Agrégateur de flux

Manifestation

Affaire "Julie"

Mandat d'arrêt européen

Contrat de travail, rupture

Contrat de travail - rupture

An tAire Talmhaíochta Bia agus Mara, Éire agus an tArd-Aighne
Rapprochement des législations
Une juridiction d’un État membre est tenue d’exercer le pouvoir que lui confère le droit national d’adopter une déclaration juridictionnelle selon laquelle cet État n’a pas correctement transposé une directive de l’Union et est tenu d’y remédier

Academia de Studii Economice din Bucureşti
Libre circulation des personnes
Lorsqu’un travailleur a conclu avec le même employeur plusieurs contrats de travail, la période minimale de repos journalier s’applique aux contrats pris dans leur ensemble et non à chacun des contrats pris séparément

Association One Voice et Ligue pour la protection des oiseaux
Environnement et consommateurs
Un État membre ne peut pas autoriser une méthode de capture d’oiseaux entraînant des prises accessoires dès lors qu’elles sont susceptibles de causer aux espèces concernées des dommages autres que négligeables

The University of Amsterdam in collaboration with the Open University, Maastricht University and Tilburg University are organising a conference on Transformative effects of covid-19 on globalisation and law, to be held online on 16 and 17 September 2021.

The conference is organised within the research project named Transformative Effects of Globalisation in Law (TEGL) funded by the Dutch Ministry of Education as part of the multi-year Sectorplan Social Sciences research initiative. The event is envisaged as a series of panels, organized bottom-up and discussing specific angles and questions related to COVID-19 effects and globalisation of law. 

As no area of life remains unaffected by the Coronavirus pandemic – from travelling to doing groceries and from grieving to global politics, there are signs that some of the effects of this period are more transient, while others are here to stay: the pandemic will have had transformative effects in a number of domains. What about law?

Within the research theme Transformative effects of Globalisation in Law, the organisers want to look at the possible transformative effects of the pandemic through three main lenses: boundaries and international cooperation, transformative effects on markets and transformation of institutions. The conference will close with a roundtable reflecting on the implications of the ongoing transformations – (how) can law help in reconstructing “better”, in light of the further crises we are all facing?

As possible themes to be explored, think of the following: Coordination and multi-level pandemic governance; Vaccines, TRIPs exceptions and IP caution; Evidence-based law and policy in the pandemic; Will free movement ever be the same again?; Covid-19 and global trade; Love and care at the time of Covid: reproductive labour; The contestation of expertise and/or; Independent agencies and regulatory institutions – a new role for central banks and competition authorities?; Covid-19 and courts: how to test government intervention in the midst of a global emergency?;Covid-19 and the Anthropocene.

The organisers invite scholars from within and outside the Transformative effects of globalisation in law theme to convene a panel on one of these themes or a related theme investigating by preference the transformative effects of the pandemic on the legal configuration of international cooperation and boundaries, institutions and markets.

Interested scholars must provide an abstract for their panel, including a tentative list of speakers, by 1 April.

More information about the call can be found here.

Sécurité au travail

Thanks to Pietro Franzina for the tip.

The Ministry of Justice of Portugal is organising a High level Conference on Protecting Vulnerable Adults across Europe – the Way Forward. The Portuguese Presidency of the Council of the EU has included the international protection of adults among its priorities.

The Conference is planned for 30 March 2021. The Programme includes speakers of the European Parliament, the European Commission, the Hague Conference on Priavte International Law, the Fundamental Rights Agency and national ministers of various countries. Access is free, but prior registration is required.

Airhelp
Transport
Selon l’avocat général Pikamäe, une grève organisée par des syndicats de pilotes constitue, en principe, une circonstance extraordinaire pouvant libérer la compagnie aérienne de son obligation de payer des indemnités d’annulation ou de retard important pour les vols concernés

Commission / Pologne
Aide d'État
L’impôt polonais dans le secteur de la vente au détail et la taxe hongroise sur la publicité ne violent pas le droit de l’Union en matière d’aides d’État

The post below was written by Alex Layton, of Twenty Essex, London. It is the third and final contribution to an on-line symposium devoted to the fate of the 1968 Brussels Convention, launched after a post by Matthias Lehmann (Brexit and the Brussels Convention: It’s All Over Now, Baby Blue?), which attracted comments by Eduardo Álvarez-Armas, Apostolos Anthimos, Gilles Cuniberti, Burkhard Hess, Costanza Honorati, Alex Layton, François Mailhé and Fabrizio Marongiu Buonaiuti. The previous contributions to the symposium, by Andrew Dickinson and Serena Forlati, can be found here and here.

Since the start of this year, the United Kingdom has been outside the Brussels-Lugano regime and it remains very doubtful that it will be welcomed back into the Lugano Convention 2007 in the near future. In this situation, as previous posts on this blog show, some ideas persist about whether the old Brussels Convention (1968, as amended) and the earlier Lugano Convention (1988) may have taken on a new relevance following the United Kingdom’s withdrawal from the European Union. I shall aim to show that such ideas are misplaced.

