Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 14 January 2020 (1)

Case C‑641/18

LG

v

Rina SpA,

Ente Registro Italiano Navale

(Request for a preliminary ruling from the Tribunale di Genova (District Court, Genoa, Italy))

(References for a preliminary ruling — Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters — Scope ratione materiae of Regulation (EC) No 44/2001 — Immunity from jurisdiction — Activities of ship classification and certification societies)

I.      Introduction

1.        Regulation (EC) No 44/2001 (2) provides, using the same terms as are used in other instruments of EU private international law, that it applies ‘in civil and commercial matters’. The present request for a preliminary ruling follows upon a line of case-law concerning the determination of the scope of that regulation.

2.        In the present case, it is a plea of immunity from jurisdiction raised by the defendants in the main proceedings that has caused the referring court to entertain doubts about the scope of Regulation No 44/2001. In essence, the referring court asks the Court of Justice to express its position on the relationship between a customary principle of international law and an instrument of EU private international law.

3.        In addition, the referring court particularly seeks to ascertain whether and, if so, to what extent the answer to the question which it has referred may be influenced by the interest in ensuring access to the courts, a right guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). Viewed from that perspective, that question brings to mind the current debate about the influence of human rights on private international law.

4.        The present request for a preliminary ruling consequently presents the Court with an opportunity to consider the position of EU private international law within international law in the broader sense. In this Opinion, I shall suggest that the Court interpret both Regulation No 44/2001 and customary international law in such a way that its judgment might contribute to the development of international law in general.

II.    Legal framework

A.      International law

5.         The United Nations Convention on the Law of the Sea, concluded in Montego Bay on 10 December 1982, (3) (‘UNCLOS’), is an essential part of the law of the sea. It entered into force on 16 November 1994 and was approved on behalf of the European Community by Decision 98/392/EC. (4)

6.        In accordance with Article 90 of UNCLOS, every State has the right to sail ships flying its flag on the high seas. Pursuant to Article 91(1) and (2) of UNCLOS, every State is to fix the conditions, inter alia, for the right to fly its flag and is to issue to ships to which it has granted the right to fly its flag documents to that effect.

7.        Article 94(1) of UNCLOS provides that every State must effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag. In addition, in accordance with Article 94(3) to (5) of UNCLOS, the State is to take measures for ships flying its flag to ensure safety at sea. Those measures must ensure, in particular, that every ship is surveyed before registration and thereafter at appropriate intervals by a qualified surveyor of ships. In taking these measures, each State is required to conform to generally accepted international regulations, procedures and practices.

8.        In that context, the International Convention for the Safety of Life at Sea, (5) (‘the SOLAS Convention’), to which all the Member States are contracting parties, has as its main objective the specification of minimum standards for the construction, equipment and operation of ships, compatible with their safety.

9.        Under Regulation 3-1 of Part A-1 of Chapter II-1 of the SOLAS Convention, ships are to be designed, constructed and maintained in compliance with the structural, mechanical and electrical requirements of a classification society which is recognised by the Administration — which, according to the convention, is the government of the State whose flag the ship is entitled to fly — in accordance with the provisions of Regulation XI/1, or with applicable national standards of the Administration which provide an equivalent level of safety.

10.      Under Regulation 6 of Chapter I of the SOLAS Convention:

‘(a)      The inspection and survey of ships, so far as regards the enforcement of the provisions of the present regulations and the granting of exemptions therefrom, shall be carried out by officers of the Administration. The Administration may, however, entrust the inspections and surveys either to surveyors nominated for the purpose or to organisations recognised by it.

(b)      An Administration nominating surveyors or recognising organisations to conduct inspections and surveys as set forth in paragraph (a) shall as a minimum empower any nominated surveyor or recognised organisation to:

(i)      require repairs to a ship;

(ii)      carry out inspections and surveys if requested by the appropriate authorities of a port State.

The Administration shall notify the Organisation of the specific responsibilities and conditions of the authority delegated to nominated surveyors or recognised organisations.

(c)      When a nominated surveyor or recognised organisation determines that the condition of the ship or its equipment does not correspond substantially with the particulars of the certificate or is such that the ship is not fit to proceed to sea without danger to the ship, or persons on board, such surveyor or organisation shall immediately ensure that corrective action is taken and shall in due course notify the Administration. If such corrective action is not taken the relevant certificate should be withdrawn and the Administration shall be notified immediately; …

(d)      In every case, the Administration shall fully guarantee the completeness and efficiency of the inspection and survey, and shall undertake to ensure the necessary arrangements to satisfy this obligation.’

B.      EU law

11.      Article 1(1) of Regulation No 44/2001 provides that that regulation ‘shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters’.

12.      In accordance with Article 2(1) of Regulation No 44/2001, ‘subject to [that] regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State’.

III. The facts of the case in the main proceedings, the procedure before the Court of Justice and the question referred for a preliminary ruling

13.      Relatives of the victims, along with survivors of the sinking of the Al Salam Boccaccio ’98, a ship sailing under the flag of the Republic of Panama, which happened in 2006 on the Red Sea and caused the loss of more than a thousand lives, have brought an action before the referring court, the Tribunale di Genova (District Court, Genoa, Italy), against the companies Rina SpA et Ente Registro Italiano Navale.

14.      Before the referring court, the applicants argue that the defendant’s certification and classification activities, the decisions they took and the instructions they gave, are to blame for the ship’s lack of stability and its lack of safety at sea, which are the causes of its sinking. The applicants claim compensation for the pecuniary and non-pecuniary loss sustained as a result of the ship’s sinking.

15.      The defendants contest the applicants’ claims and, in particular plead immunity from jurisdiction. They state that they are being sued in respect of certification and classification activities which they carried out as delegates of a foreign sovereign State, namely the Republic of Panama. The activities in question were a manifestation of the sovereign power of the foreign State and the defendants carried them out on behalf of and in the interests of that State.

16.      In response to the defendants’ plea of immunity from jurisdiction, the applicants argue that the Italian courts have jurisdiction to hear their claims pursuant to Article 2(1) of Regulation No 44/2001. They submit, first of all, that that regulation is inapplicable solely where the dispute concerns ‘revenue, customs or administrative matters’, as Article 1(1) of the regulation specifies. Secondly, the plea of immunity from jurisdiction does not cover activities that are governed by non-discretionary technical rules which are, in any event, unrelated to the political decisions and prerogatives of a sovereign State. Thirdly, classification and certification activities are not acts performed in the exercise of State authority, having regard to Article 47 of the Charter and Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’) and recital 16 of Directive 2009/15/EC. (6)

17.      It is under those circumstances that, by decision of 28 September 2018, received at the Court on 12 October 2018, the Tribunale di Genova (District Court, Genoa) decided to stay the proceedings and to refer the following question to the Court:

‘Are Articles 1(1) and 2(1) of Regulation [No 44/2001] to be interpreted — including in the light of Article 47 of the [Charter], Article 6(1) [of the] ECHR and recital 16 of Directive [2009/15] — as preventing a court of a Member State, in an action in tort, delict or quasi-delict in which compensation is sought for death and personal injury caused by the sinking of a passenger ferry, from holding that it has no jurisdiction and from recognising the jurisdictional immunity of private entities and legal persons established in that Member State which carry out classification and/or certification activities in so far as they carry out those activities on behalf of a non-EU State?’

18.      Written observations have been submitted by the parties to the main proceedings, the French Government and the European Commission. The same parties were represented at the hearing on 18 September 2019.

IV.    Analysis

19.      By its question, the referring court seeks to establish, in essence, whether it must decline to hear the case in the main proceedings because of the plea of immunity from jurisdiction raised by the defendants, or whether it should take the view that, because the defendants are domiciled in the forum State, and taking into account considerations based on Article 47 of the Charter and Article 6(1) of the ECHR, Regulation No 44/2001 does apply to the case and it has jurisdiction to hear the action, pursuant to Article 2(1) of that regulation.

20.      Admittedly, the wording of the question referred for a preliminary ruling might initially seem to suggest that the referring court is solely asking whether, as a result of the plea of immunity from jurisdiction raised by the defendants, it is under an obligation to decline to exercise the jurisdiction which it derives from Regulation No 44/2001. Viewed in that way, the question would appear to imply that that regulation is applicable ratione materiae in the circumstances of the case.

21.      However, it is clear from the statement of reasons for the request for a preliminary ruling that the referring court in fact entertains doubts about the scope ratione materiae of Regulation No 44/2001. To use the words of the referring court itself, it is seeking to establish whether or not Article 1(1) of that regulation is to be interpreted as including within ‘administrative matters’ the activities at issue carried out by the defendants as delegates of a third State.

22.      The referring court also mentions Article 2(1) of Regulation No 44/2001 in the question which it has referred. That is unquestionably an allusion to the fact that the defendants are domiciled in the Member State of the referring court, Italy.

23.      That said, the scope of Regulation No 44/2001, as far as all of the grounds of jurisdiction provided for in that regulation are concerned, is the same. However, the fact I have mentioned is potentially relevant to the question referred because it demonstrates a connection, a relationship of proximity even, between the facts of the case in the main proceedings and the Member State of the forum and, consequently, the European Union. It cannot be ruled out that the existence of such a connection might influence the right of access to justice where a claim of immunity from jurisdiction is made. (7)

24.      Indeed, the reason for the referring court’s reference to the plea of immunity from jurisdiction raised by the defendants is that it wishes to establish whether it is entitled decline to exercise the jurisdiction which it derives from Regulation No 44/2001 as a result of that plea.

25.      Having regard to the foregoing, after first considering the admissibility of the question referred (Section A), it will be necessary, in order for me to be able to suggest a helpful answer to that question, to determine, in the first place, how the principle of customary international law concerning the jurisdictional immunity of States relates to the scope ratione materiae of Regulation No 44/2001 (Section B). In the second place, I shall need to consider whether an action for damages brought against private-law entities concerning their classification and/or certification activities falls within that scope (Section C) and, if it does, in the third place, I shall need to address the question of whether, as a result of a plea of immunity from jurisdiction raised by those entities, a national court must decline to exercise the jurisdiction which it derives from one or other provision of that regulation (Section D). (8)

A.      Admissibility

26.      The defendants maintain that the question referred for a preliminary ruling is inadmissible. They state, first, that the referring court would be entitled to exercise its power to make a reference for a preliminary ruling only if it had dismissed the plea of jurisdictional immunity. They allege that there is, in any event, no correlation between the provisions of Regulation No 44/2001 of which interpretation is sought and the plea of immunity from jurisdiction raised in the main proceedings on the basis of customary international law. Secondly, the question referred does not concern any supposed incompatibility between a provision of EU law and a provision of domestic law. Thirdly and lastly, Regulation No 44/2001 is not, according to the Court’s case-law, applicable to disputes concerning liability for acts performed iure gestionis and the national court alone has jurisdiction to give a substantive ruling on the nature of the acts at issue.

