Agrégateur de flux

France / Parlement
Droit institutionnel
Le Parlement européen était en droit d’adopter à Bruxelles, en deuxième lecture, le budget de l’Union pour 2018

A e.a. (Éoliennes à Aalter et à Nevele)
Environnement et consommateurs
Un arrêté et une circulaire qui fixent les conditions générales pour la délivrance de permis d’urbanisme aux fins de l’implantation et de l’exploitation d’éoliennes doivent eux-mêmes faire l’objet d’une évaluation environnementale préalable

Varhoven kasatsionen sad na Republika Bulgaria
Libre circulation des personnes
Un travailleur a droit, pour la période comprise entre son licenciement illégal et la réintégration dans son ancien emploi, aux congés annuels payés ou, au terme de sa relation de travail, à une indemnité en substitution de tels congés non pris

Thank you Gaetan Goldberg for flagging that the French Supreme Court has confimed on 19 June last, jurisdiction of the French Data Protection Agency (‘DpA’), CNIL for issuing its fine (as well as confirming the fine itself) imposed on Google for the abuse of data obtained from Android users. The Court was invited to submit preliminary references to the CJEU on the one-stop shop principle of  the GPDR, but declined to do so.

Readers of the blog know that my interest in the GDPR lies in the jurisdictional issues – I trust date protection lawyers will have more to say on the judgment.

With respect to the one stop shop principle (see in particular A56 GDPR) the Court held at 5 ff that Google do not have a ‘main establishment’ in the EU at least not at the time of the fine complained of, given that the Irish Google office (the only candidate for being the ‘main establishment) at least at that time did not have effective control over the use and destination of the data that were being transferred – US Google offices pulling the strings on that decision. A call by the CNIL under the relevant EU procedure did not make any of the other DPAs come forward as wanting to co-ordinate the action.

On the issue of consent the SC referred to CJEU Cc-673/17 Planet49 and effectively held that the spaghetti bowl of consent, ticking and unticking of boxes which an Android user has to perform to link a Google account to Android and hence unlock crucial features of Android, do not amount to consent or proper compliance with GDPR requirements.

Geert.

French SC confirmation of French DPA fine in #Android data case
On jurisdiction, rejects application of #GDPR one stop shop principle on the basis that #Google's Irish representation does not have decision power over use of the data
See 3 ff of judgmenthttps://t.co/ZVAuZnjznd https://t.co/Jqz7Mm2nfl pic.twitter.com/WBAhjdudVJ

— Geert Van Calster (@GAVClaw) June 19, 2020

Still on the application of foreign law (see my previous post here), a second topic has caught my eye: that of free access providers of legal information – the ‘Legal Information Institutes’ (‘LII’s), directly related to the ‘Free Access to Law Movement’. I have never really reflected about them; even less, about what their role could be for the purposes of facilitating access to a foreign law. I have made a little bit research on the institutions and the underlying principles, out of curiosity.

The existence of the LIIs was made possible thanks to the internet; free access to legal information would not be possible against distribution costs. As a consequence, the LII’s existence goes back only to the early 1990’s. The first institute was the Legal Information Institute at Cornell University Law School, set up in 1992 with a number of databases primarily of US federal law. The foundation of the Australasian Legal Information Institute (AustLII) followed in Sydney, Australia, in 1995. The next ones were the ZamLII (Zambia), the BAILII (UK and Ireland), the PacLII (Pacific Islands), the HKLII (Hong Kong), the SAFLII (South Africa), the NZLII (New Zealand), and the CanLII (Canada). Today, there are more of 50 LII or similar institutions –  not all of them have borrowed the “LII” suffix- over the world.

The LIIs publish legal information from more than one source, i.e., not just ‘their own’ information but also data from other LIIs, for free access via the Internet. To this aim they collaborate with each other, also at the technical level (sharing of software, technical expertise and experience on policy questions such as privacy issues), through membership of the ‘Free Access to Law Movement’ (FALM). The FALM was officially born at a Conference in Montreal in 2002, where the Declaration on Free Access to Law was adopted. The document as amended, as well as a list of all members with links to their respective websites, is accessible here.

The Montreal Declaration defines public legal information as “legal information produced by public bodies that have a duty to produce law and make it public”. It includes primary sources of law, such as legislation, case law and treaties, and various secondary (interpretative) public sources, such as reports on preparatory work and on law reform, and resulting from boards of inquiry. It also includes legal documents created as a result of public funding.

The underlying principles of the Declaration read as follows: public legal information from all countries and international institutions is part of the common heritage of humanity; maximising access to this information promotes justice and the rule of law; public legal information is digital common property and should be accessible to all on a non-profit basis and free of charge; the government bodies that create or control that information should provide access to it so that it can be published by other parties. The Declaration acknowledges, however, that while access to secondary interpretative legal materials should be for free, permission to republish is not always appropriate or possible.