The latest development to prompt this discussion is the decision of the District Court of Zurich of 24 February 2021 (here, in German) to deny recognition of an English judgment dated September 2020 and to dismiss the application for a declaration of its recognition dated 18 February 2021. The decision is discussed by Rodrigo Rodriguez in a post on this blog dated 10 March. He says that the Zurich court refused to recognise the English judgment pursuant to the Lugano Convention. And if that is indeed what it decided, then I would agree with him (diffidently, as I am not a Swiss lawyer) that the point was wrongly decided by the Zurich court. But I am not sure that that is what it decided and even if it were I reach that conclusion by a somewhat different route.

I shall first explain my reasons for taking that view, and then turn to the question – also much discussed on this blog and elsewhere – on whether the Lugano Convention of 1988 might have provided an alternative basis for thinking the decision was wrongly decided and the related question of whether the old Brussels Convention of 1968 might also be revived.

Zurich Decision

The Lugano Convention 2007 formed part of the law of the European Union which, by reason of Article 127 of the Withdrawal Agreement, continued to apply “to and in” the United Kingdom during the transition period which ended on 31 December 2020. The critical point is that until that date, the UK was a State bound by the Convention. Article 33(1) of the Lugano Convention provides:

A judgment given in a State bound by this Convention shall be recognised in the other States bound by this Convention without any special procedure being required.

By that Article Switzerland undertook to recognise the English judgment from the time that it took effect in its own state of origin. Recognition of the English involves the extension of its authority into the Swiss legal order. It gained that authority in England – and hence also in Switzerland – in September and (so far as I am aware) nothing occurred in Swiss law to revoke the authority which it gained at that time.

The question of the enforcement of the English judgment is of course different. Here, the Lugano Convention, (like its counterpart in Regulation 44/2001 [Brussels I] but unlike Regulation 1215/2012 [Brussels I bis]), still provided for enforcement to take place following the issue of an exequatur. I can well see that by February 2021, the United Kingdom was no longer a “State bound by this Convention” within the meaning of Article 38(1) of the Lugano Convention which therefore would not (at least readily) provide a legal basis for an order for its enforcement. It would be a matter for Swiss procedural law to provide a mechanism for the inchoate recognition of the English judgment to be weaponised for the purposes of enforcement.

In the event, I think this is what the Swiss court actually decided. The judgment notes that the application was for a Vollstreckbarerklärung – a declaration of enforceability – which is what Article 38 relates to, rather than a declaration of recognition (Annerkennung). Indeed Article 38(1) is expressly referred to in the judgment.

In the converse situation, if an English court were now called upon to enforce a Swiss judgment given before 31 December 2020, it could clearly not do so pursuant to any legal powers in the Convention. English law is a dualist system and the domestic legislation giving effect to EU law – and hence to the Lugano Convention – was repealed with effect from 31 December 2020. Unlike the provisions of Brussels I bis, which continue to have effect in respect of judgments given in other EU states before that date, by reason of Article 67(2) of the Withdrawal Agreement, no such provision was made in respect of the Lugano Convention. This is not surprising, as it was not within the competence of either the EU or the UK to provide for the continued application of the Lugano Convention in relation to non-EU Contracting States. The statement by the Swiss Federal Office of Justice suggesting that the Lugano Convention would continue to apply cites the principle that jurisdiction is founded as a matter of principle upon the commencement of proceedings. But, with great respect,  that seems to me to lose sight of the distinction between adjudicatory jurisdiction to which that principle applies, and enforcement jurisdiction which probably requires a separate analysis.  The statement also cites doctrine pointing to Article 67.2 of the Withdrawal Agreement by way of analogy, but rightly does not concur with that view. Such an analogy would anyway be unconvincing unless Switzerland has ceded to the EU treaty-making powers in the field of civil justice (which I am not aware that it has).

How would an English court react in the converse situation? Although I am not aware of any case in which it has been tried, it is at least arguable that English law would recognise a Swiss decision made before 31 December 2020 and would find an alternative procedural means (such as an action for a declaration of recognition, or an action at common law on the Swiss judgment relying on its prior inchoate recognition under Article 33) that would enable this to occur. English law provides that a repeal does not affect any right acquired under the repealed enactment (Interpretation Act 1978, s. 16((1)(c)) and the extended authority of the Swiss judgment pursuant to Article 33 would probably confer such a right on the judgment creditor.

Interestingly enough, the non-application of the Lugano Convention after 31 December 2020 for a judgment given before that date was recognised as a potential issue in UK – Norwegian relations. By an Agreement signed in Oslo on 13 October 2020, the old bilateral convention on recognition and enforcement of judgments dating from 1961 was updated in certain respects, and provided, by Article 2(2), that:

The Parties shall continue to apply the rules of the Lugano Convention 2007 concerning recognition and enforcement of judgments, to the same extent that those rules applied immediately before the Lugano Convention 2007 ceased to apply to the United Kingdom and subject to the same limitations set out therein, to judgments given in proceedings that were instituted in a court of one of the Parties before the Lugano Convention 2007 ceased to apply between the Parties.

