Agrégateur de flux

Commission / Espagne (Directive données à caractère personnel - Domaine pénal)
Espace de liberté, sécurité et justice
Pour n’avoir toujours pas transposé une directive ni communiqué de mesures de transposition, l’Espagne est condamnée à payer une somme forfaitaire de 15 millions d’euros et une astreinte journalière de 89 000 euros

Slovak Telekom
Concurrence
Slovak Telekom, condamnée par la Commission pour abus de position dominante sur le marché de certains services de télécommunication, pouvait être également sanctionnée par les autorités slovaques pour un tel abus sur le marché d’autres services de télécommunication

Caisse pour l'avenir des enfants
SOPO
Un État membre ne peut pas soumettre le droit à un congé parental à l’exigence que le parent ait eu un emploi au moment de la naissance ou de l’adoption de l’enfant

Les Chirurgiens-Dentistes de France e.a.
Libre circulation des personnes
Les États membres peuvent autoriser l’accès partiel à l’une des professions relevant du mécanisme de la reconnaissance automatique des qualifications professionnelles, au nombre desquelles figurent certaines professions de santé

Dalli / Commission
Droit institutionnel
La Cour confirme le rejet du recours de l’ancien commissaire européen John Dalli

French Private International Law (“PIL”) has never been codified despite various proposals of codification in the last century (see for instance here and here). The growing European acquis of PIL and the idea of an European Code of PIL (see for instance here and more recently within the EAPIL here), as well as the numerous codifications in the field within EU Member States have probably contributed to a re-launch of the reflection, in particular among French governement officials.

An expert group has be appointed two years ago under the leadership of Jean-Pierre Ancel (former President of the first Chamber of the French Court of Cassation) to draft a project of French PIL Act.

Against this backdrop, Ludovic Pailler (University of Lyon 3) organises a webinar (in French) titled “Codification of French Private International Law in the European context” (La codification du droit international privé français à l’heure européenne).

It will take place on 18 March 2020, 2 to 5 PM (CET).

The speakers are Jean-François de Montgolfier (Director of the Civil Affairs of the French Ministry for Justice), Marc Cagniart (Notary, SCP Castiglione, Paris), Alain Devers (University of Lyon 3 & Lawyer at the Lyon Bar) and Emmanuel Putman (University of Aix-Marseille).

The program is available here.

Those wishing to attend the webinar may write an e-mail to marie.brossard@univ-lyon3.fr.

Droits de la défense

Silcompa
Rapprochement des législations
Lorsqu’un produit soumis à accise, tel que l’alcool, est exporté irrégulièrement au sein de l’Union, les décisions des autorités des États membres concernés ne peuvent pas aboutir à un double recouvrement des droits correspondants

Tamás Szabados (Eötvös Loránd University) published Constitutional identity and judicial cooperation in civil matters in the European Union – An ace up the sleeve?, in the Common Market Law Review (vol. 58, February 2021).

The paper discusses the constitutional identity-based arguments in the field of private international law.

He has kindly provided us with an extended abstract :

Constitutional identity has become a fashionable concept that is used by politicians and courts alike. But how does constitutional identity affect private international law?

The use of constitutional identity-based arguments has been primarily examined in the context of EU and domestic constitutional law. Constitutional law discourse has mainly centred around the interpretation of Article 4(2) of the TEU. However, less attention has been devoted to the role and impact of arguments related to constitutional identity on the development of EU private international law. This is notwithstanding the fact that constitutional identity seems to shape the application and creation of private international law rules.

Constitutional identity has a twofold effect on private international law. First, peculiar constitutional norms and values belonging to constitutional identity can be safeguarded through the public policy exception. This opens the door for courts to disregard the otherwise applicable foreign law or to reject the recognition of a foreign situation on the ground that it violates the constitutional identity of the forum state.

Second, arguments based on constitutional identity may be relied on to stay outside the enactment of new private international legislation by the EU. In particular, due to the unanimity requirement laid down by Article 81(3) TFEU, Member States have a strong bargaining power in the area of international family law. This can be well illustrated by the recent adoption of Matrimonial Property Regulation and the Regulation on the Property Regimes of Registered Partners where the opposition of some Member States led to the enactment of these regulations in enhanced cooperation procedure. Staying outside from the adoption of these regulations has been motivated by protecting the domestic concept of family as part of national or constitutional identity. In this way, constitutional identity undoubtedly contributes to the fragmentation of EU private international law.

Nevertheless, constitutional identity can be rarely used as a trump by the Member States in the area of the judicial cooperation in civil matters. There are at least two limits concerning the application of the autonomous private international law rules of the Member States. First, as long as an international legal dispute demonstrates some connection to EU law, Member States must respect the fundamental principles of EU law, in particular the principles of free movement and non-discrimination. Second, even if no such connection exists, the limits stemming from international conventions, such as the ECHR, cannot be ignored.     

