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On 23 and 24 September 2021, the GLaw Research Network (Maastricht University) will host an “hybrid” workshop on Article 47 of the EU Charter and effective judicial protection: The National Courts’ perspective.

This will be the second part of a broader research on effective judicial protection in the EU legal order. The first part focused on the Court of Justice’s perspective and led to an online workshop last April (reported here). The second workshop will adopt a comparative law approach within the national legal orders of the EU Member States.

The principle of effective judicial protection is one of the cornerstones of the EU legal order. Mentioned by the Court of Justice for the first time in the 1980s, and originally emanating from Articles 6 and 13 ECHR, this principle had a pivotal role in ensuring access to adequate remedies to protect the rights deriving from Union law. Since its inception, this principle was linked also to the protection of the rule of law, one of the founding values of the EU. Effective judicial protection is therefore one of the facets of the EU constitutional identity. Following the entry into force of Lisbon Treaty, this principle has been constitutionalised in Article 19 TEU and Article 47 of the EU Charter of Fundamental Rights, the latter laying down the right to an effective remedy and to a fair trial. Currently, Article 47 of the EU Charter is the most invoked EU Charter provision before national and EU courts.

The workshop will offer a comparative overview of the national case law applying Article 47 Charter and the principle of effective judicial protection. The speakers will collectively evaluate the systemic impact of Article 47, its interplay with other domestic and European provisions guaranteeing effective judicial protection, as well as the level of convergence (or divergence) in the national courts’ approaches.

The papers presented at the workshop will be included in the second volume of the book project ‘Article 47 of the EU Charter and effective judicial protection’ led by Mariolina Eliantonio, Giulia Gentile and Matteo Bonelli, all members of the GLaw-Net Research Network.

The full program is available here and registration is open here.

This Thursday, the Court of Justice delivered its judgment in the case UM, C-277/20, where it clarifies whether a donation mortis causa may fall within the scope of the notion of “agreement as to succession” in the sense of the Succession Regulation.

The request for a preliminary ruling in this case arises out of proceedings in Austria on the inscription in the land registry of the property right to real estate situated in that Member State. The requested inscription is supposed to be made on the basis of a contract of donation mortis causa in respect to that real estate, entered into between two German nationals habitually resident in Germany. Prior to the request for the inscription, the succession proceedings have been opened before a German court for the last place of residence of the donor.

Before the Austrian courts, the request for the inscription of the propriety right have been already rejected by two instances and ultimately the Oberster Gerichtshof referred to the Court the preliminary questions that read as follows:

Is Article 3(1)(b) of [the Succession Regulation] to be interpreted as meaning that a contract of donation mortis causa entered into between two German nationals habitually resident in Germany in respect of real estate located in Austria, granting the donee a right having the character of an obligation against the estate to registration of his title after the donor’s death pursuant to that contract and the donor’s death certificate, that is without the intervention of the probate court, is an agreement as to succession within the meaning of that provision?

If the answer to the above question is in the affirmative: Is Article 83(2) of [The Succession Regulation] to be interpreted as meaning that it also regulates the effect of a choice of applicable law made before 17 August 2015 for a contract of donation mortis causa that is to be qualified as an agreement as to succession within the meaning of Article 3(1)(b) of [the Succession Regulation]?

In his Opinion presented this July, AG Richard de la Tour considered that Article 3(1)(b) of the Succession Regulation must be interpreted to the effect that the notion of “agreement as to succession” includes donation contracts inter vivos, by which, in favor of the donee, the transfer of the ownership of one or several assets even only partially accounting for the hereditary estate of the donor does not take place until the death of the donor.

In its judgments, the Court also pronounces itself in favour of the interpretation according to which a contract of donation mortis causa is to be qualified as an “agreement as to succession”.

The reasoning of the Court commences with the juxtaposition of exclusion from the scope of the application of the Succession Regulation provided for in its Article 1(2)(g) [“shall be excluded (…) property rights (…) created or transferred otherwise than by succession, for instance by way of gifts”], on the one hand, and definition of the notion of “agreement as to succession” in the sense of Article 3(1)(b) of the Succession Regulation [“an agreement resulting from mutual wills, which, with or without consideration, creates, modifies or terminates rights to the future estate or estates (…)], on the other hand (paragraph 27).

The Court stresses then the importance of autonomous and uniform interpretation of the notions of the Succession Regulation (paragraph 29) and contends that the very wording of the definition of the notion of “agreement as to succession” indicates that this notion covers also transfers relating to future estates (paragraph 30).

By contrast, the second preliminary question is answered in the negative. For the Court, as nothing indicates that a choice of law applicable have been made to succession as a whole, Article 83(2) of the Succession Regulation is not applicable to the case at hand. As such, the choice made solely with regards to the agreement as to succession is not governed by Article 83(2) (paragraph 39).

