Droit international général

The Russian journal Pravovedenie has issued a call for papers on Recognition and enforcement of foreign judgments: problems and prospects.

Having regard to the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, the editors seek contributions to be published in a special issue of the journal focusing on the cooperation of States in ensuring access to justice at the stage of recognition and enforcement of foreign decisions.

The deadline for submissions is 1 May 2021.

More details are available here.

In T‑574/18 Agrochem-Maks the General Court at the end of May upheld the Commission Regulation not extending market authorisation for the active substance oxasulfuron, a pesticide. The EC Regulation noted that EFSA, the European Food Safety Authority, had identified a large number of data gaps resulting in the inability to finalise the risk assessment in several areas and that ‘in particular, the available information on oxasulfuron and its metabolites did not allow finalising the assessment of the overall consumer exposure, the groundwater exposure, the risk to aquatic organisms, earthworms, soil macro and microorganisms and non-target terrestrial plants’. Since  ‘it has not been established with respect to one or more representative uses of at least one plant protection product that the approval criteria provided for in Article 4 of Regulation … No 1107/2009 [on plant protection products; see here, GAVC] [were] satisfied’, authorisation was not renewed.

The case at issue is brought by a small Croatian, family-owned company. That is a change from the classic pattern in this kind of cases, with large bio-agricultural industry routinely taking cases to the CJEU in laser-shoot fashion, hoping they might hit the target once or twice.

The General Court extensively outlines the procedure foreseen in the relevant EU laws, thereby identifying the core issue in near all of these cases held under the precautionary principle: the EU courts do not carry out a merits review; rather, they assess whether holes have emerged in the preparation of a decision, which could mean that the Institutions could not reasonably have come to the decision they came to.

That is no different here: at 62: ‘the EU Courts must verify that the relevant procedural rules have been complied with, that the facts admitted by the Commission have been accurately stated and that there has been no manifest error of appraisal or misuse of powers’. At 65, per CJEU T-13/99 Pfizer: ‘a scientific risk assessment carried out as thoroughly as possible on the basis of scientific advice founded on the principles of excellence, transparency and independence is an important procedural guarantee whose purpose is to ensure the scientific objectivity of the measures adopted and preclude any arbitrary measures.’

Specifically for current Regulation: at 66: ‘the burden of proving that the conditions for approval or renewal under Article 4 of Regulation No 1107/2009 are met lies, in principle, with the notifier.’ At 67 per CJEU T-584/13 BASF Agro: ‘it is the person seeking approval who must prove that the conditions of such approval are met in order to obtain it, and not the Commission which must prove that the conditions of approval are not met in order to be able to refuse it’.

The General Court then at length considers the procedure followed, including the reasons for the identified gaps, and then assesses the application of the precautionary principle to same: at 109 ff with reference to the 2000 Communication on the Precautionary Principle, COM(2000)1. Crucially, at 121, as noted ‘(u)nder Regulation 1107/2009 when the applicant words its renewal application, it bears the burden of proving the efficacy and safety of the substance in question.’ ‘Since it did not discharge that burden, the approval of the active substance could not be renewed.’

The case highlights once again the crucial nature of administrative compliance with the rulebooks under EU regulatory law. Many of us will have sat through presentations by EFSA or EC officials outlining the rules in excruciating and yes, not very sexy detail. Yet to follow procedure to a tee is crucial to ensure defence against corporations taking issue with the findings at the CJEU.

The case also emphasises the importance of burden of proof and, preferably, the ‘no data, no market’ rule in EU regulatory law.

There might of course still be an appeal with the Court.

Geert.

EU environmental law (with Leonie Reins), Edward Elgar, 2018, p.28 ff.

Precautionary principle, standard of proof, standards of judicial review. https://t.co/gHDzyIQS1u pic.twitter.com/R1Z1qCy4qq

— Geert Van Calster (@GAVClaw) May 29, 2020

Must Article 107 TFEU be interpreted as meaning that a system whereby a private, non-profit eco-body, approved by the public authorities, receives contributions from those who place on the market a particular category of product and who enter into a contract with it to that effect, in return for a service consisting in the organisation on their behalf of the treatment of the waste from those products, and redistributes to operators responsible for the sorting and recovery of that waste, subsidies the amount of which is set out in the approval, in the light of environmental and social targets, is to be regarded as State aid within the meaning of that provision?

That is the question as phrased in C‑556/19 Société Eco TLC and on which Pitruzzella AG Opined on 28 May. TLC stands for Textiles, Lignes de maisons, and chaussures (textiles, household linen and shoes). Producers or as the case may be first importers pay a fee to the collective body in lieu of their personal commitments under extended producers responsibility per Waste Framework Directive 2008/98.

The AG of course revisits the definition of ‘State Aid’ under CJEU C-379/98 Preussen Elektra, on which more here and here. Preussen Elektra remains controversial for it would seem to give Member States quite a bit of room for manoeuvre to reach the same result as direct State Aid more or less simply by inserting a private operator who receivs funds directly from private operators however in line with direct State instructions on level and modalities of payment.  The AG opines that in the case at issue there is no State Aid however he directs further factual lines of enquiry (ia re the State control over payments by the collective body to recyclers.

Geert.

Handbook of EU Waste law, 2nd ed. 2015 OUP, para 4.116 ff.

State Aid, collective #waste recycling bodies. https://t.co/UaPdf4T69b

— Geert Van Calster (@GAVClaw) May 29, 2020

Jean-Sylvestre Bergé and Giulio Cesare Giorgini have edited Le sens des libertés économiques de circulation – The sense of economic freedoms of movement, published by Bruylant.

At a time in which economic freedoms of movement (economic law, free trade, international trade and European freedoms of movement) are increasingly being challenged, it is crucial to explore in depth the capacity of disciplines (law, human and social sciences, hard sciences) to question the sense of these freedoms. Different forms of knowledge thus question the conception that their constructions and analyses relate to these freedoms. What directions are being taken? What are the objectives pursued? Are there any gaps between the initial ambitions and the achievements that can be observed today? Bringing together experienced researchers and young researchers in an intergenerational dialogue, this book is original and multidisciplinary, international and comparative in nature. It places the contemporary dynamics of economic law and flow phenomena in a perspective that allows their comprehension through studies organised around clearly identified issues.

The table of contents is can be found here.

See here for more information.

Maura Alessandri just published Casebook sui contratti di vendita internazionale (in Italian) She kindly provided the following summary.

This year international trade law celebrates the 40th birthday of the “United Nations Convention on Contracts for the International Sale of Goods”, adopted in Vienna on 11 April 1980 (hereinafter referred to as “CISG”).

Although the CISG has been in force in Italy since 1 January 1988, Italian companies are often not familiar with its rules and tend to ignore its existence or not to apply it  (even when it applies automatically). Case law on CISG is gaining an increasing importance in Italy.

With a view to making the CISG better and more readily known, this Casebook aims to provide international trade lawyers and practitioners with a guide, easy to read and quick to consult, of the most significant judgments and arbitration awards issued in Italy in application of CISG.

It includes a selection of 96 Italian judgments and 12 arbitral awards. These include some of the most significant and well-known judgments which have become an important and useful reference for Judges and lawyers since they deal with the most frequent questions in practice. The publication of most of the arbitral awards have been authorized by the National and International Chamber of Arbitration of Milan, one of the most prestigious Chambers of Arbitration which daily deals with international trade law issues.

The published materials aim to help international trade lawyers to easily track the precedents which solved specific issues regarding the CISG’s autonomous and internationally oriented application and avoid what Honnold called “homeward trend”.

The book is intended for consultation through an analytical index of selected keywords in order to lead the reader directly to the relevant judgments and arbitral awards.

The following issues come up in the decisions taken up in the Casebook:

• some decisions quote foreign decisions to promote the CISG’s uniform interpretation and application;
• some decisions stress that uniform substantive law (i.e. the CISG) prevails over the rules of private international law (such as the Hague Convention of 1955);
• some show the correct steps to be followed in order to check whether the CISG applies (either directly or indirectly). The direct application of CISG represents the most frequent scenario, i.e. an Italian company selling goods to a company which has its place of business in another Contracting State;
• some decisions deal with the relationship between the CISG and the General terms and conditions (and the so-called Battle of the forms);
• other decisions focus on what is (under an autonomous and uniform interpretation) a reasonable time for the notice of lack of conformity of the goods or which is the place of delivery (including Incoterms) with a view to ascertaining the competent court (and thus dealing with forum shopping’s issues);
• some decisions ascertain which is the competent court when dealing with an international sales contract, applying for example EU Regulation no. 44/2001 (precedessor of no. 1215/2012), or the Brussels Convention of 1968;
• in the same framework, arbitration is also frequently used in international trade law; the arbitral awards are intended to provide some cases (which are usually kept strictly private and confidential and not easily known) in which arbitrators have interpreted and applied CISG’s rules.

The book contains: 1) a list of the judgments and awards cited in chronological order, 2) the text of these judgments and awards, 3) the Italian (unofficial) text of the CISG, 4) a list of the Contracting States, and 5 ) a reasoned analytical index that constitutes the true asset and  increases the usefulness of the book.

Title: Maura Alessandri, “Casebook sui contratti di vendita internazionale. Raccolta ragionata della giurisprudenza italiana (sentenze e lodi arbitrali) sulla Convenzione di Vienna del 1980 sui contratti di vendita internazionale di beni mobili (CISG)”, Bologna, Bonomo Editore, 2020, ISBN: 978-88-6972-156-4

Available at Bonomo Editore or on Amazon.

by Fieke van Overbeeke, Legal Counsel at the International Institute for International and Foreign Law – the Netherlands and research fellow at the University of Antwerp – Belgium.

 On 13 December 2018, the Dutch Supreme Court (Hoge Raad) has submitted a long-awaited preliminary question to the Court of Justice of the EU (C-815-/18): does the Posting of Workers Directive apply to road transport operations? The referring judgment (in Dutch) is available here.

The Posting of Workers Directive (96/71/EC) contains ‘mini’ conflict of laws rules for some important labour law regulations, such as minimum wages. These rules determine i.a. when these labour law regulations are mandatorily applicable in cross-border labour flows in the EU and consequently can have a profound impact on cross-border road transport operations. The aim of the Directive: to balance the free movement of services, worker protection and fair competition.

