Flux européens

On 23 October 2016, AG Szpunar delivered his opinion in the case of Agro Foreign Trade & Agency Ltd v Petersime NV (C‑507/15). He suggested the Court to rule as follows.

 

Article 17 of Directive 86/653/EEC on the coordination of the laws of the Member States relating to self-employed commercial agents requires mandatory protection of a commercial agent who carries out his activity in the internal market. It does not preclude a law of a Member State according to which such protection is not afforded for a commercial agent who carries out his activity outside the internal market.

Neither the 1963 Agreement establishing an Association between the European Economic Community and Turkey, nor the 1972 Additional Protocol thereto, preclude a law of a Member State according to which protection under Directive 86/653 is only afforded where a commercial agent carries out his activity in that Member State and not where a principal is established in that Member State and a commercial agent is established in and carries out his activity in Turkey.

L’Avvocato generale Szpunar ha presentato il 23 ottobre 2016 le sue conclusioni nella causa Agro Foreign Trade & Agency Ltd v Petersime NV (C‑507/15). A suo avviso, la Corte dovrebbe statuire quanto segue.

L’art. 17 della direttiva 86/653/CEE relativa al coordinamento dei diritti degli Stati Membri concernenti gli agenti commerciali indipendenti esige in termini imperativi la protezione dell’agente che svolge la propria attività nel mercato interno. Come tale, esso non è di ostacolo a una legge di uno Stato Membro che riconosca una simile protezione a un agente la cui attività si sviluppi al di fuori del mercato interno.

Né l’Accordo di associazione del 1963 tra la Comunità economica europea e la Turchia né il suo Protocollo addizionale del 1972 sono d’ostacolo a una legge di uno Stato Membro in forza della quale la protezione garantita ai sensi della Direttiva 86/653 opera solo nell’ipotesi in cui l’agente svolge la propria attività in detto Stato Membro e non invece nell’ipotesi in cui il preponente sia stabilito in tale Stato Membro e l’agente svolga la propria attività in Turchia.

Symeon C. Symeonides, Choice of Law, Oxford University Press, 2016, ISBN 9780190496722, pp. 840, USD 225.

Choice of Law provides an in-depth sophisticated coverage of the choice-of-law part Conflicts Law (or Private International Law) in torts, products liability, contracts, forum-selection and arbitration clauses, insurance, statutes of limitation, domestic relations, property, marital property, and successions. It also covers the constitutional framework and conflicts between federal law and foreign law. The book explains the doctrinal and methodological foundations of choice of law and then focuses on its actual practice, examining not only what courts say but also what they do. It identifies the emerging decisional patterns and extracts predictions about likely outcomes.

As my review of Szpunar AG’s Opinion in Nikiforidis highlighted, on the issue of temporal applicability to continued contracts, the AG suggested along the lines of Rome I Article 10’s regime (the von Munchausen or the ‘bootstrap’ principle) that the lex causae has to determine the moment of ‘conclusion’.

The employment relationship at issue is conducted in Germany and subject to German law, which does not permit reductions in remuneration similar to those to which the Hellenic Republic had recourse (as a result of austerity).

The Court held last week and points out (at 20) that if the Rome I Regulation did not apply to the main proceedings, Article 34 of the EGBGB (the relevant provisions  of residual German private international law concerning contractual relationships) would permit it to take into account the overriding mandatory provisions of another State. Provisions like those are exactly why the UK and Luxembourg in particular (concerned about financial services contracts subject to their laws) insisted on Article 9 Rome I seriously constraining the room for manoeuvre of the forum.

Different from its AG, the Court squarely rejects (at 30) any role here for Article 10. In support, it refers to the original proposal of the European Commission with a view to the adoption of what eventually became Rome I. COM(2005) 650 referred to ‘contractual obligations’: ‘‘contractual obligations arising after its entry into application’; as opposed to the Regulation’s eventual use of ‘‘contracts’ concluded as from 17 December 2009.

