Issuu

Cases In

Private International Law

Produced and published by Għaqda Studenti tal-Liġi (GħSL), the University of Malta’s Law Students’ Society. Correspondence in relation to this publication should be forwarded to: The Publications Officer / The Resources Officer Room 219, GħSL Office Faculty of Laws University of Malta Msida, Malta or Email us at: publications@ghsl.org or resources@ghsl.org © Għaqda Studenti tal-Liġi 2020 All Rights Reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of the copyright holder and the publisher, application for which shall be made to the publisher. Proofreading and editing done by the GħSL Publications Office. Opinions expressed in this publication do not necessarily represent the views of Għaqda Studenti tal-Liġi. Printed in Malta by Progress Press Co. Ltd Żona Industrijali, Triq L-Intornjatur, Mrieħel, BKR 3000, Malta Cover and Publication Design by Matthew Charles Zammit ISBN no: 978-9918-9506-0-7

iii

Introduction Dpresent to you, on behalf of the Għaqda Studenti tal-Liġi, as

ear reader, it is indeed a privilege and an honour to be able to

well as the Faculty of Laws, this law student organisation’s newest publication. This project is the end result of a multi-annual effort, by numerous students and contributors, spanning no less than three different Executive Boards. Few projects in this history of this organisation have withstood the test of time so diligently: Even Id-Dritt, which this year we were proud to launch the 30th Edition of, still remains an annual publiication with an already pre-established framework. This project, though, was without precedent: The study unit of Private International Law, while a staple of the LL.B (Hons) Course, remains still a difficult maze for both students, as well as academics, professionals and researchers alike, to successfully navigate through. The vast volume of material pertinent to this area of study is not only vast in its inherent nature, but also touches upon a large number of other fields of study, not all of them legal. Keeping pace with all such changes is of course not a one-time task, but rather a continuous development which will still occur years into the future. In this light, this publication should not be considered as a mere conclusion to these efforts; but rather, it’s a solid, tangible foundation on which this organisation’s volume of work is set to increase in the years to come, hopefully way after the present contributors would have left the Law Course. I would like to thank a select number of people who have made this project possible: •

My direct predecessors, Ms Emma-Marie Sammut and Mr Matthew Charles Zammit, who were not only directly involved in this publication during their respective tenure within this organisation, but also provided their guidance and their counsel whenever called upon, without hesitation; I’d also like to thank

Mr Zammit specifically for once again helping in the design this publication; •

To all of the contributors, some of whom have actually become legal professionals in their own; your efforts have been invaluable in ensuring the successful conclusion of this publication;

•

I would also like to thank Dr Ivan Mifsud, as the Dean of the Faculty of Laws, as well as Dr Natalino Caruana De Brincat, and Dr Alex Sciberras Trigona and Dr Frank Chetcuti Dimech, for proposing this idea in thie first place, as well as their guidance in ensuring that this project is successfully carried out; your instruction and your supervision throughout the years were invaluable;

•

Lastly, to you, dear reader: We hope that this publication will help you in your academic pursuits, and we gladly welcome any feedback that you might have, in ensuring that this publication remains as relevant as ever.

Thanking you once again,

Justine Xuereb

GħSL Publications Officer 2019-2020

Foreword Iinvitation to prepare the foreword for this collection of reports on

t gives me great pleasure to accept the GħSL Editorial Board’s

landmark judgments concerning Private International Law.

Three years ago, Dr Lara Attard (then President of GħSL), Dr Alexander Sceberras Trigona, Dr Frank Chetcuti Dimech and I, set the impetus which led to this useful tool, which Law Students and legal professionals alike will undoubtedly find of use. Students tend to be wary of Private International Law; legal professionals possibly even more so, because to their mind, it is a nebulous cobweb of complicated rules which they would rather not get into, if only they could avoid it. The bare truth however, is that we have become truly global, with people moving to other countries, entering obligations beyond their boarders, doing business overseas, starting families with foreigners, and so on. For so long as things go well, all is fine and all are happy. When an issue arises, whether it is an unpaid bill or other unfulfilled obligation, whether it is an accident abroad or a foreigner having an accident in Malta, then Private International Law becomes unavoidable: it is that body of rules used to assess and resolve legal disagreements between private individuals, which disputes would have a foreign element. Where a dispute arises between two, or more, parties in different countries having different legal systems, Private International Law rules will assist a Court or Tribunal to determine which country’s substantive law shall be adoperated to determine and solve the matter presented before the Court or Tribunal. It is not really ‘international law,’ but rather that body of rules used to assess and solve legal disputes between parties from different countries. Our domestic laws require it, our international activities expose us to it. The European Union on the other hand, contributed to its codification thanks to the likes of Brussels 1 Recast, Rome I and Rome 2. The Courts interpreted these rules, putting flesh to the bones of those rules we refer to as ‘private international law’, which leads us to this present publication which I am proud to have seen develop vi

from a mere idea which initially took time to germinate, to the present compendium of landmark judgments, another achievement for GħSL which should be considered not merely as a body of Law Students, but rather a net contributor towards the active development of the legal profession. I congratulate the entire GħSL Committee, past and present members, especially those involved in this unique compilation of landmark judgments.

