Prof. Dr. Gerald Mäsch

EU Instruments for Cross-border Tort Disputes

Prof. Dr. Gerald Mäsch – EJTN Seminar Scandicci – 19/09/2015

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Overview

I. Jurisdiction in Cross-Border Tort Law Disputes1. Applicability of the Brussels Ibis Regulation 2. Jurisdiction under the Brussels Ibis Regulation

II. Applicable Law in Tort Law Disputes1. Applicability of the Rome II Regulation2. Check Sequence3. Specific Rules for Specific Torts4. Basic Rule: Lex loci acti commissi

Prof. Dr. Gerald Mäsch – EJTN Seminar Scandicci – 19/09/2015

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Applicability of the Brussels Ibis Regulation

Applicability in TimeSpatial ApplicabilityMaterial Applicability

Prof. Dr. Gerald Mäsch – EJTN Seminar Scandicci – 19/09/2015

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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 2015.

When are legal proceedings „instituted“?

Majority position: The lex fori decides.Minority position: Analogy to Article 32 (1) lit. a): „whenthe document instituting the proceedings or an equivalentdocument is lodged with the court.“

Prof. Dr. Gerald Mäsch – EJTN Seminar Scandicci – 19/09/2015

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Brussels Ibis Regulation: Spatial Scope of Application INo changes compared to the Brussels I RegulationNotwithstanding Recital (41), Denmark is included (O.J. 2013 L No. 79, p. 4).

Determination of the Domicile:a) Physical persons: Article 62 lex forib) Legal persons (companies): Article 63 statutory seat (UK,

Ireland and Cyprus: registred office), central administration or principal place of business

Article 6 (1): The Brussels Ibis Regulation is only applicable if thedefendant is domiciled in the EU.

Prof. Dr. Gerald Mäsch – EJTN Seminar Scandicci – 19/09/2015

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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 oragency in the EU, where the dispute arises out of the operationof 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]

Prof. Dr. Gerald Mäsch – EJTN Seminar Scandicci – 19/09/2015

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Brussels Ibis Regulation: Spatial Scope of Application IIIInternational 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

Prof. Dr. Gerald Mäsch – EJTN Seminar Scandicci – 19/09/2015

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Brussels Ibis Regulation: Material Scope of Application IArticle 1 (1) Brussels Ibis Regulation:Civil and commercial mattersExceptions 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 ofthe damage against whom it is brought must be regarded as apublic authority which acted in the exercise of public powers.”

Prof. Dr. Gerald Mäsch – EJTN Seminar Scandicci – 19/09/2015

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Brussels Ibis Regulation: Material Scope of Application IIIs the Brussels Ibis Regulation applicable?

Yes – from a EU perspective, a teacher does not exercisepublic power.

Sonntag case: A German pupil of a German secondary schoolsuffers a fatal accident during a school trip to Southern Tyrol (Italy).His parents sue the accompanying teacher for damages inancillary proceedings annexed to criminal proceedings in theBolzano (Italy) Criminal Court for causing death by negligence.The school is state-run, the teacher a civil servant. From a Germanperspective, the supervision of pupils by such a teacher is a matterof administrative law, and under German administrative law, thestate employing the teacher is solely liable for eventual damages,not the teacher himself^^.

Prof. Dr. Gerald Mäsch – EJTN Seminar Scandicci – 19/09/2015

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Brussels Ibis Regulation: Material Scope of Application IIIIs the Brussels Ibis Regulation applicable?

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.

ECJ 12/09/2013, C-49/12 - SunicoFollowing an alleged value added tax “carousel” type fraud whichhad permitted evasion of output VAT, to the detriment of the UnitedKingdom Treasury, the Revenue and Customs Commissionersbrought court proceedings in the United Kingdom and in Denmarkagainst a number of natural and legal persons, including thedefendants, who were established in Denmark, claiming damagescorresponding to the amount of VAT not paid.

Prof. Dr. Gerald Mäsch – EJTN Seminar Scandicci – 19/09/2015

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Brussels Ibis Regulation: Bases for Jurisdiction I

(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 theinsurer of the liable party, Articles 13 (2), 11 (1) (b): Place of thevictim‘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 „coselyconnected“, Article 8 (1)

Prof. Dr. Gerald Mäsch – EJTN Seminar Scandicci – 19/09/2015

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Brussels Ibis Regulation: Bases for Jurisdiction II

(5) Appearance without contesting the jurisdiction, Article 26 ECJ, 24/06/1981, 150/80 – Elefanten Schuh GmbH: Article26 does not apply only if the defendant does challenge thejurisdiction 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!

Prof. Dr. Gerald Mäsch – EJTN Seminar Scandicci – 19/09/2015

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Brussels Ibis Regulation: Bases for Jurisdiction III

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.

Prof. Dr. Gerald Mäsch – EJTN Seminar Scandicci – 19/09/2015

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Brussels Ibis Regulation: Bases for Jurisdiction IV

Article 7 (2) (cont‘d)3. Some Details

(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

Prof. Dr. Gerald Mäsch – EJTN Seminar Scandicci – 19/09/2015

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Brussels Ibis Regulation: Bases for Jurisdiction V

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

Prof. Dr. Gerald Mäsch – EJTN Seminar Scandicci – 19/09/2015

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Brussels Ibis Regulation: Bases for Jurisdiction VI

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

Prof. Dr. Gerald Mäsch – EJTN Seminar Scandicci – 19/09/2015

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II. Applicable Law in Tort Claims: The Rome II Regulation

1. 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 2009.

(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 IbisRegulation

Article 28 (1): Courts in Member States that are contractingparties 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!

Prof. Dr. Gerald Mäsch – EJTN Seminar Scandicci – 19/09/2015

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II. Applicable Law in Tort Claims: The Rome II Regulation

1. 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”.

Prof. Dr. Gerald Mäsch – EJTN Seminar Scandicci – 19/09/2015

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II. Applicable Law in Tort Claims: The Rome II Regulation

1. Check Sequence

(1) Applicability

(2) The parties‘ choice of law, Article 14

(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

A tacit choice of law by theparties’ counsellors duringcourt proceedings is possible!

Practice advice

Prof. Dr. Gerald Mäsch – EJTN Seminar Scandicci – 19/09/2015

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II. Applicable Law in Tort Claims: The Rome II Regulation

2. 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