At 34: ‘Whilst the reference, proposed by the Commission, to contractual obligations arising after the entry into application of that regulation covered, in addition to contracts concluded after its entry into application, the future effects of contracts concluded before then, that is to say, obligations arising from the latter after then, this is not so in the case of the wording of Article 28 of the Rome I Regulation, which covers exclusively contracts concluded on or after 17 December 2009, the date on which that regulation became applicable pursuant to Article 29 thereof. It follows that, contrary to what the referring court envisages, any agreement by the contracting parties, after 16 December 2009, to continue performance of a contract concluded previously cannot have the effect of making the Rome I Regulation applicable to that contractual relationship without thwarting the clearly expressed intention of the EU legislature.’

Now, I have admittedly only quickly scanned the travaux preparatoires in writing up this post, yet I do think the Court’s conclusion on this point may be misguided. It was Parliament which introduced ‘contracts’ as opposed to ‘contractual obligations’. It did so in response to the EC’s proposed sentence which read in full

‘It shall apply to contractual obligations arising after its entry into application. However, for contractual obligations arising before its entry into application, this Regulation shall apply where its provisions have the effect of making the same law applicable as would have been applicable under the Rome Convention of 1980.’

Parliament proposed lifting the first sentence into a separate Article and to drop the second sentence altogether, citing ‘Unlike in the case of torts and delicts, contracts are entered into deliberately and voluntarily. It is essential for the parties to know that the provisions on applicable law contained in this Regulation will apply only to contracts concluded after its date of application. Therefore proceedings brought after the date of application concerning contracts concluded before that date will apply the Rome Convention.’

This intervention therefore I believe was targeted at avoiding debates on equality between Rome I and Rome Convention outcomes. No indication was given that the change from ‘contractual obligations’ to ‘contract’ was of any specific relevance for the debate.

However, in the end that discussion in my view does not really matter because the Court itself does subsequently admit that its observation, that the Regulation cannot mean that ‘any, even minor, variation made by the parties, on or after 17 December 2009, to a contract initially concluded before that date were sufficient to bring that contract within the scope of the Rome I Regulation’ (at 35) , should not negate that

‘the possibility remains, as the Commission has pointed out in its written observations, that a contract concluded before 17 December 2009 may be subject, on or after that date, to a variation agreed between the contracting parties of such magnitude that it gives rise not to the mere updating or amendment of the contract but to the creation of a new legal relationship between the contracting parties, so that the initial contract should be regarded as having been replaced by a new contract, concluded on or after that date, for the purposes of Article 28 of the Rome I Regulation.’ (at 37).

Whether such ‘new legal relationship’ has been formed in casu, is down to the national court to decide. The CJEU does not give any indication whatsoever of what law is to guide that court in that decision. A European ius commune? I don’t see it. Lex fori? Perhaps. But that would encourage forum shopping. Lex causae? But the Court had dismissed Article 10 of having any relevance. I am at a loss.

Now, to the question of overriding mandatory requirements (please refer again to my review of Szpunar AG’s Opinion for context): here the Court I believe misses the mark. After pointing out, justifiably (and in contrast with the AG), that Article 9 needs to be interpreted restrictively, it holds that ‘the list, in Article 9 of the Rome I Regulation, of the overriding mandatory provisions to which the court of the forum may give effect is exhaustive. (at 49).

Check.

This means Article 9 of the Rome I Regulation must be interpreted ‘as precluding the court of the forum from applying, as legal rules, overriding mandatory provisions other than those of the State of the forum or of the State where the obligations arising out of the contract have to be or have been performed. Consequently, since, according to the referring court, Mr Nikiforidis’s employment contract has been performed in Germany, and the referring court is German, the latter cannot in this instance apply, directly or indirectly, the Greek overriding mandatory provisions which it sets out in the request for a preliminary ruling.’ (at 50).

Check.

But then, at 52:

‘On the other hand, Article 9 of the Rome I Regulation does not preclude overriding mandatory provisions of a State other than the State of the forum or the State where the obligations arising out of the contract have to be or have been performed from being taken into account as a matter of fact, in so far as this is provided for by a substantive rule of the law that is applicable to the contract pursuant to the regulation.‘

And in conclusion, at 53:

Accordingly, the referring court has the task of ascertaining whether Laws No 3833/2010 and No 3845/2010 are capable of being taken into account when assessing the facts of the case which are relevant in the light of the substantive law applicable to the employment contract at issue in the main proceedings.