The details of the article are available through the journal website here.

Premier Cruises Ltd v DLA Piper Rus Ltd & Anor [2021] EWHC 151 (Comm) is a textbook case for the relationship between arbitration and the Brussels Ia regulation, as well as relevance of lex arbitri on what is within the scope of an arbitration agreement.

Claimant is Premier Cruises Limited (“PCL”), a company originally domiciled in the British Virgin Islands and now domiciled in the Seychelles, which owns or operates two vessels. Defendants are entities within the DLA Piper Group of legal practices. The First Defendant is DLA Piper Rus Limited (“DLA Russia”), an English company with operations in Russia. The Second Defendant is DLA Piper UK LLP (“DLA UK”), an English LLP.  On 29 January 2020 (within the scope of Brussels Ia, therefore, at least as against DLA UK), PCL commenced proceedings against DLA in the Commercial Court claiming damages in contract and/or in tort for professional negligence.

DLA Russia argues the claim is within the scope of its arbitration agreement included in the engagement letter (International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation). DLA UK accepted it was not included in that agreement and applied for a case-management stay.

PCL argue its action against DLA Russia is in respect of advice allegedly given and work allegedly carried out by DLA Russia prior to 26 May 2015 when the Engagement Letter came into force.

At 52, Edward J identified Russian law as both lex contractus and lex arbitri, and held at 138 after hearing the Russian law experts, that upon contractual construction, PCL’s claim was not included in the clause for it was not meant to apply retroactively.

At 147 ff he agreed with PCL that a case-management stay for the claim against DLA UK is not possible given, with reference to Recital 12 BIa, that the arbitration exception is not engaged: ‘The claim made against DLA UK in this action is not one in respect of which PCL and DLA UK have entered into an arbitration agreement [161]; Arbitration is not the principal focus of the English proceedings against DLA UK; the essential subject matter of the claim made against DLA UK does not concern arbitration; and the relief sought in the proceedings is not ancillary to or an integral part of any arbitration process [163] (reference is made to The Prestige].

The claim being within BIa, Owusu rules out a case management stay. The judge should have outright rejected the additional suggestion ([158 juncto [164]) of a temporary stay being within the Owusu confines.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.3.4, para 2.110 ff.

 

Application for stay in favour of #arbitration proceedings dismissed.
Viz the Rus party, on basis of Russian law principles of construction applicable to arbitration agreements.
Viz the UK party given CJEU Owusu, in casu not displaced by Brussels Ia arbitration exemption. https://t.co/JzqRyVQ6Px

— Geert Van Calster (@GAVClaw) February 9, 2021

The Committee Investigating Intercountry Adoption, has recommended that The Netherlands suspend intercountry adoptions. The interdisciplinary committee considered the history and legal evolution, and did an in-depth investigation into adoptions from five selected countries (Bangladesh, Brazil, Colombia, Indonesia and Sri Lanka). It looked into the consequences for the people involved (adoptees, birth families and adoptive families), the perception in society, the best interests of the child and the right to know one’s origins and identity. It came to the conclusion that there have been too many abuses and that the current system is still open to fraud and abuses. It further stated that the lessons learned should be applied to new methods of family formation such as surrogacy.

For those who do not read Dutch, the Commission issued a press release in English and published an English summary of the report.

The Committee, established by the Minister for Legal Protection, Mr. Sander Dekker, was chaired by Mr. Tjibbe Joustra and further composed of Prof. Dr. Beatrice de Graaf and Mr. Bert-Jan Houtzagers.

POAM (Protection of Abducting Mothers in Return Proceedings) is a research project co-funded by the European Commission. It explores the intersection between domestic violence and international parental child abduction within the European Union. The project is concerned with the protection of abducting mothers who have been involved in return proceedings under the 1980 Hague Abduction Convention and the Brussels IIa Regulation, in circumstances where the child abduction had been motivated by acts of domestic violence from the left-behind father.  POAM examines the usefulness of the Protection Measures Regulation and the European Protection Order Directive in the context of such return proceedings.

The POAM Conference will take place online via Zoom – due to the current global circumstances and, unfortunately, not as initially planned in Munich – on Friday, the 26th March 2021 from 9 a.m. to 1 p.m. (CET).

In the Conference, the POAM research team will present the results of the project and their best practice guide, and invite discussions moderated by external speakers and a panel to engage the participants. Please see the attached POAM Conference Programme for more details.

REGISTRATION: If you are interested in attending the online Conference, please register by email to tatjana.tertsch@jura.uni-muenchen.de

Please also indicate in the email whether you would require a confirmation of participation after attendance. We will provide you with the necessary link for the Zoom Conference a week before the event.