Flux européens

Ledra Advertising / Commission et BCE
Politique économique
Selon les avocats généraux Wathelet et Wahl, le Tribunal a, à bon droit, rejeté les recours en annulation et en indemnité concernant la restructuration du secteur bancaire chypriote

Ledra Advertising / Commission et BCE
Politique économique
Selon les avocats généraux Wathelet et Wahl, le Tribunal a, à bon droit, rejeté les recours en annulation et en indemnité concernant la restructuration du secteur bancaire chypriote

Ledra Advertising / Commission et BCE
Politique économique
Selon les avocats généraux Wathelet et Wahl, le Tribunal a, à bon droit, rejeté les recours en annulation et en indemnité concernant la restructuration du secteur bancaire chypriote

Radlinger et Radlingerová
Rapprochement des législations
La Cour constate que l’obligation du juge national d’examiner d’office le respect des règles du droit de l’Union en matière de protection des consommateurs s’applique aux procédures d’insolvabilité

Radlinger et Radlingerová
Rapprochement des législations
La Cour constate que l’obligation du juge national d’examiner d’office le respect des règles du droit de l’Union en matière de protection des consommateurs s’applique aux procédures d’insolvabilité

Khachab
Espace de liberté, sécurité et justice
Les États membres peuvent refuser une demande de regroupement familial s’il ressort d’une évaluation prospective que le regroupant ne disposera pas de ressources stables, régulières et suffisantes durant l’année suivant la date de dépôt de la demande

Khachab
Espace de liberté, sécurité et justice
Les États membres peuvent refuser une demande de regroupement familial s’il ressort d’une évaluation prospective que le regroupant ne disposera pas de ressources stables, régulières et suffisantes durant l’année suivant la date de dépôt de la demande

New Valmar
Libre circulation des personnes
Selon l’avocat général Henrik Saugmandsgaard Øe, l’obligation prévue par un décret de la Communauté flamande d’établir des factures transfrontalières exclusivement en néerlandais, sous peine de nullité, enfreint le droit de l’Union

Each year, the Swiss Institute of Comparative Law awards a certain number of scholarships to support academic research in the field of comparative and international law.

As for the year 2017, the Institute especially welcomes applications on the topics of Business and Human Rights and Communication and Internet law.

Preference shall be given to applicants who have never carried out research activities outside their country of origin and wish to pursue an academic career.  Fluency in at least two of the following languages is required: English, French and German.

The deadline for submitting applications is 30 June 2016.

The call for applications can be downloaded here. Further information is available at the following link.

Cross-border Litigation in Europe: the Brussels I Recast Regulation as a Panacea?, a cura di Franco Ferrari e Francesca Ragno, Cedam, 2016, pp. XIII-190, ISBN: 9788813358310, Euro 29.

[Dal sito dell’editore] – The Brussels I Regime […] is widely considered to be the foundation stone of a “European Law of Procedure” and to have enhanced cross-border litigation in Europe through an efficient system of judicial cooperation based on comprehensive jurisdiction rules, coordination of parallel proceedings, and circulation of judgments. In spite of its overall success, the system has been viewed as in need of modernization and has undergone a revision process, which led to the adoption of the EU Regulation No 1215/2012 (the “Brussels I Recast Regulation”), which became applicable on 10 January 2015. In this book, various authors examine in detail the most important changes introduced by this instrument, focus on the issues still open and address the problems arising out of the coexistence of the new Regulation with other instruments in force in Europe. Not unlike the previous book on the Brussels I Recast Proposal published in this series, this volume aims at contributing to what has been an exciting discussion in the past and is likely to be so for years to come.

Il volume racchiude gli atti del convegno tenutosi a Verona il 28 e 29 novembre 2014, già segnalato in questo post.

Maggiori informazioni e l’indice dell’opera sono disponibili a questo indirizzo.

