Flux européens

Affum
Espace de liberté, sécurité et justice
Selon l’avocat général Szpunar, un ressortissant étranger, qui n’est pas intercepté lors du franchissement irrégulier d’une frontière extérieure de l’espace Schengen, ne peut pas être mis en prison au seul motif de son entrée irrégulière sur le territoire d’un État membre

On 11 February 2016, the British Institute of International and Comparative Law (BIICL) will host an event titled International Protection of Adults – the Current Legal Framework Under Scrutiny.

[From the website of the Institute] – Despite the 2000 Hague Convention, practical problems arise in cross-border scenarios, involving public policy and human rights considerations. On a practical level, private mandates are not accepted by financial institutions and there is no mechanism for enforcement. Speakers will discuss strengths and weaknesses of the current legal framework, prospects for future ratification of the 2000 Hague Convention, and initiatives of the European Parliament and Council of Europe to improve matters for European citizens.

Speakers include Philippe Lortie, Adrian Ward, Claire Van Overdijk, Richard Frimston and Alex Ruck Keene.

More information available here.

I have reported before on the narrow possibility, within the scope of the Brussels I Regulation, for refusal of recognition of judgments from fellow national courts in the EU (Diageo; Trade Agency). The High Court confirmed the exceptional character of the exercise in Smith v Huertas. Following conviction in a criminal court, Dr Smith had been instructed by the French courts to pay Huertas a considerable sum following fraudulent payments made by a new insolvent company, of which Dr Smith was a director. The argument on ordre public grounds was made viz alleged bias and hostility in one particular court hearing; the long duration of the trial; and one or two alleged procedural inadequacies (in particular, the refusal to interview Dr Smith on a number of occasions).

Most if not all of the complaints were taken by Dr Smith to the ECtHR, which decided not to proceed with the case (such decisions are made in summary manner and one therefore has to guess whether either the claims were found to be manifestly unfounded, or not of a nature as having actually put the applicant at a disadvantage).

Importantly, Cooke J emphasises the responsibility of applicant (seeking refusal of recognition) to raise matters which might conceivably lead to a refusal of recognition, in the Member State of origin: at 21:

Where the factors relied on as being contrary to public policy in England are factors which the court has already considered in the foreign jurisdiction or are factors which could have been raised by way of objection in that jurisdiction, it appears to me self-evident that the foreign jurisdiction must be treated as the best place for those arguments to be raised and determined. To do otherwise would be contrary to the spirit of the Convention and, where issues of unfairness are raised which are capable of being the subject of appeal in the foreign jurisdiction, the court in the enforcing jurisdiction would be much less able to assess them than the original court which was familiar with its own forms of procedure. It is plain that an enforcing court will have much more difficulty in understanding the overall foreign system and its procedures for ensuring that justice is done than the appeal court of the original jurisdiction itself. There is moreover a highly unattractive element in a defendant not raising points which he could have raised in the original jurisdiction, by way of appeal against the judgment and only seeking to raise those matters when the judgment is exported to an enforcing jurisdiction under the Convention as matters of public policy for that court.

Dr Smith’ task therefore was to (at 26) not only … show an exceptional case of an infringement of a fundamental principle constituting a manifest breach of a rule of law regarded as essential in the legal order in this country or of a right recognised as being fundamental within it but that the system of legal remedies in France did not afford a sufficient guarantee of his rights. Dr Smith must overcome the strong presumption that the procedures of the courts of France, another Contracting State, are compliant with Article 6…

A task which in the end Dr Smith failed to accomplish and summary judgment for recognition and enforcement was issued. Review by Cooke J may seem lengthy to some however CJEU case-law emphasises the ad hoc nature of the ordre public exception: that requires some case-specific assessment, of course.

Geert.

 

L’Istituto Ellenico di diritto internazionale e straniero ha comunicato attraverso il suo sito, il 28 gennaio 2016, la decisione di sospendere, per ragioni finanziarie, la pubblicazione della Revue hellénique de droit international.

Fondata nel 1948, la Revue hellénique ha rappresentato il principale veicolo di diffusione della dottrina greca nel campo del diritto internazionale pubblico e privato, oltre che nel campo del diritto dell’Unione europea, in lingua francese e inglese.

Rispetto alle tematiche internazionalprivatistiche, la rivista ha ospitato, oltre a numerose cronache della giurisprudenza greca, molti contributi scientifici importanti, di studiosi greci e non (le coordinate bibliografiche degli scritti apparsi sulla rivista sono reperibili a questo indirizzo).