There was no equivalent bilateral convention between the United Kingdom and Switzerland, but there would be nothing to stop the UK and Switzerland – neither of which is now bound by the exclusive external competence of the European Union – from concluding a bilateral agreement to the same effect. Does the absence of an equivalent agreement with Switzerland perhaps support the idea that the Lugano Convention does not have an after-life in Anglo-Swiss relations?

Lugano 1988 (and Brussels 1968)

So, if Lugano 2007 does not live on, does the old Lugano Convention of 1988 maybe have an after-life? And if this involved an EU state, would the 1968 Brussels Convention maybe also have an after-life? In summary, a purposive interpretation of Brussels I and Lugano 2007 leave little or no room for doubt that the older instruments were intended to be consigned to the history books. The arguments have been well canvassed in earlier posts, notably by Andrew Dickinson, and I will not go over them again here.

But what of a literal textual interpretation?  True, the Lugano Convention of 1988 continues to govern relations with those non-European territories of France and the Netherlands to which the 2007 Convention has not been applied by their European ‘mother’ states: Articles 69(7) and 73(2). But this seems to me to be nowhere to the point. Also true, the 1988 Convention is not among those superseded by Lugano 2007 as defined by Article 65 and Annex VII. But Article 69(6) of the 2007 Convention is clear enough in providing that it “shall replace” (French: remplace; German: ersetzt) the 1988 Convention. That was a stipulation which was binding on the United Kingdom at the time, and which continues to bind Switzerland. It conveys a displacement of the old convention and the emplacement of the new convention. It does not leave linguistic room for the revival of the displaced.

So, what of the Brussels Convention of 1968?  Admittedly, when it was overtaken by the Brussels I regulation, the latter provided by Article 68 that it “shall …. supercede” the Brussels Convention, and that “supercede” has a less definitive tone that “replace”. But any such linguistic distinction disappears when confronted by other language versions. French uses the word “remplace” as in Lugano 2007.  The German text states “tritt … an die Stelle” (literally, “takes the place of”).

But perhaps the best literal argument for the afterlife of the Brussels Convention is that Article 70 of Brussels I (and also of Brussels I bis) provides that conventions referred to in Article 69 “shall continue to have effect” in relation to matters to which the Regulation does not apply. Read in isolation, that might suggest a revival of the Brussels Convention in relation to those Member States which were parties to it in its last amended form (that is, before the 2004 expansion of the EU). But the argument is harder to sustain when it is read together with Articles 68 and 69. Article 68, as we have just seen, provides for the Brussels Convention to be superceded, while Article 69 in turn refers to conventions which cover the same matters as  Brussels I, but then goes on to list “in particular” conventions not including the Brussels Convention. Although linguistically Article 69 can be read as including the Brussels Convention, read in context it is plain that it is not contemplated by Article 70.

Finally, the last word as far as English law is concerned lies with the UK legislator, which has repealed the provisions which gave effect to both Lugano Conventions and the Brussels Convention. In a dualist system, that is the end of the matter. If other states choose to regard  those instruments as still being in effect, that is a matter for them; but if their domestic legal systems require reciprocity as a condition of recognising foreign judgments, they will not find it in English law except in the limited class of cases in which English law recognises foreign judgments. Both under bilateral conventions, of which there are half a dozen with other Member States (France, Belgium, Netherlands, German, Italy and Austria) and under English common law, recognition is accorded only to final judgments for fixed sums of money given by a court of a country within whose territory the defendant was present when the proceedings began or to the jurisdiction of which the defendant agreed or submitted.

In conclusion, it is clear to me that both theoretically and as a matter of practical application of the law, and subject only to transitional exceptions for the Brussels I bis regulation and minor exceptions for non-European territories of Member States for both the Brussels and the Lugano instruments, the entire Brussels-Lugano regime no longer applies as between the United Kingdom and either other Member States or other Lugano states. Apart from Norway.

So, now, the question is whether the UK will be re-admitted to the 2007 Lugano Convention. The UK made its application in April 2020 and Switzerland, Norway and Iceland have all given their approval. But the EU (including Denmark in its own right) has yet to make its position clear. By Article 72(3) of Lugano 2007, it shall endeavour to give its consent at the latest within one year after the invitation by the Depositary. It only has a few weeks left, and its consent looks increasingly unlikely.

Le juge des référés du TJ de Paris a décidé, le 11 mars, qu’en publiant un avis considérant qu’un article de l’hebdomadaire Valeurs actuelles sur la députée LFI était « contraire (…) à la déontologie journalistique », le Conseil de déontologie journalistique et de médiation n’a pas porté atteinte à la présomption d’innocence du magazine.

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Le changement d’affectation imposé par le Conseil supérieur des juges et des procureurs à un magistrat turc en raison de propos tenus publiquement sur une affaire pénale en cours a méconnu les articles 6, § 1 et 10 de la Convention, et l’utilisation faite dans la procédure disciplinaire d’éléments provenant d’une surveillance judiciaire a enfreint l’article 8. 

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