Agrégateur de flux

The International Commission on Civil Status (ICCS / CIEC in French) is organising a conference on 21 September 2022 entitled: ICCS plurilingual forms Present and future of international cooperation in civil status matters.

This event is being held on the occasion of the entry into force of the Convention (n°34) relative à la délivrance d’extraits et de certificats plurilingues et codés d’actes de l’état civil for the following States: Belgium, Germany and Switzerland (as of 1 July 2022).

Speeches and discussions will be in French or English with simultaneous interpretation.

The venue of the conference is Château de Pourtalès, 161, rue Mélanie, 67000 STRASBOURG – France.

Registration is free of charge but mandatory. Interested persons should send a message to:

ciec-sg@ciec1.org

Below is the agenda (see also here Conference program):

8.30 am : Welcome speech

Jeannine Dennewald, President of the ICCS

8.40 am : Opening speech

Hans van Loon, former Secretary General of the Hague Conference on Private International Law

Morning session : 9.00 – 12.15 am : Improving plurilingual forms

Chair : Paul Lagarde, Emeritus professor, University Paris I, former secretary general of the ICCS

9.00 – 10.30 am : workshop n°1 : Plurilingual forms and sex of persons: same-sex couples, neutral sex and third sex

Speaker : Patrick Wautelet, Professor, University of Liège

Discussion : Dr Bojana Zadravec, President of the Slovenian Association of Administrative Staff, EVS (European Association of Registars)

10.30 – 10.45 am : break

10.45 am – 12.15 pm : workshop n°2 : Plurilingual forms and filiation: the relevance of adapting to diversity

Speaker : Olivier Guillod, Professor, University of Neuchâtel

Discussion : Hague Conference representative

12.15 – 12.30 pm : The ICCS: dynamic transition to the future

Nicolas Nord, Secretary General of the ICCS

Afternoon session : 2.00 – 6.00 pm : Optimizing the circulation of plurilingual forms

Chair : Anatol Dutta, Professor, University of Munich

2.00 – 2.30 pm : workshop n°3 : Plurilingual forms and European rights: from the public documents regulation to the recognition of situations

Speaker : Camille Reitzer, Deputy Secretary General of the ICCS

Discussion : Marie Vautravers, European Commission

3.30 – 4.00 pm : break

4.00 – 5.30 pm : workshop n°4 : Plurilingual forms, digitization and data protection: the need for a specific regime

Speaker : Guillermo Palao Moreno, Professor, University of Valencia

Discussion : ANUSCA representative – Alexander Schuster, University of Graz

5.30 – 6.00 pm : General conclusion

Andreas Bucher, Emeritus Professor, University of Geneva

 

On 25 May 2022, the European Commission published a set of Questions and Answers (Q&As) to clarify the practical implementation of the new sets of Standard Contractual Clauses (SCCs), adopted in June 2021 (Decision 914/2021/EU). Contracts based on the earlier sets of SCCs will no longer be a lawful basis for international data transfers after 27 December 2022 (Q&A No. 22).

As a reminder, SCCs are standardised and pre-approved model data protection clauses that allow controllers and processors to comply with their obligations under EU data protection law. They are based on a triangular relationship, whereby the obligations assumed by the data importer and the data exporter (the parties to the contract) by virtue of their contractual agreement can be enforced by the data subject, acting as a third-party beneficiary.

SCCs are, by definition, incorporated within an international contract between a controller/processor of personal data established in the EU (or subject to the GDPR pursuant to Article 3(2) thereof) and a controller/processor established in a third country and placed beyond the scope of application of the GDPR (cf Q&A No. 24). Owing to their congenital “foreign element”, these contracts must speak the language of private international law (PIL), at least in cases where they are concluded between two commercial entities (see Q&A No. 2 for the potential range of users of the SCCs). In this respect, the Commission’s Q&As bring along welcome clarifications concerning some of most recurrent PIL issues arising out of these clauses, such as those regarding the contents and limits of conflict-of-laws party autonomy and the interplay between these contracts and the legal order (notably, the overriding mandatory rules) of the receiving third country.

While being of certain interest for the private international lawyer, the relationship between local laws (objectively applicable to the data importer) and the SCCs remains extremely complex and it deserves its own blogpost. For this reason, Section A of this blogpost will briefly present the major “PIL innovations” brought along by the 2021 SCCs, focusing solely on choice of law and choice of court clauses. Section B will then point to some unresolved issues that presently find no answer in the Commission’s Q&A (nor elsewhere).

A. Modernised SCCs and PIL: What’s New

The first and most evident innovation brought along in 2021 consists in an attempt at simplification of the regulatory environment. The three distinct sets of SCCs adopted under Directive 95/46 [Decision 2001/497/EC (SCCs for controller to controller transfers), Decision 2004/915/EC (alternative set of SCCs for controller to controller transfers) and Decision 2010/87/EU (transfer of personal data to processors established in third countries)] have been replaced by two sets of SCCs: one concerning the relationship between controllers and processors to fulfil the requirements in Article 28(3) and (4) of the GDPR; one dealing with SCCs as a tool for the transfer of data outside the EEA. The latter present an innovative modular structure consisting of 4 “modules”, covering four transfer scenarios (cf Q&A Nos 21 and 27): transfer from EU-based Controller to Non EU-based Controller (Module 1); transfer from EU-based Controller to Non EU-based Processor (Module 2); transfer from EU-based Processor to Non EU-based Processor (Module 3); transfer from EU-based Processor to Non EU-based Controller (Module 4).

The parties have to combine “general clauses” (that are applicable regardless of the specific transfer scenario) with the module(s) that applies to their specific situation.

For the purposes of the present blogpost, only the SCCs as a tool for the transfer of data outside the EEA will be considered, as specifically concerns the Clauses dealing with applicable law (A.1) and jurisdiction over remedies (A.2).

A.1 Applicable law

The regime governing the choice of the applicable law has undergone significant modifications in the 2021 restyling. To fully grasp these innovations, it is useful to briefly present, at the outset, the previous regime(s) established by the SCCs adopted under Directive 95/46/EC.

– Applicable Law under the Previous SCCs Regime

Concerning applicable law, the previous sets of SCCs clearly regarded international data transfers as a dynamic process, consisting of three distinct strands.

First, the processing of personal data by the data exporter, including the transfer itself, were governed, up to the moment of the transfer, by the objectively applicable data protection law [clause 4 of the SCCs set out by Decision 2001/497/EC; clause I(a) of the SCCs set out by Decision 2004/915/EC; clause 4 of the SCCs set out by Decision 2010/87/EU]. The “objectively applicable data protection law” is, in this context, the Member State law applicable to the EU-established controller by virtue of EU law itself (ie the law determined pursuant to Article 4 of Directive 95/46/EC until 23 May 2016, and by Article 3 GDPR after this date. This law now includes the GDPR-complementing provisions issued by the Member States based on the opening clauses scattered throughout the GDPR, whose spatial scope of application remains uncertain in current law).