La sospensione delle pubblicazioni della Revue hellénique, se non dovesse essere solo temporanea, costituirebbe una perdita significativa per la comunità scientifica degli internazionalisti europei. Essa in ogni caso riflette le condizioni di straordinaria difficoltà in cui sono costretti a lavorare gli studiosi greci, dopo la drammatica crisi che ha colpito il loro paese.

Dorota Leczykiewicz, Human Rights and the Area of Freedom, Security and Justice: Immigration, Criminal Justice and Judicial Cooperation in Civil Matters, available here through on SSRN.

[Abstract] – The chapter considers the rich acquis of the EU falling within the Area of Freedom, Security and Justice from the perspective of human rights. It starts by looking at human rights issues arising from EU asylum and migration law and moves on to the EU’s prevention of crime measures, where it focuses on the judicial cooperation in criminal matters. It finishes by considering the human rights issues arising in the context of judicial cooperation in civil matters. The chapter explains the double role of human rights in the AFSJ – as a policy objective realised through legislative measures and a standard of review of acts adopted as part of this EU activity. It also explains why so many human rights issues arise in the AFSJ and investigates the way in which they have been addressed by the Court of Justice of the EU. The chapter argues that the Court’s case law exhibits an extreme version of utilitarianism, which is incompatible with a corrective justice conception of human rights, underlying the ECHR and the Charter of Fundamental Rights. It concludes that the Court of Justice is far from usurping a human rights jurisdiction for itself and that the full potential of the Charter of the Fundamental Rights to infuse EU law in the AFSJ with content inspired by human rights has not yet been realised. Instead, the chapter observes, the Court is often using the argument of effectiveness to resist arguments of human rights, which, as a result, are protected in the AFSJ only in so far as they are recognised and codified in secondary law.

 

Autriche / Commission
Aide d'État
Le Tribunal confirme que la garantie accordée par l’Autriche à la BayernLB dans le cadre de sa restructuration en ce qui concerne les lignes de crédit de BayernLB en faveur de Hypo Group Alpe Adria constitue une aide d’État qui est toutefois compatible avec le droit de l’Union

Azarov / Conseil
Relations extérieures
Le Tribunal de l’UE annule le gel de fonds de cinq Ukrainiens dont MM. Mykola Yanovych Azarov et Sergej Arbuzov, anciens Premiers ministres de l’Ukraine, pour la période allant du 6 mars 2014 au 5 mars 2015

Laezza
Liberté d'établissement
Une réglementation nationale sur les jeux de hasard peut être contraire au principe de proportionnalité si elle impose au concessionnaire de céder gratuitement les équipements utilisés pour la collecte de paris

Éditions Odile Jacob / Commission
Concurrence
La Cour rejette le pourvoi d’Odile Jacob dans l’affaire du rachat de Vivendi Universal Publishing par Lagardère

The CJEU has held in Case C-521/14 Sovag that Article 6(2) Brussels I (Article 8(2) in the Recast) applies regardless of whether the proceedings are brought against (which is what inter alia the English language version suggests) or by a third party.

A, the victim of a traffic accident that took place in Germany, brought an action in Finland against SOVAG, with which the vehicle responsible for the damage was insured. That traffic accident also constituting a work accident under the Law on accident insurance, If, which is established in Finland, paid A compensation for the accident in accordance with that law. After A had brought the action against SOVAG, If itself sued SOVAG before the same court of first instance.

The national court in first instance held that, in accordance with Article 8 of Regulation 44/2001, in matters relating to insurance jurisdiction may be determined by the provisions of Section 3 of Chapter II of that Regulation alone. According to SOVAG, Article 6(2) of Regulation 44/2001 is indeed not applicable because Section 3 of Chapter II of the same Regulation establishes an autonomous system for the conferring of jurisdiction in matters of insurance. On this issue, the CJEU (at 30) reminded the national court of earlier case-law that where the action at issue in the main proceedings concerns relations between professionals in the insurance sector, and will not affect the procedural situation of a party deemed to be weaker, the insurance title does not apply. The objective of protecting a party deemed to be weaker being fulfilled once jurisdiction is established on the basis of Section 3 of Chapter II of Regulation 44/2001, subsequent procedural developments concerning only relations between professionals cannot fall within the ambit of that section.

Next, the wording of several of the language versions of Article 6(2), in particular the German, French, Finnish and Swedish versions, does not prevent the court before which the original proceedings are pending from having jurisdiction to hear and determine an action brought by a third party against one of the parties to the original proceedings.  However, other language versions of that provision, particularly the English language version, appear to restrict its scope to actions brought against third parties (‘a person domiciled in a Member State may also be sued: … as a third party’).

