Agrégateur de flux

Sécurité sociale, cotisations et contributions du régime général

Sécurité sociale, assurances sociales du régime général

Sécurité sociale, aide sociale

Troke & Anor v Amgen Seguros Generales Compania De Seguros Y Reaseguros SAU (Formerly RACC Seguros Compania De Seguros Y Resaseguros SA) [2020] EWHC 2976 (QB) is an appeal against a decision of the country court at Plymouth. It has a case-name almost as long as the name some Welsh villages (that’s an observation, I mean no disrespect. I live in a country which has names such as Erps-Kwerps; but I stray).

For brevity’s sake I suspect it is best shortened to Troke v Amgen. The case involves only the rate of interest awarded on what were otherwise agreed awards of damages against the defendant insurer  to the  claimant, victims of a road traffic accident in Spain.

Spanish law is lex causae. Rome II like Rome I excludes “evidence and procedure…”. The extent of this exception is not settled as I have discussed before. Of particular recurring interest is its relation with Article 15 ‘scope of the law applicable’ which reads in relevant part for the case

 “15. The law applicable to non-contractual obligations under this Regulation shall govern in particular: (a) the basis and extent of liability… (…) (c) the existence, the nature and the assessment of damage or the remedy claimed; (d) within the limits of powers conferred on the court by its procedural law, the measures which a court may take to prevent or terminate injury or damage or to ensure the provision of compensation;”

Griffiths J refers in particular to Actavis v Ely Lilly and to KMG v Chen, and at 45 holds obiter that were the interest a contractual right, it would clearly not be covered by Rome I’s exclusion for procedural issues seeing as it would then clearly amount to a substantive right under the contract.

At play here however is Rome II. Griffiths J first refers to a number of inconclusive precedent on the interest issue under various foreign applicable laws, to then note at 65 ff that the judge in the county court whose findings are being appealed, was informed in the expert reports that the interest sought under Spanish law were not mandatory ones but rather discretionary ones: the terminology used in the expert report which determined that decision was ‘contemplates’.

This leads Griffiths J to conclude ‘I reject the argument that the Expert Report was describing a substantive as opposed to a procedural right to interest. It follows that the Judge was right not to apply the Spanish rates as a matter of substantive right to be governed by the lex causae.’

This is most odd. It could surely be argued that a discretionary substantive right is still a substantive right, and not a procedural incident. Whether the right is mandatory or discretionary does not in my view impact on its qualification as being substance or procedure.

The judge’s findings

It follows that I agree with the Judge that the award of interest in this case was a procedural matter excluded from Rome II by Article 1(3); that there was no substantive right to interest at Spanish rates to be awarded to the Claimants under the lex causae; that interest could be awarded under section 69 of the County Courts Act 1984 as a procedural matter in accordance with the law of England and Wales as the lex fori; and that he was entitled to award interest at English and not Spanish rates accordingly.

in my view surely therefore most be appealable.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 4, Heading 4.8.

Third edition forthcoming February 2021.

What law governs the award of interest in relation to a tort sued upon within this jurisdiction but committed in another jurisdiction.
Whether procedural issue hence lex fori under Rome II. https://t.co/nnnkYczvz2

— Geert Van Calster (@GAVClaw) November 9, 2020

Non lieu à renvoi

Openbaar Ministerie (Indépendance de l’autorité judiciaire d’émission)
Espace de liberté, sécurité et justice
Selon l’avocat général Campos Sánchez-Bordona, l’aggravation des défaillances systémiques ou généralisées affectant l’indépendance de la justice en Pologne ne justifie pas l’inexécution automatique de tous les mandats d’arrêt européens provenant de cet État membre

Giancarlo Frosio (University of Strasbourg) has posted Enforcement of European Rights on a Global Scale on SSRN.

The abstract reads:

This chapter reviews global enforcement of European rights. Global extra-territorial enforcement of miscellaneous rights has emerged as a consistent trend in recent online regulation, both at international and EU level. In considering this trend, this chapter focuses on case law and policy making that face the riddle of extra-territorial application of online intermediaries’ obligations. This chapter describes first the historical origins of global enforcement and the complex issues that Internet jurisdiction brings about. It then offers a panoramic overview of emerging global enforcement at the international level. Later, this chapter reviews to which extent global enforcement has been endorsed by the European legal system, both at EU and national level, with special emphasis on recent decisions from the Court of Justice of the European Union, such as Google v CNiL and Glawischnig v Facebook. Finally, after a review of the political complexities surrounding global enforcement, the standards that might be applied for issuing global enforcement orders are discussed.

