Content IPRax-Issue 2/2026 (April 2026)

This article provides an overview of developments in Brussels in the field of judicial cooperation in civil and commercial matters from January 2025 until December 2025. It presents newly adopted legal instruments and summarizes current projects that are making their way through the EU legislative process. It also refers to the laws enacted at the national level in Germany as a result of new European instruments. The authors discuss both important decisions and pending cases before the CJEU as well as important decisions from German courts pertaining to the subject matter of the article. In addition, the article also looks at current projects and the latest developments at the Hague Conference of Private International Law.

Representative actions that contain cross-border issues pose challenges for the law of international jurisdiction and conflict of laws. Difficulties arise from the fact that representative actions involve claims arising from numerous legal relationships. The involvement of a large number of persons (at the level of substantive law) often means that the relevant connecting factors which are deployed by the rules of international jurisdiction and conflict of law-rules point to different courts or laws. Uncertainty also surrounds the question of how to characterise the claims that form the basis of representative actions (in particular under the Brussels I bis-, Rome I- and Rome II-Regulation). This article presents several approaches to address these problems.

While there have been repeated calls to extend the scope of the EuGVVO to third countries, the universal application of jurisdiction rules has been a reality in international maintenance law since the adoption of the EU Maintenance Regulation. The exhaustive nature of the jurisdiction rules in the Regulation was the focus of the ECJ’s ruling in the case Amozov, which is discussed here. While the court’s decision is hardly surprising, it nevertheless provides an opportunity to consider the challenges and opportunities of a conclusive jurisdiction system at the EU level.

The so-called Diesel-scandal has sparked interest, particularly among Volkswagen AG shareholders, in a comprehensive investigation into the responsibility for this scandal. Since the resolution of the annual meeting failed to achieve the required majority, several US shareholders applied for a court order for a special audit. Following several court decisions, including two successful constitutional complaints, the Court of Appeal Celle, in its decision of 27 November 2024, denied the US shareholders the capacity to participate in the proceedings, arguing that they were funds whose legal capacity was unclear. This article critically examines this decision and demonstrates that US funds are also eligible to participate proceedings in German courts.

The judgment is the subsequent decision following a ruling from 2006. At that time, the European Court of Justice (ECJ) first addressed the question of the jurisdiction of courts of the member states in patent infringement cases when defending with the argument that the patent is not valid. It was established that any assessment of the validity of the patent is exclusively reserved for the courts of the granting state. Other questions remained unanswered. These are now answered by the present judgment. The infringement court may, but is not required to, stay its proceedings. It can also assume the validity of the patent and decide the infringement dispute accordingly. At the same time, the ECJ rejects the question of whether Article 24 Nr. 4 of the Brussels Ia Regulation also applies when a third country has granted the patent. In this case, the ECJ denies a reflexive effect of Article 24 Nr. 4 Brussels Ia Regulation and allows the infringement court to also examine the validity of the patent for the purpose of deciding the infringement dispute with inter partes effect. As a result, the judgment strengthens the possibilities for patent holders to take action against infringers at the defendant’s court, especially when multiple national patents are involved across different member states.

In principle, the debtor is required to utilize the legal remedies against the provisional enforcement of a judgment that are available in the member state of origin, in this case before the Italian appellate court (Art. 283 of the Italian Codice di procedura civile [CPC]). Applications for enforcement protection by the debtor may only be submitted to German courts or enforcement authorities insofar as European law permits. This is the case, for example, under Article 44 (1) of the Brussels I Regulation (recast) in conjunction with Section 1115 (6) of the German Code of Civil Procedure (ZPO) and Article 44 (2) of the Brussels Regulation (recast) in conjunction with Section 1116 ZPO. If the conditions outlined in these provisions are not met, European law prohibits the debtor from seeking a suspension of enforcement based solely on German procedural law (e.g., by analogy to Sections 719 or 707 ZPO). The exhaustive regulation in Article 44 (1) and (2) of the Brussels I Regulation (recast) excludes additional legal protection under national law.

