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Chambre de l'instruction - Douanes

In Greenaway v Parrish & Ors [2021] EWHC 1506 (QB) ( I signaled it a while ago but the case has only recently appeared on BAILII), Spencer J had to consider the practical implications of the impossibility of referrals to the Court of Justice of the EU, by UK judges. Plenty of pending cases were introduced before Brexit day. Moreover, an even larger number of cases will be subject to retained EU law.

In a specific conflict of laws sense, this raises the particular (procedural and substantive) issue of foreign law being fact and hence needing to be proven. Retained and /or previously applicable EU law, will not be foreign law as such, yet clearly it is law of a different nature than UK statutory and common law across the isles.

The practical implications of all this have now surfaced in Greenaway. Following CJEU CILFIT, EU law is (usually) equally authentic in 22 languages. In the case at hand, this centres upon the meaning of the word ‘stolen’, in the motor insurance Directive 2009/103. How should a judge inform her /himself of the meaning of the word in the 22 languages, and potentially also of the implementation of the Directive across the Member States. 12 King’s Bench Walk have analysis of the case here. As they note, Mr Justice Spencer granted permission to each party to adduce four foreign law experts reports in EU jurisdictions of their choosing, so that the relevant foreign language versions of the Directive could be understood. He also gave permission for those experts to give evidence as to the implementation of the Directive in those member states, that material being part of the context in which the point at issue had to be decided.

This is an important procedural point which no doubt will surface in a variety of shapes in years to come.

Geert.

Languages and retained EU law
Of much note indeed
Greenaway & Rocks v Covea Insurance ea
How should the E&W courts deal with the CILFIT principle of 22 authentic language versions (see https://t.co/TE7wheSbTP) viz 'stolen' in Dir 2009/103
paging @Prof_KMcA @stefaanvdjeught https://t.co/0XhfqUdIbL

— Geert Van Calster (@GAVClaw) March 18, 2021

Sharpston / Conseil et Conférence des Représentants des Gouvernements des États membres
Droit institutionnel
La Cour confirme le rejet de deux recours en annulation introduits par Mme Eleanor Sharpston, aux fins de faire constater l’illégalité de la fin anticipée de son mandat d’avocate générale du fait du retrait du Royaume-Uni de Grande Bretagne et d’Irlande du Nord de l’Union européenne

The Minerva Centre for Human Rights at Tel Aviv University is organising an international socio-legal workshop that will explore the impact of the Covid-19 crisis and its regulation on cross-border families. Topics include issues of belonging, travel restrictions, civil rights, birth across borders, international child abduction and transnational homes in pandemic times.

The workshop will take place on 22 June 2021. The  full program and registration form are available.

For additional information, contact eynatmey@tauex.tau.ac.il

The author of this post is Estelle Gallant, professor of private law at the University of Toulouse 1 Capitole.

In a judgment of 27 January 2021 the French Supreme Court for civil and criminal matters (Cour de cassation) applied the Hague Convention of 13 January 2000 on the International Protection of Adults (the ‘Adults Convention’) in a case concerned with a mandate in case of incapacity. More specifically, the issue was the content of the distinction between the conditions of validity of the mandate and its manner of exercise.

The Adults Convention

Currently applicable in 13 States (Austria, Belgium, Cyprus, Czech Republic, Estonia, Finland, France, Latvia, Monaco, Portugal, Switzerland and the United Kingdom), the 2000 Hague Convention takes into consideration a particular mechanism enabling an adult to organise in advance his or her personal or property protection for the time when he or she is no longer able to provide it. This legal form of mandate in case of incapacity, which was well known in North America and not very widespread in Europe at the time the Convention was drafted, is now more common in Europe. It exists in French law in the form of the “future protection mandate” and in Swiss law in the form of the “mandate for incapacity”. The mandate in case of incapacity is governed in the Adults Convention by Articles 15 and 16.