But why did this preliminary question actually need to be posed? It seems unconventional to assume that this Directive, which generally aims to regulate labour flows in the EU, should not apply to the particular labour flows in the road transport sector. The background of this ambiguity is that the Directive has been developed particularly in view of the labour flows in the construction sector and is tailored accordingly. In this sector, it is often about relatively simple facts: a construction worker usually works in Member State A and is temporarily posted to Member State B to work only in that state. The ‘scope rules’ of the Directive mirror this situation: a part of the labour law regulations of the temporary country of work, other than the country of usual employment, must be guaranteed to the worker (art. 2(1) Posting of Workers Directive).

These ‘scope rules’ are indeed difficult to apply to the atypical labour flows in road transport. There are many different employment models in road transport, but the common denominator is that, in principle, labour is not performed in one temporary country of work, but in a whole number of consecutive ‘very’ temporary countries of work, and, additionally, precisely because of these highly mobile activities it is often impossible to designate a country of ‘usual’ employment.

A perfect illustration is the employment model in the FNV case that forms the basis of the preliminary questions to the Court of Justice EU. In short: a Hungarian transport company posts drivers to a Dutch transport company to carry out transport in and from the Netherlands throughout the EU. The drivers are paid the lower Hungarian salary. The trade union FNV does not agree with the drivers being paid this lower salary and initiates court proceedings against the Hungarian transport companies before the Dutch courts.

Ruling in first instance: the Posting of Workers Directive applies; the ‘where’ scope rule of the Directive also includes the ‘from where’-rule. Consequence: the Dutch (minimum) wage is due. Ruling in second instance: the Posting of Workers Directive does not apply; the Directive cannot be interpreted as that it contains a ‘from where’-rule. Consequence: the Dutch (minimum) wage is not due. The Supreme Court concluded that this is not an acte eclair or éclairé and submitted the case to the Court of Justice EU.

In his conclusion of 30 April 2020, AG Bobek provides his take on the matter: 1. The Posting of Workers Directive applies to the road transport sector; 2. In order to qualify as a ‘temporary country of work’ within the meaning of the Directive, there must be a sufficient connection between the working activities and the country of work (and thus, in a sense, the Directive includes a ‘from where’-rule). E.g. according to the AG, the mere crossing of a territory (transit operations) will, as a rule, not meet the requirement of a sufficient connection, whereas posting drivers from transport company A to B to work in and from the premises of transport company B gives a good indication of a sufficient link. This seems to be good news for the trade union FNV.

AG Bobek’s conclusion is in line with the general assumption of the EU legislator that the Posting of Workers Directive applies to road transport. During the development of the new Posting of Workers Directive in 2018, which explicitly excludes the road transport sector from its scope (for the time being), the EU institutions (Council, Parliament, Commission) stated that the Posting of Workers Directive applies to road transport:

‘The new elements of this Directive will apply to the transport sector once the sector specific legislation (currently under negotiation) enters into force. Until that moment, there is a clear understanding by the three institutions and the Member States that the rules of the 1996 Posting Directive shall apply. This was called into question by a number of Member States in the past.’

From a legal point of view, this outcome can be well substantiated. Among other things, the AG points out that the Posting of Workers Directive fully excludes working activities in the maritime sector from its scope (Article 1(2) Posting of Workers Directive), which could indicate that the rest of the transport sectors are covered.

The AG also rightly rejects the argument that the Posting of Workers Directive does not apply to road transport because its legal basis is the free movement of services, which would not apply to the transport sector because this sector is regulated separately in the transport title of the TFEU (see in particular Article 58(1) TFEU). The AG considers it peculiar to interpret the scope of secondary EU law narrowly, in spite of the clear wording of the specific instrument. Moreover, according to the AG, this could create additional block exemptions, which are not contained, or at least hinted at, anywhere in the text of such a secondary law instrument. The AG then refers to other sectors that are regulated separately in the Treaties, such as public health, energy, tourism or culture and states that it would be a stretch to conclude that the Directive also misses application to working activities in these sectors. Finally, the AG indicates that, in any event, it is generally considered that legislation based on the free movement of services could apply to the transport sector.

The fact that the legal basis of the Posting of Workers Directive has no implications for its applicability to the transport sector was actually long and widely assumed. However, a recent judgement of the CJEU in the Dobersberger case (C-16/18) caused a great deal of confusion in this respect and the AG was therefore obliged to pay more attention to the matter. In the Dobersberger case it was about an employment model in a railway context; more specifically about the catering working activities of Hungarian personnel in trains, plying the route between Hungary, Austria and Germany. In this case, the CJEU starts its reasoning by observing that the legal basis of the Posting of Workers Directive is the free movement of services and that transport activities are regulated by the separate transport title; the Court then considers that catering activities (in a train) do not qualify as transport activities and that the case therefore could be examined in the light of the Posting of Workers Directive. By constructing its reasoning as such, the CJEU strongly suggests that the Posting of Workers Directive cannot apply to transport activities. Fortunately, AG Bobek now clarifies that the CJEU has not explicitly ruled that the Posting of Workers Directive cannot apply to transport activities and to that extent paves the way for the CJEU in the present FNV case to apply the Posting of Workers Directive.

Considering the general assumption of the EU legislator that the Posting of Workers Directive applies to road transport and the strong legal arguments mentioned above, it is to be expected that the Court will follow the AG in this respect.

Now that it has been established that the Posting of Workers Directive may apply to road transport operations, a second question must be addressed: when exactly can we speak of a temporary country of work within the meaning of the Posting of Workers Directive? The AG solves this question by pointing to the requirement of a sufficient link, which must be assessed on a case by case basis and taking into account all specific circumstances.

According to the AG, reference can be given to the interpretation of the habitual workplace criterion in Article 8 of the Rome I Regulation (Regulation 593/2008; the Directive’s ‘big brother’ that determines which employment law as a whole is applicable to the employment contract and to which the Directive can deviate with its mandatory labour law regulations).

In the Koelzsch case (C-29/10), the CJEU has given specific criteria for the interpretation of the ‘habitual workplace’ of Article 8 Rome I in the context of road transport operations, which, according to AG Bobek, is relevant for the definition of the temporary country of work in the Directive, since ‘both instruments seek to ascertain certain types of material connections between the worker and a given Member State’. The CJEU summed up various factors, such as the place: from which the work is carried out, where the work is carried out, where instructions are received, where the work is organised by the driver, where the lorries are parked, where the lorries are unloaded and to which the driver returns. The AG additionally points to the Nogueira case (C-168/10 and C-169/16) and the overall importance of aiming to reflect the ‘true nature of legal relationships’ and to prevent ‘circumvention strategies’.

It is more difficult to predict to what extent the AG will be followed by the Court on this second point. Indeed, the solution proposed by the AG concerning the sufficient link and the wide margin of appreciation can lead to very complex cases, which could turn out to be rather uncertain for transport planning in the sector. In addition, the EU proposal providing clarifications on the application of the Posting of Workers Directive to road transport operations (COM 2017, 278), currently under negotiation in Brussels, will not solve this either, given the primary focus of this proposal on bilateral, crosstrade and cabotage operations (without discussing the employment model of the posting of personnel between companies at all). See yesterday’s post on this blog and here for more information on this proposal.

To summarise: AG Bobek concludes that the Posting of Workers Directive can apply to road transport operations, which means that, i.a., the minimum wages of Member States where the drivers temporarily work must be guaranteed. This is in line with the general assumption of the EU legislator and is well founded in law. It is to be expected that the Court of Justice will follow the AG in this respect.

According to the AG, the criterion of a sufficient link should play an important role in determining the temporary country of work within the meaning of the Posting of Workers Directive. The criteria given by the CJEU in the Koelzsch case with regard to the definition of the ‘habitual workplace’ in the Rome I Regulation can provide guidance in this matter. It is more difficult to predict to what extent the Court will follow the AG regarding this point.

The author is a member of the International Institute for International and Foreign Law, a Hague-based NGO which has been providing legal consultancy to professionals (judges, lawyers, notaries, mediators etc.) regarding private international law and foreign law for over a hundred years.

In La Micro Group (UK) Ltd & Anor v La Micro Group, Inc & Ors[2020] EWHC 1405 (Ch) 1st Claimant, LA Micro Group (UK) Ltd (“LA (UK)”), is an English company. It was incorporated in 2004 and acquired by the 2nd Claimant, Mr David Bell, a British citizen resident in England. It now has two issued shares, one in the name of Mr Bell, and one in the name of the 3rd Defendant, Mr Arkadiy Lyampert. Mr Bell and Mr Lyampert are also the two directors of the company. The substantive question raised in the action is as to the beneficial ownership of LA (UK). The position of the Claimants is that Mr Bell and Mr Lyampert are not only the legal owners of the two issued shares but also the beneficial owners, and that they are each entitled to 50% of the distributable profits of the company by way of dividends. Mr Lyampert’s position is the same, although he has indicated that he does not intend to take any active part in the proceedings. All defendants are resident in California.

This preliminary issue is one of jurisdiction given claimants seek permission to serve out of jurisdiction. There are a variety of proceedings in California: disputes between Mr Frenkel and Mr Lyampert in 2010 led to Mr Frenkel and some of LA Inc’s other employees, including Mr Gorban, leaving LA Inc and starting a competing business called IT Creations, Inc (“ITC”). In the words of the Court of Appeal of California, “a profusion of lawsuits followed”.

It is i.a. argued by defendants that it would an abuse of process for LA Inc to relitigate the same issues as were decided by that judgment, even if the CAL judgments do not strictly give rise to res judicata given the differences between parties.

At 49 Nugee J holds on that particular issue that the relevant CAL Judgment did not decide anything about whether LA Inc had lost its rights to a beneficial interest in LA (UK), and the findings of fact on which the Claimants rely were not necessary to the English court’s decision on any of the matters that were in issue.

Of specific interest to the blog is the forum non conveniens application at 58 ff., with at 68 ff consideration of whether one of the pending CAL proceedings is the mirror image of the English ones, which would count heavily in a forum non consideration given the English law’s preference for the whole issue to be submitted to one tribunal. At 78 Nugee J  sums up the core issue:

The choice is between (i) allowing the English proceedings to continue so that a definitive answer can be given to one discrete question (has LA Inc lost its beneficial interest?) which will then enable the Californian court to proceed on a correct understanding of what has been decided in England rather than on what is said to be a misapprehension; or (ii) requiring the Claimants, unless they are willing to abandon their claims, to go to California to argue matters that on the view I take are matters of English law and largely concern acts taking place in England.

