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Le refus d’un État membre de reconnaître un nom peut être justifié dès lors qu’il est approprié et nécessaire pour garantir le respect du principe d’égalité en droit de tous les citoyens de cet État.

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Union européenne

Conseil de prud'hommes de Lille, 9 juin 2016

Commission / Portugal
Droit institutionnel
Pour avoir tardé à mettre en œuvre la directive sur le traitement des eaux urbaines résiduaires, le Portugal est condamné à une somme forfaitaire de 3 millions d’euros et à une astreinte de 8 000 euros par jour de retard

Commission / Portugal
Droit institutionnel
Pour avoir tardé à mettre en œuvre la directive sur le traitement des eaux urbaines résiduaires, le Portugal est condamné à une somme forfaitaire de 3 millions d’euros et à une astreinte de 8 000 euros par jour de retard

La condamnation pour constitution abusive de partie civile ne constitue pas une ingérence à l’article 10 de la Convention européenne des droits de l’homme, dès lors que la condamnation se fonde sur la mise en mouvement abusive de l’action publique et non sur des propos tenus. 

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New Valmar
Libre circulation des personnes
L’obligation d’établir des factures transfrontalières exclusivement dans une langue spécifique, sous peine de nullité, enfreint le droit de l’Union

New Valmar
Libre circulation des personnes
L’obligation d’établir des factures transfrontalières exclusivement dans une langue spécifique, sous peine de nullité, enfreint le droit de l’Union

As previously announced and reminded on this blog, on 6t and 7 April 2017 the University of Bonn will host a conference on the topic Politics and Private International Law (?).

The conference aims to discuss the different aspects of the interaction between conflict of law rules and the reaching of substantive goals, highlighting as well its advantages and disadvantages.

The proposals for conference papers (of not more than 1.000 words in German language and without any reference to the authorship) should be submitted to nachwuchs-ipr(at)institut-familienrecht.de until 30 June 2016, 12 am CET.

Further information can be found here.

« La date à laquelle est effectuée la remise à parquet de la décision à signifier par la voie diplomatique ne constitue pas le point de départ du délai pour interjeter appel de cette décision. »

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Le 6 juin 2016, le collège de la grande chambre de la Cour européenne des droits de l’homme (CEDH) a accepté le renvoi de l’affaire Barbulescu c/ Roumanie (CEDH 12 janv. 2016, n° 61496/08, D. 2016. 807, obs. P. Lokiec et J. Porta ; Dalloz IP/IT 2016. 211, obs. P.

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As I had feared /as was to be expected, the CJEU did not follow Szpunar AG’s lead in formally letting go of Case 21/76 Bier‘s Erfolgort /Handlungsort distinction, even if it did accept the AG’s rejection in the case at issue, of the mere presence of a bank account triggering jurisdiction for tort under (now) Article 7(2) Brussels I Recast.

Kolassa upheld jurisdiction in favour of the courts for the place of domicile of the applicant by virtue of where the damage occurred, if that damage materialises directly in the applicant’s bank account held with a bank established within the area of jurisdiction of those courts. The case was distinguished however, for in that case there where ‘circumstances contributing to attributing jurisdiction to those courts.’ In general, the Court held, ‘purely financial damage which occurs directly in the applicant’s bank account cannot, in itself, be qualified as a ‘relevant connecting factor’‘ (at 38) . ‘ It is only where the other circumstances specific to the case also contribute to attributing jurisdiction to the courts for the place where a purely financial damage occurred, that such damage could, justifiably, entitle the applicant to bring the proceedings before the courts for that place.‘ (at 39).

The Court at 38 flags a rather interesting and relevant argument for dismissing pure presence of  a bank account as a determining connecting factor: a company such as Universal Music may have had the choice of several bank accounts from which to pay the settlement amount, so that the place where that account is situated does not necessarily constitute a reliable connecting factor. What the Court is essentially saying is that in such circumstance the applicant can manipulate jurisdiction and hence shop for a forum: which is not part of the jurisdictional rule for tort.

Crucially of course we are left having to ponder what exactly ‘other circumstances’ than location of bank account may imply.

Geert.

 

(Handbook of) European private international law, second ed. 2016, Chapter 2, Headings 2.2.11.2, 2.2.11.2.7

by Lukas Schmidt, Research Fellow at the Center for Transnational Commercial Dispute Resolution (TCDR) of the EBS Law School, Wiesbaden, Germany.