Err, here I really do not follow. Surely such de facto circumvention of Article 9’s restrictive scope, negates its effet utile. If and when a law other than the lex causae may be taken into account ‘as a matter of fact’, the Rome modus operandi is to say so: see in this respect in particular Article 17 Rome II. And what would ‘taking into account as a matter of fact’ mean for the case at issue?

Now you see it, now you don’t. In West Tankers the Court took effet utile to extreme length. Here it arguably entirely negates it. I am not convinced.

Geert.

(Handbook of) European Private international law, 2nd ed. 2016. Chapter 2, Heading 2.2.8.3, Chapter 3, Heading 3.2.5 , heading 3.2.8.

In its judgment of 7 July 2016, in the case of Hőszig Kft. v Alstom Power Thermal Services (case C-222/15), the Court of Justice ruled as follows.

Article 23(1) of Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I) must be interpreted as meaning that a jurisdiction clause which, first, is set out in the client’s general terms and conditions, referred to in the instruments witnessing the contracts between those parties and forwarded upon their conclusion, and, secondly, designates as courts with jurisdiction those of a city of a Member State, meets the requirements of Article 23 relating to the consent of the parties and the precision of the content of such a clause.  

Nella sentenza del 7 luglio 2016 relativa alla causa Hőszig Kft. c. Alstom Power Thermal Services (causa C-222/15), la Corte di giustizia ha affermato quanto segue.

L’art. 23, par. 1, del regolamento (CE) n. 44/2001 concernente la competenza giurisdizionale, il riconoscimento e l’esecuzione delle decisioni in materia civile e commerciale (Bruxelles I), dev’essere interpretato nel senso che una clausola attributiva di giurisdizione che, da un lato, sia stata stipulata nell’ambito delle condizioni generali di contratto del committente, menzionate negli atti contenenti i contratti inter partes e trasmesse all’atto della loro conclusione, e che, dall’altro, designi quali giudici competenti quelli di una città di uno Stato membro, soddisfa i requisiti del suddetto art. 23, relativi al consenso tra le parti ed alla precisione del contenuto di tale clausola.

 

DEI / Alouminion tis Ellados et Commission
Aide d'État
La prolongation de la durée de validité d’une aide d’État existante doit être considérée comme la modification de cette aide et donc comme une aide nouvelle

Orange / Commission
Aide d'État
La Cour rejette le pourvoi de France Télécom dans l’affaire de la réforme du financement des retraites des fonctionnaires rattachés à cette entreprise

By a judgment of 21 June 2016 (No 19599), the First Chamber of the Italian Court of Cassation held that the recognition of a child as the son of two mothers (the woman who gave birth to the child, and the woman who donated her ova for the purposes of the medically assisted procreation), as indicated in a birth certificate issued abroad, is not incompatible with the Italian public policy. In the Court’s view, the recognition is in fact necessary to guarantee the right of the child to the cross-border continuity of his personal and social identity.

Nella sentenza 21 giugno 2016 n. 19599, la Prima Sezione della Corte di cassazione ha ritenuto che non sia contrario all’ordine pubblico italiano il riconoscimento dello stato di figlio di un bambino che, secondo un certificato di nascita rilasciato all’estero, risulta nato da due madri (l’una avendolo partorito, l’altra avendo donato gli ovuli necessari alla procreazione medicalmente assistita). Ciò in considerazione dell’interesse del minore alla continuità della propria identità personale e sociale attraverso le frontiere.

In C-471/15 Sjelle Autogenbrug, Bot AG opined a few weeks ago. I find myself curiously drawn to VAT cases these days. Especially since I reported how in a VAT case, the CJEU perhaps accidentally came to a major decision on the Aarhus Convention. Also have a look for instance on how the same AG discusses ‘cultural services’ within the context of VAT (C-592/15 BFI). Or perhaps it is because I have a past (and potentially, a future) in customs duties and excise.

