Eulex Kosovo v SC (Case C-785/22 P) – Fin Serve

 

 

Antje Kunst*

* Antje Kunst is an
worldwide lawyer and barrister of Pavocat Chambers, admitted to the Bar of
England and Wales, and the Bar of Berlin, advising and representing people
in a variety of issues associated to the CFSP, together with employment instances. She
has appeared in quite a few instances earlier than each the Court docket of Justice and the Common
Court docket, inside the Court docket of Justice of the European Union. She was Counsel for
SC within the Eulex Kosovo case.

Photograph credit score: George Chernilevsky,
through Wikimedia
Commons

 

Introduction

On 18 January 2024 in Eulex
Kosovo v SC
(Case C-785/22 P), a case that has been earlier than the EU
courts since 2017, the Court docket of Justice dominated that an enchantment in opposition to a default judgment
of the Common Court docket is inadmissible earlier than the Court docket of Justice if twin
proceedings are dropped at each EU courts. In different phrases, interesting a default
judgment of the Common Court docket to the Court docket of Justice, and concurrently
asking the Common Court docket to put aside its personal default judgment, will not be
permitted.

Till now, there was no case legislation
on this exact sort of state of affairs, and therefore, the Court docket of Justice’s judgment
is very important for EU procedural legislation as a spot within the case legislation has now
been closed.

Beforehand in October 2022, the
Common Court docket issued a default judgment in Case T-242/17
RENV, in favour of SC – a former member of contract employees of the EU Rule of
Legislation Mission in Kosovo (Eulex Kosovo) – following the failure of Eulex Kosovo to
file a defence, on this case.  The
failure to file a defence occurred in referral proceedings after a profitable
enchantment earlier than the Court docket of Justice in Case
C-730/18 SC v Eulex Kosovo, at a time the case was already ongoing for 4
years.

In November and December 2022, Eulex
Kosovo filed not just for that default judgment of the Common Court docket beneath
Article 166 of the Guidelines of Process of the Common Court docket (RPGC) to be set
apart by the Common Court docket itself,  however
additionally introduced enchantment proceedings in opposition to that default judgment of the Common
Court docket to the Court docket of Justice, with the consequence that not solely the Common
Court docket but additionally the Court docket of Justice grew to become seized of the identical material. As
a outcome, SC needed to defend in opposition to not solely an opposition in proceedings earlier than
the Common Court docket, but additionally an enchantment in proceedings earlier than the Court docket of
Justice.

Default judgment which is the topic
of an software to set it apart will not be a remaining determination

The judgment by the Court docket of
Justice in Case C-785/22 P clarifies that it adopted from its personal Statute that
an enchantment is admissible solely in opposition to a remaining determination of the Common Court docket,
with respect to which no different authorized treatments stay open (para. 29 of the judgment).
It additionally clarified that ‘[s]ince the train of such a treatment has the impact of
re-opening the proceedings earlier than the Common Court docket, a default judgment which
has been the topic of an software to set it apart can’t be considered a remaining
determination, inside the that means of Article 56 of its Statute’. Consequently,
it adopted that an enchantment introduced in opposition to a default judgment which is the
topic of an software to set it apart is inadmissible (paras. 31 and 32 of
the judgment).

To have two bites on the
cherry will not be permitted

In a completely different case, Advocate
Common (AG) Emiliou delivered an Opinion
on the identical day, i.e. in Case C-766/21 P, Parliament v Axa Assurances
Luxembourg and Others stating that [p]ermitting the use
of two authorized treatments in parallel could be tantamount to permitting a defendant
in default to have two bites on the cherry – or, to proceed with the
metaphor, to trip two trains on the similar time’. The AG added to permit this
could be in opposition to the precept of equality of arms asking the right query:
‘how may it’s permissible for a celebration, which had didn’t take part at
first occasion, to nonetheless have the chance to pursue one treatment earlier than
the Common Court docket, and one other treatment earlier than the Court docket of Justice, each
in the end looking for the identical end result?’ (Para. 108, Opinion of Advocate Common
Emiliou, Case C‑766/21 P, European Parliament v Axa Assurances Luxembourg
SA, Bâloise Assurances Luxembourg SA, La Luxembourgeoise SA,
Nationale-Nederlanden Schadeverzekering Maatschappij NV, ECLI:EU:C:2024:63).

