På privaträttens område? En studie av EU-domstolens tolkning av art. 1.1 Bryssel Ia-förordningen samt dess förhållande till en svensk nationell syn på distinktionen mellan offentlig rätt och privaträtt

Sammanfattning: The essay examines the CJEU's (Court of Justice of the European Union) interpretation of the concept "civil and commercial matters" in art. 1.1 Regulation (EU) No 1215/2012 of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (recast) (Brussels Ia-regulation). The concept, which determines the material scope of the regulation, is not defined in the regulation but has instead been given its meaning by the CJEU. The CJEU has chosen to interpret the concept autonomously without reference to a specific national legal system of any of the member states. The guidelines chiselled out by the Court are, the author concludes, relatively vague, which means that its application could lack predictability. The CJEU’s interpretation of ”civil and commercial matters” is compared with the Swedish view regarding the distinction between public law and private law. Even at the national level the distinction is vague and appears, to some extent, to be determined on a case by case-basis. The author describes the Swedish concept myndighetsutövning and notes that this concept can be used to define a core in the state’s administration regulated by public law. However, it can not be used to delineate public law from private law. The essay ends with the qualification of two Swedish cases: an action for recovery of paid study aid and a claim for damages in public procurement. The author notes that the qualification can lead to different results depending on wether it is made with reference to Swedish national law or to art. 1.1 Bryssel Ia-regulation. Since the Swedish term myndighetsutövning is determined in a somewhat different manner than the correlating term "exercise of public powers", used by the CJEU to negatively define ”civil and commercial matters”, it is possible that a foreign court may base jurisdiction on the regulation, even though the action according to Swedish national law is viewed as concering public law, in the sense that it involves a legal relationship in which the public is engaged in myndighetsutövning but not in ”the exercise of public powers”. Such an outcome is problematic because it appears to override the national public interest in the matter.