At 77 Nugee J expresses strong support for Gleichlauf:

(T)here are many advantages in questions of law being decided by a home court rather than a foreign court. Evidence and cross-examination is not required, which is likely to make resolution of the point both quicker and cheaper. And the court is familiar with its own law, in a way that it is not with foreign law, which means that the court’s resolution of the issues is likely to be both easier and more soundly based. Other things being equal, I have no doubt that it is preferable, both in terms of practical convenience and in terms of the ends of justice, for questions of English law to be argued in England as questions of law rather than for them to be argued in California as questions of fact on expert evidence (and possibly, although I have no evidence as to whether this would be the case, before a jury).

He concludes at 92:

England is the most appropriate forum for those matters to be decided; but even in relation to the declarations in respect of Mr Lyampert’s share, leaving the parties to litigate in California has a mix of advantages and disadvantages and there is not in my judgment sufficient to displace England as the forum in which the dispute can most suitably be tried for the interests of all the parties and for the ends of justice.

Nugee J does not therefore give Gleichlauf preponderant weight ab initio. Yet all other things being equal, Gleichlauf in this case pushed back a finding of forum non.

Geert.

Application for stay on forum non conveniens grounds. Dismissed.
Nugee J: 'Leaving parties to litigate in CAL has mix of (dis)advantages, not sufficient to displace EN as forum in which dispute can most suitably be tried for the interests of all parties and for ends of justice. https://t.co/Rm3i16dEPg

— Geert Van Calster (@GAVClaw) June 3, 2020

In February 2020, the Spanish Constitutional Court ordered the review of a judgment requiring the actor Christopher Lee to pay 710.000 Euros to the author of a painting that was used to promote a film without the latter’s permission.

The Court considered that the Commercial Court of Burgos (Spain) had violated Lee’s fundamental right to an effective judicial protection, in that it had not heard him nor proceeded to personal service of the judgement at any time prior to issuing an enforcement order against the actor in October 2009.

The controversy relates to the movie Jinnah and, specifically, to one of the posters by which it was promoted. The Commercial Court of Burgos considered that the use of the work “constituted an infringement of exclusive rights” and awarded a compensation to the author of the work.

The  lawsuit had been filed by the painter against a business corporation (The Quaid Project Limited), Mr. Christopher Frank Carandini Lee and Mr. Juan Francisco Aneiros Rodríguez, as representative of the official website of Christopher Lee. The three co-defendants were domiciled in London; neither The Quaid Project Limited nor Mr. Carandini Lee appeared. At the time, only Mr. Aneiros could be personally served at the address established in a contract previously signed with the plaintiff.

The decision against Lee was therefore taken in absentia. It has turned out that the Burgos Court’s attempts to have the claim and the judgment served to the defendant at the addresses provided by the claimant were unsuccessful, and that the Court contented itself with service by publication. After the judgment was delivered, a writ of execution (auto de despacho de ejecución) was granted and certified as a European enforcement order, thus allowing for enforcement to be tried in the United Kingdom (Lee’s place of residence).

According to the Constitutional Court, the absence of personal service led to a violation of Lee’s right of access to justice, for it prevented him from participating in proceedings where his financial obligations were at issue. The Court also expressed doubts regarding the assessment of the damages, which had been made without calling for any expertise. Despite this, the Court in Burgos had considered the figure to be appropriate and in September 2010 had ordered that the defendants’ bank accounts be seized, requesting information for this purpose from different banking entities.

After learning about the proceeding “through a letter” written by the claimant’s lawyers, that reached him “through a London-based office,” in February 2014 Lee asked unsuccessfully for the proceedings to be declared void. The actor passed away in June 2015; an application was filed with the Constitutional Court by his heirs, which in a judgment dated February 24 has ruled in favor of C. Lee.

Before the Constitutional Court, the claimant in the ordinary proceedings contested the legal standing of Lee’s heirs in light of UK succession law, relying in particular on the condition of testamentary executor and manager of the estate of Birgit Lee.

The Constitutional Court dismissed this part of the defense recalling its previous case law based on Article 162.1 b) of the Spanish Constitution and Article 46.1 b) of the Constitutional Court Act, whereby legal standing derives from having “a legitimate interest”. The category is interpreted broadly and granted to any person whose legal stance (“círculo legal”) may be harmed by the violation of a fundamental right, even if the violation does not occur directly against him or her.

The Court went on to add that, in the past, the heirs of a deceased plaintiff had been admitted to take over in an “amparo” appeal for the defense of personality rights. When (like in the case under examination) the ruling on “amparo” entails economic consequences for the estate, the recognition of legal standing to the heirs is even more reasonable.

The main issue raised by the appellants before the Constitutional Court focused on the violation of the late Lee’s right to a due process, caused by the wrongful application by the Spanish commercial court of Regulation (EC) No 805/2004 creating a European Enforcement Order (EEO) for uncontested claims. In this context, the appellants argued first  that only a judicial decision ending the ordinary proceedings, and not the writ of execution can be certified as an EEO. Secondly, in a nutshell, they contested the enforceability of the resolution adopted in absentia, with service having been made by edicts by a court which relied on the informations given by the claimant without further ado.

The Constitutional Court was silent as to the first prong of the complaint. In my view, the appellant was wrong: whereas according to Article 517 Spanish Code of Civil Procedure (Ley de Enjuiciamiento Civil) the enforcement title is indeed the decision on the merits, the definition of “resolution” comprises as well the writ of execution which in Spanish procedural law follows and opens up the enforcement procedure itself.

As to the second prong, the Court was requested to examine whether the application made by the Spanish commercial court of the EEO Regulation, granting the EEO based on service by publication, violated the right to effective judicial protection of the defendant. For this purposes, the Constitutional Court started by asserting that the Burgos Court, to the extent it applied rules of European Union law, must have been aware that it was not only bound by Article 24.1 of the Spanish Constitution, but also by Article 47 of the Charter of Fundamental Rights of the European Union (CFREU).

The Constitutional Court focused then on how service had been made, in order to assess whether in the procedure prior to the adoption of the judgement the certification of which is at stake , the rights to a hearing and to self-defense of the debtor had been respected. This examination is reserved for cases in which the non-appearance of the defendant amounts to a tacit admission of the claim or of the facts alleged by the creditor under the law of the Member State of origin, and, as a consequence, the claim may be deemed “uncontested” for the purposes of Regulation No 805/2004. Regarding service without proof of receipt by the debtor (Article 14 of the Regulation), the Regulation describes various admissible modalities, all of which require that the debtor’s domicile is known with certainty. In this way, the Regulation establishes a minimum standard of the right of defense so as to ensure that the non-appearance of the debtor was conscious and voluntary, thus an absence of the intention to challenge the credit can be inferred therefrom.

At this point, the Constitutional Court makes the most important assertion of its judgment, acknowledging the need to assess “whether a notification by edicts made totally ignoring the debtor’s address, which may eventually be valid in our system from the point of view of Article 24.1 [Spanish Constitution], is also valid from the perspective of Article 47 CFREU for the purposes of granting a European Enforcement Order”. It goes on saying that “the answer to this question, taking into account Recital 13 of Regulation 805/2004 and the decision of the Court of Justice (First Chamber) in Case C-292/10, Cornelius de Visser, of 15 March 2012, must be negative. The Court of Justice of the European Union affirms that although a default judgment is among the titles that can be certified as European enforcement orders (Article 3 of the Regulation), this is not the case when it has been issued without determining the domicile of the respondent” (the translation is mine).

In my view, this is not a bad judgment. However, one cannot avoid feeling a little bit dismayed when learning  that one of the defendants, Mr. Juan Aneiros, who could be served at his domicile, was the son-in-law of C. Lee and, as said, the manager of his official website. Difficult to believe that C. Lee could only learn about the process after he had been sentenced to pay, but not before. However, this was for the Constitutional Court to decide; it has spoken and – not unimportat in this tough times for the EU – followed the case law of the CJEU.

This book examines the rules, principles, and doctrines in Nigerian law for resolving cases involving cross-border issues. It is the first book-length treatise devoted to the full spectrum of private international law issues in Nigeria. As a result of increased international business transactions, trade, and investment with Nigeria, such cross-border issues are more prevalent than ever. The book provides an overview of the relevant body of Nigerian law, with comparative perspectives from other legal systems. Drawing on over five hundred Nigerian cases, relevant statutes, and academic commentaries, this book examines jurisdiction in interstate and international disputes, choice of law, the enforcement of foreign judgments and international arbitral awards, domestic remedies affecting foreign proceedings, and international judicial assistance in the service of legal processes and taking of evidence. Academics, researchers, and students, as well as judges, arbitrators, practitioners, and legislators alike will find Private International Law in Nigeria an instructive and practical guide.

The table of contents and more information on the book can be found on the publisher’s website: https://www.bloomsburyprofessional.com/uk/private-international-law-in-nigeria-9781509911165/

Written by Inez Lopes (Universidade de Brasília) and Fabrício Polido (Universidade Federal de Minas Gerais)

Following the successful repercussion of the Webinar PIL & Covid-19: Mobility of Persons, Commerce and Challenges in the Global Order, which took place between 11 and 22nd May 2020, the Scientific Committee headed by Prof. Dr Inez Lopes (Universidade de Brasília), Prof. Dr Valesca R. Moschen (Universidade Federal do Espírito Santo), Prof. Dr Fabricio B. Pasquot Polido (Universidade Federal de Minas Gerais), Prof. Dr Thiago Paluma (Universidade Federal de Uberlandia) and Prof. Dr Renata Gaspar (Universidade Federal de Uberlandia) is pleased to announce that the Webinar´s videos are already available online (links below). The committee thanks all those professors, staff and students who enthusiastically joined the initiative. A special thank is also given to the University of Minas Gerais and the Brazilian Centre for Transnational and Comparative Studies for the online transmissions. The sessions were attainable to both participants and the audience.

