THE SITUATION OF THE PLAINTIFF: CHOOSING

AMONG DIFFERENT INSTRUMENTS

THE PARTICULAR RELEVANCE OF THE ANALYSIS OF THE CJEU CASE LAW FOR THE IC2BE PROJECT

An analysis of the case law of the Court of Justice of the European Union (CJEU) regarding the four European second-generation Regulations is of particular relevance when taking into account the aim of the IC2BE project, i.e. gaining a better insight into how practitioners actually choose between the various Regulations in order to enforce their claims in cross-border cases. As the CJEU must decide on how interpretative issues that are thrown up by those Regulations should be solved, the impact of its case law on the way the Regulations will be understood and applied cannot be overestimated. Moreover, an analysis of the case law of the Court is crucial when it comes to judgments that have an impact on the availability and attractiveness of the regimes for the claimant – and thus on his or her ability to make ‘informed choices’’. After all, being able to make a choice presupposes, firstly, having a menu of options to choose from, in the sense that multiple regimes offering their respective advantages and disadvantages are available. Secondly, being able to make an informed choice requires that it is clear where the points of attraction or unattractiveness lie for a claimant in a specific situation. Thus, the case law of the CJEU will make a difference on the aforementioned points of availability and attractiveness of regimes.

A judgment like ZSE Energia, for example, is relevant in defining the scope – and thus the availability – of the ESCP Regulation, because the Court determines in this case how the cross-border criterion (Art. 3 ESCP Regulation) should be understood. Furthermore, a judgment like Imtech Marine determines the availability of one of the Regulations – in this case the EEO Regulation – in a particular Member State given the minimum standard for review under Art. 19 EEO Regulation. Especially in Belgium, the question has been raised as to whether this Member State complies with this requirement. Thus, the question arises as to what extent EEO certificates may be provided by Belgian authorities at all. As a consequence, it appears that the EEO may be ruled out in a quite drastic way for an entire country, namely if the conclusion is that the review procedure of Art. 19 EEO Regulation is not available in a particular country.