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A collection of essays in honour of Haimo Schack (Ius Vivum: Kunst – Internationales – Persönlichkeit: Festschrift für Haimo Schack zum 70. Geburtstag) has just been published by Mohr Siebeck, edited by Sebastian Kubis, Karl-Nikolaus Peifer, Benjamin Raue and Malte Stieper.

The book brings together more than ninety contributions, mostly in German, grouped under six headings: art law and the law of culture; intellectual property law; private international law; international civil procedure; the law of personality; civil law, civil procedure and comparative law.

The section devoted to private international law features essays by Christine Budzikiewicz, Morten M. Fogt, Susanne Gössl, Jan von Hein, Christian Heinze, Peter Huber, Claudia Mayer, Joachim Münch, Dennis Solomon and Astrid Stadler.

The international civil procedure section comes with essays by Jürgen Basedow, Dagmar Coester-Waltjen, Gilles Cuniberti, Masahisa Deguchi, Tanja Domej, Anatol Dutta, Martin Gebauer, Reinhold Geimer, Wolfgang Hau, Peter Hay, Burkhard Hess, Jan Felix Hoffmann, Abbo Junker, Eva-Maria Kieninger, Christian Kohler, Herbert Kronke, Sebastian Kubis, Stefan Leible, Felix M. Wilke, Dieter Leipold, Luís de Lima Pinheiro, Volker Lipp, Mark Makowsky, the late Peter Mankowski, Peter G. Mayr, Pedro A. De Miguel Asensio, Thomas Pfeiffer, Oliver Remien, Herbert Roth, Rolf A. Schütze, Michael Stürner, Rolf Stürner, Christoph Thole, Dimitrios Tsikrikas, Rolf Wagner and Markus Würdinger.

Issues related to private international law and international litigation are also dealt with in contributions found in other sections.

The full table of contents is available here.

The ILA Reporter, the official blog of the International Law Association (Australian Branch), is currently calling for submissions on private international law to be published on the website.

The Reporter provides leading analysis, commentary and discussion on public and private international law issues, which have a bearing on Australia and the wider region. The length of contributions is flexible – anywhere between 500 and 1,500 words is ideal, and we frequently publish multi-part article series.

Would you or any of the postgraduate students in the law school be interested in publishing in the ILA Reporter?

Terms and conditions for the submissions are available here, and submissions should conform to the ILA Reporter’s Style Guide here.

Inébranlable. La Cour de justice de l’Union européenne ne veut toujours pas, sauf cas très particulier, permettre aux États de conserver de façon généralisée les données de connexion des communications électroniques, même pour une courte durée.

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La Cour de justice de l’Union européenne se prononce, pour la première fois, sur l’incidence en droit de l’Union européenne des dispositions spéciales mises en place par les législateurs nationaux au début de la pandémie de covid afin d’aménager les délais de procédure.

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On Tuesday, October 4, 2022, the Hamburg Max Planck Institute will host its 26th monthly virtual workshop Current Research in Private International Law at 11:00 a.m. -12:30 p.m. (CEST). Prof. Sabine Corneloup (Paris-Panthéon-Assas University) will speak, in English, about the topic

Migrants in Transit or Under Temporary Protection: How Can Private International Law Deal With Provisional (But Not Necessarily Short-Term) Presence?

An increasing number of migrants are provisionally present in the territory of a State other than their State of origin, be it because they are granted temporary protection until they can return to their country of origin (4 million refugees from Ukraine registered for Temporary Protection in Europe), or because migration policies – notably externalization measures – prevent them from accessing the territory of their State of destination. As a result, many migrants are blocked for months if not years in transit countries at the external borders of Europe, before being able to resume their migratory route. Their provisional presence, which initially was meant to remain transitional and short-term, often becomes indefinite. In the meantime, life goes on: children are born, couples marry and divorce, parental child abductions take place etc.
How can Private International Law deal with these situations? The presentation aims to explore PIL connecting factors, such as nationality, habitual residence and mere presence, and assess their appropriateness for migrants on the move or under temporary protection. The 1951 Geneva Refugee Convention, which requires that the personal status of refugees be governed by the law of domicile or residence, does not provide an answer to all difficulties.

The presentation will be followed by open discussion. All are welcome. More information and sign-up here.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

This post was written by Robert Vogelauer, Vienna.

