EAPIL blog

Marion Ho-Dac, of the Polytechnic University of Hauts-de-France, has joined the team of editors of this blog. Check her first post here!

The readers of this blog may have noticed that very little has been published by the Court of Justice lately. Actually, a message was posted on 19 March 2020 on the website of the Court, reading as follows:

Owing to the unprecedented health crisis that we are currently experiencing, the Court of Justice is obliged temporarily to change its working arrangements.

Judicial activity continues, but priority is of course given to those cases that are particularly urgent (urgent proceedings, expedited proceedings and interim proceedings).

Procedural time limits for instituting proceedings and lodging appeals continue to run and parties are required to comply with those time limits, without prejudice to the possible application of the second paragraph of Article 45 of the Protocol on the Statute of the Court of Justice of the European Union.

By contrast, the time limits prescribed in on-going proceedings – with the exception of the abovementioned proceedings that are particularly urgent – are extended by one month with effect from today. (…)

Hearings that are listed between now and 3 April 2020 are adjourned until a later date (…).

It has also been decided the judgments and conclusions fixed during the week from 23 to 27 March 2020 will be the subject of a hearing on 26 March 2020. In both cases, the judgments will be read by the President, and the conclusions by the Chief Advocate General.

The AG’s Opinion in C-249/19, JE, which was scheduled for 24 March 2020, will therefore be published two days later.

Saugmandsgaard Øe’s Opinion in C-186/19 , Supreme, will wait until April.

The remaining Court activity in matters relating to private international law remains as foreseen.

The author of this post is Tomaso Ferando, Research Professor at the University of Antwerp. This is the third in a series of posts aimed to explore the impact of the coronavirus crisis on the phenomena of mobility and exchange that form the constituent elements of private international law, and to discuss the responses that private international law rules provide to the challenges posed by the crisis itself (see the previous contributions by Giovanni Chiapponi and Matthias Lehmann). The EAPIL blog welcomes further contributions on these topics, either in the form of comments to the published posts or in the form of guest posts. Those interested in proposing a guest post for publication are encouraged to contact the blog’s editorial team at blog@eapil.org.   

If we leave aside for a second the worrisome death toll that the covid-19 virus is claiming, there is no doubt that the spread of the virus from one wet market in Wuhan to more than 162 countries sheds light on interesting aspects of the contemporary world such as the existence of privileged patterns of human mobility that can facilitate the diffusion of diseases, the impact of aviation and daily commuting on greenhouse gases emissions, and the porosity of national borders (and people’s minds) when the threat is hidden in the lungs of businesspeople and tourists rather than in the lives of refugees and economic migrants.

Among economists, the ongoing pandemic has also triggered concerns with regards to the slowdown in production and consumption and the consequences that it is having on global growth’s projection, international trade and the performances of specific sectors such as manufacturing, energy, aviation and tourism. In the words of Japanese Finance Minister Taro Aso: “The spread of the new coronavirus is a public health crisis that could pose a serious risk to the macro economy through the halt in production activities, interruptions of people’s movement and cut-off of supply chains.”

The reliability of supply chains, i.e. the complex network of people, materials and logistic that makes the continuous provision of goods and services possible, is under the spotlight. In few weeks, the alleged efficiency of global networks of production has been compromised by the lockdowns of the Hubei province imposed by the Chinese Government, by the emergency measures adopted by countries all over the planet and by the change in patterns of consumption, with some goods that experienced unexpected high demand and other that lost any traction.

In a global scenario characterized by hyper-reliance on China as the factory of the world, the isolation of 15 Chinese provinces that was ordered at the end of January did not really matter because it concerned more than 57 million people, which is less than 1% of the global population. It mattered because that corner of the world is responsible for almost 90% of the Chinese GDP and 80% of the Chinese export: despite the global nature of the supply chains, it didn’t take long for such geographically defined measures to generate enormous repercussions on the global economy.

In the last weeks, Global Value Chains’ experts, governments, workers and citizens have been increasingly reflecting on the high level of risk and fragility that is intrinsic to overly integrated and interdependent value chains that rely on just-on-time worldwide logistic, depend on the supply of components provided by hundreds of intermediary producers located in different corners of the planet (although mainly in China) and are based on the uninterrupted coordination among all the parties involved – regulators, producers, traders, retailers and consumers alike. After the Japanese earthquake that suspended numerous production line, covid-19 seems to be the ultimate stress test for the global economic system: one that may leave the world economy – and global health – significantly changed.

For lawyers interested in the relationship between law, global capitalism and the production and allocation of value across jurisdictions and among people, there is no doubt that the speed of the economic contagion and the content of the regulatory responses aimed at mitigating or preventing the economic contagion provide a new opportunity to discuss the central role that law plays in constructing, weakening, preserving, oiling and – in some cases – destroying,  the multi-layered, multi-territorial, inter-dependent and extremely fragile expression of contemporary financial capitalism that is often described with the less controversial notion of Global Value Chains.

Why does law matter for Global Value Chains?

Although it may not be evident, law is central to the existence, functioning and distributive processes that are related to global value chains. This is certainly the case of contract law, which is often represented as the backbone of a complex system of horizontal interaction between suppliers and purchasers, the glue that keeps them together and that guarantees, through a system of standards, requirements, alternative dispute resolution mechanisms and public enforcement (and along with reputation and the possibility of long-term commercial relationships), that goods and services of the right kind are delivered on time – normally by the global brand company that consumers recognize. But this is not all. As we discuss in the Manifesto on The Role of Law in Global Value Chains, the link between law and supply chains go beyond the organization and management of their complexity and concerns the creation and allocation of value itself: property law, labor law, trade and investment law, intellectual property law, health and safety law, tort law, etc. not only determine commercial choices on where to source, the logistic routes to follow and the overall geographical footprint of the chain, but also who will be appropriating the value generated by the combination of labor, nature and capital.

When we think at the impact that the lockdown in the Hubei province had on a car manufacturer like Toyota, that relies on 2,192 distinct firms (both direct and indirect suppliers) to source and assemble the circa 30,000 pieces needed to produce a car, we can certainly think at the contractual implications of delays and breaches or, as suggested by the Digital Supply Chain Institute, at the way global brands may use contract to “develop an ecosystem of suppliers that have a commitment to meeting your requirements, even in the face of challenges,” an advice that we may interpret as the construction of legal obligations that overcome the economic and logistic difficulties of lockdowns. But this is not everything.

Another way of thinking about law, coronavirus and global value chains is to ask what legal structures have contributed to the construction of chains, like automotive, precision instruments and communication equipment, that are strongly dependent on the inputs originating from one country. Then, we would not talk about contracts, but about trade liberalization, the adoption of the TRIPs, labor and fiscal requirements, the non-internalization of environmental externalities in China or in the market of destination, the use of legislation to provide public subsidies to oil, and the whole set of legislative and regulatory forces that pushed production away from Europe and the United States and pulled it into China. From this perspective, law in its widest and most diverse meaning is one of the main reasons why the global economy is structured around supply chains and the health crisis has triggered a rapid economic contagion.

Moreover, law is central to the responses offered by governments across the world in their attempt to limit the impact of the economic contagion or improve their position in the supply chain by seizing a larger share of the – future and possible – pie (what is generally known as ‘upgrading’). For example, governments around the world may perceive the slowdown in Chinese production as an opportunity to provide financial and regulatory support the production sites capable of filling the current gap or to attract future investments by companies interested in diversifying their sourcing or in delocalizing away from a region where production is particularly exposed to health risks. Similarly, governments of countries strongly dependent on oil and commodity export (like Saudi Arabia, Chile, Brazil, Norway, etc.) may use their regulatory and legislative powers to reduce the cost of production and extraction – with the consequent implications on society and the environment – or try to create the conditions to diversify their economies and reduce their exposure to the systemic risk of a highly interconnected economy.

