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Agressions sexuelles

Peines - Libération conditionnelle

Charlemagne Dagbedji (University of Corsica) organises a webinar (in French) titled “Effective Recognition of Non-Judicial Divorce” (L’efficacité internationale du divorce sans juge).

The webinar aims at assessing the international legal acquis on non-judicial divorce, with a special focus on the means to ensure its cross-border recognition. It requires to analyse private international law rules but also to adopt a comparative law approach and a practical perspective.

It will take place on 25 March 2021, 2 to 4 PM (CET).

The speakers are André Giudicelli (University of Corsica), Alex Tani (University of Corsica), Alain Devers (University of Lyon 3 & Lawyer at the Lyon Bar), Charlemagne Dagbedji (University of Corsica) and Sonia Ben Hadj Yahia (University of Corsica).

Program and registration here.

There is a benefit to the pace of work becoming so hectic that I cannot post on CJEU case-law swiftly: others have analysis to which I can refer. In the case of CJEU C-804/19 BU v Markt24 GmbH, Anna Wysocka-Bar has posted analysis this morning (Opinion Saugmandsgaard Øe here).

BU whose place of residence is at Salzburg (Austria) signed an employment contract for carrying out cleaning work in Munich (Germany) for Markt24 GmbH, whose registered office is also located in Munich. The contract was signed in a bakery in Salzburg, where Markt24 also had an office. BU was never allocated any work, the employment contract was terminated and BU claims outstanding wage at the Landesgericht Salzburg.

The CJEU refers to Holterman to define employment [25] and holds [26] that the presence of a contract of employment is relevant for triggering the protective regime: not its actual exercise a least of the lack of performance of the contract is not attributable to the employer [28].

This issue was not sub judice however reasoning mutatis mutandis I would suggest the attributability or not to the employer be subject to the putative lex loci laboris per A8 Rome I.

Having established that A21 BIa applies, the question is how a ‘‘place where or from where the employee habitually carries out his work’ may be determined if no work has been carried out. At 41:

in the case where the contract of employment has not been performed, the intention expressed by the parties to the contract as to the place of that performance is, in principle, the only element which makes it possible to establish a habitual place of work (…) That interpretation best allows a high degree of predictability of rules of jurisdiction to be ensured, since the place of work envisaged by the parties in the contract of employment is, in principle, easy to identify

In casu, that place is Munich albeit [46] Salzburg might also still be an option given as A20 BIa makes A7(5)’s branch jurisdiction applicable (“as regards a dispute arising out of the operations of a branch, agency or other establishment, in the courts for the place where the branch, agency or other establishment is situated”). Whether the conditions for that Article apply, is for the court at Salzburg to determine.

The CJEU’s emphasis on predictability in my view also means that if a place is agreed yet the employee, without agreement from the employer, de facto carries out the work elsewhere, the agreed place must take precedent.

The CJEU also holds [34] that the employment title of BIA exhaustively harmonises jurisdiction: more favourable national CPR rules (in casu granting jurisdiction to the employee’s residence and /or place of payment of the remuneration) become inoperable.

An important judgment.

Geert.

EU Private International Law, 3rd ed. 2021, para 2.278 ff.

The Organization of American States (OAS) is organizing a virtual forum as noted in the poster above. For more information, click here.

This virtual forum will address the report: Improving transparency: international law and State cyber operations – fifth report drawn up by Professor Duncan B. Hollis. This report is available here and has been translated into the four official languages of the OAS: Spanish, English, French and Portuguese.

While this report touches upon international law in general, it may still be of interest to some of our readers.

 

On 24 February 2021 the Court of Justice of the EU issued a judgement in the case BU v Markt24 GmbH (C-804/19) following a request for a preliminary ruling from the Landesgericht Salzburg (Austria). The case concerns jurisdictional rules for employment contracts in Brussels I bis Regulation, in particular its Article 21. The opinion in this case was prepared by AG Øe.

Background

BU whose place of residence is in Salzburg (Austria) signed the employment contract for carrying out cleaning work in Munich (Germany) for Markt24 GmbH, whose registered office is also located in Munich. BU signed the contract with an employee acting as intermediary of Markt24. The contract was signed in a bakery in Salzburg, even though Markt24 had an office in this city at that time. It was agreed that BU would start working on 6 September 2017, but she was never allocated any work, even though she could be contacted by telephone and was prepared to work. BU has not received remuneration, but she was registered with the Austrian social security institution as an employee. On 15 December 2017, the defendant terminated the employment contract. On 27 April 2018, BU filed a claim to the Landesgericht Salzburg (Austria) asking for outstanding wage and other payments for the period of her employment.