Second, the processing of personal data by the data importer, occurring after the transfer to the third country, was seen as a separate processing operation, placed beyond the scope of the direct application of EU law, and governed by the law chosen by the parties to the SCCs. There was not, however, an unrestricted freedom of choice, which was limited to:

(1) the law of the Member State where the data exporter was established [clause 5 (b) first indent of the SCCs set out by Decision 2001/497/EC; clause II(h)(i) of the SCCs set out by Decision 2004/915/EC];

(2) the provisions of an adequacy decision applicable to the third country where the data importer is established, even if such adequacy decision was not applicable ratione materiae to this importer, provided that such provisions were of a nature which made them applicable in the sector of that transfer [cf. Clause 5 (b) second indent of the SCCs set out by Decision 2001/497/EC; clause II (h)(ii) of the SCCs set out by Decision 2004/915/EC];

(3) a (more or less) extensive set of “mandatory data protection principles”, set out in the annexes of the SCCs [clause 5 (b) indent of the SCCs set out by Decision 2001/497/EC; clause II(h)(iii) of the SCCs set out by Decision 2004/915/EC].

Evidently, it is not possible to qualify the choices made under (2) or (3) as a veritable “choice of governing law”: said provisions or principles would have been applied in conjunction with a national law (objectively) applicable to the data importer under local PIL.

Finally, all three sets of SCCs contained a provision entitled “governing law”, whereby “the Clauses shall be governed by the law of the Member State in which the data exporter is established” (respectively clauses 10, IV and 9). The actual scope of this choice of law clause shall be read in the light of what has been said regarding the first two strands of the data processing operation: vis-à-vis the first step, there is no room for party autonomy and the chosen law cannot directly govern the processing operations carried out by the exporter within the EU, including the transfer. The processing of the transferred data by the importer in the third country must also be excluded from the scope of the chosen “governing law”, otherwise the (different) choice eventually made under (2) or (3) above would have been deprived of practical significance. In essence, the law appointed under the clause entitled “governing law” was therefore limited to the “contractual issues” posed by the SCCs (validity, form, nullity, consequences of the total or partial breach etc).

– The 2021 SCCs

The 2021 SCCs did not change the approach with respect to the first strand of the data transfer operation, which remains subject to the “objectively applicable law”, ie the GDPR as eventually complemented by the applicable Member State law (see Clause 2).

With respect to the second strand, the new SCCs took away the possibility of choosing between different alternatives as regards the legal regime applicable to the processing operations carried out by the importer in the third state. The obligations of this party vis-à-vis the exporter and the data subjects are now set out in greater detail in the SCCs themselves, without any specific reference to a national governing law. Clause 4 specifies, in any event, that the SCCs shall “be read and interpreted in the light of the provisions of Regulation (EU) 2016/679”.

Finally, there is, just as in the previous sets of SCCs, a clause (Clause 17) titled “Governing law”, which is quite innovative as compared to its predecessors. Consistently with the “modular structure” of the SCCs, this clause presents different wordings depending on the specific transfer operation at stake.

• For transfers from controller to controller (Module 1), the parties are free to choose the law of one of the EU Member States, subject to the sole requirement that such law allows for third-party beneficiary rights. In particular, neither the clause itself nor the Q&A require an objective connection between the chosen Member State and the transfer operation: the laws of the Member States are deemed perfectly fungible in this respect.
• This unrestricted freedom of choice disappears for Modules 2 (transfer from controller to processor) and 3 (transfers between processors): the law of the Member State where the exporter is established applies in principle, unless it does not allow for third parties beneficiary rights. In that case, the parties must choose the law of another Member States that allows for such rights (again, no objective connection is required).
• Module 4 (transfers from processor to controller) deals with the situation of a non EU-established controller that transfers data to a EU-established processor (eg. outsourcing of payroll services to a EU company). This transfer comes under the scope of EU law once the EU-based processor sends the data back to its controller, established outside the EEA. Given that this data was originally placed under a different (and possibly less protective) legal regime, EU law relaxes some of its requirements and the SCCs allow, in this case, for an unrestricted choice of applicable law (cf. Q&A No. 37). It is uncertain as to whether this unrestricted freedom of choice continues to exist if the data transferred by the processor partially originates in the EU: in this case, in fact, the Q&As specify that the relaxation of other requirements no longer applies (cf. Q&A 44). Despite the silence of the Q&As on this specific point, the same solution seems required as concerns the governing law.

A lingering uncertainty concerns the scope of the governing law and, in particular, the question as to whether it extends to directly regulating the processing operations carried out by the data importer in the third country. According to Q&A No. 37, this law “will govern the application of the SCCs”. It is also stressed that Clause 17 shall be read in conjunction with Clause 4, whereby the interpretation and application of the SCCs should conform to, and should not contradict, the GDPR. Nonetheless, throughout the Q&A, the governing law is mentioned with respect to marginal contractual issues such as formal requirements (Q&A No. 6); the formalisation of the parties’ consent within the docking clause (Q&A No 12); the time limits (Q&A No. 37).

A.2 Jurisdiction over Remedies

With respect to jurisdiction for remedies, the previous sets of SCCs were consistent in that they enabled the data subject who invoked third-party beneficiary rights to sue one or both parties to the contract in the Member State where the data exporter was established, without prejudice to any other substantive or procedural rights he may have had under national or international law.

The new SCCs (Clause 18) are, at once, more detailed and more liberal on this point, insofar as they set out, concerning modules 1, 2 and 3, the general principle whereby “any dispute arising from these Clauses shall be resolved by the courts of an EU Member State”. This provision is particularly important from a systemic point of view, as it makes sure that, irrespective of the law governing the processing activities carried out by the importer, the most important principles of EU data protection law would be enforced in any case as overriding mandatory provisions of the forum.

Clause 18 then requires the parties to expressly designate the court of a Member State: again, the freedom of choice seems unrestricted and no longer dependent on the existence of an objective connection between forum and dispute. Letter (c) of that Clause adds the most important innovation, insofar as it allows the data subject to bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence. This choice of court agreement extends the procedural rights granted to the data subject by Article 79 GDPR, a provision that opens a ground of jurisdiction solely with respect to actions brought against the EU-established data exporter, jurisdiction for any action brought against the third-country data importer being left, under than provision, to national PIL.

