In his Opinion in C-774/22 JX v FTI Touristik, Advocate Basic Emiliou in my view is spot on for each core parts of the case. A shopper domiciled in Germany points a declare in opposition to a tour operator additionally established in Germany in relation to a contract for a bundle of journey providers booked by that shopper for a visit overseas. Does Brussels Ia apply and does the patron title of the Regulation assign territorial in addition to nationwide jurisdiction?
The journey is offered as a bundle vacation. That’s related, for the patron title doesn’t apply to mere contracts of transport. The patron within the case at subject means that the operator failed in its duties underneath the Bundle Journey Directive to tell ia re visa necessities and brings a case in his domicile, Nuremberg (versus Munich, the defendant’s domicile).
The AG is totally proper to spend a mere two paras on the territorial jurisdiction subject. The reply follows from the very wording of the patron title. (18):
The referring courtroom’s doubts regarding the operate of the discussion board actoris rule for shoppers name for a swift response. It stems from the very wording of Article 18(1) of the Brussels I bis Regulation. A comparability of the 2 provisions it comprises is enlightening in that regard. The discussion board rei rule refers back to the ‘courts of the Member State’ by which the skilled is domiciled. Against this, the discussion board actoris rule refers back to the ‘courts for the place’ the place the patron is domiciled. That terminological distinction shouldn’t be trivial. It’s designed exactly to point that, whereas the primary rule merely confers worldwide jurisdiction on the courts system of the designated State, taken as an entire, the second rule provides each worldwide and territorial jurisdiction to the courtroom for the locality of the patron’s domicile, regardless of the allocation of jurisdiction in any other case supplied for by the foundations of process of that State.
On the subsequent subject, the worldwide factor, the AG refers back to the dialogue in German scholarship on ‘false inner circumstances’ (unechteInlandsfälle). Does the international vacation spot of the journey give the contractual relationship a world character? (29) ff he finds help within the broad conception of the worldwide factor in BIa typically. Owusu after all, Lindner, ZN v Bulgarian Consulate, IRnova and most lately Inkreal are all related authority.
(33) The AG refers to some clear examples of what the bulk view would name unechteInlandsfälle which indisputably nevertheless are caught by Brussels Ia:
For example, the place a courtroom of a Member State is known as upon to find out a case which, on the one hand, includes two litigants domiciled in that State however, on the opposite, pertains to a tort that came about overseas, or the tenancy of an immovable property positioned abroad, the Brussels I bis Regulation applies.
Emiliou AG shouldn’t be a fan of ZN v Bulgarian Consulate not as a result of it considered the case as being worldwide however moderately as a result of it depends an excessive amount of on the definition of ‘worldwide’ within the European Order for Fee Regulation 1896/2006 (respective domiciles of the events and the seat of the courtroom seised). (38-39)
On the one hand, Regulation No 1896/2006 was adopted to deal with the difficulties confronted by collectors in search of to get better uncontested claims from debtors in different Member States. It’s aimed toward simplifying and rushing up the restoration of such claims, by the creation of a uniform process permitting a creditor to acquire, from a courtroom of a Member State, a judicial determination on such a declare, which may simply be enforced within the Member State the place the debtor’s belongings are positioned, whereas guaranteeing a degree enjoying subject by way of rights of defence all through the European Union. The definition of ‘cross-border case’ given in that regulation – based mostly on the respective domiciles of the events and the seat of the courtroom seised – has a sure logic in that context. The place the events are domiciled in the identical State, the cures supplied by the courts of that State, underneath its procedural regulation, are normally adequate to make sure that the creditor swiftly recovers his or her declare. Subsequently, the process laid down in that regulation shouldn’t be needed.
However, the Brussels I bis Regulation purports to unify the foundations of conflicts of jurisdiction in civil and industrial issues. That definition is simply too slender and, thus, ill-suited for that goal. As defined in factors 32 and 33 above, questions of worldwide jurisdiction might come up even the place the litigants are domiciled in the identical Member State and the courts of that State are seised. Furthermore, that instrument additionally comprises guidelines on recognition and enforcement of judgments given by the courts of the Member States. To be match for goal, these guidelines should apply every time the authorities of a Member State are required to recognise or implement a choice delivered by a courtroom of one other Member State, even the place it considerations an inner dispute between two individuals domiciled within the latter State. That definition additionally doesn’t accommodate that scenario.
(41) the AG insists the CJEU now not check with the OFP Regulation in deciphering Brussels Ia:
I urge the Courtroom to chorus, sooner or later, from referring to Regulation No 1896/2006 in that context. Ought to the Courtroom want to draw inspiration from, and to make sure consistency with, different devices on that subject, [Rome I and Rome II] match the invoice higher, as can be seen beneath.
(I’ve up to now voiced concern with an excessive amount of BIa /RI and II parallel as has the CJEU itself in Kainz).
Extra normally although and away from purposive building in mild of different PIL devices, the AG opines straightforwardly that the vacation spot of the journey constitutes a related ‘worldwide factor’ for the needs of BIa.
The place of vacation spot of the journey can be the place the place, underneath the bundle journey contract, (most of) the providers had been supplied or ought to have been supplied to the traveller (the flight would land close by, the resort be located there, and so forth). In different phrases, that contract was, or ought to have been, primarily carried out there. For my part, the place a courtroom of a Member State is known as upon to find out a dispute associated to the efficiency of a contract, and the place of efficiency is out of the country, that issue is ‘akin to to boost questions referring to the willpower of the worldwide jurisdiction of that courtroom’. (Reference to Richard de la Tour AG in Inkreal).
CJEU Lindner on the jurisdictional degree echoes in (45) within the AG’s reference to Rome I:
An analogy will also be made, for my part, with the Rome I Regulation and the related case-law of the Courtroom. Just like the Brussels I bis Regulation with respect to jurisdiction, that instrument determines the regulation relevant to a contract the place the scenario ‘involv[es] a battle of legal guidelines’. In that regard, it stems from the case regulation of the Courtroom that the foundations of the Rome I Regulation are relevant to any contractual relationship with a ‘international factor’. Certainly, it’s only the place such a contract has connections with a rustic (or international locations) aside from that of the courtroom seised that that contract might probably be ruled by totally different, conflicting nationwide legal guidelines, and that courtroom might marvel which regulation to use with a purpose to resolve a dispute. Pursuant to the identical case regulation, that idea of ‘international factor’ shouldn’t be restricted to the respective domiciles of the contracting events. The truth that the contract is to be carried out abroad constitutes such an ‘factor’. A connection of that sort clearly ‘involv[es] a battle of legal guidelines’. The courtroom seised can ponder the chance that the regulation of the nation of efficiency might apply as an alternative of its personal. [Much appreciated reference in footnote to the 2nd ed of the Handbook, 2016, GAVC]. Thus, the foundations of that regulation are essential to resolve that battle.
The considerably convoluted reasoning by which the CJEU got here to worldwide factor in Maletic (the place the Courtroom might simply as nicely merely had referred to the international vacation spot of the journey) is defined by the AG (49) by the truth that the true issue in that case was on which celebration to anchor the discussion board solutionis evaluation.
(56) In additional help comes Article 18(1)s’ ‘whatever the domicile of the opposite celebration’, clearly designed with third States events in thoughts, is broad sufficient to seize the scenario the place the provider is domiciled in the identical the Member State as the patron.
Geert.
EU Non-public Worldwide Legislation, 4th ed 2024, 2.22 ff and a pair of.233 ff.