Since the documents initiating the action could not be served on the defendant, a procedural representative in absentia was appointed. The representative contested jurisdiction of the Austrian court. It seems that, in accordance with domestic law in place in Austria, namely § 4(1)(a) Arbeits- und Sozialgerichtsgesetz (“ASGG” – Law on the labour and social courts), Landesgericht Salzburg would have jurisdiction, based on the place of residence of the employee and also the place where the remuneration was to be paid. At the same time there were doubts whether jurisdiction exists under Brussels I bis Regulation, in particular its Article 21(1)(b)(i), which grants jurisdiction to courts for “the place where or from where the employee habitually carries out his work”. Landesgericht Salzburg decided to refer a preliminary ruling to the CJEU asking few alternative questions.

Is Section 5 of Chapter II Brussels I bis Applicable at All, If No Work Was Actually Performed?

The Court reminded that the concept of an “individual contract of employment” referred to in Brussels I bis Regulation must be given an autonomous interpretation (point 24). As flows from its previous jurisprudence, this concept “presupposes a relationship of subordination of the employee to the employer; the essential feature of an employment relationship is that for a certain period of time one person performs services for and under the direction of another in return for which he or she receives remuneration” (point 25). If the above conditions are met, parties are bound by a “contract of employment” within the meaning of the Regulation, “irrespective of whether the work which is the subject of that contract has been performed or not” (point 26).

Hence, the CJEU stated that Section 5 of Chapter II Brussels I bis (namely, its special jurisdictional rules for employment contracts) “must be interpreted as applying to a legal action brought by an employee domiciled in a Member State against an employer domiciled in another Member State in the case where the contract of employment was negotiated and entered into in the Member State in which the employee is domiciled and provided that the place of performance of the work was located in the Member State of the employer, even though that work was not performed for a reason attributable to that employer.”

Does Brussels I bis Allow for the Application of Domestic Rules on Jurisdiction If More Beneficial to the Employee?

As rightly underlined in the opinion, the fact that the rules of the ASGG are more favorable to the employee is irrelevant, as section 5 of Chapter II Brussels I bis does not provide for certain minimum standards of the protection of employees, which might be further developed by the national legislation (points 43-44 of the opinion). Instead, this Regulation provides for a unified system of jurisdictional rules. If a dispute falls within the scope of application of Brussels I bis, its rules of jurisdiction must take precedence over national ones (points 30-32 of the judgement). Hence, the CJEU ruled that the provisions set out in Section 5 of Chapter II Brussels I bis preclude the application of national rules of jurisdiction, irrespective of whether those rules are more beneficial to the employee.

How to Understand Article 21(1)(b)(i) Brussels I bis, If the Work Was Never Actually Performed?

As underlined in the opinion, the Court has never before had a chance to explain how to understand the concept of the “place where the employee habitually carries out his work”, in case no work was actually performed (point 23 of the opinion). The Court noted that this concept refers to “the place where, or from which, the employee in fact performs the essential part of his or her duties vis-à-vis his or her employer” (point 40). The Court shared also the view presented in the opinion that:

in the case where the contract of employment has not been performed, the intention expressed by the parties to the contract as to the place of that performance is, in principle, the only element which makes it possible to establish a habitual place of work (…) That interpretation best allows a high degree of predictability of rules of jurisdiction to be ensured, since the place of work envisaged by the parties in the contract of employment is, in principle, easy to identify (point 41).

The Court had no doubt that in the case at hand that place is Munich (Germany).

At the same time, the Court underlined that in accordance with Article 20 Brussels I bis Regulation, section 5 of its Chapter II applies without prejudice to, inter alia, Article 6 point 5, which provides that a person domiciled in a Member State may be sued in another Member State, “as regards a dispute arising out of the operations of a branch, agency or other establishment, in the courts for the place where the branch, agency or other establishment is situated”. The Court noted that Landesgericht Salzburg should determine whether that provision may also be applicable in the case given that Markt24 had an office in Salzburg at the beginning of the employment relationship.