It must be stressed on that Q&A No. 33 contains a somewhat confusing reference to national law, as it states, concerning the forum opened by letter (c), that “such actions can be brought before the competent court of the EEA country (as determined by national law) in which you live …”. Nonetheless, the data subject’s possibility of suing the data importer in the Member State of his/her habitual residence should depend not on the (dubious) existence, in national law, of a forum actoris, but rather on the choice of court agreement resulting from the combined reading of letters (c) and (d) of Clause 18 (the latter stating that “[t]he Parties agree to submit themselves to the jurisdiction of such courts”). A totally different question is knowing whether, and under which conditions, the designated court will enforce this choice of court agreement: in case the Brussels I bis Regulation is not deemed applicable to these contracts (see Section B), the answer to this question will indeed depend on the (non uniform and potentially inconsistent) national laws of the Member States.

A derogatory regime is set in place for Module 4, which allows the parties to designate any court, ie even the court(s) of a third country. In this respect, however, Q&A No. 33 specifies that this shall not affect the procedural rights conferred to the data subject vis-à-vis the data exporter under Article 79 GDPR

B. Modernised SCCs and PIL: What’s Unresolved

Despite the useful clarifications brought along by the Commission Q&As, concerning notably the room for manoeuvre given to the parties to the SCCs regarding choice of law and choice of court agreements, there still exists some major open questions regarding the practical operation of these PIL devices, that are liable to impinge on the effectiveness of SCCs as a tool for the effective protection of European personal data in case of extra-EEA transfers.

It must be remembered that the main purpose of the SCCs is to “provide a comprehensive data protection framework that has been developed to ensure continuity of protection in case of data transfers to data importers that are not subject to the GDPR” (Q&A No. 24). Within this framework, the third-party beneficiary rights granted to the data subject play a pivotal role, as evidenced by the importance attached to them during the choice of the governing law (supra, Section A.1). Third-party beneficiary rights are a key-element of the so-called “private enforcement” of EU data protection law, insofar as they allow the data subject to directly invoke the protection vested by the GDPR and the SCCs both against the importer and the exporter, and to do so before a court in the EU.

Intuitively, the effective ability of the data subject to ground the jurisdiction of such courts and to invoke the application of said law will depend on the procedural treatment of these choice-of-law and choice-of-court agreements in the seised/designated courts. In this respect, the applicability of both the Brussels Ibis and the Rome I Regulations to the SCCs remains controversial, and finds no clarification in the Commission’s Q&As. Conversely, both the SCCs and the Q&As seem to simply assume that these choice-of-law and choice-of-court agreements will be enforced by any court in the EU.

B.1 Civil and Commercial Matters?

The Brussels I bis and the Rome I Regulations (as well as the Hague Convention on Choice of Court Agreements) apply in “civil and commercial matters”. A recent and exhaustive summary of the (uniform) meaning of this expression in EU PIL can be found in the Opinion of AG Szpunar and the judgment rendered by the ECJ in Rina. Regard should be had, in particular, to the need of ensuring that the Regulations are broad in scope (§ 31 of the judgment in Rina) and to the “the elements which characterise the nature of the legal relationships between the parties to the dispute or the subject matter thereof” (§ 32). This assessment aims at excluding that one of the parties (or both) is acting in the exercise of “public” powers, ie “powers falling outside the scope of the ordinary legal rules applicable to relationships between private individuals” (§ 34).

Against this backdrop, it is worth stressing that the SCCs set up by the Commission can be used by the parties (which, in most cases, will be private commercial operators) without the prior approval by a public authority, the competent DPA. The triangular relationship between the data importer, the data exporter and the data subject heavily relies of private contract law. If it is true that these are all factors that may vouch for the inclusion of SCCs within the scope of “civil and commercial matters”, the fact remains that the Commission’s Q&As stress, on many occasions, the specific “nature” of the SCCs and the ensuing limits placed on the parties’ substantive party autonomy: “if the parties change the text of the SCCs themselves (beyond the adaptations mentioned below) they cannot rely on the legal certainty offered by an EU act” (Q&A No. 7, emphasis added). It will likely be for the ECJ to determine whether the specific nature of “EU act” attached to the SCCs and the limitations it entails for ordinary contract law are enough to exclude a characterisation as “civil and commercial matters” for the purposes of EU PIL.

If the Brussels 1bis Regulation was deemed applicable ratione materiae, it would ensure the effectiveness of the above-mentioned choice-of-court agreements throughout the EU. The fact that said agreements are invoked by a third-party beneficiary should not pose any problem in the light of the Gerling case law. Clearly, the Brussels Ibis Regulation would not be applicable to choice of court agreements concluded under Module 4, in cases where jurisdiction is conferred upon a third-state court.

B.2 A “Free” Choice of Governing Law?

The applicability of the Rome I Regulation to the SCCs elicits more substantial doubts.

To begin with, it is uncertain as to whether the choice of law made by the parties under current Clause 17 can be deemed “free” in the sense of Article 3 thereof. Setting aside the non-problematic case of the (unrestricted) freedom of choice available for Module 4, Module 2 and 3 confer very limited leeway: the parties must choose the law of the Member State where the data exporter is established, deviations being admissible solely if this law does not allow for third-party beneficiary rights (it must be added that the unrestricted freedom of choice which follows from this circumstance is at odds with the limitation set by the general rule: a “cascade” list of options or, even better, a rule turned around a “close(st?) connection” with another Member State would have been a more logical complement to the general rule).

As concerns the requirement that the choice of law made under Article 3 of the Rome I Regulation shall be “free”, it is worth stressing that both the Opinion of AG Campos Sánchez-Bordona and the judgment of the Court in Gruber Logistics started from the assumption that a “choice” of law which is actually imposed by law would be incompatible with this provision (respectively, §§ 97-101 of the Opinion and § 39 of the judgment). In the same case, the Court clarified that regulation does not prohibit the use of standard clauses which are pre-formulated by one of the parties (or, it must be assumed, by a third party). In such a case, freedom of choice, within the meaning of Article 3, can be exercised by consenting to such a clause and is not called into question solely because that choice is made on the basis of a pre-formulated clause.