It is particularly interesting to ponder how terminology that is used across the board in EU law, specifically also regulatory law, is interpreted in the context of VAT. (Incidentally the Advocate General gives an excellent summary of VAT rules and why VAT can /should be set-off between traders). In the case at hand, Directive 2006/112 provides i.a. the following definition for second-hand goods: “second-hand goods” means movable tangible property that is suitable for further use as it is or after repair, other than works of art, collectors’ items or antiques and other than precious metals or precious stones as defined by the Member States; 

Sjelle Autogenbrug I/S is a vehicle reuse undertaking whose main activity is the resale of used motor vehicle parts which it removes from end-of-life vehicles. It also engages in the environmental and waste treatment of end-of-life vehicles, a service for which it charges a standard price. Lastly, a lesser part of the undertaking’s overall turnover derives from the sale of scrap metal remaining after removal of the motor vehicle parts. Sjelle Autogenbrug purchases end-of-life vehicles — which are either vehicles whose lifespan has expired or total write-offs — from individuals and insurance companies who do not declare VAT on sales made. Sjelle Autogenbrug currently declares VAT pursuant to the applicable general rules. In 2010, it asked the tax authorities to apply the special margin scheme for second-hand goods to its activity of reselling used motor vehicle parts taken from end-of-life vehicles. The authorities refused.

Since the goods are reintroduced into the distribution chain, the taxable dealer is liable for VAT when he resells the goods. However, as the taxable dealer did not pay VAT when he purchased the second-hand goods from the non-taxable individual, he cannot deduct such VAT from the amount to be paid to the State, being an amount comprised exclusively of the VAT charged upon resale of those goods. This results in a lack of VAT neutrality and in the double taxation of the goods (at 26). The margin scheme was adopted to alleviate that difficulty. It aims to harmonise the rules applicable to the acquisition of new goods subject to VAT which are later resold as second-hand goods and to prevent double taxation and the distortion of competition between taxable persons in the area of second-hand goods.

The Danish government submits that the use in that provision of the words ‘as it is’ demonstrates that, in order to be classified as ‘second-hand goods’, the goods must retain their identity, which is not the case with spare parts since Sjelle Autogenbrug acquires, first of all, a complete vehicle. Furthermore, it argues that even if those spare parts could be classified as ‘second-hand goods’, it would not be possible to apply the margin scheme because the purchase price of the spare parts cannot be precisely determined.

Bot AG disagrees:

• the EU legislature did not intend to exclude goods originating from a single whole which could be separated, such as parts taken from end-of-life vehicles (at 33)
• the key factor in the classification of goods as ‘second-hand goods’ is that the used goods must retain the characteristics they had when new (at 35). He refers in this context also tho the end-of life-vehicles Directive, 2000/53, which defined ‘reuse’ as ‘any operation by which components of end-of-life vehicles are used for the same purpose for which they were conceived’. ‘Motor vehicle parts fall squarely within that definition since, even when separated from the vehicle, they retain their original characteristics as they will be reused for the same purpose in another vehicle. The fact that those parts were removed from the vehicle is therefore of little consequence.‘ (at 35)

The Advocate General further considered that were the special margin scheme not to be applied, dealers of second hand spare parts would be disfavoured vis-a-vis those dealing in new spare parts. Hardly indeed a result that would be conducive to the circular economy.

EU waste law does not employ the notion ‘second hand goods’. In practice these goods have raised all sorts of demarcation issues. Summarising all these, if one and the same good is simply passed on to ‘a second hand’, ie the original owner no longer has a use for it but it can be passed on by someone else who will employ it for its original purpose and without there being a need for treatment or processing, it should not be regarded as waste.

It is only be looking into all nooks and crannies of EU law that  ambitious projects like the circular economy will be a real success. Current Opinion is a good illustration of such successful consideration.

Handbook of EU Waste Law, second ed. 2016, Chapter 1.

Infringement of personality rights, including invasion of privacy, is exempt from the Rome II Regulation on applicable law for non-contractual relations. TLT at the High Court shows how distinct national laws may look upon the issue of quantification of damages very differently. Robin Hopkins reviews precedent and the case itself here, and One Crown Office Row zoom in on the case itself here. This case did not involve conflict of laws, however I thought I would highlight it anyway, for it is common knowledge that national laws assess damages in cases like these very differently.