CJEU stated that Article 21(1)(b)(i) of Brussels I bis must be interpreted as meaning that an action may be brought before the court of the place where or from where the employee was required, pursuant to the contract of employment, to discharge the essential part of his or her obligations towards the employer. This is however without prejudice to Article 7(5) of the Regulation.

Is Article 7(1) Brussels I bis Applicable to an Employment Relationship, If No Work Was Actually Performed?

One of the questions was not answered either in the opinion or in the judgement, as there was no doubt that Section 5 of the Chapter II Brussels I bis does apply to the case at hand. By this question Landesgericht Salzburg wanted to clarify whether Article 7(1) Brussels I bis might apply to the employment relationship, in such specific circumstances, when no work was actually performed and whether § 4(1)(a) or (d) of the ASGG could be applied. It is not clear whether the ASGG was supposed to be applied instead of Article 7 Brussels I bis or somehow indirectly by the intermediation of it.

Travail

Garde à vue - Droits de la défense

Instruction

Last week’s Opinion of Advocate General Rantos (successor to Sharpston AG) in C-603/20 PPU SS v MCP is of note for its emphasis on the principle of mutual trust that lies at the foundation of European Private International Law. Brussels IIa is not staple diet for the blog and I shall leave more intense analysis to others. In short, the AG opined that a Member State retains jurisdiction under the Regulation, without limit of time, if a child habitually resident in that Member State was wrongfully removed to, or retained in, a non-Member State where it in due course became habitually resident.

The third country at issue is India, a non-Hague Convention State, as opposed to the UK, now also a third country but a Hague State. Note that in future A97(2) Brussels IIa Recast give clear priority to A13 Hague Convention’s lis alibi pendens rule, in cases where the conditions for that article are fulfilled: see Cusworth DJ today in AA & BB [2021] EWFC 17 at 27).

Of note to the blog is the AG’s emphasis on mutual trust, at 62 ff:

all Member States comply, in principle, with EU law justifies recognising, subject to certain conditions, the jurisdiction of the courts of the Member State to which a child was abducted and where he or she has acquired a habitual residence. By contrast, if a child has been abducted to a non-Member State, the cooperation and mutual trust provided for in EU law cannot apply. Therefore, having regard to the context of Article 10 of Regulation No 2201/2003, there is no justification for accepting the jurisdiction of the courts of that non-Member State, including in the case where the abducted child has acquired his or her habitual residence in the latter State.

and at 84

Regulation No 2201/2003 is based on cooperation and mutual trust between the courts of the Member States, which allows, subject to certain conditions, jurisdiction to be transferred between those courts. Since provision is not made for cooperation and mutual trust in the case of courts of a non-Member State, it appears to me entirely justified and consistent with that regulation for the courts of the Member State in which a child was habitually resident before his or her abduction to a non-Member State to continue to have jurisdiction for an unlimited period of time, with a view to ensuring that the best interests of that child are protected.

With this he dismissed the view of the referring court,  that A10 BIIA should be interpreted as having a territorial scope confined to the Member States because otherwise the jurisdiction retained by the Member State of origin would continue to exist indefinitely. In that court’s view, that Member State would thus be in a stronger position jurisdictionally vis-à-vis a non-Member State than a Member State.

Geert.

EU Private International Law, 3rd ed. 2021, various places (see Index: ‘Mutual Trust’).

Opinion Rantos AG C-603/20 PPU Brussels IIa.
MS retains jurisdiction, without limit of time, if a child habitually resident in that MS was wrongfully removed to (or retained in) a non-MS where she, following such removal (or retention), in due course became habitually resident. https://t.co/8E9KUJxcSK

— Geert Van Calster (@GAVClaw) February 23, 2021

A.B. e.a. (Nomination des juges à la Cour suprême - Recours)
Droit institutionnel
Les modifications successives de la loi polonaise sur le Conseil national de la magistrature ayant pour effet de supprimer le contrôle juridictionnel effectif des décisions de ce Conseil présentant au président de la République des candidats aux fonctions de juge à la Cour suprême sont susceptibles de violer le droit de l’Union

Commission / Italie e.a.
Aide d'État
La Cour rejette le pourvoi formé par la Commission contre l’arrêt du Tribunal relatif aux mesures adoptées par un consortium de banques italiennes pour soutenir l’un de ses membres

Prokuratuur (Conditions d’accès aux données relatives aux communications électroniques)
Rapprochement des législations
L’accès, à des fins pénales, à un ensemble de données de communications électroniques relatives au trafic ou à la localisation, permettant de tirer des conclusions précises sur la vie privée, n’est autorisé qu’en vue de lutter contre la criminalité grave ou de prévenir des menaces graves contre la sécurité publique

Since 2018, UNIDROIT has been studying the prospect of working on the enforcement of claims.

