Feed aggregator

Le Conseil d’État précise la date à laquelle l’âge d’un enfant mineur pour lequel est demandée la réunification familiale doit être appréciée.

Sur la boutique Dalloz Code de l’entrée et du séjour des étrangers et du droit d’asile 2023, annoté et commenté Voir la boutique Dalloz

en lire plus

Dans le contexte de refonte du cadre européen dans le domaine de l’asile et de la migration, cet épisode recueille le point de vue des avocats européens.

Sur la boutique Dalloz Code de l’entrée et du séjour des étrangers et du droit d’asile 2023, annoté et commenté Voir la boutique Dalloz

en lire plus

Dyson e.a. / Commission
Droit institutionnel
Selon l’avocate générale Ćapeta, en retenant le test sur réservoir vide pour les aspirateurs, la Commission a violé la directive relative à l’étiquetage énergétique de manière suffisamment caractérisée

Austrian Airlines (Premiers soins à bord d’un aéronef)
Transport
Accidents à bord d’un avion : la responsabilité sans faute des compagnies aériennes prévue par la convention de Montréal s’étend aux premiers soins inadéquats dispensés à bord

Bundesamt für Fremdenwesen und Asyl (Réfugié ayant commis un crime grave)
Espace de liberté, sécurité et justice
Révocation et refus du statut de réfugié : la Cour de justice précise les conditions d’adoption d’une telle mesure à l’égard du ressortissant d’un pays tiers condamné pour un crime

The author of this post is Willem Visser. He is one of the editors of the Dutch Journal for Consumer Law and Unfair Commercial Practices (Tijdschrift voor Consumentenrecht & handelspraktijken).

In April 2023, the EAPIL Working Group on the Reform of the Brussels I bis Regulation issued a preliminary position paper formulating proposals for reforming the Regulation. On 29 March 2023, the European Commission published a study to support the preparation of a report on the application of the Brussels Ibis Regulation.

In my opinion, consumer protection seems to be only marginally on the radar in these documents. Therefore, I wrote this article, which was published in the Dutch Journal for Consumer Law, where I propose to extend the material scope of the provisions dealing with consumer contracts (Articles 17-19 Brussels I bis Regulation) and to significantly simplify the entire chapter on jurisdiction. A summary of my article and proposals is set out below.

Consumers are protected through EU regulations not only when it comes to their substantive rights (against unfair commercial practices, unfair terms, etc.), but also when it comes to procedural law, in particular the assesment of international jurisdiction in disputes over consumer contracts.

This procedural protection is enshrined in the Brussels I bis Regulation and its predecessors (Regulation No. 44/2001 and the 1968 Brussels Convention). These instruments will be referred to below as ‘the Brussels regime’.

The Brussels regime protects consumers by giving jurisdiction to the courts of their country of residence (Articles 17-19 Brussels I bisRegulation). That seems like a great deal, but in practice there are several limitations to that protection.

First, the consumer protection only applies to consumer contracts and not to any non-contractual obligations invoked by consumers (for example, tort, unjust enrichment and negotiorum gestio). In these types of cases the consumer cannot litigate before the court of his or her domicile, but will probably have to seek the courts of its professional counterparty: the defendant’s domicile. It is not desirable for consumers to be forced to litigate outside their country of residence, because that means extra travel time, litigating in an unfamiliar country and in a different language, with the help of a foreign lawyer, in a procedure that may well be more expensive than in his or her home country. Moreover, it is not always clear – on the basis of the various rulings by the EU Court of Justice – whether an obligation should be qualified as a ‘contractual obligation’ or a ‘non-contractual obligation’. There have been several cases where the natural person was the weaker party and needed protection, but did not get it because of the non-contractual nature of the obligation in question (see the ECJ decisions in Wikingerhof, Kolassa and Deepwater Horizon). I therefore believe that consumer protection in the Brussels Ibis Regulation should not be limited to consumer contracts but should be extended to non-contractual consumer obligations.

Second, the ECJ interpretes the concept of ‘consumer’ restrictively: it “must necessarily be interpreted strictly, in the sense that it cannot be extended beyond the cases expressly mentioned in that Regulation” (amongst others: Poker Player, C-774/19, para. 24). This restrictive approach resulted in a natural person not being able to claim consumer protection under the Brussels regime in the following situations: if he/she was a consumer but transferred his/her rights; in that case, the person to whom the rights have been transferred cannot be considered a ‘consumer’ (C-89/91); if the contract was entered into with a view to an as yet unexercised but future professional activity (C-269/95); if it concerns a class action initiated by a group of consumers (C-167/00); if both parties are consumers (C-508/12); if the consumer does not have a contract with the issuer of the certificates (C-375/13); if the agreement subsequently acquired a professional character (C-498/16); if the contract was concluded for a dual purpose, unless the contract, in view of the context of the transaction – considered as a whole – for which it was concluded, is so distinct from that professional activity that it is evident that it was concluded primarily for private purposes (C-630/17); if there is a claim by a consumer against an airline that is not a party to the transport contract (C-215/18).

So, there are quite a few situations where a natural person is not considered a ‘consumer’, and therefore cannot litigate before the courts of his or her own domicile. This is remarkable, because the European Union ensures “a high level of consumer protection” (Article 38 of the EU Charter of Fundamental Rights). I believe that in several of the situations mentioned above, there is an unjustified lack of protection. In my opinion, the regime of Article 17-19 Brussels I bis Regulation should therefore be applied less restrictively by entering an assumption into the Regulation that a natural person acts in his capacity as a consumer. It is up to the counterparty to prove that the natural person has unmistakably acted in the context of his or her profession or business.

In addition, I believe that consumer protection should also apply to consumer collective actions. There is no valid reason why the collective nature of a claim should result in a group of consumers no longer being considered a weaker party. At the time the contracts were concluded, the consumers represented had less room to negotiate with their professional counterparty, and thus to that extent still had a weaker position. Moreover, it leads to a divergence between the competent court and the applicable law. Still, collective actions based on a breach of consumer contracts remain governed by the law of the consumers’ country. The freedom to conduct a business, guaranteed in Article 16 of the EU Charter, does not necessitate the exclusion of collective actions from consumer protection. The professional counterparty of the consumer has already had to take into account that individual consumers could bring proceedings against it in their own place of residence. That this is different in the case of a consumer collective action is therefore, in that sense, an unexpected advantage for the counterparty.

