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Professor Jen Daskal writes on Just Security about a potential legislative solution to the Microsoft Ireland case pending in the U.S. Supreme Court, which presents the question of whether a U.S. warrant requires Microsoft to hand over a user’s data that Microsoft stores in Ireland:

“A bipartisan group of Senators today introduced the Clarifying Lawful Overseas Use of Data (CLOUD) Act—a bill that moots the pending Supreme Court Microsoft Ireland case and authorizes the executive to enter into bilateral and multilateral agreements so as to facilitate cross-border access to data in the investigation of serious crime. Amazingly, the legislation has the support of both the Department of Justice and Microsoft – the dueling parties in the Microsoft Ireland case. It also has the support of many other tech companies.

As it should.

…”

Read the full post here.

For Professor Daskal’s thoughtful analysis of the conflicts of laws issues presented in the Microsoft case and their relationship to private international law issues, see her earlier analysis here.

Comité d'entreprise - Contribution de l'employeur - Masse salariale brute

Comité d'entreprise - Contribution de l'employeur - Masse salariale brute

Entreprise en difficulté (Loi du 26 juillet 2005)

Vente commerciale

Entreprise en difficulté (Loi du 26 juillet 2005)

Majeur protégé - Succession - Assurance de personne

On Friday, 13 April 2018, the Albert-Ludwigs-University of Freiburg (Germany) will host a workshop in the framework of the research project “Informed Choices in Cross-Border Enforcement” (IC²BE). Funded by the Justice Programme (2014-2020) of the European Commission, the project aims to assess the working in practice of the “second generation” of EU regulations on procedural law for cross-border cases, i.e. the European Enforcement Order, Order for Payment, Small Claims (as amended by Regulation (EU) 2015/2421) and the Account Preservation Order Regulations. As a result, it is intended to create a database of national case law. The project is carried out by a European consortium (the MPI Luxembourg and the universities of Antwerp, Complutense, Milan, Rotterdam, and Wroclaw) and is coordinated by Prof. Jan von Hein, Freiburg. Confirmed speakers include Professors Gerald Mäsch (University of Münster), Ivo Bach (University of Göttingen), Stefan Huber (University of Tübingen), as well as Dr. Denise Wiedemann (Max-Planck-Institute, Hamburg) and Dr. Bernhard Ulrici (University of Leipzig). Their presentations will be commented on by distinguished practitioners, such as Dr. Max Peiffer (Munich), Prof. Dr. Andreas Baumert (Achern), Dr. David Einhaus (Freiburg) and Dr. Nils H. Harbeck (Hamburg). The language of the workshop will be German. Partcipation is free of charge, but requires a registration. For further information about the program and the process of registration, please click here.

American Express
Liberté d'établissement
Un schéma tripartite impliquant un partenaire de comarquage ou un agent est soumis aux mêmes limites que celles applicables aux schémas quadripartites en matière de commissions d’interchange

Elle se proclame première structure russe d’investissement dans le financement de contentieux. Après deux années de service aux entreprises, son équipe tente une « expérience sociale » en s’adressant aux consommateurs. L’objectif : Apple et le ralentissement des anciens iPhones.

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La Cour européenne des droits de l’homme a condamné la France pour avoir exécutée de manière trop hâtive d’une décision d’expulsion d’un ressortissant algérien condamné pour actes de terroriste.

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Mardi 6 janvier, le procureur a requis quatre ans d’emprisonnement contre Jawad Bendaoud et Mohamed Soumah pour avoir aidé deux criminels – en l’occurrence, deux des terroristes du 13 novembre. Contre Youssef Aït-Boulahcen, la peine maximum a été requise : cinq ans d’emprisonnement pour non dénonciation d’un crime terroriste.

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When I reported on Saugmandsgaard ØE’s Opinion in C-359/16 Altun, I emphasised the issue of mutual trust. I noted that the AG effectively flipped the coin: sincere co-operation requires sincerity on both sides (my words, not the AG’s). The AG had recalled the Halifax case-law of the CJEU: EU law cannot be relied on for abusive or fraudulent ends and that national courts may, case by case, take account — on the basis of objective evidence — of abuse or fraudulent conduct on the part of the persons concerned in order, where appropriate, to deny them the benefit of the provisions of EU law, in the light of the objectives pursued by the provisions of EU law concerned. In November 2017 the CJEU confirmed in C-251/16 Cussens that this principle has direct effect and is directly applicable: it is a general principle of EU law which does not require a national measure transposing it.

