisions applicable in the case and, where appropriate, the relevant national case-law;
(c) a statement of the reasons which prompted the referring court or tribunal to inquire about the interpretation or validity of certain provisions of European Union
law, and the relationship between those provisions and the national legislation applicable to the main proceedings.

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curia.europa.eu
Quoted from Ordonnance C-827/18:
« 35 À cet égard, il est important de souligner que les informations contenues dans les
décisions de renvoi servent non seulement à permettre à la Cour de fournir des réponses
utiles, mais également à donner aux gouvernements des États membres ainsi qu’aux autres
intéressés la possibilité de présenter des observations conformément à l’article 23 du
statut de la Cour de justice de l’Union européenne. Il incombe à la Cour de veiller à ce que
cette possibilité soit sauvegardée, compte tenu du fait que, en vertu de cette disposition,
seules les décisions de renvoi sont notifiées aux intéressés (ordonnance du 6 novembre
2014, Herrenknecht, C-366/14, EU:C:2014:2353, point 17 et jurisprudence citée). »
Thus also attention information available in request for a preliminary ruling
itself/in « dossier national » (attention issues availability of information, language of
the information … when information merely available in « dossier national »)

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Case C-827/18: order also based on article 99 Rules of procedure of the court of justice
Reference to case law CJEU Brussels 1 bis and Brussels 1
Article 99
Rules of procedure of the court of justice
Article 99
Article 99 Reply by reasoned order
Where a question referred to the Court for a preliminary ruling is identical to a question on which the Court has already ruled,
where the reply to such a question may be clearly deduced from existing case-law or where the answer to the question referred for
a preliminary ruling admits of no reasonable doubt, the Court may at any time, on a proposal from the Judge-Rapporteur and after
hearing the Advocate General, decide to rule by reasoned order.
Cfr. What said previously in this presentation about what possibly (clearly) deduce from
case law other regimes (also other than Brussels 1 (bis)?) etc.
Issues for referring court (wondering if should ask question or not)/court applying
instruments, to know what is already « clear »/not - when applying Brussels 1 bis and
ultimately also when applying Lugano

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IF QUESTION, TWO SCENARIOS:
ORDER/JUDGMENT
If question, Scenario 1
If Order (article 53 paragraph 2/article 99): no judgment Court
But also Order might be interesting/relevant
Cfr. Also e.g. Orders Hrvatska (C-657/18) and Eos Matrix (C-234/18) regarding «purely
internal » or not, regarding connection with EU law, issues discrimination/violation Charter (art. 53)
cfr. Reference in orders to Pula Parking (C-551/15) and Zulfikarpasic (C-484/15)
(/confirmed that already clear/decided (art. 99))
Afterwards sometimes references to these orders in judgments
e.g. In Commerzbank reference to Order mBank C-98/20
e.g. in Parking and Interplastics to Orders C-657/18 and C-234/19

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If question, Scenario 2
If indeed procedure continues, not order but « judgment »:
(Note: if continues: at court « dossier documentaire », « analyse terminologique» … )
Ultimately influence decision/opinion of the AG also in sense « wideness » of discussion –
by way also possibly of submitting observations to the Court
- see e.g. CJEU Pula Parking, C-551/15 issue Croatian notaries and Brussels 1 bis:
observations Germany and Switzerland regarding difference Brussels 1 bis – Lugano convention
(article 3 Brussels 1 bis regulation versus article 62 Lugano convention), taken up in opinion AG C-
551/15, indicating differences between systems (cfr. Later opinion AG in case C-467/16 on Lugano itself)

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