27.      I do not have the same reservations as the defendants regarding the admissibility of the question referred.

28.      First, in so far as concerns the defendants’ argument that the Tribunale di Genova (District Court, Genoa) should itself have ruled on the plea of immunity from jurisdiction and that there is no correlation between that plea and the interpretation of the provisions of Regulation No 44/2001, it seems to me that that argument reflects the view that the recognition of an exception based on such immunity dispenses with the need to analyse the rules of jurisdiction laid down in EU law, treaty law or domestic law in order to determine whether or not the court seised can hear the action. (9)

29.      That said, in the case which resulted in the judgment in Lechouritou and Others, (10) the Court was called upon to rule first of all on the scope of the Brussels Convention (11) and, secondly, on the applicability of that convention to a dispute in which one of the parties enjoyed immunity from jurisdiction. In its reply to the question concerning the scope of the convention, the Court did not consider that question to be inadmissible. However, in that case the characterisation of the acts at issue as acts performed iure imperii was less open to discussion than it is in the present case. Similarly, in the judgment in Mahamdia, (12) the Court gave a ruling on the interpretation of one of the rules of jurisdiction in Regulation No 44/2001, even though the referring court had merely ‘presumed’, as the Court seems to have emphasised, that the facts of the case in the main proceedings were not such that the defendant State could plead immunity from jurisdiction.

30.      Indeed, questions on the interpretation of EU law enjoy a presumption of relevance and it is therefore only in rare and extreme cases that the Court will decline to provide an answer, notably where it is quite obvious that the interpretation of a provision of EU law which is sought by the national court bears no relation to the actual facts of the main action or to its purpose or where the problem is hypothetical. (13) In the present case, as in the abovementioned cases, it cannot be said that there is a lack of any real, direct connection between provisions of Regulation No 44/2001 and the subject matter of the dispute in the main proceedings.

31.      Secondly, as far as concerns the argument that the question referred is inadmissible because it does not concern any alleged incompatibility between a provision of EU law and a provision of national law, suffice it to say that that argument misapprehends the nature of a request for a preliminary ruling. In preliminary ruling proceedings, the Court does not rule on the interpretation of national law or on the compatibility of national law with EU law. (14)

32.      Thirdly and lastly, the argument that Regulation No 44/2001 does not apply to the dispute in the main proceedings prejudges the Court’s answer to the question referred. As the debate between the parties illustrates, the answer to the question of whether classification and certification operations are acts performed iure imperii, such that they do not come within the concept of ‘civil and commercial matters’, within the meaning of Article 1(1) of that regulation, is far from obvious. Moreover, while the national court does have sole jurisdiction to assess the facts of the case in the main proceedings, when giving a preliminary ruling, the Court may, in accordance with the tasks conferred on it, provide clarification designed to give the national court guidance in that assessment.

33.      It follows that the request for a preliminary ruling is admissible.

B.      The relationship between the principle of customary international law concerning the jurisdictional immunity of States and the scope ratione materiae of Regulation No 44/2001

1.      The principle of customary international law concerning the jurisdictional immunity of States

34.      Immunity from jurisdiction is a procedural bar which prevents the courts of one State from giving judgment on the liability of another. It is based on the principle of international law par in parem non habet imperium, an equal has no authority over an equal. (15)

35.      The Court confirmed that interpretation of immunity from jurisdiction in its judgment in Mahamdia. (16) It also clarified, in general terms, that, in the present state of international law, immunity from jurisdiction is not absolute and may be excluded if the legal proceedings relate to acts performed iure gestionis which do not fall within the exercise of public powers. (17) The Court has thus implicitly recognised that the doctrine of relative immunity has replaced that of absolute immunity in accordance with which States enjoyed immunity regardless of the nature of the acts in connection with which their liability was alleged.

36.      I must clarify in this regard that the immunity from jurisdiction which the defendants in the main proceedings claim is based not on the fact that the party pleading it is a State, but on the nature of the duties actually carried out by that party (functional immunity or immunity ratione materiae). One could argue that, given the recognition of relative immunity, in which a distinction must be made between acts performed iure imperii and acts performed iure gestionis, the jurisdictional immunity of States which attaches to the exercise of public powers is essentially functional in nature.

37.      Although international law appears to have recognised the concept of relative immunity from jurisdiction, in which this distinction is drawn, (18) difficulty nevertheless persists in determining the exact scope of immunity from jurisdiction, because the distinction itself remains unclear. The difficulty is aggravated by the fact that, today, State action may to some degree be privatised and by the fact that certain specific tasks of a public nature are now entrusted to economic actors in the market, which in itself creates doubts about the purely commercial nature of the position of such actors vis-à-vis individuals.

38.      This difficulty explains why codification of the principle of customary international law concerning the jurisdictional immunity of States has not met with great success. The European Convention on State Immunity (19) (‘the Basel Convention’) has been ratified by only a few European States, while the Convention on Jurisdictional Immunities of States and Their Property (20) (‘the New York Convention’) has not yet even entered into force. The provisions of the New York Convention are sometimes regarded as the expression of the principles of customary international law. (21) Nevertheless, while that convention may serve as a basis for identifying general trends in the law relating to immunity, it can hardly be regarded as a source of any binding, specific guidelines, especially in so far as concerns the provisions of the convention which aroused objections while the convention was being drafted. (22) That applies, in particular, to the precise criteria for distinguishing between transactions performed iure imperii and those performed iure gestionis. (23)

39.      In any event, in the absence of codification at international level, the principle concerning the jurisdictional immunity of States remains to a large extent governed by customary international law.

2.      The effect of customary international law on the scope ratione materiae of Regulation No 44/2001

40.      Under Article 3(5) TEU, the European Union is to contribute to the strict observance and the development of international law. Consequently, when it adopts an act, it is bound to observe international law in its entirety, including customary international law, which is binding upon the institutions of the European Union. (24) On that basis, the Court has held that provisions of secondary EU law must be interpreted, and their scope limited, in the light of the relevant rules of international law. (25)

41.      However, there is nothing to prevent the legislature from adopting rules of jurisdiction that apply ratione materiae to disputes in which one of the parties may rely on immunity from jurisdiction. (26) What customary international law requires is that jurisdiction should not be exercised against such a party to a dispute against its will. (27)

42.      Consequently, the interpretation of provisions of Regulation No 44/2001 in the light of customary international law should not result in the material scope of that regulation not covering disputes in which one of the parties may rely on immunity from jurisdiction. In addition, the question of whether that regulation may apply ratione materiae in a dispute must, a priori, be distinguished from the question of whether the jurisdiction derived from that regulation may be exercised with regard to that dispute.

43.      Admittedly, on reading the judgment in Mahamdia, (28) one might initially think that the EU legislature nevertheless adopted the solution that the concept of ‘civil and commercial matters’ should coincide with the negative scope of jurisdictional immunity. (29) In that judgment, the Court first of all drew a distinction between the application of Regulation No 44/2001 in a given dispute and the material scope of that regulation in that dispute. It appears that the Court then went on to indicate that it was permissible, after completing a single examination of the facts of the case in the main proceedings, to consider the questions of whether immunity from jurisdiction precluded the application of that regulation and whether the regulation applied ratione materiae.

44.      However, in the first place, I understand that judgment to mean that, in so far as concerns disputes which a priori fall within the scope of Regulation No 44/2001 — which is indisputably the case for disputes relating to private-law agreements, such as contracts of employment (30) — once it has been established that immunity from jurisdiction does not preclude the application of that regulation, the latter must, a fortiori, apply in the dispute.

45.      In the second place, to take the view that the material scope of Regulation No 44/2001 coincides with the negative scope of jurisdictional immunity would call into question the essential distinction which that regulation draws between disputes which are civil or commercial matters and those which are not. To illustrate the point, I would observe that, while it is far from certain that local authorities can rely on State immunity from jurisdiction, they are nevertheless engaged in administrative activities. (31) Within that framework, they may enjoy powers conferred by public law. Should we then assume that every act of a local authority is a ‘civil or commercial matter’ merely because the local authority does not enjoy immunity from jurisdiction?

46.      In the third place, the controversial issue of the law relating to State immunity is whether the nature of the acts at issue is to be determined in accordance with the law of the forum or in accordance with solutions offered by public international law. (32) Regardless of the answer to that question, in so far as Regulation No 44/2001 is concerned, the distinction between disputes which are civil or commercial matters and those which are not must be drawn by reference to the independent criteria of EU law identified by the Court in its case-law. Consequently, an act performed in the exercise of State authority (acta iure imperii) from the perspective of the law relating to immunity, is not necessarily the same as an act performed in the exercise of State authority according to the independent criteria of EU law.

47.      For those reasons, I believe that the EU legislature might have drawn inspiration from customary international law and taken general guidance from it in so far as concerns the distinction between acta iure imperii and acta iure gestionis. However, I am of the opinion that it did not have recourse to the concept of immunity from jurisdiction in order to define precisely the reach of EU rules in the area of judicial cooperation in civil matters having cross-border implications or, in particular, the material scope of Regulation No 44/2001.

48.      Consequently, I think it unnecessary to refer to the principle of customary international law concerning State immunity from jurisdiction when considering the scope ratione materiae of Regulation No 44/2001.

C.      The scope ratione materiae of Regulation No 44/2001

1.      The concept of ‘civil and commercial matters’ and acts performed in the exercise of public powers as interpreted in the case-law of the Court

49.      As I mentioned in point 21 above, in the statement of reasons for the present request for a preliminary ruling, the referring court states that the present case entails establishing whether or not Article 1(1) of Regulation No 44/2001 must be interpreted as including within ‘administrative matters’ the activities at issue which the defendants carried out as delegates of a third State.

50.      The referring court also refers to the applicants’ argument that they performed the classification and certification operations as acts in the exercise of State authority (acta iure imperii), inasmuch as they acted as delegates of a third State and on behalf of that State. That court accepts that the defendants did act as delegates of a third State and on behalf of that State. However, it has doubts about the characterisation of the classification and certification operations as ‘acts carried out iure imperii’ and, consequently, whether it is under any obligation to recognise the immunity from jurisdiction on which the defendants rely.

51.      Article 1(1) of Regulation No 44/2001 does not expressly mention acts carried out in the exercise of public powers (acta iure imperii) or liability for such acts. That provision merely stipulates that that regulation applies in civil and commercial matters (first sentence) and that it does not, on the other hand, extend, in particular, to revenue, customs or administrative matters (second sentence). (33)

52.      In this connection, it is apparent, from recital 7 of Regulation No 44/2001 in particular that the intention of the EU legislature was to adopt a broad definition of the concept of ‘civil and commercial matters’ referred to in Article 1(1) of that regulation and, consequently, to provide that the regulation should be broad in its scope. (34) That is reflected by the fact that, in principle, actions seeking legal redress for damage are civil and commercial matters and therefore come within the scope of Regulation No 44/2001. (35) Moreover, the Court has made clear in consistent case-law that the scope of that regulation is defined essentially by the elements which characterise the nature of the legal relationships between the parties to the dispute or the subject matter thereof. (36)

53.      On that view alone, practically every action for damages, with the exceptions provided for in Article 1(2) of Regulation No 44/2001, would inevitably fall within the scope of that regulation. That would be especially true of actions brought by third parties who, generally speaking, have no legal relationship with the alleged author of the damage before its occurrence, the only relationship between them being that arising from the event giving rise to the damage.