The FALM aims at being global, but so far only a few LIIs are based in Europe (Austria, Cyprus, France, Germany, Ireland -and the UK-, Italy, Spain); the majority are located and represent jurisdictions outside Europe. It should be noted that some LLIs, like the WorldLII, have a global scope.

What precisely can be obtained from the LIIs, and who behind each of them is, are  tricky questions: the answer is, it depends on the LLI. Regarding the first question, all the institutes share the task of promoting and supporting free access to public legal information throughout the world, principally via the Internet. In practice, however, the number and scope of the databases varies a lot: from many of the countries they are small, but they are very substantial from others; in some cases, like Canada, Australia, Hong Kong, Ireland or the UK, the LIIs’ offer includes content not available from commercial legal publishers. Another factor to be taken into account when assessing the usefulness of an LII is the policy on re-use: in some countries where doctrines such as the Crown Copyright still apply (for example, Australia), a LII is not at liberty to permit users to reproduce its data for all purposes.

On the second question, the answer is that LIIs are mostly based in academic institutions; some include as well libraries, and some, governmental or semi-governmental bodies. From this information it is already easy to guess that funding, and particularly long-term funding, is a problem. Private sponsorship and voluntary contributions to this kind of project, which is finally in the general interest, seems to be a question of culture and tradition: popular in some countries and almost unknown in others. As a consequence, the capacity of the LIIs to perform varies from one another; the divergences appear already at the level of the design and degree of sophistication of the respective websites. How often statutes and regulations are updated, how long it takes to have a decision published after delivery, depends as well on each LII.

Because every LII (and assimilated institutions) is different, a common assessment in terms of the authenticity, reliability or update of the sources provided, would be inappropriate. However, two things are clear: documents published by LIIs have no official status; and the initiative was not adopted, nor is being implemented, primarily for foreign users. Whether local courts and professionals rely on the services of an LII is a matter of trust. What I would say is that if they do – that is, if the documents published on a particular LII are routinely used for professional purposes, and accepted by the courts to assess the state of the law at the domestic level-, there is no reason not to follow for the purposes of bringing that foreign law before a court sitting in another country. But, of course, already finding out whether this is the case may be a cumbersome task.

— Further Reading: you may want to have a look at the Journal of Open Access to Law.

La chambre commerciale fait application de principes énoncés par la Cour de justice de l’Union européenne le 4 décembre 2019 dans une affaire où un syndic désigné dans une procédure collective ouverte en Angleterre agissait en France pour obtenir l’inopposabilité d’une vente d’immeubles et d’hypothèques.

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Fraude fiscale

Saisies

Expertise - Action civile

Confiscation

Saisie

Restitution

Marie-Luisa Loheide is a doctoral candidate at the University of Freiburg who writes her dissertation about the relationship between the status of natural persons in public and private international law. She has kindly provided us with her thoughts on a recent ruling by the German Constitutional Court.

According to Article 116 para. 2 of the German Basic Law (Grundgesetz – GG), every descendant of former German citizens of Jewish faith who have been forcibly displaced and expatriated in a discriminatory manner by the Nazi-regime is entitled to attain German citizenship upon request. This rule has been incorporated in the Basic Law since 1949 as part of its confrontation with the systematic violations of human rights by the Nazi-regime and is therefore meant to provide reparation by restoring the status quo ante.

Descendants (“Abkömmlinge”) as referred to in Article 116 para. 2 are children, grandchildren and all future generations without any temporal constraint. Regardless of their parents’ choice of citizenship, they have a personal right to naturalisation which is exercised upon request by reactivation of the acquisition of citizenship iure sanguinis. This very wide scope is legitimated by the striking injustice done by the Nazi-regime. Yet, according to the settled case law of the Federal Administrative Court, it had been limited by a strict “but-for” test: in order to solely encompass those people affected by this specific injustice. This meant that the descendant must hypothetically have possessed German citizenship according to the applicable citizenship law at the time of its acquisition which is usually the person’s birth. To put it more clearly, one had to ask the following hypothetical question: Would the descendant be a German citizen if his or her ancestor had not been expatriated by the Nazis?