In the case at issue, the facts point to non-fulfillment of one of the substantive criteria for the E101 certificate to be issued, namely that only an undertaking which habitually carries on significant activities in the Member State in which it is established may be issued an E101 of that State.

The Court today has confirmed the AG’s view (only the Dutch and French version were available at the time of writing). Mutual trust implies responsibilities on both sides. Upon receiving indications of fraud, the Member State of origin is duty-bound to investigate diligently and either confirm or refute the suspicions. (In the event of continuing divergence, there is an appeals procedure within the relevant secondary law, and if need be the possibility for the host State to pursue infringement proceedings with the home State). Like its AG, the Court emphasises that the fraud must be established in the context of adversarial proceedings with legal guarantees for the persons concerned and in compliance with their fundamental rights, in particular the right to an effective remedy enshrined.

This remains relevant even after the planned changes to the posted workers Directive. In the future system, too, Member States will issue certificates, feed data into the newly created register etc.

Geert.

This post has been prepared by

Dr. Jorg Sladic, Attorney in Ljubljana and Assistant Professor in Maribor (Slovenia)

In judgment of 25 October 2017 in case I Cpg 1084/2016 (ECLI:SI:VSLJ:2017:I.CPG.1084.2016) published on 31 January 2018 the Slovenian Appellate Court ruled on a question of implied consent to application of Slovenian law.

Unfortunately the underlying facts are not described with the necessary precision. It would appear that there was a three-person contractual chain between an Austrian, an Italian and a Slovenian commercial company. Apparently the Italian company was the seller, the roles of both the Austrian and Slovenian company are not very clearly described. The underlying transaction that led to the dispute was a contract for the sale of goods concluded under the CISG. The ruling does not state where the seller had the habitual residence, yet the condemnation to perform the payment can only be construed in such a way that the Italian plaintiff was the seller.

The court of first instance condemned the defendant (a Slovenian commercial company) to payment of the sum of 52.497,28 EUR to the Italian claimant (Italian commercial company) and dismissed the Slovenian defendant’s defense of set-off (exceptio compensationis) in the sum of 50.000,00 EUR.

The condemnation was based upon a sales contract for goods concluded under the application of the CISG. The Slovenian defendant contended that the Italian claimant did not sign the double order / mandate addressed to the Austrian third person (named the client or the orderer) who had been instructed to perform the payment to the Italian company. The Austrian client later withheld the performance of payment due to a non signed double order / mandate (double order/mandate is a figure where a principal gives the first mandate to the agent to perform an obligation to a third person (recipient) and the second mandate to the third person (recipient) to accept the performance of such an obligation, see Art. 1035 Slovenian Code of Obligations: Through an instruction one person, the principal, authorizes a second person, the agent, to perform an obligation for the latter’s account to a certain third person, the recipient (the beneficiary), and authorizes the third person to accept performance in the third person’s name. The Slovenian legislative provision corresponds to § 1400 Austrian ABGB, § 784 German BGB and Art. 468 Swiss Code of Obligations). The defendant claimed in his defense of set-off that there was an extra-contractual obligation (a delict) due to lack of performance of the Austrian agent that was caused by the Italian company.

One of the pleas in appeal was that Italian and in the alternative the Austrian substantive law should be applied for assessing the existence of the obligation to be set-off. The Court of Appeal dismissed such a plea. The Slovenian defendant alleged an allegedly mature and liquid non-contractual obligation to be set-off. The assessment of facts narrated by the Slovenian company i.e. the damages set-off due to non signature of an order given to the Austrian company shows that there is in essence a defense of breach of the claimant’s obligation in accepting the performance based on the same facts as the claimant’s claim to payment. The Appellate Court expressly avoided the characterization of the said breached obligation as contractual or as non-contractual. There was only a precisions that the facts underlying both the contractual obligation to perform a payment and the allegedly breached obligation are identical.