54.      However, in the first place, an action for damages is in principle directed against the acts from which stems the harm alleged by one of the parties to the dispute. Those acts must not be of such a nature as to preclude an action from the concept of ‘civil and commercial matters’ so that Regulation No 44/2001 is applicable to the dispute in relation to which the action is brought. (37)

55.      In the second place, although Regulation No 44/2001 does not mention acts carried out iure imperii, the same is not true of its successor, Regulation No 1215/2012, which provides, in the second sentence of Article 1(1) thereof, that the regulation does not apply, in particular, to ‘the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii)’.

56.      The recasting of Article 1(1) of Regulation No 44/2001 did not cause Regulation No 1215/2012 to have a different scope from that of Regulation No 44/2001. The mention of acts carried out iure imperii is simply a clarification, (38) and Articles 1(1) of the two regulations may be regarded as equivalent. (39)

57.      Indeed, the list revenue, customs or administrative matters appearing in the second sentence of Article 1(1) of Regulation No 44/2001 is not exhaustive; it merely illustrates the matters capable of giving rise to disputes that are not civil or commercial matters. The list is preceded by the words ‘in particular’ and the matters included are, moreover, separated by the word ‘or’, at least in the English- and French-language versions.

58.      Accordingly, in order to define the scope of Regulation No 44/2001, it is necessary to identify what the matters mentioned in the second sentence of Article 1(1) of that regulation have in common and to bear in mind that those matters help to define ‘civil and commercial matters’ by clarifying what civil and commercial matters are not. (40)

59.      It is precisely by following that reasoning that, in its abundant case-law on Article 1(1) of Regulation No 44/2001, the Court has repeatedly held that it is the exercise of public powers by one of the parties to the case, inasmuch as it exercises powers falling outside the scope of the ordinary legal rules applicable to relationships between private individuals, that excludes such a case from civil and commercial matters within the meaning of Article 1(1) of that regulation. (41) On that basis the Court has already held that an action whereby a tax authority of one Member State claims damages for loss caused by a tortious conspiracy to commit value added tax (VAT) fraud in that Member State falls within the concept of ‘civil and commercial matters’, provided that the tax authority is in the same position as a person governed by private law in the action in question. (42) I infer from this that, in order to determine whether or not Regulation No 44/2001 is applicable in a case, it is not necessary to focus upon the field or area to which belongs the act in respect of which liability is alleged; it is necessary to consider whether that act proceeds from the exercise of public powers.

60.      It is in the light of that case-law that the Court should consider whether Regulation No 44/2001 applies in the case in the main proceedings. First of all, it is necessary to establish what the classification and certification operations which gave rise to that case, and in respect of which liability is alleged, actually consisted in and then to determine whether those operations proceeded from the exercise of public powers, within the meaning established by the Court.

2.      Classification and certification operations

61.      The obligations of States with regard to the classification and certification of ships flying their flag arise from international conventions on maritime safety and the prevention of marine pollution, such as UNCLOS and the SOLAS Convention.

62.      It becomes clear on analysing such conventions, as well as international practice in the area, (43) that classification activities entail the issue, by organisations known as classification societies, of class certificates (documents which certify that ships have been built in accordance with the regulations for their class and are maintained in accordance with those regulations). Initially, such certificates fulfilled a private function and were issued, in particular, so that insurance cover could be obtained. However, as the Commission has pointed out, obtaining a class certificate is now a pre-condition of statutory certification. (44)

63.      For its part, statutory certification was, and still is carried out in performance of obligations arising from international conventions on maritime safety and the prevention of marine pollution. (45) It entails the issue of statutory certificates by or on behalf of a flag State by an approved organisation.

64.      In practice, the inspection and surveying of a ship with a view to its classification and certification, and the issuing of the certificates, are performed by the same economic entity. Those activities are carried out for remuneration, under one or more commercial agreements concluded directly with the shipowner.

65.      That brief description reflects the facts of the case in the main proceedings. On the basis of an agreement concluded with the Republic of Panama in 1999 (‘the 1999 agreement’), the defendants carried out, as delegates of that State and on its behalf, and allegedly also in its interests, the classification and certification operations at issue. In that context, against remuneration and pursuant to an agreement concluded with the owner of the ship Al Salam Boccaccio ’98, they carried out the inspections and surveys required for the classification and certification of that vessel and subsequently issued the class certificates and statutory certificates for it.

66.      It is the light of that description of the facts of the case in the main proceedings that it is necessary to determine whether the acts at issue, consisting in the classification and certification of a ship by a private-law body, first, as delegates of a State, secondly, on behalf of and in the interests of that State and, thirdly, in performance of the State’s international obligations in the area of maritime safety and the prevention of marine pollution, proceeded from the exercise of public powers, in accordance with the criteria identified by the Court in its case-law on the concept of ‘civil and commercial matters’.

3.      Acts carried out upon delegation from a State

67.      The mere fact that the defendants carried out certain operations upon delegation from a State does not necessarily mean that an action which arises from those operations is not covered by the concept of ‘civil and commercial matters’ within the meaning of Regulation No 44/2001.

68.      In this context, the Court has already held that the mere fact that certain powers are conferred, or even delegated, by an act of public authority does not imply that those powers are exercised iure imperii. (46)

69.      Indeed, in a case in which there are multiple relationships involving a party that is a public authority and a person governed by private law, as well as only parties governed by private law, it is necessary to identify the legal relationship between the parties to the dispute and to examine the action that has been brought. (47) Viewed from that perspective, the factors which characterise the relationship between the delegating authority and the delegate, which are liable to remove that relationship from the scope of Regulation No 44/2001, have no effect on the characterisation of the legal relationship between the delegate and parties that benefit from its services. (48)

70.      The same must apply to third parties who have no contractual legal relationship with the delegate. After all, an action for damages brought by a third party is directed against the acts which proceed from the relationship between that delegate and the parties that benefit from its services. An act carried out without recourse to public powers does not change in nature depending upon the person that has suffered harm as a result of that act. Moreover, a body that has carried out acts that are covered by the concept of ‘civil and commercial matters’ in so far as its contractual partner is concerned should not be able to escape the jurisdiction of the civil courts in actions for damages brought by third parties in connection with those same acts.

4.      Acts carried out on behalf of and in the interests of a State

71.      Similarly, the fact that the classification and certification operations were carried out on behalf of and in the interests of a delegating State is not in itself a decisive factor in characterising those operations as ones carried out in the exercise of public powers, as contemplated by the case-law on Article 1(1) of Regulation No 44/2001.

72.      It is true that, on reading the relevant case-law of the Court, one might be led to think that the performance of certain duties in the interests pursued by the State excludes a dispute from the realm of civil and commercial matters.

73.      In its judgment in Kuhn, (49) the Court held that a dispute between a private individual and a Member State concerning the introduction of a measure by which that State imposed on all the holders of securities which it had issued a substantial amendment of the financial terms of the securities did not fall within ‘civil and commercial matters’. In reaching that conclusion, the Court apparently found, first of all, that such a measure was a manifestation of the exercise of powers falling outside the scope of the ordinary legal rules applicable to relationships between private individuals. (50) Next, the Court focused on the context in which the measure had been taken and the public interest objective that it pursued, (51) namely the State’s interests in the area of public finances and the interests of the euro area in financial stability. Lastly, the Court held that, having regard to the exceptional character of the conditions and circumstances surrounding the adoption of the measure and to the public interest objective that it pursued, the origin of the dispute in the main proceedings stemmed from a manifestation of public authority. (52)

74.      Nevertheless, in my opinion, that judgment cannot be understood as meaning that the general objective of a measure, such as it may be inferred from the context in which it is adopted, is in itself sufficient support for a finding that it constitutes a manifestation of public authority.

75.      In the first place, to accept that the objective of an act carried out without the exercise of exceptional powers could be sufficient to support a finding that a dispute which arises from that act does not fall within the scope of ‘civil and commercial matters’ would be inconsistent with the settled-case-law according to which the use of public powers excludes a dispute from the realm of civil and commercial matters. (53)

76.      In the second place, while recourse to exceptional powers is a reliable and objectively verifiable criterion, the same may not be said of the objective pursued by an act performed on behalf of a State. The objective of an act need not necessarily be known to the person upon whom that act has deleterious effects. However, predictability as to the courts having jurisdiction is one of the principles which underlie judicial cooperation in civil and commercial matters within the European Union. (54) Although, by definition, that principle concerns the separation of jurisdiction between the courts of the Member States, from the viewpoint of predictability as to the court having jurisdiction, it is even more important to know whether Regulation No 44/2001, which lays down the rules governing that separation, is applicable to the case at hand.

77.      In the third place, in practice, a government objective may be identified in any activity carried out by or on behalf of a State. To accept that certain actions do not fall within the concept of ‘civil and commercial matters’ as a result of the objective of the acts which gave rise to those actions would mean that entire categories of purely civil cases could be excluded from the scope of Regulation No 44/2001. (55)

78.      For those reasons, the circumstance that, in the light of their objective, certain acts are performed in the public or general interest is, in my opinion, merely an indication that those acts are performed in the exercise of powers falling outside the scope of the ordinary legal rules applicable to relationships between private individuals.

79.      Confirmation for that interpretation is to be found in the judgment in Pula Parking, (56) in which the Court held that a dispute relating to the collection of parking fees by a company owned by a local authority, which had given rise to the request for a preliminary ruling, fell within the concept of ‘civil and commercial matters’, even though the management of the public parking spaces and the collection of parking fees were, according to that judgment, carried out in the local interest. It is thus clear from that judgment 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 of the case-law on Article 1(1) of Regulation No 44/2001.

80.      Moreover, in its judgment in Sonntag, (57) the Court held that the fact that a teacher in a State school had the status of civil servant and acted in that capacity did not conclusively exclude an action for damages brought against that teacher from the scope of the Brussels Convention. The Court held, in this regard, that even if a civil servant acts on behalf of the State, he does not always exercise public powers. It follows that the mere fact of acting on behalf of a State does not mean that the acts in question are performed in the exercise of public powers, in the abovementioned sense.

81.      The Court adopted that interpretation even though the consequences of the teacher’s liability were covered by public insurance or even by a social insurance scheme governed by public law. (58) As Advocate General Darmon observed in his Opinion in Sonntag, (59) the existence of such insurance, which is not among the criteria established by the Court in its case-law on the concept of ‘civil and commercial matters’, could not exclude from the scope of the Brussels Convention an act which, by its nature, fell within it.