The judgment can be found here (in German and French so far).

AG Saugmandsgaard Øe observes in his Opinion presented today in the case HRVATSKE ŠUME, C-242/20, the Court of Justice has already faced requests for a preliminary ruling where arose a question on qualification of an action for unjust enrichment for the purposes of the Brussels I Regulation. He notes that no conclusive finding has been made so far as to its qualification as a “matter relating to tort, delict or quasi-delict” in the sense of Article 5(3) of the Regulation (point 4). By contrast, the present case is supposed to create an opportunity to provide a definitive conclusion to the jurisprudential saga in question.

It is noteworthy that the case itself presents a nuance: the unjust enrichment is said to have occurred in enforcement proceedings which were carried out, although they should not have been, and now reimbursement of the amount which was unjustly levied in enforcement proceeding is being sought before the Croatian courts. The nuance is addressed in the second preliminary question.

At the request of the Court, the Opinion does, however, elaborate only on the first preliminary question that reads as follows:

Do actions for recovery of sums unduly paid by way of unjust enrichment fall within the basic jurisdiction established in the [Brussels I Regulation] in respect of “quasi-delicts” since Article 5(3) thereof provides inter alia: “A person domiciled in a Member State may, in another Member State, be sued … in matters relating to … quasi-delict, in the courts for the place where the harmful event occurred or may occur”?

In his Opinion, AG Saugmandsgaard Øe proposes to take a step back and view the preliminary question in a broader perspective. For him, it is necessary to determine, in the first place, whether an action for unjust enrichment falls within the scope of Article 5(1) of the Brussels I Regulation and, only in the negative, in the second place, whether it fall within the scope of Article 5(3) of the Regulation (point 26). He established therefore an order of preference when it comes to the contract/tort distinction under the Regulation.

Having adopted that approach, he concludes that an action for unjust enrichment is not a “matter relating to a contract” in the sense of Article 5(1) of the Brussels I Regulation, save where it is closely connected with a preexisting (or alleged to exist) contractual relationship (points 44-52). Nor it is a “matter relating to tort, delict or quasi-delict” within the meaning of Article 5(3) of the Regulation (point 79).

The Opinion contains an in-depth discussion on the parallels with the Rome I/Rome II Regulations and, in this regard, the outcome of the reasoning followed by AG Saugmandsgaard Øe may bring to mind the one that AG Bobek proposed in the context of actio pauliana in his Opinion delivered in the case Feniks, C-337/17.

The Opinion of AG Saugmandsgaard Øe is available here (no English version so far).

At least from the perspective of private international law, this Thursday can easily go down in history as one of the busiest days in the Court of Justice agenda. Its complete outline can be found here, due to courtesy of Marta Requejo Isidro. Stay tuned also for our next updates on the cases of this morning.

The present post concerns the Opinion presented by AG Rantos in the case TOTO, C-581/20. At the request of the Court, the analysis provided for in the Opinion is limited to the second preliminary question on the interpretation of Article 35 of the Brussels I bis Regulation. The second question reads as follows:

After the right to make an application for provisional/protective measures has been exercised and the court having jurisdiction as to the substance of the matter has already ruled on that application, is the court seised of an application for interim relief on the same basis and under Article 35 of [the Brussels I bis Regulation] to be regarded as not having jurisdiction from the point at which evidence is produced that the court having jurisdiction as to the substance of the matter has given a ruling on that application?

In essence, the question seeks to establish whether a Bulgarian court not having jurisdiction as to the substance of the matter is precluded from pronouncing provisional/protective measures under Article 35 of the Brussels I bis Regulation in a situation where a Polish court having jurisdiction as to the substance of the matter has already given a ruling on an application for identical provisional/protective measures and rejected the application.

In brief, AG Rantos argues that in a situation described in the preliminary question the court not having jurisdiction as to the substance of the matter should not pronounce the provisional/protective measures.

In general terms, the Opinion contends that the rules on litispendence provided for in Article 29 of the Brussels I bis Regulation do apply in the context of proceedings for provisional/protective measures. Such finding of a general nature seems to suggest that the court subsequently seized under Article 35 of the Regulation with an identical application for provisional/protective measures should not give a ruling on that application (point 50).

The Opinion then goes on to elaborate on the more specific elements of the case at hand which seemed to inspire the second preliminary question: firstly, the impact of the choice of court clause in favour of the Polish courts on the applicability of Article 35 of the Regulation (in other terms: whether the Polish courts have exclusive jurisdiction also as to the provisional/protective measures); secondly, the actual connection between the measures sought and the territory of Bulgaria (the question being left open for the referring court to asses, point 74); thirdly, the relevance, before the Bulgarian court, of the Polish court decision refusing the provisional/protective measures (point 54).