In September 2020, it eventually established a Working Group on the Best Practices for Effective Enforcement. The Working group held its first meeting between 30 November and 2 December 2020, based on an Issues Paper.

The purpose of the project will be to adopt a soft instrument proposing solutions that States would be free to adopt (best practices followed by comments, on the model of the ELI-UNIDROIT Rules of civil procedure). It would focus on the enforcement process, and would not cover the process of obtaining a judgment against a defaulting party or the process of declaring enforceable foreign judgments in the forum. It would include the enforcement of provisonal and protective measures.

During the first meeting, the participants discussed a variety of issues, including the concept of enforcement, the types of claims that should be covered and the impact of technology. The Report of the meeting is available here.

The next meeting will be held in April 2021. Three sub-groups were established: Subgroup 1 on  “post-adjudication” enforcement; Subgroup 2 on enforcement of secured claims (collateral); Subgroup 3 on the impact of technology on enforcement.

As noted earlier on this blog, on 5 March 2021, from 5 to 6.30 p.m. (CET), the European Association of Private International Law will host its third (Virtual) Seminar, devoted to the digitalization aspects of the revised Service of process and Taking of evidence Regulations.

Those wishing to attend have time until 3 March 2021 at noon to register. The registration form is available here.

Registered participants will receive the details to join the Seminar by e-mail the day before the Seminar (please note the e-mails with these details occasionally end up in the spam folder).

For more information, please write an e-mail to Apostolos Anthimos at apostolos.anthimos@gmail.com.

March 2021 edition of the virtual workshop series “Current Research in Private International Law” will host Professor Horatia Muir Watt from the University Sciences-Po Paris. She will be speaking on “Capitalism’s Boundary Struggles: a Private International Law Approach”.

The guest speaker’s abstract states:

Our current awareness of crisis (whether sanitary, ecological, financial, economic, social etc) has led to various reflections and initiatives within law designed for the most part to improve regulation. The focus of this paper is very different and builds upon research currently conducted within the Globinar “Law Crisis and Capitalism” (with H. Alviar and G. Frankenberg). It starts from the idea that the “boundary struggles” that produce crises are endemic to capitalism’s modus operandi (as in the “critical conversation” between N. Fraser and R. Jaeggi). This metaphor suggests that private international law is a good place to think about the role of law in the generation, evolution, exacerbation or pacification of such conflicts that arise at the frontiers of different spheres. In this presentation, I shall suggest a few areas in which an analysis in terms of private international law’s political economy may be instructive.

The virtual workshop will take place on Tuesday, 2 March 2021 at 11:00 hours (CET) via Zoom. Access is free of charge, but registration is required by 1 March 2021 using the registration link.

Entrée en fonctions d’un nouveau membre au Tribunal de l’Union européenne

Conventions & Instruments

On 1 February 2021, the HCCH 1965 Service Convention entered into force for the Marshall Islands. It currently has 78 Contracting Parties. More information is available here.

On 1 February 2021, the HCCH 2007 Child Support Convention entered into force for Serbia. At present, 41 States and the European Union are bound by the Convention. More information is available here.

On 1 February 2021, the HCCH 1993 Adoption Convention entered into force for Saint Kitts and Nevis. It currently has 103 Contracting Parties. More information is available here.

Meetings & Events

From 1 to 5 February 2021, the Experts’ Group on Jurisdiction met for the fifth time, via videoconference. The discussion focused on questions of policy, including in relation to rules of direct jurisdiction, parallel proceedings, related claims, and mechanisms for judicial coordination and cooperation. More information is available here.

From 8 to 11 February 2021, the Experts’ Group on International Transfer of Maintenance Funds met via videoconference. The Group continued its work discussing good practices and identifying possible future improvements in relation to the cross-border transfer of child support payments, with a view to facilitating the most cost-effective, transparent, prompt, efficient and accessible cross-border transfer of funds. More information is available here.