Article 15 refers to “powers of representation granted by an adult, either under an agreement or by a unilateral act, to be exercised when such adult is not in a position to protect his or her interests”. The adult thus entrusts a person or an institution of his or her choice with powers of representation for the future in the event that he or she is unable to protect his or her interests. Such mandate may take the form of an agreement, but also of a unilateral legal act. It may concern the management of property and affairs, but also the protection of the person, his or her care or the decisions to be taken at the end of life, in order to put an end to over-treatment for example. Generally speaking, the legislation establishing this mandate in case of incapacity makes the starting point of the mandate’s effects depend on a judicial and/or medical finding of incapacity.

Article 15(1) of the Convention designates the law of the adult’s habitual residence at the time the instrument is drawn up as applicable to mandates in case of incapacity. Article 15(2) also offers the adult the possibility of choosing the applicable law among three: a) his or her national law, b) the law of a former habitual residence, c) the law of the place where his or her property is located. Irrespective of how it is designated, the applicable law applies to “the existence, extent, modification and extinction of powers of representation” granted by the adult. However, the manner of exercise the powers conferred by the mandate is governed by the law of the State where it is exercised, according to Article 15(3). It follows that whenever the mandate is to be implemented in a State other than the one whose law is applicable, the manner of exercise the mandate will be governed by a different law than the one governing the mandate.

The Ruling – Distinguishing between Validity and Exercise of Mandates

This was the issue raised by the case before the Cour de cassation. A mandate in case of incapacity had been established in Switzerland, where the adult had his habitual residence, before moving to France. As he wished to implement the mandate in France, one of his sons obtained that the mandate be verified formally and “stamped” by an officer of the court (visé par le greffier du Tribunal) in accordance with French procedure. However, another son of the grantor brought proceedings to challenge the implementation of the mandate. He won before the court of appeal of Pau, which annulled the clerk’s stamping on the grounds that it should not have been granted because the mandate did not include any means of controlling the representative of the adult.

The son who had obtained the stamping appealed to the Cour de cassation, which allowed the appeal. The Court held that by requiring that the clerk’s stamping be granted only if the mandate expressly provided any arrangements with respect to the control of the representative, the court of appeal had actually imposed conditions which were not concerned with the implementation of the mandate, but with its validity.

According to the Cour de Cassation, the implementation in France of a Swiss mandate in case of incapacity could not be subject to a condition of validity of French law that was not imposed by Swiss law. The provisions of the Adults Convention are thus perfectly respected: they imply making a distinction between conditions of validity and manner of exercise of mandates in case of incapacity.

The Court of Justice (Grand Chamber) delivered today its decision in case C‑645/19 (Facebook Ireland Ltd, Facebook Inc., Facebook Belgium BVBA, v Gegevensbeschermingsautoriteit), which is about the cross-border processing of personal data:

“1. Article 55(1), Articles 56 to 58 and Articles 60 to 66 of Regulation (EU) 2016/679 […] on the protection of natural persons with regard to the processing of personal data and on the free movement of such data […] read together with Articles 7, 8 and 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that a supervisory authority of a Member State which […] has the power to bring any alleged infringement of that regulation to the attention of a court of that Member State and, where necessary, to initiate or engage in legal proceedings, may exercise that power in relation to an instance of cross‑border data processing even though it is not the ‘lead supervisory authority’, within the meaning of Article 56(1) of that regulation, with respect to that data processing, provided that that power is exercised in one of the situations where Regulation 2016/679 confers on that supervisory authority a competence to adopt a decision finding that such processing is in breach of the rules contained in that regulation and that the cooperation and consistency procedures laid down by that regulation are respected.

2. Article 58(5) of Regulation 2016/679 must be interpreted as meaning that, in the event of cross-border data processing, it is not a prerequisite for the exercise of the power of a supervisory authority of a Member State, other than the lead supervisory authority, to initiate or engage in legal proceedings, within the meaning of that provision, that the controller with respect to the cross-border processing of personal data against whom such proceedings are brought has a main establishment or another establishment on the territory of that Member State.