Independently on the regulatory or legislative interventions that will be adopted, there is no doubt that law will be central to designing the future geographies of global supply capitalism. More importantly, law already has a core role in redefining the way in which value is extracted and distributed and on the allocation of power between workers, capital and nature. With the help of one concrete example, the next section shows the importance of adopting a systemic approach to the interaction between supply chains and law, specifically through the lenses of value, coercion and redistribution.

Law and State of Necessity at the Service of Global Value Chains

We all know too well that masks and hand sanitizers may significantly reduce the risk of contagion. We also know that they are in high demand, extremely hard to find and that stocks cannot be produced at the speed that is needed by hospitals, let alone the totality of the world population. What may be less known is that before the outbreak of the virus China – yes, China – was producing more than a half of the N95 sanitary masks used by medical personnel around the planet, and that in the last month the number has multiplied by ten thanks to the financial support of the government and the conversion of factories from iPod assemblers into masks producers.

Given the dependence on Chinese provisions and the limited national production, individual European countries and the European Union stepped into the supply chain: public procurement, legally determined maximum prices and export bans have been three of the measures adopted to redesign the shape and reach of the chains. In particular, Italy, Czech Republic, Germany and France used their regulatory powers to ban or require ad hoc administrative authorization to the export of any protective equipment, directly redefining the extension and distributive effects of the global supply chain. In this context, the European Commission represents an illustrative example of the multiple ways in which law and regulatory power can shape the geography and content of supply chains. On 14 March, the Commission threatened to open an infraction procedure against Germany to favor the conclusion of a deal with Italy for the purchase of 1 million masks: the fear of a sanction opened a new route for the global supply chain of masks that would have otherwise not being in place. On 15 March, it published the so-called implementing act requiring that any export of face masks and medical to non-EU countries be subject to authorization by member states, thus limiting the possibility of the supply chains to reach third countries and their people. On 16 March, it launched a joined public procurement with member states for testing kits and respiratory ventilators. And the lockdowns have only started.

However, the story of the global supply of masks and hand sanitizers is not only one of public incentives, trade dependence on China and the strategic use of the state of health necessity to justify restrictions to trade or interventions in the global supply chain with significant impact on the availability of crucial medical equipment across Europe and in countries outside the EU potentially less prepared than the European Union in avoiding the contagion. The sudden surge in the demand for medical equipment is also the story of the women and men who in the production lines across the planet and the competition between countries and producers to guarantee a cheap and quick supply.

In Taiwan, Czech Republic, Kerala, Israel and Hong Kong alike, hundreds of thousands of prisoners have been organized in production lines to supply their ‘unfree’ labor to the global demand for masks and sanitary products, a situation that border on paradox if we consider the recent strikes in Italian prisons due to the poor hygienic conditions and the draconian confinement measures introduced to prevent the spread of the virus among prisoners. In Hong Kong, women inmates at the Lo Wu prison have volunteered – or been asked, according to other sources – to work night shifts to make 2.5m face masks a month for a monthly compensation of HK$800 (£80), a sum that is significantly under Hong Kong’s minimum wage. In Israel, inmates in the Ayalon and Rimonim prisons – two of the complexes where Palestinian prisoners have recently been on hunger strike – have been producing  face masks will serve police officers, firefighters and health inspectors. In the State of New York, the governor has promised that 100 gallons a week of “NYS Clean” will be distributed for free to residents, schools and the Metropolitan Transportation Authority: behind them, there is the work of nearly 100 inmates in the State’s prisons who perceive an average hourly salary of $0.65 cents, significantly lowered than the $15 an hour in New York and $11.10 in the rest of the state.

Yet, poorly paid and exploited labor is not only a prerogative of newly established supply chains aimed at providing cheap and abundant emergency medical equipment. In these weeks more than ever, factory and logistic workers who cannot operate from remote are fighting an even harder battle against emergency decrees that often abide by the imperatives of competitiveness, productivity and the need to keep the global supply chain running. Because, even in the state of necessity and the risk for the workers’ health, there are supply chains that have not been halted or – tin the case of logistic workers and couriers – there has been an increase in demand. Excluded from the lockdown, factory workers and operators in the logistic sector depend on the decisions of their employers and on the implementation of safety measures that are often incompatible with the production line and the security procedures.

In Italy, for example, FCA Fiat Auto decided not to close the factories producing intermediate components for international supply chains and the National Association of the Automotive Industrial Chain (Antia) released a manifesto on behalf of the Italian automotive sector asking “workers to resist and continue in the effort to maintain the international competitiveness of one of the leaders of the Italian economy.” The fear of losing its place in the global supply chain and the absence of a strong regulatory intervention converge in requiring workers to leave the safety of their houses and assume a higher risk than most of the national workforce. In the logistic sector, Amazon has announced 100,000 new jobs to increase its emergency delivery capacity both in Europe and the United States. The positive moment for the company and the need to keep the business going have their repercussions on workers and working conditions. In Italy, the Amazon workers in Torrazza, Piedmont, organized a protest against the company’s decision not to close the operations after one of the employees tested positive to covid-19 and to just quarantine part of the workforce and sanitize the warehouse. In Piacenza, near Milan, Amazon warehouse workers are on strike to denounce the company’s lack of appropriate response to the multiple coronavirus cases across Europe and the incompatibility between the company’s procedures and the health and safety requirements imposed to the whole country with the Decree on 10 March. Not to talk about the truck drivers, farm workers and the deliverers whose work is essential to making everyone else’s isolation possible and is legally excluded from the lockdown but have not received any specific form of guidance, protection and support in the legal construction of the state of emergency.

Law and Global Value Chains after covid-19

The coronavirus pandemic is already leaving an indelible mark on both global health and global economy. In this context, the role of law as one of the main tools the construction of interdependent world and interconnected supply chains cannot be overlooked. Similarly, a systemic and critical approach to law can help better understanding the rationale and distributive effects of national and regional interventions at the time of the global state of emergency. Yet, it is also important to focus on the space that law will play in shaping lives, interactions and commercial interconnections once the biological threat is over. As a matter of fact, there are at least three main lessons that we can learn from what is happening.

1. First of all, it is clear that states, national economies and citizens (above all non-skilled workers, consumers, and the most vulnerable) are exposed to highly volatile and fragile global supply chains. Law was central to the construction of the present complexity and could be a passive observer of the continuous delocalization of production away from Europe into the neighbor countries or in the loss of works without any form of public support. However, it can also intervene to subordinate market dynamics to the needs and interests of the public. Financial and regulatory incentives, bans, public procurement, universal basic income, fiscal coordination and other measures can be adopted to shape and redesign the geographies and distributive implications of global commodity capitalism. Why, therefore, not using this opportunity to rethink the relationship between states, supply chains and citizens? Why not recognizing the precariousness of supply chains and recognize the inevitability of legislative measures aimed at redistributing wealth and income? Why not using public prerogatives to build resilient, affordable, sustainable and reliable chains – for example for food and medical equipment – that guarantee citizens’ rights and essential needs and are spared from the uncertainties and profit-driven prerogatives of global competitiveness?

2. Secondly, the pandemic is revealing what jobs (factory and logistic workers) are truly essential to global supply capitalism and how their indispensability is often twisted against them to ask for more without providing enough (for example, going to work even if they are exposed to high risk of contagion). Yet, the actions of resistance undertaken in Piacenza, Torrazza and in other logistic and production sites across the world reveal the disruptive potential of strikes and protests in the context of just-on-time and transnationally coordinated supply chains. In the absence of adequate responses from the state and their employers, warehouse, automotive and manufacturing workers in Italy – and soon elsewhere in the world – are leveraging their power as potential choke points of transnational supply chains, bottlenecks of disruption in a system that depends on their labor but does not recognize it with salaries and precautions. In light of, national labor law will territorialize the transnational character of supply chains and co-define their pace and the distributional implications: will future labor law continue to be conceived as an opportunity to smoothen global production and circulation of goods/services? Will it favor automation and the replacement of humans with machines in order not to lose investments and growth opportunities? Or will it recognize the centrality of workers in the continuation of global supply capitalism and strike a new balance?