In a decision of 27 January 2022 the Austrian Supreme Court ruled on how Brexit affects a British Private Limited Company (Ltd.) that was incorporated in England but conducted all of its business operations in Austria (OGH 9 Ob 74/21d). It did so only a couple of months after a German court denied a Berlin-based Ltd. legal capacity in a similar case (OLG München, 29 U 2411/21 Kart), though the Austrian court came to a different conclusion.

Facts, Procedure and Holding

In 2016, a UK Ltd. based in Styria (Austria) sued one of its clients for payment of outstanding debt before an Austrian court. The legal proceedings dragged on for several years. In February 2021, the defendant filed to have the lawsuit dismissed, arguing that the Ltd. had lost its legal capacity due to Brexit and could therefore no longer be party to the proceedings. In response, the claimant petitioned the court to change its party designation to that of an Austrian civil law partnership (GesbR) – a strange choice, since a GesbR also lacks legal capacity. The courts of first and second instance agreed with the defendant and dismissed the lawsuit. The Austrian Supreme Court, however, decided that the proceedings could continue, though the claimant’s party designation would have to be changed to the name of the Ltd.’s sole shareholder.

Application of Austrian International Company Law

The court stated that since the claimant was no longer incorporated in an EU Member State, Austrian international company law would determine the company’s legal capacity. The court then applied the real seat theory according to § 10 of the Austrian Private International Law Act, which states that a company’s legal capacity is to be assessed under the law of the country where its headquarters are located. Since the headquarters were undoubtedly located in Styria, the court applied Austrian company law.

The court ruled that the Ltd. had lost its legal capacity because Austrian company law only grants legal personhood to an exhaustive list of corporate forms (numerus clausus), with the Ltd. not being one of them.

Despite this, it did not dismiss the lawsuit. According to the court, a Ltd. with headquarters in Austria was not legally inexistent, but would rather need to be viewed “through the lense of Austrian company law”. The court ruled that the sole shareholder of the Ltd. had become its universal successor by analogously applying § 142 of the Austrian Business Code (usually referred to for dissolving partnerships) and was now to be considered a merchant under Austrian law. As the universal successor of the Ltd., the sole shareholder could continue the proceedings in place of the Ltd., though the party designation would have to be changed.

Comparison to the OLG Munich’s Decision

The decision from the Austrian Supreme Court came only months after the Higher Regional Court of Munich (OLG Munich) dismissed the lawsuit of a UK Ltd. based in Berlin for lack of legal capacity. Though the courts reach different conclusions, their reasoning is quite similar for the most part. Both courts agree that the UK-EU Trade and Cooperation Agreement cannot be invoked to avoid the application of the real seat theory and that the Ltd. as such cannot remain party to the proceedings. They also agree it would go against creditors’ and public interest to treat the Ltd. as legally inexistent. The OLG Munich then applies what it calls the “mild” real seat theory and states a Ltd. will have to be categorized as a merchant or a partnership under German law. The Austrian Supreme Court reaches the same result by looking at the Ltd. “through the lense of Austrian company law”.

The OLG Munich’s decision leaves something to be desired from a procedural standpoint. It dismissed the lawsuit without answering whether or not it considered the Ltd. and its shareholder(s) to be the same procedural party. This is of crucial importance because by dismissing the lawsuit for lack of legal capacity, the Ltd – or rather, its shareholders – retroactively lost lis pendens status for their claim, meaning even if they filed the lawsuit again under their own names, statutory limitation periods would apply as if the previous lawsuit had ended the day after Brexit. If the court had ruled that the Ltd. and its shareholders were the same party from a procedural standpoint, then the proceedings could have continued with a changed party designation. Furthermore, the court would technically be required to order a change of party designation ex officio if it believed the Ltd.’s shareholder(s) to be the same party. The Austrian Supreme Court avoided this issue by declaring the sole shareholder to be the Ltd.’s universal successor, which meant they also succeeded the Ltd. in the proceedings.

Assessment

Shareholders of UK Ltds. based in Austria have effectively lost the protection of their corporate entity and can now personally be held liable for their company’s debts. It would have been desirable if the court had at least shielded shareholders from liability for debts incurred before Brexit – though this would have required a bit of a methodological stretch.