The compatibility of Clause 17 of the SCCs with the Rome I Regulation teeters along the fine line which separates an ex lege imposition of an applicable law and the sheer pre-drafting by the Commission. It must be stressed, in this respect, that SCCs are established through an Implementing Decision of the Commission, but they can be used by the parties on a voluntary basis to demonstrate compliance with data protection requirements (Q&A No. 1). Nonetheless, if the parties choose to resort to these standard clauses, they are not free to amend the wording of Clause 17, besides the exercise of the freedom of choice (if any) explicitly allowed under that provision. If this provision is amended, the parties need to submit their contract to the DPA for prior approval, to be able to proceed with the transfer. It is highly doubtful that a DPA would approve a contract containing, for example, a choice of third-country law for the transfer scenarios corresponding to Modules 1, 2 and 3. In fact, in the Schrems II, the ECJ attached great importance to the safeguards following from the application of the law of the Member State where the exporter is established, when assessing if the protection granted by the former SCCs was “essentially equivalent” to that guaranteed within the Union (§ 138).

B.3 Universal Application v Restrictions to the Freedom of Choice

More fundamentally, it must be determined whether the Rome I Regulation is compatible with the “geographical” restriction of the parties’ freedom of choosing the applicable law. This problem is shared by Modules 1, 2 and 3: the chosen law shall be, in all of these cases, the law of a Member State, whereas a choice of third-country law would be totally admissible under the combined reading of Articles 2 and 3 of the Rome I Regulation. From the standpoint of the general theory of PIL, behind this asymmetry lie irreconcilable philosophical stances as concerns the international interchangeability of (private) laws. The Rome I Regulation starts from the assumption of a perfect interchangeability between all the (private) laws of this world, irrespective of their specific contents, and subject to a sheer ex post control through the gateway of the public policy exception. Conversely, the Commission’s SCCs (and probably the GDPR itself) adopt a more prudential approach based on an ex ante pre-selection of laws (those of the Member States of the EU) which, because of their contents, can be deemed “essentially equivalent” in terms of the protection granted to personal data. Again, this is a thorny issue that the ECJ might likely have to resolve in the near future, considering that, according to the Commission, SCCs are, at present, “the most popular tool” for transferring personal data outside the EEA in accordance with the GDPR (Q&A No. 3).

The Academy of European Law (ERA) will held its Annual Conference on European Family Law on 22-23 September 2022 .

The conference will deal with the new Brussels II Regulation, which is applicable from 1 August 2022, hearing of the child, parentage, surrogacy and double motherhood, as well as recent CJEU case law on international family law.

Speakers include Véronique Chauveau, Dagmar Coester-Waltjen, Gilles Cuniberti, Joanna Guttzeit, Frank Klinkhammer, Carlos de Melo Marinho, James Netto, Marta Requejo Isidro, Caroline Rupp, Nadia Rusinova and Andrea Schulz.

For further information, see here.

Starting from 1 August 2022, the Regulation (EU) 2019/1111 of 29 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast)(Brussels II ter Regulation) became applicable, replacing the Brussels II Regulation.

As nearly two decades has passed since the Brussels II Regulation itself became applicable, it seemed important to record its retirement also on CoL and to welcome its successor. Special thanks need to go to Mayela Celis who rang the bell timely.

For further discussion on the new Regulation and the changes its brings, I am happy to refer our readers to the special volume of Polish quarterly on civil procedure („Polish Civil Procedure”, „Polski Proces Cywilny”), which we brought to your attention a while ago.

Although repealed, the „old” Regulation does not completely loose its relevance. Under Article 100 of the Brussels II ter Regulation, the former is still applicable in particular to the legal proceedings instituted prior to 1 August 2022 and to the decisions given in such proceedings.

So… Exit the Regulation (but not fully), enter the Regulation. Anyway, Long Live to the Latter ?

Canara Bank v MCS International [2022] EWHC 2012 (Comm) is interesting with respect to Cooper J’s discussion of privity of choice of court and law, and the corporate carve-out of retained (post Brexit) Rome I.

Canara (an Indian bank) say that the Guarantee at the core of the issues, with English choice of law and court, was transmitted automatically to MCS France under the French Civil Code as a result of an amalgamation or merger of two French companies, namely the original guarantor and MCS France.

On the impact of Rome I, the judge [53] presumably with parties’ counsel approval, remarks that ‘pursuant to Article 1(2)(e) and (f), Rome 1 does not apply to questions governed by the law of companies or to the issue of whether or not an agent is able to bind a principal in relation to a third party. For both these issues, it is necessary to look to common law principles.’

[88] It is said again that whether an agent is able to bind a principal in relation to a third party is excluded from Rome 1 further to article 1(2)(g), the corporate carve-out. I do not think that is necessarily the case, even in combination with the Article 1(2)(e) carve-out for choice of court. The judge at any rate continues by applying the Dicey Rule 243 that where an agent acts or purports to act on behalf of a principal, their rights and liabilities in relation to each other are in general governed by the law applicable to the relationship or contract between them, with Dicey Rule 244(1) adding a bootstrap /von Munchausen /putative law element:

The issue whether the agent is liable to bind the principal to a contract with a third party, or a term of that contract, is governed by the law which would govern that contract or term, if the agent’s authority were established.”

[89] In light of the foregoing, ‘it was common ground between the parties, and rightly so, that Mr. Maurel’s actual authority on behalf of MIF fell to be determined under French law and the question of whether and to what extent Mr. Maurel was able to bind MIF in respect of the Guarantee given Canara’s knowledge of the resolution is a matter of English law.’

Common English conflict of laws is held to apply to the issue of transfer of a guarantee during the dissolution of a company, and parties agree [76] that whether a corporation has been amalgamated with another corporation is to be determined by the law of its place of incorporation: French law is held to be the relevant law for the dissolved guarantor issue, and expert reports were discussed.

Overall conclusion is [125]

Having considered the issue of good arguable case by reference to each of the issues raised by the parties in relation to the question of whether MCS France was a party to the Guarantee and therefore the jurisdiction agreement contained within it, it seems to me to appropriate to step back and consider whether overall Canara has a good arguable case on whether or not MCS France was a party to that jurisdiction agreement. In this regard, I consider that it does. Even were I to be wrong on one of the issues considered above, the balance of the evidence supports the conclusion that MCS France is a party to the Guarantee and to the jurisdiction agreement contained within it. In circumstances, where the evidence establishes that Canara, MCS France and MCS UK have done business since 2014 on the basis that the Guarantee was binding on MCS France, it would be a surprising conclusion that there was no good arguable case that MCS France was a party to the jurisdiction agreement.

Interesting, if flimsy on the corporate carve-out issue.

Geert.

Guarantee with EN law and jurisdiction clause. Whether it extends to French amalgamated company for purposes of jurisdiction.
Retained Rome I held not to apply on basis of corporate law carve-out.

Canara Bank v MCS International [2022] EWHC 2012 (Comm)https://t.co/jRg4GCW0Yr

— Geert Van Calster (@GAVClaw) July 30, 2022

A. Introduction

During the Summer of 2019, I attended one of the two flagship courses organised by the Hague Academy of International Law – the annual Summer Courses on Private International Law.