While the CJEU acknowledged that the special jurisdictional rules need to be applied restrictively, ie not going beyond their purpose, here the purpose of Article 6(2) is the harmonious administration of justice, namely minimising the possibility of concurrent proceedings and ensuring that irreconcilable judgments will not be given in two Member States. Therefore Article 6(2) must also apply where the third party brings the proceedings, not just where it is drawn into those proceedings by others.

However, the Court also sanctioned the Finnish rule of civil procedure that the right of a third party to bring an action in connection with pending judicial proceedings, is contingent on that action being linked to the original proceedings. Given that Article 6(2) does not apply where the proceedings were brought ‘solely with the object of removing’ the party concerned from the jurisdiction of the court which would ordinarily have jurisdiction to hear the case,  the CJEU OK-ed the Finnish rule as being one that assist in helping to avoid abuse of the rule on joinders.

I would have thought the Court would have made that rule one of EU law, given its insistence on autonomous interpretation. (Rather than simply OK-ing a national rule). Whether there is such a European rule therefore must stay into the open a little longer.

Geert.

 

 

Sucesiones internacionales. Comentarios al Reglamento (UE) 650/2012, a cura di José Luis Iglesias Buigues e Guillermo Palao Moreno, Tirant lo Blanch, 2015, ISBN 9788490867891, pp. 276, € 89.

[Dal sito dell’editore] El 4 de julio de 2012 se aprobó el Reglamento N° 650/2012 del Parlamento Europeo y del Consejo, relativo a la competencia, la ley aplicable, el reconocimiento y la ejecución de las resoluciones, a la aceptación y la ejecución de los documentos públicos en materia de sucesiones mortis causa y a la creación de un certificado sucesorio europeo. La aplicación plena de este instrumento legislativo adoptado en el ámbito del Espacio de Libertad, Seguridad y Justicia se producirá el 17 de agosto de 2015, momento a partir del cual nuestro modelo de Derecho internacional privado de sucesiones pasará a regirse por esta nueva norma, cuyo análisis pormenorizado, disposición a disposición, constituye el objeto de esta obra. El estudio que presentamos no es un trabajo exclusivamente académico, sino que se ha buscado ofrecer al profesional del Derecho un comentario de cada una de sus disposiciones en cuanto Derecho positivo, presidido por su confrontación con el Derecho español, con el fin de fundamentar la interpretación y aplicación en la práctica del Reglamento en España.

Maggiori informazioni, compreso l’indice del volume, sono disponibili qui.

Is the relationship between two insurers, having covered liability for a towing vehicle cq a trailer, each subrogated in their insured’s rights and obligations, one of them currently exercising a claim against the other in partial recovery of the compensation due to the victim, non-contractual? I reviewed Sharpston AG’s Opinion here. I believe the Court has confirmed her Opinion. However I am not entirely certain for the judgment is awkwardly phrased.

Like its AG, the CJEU dismisses a suggestion that Directive 2009/103 (relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability) includes a conflict of laws (applicable law) rule which is lex specialis vis-a-vis the Rome I Regulation. Indeed the Directive’s provisions do not indicate whatsoever that they can be stretched.

Then comes the core of the issue, the nature of the relationship underlying the claim. The AG had suggested this is contractual, using as I noted in my earlier posting, ‘centre of gravity’ (‘the centre of gravity of the obligation to indemnify is in the contractual obligation’); ‘rooted in’ (‘the recourse action by one insurer against the other…is rooted in the contracts of insurance’); and ‘intimately bound up’ (‘[the action] is intimately bound up with the two insurers’ contractual obligation‘). (at 62).

The Court did not repeat any of this terminology. It first suggests that the national court where the case is pending, needs to determine using Article 4 of Rome II (lex locus damni) whether the law so determined ‘provides for apportionment of the obligation to compensate for the damage’. This the AG had not expressly pondered, rather it may be implicit in her use of the conditional ‘where two or more insurers are jointly and severally liable’ ((only) used at 71 of her Opinion). Next, the Court holds, if there is such apportionment, the law applicable to the action for indemnity between the insurers of the tractor cq the trailer, needs to be determined using Article 7 of Rome I (which applies to insurance contracts).

The referring courts were looking I believe for more straightforward advice. Instead I fear the many conditions precedent expressed in the judgment may well leave plenty of room for counsel to further confuse these national courts. This arguably may have a knock-on effect given the repeated insistence by the CJEU that the provisions of Brussels I (Recast) on contract and tort, need to be applied in parallel with those of Rome I and II (not something I necessarily agree with but have come to accept as standing CJEU precedent).