Concerning the last element, AG Rantos observes that it is not clear whether the ruling of a Polish court refusing to grant provisional/protective measures is final or not (point 76). Thus, he elaborates on these two different hypothesis. In essence, according to the Opinion, the court subsequently seized should not give ruling on the application for provisional/protective measures [either because in a mutual trust oriented manner it should refrain from doing so because such ruling would be irreconcilable with a previous definitive ruling handed down by a Polish court (point 79) or – in the absence of such definitive ruling – because the rules on litispendence require the court subsequently seized to decline jurisdiction in favour of court previously seized (point 88)].

The Opinion is available here (no English version so far).

On Friday 17 September 2021, the Institute for Comparative Law, Conflict of Laws and International Business Law of Heidelberg University (Prof. Dr. Dr. h.c. Thomas Pfeiffer) will host the EFFORTS German Exchange Seminar. This half-day online conference is held within the framework of the project “EFFORTS – Towards more effective enforcement of claims in civil and commercial matters within the EU”, funded by the European Commission and conducted by the University of Milan (coord.), the Max Planck Institute Luxembourg for Procedural Law, Heidelberg University, the Free University of Brussels, the University of Zagreb, and the University of Vilnius.

The program for the German Exchange Seminar is available here (PDF, in German). Participation is free of charge. Participants are kindly requested to pre-register by sending an email to sekretariat.pfeiffer@ipr.uni-heidelberg.de.

The EFFORTS-project tackles in particular the European Enforcement Order Regulation, the European Payment Order Regulation, the European Small Claims Regulations and the European Account Preservation Order Regulation. Ultimately, it aims to assess the functioning and the effectiveness of cross-border enforcement within the EU. More information on EFFORTS and its research outputs can be found on the project website and in various newsletters previously posted on conflictoflaws.net here, here, and here.

This project was funded by the European Union’s Justice Programme (2014-2020). The content of this study represents the views of the authors only and is their sole responsibility. The European Commission does not accept any responsibility for use that may be made of the information it contains.

Project JUST-JCOO-AG-2019-881802
With financial support from the Civil Justice Programme of the European Union

Bundesamt für Fremdenwesen und Asyl (Demande ultérieure de protection internationale )
Espace de liberté, sécurité et justice
Le droit de l’Union s’oppose à ce qu’une demande ultérieure de protection internationale soit rejetée comme irrecevable au seul motif qu’elle est fondée sur des faits qui existaient déjà lors de la procédure relative à la première demande

Comité Interprofessionnel du Vin de Champagne
Agriculture
La Cour précise les conditions de protection dont bénéficient les produits couverts par une AOP prévues par le règlement portant organisation commune des marchés des produits agricoles

The Faculty of Law at Ozyegin University is organizing its first online Private International Law Symposium on the theme of “Current Issues in Private International Law – MENA & EU”.

The symposium aims to bring together MENA and EU scholars working in the field of private international law field. The symposium is to be held on 19 November 2021.

The organizers are pleased to invite interested persons to submit abstracts of papers relating to the themes of the symposium by 20 September 2021.

All necessary details about the event can be found here: https://events.ozyegin.edu.tr/tr?myozu=1#/0/detail/17152/current-issues-in-private-international-law-mena-eu-call-for-papers

Any inquiries should be directed to Mrs. Jocelyne Alayan at jocelyne.alayan@ozyegin.edu.trseminar_pil@ub.ac.id.

The Permanent Bureau of the Hague Conference on Private International Law is seeking at least three interns to work on the following Conventions and projects during the first half of 2022:

• the 2000 Protection of Adults Convention and the 2007 Child Support Convention and Protocol
• the 1993 Intercountry Adoption Convention , and the Parentage / Surrogacy Project
• the 1980 Child Abduction Convention, the 1996 Child Protection Convention, the Family Agreements Involving Children Project
• the 1961 Form of Wills Convention and the 1970 Divorce Convention
• the 1961 Apostille Convention
• the Tourists and Visitors (Online Dispute Resolution) Project
• the 1985 Trusts Convention, the 2006 Securities Convention and the Digital Economy (inc. DLT) Project
• the 2005 Choice of Court Convention, the 2019 Judgments Convention, the Jurisdiction Project, the 2015 Choice of Law Principles, the 1965 Service Convention, the 1970 Evidence Convention and the 1980 Access to Justice Convention.

Applications will be accepted until 18:00 hours (CEST) on 24 September 2021.

See here for more details.

Par un arrêt du 15 juillet 2021, la Cour de justice s’arrête sur les conditions d’application de l’article 8 du règlement « Rome I » du 17 juin 2008, qui permet aux parties à un contrat de travail de choisir, dans certaines limites, la loi applicable à la relation de travail.