Dalli / Commission
Droit institutionnel
La Cour confirme l’irrecevabilité du recours de l’ancien commissaire John Dalli au sujet de sa démission prétendument exigée par l’ex-président Barroso

La finale européenne du concours « European Law Moot Court » aura lieu le 15 avril à la Cour de justice de l’Union européenne à Luxembourg

The topic of the 28th Conference of Private International Law of the Swiss Institute of Comparative Law, organised in cooperation with the Faculty of Law of the University of Neuchâtel, is Les banques et les assurances face aux tiers et les nouveautés en matière de faillite internationale.

The conference will take place in Lausanne on 27th May 2016.

The morning session will present recent developments in international bankruptcy, with a particular focus on the draft revision of the Swiss Federal Act on Private International Law, the practical impact of bankruptcy on civil proceedings and arbitration, as well as issues of international bankruptcy in banking.

The afternoon session will address legal relationships that involve three parties, focusing in particular on the situation of banks and insurance companies vis-à-vis third parties. Recent developments in Switzerland and the EU will be examined, including the issue of third party’s right to obtain banking information in the context of successions.

Presentations will be in French and English.

For the full program please see here. Registrations at news@isdc.ch.

Thank you Fieke van Overbeeke for pointing this out to me. The EC have proposed to amend the posted workers Directive, to address unfair practices and promote the principle that the same work at the same place be remunerated in the same manner.

The amendment essentially relates to Article 8(2) of the Rome I Regulation, which partially corrects choice of law made in the context of contracts for employment. The proposal amounts to Union harmonisation of the concept ‘temporary employment’, as one not exceeding 24 months.

The proposal, if adopted, would insert an Article 2a in the posted workers Directive, 96/71, as follows:

Article 2a
Posting exceeding twenty-four months
1. When the anticipated or the effective duration of posting exceeds twenty-four
months, the Member State to whose territory a worker is posted shall be deemed to
be the country in which his or her work is habitually carried out.
2. For the purpose of paragraph 1, in case of replacement of posted workers
performing the same task at the same place, the cumulative duration of the posting
periods of the workers concerned shall be taken into account, with regard to workers
that are posted for an effective duration of at least six months.

Recitals 6-8 give context:

(6) The Rome I Regulation generally permits employers and employees to choose the law
applicable to the employment contract. However, the employee must not be deprived
of the protection of the mandatory rules of the law of the country in which or, failing
that, from which the employee habitually carries out his work. In the absence of
choice, the contract is governed by the law of the country in which or, failing that,
from which the employee habitually carries out his work in performance of the
contract.
(7) The Rome I Regulation provides that the country where the work is habitually carried
out shall not be deemed to have changed if he is temporarily employed in another
country.
(8) In view of the long duration of certain posting assignments, it is necessary to provide
that, in case of posting lasting for periods higher than 24 months, the host Member
State is deemed to be the country in which the work is carried out. In accordance with
the principle of Rome I Regulation, the law of the host Member Sates therefore applies
to the employment contract of such posted workers if no other choice of law was made
by the parties. In case a different choice was made, it cannot, however, have the result
of depriving the employee of the protection afforded to him by provisions that cannot
be derogated from by agreement under the law of the host Member State. This should
apply from the start of the posting assignment whenever it is envisaged for more than
24 months and from the first day subsequent to the 24 months when it effectively
exceeds this duration. This rule does not affect the right of undertakings posting
workers to the territory of another Member State to invoke the freedom to provide
services in circumstances also where the posting exceeds 24 months. The purpose is
merely to create legal certainty in the application of the Rome I Regulation to a
specific situation, without amending that Regulation in any way. The employee will in
particular enjoy the protection and benefits pursuant to the Rome I Regulation.

It would obviously be attractive to ensure the same rule is verbatim included in a future amendment of the Rome I Regulation.

Geert.

 

(Handbook of) EU Private International Law, 2nd ed 2016, Chapter 3, Heading 3.2.5.

Entrée en fonction de nouveaux juges au Tribunal de l’Union européenne et au Tribunal de la fonction publique de l’Union européenne

General Principles of European Private International Law, a cura di Stefan Leible, Kluwer Law International, 2016, p. 416, ISBN: 9789041159557, Euro 145.