In its unambiguous scope of application, Art. 31 (1) of the European Insolvency Regulation protects a third-party debtor who has honoured his obligation to the benefit of the debtor in good faith after insolvency proceedings have been opened. The third-party debtor is protected from having to perform to the insolvency administrator for a second time. The ECJ had to decide whether the third-party debtor should also be protected if not only he had made his payment to the debtor after the opening of the proceedings, but also if the debtor had provided counter-performance belonging to the estate after the opening of the proceedings. A need for protection may also be apparent in this case, as the third-party debtor faces comparable economic losses. To achieve this, Art. 31 (1) EIR would need to recognise also the debtor’s counter-performance as being effective vis-à-vis the insolvency estate. However, national legal systems often do not grant any legal protection concerning asset dispositions made by the debtor after the opening of insolvency proceedings. The ECJ now continues its restrictive interpretation of Art. 31 (1) EIR, likely because the provision’s underlying regulatory purpose remains highly controversial.

Since Grunkin-Paul, the principle of recognition based on primary EU law has – through the jurisprudence of the ECJ – gained increasing importance in international family law. The Cupriak-Trojan decision marks a milestone in this respect: the Court demands the comprehensive recognition of marriages concluded between Union citizens abroad. Not only characteristics of one’s individual status but also status relationships – at least between Union citizens – must be recognized as effective across borders. This makes the free movement of status the law in force for Union citizens. Although some open questions remain, Cupriak-Trojan, coupled with the previous Mirin decision, expands the jurisprudence on the recognition principle in a way that allows it to be consolidated into an independent doctrine of private international law. To describe this doctrine, I suggest the term “replication of status” (Statusnachvollzug), which distinguishes the replication of status from the recognition of judgments and from the referral method. Another differentiation is also necessary: between the replication of status as a doctrinal approach in conflict of laws and international civil procedural law on the one hand and the principle of recognition and the free movement of status as mandates of EU primary law on the other. While the latter currently provide their normative framework and basis, the replication of status could, in future legislation, be detached from this origin.

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A recent decision by the German Federal Court of Justice (BGH) addresses two key issues in Private International Law. First, the Court held that a name change effected through a British “deed poll” can be recognised as a change of birth name under German civil status law. In this respect, the Court clarified that it is irrelevant whether the change concerns a person’s “legal name” or their “conventional name”. However, the Court ultimately rejected the requested amendments in their entirety, as the requirements for recognizing the applicant’s new legal gender had not been fulfilled. In particular, the applicant had not completed the formal procedure as required by the applicable Gender Recognition Act 2004.

The Swiss Federal Court had to decide on the international jurisdiction for a negative declaratory action in a product liability dispute in the case of cross-border manufacturing involving a division of labour. On the one hand, it affirmed the possibility of bringing a negative declaratory action in a product liability dispute at the place of action within the meaning of Art. 5 No. 3 Lugano Convention. On the other hand, in the case of cross-border manufacturing involving a division of labour, it considered the place of development to be the sole place of action for the product developer. This not only represents a rejection of a mutual attribution of the place of action in relation to other addressees under product liability law, but also an opening of the place of action in product liability to an interpretation specific to the addressee of liability.

In a recent decision concerning the enforcement in France of an arbitral award issued by the Danish Institute of Arbitration the Court of Appeal ruled that provisions aimed at protecting private interests (such as those concerning significant imbalance in commercial relationships) do not form part of international public policy. Instead, only norms safeguarding truly public interests, like prohibitions of corruption or competition-distorting practices that harm the market, can trigger the international public policy exception. Consequently, the enforcement of the award was upheld.

In a sensational decision of 22 June 2021, the Paris Court of Appeal ruled that actions for damages brought by parties to arbitration proceedings against arbitrators for breach of disclosure obligations are covered by the exception in Article 1(2)(d) of the Brussels Ibis Regulation and that international jurisdiction is therefore governed by the national international civil procedure law of the court seized. The following discussion shows that this view cannot be accepted because it does not sufficiently specify the violated obligation and therefore comes to a conclusion that is incompatible with the genesis and the policy of the exception.

The judicial Interpretation concerning the application of international treaties and practices promulgated on 5 December 2023 by the Supreme People’s Court of China provides a unified legal basis and normative guidance for the application of international treaties and practices by Chinese courts in the trial of foreign-related civil or commercial cases, and reflects three principles to be followed therein, namely, the principle of performing treaty obligations in good faith, the principle of respecting international practices, and the principle of safeguarding the sovereignty, security or social public interests. This Interpretation is conducive to improving the quality and efficiency of foreign-related civil or commercial trials in China, expanding the international credibility and influence of China’s judiciary.