Third, in my opinion the ‘targeting requirement’ in Article 17 (1)(c) Brussels I bis Reguliation is not workable in practice. This requirement has given rise to much ECJ case-law and leads to legal uncertainty (see the legal commentary on the Alpenhof judgment). In my opinion, in this digital day and age a consumer contract should only be excluded from consumer protection where the professional would not have to expect litigating in the courts of the consumer’s domicile. This is the case only, when the contract is concluded in a physical sales area or when the consumer cannot get the goods or services delivered in his place of residence under the trader’s terms and conditions.

In light of the above, I conclude that consumer protection under the Brussels regime has not kept pace with substantive consumer law in which consumer protection has become more extensive.

But that’s not the only comment I would like to make on the current Brussels I bis Regulation. The complexity of the chapter on jurisdiction (Chapter II of the Regulation) results even today – more than 50 years after its predecessor, the Brussels Convention, was signed by the the EEC members States – in large numbers of preliminary rulings. The Brussels/Lugano regime accounts for the majority of the 245 preliminary rulings on private international law sources from 2015 to 2022. That means more than 120 questions (128 to be precise) over a 7-year period. In my opinion, that is too much for an instrument that is in place more than 50 years.

Reducing the Court of Justice’s workload is not necessarily a compelling reason to simplify a regime, but it should be borne in mind that behind every case submitted to a court, there are two or more parties who – until the preliminary question is answered – cannot proceed with their legal proceedings. The delay is considerable, since preliminary reference proceedings before the Court of Justice take 16.6 months on average.

I therefore propose to replace the articles which give rise to the largest amount of preliminary questions (Article 7(1) and (2) of the Brussels I bis Regulation) by an article which aligns jurisdiction and applicable law. My proposal is that Article 7(1) and (2) (and perhaps other parts of Article 7) should be replaced by the following rule:

A person domiciled in one Member State may also be sued in another Member State whose laws governs the relevant contractual or non-contractual obligation underlying the claim. Where there are several claims governed by different laws, the courts of the Member State which laws governs the most far-reaching claim shall have jurisdiction.

The advantage of aligning jurisdiction and applicable law is that it improves coherence between the Brussels I bis Regulation and the Rome I and Rome II Regulations (which designate the law that is applicable to a contractual or non-contractual obligation). These Regulations all aim to promote predictability of the outcome of litigation, legal certainty and mutual recognition of judgments.

Simplifying the Brussels regime would give rise to fewer preliminary questions and fewer delays. Preventing delays is one of the objectives of procedural law. As the saying goes: ‘Justice delayed is justice denied’.

I admit that I have not yet thought through all consequences of my proposals, and it is going too far to elaborate all of them in the context of my article. But it seems right to discuss these proposals further and, if possible, to include it as an option in the ongoing review of the Brussels I bis Regulation.

Presta v VLEP (23 june 2023) illustrates the application of the CEJU’s Gruber Logistics (Case C-152/20, 15 July 2021) by the Dutch Supreme Court. In order to determine the law applicable to an individual employment contract under article 8 Rome I, one must compare the level of protection that would have existed in the absence of a choice of law (in this case, Dutch law) with the level of protection offered by the law chosen by the parties in the contract (in this case, the laws of Luxembourg), thereafter, the law of the country offering the highest level of employee protection should be applied.

 

Facts

Presta is a Luxembourg based company. It employs workers of different nationalities who carry out cross-border work in various EU countries. Their employment contracts contain a choice of Luxembourg law.

From 2012 to 2017, Presta provided employees to Dutch companies working in the meat processing industry. This industry has a compulsory (Dutch) pension fund VLEP. Membership in VLEP and payments to the fund are compulsory for the meat processing industry companies, even for the companies, which are not bound by the collective labour agreement.

According to VLEP, Presta falls within the scope of the compulsory membership in the pension fund. Based on this assertion, VLEP sent payment notices to Presta for the period from 2012 to 2017, but Presta left the invoices unpaid.

Proceedings

In 2016, VLEP obtained a writ of execution against Presta for the payment of €1,779,649.86 for outstanding pension premiums, interest, a fine, and costs. Presta objected, filing a claim before a Dutch court. The first instance court dismissed its claim. Presta appealed, but the appellate court has also dismissed its claims, reasoning as follows.

On the one hand, the employment contracts between Presta and the employees contained a choice of Luxembourg law as referred to in Article 8(1) Rome I. Therefore, Dutch law would apply if the parties had not made a choice of law. On the other hand, the employees ‘habitually’ carried out work in the sense of Article 8(2) Rome I Regulation in the Netherlands. Although some factors assessed pointed to Luxembourg, the court considered that these factors carried insufficient weight to apply Article 8(4) Rome I.

Based on this, the court held that Dutch law would apply if the parties had not made a choice of law, but that the employees should not lose the protection of mandatory Dutch law, including the rules which oblige Presta to pay the pension premiums. The court went on to apply the said Dutch rules and confirmed Presta’s obligations to pay VLEP.

EU freedom of services?

On a side note: noteworthy is that one of Presta’s arguments relied on article 56 Treaty on the Functioning of the European Union (TFEU) on freedom of services. According to Presta, Dutch rules that oblige to participate in VLEP’s pension scheme constituted a restriction on the freedom to provide services, violating article 56 TFEU. The argument was rejected: as the relevant legal provisions cover all employees working in the meat industry in the Netherlands, excluding workers employed by foreign employers would result in an unjustified difference in their treatment.

Cassation based on Gruber Logistics

Back to Presta’s main argument in cassation: Presta filed a cassation claim, invoking the CJEU ruling of 15 July 2021, C-152/20 Gruber Logistics. In that case, the CJEU has ruled that under Article 8 Rome I Regulation, the court must compare the level of protection that would have existed in the absence of a choice of law with the level of protection offered by the law chosen by the parties in an employment contract. The CJEU has thereby dismissed an interpretation of article 8 Rome I, according to which courts need not to compare the two relevant legal systems, but have to apply, next to chosen law, mandatory law of the country where the employee habitually carries out work. According to Presta, lower courts had to compare the level of employees’ protection provided by the Dutch law to the level of protection under the Luxembourg law.