82.      The fact that public funds might be called upon to provide compensation for acts performed by a person acting on behalf of the State does not, therefore, exclude disputes which arise from such acts from the material scope of the Brussels Convention or, therefore, from that of Regulation No 44/2001. I infer from that that disputes which stem from acts performed on behalf of a State are also not excluded from the scope of that regulation by the possibility of the State’s incurring liability for harm caused by those acts. (60)

83.      Neither the fact that the acts in question were performed on behalf of and in the interests of the delegating State nor the possibility of the State’s incurring liability for harm caused by those acts, in itself conclusively characterises those acts as ones performed in the exercise of powers falling outside the scope of the ordinary legal rules applicable to relationships between private individuals.

5.      Acts carried out in performance of a State’s international obligations

84.      The fact that a private-law body carries out, as delegate of a State, on behalf of that State and in its interests, acts in the performance of the State’s international obligations in the area of maritime safety and the prevention of marine pollution has no bearing on whether or not those acts are performed in the exercise of public powers.

85.      Admittedly, the judgment in Rüffer (61) might be understood as meaning that an action brought by an agent responsible for public waterways in order to recover the costs incurred in removing a wreck did not fall within the concept of ‘civil and commercial matters’, because the removal was carried out in performance of an international obligation relating to environmental protection and on the basis of provisions of national law.

86.      Apprehended thus, that judgment might plead in favour of an interpretation according to which Regulation No 44/2001 does not apply to the case in the main proceedings.

87.      However, in the case which gave rise to the judgment in Rüffer, as the Court itself indicated, (62) the authority concerned carried out river policing tasks and had the status of public authority in regard to private persons.

88.      Indeed, the owner of land cannot take possession of property situated on it, sell it and use the proceeds to cover the cost of removing that property except in the case where powers falling outside the scope of the ordinary legal rules applicable to relationships between private individuals are exercised. (63) Whatever the source of such powers, be it international or national, and whosoever the individuals might be whose protection is sought by the exercise of such powers, it is therefore the recourse, in the performance of the acts concerned, to public powers that excludes the application of Regulation No 44/2001.

89.      It merely remains for me to ascertain whether the acts at issue, that is to say, the classification and certification of a ship, proceeded from the exercise of public powers and thus fall outside the concept of ‘civil and commercial matters’ within the meaning of Article 1(1) of Regulation No 44/2001. In doing that, it might be helpful to analyse the delegation by which a State entrusts certain tasks to a private-law body and the laws which govern the performance of the obligations arising under that delegation, in order to identify the range of powers used in performing the acts at issue and to determine whether, in accordance with the criteria established by the Court in its case-law on the concept of ‘civil and commercial matters’, such acts proceed from the exercise of public powers. (64)

6.      The range of powers used in performing classification and certification operations

90.      In so far as the case in the main proceedings is concerned, the inspections and surveys conducted with a view to the classification and certification of a ship may result in the revocation of a certificate or, as is provided for in the SOLAS Convention, in a recognised organisation’s requiring repairs to be made to a ship. If it does that, the organisation must apply the relevant rules on maritime safety and the prevention of marine pollution.

91.      First of all, there is nothing to suggest that an organisation carrying out classification and certification operations has the status of public authority in regard to private individuals other than the shipowner.

92.      Secondly, even if one focuses on the status of such an organisation in regard to the shipowner, it is clear from the 1999 agreement that the defendants provided their services for consideration, pursuant to a private-law agreement concluded directly with the owner of the Al Salam Boccaccio ’98. There is nothing to suggest that the parties to that agreement were not at liberty to determine the price for those services. Moreover, according to the 1999 agreement, the defendants could have inserted into the agreement terms to limit their liability. I infer from that that the details of that agreement were not decided upon unilaterally, but in the exercise of freedom of contract. In so far as that freedom includes, in particular, the freedom to choose with whom to do business, it seems appropriate to add that the claimants argue that the shipowner in question chose the defendants from a number of organisations carrying out classification and certification operations for the flag State.

93.      Therefore, whatever the status or position of the defendants vis-à-vis the shipowner, it was framed within the agreement established with the shipowner’s consent, under which the shipowner agreed to submit to inspections and surveys, and to bear the costs thereof. Accordingly, even in so far as the defendants were able to exercise corrective powers, they would have done so within the framework to which the shipowner had freely consented.

94.      Thirdly, it is clear from the 1999 agreement that the interpretation of the applicable legal instruments, the determining of equivalences and the approval of requirements other than those laid down in the applicable instruments are prerogatives of the Panamanian Government. The 1999 agreement provides that exemptions from the requirements laid down in the applicable instruments are also prerogatives of that government and require its approval before a certificate can be issued. Albeit that legislative activity constitutes the exercise of public powers, there is nothing to suggest that the delegating State did not retain its exclusive competence with regard to that activity. On the other hand, activities such as those carried out by the defendants, the purpose of which, as is apparent from the 1999 agreement, is to establish the conformity of ships with the relevant requirements laid down in the applicable legal instruments and the issue of the corresponding technical certificates, seem to be activities of a technical nature.

95.      That being so, the revocation of a certificate resulting from a ship’s lack of conformity with those requirements does not result from the exercise of the decision-making powers of organisations such as the defendants, whose role is limited to carrying out checks in accordance with a pre-defined regulatory framework. If, following the revocation of a certificate, a ship is no longer able to sail, that is because of the sanction which, as the defendants admitted at the hearing, is imposed by law.

96.      Fourthly and last, helpful guidance may, as the Commission points out, be found in the abundant case-law on the freedom of establishment and the freedom to provide services. (65)

97.      It is worth pointing out, in particular, that in its judgment in Rina Services and Others, (66) the Court stated that the derogation contained in Article 51 TFEU did not apply to the certification activities carried out by companies classified as certification bodies because those companies were commercial undertakings which performed their activities in conditions of competition and did not have any power to make decisions connected with the exercise of public powers.

98.      That being so, to my mind, one cannot maintain that the activities carried out by the defendants with a view to the classification and certification of the Al Salam Boccaccio ’98, and the issue of certificates to that effect, proceeded from the exercise of public powers.

7.      Interim conclusion

99.      My analysis has shown, first of all, that the mere fact that the defendants carried out the acts at issue upon delegation from a State does not in itself mean that the dispute in which liability for those acts is alleged falls outside the scope ratione materiae of Regulation No 44/2001. (67) Secondly, the fact that those acts were carried out on behalf of, and in the interests of the delegating State does not have that effect either. (68) Thirdly and last, the fact that those operations were carried out in performance of international obligations of the delegating State in no way calls the foregoing conclusions into question. (69)

100. Nevertheless, whenever recourse is had to public powers when carrying out acts, Regulation No 44/2001 will not as a result apply ratione materiae in a dispute in which liability for those acts is alleged. Given the range of powers exercised by the defendants in carrying out the classification and certification of the Al Salam Boccaccio ’98, those operations cannot be regarded as proceeding from the exercise of public powers. (70)

101.  In light of the foregoing, it should be held that Article 1(1) of Regulation No 44/2001 is to be interpreted as meaning that an action for damages brought against private-law bodies concerning classification and certification activities carried out by those bodies upon delegation from a third State, on behalf of and in the interests of that State, falls within the concept of ‘civil and commercial matters’ within the meaning of that provision.

D.      The effect of the principle of customary international law concerning the jurisdictional immunity of States on the exercise of the jurisdiction derived from Regulation No 44/2001

102. The only remaining question is that concerning the effect of the plea of immunity from jurisdiction, raised before the referring court, on the exercise of the jurisdiction derived from Regulation No 44/2001. In order to answer that question, first of all, it is necessary to determine whether, in the current state of international law, the defendants can rely on the jurisdictional immunity of States. If they can, it will then be necessary to consider whether, taking into account the fact that the defendants are domiciled in a Member State and that Regulation No 44/2001 applies ratione materiae to the dispute in the main proceedings, the referring court can nevertheless hear the case.

103. I think that the Court of Justice has jurisdiction to interpret customary international law in so far as it may have a bearing on the interpretation of EU law.

104. The Court has already held that, where the situation forming the subject matter of a case which gives rise to a request for a preliminary ruling does not come within the scope of EU law, it has no jurisdiction to interpret and apply the rules of customary international law which the referring court is minded to apply to that situation, such as those relating to the State’s immunity from suit. (71)A contrario, if the situation at issue does come within the scope of EU law and the interpretation of EU law is likely to be affected by a rule of customary international law, the Court may also interpret that rule.

105. That conclusion is corroborated by the judgment in Mahamdia, (72) in which the Court proceeded to determine the content of the principle of customary international law concerning State immunity from jurisdiction and concluded that that principle did not preclude the application of Regulation No 44/2001 to the case in the main proceedings.

106. However, as I indicated in point 46 above, it is unclear whether the distinction between acts performed iure imperii and acts performed iure gestionis is to be made in accordance with the criteria of the law of the forum or with the criteria of international law. Nevertheless, even those who subscribe to the principle that the classification of the acts in question should be under the law of the forum admit that that classification must be consistent with international law. (73) Following that line of thought, it should be possible, by determining the content of the law relating to immunity in accordance with the solutions offered by international law, to establish generally recognised requirements for jurisdictional immunity.

1.      The immunity from jurisdiction of classification and certification bodies

107. Although it has not endeavoured to identify any relevant rule of customary international law, the referring court appears not to rule out the possibility of the defendants’ being able to rely on immunity from jurisdiction. The defendants alone maintain that they can rely on immunity from jurisdiction in respect of all of their activities. In support of that assertion, they refer to various conventions and to the 1999 agreement, as well as to judgments of the French and Italian courts. As for the French Government, it is of the opinion that the defendants enjoy immunity only with respect to their certification activities.

108. Just to clarify, a rule of customary international law will only exist where a given practice actually exists that is supported by a firm legal view (opinio juris), that is to say, where a rule is accepted as law. It is in the light of that principle that it is necessary to determine whether, in accordance with the doctrine of relative immunity, the content of the principle of State jurisdictional immunity is such that the defendants may claim immunity.

109. In so far as concerns, first of all, the case-law cited by the defendants, it does not support the unequivocal conclusion that a body carrying out classification and certification operations may rely on immunity from jurisdiction in circumstances such as those of the present case. Furthermore, a more extensive analysis of national case-law is equally incapable of supporting the assertion that immunity from jurisdiction is consistently granted to such bodies. (74)

110. In so far as concerns, secondly, the parameters of immunity from jurisdiction ratione materiae, they are rarely defined in the written sources of the law relating to immunity. Moreover, while such sources do exist, an analysis of them similarly reveals the lack of any uniform treatment of the immunities from jurisdiction of entities that are legally separate from the State. (75)

111. I would note in this connection that, on reading the judgment in Mahamdia, (76) one might think that the Court drew inspiration from the New York Convention in deciding whether or not one of the parties to the case in the main proceedings could rely on immunity from jurisdiction.

112. In that judgment, the Court held that, in a dispute in which an employee of an embassy of a third State seeks compensation and contests the termination of a contract of employment concluded by him with that State, the State does not enjoy immunity from jurisdiction where the functions carried out by the employee do not fall within the exercise of public powers or where the proceedings are not likely to interfere with the security interests of the State. (77)

113. Although the Court did not expressly state the reasons which had led it to include the proviso relating to the likelihood of interference with the security interests of the State, the same form of words appears in the provisions of the New York Convention concerning proceedings relating to contracts of employment.

