More than 1000 passengers on a Panamanian-registered ferry drowned in the Red Sea. Some survivors and relatives of some of the victims sued the classification and certification ship society which had surveyed the ferry. Relying on the Brussels I Regulation, the plaintiffs sued the defendants in the latter’s seat (in Italy). The defendants claimed sovereign immunity as they were acting on behalf of Panama (that is, the flag state). The CJEU ruled that, generally, Article 1(1) of the Regulation means that an action for damages, brought against private-law corporations engaged in the classification and certification of ships on behalf of, and upon delegation from, a non-EU Member State, falls within the concept of ‘civil and commercial matters’ in the Regulation. The defendants were therefore not immune. The CJEU qualified its ruling by saying that this is conditional on the activity being not exercised under ‘public powers’ (within the meaning of EU law) because then it would then be a sovereign and not a commercial activity. The CJEU thereby ruled that the customary public international law principle that foreign states have immunity from jurisdiction does not preclude an EU Member State court seised of a dispute from exercising jurisdiction under the Regulation in these circumstances.
Title II of the Americans with Disabilities Act after Garrett: Defective Abrogation of Sovereign Immunity and Its Remedial Impact