On the occasion of the Webinar, scholars and specialists from Argentina, Brazil, Uruguay, Mexico, Portugal, Spain and the United Kingdom shared their preliminary views on Private International Law (PIL) related issues to the existing challenges posed by Covid-19 outbreak in Europe and the Americas. The main objective of the Webinar was to focus on the discussions on three main multidisciplinary clusters for PIL/Covid-19 research agenda: (I) Private International Law, International Institutions and Global Governance in times of Covid-19; (II) Protection of persons in mobility and Covid-19: human rights, families, migrants, workers and consumers; (III) International Commerce and Covid-19: Global supply chains, investments, civil aviation, labour and new technologies.

The initiative brought together the ongoing collaborative research partnerships among peers from the University of Brasília-UnB, Federal University of Minas Gerais-UFMG, Federal University of Uberlândia-UFU, Federal University of Espírito Santo-UFES, State University of Rio de Janeiro, Federal Rural University of Rio de Janeiro, FGV Law/São Paulo, Federal University of Paraná, Federal University of Rio Grande do Sul, Universidad Nacional del Litoral/Argentina, Universidad de la República/Uruguay, CIDE/Mexico, University of Coimbra/Portugal, University of Minho/Portugal, Universidad de València/Spain, University of Edinburgh/UK, and besides to members of the American Association of Private International Law – ASADIP, the Latin American Society of International Law, the Latin American Research Network of International Civil Procedure Law and the Brazilian Association of International Law.

The proposal for e-gathering specialists was made in line with the intense academic engagement to explore potential critical views related to current and future avenues for Private International Law during a pandemic crisis. One could remark the strong narratives about “global” and “domestic” health crises and their interactions with the practical operation of PIL lawmaking and decision-making processes. More generally, participants raised several issues on how PIL framework, norm-setting and dispute resolution mechanisms would be intertwined with global health emergencies, national public health interests, social isolation and distancing, inequalities, poverty, the demise of social protection on global scale and restrictions on the mobility of families, groups, individuals, companies and organizations during a pandemic crisis.

The Webinar participants also talked about an expedite PIL agenda on core issues related to state and non-state actors’ practices during Covid-19 health crisis, challenges to international commerce, investment, labour and technologies and enforcement of human rights in cross-border cases. In view of the three clusters and specific topics, the Webinar sessions went into the analysis of the actual and potential impacts of Covid-19 outbreak on PIL related areas, its methodologies and policy issues. Participants highlighted that the PIL sectors on applicable law, jurisdiction, international legal (administrative and judicial) cooperation and recognition of foreign judgments will remain attached to the objective of resolving urgent cases, such as in the field of family and migration law (e.g. cases of international abduction, family reunion vs. family dispersion), consumer law, labour law, international business law and overall in cross-border litigation (e.g. reported cases involving state immunity, bankruptcy, disruption of global supply chains).

Likewise, there was a converging view amongst participants that PIL and its overarching principles of cooperation, recognition and systemic coordination will be of a genuine practical meaning for what is coming next in Covid-19 pandemic. Also, values on cosmopolitanism, tolerance and integration going back to the roots and veins of the Inter-American scholarship to PIL studies (since the end of 19th century!) may help to improve institutions dealing with local, regional and global. Likely those principles and values could provide PIL community with ‘cautionary tales’ in relation to existing trends of opportunistic nationalism, refusal of cooperation and threats with foreign law bans (for example, with regard to specific states, migrants and even businesses). As to policy level and to State practices (connected to international politics and public international law), participants have raised various concerns about the mobility of persons, sanitary barriers and national campaigns perniciously devoted to spreading xenophobia, marginalising groups, minorities and migrants. Some participants have also referred to the dangers of unilateral practices of those States advocating a sort of international isolation of countries and regions affected by Covid-19 without engaging in cooperation and dialogues. Even in those extreme cases, there will be harmful consequences to PIL development and its daily operation.

Inevitably, the tragedies and lost lives in times of Coronavirus have made participants reflect upon the transformative potentials for international scholarship and policy in a multidisciplinary fashion. For example, as remarked in some panels, in order to engage in a constructive and policy-oriented approach, PIL scholarship could refrain from any sort of ‘black-letter’ reading or absenteeism concerning Covid-19.  At this stage, a sort of ‘political awareness’ should be encouraged for studies in public and private international law.  Issues on economic reconstruction (rather than simply ‘economic recovery’), access to public health, disruptive technologies, generational environmental concerns, labour markets, access to credit will be highlighted in global governance talks during Covid-19 pandemic and beyond. Some participants conceive the moment as “reality shock” rather than “mindset change” in facing good/bad sides of the pandemic.

As a preliminary matter of housekeeping method, participants shared some conceptual and normative questions in advance to the Webinar as a kick-off stage. A first teaser was initially to generate discussions about the interplay between state actors, international institutions, International Health Law and PIL. One of the departing points was the impact of the global sanitary emergency on individuals, families, organizations and companies and overlapping goals of state powers, public ordering and transnational private regulation. In addition, participants raised further concerns on the current international institutional design and PIL roles. Covid-19 accelerated and openly exposed the weakness of international institutions in guiding States and recalling their obligations concerning the protection of citizens during national emergencies or providing aid to most states affected by the outbreak of a pandemic disease. That scenario reveals existing gaps and bottlenecks between international, regional and national coordination during health emergencies (for example, the World Health Organization, Organization of American States and the European Union in relation to Member States). Participants also proposed further questions whether a global health emergence would change current views on jurisdiction (prescriptive, adjudicatory and executive), particularly in cases where cooperation and jurisdictional dialogues are refused by states in times of constraints and ambivalent behaviours in global politics.

Interdisciplinary PIL approaches also allowed participants to draw preliminary lines on the intersectionality between global health, national policies and jurisdictional issues, particularly because of the distinct regulatory frameworks on health safety and their interplay with cross-border civil, commercial and labour matters. The Coronavirus outbreak across the globe paves the way to rethink roles and new opportunities for international organizations, such as the United Nations, WHO, WTO, the Hague Conference of Private International Law, European Union, ASEAN, Mercosur and Organization of American States. One of the proposals would be a proper articulation between governance and policy matters in those international institutions for a constructive and reactive approach to the existing and future hardship affecting individuals, families and companies in their international affairs during pandemics and global crises. Since Private International Law has been functionally (also in historical and socio-legal dimensions) related to “the international life” of individuals, families, companies, organizations, cross-border dealings, a more engaged policy-oriented approach would be desirable for the PIL/global health crisis interplay. To what extent would it be possible to seek convergence between PIL revised goals, health emergencies, new technologies, governance and “neo-federalism” of organizations for advanced roles, new approaches, new cultures?

Some panels have directly referred to the opportunities and challenges posed ahead to PIL research agenda as well as to international, transnational and comparative studies. Both the Covid-19 outbreak and the global crisis require a study to continuously commit with inter- and multidisciplinary research and even strategically to recover some overarching values for a global order to be rebuilt. Reinforced and restorative cooperation, cosmopolitanism, ethics of care, solidarity and the entitlement of human rights (for instance, new proposed formulations for the right to development under the UN 2030 Agenda) are inevitably related to practical solutions for global health crises and emergencies. Humankind has been in a never-ending learning process no matter where in the globe we live. In a certain fashion, the despicable speech and behaviour of certain governments and global corporations’ representatives during the fight against the coronavirus generated endurable feelings in scholarly circles worldwide. Besides, political agents’ disdain regarding lost lives will never be forgotten.

How could PIL resist and respond to global challenges involving politics, international affairs and global health while at the same time it will be confronted with upcoming events and processes associated to extremist discourses and hatred, disinformation, historical revisionism, ‘junk science’ or everything else that disregards principles of global justice, international cooperation and protection of the rights of the person in mobility? Perhaps it is too early to reach consensus or a moral judgment on that. Nevertheless, the fight against Coronavirus/Covid-19 seems to extoll the powerful narratives of alterity, care, social protection, equalities, science, access to knowledge and education. Private International Law may play an important and critical role during forthcoming ‘austerity projects’ that may come during these dark sides and days of our History. As recalled by participants, the present requires our communities to engage in new proposals to support people, enterprises, consumers, workers and governments in their aspirations and endeavours for improving ‘social contracts’ or creating new ones. A pandemic crisis would not be the last stop or challenge.   

For the sake of a peaceful and safe global community, PIL has ‘tools and minds’ to raise awareness about a balanced, fairly and universally oriented compromise to keep global, regional and national legal regimes operating in favour of the mobility of persons, the recognition of foreign situations, enforcement of human rights, allocation of distributive international trade, as well as engaging in environmental and human development goals. For example, recent academic writings on hardship or ‘force majeure’ theories could indeed focus on technical solutions for international contracts and liability rules, which are suitable for accommodating certain interests (the ‘zero-sum’ game?) among public and/or private parties during Covid-19 and after that. Yet those reflections could not isolate themselves from a broader discussion on major social and economic hurdles associated to business environments worldwide, such as unequal access to finance, trade imbalance, precarious work, digital dispossession by new technologies and multi-territorial and massive violation of human rights. From now on, global fairness and solidarity appear to be crucial for a common talk and shared feeling for countries during their socioeconomic reconstruction. Cooperation remains a cornerstone to pursue equilibrium strategies and surely PIL and its academic community will remain a great place for an authentic and constructive exchange between ideas beyond PIL itself. Stay with your beloved, stay safe!