3. Finally, the health-economic crisis is highlighting the socio-environmental risks behind the mantra of competitiveness and the continuous search for cheap inputs (labor, nature, animals, etc.). The economic downturn is closely linked with the hyper-dependence on China as the (cheap) global factory. Some of the last epidemics (covid-19, swine flu, avian flu and the ‘mad cow’) were all triggered by lack of consideration for animals and the dire exploitation of their flesh and environment. On the other hand, the reduction in greenhouse gases, the rediscovery of social interactions, the abandonment of unnecessary consumerism and the rebirth of solidarity are proving that human and non-human beings can – and must – go slower. This is not an invitation of a perennial state of exception, but an invitation to assessing the compatibility of global supply capitalism with the objectives and limits of people and planet. Are we going to get more or the same or take advantage of this situation to pause and reflect? So far, the use of underpaid inmates to address the urgent need for increased production of masks and hand sanitizers and the reduction in the price of oil to stimulate the economy demonstrate that both private and public solutions to the crises have been looked for within the same unsustainable framework. Without a shift away from cheapness and competitiveness, the interlinked future of supply chains, health and global economy can only be bound to more crises, more contagions, more deaths and more precariousness. Is it too ambitious to join Capra and Mattei and hope that lawyers will be in the front line of a radical move away from social and environmental self-destruction and in the adoption of new a new paradigm that does not see law as an enabler of value accumulation through global supply chains but as a tool to build a new ecological order informed by principles of environmental and social justice?

Ilaria Pretelli (Swiss Institute of Comparative Law) has posted Provisional Measures in Family Law and the Brussels II Ter Regulation on SSRN.

Provisional and Protective Measures in family matters need special consideration because they are not limited to economic matters and significantly interfere with the self-determination of persons and often of vulnerable persons, namely children. This circumstance explains the exceptional regime of the Brussels II ter Regulation as compared to the general regime of the Brussels I and Lugano systems. The article also deals with the problem of the law applicable to provisional measures, in the absence of a specific European rule on this matter. We argue that, whenever a provisional or protective measure is taken by the judge who will not rule on the substance of the matter and especially in cases where the measure is provisional and anticipates the merits, judges should avoid the application of the law of their forum and apply the law applicable to the substance to the provisional measure they are required to issue.

The paper is forthcoming in the Yearbook of Private International Law.

The Department of Law of the University of Aarhus and the European Association of Private International have decided to postpone by one year the Association’s founding conference, originally scheduled to take place on 14, 15 and 16 May 2020.

The conference is now set to take place on 27, 28 and 29 May 2021.

The decision comes in response to the challenges posed, and the concerns raised, by the coronavirus crisis.

The venue, Aarhus, remains unchanged, and so does the conference program.

The Department of Law of the University of Aarhus and the European Association of Private International Law hope that all those who expressed an interest in the event will attend the conference next year.

Registered participants wishing to maintain their registration are invited to write an e-mail to this effect to Gitte Schneider (gs@law.au.dk) by 17 April 2020.

All other registered participants will automatically receive their fees back. This will occur in the days following the above date.

For further information, please visit the webpage of the conference in the website of the Aarhus University, here.

See you in Aarhus in 2021!

Teemu Juutilainen is the author of Secured Credit in Europe – From Conflicts to Compatibility, which is about to be published by Hart Publishing.

The abstract reads as follows.

This monograph seeks the optimal way to promote compatibility between systems of proprietary security rights in Europe, focusing on security rights over tangible movables and receivables. Based on comparative research, it proposes how best to tackle cross-border problems impeding trade and finance, notably uncertainty of enforceability and unexpected loss of security rights. It offers an extensive analysis of the academic literature of more recent years that has appeared in English, German, the Scandinavian languages and Finnish. The author organises the concrete means of promoting compatibility into a centralised substantive approach, a centralised conflicts-approach, a local conflicts-approach and a local substantive approach. The centralised approaches develop EU law, and the local approaches Member State laws. The substantive approaches unify or harmonise substantive law, while the conflicts approaches rely on private international law. The author proposes determining the optimal way to promote compatibility by objective-based division of labour between the four approaches. The objectives developed for that purpose are derived from the economic functions of security rights, the conditions for legal evolution and a transnational conception of justice.

More information here.

In May 2018, the European Commission published a proposal for a Regulation amending the 2001 Evidence Regulation. The name of the proposal immediately clarifies the lack of ambition of the project: the intention is to amend the existing text, not to recast it.

The Commission Proposal

The Proposal aims at improving the 2001 Regulation by: using electronic transmission as the default channel for electronic communication and document exchanges; promoting modern means of taking evidence such as videoconferencing and incentives (via the financing of national projects) for Member States to equip courts with videoconferencing facilities; removing legal barriers to the acceptance of electronic (digital) evidence; tackling divergent interpretations of the term ‘court’;  communicating the importance of the uniform standards provided by the Regulation (streamlined procedures, equal standard of protection of the right of the parties involved); best practices for competent courts, to help them apply the procedures properly and without delay; and raising courts’ and legal professionals’ awareness of the availability of the direct channel of taking evidence under the Regulation.

On 13 February 2019, the European Parliament adopted its first-reading position on the proposal, with 37 amendments to the text of the Commission.

On 29 November 2019, the Council of the European Union adopted a general approach of the text.

The main purpose of the proposal is to improve transmission of requests and communication by using modern communication technology. There is no doubt that this is an important concern. Yet, the operation of the Evidence Regulation arguably raises much more important issues.

The Optional Regulation

The Evidence Regulation should further European integration by facilitating and expediting the taking of evidence in other Member States.

Instead, it is the experience of many European practitioners that the Regulation does just the opposite. It creates obstacles, and slows down the taking of evidence abroad. The reason is simple: the Regulation requires the intervention of authorities in the requested state as a preliminary step to the taking of evidence abroad. The most liberal provision in this respect is Article 17, which introduced “Direct taking of evidence by the requesting court” in other Member States. But even under Article 17, it is necessary to “submit a request to the central body or the competent authority” of the requested state.

The European Union has abolished the exequatur procedure for judgments rendered in civil and commercial matters. Under the Brussels II bis Regulation, decisions on the return of a child are immediately enforceable and may not be challenged in the requested state, even for alleged violations of human rights. But the taking of evidence abroad is still subject to a preliminary procedure. The system completely lags behind.

In Lippens and ProRail, the Court of Justice of the European Union (CJEU) addressed the issue by ruling that the application of the Evidence Regulation was not mandatory, and that Member States could simply ignore it and take evidence abroad under their own procedures, without seeking any kind of approval from the requested state. In particular, the CJEU ruled in ProRail:

43. (…) it must be recalled that, according to recitals 2, 7, 8, 10 and 11 in the preamble to Regulation No 1206/2001, the aim of the regulation is to make the taking of evidence in a cross-border context simple, effective and rapid. The taking of evidence, by a court of one Member State in another Member State must not lead to the lengthening of national proceedings. (…)

45. An interpretation of Articles 1(1)(b) and 17 of Regulation No 1206/2001 according to which the court of a Member State is obliged, for any expert investigation which must be carried out directly in another Member State, to take evidence according to the method laid down by those articles would not be consistent with those objectives. In certain circumstances, it may be simpler, more effective and quicker for the court ordering such an investigation, to take such evidence without having recourse to the regulation. 

The CJEU however reserved cases where the taking of evidence would affect the powers of the requested Member State.

The Proposal of the Commission does not address the optional character of the Regulation. This means that the future amended Regulation will remain an optional instrument that the courts of the Member States are free to (continue to) ignore.

Liberalizing the Taking of Evidence in Other Member States

The most important issue that the Proposal does not tackle, however, is that of the obstacles that the Regulation creates in the taking of evidence abroad, and that litigants avoid by resorting to national law.

During the legislative process which lead to the adoption of the initial Evidence Regulation, Germany had proposed to fully liberalize the operation of judicial experts in other Members States. Under this exception, courts could appoint a judicial expert to carry out his mission in other Member States without any need for a preliminary procedure in the requested state. The exception was eventually not adopted. However, this is exactly what the CJEU has allowed in ProRail, which was concerned with the operation of a judicial expert in another Member State.