[Dal sito dell’editore] – European private international law, as it stands in the Rome I, II, and III Regulations and the recent Succession Regulation, presents manifold risks of diverging judgments despite seemingly harmonised conflict of law rules. There is now a real danger, in light of the rapid increase in the number of legal instruments of the European Union on conflict of laws, that European private international law will become incoherent. This collection of essays by twenty noted scholars in the field sheds clear light on the pivotal issues of whether a set of overarching rules (a ‘general part’) is required, whether an EU regulation is the adequate legal instrument for such a purpose, which general questions such an instrument should address, and what solutions such an instrument should provide. In analysing the possible emergence of general principles in European private international law over the past years, the contributors discuss such issues and factors as the following: a) the relationship between conflict of laws and recognition; b) the room for party autonomy; c) the concept of habitual residence; d) adaptation when interplay between different laws leads to deadlock; e) public policy exceptions; f) the desirability of a general escape clause; g) the classic topics of characterisation, incidental question, and renvoi; and h) right to appeal in case of errors in the application of foreign law. Practitioners dealing with these notoriously difficult cases will welcome this in-depth treatment of the issues, as will interested policymakers throughout the EU Member States and at the EU level itself. Scholars will discover an incomparable comparative analysis leading to expert recommendations in European private international law, opening the way to an effective European framework in this area.

Ulteriori informazioni  e il sommario del volume sono disponibili qui.

A longer title than readers are used to from this blog. However judgment itself is also an unusually long 163 pages. In Banco Santander Totta, the High Court was asked whether snowball interest rates swaps in loan agreements between a Portuguese Bank and four Portuguese public transport companies, should be declared invalid under Portuguese ‘mandatory’ law, applicable by use of the corrective mechanism of Article 3(3) Rome I.

The Transport Companies do not assert that BST wrongly advised them to enter into the swaps, or misrepresented the swaps to them. Rather,  defences raised by the Transport Companies are that:

(1) under Portuguese law, each company lacked capacity to enter the swaps which are therefore void; this is on the basis (among other reasons) of an assertion that the swaps were speculative transactions; this defence applies regardless of the law applicable to the swaps; it is common ground that, if correct, it is a complete answer to the claim;

(2) although English law governs the Master Agreements, this is subject to Art. 3(3) of the Rome Convention; this provides that where all the elements relevant to the situation at the time of the choice of law are connected with one country only, the choice does not prejudice the application of rules of the law of that country which cannot be derogated from by contract (“mandatory rules”). Portuguese mandatory rules apply to the swaps, giving rise to two defences: a) under rules dealing with gaming and betting and ordre public, the swaps are void for being unlawful “games of chance”, alternatively speculations; b) seven of the nine swaps are liable to be terminated under rules dealing with an “abnormal change of circumstances” (which termination takes effect as though the swaps were void); this is on the basis that since 2009 (following the financial crisis), the reference interest rates relating to the swaps (EURIBOR and LIBOR) have been close to zero (and remain so at the time of this judgment);

(3) in presenting the swaps to the Transport Companies, the bank acted in breach of its duties under provisions of the Portuguese Securities Code which implement relevant European Union legislation; these apply to the bank as a financial intermediary and relate to the protection of the legitimate interests of the Transport Companies as clients, and to conflicts of interest; the breach is said to entitle the Transport Companies to damages thereby extinguishing their liabilities under the swaps.

Knowles J reviews precedent (European (limited, mostly related to the preparatory works), English and Portuguese (likewise limited) and decides against the engagement of Article 3(3). I will not regurgitate all of the analysis: readers are best referred to the judgment, in particular p.65 onwards, and the decision at 411, where Knowles J concludes

because of the right to assign to a bank outside Portugal, the use of standard international documentation, the practical necessity for the relationship with a bank outside Portugal, the international nature of the swaps market in which the contracts were concluded, and the fact that back-toback (sic) contracts were concluded with a bank outside Portugal in circumstances in which such hedging arrangements are routine, the court’s conclusion is that Art. 3(3) of the Rome Convention is not engaged because all the elements relevant to the situation at the time of the choice were not connected with Portugal only. In short, these were not purely domestic contracts. Any other conclusion, the court believes, would undermine legal certainty.  

