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Thank you Angharad Parry for flagging  [2017] EWCA Civ 1609 Koza v Akcil – Angharad has excellent factual background. The case concerns the application of Article 24(2) of the Brussels I Recast Regulation, which assigns exclusive jurisdiction to the Courts of the Member State of the seat in matters relating to the life and death of companies and of the validity of decisions made by their organs:

in proceedings which have as their object the validity of the constitution, the nullity or the dissolution of companies or other legal persons or associations of natural or legal persons, or of the validity of the decisions of their organs, the courts of the Member State in which the company, legal person or association has its seat. In order to determine that seat, the court shall apply its rules of private international law;

Referring particularly to C-144/10 BVG and to C-372/07 Hassett, the Court of Appeal at 28 correctly suggests Article 24’s exclusive jurisdictional rules need to be interpreted with their limited purpose in mind: ‘when article 24(2) speaks of proceedings having an “object” it is not referring to the purpose of the proceedings. Rather that phrase is to be interpreted as “proceedings which are principally concerned with” one of the types of subject matter within the article.’ At 37: ‘The task for the court in each case is therefore to determine whether the proceedings relate principally to the validity of the decisions of an organ of the company. A mere link to a decision of the company, or an issue raised which is ancillary to the heart of a contractual or some other dispute, is insufficient to bring the proceedings within the exclusive jurisdiction.’

Floyd LJ at 46 summarises the direction for courts: ‘I do not take from the English or European authorities which were cited to us any suggestion that one is required in all cases to disentangle issues which are interlinked in this way and apply Article 24(2) to each issue separately. On the contrary, faced with such proceedings, the court is required to form an overall evaluative judgment as to what the proceedings are principally concerned with. The position is obviously different from a case where two quite independent claims are made in the same proceedings. Exclusive jurisdiction in relation to each claim would, in those circumstances, have to be determined separately.’ In the case at hand the case was found overall and fundamentally to concern one and the same issue of the validity of decisions of the organs of the company

Consequently the issue is one of looking beyond the particulars of form and into the true nature of the proceedings. Not a decision always made with ease.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading

La Cour des comptes juge satisfaisante la cellule temporaire de régularisation qui a permis de récupérer près de 8 milliards d’euros d’impôts sur des actifs détenus essentiellement en Suisse. Ce dispositif, qui va disparaître à la fin de l’année, sera « remplacé » par un système multilatéral d’échange automatisé de données qui soulève des questions.

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In a recent ruling, the Supreme Court of Greece dismissed a cassation against an appellate decision, confirming the findings of the first instance ruling, which issued a default judgment against an Italian company, following the return of a non-service certificate by an Italian bailiff.

The interesting part of the judgment is related to the application of Art. 19.2 Service Regulation.

The questions raised are twofold:

First, the extent of efforts to be made by the Receiving Authority, before deciding to return the document to the Transmitting Authority.

Second, the presumption of the Greek Supreme Court that failure of the defendant to notify his change of abode, allows a court to continue with the proceedings, even when the change occurred before lis pendens.

More information can be found here.

The European Parliamentary Research Service (EPRS) has published the results on its Study “Cross-border restitution claims of looted works of art and cultural goods”. The objective of the Study is described as follows:

“Works of art and cultural goods looted in armed conflicts or wars usually travel across several borders when they are sold. The cross-border character of looted art creates legal challenges for restitution claims as they often concern various national jurisdictions, with differing rules, as well as fragmented and insufficiently defined legal requirements in international and European legal instruments. Against this background, this European Added Value Assessment identifies weaknesses in the existing EU legal system for restitution claims of works of art and cultural goods looted in armed conflicts and wars. Moreover, it outlines potential legislative measures that could be taken at the EU level and that could generate European added value through simplification and harmonisation of the legal system in this area.”

Against this background, the Study deals, inter alia, with

(i) shortcomings of Article 7 no. 4 Brussels Ibis Regulation;

(ii) possible improvements of choice of law in relation to cultural property such as the question of a “lex originis” as a potential variation to the lex rei sitae under certain circumstances;

(iii) potential amendments on the level of substantive law such as e.g. the accession of the remaining Member States to the UNIDROIT Convention on Stolen or Illegally Exported Cultural Goods or, alternatively, autonomous means of incorporating elements of this Convention or relevant provisions of the DCFR by extending Directive 2014/60/EU of the European Parliament and of the Council of 15 May 2014 on the return of cultural objects unlawfully removed from the territory of a Member State;

(iv) the special issue of Holocaust related claims for restitution, including options for developing an adequate sales law;

(v) accompanying measures on EU level such as increasing data exchange of results from provenance research or setting up a EU Agency for the Protection of Cultural Property.

The legal basis for this Study is the following: In accordance with Article 225 of the Treaty on the Functioning of the European Union (TFEU), the European Parliament has a right to ask the European Commission to take legislative action in a particular area. Such requests are based on a legislative initiative report by the parliamentary committee responsible. On 16 February 2016, the Conference of Presidents of the European Parliament authorised its Committee on Legal Affairs (JURI) to draft a legislative initiative report on cross-border restitution claims of looted works of art and cultural goods.

All legislative initiative reports must automatically be accompanied by a detailed European Added Value Assessment (EAVA). Accordingly, the JURI Committee asked the Directorate-General for Parliamentary Research Services (EPRS) to prepare an EAVA to support the legislative initiative report on the cross-border restitution claims of works of art and cultural goods looted in armed conflicts and wars. The Rapporteur is Pavel Svoboda (EPP, Czech Republic), Chairman of the JURI Committee. The author of the Study is Dr Christian Salm, Policy Analyst, European Added Value Unit. The Study is based on an externally commissioned scientific study (“Annex I”) by the author of these lines. Both texts are available here.

Preuve - Chambre de l'instruction