The reform of the Evidence Regulation was thus the perfect opportunity to reconsider the issue. A much more ambitious reform would have attempted to identify cases where the taking of evidence abroad could be liberalized by abolishing any preliminary procedure, and cases where some kind of involvement of the requested state would still appear to be justified.

Instead, the European lawmaker is about to ignore the problem and, by doing so, to generate considerable uncertainty.

Disclosure: the author was a member of the expert group established by the European Commission for the purpose of drafting the Proposal of the Commission.

The Covid-19 pandemic is on everybody’s mind. Around the world, countermeasures limit public life and freedom of movement, especially cross-border traffic. This raises the question to which extent Private International Law is relevant and capable of handling this new situation. Here are some provisional thoughts on the potential impact of travel bans and other emergency measures under the Rome I and II Regulation.

Transport contracts

Some countries have restricted free movement from persons coming from areas affected by the Corona virus. Austria, for instance, does not allow people coming from Italy into its territory, while the US has just banned travel from Europe with the sole exception of the UK. As a result, flights, trains and bus trips have been cancelled.

For courts in the EU (with the exception of Denmark), the law governing these transport contracts is regulated by Article 5 of the Rome I Regulation. The determination of the applicable law is quite straight forward: The fallback rule is that the law of the habitual residence of the passenger applies (Article 5(2) Rome I). The trickier question, however, is which impact the local law at the place of destination might have on the contract.

The answer for EU courts is given by Article 9 of the Rome I Regulation. The prohibition to enter the territory of a Member State certainly qualifies as an overriding mandatory rule in the sense of paragraph 1 of the provision. Should the courts of that Member State decide over the case, they would apply this provision as part of their lex fori (see Article 9(2) Rome I). The result would certainly not be very different for courts outside the EU, which would apply such provisions as part of their public policy.

The court of another Member State, for instance those of the place of departure, may give effect to the overriding mandatory rules of the state of destination because the contract is to be performed there (see Article 9(3) Rome I). In case the latter has prohibited all travel, this would render the performance of the contract unlawful in the sense of the provision. Mind that the courts of the other states have discretion whether to give effect to the travel ban (see the word “may” in Article 9(3) Rome I).

Cancelled or Postponed Events

The virus has led to the cancellation of events around the world, from congresses to concerts and soccer matches. Usually, the tickets to these events will be subject to the local law where the event takes place.

However, this is not always the case. The parties may have chosen another law (Article 3 Rome I). The consumer protection rules do not interfere with this choice, when the event takes place in a state in which the consumer does not have its habitual residence (see Article 6(4)(a) Rome I). In the absence of a choice, the law at the habitual residence of the service provider applies (Article 4(1)(b) Rome I). If it is – as usual – a corporate entity, the law at the place of its central administration governs (Article 19(1) Rome I). These laws may be replaced by that of a branch that has concluded or executed the contract (Article 19(2) Rome I).

If as a result a foreign law governs the contract, the law of the place of the event may be applied as an overriding mandatory rule under the conditions set by Article 9 of the Rome I Regulation. Insofar, the same considerations as for transport contracts apply. Where the law of the event does not call for a full cancellation, but rather for some changes, such as a postponement or the shift to another place, this law may be considered as the law of the place of performance (lex loci solutionis) under Article 12(2) of the Rome I Regulation.

Cancelled or Delayed Deliveries

Where deliveries of goods were cancelled or postponed, the solution is much the same as for events. The law of the place of performance may apply either as an overriding mandatory provision under Article 9 of the Rome I Regulation or is to be taken into account as lex loci solutionis under Article 12(2) of the same Regulation.

An interesting extension of the concept of public policy rules can be observed in China: According to a recent post on Chinese law a Chinese authority is issuing so-called force majeure certificates pretending to absolve Chinese companies from the need to fulfill contracts with foreign parties. The author assumes that courts of the People’s Republic could consider these certificates as part of public policy even in the absence of compulsory government orders.

From an EU viewpoint, the assessment is quite different. European courts apply legal concepts independently of any measures by administrative authorities. And while compulsory restrictions certainly qualify as overriding mandatory rules, the same is not true for the doctrine of force majeure, which does not meet the requirements of Art 9(1) Rome I. European courts will therefore follow this concept only where it is part of the law governing the contract, and assess independently whether its conditions are met. They can merely take into account, as a matter of fact, mandatory provisions at the place of performance if the applicable substantive law so allows (see to this effect the ruling of the Court of Justice in Nikiforidis, para 51).

Infections

It is hard to identify the source of a Corona infection, but it may not be impossible. A victim may for instance sue the operator of a foreign airport, hospital or hotel for the failure to take appropriate precautions. If both parties are privy to a contract, the law applicable to that contract will decide over the necessary measures, including duties of information and warning in the pre-contractual phase (Article 12 Rome II).

It is also possible that the parties are not contractually bound to each other. Imagine for instance a passenger of a flight suing another passenger who has neglected her infection. Which law applies? EU courts will have to search for the solution in the Rome II Regulation.

A first idea that might spring to mind is to apply Article 7 of the Rome II Regulation, which deals with environmental damages. Yet Recital 24 of the Rome II Regulation defines ‘environmental damage’ as ‘adverse change in a natural resource, such as water, land or air, impairment of a function performed by that resource for the benefit of another natural resource or the public, or impairment of the variability among living organisms’. The virus is respiratory and travels by air, but arguably, it does not change this natural resource. Its main negative effects are on the health of other individuals. While one may debate this assessment, it seems more certain that Corona does not impair fauna’s variation.

Hence the general rule of Article 4 of the Rome II Regulation applies. The first, rather curious, result is that any claim is governed by the law of the common habitual residence of the sick and the infected person (Article 4(2) Rome II). The dispute between two Italian residents on a plane from Frankfurt to Moscow would thus be governed by Italian law, unless there is a manifestly closer connection (Article 4(3) Rome II).

If the parties to the dispute reside in different states, then the law of the place where the damage occurred applies (Article 4(1) Rome II). Airplanes are considered as being part of the territory of the country where they are registered. The suit of a Swedish passenger against a Swiss resident on a flight from Stockholm to Geneva in a plane registered in Ireland would thus be governed by Irish law.

Cross-border infections, for instance by sending contaminated goods or livestock, are also governed by the law of the place of damage (Article 4(1) Rome II) or by the common habitual residence of the parties (Article 4(2) Rome II). Mind you, however, that the rules of safety and conduct at the place where the tortfeasor acted have to be taken into account (Art 17 Rome II). Thus, when infected animals are sent from Rome to Paris, the sanitary restrictions of Italian law would have to be considered by a court. But this is only the case insofar as they “appropriate”.

These results can again be influenced by overriding mandatory rules of the forum (Article 16 Rome II). Whether the court can also apply foreign overriding mandatory rules under the Rome II Regulation is subject to dispute. This should however be allowed in analogy to the possibility provided under the Rome I Regulation (Article 9(3) Rome I).

Conclusion

These considerations only concern private international law and leave out interesting questions of substantive law, such as those relating to force majeure, frustration or impossibility, which may be decided differently in each Member State. Moreover, they are merely provisional thoughts. It remains to be seen in which exact shape and form conflict of laws issues will arise from Covid-19.

The author of this post is Giovanni Chiapponi, research fellow at the MPI Luxembourg. The post is based on a presentation given at the weekly meeting of researchers of Department 1 of the MPI Luxembourg on 11 March 2020.

As the Covid-19 (corona virus) spreads out, the Italian government has taken some important measures, which have a strong impact on the structure of the internal judicial system. Thus, the Decree-Law No 11/2020 of 8 March 2020 contains extraordinary and urgent measures on the management of the judicial workload and on the internal organization of the judiciary to contrast the negative effects of the virus on the functioning of judicial activities.

Indeed, even in a period of crisis, where there are many risks at stake for the health of the population, it is important to ensure a proper administration of justice. Hence, the rationale of the decree is to guarantee an effective and efficient functioning of the judicial system.