As the lower courts made no such comparison, the Dutch Supreme Court has followed Gruber Logistics. Presta’s cassation claim has been honoured, and the dispute is referred back to a lower court. It shall have to determine whether the Dutch law or the law of Luxembourg offers a higher level of protection and thereafter apply the law to the dispute.

Presta v VLEP offers an illustration of a dispute in which a national court has followed CJEU’s reasoning in Gruber Logistics. Article 8 Rome I, as interpreted by the CJEU, charges national judges or anyone who needs to define applicable law, with a task that is by no means an easy one. It requires to engage with two legal systems:  identify the relevant sets of rules, determine the parameters of comparison, and make the actual comparison, before drawing conclusions in a specific case. This is a proper comparative law exercise. For example, in this case, may the comparison be limited to specific pension payments? May it be extended to a broader range of issues forming in their entirety high level of protection? Answering such questions requires a rigorous method. Given the various existing methods and diverging views on the proper way(s) to conduct a comparative law study, it can also generate new uncertainties. Meanwhile, the task reconfirms the relevance of comparative law for private international law, and has the potential to offer the highest possible tailor-made solutions.

A late note on ClientEarth v Shell Plc & Ors (Re Prima Facie Case) [2023] EWHC 1137 (Ch) in which Trower J refused to give permission to Client Earth (qualitate qua Shell shareholders) to bring a derivative claim in lieu of Shell, against the corporation’s directors.

The breaches alleged in ClientEarth’s claim are said to arise out of the Directors’ acts and omissions relating to Shell’s climate change risk management strategy as described in relevant corporate documentation. It also alleges breaches relating to the Directors’ response to the order made by the Hague District Court in Milieudefensie v Royal Dutch Shell plc which I reviewed here.

[3]:

The reason the legislation imposes an obligation on a shareholder to obtain permission to bring a derivative claim is that such a claim is an exception to one of the most basic principles of company law: it is a matter for a company, acting through its proper constitutional organs, not any one or more of its shareholders, to determine whether or not to pursue a cause of action that may be available to it. ClientEarth must therefore show that the limited and restricted circumstances in which it is appropriate for the court to authorise it, as a shareholder of Shell, to continue a derivative action against the Directors for breach of duty are present.

Current stage of the process is said to provide a filter for “unmeritorious” or “clearly undeserving” cases, with importantly [5] the applicant having to show that its application establishes a prima facie case before a substantive hearing is held. The substantive application for permission is set out in s.263 of CA 2006, as to which:

i) s.263(2) provides that an application for permission must be refused if the court is satisfied (a) that a person acting in accordance with his duty to promote the success of the company would not seek to continue the claim or (b) / (c) that any act or omission from which the cause of action arises has been authorised or ratified by the company before or since it occurred;

ii) s.263(3) makes provisions for a number of discretionary factors which the court must take into account in reaching its decision – they are (a) whether the member concerned is acting in good faith in seeking to continue the claim, (b) the importance which a person acting in accordance with his duty to promote the success of the company would attach to continuing it, (c) / (d) whether any act or omission from which the cause of action arises would be likely to be authorised or ratified by the company, (e) whether the company has decided not to pursue the claim and (f) whether the act or omission in respect of which the claim is brought gives rise to a cause of action that the member could pursue in his own right rather than on behalf of the company; and

iii) the court is also required by section 263(4) of CA 2006 to have particular regard to any evidence before it as to the views of members of the company who have no personal interest, direct or indirect, in the matter.

[14] The duties relied on by ClientEarth include two of the statutory general duties owed by the Directors to the Company pursuant to s.170 of CA 2006: the duty to promote the success of the Company (s.172 of CA 2006) and the duty to exercise reasonable care, skill and diligence (s.174 of CA 2006s).

[16] The duties owed by the Directors are also said to include what are pleaded as six necessary incidents of the statutory duties “when considering climate risk for a company such as Shell”. These are said by ClientEarth to be:

i) a duty to make judgments regarding climate risk that are based upon a reasonable consensus of scientific opinion;

ii) a duty to accord appropriate weight to climate risk;

iii) a duty to implement reasonable measures to mitigate the risks to the long-term financial profitability and resilience of Shell in the transition to a global energy system and economy aligned with the global temperature objective of 1.5°c under the Paris Agreement on Climate Change 2015 (“GTO”);

iv) a duty to adopt strategies which are reasonably likely to meet Shell’s targets to mitigate climate risk;

v) a duty to ensure that the strategies adopted to manage climate risk are reasonably in the control of both existing and future directors; and

vi) a duty to ensure that Shell takes reasonable steps to comply with applicable legal obligations.

[21] ClientEarth is not proposing any specific strategy which it requires the Board to adopt. Instead, it alleges that the Board’s current approach falls outside the range of reasonable responses to climate change risk. [26] ClientEarth needs to show that that the Directors’ current approach falls outside the range of reasonable responses to climate change risk and will cause harm to Shell’s members.

Conflicts lawyers will be interested in the two additional duties which are referred to as the further obligations [22]. They are that, pursuant to the common law of England and Dutch law respectively, a director who is aware of a court order is under a duty to take reasonable steps to ensure that the order is obeyed. This is pleaded as a precursor to ClientEarth’s allegation that Shell has failed to comply with the Dutch Order. Shell argue that there is no recognised duty owed by directors to a company in which they hold office to ensure that they comply with the orders of a foreign court and Trower J agrees there is no such authority:  [23] he holds that

while a director of a company is under a legal obligation to take reasonable steps to ensure that an order made by an English court is obeyed, the case on which ClientEarth relied (Attorney-General for Tuvalu v Philatelic Distribution Corpn [1990] 1 WLR 926 at 936E-F) is not authority for the proposition that there is any such duty owed by the directors to the company itself, which is separate or distinct from the duties they owe to the company as codified in Part 10 Chapter 2 of CA 2006. 

and [24]

the nature and extent of the Directors’ duties to Shell are governed by English law as the law of Shell’s incorporation, as to which the underlying point is the same. There is no established English law duty separate or distinct from the general duties owed by the Directors to Shell under CA 2006, which requires them to take reasonable steps to ensure that the order of a foreign court is obeyed, let alone to ensure compliance with that order. It follows that, even if as a matter of Dutch law, the Directors were to owe duties to Shell to take reasonable steps to ensure that the Dutch Order is obeyed, that would be irrelevant to the claims sought to be made in these proceedings, governed as they are by English law. So far as Shell’s potential claims against the Directors are concerned, the only question is whether their response to the Dutch Order rendered them in breach of an English law duty.