The AG in that
case made one other vital poin
t, in that permitting parallel proceedings may
trigger confusion as to the appropriate treatment in a specific case and contribute
to the escalation of prices for any occasion concerned in parallel procedures (para.
109 of his Opinion).

Enchantment could also be admissible in opposition to
a default judgment if the opposition is late

The Court docket of Justice in Case
C-785/22 P, Eulex Kosovo v SC nonetheless acknowledged that an enchantment in opposition to a
default judgment could also be admissible earlier than it if the occasion has not requested for the
Common Court docket to put aside its personal judgment inside the prescribed time restrict of
one month pursuant to Article 166 RPGC.

While this was not the state of affairs
in Eulex Kosovo v SC, given {that a} request was made in time by the defendant to
the Common Court docket for itself to put aside its default judgment, the Court docket of
Justice did state that if such a state of affairs have been to come up, such an enchantment would
be inadmissible throughout the time the default judgment will not be but remaining, however
might be regularised, i.e. upon expiry of that point restrict (para. 33 of the
judgment) ‘if that authorized treatment has not be exercised’. Thus, in keeping with the
Court docket of Justice, there may be an exception to the rule if the occasion doesn’t comply
with the time restrict to file an opposition or doesn’t file an opposition in any respect,
it could possibly enchantment the default judgment, as soon as it’s remaining, earlier than the Court docket of
Justice.

Unhealthy selection of authorized
treatments

To depart a selection of treatments to
the defendant, i.e. both to pursue an software to put aside a default
judgment primarily based on Article 166 RPGC earlier than the Common Court docket, or an enchantment
in opposition to such a judgment earlier than the Court docket of Justice, is problematic. It’s even
extra problematic to permit an enchantment, when the defendant doesn’t handle to file
an opposition inside the stipulated time restrict of the particular authorized treatment
beneath Article 166 RPGC, i.e. one month.

Particular treatment in Article 166
RPGC

In view of the concerns, AG
Emiliou, absolutely conscious of the Court docket’s reasoning in Case C-785/22 P, Eulex Kosovo
v SC (see para. 102 of his Opinion), in his Opinion in Case  C‑766/21 P, Parliament v Axa Assurances
Luxembourg and Others is completely right in stating {that a} defendant in
default can’t lodge an enchantment in opposition to a first-instance determination due to the
requirement to utilize the particular treatment set out in Article 166 RPGC. ‘The
two procedural avenues are […] not solely alternate options and mutually unique,
but additionally not interchangeable. […] to lodge an enchantment, a celebration should fulfil the
formal necessities outlined in Article 56 of the Statute, in essence,
mandating participation at first occasion. […] a defendant in default doesn’t
fulfil that criterion. Any try and carry a profitable enchantment would appear
futile.’ (See paras. 101, 103 and 104 of the Opinion of AG Emiliou).

An enchantment in opposition to a default
judgment earlier than the Court docket of Justice will recurrently unduly delay proceedings
earlier than the EU courts, with a potential referral again to the Common Court docket attributable to
the unfinished provisional appraisal of the info, inside the process for
default judgments inaudita altera parte. The implications for candidates will
be an unreasonable size of adjudication of their instances earlier than the CJEU, and
in fact, escalating their prices.

To be able to keep away from that defendants
extra usually fail to file a defence within the preliminary proceedings, regardless of being
requested to take action, the tight time restrict of 1 month of the particular treatment set
out in Article 166 RPGC should be adhered to by defendants. There shouldn’t be
out there one other prepare which might be taken later, i.e. an enchantment of the default
judgment after two months, if the prepare to the Common Court docket is missed to make use of
the metaphor of AG Emiliou. The Court docket of Justice will not be the right discussion board to
put aside a default judgment as it’s certain to handle factors of legislation solely. It should
be left to the Common Court docket to conduct the adversarial process wherein the
precept audi alteram partem is revered with an entire appraisal
of the info after it has not within the default process. (see additionally paras. 106
and 107 of the Opinion of AG Emiliou).

In the long run, the view of Advocate
Common Emiliou can solely be agreed with, in that ‘the procedural avenue allowing
a defendant in default to submit an software to have put aside a judgment by
default earlier than the Common Court docket is essentially the most applicable (rectius, the one)
plan of action that such a celebration might use in such circumstances.’

There is just one prepare and if
missed, there isn’t a different prepare.

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