Jurisdictional Immunity & The Brussels I Regulation

The defendants argued that the national court alone had jurisdiction to give a ruling on the issues at stake, and that it would only be able to make a request for a preliminary ruling if it had dismissed the plea of immunity from jurisdiction. The AG, however, found the questions to be admissible, since the CJEU was asked, inter alia, to interpret the Brussels I Regulation so as to give guidance to the national court on how to assess the facts of the case in the main proceedings. Disagreeing with the arguments of the defendants, the AG considered the question of whether classification and certification activities fall within the meaning of article 1(1) of the Regulation, to be far from obvious and in fact, in need of clarification by the CJEU.

Having established the admissibility of the questions referred to the Court, the AG proceeded to examine the relationship between the principle of jurisdictional immunity and the scope ratione materiae of the Regulation.

In the absence of codification at international level, immunity from jurisdiction is mostly governed by customary international law. It is based on the principle par in parem non habet imperium, meaning that an equal has no authority over an equal. The principle of jurisdictional immunity is therefore a procedural bar, preventing the court of one State from giving judgment on the liability of another State.

In the case Mahamdia (C‑154/11), the Court of Justice recognised the doctrine of relative immunity, based on the distinction between acts performed jure gestionis (private or commercial acts of state) and jure imperii (governmental or public acts of state). This means that immunity from jurisdiction is not absolute, and it could be excluded if the proceedings relate to acts performed jure gestionis. Therefore, the claim for immunity from jurisdiction is not based on the fact that the claimant is a state, but rather on the nature of the activities carried out, i.e. whether they fall within the exercise of public powers.

Notwithstanding the aforementioned, it is unnecessary to consider the principle of customary international law about jurisdictional immunity when questioning the scope of Brussels I Regulation. In so far as the regulation is concerned, the distinction between «civil or commercial matters» and those that are not, must be drawn by reference to independent criteria of EU law found in the Court`s case law.

Consequently, the interpretation of the provisions of Brussels I in light of customary international law, cannot be taken to exclude from its scope, disputes in which one of the parties might rely on jurisdictional immunity. As such, the AG continued his analysis by exploring the concept of «civil and commercial matters», to determine whether the classification and certification activities fall within the scope of the Regulation.

It follows that each case depends on its specific facts, and whether, in light of all considerations, the activities were performed in the exercise of public powers. The case law of the Court was useful again, as the AG examined past decisions and their reasonings. In Kuhn (C‑308/17) for instance, the Court focused on the public interest objective of the activities and on whether the dispute stemmed from a manifestation of public authority. That is not to mean that the objective of an action is in itself sufficient to exclude it from the scope of «civil and commercial matters». This was showcased in Pula Parking (C‑551/15), where it was stated that «acting in an interest comparable to the general or public interest» does not mean «acting in the exercise of public powers» within the meaning given by the Court.

Having established that it is the recourse to public powers that excludes activities from the scope of Brussels I, the AG proceeded to identify the range of powers used by the defendants, in performing the activities in question.

The defendants might have acted as a public authority in the context of their relationship with the shipowner, but this definitely does not mean that they retain that status of public authority in regard to other private individuals, such as the claimants.

As for the contractual relationship between the defendants and the shipowner, it is important to note that the former were chosen from a number of organisations carrying out classification and certification activities on behalf of Panama. Their private-law agreement, the terms of which were decided in the exercise of freedom of contract, did not dispose of the exclusive competence retained by the delegating state in relation to the activities.

In this sense, even in so far as the defendants had corrective powers in case of non-conformity, they would be able to exercise them solely within the terms of the agreement to which the shipowner had previously consented, and the pre-defined regulatory framework provided and controlled by the Republic of Panama. This is supported by the case Rina Services and Others (C‑593/13), where certification bodies were held to be commercial undertakings performing their activities in conditions of competition and without power to make decisions connected with the exercise of public powers.

In light of the above, the AG reached the interim conclusion that the classification and certitifcation activies in question fall within the scope of «commercial and civil matters» as interpreted by the Court. Consequently, Brussels I was found to apply ratione materiae to the dispute, and since the defendants are domiciled in a member state, the Italian Courts derive their jurisdiction from the regulation.

At this point, the AG had to consider whether the defendants can rely on jurisdictional immunity under international law, and if so, whether the referring court can nevertheless hear the case or must instead decline to exercise the jurisdiction it derives from Brussels I.

When a recognised organisation, its inspectors, or its technical staff issue the relevant certificates on behalf of the administration, Member States should consider enabling them, as regards these delegated activities, to be subject to proportionate legal safeguards and judicial protection, including the exercise of appropriate rights of defence, apart from immunity, which is a prerogative that can only be invoked by Member States as an inseparable right of sovereignty and therefore that cannot be delegated.

The defendants raised multiple objections to the reference to Directive 2009/15, arguing namely that the directive as a whole does not apply, that a recital has no prescriptive force, that the directive concerns only member states and that the EU has no jurisdiction to impose its interpretation of customary international law to member states. Nonetheless, recital 16 cannot simply be dismissed, since from the point of view of international law, a recital is capable of contributing to the formation or expression of a rule of customary international law.

None of the propositions considered are decisive in establishing whether the plea of immunity from jurisdiction should be upheld in these circumstances. The problem remains that there are two co-existent obligations creating tension that the CJEU is called to resolve. One is imposed by international law, and it requires a national court to recognise immunity from jurisdiction, whereas EU law requires the same court to exercise the jurisdiction it derives from Brussels I. In light of these obligations, it is necessary to examine the relationship between EU law and international law, which has been expressed to a large extent in Article 3(5) of the TEU:

In its relations with the wider world, the Union… shall contribute…to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.

This proves that the question of primacy of one over the other is not as straightforward. Having these two contradicting obligations imposed on the national court, calls for an analysis of the hierarchy of laws and regulations.

The courts have repeatedly held that international conventions have primacy over secondary legislation, so that the latter must be interpreted in accordance with the former. Following this line of thought, rules of customary international law, like jurisdictional immunity, must also have primacy over secondary legislation such as Brussels I, at least in theory. However, such a rule of customary international law should not be incorporated into the legal order of the EU without prudent consideration.