Natalino Caruana De Brincat

B.A. (Hons), LL.B, Dip. Notary Public (Melit), Dip Infosys, MBA (Leics), LL.D (Melit)

vii

Contents C-12/76 Industrie tessili italiana v Dunlop AG

C-14/76 De Bloos v Bouyer

C-21/76 Handelskwekerij Bier v Mines de Potasse d’Alsace

C-24/76 Estasis Salotti v Ruewa

C-29/76 LTU v Eurocontrol

C-73/77 Sanders v Van der Putte

C-15/78 Société générale de banque alsacienne v Koestler

C-23/78 Meeth v Glacetal

C-143/78 / C-120/79 De Cavel

C-25/79 Sanicentral SA v Collin

C-56/79 Zelger v Salinitri

C-125/79 Denilauler v Couchet

C-814/79 Netherlands v Rüffer

C-150/80 Elefanten Schuh GmbH v Jacqmain

viii

C-27/81 Rohr v Ossberger

C-38/81 Effer Spa v Kantner

C-228/81 Pendy Plastic Products BV v Pluspunkt Handelsgesellschaft

C-34/82 Peters v Zuid Nederlandse Aannemers vereniging

C-288/82 Duijnstee

C-71/83 Tilly Russ v Nova

C-129/83 Zelger v Salinitri

C-241/83 Rösler v Rottwinkel

C-49/84 Debaecker and Plouvier v Bouwman

C-221/84 Berghoefer Asa

C-266/85 Shenavai v Kreischer

C-313/85 Iveco Fiat v Van Hool

C-144/86 Gubisch Maschinenfabrik v Palumbo

C-145/86 Hoffmann v Krieg

Contents C-218/86 SAR Schotte v Parfums Rothschild

C-9/87 Arcado v Haviland

C-189/87 Kalfelis v Schröder and Others

101

C-220/88 Dumez France and Others v Hessische Landesbank and Others

104

C-305/88 Lancray v Peters und Sickert

108

C-365/88 Hagen v Zeehaghe

113

C-190/89 Rich v Società Italiana Impianti

118

C-214/89 Powell Duffryn v Petereit

122

C-351/89 Overseas Union Insurance Ltd v New Hampshire Insurance Company

125

C-261/90 Reichert and Kockler v Dresdner Ban

129

C-280/90 Hacker v Euro-Relais

132

C-26/91 Handte v TMCS

134

C-89/91 Shearson Lehman Hutton v TVB

138

C-172/91 Sonntag v Waidmann

142

C-125/92 Mulox IBC v Geels

145

C-129/92 Owens Bank v Bracco

148

C-288/92 Custom Made Commercial v Stawa Metallbau

152

C-294/92 Webb v Webb

157

C-406/92 Tatry v Maciej Rataj

160

C-68/93 Shevill and Others v Presse Alliance

164

C-318/93 Brenner and Noller v Dean Witter Reynolds

168

C-341/93 Danværn Production v Schuhfabriken Otterbeck

173

C-346/93 Kleinwort Benson v City of Glasgow District Council

175

C-364/93 Marinari v Lloyd’s Bank

178

C-439/93 Lloyd’s Register of Shipping v Campenon Bernard

185

C-474/93 Hengst Import v Campese

189

C-78/95 Hendrikman and Feyen v Magenta Druck & Verlag

191

C-106/95 MSG v Les Gravières Rhénanes

193

Contents C-220/95 Van den Boogaard v Laumen

195

C-269/95 Benincasa v Dentalkit

199

C-295/95 Farrell v Long

204

C-391/95 Van Uden Maritime v Kommanditgesellschaft in Firma Deco-Line and Others

206

C-85/96 Martínez Sala v Freistaat Bayern

210

C-99/96 Mietz

214

C-351/96 Drouot assurances v Consolidated metallurgical industries and Others

217

C-51/97 Réunion européenne and Others

220

C-159/97 Castelletti

224

C-260/97 Unibank

228

C-269/97 Coursier

231

C-420/97 Leathertex

235

C-440/97 GIE Groupe Concorde and Others

240

C-7/98 Krombach vs Bamberski

242

xii

C-8/98 Dansommer

246

C-240/98 Océano Grupo Editorial and Salvat Editores

248

C-381/98 Ingmar GB

252

C-387/98 Coreck Maritime

255

C-412/98 Group Josi

261

C-456/98 Centrosteel

265

C-518/99 Gaillard

269

C-37/00 Weber

272

C-208/00 Überseering

276

C-334/00 Tacconi

279

C-167/01 Inspire art

282

C-159/02 Turner

285

C-281/02 Owusu

287

C-96/04 Standesamt Stadt Niebüll

290

xiii

Contents C-210/06 Cartesio

294

C-353/06 Grunkin and Paul

297

C-185/07 Allianz vs West Tankers Inc.

300

C-133/08 ICF

304

C-585/08 / C-144/09 Pammer / Hotel Alpenhof

316

C-256/09 Purrucker

322

C-509/09 eDate Advertising and Others

326

C-29/10 Koelzsch

329

C-144/10 BVG

339

C-514/10 Wolf Naturprodukte

348

C-527/10 Erste Bank Hungary

354

C-302/13 flyLAL-Lithuanian Airlines

357

C-352/13 CDC Hydrogen Peroxide

369

C-557/13 Lutz

387

xiv

C-649/13 Comité d’entreprise de Nortel Networks and Others

399

C-223/14 Tecom Mican and Arias Domínguez

411

C-135/15 Nikiforidis

420

C-191/15 Verein für Konsumenteninformation

423

C-54/16 Vinyls Italia

426