No reference here to anything like mutual trust such as by the Dutch courts in Heirs to the Sultan of Sulu v Malaysia.

[25] the judge refers to Lord Wilberforce in Howard Smith Ltd v Ampol Ltd [1974] AC 821 at 832E/F:  “There is no appeal on merits from management decisions to courts of law: nor will courts of law assume to act as a kind of supervisory board over decisions within the powers of management honestly arrived at.” A classic reminder of merits review v judicial review, in other words.

Then follows a discussion of the evidence (I do not think CPR would have allowed expert evidence at this stage nb so the evidence is provided by in-house-experts) put to the court by ClientEarth and the long and the short of it is the judge’s finding [47] that

“the evidence does not support a prima facie case that there is a universally accepted methodology as to the means by which Shell might be able to achieve the targeted reductions referred to in the ETS. This means that it is very difficult to treat what is said as providing a proper evidential basis for alleging that no reasonable board of Directors could properly conclude that the pathway to achievement is the one they have adopted.”

In the light of Shell’s effective abandonment of climate engagement beyond greenwashing (I realise I am not mincing my words here yet the company’s climate reversal under its new CEO is marketed purposely to attract investors), this is imho a wrong approach to the test. It also underscores the tragedy of climate change’s multi-facetted challenges: because of the extent of the challenge, no singular approach is singlehandedly either efficient or sufficient, yet the opponents of climate action use that as a smokescreen to bedazzle judges with a labyrinth of inaction. Industry’s Merchants of Doubt approach has clearly worked here.

As for the Dutch judgment, the judge is not convinced of the nature of what the judgment really orders, and here, too, CPR rules on evidence seem to have put a spanner in the works (prof Toon van Mierlo’s Opinion not being addressed to the court etc: [53]).

[63] the judge adds obiter that in light of the de minimis extent of ClientEarth’s shareholder interest in Shell, some doubt must be cast on its ulterior rather than derivative interest in the claim. [64]

“it seems to me that where the primary purpose of bringing the claim is an ulterior motive in the form of advancing ClientEarth’s own policy agenda with the consequence that, but for that purpose, the claim would not have been brought at all, it will not have been brought in good faith. The reason for this is that it will be clear to ClientEarth that it is using an exceptional procedure in the form of a derivative action, for a purpose other than the purpose for which the legislation has made it available. If, on the evidence adduced by the applicant, that remains an open and unanswered question irrespective of what Shell might say at the substantive hearing, the court cannot be satisfied that ClientEarth is acting in good faith, a situation which will count strongly against a conclusion that it has established a prima facie case for permission.”

I.a. the judge’s approach [65] of the collateral motive of the shareholder I imagine must be appealable as a point of law.

Geert.

Judgment in Client Earth v #Shell is now here

ClientEarth v Shell Plc & Ors (Re Prima Facie Case) [2023] EWHC 1137 (Ch)https://t.co/vYTtbJgc5T #climatelitigation https://t.co/9RS3k2gNtX

— Geert Van Calster (@GAVClaw) May 17, 2023

Update 6 July 2023 my thoughts on the funding issue are here.

The Heirs of the Sultan of Sulu v Malaysia at the end of June saw both the Paris Court of Appeal declare as inadmissible (due to late introduction) their appeal against the earlier decision suspending the exequatur, in France, of the final arbitral award (issued in Paris as locus arbitri, but under Spanish law as lex arbitrii) granting them close to 15 billion USD in a saga dating back to colonial times, and the Hague courts (also upon appeal) confirm the unenforceability of the same award in The Netherlands.

The latter judgment found that

a Madrid court judgment of 19 June 2021  annulling the appointment of the sole arbitrator has to be recognised in The Netherlands on the basis of the Dutch Supreme Court’s criteria in Gazprom; of note is the court’s confirmation of the issue not being included in CJEU Marc Rich (and see also CJEU Gazprom), however it also [6.7] emphasises that even outside the scope of Brussels Ia, there is mutual trust between the courts of Member States of the EU;

the relevant agreement at issue (confirmed in 1903) did not include an agreement to arbitrate; and

the stay (in the meantime confirmed by the Paris Court of Appeal: see above) in enforcement of the award by the French courts would likely also lead to the annulment of the award.

The heirs may still consider a further appeal to the French Supreme Court and the award itself has not yet been annulled however the case is notorious in international arbitration and, it is suggested, can only have been this long running due to what is said to be inappropriate third party funding.

Geert.

Confirmation of unenforceability of the Heirs of the Sultan of Sulu v Malaysia #arbitration award in The Netherlandshttps://t.co/w3OLK9xVep pic.twitter.com/7wyOdQOJH3

— Geert Van Calster (@GAVClaw) July 4, 2023

Puigdemont i Casamajó et Comín i Oliveres / Parlement
Droit institutionnel
Le recours de MM. Carles Puigdemont i Casamajó et Antoni Comín i Oliveres et de Mme Clara Ponsatí Obiols contre les décisions du Parlement européen de lever leur immunité est rejeté

Horatia Muir Watt’s latest book has recently been published by Hart in its Hart Monographs in Transnational and International Law, under the title The Law’s Ultimate Frontier: Towards an Ecological Jurisprudence (the subtitle reads A Global Horizon in Private International Law).

Here’s the publisher’s blurb:

This important book offers an ambitious and interdisciplinary vision of how private international law (or the conflict of laws) might serve as a heuristic for re-working our general understandings of legality in directions that respond to ever-deepening global ecological crises. Unusual in legal scholarship, the author borrows (in bricolage mode) from the work of Bruno Latour, alongside indigenous cosmologies, extinction theories and Levinassian phenomenology, to demonstrate why this field’s specific frontier location at the outpost of the law – where it is viewed from the outside as obscure and from the inside as a self-contained normative world – generates its potential power to transform law generally and globally.