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Licenciement - Renvoi devant la CJUE

Licenciement collectif

On 14 October 2021 an online roundtable will take place devoted to the private international law issues relating to the recognition and enforcement of foreign (mostly US) punitive damages judgments in countries outside of Europe.

The event is organised by the Maastricht University at the initiative of Lotte Meurkens and Cedric Vanleenhove.

An often-heard obstacle [to the recognition of judgments awarding punitive damages] is the public policy-exception. In a number of European countries, for example Italy, Spain and Germany, the supreme courts have rendered decisions on this matter.

Following the decision of the Italian supreme court of 2017, a conference was organised in Milan by the Department of Italian and Supranational Public Law of the University of Milan in 2018. A program of this conference, in which the organizers of this M-EPLI roundtable took part, can be found here. During the conference, the private international law question has been addressed from the perspective of several European countries.

We have decided to broaden this question and look into countries outside of Europe because extensive research into such jurisdictions has not been done yet. In this M-EPLI roundtable we bring together a group of experts who will reflect on the current position of their country (and surrounding countries). The insights gained through this research could be useful for the ongoing debate on the future of punitive damages in Europe.

Speakers include Cedric Vanleenhove (Ghent University / University of Liège), Béligh Elbalti (Osaka University), Wenliang Zhang (Renmin University of China), María Guadalupe Martínez Alles (IE University), Vsevolod Chernyy (Lomonosov Moscow State University) and Lotte Meurkens (Maastricht University).

More information available here.

A short (and late – I am in mopping-up mood it seems) post on the AG’s Opinion in Case C‑124/20 Bank Melli Iran – in which he also cites my former colleague proximus Cédric Ryngaert. Hogan AG’s Opinion addresses the rock and the hard stone, or the devil and the deep blue sea dilemma facing corporations in the light of diverging export laws /sanctions law. May a German bank refuse to do business indeed end business with an Iranian bank, under pressure from US secondary export control laws?

More on the external relations aspects of the case is ia here and of course in the Opinion itself. My interest here lies in part of the Opinion: the AG’s view that an EU undertaking seeking to terminate an otherwise valid contract with an Iranian entity subject to the US sanctions must demonstrate to the  satisfaction of the national court that it did not do so by reason of its desire to comply with those sanctions. It must show other motives, such as ethical reservations about doing business with Iran. These reservations may be documented by a genuinely rolled-out CSR compliance program: (88)

‘In order, however, to establish that the reasons given in respect of any decision to terminate a contract on this ground were in fact sincere, the person referred to in Article 11 of the EU blocking statute in question − in the present case Telekom Deutschland – would need, in my view, to demonstrate that it is actively engaged in a coherent and systematic corporate social-responsibility policy (CSR) which requires them, inter alia, to refuse to deal with any company having links with the Iranian regime.’

CSR programs have been used as carrot ia in Trafigura and as stick ia in Vedanta. The view here is very much the carrot or if one likes, the shield function: CSR policies as a defensive weapon against the rock and hard stone dilemma. That is most interesting for the EU corporations concerned and likely to draw the attention of export sanctions practitioners (both in-house and out) to part of the corporation’s blurb which they may otherwise ignore. Yet it may put too much emphasis on fairly unregulated CSR policy drafting, and compliance issues.

Geert.

The Scientific Committee of the European Association of Private International Law has approved the establishment of a Working Group on a future European Regulation on International Property Law.

Aims

The aims of the Working Group will be to exchange information on current legislation and case law in the field of international property law, with a focus on (but not limited to) the EU Member States and to draw up proposals for law reform and codification of international property law both on the level of the EU and on national/international levels.

Composition

The Working Group is chaired by Eva-Maria Kieninger.

It is composed of the following members: Janeen Carruthers (University of Glasgow), Gilles Cuniberti (University of Luxemburg), Morten Fogt (University of Aarhus), Teemu Juutilainen (University of Turku), Eva-Maria Kieninger (University of Wuerzburg), Teun Struycken (University of Utrecht), Jonathan Schenk (University of Antwerpen), Afonso Patrão (University of Coimbra), and Juliana Rodríguez Rodrigo (Madrid)

The Working Group is still considering applications for membership, especially from Eastern European Member States.

Consultative Committee

The Working Group will include a limited number of Members. Other Members interested in following its progress may join the Consultative Committee of the Working Group.

The Working Group wil report and seek comments from the Consultative Committee at least once a year.

Members intersted in joining the Consultative Committee may contact its chair, Gilles Cuniberti (gilles.cuniberti@uni.lu).

First Meeting

The Working Group will hold its first meeting in Wuerzburg in November 2021.

Further Information

Further information on the project can be found on the Working Group’s webpage and sought from its chair, Eva-Maria Kienienger (kieninger@jura.uni-wuerzburg.de).