Inez Lopes (Universidade de Brasília)
Fabrício Polido (Universidade Federal de Minas Gerais)

*********

International Law, International Relations and Institutions: narratives on Covid-19 & challenges for Private International Law

05/11 – Monday – 10:30

Raphael Vasconcelos – State University of Rio de Janeiro; Fabrício B. Pasquot Polido – Federal University of Minas Gerais; Renata Gaspar – Federal University of Uberlândia

Video here

PIL, Global Governance, mobility of persons and Covid-19: enforcement of sanitary measures, international public policy and critical debates

05/12 – Tuesday – 16:30

Paula All – National University of Litoral/ Argentina; Rosa Zaia – Federal University of Uberlândia; Renata Gaspar – Federal University of Uberlândia

Video here

PIL, state immunity, international organizations and cross-border civil/commercial litigation in Covid-19

05/13 – Wednesday – 10:30

Valesca R. Borges Moschen – Federal University of Espírito Santo; Martha Olivar Jimenez – Federal University of Rio Grande do Sul; Fabrício B. Pasquot Polido – Federal University of Minas Gerais; Tatiana Cardoso Squeff – Federal University of Uberlândia

Video here

Emerging issues for international protection of consumer tourist and Covid-19

05/14 – Thursday – 10:30

Guillermo Palao Moreno – University of València/Spain; Tatiana Cardoso Squeff – Federal University of Uberlândia; Valesca R. Borges Moschen – Federal University of Espírito Santo

Video here

Covid-19, persons in mobility, social and sexual rights at transnational level: violence, vulnerability, xenophobia and discrimination

05/15 – Friday – 10:30

Tatyana Friedrich – Federal University of Paraná; Mariah Brochado – Federal University of Minas Gerais; Francisco Gomez – University of València / Spain; Raphael Vasconcelos – State University of Rio de Janeiro

Video here

Global digital economy, data protection, online misinformation and cybersecurity in times of Covid-19: jurisdictional and international legal cooperation

05/18 – Monday – 10:30

Anabela Susana Gonçalves – University of Minho / Portugal; Alexandre Pacheco – Getúlio Vargas Foundation – FGV / Direito-SP; Fabrício B.P. Polido – Federal University of Minas Gerais; Inez Lopes – University of Brasília – UnB

Video here

Civil aviation and Covid-19: current landscape for transportation of passengers and international commercial transactions

05/19 – Tuesday – 10:30

Inez Lopes – GDIP-Aéreo-Espacial / University of Brasília; Fabrício B. Pasquot Polido – Federal University of Minas Gerais; Marcelo Queiroz – GDIP-Aéreo-Espacial / UnB and GETRA / UnB; Fernando Feitosa – GDIP-Aero-Espacial / UnB and GETRA / UnB

Video here

Covid-19, foreign investments, integrated markets and PIL goals: regulatory choices, critical infrastructure and litigation

05/20 – Wednesday – 10:30

Laura Capalbo – University of the Republic / Uruguay; Veronica Ruiz Abou-Nigm – University of Edinburgh / UK; Ely Caetano Xavier Junior- ICHS – Federal Rural University of Rio de Janeiro

Video here

Covid-19 & future of work in the global order: aspects of DIP, employment contracts, outsourcing and worker protection

05/21 – Thursday – 10:30

Marcia Leonora Orlandini – Federal University of Uberlândia; Marcel Zernikow – State University of Rio de Janeiro; Maurício Brito – GDIP-Transnational Justice / UnB

Full video here.

Covid-19, International commerce, global supply chains, WTO and beyond

05/22 – Friday – 16:30

María Mercedes Albornoz – CIDE / Mexico; Rui Dias – University of Coimbra / Portugal; Fabio Morosini – Federal University of Rio Grande do Sul; Renata Gaspar – Federal University of Uberlândia

Full video here

Covid-19, PIL and new technologies: research opportunities for Ph.D Students 05/19 – Tuesday – 19:00

Cecília Lopes – Master’s Student / UFMG; Fernanda Amaral – Master’s Student / UFMG

Full video here

Covid-19, PIL and protection of vulnerable communities: research opportunities for Ph.D Students

05/22, Friday – 10:30 – Márcia Trivellato – Doctoral candidate/ UFMG;  Thaísa Franco de Moura – Doctoral candidate/ UFMG; Diogo Álvares – Master student/UFMG;

Full video here

By Fieke van Overbeeke, Legal Counsel at the International Institute for International and Foreign Law – the Netherlands and research fellow at the University of Antwerp – Belgium.

On 31 May 2017 the European Commission launched a proposal to adopt a special conflict-of-laws rule that determines (i.a.) which minimum wages apply to the highly mobile cross-border working activities of lorry drivers (COM 2017, 278). After more than three years of heavy debate, this proposal was profoundly modified and the Council and the European Parliament still do not find each other, leaving many aspects to be still worked out (see also the Legislative Train on the European Parliament’s website). The purpose of this piece is to give an overview of the background of this proposal, the current state of affairs and the possible influence of a special conflicts-of-law rule on the sector from a conflict-of-laws perspective.

The background of this proposal can be traced back to the unfair competition that has arisen in the EU road transport sector as a result of the enlargements of the EU to central and eastern EU Member States (in 2004, 2007 and 2013). This has led to a tripled increase in minimum wage differences between EU Member States. Given that labour costs are the largest expense in the provision of transport services, this creates a major competitive advantage for providers from low-wage EU member states.

In fifteen years, this has caused a metamorphosis of the road transport sector, with Eastern EU Member States now leading the lists of the largest transport providers in the EU. Several Western EU Member States, such as Germany and France, have responded to this competitive pressure by adopting their own national minimum wage legislation to be applied to transport operations on their territory. As a result, the EU road transport sector has become severely fragmented and the social position of drivers has been put under pressure. How could this have gone so wrong?

In the EU we have always agreed that it is not sustainable or responsible to allow competition that is purely based on labour costs. To this end, we have introduced minimum wages within the national borders and EU-wide we have developed the so-called ‘Posting of Workers Directive’ (1996/71). This Directive stipulates, amongst other things, that the minimum wages of the temporary country of employment must be applied if this is more favourable for the employee. In this way, it is ensured that efficient and innovative market players can actually compete on this efficiency and innovation (and thus not only on wage costs).

However, the Posting of Workers Directive did not come about with regard to road transport, but mainly with regard to the construction sector, where various social/economic problems arose in the 1990s. As a result, the Directive is very difficult to apply to the atypical and highly mobile road transport sector and this has led to widely divergent interpretations in the Member States, in many cases simply not enforcing the Directive at all with regard to this sector. In practice, this allows for direct competition on labour costs, with all its undesirable consequences as described above.

The EU legislator now wants to put an end to this situation by developing a special conflict-of-laws rule for minimum wages in road transport, which, among other things, determines to which transport operations the Posting of Workers Directive does and does not apply. The contrasts between Western and Eastern EU Member States, but also to some extent between central and peripheral Member States, makes for a lengthy legislative process lasting more than three years.

On 12 December 2019 the European Commission, the European Council and the European Parliament have reached a provisional agreement about some important aspects of the conflicts-of-law rule, which was approved to a certain extent within the institutions themselves in the following months: on 21 January 2020 the Parliament’s TRAN Committee accepted the provisional agreement informally by letter to the other institutions, the Council then adopted an official position on 7 April 2020 and the Commission gave its approval to the Council’s position on 14 April 2020 (subject to a number of matters not relevant here).

This looked very promising, but on 8 June 2020 the TRAN Committee suddenly threw a spanner in the works: the TRAN Committee adopted some severely different amendments compared to the position of the Council. If the plenary approves this, the negotiations will become very difficult. Yet, in this controversial legislative procedure it would not be the first time that the plenary rejects the position of the TRAN committee. To be continued!

If we take a closer look at the official position of the Council, a number of things stand out. Firstly, it is made clear that the mere crossing of a territory by lorries, also known as ‘transit’ operations, is excluded from the scope of the Posting of Workers Directive and that therefore the minimum wages of the crossed territory may not be applied to these activities. These operations are considered to be insufficiently closely connected to this territory and by extension the application of the minimum rates of pay cannot be justified.

On the other hand, the proposal provides that activities that remain within a certain territory, e.g. transport by a Polish transport company between The Hague and Rotterdam, also referred to as ‘cabotage’ operations, do fall within the scope of the Posting of Workers Directive and must therefore be subject to the minimum wages of the country where the cabotage is carried out from the first moment of the operation and if this is more favourable for the employee. These operations are deemed to have a connection only with the territory on which the cabotage is carried out and the application for these minimum rates of pay is therefore justified. In short: green light for transit operations and red light for cabotage operations.

So far the newly adopted amendments of the TRAN committee from the European Parliament on 8 June 2020 are largely in accordance with this.

But what about those intermediate forms of transport, such as bilateral transport operations between Member States A and B, or so-called ‘crosstrade’ operations carried out by a transport company from Member State A between Member States B and C? This is a lot more complicated and has been a hot issue in the legislative negotiations. Ultimately, the Council agreed to exempt bilateral transport operations, whether or not in combination with a maximum of two consecutive operations, from the Posting of Workers Directive, and therefore the minimum wages may not be applied to these operations. Crosstrade, on the other hand, must, according to the proposal, fall under the Posting of Workers Directive and are therefore subject to the minimum wages, from the first moment of this operation and if this is more favourable to the employee.

This does not sit well with the TRAN Committee, which states in its recently adopted amendments that: 1) on the one hand there should be much more possibilities to combine a bilateral transport with other transport operations and 2) on the other hand that a ‘certain number of cross-trade operations should be exempted from posting rules.’ The TRAN Committee thus opts for a much more liberal point of view. It seems that the Corona crisis also exerted influence on the discussions: many East-European Member States now regress to the argument that the road transport sector already severely suffers from the Corona crisis and point to the pivotal importance of the delivery of medicine and goods, which should release transport companies from the obligation to safeguard the social protection of their drivers.

Whatever the outcome of the negotiations, it is already clear that if a special conflict of laws rule for road transport will be adopted, it can be seen as a real ‘game changer’ for the sector since it would bring much more legal certainty regarding the application of the Posting of Workers Directive. Regarding some transport operations, internationally operating transport companies will have to take serious notice of the minimum wages they have to guarantee their drivers. Non-compliance with this new legislation is strongly discouraged: along with the new posting rules, the EU legislator aims to provide for a whole package of enforcement and control measures that are mandatory for the Member States and in which, for the first time, the EU legislator also keeps aspects under its own control.

New enforcement authorities should also be taken into account. In addition to possibly setting up a European road transport agency in the future, the more general European Labour Authority (ELA) has been set up in 2019, with the true mandate ‘to promote fair labour mobility within the EU’. It is expected that the ELA will be able to play a far-reaching role, unprecedented in the history of the EU, in the enforcement of social legislation; including in the road transport sector.

See for more information on this topic my recent article ‘Posting drivers in the EU road transport sector’, ERA Forum 2020 (freely available online). For those who read Dutch, see my PhD ‘Sociale concurrentie en conflictenrecht in het Europees wegtransport’, University of Antwerp 2018 (freely available online).