Combining pragmatic and pluralist theory with an excavation of ‘shadow’ ecological dimensions of law, the author, a recognised authority within the field as conventionally understood, offers a truly global view. Put simply, it is a generational magnum opus. All international and transnational lawyers, be they in the private or public field, should read this book.

See here for more information. The publisher offers a 20% discount to those buying the book through its website using GLR BE1US for US orders and GLR BE1UK for all other orders.

L’infraction de non-représentation d’enfant est caractérisée lorsque les décisions étrangères attribuant au prévenu la garde exclusive de l’enfant et excluant sa représentation à l’autre parent ont été obtenues par fraude, en méconnaissance de l’ordre public international procédural français.

Sur la boutique Dalloz Code pénal 2024, annoté Voir la boutique Dalloz

en lire plus

Thank you Anil Yilmaz, whose reply to a Tweet made me aware of the judgments of end of February in the claim brought by a number of NGOs against Total viz its activities in Uganda. The claim is an ex ante claim brought on the basis of the French statute which introduced the so-called devoir de vigilance or duty of care in the business and human rights sector. It argues that Total’s plan for the Ugandan activities at issue, fail the standard of the Act.

I had earlier flagged the procedural issue in the case and Cédric Helaine has review and links to the judgments here. The court (p.18) notes that the implementing decree which is supposed to detail the requirements of the law, has still not been adopted and that the law itself does not offer a blueprint, a decision tree, a list of indicators, merely indicating that the plan needs to include a ‘reasonable’ list of both pressure points and measures to address these, and that the plan moreover is to be drafted in consultation with stakeholders. In the absence of Government clarification of what this might entail, the court then points out that the reasonable or not character of the plan needs to be assessed by the courts themselves yet (p.20-21) and that a judge in an interlocutory proceeding in particular, can only be asked to discipline those plans which are non-existent, or clearly insufficient (which the judge finds is not the case here), yet cannot be expected to judge the plan’s reasonableness:

S’il entre dans les pouvoirs du juge des référés de délivrer une injonction en application des dispositions susvisées lorsque la société, soumise au régime du devoir de vigilance n’a pas établi de plan de vigilance, ou lorsque le caractère sommaire des rubriques confine à une inexistence  du plan, ou lorsqu’une illicéité manifeste est caractérisée, avec
l’évidence requise en référé, en revanche, il n‘entre pas dans les pouvoirs du juge des référés de procéder à l’appréciation du caractère raisonnable des mesures adoptées par le plan, lorsque cette appréciation nécessite un examen en profondeur des éléments de la cause relevant du pouvoir du seul juge du fond.

The judge concludes that in the case at issue, there is no such obvious shortcoming and that the request therefore is inadmissible given the role of the interlocutory proceedings.

This judgment of course says little on the role of the Act in claims on the merits of duty of care in which Acts such as these play a role (as opposed to claims merely arguing the planning stage is insufficient) however it clearly puts pressure on the French government urgently to produce its more detailed order, and it confirms the need to introduce detail either in these Acts (including in the recently adopted EU Directive) themselves or, swiftly, in executive follow-up. This avoids that judges use trias politica as a way out of having to judge the issues on their merits.

Geert.

Droit de vigilance, #bizhumanrights #mHRDD
French SC in tribunal de conflits role, assigns jurisdiction to civil court of first instance, not the commercial court.
Case may now finally continue on the merits. https://t.co/ERbD6r6Lsm

— Geert Van Calster (@GAVClaw) December 16, 2021

On 30 June 2023, the Supreme Court of Poland issued an interlocutory order (II CSKP 1518/22) in a case regarding the enforcement in Poland of a Dutch judgment.

The order provides fresh evidence of how the long-lasting tensions between Poland and EU with respect to rule of law and independence of judiciary in Poland is having an impact on the operation of EU instruments on judicial cooperation (for a recent analysis of those tensions, see M. Taborowski, P. Filipek, Mustard After Lunch? Polish ‘Muzzle Law” before the Court of Justice, on EULawLive).

The Order in a Nutshell

The order of the Supreme Court was given in the framework of proceedings brought against a ruling rendered by the Court of Appeal of Poznań in 2020 (I ACz 444/20, unreported). The latter ruling had dismissed, in turn, an appeal against a District Court decision regarding the enforceability in Poland of a judgment rendered by the Rechtbank Limburg, in the Netherlands.

According to the Supreme Court’s press release, the order was based on Article 1153(24) of the Polish Code of Civil Procedure. The latter provision deals with recognition and enforcement of judgments given in a Member State of the Union pursuant to EU legislation on judicial cooperation in civil matters.

Little is known, at this stage, about the merits of the case. Rather, the decision is interesting for the way in which the Supreme Court decided to approach the issue of the enforceability of the Dutch judgment in Poland. In fact, the Supreme Court decided to stay the proceeding and ask the Ministry of Justice of Poland and the Dutch Judiciary Council (Raad voor de Rechtspraak) for clarifications regarding the independence of Dutch judicial authorities, in general, and – specifically – the magistrate who handed down the judgment.

Reasons Given by the Supreme Court to Justify the Request for Clarification

The Supreme Court justified its request for clarification by referring to a number of EU primary law provisions. These include Article 2 TEU (“which entrusts the courts of the Member States of the EU with the task of ensuring the full application of  EU law in all its Member States as well as the judicial protection of the subjective rights of individuals, and therefore having regard to the need to verify of its own motion (ex officio) the fulfilment of the requirements of effective judicial protection/effective remedy and the existence in the legislation of the Member State of guarantees of judicial independence”) and Article 47(2) of the Charter of Fundamental Rights of the European Union, which provides the relevant standards for the assessment (“in conjunction with the second subparagraph of Article 19(1) of the TEU, given the imperative for the Supreme Court to follow the interpretation of these provisions made by, inter alia, the Court of Justice”).

The Court also stressed “the principle of consistency and the resulting need for the uniform application of EU law throughout the EU, that is in all Member States and therefore also on the territory of the Kingdom of the Netherlands”.

To corroborate its reasoning, the Supreme Court listed various rulings given by the Court of Justice of the European Union in proceedings against Poland, such as Commission v Poland, C-791/19 and  Commission v Poland, C-204/21, together with rulings concerning the question of independence of judiciary in Poland (A.B. and others, C-824/18).

