Agrégateur de flux

Ryanair / Commission (Finnair I; Covid-19)
Aide d'État
La garantie de la Finlande en faveur de la compagnie aérienne Finnair visant à aider à obtenir, auprès d’un fonds de pension, un prêt de 600 millions d’euros destiné à couvrir ses besoins en fond de roulement à la suite de la pandémie de Covid-19 est conforme au droit de l’Union

Ryanair / Commission (SAS, Danemark; Covid-19)
Aide d'État
Les mesures d’aide mises en place par la Suède et le Danemark en faveur de SAS pour les dommages résultant de l’annulation ou de la reprogrammation des vols à la suite des restrictions de déplacement causées par la pandémie de Covid-19 sont conformes au droit de l’Union

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on 15 April 2021 at 5:00 pm (Mexico City time – CDT), 7 pm (BRT time), 12:00 am (CET time). The topic of the webinar is the Choice of the Law Applicable to International Contracts in the Brazilian Legal System and will be presented by Professor Aline Beltrame de Moura (in Spanish).

The details of the webinar are:

Link: https://us02web.zoom.us/j/86169347236?pwd=ZFVFSmtZYUJ0SHk0MSt0VXg4Rk5wdz09

Meeting ID: 861 6934 7236

Password: BMAAMEDIP

Participation is free of charge.

This event will also be streamed live: https://www.facebook.com/AmedipMX

 

The following text has been kindly provided by professors Toshiyuki Kono, Pedro de Miguel Asensio and Axel Metzger.

The International Law Association’s Committee on Intellectual Property and Private International Law has finished its work with the adoption and publication of the Kyoto Guidelines on Intellectual Property and Private International Law.

The Guidelines are the outcome of an international cooperation of a group of 36 scholars from 19 jurisdictions lasting for ten years under the auspices of ILA. The Kyoto Guidelines have been approved by the plenary of the ILA 79th Biennial Conference, held (online) in Kyoto on 13 December 2020.

The Guidelines provide soft-law principles on the private international law aspects of intellectual property, which may guide the interpretation and reform of national legislation and international instruments, and may be useful as source of inspiration for courts, arbitrators and further research in the field. Different from older regional projects, the Kyoto Guidelines have been prepared by experts from different world regions.

The Guidelines have now been published with extended comments as a special issue of the Open Access journal JIPITEC.

The ILA Committee on Intellectual Property and Private International Law was created in November 2010. Its aim was to examine the legal framework concerning civil and commercial matters involving intellectual property rights that are connected to more than one State and to address the issues that had emerged after the adoption of several legislative proposals in this field in different regions of the world. The work of the Committee was built upon the earlier projects conducted by the Hague Conference of Private International Law as well as several academic initiatives intended to develop common standards on jurisdiction, choice of law and recognition and enforcement of judgments in intellectual property matters.

In the initial stages of the activities of the Committee it was agreed that its overall objective should be to draft a set of model provisions to promote a more efficient resolution of cross-border intellectual property disputes and provide a blueprint for national and international legislative initiatives in the field. Therefore, the focus of its activities has been the drafting of a set of guidelines with a view to provide a valuable instrument of progress concerning private international law aspects raised by intellectual property.

Furthermore, the Committee conducted a number of comparative studies and monitored the developments in different jurisdictions around the world.

The Committee also worked in collaboration with several international organizations, particularly the World Intellectual Property Organization and the Hague Conference on Private International Law.

The final text of the Guidelines consists of 35 provisions, which are divided in four sections: General Provisions (Guidelines1-2), Jurisdiction (3-18), Applicable Law (19-31) and Recognition and Enforcement of Judgments (Guidelines 32-35).

As suggested by the term “Guidelines”, this instrument contains a set of provisions intended to guide the application or reform of private international laws in this field. The Guidelines restate certain well-established foundational principles such as the lex loci protectionis rule and aspire to provide concrete solutions for pressing contemporary problems, in areas such as multi-state infringements and cross-border collective copyright management.

In order to make explicit the influence of the previous projects in the field and to facilitate the comparison with them, the short comments are preceded by the reference to the similar provisions adopted previously in the ALI Principles (American Law Institute, Intellectual Property: Principles Governing Jurisdiction, Choice of Law and Judgments in Transnational Disputes, ALI Publishers, 2008), CLIP Principles (European Max Planck Group on Conflict of Laws in Intellectual Property, Conflict of Laws in Intellectual Property (Text and Commentary), OUP, 2013), Transparency Proposal (Japanese Transparency Proposal on Jurisdiction, Choice of Law, Recognition and Enforcement of Foreign Judgments in Intellectual Property, see the English text in J. Basedow, T. Kono and A. Metzger (eds.), Intellectual Property in the Global Arena – Jurisdiction, Applicable  Law, and the Recognition of Judgments in Europe, Japan and the US, Mohr Siebeck, 2010, pp. 394-402) and Joint Korean-Japanese Principles (Joint Proposal by Members of the Private International Law Association of Korea and Japan, see The Quarterly Review of Corporation Law and Society, 2011, pp. 112-163).