Geert.

Anche quest’anno, la Società Italiana di Diritto Internazionale e di Diritto dell’Unione Europea (SIDI) indice il Premio di Laurea “Daniele Padovani” per la migliore tesi di laurea in materia di diritto internazionale privato e processuale.

L’ammissione al concorso è riservata ai candidati che abbiano conseguito una laurea specialistica o magistrale in giurisprudenza successivamente al 30 maggio 2014, con votazione non inferiore a 105.

Il termine per la presentazione delle domande è fissato al 4 marzo 2016.

Maggiori informazioni sono disponibili a questo indirizzo.

The procedural context of C&F Green Energy v Bakker Magnetic BV is an attempt at making the courts preliminarily decide the isuse of applicable law to the contract between the parties. Gearóid Carey  explains the Irish civil procedure context here. In this posting I just want to flag one or two Rome I/II issues.

Plaintiffs (an Irish company), wind turbine manufacturers, seek declaratory relief and damages arising out of an alleged breach of contract and negligence on the part of the defendant in connection with the supply of magnets to the plaintiffs for use in the turbines. Defendant denies liability and has counterclaimed in respect of unpaid invoices and loss of profit.

The issue sought to be resolved at a preliminary hearing is whether it is Irish or Dutch law which governs the contract and should be applied by the court when the case comes on for full hearing. It was not for the High Court to determine the applicable law issue at this stage but rather to decide whether this crucial issue is to be decided at a preliminary hearing or whether it should be dealt with as one of the issues at the trial. Hedigan J decided it should be the latter. He dismissed i.a. the argument that much time will be saved because the parties will only have to prepare the case on the basis of one applicable law whatever the result of the preliminary issue, as ‘a little overblown’: expert opinion of one or two Dutch lawyers may be sought, however the facts of the case once the applicable law issue is settled, ought not to be overly complicated.

What interests me here is the ease with which, wrongly, the Court (however presumably just paraphrasing counsel at this point) applies the cascade or waterfall of Article 4 Rome I.  Parties’ views on applicable law are summarised in the judgment as follows: (at 5.2-5.3)

‘The defendant argues that the issue is a very discrete question of law relatively easily established. It argues that pursuant to Article 3.1 of the Rome I Regulation, a contract shall be governed by the law chosen by the parties. It argues that the defendant’s general conditions of sale were incorporated into the contract because of their attachment to a series of quotations delivered by email and their inclusion in their order confirmation forms. Thus, Dutch law was chosen by the parties to govern their contract. It argues that if they succeed on this point then little remains to be decided because certain clear time limits will apply and these, they claim, have clearly not been met….

The plaintiffs argue that it is not Article 3 but Article 4(3) of the Rome I Regulation that should apply. This Article provides that it is the law of the country most closely connected to the contract that shall apply. Although Article 4 provides for the applicable law only in the absence of a choice of law, the plaintiff argues that this Article will fall to be considered if they can establish that the orders for the goods were not, in fact, made subject to the condition importing Dutch law. In this regard, they characterised the emails relied upon by the defendant as merely pre-contract correspondence. They will rely upon the evidence of the parties to demonstrate that Dutch law was never accepted as the law of the contract. They will argue that the choice of law should be determined pursuant to Article 4(3) by an examination of all the numerous connections between the contract and Ireland. This, they argue, will involve a consideration of all the evidence of the negotiations that took place between the parties. In relation to their claim in tort, they argue that the general rule under Rome II Article 4(1)(i) should apply i.e. the law of the country where the damage occurred. They argue that Article 4(3) of Rome II further brings into play evidence as to manifest proximity. Both of these, they argue, will involve evidence of the parties.’

Which of these will prevail will now be settled at trial stage. Defendant will have to show that what it refers to as the pre-contractual quotations of its general conditions of sale, seemingly by e-mails and eventually in the confirmation forms, amounts to a choice of law clearly established, per Article 3(1) Rome I.  There is considerable case-law on the mirror issue of choice of Court under Brussels I, also in an e-mail context (see e.g. here) however  to what degree one can simply apply the same principles to choice of law, is not clearly established in case-law.

An interesting point is that the Court (and counsel with it, one presumes) jumps straight to Article 4(3) Rome I should choice of law per Article 3(1 not be clearly established. Article 4(3) however is the escape clause (referred to by Hedigan J as ‘manifest proximity’), which must only apply in exceptional circumstance. The correct next steps following failure to establish clearly established choice of law, are firstly the assumptions made under Article 4(1)  (Article 4(1) (a) would seem most obvious here); should that fail, Article 4(2)’s characteristic performance test; and failing that, Article 4(4)s ‘proper law of the contract’ consideration. Article 4(3) only corrects Article 4(1) or (2)s more mechanical (‘objective’ as it is also called) choice of law determination. The judgment mixes Article 4(3)’s ultimate and exceptional correction, with the proper law of the contract test.

