Presentation 29 September 2021 (extensive version)

1. European Law and National Procedural
Law
Some considerations following a few cases of the
European Court of Justice regarding cross-border
debt recovery in the EU
Veerle Van Den Eeckhout
29 September 2021

2. www.mpi.lu
Title/topic this presentation: cfr. Journal article written in Dutch 2020
And cfr. Efforts: parts report case law Luxembourg
Case law Court, mainly: Rebecka Jonsson, Bondora, Salvoni, Parking and Interplastics, ZSE
Energia
(+ some national decisions Belgian Constitutional Court and Court Appeal France)
Already some discussed in previous RR by others
Now particular perspective (not exhaustively discussing cases)
touched, will touch issues such as (selection of these in this presentation):
interchange, influence one regime on another,
allegations discrimination,
issues consistency/inconsistency,
balance of check and sanction mechanisms,
issue of possibly making more uniform or not
Perhaps also useful more, future Efforts deliverables (policy recommendations EU,
final study…?/as reflections and considerations as such, proceeding in analysis) (cfr.
Extensive PowerPoint, contains more than what will say during presentation – but
tried visualize in PowerPoint)
29 September 2021
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3. www.mpi.lu
Perspective, approach: two main perspectives:
* First perspective: perspective relationship European law – national procedural law
distinguishing thereby two types:
national procedural law as part of
European procedure (EPO and ESCP)
national procedure next to, beside
European procedure (EPO and ESCP)
result: variety regimes, options at disposal plaintiff
* Other perspective: when discussing relationship above, also perspective
defendant – particularly defendant-consumer
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Part
National
procedural
law
National
procedure
Part
national
procedural
law

4. www.mpi.lu
First type of relationship European Law/national procedural law:
“part of”: European procedure, National procedural law part of it
Some notes:
National procedural law part of: Two ways
clear reference/not in regulation itself (“rest”)
See e.g. articles 25 EPO and 17 ESCP/26 EPO and 19 ESCP
Illustration second way: what and how
CJEU Rebecka Jonsson on ESCP
what (was asked to CJEU if European uniform or left to national)
how: procedural autonomy MS but …
(note: attention how here principles effectiveness and equivalence, as compared to e.g. reference to them in
CJEU Banco Espanol)
Cfr. Pending case CJEU on EPO, C-18/21
difficulties sometimes to know if European/left to national
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Part National
procedural
law
Part National
procedural
law
(as part of
European
regime)

5. www.mpi.lu
In any case currently there are national differences (allowed as long as respect …)
Future: European regime ? More/less uniform?
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Part National procedural law
Country X
Part National
procedural law
Country Y
Part National
procedural law
Part European
uniform
procedural law
European
uniform
procedural
law?

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Consequences Currently, differences: complications whereas national variety but also
Options plaintiff (e.g. language/fees etc.) as far as options jurisdiction
Cfr. currently OPTIONS other ways:
options between European and domestic (ordinary/special) (second model
relationship) – Will make some comments (is second type relationship European Law/national procedural
law)
Meanwhile also some comments on still another way of having options
options between European regimes themselves (especially EPO – ESCP – choice e.g.
based on difference jurisdiction rules; but also Brussels 1 bis/EEO regarding
enforcement domestic procedure)
29 September 2021
Part National
procedural law
Country X
Part National
procedural law
Country Y
National
procedure
Brussels
I bis or
EEO
National
procedure
Own
part
enforc
ement
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Second type of relationship
European law/National procedural law:
“Next to”
Cfr. European procedures (with enforcement if so) next to domestic
(Domestic: + Brussels 1 bis/possibly EEO if so)
Some notes below (starting from EPO and ESCP versus national procedure)
and also below some notes comparisons Brussels 1 bis next to EEO/broader
(European regimes as compared to each other, influence Brussels 1 bis
national, …)
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National
procedure
Part national
procedural
law

