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European Union Regulations concerning the breach and cancellation of contracts

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Abstract

This article intends to analyze in European Private International Law how Regulation (EU) n° 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), very often called Brussels I bis Regulation, determines which Court of a Member State of the European Union may have jurisdiction for the resolution of disputes concerning a breach or cancellation of a contract. But it also describes afterwards how Regulation (EC) n° 593/2008 on the law applicable to contractual obligations, called Rome I Regulation, decides on the law applicable to such disputes.

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Notes

  1. Regulation (EU) n° 1215/2012, OJ L 351, 20.12.2012, pp. 1–32. I will only analyze this regulation, because it is the one with the largest material scope concerning questions of jurisdiction in the field of the present topic, and I will not have the material possibility to mention out of court resolution disputes

  2. Regulation (EC) n° 593/2008, OJ L 177, 4.7.2008, pp. 6–16. I have to exclude other regulations concerning specific topics out of the scope of Rome I Regulation because of the restricted dimension of this presentation

  3. For more details, see Alexandre and Huet (2015).

  4. See for ex. CJEC, 15 February 2007, Lechouritou, case C-292/05.

  5. See J.-P. Beraudo et M.-J. Beraudo, J.Cl. Europe fasc. 3010 (2015) n° 10; see also authors mentioned in Danièle Alexandre et André Huet, op. cit., n° 52.

  6. This principle of autonomy results from articles 10, 17.1 and 20.1.

  7. See Saraf and Kazi (2013), concerning the former article 15.1 (c) of Brussels I Regulation. And about interpretation of this article there are many judgments of the Court of Justice: CJEU, 7 December 2010, case C-585/08, Pammer, about the meaning of “activities directed” to the Member State of the consumer’s domicile; CJEU, 17 October 2013, case C-218/12, Emrek, where it is precised that article 15.1(c) of former Brussels I Regulation “does not require the existence of a causal link between the means employed to direct the commercial or professional activity to the Member State of the consumer’s domicile, namely an internet site, and the conclusion of the contract with this consumer”; the judgment adds that “however the existence of such a causal link constitutes evidence of the connection between the contract and such activities”; CJEU 6 September 2012, case C-190/11, Mühlleitner, declaring that article 15.1(c) must be interpreted as “not requiring the contract between the consumer and the trader to be concluded at a distance”.

  8. Example: CJEU, 13 March 2014, Marc Brogsitter, case C-548/12.

  9. Example: CJEC, 17 June 1992, Handte, case C-26/91.

  10. CJEC, 4 March 1982, Effer, case 38/81.

  11. See request for a preliminary ruling lodged on 1 July 2013, Profit Investment SIM SpA, case C-366/13, and opinion of the Advocate General Y. Bot, delivered on 23 April 2015.

  12. See for example: CJEU, 9 June 2011, Electrosteel Europe SA, case C-87/10, about interpretation of former article 5.1(b), first indent of Brussels I Regulation, and CJEU, 11 March 2010, Wood Floor, case C-19/09, about interpretation of former article 5.1(b) second indent of Brussels I Regulation when services are provided in several Member States.

  13. CJEC, 17 January 1980, Zelger, case 56/79, about Brussels Convention.

  14. CJEC, 23 April 2009, Falco, case C- 533/07.

  15. See about the interpretation of former article 23(2) of Brussels I Regulation: CJEU, 21 May 2015, El Majdoub, case C-322/14.

  16. See art. 31.2, 31.3 and 31.4 that I cannot develop here.

  17. CJEU, 7 February 2013, Refcomp SpA, case C-543/10.

  18. See also for more details, Behr (2011).

  19. See Volker Behr,,op.cit., p. 241.

  20. See art. 4.1 (a) to (h).

  21. See also recital 19 of the Preamble.

  22. CJEU, 23 October 2014, Haeger & Schmidt, case C-305/13, but concerning the former article 4.2 of the Rome Convention, now replaced by article 4.3 of Rome I Regulation, more restrictive.

  23. See Molerus and Nord (2011).

  24. This expression « such as » shows the will to indicate that the list mentioned afterwards is not exhaustive.

  25. Compare with the definition given in article 17.1 of Brussels I bis Regulation concerning rules of jurisdiction.

  26. This other party may be a natural person or a legal entity, as it is not said a “natural person” as for the consumer.

  27. For more details about the law applicable to consumer contracts, see Alexandre (2011).

References

  • Alexandre D, Huet A (2015) Compétence européenne, reconnaissance et exécution: matières civile et commerciale, Répertoire Dalloz, Droit européen

  • Alexandre D (2011) Conflict of Law Rules and the protection of the weaker party in EU Private International Law and in Chinese New Private International Law: Consumer Contracts and Employment Contracts, Chinese Yearbook of Private International Law and Comparative Law. Peking University Press, Beijing, pp 102–122

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  • Behr V (2011) Rome I Regulation. A -mostly- unified private international law of contractual relationships within -most- of the European Union. J Law Commer 29:233–272

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  • Molerus L, Nord N (2011) Exceptions based on Public Policy and Overriding Mandatory Provisions in EU and Chinese PIL, Chinese Yearbook of Private International Law and Comparative Law. Peking University Press, Beijing, pp 133–157

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  • Saraf B, Kazi AUS (2013) Analysing the application of Brussels I in regulating e-commerce jurisdiction in the European Union—Success, deficiencies and proposed changes. Comput Law Secur Rev 29:127–143

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Authors and Affiliations

  1. Emeritus Professor, University of Strasbourg, Strasbourg, France

    Danièle Alexandre

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  1. Danièle Alexandre
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Correspondence to Danièle Alexandre.

Additional information

This article is based on a presentation given at the 3rd China-EU Legal Forum (CELF) which took place at the Supreme Court of Cassation in Rome on 8./9.9.2015. The 3rd CELF was co-organised by the China Law Society, the Bar Association of Rome, the International Institute for the Unification of Private Law (UNIDROIT), the China-EU School of Law at the China University of Political Science and Law and the College of Comparative Law at the China University of Political Science and Law.

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Alexandre, D. European Union Regulations concerning the breach and cancellation of contracts. China-EU Law J 5, 175–195 (2017). https://doi.org/10.1007/s12689-016-0070-y

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