* The author is a member of the Hague-based ‘International Institute of International and Foreign Law’: www.iji.nl, which has been providing legal consultancy to professionals (judges, lawyers, notaries, mediators etc.) regarding private international law and foreign law for over a hundred years.

The Mexican Academy of Private International and Comparative Law (AMEDIP) will be holding its XLIII Seminar entitled “Private International Law in the current international climate” from 18 to 20 November 2020 for the first time online!

One of the topics to be discussed is COVID-19 and private international law. In addition, two Hague Conventions feature prominently in the list of topics submitted for discussion: the 1996 HCCH Protection of Children Convention and the recent 2019 HCCH Judgments Convention.

Potential speakers are invited to submit a paper in Spanish, English or Portuguese by 16 August 2020. Papers must comply with the criteria established by AMEDIP and will be evaluated accordingly. Selected speakers will be required to give their presentations preferably in Spanish as there will be no interpretation services but some exceptions may be made by the organisers upon request.

Participation is free of charge. The platform that will be used is Zoom and it will also be streamed via Facebook Live. For more information, please click here.

By a decision of 13 March 2020, the Munich Court of Appeal, having regard to the expected delay in the processing of a request for service in China, allowed a resident of Germany to effect service by publication on a person of known residence in China, after sending an e-mail for information purposes.

The claimant, a resident of Germany [G], had obtained an injunction in Germany. This was served on the respondent (a resident of China) [C] while the latter attended an exhibition in Germany.

Two months later, G filed a motion for the imposition of a fine [an Ordnungsmittelantrag] against C before the Court of First Instance of Munich. Pursuant to § 891 of the German Code of Civil Procedure, the debtor must be heard before such a decision is taken.

G requested to serve the application for the fine by publication, although he was aware of C’s whereabouts. G founded the request upon the serious delay to be expected in case of service through the Chinese judicial assistance channels, based on the Hague Service Convention. The Court of First Instance dismissed the request.

G challenged the decision before the Munich Court of Appeal.

The Court of Appeal reversed the decision of the Court of First Instance. It found that G had produced sufficient evidence, presumably emanating from the Munich Court statistics, proving the delay in the processing of requests by the Chinese authorities, i.e. nearly 18 months or more, which would seriously infringe his rights.

In this situation, the court continues, the interests of the creditor in effective legal protection outweigh the interests of the debtor in presenting his case before the Court. It ruled that the creditor must inform the debtor about the application via electronic communication channels known to the creditor and also used by the debtor. The creditor must also inform the debtor about the request for service by publication, and the possibility for the debtor to appoint a representative to receive documents on his behalf in Germany, including English-language translations.

The Court of Appeal also ruled that in view of the short limitation period of only two years provided in Article 9(1) 2 EGStGB (Introductory Law to the German Penal Code), the creditor’s right to legal protection would not be respected if she would be forced to execute the service of documents in China through judicial assistance channels, despite the known problems with this procedure. On the other hand, the debtor’s right to be heard could be violated by granting service by publication before the creditor has been informed by the debtor about the application, the request of service by publication and the possibility of appointing a representative. The final decision on the proper procedure would be left to the Court of First Instance.

The judgment has been reported (in German) by Benedikt Windau with a note here.

I have mixed feelings about the judgment. On the one hand, I would endorse the innovative idea of involving frequently used communication channels between the parties for information purposes on service of process modalities. This has been also proposed in the preparatory stages of the Service Regulation Recast (which should be published anytime soon). Regrettably, however, it has not been adopted by the competent legislative bodies.

On the other side, the Court is approaching the matter in full defiance of the Hague Service Convention, to which Germany and China are signatories. The ruling is founded upon § 185(3) of the German Code of Civil Procedure, and the interesting part here is the second scenario envisaged in the provision, i.e. when service of process does not raise hopes of success.

Prior to the application of the domestic rule, one would expect a reasoning on how the court by-passed the Service Convention. Surely the Court would have no reason to engage in a detailed analysis if the debtor was indeed of unknown residence. A sheer reference to Article 1(2) of the Convention would suffice. However, notwithstanding the fact that the debtor’s whereabouts were known to the creditor, and without even stating why Article 15 Hague Service Convention was unworthy of any reference, the court followed the course every judge prefers the most, i.e. the application of national rules.

The importance of the Service Convention has been repeatedly underlined in German legal scholarship. The Federal Republic of Germany has made a declaration concerning Article 15 (the six – months rule). In the judgment of the Supreme Court referred by the Munich Court of Appeal, the former ruled against service by publication with regard to a Russian party [BGH NJW-RR 2009, p. 855].

To sum up, the judgment raises (at least) two interesting and rather intriguing questions: If we follow this path: (a) what would be the value of Article 15 in the future? and more broadly, (b) what would be the consequences in a wider dimension? Will other contracting States follow suit?

Place of Performance – A Comparative Analysis is the title of a book authored by Chukwuma Samuel Adesina Okoli. It recently appeared in the Studies in Private International Law series of Hart Publishing.

The blurb reads:

This book provides an unprecedented analysis on the place of performance. The central theme is that the place of performance is of considerable significance as a connecting factor in international commercial contracts. This book challenges and questions the approach of the European legislator for not explicitly giving special significance to the place of performance in determining the applicable law in the absence of choice for commercial contracts. It also contains, inter alia, an analogy to matters of foreign country mandatory rules, and the coherence between jurisdiction and choice of law. It concludes by proposing a revised Article 4 of Rome I Regulation, which could be used as an international solution by legislators, judges, arbitrators and other stakeholders who wish to reform their choice of law rules.

The table of contents and more information are available here.

The University of Lausanne (LL.M. Programme in International Business Law and CEDIDAC), along with the Massachusetts Institute of Technology Connection Science Lab and the AI Transparency Institute are inviting abstracts on Artificial Intelligence (AI) and Dispute Resolution, or Distributed Ledger Technologies (DLT) and Private International Law (PIL).

Papers of interest on AI and Dispute Resolution might discuss: the impact of AI on decision-making; the impact of AI on access to justice; transparency of arbitral data; control over arbitral data; potential risks to confidentiality in view of AI; personal data protection in arbitration; and, AI and arbitral uncertainty.

Papers of interest on DLT & PIL might discuss: the law applicable to crypto assets; the law applicable to transfers on a blockchain; the law applicable to transfers outside a blockchain; the law applicable to smart contracts; the law applicable to decentralised autonomous organisations; and, jurisdiction and choice of court.

The latter list of topics follows the headings listed in Permanent Bureau of the Hague Conference on Private International Law, Prel. Doc. 28 of February 2020, Proposal for the Allocation of Resources to Follow Private International Law Implications relating to Developments in the Field of Distributed Ledger Technology, in particular in relation to Financial Technology.

Deadline for papers: 1 February 2021.

More information here.

Graham Woloff eaor Calzaturificio Zengarini eaor re Akkurate Ltd, [2020] EWHC 1433 (Ch) concerns the question whether the court has the power under section 236(3) of the Insolvency Act 1986 to require persons resident in the EU to produce books and papers and an account of their dealings with a company being compulsorily wound up in England and Wales (it is not disputed that Akkurate’s centre of main interests (“COMI”) was in England and Wales under the European Insolvency Regulation EIR).

EIR 2000 applies to this case, because the winding up of Akkurate was before 26 June 2017, however the issue is not materially different in the new Regulation. There are inconsistent first instance decisions which Vos C reviews ia at 27 ff and at 54 after consideration, he considers s236(3) does not have extraterritorial effect on the basis of what he considers to be the binding authority of Re Tucker (a bankrupt) [1990] Ch. 148. however that following the EIR 2000 (unchanged in EIR 2015) the European regime can and does extend the territoriality of purely domestic insolvency provisions. CJEU authority cited is in particular C-339/07 Seagon v Deko Marty Belgium (at 58 ff) – which I find may be a bit optimistic. Vos C also decides that he can and should apply his discretion to grant orders as formulated at 68.

Clearly, post Brexit, the situation will revert to Tucker. Which would make the English courts less attractive than their continental counterparts – although of course one would have to wait for CJEU authority to confirm the issue less equivocally.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 5,

EU #Insolvency Regulation 1346/2000. Whether EN court has power to require persons resident in EU to produce documents re company with COMI in EN.

Held, considering CJEU authority: Yes. https://t.co/0dcgtOc7fF

— Geert Van Calster (@GAVClaw) June 4, 2020

Mad Atelier International BV v Manes [2020] EWHC 1014 (Comm) engages among others Articles 29-30 BIa on lis alibi pendens and its relation with issue estoppel. Stewart Chirnside has analysis here and  I am happy to refer. The judgment itself is not straightforward for Bryan J had much to decide – I agree with his conclusion at 124 on A29-30 BIa related issues that he is

‘satisfied that the French Civil Proceedings does not give rise to any issue estoppel because, for the reasons that I have given: (1) The decision of the Paris Commercial Court on such issues is not final or conclusive; (2) The parties to both proceedings are not privies; (3) The issues identified by Mr Manès were not issues concluded by the court, but rather comments on the state of the evidence, and (4) The issues in the English Proceedings are significantly broader than the issues in the French Civil Proceedings. Each of these is, in and of itself, fatal to the contention that an issue estoppel arises from the Paris Judgment, and I find that no issue estoppel arises.’

Geert.

Recognition and enforcement. Res judicata. Issue estoppel. https://t.co/yJDw3uHMD6 https://t.co/ACwZWMB6Wg

— Geert Van Calster (@GAVClaw) May 1, 2020

The author of this post is Vincent Richard, Senior Fellow at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law.

On 14 May 2020, the CJEU gave a preliminary ruling in Bouygues travaux publics, a case regarding the binding effect of social security certificates issued by the social security authority of a Member State on the courts of another Member State where workers are posted. The judgment was rendered in the context of French criminal proceedings against Bouygues travaux publics for infringements of labour law during the construction of the EPR nuclear power plant in Normandy.

EPR nuclear reactors represent the new generation of nuclear power plants conceived to be safer than current reactors. Construction have started in Finland and France fifteen years ago but both projects ran into costly delays. So far, two reactors have been completed in Taishan, in the Guangdong province of China while the European nuclear plants are still under construction.