Universal Music, a record company established in the Netherlands, acquired the Czech company B&M in the course of 1998. The contracts providing for the sale and delivery of B&M’s shares were drawn up by a Czech law firm. Because of negligence by an associate of the Czech law firm the contracts provided a much higher sale price for B&M shares than intended by Universal Music. This led to a dispute between Universal Music and B&M’s shareholders which was brought before an arbitration board in the Czech Republic, following a settlement between the parties in 2005. Because of this settlement Universal Music allegedly suffered financial damage of some 2.5 million EUR. Subsequently Universal Music has brought proceedings against the Czech lawyers before the Dutch courts. The Dutch courts have requested the CJEU to answer the question, whether Article 5 (3) of Regulation No 44/2001 must be interpreted as meaning that the place where the harmful event occurred can be construed as being the place, in a Member State, where the damage occurred, if that damage consists exclusively of financial damage which is the direct result of an unlawful act committed in another Member State. However the only connecting factor to the Netherlands, besides Universal Music being established in that state, was that the bank account from which Universal Music paid the settlement amount was situated in Baarn (The Netherlands). Thus the CJEU now finds that such “purely financial damage which occurs directly in the applicant’s bank account can not, in itself, be qualified as a ‘relevant connecting factor’, pursuant to Article 5(3) of Regulation No 44/2001”. Obviously in order not to contradict its ruling in „Kolassa“ (C-375/13) the CJEU clarifies that only where “other circumstances specific to the case also contribute to attributing jurisdiction to the courts for the place where a purely financial damage occurred, that such damage could, justifiably, entitle the applicant to bring the proceedings before the courts for that place”.  Referring to „Kronhofer“ the CJEU further states that the place where the harmful event occurred “does not refer to the place where the applicant is domiciled and where his assets are concentrated by reason only of the fact that he has suffered financial damage there resulting from the loss of part of his assets which arose and was incurred in another Member State”. As a consequence the place where the loss of the claimant´s assets occurs and the place where his assets are concentrated only can be qualified as the place where the harmful event occurred, pursuant to Article 5 (3), if other circumstances specific to the case also contribute to attributing jurisdiction to the courts for these places.

The full judgment is available at: http://curia.europa.eu/juris/document/document.jsf?text=&docid=180329&pageIndex=0&doclang=DE&mode=req&dir=&occ=first&part=1

On 2 June 2016 the CJEU came down with its long awaited judgment in Nabiel Peter Bogendorff von Wolfersdorff v. Standesamt der Stadt Karlsruhe. Dealing (once more) with the question whether the freedoms conferred under Article 21 TFEU require Member States to recognize names of private individuals registered in another Member State the Court held that the refusal, by the authorities of a Member State, to recognise the forenames and surname of a national of that Member State, as determined and registered in another Member State of which he also holds the nationality, constitutes a restriction on the freedoms conferred under Article 21 TFEU on all citizens of the EU. However, the Court also found that such a restriction may be justified by considerations of public policy.

David de Groot from the University of Bern (Switzerland) has kindly prepared the following note:

Mr Bogendorff von Wolffersdorff was born as a German national named Nabiel Bagadi. After an adoption his name changed to Peter Nabiel Bogendorff von Wolffersdorff. He moved to Britain and acquired, while being habitually resident there, the British nationality and subsequently changed his name by deed poll to ‘Peter Mark Emanuel Graf von Wolffersdorff Freiherr von Bogendorff’. The German authorities did not want to recognise his new name as it contained the words ‘Graf’ and ‘Freiherr’, which used to be titles of nobility in Germany. According to Article 109 of the Weimar Constitution – which is still applicable based on Article 123 Basic Law – any creation of new titles of nobility is prohibited in Germany. However, the titles of nobility at the time of abolition became an integral part of the surname. Thus in Germany there are still persons who have a former title of nobility in their name. The same issue his daughter had where the German authorities did not want to recognise her name ‘Larissa Xenia Gräfin von Wolffersdorff Freiin von Bogendorff’. In that case, though, the Oberlandesgericht Dresden had decided that the German authorities had to recognise the name established in the United Kingdom.

The District Court of Karlsruhe referred the following question to the CJEU:

Are Articles 18 TFEU and 21 TFEU to be interpreted as meaning that the authorities of a Member State are obliged to recognise the change of name of a national of that State if he is at the same time a national of another Member State and has acquired in that Member State, during habitual residence, by means of a change of name not associated with a change of family law status, a freely chosen name including several tokens of nobility, where it is possible that a future substantial link with that State does not exist and in the first Member State the nobility has been abolished by constitutional law but the titles of nobility used at the time of abolition may continue to be used as part of a name?