Austria-based Ltds. face further legal uncertainty because the UK – like many other countries – assesses legal capacity for companies based on the place of incorporation. This means UK Ltds. only operating in Austria are still recognized as legal entities by the UK and other countries that also follow the incorporation theory. This may result in situations where a contract with the Ltd. is considered valid before a foreign court, but in Austria it would be considered void or – even if it was not – it would be unclear who the parties to that contract were. Austrian courts will have to deal with these issues in future rulings.

Les dispositions de l’article R. 173-15 du code de la sécurité sociale prévoyant que les majorations de durée d’assurance sont accordées par priorité par le régime général lorsque l’assuré a été affilié à plusieurs régimes au cours de sa carrière se bornent à fixer une règle de coordination entre les régimes, ne portent pas une atteinte à la substance des droits des assurés et ne constituent donc pas une ingérence dans le droit à pension garanti par l’article 1er du 1er protocole additionnel à la Convention européenne des droits de l’homme.

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In a decision (“views”) adopted on 1 June 2022 (CRC/C/90/D/121/2020), the UN Child Rights Committee (CRC) held that the best interest of a child must be taken into consideration before a child is returned after an unlawful retention.

The CRC primarily monitors compliance with the Convention on the Rights of the Child (Child Convention). In a decision regarding a Chilean child abduction case pursuant to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (1980 Hague Convention), the committee made a statement on the interplay of the Child Convention and the 1980 Hague Convention. It is the first time ever that the CRC makes a statement regarding the 1980 Hague Convention.

The background to the case was that a mother and her child had not returned to the father in Spain from a stay in Chile. The father initiated a restitution request in Chile for unlawful retention according to the 1980 Hague Convention. A family court of first instance rejected the father’s request with reference to, among other things, the best interest of the child and the fact that the father had consented to the child being in Chile. The case was overturned by the Chilean Supreme Court, that held that the child should return to the father in Spain.

In the CRC decision, the Chilean Supreme Court judgment is criticized for not considering the best interest of the child. The critique in the CRC decision does not question the conclusion that the child should be returned to Spain. Instead, the essence of the critique was that the Supreme Court did not take the best interest of the child into consideration in the right way.

First, the CRC held that the Supreme Court decision did not indicate how the return of the child should be made. Second, the CRC criticized the Supreme Court procedure. Before the Supreme Court, there was an interlocutory hearing which was limited to the enforcement of the return of order. According to the CRC, this limitation did not give enough remedy for the possible exceptions to immediate return set out in the 1980 Hague Convention.

Sydney Law School is pleased to announce the inaugural Kim Santow Law and Social Justice Essay Prize. For more information, see here.

The Essay Prize is open to students enrolled in an LLB or JD program at an Australian University.  In 2022, essays must be submitted by  by 5.00 pm (AEDT) on Monday 31 October 2022. The Essay Prize will be awarded in association with the annual Kim Santow Expert Panel on Law and Social Justice which will take place on Thursday 1 December 2022.

Rules for the competition are below:

Kim Santow Law and Social Justice Essay Prize 2022: Rules

1. The Kim Santow Law and Social Justice Essay Prize is open to any student enrolled in an LLB or JD degree program at an Australian tertiary institution at the time of submission or within the previous six months.
2. Essays must have been written in the 12 months before the submission deadline. A person may not submit more than one essay to the Competition in any given year.
3.  Essays must respond to the following proposition:
   The NDIS is described as a shift from a welfare system to a market-based system, but there may be limitations in relying on competition and choice in the provision of disability support. Discuss.
4. Essays must be no more than 3,000 words. Essays exceeding this word limit will not be accepted. Footnotes if used, and bibliographies (required), are not included in the final word count.
5. Essays must be submitted as a .pdf document by email to <law.reform@sydney.edu.au>.
6. The deadline for submission of essays is 5.00 pm (AEDT) on Monday 31 October, 2022. No extensions will be allowed.
7. Essays must meet the highest standards of academic integrity, and be fully and accurately referenced according to a recognised referencing standard (eg, AGLC, Harvard, MLA).
8. Each person submitting an essay must declare that the essay is the person’s own original work. By submitting an essay, a person agrees that Sydney Law School may conduct an integrity check for copyright infringement or plagiarism.
9. An essay that is submitted to the Competition must be accompanied by a separate cover page stating:
   a.     the author’s name, contact email and telephone number
   b.     a declaration of enrolment (see rule 1)
   c.     a declaration of time (see rule 2)
   d.     a declaration of integrity (see rule 7)
10. A submitted essay must not include any information – for example in a header or footer – that identifies the author, so that it can be marked anonymously.
11. Eligible essays will be reviewed by a panel of experts against the following criteria:
    1. Novelty: does the essay address a cutting-edge issue and/or contribute a novel perspective or analysis to the question
    2. Argument: is the argument clear, compelling, well-developed and supported by evidence?
    3. Clarity and structure: is the essay written clearly and concisely, and organised in a logical and effective way?
    4. Accuracy: is the essay presented neatly and legibly, with few or no content, typographical, grammatical and referencing errors?
12. The best essay will be announced on 1 December, 2022 at the Kim Santow Experts Panel on Social Justice to be hosted at the Sydney Law School. The decision of the judging panel is final.
13. The judging panel may in its discretion decline to award prizes.
14. Subject to rule 13, the author of the Winning Essay will each receive a prize of AU$1000.
15. The author of the Winning Essay will be offered academic support and advice to revise their work for submission for publication.
16. The author of the Winning Essay agrees that if their essay is published (by any means, in any forum), that its publication will be accompanied by an acknowledgment that the essay won the Prize in the relevant year.

Please direct any inquiries to Mr Josh Pallas at <law.reform@sydney.edu.au>.

 

Afin de lutter contre les poursuites-bâillons, ces procédures abusives destinées à faire taire les lanceurs d’alerte, la Commission européenne a proposé le 27 avril dernier une directive anti-SLAPP, complétée par une recommandation à l’attention des États membres. Un projet encore perfectible et soumis à des ajustements, mais qui soulève d’ores et déjà des interrogations de la part des professionnels du droit…

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La Cour de justice de l’Union européenne se penche sur le régime juridique, en application du règlement Bruxelles I, d’une décision anglaise reprenant les termes d’une sentence arbitrale.

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Bundesrepublik Deutschland (Suspension administrative de la décision de transfert)
Espace de liberté, sécurité et justice
La suspension, en raison de la pandémie de Covid-19, de l’exécution d’une décision de transférer un demandeur d’asile vers l’État membre responsable n’a pas pour effet d’interrompre le délai de transfert de six mois

Országos Idegenrendeszeti Főigazgatóság e.a.
Espace de liberté, sécurité et justice
Retrait de la protection internationale suite à une atteinte à la sécurité nationale : le droit de l’Union s’oppose à la réglementation hongroise selon laquelle la personne concernée ou son représentant ne peuvent accéder au dossier qu’a posteriori, sur autorisation et sans se voir communiquer les motifs fondant la décision

The new issue of the Revue Critique de Droit International Privé (3/2022) is out.

It contains three articles relating to the French project of PIL codification (of which readers of the blog are well informed, see here and here), as well as numerous case notes.

The editorial by Horatia Muir Watt (Sciences Po Law School), Dominique Bureau (University of Paris II) and Sabine Corneloup (University of Paris II) will soon be available in English on Dalloz website (De codice ferendo ?)

In the first article, Dominique Foussard (Avocat au Conseil d’Etat et à la Cour de cassation, Paris Bar), Marie-Laure Niboyet (University of Paris-Nanterre) and Cyril Nourissat (University of Lyon 3), all members of the working group on the (French) PIL codification, present the main results of the draft code under a methodological perspective (Réflexions méthodologiques sur le projet de code de droit international privé). 

On March 31, a draft code of private international law (of 207 articles) was submitted to the French Minister of Justice. It was drawn up by a working group, headed by President Jean-Pierre Ancel. The French Ministry of Justice has now decided to submit the draft code for public consultation. The editorial staff of the Revue critique has opened its columns to three members of this group, to supplement with methodological reflections the analysis of the main provisions of the draft which can already be found in the accompanying explanatory report. These reflections are based on four observations : large parts of the discipline are still governed by national law ; conversely, when it is attested, the growth of international conventions and European Union law reveals the need for national norms of reference or adaptation to facilitate their application ; many rules of positive law should be reformed or completed in an overall vision of the discipline, and not on a piecemeal basis, on the occasion of a special law ; the increase in the international movement of persons accentuates the need for practitioners to have a complete corpus for the exercise of their activities, both as litigators and as advisors. Based on these findings, the draft has endeavored to respond to three essential challenges, namely the synergy of the sources of the subject-matter, the predictability of the rules enacted and the satisfaction of the objectives of private international law.