It is worth pointing out in this respect that infringement of personality rights is exempt from Rome II not because it is irrelevant. Rather the contrary: it is very relevant indeed and no agreement could be found on an applicable law rule.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 4.

The program of the conference Politics and Private International Law (?) is now available. As announced on this blog, the conference will be held on 6 and 7 April 2017 at the University of Bonn. The registration deadline is February 28th 2017. Further information are available here.

È disponibile il programma della convegno Politics and Private International Law (?) che, come segnalato in un post precedente, si svolgerà il 6 e il 7 aprile 2017 presso l’Università di Bonn. Il termine per la registrazione è il 28 febbraio 2017. Maggiori informazioni a questo indirizzo.

In a judgment of 25 July 2016 (No 15343), the First Chamber of the Italian Court of Cassation held that the application of the law of Pakistan, specifically, the application of the rules that allow marriage proceedings to be conducted over the telephone or by telematic means (subject to certain conditions, such as the presence of witnesses), is not incompatible with the Italian public policy.

Nella sentenza 25 luglio 2016 n. 15343, la Prima Sezione della Corte di cassazione ha escluso che produca effetti contrari all’ordine pubblico italiano la norma pakistana, resa applicabile in forza del richiamo di cui all’art. 28 della legge 31 maggio 1995 n. 218, che ammette — a certe condizioni, come la presenza di testimoni — che uno dei coniugi possa prestare il proprio consenso non già personalmente di fronte all’autorità officiante ma per via telefonica o telematica.

On 26 October 2016 the University of Macerata will host a conference on the Digital Single Market. The programme is available here.

Il 26 ottobre 2016 l’Università di Macerata ospiterà un convegno sul mercato unico digitale. Il programma è disponibile qui.

Massimo V. Benedettelli, Five Lay Commandments for the EU Private International Law of Companies, in Yearbook of Private International Law, 2015/2016, p. 209-251.

While praising European company law as a “cornerstone of the internal market”, the EU institutions have devoted limited attention to issues of competent jurisdiction, applicable law and recognition of judgments which necessarily arise when companies carry out their business on a cross-border basis. This is a paradox, especially if one considers that in this area the EU often follows a policy of “minimal harmonization” of the laws of the Member States and that this policy leads to the co-existence of a variety of different rules and institutions directly or indirectly impinging on the regulation of companies, thus to possible conflicts of jurisdictions and/or laws. The European Court of Justice’s “Centros doctrine” fills this gap only partially: this is due not only to the inherent limits of its case-law origin, but also to various hidden assumptions and corollaries on which it appears to be grounded and which still need to be unearthed. Hence, time has come for a better coordination of the legal systems of the Member States in the field of company law, possibly through the enactment of an ad hoc instrument. To be properly carried out, however, such coordination requires a preliminary clarification of what the EU private international law of companies really is and how it should be handled at the current stage of the European integration. This article tries to contribute to such clarification by proposing five main guidelines, in the form of “commandments” for the European legislator, courts and practitioners. It is submitted that, first, one should understand the different scope of the three legal disciplines (EU law, private international law and company law) which interact in this field so as to assess when and to what extent the lack of coordination of the Member States’ domestic laws may affect the achievement of the objectives pursued by the EU. As a second analytical step, the impact that the EU constitutional principles of subsidiarity and proportionality may have on the scope of the relevant regulatory powers of the EU and of the Member States should be determined. Third, the issue of “characterization” should be addressed so that the boundaries of company law vis-à-vis neighbouring disciplines (capital markets law, insolvency law, contract law, tort law) are fixed throughout the entire EU legal space in a uniform and consistent way. Fourth, the Member States’ legal systems should be coordinated on the basis of the “jurisdictional approach” method (which de facto inspires the ECJ in Centros and its progenies) by granting a role of prominence to the Member State under the laws of which a company has been incorporated. Fifth, any residual conflict which may still arise among different Member States in the regulation of a given company should be resolved, in principle, by respecting the will of the parties to the corporate contract and the rights “to incorporate” and “to re-incorporate” which they enjoy under EU law. In the author’s opinion, an EU private international law of companies developed on the basis of these guidelines not only would achieve a fair balance between the needs of the integration and the Member States’ sovereignty, but would also create a framework for a European “market of company law” where a “virtuous” forum and law shopping could be performed in a predictable and regulated way.