In this regard, the decree provides for the postponement of hearings and for the suspension of time limits in civil, criminal, fiscal and military proceedings.  Consequences follow in all these fields of law, however my remarks will only focus on the consequences affecting civil matters.

According to Article 1(1), most civil hearings scheduled between the day following the entry into force of the decree (9 March 2020) and 22 March 2020 will not take place due to a mandatory postponement.

In the same way, pursuant to Article 1(2), time limits for exercising judicial acts within civil proceedings are automatically suspended for the period 9 to 22 March 2020. Where a time limit would normally begin during the period of suspension, the starting point is delayed until the end of the latter period.

Despite the urgency of the situation, some exceptional rules are provided under Article 2 of the decree. Both the mandatory postponement of hearings and the suspension of time limits do not concern some categories of proceedings that deal with urgent issues. In this regard, Article 2(2)(g) lists the following exceptions: determinations as to the adoptability of children, matters relating unaccompanied minors, the removal of minors from their family and situations of serious prejudices; matters relating to maintenance obligations; provisional measures affecting fundamental rights; decisions regarding compulsory health treatments; matters in respect of the voluntary termination of pregnancy; measures of protection from domestic violence; measures of expulsion; decision on provisional enforceability of judgments before Courts of Appeal and the Court of Cassation; all matters entailing the risk of serious prejudice to the parties.

Furthermore, Article 2(1) provides that the presidents of individual courts may adopt technical and organisational measures aimed to respond to health concerns while ensuring, as far as practical, the proper administration of justice.

The following measures, among others, may be adopted for the above purposes: purely organisational measures such as limitations to the access to, or the opening hours of, courthouses; guidelines as regards the conduct of hearings; exceptions to the publicity of hearings in civil matters; the use of IT technologies in court hearings; the postponement of non urgent hearings.

Some comments

The decree impacts on some fundamental principles of civil procedure (e.g. the right of defense, the equality of arms, the reasonable length of the proceedings) enshrined in the Italian Constitution, the Charter of Fundamental rights of the European Union and the European Convention on Human rights. It aims at ensuring a balance between the right to health and health care (recognized at a constitutional and European level by the Charter of Fundamental rights and the European Convention on Human Rights) and the rights of the parties in the context of civil proceedings.

Despite the urgency and uncertainty of the situation, it is indeed important to ensure the respect of the fundamental procedural rights of the parties. In this regard, the decree suspends limitation periods to file a claim with the court and procedural time limits for the exercise of parties’ rights in order not to undermine parties’ prerogatives. The lapse of time is “locked” and in principle, this does not entail negative consequences for the parties in the proceedings.

However, some doubts on the interpretation of the text of the decree arise. In such a technical question as time limits, clear indications are needed as regards, in particular, the calculation of time limits.

Namely, the decree refers to “time limits … within the proceedings”. Which time limits are concerned, precisely? Does the suspension of time limits apply to all pending legal disputes (including the objections against injunctions and the appeal procedure) or does it apply only to those legal disputes in which hearings were fixed in the period 9 to 22 March 2020 and that have been postponed by the decree?

For instance, if no hearing is scheduled , but the deadline to submit an appeal before the Court of Appeal expires on 11 March, is the time to appeal suspended? Arguably, the first reading should be preferred, since it allows the parties to better safeguard and protect their rights.

If the first reading were adopted, another issue would arises: how should time limits be calculated retroactively if they expire within the period of suspension? For instance, if a time limit expires on 11 March, what would be the new expiry date? The expiry date, it is argued, should be 24 March (9+2/22+2), as the suspension period is to be applied.

In the meantime, the Government’s department for the relations with the Parliament in an explanatory note delivered on 11 March has indicated that the broad interpretation suspending time limits in all pending legal disputes should apply.

However, the note has no binding effect as such and does not bridge the existing legal gap. As required by the Italian Bar Council, the Italian legislator should intervene to guarantee certainty.

As the immediate conversion of the decree into law seems to be difficult, the government may provide for an authentic interpretation of the rules at stake. This would ensure that the parties’ legitimate expectations on the proper administration of justice are not undermined or frustrated.

The foreign proceedings, it is contended, should then prevail on the ground that they were brought first. The fact that the justice system in one EU Member State has come to a stand-still cannot entail that other Member States have to stop their systems, too. That would run counter the interest of the parties.

Finally, some considerations may be made on the implications of this emergency legislation for judicial cooperation at the European level. These uncertainties on time limits will inevitably entail uncertainty in cross-border cases. As Italian procedural law applies under the lex fori principle, the parties must act in accordance with Italian procedural time limits including these extraordinary rules provided by the law decree. As issues arise for parties in the context of national proceedings, in the same way they will spill over in cross-border settings.

In this respect, it is interesting to underline that some European instruments in the field of judicial cooperation in civil matters provide for strict time limits (e.g. Article 5(3) of the Small Claims Regulation or Article 18 of the Regulation on the European Account Preservation Order).

What happens to those time limits if the Italian law applies under the lex fori principle? Are they suspended in the period 9 to 22 March according to the Law decree? In order to safeguard the rights of the parties, which are even more at risk in cross-border cases, it would be reasonable to suspend also these time limits. However, the Italian legislator is not competent to suspend time limits laid down in EU Regulations. Should the European legislator intervene?

Another key issue, which may have negative consequences in cross border cases, concerns Article 32 of the Brussels I bis Regulation, which provides for an autonomous definition of the time in which a court is deemed to be seized of a dispute. May we consider that an Italian Court is seized of a dispute during the period 9 to 22 March? The same considerations pointed out above can be reiterated: the activity of Italian courts should, in principle, be suspended, but as we are dealing with a concept laid down in a European Regulation, the Italian lawmaker cannot provide for exceptional rules applying to the Brussels I bis Regulation. This is again an open question, which shines a light on the risk that the lis pendens rule may be frustrated.

To conclude, as Covid-19 spreads out throughout the EU, the exceptional situation may lead other Member States to adopt urgent measures to contain the spread of the virus. As the system of judicial cooperation in civil matters is based on mutual trust and the application of provisions under the law of the Member State of origin, the question arises how the EU procedural law system may react to the introduction of extraordinary measures.

Judicial cooperation in civil matters, indeed, is based on the assumption that there is no state of emergency. Thus, if Member States start to introduce exceptional procedural rules in their own systems, there is the high risk that the EU procedural system would not be ready to face emergency measures. The EU should arguably allow Member States a certain degree of flexibility at least to provide exceptional rules for the urgent circumstances at stake.

Olivier Cachard and Paul Klötgen (both University of Nancy) have published a new edition of their manual of private international law.

The book is primarily a teaching tool. It is a textbook but it also includes numerous abstracts of cases, legislation and articles, as well as a glossary.

The book covers the traditional topics of jurisdiction, choice of law and foreign judgments. The focus is on French private international law, but the book often refers to sources from other jurisdictions.

More details can be found here.

The author of this post is Marlene Brosch, senior research fellow at the MPI Luxembourg.

The first advisory opinion of the European Court of Human Rights (ECtHR) under Protocol 16 to the European Convention on Human Rights (ECHR), rendered on 19 April 2019, tackled no less than the highly sensitive and controversial topic of surrogacy motherhood in the well-known Mennesson case – in particular, the recognition of the intended, non-biological mother’s legal parenthood.

The opinion from Strasbourg and the subsequent judgment of the French Court of Cassation have already triggered numerous comments and reactions (notably on this blog; see also here and here). This post aims to raise some procedural aspects of overarching interest.

From hierarchy to cooperation: the change of procedural perspective

The kick-off Mennesson case illustrates the structural change envisaged by Protocol 16 to implement human rights compliance in the Contracting States. The hierarchical approach through the condemnation of France in 2014 shifted to the cooperative, dialogical approach initiated by the Cour de Cassation through the advisory opinion request.

It should be reminded that the judicial dialogue would not have been possible in this first case if the French legislator had not paved the way, in 2016, for the re-opening of proceedings on personal status matters following a judgment of the ECtHR affirming a violation of the Convention.