In the second article, Stefan Leible (University of Bayreuth) and Felix M. Wilke (University of Bayreuth) analyse the French draft PIL code from a German perspective (Le Projet de code de Droit International Privé. Une vue d’Allemagne, soon available in English on Dalloz website). Some elements of this analysis have already been shared with the readers of this blog here.

From a German perspective, there is much in the French Draft Code of Private International Law (“Draft Code”) to be appreciated ; in part, one can even be envious. Not only is there still room for a national PIL codification, but it can also enhance legal clarity, even where it only refers to applicable EU regulations. It is user-friendly to combine rules on procedure with conflict-of-laws provisions in one instrument and sensible to devote one part of the Draft Code to general provisions. The rules of the Draft Code on the PIL of contractual and non-contractual obligations as well as on companies in particular by and large could serve as models for German legislation. Conversely, here and there, German PIL rules might provide some inspiration for (minor) adjustments of and additions to the Draft Code. Some of the proposed rules, however, seem less than ideal. To allow renvoi only where at least one of the parties so demands neither serves legal clarity nor always makes life easier for the judge. The rule on lois de police could cause or perpetuate misunderstandings about their legal nature. It is doubtful whether a provision on fraude à la loi is truly necessary. To keep nationality as a connecting factor for jurisdiction can be considered particularly exorbitant. Yet all of this should not detract from the impressive and thought-provoking achievement that is the Draft Code.

In the third article, Paul Lagarde brings his extensive transnational experience and expertise to develop a challenging analysis of the draft PIL code (Quelques remarques sur le projet de codification du droit international privé français).

At a time when private international law in force in France comprises, for the most part, European law, whether it be European Union Regulations or the case law of the European Court of justice and sometimes indeed the European Court of Human Rights, the notion that French private international law should be codified independently of these other sources is both a source of astonishment and the cause for regret for the lost opportunity of a systemization of European conflicts of laws.This criticism is of particular relevance, moreover, in respect of what is known in continental legal terms as the general part of our discipline, such as the provisions on the duties of the court with regard to foreign law or the sanction applicable to various abusive strategies (playing the system or “fraude à la loi”). Furthermore, independently of any value judgment on the proposed texts, they are likely to be difficult to handle for the very non-specialists for whose benefit the project was intended.

More information is available here.

Par un arrêt du 8 septembre 2022, la Cour de justice se prononce sur la détermination du champ d’application de l’article 24, point 4, du règlement Bruxelles I bis, en présence de demandes de brevets déposées dans des États tiers à l’Union et de brevets obtenus dans l’un d’eux.

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France / Commission
Agriculture
Financement de la PAC et aides aux États membres : le Tribunal rejette le recours de la France contestant une correction financière d’un montant de 46 millions d’euros proposée par la Commission

The author of this post is Francesca Maoli, who is a Researcher at the University of Genova.

The Brussels II ter Regulation on matrimonial matters, matters of parental responsibility and child abduction has become fully applicable on 1 August 2022, meaning that legal proceedings instituted on or after that date, as well as authentic instruments and agreements registered on that date or afterwards, must, in all EU Member States (excluding Denmark), be dealt with in accordance with the Recast Regulation, rather than its predecessor, the Brussels II bis Regulation

Amending Brussels II bis: Improve the Tradition or Face Innovation?

The process that eventually resulted in the adoption of the Recast Brussels II Regulation was launched on the assumption that, overall, the old Brussels II bis Regulation had functioned reasonably well. The 2014 European Commission’s Report on the operation of the latter Regulation stressed that the system was in need of improvement, rather than radical change.

The existing rules have undergone several changes. Some amount to simple refinements and fixings. Others are more meaningful.