In its judgment of 18 October 2016 regarding the case of Nikiforidis (Case C‑135/15), the Court of Justice ruled as follows.

(1)      Article 28 of Regulation No 593/2008 on the law applicable to contractual obligations (Rome I) must be interpreted as meaning that a contractual employment relationship that came into being before 17 December 2009 (the date on which the Regulation became applicable) falls within the scope of the regulation only in so far as that relationship has undergone, as a result of mutual agreement of the contracting parties which has manifested itself on or after that date, a variation of such magnitude that a new employment contract must be regarded as having been concluded on or after that date, a matter which is for the referring court to determine.

(2)      Article 9(3) of Regulation No 593/2008 must be interpreted as precluding overriding mandatory provisions other than those of the State of the forum or of the State where the obligations arising out of the contract have to be or have been performed from being applied, as legal rules, by the court of the forum. The Regulation, however, does not preclude the court from taking such other overriding mandatory provisions into account as matters of fact in so far as this is provided for by the national law that is applicable to the contract pursuant to the regulation. This interpretation is not affected by the principle of sincere cooperation laid down in Article 4(3) TEU. 

Regarding the opinion delivered by SG Szpunar in this case, see here.  

Nella sentenza del 18 ottobre 2016 relativa al caso Nikiforidis (causa C-135/15), la Corte ha affermato quanto segue.

(1)      L’art. 28 del regolamento n. 593/2008 sulla legge applicabile alle obbligazioni contrattuali (Roma I) dev’essere interpretato nel senso che un rapporto contrattuale di lavoro sorto prima del 17 dicembre 2009 (la data di applicabilità del regolamento) rientra nell’ambito di applicazione di tale regolamento solo nei limiti in cui detto rapporto ha subito, per effetto di un consenso reciproco delle parti contraenti che si sia manifestato a decorrere da tale data, una modifica di ampiezza tale da dover ritenere che sia stato concluso un nuovo contratto di lavoro a decorrere dalla medesima data, circostanza che spetta al giudice del rinvio determinare.

(2)      L’art. 9, par. 3, del regolamento n. 593/2008 deve essere interpretato nel senso che esso esclude che norme di applicazione necessaria diverse da quelle dello Stato del foro, o dello Stato nel quale gli obblighi derivanti dal contratto devono essere o sono stati eseguiti, possano essere applicate, in quanto norme giuridiche, dal giudice del foro. Esso non osta, tuttavia, a che il giudice prenda in considerazione siffatte altre norme di applicazione necessaria in quanto elementi di fatto nei limiti in cui ciò è previsto dal diritto nazionale applicabile al contratto in forza delle disposizioni di tale regolamento. Detta interpretazione non è rimessa in discussione dal principio di leale cooperazione enunciato all’articolo 4, paragrafo 3, TUE.

Vedi qui una sintesi delle conclusioni presentate in questa causa dall’Avvocato Generale Szpunar.

Intel Corporation / Commission
Concurrence
L’avocat général Wahl propose d’accueillir le pourvoi d’Intel dirigé contre l’amende de 1,06 milliard d’euros infligée pour abus de position dominante

By Implementing Regulation 2016/1823 of 10 October 2016, the European Commission has established the forms referred to in Regulation No 655/2014 of 15 May 2014 on the European Account Preservation Order (EAPO) procedure, which is set to become available on 18 January 2017. The forms include, inter alia, the form to be used by the creditor to apply for a EAPO, the forms to be used by the court for the issue and the revocation of a EAPO, and the form to be used by the debtor to apply for a remedy against a EAPO. Each form comes with an explanatory text providing practical guidelines. The Commission is now expected to make publicly available the information that the Member States, pursuant to Article 50 of Regulation No 655/2014, were required to provide before 18 July 2016 as regards the organisation of the EAPO procedure in their legal systems (such as the courts designated as competent to issue a EAPO and the authorities charged with the enforcement of EAPOs).