The paper is forthcoming in the Handbook of European Copyright Law (Eleonora Rosati ed., Routledge).

The Court of Justice delivered today its judgment in case C‑433/19 (Ellmes Property Services Limited v SP), which is about Articles 24.1 and 7.1 Brussels I bis in relation to immovable property:

“1. Point 1 of Article 24 of Regulation (EU) No 1215/2012 […] must be interpreted as meaning that an action by which a co-owner of immovable property seeks to prohibit another co-owner of that property from carrying out changes, arbitrarily and without the consent of the other co-owners, to the designated use of his or her property subject to co-ownership, as provided for in a co-ownership agreement, must be regarded as constituting an action ‘which has as its object rights in rem in immovable property’ within the meaning of that provision, provided that that designated use may be relied on not only against the co-owners of that property, but also erga omnes, which it is for the referring court to verify.

2. Point 1(a) of Article 7 of Regulation No 1215/2012 must be interpreted as meaning that, where the designated use of immovable property subject to co-ownership provided for by a co-ownership agreement cannot be relied upon erga omnes, an action by which a co-owner of immovable property seeks to prohibit another co-owner of that property from carrying out changes, arbitrarily and without the consent of the other co-owners, to that designated use must be regarded as constituting an action ‘in matters relating to a contract’, within the meaning of that provision. Subject to verification by the referring court, the place of performance of the obligation on which that action is based is the place where the property is situated”.

Source: http://curia.europa.eu/juris/document/document.jsf;jsessionid=E10A5086D2E9CBE2886CE0C4AE8886E4?text=&docid=233541&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=12753411

La Commission européenne a publié un document de travail des services de la Commission relatif aux résultats de l’évaluation des règles en matière d’aides d’État adoptées dans le cadre de la modernisation de leur contrôle. Le document conclut que, si les règles sont adaptées dans leur ensemble, un certain nombre d’entre elles devront être adaptées au pacte vert pour l’Europe et aux stratégies industrielle et numérique de l’UE.

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On Friday, November 13, at 11:oo Brasilia time (i.e. 15:00 in Hamburg and 9:oo a.m. in New York)  this book will be launched via zoom. The book emerges from a 2019 conference in Brasilia, which brought together scholars from several countries, and in several languages (Portuguese, Spanish, English). It demonstrates the vibrancy of private international law in Latin America.
Sign up for the event here.

Emmanuel Guinchard (Northumbria University) edited Rome I and Rome II in Practice, just published by Intersentia.

The publisher’s blurb reads as follows.

This book is devoted to the applicable law to contractual and non-contractual obligations in the European Union. The Rome I and II Regulations provide uniform conflict of laws rule in order to avoid undue forum-shopping. In theory all national courts of EU Member States (excluding Denmark) apply the same rules determining the applicable law. Rome I and II in Practice examines whether the theory has been put into practice and assesses difficulties that may have arisen in the interpretation and application of these Regulations. Such study appears invaluable as the Rome I and II Regulations may be seen as a critical stepping stone towards the construction of a true and far-reaching European Private International Law. Providing clear and detailed insights into the national case law of most EU Member States, as well as the case-law of the Court of Justice, and followed by a comparative analysis, this book is a valuable resource for practitioners, the judiciary, and academics who are interested in understanding how EU law is applied on national level.

The individual country chapters were written by Marie-Elodie Ancel (University Paris II Panthéon-Assas), Apostolos Anthimos (Attorney-at-Law, Thessaloniki), Davor Babić (University of Zagreb), Laura Maria van Bochove (Leiden University), Petr Bříza (Charles University, Prague), Geert Van Calster (KU Leuven), Marcin Czepelak (Jagiellonian University, Kraków), Aleksandrs Fillers (University of Antwerp), Pietro Franzina (Catholic University of the Sacred Heart, Milan), Emilia Fronczak (Avocat à la Cour, Luxembourg), Aleš Galič (University of Ljubljana), Uglješa Grušić (University College London), Tomáš Hokr (Partner at Bříza & Trubač law firm, Prague), Csongor István Nagy (University of Szeged), Elena Judova (Matej Bel University, Banská Bystrica), Inga Kačevska (University of Latvia), Thomas Kadner Graziano (University of Geneva), Jerca Kramberger Škerl (University of Ljubljana), Miloš Levrinc (Matej Bel University, Banská Bystrica), Christiana Markou (Attorney-at-Law, Cyprus), Valentinas Mikelėnas (University of Vilnius, Lithuania), Nikolay Natov (Sofia University St Kliment Ohridski), Máire Ní Shúilleabháin (University College Dublin), Vassil Pandov (Sofia University St Kliment Ohridski), Afonso Patrão (University of Coimbra), Michel José Reymond (Attorney-at-Law, Geneva), Diana Sancho-Villa (Westminster University), Stephan Walter (University of Bonn), Matthias Weller (University of Bonn), Dora Zgrabljić Rotar (University of Zagreb).