According to the Appellate Court in Ljubljana the court of first instance found that there was an implied consent to apply the Slovenian law, neither party contested the application of Slovenian law in the first and also in the appellate instance. The law applicable to the obligation that was claimed in set – off is therefore Slovenian law. Even if such an obligation were non – contractual, Slovenian law would have to be applied under Art. 4(1) and (3) in connection with Art. 15 Regulation (EC) No 864/2007 (Rome II).

The ruling does not contain any explicit connecting factor. The issue is not Art. 17 Rome I Regulation (Regulation (EC) No 593/2008). One can assume that under Art. 1(1) CISG the applicable law is the CISG as Austria, Italy and Slovenia are contracting parties to the said UN convention. However, the interesting part is the reference to the implied consent to the application Slovenian substantive law. Under Art. 4(1)(a) Rome I Regulation (Regulation (EC) No 593/2008) “a contract for the sale of goods shall be governed by the law of the country where the seller has his habitual residence”. This should prima facie be the Italian law, as the Italian company applied for payment after having performed the specific performance under the sales contract. However, not contesting the application of Slovenian substantive law in judicial proceedings in first and also in the appellate instance was then construed as “implied consent” to Slovenian substantive law (Art. 3(2) Regulation Rome I). Seen in pragmatic perspective, in order to avoid a uneasy modus vivendi or fine tuning of Art. 3 and 15 of the Regulation Rome II with Art. 17 Regulation Rome I the Slovenian Appellate Court preferred to refer to Slovenian law even if under conditions that do not easily fit in Art. 3(2) and 10 Rome I Regulation.

Louboutin et Christian Louboutin
Propriété intellectuelle et industrielle
Selon l’avocat général Szpunar, une marque qui combine couleur et forme peut être refusée ou annulée pour les motifs prévus par le droit de l’Union sur les marques

Altun e.a.
Sécurité sociale des travailleurs migrants
Les juridictions nationales peuvent, en cas de fraude, écarter l’application du certificat de sécurité sociale des travailleurs détachés dans l’Union européenne

Many thanks to Andrew Savage and Nick Payne for flagging [2017] EWHC 1968 (Comm) Bestolov v Povarenkin a little while ago, and for sending me copy of the judgment at the time. Apologies for late reporting: frustratingly even at gavclaw we cannot always devote the amount of time to the blog we would wish. Dr Maganaris in the meantime also has summary here.

As readers no doubt are aware, the Brussels I Recast Regulation (Article 62) does not define ‘domicile’: it defers to national private international law on the issue. The Civil Jurisdiction and Judgments Order 2001 establishes that a person is domiciled in England for the purpose of the Brussels Regulation (recast) if: the person is “resident” in England; and (cumulatively) the person has a “substantial connection” to England. Bryan DJ takes us through the relevant (and often colourful) precedent and notes, importantly, at 28 that the consequence of the English rules is that the same person can be resident in two different jurisdictions at the same time. At 44, he summarises with a list of criteria, and decides on the facts of the case that Mr Povarenkin is indeed domiciled in England (the substantial connection test having been more easy to determine than that of residence).

Subsequently the High Court reviews at length whether there was a valid choice of court agreement under Article 25 of the Regulation – which at this jurisdictional stage of the proceedings Bryan DJ decides there was not (choice of law for the relevant contracts being English law, was justifiably not considered definitive in this respect), at least not clearly. Obiter, the judge reviews forum non conveniens, at lenght in fact (and in a very clear way with a keen eye on relevant precedent as well as court practice in England) however he holds both before and after the obiter that evidently given Owusu, forum non conveniens has no calling.

A well written judgment, the approach of which on domicile evidently goes beyond having relevance merely for the English courts: for under the Regulation, courts in other Member States, too, may have to consider whether parties are domiciled in an EU Member State other than their own including, for the time being, the United Kingdom.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.3, Heading 2.2.14.5.

Un utilisateur d’un compte Facebook privé ne perd pas la qualité de « consommateur », au sens de l’article 15 du règlement Bruxelles I, lorsqu’il publie des livres, donne des conférences, exploite des sites internet, collecte des dons et se fait céder les droits de nombreux consommateurs afin de faire valoir ces droits en justice.

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