As an additional instrument to facilitate the uniform interpretation of the Guidelines, the Committee has prepared a set of extended comments to all the provisions.

The Guidelines have now been published together with extended comments written by members of the ILA Committee which explain the background and application of the Guidelines.

Les périodes d’incarcération peuvent-elles être assimilées à des périodes de résidence habituelle en France au sens du 2° de l’article L. 511-4 du code de l’entrée et du séjour des étrangers et du droit d’asile, dès lors que la personne incarcérée ne peut plus être regardée comme résidant en France de son propre gré ?

en lire plus

Oft expectation fails, and most oft there
Where most it promises…

William Shakespeare

Yesterday has been an emotional rollercoaster for those interested in European judicial cooperation. After initial reports in the Financial Times about an impending recommendation in favour of the UK’s accession to the Lugano Convention, the journal later reported that the Commission has (again) changed its mind. It now opposes the UK’s application to join the Convention.

Apparently, the decision was made behind closed doors. The only formal ground reported is the missing membership of the post-Brexit UK in either the European Economic Area (EEA) or the European Free Trade Association (EFTA), to which all other members of the Lugano Convention are parties. This is however a specious argument because judicial cooperation has a much further reach than economic cooperation and builds on other criteria, such as trust in the quality of the other state’s judiciary (see Matthias Lehmann and Eva Lein, ‘L’espace de justice à la carte? La coopèration judiciaire en Europe à géométrie variable et à plusieurs vitesses’, in: Marie-Elodie Ancel et al. (eds.), Le Droit à L’Èpreuve des Siècles et des Frontières – Mélanges en l’honneur du Professeur Bertrand Ancel, Paris 2018, p. 1093 – 1120).

It is to be hoped that this is not the end of the story. The Commission has merely issued a recommendation; the final decision lies with the European Parliament and the Council. Even though especially France seems to be very reserved about the British accession, it remains to be seen how these bodies will act. Moreover, the Lugano Convention’s Art 72(3) only says that the signatories “shall endeavour” to give their consent within one year after an application to join, without setting any hard deadline. The EU thus has ample time to make up its mind. Should it reject the UK’s application, the latter is free to file it again under more favourable political conditions.

The above quote, by the way, is from Shakespeare’s play “All’s Well That Ends Well”. Let us hope that this will also be true for the UK and the Lugano Convention.

In a recent ruling (No 120 of 23 February 2021, unreported) the Court of Appeal of Piraeus was asked to determine whether, for the purposes of exequatur under Regulation No 44/2001 (Brussels I), a Maltese ship mortgage is considered an authentic instrument.

The issue had the following practical ramifications. A classification of the mortgage as an authentic instrument for the purposes of the Regulation would entail that immediate enforcement ought to be stayed by virtue of Article 37 as a result of the lodging of an appeal. Instead, if the ship mortgage were seen as falling outside the scope of the Regulation, domestic law would apply, which does not provide for an automatic stay of execution if the debtor challenges the enforceability of the foreign title.

The Facts

A Greek bank granted in 2011 a loan of nearly 12 million Euros to a company seated in La Valetta (Malta). In oder to secure the bank’s claim, a mortgage was registered on a ship belonging to the debtor, registered in Malta. Due to delays in payment, the bank seised the Court of First Instance of Piraeus seeking a declaration of enforceability of the ship mortgage. It relied for this on Article 905 Greek Code of Civil Procedure.

The court granted the application. The company filed a third-party opposition, i.e. the remedy available under Greek law, arguing that the court had failed to apply the Brussels I Regulation. The move was successful. The bank appealed.

Legal Framework

Article 57(1) of the Brussels I Regulation reads as follows:

A document which has been formally drawn up or registered as an authentic instrument and is enforceable in one Member State shall, in another Member State, be declared enforceable there, on application made in accordance with the procedures provided for in Articles 38, et seq. The court with which an appeal is lodged under Article 43 or Article 44 shall refuse or revoke a declaration of enforceability only if enforcement of the instrument is manifestly contrary to public policy in the Member State addressed.

The Report by Jenard and Möller on the 1988 Lugano Convention  1988 (para. 72) posed the following conditions for the application of Article 50 of the Lugano Convention, which addresses the same issue as Article 57 of the Brussels I Regulation (formerly, Article 50 of the 1968 Brussels Convention):

The authenticity of the instrument should  have  been  established  by a public  authority; this  authenticity  should  relate to  the  content  of  the  instrument  and  not  only,  for  example,  the  signature; the  instrument  has to be enforceable  in  itself  in  the  State in  which  it originates.

In Unibank, the CJEU ruled as follows:

An acknowledgment of indebtedness enforceable under the law of the State of origin whose authenticity has not been established by a public authority or other authority empowered for that purpose by that State does not constitute an authentic instrument within the meaning of Article 50 of the [1968 Brussels Convention].