The most prominent innovation brought about by the Brussels II ter Regulation is, arguably, the abolition of exequatur for all decisions on parental responsibility. The two-track system envisaged in Brussels II bis, however, remains in place. While the general discipline is now contained in Article 30 and following of the Brussels II ter regulation, ‘override’ return orders and access orders (which the old regime already regarded as ‘privileged’ decisions) keep on benefiting from a special regime. Recognition and enforcement of the latter orders can be refused if they are irreconcilable with a later decision relating to parental responsibility concerning the same child, provided that such a later decision was given (i) in the Member State where recognition is invoked, or (ii) in another Member State or in the non-Member State of the habitual residence of the child, provided that the conditions necessary for its recognition in the Member State are met.

This post does not purport to analyse the new rules in details (a wealth of literature has been produced on the topic: see here for some references). It merely intends to ‘zoom in’ a selection of issues of special practical importance.

Private Divorces

The European Commission set itself the object of retaining the status quo as concerns matrimonial matters (this was, actually, the preferred policy according to the 2016 Recast Proposal). The Recast Regulation has nevertheless introduced, also in this area, some significant innovations.

One such innovation is about ‘private divorces’, i.e., divorces that fundamentally occur out of court, based on an agreement between the spouses.

The Brussels II ter Regulation comes with a definition of authentic instruments and agreements, respectively in Article 2(2) and (3). Authentic instruments and agreements in matrimonial matters, if they are given binding legal effects in the Member State of origin, benefit from recognition ‘without any special procedure being required’ (Article 65(1)), unless one of the grounds for refusal of recognition provided by Article 68(1) apply. The same is true of authentic instruments and agreements in matters of parental responsibility (Article 65(2)).

In practice, as clarified in Recital 70, authentic instruments and agreements are to be treated as equivalent to decisions. For this, they must have been formally drawn up or concluded in a Member State that would have had jurisdiction according to the regulation (Article 64). Where this is not the case, they may still circulate across Member States under domestic PIL provisions, or otherwise.

The EU decided to adopt rules on private divorces in light of developments that have arisen, recently, in domestic legislations. When the Brussels II bis Regulation was adopted, the laws of the Member States did not contemplate out-of-court divorces. This is why the Regulation itself failed to include provisions in this regard. This state of affairs has proved problematic. A case is currently pending before the ECJ (C‑646/20, Senatsverwaltung für Inneres und Sport), concerning a dissolution of marriage by joint declaration of the spouses before an Italian civil registrar, whose duty is to assess whether the conditions for an out-of-court divorce are met (Article 12 of the Italian Decree Law No 132/2014 requires, inter alia, that the spouses do not have minor children). While noting that ‘Regulation No 2019/1111 is inapplicable to the present case ratione temporis’, being therefore ‘not possible to draw any conclusions from it for the purposes of interpreting Regulation No 2201/2003’, AG Collins suggested in its Opinion that Articles 2 and 21(1) of the Brussels II bis Regulation be given a broad interpretation, thereby concluding that Italian private divorces should be treated as ‘divorce judgments’ for the purpose of the Brussels II bis Regulation (just like they will do under the Recast Regulation).

The Best Interests of the Child and the Child’s Participation in Parental Responsibility Proceedings

The most significant changes brought about by the Brussels II ter Regulation concern children. One key goal of the Regulation is to enhance the protection of their fundamental rights, as enshrined in the UN Convention on the Rights of the Child (UNCRC), the European Convention on Human Rights (ECHR) and the Charter oof Fundamental Rights of the European Union. Specifically, Article 24 of the Charter creates a link between children’s rights – as protected by universal and regional systems – and the EU legal order.

The Regulation fosters the principle of the best interests of the child, which underlies both the general ground of jurisdiction of the habitual residence of the child (Recital 20) and the rules on the recognition and enforcement of judgments (Recital 55).

While the overall regime of jurisdiction in parental responsibility matters is left substantially unaltered, some significant revision occurred concerning choice of court. Article 10 of the Brussels II ter Regulation provides the formal and substantial condition that an agreement of the parties must fulfil to be effective: those conditions reflect, in general, a concern for the best interests of the child. Among the other requisites, a ‘substantial connection’ must exist between the child and the State of the chosen forum. The new provision expands the cases in which the aforementioned connection is deemed to exists, thus creating more possibilities to exercise party autonomy. In addition, the choice of court results now disconnected from the existence of a proceeding concerning the dissolution of marriage (even if Recital 23 still mentions this circumstance). Finally, ‘persons who become parties to the proceedings after the court was seised may express their agreement after the court was seised’, with the specification that such acceptance of jurisdiction during the proceedings may also be implicit (Article 10(2)).