Nothing in the order or in the press release indicates that the Supreme Court had concerns regarding the independence of the particular Dutch court (or the particular Dutch magistrate) in question, or had reasons to believe that the particular proceedings which resulted in the Dutch judgement were conducted in breach of fundamental procedural guarantees.

Clarification Requested

The Dutch Judiciary Council (Raad voor de Rechtspraak) was asked to provide, inter alia, “copies of documents supporting and relating to the procedure for the appointment of X.Y. [anonymized name of the Dutch magistrate of the judge of the Rechtbank Limburg]”, in particular as regards:

(a) the procedure for his appointment, indicating the competent bodies involved in the appointment procedure, their composition and the functions performed by their members, including an indication of the extent, if any, of the influence of legislative or executive representatives on the judicial appointment, and a copy of the appointment document, a copy of the application for appointment and the opinions, if any, on the candidacy of X.Y. for the office of judge,

(b) information about the competition for the office of judge at the Rechtbank Limburg in which X.Y. participated as a candidate, the number of competing other candidates for the judicial post to which X.Y. was appointed at the Rechtbank Limburg, and the appeal procedure, if any, for candidates who were not recommended by the competent authorities and were not appointed, as well as the evaluation criteria, if any,

(c) assessments of Judge X.Y.’s performance during his judicial service (also possibly prior to his appointment as a judge at the Rechtbank Limburg, if he has held office at another court) and any judicial, investigative or disciplinary proceedings pending against him, or allegations concerning the assessment of his independence and attitude in the performance of his judicial duties and outside his judicial service (insofar as this remains relevant)

(d) any activities of Judge X.Y. of a political nature, including political party affiliation, irrespective of its duration and employment in the legislative or executive branches of government …

The Ministry of Justice of Poland was asked, instead, to provide information, among other things, on the Dutch rules that govern, in relation to the judiciary:

(a) the procedure for nomination to the office of judge considering the constitutional and statutory standard of the Kingdom of the Netherlands and resulting from the case law of the CJEU (…), including the standards in force in this respect in the period before 2019 and currently, with particular regard to the transparency of the criteria and the conduct of the procedure,

(b) the influence of the legislative or executive power on the procedure for the nomination of judges of common courts in the Netherlands and its scope, with particular reference to the Raad voor de Rechtspraak (Council for the Judiciary) and the formal binding nature of its recommendations (opinions) on candidates for the office of judge, and, possibly, disciplinary or other proceedings concerning the disciplinary or criminal liability of a judge,

(c) the avenue of appeal for candidates not appointed to the office of judge,

(d) the composition and method of election of members of the Raad voor de Rechtspraak …

Meta Platforms e.a. (Conditions générales d’utilisation d’un réseau social)
Principes du droit communautaire PDON
Une autorité de la concurrence nationale peut constater, dans le cadre de l’examen d’un abus de position dominante, une violation du RGPD

We are pleased to present the newest Commentaries on Private International Law (Vol. 6, Issue 1), the newsletter of the American Society of International Law (ASIL) Private International Law Interest Group (PILIG). The primary purpose of our newsletter is to communicate global news on PIL. Accordingly, the newsletter attempts to transmit information on new developments on PIL rather than provide substantive analysis, in a non-exclusive manner, with a view of providing specific and concise information that our readers can use in their daily work. These updates on developments on PIL may include information on new laws, rules and regulations; new judicial and arbitral decisions; new treaties and conventions; new scholarly work; new conferences; proposed new pieces of legislation; and the like.

This issue has two sections. Section one contains Highlights on the application of the CISG in Latin American countries, and PIL and the protection of children. Section two reports on the recent developments on PIL in Africa, Asia, Europe, North America, Oceania, and South America.

 

The latest PILIG newsletter can be accessed here Summer 2023 ASIL Newsletter

The University of Kiel will host a conference on EU Insolvency Law and Third Countries: Which Way(s) Forward? on 26-28 October 2023. A special forum for young scholars is scheduled to take place on 26 October 2023 .

The conference is part of a coordinated research project on this topic endorsed by Uncitral and conducted in cooperation with representatives of the European Commission and the Hague Conference on Private International Law.

The goal of the conference, and of the underlying research project in general, is not so much to analyse the law as it stands today, but to discuss ideas how to further develop rules on coordination of EU insolvency law with insolvency law or insolvency proceedings in non-EU countries (e.g. the UK, Switzerland, the US, China and others).

The conference will be organized in a hybrid format, in presence in Kiel and online via Zoom. The deadline for registrations for the conference is 1 October 2023. The deadline to propose papers for oral presentations is 31 July (15 September for the Young Researchers Forum).

Further info on the project and the conference is available here.

Queries can be addressed to the organisers of the conference, Alexander Trunk and Jasnica Garašić, at office-eastlaw@law.uni-kiel.de or at intins@law.uni-kiel.de.

On 30 June 2023, the European Commission presented a proposal for a Council decision on the signing, on behalf of the European Union, of the United Nations Convention on the International Effects of Judicial Sales of Ships, adopted on 7 December 2022, also known as the Beijing Convention on the Judicial Sale of Ships.

The Convention sets out a uniform regime for giving effect to judicial sales internationally, while preserving domestic law governing the procedure of judicial sales and the circumstances in which judicial sales confer clean title, that is, title free and clear of any mortgage or charge. By ensuring legal certainty as to the title that the purchaser acquires in the ship, the Convention aims to maximize the price that the ship is able to attract in the market and the proceeds available for distribution among creditors, and to promote international trade.

The key rule of the Convention is that a judicial sale  in one State Party which has the effect of conferring clean title on the purchaser has the same effect in every other State Party, subject only to a public policy exception. Various provisions are found in the Convention which establish how a judicial sale is given effect after completion, including a requirement that the ship registry deregister the ship or transfer registration at the request of the purchaser, and a prohibition on arresting the ship for a claim arising from a pre-existing right or interest (i.e. a right or interest extinguished by the sale). To support the operation of the regime and to safeguard the rights of parties with an interest in the ship, the Convention provides for the issuance of two instruments: a notice of judicial sale and a certificate of judicial sale. It also establishes an online repository of those instruments which is freely accessible to any interested person or entity.