In this respect, it is worth considering whether domestic rules for the re-examination of a final decision could also be interpreted as applying to advisory opinions. Could the non-binding, yet factual authority of advisory opinions lead to a review of a final domestic judgment rendered previously on the issue in question?

The role of the advisory opinion procedure within the adjudicative function of the ECtHR

The amended Rules of Procedure of the ECtHR do not explicitly clarify the processing order between individual applications under Article 34 ECHR, on the one hand, and requests for an advisory opinion under Protocol 16, on the other. However, given the nature of the questions referred (“questions of principle”), Rule 93 (2) specifies that “requests for advisory opinions shall be processed as a matter of priority […]”.

This priority is indeed crucial. The domestic proceedings are usually stayed during the advisory opinion procedure, and, in light of the fundamental rights issues involved, delays before the ECtHR may have severe impacts on the domestic case.

This priority order was precisely put into practice within the first advisory opinion procedure. A few months before the Cour de Cassation filed the request for an advisory opinion, two individual applications were lodged against France under Article 34 ECHR concerning the very same issue, i.e., the recognition of the legal parenthood of the intended, non-biological mother. The Grand Chamber delivered the advisory opinion within a record-breaking period of only six months after the Cour de Cassation had filed the request.

About half a year later, in November 2019, the joint judgment concerning the individual applications was rendered in line with the advisory opinion. This timing seems to indicate that the ECtHR includes advisory opinions in its case-law with a “leading function” to decide on identical or similar individual complaints expeditiously.

Outlook towards Luxembourg

Incidentally, the issue of parental rights and surrogacy is also occupying the CJEU. In the pending Merly case (T-505/19), a staff member of the European Parliament (EP) seeks the annulment of an EP decision refusing to grant him adequate special leave to take care of his twin children newly born via surrogacy. In C.D. (C-167/12) the ECJ tackled a similar situation concerning maternity leave for the intended mother, which was denied under EU employment directives.

However, in the pending case before the General Court, the applicant directly claims a violation of the right to respect his family life under Article 8 ECHR in conjunction with Article 14 ECHR.

Thus, further implications of the recent developments in Strasbourg remain to be seen.

In a judgment delivered on 4 March 2020, the French supreme court for private and criminal matters (Cour de cassation) accepted to apply the doctrine of renvoi in a parenthood dispute.

The proceedings were initiated by a man who claimed that he was the father of a girl born from a married woman and demanded a DNA test to establish it. The spouses opposed it.

While the married couple resided with the child in France, the mother was a German national couple and the husband was an Italian and an Australian national. The child was born in Germany.

Article 311-14 of the French civil code provides that filiation is governed by the law of the nationality of the mother. The claim of the alleged lover was thus, in principle, governed by German law. The spouses argued that, under German law, the claim was inadmissible, unless the plaintiff could challenge that the girl was raised as the child of the spouses.

French courts, however, found that Articles 20, 19 et 14, § 1 of the German Introductory law to the Civil Code (EGBGB) provided that, under German private international law, filiation was governed by the law of the residence of the child and the law of the effects of marriage which was the law of the common domicile of the spouses if they were of different nationalities.

Indeed, Article 20 EGBGB provides that a challenge to filiation will be admitted if the action meets the requirements of either the law of the residence of the child or the law governing the effects of marriage. In the present case, Article 20 designated French law on each ground.

From the perspective of France, there was thus a renvoi from German law.

Substance blind choice of law rule

It is the first time that the court applies the doctrine of renvoi in the field of parenthood. While the doctrine is of general application in France (and more widely in many civil law jurisdictions), there was a doubt for parenthood because many choice of law rules in the field are not substance blind. They favour one outcome, for instance by providing that one way of establishing parenthood is valid if it is accepted by one of several laws.

Article 311-14 of the French civil code is a traditional choice of law rule, using a single connecting factor to determine the applicable law. It is does not, therefore, favour any particular outcome, and can be regarded as substance blind, or “neutral”. The court expressly insisted on this feature of the relevant choice of law rule.

The court held:

3. Pursuant to Article 311-14 of the Civil Code, filiation is governed by the personal law of the mother at the time of the birth of the child.

4. This provision lays down a multilateral, neutral choice of law rule which does not exclude renvoi. 

First degree renvoi

Although the English speaking world has borrowed the term renvoi from the French, the doctrine is very different in the civil law and in the common law tradition. There are, in truth, two doctrines of renvoi in the civil law tradition, and none of them corresponds to the English double renvoi/foreign court theory.

The first doctrine is first degree renvoi. It provides that if the choice of law rule of the forum designates foreign substantive law, and the foreign choice of law rule designate the substantive law of the forum, the forum should accept the renvoi and apply the substantive law of the forum. This is what this case was about: the French choice of law rule designated German substantive law, and the German choice law rule designated French substantive law. The Cour de cassation accepted the renvoi.

Scholars have long identified that first degree renvoi may lead to the remarkable situation where two states both accepting first degree renvoi would play a game of tennis table over the border and create an endless process of designating each other’s law. In the present case, Germany does accept first degree renvoi (Rückverweisung in German), so it might well be that a German court would find that French law provides for the application of German law, and accept the renvoi from Art 311-14. If that were the case, it would follow that each court would apply its own law, instead of applying each other’s law. Quite an incentive for forum shopping.

Until recently, the Cour de cassation never cared to elaborate on the rationale of its decisions. This has changed recently. So, in the present case, the court cared to explained why renvoi should be admitted. It held:

(…) the resolution of the conflict of laws by application of German rules, which designate French law, ensures coherence of outcomes irrespective of the court seized by the application of the theory of renvoi.

Well, I am not sure about that. The purpose of first degree renvoi never was to ensure consistency of outcomes. In the present case, which involves two civil law jurisdictions which admit renvoi, the doctrine will not create any coherence of outcomes whatsoever. A French court will apply French law. A German court, if it accepts renvoi, will apply German law.

In truth, it is the second doctrine of renvoi, second degree renvoi, which aims at ensuring consistency of outcomes. Under this second doctrine, the choice of law rule of the forum designates foreign jurisdiction 1, which designates foreign jurisdiction 2, which also designates foreign jurisdiction 2. The doctrine provides that all three courts should apply the law of foreign jurisdiction 2. If this is the case, then consistency of outcomes will be ensured: all courts will apply the same substantive law.

In other words, the Cour de cassation offered the rationale of second degree renvoi to justify the application of first degree renvoi.

Wrong reasoning, right outcome?

There is, however, one case scenario where first degree renvoi can accidentally ensure consistency of outcomes. This is the case of a foreign country which would not accept renvoi.

As already mentioned, German law accepts first degree renvoi in principle. However, the relevant German choice of law rule is not substance blind. It favours one outcome, namely challenge to an existing filiation. It might be, therefore, that German law limits the operation of renvoi in this context, in order not to contradict the policy advanced by the rule.

Our German readers probably know…

Edward Elgar Publishing has just launched a book series devoted to private international law. The first book in the series is titled The Rome III Regulation – A Commentary on the Law Applicable to Divorce and Legal Separation, and has been edited by Sabine Corneloup.

The blurb reads as follows.

This comprehensive Commentary provides an in-depth, article-by-article analysis of the Rome III Regulation, the uniform rules adopted by the EU to determine the law applicable to cross-border divorce and legal separation. Written by a team of renowned experts, private international law scholars and practitioners alike will find this Commentary an incisive and useful point of reference. 

Contributors include Alexandre Boiché, Laura Carpaneto, Christelle Chalas, Sabine Corneloup, Stefano Dominelli, Cristina González Beilfuss, Susanne Lilian Gössl, Petra Hammje, Bettina Heiderhoff, Fabienne Jault-Seseke, Natalie Joubert, Thalia Kruger, Caroline Sophie Rupp and Jinske Verhellen.

More information is available here.

On 13 February 2020, the CJEU ruled again on the competence of the court to hear passenger compensation claims under the Flight Compensation Regulation regarding cancelled flights.