3. Article 58(5) of Regulation 2016/679 must be interpreted as meaning that the power of a supervisory authority of a Member State, other than the lead supervisory authority, to bring any alleged infringement of that regulation to the attention of a court of that Member State and, where appropriate, to initiate or engage in legal proceedings, within the meaning of that provision, may be exercised both with respect to the main establishment of the controller which is located in that authority’s own Member State and with respect to another establishment of that controller, provided that the object of the legal proceedings is a processing of data carried out in the context of the activities of that establishment and that that authority is competent to exercise that power, in accordance with the terms of the answer to the first question referred.

4. Article 58(5) of Regulation 2016/679 must be interpreted as meaning that, where a supervisory authority of a Member State which is not the ‘lead supervisory authority’ […] has brought a legal action, the object of which is an instance of cross-border processing of personal data, before 25 May 2018, that is, before the date when that regulation became applicable, that action may, from the perspective of EU law, be continued on the basis of the provisions of Directive 95/46/EC […] on the protection of individuals with regard to the processing of personal data and on the free movement of such data, which remains applicable in relation to infringements of the rules laid down in that directive committed up to the date when that directive was repealed. That action may, in addition, be brought by that authority with respect to infringements committed after that date, on the basis of Article 58(5) of Regulation 2016/679, provided that that action is brought in one of the situations where, exceptionally, that regulation confers on a supervisory authority of a Member State which is not the ‘lead supervisory authority’ a competence to adopt a decision finding that the processing of data in question is in breach of the rules contained in that regulation with respect to the protection of the rights of natural persons as regards the processing of personal data, and that the cooperation and consistency procedures laid down by that regulation are respected, which it is for the referring court to determine.

5. Article 58(5) of Regulation 2016/679 must be interpreted as meaning that that provision has direct effect, with the result that a national supervisory authority may rely on that provision in order to bring or continue a legal action against private parties, even where that provision has not been specifically implemented in the legislation of the Member State concerned”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=242821&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=14254177

Aldricus – Makanan ialah zat yang dikonsumsi oleh makhluk hidup untuk memperoleh gizi yang selanjutnya dibuat jadi energi. Karbohidrat, lemak, protein, vitamin, dan mineral sebagai nutrien pada makanan yang diperlukan oleh badan. Cairan yang digunakan untuk tujuan ini kerap disebutkan minuman, tapi kata ‘makanan’ bisa juga digunakan. Makanan yang dimakan oleh manusia disebutkan pangan, sedang makanan yang dimakan oleh hewan disebutkan pakan.

Kualitas satu makanan bisa dipandang dari energi makanan dan usia taruh yang dipunyainya. Mengonsumsi makanan secara tidak pas atau kurang cukup akan mengakibatkan malnutrisi, yang bisa berbuntut pada beragam masalah kesehatan.

Disamping itu, beberapa macam makanan dapat memacu munculnya alergi makanan saat dimakan oleh pribadi yang peka. Bahan makanan dibuat jadi beragam sajian yang berbeda dan jadi keunikan satu kebudayaan atau warga di lokasi geografis tertentu. Makanan sebagai subyek yang didalami dalam beragam pengetahuan, seperti pengetahuan pangan, pengetahuan nutrisi atau gizi, dan gastronomi.

2017 itu trendingnya makanan sehat . Maka, untuk kamu yang ingin ngikutin trend saat ini, mulai seringkali dech searching resep makanan sehat. Satu diantaranya alpukat yang menjadi bahan makan harus buat trend makanan sehat tahun 2017 ini. Yuk lihat resepnya!

1. Avocado Toast

Jika kamu umumnya makan pagi dengan toast dan selai, coba saat ini tukar menu sarapanmu dengan toast dan alpukat. Sama gampangnya dan rasanya juga lebih nikmat dan sehat. Triknya mudah, mengambil daging buah alpukat dan remukin kasar dengan memakai sendok, jadi dech seperti selai kasar. Jika kamu ingin menambah rasa, kamu dapat taburin chili powder di atasnya.

2. Avocado Steak

Alpukat pas sekali lho buat jadi rekan makan steak. Jika umumnya kamu cicipin dengan sauce barbecue, saat ini kamu punyai rekomendasi lain yakni sauce alpukat. Triknya sama gampangnya seperti buat selai alpukat untuk toast-mu barusan.

