Opinion Of AG Szpunar On “civil And Commercial Matters“ According ...

Today, AG Szpunar delivered his Opinion on the request for a preliminary ruling from the hof van beroep te Antwerpen (Court of Appeal of Antwerp, Belgium) on the interpretation of “civil and commercial matters“ according to Article 1(1) Brussels I bis Regulation.

The question was (para. 1o):

“Is an action concerning a claim aimed at determining and stopping unlawful market practices and/or commercial practices towards consumers, instituted by the Belgian Government in respect of Dutch companies which from the Netherlands, via websites, focus on a mainly Belgian clientele for the resale of tickets for events taking place in Belgium, (…) a civil or commercial matter within the meaning of Article 1(1) of [Regulation 1215/2012], and can a judicial decision in such a case, for that reason, fall within the scope of that regulation?“

The relevant Belgium law prohibits, amongst others, the resale of event admission tickets. In addition, the business practice in question falls under the unfair business-to-consumer commercial practices legislation in Belgium. In both cases, the President of the Commercial Court deals with the matter. Actions are brought at the request of the competent minister of the Belgium Government. A variety of measures of relief was sought in the proceedings at hand: (1) a declaration that unfair commercial practices have taken place, (2) an order for cessation of those practices, (3) an order to publicise the court’s decision about the infringement at the expense of the defendants, (4) an order for penalty payments to be made in a fixed amount in respect of every future infringement, and (5) a ruling permitting the fact of such infringement to be certified simply by means of a report drawn up by an official, on oath, of the Algemene Directie Economische Inspectie (Directorate-General for Economic Inspection).

The matter thus was whether or to what extent the expression “civil and commercial matters” in Article 1(1) of the Brussels I bis Regulation, encompasses proceedings of that kind between the authorities of a Member State and private law entities established in another Member State. Evidently, this matter touches upon the delicate question of a private-public divide which generally is perceived to be more and more blurring (see e.g. Burkhard Hess, The Private-Public Divide in International Dispute Resolution, Recueil des Cours Vol. 388, The Hague 2018). Nevertheless, many instruments of Private International Law of the European Union make use of this divide to delineate their respective material scope of application and it may indeed be assumed that the term „civil and commercial matters“ should be interpreted not only autonomously but also consistently across the respective instruments (para. 41, with reference to the ECJ’s judgment of 28 July 2016, Verein für Konsumenteninformation, C?191/15, EU:C:2016:612, paragraph 39), at least in principle. The ECJ has struggled with this question in the past and has tended towards a broad understanding of civil and commercial matters, see e.g. ECJ, judgment of 9 March 2017, C-551/15, EU:C:2017:193 – Pula Parking, for a comment (mainly on other aspects of the case) on this blog see