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Affaire [I]Barroso[/I] : la Commission européenne riposte pour plus de transparence

Le 28 septembre 2016, la Commission européenne a proposé un registre de transparence obligatoire commun aux trois institutions de l’Union européenne, le Parlement européen, le Conseil et la Commission.

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CEDH : discrimination licite relative au montant de pensions de retraite fondée sur la nationalité

Une différence de traitement fondée sur la nationalité lors du calcul de pensions de retraite peut être objectivement justifiée par des circonstances particulières et constituer une discrimination licite.

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Action en concurrence déloyale dans un contexte international

La Cour de cassation rejette l’action en concurrence déloyale exercée par une société de mode contre une enseigne de prêt-à-porter et son ancien directeur artistique, faute, notamment, d’avoir établi quel serait son style particulier qui constituerait une valeur économique individualisée, fruits d’investissements, que l’enseigne aurait voulu copier.

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Modernisation à venir des règles européennes sur les droits d’auteur

À l’occasion du discours sur l’état de l’Union 2016 prononcé le 14 septembre par son président, Jean-Claude Juncker, devant le Parlement européen, la Commission européenne est revenue sur les progrès qu’elle a accomplis tout au long de l’année et a présenté son nouveau programme de travail pour l’année à venir, exposant, entre autres, la refonte des règles européennes en matière de droit d’auteur. 

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Loi des 16-24 août 1790

Cour de cassation française - Fri, 09/30/2016 - 13:23

Conseil de Prud'hommes de Lyon, 22 septembre 2016

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JASTA: Hard cases make bad law. Awful cases even worse law.

GAVC - Fri, 09/30/2016 - 00:06

It is important at the outset to clarify terminology. A variety of statements, papers and position papers on JASTA, include the doctrine of ‘State immunity’ to either reject or support the Act. The Max Planck Encyclopedia of Public International Law, P-T Stoll (2011) defines State Immunity as:

“State immunity protects a State and its property from the jurisdiction of the courts of another State. It covers administrative, civil, and criminal proceedings (jurisdictional immunity), as well as enforcement measures (enforcement immunity). It reflects the sovereign equality of States as a main pillar of the contemporary international legal order. State immunity is closely related to but distinct from diplomatic immunity and the immunity of heads of States as well as the immunity of international organizations”.

This definition already shows the many levels of ‘immunity’ and the potential for confusion. The immunity at stake in JASTA is jurisdictional immunity. At the core of this immunity lies its procedural character. Immunity from jurisdiction does not mean that the subject enjoying it, is not bound by the law. States are evidently bound to apply international law. They and their agents and representatives are also bound to apply local law. Immunity from jurisdiction simply means that States cannot be pursued by the ordinary courts and tribunals of other States.

State immunity is seldom included in Treaties. It is considered to be part of customary international law. One or two Treaties have tried to codified it (e.g. the 1972 Basel Convention; and the United Nations Convention on Jurisdictional Immunities of States and Their Property, adopted on 2 December 2004) however these Treaties do not have many signatories. Anglo-Saxon jurisdictions such as the United States and the United Kingdom have a purpose-made Act that specifies how State immunity (and its limited exceptions) are to be applied on their soil. Civil law countries tend not to have such Act.

The existence of jurisdictional immunity of the State was confirmed by the International Court of Justice in its judgment of 3 February 2012 in Germany v Italy. Here, the ICJ noted (at 56)

Although there has been much debate regarding the origins of State immunity and the identification of the principles underlying that immunity in the past, the International Law Commission concluded in 1980 that the rule of State immunity had been “adopted as a general rule of customary international law solidly rooted in the current practice of States” (Yearbook of the International Law Commission, 1980, Vol. II (2), p. 147, para. 26).

The Court considers that the rule of State immunity occupies an important place in international law and international relations. It derives from the principle of sovereign equality of States, which, as Article 2, paragraph 1, of the Charter of the United Nations makes clear, is one of the fundamental principles of the international legal order. (at 57)

And ibidem

Exceptions to the immunity of the State represent a departure from the principle of sovereign equality.

‘Sovereign equality’ lies at the core of the principle of State immunity. In one of the pivotal early cases on the doctrine, The Schooner Exchange v McFaddon (1812), Justice Marshall of the United States Supreme Court emphasised the functional character of the principle. Other States sovereigns, their bodies and their agents need to be unencumbered in the pursuit of their mission. Just as the home nation expects its sovereign and its representatives to be treated in such way in other nations.

National courts in ordinary are not equal to the sovereign’s status and often diplomatic missions, which is exactly why those activities should not be hampered by law suits having to be entertained in local courts.

It may at first sight seem as if the doctrine of State immunity, like many century old concepts, surely ought not to stand in modern society. In 1951, Professor Sir Hersch Lauterpacht QC called State immunity an essentially insignificant and artificial problem (Lauterpacht, 1951). He supplemented his thoughts with a proposal to all but abolish the immunity of foreign States before domestic courts. In 1988, Professor (now emeritus) Christoph Schreuer published a volume on ‘recent developments’ in State immunity (Schreuer, 1988) in which he demonstrated that, defying Sir Hersch’s predictions, State immunity continued to exist. Now, nearly 30 years after that latter volume and a full 65 years following prof Lauterpacht’ s article, State immunity continues to exercise legislators and the judiciary worldwide, with increased attention to the citisens’ (including corporations) rights  of access to justice.