114. Notwithstanding my reservations about the relevance of that convention, (78) I would observe that, according to its introductory provisions, the term ‘State’ covers, inter alia, agencies or instrumentalities of the State or other entities, to the extent that they are entitled to perform and are actually performing acts in the exercise of sovereign authority of the State. It is apparent from the preparatory work for the convention that such other entities are presumed not to be entitled to perform governmental functions and accordingly, as a rule, are not entitled to invoke immunity from jurisdiction of the courts. (79) In addition, the provisions of the New York Convention relating to commercial transactions provide that, where a State enterprise or other entity established by a State which has an independent legal personality and is capable of suing or being sued is involved in a proceeding which relates to a commercial transaction in which that entity is engaged, the immunity from jurisdiction enjoyed by that State is not affected. That must apply all the more to non-State entities, such as the defendants.

115. Lastly, in its questioning of the plea of immunity from jurisdiction, the referring court mentions recital 16 of Directive 2009/15. That recital states that, ‘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’.

116. That directive supplements the obligations imposed on Member States by international law, including UNCLOS and the SOLAS Convention. More specifically, it sets out the measures which Member States must follow in their relationships with organisations entrusted with the inspection, survey and certification of ships for compliance with the international conventions on safety at sea and the prevention of marine pollution, while furthering the objective of freedom to provide services.

117. Within that framework, Directive 2009/15 provides that, where a Member State entrusts certification duties to a recognised organisation, it must include in an agreement concluded with that organisation provisions relating to the latter’s financial liability. By means of those provisions, the Member States reserve their right of recourse against such organisations in the event that liability arising from a marine casualty is finally and definitely imposed on them.

118. It is as a counterpart to those specific obligations regarding the financial liability of recognised organisations that recital 16 of Directive 2009/15 apparently indicates that organisations such as the defendants do not enjoy the immunity from jurisdiction enjoyed by the State.

119. To complete my discussion of Directive 2009/15, and to the extent that it may be relevant in answering the question referred for a preliminary ruling, I would note that, by its reference to recital 21 of Implementing Directive 2014/111/EU, (80) the referring court seems to suggest that, having regard to recent developments, Directive 2009/15 is not consistent with international law or, at the very least, not with international practice in the area of maritime safety and the prevention of marine pollution. Indeed, recital 21 of Implementing Directive 2014/111 states that, as far as EU law is concerned, statutory certificates have a public nature, whereas class certificates have a private nature. By contrast, at international level, ‘statutory certification and services’ are systematically referred to as being performed by recognised organisations ‘on behalf of the flag State’, contradicting the legal distinction established in EU law.

120. On this point, suffice it to say that, in this Opinion, I have started from the premiss that a class certificate does not fulfil purely private functions (81) and that recital 16 of Directive 2009/15 concerns certificates of a public nature.

121. Admittedly, the defendants also argue, first, that Directive 2009/15 does not apply to the facts of the case in the main proceedings, secondly, that the European Union does not have jurisdiction to impose its interpretation of customary international law on the Member States, even though recital 16 of Directive 2009/15 appears to amount to an interpretation of such law, (82) thirdly, that that directive concerns Member States only and, fourthly, that a recital, in any event, has no prescriptive force.

122. In the first place, however, while it is true that Directives 2009/15 and 2014/111 are not applicable, ratione temporis, to the facts of the case in the main proceedings, it is necessary, in order to determine whether a party to a case may rely on immunity from jurisdiction, to apply the law on State immunity as it existed at the time of the main proceedings. (83)

123. In the second place, in so far as customary international law concerns questions pertaining to matters falling within the mandate of international organisations, the practice of international organisations may also contribute to the formation or expression of rules of customary international law. (84)

124. I must observe in this connection that UNCLOS, which the European Union has concluded, sets out the parameters of the international obligations of flag States in the area of maritime security and the prevention of marine pollution. By adopting Directive 2009/15, the EU exercised its jurisdiction to prescribe the measures that must be followed by the Member States in their relationships with recognised organisations, relationships which have arisen in the performance of international obligations. Moreover, the courts of the Member States derive their jurisdiction to hear actions concerning the liability of recognised organisations from EU law, in particular, Regulation No 44/2001. Consequently, the matter of the jurisdictional immunity of organisations carrying out classification and certification operations is part of the EU mandate.

125. In the third place, it is true that Directive 2009/15 concerns the Member States only. However, that restriction results not from any intention on the part of the EU legislature to restrict the reach of its interpretation of the principle of customary international law concerning immunity from jurisdiction, but from the fact that the EU mandate extends to the Member States alone. However, both the competence of any legislature and the jurisdiction of any court are limited in territorial and personal reach. That does not prevent them from contributing to the formation or expression of rules of customary international law, which, leaving aside regional customs, must be consistent globally and contain no notable contradictions.

126. In the fourth place, although a recital is not legally binding, it can constitute one form of the practice of an international organisation which, from the point of view of international law, is capable of contributing to the formation or expression of a rule of customary international law. (85) Indeed, according to international law, State practice and the practice of international organisations is apparent from the conduct which they adopt, and that conduct may take a wide variety of forms. (86) Moreover, a recital may be regarded as indicating where a rule has not been accepted as law (opinio juris).

127. Regardless of the nature of the interpretation of customary international law that one may identify in recital 16 of Directive 2009/15, that recital is not an incidental expression of the position adopted by the European Union with regard to the characterisation of classification and certification operations carried out by a private-law body as operations which do not proceed from the exercise of public powers. That interpretation in fact corresponds to the outcome of my analysis relating to Regulation No 44/2001. I would reiterate that that analysis shows that, having regard to the criteria for distinguishing between acts performed iure imperii and those performed iure gestionis, developed by the Court in its case-law on the concept of ‘civil and commercial matters’, the classification and certification operations carried out by private-law bodies should be regarded as acts performed without recourse to public powers. (87)

128. That being so, the picture that emerges from my analysis cannot be regarded as portraying a situation in which there unequivocally exists an actual practice that is supported by a firm legal view (opinio juris) in relation to a rule of customary international law which would enable the defendants to rely on the jurisdictional immunity of States in the case in the main proceedings. I think it appropriate to underline that a refusal to recognise the immunity from jurisdiction of a body that carries out classification and certification operations does not pre-judge the question of that body’s liability. That issue must be decided in accordance with the substantive provisions of the applicable law. In that context, one should not lose sight of the fact that such bodies may also enjoy substantive immunity. (88)

129. To conclude, the necessary conclusion is that the principle of customary international law concerning the jurisdictional immunity of States does not preclude the application of Regulation No 44/2001 in proceedings relating to an action for damages brought against private-law bodies concerning the classification and certification activities carried out by those bodies upon delegation from a third State, on behalf of that State and in its interests.

2.      Additional remarks on immunity from jurisdiction

130. For the sake of completeness, should the Court not agree with my analysis of the content of the principle of customary international law concerning the jurisdictional immunity of States, I would make three brief observations.

131. In the first place, the relationship between the jurisdictional immunity of States and the rules of jurisdiction in Regulation No 44/2001 is difficult to put into context.

132. As the defendants point out, Regulation No 44/2001 contains a provision which governs the relationship between that regulation and the conventions which bind the Member States, namely Article 71. Pursuant to that provision, the regulation does not affect any conventions to which the Member States are parties and which, in relation to particular matters, govern jurisdiction or the recognition or enforcement of judgments. According to legal theorists, that provision governs, inter alia, the relationship between Regulation No 44/2001 and the Basel Convention. (89) I infer from that that the question of the exercise of jurisdiction in the face of a plea of immunity from jurisdiction is a ‘particular matter’ within the meaning of Article 71 of that regulation which falls within the scope of that regulation. (90)

133. However, neither the Italian Republic nor the Republic of Panama is a party to the Basel Convention. In any event, in the factual situation of the case in the main proceedings, the source of the plea of immunity from jurisdiction is, as the referring court indicates and the defendants maintain, to be found in customary international law.

134. Article 71 of Regulation No 44/2001 solely concerns conventions to which the Member States were party at the time when that regulation was adopted. The static nature of that provision sits ill with the evolving nature of customary international law which, moreover, is binding both on the Member States and on the European Union. (91) Indeed, to take the view that Article 71 of Regulation No 44/2001 determines the relationship between that regulation and the principle of customary international law concerning the jurisdictional immunity of States is to suggest that the EU legislature wished to ‘freeze’ customary international law in the state it was in when that regulation was adopted. Such a solution would be clearly incompatible with Article 3(5) TEU, in accordance with which the European Union is to contribute to the strict observance and the development of international law.

135. Consequently, I am of the opinion that Article 71 of Regulation No 44/2001 is not relevant to the relationship between that regulation and immunity from jurisdiction. In the absence of relevant provisions in the regulation, it is, to my mind, appropriate to examine that relationship in the light of the clarification provided in the case-law on the relationship between EU law and international law, which, to a large extent, has been codified in Article 3(5) TEU. (92)

136. Against that background, it has consistently been held that international conventions which are an integral part of the legal order of the European Union and are binding on the Union have primacy over secondary legislation, which must be interpreted as far as possible in accordance with those conventions. (93) Leaving aside any differences between international conventions and the rules of customary international law, (94) since the latter form part of the legal order of the European Union and are binding upon it, (95) then they must also have primacy over acts of secondary legislation. This means that acts of secondary legislation such as Regulation No 44/2001 must be given a reading that is in accordance with the rules of customary international law. (96) At the same time, the provisions of that regulation must be interpreted in the light of the fundamental rights which form an integral part of the general principles of law whose observance the Court is to ensure and which are now set out in the Charter. (97)

137. The co-existence of two obligations, namely that of contributing to the observance of international law and that of ensuring respect for the autonomy of the European Union legal order, can create tensions which the Union must resolve. That will be the case, in particular, where international law requires a national court to recognise immunity from jurisdiction where EU law requires that court to exercise the jurisdiction which it derives from Article 2(1) of Regulation No 44/2001.

138. In that context, in the second place, in order for an obligation imposed by international law, convention or custom to form a part of the legal order of the European Union, that obligation must not call into question the constitutional structure or the values on which the European Union is founded. (98)

139. Two judgments illustrate that point. The first is the judgment in Hungary v Slovak Republic, (99) in which the Court held that the fact that a Union citizen performed the duties of a Head of State was such as to justify a limitation — based on customary rules of general international law and the rules of multilateral agreements, in accordance with which Heads of State enjoy a particular status in international relations which entails, inter alia, privileges and immunities — on the exercise of the right of free movement conferred on that person by Article 21 TFEU. On that basis, the Court concluded that, in the circumstances of the case, Article 21 TFEU did not oblige another State to guarantee access to its territory.

140. The second is the judgment in Kadi and Al Barakaat International Foundation v Council and Commission, (100) in which the Court held, in substance, that obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principle of the European Union that all EU acts must respect fundamental rights.

