EU Instruments for Cross-border Tort Disputes. Prof. Dr. Gerald Mäsch

Size: px

Start display at page:

Download "EU Instruments for Cross-border Tort Disputes. Prof. Dr. Gerald Mäsch"

Dulcie Kennedy
5 years ago
Views:

1 EU Instruments for Cross-border Tort Disputes Prof. Dr. Gerald Mäsch

2 2 Overview I. Jurisdiction in Cross-Border Tort Law Disputes 1. Applicability of the Brussels Ibis Regulation 2. Jurisdiction under the Brussels Ibis Regulation II. Applicable Law in Tort Law Disputes 1. Applicability of the Rome II Regulation 2. Check Sequence 3. Specific Rules for Specific Torts 4. Basic Rule: Lex loci acti commissi

3 3 Applicability of the Brussels Ibis Regulation Applicability in Time Spatial Applicability Material Applicability

4 Brussels Ibis Regulation: Scope of Application

apply only to legal proceedings instituted on or

Minority position: Analogy to Article 32 (1) lit.

4 4 Brussels Ibis Regulation: Scope of Application in Time Article 66 (1) This Regulation shall apply only to legal proceedings instituted on or after 10 January When are legal proceedings instituted? Majority position: The lex fori decides. Minority position: Analogy to Article 32 (1) lit. a): when the document instituting the proceedings or an equivalent document is lodged with the court.

5 5 Brussels Ibis Regulation: Spatial Scope of Application I No changes compared to the Brussels I Regulation Notwithstanding Recital (41), Denmark is included (O.J L No. 79, p. 4). Article 6 (1): The Brussels Ibis Regulation is only applicable if the defendant is domiciled in the EU. Determination of the Domicile: a) Physical persons: Article 62 lex fori b) Legal persons (companies): Article 63 statutory seat (UK, Ireland and Cyprus: registred office), central administration or principal place of business

6 6 Brussels Ibis Regulation: Spatial Scope of Application II The domicile of the defendant is irrelevant in the case of (1) Article 11 [Insurance Disputes, if insurer has a branch or agency in the EU, where the dispute arises out of the operation of this branch] (2) Article 18 (1) [ Consumer Disputes] (3) Article 21 (1) [Employment Disputes] (4) Article 24 [Exclusive Jurisdiction] (5) Article 25 [Prorogation of Jurisdiction]

7 7 Brussels Ibis Regulation: Spatial Scope of Application III International setting = cross-border connecting factors needed Do only situations involving connecting factors with two or several Member States fall within the Regulation s scope? No, ECJ 1/03/2005, C-281/02 Owusu v. Jackson

8 8 Brussels Ibis Regulation: Material Scope of Application I Article 1 (1) Brussels Ibis Regulation: Civil and commercial matters Exceptions in Article 1 (2) (of no interest in tort cases). ECJ 29/76 LTU v Eurocontrol [1976] ECR 1541, ECJ, 21/04/1993, C-172/91 - Sonntag Claims for damages fall outside the scope of the [Brussels] Convention [= Brussels Ibis Regulation] only where the author of the damage against whom it is brought must be regarded as a public authority which acted in the exercise of public powers.

9 9 Brussels Ibis Regulation: Material Scope of Application II Is the Brussels Ibis Regulation applicable? Sonntag case: A German pupil of a German secondary school suffers a fatal accident during a school trip to Southern Tyrol (Italy). His parents sue the accompanying teacher for damages in ancillary proceedings annexed to criminal proceedings in the Bolzano (Italy) Criminal Court for causing death by negligence. The school is state-run, the teacher a civil servant. From a German perspective, the supervision of pupils by such a teacher is a matter of administrative law, and under German administrative law, the state employing the teacher is solely liable for eventual damages, not the teacher himself^^. Yes from a EU perspective, a teacher does not exercise public power.

10 10 Brussels Ibis Regulation: Material Scope of Application III Is the Brussels Ibis Regulation applicable? ECJ 12/09/2013, C-49/12 - Sunico Following an alleged value added tax carousel type fraud which had permitted evasion of output VAT, to the detriment of the United Kingdom Treasury, the Revenue and Customs Commissioners brought court proceedings in the United Kingdom and in Denmark against a number of natural and legal persons, including the defendants, who were established in Denmark, claiming damages corresponding to the amount of VAT not paid. Yes a public office, when claiming damages based on tort in a civil court, does not exercise public powers, but acts like any private party.