Maltese law regulates the matter under Chapter 234 of the Merchant Shipping Act. Article 38(1) provides that:

A registered ship or a share therein may be made a security for any debt or other obligation by means of an instrument creating the security (in this Act called a “mortgage”) executed by the mortgagor in favour of the mortgagee in the presence of, and attested by, a witness or witnesses.

Article 41(2) states that

A registered mortgage shall be deemed to be an executive title for the purposes of Article 253 of the Code of Organization and Civil procedure.

The latter provision, in turn, regards the following as enforceable titles:

… (b) contracts received before a notary public in Malta, or before any other public officer authorised to receive the same where the contract is in respect of a debt certain, liquidated and due, and not consisting in the performance of an act.

The Ruling

The company submitted a legal opinion signed by a foreign lawyer, according to which a ship mortgage is considered as a ‘public deed’, given that it was received in accordance with the law by a public functionary, entrusted to give full faith and credit to the document in question. In addition, the authenticity of the signature of the ship registrar had been certified by an apostille pursuant to the Hague Apostille Convention, which referred to the ship mortgage as a public deed.

The company referred also to the Scottish public register of deeds as an example of authentic instrument, in order to convince the court to consider the ship mortgage as an authentic instrument for the purposes of the Brussels I Regulation.

The Court of Appeal of Piraeus granted the bank’s appeal. Relying on Article 57 of the Brussels I Regulation, the Jenard-Möller Report and the judgment of the Court of Justice in Unibank, it noted that an authentic instrument is a document which has been formally drawn up or registered as such.

In addition, Che court emphasized on the lack of any involvement of the Register of Ships in regards to the content of the mortgage. Contrary to the first instance judgement, the court considered that the mere registration in the Valetta ship registry does not suffice. The act of the Register of Ships does not attribute the nature of an authentic instrument to a document drawn and signed by two private parties.

The Court made extensive reference to the opinion of the Advocate General La Pergola in the Unibank case, stating that the authenticity of the document’s content had not been examined by the registrar. In other words, the sole registration without any examination of the content, does not attribute to the ship mortgage the nature of an authentic instrument. It is just a formal procedure for the purposes of solemnity and publicity.

In addition, the Court of Appeal clarified that the reference of the registrar to the document as a public deed does not hinder the court to examine the ship mortgage from the Regulation’s point of view.

Comments

The core issue is whether the procedure followed for the registration of a Maltese ship mortgage entails any participation of a public authority, i.e. the decisive factor according to the Court of Justice in Unibank.

The Court of First Instance answered in the affirmative, whereas the Court of Appeal took the opposite view.

The judgment demonstrates the variety of legal documents balancing between the private and public divide. It serves as an additional example for the interpretation of Article 57 Brussels I Regulation and Article 58 Brussels I bis Regulation.

The Opinion of the European Economic and Social Committee on ‘Proposal for a Regulation of the European Parliament and of the Council on amending Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies’ (COM(2020) 642 final) (EESC 2020/04962) has been published last Friday at the OJEU (C 123, 9.4.2021, p. 66).

Extracts:

“Conclusions and recommendations

1.1 The EESC welcomes the Commission’s proposal (1) to strengthen the internal review mechanism contained in the Aarhus Regulation (2) and appreciates its potential.

1.2 The EESC supports the four priority actions identified in the Commission’s Communication, namely the Member States’ obligation to fully and correctly transpose access to justice requirements stemming from EU secondary law, the need for co-legislators to include provisions on access to justice in new and revised EU legislation concerning environmental matters, the review by Member States of their own national legislative and regulatory provisions that prevent or undermine access to justice, and the obligation of national courts to guarantee the right of individuals and NGOs to an effective remedy under EU law.

1.3 Nevertheless, the EESC points out to the Commission that its proposal contains loopholes which may be used by institutions to avoid being held accountable.

1.4 Thus for example the EESC does not endorse the Commission’s proposal to exclude EU acts entailing ‘national implementing measures’, because there is a real possibility that this exclusion could nullify or devalue the Commission proposal.

1.5 The EESC is also concerned that allowing civil society organisations (CSOs) to conduct a review only when the implementing measures have been adopted would insulate many, if not most, EU acts and omissions from internal review.

1.6 Despite the arguments set out by the Commission, the EESC notes that non-legally binding EU acts can have significant effects both on the implementation of EU legislation and on its interpretation by the Court of Justice of the European Union (CJEU).

1.7 The social partners are key players in environmental issues, and the EESC therefore urges that they be explicitly recognised as regards access to justice.

1.8 The EESC stresses that the new Regulation should permit internal review of Commission state aid decisions.

1.9 The EESC considers that protection of CSOs from extra burdens (like additional costs and bureaucratic measures) at both national and EU levels must be properly ensured in order to make judicial review accessible in practice”.

Source: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.C_.2021.123.01.0066.01.ENG&toc=OJ%3AC%3A2021%3A123%3ATOC