141. Those two apparently contradictory interpretations of the relationship between EU law and international law illustrate the importance of maintaining a balance between safeguarding the European Union’s constitutional identity and making sure that EU law does not become hostile to the international community, but is an active part of it. (101)

142. In that regard, recognition of immunity from jurisdiction on the part of the court of the forum does not prevent a claimant from commencing proceedings before the courts of the defendant State, since the latter will, in principle, have jurisdiction to hear an action directed against that State. The position might be different in the case of recognition of the immunity from jurisdiction of private-law bodies outside the State from which they derive their immunity. In the absence of a spatial link with that State, the courts of that State might not have jurisdiction to hear actions against such bodies. According to interpretations given by international courts, entitlement to immunity does not depend on the existence of effective alternative means of securing redress (102) or, therefore, on the availability to a claimant of another forum. I must confess to being sensitive to the argument that, as far as concerns situations which, a priori, fall within the jurisdiction of the courts of a Member State, a rule of customary international law that has such an effect should not be incorporated into the legal order of the Union without careful consideration.

143. Nevertheless, the cases in which no forum is available to a claimant as a result of the recognition of immunity from jurisdiction are few and far between (103) and they are, in any event, difficult to identify. The referring court accepts that, having regard to the facts of the case in the main proceedings, the Panamanian courts certainly have jurisdiction to hear the action. However, to refuse to regard the principle of customary international law concerning the jurisdictional immunity of States as forming part of the legal order of the European Union would mark a departure from the acquis of the international community in so far as all legal actions are concerned, including those where an alternative forum is available to the claimant.

144. Consequently, while not forgetting the implications which immunity from jurisdiction has for access to justice or the need to maintain a balance between safeguarding the EU’s constitutional identity and the observance of international law, it must be assumed that this principle is a part of the legal order of the European Union.

145. Having regard to the foregoing, it is necessary, in the third place, to consider whether, in the light of Article 47 of the Charter and Article 6(1) of the ECHR, a national court may yet refuse to recognise immunity from jurisdiction and exercise the jurisdiction which it derives from a rule of jurisdiction in Regulation No 44/2001.

146. The right of access to a court constitutes an element which is inherent in the right to a fair trial stated in Article 6(1) of the ECHR. (104) Similarly, the principle of effective judicial protection laid down in Article 47 of the Charter comprises various elements, including the right of access to a tribunal. (105)

147. A review of the case-law of the ECtHR reveals that, as far as that court is concerned, the granting of immunity from suit constitutes a restriction of that right. However, that restriction pursues a legitimate objective, namely that of complying with international law to promote comity and good relations between States through the respect of another State’s sovereignty. Moreover, generally speaking, the restriction is not disproportionate where it reflects generally recognised principles of international law on State immunity. (106)

148. Taking a similar approach, the Supreme Court of the United Kingdom recently held that, in the absence of any obligation arising from the principle of the jurisdictional immunity of States, a refusal to exercise jurisdiction was an infringement of Article 6 of the ECHR and — in the case of claims based on EU law — also of Article 47 of the Charter. (107) In its judgment, the Supreme Court did not, however, consider whether the recognition of immunity from jurisdiction undermined the exercise of the jurisdiction derived from Regulation No 44/2001. On the other hand, it did apparently consider that, as a result of the direct horizontal effect of Article 47 thereof, the Charter could be relied on against a third State so that a provision of national law on immunity from jurisdiction is disapplied in an action based on a right guaranteed by the legal order of the European Union.

149. In the present case, the basis of the action in the main proceedings is not to be found in EU law.

150. In such a context, first of all, where a national court derives its jurisdiction to hear a case from Regulation No 44/2001, it must apply EU law in accordance with Article 52(1) of the Charter. (108) Moreover, the principle of effective judicial protection is a general principle of EU law. Consequently, if the scope of the protection of rights and freedoms afforded by Article 47 of the Charter is limited for some reason in accordance with Article 52(1) of the Charter, the principle of effective judicial protection should ‘fill the gap’. (109)

151. Next, Article 47 of the Charter is sufficient in itself and does not need to be made more specific by provisions of EU or national law to confer on individuals a right which they may rely on as such. (110) Given that the principle of effective judicial protection comprises the right of access to a tribunal, individuals must be able to exercise, vis-à-vis the authorities of the Member States, their right to apply to the court having jurisdiction.

152. Finally, the Court has already held that the obligation to disapply any provision of national law which is contrary to a provision of EU law that has direct effect is not altered by the fact that the legal position of an individual might change once a national court disapplies a provision of national law on jurisdiction and rules on the action brought before it. (111) The same must be true of the implications of the exercise of balancing obligations under international law and obligations arising under EU law. (112)

153. In that context, the referring court expresses no doubts that there is effective access to the Panamanian courts. Moreover, it accepts that the case in the main proceedings does not involve crimes committed in breach of international rules with regard to jus cogens. That being so, I am of the view that the right of access to a tribunal would not preclude the referring court from recognising immunity from jurisdiction in the case in the main proceedings.

154. Without prejudice to the foregoing additional remarks on the scope of immunity from jurisdiction in the case in the main proceedings, I maintain the position which I put forward in point 129 of this Opinion.

V.      Conclusion

155. In the light of the foregoing considerations, I propose that the Court answer the question referred by the Tribunale di Genova (District Court, Genoa, Italy) as follows:

Article 1(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters is to be interpreted as meaning that an action for damages brought against private-law bodies in respect of classification and certification activities carried out by those bodies as delegates of a third State, on behalf of that State and in its interests, falls within the concept of ‘civil and commercial matters’ within the meaning of that provision.

The principle of customary international law concerning the jurisdictional immunity of States does not preclude the application of Regulation No 44/2001 in proceedings relating to such an action.

1      Original language: French.

2      Council Regulation of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1).

3      United Nations Treaty Series, Vol. 1833, 1834 and 1835, p. 3.

4      Council Decision of 23 March 1998 concerning the conclusion by the European Community of the United Nations Convention of 10 December 1982 on the Law of the Sea and the Agreement of 28 July 1994 relating to the implementation of Part XI thereof (OJ 1998 L 179, p. 1).

5      Concluded in London on 1 November 1974.

6      Directive of the European Parliament and of the Council of 23 April 2009 on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations (OJ 2009 L 131, p. 47).

7      See also judgment of the Supreme Court of the United Kingdom of 18 October 2017, in Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62, paragraph 59, in which the court held that territorial connections between the claimant on the one hand and the foreign or forum State on the other can never be entirely irrelevant, even though they have no bearing on the classic distinction between acts done iure imperii and iure gestionis. That was because the core principle of international law is that sovereignty is territorial and State immunity is an exception to that principle. I shall come back to the reasoning in that judgment in the part of this Opinion where I deal with the relationship between the plea of immunity from jurisdiction and the exercise of jurisdiction under Regulation No 44/2001.

8      A similar approach to the order in which it is necessary to analyse the issues relating to the scope of Regulation No 44/2001 and the impact of a plea of immunity from jurisdiction on the exercise of jurisdiction derived from that regulation seems to have been adopted by the Court in its judgment of 15 February 2007, Lechouritou and Others (C‑292/05, EU:C:2007:102).

9      See, to that effect, Opinion of Advocate General Ruiz-Jarabo Colomer in Lechouritou and Others (C‑292/05, EU:C:2006:700, point 76). I would also note in this connection that the undeniable precedence of immunity from jurisdiction over the rules of jurisdiction seems to be called into question in recent works of legal theory: see Sanger, A., ‘State Immunity and the Right of Access to a Court under the EU Charter of Fundamental Rights’, International & Comparative Law Quarterly, Vol. 65(1), 2016, p. 213 et seq.

10      Judgment of 15 February 2007 (C‑292/05, EU:C:2007:102).

11      Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1978 L 304, p. 36), as amended by the Convention of 9 October 1978 on the accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to that convention (OJ 1978 L 304, p. 1, and — the amending text ‐ p. 77), the Convention of 25 October 1982 on the accession of the Hellenic Republic to that convention (OJ 1982 L 388, p. 1) and the Convention of 26 May 1989 on the accession of the Kingdom of Spain and the Portuguese Republic to that convention (OJ 1989 L 285, p. 1, ‘the Brussels Convention’).

12      See judgment of 19 July 2012 (C‑154/11, EU:C:2012:491, paragraphs 33 and 57).

13      See, most recently, judgment of 8 March 2018, Saey Home & Garden (C‑64/17, EU:C:2018:173, paragraph 18).

14      See, to that effect, judgment of 26 January 2010, Transportes Urbanos y Servicios Generales (C‑118/08, EU:C:2010:39, paragraphs 23 and 24).

15      See, in particular, Fox, H., Webb, P., The Law of State Immunity, Oxford University Press, Oxford, 2013, p. 32 et seq.

16      See judgment of 19 July 2012 (C‑154/11, EU:C:2012:491, paragraph 54).

17      See judgment of 19 July 2012, Mahamdia (C‑154/11, EU:C:2012:491, paragraph 55).

18      See Opinion of Advocate General Mengozzi in Mahamdia (C‑154/11, EU:C:2012:309, point 21). See also Fox, H., Webb, P., op. cit., p. 32 et seq.

19      Council of Europe, European Treaty Series No 74. That convention was drawn up by the Council of Europe and opened for signature by States in Basel (Switzerland) on 16 May 1972.

20      That convention was adopted by the General Assembly of the United Nations in December 2004 and was opened for signature by States on 17 January 2005.

21      See Crawford, J., Brownlie’s Principles of Public International Law, Oxford University Press, Oxford, 2019 (9th ed.), p. 473 and the case-law cited.

22      See, to that effect, Opinion of Advocate General Mengozzi in Mahamdia (C‑154/11, EU:C:2012:309, point 26 and the case-law cited). See also Pavoni, R., ‘The Myth of the Customary Nature of the United Nations Convention on the State Immunity: Does the End Justify the Means?’, The European Convention on Human Rights and General International Law, edited by van Aaken, A., Motoc, I., Oxford University Press, Oxford, 2018, p. 282.

23      See van Alebeek, R., edited by O’Keefe, R., Tams, C.J., The United Nations Convention on Jurisdictional Immunities of States and Their Property: A Commentary, Oxford, 2013, p. 163, and Stewart, D.P., ‘The UN Convention on Jurisdictional Immunities of States and Their Property’, The American Journal of International Law, Vol. 99, 2005, p. 199.

24      See judgment of 21 December 2011, Air Transport Association of America and Others (C‑366/10, EU:C:2011:864, paragraph 101). See also, to that effect, judgments of 24 November 1992, Poulsen and Diva Navigation (C‑286/90, EU:C:1992:453, paragraphs 9 and 10), and of 3 June 2008, Intertanko and Others (C‑308/06, EU:C:2008:312, paragraph 51).

25      See, to that effect, judgments of 24 November 1992, Poulsen and Diva Navigation (C‑286/90, EU:C:1992:453, paragraph 9), and of 25 February 2010, Brita (C‑386/08, EU:C:2010:91, paragraph 45).