11 Brussels Ibis Regulation: Bases for Jurisdiction I 11 (1) Prorogation of jurisdiction, Article 25 (2) Locus delicti commissi, Article 7 (2) (3) Direct action by a victim of a road traffic accident against the insurer of the liable party, Articles 13 (2), 11 (1) (b): Place of the victim s domicile, if a direct action is admissible under the applicable law (Article 18 Rome II Reg.), ECJ, 13/12/2007, C- 463/06 Odenbreit (4) The domicile of a co-defendant if both claims are cosely connected, Article 8 (1)

12 Brussels Ibis Regulation: Bases for Jurisdiction II 12 (5) Appearance without contesting the jurisdiction, Article 26 ECJ, 24/06/1981, 150/80 Elefanten Schuh GmbH: Article 26 does not apply only if the defendant does challenge the jurisdiction not later than the making of the submissions which under national procedural law are considered to be the first defence addressed to the court seised. All of these provisions do also cover the domestic jurisdiction!

13 Brussels Ibis Regulation: Bases for Jurisdiction III 13 In particular: Article 7 (2) 1. What are matters relating to tort, delict or quasi-delict? Any claim for damages not based on contract, ECJ 27/09/1988, C-189/87 Kalfelis/Schröder 2. Where is the place where the harmful event occurred or may occur? The notion covers both the place where the damage occurred and the place of the event giving rise to it, ECJ 30/11/1976, C-21/76, Bier/Mines de Potasse The defendant may be sued, at the option of the plaintiff, at either place.

14 Brussels Ibis Regulation: Bases for Jurisdiction IV Some Details Article 7 (2) (cont d) (1) (a) The place where the causal harmful event occurred the place where the tortfeasor acted or should have acted (b) No jurisdiction over one of several joint tortfeasors at the place where one of the others acted, ECJ 16/05/2013, C-228/11 Melzer

15 Brussels Ibis Regulation: Bases for Jurisdiction V 15 Article 7 (2) (cont d) (2) (a) The place where the damage occurred the place where the event giving rise to he liability produced its harmful effects upon the victim, ECJ 07/03/1993, C-68/93 - Shevill. (b) Only the first harmful effects of the event are taken into account, not consequential damage (c) The court seised on the basis of the place where the alleged damage occurs may only decide on the damage caused in the territory of that State ( Mosaic Theory ), ECJ Shevill

16 Brussels Ibis Regulation: Bases for Jurisdiction VI 16 Article 7 (2) (cont d) (c) Where does the damage occur in cases of pure economic loss? In the place where the economic interest in question is located. This place is to be distinguished from the domicile of the claimant, ECJ 10/06/2004, C-168/02 Kronhofer For jurisdiction in cartel damage cases s. ECJ 21/05/2015, C- 352/13 CDC/Akzo Nobel

17 II. Applicable Law in Tort Claims: The Rome II Regulation Applicability of the Rome II Regulation (1) Applicability in time, Articles 31, 32: The Regulation applies to events giving rise to damage which occur on or after 11 January (2) Spatial applicability: The Reg. does not apply in Denmark (Recital 40), but in the rest of the EU without the need of an additional connecting factor like for the Brussels Ibis Regulation Article 28 (1): Courts in Member States that are contracting parties to the Hague Convention of 4 May 1971 on the law applicable to traffic accidents have to apply the Convention, not the Rome II Regulation!

18 II. Applicable Law in Tort Claims: The Rome II Regulation Applicability of the Rome II Regulation (cont d) (3) Material Applicability (a) Basic rule: Articles 1 (1), 4 (1): inter alia to any non-contractual obligation arising out of a tort/delict (b) Exceptions, Article 1 (2): lit. d): damage claims arising out of the law of companies lit. f): damage claims arising out of nuclear damage lit. g): non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation.

19 II. Applicable Law in Tort Claims: The Rome II Regulation Check Sequence (1) Applicability Practice advice (2) The parties choice of law, Article 14 A tacit choice of law by the parties counsellors during court proceedings is possible! (3) Specific provisions for specific torts (Articles 5 to 9); N.B.: No specific provision for road accidents! (4) Article 4 (2): the law of the country where both victim and tortfeasor had their habitual residence at the time of the tort (5) Article 4 (1), basic rule: lex loci acti commissi (6) Article 4 (3): Escape clause

20 II. Applicable Law in Tort Claims: The Rome II Regulation Basic rule, Article 4 (1): The law of the country in which the damage occurs applies 3. Important deviation in cases of traffic accidents: (1) Article 17 (local data theory) (2) Article 18: Direct actions against insurer

Cross-Border Traffic Accidents: Jurisdiction and Applicable Law:

Cross-Border Traffic Accidents: Jurisdiction and Applicable Law: An Introduction to the Relevant Rules of Private International Law Thomas Kadner Graziano In Europe, there exist two international instruments