I quite vividly recall that, during the opening lectures, one of the Professors welcomed the participants at the premises of the Academy, a few steps from the Peace Palace itself, and made an observation that, at that time, seemed as captivating as remote.

As my precise recollection of his words may be far less accurate than the memory of the impression they made on me, I paraphrase: when it comes to education in general, in years to come – he noted – it will be a privilege to be able to benefit from a physical presence of a teacher or professor, being there, in front of you, within the reach of your hand and of your questions.

At that time, just a few months prior to the beginning of the worldwide spread pandemics, even the Professor himself most likely did not realize the extent to which his words would soon prove prophetic.

That was, however, not the sole lecture that I recall vividly.

Among others, Professor Matthias Weller (University of Bonn, one of two general editors of CoL.net) presented his course titled ‘Mutual Trust’: A Suitable Foundation for Private International Law in Regional Integration Communities and Beyond?

The present post is not, however, an account of this Hague experience. It is an account of a different and more recent one that resulted from the lecture of the freshly published Volume 423 of Recueil des Cours of the Hague Academy of International Law and of the Course by M. Weller within its pages.

 

B. Structure of the Course

The Course, in its just published incarnation, is composed of eight chapters.

Details about the Course and the Volume within which it is contained can be found here, on the website of its publisher, Brill. I can also refer the readers to the post on EAPIL by Elena Alina Otanu who also reported about the publication.

Thus, in this post, I will refrain from detailing the content of every Chapter and rather present and discuss its main and/or most interesting themes. Please be warned though that their selection is highly subjective, as there is far more to uncover within the pages of the Volume.

Chapter I (“Introduction”) sets the scene for the analysis provided for in the following Chapters. Here Weller also builds up the main hypothesis of his work (see section C below).

I digress but from a methodological standpoint, the Course is very thoughtful and may serve as an example of how to deal with a matter of comparative private international law that is highly difficult to conceptualise.

The methodological awareness is most visible in Chapter I, as well as in Chapter III (“Regional integration communities and their private international law”), which furtherly explains how the analysis is conducted through the text.

Between those two, lies Chapter II (“Private international law: a matter of trust management”), where the Author explores one of his core ideas that private international law may be conceived as a matter of “trust management”. As this is an innovative paradigm with which the Author approaches his main hypothesis, it calls for some additional exposition and discussion (see section D below).

The Author devotes next four chapters (Chapters IV – VII) to the specific regional integration communities, namely: Association of Southeast Asian Nations (ASEAN), Central African Economic and Monetary Community (OHADA), El Mercado común del sur (MERCOSUR) and EU. Here, I found the Chapter on EU to be highly innovative – at least to my knowledge, this is the first comprehensive attempt to look at the plethora of heavily-discussed private international law mechanics from “trust”-oriented perspective (see section E below).

Chapter VIII (“General conclusions”) closes the book, recaps the Author’s findings and provides food-for-thought for future research in the field.

 

C. Hypothesis under scrutiny in the Course

The Course starts off with a series of references showing the relevance of “mutual trust” for various aspects of functioning of the EU and its legal framework, in particular – for its private international law.

Quoting J. Basedow who stated that the EU is the “experimental laboratory of private international law”, Weller sets the main hypothesis of his work (para. 5): there might be a fundamental relevance of mutual trust to the private international law of any regional community.

To test this hypothesis, the Author delves into analysis of selected “regional integration communities”. Doing so, Weller aims to examine whether and to what extent mutual trust is of relevance for the private international law of those communities, be it as a foundation or guiding principle, triggering more intensive cooperation (in presence of mutual trust) or preventing it (in the lack of it).

The Author also hints the possibility to take his main hypothesis even further, although this aspect does not constitute the focal point of the Course: there might even be something fundamental in “mutual trust” for private international law as it is, also where it does not operate within a framework explicitly created for the purposes of regional integration communities (to use the term employed by the Author, also where it comes to “extracommunity efforts on private international law”, para. 127). Indeed, I would argue that, at present, no system of private international law should be conceived as operating in isolation, blind to the global reach of the situations that it aims to govern.

Back to the Course itself and the hypothesis:

Weller explores and employs, as he puts it, an EU “product” – the notion of “mutual trust” (para. 8), to verify his main hypothesis in the context of various regional integration communities.

The readers should not be misled though. The Course is not built around the idea that the EU private international law, with its concept of ‘mutual trust’, constitutes an ultimate form of private international law system or a pinnacle of achievement of some sorts, and that any other regional integration communities efforts have to be benchmarked against the “EU model”. Far from that.

In fact, Weller uses the concept of “trust”, and its qualified form of “mutual trust” as a tool that allows him to research the main hypothesis of his Course.

Doing so, the Author explicitly refrains from adopting a solely EU-oriented perspective. He goes so far as to state that “not everything that comes from experiments ends up in good results, let alone the best solution for everyone”. “Not even ‘integration’ as such may be considered a priori the most suitable avenue for all states and regions in the world” (para. 8). This becomes even clearer if we read into the Chapter III. Here, the Author goes so far as to call “naive” the belief according to which “progress” boils down to increasing degrees of mutual trust (para. 126).

Also, even where Weller refers to notion of “mutual trust” and calls it at some instances an EU “product”, he also makes it clear that “mutual trust” is not an EU invention: rather, he roots it in the German regional economic community of the nineteenth century, the German Union (paras. 432 and 482).

 

D. Paradigm of the Course: Private international law as a matter of “trust management”

In Chapter II (“Private international law: a matter of trust management”) the Author exposes and explores the paradigm that he proposes and researches in the following Chapters, with regards to selected regional integration communities.

In order to do so, he divides the Chapter into two sections.

In the first section of this Chapter, Weller explores the concept of “trust”: what it is and what purpose it serves, not only in the field of private international law.

The Author manages to seamlessly transit from “trust” as a societal phenomenon, deeply researched and explained both by sociological and economic (think: risk management) theory, with its qualified form (“mutual trust”) that became so crucial for the EU and beyond.

Within the first section, Weller also juxtaposes “trust” to “knowledge” arguing, in essence, that the former allows to act (even) where information is deficient. Trust relates, he explains, to the predictability of the actions of another. He builds up another dichotomy on that observation: in the lack of information, there is a choice between “trust” and “control”, and it is the former that appears to be a better candidate for governance of private international law issues.

In the second section Weller exposes the paradigm he proposes: for him, as mentioned above, private international law may be conceived as a matter of “trust management”. In other terms, as he puts it: to trust or not to trust – this is the question of private international law (para. 123).