The latter element is quite important. Referring in particular to Briggs (at 374), the Court holds that the uncertainty of the rule of Article 3(3) should lead to its narrow interpretation. I agree. With party autonomy the core consideration of the Regulation, standard recourse to Article 3(3) [or 3(4) for that matter) under the pretext for instance of a general campaign against fraus legis is most definitely not warranted.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 3, Heading 3.2.8, Heading 3.2.8.1

Thank you, Matthias Storme, for alerting me late last night that judgment was issued in Case C-483/13 KA Finanz AG. The CJEU is asked to clarify the ‘corporate exception’ to the Rome Convention and subsequent Regulation on the law applicable to contractual obligations. The two main questions ask whether the ‘company law’ excepted area includes (a) reorganisations such as mergers and divisions, and (b) in connection with reorganisations, the creditor protection provision in Article 15 of Directive 78/855 concerning mergers of public limited liability companies, and of its successor, Directive 2011/35. I have a little more on the background in previous posting and I expressed my disappointment with Bot AG’s Opinion here.

The Court, like the AG, justifiably rejects a great deal of the questions as inadmissible, mainly due to the secondary law, interpretation of which is sought, not applying ratione temporis, to the facts at issue. It then in essence simply turns to European company law, in particular Directive 2005/56, to settle the issue. Why exhaust oneself with analysis of the corporate exception, if a different piece of EU law exhaustively regulates the issue? At 56 ff

It is stated in Article 2(2)(a) of Directive 2005/56 that a merger by acquisition is an operation whereby one or more companies, on being dissolved without going into liquidation, transfer all their assets and liabilities to another existing company, namely the acquiring company.

As regards the effects of such an operation, it is stated in Article 14(2)(a) of Directive 2005/56 that a cross-border merger brings about, from the date when the merger takes effect, the transfer of all the assets and liabilities of the company being acquired to the acquiring company.A merger by acquisition therefore entails the acquisition by the acquiring company of the company being acquired in its entirety, without extinguishing the obligations that a winding-up would have brought about, and, without novation, has the effect of substituting the acquiring company for the company being acquired as party to all of the contracts concluded by the latter. Consequently, the law which was applicable to those contracts before the merger continues to be applicable after the merger. It follows that EU law must be interpreted as meaning that the law applicable following a cross-border merger by acquisition to the interpretation of a loan contract taken out by the acquired company, such as the loan contracts at issue in the main proceedings, to the performance of the obligations under the contract and to how those obligations are extinguished is the law which was applicable to that contract before the merger.

(here: German law).

I appreciate the narrow set of facts upon which the CJEU holds allows one to distinguish. The spirit of the Court’s judgment in my view must however be what I have advocated for some time. Other than for a narrow set of issues immediately surrounding the very creation, life and death of the merged company, for which lex societatis applies, European private international law upholds lex contractus (often: lex voluntatis: the law so chosen by the parties) for the considerable amount of contractual satellites involving a merger and similar operations. Rome I is fully engaged for these contracts, including its provisions on third party impact of a change in governing law (this is relevant where the parties to the merger, decide to amend applicable law of the inherited contracts).

Geert.

 (Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.6.5, Chapter 3, Heading 3.2.2 .

I shall keep this post short for otherwise it risks developing into a book. In a week which also saw the Panama papers blow a hole in the use of tax havens for individuals, the collapse of the Pfizer Allergan merger may be the beginning of the end for the Irish (and similar) corporate tax Nirvana. The US treasury’s new rules on outgoing corporate mobility mean re-incorporation in Ireland has become an awful lot less attractive.

I realise there are caveats and one may be comparing cheese and chalk. Also, tax lawyers no doubt will have to chew over this, yet: may this not also be the moment for the EC to reconsider similar issues in EU law, kicked off some time back by the Daily Mail case?

Geert.

(Handbook of) European Private International Law 2nd ed 2016 Chapter 7.

GS Media
Rapprochement des législations
Selon l’avocat général Melchior Wathelet, le placement d’un hyperlien renvoyant vers un site qui a publié des photos sans autorisation ne constitue pas en soi une violation du droit d’auteur