The boundaries and implications of State immunity are more than ever challenged. States and State extensions (public private partnerships; autonomous public undertakings; privatised utilities with public interest duties; State-funded and /or State run corporations…) play an increasingly relevant role in today’s integrated global economies.

Privatisation, outsourcing, and the general trend in many jurisdictions to downsize the government apparatus, means that in recent years more than ever before, boundaries between ‘the State’ and ‘the private sector’ have become increasingly blurred. Yet in litigation, both at the jurisdictional and at the enforcement stage, the conceptual difference between State parties involved in litigation, and ‘commercial’, private parties, continues to exist.

The increasing presence of ‘the State’(in the broad sense) in general economic life has led to a need for renewed statutory and judiciary response to issues as diverse as vulture funds litigation involving sovereign debt, enforcement of arbitral proceedings against States (and similar entities), …

Italian and Belgian courts were among the first to distinguish, in the application of a principle of sovereign immunity, between States acting iure imperii, and acting iure gestionis. The difference being that in the latter, the State pursues commercial activities just like companies and individuals and, the theory goes, they should therefore not enjoy immunity from jurisdiction.

The limited exceptions to state immunity such as in the case of acta iure gestionis may suggest that State immunity faces un unstable path. In 2012, as noted, the International Court of Justice (ICJ) supported state immunity by ruling that Germany could benefit from the principle to avoid paying damages for war crimes and violation of ius cogens (Germany v. Italy). A year later, the European Court of Human Rights (ECtHR) was less favourable by stating that an absolute interpretation of the principle violates article 6 of the European Convention on Human Rights (ECHR) (Oleynikov v. Russia). However that latter case concerned the iure gestionis exception: The case concerned a Russian national who complained about the refusal by the Russian courts to examine his claim concerning the repayment of a loan to the Trade representation of North Korea. The Court held that the limitation of Mr Oleynikov’s right of access to court had pursued the legitimate aim of promoting good relations between States through the respect of national sovereignty. However, it concluded that the Russian courts had failed to examine whether the nature of the transaction underlying the claim was of a private law nature and to take into account the provisions of international law in favour of restrictive immunity.

The point about State immunity from jurisdiction is that it operates blindly. It can only fulfil its function if it is entirely blind to the merits of the underlying case. Except if the case might conceivably involve commercial activities of the State concerned, a court should simply not entertain the case at all. This is all the more relevant in cases which involve topical international relations issues, such as in particular the fight against international terrorism. By lifting that procedural bar, JASTA makes sovereign States, including those of the European Union, subject to the full weight of American civil procedure, including pre-trial discovery, trial by jury, attorneys fees etc. Exactly the kind of distraction which Justice Marshall would have called an unjustified and unhelpful complication in Sovereign States pursuing their business, as States.

A unilateral change to the theory and practice of sovereign immunity such as proposed by JASTA, in my view does not reflect international law on the issue. It would undermine the very foundation of international diplomacy and law. I believe European nations would be well advised to protest against it, and to protest loudly.

There is no such thing as ‘sovereign immunity-light’. From the moment the principle is eroded, even for what seems a good or justified cause, it is damaged beyond repair.

Geert.

Régularité internationale d’un jugement tunisien de divorce

En application de la Convention franco-tunisienne du 28 juin 1972, il incombe au juge français d’examiner, au besoin d’office, la régularité internationale d’un jugement de divorce tunisien invoqué pour faire échec à une procédure de divorce engagée en France.

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Sous-traitance : quand le droit pakistanais s’invite dans les tribunaux allemands

Le tribunal de grande instance de Dortmund veut faire évaluer sur la base du droit pakistanais la responsabilité d’une chaîne allemande de magasins de textiles dans l’incendie de l’usine d’un sous-traitant à Karachi. 

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Essent 2.0. The CJEU surprisingly does distinguish. Support for renewable, ‘green’ energy not entirely carte blanche.

GAVC - Thu, 09/29/2016 - 14:14

Excuse the attempt at pun in the title (which readers may have even missed. ‘Green’ v carte ‘Blanche’. It’s Thursday, and these are busy weeks). Apologies also to the readers who are new to the debate. The legality of support schemes for renewable energy  EU law has occupied mine and others’ mind for a little while now. One may want to refer eg to my paper on the Vindkraft et al judgment or to various postings on this blog. Specifically, for the latter, my post on the AG’s Opinion in Essent 2.0, case C-492/14., judgment issued today.

Bot AG had opined, very very reluctantly, that the Court’s case-law meant that Flanders could indeed reserve the benefit of the free distribution of electricity produced from renewable energy sources solely to generating installations directly connected to the distribution systems located in Flanders, thereby excluding generating installations located in other Member States.

The Court itself has now distinguished its own case-law: the EU has not harmonised the national support schemes for green electricity; this means that it is possible in principle for Member States to limit access to such schemes to green electricity production located in their territory. However the Court’s sympathy is now limited to schemes that support producers only. Green energy support schemes, whose production costs seem to be still quite high as compared with the costs of electricity produced from non-renewable energy sources, are inherently designed in particular to foster, from a long-term perspective, investment in new installations, by giving producers certain guarantees about the future marketing of their green electricity (at 110, with reference to Vindkraft).

However it is not the purpose of the Flemish scheme to give direct support to producers of green electricity. Rather, the free distribution of green electricity constitutes a financial advantage conferred primarily on the supplier of such electricity, which may, in certain circumstances, depending notably on the sale price which the consumer is charged by the supplier for his electricity, to a certain extent and indirectly also benefit the consumer (at 112).

Such a support mechanism offers no certainty that the economic advantage thus obtained for suppliers will ultimately actually and essentially be required to benefit producers of green electricity, particularly the smallest local generating installations which the Flemish Region claims to have wanted to support, which are not both producers and suppliers (at 113).

The Court is not game to assist the AG with his call for an explicit recognition of the potential to use discriminatory measures within the context of mandatory requirements (the implications of Cassis de Dijon). That is a pity, but not a surprise.

Overall, the Court’s judgment is a welcome safeguard to its more open-ended sympathy for renewable energy support schemes. Those who challenge such schemes in future, know what to do. They need to show that there is no certainty that the economic advantage obtained for suppliers will ultimately actually and essentially be required to benefit producers of green electricity, as opposed to distributors or consumers.

Next-up: a reversal of T-351/02 Deutsche Bahn?

Geert.

 

Environmental due diligence (met in casu) is clearly part of BIT requirements. Allard v Barbados.

GAVC - Thu, 09/29/2016 - 10:57

Thank you Govert Coppens for alerting me to the PCIA award‘s publication. I had reported earlier on this case in which  the Canadian owner of an eco-tourist facility in Barbados sued the Government of Barbados for an alleged breach of the full protection and security provision (among other provisions) in the Canada- Barbados bilateral investment treaty. Peter Allard argues in his claim that Barbados breached its treaty obligations by failing to enforce its domestic environmental laws, which he alleges led to the environment being spoilt and a loss of tourist revenues at his eco-resort.

The Tribunal is careful not to phrase the case as a pioneering case or a case in any way anything but run of the mill. This is evident from its very consideration (at 53) that ‘underlying the claims is a fundamental factual disagreement as to whether the Claimant has suffered loss or damage as a result of any actions or inactions of Barbados.’

This subsequently leads the Tribunal into what is effectively peer review of parties’ opposing expert reports on variety in fish and bird species, salinity, the health of crabs, etc., coming down in favour of Barbados: no convincing case of deterioration was made by claimant. One must bear in mind that the burden of proof lies with the latter. Next the Tribunal concluded that, even if it had found that there was a degradation of the environment at the Sanctuary during the Relevant Period (which it did not), it would not have been persuaded that such degradation was caused by any actions or inactions of Barbados.

The Tribunal further found that, being aware of the environmental sensitivities of the Sanctuary, Barbados took reasonable steps to protect it (at 242). It formulates Barbados’ BIT duties here as being a duty of care, not strict liability. It then undertook due diligence of the steps Barbados had taken to address known environmental concerns for the area and concluded (at 249) that ‘Barbados’ approach in addressing the Sluice Gate and general pollution issues at the Sanctuary as part of its governance of the entire area does not fall short of what was appropriate and sufficient for purposes of the duty of due diligence required by Article II(2)(b) of the BIT.

 

This tribunal was clearly not in a law-making mood but that arguably does not matter. The analysis it undertakes unequivocally and matter of factly establishes that countries’ indifference (quod non in casu) to take steps necessary to contain and remedy environmental degradation are a clear breach of BITS’ core requirements.

Geert.

Turkish Constitutional Court on international child abduction

Conflictoflaws - Thu, 09/29/2016 - 09:28

By an individual application, the Turkish Constitutional Court for the first time examined an allegation of violation of rights secured under the Turkish Constitution in the proceedings before the Turkish courts in relation to the 1980 Hague International Child Abduction Convention. The Court decided by majority that the applicant’s right to respect for family life, which is guaranteed under Art 20 of the Constitution, was violated.

Burcu Yüksel, post-doctoral researcher at the University of Aberdeen and manager of the EUPILLAR project has written an article on this topic. It is published in International Family Law Journal, issue 3 of 2016.

A short version of the article is available here.

 

Droit d’auteur : précisions sur la notion de communication au public

La Cour de justice de l’Union européenne, par un arrêt du 8 septembre 2016, poursuit son travail d’interprétation de la notion de communication au public dans le cadre de renvois par des liens hypertextes vers des œvres protégées.

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Article 421-2-5-2 du Code pénal

Cour de cassation française - Wed, 09/28/2016 - 16:14

Tribunal de grande instance d'Angers, 14 septembre 2016

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