Child participation is another key issue. Recital 2 states that the Regulation ‘clarifies the child’s right to be provided with an opportunity to express his or her views in proceedings to which he or she is subject’, thus recognizing the already existing obligations stemming from international and EU law. The hearing of the child finds a comprehensive discipline in Article 21, which sets out a general obligation to hear the child in all proceedings on parental responsibility, in line with Article 12 UNCRC. The same obligation is stated in Article 26 in the context of child abduction proceedings.

All in all, a decision relating to a child may not be enforced if the child concerned was not given the opportunity to express their views in accordance with Article 21 (unless specific circumstances occur, as specified by Article 39(2)). As to ‘privileged decisions’, namely, overriding orders and orders concerning the rights of access, the violation of Article 21 prevents the issuance of the certificate aimed at facilitating recognition and enforcement (Article 47(3)(b)).

In spite of the foregoing, the opportunity for the child to be heard is still subject to ‘the national law and procedure’. Therefore, it remains unclear to what extent national practices of the Member States will be affected by the new provisions. The importance of the described innovations should, however, not be underestimated. The Regulation has built a solid link between EU proceedings on parental responsibility, on the one hand, and the obligations arising from international texts in this area. Against this background, in order for the child to be given a ‘genuine and effective opportunity to be heard’ (Articles 21 and 26), other aspects should be considered, such as the right of the child to receive adequate information, as suggested, inter alia, by the Guidelines of the Council of Europe on Child-Friendly Justice and the recent work of the Committee of experts on the rights and the best interests of the child in parental separation and in care proceedings (CJ/ENF-ISE).

The focus on the child’s best interests is further witnessed by Article 56 of the Recast Regulation. This provides that the enforcement of a decision may be suspended if it ‘would expose the child to a grave risk of physical or psychological harm due to temporary impediments which have arisen after the decision was given, or by virtue of any other significant change of circumstances’. According to Recital 69, this may take the form of a manifest and strong objection of the child voiced after the adoption of the decision (Recital 69).

International Child Abduction

Chapter III of Brussels II ter is about international child abduction. The new instrument confirms the intention to enhance the operation of the 1980 Hague Convention with respect to intra-EU abductions. The overriding mechanism or trumping order, which consents the court of the Member State of habitual residence of the child before the abduction to the return of the child despite a contrary decision issued in the State of refuge, is still operating. However, the recourse to the overriding mechanism is permitted only when the decision of non-return has been issued pursuant Article 13(1)(b) (grave risk of harm) and 13(2) (objection of the child) of the 1980 Hague Convention. Moreover, the court of the child’s habitual residence can issue such a decision only in the context of a proceedings on the merits of parental responsibility, thus reaching a stable assessment on the future of the child. Therefore, the risk of multiple transfers is mitigated.

On other aspects, the discipline is more detailed. Some innovations, inspired to the will to give substantial content to the child’s best interests, are to be welcomed.

The whole Article 24 of the Regulation is dedicated to the celerity of return proceedings: a term of six week after the lodgment of the application is prescribed at each instance, unless ‘exceptional circumstances’ make it impossible to respect this time limit. As concerns appeal proceedings, the term starts to run at the moment in which ‘the required procedural steps have been taken and the court is in a position to examine the appeal’. Similar obligations are placed upon Central Authorities, which shall act expeditiously in processing return applications. The same purpose inspires the possibility to declare return orders provisionally enforceable, notwithstanding any appeal (Article 27(5)). The enforcement proceedings themselves must be fast (Article 28).

The Regulation also provides that the requested court may invite the parties to consider mediation or other ADRs, unless it would result contrary to the best interests of the child, not appropriate in the particular case or would unduly delay the proceedings (Article 25). The explicit mention of this possibility follows the specific attention that the family law scholars and practitioners are devoting to mediation, the potentialities of which are undoubtful. For this reason, the recast could have devoted even more structured discipline to mediation, currently mentioned only in the Chapter dedicated to international child abduction.