The EPR nuclear plants constructed in Olkiluoto in Finland is scheduled for 2021 after a dispute that was concluded with a settlement whereby the Areva-Siemens consortium agreed to pay 450 million euros to the Finnish utility company TVO. Two more reactors are being built at Hinkley Point in England with a starting date scheduled between 2025 and 2027.

Construction of the French EPR reactor started in 2007 in Flamanville in Normandy with a projected cost of 3.3 billion euros. According to French newspapers, completion is now expected for 2023 with a total cost of more than 12 billion euros. The project has faced technical difficulties but it has also run into legal troubles surrounding employment contracts of Eastern European workers.

To complete such a massive project, Bouygues travaux publics formed a limited partnership with two other undertakings and it subcontracted the contract to an economic interest grouping that included, among others, Welbond, a company domiciliated in France. This grouping itself used subcontractors, including Elco, a company established in Romania to supply Romanian workers and Atlanco Ltd, a temporary employment company established in Ireland with a subsidiary in Cyprus and an office in Poland to supply Polish workers.

An investigation by the French nuclear safety authority and then the French police revealed that, between 2008 and 2012, there had been more than one hundred unreported workplace accidents on the construction site, as well as several other infringements of French labour law. Subsequently, Polish workers sued the above-mentioned companies before the labour court of Cherbourg, France, and French prosecutors initiated criminal proceedings against Bouygues, Welbond and their subcontractors before the criminal court in Cherbourg (all decisions in French can be found here).

On appeal, the court of appeal of Caen held that the companies were guilty of the offences of concealed employment and unlawful provision of workers. It ruled that Elco, the Romanian company, could not rely on the European legislation on posting of workers because it had a stable and continuous activity in France. Therefore, the contracts should be characterised as French employment contracts and the company should have complied with French labour law and declared the workers to French authorities prior to their recruitment. Workers were hired in Romania for the sole purpose of working in France and some of them had worked there for more than 24 months. Similarly, Atlanco had hired temporary Polish workers to work in France through its Cypriot branch by making them sign a contract drawn up in Greek. Atlanco never appeared in court but Bouygues and Welbond were held guilty of concealed employment offences for the workers supplied by Atlanco, by not declaring the workers to French authorities. This “declaration prior to recruitment of employees” aims to register workers officially so that the offence of concealed employment be easier to prove in the absence of such declaration.

The main argument of the defendants was to rely on the legal value of the E101 and A1 certificates that they had provided to French authorities. These certificates were required by regulations n. 1408/71 and 574/72 (replaced respectively by regulations n. 883/2004 and 987/2009) on the coordination of social security systems. These forms, issued by the social security authority of the Member State of origin, certify that the worker is covered by the social security of that Member State and thus exclude the application of another social security legislation.

According to CJEU case law in Herbosch Kiere and A-Rosa Flussschiff GmbH, the certificates are binding on both the social security institutions and on the courts of the Member State where the work is carried out. If the authority of this Member State raises doubts as to the correctness of the certificate, the issuing authority in the Member State of origin must re-examine the grounds on which the certificate was issued (Fitzwilliam). In Altun, the CJEU provided for a limited exception whereby a court can disregard the certificate when evidence supports the conclusion that a certificate was obtained fraudulently and only if the issuing authority fails to take that evidence into consideration for the purpose of reviewing the certificate.

In the present case, French lower courts have applied French labour law, whereby employers have to make a declaration to social security authorities prior to recruiting employees. This declaration allows to complete several administrative formalities at once. It aims to register workers officially not only to the social security scheme but also to the occupational health services or retirement schemes. Before the Cour de cassation (which is the French Supreme Court for civil and criminal disputes) the defendants argued that this declaration was not necessary because French authorities were bound by the foreign certificates, and therefore French social security and labour laws do not apply. Unsure about the scope of these certificates, the French Supreme Court asked the CJEU whether the binding effect of the certificates regarding the affiliation to social security extends to the law applicable to the labour obligations of the employer, such as the French declaration prior to recruitment. For the CJEU, the question is tantamount to deciding whether the certificate binds the court of the Member State where employees are working not only in the area of social security, but also in the area of employment law.

In its decision, the CJEU stresses that the certificates are designed to facilitate freedom of movement for workers and that Member States should apply the principle of sincere cooperation, laid down in Article 4(3) TEU, which also entails the principle of mutual trust. Consequently, the certificates create a presumption that workers are properly affiliated to the social security scheme of the issuing Member State and this declaration is binding on the Member State where the work is carried out. However, because the certificates are prescribed by the European regulations on the coordination of social security systems, their scope is limited to social security matters, and they do not have a binding effect in employment law matters.

The Court held:

Article 11(1)(a), Article 12a(2)(a) and (4)(a) of Council Regulation (EEC) No 574/72 of 21 March 1972 laying down the procedure for implementing Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to their families moving within the Community, in the version amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 647/2005 of the European Parliament and of the Council of 13 April 2005 and Article 19(2) of Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems, must be interpreted as meaning that an E 101 Certificate, issued by the competent institution of a Member State, under Article 14(1)(a) or Article 14(2)(b) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to their families moving within the Community, in the version amended and updated by Regulation No 118/97, as amended by Council Regulation (EC) No 1606/98 of 29 June 1998, to workers employed in the territory of another Member State, and an A 1 Certificate, issued by that institution, under Article 12(1) or Article 13(1) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, as amended by Regulation (EC) No 465/2012 of the European Parliament and of the Council of 22 May 2012, to such workers, are binding on the courts or tribunals of the latter Member State solely in the area of social security.

This decision is not ground-breaking but it will help the French authorities in their fight against social dumping. If the French Supreme Court considers that the effect of the declaration prior to recruitment are broader than social security legislation, French prosecutors will be able to sue employers before criminal courts for offences of concealed employment if companies do not submit this declaration to French authorities. That being said, in the EPR case, the court of appeal ordered defendants to pay fines ranging from 15.000 to 60.000 euros while the loss to French social security is estimated by French newspapers to be between 10 and 12 million euros.

Overall, the reasoning of the CJEU in this case and in Altun will be familiar to specialists of the Area of Freedom, Security and Justice. Here, the principle of mutual trust is derived from the principle of sincere cooperation enshrined in Art. 4(3) TEU rather than from the principle of mutual recognition of judgments of Art.67(3) TFUE but its function as an interpretative imperative is the same. Similarly, the CJEU accepted in Altun that mutual trust is not without limit and that there may be exceptional circumstances in which a court is allowed to disregard a legal document issued in another Member State.

Written by Mayela Celis – The comments below are based on the author’s doctoral thesis entitled “The Child Abduction Convention – four decades of evolutive interpretation” at UNED

As mentioned in a previous post, after many years in the making, the Guide to Good Practice on the grave-risk exception (Article 13(1)(b)) under the Child Abduction Convention (grave-risk exception Guide or Guide) has been published. Please refer to our previous posts here and here. This Guide to Good Practice deals with a very controversial topic indeed. The finalisation and approval of this Guide is without a doubt a milestone and thus, this Guide will be of great benefit to users.

For ease of reference, I include the relevant provision dealt with in the Guide. Article 13(1)(b) of the Child Abduction Convention sets out the following: “Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that – […] b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. […]” (our emphasis).

The comments on the grave-risk exception Guide will be divided into two posts. In the present post, I will analyse the Guide exclusively through the lens of human rights. In the second post, I will comment on some specific legal issues of the Guide but will also touch upon on some aspects of human rights law. These posts reflect only my personal opinion. Given the controversial nature of this topic, there might be other different and valid opinions out there so please bear that in mind.

At the outset, it should be noted that this Guide is only advisory in nature and thus nothing in the Guide may be construed as binding upon Contracting Parties to the 1980 Convention (and any other HCCH Convention) and their courts (paras 7 and 8 of the Guide) Therefore, courts have enough leeway to supplement it and take on board what they see fit.

Human rights law is gaining importance every day, also in private international law cases. However, apart from some fleeting references to the United Nations Convention on the Rights of the Child (pp. 16 and 56), there are no references to human rights case law in the Guide. Indeed, the increasing number of judgments of the European Court of Human Rights (ECtHR) is not mentioned in the Guide, even though dozens of these judgments have dealt with the grave-risk exception (Art. 13(1)(b)) under the Child Abduction Convention; thus there appears to be an “elephant in the room”. We will try to respond in this post to the following questions: what has been the contribution of the ECtHR on this topic and what are the possible consequences of the absence of references to human rights case law in the Guide.

In this regard, I refer readers to our previous post regarding the interaction of human rights and the Child Abduction Convention here and my article entitled: The controversial role of the ECtHR in the interpretation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, with special reference to Neulinger and Shuruk v. Switzerland and X v. Latvia (in Spanish only but with abstracts in English and Portuguese in the Anuario Colombiano de Derecho Internacional). To view it, click on “Ver artículo – descargar artículo”, currently pre-print version, published online in March 2020.

Before going into the substance of this post, it is perhaps important to clarify why the case law of the ECtHR in child abduction matters is of such great importance in Europe and beyond, perhaps for the benefit of our non-European readers. First, in addition to being binding upon 47 States party to the European Convention on Human Rights, which represent about half of the total number of Contracting Parties to the Child Abduction Convention (45%), the case law of the ECtHR not only applies to child abduction cases between European States. It will also apply, for example, if the requested State in child abduction proceedings is a party to the European Convention on Human Rights and the requesting State is not. Indeed, the geographical location of the requesting State and whether it is a party to the European Convention on Human Rights are not relevant. See for example, Neulinger and Shuruk v. Switzerland (Application No. 41615/07), Grand Chamber, where the requesting State was Israel, and X v. Latvia (Application No. 27853/09), Grand Chamber, where the requesting State was Australia, both of which are not a party to the European Convention. Secondly, not only European citizens can launch proceedings before the ECtHR. All of this is nicely summarised in Article 1 of the European Convention on Human Rights, which sets out that “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention” (our emphasis).

