A bad construction job. The contractual nature of the actio pauliana under Brussels Ia

Readers of this blog will be familiar with the European Court of Justice’s Feniks v Azteca ruling [1] – on which we reported earlier. There, the Court held that the actio pauliana – a form of fraudulent conveyance action – was a ‘matter relating to a contract’ for the purpose of Art 7(1) Brussels Ia (Regulation 1215/2012).[2] The upshot of this ruling was that the third party who allegedly frustrated the claimant’s contractual interest could be sued in the court of the place of performance of the defrauded contract (cfr Art 7(1)(b) Brussels Ia).

In Norbert Reitbauer aors v Enrico Casamassima (Case C-722/17 ECLI:EU:C:2019:285), AG Tanchev carefully reconsidered and further analysed the contractual nature of the actio pauliana.

Continue reading “A bad construction job. The contractual nature of the actio pauliana under Brussels Ia”

Can directors be employees?

Can directors be employees? An array of answers are possible. A director may accept to perform the duties resulting from company law and the statutes of association by entering into eg a management contract, an agency agreement, or an employment contract. The diversity of plausible answers also impacts on EU private international law, as the applicability of the protective rules on jurisdiction in matters relating to employment contracts, contained in Art 18 et seq of the Brussels I Regulation Recast, depends on whether a relationship can be characterised as a ‘matter relating to an individual contract of employment’. At stake are among other things (1) the option of the director to sue the company in the courts of the place where he is domiciled, and (2) whether the company is restricted to pursue its actions against the director in the courts of the director’s domicile.

In his Opinion in C-603/17 EU:C:2019:65 Bosworth ea v Arcadia Petroleum ea, AG Saugmandsgaard Øe clarified the position of directors of a company in respect of the rules of jurisdiction applicable to employment contracts.

Continue reading “Can directors be employees?”

The blurred lines of contract: the actio pauliana is a ‘matter relating to a contract’ within the meaning of the Brussels I Regulation Recast, Article 7(1)

Guest blogger Michiel Poesen on CJEU’s recent decision in C-337/17 Feniks

This blogpost focusses on the CJEU’s recent decision in C-337/17 Feniks, ECLI:EU:C:2018:805. In this decision, the Court entertained the question as to whether jurisdiction over an avoidance action – a so-called actio pauliana – should be determined under Article 7(1) of Regulation 1215/2012, commonly referred to as the Brussels I Regulation Recast.

As AG Bobek put it, the notion of actio pauliana generally refers to a remedy that allows a creditor to have an act declared ineffective, because said act was carried out by a debtor with the purpose of diminishing its assets by passing them on to a third party (Opinion in Case C-337/17 Feniks, ECLI:EU:C:2018:487, 35).

In older case law, the CJEU held that the actio pauliana cannot be characterised as an action in tort within the meaning of Article 7(2) of the Brussels I Regulation Recast. This in turn means that the court of the place where the creditor’s damage occurred cannot assert jurisdiction (Case C-261/90 Reichert II, ECLI:EU:C:1992:149). Prior to Feniks, however, the question as to whether the actio pauliana should be characterised as a ‘matter relating to a contract’ had not been referred to the Court.

Article 7(1) of the Brussels I Regulation Recast lays down the rules on forum contractus. It allows a defendant to be sued in the ‘place of performance’ of the contentious obligation, provided that the action concerns ‘matters relating to a contract’. The recent decision in Feniks clarified the outstanding issue as to whether an actio pauliana can too be brought in the forum contractus. Continue reading “The blurred lines of contract: the actio pauliana is a ‘matter relating to a contract’ within the meaning of the Brussels I Regulation Recast, Article 7(1)”

Locating pure economic loss: jurisdiction over prospectus liability under Article 7(2) of the Brussels I Regulation Recast

A post by guest blogger Michiel Poesen

In C‑304/17 Helga Löber v Barclays Bank plc, the CJEU had the opportunity to revisit its case law regarding jurisdiction over prospectus liability. The relevant ground for jurisdiction is Article 7(2) of the Brussels I Regulation Recast (previously Article 5(3) of the 2001 Brussels I Regulation): A person domiciled in a Member State may be sued in another Member State in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur. The ECJ confirmed that in the context of prospectus liability, the place where the harmful event occurred can be exceptionally located in the claimant’s domicile. Continue reading “Locating pure economic loss: jurisdiction over prospectus liability under Article 7(2) of the Brussels I Regulation Recast”