To make his point, the Author looks closely at what J. Basedow called the “ultimate and most far-reaching form of judicial cooperation between States” – the recognition and enforcement of foreign judgments (para. 40).

He elaborates on various tools of “trust management” with regards to foreign judgments: from “total control” (no effects of foreign judgments at all), through revision au fond, doctrine of obligation, letter rogatory and far-reaching trust with residual control via exequatur proceedings to full faith and credit among federal states and, finally,“full trust”. He argues that all of them represent a specific amount of “trust” that is given to the judicial system of another State, complemented by “control” mechanics of some sorts.

Furthermore, Weller does not shy away from exploring other aspects of private international law through the mutual trust-tinted lens. He addresses also, inter alia, authentication of foreign documents and their service or taking evidence abroad (paras. 85 et seq.), as well as application of foreign law (paras. 104 et seq.).

I digress again: reading initially into first section of Chapter II, I had a (false) impression that the views on trust are too one-sided and do not take into account that both “trust” and “mutual trust” are not (and cannot be) blind to the various circumstances that occur within the framework to which the trust applies.

Trust is first and foremost a societal phenomenon and not a religious one. In this perspective, there is something to say about what distinguishes “trust” from “faith” – the latter is not (or at least should not be) undermined by lack of feedback; it can even “fuel” more faith and intensify it. By contrast, when it comes to “trust”, a systematic lack of positive feedback, replaced by feedback that calls for concern, needs to results into reconsideration as to whether the trust must still be given and the control waived.

My initial false impression was, however, quickly dispersed. Weller recognizes the dynamics of trust too. In the paragraphs that follow, he quotes and comments extensively on one of the key elements of this research, building up on the consideration of K. Lenaerts according to which “mutual trust cannot be confused with blind trust” (para. 90). This becomes even clearer when we read into Chapter VII on EU private international law.

 

E. “Trust management” in EU private international law and beyond

I turn now to aforementioned Chapter VII, devoted to EU private international law or, if we read into this Chapter more attentively, to EU law in general.

Here, Weller discusses extensively the “mutual trust” and human/fundamental rights dynamics and argues that the balance between the former and the latter is nothing else but trust management (para. 360).

He shows, next, that private international law-inspired mechanics of trust management may apply beyond the field of EU private international law. This may seem as an even more perverse turn if we take into account that, as Weller observes, in the context of EU integration, judicial cooperation in civil matters developed in the shadows of judicial cooperation in criminal matters (para. 377).

Interestingly, Weller recognizes that even within the context of EU integration, the EU legislator does not cap the pre-existing trust with legislative framework within which this trust operates. By contrast, at least in some instances (he cites E-commerce and Service Directives), the EU legislator diagnosed a lack of mutual trust and then imposed an obligation of the Member States for mutual recognition as a cure (para. 371).

Then, he goes through various EU private international law provisions and case law pertaining to them in order to explore how the “trust management” is dealt with under EU law.

I mention just one piece of this exploration on public policy, operating under the Brussels I regime as a ground four refusal of enforcement.

Weller mentions the case that resulted in the German Federal Supreme Court judgment of 2018, which accepted the application of public policy exception with regards to a Polish judgment condemning ZDF to publish an apology on its main webpage after it described two concentration camps as being “Polish”. The Supreme Court considered that the obligation for ZDF to publish a preformatted text on its website contradicted freedom of speech and freedom of press as guaranteed under Article 5(1) of the German Basic Law. The enforcement was rejected on the basis of public policy exception.

The case has been extensively discussed in the literature before. However, faithful to the paradigm of the Course, Weller examines the case from trust management perspective.

Adopting this perspective, Weller argues that the German court “could have and would have better enforced just the enforceable parts of the Polish judgment” and “it seems that it would have been under an obligation from EU law to do so in order to maintain the movement of judgment within the EU as far as possible, an obligation that emanates from the effet utile of the Brussels regime (para. 405).

I might add, in line with this contention: if the right of enforcement of a foreign judgment is conceptualized as a right protected under the Charter (and – to be more specific – under its Article 47), then any interference to that right, although “provided for by law” [see: public policy exception of Article 34(1) of the Brussels I Regulation/Article 45(1)(a) of the Brussels I bis Regulation], must respect the requirement resulting from Article 52(1) of the Charter. Thus, if I follow Weller paradigm, also Article 52(1) of the Charter is a “trust management” tool, that calls for proportionate and restricted (only when it is “necessary”) refusal of “trust” in the EU.

 

F. So again, why do I need “mutual trust” when I already have “comity”?

I close this post with another recollection of the Summer Course of 2019: during one of his intervention at the Hague Academy, Weller mentioned that when he had shared with one of his colleagues about this “mutual trust” research, the said colleague had asked: so again, what is the difference between “mutual trust” and “comity”?

According to my account of that conversation, Weller provided, if I recall correctly, an answer that boiled down to the following statement, I paraphrase: while “comity” allows for cooperation between States, over the heads of individuals, the concept of “mutual trust” enables the cooperation between States but with paying a particular attention to the individual; it elevates the individual and his/hers interests to the attitude, where they become a matter of true concern also to the States.

The difference between “mutual trust” and “comity” is furtherly explored in the Course, although I might be accused of reading too much in-between the lines.

On the one hand, in Chapter II, commenting on various tools of “trust management”, the Author mentions the concept of “comity” again. He explains that one of it aspects can be seen as “an abstract trust in the administration of justice by the foreign state from where the judgment emerged – it results from the acknowledgment of the sovereignty and such equality of the foreign state is concretized by the presumption that the administration of justice in the foreign state is equally well placed to produce justice in the particular case at hand”.

On the other hand, in another part of the book, he makes an interesting point: the individuals push a State towards trust, so the States cooperate on behalf of those individual when they enable and supervise judicial cooperation (paras 35 and 72). In yet another part of the book, pertaining to the application of foreign law, the Author even juxtaposes trust-based mechanics, concerned with the rights of the individuals, with the sovereignty-based (“outdated”) concepts of comity (para. 111).

Furthermore, States are, Weller argues, in obligation to optimize their trust management – doing so, they optimize the chances of the individuals when it comes to the enforcement of their rights in cross-border contexts (para. 122).

I concur. But why such obligation exists? Under Weller’s paradigm, the general concept of “comity” cannot be the justification, at least not the “outdated” one. Besides, if we follow Weller on that point, from the perspective of interest of individual, “comity” may be seen as a construct inferior to “mutual trust”.