Con il regolamento di esecuzione 2016/1823 del 19 ottobre 2016, la Commissione europea ha adottato i moduli standard previsti dal regolamento n. 655/2014 del 15 maggio 2015 che istituisce una procedura per l’ordinanza europea di sequestro conservativo su conti bancari, esperibile a partire dal 18 gennaio 2017. Fra i moduli così elaborati rientrano quello di cui deve servirsi il creditore per domandare il rilascio di un’ordinanza, quello che deve adoperare il giudice competente per disporre o revocare l’ordinanza e quello che deve utilizzare il debitore per ricorrere contro l’ordinanza. Ogni modulo è corredato da una nota esplicativa contenente delle istruzioni pratiche. Ci si attende ora che la Commissione renda pubbliche le informazioni che gli Stati membri erano tenuti a fornirle entro il 18 luglio 2016 circa l’attuazione del regolamento n. 655/2014 nei rispettivi ordinamento (come l’indicazione delle autorità competenti alla concessione dell’ordinanza o quelle investite della sua esecuzione).

Breyer
Rapprochement des législations
L’exploitant d’un site Internet peut avoir un intérêt légitime à conserver certaines données à caractère personnel des visiteurs afin de se défendre contre les attaques cybernétiques

Deutsche Parkinson Vereinigung
Libre circulation des marchandises
Les prix uniformes fixés en Allemagne pour les médicaments soumis à prescription sont contraires au droit de l’Union

Marie-Elodie Ancel, Pascale Deumier, Malik Laazouzi, Droit des contrats internationaux, Sirey, 2016, ISBN 9782247084784, 742 pp., EUR 36.

Le présent ouvrage est le premier manuel consacré au seul droit des contrats internationaux, ce qui se justifie pleinement en raison du développement du phénomène et des évolutions constantes de la matière. Il en donne une présentation riche et rigoureuse, prenant en compte les textes récemment adoptés ou discutés au plan national, européen ou international. Une fois posés les principes généraux de la matière, examinés à travers le prisme du contentieux judiciaire et de la justice arbitrale, le lecteur pourra prendre connaissance des régimes des contrats les plus fréquents dans l’ordre international, selon qu’il s’agit de contrats d’affaires (vente de marchandises et contrats d’intermédiaire), relatifs à des secteurs spécifiques (assurances et transports), impliquant une partie faible (contrats de travail et de consommation) ou une personne publique (française ou étrangère).

 

Cedric Vanleenhove, Punitive Damages in Private International Law, Intersentia, 2016, ISBN 9781780684161, 260 pp., EUR 60.

Although European scholars have called U.S. punitive damages an “(undesired) peculiarity of American law” and the “Trojan horse of the Americanisation of continental law”, the European Union cannot close its eyes to this important feature of U.S. law. Despite being under constant scrutiny, punitive damages have a strong foothold on the other side of the ocean. Moreover, due to increased globalisation, transnational litigation is arguably on the rise. In cross-border law suits, it is inevitable that a jurisdiction will encounter legal institutions that are alien to the substantive law of the forum. This book examines the private international law treatment of American punitive damages in the European Union. It poses the crucial question whether U.S. punitive damages (should) penetrate the borders of the European Union through the backdoor of private international law. More specifically, three areas of private international law are analysed: service of process, applicable law and enforcement of judgments. In addition to describing the current positions in case law and scholarship, the book takes a normative perspective and attempts to formulate concrete guiding principles that can be used when the European legal order faces U.S. punitive damages. It, therefore, provides an invaluable resource for practitioners, judges and authorities confronted with this controversial remedy. Furthermore, as a nation’s private international law attitude indicates the country’s level of tolerance towards a foreign concept unknown in its own legal system, the book can form an essential building block for discussions amongst legislators surrounding the introduction of the remedy of punitive damages in substantive law.