Feed aggregator

Le procès du prêtre Bernard Preynat poursuivi pour agression sexuelle sur dix scouts, âgés de 7 à 15 ans entre 1986 et 1989, a débuté au tribunal d egrande instance de Lyon. Il encourt jusqu’à dix ans de prison.

en lire plus

The Graduate Programm “Dynamic Integration” at the Faculty of Law of Humboldt-University Berlin wishes to fill two PhD positions (fellowships), funded by the German Research Foundation (Deutsche Forschungsgemeinschaft). Applications from private (international) lawyers are especially welcomed.

For more information see here.

Advocate General Szpunar proposes that the Court should rule that the victims of the sinking of a ship flying the Panamanian flag can bring an action for damages under the Brussels I Regulation as a “civil and commercial matter” in the sense of Article 1 before the Italian courts against the Italian bodies which classified and certified that ship.

At para. 47, the Opinion deals with the effect of customary international law on the scope ratione materiae of the Brussels I Regulation and holds:

[t]he EU legislature might have drawn inspiration from customary international law and taken general guidance from it in so far as concerns the distinction between acta iure imperii and acta iure gestionis. However, I am of the opinion that it did not have recourse to the concept of immunity from jurisdiction in order to define precisely the reach of EU rules in the area of judicial cooperation in civil matters having cross-border implications or, in particular, the material scope of Regulation No 44/2001.

At para. 59, the Opinion explains the concept of “civil and commercial matters” abstractly with a view to previous case law and holds:

[t]he Court has repeatedly held that it is the exercise of public powers by one of the parties to the case, inasmuch as it exercises powers falling outside the scope of the ordinary legal rules applicable to relationships between private individuals, that excludes such a case from civil and commercial matters within the meaning of Article 1(1) of that regulation. On that basis the Court has already held that an action whereby a tax authority of one Member State claims damages for loss caused by a tortious conspiracy to commit value added tax (VAT) fraud in that Member State falls within the concept of ‘civil and commercial matters’, provided that the tax authority is in the same position as a person governed by private law in the action in question. I infer from this that, in order to determine whether or not Regulation No 44/2001 is applicable in a case, it is not necessary to focus upon the field or area to which belongs the act in respect of which liability is alleged; it is necessary to consider whether that act proceeds from the exercise of public powers

As an interim conclusion, the Opinion states, at paras. 99 et seq.:

99. …[t]he mere fact that the defendants carried out the acts at issue upon delegation from a State does not in itself mean that the dispute in which liability for those acts is alleged falls outside the scope ratione materiae of Regulation No 44/2001. Secondly, the fact that those acts were carried out on behalf of, and in the interests of the delegating State does not have that effect either. Thirdly and last, the fact that those operations were carried out in performance of international obligations of the delegating State in no way calls the foregoing conclusions into question.

100. Nevertheless, whenever recourse is had to public powers when carrying out acts, Regulation No 44/2001 will not as a result apply ratione materiae in a dispute in which liability for those acts is alleged. Given the range of powers exercised by the defendants in carrying out the classification and certification of the Al Salam Boccaccio ’98, those operations cannot be regarded as proceeding from the exercise of public powers.

101.  In light of the foregoing, it should be held that Article 1(1) of Regulation No 44/2001 is to be interpreted as meaning that an action for damages brought against private-law bodies concerning classification and certification activities carried out by those bodies upon delegation from a third State, on behalf of and in the interests of that State, falls within the concept of ‘civil and commercial matters’ within the meaning of that provision.

After rejecting jurisdictional immunity for the defendants, the Advocate General concluded, at para. 155:

Article 1(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters is to be interpreted as meaning that an action for damages brought against private-law bodies in respect of classification and certification activities carried out by those bodies as delegates of a third State, on behalf of that State and in its interests, falls within the concept of ‘civil and commercial matters’ within the meaning of that provision.

The principle of customary international law concerning the jurisdictional immunity of States does not preclude the application of Regulation No 44/2001 in proceedings relating to such an action.

The Opinion can be found here.

Action civile

QPC

Rina
Espace de liberté, sécurité et justice
L’avocat général Szpunar propose à la Cour de juger que les victimes du naufrage d’un navire battant pavillon panaméen peuvent saisir les juridictions italiennes d’une action en responsabilité contre les organismes italiens ayant classifié et certifié ce navire

Commission / Hongrie (Transparence associative)
Libre circulation des capitaux
Selon l’avocat général Campos Sánchez-Bordona, les restrictions imposées par la Hongrie au financement des organisations civiles depuis l’étranger ne sont pas conformes au droit de l’Union

Since the news broke in Mid-September of a Dutch claimant of Palestinian descent, suing former Chief of the General Staff Benjamin Gantz in The Netherlands, I have regularly checked ECLI NL for any kind of judgment. So far to no avail. I report the case now summarily, for it will be good to have a judgment (presumably first interlocutory: on the jurisdiction issue) to chew on.

The claim invokes the Dutch forum necessitatis rule (Article 9 CPR; other European States have similar rules), often also known as ‘universal jurisdiction’ however clearly the rule has its constraints. Claimant’s lawyer, Meester Liesbeth Zegveld, argues the application of the rule here. The piece includes assessment of sovereign immunity, and the involvement of Article 6 ECHR. Its outcome will also play a role in issues of corporate social responsibility and jurisdiction.

Clearly the moment I have a court opinion I shall post more.

Geert.

 

Written by Frédéric Breger, Legal Officer at the Permanent Bureau of the Hague Conference on Private International Law (HCCH)

Volume 24 of the Judges’ Newsletter, the HCCH publication on international child protection, is now available on the HCCH website! This Volume features a Special Focus on “Urgent Measures of Protection” as provided for under Article 11 of the HCCH 1996 Child Protection Convention. Article 11 gives jurisdiction to the authorities of a Contracting Party where the child is found present – albeit not habitually resident – to take measures of protection for that child in cases of urgency. You will find in particular contributions from judges on case law rendered under Article 11 of the 1996 HCCH Child Protection Convention in various jurisdictions. This Volume is available in English only at the moment; the French version will be published in due course.

The HCCH news item is available here.

Engagement solennel de la présidente et des membres de la Commission européenne devant la Cour de justice de l’Union européenne

Responsabilité délictuelle ou quasi-délictuelle

Tribunal d'instance de Paris (17ème), 3 octobre 2019

Le procès du prêtre Bernard Preynat poursuivi pour agression sexuelle sur dix scouts, âgés de 7 à 15 ans entre 1986 et 1989, débute mardi. Il encourt jusqu’à dix ans de prison.

en lire plus

Anyone short of exam essay Qs, consider the planned Flemish ban (with room for local, event-related exceptions) on fireworks displays. Akin to the issues in Ivory Ban or pet collars, at the core of the legal analysis is the legality of use restrictions on goods lawfully marketed in other Member States (see also my brief review of Amsterdam’s booze bikes here).

The exhaustive effect or not of EU secondary law will have to be discussed, as will Article 34 TFEU (including consultation and commissioned research issues and of course proportionality), and indeed A1P1 (Article 1, first Protocol) ECHR.

(For a recent more locally relevant issue, see the Supreme Court’s (Raad van State) December 2019 annulment of an Antwerp highway code rule banning the use of quads and introducing a strict exemption policy).

Geert.