More information, including the book’s table of contents, available here.

This Thursday 12 and Friday 13 November, the 2020 International Conference of the Korean Judicial Policy Research Institute (JPRI) will take place. The conference is co-organised by the JPRI, the Hague Conference on Private International Law (HCCH), the International Institute for the Unification of Private Law (UNIDROIT), and the United Nations Commission on International Trade Law (UNCITRAL).

This year’s conference theme is “International Commercial Litigation: Recent Developments and Future Challenges”, with sessions spanning a variety of topics, including international commercial contracts, secured transactions and insolvency, recognition and enforcement of foreign judgments, e-litigation and e-service, and the enforcement of arbitral awards and mediation settlement agreements. The full programme is available here.

The sessions will be streamed on the JPRI YouTube Channel.

This post is published by the Permanent Bureau of the Hague Conference of Private International Law (HCCH).

Orange Romania
Rapprochement des législations
Un contrat de fourniture de services de télécommunication contenant une clause selon laquelle le client a consenti à la collecte et la conservation de son titre d’identité ne peut démontrer qu’il a valablement donné son consentement lorsque la case y afférente a été cochée par le responsable de traitement avant la signature du contrat

On 21 May 2020, the Piraeus Court of Appeal ruled that a judgment on a family maintenance matter, issued by the Tribunal of Rotterdam in 2007, did not qualify for recognition in Greece (ruling No 383 of 2020, unreported).

The Court reached this conclusion on the basis of Article 34(2) of Regulation 44/2001 (the Brussels I Regulation).

According to the latter provision, a judgment that was given in default of appearance should not be recognised “if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so”.

Proceedings in the Netherlands

In 2007 a claim for maintenance was filed by a mother on behalf of her minor child, both living in the Netherlands, against the father, a resident of Greece. The claim was filed on 5 January 2007 before the Tribunal of Rotterdam. The hearing was scheduled for 8 August 2007. The defendant failed to appear. The Tribunal issued its ruling on the day of the hearing. It then set a three-month deadline for appeal and declared that the judgment was immediately enforceable.

Proccedings in Greece – First instance

In February 2009, an application for a declaration of enforceability of the Dutch judgment was filed before the Piraeus Court of First Instance. The court stayed its proceedings, and ordered the applicant mother to produce evidence concerning the service of the claim to the father [ruling No 3511 of 2009, unreported].

The case was rescheduled to hear the applicant. The application, however, was dismissed. The court stated that the sole document produced was a letter by the Tribunal of Rotterdam, dated 2 April 2007, declaring that the claim had been served on the defendant. Still, no evidence of receipt by the defendant was submitted. The Court concluded, accordingly, that his rights of defence were violated [ruling No 358 of 2012, unreported].

Proceedings in Greece – Second instance

The mother appealed before the Piraeus Single Member Court of Appeal. She complained that the Court of First Instance had acted ultra vires, arguing that, pursuant to Regulation 44/2001, first instance courts are allowed to assess the conditions for recognition and enforcement of a judgment, not the grounds for refusing such recognition.

The matter was referred to a Chamber of the same court [ruling No 455 of 2018, unreported]. The Chamber allowed the appeal and quashed the first instance ruling on the grounds invoked by the appellant. It stated however that, as a second instance court, it had the powers under the Regulation to examine any grounds for refusal.

The Service of Process Issue

The Piraeus Court of Appeal devoted a lengthy analysis to the issue whether the act instituting the Dutch proceedings had been properly served on the defendant. The main findings may be summarised as follows:

(a) The certificate issued under Articles 54 and 58 of Regulation No 44/2001 by the competent body of the Rotterdam Tribunal states that service took place on 2 April 2007. The registered letter sent to the defendant bears the same date.