The Council decision that the Commission proposing is based on Article 81(2)(a) and (b) of the Treaty in the Functioning of the European Union, on the recognition and enforcement of judgments and the cross-border service of documents, in conjunction with Article 218(5) (concerning the conclusion of international agreements by the Union). In fact, some of the matters dealt with in the Beijing Convention affect the Brussels I bis Regulation and the Recast Service Regulation. The conclusion of the Convention comes, for those aspects, with the purview of the exclusive external competence of the Union.

The other matters covered by the Convention do not fall under that competence (the Convention includes provisions that deals with other issues of private international law, including jurisdiction, but they do not affect the operation of existing EU legislation). This means that that Member States should join the Convention alongside the Union, in order to ensure the full application of the Convention between the Union and third states.

Before the judicial holiday starting mid July the Court will deliver (as of today) decisions on two private international law cases and hold a hearing on another one.

The first decision is scheduled for on 6 July 2023. It corresponds to case C-462/22, BM, on a request from the German Bundesgerichtshof for a preliminary ruling on the interpretation of Article 3(1)(a) of the Brussels II bis Regulation on matrimonial matters and matters of parental responsibility. The question reads:

Does the waiting period of one year or six months under the fifth and sixth indents, respectively, of Article 3(1)(a) of the [Brussels II bis Regulation] begin to run with respect to the applicant only upon establishment of his or her habitual residence in the Member State of the court seised, or is it sufficient if, at the beginning of the relevant waiting period, the applicant initially has mere de facto residence in the Member State of the court seised, and his or her residence becomes established as habitual residence only subsequently, in the period before the application was made?

The proceedings concern the divorce of an individual of German nationality, and his wife, who is a Polish national. They married in Poland in 2000, and have twin sons born in 2003. The couple moved to Poland in the mid-2000s, into a house in Konstancin-Jeziorna in which the wife still lives today. They are also the joint owners of a dwelling in Warsaw.

The husband was a senior executive of a pharmaceutical manufacturer. Since April 2010, he has been employed as managing director for the Central Europe region, which includes Poland and the Netherlands, but not Germany. His activity is largely characterised by business trips and working from home. He resided on an occasional basis until the end of 2013 in the Netherlands; he also has a self-contained dwelling in a house occupied by his parents, in Hamm (Germany). He moved out of the house in Poland in June 2012, and since then, he has deepened his relationship with his new cohabiting partner in Hamm and has been caring for his sick parents. During his stays in Poland, which were always tied in with business trips, he was limited to having contact with his two sons.

On 27 October 2013, the husband filed a divorce application with the Amtsgericht Hamm (District Court, Hamm) submitting that his habitual residence had been there since mid-2012 at the latest.

The wife challenged the international jurisdiction of the German courts claiming that the husband did not move out of the house in Konstancin-Jeziorna until the beginning of April 2013, then lived in the jointly owned dwelling in Warsaw, and resided almost exclusively in the Netherlands or Poland between April and November 2013.

On 19 November 2013, she filed her own divorce application in Poland, with the Sad Okręgowy w Warszawie (Regional Court, Warsaw).

The Amtsgericht Hamm (District Court, Hamm) considered that the German courts lack international jurisdiction, and it dismissed the husband’s application as inadmissible. On appeal, the Oberlandesgericht (Higher Regional Court) held that according to the fifth and sixth indents of Article 3(1)(a) of the Brussels II bis Regulation, an applicant must have already established his or her habitual residence in the Member State of the court six months (or, respectively, one year) before the filing of the divorce application. A mere de facto residence in the Member State of the court is not sufficient for the commencement of the waiting period. The husband contests this interpretation.

L.S. Rossi is reporting judge; the decision will be taken by a chamber of five judges.

The second ruling, in case C-87/22, TT, also concerns the Brussels II bis Regulation. It is scheduled for Thursday 13. The referring court – the Regional Court Korneuburg (Austria) – asks the following:

1. Must Article 15 of [the Brussels II bis Regulation] be interpreted as meaning that the courts of a Member State having jurisdiction as to the substance of the matter, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, may request such a court to assume jurisdiction even in the case where that other Member State has become the place of habitual residence of the child following wrongful removal?

2. If Question 1 is answered in the affirmative, must Article 15 of [the Brussels II bis Regulation] be interpreted as meaning that the criteria for the transfer of jurisdiction that are set out in that article are regulated exhaustively, without the need to consider further criteria in the light of proceedings initiated under Article 8(f) of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction?

I summarized the facts of the case here. AG P. Pikamäe’s opinion was published in March. No English translation is available. He proposed the Court to answer that (my translation):

1. Article 15 of [the Brussels II bis Regulation] must be interpreted in the sense that, pursuant to Article 15(1)(b) of the Regulation, the court of a Member State, whose jurisdiction to rule on the custody of a minor is based on Article 10 of that Regulation, as the court of the Member State in which that minor had his habitual residence immediately before his wrongful removal, is empowered to request, exceptionally, the court of the Member State to which one of the parents wrongfully transferred the minor and in which he resides with him to exercise jurisdiction, provided it has duly ascertained, in view of the specific circumstances of the case, that the referral meets the three cumulative requirements established in Article 15 (1) of the same Regulation, among which the essential one that the referral responds to the best interests of the minor in question.

2. Article 15(1) of [the Brussels II bis Regulation] must be interpreted in the sense that, on the one hand, the requirements provided for in said provision are exhaustive and, on the other, the existence of a request for the return of a minor filed pursuant to article 8, first and third paragraphs, letter f), of the Convention on civil matters of international child abduction, made in The Hague on October 25, 1980, on which a final resolution has not yet been adopted, does not preclude the applicability of article 15 of said Regulation. However, the existence of such a claim for restitution is a factual circumstance that may be taken into account by the competent court when assessing the requirements, provided for in Article 15 (1), of the aforementioned Regulation, relating to the existence of a court better placed to hear the matter and to respect the best interests of the minor in case of referral to the court of another Member State with which the minor has a special relationship.

L.S. Rossi acts as reporting judge in a chamber of five judges (the same as in case C-462/22).