The best interests of the child also play a crucial role when it comes to provisional measures aimed at ensuring a contact between the child and the person seeking the return of the child (Article 27(2)). The requested court, while deciding on the return, may also adopt provisional, including protective, measures that are  recognized and enforced in all other Member States until the court with jurisdiction as to the substance intervenes (as results from Articles 27(5), 35(2) and 36(1)(c), as well as Recitals 30, 44-46 and 59).

Autonomy, Flexibility and Protection of the Rights of the Child: The Role of Cooperation

Overall, the approach of the EU lawmaker with the Brussels II ter Regulation has resulted in the will to balance the enhancement of party autonomy, the need to grant judicial and non-judicial authority a certain degree of flexibility and the protection of the fundamental rights of the child.

As already mentioned, the latter has inspired some detailed obligations concerning, inter alia, the hearing of the child and a specific attention towards the discipline of international child abduction proceedings. While party autonomy has been empowered also in the context of parental responsibility, through the new discipline on choice of court agreements and implicit acceptance of jurisdiction, those rules have been surrounded by safeguards aimed at protecting the child’s best interests. The same reasoning applies to authentic instruments and agreements circulating according to Article 65(2) of the regulation, which are subject to the grounds for refusal of recognition or enforcement provided by Article 68(2) and (3). Specific reference is made to the possibility for the child to express his or her own views, which may result compressed in the context of out-of-court proceedings or private arrangements.

At the same time, the objective of protect children and their best interests has sustained the introduction of a certain degree of flexibility to national authorities: for instance, the possibility to issue cross-border protective orders pending an international child abduction proceedings, or to suspend the enforcement of a decision when the physical or the psychological wellbeing of the child is at risk.

In this context – and with a view to those objectives – the new provisions of the regulation dedicated to cooperation are of particular interests. Direct cooperation and communication between courts and between Central Authorities are now subject to a more detailed discipline and, therefore, encouraged. Chapter V is entirely dedicated to the role and obligations of Central Authorities, when cooperating between themselves and with courts. Other provisions are to be found in other parts of the regulation. Article 86 concerns direct judicial communication and provides that courts from different Member States should cooperate and communicate directly in all cases that are appropriate (for instance, when a court takes provisional or protective measures, it shall inform the court of another Member State having jurisdiction). The dialogue between judicial authorities can effectively contribute to the good administration of cross-border situations, as well as support swifter procedures, with positive repercussions on children. Of course, it could provide specialized training for judges, who need to be acquainted with this possibility and perhaps acquire new skills.

Those and other provisions contribute to a more fragmented discipline compared to the Brussels II bis regulation. On the other hand, if well applied, they may contribute to a better enhancement of the child’s best interests in the EU judicial space. As always, the application of the tool in practice will show its fruits.

The Nigeria Group on Private International Law “(NGPIL”) invites submissions for the annual NGPIL Conflict of Laws’ Competition. The winner will be awarded for the best essay on any aspect of Nigerian conflict of laws. Entries will be accepted from the following: an undergraduate and/or postgraduate scholar studying in Nigeria, or any Nigerian lawyer five years call or below practising and residing in Nigeria. The essay should be unpublished at the time of submission. Submitted essays should be in the English language. Submitted essays should also be within five to eight thousand words. Competitors may be citizens of any nation, age or gender but must be an undergraduate and/or postgraduate scholar studying in Nigeria, or any lawyer below five years post-call experience practising and residing in Nigeria.

The first prize is ?120,000 Naira (NGN), and the winner of the competition will be encouraged to publish the paper in any high-quality peer reviewed journal on private international law (conflict of laws). The second prize is ?80,000 Naira (NGN), and third prize is ?50,000 Naira (NGN). The prize is sponsored by and will be awarded by NGPIL.

Submissions to the Prize Committee must be received no later than January 9, 2023. Entries should be submitted by email in Word or pdf format. The winner will be announced no later than 2 months after the deadline. Decisions of the NGPIL on the winning essay and on any conditions relating to this prize are final. Submissions and any queries should be addressed by email to ngpilaw@gmail.com. All submissions will be acknowledged by e-mail.

Élection des présidents de chambre du Tribunal de l’Union européenne

Meta Platforms e.a. (Conditions générales d’utilisation d’un réseau social)
Principes du droit communautaire
Selon l’avocat général Rantos, une autorité de la concurrence peut, dans l’exercice de ses compétences, tenir compte de la compatibilité d’une pratique commerciale avec le règlement général sur la protection des données