If we read into text, the Author provides an answer though: the obligation to optimise trust management results from the imperatives of rule of law and of the fundamental right to effective access to justice; as such, it is a matter of constitution guarantees (para. 123 and 444). I might add that there is also something to say about effective protection of fundamental/human rights that underlie the substance of specific rights and/or legal situations shaped under foreign law or within foreign territory. In essence, it is necessary to optimise trust management system also because it allows to ensure recognition and enforcement of rights and legal situations that are rooted in fundamental/human rights.

I tweeted the case on 4 May….slowly I am getting trough the backlog. In Otsuka v GW Pharma [2022] EWHC 1012 (Pat) Karet DJ upheld jurisdiction to hear a dispute about a patent licence in circumstances where the licensee has indicated it will challenge the validity of licensed patents granted outside the UK.

On 7 January 2022 GW commenced proceedings against Otsuka in a state court in New York. There is a significant overlap between the matters raised in the New York claim and the E&W claim (as GW have indicated they will defend it). GW seek a declaration that under the Agreement between the parties none of the relevant patents Covers Epidyolex, including because the patents are invalid. Epidyolex is a drug for the treatment of seizures associated with various conditions or epileptic syndromes. The active ingredient in Epidyolex is cannabidiol (“CBD”).

[47] ff the judge considers the Moçambique rule which means that an English court has no jurisdiction to adjudicate a claim of title to foreign land. In Lucasfilm v Ainsworth the UKSC with some reference to the CJEU’s application of Brussels Ia’s Article 24, held that there is no jurisdiction in proceedings for infringement of rights in foreign land where the proceedings are “principally concerned with a question of the title, or the right to possession, of that property” (including intellectual property). [51] Reference is also made to Chugai Pharmaceutical Co Ltd v UCB Pharma SA and to Unwired Planet International Ltd v Huawei Technologies (UK) Co Ltd.

The judge [73] holds GW’s intended challenge to a foreign patent in this case is not direct in the sense suggested in Chugai and the rule in Moçambique is not engaged. Claim formulation in the US proceedings features as a strong argument in that conclusion. [81] ff a forum non challenge is rejected.

Geert.

EU private international law, 3rd ed. 2021, 2.196 ff.

Jurisdiction upheld in #patent licence dispute with licensee indicating challenge to validity of patents granted outside UK
Moçambique rule applied to IPR
Foreign Act of State doctrine, forum non conveniens

Otsuka v GW Pharma [2022] EWHC 1012 (Pat) https://t.co/RLypWznwbQ

— Geert Van Calster (@GAVClaw) May 4, 2022

On 13 September 2022, the French Société de législation comparée will hold a conference on ascertainment of foreign law under the French Draft Code of Private International Law. The full programme of the conference can be found here.

The speakers will discuss the provisions of the draft code on ex officio application and proof of foreign law, which were presented on this blog here.

The new provisions are an attempt to reform proof of foreign law before French courts by seeking inspiration from foreign models, in particular models which involve academic institutions to report to the court on the content of foreign law and models which allow cross examination of expert witnesses on foreign law.

The conference could have been a great opportunity to confront the new provisions with foreign models which do rely on academic institutions or cross examine witnesses in court, but most unfortunately virtually all speakers are French academics and practitioners (the only exception being the director of the Swiss institute of comparative law).

The conference will take place 60 boulevard de la Tour-Maubourg, 75007 Paris, from 5 until 7:30 pm. Attendance is free, but registration is required at emmanuelle.bouvier@legiscompare.com.

In spite of the vacation period, several judgments have been handed down on 1 August 2022.

One of them concerns the interpretation of PIL instruments, namely Regulation (EC) No 2201/2003 and Regulation (EC) No 4/2009. The request from the Audiencia Provincial de de Barcelona leading to Case C-501/20, MPA (Habitual residence – Third State), on the hearing of which I reported here, as well as here as regards AG Spuznar’s opinion of last February, has been decided as follows:

1. Article 3(1)(a) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, and Article 3(a) and (b) of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations must be interpreted as meaning that the status of the spouses concerned as members of the contract staff of the European Union, working in the latter’s delegation to a third country and in respect of whom it is claimed that they enjoy diplomatic status in that third State, is not capable of constituting a decisive factor for the purposes of determining habitual residence, within the meaning of those provisions.

2. Article 8(1) of Regulation No 2201/2003 must be interpreted as meaning that, for the purposes of determining a child’s habitual residence, the connecting factor of the mother’s nationality and her residence, prior to the marriage, in the Member State of the court seised of an application relating to parental responsibility is irrelevant, whereas the fact that the minor children were born in that Member State and hold the nationality of that Member State is insufficient.

3. Where no court of a Member State has jurisdiction to rule on an application for the dissolution of matrimonial ties pursuant to Articles 3 to 5 of Regulation No 2201/2003, Article 7 of that regulation, read in conjunction with Article 6 thereof, must be interpreted as meaning that the fact that the respondent in the main proceedings is a national of a Member State other than that of the court seised prevents the application of the clause relating to residual jurisdiction laid down in Article 7 to establish the jurisdiction of that court without, however, preventing the courts of the Member State of which the respondent is a national from having jurisdiction to hear such an application pursuant to the latter Member State’s national rules on jurisdiction.

Where no court of a Member State has jurisdiction to rule on an application relating to parental responsibility pursuant to Articles 8 to 13 of Regulation No 2201/2003, Article 14 of that regulation must be interpreted as meaning that the fact that the respondent in the main proceedings is a national of a Member State other than that of the court seised does not preclude the application of the clause relating to residual jurisdiction laid down in Article 14 of that regulation.

4. Article 7 of Regulation No 4/2009 must be interpreted as meaning that:

–        where the habitual residence of all the parties to the dispute in matters relating to maintenance obligations is not in a Member State, jurisdiction founded, on an exceptional basis, on the forum necessitatis referred to in Article 7 may be established if no court of a Member State has jurisdiction under Articles 3 to 6 of that regulation, if the proceedings cannot reasonably be brought or conducted in the third State with which the dispute is closely connected, or proves to be impossible, and there is a sufficient connection between the dispute and the court seised;

–        in order to find, on an exceptional basis, that proceedings cannot reasonably be brought or conducted in a third State, it is important that, following an analysis of the evidence put forward in each individual case, access to justice in that third State is, in law or in fact, hindered, in particular by the application of procedural conditions that are discriminatory or contrary to the fundamental guarantees of a fair trial, without there being any requirement that the party relying on Article 7 demonstrate that he or she has been unsuccessful in bringing or has attempted to bring the proceedings in question before the courts of the third State concerned; and

–        in order to consider that a dispute must have a sufficient connection with the Member State of the court seised, it is possible to rely on the nationality of one of the parties.