Finally, a hearing is taking place on Thursday 13 as well, in case C-394/22, Oilchart International, on the Brussels I bis Regulation and insolvency. The ruling has been requested by the Hof van beroep te Antwerpen (Court of Appeal Antwerp, Belgium). The underlying facts are the following. OW Bunker (Netherlands) BV (‘OWB NL’) is one of the companies of the Danish OWB Group. On the instructions of OWB NL, Oilchart International NV appellant supplied fuel to the ocean-going vessel Ms Evita K in the port of Sluiskil (the Netherlands), and issued an invoice  which remained unpaid due to the insolvency of OWB NL.

As Oilchart International NV, following the insolvency of OWB NL, had had a number of vessels attached in an effort to obtain payment for the fuel supplied, he had obtained bank guarantees from the ship owners concerned in order to effect a release of that attachment. Those guarantees provided that they could be invoked on the basis of ‘a court ruling or an arbitral award handed down in Belgium against either OWB NL’ or the ship owner.

It is alleged that, prior to the insolvency, ING Bank NV (‘ING’), together with others, had granted a loan. As security, the various entities of the OWB group, including OWB NL, had allegedly assigned their current and future claims on end customers to ING. ING intervened in the proceedings and sought to prohibit the invocation of the bank guarantees or other securities relating to the bunkered vessel before the conclusion of the insolvency proceedings relating to OWB NL.

The court at first instance declared the appellant’s claim against OWB NL inadmissible. With regard to ING’s claim, the court declared that it lacked international jurisdiction. On appeal, the referring court finds that, by not entering an appearance on the first day of the hearing, as was the case at first instance, the respondent OWB NL is deemed to have challenged the court’s international jurisdiction under Article 28(1) of the Brussels I bis Regulation.

The referring court asks:

(a) Must Article 1(2)(b) of the [Brussels I bis Regulation] in conjunction with Article 3(1) of the Insolvency Regulation (Regulation No 1346/2000) be interpreted as meaning that the term ‘bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings’ in Article 1(2)(b) of the Brussels Ia Regulation includes also proceedings in which the claim is described in the summons as a pure trade receivable, without any mention of the respondent’s previously declared bankruptcy, whereas the actual legal basis of that claim is the specific derogating provisions of Netherlands bankruptcy law (Article 25(2) of the Wet van 30 september 1893, op het faillissement en de surséance van betaling (Law of 30 September 1893 on bankruptcy and suspension of payment; ‘NFW’)) and whereby: it must be determined whether such a claim must be considered a verifiable claim (Article 26 NFW in conjunction with Article 110 thereof) or an unverifiable claim (Article 25(2) NFW); it appears that the question whether both claims can be brought simultaneously and whether one claim does not appear to exclude the other, taking into account the specific legal consequences of each of those claims (inter alia, in terms of the possibilities of calling for a bank guarantee deferred after the bankruptcy), may be determined in accordance with the rules specific to Netherlands bankruptcy law?

And further

(b) Can the provisions of Article 25(2) [NFW] be regarded as compatible with Article 3(1) of the Insolvency Regulation, in so far as that legislative provision would allow such a claim (Article 25(2) NFW) to be brought before the court of another Member State instead of before the insolvency court of the Member State in which the bankruptcy was declared?

The case has been allocated to a chamber of five judges, with F. Biltgen as reporting judge. It will be accompanied by an opinion by AG L. Medina.

Conventions & Instruments

On 23 June 2023, Paraguay deposited its instrument of accession to the 1965 Service Convention and the 1970 Evidence Convention. With the accession of Paraguay, the 1965 Service Convention now has 82 Contracting Parties. It will enter into force for Paraguay on 1 January 2024 subject to the Article 28 procedure. As for the 1970 Evidence Convention, with the accession of Paraguay it now has 66 Contracting Parties. It will enter into force for Paraguay on 22 August 2023. More information is available here.

 

Publications & Documentation

On 6 June 2023, the Permanent Bureau of the HCCH announced the publication of the Toolkit for Preventing and Addressing Illicit Practices in Intercountry Adoption. The Toolkit is intended to assist in the proper implementation and operation of the 1993 Adoption Convention, by providing practical guidelines on what must be done to identify, prevent, and address illicit practices and their enabling factors. More information is available here.

On 21 June 2023, the Permanent Bureau of the HCCH announced the publication of the HCCH’s Strategic Plan for 2023-2028. The Strategic Plan 2023-2028 outlines the mandate and mission of the HCCH, sets out the three strategic goals pursued by the Organisation to fulfil them, and enshrines the guiding principles behind all aspects of the HCCH’s operations. More information is available here.

 

Meetings & Events

On 9 and 10 June 2023, the Permanent Bureau of the HCCH and the University of Bonn, with the generous support of the Federal Ministry of Justice of Germany, successfully co-organised the Conference “The HCCH 2019 Judgments Convention: Cornerstones – Prospects – Outlook”, in Bonn, Germany. A book on the 2019 Judgments Convention was published in the lead up to the conference. The book can be ordered here.

On 12 June 2023, the kick-off meeting of the HCCH-UNIDROIT Joint Project on Law Applicable to Cross-Border Holdings and Transfers of Digital Assets and Tokens was held in The Hague in hybrid format. The Joint Project will examine the desirability of developing coordinated guidance and the feasibility of a normative framework on the law applicable to cross-border holdings and transfers of digital assets and tokens, covering relevant private law aspects. More information is available here.

On 15 June, the Permanent Bureau of the HCCH organised a conference on “The HCCH and its relevance for Africa” for Ambassadors of African States to the Kingdom of the Netherlands, with the generous support of the Municipality of The Hague.

On 27 June 2027, the Permanent Bureau of the HCCH and the Asian Business Law Institute co-hosted the webinar “Cross-border Commercial Dispute Resolution – HCCH 1965 Service Convention”. Among other topics, the discussion focused on the Service Convention’s interaction with other HCCH Conventions for cross-border dispute resolution, the Convention’s operation in practice, and Singapore’s accession to the Convention.

From 26 to 28 June 2023, the Working Group on the Financial Aspects of Intercountry Adoption met for the first time. The mandate of the Working Group is to take stock of current practices, identify possible coordinated, targeted, practical approaches, and to prioritise them with the aim of raising standards. More information is available here.

 

Upcoming Events

Save-the-date: On 5 October 2023, the Permanent Bureau of the HCCH will organise an online colloquium on the private international law implications of Central Bank Digital Currencies (CBDCs). More information will be available soon.

 

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.