In my August conflict of laws exams I asked the students the following question:
In Case C-494/23 Maha, facts are as follows. On 19 August 2017, applicants purchased a motor vehicle in Germany. On 12 September 2017, the vehicle was seized by the Police of the Czech Republic on the ground that it is the subject of suspicion of the criminal offence of theft committed in France. Subsequently, the Police placed the vehicle in custody. Applicants then filed an application with the Czech court for the release of the vehicle from custody.
Given that, in previous proceedings, other persons had claimed a right to the vehicle, according to Czech law consent of all of the persons concerned is required for the release of the subject of custody, or the substitution of their consent by a court ruling. Consequently, applicants filed an application with the same court against defendants resident in France, for the substitution of their consent to the release of the item from custody. The defendants did not attend the proceedings
The CJEU is asked to determine
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- whether proceedings concerning the substitution of the defendant’s consent to the release of an item from judicial custody in which the item was placed by a law enforcement authority in criminal proceedings, falls within the autonomous term of EU law of a ‘civil and commercial matter’ as defined in Brussels Ia.; and
- if it indeed does fall within that term, whether an application initiating such proceedings may be deemed to constitute an application in ‘any other third-party proceedings’ within the meaning of A8(2) Brussels Ia.
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How in your view should the CJEU respond? Answer both questions, even if you argue that the answer to question 1 should be in the negative.
I was of course expecting students to review the core ‘civil and commercial’ cases as reviewed extensively on the blog -and in class; I don’t just ask students to read the blog ;-¬ , to highlight the continuing confusion /uncertainty, and to make a determination either way.
My two cents was on the claim indeed being civil and commercial. It is a claim in the periphery of a criminal investigation yet the claim itself is one in pure restitution /confirmation of ownership, between parties neither of whom are public authorities, where no extraordinary powers are being used by any of the parties involved.
The CJEU held differently two weeks ago. It is imo indicative of the state of confusion over this core trigger for Brussels Ia that another commentator, perfectly legitimately, finds the judgment ‘not surprising’.
Consider the reasons for the referring court to suggest the case might be civil and commercial, [19]:
The referring court is of the opinion that certain considerations lead to the conclusion that the proceedings for substituting consent to the release from court custody come within the concept of ‘civil and commercial matters’ within the meaning of Article 1(1) of Regulation No 1215/2012 and, consequently, within the material scope of that regulation. Accordingly, the purpose of court custody is to dispel, in the context of a civil action, any doubt as to which of the persons concerned may have the item returned to them by reason of a right to property or another right. Furthermore, those proceedings, which are inter partes, are governed by rules of civil procedure, more specifically by those relating to special court proceedings.
I won’t repeat all the references included by the CJEU seeing as they are the classic ones (all reviewed on the blog); this time the core port of call would seem to have been Lechouritou where the Court had summarised its position (in 2007) and with reference to other classics [Eurocontrol, Rüffer [7]; Gemeente Steenbergen [28]; Préservatrice foncière TIARD SA v Staat der Nederlanden [20]; Land Oberösterreich v ČEZ [22]] as follows:
It is to be remembered that, in order to ensure, as far as possible, that the rights and obligations which derive from the Brussels Convention for the Contracting States and the persons to whom it applies are equal and uniform, the terms of that provision should not be interpreted as a mere reference to the internal law of one or other of the States concerned. It is thus clear from the Court’s settled case-law that ‘civil and commercial matters’ must be regarded as an independent concept to be interpreted by referring, first, to the objectives and scheme of the Brussels Convention and, second, to the general principles which stem from the corpus of the national legal systems …
According to the Court, that interpretation results in the exclusion of certain legal actions and judicial decisions from the scope of the Brussels Convention, by reason either of the legal relationships between the parties to the action or of the subject matter of the action …
Thus, the Court has held that, although certain actions between a public authority and a person governed by private law may come within the scope of the Brussels Convention, it is otherwise where the public authority is acting in the exercise of its public power.
Core of the CJEU’s Lechoritou reference in current case is in [44]. The referring court and the claimants had argued that the preliminary proceedings take place between individuals not involving law enforcement authorities, that the procedure is inter partes and that the detailed rules for its exercise are governed by rules of civil procedure (the kind of arguments which in other cases assisted in coming to a finding of ‘civil and commercial’). In Mahá the CJEU answers [44] with reference to Lechoritou ([41)}
the fact that the plaintiff acts on the basis of a claim which arises from an act in the exercise of public powers is sufficient for his action, whatever the nature of the proceedings afforded by national law for that purpose, to be treated as being outside the scope of the Brussels Convention
Pro memoria: Lechoritou involved a claim by Greek nationals against the German State, on the basis of a nazi massacre in 1943. A money claim by private individuals against a foreign state (unlike current case between private parties) directly ‘arising from’ the ultimate act of sovereign power namely warfare.
The situation in current case is very very different.
[36] the CJEU insists that the current action is “based on” –I do not think it is: it follows from it, it is not based on it– “the seizure proceedings ordered by the law enforcement authorities and the placing of the property in question in the custody of the court.” This, it says [36] “is an essential prerequisite for the release of the property from the custody of the court and the restoration of the property” and [37] “It follows that, in the light of both its subject matter and its basis, since proceedings to substitute consent are inextricably linked to the seizure of the property at issue by the law enforcement authorities and to the subsequent placing of the property in the custody of the court, they cannot be examined without having regard to those proceedings.” (emphasis added)
This focus on ‘inextricably linked’, the ‘prerequisite’ of the property claim and the vicinity of the criminal proceedings brings us close in my view to the context criterion adopted by the Court in Kuhn and in my view is likely to lead to yet further confusion, as well as forum shopping possibilities. There is an infinite amount of civil claims which are inextricably linked to criminal proceedings which are the prerequisite of the civil claim at issue or arise form such a claim. Take libel actions which in many States are a criminal offence, or take follow-on damages claims in competition law or unfair competition: both are criminally sanctioned in all EU Member States. Leaving it up to national courts to decide whether the link is intimate enough to warrant exclusion from Brussels Ia is likely to endanger Brussels Ia’s number one DNA, which last time I looked, continues to be predictability.
Geert.
EU private international law, 4th ed. 2024, Heading 2.2.2.2.