(b) That just cannot be possible: the sending and delivery of a letter sent from Rotterdam to Athens cannot occur on the same day.

(c) The appellant failed to produce an acknowledgment of receipt by the defendant.

(d) The claim was not officially translated from Dutch to Greek. There was a translation attached, however not signed by an authorized person to that cause. This happened only in April 2010, i.e. after the proceedings were stayed by the Piraeus CFI in 2009.

(e) No evidence was given of the fact that the defendant failed to challenge the judgment in the Netherlands, although it was possible for him to do so: he received neither the document instituting proceedings, nor the judgment itself.

(f) By reviewing the Dutch ruling, the Piraeus Court of Appeal noticed that the Rotterdam Tribunal failed to examine the timeliness of service on the defendant; it simply confirmed his non-appearance at the hearing in Rotterdam.

In light of above, the Piraeus Court dismissed the appeal.

Assessment

As a starter, the judgment demonstrates that courts are still confronted with exequatur issues, in spite of its abolition almost a decade ago.

In addition, judges and lawyers should be wary of the proper applicable law. In the case at hand, the courts were right in resorting to Regulation 44/2001, in light of Article 75(2)(b) of the Maintenance Regulation. Nevertheless, the core of the matter remains the same (lack of proper service is a ground for refusing recognition also in accordance with Article 24(b) of the Maintenance Regulation).

The reversal of the first instance ruling was correct. Article 42 of Regulation 44/2001 is adamant about it, so is Article 30 of the Maintenance Regulation.

The referral in second instance is demonstrative of a typical lack of cohesiveness between the text of the Regulation and national declarations of the Member States. As evidenced in Annex III of the Regulation 44/2001, Greece declared that the Court of Appeal is competent to try appeals pursuant to Article 43(2) of the Regulation. At that time (2001) and for many years after, a court of appeal consisted exclusively of three judges. In 2015 the law changed. Pursuant to the new Article 19 of the Greek Code of Civil Procedure, the competent court for examining appeals against judgments rendered by a Single Member Court of First Instance is the relevant Single Member Court of Appeal. In the case at hand, the Piraeus Single Member Court of Appeal considered that the three-member chamber should remain competent, because the Hellenic Republic did not amend its declaration. Legal scholars have already expressed a different view. The fact of the matter is that those problems affect procedural economy, especially in sensitive cases, such as maintenance claims.

Finally, in regards to the central issue of service, the following remarks may be made.

First, the court correctly found that the conditions for service of the claim to the defendant were not met, as it was not proven that the document was received or translated from Dutch into Greek. However, the judgment lacks sufficient reasoning with respect to the defendant’s ability to challenge the foreign decision in the state of origin.

Secondly, no reference is made to judgment of the Court of Justice in the Lebeck case, where the Court stated that   “proceedings to challenge a judgment” referred to in Article 34(2) of Regulation 44/2001 must be interpreted as also including applications for relief when the period for bringing an ordinary challenge has expired. Hence, the margin of the court’s test should have been expanded to the time of expiry declared by the Netherlands under Article 17(4) and 23(1) of the Service Regulation.

Finally, and most importantly, the Piraeus court omitted any reference to the ruling in ASML, where the Court ruled that

Article 34(2) of Regulation No 44/2001 is to be interpreted as meaning that it is ‘possible’ for a defendant to bring proceedings to challenge a default judgment against him only if he was in fact acquainted with its contents, because it was served on him in sufficient time to enable him to arrange for his defence before the courts of the State in which the judgment was given.

Therefore, service of the default judgment after the expiry of time for appeal or an application for relief does not suffice, and the defence under Article 34(2) of Regulation 44/2001 is still active.

Concluding Remarks

One additional point worth noticing is the duration of the proceedings in Greece, which for maintenance standards is utterly unbearable. It is very fortunate that sooner or later Section 1 of Chapter 4 (Articles 17 et seq.) of the Maintenance Regulation will prevail in practice.

Admittedly, the abolition of exequatur will not solve all problems, bearing in mind the second set of remedies available to the judgment debtor in the state of destination. It is hoped that a common approach could be achieved even in the last mile, i.e. the national law on enforcement.

Très contestées il y a dix ans, la déontologie et la transparence dans la vie politique sont aujourd’hui incontournables. Déontologue, comité de déontologie, Haute Autorité pour la transparence de la vie publique ont trouvé leur place. Enquête sur une révolution déontologique et les coulisses d’institutions discrètes.

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