A refusal by the authorities of a Member State to recognise a name of its national established while the person exercised his free movement rights in another Member State is likely to hinder the exercise of the free movement rights enshrined in Article 21 TFEU. Furthermore confusion and serious inconvenience at administrative, professional and private levels are likely to occur. This is due to the fact that the divergence between documents gives rise to doubt to the person’s identity and the authenticity of the documents and the necessity for the person to each time dispel doubts as to his identity. Therefore, it is a restriction of Article 21 TFEU which can only be justified by objective considerations which are proportionate to the legitimate objective of the national provisions.

The German authorities had brought several reasons to justify the restriction on the recognition of the name. The first justification brought forward was the immutability and continuity of names. The Court stated that although it is a legitimate principle, it is not a that important principle that it can justify a refusal to recognise a name established in another Member State. The second justification concerned the fact that it was a singular name change, meaning that the name changed independent of another civil status change. Therefore, the name change was dictated on personal reasons.

The Court referred to the case Stjerna v. Finland from the European Court of Human Rights of 1994 where it was stated that there may exist genuine reasons that might prompt an individual to wish to change his name, however that legal restriction on such a possibility could be justified in the public interest. The Court, however also stated that the voluntary nature of the name change does not in itself undermine the public interest and can therefore not justify alone a restriction of Article 21 TFEU. Concerning the personal reasons to change the name the Court also referred to the Centros ruling on abuse of EU law, but did not state whether it actually applied to the case. Concerning the German argument that the name was too long, the Court stated that “such considerations of administrative convenience cannot suffice to justify an obstacle to freedom of movement.”

The most important point made by the German authorities concerned the fact that the name established in the UK entailed former German titles of nobility. The Government argued that the rules on abolishment of nobility and therefore refusal to recognise new titles of nobility were a part of the German public policy and intended to ensure equal treatment of all German citizens. Such an objective consideration relating to public policy could be cable of justifying the restriction; however it must be interpreted strictly. This means that it can only apply when it is a genuine and sufficiently serious threat to a fundamental interest of society.

In Sayn-Wittgenstein the Court had held that it was not disproportionate for Austria to attain the objective of the principle of equal treatment “by prohibiting any acquisition, possession or use, by its nationals, of titles of nobility or noble elements which may create the impression that the bearer of the name is holder of such rank.” However the German legal system is different in that there is not a strict prohibition on maintaining titles of nobility as a part of the family name and it is also possible to acquire it through adoption. It would though not be in the interest of the German legislature if German nationals could under application of the law of another Member State adopt abolished titles of nobility and that these would automatically have to be recognised by the German authorities.The Court was though not sure whether the practice of the German authorities to refuse a name including former titles of nobility, while allowing some persons in Germany to bear such a name, is appropriate and necessary to ensure the protection of the public policy and the principle of equality before the law of all German citizens. As this is a question of proportionality it would be for the referring court to decide upon this.

The Court however marked certain factors that have to be taken into consideration while not being justifications themselves. First of all that Mr Bogendorff von Wolffersdorff exercised his free movement rights and holds double German and British nationality. Secondly, that the elements at issue do not formally constitute titles of nobility in either Germany or the United Kingdom. Thirdly, that the Oberlandesgericht Dresden in the case of the daughter of Mr Bogendorff von Wolffersdorff did not consider the recognition of a name including titles contrary to public policy. However, the court would also have to take into consideration that it concerned a singular name change which is based purely on personal choice and that the name gives impression of noble origins. The Court concluded, however, that even if the surname is not recognised based on the objective reason of public policy, it cannot apply to the forenames, which would have to be recognised.

As such it is not that much a surprise that the Court referred the case back as it concerned a matter of proportionality. But still the Court’s judgment is a bit disappointing as some issues of the referred question are unsolved. For example the Court did never go into the part of the referred question concerning “the future substantial link” of the British nationality. The Court states that Mr Bogendorff von Wolffersdorff is dual German and British national, but it could also have stated that the future substantial link does not matter due to the Micheletti case. Also Article 18 TFEU got lost after the rephrasing of the question and the Court then only concentrated on Article 21 TFEU.

What is though very surprising is that the Court only mentions the case law on abuse of law, but then leaves it open whether it is applicable or not. Considering that Mr Bogendorff von Wolffersdorff lived in the United Kingdom for four years and even acquired British citizenship makes it rather doubtful whether one could consider it an abuse; especially if one compares it for example to the facts of the Torresi case.

It is thus now up to the national court to decide whether all German citizens are equal, or whether some are more equal than others – and all of these are former nobility.

 

 

A study on the Cross-border placement of children in the European Union, commissioned by the EU Parliament, has just been published. It has been drawn up by Laura Carpaneto (Univ. Genova), and is available here.