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Next to: as EPO and ESCP OPTIONAL
Goals uniform procedures: quick, easy …
idea fair, balance (cfr. e.g. nr. 37 CJEU Eco Cosmetics)
but e.g. opinion nr. 104 AG in Bondora
Thus: may be advantageous for plaintiff European procedure (not necessarily but …) compared to
national procedural
If so: discrimination ?? (from perspective plaintiff in domestic procedure, more burdensome) See Constitutional court Belgium 12
October 2017: laconic, “no discrimination”, different situation international - national
Compare
EAPO French decision Paris Court of Appeal 28 January 2021: “discrimination”, impact on domestic French procedure
Court Belgium: can be (can co-exist as such, may live together). French court: also other then plus
So: (“plaintiff”/creditor)
From perspective plaintiff: + European versus – national Belgian Court: can remain + and -
From perspective plaintiff: + European versus – national French Court: must become + and +
Remark hereby, whereas Belgian constitutional court: “international” versus “national”: “international”?/”national”? (may be
“international” but not fulfilling requirements regimes/may be “national” procedure but …)
International in special sense EPO and ESCP
May make international (thus possibility benefit European regime, with its advantages)? (Not yet CJEU)
Issue Already CJEU: issue case Bondora (to what extent “advantage” when using European regime)
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National procedure

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Bondora, EPO
Bondora
About Directive 93/13/EEC unfair practices in consumer contracts and EPO
Cfr. National procedure Spain, opinion and judgment
Opinion nr. 134 and Judgment nr. 51: “Not allow circumvent” (not undermine) (requirements
Directive and article 38 Charter),
(seen above: court Belgium: one plus, other min: can be (plus and one from perspective plaintiff;
comparing international with national). French court: also other (national) should be plus, from
perspective plaintiff (no discrimination).
Here, CJEU: also one (European) min (from perspective protection defendant/consumer, not
undermine protection, not less protection there defendant, so no advantage plaintiff there)
So from perspective plaintiff: + (?) European versus – national CJEU, regarding
European: - and -
CJEU: not undermine protection consumer, perspective consumer protection
- perspective rights defendant?
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Spanish National
procedure

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Is regarding mechanism check Directive (focused on in Bondora) – limited to this?
Looking wider, mechanisms check and sanction – e.g. jurisdiction issues/…? (Bondora “boost” e.g.
for EPO check and sanction possibilities jurisdiction issues particularly regarding
consumers/defendants/possible reasonings based i.a. on (considerations in) Bondora?)
Taking into account, looking at EPO and also ESCP:
During enforcement/during procedure
EPO no refusal ground jurisdiction in sense Brussels 1 bis jurisdiction
but on the other hand review
issue perhaps wider than refusal grounds Brussels 1 bis (but Thomas cook, but
… ) as now at least (“wrongly issued”)
(attention if streamline review EPO with review mechanism ESCP)
(review EPO and ESCP: (no need during enforcement - but at court origin) if
granted, touched “in the heart”, “disappears”, whereas refusal Brussels 1 bis only not enforced in
country enforcement) (review EPO and ESCP with Court origin, but as far as allowed: touched in
heart, disappears (compared to Brussels 1 bis where refusal grounds but MS enforcement)
during procedure? quick etc., seemingly not large possibilities to check
EPO and ESCP (and EEO cfr. Discussion below) pure shift compared to Brussels 1 bis?
ESCP: “stripped-down” version Brussels 1 bis? (in essence lost possibility sanctioning violation
jurisdiction rules protecting consumers once ESCP (if errors by judge in ESCP) – no refusal
ground/seemingly no alternative refusal ground)
(might think in itself balance (with issue in any case court origin instead of MS enforcement), but
sometimes just lost possibilities check/sanction?)
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When comparing (above: EPO/ESCP - also in comparison with Brussels 1 bis - and national
procedures – cfr. Jurisdiction rules, consumer protection etc.), broader: Salvoni
Salvoni about Brussels 1 bis: check by judge at stage certificate (when appears that was wrong, 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)
Salvoni opinion nr. 72 reference EEO (there obligation check, if requirements not fulfilled no
possibility obtain certificate – difference Brussels 1 bis)
Possibility issue EEO compared to Brussels 1 bis with refusal grounds/without refusal grounds
Seems EEO more severe in this regard (as no refusal ground, but requirement), or might say shift, at
other stage check, but perhaps in substance same?
Broader comparison EEO and Brussels 1 bis, can see/imagine various situations:
- Cfr. May say on the one hand e.g. Cornelius de Visser, defendant without known address no
certificate EEO (Brussels 1 bis: possible but refusal ground): EEO not (at all) possible, Brussels 1
bis with refusal ground (nr. 57 judgment comparing EEO with Brussels 1 bis: no refusal ground in
EEO)
- but attention also imaginable EEO possible, Brussels 1 bis with refusal ground e.g. employees
(refusal ground in Brussels 1 bis, no requirement EEO) – risk “undermine” protection employees
regarding issues jurisdiction by choosing for EEO
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National
procedure
Brussels
I bis
EEO
National
procedure