Facts

Flightright v Iberia concerned a three-leg journey by two passengers from Hamburg to London, then London to Madrid, and finally from Madrid to San Sebastián. The whole trip was reserved in a single booking. Iberia operated the second and the third legs and it eventually cancelled the latter. The two passengers assigned their claims for compensation to the online rights portal flightright. The latter sued Iberia at the local tribunal in Hamburg, the point of departure. The tribunal doubted its jurisdiction and asked the CJEU for a preliminary ruling.

The Issue

The case turns on the second indent of Article 7(1)(b) Brussels I bis Regulation, which gives jurisdiction in matters relating to the provision of services to the tribunal of the place “where, under the contract, the services were provided or should have been provided”. The Hamburg tribunal had been unsure whether the conditions of this head of jurisdiction were fulfilled, given that Iberia was merely operating the last leg of the flight and was (1) neither the contractual partner of the passengers; nor (2) operating a flight running to or from Hamburg, the place where the suit was brought. 

Precedent

It is settled law, following the seminal CJEU decision in Rehder, that in the case of air transport contracts, the place of performance is deemed to be located at the points of both departure and of arrival, and that the passenger can choose between the two to bring her claim.

Multistop journeys and the liability of operating carriers were the subject of the decision in Air Nostrum, which also involved flightright, but which must not be confused with the present case. In Air Nostrum, suits were brought at the point of arrival regarding problems that had occurred on the first leg of the journey. The CJEU ruled that, although the carrier operating this leg had no direct contractual obligation with the passenger, it should be regarded as fulfilling an obligation freely consented to by performing a flight for another airline.  The effect of this was that Article 7(1) Brussels I bis applied. The Court of Justice also held that a multistop journey confirmed in a single booking is to be regarded as a single service for the purposes of Article 7(1) Brussels I bis. The Court of Justice therefore concluded that the tribunal at the place of the final destination of the multistop journey had jurisdiction over the carrier operating the first leg of the flight.

In another decision, České aerolinie, a passenger had booked a combined journey with the defendant, which operated the first leg of the journey, while a non-EU carrier performed the second. The latter being significantly delayed, the passenger sued the defendant – who was not involved in the delay – at the place of departure. The CJEU ruled here that indeed the defendant could be sued there because the journey is to be considered as one service (confirming the earlier judgment in Air Nostrum) and that the place of departure is to be considered a place of performance for the whole service under Article 7(1) Brussels I bis.

The COurt’s Ruling

In flightright v Iberia, the situation was somehow the reverse of Air Nostrum: the carrier operating the last and delayed leg of a multistop flight was sued at the place of departure. Again, the Court of Justice considered that the tribunal at this place had jurisdiction over the claim under Article 7(1)(b), second indent, Brussels I bis. The CJEU considered the journey comprising three legs as one service to carry the passenger from Hamburg to San Sebastián because it was made in a single booking (para. 27 – 29). In the view of the Justices, the tribunal at the place of departure (Hamburg) has a sufficiently close connection to the dispute. Even though it related to the cancelled flight between Madrid and San Sebastián, finding this tribunal competent satisfied the objective of proximity (para. 29 – 31). This solution would also fulfil the principle of predictability, given that the applicant and the defendant both could identify the place of departure and arrival (para. 32).

Assessment

The new judgment is hardly surprising. The solution reached by the CJEU fully squares with the previous rulings. Indeed, the new judgment merely continues the same logic, the main axioms of which are as follows: (1) multistop journeys are to be regarded as one service for the purposes of Article 7 Brussels I bis where they were made in a single booking; (2) a carrier operating a leg of the journey fulfils an obligation freely consented to, even though it has no direct contractual relation with the passenger; and (3) the passenger can choose to sue such carrier at the point of departure or of arrival of the whole journey.

The novel aspect of the decision is merely that a tribunal at the place of departure can be deemed competent to hear a claim for compensation relating to the final leg of the flight. Therefore, carriers operating parts of multistep journeys may find themselves sued in a court at a place to which or from which they do not fly. One can only warn them to pay particular attention to their arrangements with other airlines and to be cautious when confirming or authorising single bookings.

The first issue of the open-access journal Cuadernos de Derecho Transnacional for 2020 is out.

It includes more than fifty papers, covering a broad range of topics, such as the use of foreign powers of attorney for the purchase of immoveable property, consumer protection, the relationship between the recast Brussels II Regulation and the Hague Convention on the protection of  children, the flow of personal data between the EU and the UK after Brexit, matrimonial property regimes under Regulation 2016/1103, and the implementation of the rules on obtaining information on bank accounts under the Regulation establishing a European Account Preservation Order.

Most of the contributions are in Spanish. The rest are in English or in Italian.

The issue can be downloaded here.

The Permanent Bureau of the Hague Conference on Private International Law is seeking two legal officers. Candidates are expected to possess, among others, two years of relevant full-time professional experience (e.g., in practice, government, academia, IGOs or NGOs). They must also be nationals of Member States of the Conference.

Duties include general assistance in various areas of the work programme of the Conference, the areas of priority being international commercial litigation / civil procedure and child support (maintenance) matters.

One-year contracts are offered, starting in May 2020.

The deadline for applications is 25 March 2020 (12.00 a.m. CET).

Further information is available here.

Johnny Hallyday, born Jean-Philippe Smet, died in 2017 age 74. Over a career of 57 years, he released more than 80 albums and gave over 3200 concerts. He was nicknamed the French Elvis, l’idole des jeunes. Over a million people filled the streets of Paris for his funeral.

Although he was known to spend a lot and to tour constantly to maintain his lifestyle, Johnny had quite some assets when he died. In addition to the royalties he would receive each year, he owned a house near Paris, a house in the French Carribean and two properties in California (one in Pacific Palisades in Los Angeles, one in Santa Monica). He also owned a number of luxury cars and motorbikes.

Children

The singer had married several times and had many affairs. In 1965, he married French singer Sylvie Vartan, with whom he had a son, David.  In the early 1980s, he dated French actress Nathalie Baye and had a daughter, Laura. David Hallyday became a singer, Laura Smet an actress (picture).

Finally, in 1996, he was married to French model Laeticia Boudou by Mayor Nicolas Sarkozy. In the 2000s, they adopted two girls, Jade and Joy.

Californian Will

In 2014, Johnny wrote several wills. In the first will, he declared that he resided at his home in Los Angeles and that he donated the entirety of his estate to his last wife Laeticia pursuant to Californian law or, should she die before or with him, to his two adopted daughters, Joy and Jade. But he then wrote a new will whereby he transferred all his assets to a trust established in the U.S. and appointed his wife as executrix of the will.

Obviously, the immediate consequence of the will was that his two first children would not receive anything from their father. This would go against one of the fundamental principle of the French law of succession, namely that each of the four children was entitled to receive 18% of the entire estate. But was French law applicable?

French Proceedings

In February 2018, David and Laura initated proceedings against Laeticia and her two adopted daughters in Nanterre, France, seeking a declaration that the (last) will of their father was null and void under French law. They also sought and obtained protective measures freezing a number of the assets in dispute.

The first issue for the French court was to decide whether it had jurisdiction under the Succession Regulation. This meant assessing where the habitual residence of the deceased at the time of his death was. Scholars have long identified that a drawback of this connecting factor is that it is very difficult to apply to artists who travel all the time and have homes in different countries. Laeticia claimed that her husband (and she and her daughters) resided habitually in Los Angeles; David and Laura that he habitually resided in France.

There is no doubt that Johnny spent a lot of time in both places. His adopted daughters were schooled at the Lycee Français of Los Angeles and, as many French stars, he liked the fact that he could live an anonymous life in the U.S.  But he also spent a lot of time in France. He was a French idol, and his concerts were essentially given in France. He died at his home in Paris.

Recital 23 vs Recital 24

The Preamble to the Succession Regulation proposes alternative methods to assess residence. Recital 23 provides that, in principle, the test should be whether the deceased has a “close and stable relationship” with the state concerned. However, Recital 24 states that, in certain cases where the deceased lived in several states alternatively, it could be difficult to assess habitual residence, and it would thus be legitimate to take into account nationality and the location of the main assets of the deceased. Laeticia relied on Recital 23, David and Laura relied on Recital 24.