26      After all, it is widely accepted that a defendant State is free to waive its immunity from jurisdiction.

27      See, to that effect, Crawford, J., op. cit., p. 470, and Higgins, R., ‘General Course on Public International Law’, Collected Courses of the Hague Academy of International Law, Vol. 230, 1991, p. 115.

28      See judgment of 19 July 2012 (C‑154/11, EU:C:2012:491, paragraph 56).

29      I note that certain national courts hold Regulation No 44/2001 to be inapplicable in certain disputes as a result of the exercise by a defendant State of powers conferred by public law and that, in such a dispute, the State in question enjoys immunity from jurisdiction. Indeed, it would appear that it was in the light of the judgment of 15 November 2018, Kuhn (C‑308/17, EU:C:2018:911), in which the Court held that a dispute relating to an action brought against a Member State that had issued bonds and had subsequently adopted a law which allowed the amendment of the initial borrowing terms did not fall within ‘civil and commercial matters’ within the meaning of Article 1(1) of Regulation No 1215/2012/EC of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1). In its judgment of 22 January 2019, 10 Ob 103/18x, paragraph 1.1, the Oberster Gerischtshof (Supreme Court, Austria) held that the Austrian courts could not rule on the liability of a defendant State in a similar dispute.

30      See judgment of 19 July 2012, Mahamdia (C‑154/11, EU:C:2012:491, paragraph 49).

31      See, to that effect, Muir Watt, H., Pataut, E., ‘Les actes iure imperii et le règlement Bruxelles I’, Revue critique de droit international privé, Vol. 97, 2008, p. 61 et seq., paragraph 25.

32      See van Alebeek, R., op. cit., pp. 57 to 59.

33      The absence of any express mention of acts carried out iure imperii could explain why, in the statement of reasons for the request for a preliminary ruling, the referring court indicates that it queries whether classification and certification operations carried out by private-law entities are ‘administrative matters’ within the meaning of Article 1(1) of Regulation No 44/2001.

34      See, most recently, judgment of 28 February 2019, Gradbeništvo Korana (C‑579/17, EU:C:2019:162, paragraph 47 and the case-law cited).

35      See judgment of 23 October 2014, flyLAL-Lithuanian Airlines (C‑302/13, EU:C:2014:2319, paragraph 27).

36      See judgment of 12 September 2013, Sunico and Others (C‑49/12, EU:C:2013:545, paragraph 33 and the case-law cited).

37      In its case-law, in determining whether an action for damages comes within the concept of ‘civil and commercial matters’, the Court has referred, in its judgment of 15 February 2007, Lechouritou and Others (C‑292/05, EU:C:2007:102, paragraph 38), to acts which are at the origin of the loss and damage and therefore of the action for damages, in its judgment of 15 November 2018, Kuhn (C‑308/17, EU:C:2018:911, paragraph 36), to acts from which the origin of a dispute stems and, lastly, in its judgment of 28 April 2009, Apostolides (C‑420/07, EU:C:2009:271, point 45), to acts against which an action is brought.

38      See, to that effect, Rogerson, P., ‘Article 1’, Brussels I bis Regulation, edited by Magnus, U., Mankowski, P., Otto Schmidt, Cologne, 2016, p. 63, point 13. On this point, see also Boschiero, N., ‘Jurisdictional Immunities of the State and Exequatur of Foreign Judgments: a private International Law Evaluation of the Recent ICJ Judgment in Germany v. Italy’, International Courts and the Development of International Law: Essays in Honour of Tullio Treves, edited by Boschiero, N., Scovazzi, T., Pitea, C., Ragni, C., T.M.C. Asser Press, The Hague, 2013, pp. 808 and 809, which states that the exclusion of liability for acts carried out iure imperii has nothing to do with the intrinsic nature of civil and commercial matters but is derived from a political decision.

39      See judgment of 15 November 2018, Kuhn (C‑308/17, EU:C:2018:911, paragraphs 31 and 32). Moreover, the addition of these words ensures terminological consistency between Regulation No 1215/2012 and other acts of EU private international law. By way of example, see Article 1(1) of Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) (OJ 2007 L 199, p. 40), in accordance with which that regulation does not apply, in particular, to revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii). That means that reliance on the interpretation of some of these acts may be helpful in defining the scope of Regulation No 44/2001 and also that the Court’s interpretation of Regulation No 44/2001 will have an influence on the scope of those other acts.

40      See Toader, C., ‘La notion de matière civile et commerciale’, Europa als Rechts- und Lebensraum: Liber amicorum für Christian Kohler zum 75. Geburtstag am 18. Juni 2018, edited by Hess, B., Jayme, E., Mansel, H.-P., Verlag Ernst und Werner Gieseking, Bielefeld, 2018, p. 521 and the case-law cited therein. See also, to that effect, with reference to Regulation No 864/2007, mentioned in footnote 39, Nourissat, C., ‘Le champ d’application du règlement “Rome II”’, Le Règlement communautaire ‘Rome II’ sur la loi applicable aux obligations non contractuelles. Actes du colloque du 20 septembre 2007 — Dijon, edited by Corneloup, S., and Joubert, N., Lexis Nexis Litec, Paris, 2008, p. 24.

41      See judgments of 1 October 2002, Henkel (C‑167/00, EU:C:2002:555, paragraph 26), of 23 October 2014, flyLAL-Lithuanian Airlines (C‑302/13, EU:C:2014:2319, paragraph 31 and the case-law cited), and of 9 March 2017, Pula Parking (C‑551/15, EU:C:2017:193, paragraph 35).

42      See judgment of 12 September 2013, Sunico and Others (C‑49/12, EU:C:2013:545, paragraph 43). However, one could argue that, where a national tax authority pursues a claim arising from the infringement of tax laws, it is acting with sovereign authority even if it is claiming damages in the ordinary courts under the ordinary law on civil liability. See Kohler, C., ‘Abschied von der autonomen Auslegung des Begriffs “Zivil- und Handelssachen” in Art. 1 EuGVVO?’, Praxis des Internationalen Privat- und Verfahrensrechts, Vol. 35(1), 2015, p. 55.

43      See De Bruyne, J., Third-Party Certifiers, Wolters Kluwer, Alphen-sur-le-Rhin, 2019; Goebel, F., Classification Societies. Competition and Regulation of Maritime Information Intermediaries, Lit, Zurich, 2017, p. 42 et seq., and Ulfbeck, V., Møllmann, A., ‘Public Function Liability of Classification Societies’, Certification — Trust, Accountability, Liability, edited by Rott, P., Springer, Cham, 2019, p. 213 et seq.

44      See Regulation 3-1, Part A-1, Chapter II-1, of the SOLAS Convention. See also Ulfbeck, V., Møllmann, A., op. cit., p. 225.

45      See, in particular, Regulation 6, Chapter I, of the SOLAS Convention.

46      Judgment of 9 March 2017, Pula Parking (C‑551/15, EU:C:2017:193, paragraph 35).

47      See judgment of 5 February 2004, Frahuil (C‑265/02, EU:C:2004:77, paragraph 20).

48      See judgment of 23 October 2014, flyLAL-Lithuanian Airlines (C‑302/13, EU:C:2014:2319, paragraph 35).

49      See judgment of 15 November 2018 (C‑308/17, EU:C:2018:911).

50      See judgment of 15 November 2018, Kuhn (C‑308/17, EU:C:2018:911, paragraphs 38 and 39).

51      See judgment of 15 November 2018, Kuhn (C‑308/17, EU:C:2018:911, paragraphs 40 and 41).

52      See judgment of 15 November 2018, Kuhn (C‑308/17, EU:C:2018:911, paragraph 42).

53      See the case-law cited in footnote 41.

54      See judgment of 4 May 2010, TNT Express Nederland (C‑533/08, EU:C:2010:243, paragraph 49).

55      While the scope of Regulation No 44/2001 does not necessarily coincide with the negative scope of jurisdictional immunity, it seems to me that the relevance of the objective of an act is equally debateable in so far as the law on State immunity is concerned. In particular, in the context of the New York Convention, which distinguishes between acts performed iure imperii and acts performed iure gestionis, the purpose of a transaction may have some importance in determining whether that transaction was performed iure gestionis, the consequence of which would be that a defendant State could not rely on immunity from jurisdiction. However, according to the terms of that convention, the purpose of a transaction is a subsidiary criterion that may be taken into account in certain circumstances, while the nature of the transaction is a primary criterion. In addition, first of all, this subsidiary criterion is widely disputed (see Pavoni, R., op. cit., p. 282), secondly, it has been criticised in works of legal theory, for the reasons I set out in point 77 of this Opinion (see Bröhmer, J., State Immunity and the Violation of Human Rights, Martinus Nijhoff Publishers, The Hague, 1997, p. 1), and, thirdly, it is not consistently applied by national courts, which tend to take account solely of the nature of the transaction (see Yang, X., State Immunity in International Law, Cambridge University Press, Cambridge, 2012, pp. 85 to 108).

56      Judgment of 9 March 2017 (C‑551/15, EU:C:2017:193, paragraph 35).

57      Judgment of 21 April 1993 (C‑172/91, EU:C:1993:144, paragraph 21).

58      Judgment of 21 April 1993, Sonntag (C‑172/91, EU:C:1993:144, paragraphs 27 and 28).

59      C‑172/91, EU:C:1992:487, point 44.

60      Given that the material scope of Regulation No 44/2001 need not necessarily coincide with the negative scope of jurisdictional immunity, I cannot rule out that such potential liability on the part of the State might, by contrast, be relevant in the context of the law on immunity.

61      See judgment of 16 December 1980 (814/79, EU:C:1980:291, paragraph 9).

62      Judgment of 16 December 1980 (814/79, EU:C:1980:291, paragraphs 9 and 10).

63      I would observe that, in the case which gave rise to the judgment of 16 December 1980, Rüffer (814/79, EU:C:1980:291), the Government of the Netherlands argued before the Court that Netherlands law permitted an agent responsible for a public waterway to remove a wreck which represented a danger or impediment to maritime navigation, without having to obtain the agreement of the owner of the wreck or of the party in whose possession the wreck happened to be. Moreover, in paragraph 11 of that judgment, the Court referred to the general principles which stem from the corpus of the national legal systems of the Member States and found that provisions of national law precisely showed that an agent administering waterways did so, when removing wrecks, in the exercise of public authority. That passage of the judgment must be read in the light of the description of national legislation given in the Opinion of Advocate General Warner in Rüffer (814/79, EU:C:1980:229). That description revealed that such legislation defines, in particular, the powers of such agents vis-à-vis owners that have failed to remove a wreck belonging to them, rather than obligations in environmental matters.

64      See Basedow, J., ‘Civil and Commercial Matters — A New Key Concept of Community Law’, Rett og toleranse. Festskrift til Helge Johan Thue — 70 år, Gyldendal, edited by Frantzen, T., Giersten, J., Cordero Moss, G., Gyldendal, Oslo, 2007, p. 159.