In X v. Latvia, the Grand Chamber of the ECtHR has established a legal standard in the handling of child abduction cases where the 13(1)(b) exception has been raised (and indeed other exceptions of the Child Abduction Convention such as Articles 12, 13(1)(a), 13(2) and 20), which is the following:

“106. The Court [ECtHR] considers that a harmonious interpretation of the European Convention and the Hague Convention (see paragraph 94 above) can be achieved provided that the following two conditions are observed. Firstly, the factors capable of constituting an exception to the child’s immediate return in application of Articles 12, 13 and 20 of the Hague Convention, particularly where they are raised by one of the parties to the proceedings, must genuinely be taken into account by the requested court. That court must then make a decision that is sufficiently reasoned on this point, in order to enable the Court to verify that those questions have been effectively examined. Secondly, these factors must be evaluated in the light of Article 8 of the Convention (see Neulinger and Shuruk, cited above, § 133).” (our empahsis)

[…]

“118. As to the need to comply with the short time-limits laid down by the Hague Convention and referred to by the Riga Regional Court in its reasoning (see paragraph 25 above), the Court reiterates that while Article 11 of the Hague Convention does indeed provide that the judicial authorities must act expeditiously, this does not exonerate them from the duty to undertake an effective examination of allegations made by a party on the basis of one of the exceptions expressly provided for, namely Article 13 (b) in this case.” (our emphasis)

In addition, the ECtHR indicates that domestic courts must conduct “meaningful checks” to determine whether a grave risk exists (paragraph 116 of X v. Latvia), and to do so a court may obtain evidence on its own motion if for example, this is allowed under its internal law.

Importantly, this case also underlines the need to secure “tangible” measures of protection for the return of the child (paragraph 108 of X v. Latvia).

Moreover, there are at least two issues in the Guide that could have benefited from a human rights analysis, namely the incarceration of (mainly) the abducting mother upon returning the child to the State of habitual residence and the separation of siblings.

With regard to the first issue, it should be noted that the fact that the mother will be incarcerated upon returning the child to the State of habitual residence could have serious consequences for the child. The Guide has correctly explained the different ways in which such an outcome could be avoided. However, the Guide concludes with the following: “The fact that the charges or the warrant cannot be withdrawn is generally not sufficient to engage the grave risk exception” (paragraph 67).

In my view, where objective reasons have been raised by the mother to refuse to return to the State of habitual residence, such as incarceration, there should be a human rights analysis in the light of Article 8 of the European Convention on Human Rights. While there might be some cases where incarceration may not be sufficient to refuse a return, there might be other cases were this would place the taking parent and the child in grave risk of harm or intolerable situation. By way of example, objective reasons for not returning could include a long incarceration or a disproportionate sanction, the fact the other parent cannot take care of the child upon the incarceration of the other parent, the inability to contest custody while imprisoned, etc. According to the ECtHR, an analysis should be undertaken as to whether these actions are necessary in a “democratic society”. Accordingly, the decision of the mother not to return based on a whim should not be considered seriously. See, for example, the ECtHR cases, Neuliger and Shuruk v. Switzerland (Application No. 41615/07), Grand Chamber (as clarified by X v. Latvia (Application No. 27853/09), Grand Chamber)), and B. c. Belgique (Requête No. 4320/11). Arresting and handcuffing the mother at the airport has undoubtedly a tremendous impact on children; so all efforts should be geared via judicial co-operation and direct judicial communications to make sure that charges are dropped as mentioned in the Guide (first part of paragraph 67 of the Guide).

As regards the second scenario, it is important to note that the separation of siblings when one of them has successfully objected to being return under Article 13(2) under the Child Abduction Convention may inflict harm on the children and may be difficult to enforce. The Guide noted that every child should be considered individually and concluded that “Consequently, the separation of the siblings resulting from the non-return of one child (regardless of the legal basis for the non-return) does not usually result in a grave risk determination for the other child” (paragraph 74).

According to article 12 of the UN Convention on the Rights of the Child, the views of the child should be given due weight in accordance with the age and maturity of the child. By ordering the return of usually the younger sibling(s) and forcing the mother to make a choice between returning with one child and staying with the child who objected, a judge could not be giving enough weight to the views of the child objecting to being returned. This is especially the case when we are dealing with full siblings and all are subject to return proceedings. In my view, and given that the reason for not returning are the views, in particular, of the older child, this should be factored in when the judge exercises his or her discretion.  See, for example, the ECtHR case, M.K. c. Grèce (Requête n° 51312/16). Obviously, if the separation of siblings is due to the action of the mother by not wanting to return, then a separation of the siblings would most likely not be a ground for refusing the return.

The underlying basis of the above is that the Child Abduction Convention is for the protection of children and not to vindicate the position of adults who are immersed in a legal battle or to merely sanction the abductor.

The standard in X v. Latvia should be kept in mind when dealing with international child abduction cases. Given that the grave-risk exception Guide is silent on this, practitioners would need to supplement the Guide with relevant literature and case law on human rights if they are dealing with a case in Europe. Practitioners outside Europe having a child abduction case which is being resolved in Europe may need to do the same in order to know what their possibilities of success and options are.

In this day and age, and as mentioned by the honorable Eduardo Vio Grossi, judge of the Inter-American Court of Human Rights, in a recent virtual forum (“Challenges to Inter-American Law”), the focus should not only be on sanctioning States for violations of human rights but we should assist States in not getting sanctioned by providing the necessary guidance and if possible, paving the way.

The Court of Justice delivered this week, on 4 June 2020, its judgment in case C‑41/19 (FX v GZ, represented for legal purposes by her mother), which is about the Maintenance Regulation.

Context: “By decision of the Sąd Okręgowy w Krakowie (Regional Court, Krakow, Poland) of 26 May 2009, FX was ordered to make monthly maintenance payments of around EUR 100 for the benefit of his daughter GZ, a minor, retroactively from June 2008.

20 Further to GZ’s application of 20 July 2016, the Amtsgericht Köln (Local Court, Cologne, Germany), by order of 27 July 2016, decided that an order for enforcement was to be issued in respect of the aforementioned decision of the Sąd Okręgowy w Krakowie (Regional Court, Krakow).

21 On the basis of that order declared enforceable, GZ, represented for legal purposes by her mother, initiated enforcement proceedings against FX in Germany. Challenging those proceedings, FX lodged before the Amtsgericht Köln (Local Court, Cologne) on 5 April 2018 an application opposing enforcement, pursuant to Paragraph 767 of the ZPO.

22 In support of his application, FX submits that the maintenance debt at issue in the main proceedings was discharged either directly until 2010 or, since December 2010, through the Maintenance Fund (Poland), to which FX claims to have reimbursed the sums paid to GZ to the extent of his financial capacity. FX maintains that, in any event, the debt has been predominantly settled”.

Issue: “The referring court has doubts, in the first place, as to whether the application opposing enforcement that FX lodged before it falls within its international jurisdiction.

24 On the one hand, the referring court states that if that application is to be treated as a matter relating to maintenance obligations within the meaning of Article 1 of Regulation No 4/2009, it has no international jurisdiction under that regulation and accordingly the Polish courts would have exclusive jurisdiction to examine FX’s objection that the maintenance debt at issue in the main proceedings has been discharged.

25 In that regard, the referring court notes that part of the German literature takes the view that an application opposing enforcement under Paragraph 767 of the ZPO is in fact to be treated as a matter relating to maintenance obligations within the meaning of Regulation No 4/2009 in so far as the objections raised in such an application, in particular those relating to the fulfilment or subrogation of that claim, are ultimately directed against the order for enforcement as such rather than the manner of the enforcement, which is to be assessed purely under enforcement law. Similarly, the referring court points out that that application opposing enforcement functionally corresponds to an application seeking reduction of the maintenance claim in respect of which an order for enforcement has been issued, which modification application, under Article 8 of Regulation No 4/2009, is subject to the jurisdictional principles set out therein. In the referring court’s view, that interpretation, which is supported by part of the German literature and which the referring court is inclined towards, is the only one compatible with the objective pursued by that regulation, namely guaranteeing the protection and jurisdictionally privileged status of the maintenance creditor, without, accordingly, the creditor having to defend himself, before the courts of the Member State of enforcement of the claim for which an order of enforcement has been issued, against an application opposing enforcement concerning substantive objections to that claim.

26 On the other hand, the referring court observes that the German legislature, conversely, is evidently of the opinion that the courts of the Member State of enforcement of a maintenance claim have jurisdiction to adjudicate on an application opposing enforcement, such as that provided for in Paragraph 767 of the ZPO, in which the debtor is authorised to raise objections to the claim itself. According to the referring court, the prevailing view in Germany is furthermore that such an application opposing enforcement does not come under matters relating to maintenance obligations within the meaning of Regulation No 4/2009 on the ground that, inter alia, the legal protection objective sought is directed solely against the enforcement of the claim, whereas the continuance of the original order remains untouched.

27 If that second position is to prevail, the referring court asks, in the second place, whether FX’s application opposing enforcement is then to be treated as ‘proceedings concerned with the enforcement of judgments’ within the meaning of Article 24(5) of Regulation No 1215/2012.

28 According to the referring court, the judgments of 4 July 1985, AS-Autoteile Service (220/84, EU:C:1985:302) and of 13 October 2011, Prism Investments (C‑139/10, EU:C:2011:653) are not capable, by themselves, of providing an answer to that question. Indeed, they were delivered in the regulatory framework preceding the entry into force of Regulation No 4/2009. In addition, pursuant to Article 1(2)(e) of Regulation No 1215/2012, that regulation does not apply to maintenance obligations”.

Question: “By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether an application opposing enforcement lodged by a maintenance debtor against the enforcement of a decision given by a court of the Member State of origin and which established that claim falls within the scope of Regulation No 4/2009 or that of Regulation No 1215/2012 and the international jurisdiction of the courts of the Member State of enforcement”.

Response from the Court of Justice: “Council Regulation (EC) No 4/2009 […] is to be interpreted as meaning that an application opposing enforcement brought by the maintenance debtor against enforcement of a decision given by a court of the Member State of origin and which established that debt, which has a close link with the procedure for enforcement, falls within its scope and is within the international jurisdiction of the courts of the Member State of enforcement.

Pursuant to Article 41(1) of Regulation No 4/2009 and to the relevant provisions of national law, it is for the referring court, being a court of the Member State of enforcement, to adjudicate on the admissibility and the validity of the evidence adduced by the maintenance debtor, seeking to support the submission that he has predominantly discharged his debt”.

Source: here