3. Avocado Salsa

Sukai makan nachos gunakan sambal salsa? Nach, saat ini kamu dapat tambahin akar alpukat dalam sauce salsa itu. Dengan kombinasi tomat, bawan bombay dan alpukat, ditanggung kesan makan nachos gunakan sauce salsamu menjadi lebih terasa.

4. Avocado Tacos

Siapa ngomong goreng-gorengan tidak sehat? Jika bahan intinya alpukat, tentu masih sehat, donk? Nach, buat alternatif daging-dagingan, kamu dapat buat fried avocado buat jadi isian Tacos ini. Tambahin dengan sauce salsa atau irisan tomat dan paprika, Tacos a la kamu tentu lebih nikmat!

5. Baked Avocado

Alpukat bisa juga kamu jadiin makanan fancy lho dengan memadukannya dengan rebusan telur 1/2 masak di atasnya. Trus, untuk sentuhan akhir, kamu dapat kasih taburan keju parmesan atau chili powder dech. Hm, nikmat!

6. Pea dan Avocado Pizza

Saat ini, style makan pizza dapat semakin sehat kembali dengan menukar topping-nya. Jika umumnya kamu pakai sauce barbecue, saat ini kamu dapat tukar dengan sauce alpukat dengan potongan tipis dan potongan buah-buahan yang lain. Tidak kalah menarik dech visualnya seperti pizza komersial yang lain!

7. Avocado Soup

Sukai malas makan buah? Jus saja! Dengan percampuran beragam bahan buah-buahan dan makanan jadi sup, tentu kamu menjadi lebih nikmat melahapnya. Kasih topping buah-buahan lain yang lebih fresh seperti mangga.

8. Salmon Avocado Sauce

Salmon dan sauce alpukat sebagai salah satunya kombinasi yang tidak ada yang dapat menyaingi. Dengan memakai alpukat yang telah diblender secara lembut, tentu rasa Baked Salmonmu menjadi lebih nikmat dan sehat. Ingin mencoba?

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The post 8 Cara Sehat Nikmatin Alpukat di Sajian Makananmu appeared first on Aldri Blog.

Juridictions correctionnelles - Peines

Responsabilité pénale

Instruction – Droits de la défense

The post you are reading is the 500th post of the blog of the European Association of Private International law since the blog was launched in November 2019.

How have things gone for the blog over this time? The statistics below provide some answers.

Blog Subscribers

The number of those who wish to be notified by e-mail of new new posts has steadily grown over the months. They currently exceed 540.

Views

How many people come and visit us? The figure below shows the number of times a unique visitor has viewed the blog or any of its posts. To date, views exceed 170.000 in the aggregate.

Geo Stats

Where do our readers come from? The color gradation in the maps below shows the countries where blog visitors are based: the greener the country, the larger its share of the overal blog viewers.  

World

Europe

Top 10 – World Countries
Germany: 10,55%
Italy: 10,22%
Luxembourg: 9,66%
Netherlands: 7,86%
United Kingdom: 7,83%
France: 7,32%
Spain: 6,17%
United States: 4,56%
Belgium: 4,13%
Poland: 2,94%

Post Categories

Posts are grouped, according to their content, into different categories. The five categories with the most posts are, in order, scholarship, case law, normative texts, views and comments and conferences and academic events.

Comments

The aim of the EAPIL blog is not just to inform readers but also to foster debate on any issues relating to private international law, consistent with the goals of the Association. Readers’ comments are crucial to that. They are very welcome! So far, blog posts have received more than 230 comments.

The Most Commented Post

The post that has received the most comments is French Supreme Court Redefines Territoriality of Enforcement over Debts, by Gilles Cuniberti, published on 18 March 2021. It discussed two judgments delivered by the French Supreme Court for civil and criminal matters which extended the reach of French attachments to any claims owed to third parties established in France, irrespective of whether the third party had its headquarters in France or abroad, and irrespective of the situs of the debt. It attracted 14 comments.