65      In so far as concerns interpretation of the concept of ‘civil and commercial matters’, the relevance of the case-law relating to the fundamental freedoms is confirmed, inter alia, by the reference to a judgment relating to the freedom of movement of workers. See judgment of 21 April 1993, Sonntag (C‑172/91, EU:C:1993:144, paragraph 24).

66      Judgment of 16 June 2015 (C‑593/13, EU:C:2015:399, paragraph 20).

67      See points 67 to 70 above.

68      See points 71 to 83 above.

69      See points 84 to 88 above.

70      See points 90 to 97 above.

71      See order of 12 July 2012, Currà and Others (C‑466/11, EU:C:2012:465, paragraph 19 and the case-law cited). It seems to me that the same position was taken by Advocate General Ruiz-Jarabo Colomer in his Opinion in Lechouritou and Others (C‑292/05, EU:C:2006:700, point 78), in which he concluded that, in a dispute in which the Brussels Convention did not apply, it was not within the powers of the Court of Justice to examine whether there was State immunity or its implications with regard to human rights.

72      See judgment of 19 July 2012 (C‑154/11, EU:C:2012:491, paragraph 49).

73      See van Alebeek, R., The Immunity of States and Their Officials in International Criminal Law and International Human Rights Law, Oxford University Press, Oxford, 2008, pp. 57 to 59.

74      In the ‘Erika’ case, the issue of immunity from jurisdiction was not decided in Judgment No 3439 of 25 September 2012 (10-82.938) (FR:CCASS:2012:CR03439): the Cour de cassation (chambre criminelle) (Court of Cassation, Criminal Division, France) held that one of the parties that had asserted that it enjoyed immunity had taken an active part in the case, which the court found to be incompatible with an intention of relying on such immunity. Moreover, in the ‘Prestige’ case, the judgment of 19 March 2014 of the tribunal de Bordeaux (District Court, Bordeaux, France), which the defendants also cite, was set aside, in so far as the court held that the defendants enjoyed immunity from jurisdiction, by the cour d’appel de Bordeaux (Court of Appeal, Bordeaux, France) in Judgment No 14/02185 of 6 March 2017. Admittedly, in Judgment No 17-18.286 of 17 April 2019 (FR:CCASS:2019:C100370), the Cour de cassation (Court of Cassation) held, while approving of the judgment of the Court of Appeal, that the activities of certification and classification were separable and that certification alone enabled a private-law company to rely on immunity from jurisdiction. However, the case solely concerned liability for classification activities, and so the court’s remarks relating to certification activities may be regarded as obiter dicta. Furthermore, the judgments of the Italian courts which the defendants cite, in particular, Judgment No 2097 of 8 March 2012 of the Tribunale di Genova (District Court, Genoa), express the opposite position in so far as concerns the separability of the two activities; see Goebel, F., op. cit., p. 334.

75      See, in particular, Dickinson, A., ‘State Immunity and State-Owned Entreprises’, Business Law International, Vol. 10, 2009, p. 97 et seq.

76      Judgment of 19 July 2012 (C‑154/11, EU:C:2012:491).

77      Judgment of 19 July 2012 (C‑154/11, EU:C:2012:491, paragraphs 55 and 56).

78      See point 38 above.

79      ‘Draft Articles on Jurisdictional Immunities of States and Their Property, with commentaries’, Yearbook of International Law Commission, 1991, Vol. II(2), p. 17.

80      Commission Implementing Directive of 17 December 2014 amending Directive 2009/15 (OJ 2014 L 366, p. 83).

81      See point 62 above.

82      See, to that effect, Ulfbeck, V., Møllmann, A., op. cit., p. 218.

83      See judgment of 3 February 2012 of the International Court of Justice, Jurisdictional Immunities of the State [Germany v. Italy: Greece intervening], ICJ Reports 2012, paragraph 58.

84      See Rocha Ferreira, A., Carvalho, C., ‘Formation and Evidence of Customary International Law’, UFRGS Model United Nations Journal, Vol. 1, 2013, pp. 187 and 188 and the legal works referred to therein. See also ‘Draft Conclusions on Identification of Customary International Law, with Commentaries’, Yearbook of the International Law Commission, 2018, Vol. II.

85      On the positive and negative contributions  of the European Union in the formation of customary laws, see Malenovský, J., ‘Le juge et la coutume internationale: perspective de l’Union européenne et de la Cour de justice’, The Law and Practice of International Courts and Tribunals, Vol. 12, 2013, p. 218.

86      See the Report of the International Law Commission of the United Nations, Official Records, Seventy-third session, Supplement No 10 (A-73/10), p. 127.

87      See points 100 and 101 above.

88      By contrast with immunity from jurisdiction, substantive immunity results in non-liability on a substantive law level. See Ulfbeck, V., Møllmann, A., op. cit., pp. 232 and 238.

89      See Briggs, A., Civil Jurisdiction and Judgments, Informa law from Routledge, (Taylor & Francis Group), New York, 2015, p. 391, Hess, B., ‘Die intertemporale Anwendung des europäischen Zivilprozessrechts in den EU-Beitrittsstaaten’, Praxis des Internationalen Privat- und Verfahrensrechts, Vol. 4, 1994, p. 374, paragraphs 10 and 14, and Mankowski, P., op. cit., p. 1058.

90      See, a contrario, judgment of 13 March 2015, Gazprom (C‑536/13, EU:C:2015:316, paragraph 43).

91      It has been suggested in legal literature that Article 71 of Regulation No 44/2001 does not govern the relationship between that regulation and those international conventions to which all the Member States and the European Union are parties. Such conventions are an integral part of the legal order of the European Union and thus their relationship to the regulation should be assessed on the basis of Article 67 of that regulation or on the basis of Article 216(2) TFEU. See Lazić, V., Stuij, S., ‘Brussels I bis in Relation to Other Instruments on the Global Level’, edited by Lazić V., Stuij, S., Brussels I bis Regulation: Changes and Challenges of the Renewed Procedural Scheme, Springer, The Hague, 2017, p. 133, and Puetz, A., ‘Rules on Jurisdiction and Recognition or Enforcement of Judgments in Specialised Conventions on Transport in the Aftermath of TNT: Dynamite or Light in the Dark?’, The European Legal Forum, Vol. 5/6, 2018, p. 124.

92      See, to that effect, Lenaerts, K., ‘The Kadi Saga and the Rule of Law within the EU’, SMU Law Review, vol. 67, 2014, p. 712.

93      See, in particular, judgment of 11 July 2018, Bosphorus Queen Shipping (C‑15/17, EU:C:2018:557, paragraph 44 and the case-law cited).

94      In particular, by contrast with international conventions, the European Union does not exercise its powers in order to be bound by rules of customary international law. See Neframi, E., ‘Customary International Law and Article 3(5) TUE’, The European Union’s External Action in Times of Crisis, edited by Eeckhout, P., Lopez-Escudero, M., Hart Publishing, Oxford, 2016, p. 208 et seq.

95      See judgment of 25 February 2010, Brita (C‑386/08, EU:C:2010:91, paragraph 42). See also, to that effect, judgments of 23 January 2014, Manzi and Compagnia Naviera Orchestra (C‑537/11, EU:C:2014:19, paragraph 39), and of 14 March 2017, A and Others (C‑158/14, EU:C:2017:202, paragraph 87).

96      I note that that position, with regard to the relationship between the law relating to State immunity and Regulation No 44/2001, was adopted by the High Court of Justice (England & Wales), Queen’s Bench Division, in its judgment of 20 December 2005, Grovit v De Nederlandsche Bank and Others, [2006] 1 WLR 3323, paragraph 47. According to that judgment, Regulation No 44/2001 is to be interpreted not as excluding recourse to immunity, but in a manner consistent with international law relating to State immunity.

97      Judgment of 11 September 2014, A (C‑112/13, EU:C:2014:2195, paragraph 51).

98      See Lenaerts, K., op. cit., pp. 707, 710 and 711.

99      See judgment of 16 October 2012 (C‑364/10, EU:C:2012:630, paragraphs 51 and 52).

100      Judgment of 3 September 2008 (C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 285).

101      See, to that effect, Lenaerts, K., op. cit., p. 712.

102      See judgment of 3 February 2012 of the International Court of Justice, Jurisdictional Immunities of the State [Germany v. Italy: Greece intervening], ICJ Reports 2012, paragraph 101. The argument based on the lack of effective alternative means of securing redress was implicitly rejected by the European Court of Human Rights (‘the ECtHR’) in its judgment of 14 January 2014, Jones and Others v. United Kingdom (CE:ECHR:2014:0114JUD003435606, §§ 193 and 195).

103      By way of illustration, Article 5(3) of Directive 2009/15 provides that an agreement between a Member State and a recognised organisation may contain an obligation to establish a local representative on the territory of that Member State, which would ensure that the courts of that State have jurisdiction. See, on this issue, Ulfbeck, V., Møllmann, A., op. cit., p. 220.

104      See, in particular, ECtHR, 21 February 1975, Golder v. United Kingdom, (CE:ECHR:1975:0221JUD 000445170, § 36).

105      See judgment of 6 November 2012, Otis and Others (C‑199/11, EU:C:2012:684, paragraph 48).

106      See, in particular, ECtHR, 21 November 2001, Al-Adsani v. United Kingdom (CE:ECHR:2001:1121JUD003576397, § 56), and ECtHR, 14 January 2014, Jones and Others v. United Kingdom (CE:ECHR:2014:0114JUD003435606, §§ 186 to 189). I note that this case-law developed in the context of disputes between individuals and States. Having regard to the remarks I made in point 142 above, that may explain why the ECtHR did not consider whether other effective alternative means of securing redress existed and held, generally, that the restriction on the right of access to a tribunal was not disproportionate. By contrast, in a dispute between individuals and an international organisation, which had no particular forum State, the ECtHR did consider whether the applicants had available to them reasonable alternative means to protect effectively their rights under the ECHR. See ECtHR, 18 February 1999, Waite and Kennedy v. Germany (CE:ECHR:1999:0218JUD002608394, § 68). I consider that, in that context, the position of private-law bodies outside the State from which they derive immunity to be comparable to that of international organisations.

107      See judgment of 18 October 2017, Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs, [2017] UKSC 62.

108      See judgment of 25 May 2016, Meroni (C‑559/14, EU:C:2016:349, paragraph 44).

109      Prechal, S., ‘The Court of Justice and Effective Judicial Protection: What Has the Charter Changed?’, Paulussen, C., Takács, T., Lazic, V., Van Rompuy, B. (eds.), Fundamental Rights in International and European Law. Public and Private Law Perspective, Springer, The Hague, 2016, pp. 148 and 149.

110      See, with reference to the possibility of relying on Article 47 of the Charter, judgment of 17 April 2018, Egenberger (C‑414/16, EU:C:2018:257, paragraph 78).

111      See judgment of 11 July 2019, A (C‑716/17, EU:C:2019:598, paragraph 39).

112      See points 137 and 144 above.

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