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(so pure shift/more severe/less severe when it comes to respect rights of defence
defendant, rights of defendants?)
Above not possible EEO but possible Brussels 1 bis but with refusal
ground with Cornelius and Salvoni; thus plusminus shift?
(with issue refusal ground that have to come up with oneself, in country
enforcement versus cannot be obtained, if wrongly delivered might ask withdrawal, can
thus disappear, in court of origin though)
Perhaps more severe especially might think situation consumer-
defendant, Vapenik but if other concept consumer with EEO (more severe: seemingly
also active consumer, and absolute jurisdiction rule) than EEO not possible while
Brussels 1 bis possible without even refusal ground (not possible EEO, possible
Brussels 1 bis without even refusal ground)
But other hand: employees EEO can undermine Brussels 1 bis, more
lenient.
(= comparing requirements EEO – refusal grounds Brussels 1 bis – possibility issue
EEO/possibility Brussels 1 bis with/without refusal ground; EEO, taking thereby
into account also EEO if “wrongly” issued: withdrawal/rectification EEO: possibility to
sanction if errors EEO itself, should go to court origin, but if withdrawal: “disappears”)
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= about EEO and Brussels 1 bis, at occasion Salvoni. Secondly: Salvoni also broader,
EPO and ESCP
EPO and ESCP – procedure with regime enforcement, compared to Brussels 1 bis/EEO
Foregoing is in comparison between Brussels 1 bis and EEO.
If continue on what in Salvoni regarding check rules, remedies and article 47 Charter
but broader, on occasion what said in Salvoni: Brussels 1 bis and EEO but also Brussels
1 bis and EEO and EPO/ESCP (cfr. Again what already above)
EPO and ESCP: no refusal ground whatsoever, at all in sense refusal grounds
jurisdiction Brussels 1 bis
EPO and ESCP review mechanism but … especially attention ESCP (ESCP
“stripped-down” version Brussels 1 bis)
during procedure? especially attention EPO (EPO on the other hand review
mechanism, including “wrongly” issued, with perhaps possibilities – and wide effect if
granted - but attention i.a. CJEU Thomas Cook – risk streamlining with ESCP)
Looking at EPO and ESCP from what said/considered in Salvoni?
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Enforce
ment

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When comparing, last case, including issues Brussels 1 bis: Parking and
Interplastics national Croatian procedure, with Brussels 1 bis
(EEO mentioned but set aside: not uncontested), issue discrimination and violation
charter fundamental rights
Some particular notes. Two remarks, notes below:
(1) internationality, cross-border
(2) allegations discrimination
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Brussels I bis
(not possible, no circulation)
Special Croatian
procedure