From 15 to 17 February 2021, the Experts’ Group on Parentage/Surrogacy met for the eighth time, via videoconference. The Group discussed what the focus of its work should be at its next meeting(s) in order to prepare its final report on the feasibility of a possible future general private international law instrument on legal parentage and the feasibility of a separate possible future protocol with private international law rules on legal parentage established as a result of an international surrogacy arrangement. More information is available here.

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

The fourth issue of 2020 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) has been released. It features:

Cristina Campiglio, Professor at the University of Pavia, Il matrimonio in età precoce nel diritto internazionale privato (Child Marriage in Private International Law; in Italian)

• In recent years, international instruments to combat early and forced marriages have been flanked by national legislative interventions aimed at denying, or at least limiting, the recognition of marriages concluded abroad by minors. The private international law techniques used in Europe are different but fundamentally referable to special public policy clauses, in some cases inspired by the German doctrine of Inlandsbeziehung. Failure to recognize marital status – with the inevitable repercussions on immigration policies, specifically in the context of family reunification – can harm the fundamental rights of those concerned. Due to its abstract nature, the legislative approach is not able to carry out the evaluation of the minor’s concrete interest that only a case-by-case approach can ensure.

Costanza Honorati, Professor at the University Milan-Bicocca, Il ritorno del minore sottratto e il rischio grave di pregiudizio ai sensi dell’art. 13 par. 1 lett. b della convenzione dell’Aja del 1980 (Return of the Abducted Child and the Article 13(1)(b) ‘Grave Risk of Harm’ Defence in the 1980 Hague Convention; in Italian)

• The “grave risk of physical or psychological harm, or of an intolerable situation” defense pursuant to Article 13(1)(b) of the 1980 Hague Convention constitutes the central hub of the conventional system. In fact, it expresses the difficult balance between, on the one hand, the general imperative to return the abducted child and, on the other, the need to refuse his return in the individual specific case, when this is likely to cause the minor a grave risk of harm. This article examines the application that the exception receives both in the recent Guide to Good Practice prepared by the HCCH Conference and published in March 2020, and in the Italian courts. Through the analysis of many unpublished cases, the peculiarities of the Italian practice on a central provision for effective protection of the abducted child are thus highlighted.

The following comments are also featured:

Loris Marotti, Research Associate at the University of Milan, Aspetti problematici dell’accordo sull’estinzione dei trattati bilaterali di investimento tra Stati membri dell’Unione europea (Problematic Aspects of the Agreement for the Termination of Bilateral Investment Treaties between EU Member States; in Italian).

• On 5 May 2020, 23 Member States signed the Agreement for the termination of Bilateral Investment Treaties between the Member States of the European Union, providing for the termination of all Intra-EU BITs concluded between the parties. The Termination Agreement, which entered into force on 29 August 2020, represents the last step taken by Member States to comply with the European Court of Justice ruling in the Achmea judgment, where the Court found investor-State arbitration based on BITs incompatible with EU treaties. This paper discusses a number of issues arising out of the Termination Agreement. After illustrating its scope and content, the paper focuses on its most controversial aspects, namely the termination of BITs together with the sunset clauses therein contained, and the impact of the Agreement on pending arbitration proceedings. It is argued that while the Agreement seems to be in line with the general international law on treaty termination, its impact on pending proceedings is likely to be problematic according to the general principles regulating the judicial function in international law. Moreover, the paper analyses the controversial implications stemming from the Agreement in terms of the relations between Member States parties to the Agreement and third parties to the ICSID Convention, as well as its impact on investors’ position under international and domestic law.

Marco Pedrazzi, Professor at the University of Milan, Dal disdegno per il diritto internazionale («notwithstanding»…) alla prevalenza del «rule of law»: il controverso percorso che ha portato alla promulgazione della legge del Regno Unito sul mercato interno (From the Contempt for International Law (‘Notwithstanding’…) to the Prevalence of the ‘Rule of Law’: The Controversial Path that Led to the Promulgation of the UK Internal Market Act 2020; in Italian).

In addition to the foregoing, this issue features the following book review by Francesca C. Villata, Professor at the University of Milan: Christopher Kuner, Lee A. Bygrave, Christopher Docksey (eds.), The EU General Data Protection Regulation (GDPR). A Commentary, Oxford University Press, Oxford, 2020, pp. XXXV-1393.