The Court would ultimately find that Recital 23 controlled, but decide in favour of David and Laura.

Instagram Tracking

In a judgment delivered on 28 May 2019, the Court conducted an overall assessment of the situation.

It first noted that the issue was the last habitual residence of the deceased. A number of facts were reported dating decades earlier, such as the fact that, when Sylvie Vartan, the first wife of Johnny, lived in LA with young David (now 53), the rockstar would spend most his time in France. The Court ruled that it would ignore such references to events older than 10 years.

The court started with the period 2007-2012 to insist on the fact that, during that time, Johnny declared, in particular in various wills, that he resided in Switzerland and wished to subject his succession to Swiss law. The court noted that, while the purpose of such declarations were likely tax related, it did not change the fact that under Swiss tax law, the tax status that Johnny wanted required to have significant ties with Switzerland.

The court then moved to the time period after 2012, for which much more factual evidence of the presence of the rockstar on each of the two territories was available. The Reason why was that Johnny and his last wife had opened an instragram account in 2012. David used the instagram account of his father to provide a detailed account of the time the latter spent in France and elsewhere since 2012. The result was that the rockstar spent at least 151 days in France in 2015, at least 168 days in France in 2016, and that he stayed in France in the last 8 months of his life in 2017. With modern technology, finding out where VIPs spent most of their time might not be so difficult, after all.

Finally, the court conducted a subjective analysis and assessed the conditions and reasons of the presence of the rockstar in each country. The court recognised that it was not easy to assess the state of mind of the deceased relating to his stays in each of the two countries. However, the court agreed with the proposition that it was not possible to dissociate the artist from the private person, and thus found that the decisive factor was that the singer loved to perform, and that his life was entirely directed towards this activity. He toured constantly, including in the last three years of his life, and he did so almost exclusively in France.

The court concluded that Johnny Hallyday did not have alternate residences, but only one residence, in the last years of his life. He thus fell within the scope of Recital 23 of the Preamble, not Recital 24. Quite a remarkable conclusion : although the two youngest kids of the rockstar were schooled in the U.S. and he spent time there each year, he was found to have no residence there.

Laeticia immediately lodged an appeal againt the judgment. But she waived it in November 2019.

Superior Court of California

In 2018, the trust established by the rockstar to the profit of his wife initiated proceedings in the Superior Cour of California in Los Angeles against David and Laura seeking an order to transfer various assets of the rockstar to the trust, including rights over songs, funds in a bank account, four Harley Davidsons and three luxury cars. David and Laura have filed a motion to stay or dismiss proceedings on the ground of comity and forum non conveniens.

It seems that the case puzzled the LA Court. After being postponed four times, the case was postponed again on 4 February 2020, to May 2020. I could not access the documents filed by the parties, but the popular press has reported that Justice May said during one of the hearings that he found the case “very complex”, that he did not see the jurisdiction of the French court as necessarily exclusive of the jurisdiction of his own court, and that he wondered about the base of the rights of the widow under French law: “We are talking about 25%, but the big question is, 25% of what?”

What is the territorial reach of the Succession Regulation? If it purports to reach assets situated in California, does California law allow it? If it does not, should the shares of each of the children be calculated on the French/European estate only?

All very interesting questions. We very much hope Justice May answers them.

On 14 of February 2020 a new law undermining the independence of judiciary in Poland (a so-called “muzzle law“) entered into force.

The Act of Law of 20 December 2019 bars judges from, among other things, contesting the status of other judges or the legality of their appointment (an English version of the draft Act, almost identical to the Act as adopted, is available here) .

The act is a reaction to (i) the CJEU judgment of 19 November 2019 in the AK case, by which the Court asked Polish judges to verify the conformity of the new Disciplinary Chamber of the Supreme Court with EU law, and (ii) the subsequent judgment of another chamber of the Polish Supreme Court of 5 December 2019 finding that the Disciplinary Chamber does not comply with EU law (an English version can be found here).

According to the new Act, judgments corresponding with the one laid down by Supreme Court on 5 December 2019 would be prohibited. Defecting judges can be removed from the profession.

The law has provoked strong reactions from the European institutions already at the stage of the legislative process.

The Vice-President of the European Commission, Věra Jourová, wrote on 19 December 2019 a letter to the Polish President, the Prime Minister and the Presidents of both chambers of the Parliament. The letter states that the rules of the new legislation “touch upon matters such as judicial independence, further raising the Commission’s existing concerns in this area”.

In the letter, Ms Jourová also encouraged “the Polish authorities to consult the Council of Europe’s Venice Commission on this draft legislation”, and invited “all State organs not to take forward the proceedings on the new draft legislation before carrying out all the necessary consultations”.

On 11 January 2020 a “March of 1000 Gowns” demanding “the right to independence, the right to Europe” took place in Warsaw. Polish judges supported by 50 judges from other European countries, together with thousands of citizens, protested against the draft law.

The Venice Commission adopted on 16 of January 2020 an urgent joint opinion on the draft law. The remark is made in the opinion that, by virtue of some of the amendments to the law, “the judges’ freedom of speech and association is seriously curtailed”: Polish courts will be effectively prevented from examining whether other courts within the country are ‘independent and impartial’ under the European rules”.

On 28 January 2020, the Parliamentary Assembly of the Council of Europe (PACE) opened a monitoring procedure for Poland over the functioning of its democratic institutions and the rule of law. In its resolution 2316(2020) it declared that recent reforms in Poland “severely damage the independence of the judiciary and the rule of law”.

The law was adopted anyway. An open question is what impact it will  have on the mutual trust and the mutual recognition of judgments in the European Union. Polish ‘reforms’ resulted already in the rebuttal of the presumption of mutual trust in the context of recognition of judgments in criminal matters (judgment of 25 July 2018 in the LM case, analysed here). But the restriction of the independence of the judiciary has a potential impact on all acts providing for the mutual recognition of judgments, in both criminal and civil matters.

It can be particularly challenging for judges applying norms of EU Private International Law. 

Recognition of civil judgments given by a court or tribunal of a Member State should take into account that the CJEU treats a “court” as an autonomous concept of EU law.

The CJEU elaborated on this notion, among other rulings, in Ibrica Zulfikarpašić (§43) and Pula Parking (§53), where it stated that due to the principle of mutual trust, EU law requires “that judgments the enforcement of which is sought in another Member State have been delivered in court proceedings offering guarantees of independence and impartiality”.

The above-mentioned doubts expressed by the European Commission and PACE appear to challenge that requirement.

Photo: Courtesy of Jakub Włodek / Agencja Gazeta

Dário Moura Vicente (University of Lisbon) has published the second edition of his monograph on international intellectual property (A Tutela Internacional da Propriedade Intelectual).

The books covers the traditional issues of jurisdiction and applicable law. It also discusses the merits and limits of international harmonisation in the field, and extra-judicial remedies.

More details are available here.

The last issue of the Revue critique de droit international privé for 2019 has just been released. It contains numerous casenotes and one article by Poul F. Kjaer (Copenhagen Business school) on the sociological idea of connectivity and private international law (L’idée de “connectivité” et le droit international privé).

The article is a revised translation of a paper by the same author titled Constitutionalizing Connectivity: the Constitutional Grid of World Society.

Global law settings are characterized by a structural pre‐eminence of connectivity norms, a type of norm which differs from coherency or possibility norms. The centrality of connectivity norms emerges from the function of global law, which is to increase the probability of transfers of condensed social components, such as economic capital and products, religious doctrines, and scientific knowledge, from one legally structured context to another within world society. This was the case from colonialism and colonial law to contemporary global supply chains and human rights. Both colonial law and human rights can be understood as serving a constitutionalizing function aimed at stabilizing and facilitating connectivity. This allows for an understanding of colonialism and contemporary global governance as functional, but not as normative, equivalents.

A full table of contents is available here.