[Abstract] – This study … explores the range and nature of problems linked to the cross-border placement of children and to the application of article 56 of the Brussels IIa Regulation. Based on an analysis of the practice in 12 Member States and European case law, it identifies a number of shortcomings in the current legislative framework. Looking ahead to the recast of Brussels IIa, the study sets out recommendations to remedy some of the weaknesses, such as clarifying the respective tasks of the Member States involved in cross-border placement cases and facilitating the recognition and enforcement of cross-border placement orders.

Siégeant le 10 mai 2016 sur la requête de Dieter Krombach, la Cour européenne des droits de l’homme (CEDH) a ajourné l’examen d’un des griefs soulevés – le droit de ne pas être jugé deux fois pour les mêmes faits – en invitant la France à soumettre par écrit des observations sur ce point.

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The Jean Monnet Center of Excellence and the UNESCO Chair at the Department of International and European Studies, University of Macedonia, Thessaloniki, Greece, is organising a Summer academy on European Studies and Protection of Human rights in Zagora, on Mount Pelion, Greece, consisting of two summer schools in English. The academic faculty in both summer schools are University professors and experts from all over Greece and the EU (Great Britain, Spain and Poland).

The first summer school is on “Freedom, Security and Justice in the EU“.  It will  be held from Friday July 8, afternoon until Monday, July 11, 2016, afternoon. In particular, the summer school will last 25 hours.  The main areas of study will be:

• Institutional Structure and Development (EU institutions, Frontex, Eurojust, European Attorney) which will be analyzed by Prof. Chrysomallis,
• European Citizenship and the protection of fundamental rights in the Area of Freedom Security and Justice by D. Anagnostopoulou,
• Internal and External Security by Prof. F. Bellou,
• Immigration and asylum policies by Prof. V. Hatzopoulos and I. Papageorgiou,
• EU Private International Law by M. Gardenes – Santiago (Autonomous University of Barcelona),
• European criminal law (N. Vavoula, Queen Mary)

For further information in this summer school click here.

The second summer school will begin on Thursday, July 14 afternoon and will end on Tuesday, July 19. It will last 40 hours with a focus on the protection of human rights in Europe:

• International human rights protection mechanisms (International Covenants and International Conventions), taught by f. Professor P. Naskou Perraki (University of Macedonia)
• European Convention on Human Rights by Dr. Dagmara Dajska, expert of the Council of Europe, who will discuss  the right for fair trial and the right to asylum,
• Freedom of Expression by Prof. I. Papadopoulos (University of Macedonia),
• Protection of Personal Data by Prof. E. Alexandropoulou (University of Macedonia),
• EU Charter of Fundamental Rights by Prof. L. Papadopoulou (Aristotle University of Macedonia),
• Prohibition of discrimination by Prof. D. Anagnostopoulou (University of Macedonia),
• LGBT Rights by Prof. Alina Tryfonidoy (Reading University),
• Protection of minorities and cultural rights by Dr. Nikos Gaitenidis, Head of the Observatory on Constitutional Values of the Jean Monnet Centre of Excellence, and
• Workshop on intercultural skills by Prof. I. Papavasileiou (University of Macedonia)

For further information on this summer school click here.

A Certificate of attendance will be issued to all while a Certificate of Graduation will be awarded to all those passing a multiple choice examination.

For additional information and applications to any of the schools, please refer to the links below or contact:

Assistant Professor Despina Anagnostopoulou, danag@uom.gr

or Ms. Chrysothea Basia, chrybass@yahoo.com

An article by A. Anthimos, Czech Yearbook of International Law 2017 volume VIII (Forthcoming), accessible at SSRN.

Abstract. Fictitious forms of service have dominated for decades the notification of documents abroad. The insecurity caused by these means of service led to the ratification of the 1965 Hague Service Convention by a significant number of countries. Still, the problem has not been solved, because the Convention did not dare to take the steps towards abolition of fictitious service. The sole exception being, stipulated under Article 19, for documents instituting proceedings. The EU-Service Regulation followed the same path. For nearly 10 years, fictitious service was not discarded by national courts in all cases. However, a recent judgment of the ECJ interpreted the Service regulation as banning all forms of fictitious service. This ruling led to a shift in national jurisprudence. However, at the same time it triggered reactions.

The purpose of this paper is to contribute to the discussion surrounding the ECJ ruling, by highlighting its repercussions both within the framework of the Service Regulation, and potentially in the ambit of the multilateral Hague Service Convention.

« Il incombe au juge français, qui reconnaît applicable un droit étranger, d’en rechercher la teneur, soit d’office, soit à la demande d’une partie qui l’invoque, avec le concours des parties et personnellement s’il y a lieu, et de donner à la question litigieuse une solution conforme au droit positif étranger ».

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