Guest Posts

While most of the posts are written by the blog editors, the blog regularly hosts contributions by academics and practitioners form outside the team. So far, the blog has welcomed posts from specialists based in Australia, Austria, Belgium, Cyprus, France, Germany, Italy, Japan, Lithuania, Luxembourg, Netherlands, Singapore, Slovenia, Spain, Switzerland and United Kingdom. Those willing to submit a guest post, are invited to write an e-mail to blog@eapil.org.

And don’t forget: the blog, and the Association generally, is active on social media too. So, join us also on Twitter (@eapilorg) and LinkedIn!

Facebook Ireland e.a.
Principes du droit communautaire
Règlement général sur la protection des données (RGPD) : la Cour précise les conditions d’exercice des pouvoirs des autorités nationales de contrôle pour le traitement transfrontalier de données

The Milan Law Review (MLR), run by the Faculty of Law of the State University of Milan, is a multidisciplinary and multilingual law journal, published on a six-monthly basis in open access mode.

The editors of the journal are calling, inter alia, for articles on topics in the field of public and private international law, either in Italian or in English.

Interested authors will find more information here.

Papers intended for the next issue shall be submitted by 31 October 2021.

A quick note on Dhir v Flutter Entertainment Plc (Rev 2) [2021] EWHC 1510 (QB), in which Griffiths J had to consider ia whether choice of law had been made at all and if so (or also if no choice of law had been made), whether this was for the onshore law of the Emirate of Dubai – onshore Dubai law, or for the law of the Dubai International Financial Centre – DIFC.

Claimant (Amarjeet Dhir) is a Dubai-based businessman who advanced money to another businessman in Dubai which he thought would be invested in the local property market. Unknown to him, the man taking his money (Tony Parente) was a gambling addict. As Mr Parente now admits, he applied money he had been given by Mr Dhir (and, it seems, others) to fund his gambling habit. One of the gambling businesses with which he lost a lot of money in a short space of time was the defendant, through that part of its operations branded as Paddy Power. Mr Dhir now seeks to recover from Paddy Power money in its hands which he says represents the money he is entitled to recover from Mr Parente.

The relevant agreement includes express choice of law as follows: 

“This agreement is signed in Dubai and shall be governed and construed in accordance with the laws of Dubai”.

Claimant says that it meant DIFC laws, while defendant says that it means onshore Dubai law). All experts agreed that it had to be one or the other: it could not be both.

[116] jurisdiction before the E&W Courts is by prorogation (A26 Brussels Ia). Both parties agree [129] that the Rome I Regulation guides the search for the lex contractus. The agreement is silent on choice of court: otherwise that could certainly have been a factor in determining choice of law (recital 12 Rome I). In general [118] the judge is cautious in ‘letting the jurisdiction dog wagging the choice of law tail’, and held the many ties of parties and contract with Dubai (including signature at Dubai and not DIFC: a geographically distinct location) pointed to onshore Dubai law as  lex contractus.

Choice of law therefore made not verbatim, yet ‘clearly demonstrated’ (A3(1) Rome I).

Geert.

EU Private International Law, 3rd ed. 2021, Heading 3.2.4.

Dhir v Flutter Entertainment [2021] EWHC 1510 (QB)
Considers ia A3(1) Rome I: choice of law: whether agreement to advance monies is governed by the onshore law of the Emirate of Dubai or by the law of the Dubai International Financial Centre DIFChttps://t.co/PrQQwQCXrd

— Geert Van Calster (@GAVClaw) June 14, 2021

The Mexican Academy of Private International and Comparative Law (AMEDIP) will be holding its annual XLIV Seminar entitled “New perspectives for Private International Law in a post-pandemic society” (perspectivas para el derecho internacional privado en una sociedad post-pandemia) from 17 to 19 November 2021 for the second time online.

The main focus of the seminar will be to analyse the impact of the Covid-19 pandemic on the development of private international law.

