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Bien que les recours exercés aient été effectifs, si les autorités françaises décidaient de mettre à exécution la décision de renvoi de la requérante menacée de mauvais traitements par sa famille en Guinée, il y aurait violation de l’article 3 de la Convention européenne des droits de l’homme. 

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Filiation

Engagement solennel devant la Cour de justice de l’Union européenne de nouveaux membres de la Cour des comptes européenne

For the facts of the case, and the reasoning of the AG in C-559/14 Meroni, I refer to my earlier posting. At the end of May (I am indeed still hoovering up the queue) the Court held very much alongside Kokott AG’s Opinion, I shall therefore not repeat its reasoning here. The CJEU does insist that if third parties rights are directly affected with the intensity as in the case at issue, that third person must be entitled to assert his rights before the court of origin (which English courts provide for), lest one runs the risk of the injunction being refused recognition under ordre public. As I had feared, the Court does not address the AG’s concern whether Mareva orders actually constitute a ‘judgment’ for the purposes of the Regulation.

Post Brexit, this considerable attraction of English courts in interlocutory proceedings might become a lot less real. (Like many of us, I am working on a short review of Brexit consequences for European private international law).

Geert.

(Handbook of) European private international law, second ed. 2016, Chapter 2, 2.2.16.1.1, 2.2.16.1.4

Où se situe le dommage lorsque le préjudice consiste exclusivement en une perte financière qui se matérialise directement sur le compte bancaire du demandeur et qui résulte directement d’un acte illicite commis dans un autre État membre ?

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Dr. Chris Thomale, University of Heidelberg, has kindly provided us with the following thoughts on the possible consequences of Brexit for European private international law.

Hitherto, academic debate is only starting to appreciate the full ambit and impact a Brexit would have on the European legal landscape. Notably, two important aspects have been neglected, despite their crucial importance in upcoming negotiations about withdrawal arrangements between the EU and the UK under Art. 50 section 2 TEU: First, the vital British interest to leave in force the fundamental freedom of establishment. Second, a possible revival of regulatory competition of corporate laws among remaining Member States, once UK Limited Companies and Limited Liability Partnerships were to lose their EU or EEA status.

As Hess and Requejo-Isidro are correct in pointing out, Brexit will directly hit the UK judicial market. Brussels Ibis and its ancillary instruments will cease to apply. It remains yet to be seen if and to what extent new bilateral or multilateral agreements with Member States will make up for this suspension of EU free movement of judgments. This includes an accession to the Lugano Convention, which in itself is due to be reformed. In the meantime, negotiations will have to be based on a default position, according to which not only EU secondary law on jurisdiction and enforcement but notably mutual trust with regard to its application by UK courts will be suspended. The latter aspect cannot be emphasized enough: British insolvency proceedings in particular have been displaying tendencies to find a Centre of Main Interest of companies and entire global corporate groups inside the UK, often based on hardly understandable factual assertions and the most laconic reasonings given by UK courts (see, e.g. the Nortel case).

The mentioned expansionist aspect of the UK judicial market neatly ties in with a similar regulatory export of corporate forms. Under the aegis of Art. 49 seqq. TFEU and Art. 31 seqq. of the EEA Agreement, UK companies profit from being recognised throughout the EEA in their original British legal form of establishment, regardless of their actual place of management. This privilege has been incentivizing a common form of legal arbitrage: Investors establish a Ltd or LLP in the UK, while doing business anywhere else inside the EEA, thereby being able to circumvent mandatory rules applying at their state of business such as laws on co-determination, minimum capital, or mandatory insurance requirements. Such setups will not be available anymore once the UK were to leave the EEA. Putting it bluntly, from the moment UK effectively leaves the EU and the EEA, British companies operating e.g. in France or Germany will be subject to the corporate laws of their administrative seat. For these countries follow the ‘real seat’ theory, i.e. a conflict of company laws rule that designates the substantive law of the administrative seat as the applicable company law. UK companies not having to show any registration as, say, a Société à responsabilité limitée at their real seat, by default will immediately be treated as partnerships, entailing, inter alia, unlimited shareholder liability. In order to avoid this, UK companies operating inside the EU will be well advised to reincorporate, i.e. convert into a EU legal form, which better serves their economic interests.

However, will the UK simply let them go? Once Brexit becomes effective, the Directive 2005/56/EC on cross-border mergers will not apply anymore; neither will rulings rendered by the CJEU in Cartesio or Vale. Restrictions may be put into place, similar to those displayed by British authorities in Daily Mail, when corporate mobility required consent by UK Treasury. This may induce a corporate exodus from the UK while its EU membership is still active. Still, leaving UK company forms behind represents only one side of the deal. A second uncertainty rests with the question, exactly which new legal forms UK companies operating abroad will choose instead. Will they go for an Irish Private Company Limited by Shares, a Dutch Besloten vennootschap met beperkte aansprakelijkheid or a German Gesellschaft mit beschränkter Haftung? We could witness a revival of regulatory competition within the EU. However, even before that, Member States’ interests in the Art. 50 section 2 TEU withdrawal negotiations, regarding the question of preserving or abolishing freedom of establishment between the UK and the EU, will be influenced by their individual prospects and ambitions in such regulatory competition. At this point, there is no telling, who will win the race nor whether it will lead to the top of legal reform or to the bottom of deregulation. Be this as it may, exciting days have found us – not only for game theorists.

Future Enterprises / EUIPO - McDonald's International Property (MACCOFFEE)
Propriété intellectuelle et industrielle
Selon le Tribunal de l’UE, la renommée des marques de McDonald’s permet de faire échec à l’enregistrement, pour les produits alimentaires ou les boissons, de marques combinant le préfixe « Mac » ou « Mc » avec le nom d’un produit alimentaire ou d’une boisson

È in programma per i giorni 30 settembre e 1° ottobre 2016 a San Ginesio (MC) la sesta edizione dell’Incontro dei dottorandi di ricerca di diritto internazionale.

L’evento, promosso dalla Società Italiana di Diritto Internazionale e di diritto dell’Unione europea in collaborazione con il Centro Internazionale Studi Gentiliani, offre ai dottorandi di ricerca in diritto internazionale, diritto internazionale privato e diritto dell’Unione europea iscritti al secondo anno la possibilità di presentare i risultati parziali delle proprie indagini e di promuovere il dibattito sui temi affrontati.

I dottorandi interessati possono inviare la propria candidatura compilando questo modulo ed inviandolo all’indirizzo mail info@sidi-isil.it entro il 20 luglio 2016.

Ulteriori informazioni sono disponibili qui.

Le droit de l’Union s’oppose à ce que la réglementation linguistique d’un État membre oblige, sous peine de nullité absolue, l’établissement des factures transfrontalières dans une langue spécifique.

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Par un arrêt du 21 juin 2016, la Cour européenne des droits de l’homme conclut à l’absence de violation de l’article 10 de la Convention européenne des droits de l’homme quant à la condamnation pour diffamation aggravée d’un salarié, au regard des allégations de détournement de fonds publics dénoncées sur le fondement d’une rumeur non vérifiée, caractérisant l’absence de bonne foi.

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Rendu au regard de la législation espagnole, l’arrêt de la Cour de justice de l’Union européenne du 9 juin 2016, qui a fait l’objet d’un communiqué de presse, s’oppose à un système qui ne garantit pas que le coût de la compensation équitable destinée aux auteurs en cas de copie privée de leurs oeuvres ne soit pas finalement supporté par les utilisateurs de ces copies.

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La Cour de Strasbourg a considéré qu’en jugeant irrecevable l’appel formé par le nouvel avocat d’un justiciable qui n’avait pas été désigné conformément aux dispositions du code de procédure pénale, elle l’a privé d’un examen au fond de son recours. La France est condamnée pour violation de l’article 6 § 1 de la Convention qui garantit le droit à un procès équitable.

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On 20 April 2016, AG Szpunar delivered his Opinion in the case C-135/15, Hellenic Republic v Nikiforidis. The case concerns the temporal scope of application of Regulation (EC) 593/2008 on the law applicable to non-contractual obligations (Rome I), and the interpretation of Article 9(3) of the same Regulation, concerning the overriding mandatory provisions of third countries.

The referring court, the German Bundesarbeitsgericht (Federal Court for Labour Matters), was seised by Mr Nikiforidis, a teacher in a public school that was managed and run, in Germany, by the Hellenic Republic. Mr Nikiforidis’ claim concerned the salary due to him from 2010 to 2012. The amount of the salary had been unilaterally reduced by the employer under one of the austerity packages adopted by the Greek legislature in connection with the country’s sovereign debt crisis. This led Mr Nikiforidis to sue the Greek Ministry of Education, seeking the payment of the sums withheld.

The Bundesarbeitsgericht found that the Hellenic Republic could not avail itself of State immunity, since the duties performed by a public school teacher are not so closely connected to its sovereign or governmental activities as to exclude the jurisdiction of the courts of any other State. The Federal Court further held it possessed jurisdiction pursuant to Articles 18(1) and 19(2)(a) of Regulation (EC) 44/2001 on jurisdiction, recognition and enforcement of judgments in civil and commercial matters (Brussel I).

As to the applicable law, the Bundesarbeitsgericht observed that the contract should be deemed to be governed by German law, although it failed to specify the provisions on which this finding was grounded. It conceded, however, that the Greek statutes mentioned above could be regarded as overriding mandatory provisions of a third country, insofar as their respect is, quite indisputably, crucial for safeguarding the public interests of the Hellenic Republic, namely its economic organisation.

The first question submitted to the ECJ precisely concerns the legal basis upon which ‘effect may be given’ to provisions of this kind. As it is, the approach taken by the Rome I Regulation in respect of overriding mandatory provisions of third countries is somewhat stricter than the one adopted under the Rome Convention of 19 June 1980 on the law applicable to contractual obligations.

While Article 7(1) of the Rome Convention provides that ‘effect may be given to the mandatory rules of the law of [any] country with which the situation has a close connection’, Article 9(3) of the Rome I Regulation sets forth, for these purposes, two requirements. The rules in question, in fact: (i) must belong to ‘the law of the country where the obligations arising out of the contract have to be or have been performed’; (ii) may be taken into consideration for the purposes of Article 9(3) only insofar as the effect of their application consists in rendering the performance of the contract ‘unlawful’.

It is also worth remembering that the Republic of Germany has entered into a reservation to Article 7(1) of the 1980 Rome Convention, which, according to the EU Commission, translates into the impossibility, for German courts, of giving effect, by any means, to overriding mandatory provisions of third countries when that instrument applies rations temporis (cfr. para 99 of the Opinion).

Pursuant to its Article 28, the Rome I Regulation  applies to ‘contracts concluded after 17 December 2009’. As far as continuing contracts are concerned, this rule evidently determines a considerable extension of the temporal emprise of the regime set forth by the Rome Convention, insofar as it will still apply to durable contractual relationships constituted before that date.  According to  AG Szpunar, anyway,  the intrinsic characteristics of the contract concerned have no bearings in the interpretation and application of Article 28, which therefore applies also to continuing contracts (para 51).

As the relevant point in time for the conclusion of the contract, the Advocate General suggests that it shall be determined according to  the provisions of the putatively applicable lex causae. The Rome I Regulation accordingly applies, ratione temporis, provided that, under the (substantive) law which would govern the case were that Regulation applicable, the contract is regarded as concluded after 17 December 2009 (para 40). The shaping, to these purposes, of an autonomous solution of EU law is, in fact, deemed impractical (para 41).

The putatively applicable lex causae  shall also determine whether any subsequent modification occurred to the contractual relationship is of such a kind and extent as to be regarded as conclusion of a new contract.

The second question submitted to the Court of Justice presupposes the ascertained applicability, ratione temporis, of the Rome I Regulation. The seised court asks whether ‘effect may be given’ under its domestic law  (namely article 241(2) BGB)  to overriding mandatory provisions of a third countries. This on the assumption that the pre-conditions for the triggering of Article 9(3) are not satisfied, being Germany – and not Greece –  the place of performance of the obligations arising out of the contract at stake.

In the Advocate General’s view, nonetheless, Article 9(3) might still apply to the case under examination. The pre-requirements set forth by that provision should not, he contends, be narrowly understood, because a strict reading would run counter  the very rationale underlying the “taking into consideration” of overriding mandatory provisions of a third country (para 87). On the other hand, a more lenient understanding of the concepts therein employed would favour more equitable solutions in the specific case and prevent forum shopping malus (paras 88-89).

In particular, the identification of the ‘place of performance of the obligations arising out of the contract’ should not follow, under Article 9(3) of the Rome I Regulation, the same reasoning postulated by Article 5(1) of the Brussels I Regulation. Under the former provision, that concept should rather be understood as encompassing not only the place in which the obligation in question has to be materially executed, but also any other place featuring a significant connection with either the legal order or the sovereign powers of the concerned third-country (para 93).

Hence, the fact that the Hellenic Republic contributes, with its budget, to the funding of the (public) service provided by the school in which Mr Nikiforidis is employed may be an argument for finding that the obligations arising out of the contract of employment are to be performed, to a certain extent, also in Greece.

The third preliminary question submitted to the ECJ concerned the role of the principle of sincere cooperation enshrined in Article 4(3) TEU in the (indirect) application of overriding mandatory provisions of another Member State. According to the Advocate General, said principle has no bearing in the application of the substantive law appointed by the instruments of private international law. Specifically, it could not, as such, compel the seised court to apply the overriding mandatory provisions of another Member State, not even when these latter are meant to implement a measure decided by the EU itself. This circumstance might, nonetheless, be taken into account to the purposes of the assessment required to the court under the final line of Article 9(3).

Szpunar AG’s Opinion in C-135/15 Hellenic Republic v Grigorios Nikiforidis has travelled half the world with me in my briefcase. Time to tackle the blog queue…

As I had reported earlier, the Bundesarbeitsgericht has given the CJEU an opportunity to provide much needed clarity on the application of Rome I to continuing (employment) contracts, and on the Regulation (or as the case may be, the Rome convention)’s provisions on overriding mandatory law.

The Opinion (not available in English) first of all clarifies the temporal scope of Rome I. Article 28 Rome I provides that it applies to contracts concluded ‘as from 17 December 2009’ (this is the corrected format; initially Article 28 read ‘after’). When exactly a contract is ‘concluded’ needs to be determined in accordance with the putative lex causae as identified by the Regulation (an extension of Article 10(1), suggested by most if not all of relevant scholarship). What, however, about ‘continuing’ contracts’: those concluded before the temporal scope of the Regulation, continuing after, however renewed, renegotiated, amended…: do these continue to be covered by the Rome convention ad infinitum, or is there a cut-off point at which these continuing contracts become newly concluded?

I had suggested in my earlier posting that one’s intuitive assumption may be to prefer autonomous interpretation of the concept ‘concluded’. That, after all, is the standard approach of the Court. However I argued that in the current state of (lack of) harmonisation of contractual law, it is more likely that the Court will prefer an Article 10(1) type solution. Szpunar AG is of the same opinion. He first of all points out (at 33) that secondary EU  law need not necessarily include verbatim transitionary measures. In the absence of a specific regime, the general rule is that the new provisions immediately apply to future effects of situations that arose under the old regime. Rome I’s transitory regime therefore, with its reference to date of ‘conclusion’  is an exception to that general principle. Can that moment of conclusion be autonomously defined? Szpunar AG shares my intuition (at 35 ff): along the lines of Article 10’s regime (the van Munchausen or the ‘bootstrap’ principle) the lex causae has to determine the moment of conclusion. For long-term contracts, this will inevitably lead to uncertainty (at 49). Yet that does not take away the soundness of the rule.

 

Next up is the application of Article 9’s provision on overriding mandatory provisions. This is the first time the CJEU will rule on that Article (Unamar was held under the Rome Convention). The Regulation quite deliberately limited the room for manoeuvre for the court seized to apply overriding mandatory law other than that of the forum: only such laws of the country where the obligations arising out of the contract ‘have to be performed’ can come into calling. That place is likely to be Germany in the case at issue (the Regulation does not define ‘place of performance’ under Article 9(3)) – however the AG suggests differently: there are a variety of reasons to assume that Greece, too, can be that place (at 95).

Szpunar AG first of all, in his very first para, remarks that scholarly attention to ‘lois de police’ far exceeds its featuring in practice. He also notes that von Savigny himself discussed ordre public (at 68 with references) and succinctly discusses the difference between the two (at 69-70). He repeats (at 78) that scholarly attention to overriding mandatory law has been excessive. He then rejects the suggestion that Article 9(3) needs to be applied restrictively to such a degree that its application becomes pretty much near-impossible. Importantly, he rejects in the process (a la Kainz) a strict parallel between ‘performance’ in Article 9(3) Rome I and Article 7(1) Brussels I Recast, and suggest that while the latter needs strict interpretation in line with the overall interpretative rules of that Regulation, there is no such need for Article 9(3) (at 92).

I wonder whether the Court will still hold before the recess (professor Szpunar Opined in April: I did flag there is a queue of cases waiting to be reviewed…

Geert.

Lorsque la personne réclamée, qui comparaît devant la chambre de l’instruction selon la procédure d’extradition simplifiée, déclare ne plus consentir à son extradition, la procédure ne peut se poursuivre selon les règles de droit commun que s’il est constaté qu’une demande d’extradition est parvenue aux autorités françaises.

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La Convention européenne des droits de l’homme n’interdit pas aux États membres de prévoir dans leur législation nationale des procédures de retrait de la nationalité dans la mesure où ces procédures s’accompagnent de garanties procédurales contre l’arbitraire.

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Une décision prononcée par un juge des Émirats arabes unis ne peut obtenir l’exequatur en France que dans la mesure où la loi appliquée au litige est celle désignée par les règles de conflit de lois françaises ou si, bien que différente de ces règles, elle conduit au même résultat.

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The latest issue of the “Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)” features the following articles:

F. Eichel, Private International Law Aspects of Arbitration Clauses in Favor of the Court of Arbitration for Sport
The validity of arbitration clauses in favor of the Court of Arbitration for Sport (CAS) has been called into question by German courts in the long running proceedings of Claudia Pechstein against the International Skating Union. The courts held that the arbitration clause in the athletes’ admission form was void. They referred to provisions in German Civil Law (s. 138 German Civil Code – BGB; s. 19 Act against Restraints of Competition – GWB) which are recognized as being internationally applicable so that the German courts could apply them even though the validity of the arbitration clause was governed by Swiss law. The article reflects the Private International Law aspects of these arbitration clauses illustrating that both the relevant law of International Civil Procedure as well as the choice of law provisions primarily serve the interests of commercial arbitration and thereby reinforce the structural imbalance existing between the sports association and the athlete when signing such arbitration clauses. Against this background, the article argues that the special circumstances of sport arbitration would allow the application of the German law of standard terms (s. 307 BGB) although it is, in principle, not considered to form part of the general ordre public-reservation in Private International Law.

Th. Pfeiffer, Ruhestandsmigration und EU-Erbrechtsverordnung
From a German perspective, the most significant change that was brought about by the EU Succession Regulation is the transition from referring to the deceased’s nationality as the general connecting factor to the deceased’s habitual residence. This transition reflects an analysis of interests which is primarily based on cases of migrant professionals or workers and their families. However, there is also a large group of migrants already retired at the time of their migration (e.g. the large group of German pensioners on the Spanish island of Mallorca). Their situation is different from migrant workers insofar as their migration occurs at a moment when the most significant decisions in their lives have been made already; as a consequence, migration at that age, usually, does not include following generations. Moreover, it is not unlikely that, in many cases, migrating pensioners, when planning for their estates, will not consider the laws of their new habitual residence. Based on this analysis, this article asks how the EU Succession Regulation addresses these particularities of migrating pensioners. In particular, it is discussed under which circumstances the laws of their home state (based on their nationality) may remain applicable. In this context, the article considers: (1) provisions which do not refer to the moment of deceased’s death but to an earlier event, (2) the need for an appropriate definition of habitual residence, (3) the escape clause in Art. 21 (2) of the Regulation, (4) a choice of law by the deceased and (5) waivers of succession. The article concludes that the Regulation is open for applying the laws of the deceased’s nationality to a certain extent but that this law must not be applied automatically if the principle of referring to the deceased’s habitual residence is taken seriously.

A. Brand, Damages Claims and Torpedo Actions – The Principle of Priority of Art. 29 para 1 Brussels I-Regulation with a particular focus on Cartel Damages Claims.
Forum shopping by way of „Torpedo actions“ is an unwanted means of a tortfeasor to secure the jurisdiction of their home country rather than having to defend themselves before the courts at the seat of the injured plaintiff. This has gained particular relevance in proceedings concerning cartel-damages claims. The race hunt to the court could and should be avoided by strictly applying the principles of procedural efficiency and fair trial and the requirement of a justified interest for an action for (negative) declaration. As under domestic law, the principle of priority as laid down in art. 29 para. 1 of the Brussels I-Regulation cannot be applied to torpedo actions in case of tort.

W.-H. Roth, Jurisdictional issues of competition damages claims
In its CDC-judgment the Court of Justice for the first time had the chance to rule on several issues of jurisdiction concerning cartel-inflicted damages. Claimant was an undertaking specifically set up for the purpose of pursuing such damage claims that had been transferred to her by potential cartel victims. The Court deals with jurisdiction over multiple defendants (Art. 6 No. 1 Regulation EC 44/2001), the scope of tort jurisdiction (Art. 5 No. 3), based on the place where the event giving rise to the damage occurred and on the place where the damage occurred, and with the interpretation of jurisdiction clauses (Art. 23) potentially covering cartel-inflicted damage claims. The results reached and the arguments advanced by the Court, taken all in all, deserve applause. Given that the judgment deals with a setting of a follow-on action (with a binding decision by the EU-Commission) it will have to be clarified whether the main results of the judgment can also be applied in stand-alone actions.

R. Hüßtege, A tree must be bent while it is young
The Federal Constitutional Court of Germany reprimands that the district court in an adoption procedure did not use all sources of knowledge in accordance to the Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters and to the European Judicial Network, in order to determine whether an effective Romanian adoption exists. Due to this omission fundamental rights of the complainant were injured in the adoption case concerning the recognition of the Romanian decision. This case shows that instruments, like the mentioned regulation and the European Judicial Network in commercial and civil matters are not well known to courts. There is an urgent need for training of judges.

C. F. Nordmeier, Lis pendens under art. 16 Brussels IIa and Art. 32 Brussels Ia when proceedings are stayed
The case at hand deals with the decisive moment for lis pendens according to art. 16 (1) (a) Brussels IIa (equivalent to art. 32 (1) (a) Brussels Ia) if proceedings are stayed before service in order to reach an amicable arrangement. The provision contains an own obligation of the applicant. Whether a delay of service restrains lis pendens depends on the breach of this obligation being imputable to the applicant. Intention or negligence should not serve as a basis to impute the breach. The present contribution analyses different types of delay and its imputability: stay of proceedings to reach an amicable arrangement, deficiencies of the documents submitted for service and mistakes of the court while effecting service. For the continuance of lis pendens the author argues that a stay or an interruption of proceedings does not abolish the effects of lis pendens.

B. Heiderhoff, Perpetuatio fori in custody proceedings
Even if parents, as in the case at hand, have joint parental responsibility with the exception of the right to determine the child’s place of residence, the parent who has the sole right to determine the child’s place of residence may lawfully move abroad with the child. The other parent has to accept the complications in exercising parental responsibility. If the child is relocating its habitual residence to a state that is not a member state of the EU, but a signatory state to the Hague 1996 Children’s Convention, the Convention must be applied. This is clearly stated in Art. 61 Brussels II-Regulation. Unlike Art. 8 Brussels II-Regulation, the 1996 Children’s Convention does not follow the principle of perpetuatio fori. In order to prevent a parent from taking a child abroad during ongoing court proceedings, the courts should regularly consider an injunction by which the right to determine residence of the child is limited to Germany. This applies particularly when both parents have joint responsibility and merely the isolated right to determine the child’s place of residence is assigned to one parent. If one parent has sole custody at the beginning of the procedure, the interests must be weighed differently. The right to move abroad with the child during the proceedings should, in general, only be excluded if there is a rather serious chance for the affected parent to lose sole custody.

U. P. Gruber, How to modify decisions on maintenance obligations
In scholarly writing, proceedings to modify decisions on maintenance obligations have only attracted limited attention. However, these proceedings raise very intricate und unsolved problems of characterization. The Bundesgerichtshof, in a new decision, has tackled some of the questions while leaving others unanswered. In the author’s opinion, the modification of decisions on maintenance obligations is governed by the Hague Protocol of 23 November 2007. The convention’s predecessor, the Hague Convention of 2 October 1973, also covered the modification of decisions, and it can be presumed that the Hague Protocol, as far as its scope is concerned, follows the Hague Convention. The procedural framework of the proceedings to modify decisions on maintenance obligations, however, is governed by the lex fori, i.e. the law of the state in which the proceedings to modify the decision are brought. The Hague Protocol of 23 November 2007 is part of EU law. Therefore, it seems likely that the ECJ will be requested to decide on the issue. Whether or not the ECJ will support the application of the Hague Protocol seems impossible to predict.

K. Siehr, Execution of Foreign Order to Return an Abducted Child
A child was abducted by his mother from Germany to Poland and after one year re-abducted by his father to Germany. Instead of asking German courts for a return order under the EU Regulation No. 2201/2003 on Matrimonial Matters and Matters of Parental Responsibility the father turned to Polish courts and asked for a return order. Such an order was turned down because the child, in the meantime, had been abducted by the father to Germany. The mother asked the Polish court for a return order and got it as an urgent order because of the habitual residence of the child in Poland. The mother asked German courts to recognize and enforce this Polish order to return the child to Poland. The Court of Appeals of Munich recognized and enforced the Polish return order. The Munich court did not recognize the return order neither under Art. 42 nor under Art. 28 et seq. Regulation 2201/2003 because relevant certificates were missing or some enforcement obstacles (hearing of the father in Poland) were given. The German court decided that the Polish return order should be recognized and enforced under the Hague Convention of 1996 on the Protection of Children without taking care of Art. 61 of the Regulation 2201/2003 which give precedence to the Regulation in this case. Jurisdiction of the Polish court is determined according to Art. 20 of the Regulation and Art. 11 of the Hague Convention of 1996 which granted only territorially limited jurisdiction to local courts in urgent matters. In this case, however, the child was not any more in Poland but in Germany. The German court is criticized because of not explaining properly the application of the Hague Convention of 1996 under Art. 61 of Regulation 2201/2003 and because of misinterpreting Art. 20 of the Regulation 2201/2203 and of Art. 11 Hague Convention by giving them universal jurisdiction.

D. Looschelders, Problems of Characterization and Adaptation in German-Italian Successions
German-Italian successions often raise difficult legal questions. In its decision, the Higher Regional Court of Duesseldorf firstly deals with the invalidity of joint wills under Italian law. The main part of the decision is concerned with problems of characterization and adaptation. In the present case, these problems arise due to the parallel applicability of Italian Succession Law and German Matrimonial Property Law. The author supports the decision in general. However, it is stated that the courts considerations with regard to the necessity of adaptation are not convincing in all respects. Finally, it is shown how the problems of the case were to be solved in accordance with the European Succession Regulation which was not yet applicable.

C. Mayer, Ancillary matrimonial property regime and conflict of laws – characterization of claims arising from an undisclosed partnership between spouses.
While it is generally agreed that the legal regime for undisclosed partnerships follows the law applicable to contractual obligations, there is debate as regards undisclosed partnerships between spouses. Due to their special connection with the matrimonial property regime, it is argued that compensation claims arising from undisclosed partnerships between spouses are to be characterized as matrimonial. Along with the prevailing opinion, the German Federal Court of Justice now correctly supports a characterization as contractual. Given, however, the close relation to the matrimonial property regime, the court proposes an accessory connection: the partnership agreement is closest connected to the law governing matrimonial property. Subject to criticism is, however, the far-reaching willingness of the court to find an implied choice of law by the spouses.

M. Stöber, Discharge of Residual Debt and Insolvency Avoidance Actions in Cross-Border Insolvencies with Main and Secondary Proceedings
15 years after the adoption of the European Regulation on Insolvency Proceedings in the year 2000, it is still difficult to answer the question which national insolvency law applies to cross-border insolvency proceedings within the European Union. The case that – in addition to main insolvency proceedings in one member state – secondary insolvency proceedings have been opened in another member state of the European Union is of particular complexity. In two recent judgments, the German Supreme Court has decided on the impact the opening of secondary proceedings in another state has on a discharge of residual debt (judgement of 18 September 2014) and on insolvency avoidance actions respectively (judgement of 20 November 2014) granted by the national law applicable to the main proceedings opened in the first state.

C. Kohler, Claims for the payment of holiday allowances by a public fund for paid leave for workers: “civil and commercial” or “administrative” matters?
By its ruling in BGE 141 III 28 the Swiss Federal Court refused to enforce in Switzerland an Austrian judgment according to which a Swiss company had to make payments to the Austrian fund for paid leave for workers in the construction industry that were due for workers posted to Austria by the defendant company. According to the Federal Court, the judgment is outside the scope of the Lugano-Convention as it has not been given in a “civil and commercial matter” as required by art. 1 thereof. The ways and means by which the Austrian fund claimed the payments constituted the exercise of public powers and differed from the legal relationship between the parties to an employment contract. The author submits that the judgment of the Federal Court is not in line with the ECJ’s case-law on art. 1 of the Brussels instruments. In order to assess whether a case is a “civil and commercial matter”, one has to look not at the modalities for the enforcement but at the origin of the right which forms the subject matter of the proceedings. In the instant case the right to paid leave stems from the employment contract and is of a private law character. As the Federal Court sees no legal basis for the enforcement of the Austrian judgment outside the Lugano-Convention, its judgment leaves a gap in the judicial protection of posted workers’ rights as between Austria and Switzerland contrary to the objective of Directive 96/71 which applies according to the bilateral agreements between Switzerland and the EU.

Non renvoyée au Conseil constitutionnel

Pourvoi c/ Cour d'appel de Lyon, chambre de l'instruction, 3 mai 2016