Matters specifically excluded by Article 1

Article 1 specifically excludes ‘revenue, customs or administrative^[1] matters’ as well as ‘the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii)’ from the Convention. These terms will bear autonomous or uniform meanings, but no particular difficulty is likely to arise in connection with them. It may well be that their express mention adds little to what has already been deduced from the definition of ‘civil and commercial’ matters. If HMRC v Sunico ApS'⁰⁴ is any guide, a State which is able to formulate its claim under ordinary civil law may be able to bring within the Convention proceedings which have the economic aim in taxes. That may open the door to some creative pleading, but so what? If a defendant has conspired to injure another in its economic activity, or has acted in such a way as causes another to incur expense which it then seeks to recover by private law action (such as where the State has to provide medical treatment to those injured by the wrongdoing of others), there is no reason of principle why the Convention should not apply to judicial proceedings brought in respect of it.

Article 1 goes on to exclude from its scope four specific areas of law, each of which is civil or commercial in nature; each of which may be considered as an exception to the general rule that the Convention applies in civil and commercial matters; and each of which should be construed accordingly.

Personal capacity and status, marital property, wills and succession

Within the framework of the European Union, divorce, nullity, and matters of parental responsibility, and succession, were intended to be governed by particular Regulations, such as the Brussels II Regulation; it is therefore rational that they would be excluded in their entirety from the Brussels I Regulation. This, though, does not affect the interpretation of the Convention, for which these matters are simply excluded. The Brussels I Regulation also excluded maintenance; it is not excluded from the Convention. The exclusions are to be understood according to their terms,

MATERIAL AND OTHER SCOPE OF THE LUGANO CONVENTION though, as suggested above, as it is arguable that as these are all civil matters, the exclusion of these particular matters from an instrument which deals with civil matters generally may be approached on the basis that an exception to a general rule is to be given an interpretation which is no wider than is necessary to secure the aims of the particular exclusion.

If the issue before the court is indissociable from a matter excluded by Article 1(2), it appears that the proceedings are excluded in their entirety.^[2] If proceedings are brought by or in the name of a person under legal incapacity for judicial authorisation to sell property, the proceedings are so closely linked to the question of personal capacity that they fall within the terms of the exclusion in Article 1 (2)(a). This may not be quite the same as saying that the exclusion will apply if the matter of personal capacity is the principal issue before the court, but it comes close. If the whole basis for the application, and in this sense the central legal issue with which the proceedings are concerned, is one of personal capacity, the matter is excluded by Article l(2)(a) from the scope of the Convention.

Article l(2)(a) excludes rights in property arising out of a matrimonial (but not, on the face of it, at least, quasi-matrimonial) relationship. It will therefore cover, and exclude from the Convention, actions for the division after divorce, of matrimonial assets acquired during the marriage, as the proceedings are intimately connected with the dissolution of marriage."¹ The extent of the exclusion, though generally clear enough, is not free from all doubt. Would it extend, for example, to a dispute as to whether a spouse, who contributed to the purchase price or to the discharge of the mortgage debt, had thereby acquired a share in the ownership of the matrimonial home? In principle, the resolution of a dispute of this sort may be found in the application of the general law of property, applying to all persons alike, or in special laws applicable only to those in bonds of matrimony."² Principle would suggest that the answer should be found by asking whether the rules of law resorted to and relied on by the claimant are those of the general law of property, or those peculiar to matrimonial law. The result may be that a certain kind of dispute arising between spouses may fall outside the domain of the Convention, whilst one on identical facts, differing only in that the parties are not in a matrimonial or equivalent relationship, will fall within it."³ Unless the Convention is amended, it appears that the exclusion does not comprehend rights in property arising from quasi-matrimonial relationships, whether these are formalised as civil partnerships or informal relationships of cohabitation. If ‘matrimonial’ includes ‘same-sex matrimonial’, as it now must, at least so far as an English court is concerned, it becomes hard to see why property rights arising from civil partnership, or from other relationships similar to marriage, would be treated differently. It is, however, difficult to predict the answer which will emerge.

Likewise, the exclusion of wills and succession will exclude disputes which are founded on the right or issue of inheritance. A claim to the assets of a deceased estate will be excluded from the Convention, but a claim for damages in tort, which will have an impact on the size of the estate, is not excluded because it is not founded on an issue of inheritance.^[3] Likewise, proceedings involving liability on a guarantee will not be excluded simply because the guarantor is agreed to be the heir: in such a case the matter is not one of inheritance.

• [1] See C-102/15 Gazdasägi Versenyhivatal v Siemens AG Österreich EU:C:2016:607, [2016] ILPr 684 (action to recover fine wrongly imposed by Hungarian administrative body for regulatory infringement of competition rules not within Regulation because the matter was, in Hungarian law, an administrative one). 2 QRS 1 ApS v Frandsen [1999] 1 WLR 2169, citing Schlosser [1979] OJ C59/71, 82-83. 3 C-49/12, EU:C:2013:545, [2014] QB 391. 4 C-302/13 flyLAL-Lithuanian Airlines AS v Starptautiskä lidosta Riga VAS EU:C:2014:2319, [2015] ILPr 28. 5 Brussels II Regulation, Reg. 2201/2003 and Succession Regulation, Reg. 650/2012, respectively, which are not further discussed in this book. 6 Maintenance Regulation, Reg. 4/2009.
• [2] C-4/14 Bohez v Wiertz EU:C:2015:563, [2016] 1 FLR 1159. 2 For a case in which there was undoubtedly an issue of capacity (to make a gift) but the Court held the exception to be inapplicable as the claimant’s capacity was not the main subject matter (which appears to mean principal issue) in the case, but only a preliminary issue, see C-417/15 Schmidt v Schmidt EU:C:2016:881, [2017] ILPr 127. 3 C-386/12 Re Schneider EU:C:2013:663, [2014] Fam 80. 4 C-67/17 Iliev v Ilieva EU:C:2017:459, [2018] ILPr 139. 5 In England it is found partly in the general law relating to trusts of land, and partly in the Matrimonial Proceedings and Property Act 1970. The categorisation of the claim by reference to English domestic law would therefore be problematic. See Schlosser [1979] OJ C59/71, [43]—[50]. 6 See C-220/95 Van den Boogaard v Laumen [1997] ECR 1-1147.
• [3] Sabbagh v Khoury [2017] EWCA Civ 1120. 2 ICICI Bank v Mehta [2017] EWHC 1030 (Comm). 3 Regulation 1346/2000; latterly recast as Regulation 2015/848. 4 C-292/08 German Graphics Graphische Maschinen GmbH v Holland Binding В V (in liq) [2009] ECR 1-8421 (action by owner to recover property from liquidator on the basis of Romalpa clause not intrinsic to insolvency); applied Byers v Yacht Bull Corp [2010] EWHC 133 (Ch), [2010] BCC 368. See also C-649/13 Comité d'enterprise de Nortel Networks SA v Rogeau EU:C:2015:384, [2016] QB 109. 5 133/78, [1979] ECR 733. 6 See also C-295/13 H v //Л' EU:C:2014:2410: proceedings were brought in Germany by the liquidator against the managing director of an insolvent German company. As a matter of German law, it was possible for such a claim to be made when the company was insolvent but had not been made subject to liquidation proceedings; but this (perhaps rather theoretical) possibility did not displace the conclusion