My concerns here should likewise not be overblown. Actual determination of the applicable law was not the court’s task. However now that the issue goes back to trial, correct application of Rome I must be made.

Geert.

The Oberlandesgericht of Düsseldorf has recently lodged a request for a preliminary ruling concerning the interpretation of Article 97(1) of Regulation No 207/2009 on the Community trade mark (Case C-617/15, Hummel Holding). Specifically, the request concerns the meaning of the term “establishment” as used in the Regulation.

According to Article 97(1), proceedings in respect of the actions and claims referred to in Article 96 — ie infringement actions, actions for declaration of non-infringement etc. — “shall be brought in the courts of the Member State in which the defendant is domiciled or, if he is not domiciled in any of the Member States, in which he has an establishment”.

The facts of the case may be summarised as follows. The applicant, a Danish company, sues a German company before a German court, alleging that the latter has infringed its Community trade mark. The defendant complains that German courts lack jurisdiction, relying on the circumstance that the German company is a subsidiary of a Dutch company, which is itself a subsidiary of an American holding company.

In connection with the foregoing, the Oberlandesgericht asks the ECJ to clarify “(u)nder which circumstances is a legally distinct second-tier subsidiary, with its seat in an EU Member State, of an undertaking that itself has no seat in the European Union to be considered as an ‘establishment’ of that undertaking within the meaning of Article 97(1)” of the Regulation.

Commission / Chypre
Libre circulation des personnes
La législation chypriote sur les droits à la retraite, qui désavantage les travailleurs migrants par rapport à ceux qui ne se déplacent pas de Chypre, est contraire au droit de l’Union

On 15 April 2016 the Law Faculty of the University of Santiago del Compostela hosts an international conference on Security Rights and the European Insolvency Regulation: from Conflicts of Laws towards Harmonization. The event is part of the Security Rights and the European Insolvency Regulation Project.

Speakers include Paul Beaumont (Univ. of Aberdeen), Francisco Garcimartín Alferez (Univ. Autonoma of Madrid), Juana Pulgar Esquerra (Univ. Complutense of Madrid) and Anna Veneziano (Unidroit).

With a view to promote scientific debate on the topic, a call for papers has been issued. The organizers will consider papers addressing, in particular: (a) Security Rights, Set-Off, Transactional Avoidance and Conflict-of-Laws Issues; (2) Security Rights and Insolvency Law in National Legislation, in particular taking into account the New Approach to Business Failure and Insolvency as proposed by the 2014 European Commission Recommendation; (3) Harmonization Trends at an international level.

Submissions should be sent by 11 March 2016 either to Marta Carballo Fidalgo (marta.carballo@usc.es) or to Laura Carballo Piñeiro (laura.carballo@usc.es).

Further information about the project is available here. The call for papers can be downloaded here.

DHL Express (Italy) et DHL Global Forwarding (Italy)
Concurrence
En matière de concurrence, les programmes de clémence de l’Union et des États membres coexistent de façon autonome

Il 15 gennaio 2016 la Serbia ha depositato il proprio strumento di adesione alla Convenzione dell’Aja del 19 ottobre 1996 sulla competenza, la legge applicabile, l’efficacia delle decisioni e la cooperazione in materia di responsabilità genitoriale e di misure di protezione dei minori.

La Convenzione, che è in vigore per altri 42 Stati, fra cui l’Italia (dal 1° gennaio 2016: si veda questo post), entrerà in vigore per la Serbia il 1° novembre 2016, conformemente a quanto previsto all’art. 61, par. 2, lett. b), della Convenzione stessa.

Questo lungo lasso di tempo si spiega alla luce dell’art. 58, par. 3, della Convenzione, il quale stabilisce che per gli Stati a cui è data la possibilità di aderire alla Convenzione (tutti gli Stati che non erano membri della Conferenza dell’Aja all’epoca dell’adozione del testo), l’adesione è efficace solo nei riguardi di quegli Stati contraenti che non abbiano obiettato all’adesione nei sei mesi successivi alla notifica della stessa.

Toshiba / Commission
Concurrence
Le Tribunal confirme les amendes de 131 millions d’euros infligées à Toshiba et Mitsubishi Electric pour leur participation à l’entente sur le marché des appareillages de commutation à isolation gazeuse