European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

Regulation No 1215/2012 does not cover revenue, customs or administrative matters (Article 1). However, the public authority's action is not sufficient for the proceedings to fall outside the scope of application of the regulation. Similarly, the fact that certain activities have a public purpose does not, in itself, constitute sufficient evidence to classify them as being carried out iure imperii …

Exclusion of fiscal, customs and administrative matters

Regulation No 1215/2012 does not cover revenue, customs or administrative matters (Article 1). However, the public authority's action is not sufficient for the proceedings to fall outside the scope of application of the regulation. Similarly, the fact that certain activities have a public purpose does not, in itself, constitute sufficient evidence to classify them as being carried out iure imperii, and exclude them from civil and commercial matters insofar as they do not entail the exercise of any powers falling outside the scope of the ordinary legal rules applicable to relationships between private individuals .

In the Eurocontrol judgment , the Court of Justice considered that a judgment given in an action between a public authority and a person governed by private law does not fall within the regulation where the right on which the action relies arises from an act or omission committed by the public authority in the exercise of its powers (acta jure imperii)  , even if the action brought is of a civil nature . This is the case for the removal of a wreck , acts perpetrated by armed forces  or for an action for recovery of sums not due on the ground of unjust enrichment having its origin in the repayment of a fine imposed in competition law proceedings . A dispute concerning a lawyer's obligation to pay annual professional fees for which he or she is liable to the bar association to which he or she belongs comes within the scope of the regulation only if, in calling on that lawyer to perform that obligation, the bar association is not acting, under the national law applicable, in the exercise of public powers . However, enforcement proceedings brought by a company owned by a local authority against a natural person domiciled in another Member State, for the purposes of recovering an unpaid debt for parking in a public car park fall within the scope of Regulation No 1215/2012 insofar as they are not of a punitive nature but merely constitute consideration for a service provided . However, the civil servant status of the person against whom the action is brought is not sufficient to set aside application of the regulation, since a civil servant does not necessarily exercise public powers, even if he acts on behalf of the State. Thus, an action for recovery against a State school teacher having caused injury to a pupil during a school trip by reason of a breach of his official duties does not fall within administrative matters insofar as the conduct of the teacher in his function as a person in charge of pupils does not constitute an exercise of public powers going beyond those existing under the rules applicable to relations between private individuals and where a teacher in a State school assumes the same functions vis-à-vis pupils as those assumed by a teacher in a private school . 

The “public authority acting in the exercise of public powers” criterion also applies to distinguish proceedings falling under civil matters and those falling under customs matters. A claim by which a Member State seeks to enforce a guarantee contract governed by private law intended to guarantee the payment of a customs debt does not fall within the concept of “customs matters” expressly excluded from the regulation, where the legal relationship between the creditor and the guarantor, as resulting from the guarantee contract, does not entail the exercise by the State of powers going beyond those existing under the rules applicable to relations between private individuals . 

Case C-641/18 LG and others v Rina SpA, Ente Registro Italiano Navale, Judgment of 7 May 2020, LawLex202000001657JBJ.

Case 29/76 LTU v Eurocontrol [1976] ECR 1541, LawLex200900001822JBJ.

Case C-266/01 Préservatrice Foncière TIARD [2003] ECR I-4867, LawLex200900001337JBJ.

Case C-308/17 Greece v Leo Kuhn, Judgment of 15 November 2018, LawLex201800001727JBJ, finding that, having regard to the exceptional character of the conditions and the circumstances surrounding the national legislation at issue, according to which the initial borrowing terms of the sovereign bonds at issue in the main proceedings were unilaterally and retroactively amended by the introduction of a collective action clause (CAC), and to the public interest objective that it pursues, the origin of the dispute in the main proceeding stems from the manifestation of public authority, in such a way that that dispute does not fall within civil and commercial matters within the meaning of Regulation No 1215/2012.

Case 814/79 Netherlands v Rüffer [1980] ECR 3807, LawLex200900002041JBJ.

Case C-292/05 Lechouritou and others [2007] ECR I-1519, LawLex200900001416JBJ: the action for recovery brought in a Member State by the successors of the victims of war massacres against another Member State by reason of acts perpetrated by its armed forces does not fall within the scope of the regulation, insofar as the acts which are at the origin of the claimed loss result from the exercise of public powers on the part of the State concerned.

Case C-102/05 Gazdasági Versenyhivatal, Judgment of 28 July 2016, LawLex201700000011JBJ.

Case C-421/18 Ordre des avocats du barreau de Dinant, Judgment of 5 December 2019, LawLex201900001513JBJ.

Case C-551/15 Pula Parking d.o.o, Judgment of 9 March 2017, LawLex201700000463JBJ.

Case C-172/91 Sonntag v Waidmann [1993] ECR I-1963, LawLex200900000718JBJ.

European Business Law

315. Exclusion of fiscal, customs and administrative matters

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

315. Exclusion of fiscal, customs and administrative matters

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise