HUK-COBURG II: A Case on Mandatory Overriding Law or Jurisdiction?

Key Takeaways

• ECJ links mandatory rule analysis to sufficient connection test
• Bulgarian Article 52 not treated as overriding mandatory provision
• Sufficient connexion may act as hidden jurisdictional filter
• Rome II requires close forum links before applying mandatory law
• Debate: territorial link versus public policy in mandatory rules

Summary

The CJEU’s judgment in HUK‑COBURG II examined whether Bulgaria’s Article 52 of the ZZD can be treated as an overriding mandatory rule under Rome II. The Court introduced a “sufficient connexion” test, requiring a close link between the facts and the forum before a mandatory provision can apply. It concluded that the Bulgarian provision does not qualify as mandatory in this case, emphasizing the need for detailed analysis of the law’s wording, purpose, and context. The decision raises questions about whether the connexion test functions as a hidden jurisdictional filter rather than a pure choice‑of‑law tool.

Pulse Analysis

The HUK‑COBURG II case spotlights the evolving interplay between the Rome II Regulation and national public‑policy safeguards. By insisting that a mandatory provision must only apply when the factual situation bears a "sufficient connexion" with the forum, the CJEU adds a nuanced layer to the traditional choice‑of‑law analysis. This approach forces courts to scrutinise not only the textual wording of a statute but also its broader scheme and objectives, ensuring that any deviation from the default applicable law is justified by a genuine policy interest of the forum state.

Critics argue that the sufficient connexion requirement functions less as a substantive test of mandatory effect and more as a covert jurisdictional gatekeeper. The reasoning mirrors the classic "forum non conveniens" inquiry, where courts assess which jurisdiction has the most real and substantial link to the dispute. By embedding this assessment within the mandatory‑law analysis, the ECJ effectively equips national courts with a tool to limit forum‑shopping without formally invoking the now‑restricted Brussels I bis jurisdictional doctrines. This hidden jurisdictional dimension echoes historical doctrines such as renvoi, which also blended choice‑of‑law and jurisdictional considerations.

For practitioners, the judgment signals a need for meticulous fact‑pattern mapping in cross‑border torts. Counsel must anticipate not only which law Rome II points to but also whether the factual nexus satisfies the CJEU’s connexion threshold. Failure to demonstrate a close link could preclude the application of a forum’s overriding mandatory rule, potentially altering damage assessments and procedural strategies. As EU courts continue to refine the balance between uniform choice‑of‑law rules and national public‑policy autonomy, HUK‑COBURG II will likely serve as a reference point for future disputes involving mandatory norms and jurisdictional discretion.