So far, the decision is available in seven official languages of the EU, although some versions are still labeled as provisional.

EFFORTS (Towards more EFfective enFORcemenT of claimS in civil and commercial matters within the EU) is an EU-funded Project conducted by the University of Milan (coord.), the Max Planck Institute Luxembourg for Procedural Law, the University of Heidelberg, the Free University of Brussels, the University of Zagreb, and the University of Vilnius.

The ninth EFFORTS Newsletter has just been released, giving access to up-to-date information about the Project, save-the-dates on forthcoming events, conferences and webinars, and news from the area of international and comparative civil procedural law.

For information, in particular, on the EFFORTS Final Conference (30 September 2022, University of Milan), see also our previous post here.

Finally, regular updates are available via the Project website and the Project’s LinkedIn and Facebook pages.

Project JUST-JCOO-AG-2019-881802
With financial support from the Civil Justice Programme of the European Union

La France a présidé le Conseil de l’Union européenne pendant 6 mois. A cette occasion, la Délégation des Barreaux de France et Lefebvre Dalloz se sont associés pour vous proposer ce podcast visant à sensibiliser sur les travaux et les actions conduites dans le domaine de la justice au plan européen.

en lire plus

This post is one for the comparative binder. Fong Chak Kwan v Ascentic Limited and Others [2022] HKCFA 12 (many thanks to Poomintr Sooksripaisarnkit for alerting me to the judgment) discusses a variety of issues, the one of interest to the blog is the tort gateway for a tort allegedly committed outside of Hong Kong. The ruling on that issue was delivered by Lord Collins, a former UKSC judge who continues to sit in the Hong Kong judicial system (unlike others who have withdrawn from the Hong Kong courts in light of the region’s rule of law issues).

[67] Direct damage was sustained on the Mainland, with indirect damage only in Hong Kong.

The First Instance judge [68] ‘in line with the majority judgments of Lady Hale and Lord Wilson in [UKSC Brownlie] .., and being unpersuaded by the minority view of Lord Sumption, decided that (a) the expression “damage” in Gateway F was not limited to damage which completed the cause of action; (b) the expression was not limited to direct damage as opposed to indirect/consequential damage; (c) where damage was felt in more than one jurisdiction, indirect/consequential damage qualified under Gateway F if it was of some significance; (d) the expression was to be given its ordinary and natural meaning, which embraced indirect/consequential damage; and (e) the consequences of a wide interpretation were sufficiently addressed by the discretion as to forum conveniens.’ 

The Court of Appeal [69] ‘like the judge, held that the reasoning of the majority in Brownlie v Four Seasons Holdings Inc was to be preferred to that of the minority. Damage included all of the heads of damage which might be suffered as a result of tortious conduct, including all the detriment, physical, financial and social which the plaintiff suffered as a result. The natural and ordinary meaning of Gateway F was clear, and there was no basis for drawing a distinction between direct and indirect damage. Nor was there any basis for applying the European jurisprudence on the Brussels Convention and Brussels I Regulations. Finally, the expression “the damage” in Gateway F did not mean that all the damage, or the damage which completed the cause of action, had to be sustained in Hong Kong.’

[74] ff Collins NPJ provides a historic and geographical comparative (Commonwealth) tour d’horizon, confirming the lower courts’ view.

[107]-[108] ‘(I)n the light of the legislative purpose, the natural and ordinary meaning of the word “damage” is just that, and the rule does not distinguish between the damage which completes a cause of action and that which does not, nor does it distinguish between direct or indirect damage, or between physical or financial damage. The question is whether there is a legislative purpose, or a public policy, or an absurd or undesirable result, which justifies a narrower construction, to encompass only direct damage as opposed to indirect damage.’: the judge finds there is no such purpose, policy or result.’

[109] he discusses 3 flows in the reasoning of the alternative reading, which are worth a read. [121] the same safety valve is emphasised as the UKSC did in the majority view in Brownlie: where the exercise of the locus damni gateway leads to unwarranted results, forum non conveniens can come to the rescue.

Geert.

Comparative conflicts
Note 64 ff Collins NPJ on jurisdiction in respect of tort allegedly committed outside of Hong Kong, with extensive reference to UKSC Brownlie https://t.co/Z0a0CPOowB and other jurisdictions https://t.co/oR1H7cR0Oe

— Geert Van Calster (@GAVClaw) June 22, 2022

M P A
DFON
La Cour apporte des précisions quant à la compétence judiciaire en matière de divorce, de responsabilité parentale et d’obligations alimentaires

Affaires jointes C 273/20 et C-355/20 & Bundesrepublik Deutschland (Regroupement familial avec un mineur réfugié) et dans l’affaire C-279/20 & Bundesrepublik Deutschland (Regroupement familial d’un enfant devenu majeur)
Justice et Affaires intérieures ELSJ ASIL
Regroupement familial : le refus de délivrance d’un visa national aux fins du regroupement familial au parent d’un mineur réfugié non accompagné devenu majeur au cours de cette procédure est contraire au droit de l’Union

HOLD Alapkezelő
Liberté d'établissement
Les exigences découlant du droit de l’Union en matière de politique de rémunération des gestionnaires d’investissements peuvent s’appliquer au versement de dividendes par ces gestionnaires à certains de leurs employés actionnaires qui relèvent du champ d’application personnel de cette politique

Staatssecretaris van Justitie en Veiligheid (Refus de prise en charge d’un mineur égyptien non accompagné)
Espace de liberté, sécurité et justice
Protection internationale : les mineurs non accompagnés disposent d’un droit de recours contre le refus de prise en charge par un Etat membre où réside un proche

Sea Watch
Transport
Les navires d’organisations humanitaires exerçant une activité systématique de recherche et de sauvetage de personnes en mer peuvent faire l’objet d’un contrôle par l’État du port

Bundesrepublik Deutschland
Espace de liberté, sécurité et justice
Une demande de protection internationale introduite par un mineur ne peut être rejetée comme irrecevable au motif que ses parents se sont déjà vu accorder une telle protection dans un autre État membre

Familienkasse Niedersachsen-Bremen
Principes du droit communautaire
Un citoyen de l’Union ayant établi sa résidence habituelle dans un État membre d’accueil ne peut pas être exclu du bénéfice d’allocations familiales pendant les trois premiers mois de son séjour au motif qu’il ne perçoit pas de revenus tirés d’une activité dans cet État membre

Vyriausioji tarnybinės etikos komisija
Principes du droit communautaire
La législation lituanienne prévoyant la divulgation en ligne d’une partie des données contenues dans la déclaration d’intérêts privés des directeurs d’établissements percevant des fonds publics est contraire au droit de l’Union