Potential speakers are invited to submit a paper in Spanish, English or Portuguese by September 1st 2021. Papers must comply with the criteria established by AMEDIP and will be evaluated accordingly. Selected speakers will be required to give their presentations preferably in Spanish as there will be no interpretation services but some exceptions may be made by the organisers upon request.

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

 

The following post was written by Paul Eichmüller (Vienna).

Although rules concerning the use of a name of natural persons have been liberalised in the member states of the European Union to a large extent after the CJEU’s famous decisions in C-148/02, Garcia Avello, and C-535/06, Grunkin and Paul, there still remain areas where national name law remains untouched. The Austrian Supreme Court has shown in its latest decision from 20 April 2021 that even for citizens of two member states, the conflict of laws rules for name matters may not generally be affected by CJEU judicature.

Facts

The parties of the case in question were the unmarried German mother and the Italian father of a son with German-Italian dual citizenship. After the child had been born in Germany – where he acquired his mother’s surname, as is usual under German law if the parents are unmarried – the boy and his mother moved to Austria. There, the father brought a request in court to change the child’s surname to a compound name consisting of both the mother’s and the father’s surnames. The mother, however, wanted her son to retain his current surname.

Legal Procedure

The Austrian courts of first and second instance concordantly dismissed the father’s request to change the child’s surname. Under Austrian law, the law applicable to name disputes follows the personal statute, which in turn is determined by a person’s citizenship (§§ 13, 9 IPRG). In cases of dual nationality – neither nationality being Austrian – the “effective nationality” (i.e. the nationality of the state to which the person has the closest link) determines the personal statute (§ 9(1) sentence 3 IPRG).

The courts concluded that the link to Germany had in this case been stronger, as the boy had been born in Germany and lived in a household with his German mother. German law, which accepts the renvoi (Article 10(1) EGBGB), does not provide for a change of the child’s surname against the will of the other parent unless the well-being of the child is affected, so that the request was denied.

The Decision by the Austrian Supreme Court

The Austrian Supreme Court upheld the lower courts’ decisions. It found no fault in how the previous instances had determined the applicable law. More importantly, it also ruled that this outcome was compatible with the CJEU’s rulings on European name disputes. According to the CJEU in Garcia Avello and Grunkin and Paul, Articles 18 and 20 TFEU merely require that EU citizens that lawfully use a name in one member state are allowed to use this name also in other member states. However, in the present case, the child in the case at hand had precisely not yet acquired a different name in Italy. Additionally, the father even conceded that under Italian law, a child may alternatively bear the surname of one parent or a compound name of both parents’ surnames. Thus, there were no objections from a perspective of European law, as neither freedom of movement was restricted nor was there discrimination on the basis of citizenship, and the request was dismissed.

Assessment

Without explicitly stating it, the Austrian Supreme Court made one point very clear in its judgment: the EU fundamental freedoms as interpreted by the CJEU in Garcia Avello and Grunkin and Paul do not impose on the member states the duty to determine the law on name disputes in a different way. Only the recognition of legal facts or acts from other member states, but not the identification of the applicable law is affected by the freedoms.

EU primary law requires that a name legally borne or acquired in another member state may also be borne in all other member states. It does, however, not impose a specific conflict-of-laws rule. Therefore, the law that determines whether and under which circumstances the name (even of a dual citizen) can be changed in another member state is not affected.

As the desired name is not legally borne in the other state, it remains merely hypothetical and thus is not subject to the fundamental freedoms. Whether the father could have changed his son’s name without the consent of the mother under Italian law was therefore not even assessed by the Supreme Court, as it deemed it not of importance.

As conflicts issues with regard to the change of name are concerned, each state is thus free to apply its own national rules of private international law. However, as most states offer the possibility to apply for a name change in their home state anyway, this issue will mainly arise in parental disputes. Like in the case at hand, one parent may wish to change the name of a child living in a different country against the will of the other parent and thus might bring an action in the family court at the child’s habitual residence pursuant to Article 8 of the Brussels II bis Regulation. When posed with the question of whether a change of name is possible, this court can then – free from obligations of EU primary law – assess the possibility of the name change according to its very own (private international) law.