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(1) Internationality, cross-border (as first note on Parking and Interplastics)
Reference in nr. 34 judgment discussing “cross-border”, Brussels 1 bis,
to EPO/Bondora, and said nr. 35 “harmonized interpretation”
seems wide but
cfr. ESCP (same as EPO): ZSE Energia, with reference document
COM(2013)794 final: narrow, in any case different Brussels 1 bis
cfr. remark EEO opinion nr. 25 Zulfikarpasic about internationality and
differences
reference “consistency”, harmonized but European legislator?
(cfr. Issue future here: how proceed internationality, cross-border? Before: in
context discrimination, Belgian Court, “availability” of a regime. Cfr. On this second
remark, but now other point:
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(2) Allegations discrimination (as second note on Parking and Interplastics)
(issue procedure stopped/procedure continued, without possibility recognition Brussels 1 bis (as was
already said in previous case law regarding Croatian procedure and Brussels 1 bis)
-Perspective plaintiff
-Perspective defendant (compare constitutional court situation defendant better off national
procedure – here defendant worse off national procedure?)
-Remarks reverse discrimination/effect international on national (usually: can international, cannot
national – cfr. Family law etc. (same-sex, previously divorce …); here: cannot international –
issues i.a. effect national? (not allowed procedure at all? Previous case law already: said no
condemnation national procedure)
-Discrimination cfr. Above already constitutional court Belgium and on EAPO French decision,
where looked from perspective plaintiff who worse off in national procedure (Belgian case: in fact
effect defendant better off national procedure); here particular situation Croatian plaintiff/might
also look from perspective Croatian defendant
-Here, this particular context, case:
-Court only said
-Not because not Brussels 1 bis that not allowed
(about impact Brussels 1 bis on national)
-This case no violation charter/non-discrimination
-no intention influence national
-But appears, emerges here and broader how position plaintiff/defendant may vary
and how allegations discrimination before Court/national judge, gives glimpse
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Special
Croatian
procedure
Brussels I
bis
(not
possible, no
circulation)

17. www.mpi.lu
All in all: Issues discrimination different levels, different comparisons regimes, sometimes influences etc.
Said: Bondora (no less protection in Spain when using EPO in Spain than when using domestic in Spain)
Future?
Perspective this presentation (cfr. Previously described):
interaction (influence/dynamics – distinguished/pointed out in article cfr. tried out before courts i.a.):
influence Cfr. National Spanish – EPO Spanish Bondora: from min domestic to (interpretation) min
(less plus than applied by some) international (from perspective defendant, not undermine rights defendant
by allowing using international whereby less protection defendant)
and decisions constitutional court Belgium versus French decision EAPO (from plus international
keep living alongside with min national for plaintiff/creditor (whereby said no discrimination), versus from
plus international to plus (more plus) national from perspective plaintiff/creditor, argument no discrimination
plaintiff/creditor
Parking and Interplastics might be seen from different perspectives
perspective plaintiff and perspective defendant, particularly consumer-defendant?
with allegations perspective plaintiff – defendant (which regime, if options: left to arbitration plaintiff –
spectrum of colours, with some dark shadows looking from perspective defendant)
and also related to that issue scope, cfr. Cross-border/…
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some issues might be taken up in future by CJEU (or national courts)/by European legislator
himself (and we occasion policy recommendations for EU legislator in context Efforts/final
study Efforts),
Some issues presented hereby (with question if each regime an sich as such in itself fair and
balanced, albeit otherwise organized than others, or really deprived some rights/defenses in
certain regimes as compared to other, and if so if justified) (with issue if as far as difference
allowed in any case fair as such, each, balanced??)
Thus touching, touched issues such as
interchange, influence regimes on each other,
allegations discrimination, consistency/inconsistency, balance of check/sanction
mechanisms
possibly make more uniform or not
– selection of these in this presentation
Presented some reflections, as written down previously
Relevance e.g. also for policy recommendations EU/other future Efforts-deliverables such as
final study)/as reflections and considerations as such proceeding in analysis?
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