Exactly this limiting prerequisite was the crucial point of the matter decided upon by the German Constitutional Court on 17 June 2020. In the underlying case, the hypothetical question described above would have had to be answered in the negative: Until its revocation in 1993, German citizenship law stated that children of an unmarried German father and a mother of other citizenship did not acquire the German citizenship of their father but only that of their mother, contrary to today’s principle of ius sanguinis-acquisition. As in casu the daughter of a forcibly displaced and expatriated former German emigrant of Jewish faith and a US-American mother was born outside marriage in 1967, she was denied the acquisition of the German citizenship. Whereas this was not criticised by the administrative courts seised, the German Constitutional Court in its ruling classified the denial as an obvious violation of the principle of equal treatment of children born within and outside marriage underlying Article 6 para. 5 GG as well as the principle of equal treatment of women and men according to Article 3 para. 2 GG, as alleged by the plaintiff. In its reasoning, the Court emphasised that an exception from the principle of equal treatment of children born outside marriage could only be made if absolutely necessary. This corresponds to the case-law of the European Court of Human Rights on Article 14 of the ECHR that a difference in treatment requires “very weighty reasons”. The former non-recognition of the family relationship between an unmarried father and his child, however, did obviously contradict the stated constitutional notion without being justified by opposing constitutional law. Out of two possible interpretations of “descendant” as referred to in Article 116 para. 2 GG the court must have chosen the one that consorts best with the constitution. According to the Constitutional Court, the more generous interpretation of descendant also prevents a perpetuation of the outdated notion of inferiority of children born outside marriage through Article 116 para 2 GG and corresponds to its purpose of reparation.

As the notion of inferiority of children born outside marriage has fortunately vanished, a clarifying judgment was highly overdue and is therefore most welcome. It is not acceptable that outdated notions are carried to the present through a provision of the Basic Law that is meant to provide reparation of Nazi crimes. Especially in post-Brexit times, the question dealt with has become more and more urgent with respect to people reclaiming their German citizenship in order to maintain their Union citizenship and the rights pertaining to it (see here).

In regard to conflicts law, this clarification of a key question of citizenship law is relevant to the determination as a preliminary issue (incidental question or Vorfrage) when nationality is used as a connecting factor. The judgment is likely to lead to more cases of dual citizenship that are subject to the ambiguous conflicts rule of Art. 5 para. 1 sentence 2 EGBGB.

A short update on the Prestige litigation. I reported earlier on the disclosure order in the recognition leg of the case. In that review I also listed the issues to be decided and the preliminary assessment under Title III Brussels Ia. That appeal is to be heard in December 2020 (see also 21 ff of current judgment). In The London Steam-Ship Owners’ Mutual Insurance Association Ltd v Spain (M/T “PRESTIGE”) [2020] EWHC 1582 (Comm) Henshaw J on 18 June held on yet another set of issues, related to arbitration and State Immunity.

He concluded after lengthy analysis to which it is best to refer in full, that Spain does not have immunity in respect of these proceedings; that the permission to serve the arbitration obligation our of jurisdiction, granted earlier to the Club should stand; and that the court should appoint an arbitrator.

I am pondering whether to add a State immunity chapter to the 3rd ed. of the Handbook – if I do, this case will certainly feature.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.1, Heading 2.2.11.2, Heading 2.2.16.

William S. Dodge (University of California, Davis) and Wenliang Zhang (Renmin University of China) have posted Reciprocity in China-U.S. Judgments Recognition on SSRN.

The abstract reads:

The conventional wisdom is that China and the United States do not recognize each other’s court judgments. But this is changing. A U.S. court first recognized a Chinese judgment in 2009, and a Chinese court first reciprocated in 2017. This Article provides an overview of the enforcement of U.S. judgments in China and Chinese judgments in the United States, noting the similarities and differences in the two countries’ systems. In China, rules for the enforcement of foreign judgments are established at the national level and require reciprocity. In the United States, rules for the enforcement of foreign judgments are established at the state level and generally do not require reciprocity. This Article also looks at possibilities for future cooperation in the enforcement of foreign judgments, through a bilateral treaty, a multilateral convention, and the application of domestic law. It concludes that progress in the recognition and enforcement of China-U.S. judgments is most likely to come from continued judicial practice under existing rules and from China’s shifting approach to reciprocity.

The paper is forthcoming in the Vanderbilt Journal of Transnational Law.

The EU Commission is organising a consultation on whether the EU should accede to the Judgments Convention. Responses to the questionnaire may be submitted until 5 October 2020.

If you are interested, see here

Yesterday, EU Parliament and Council of the EU negotiators reached a deal on the first EU-wide rules on collective redress, which will take the form of a Directive to be implemented within the usual 2 years period.

Here is the official presentation of the rules: “The new rules introduce a harmonised model for representative action in all member states that guarantees consumers are well protected against mass harm, while at the same time ensuring appropriate safeguards from abusive lawsuits. The new law also aims to make the internal market function better by improving tools to stop illegal practices and facilitating access to justice for consumers”. […]

Main elements of the agreement:

At least one representative action procedure for injunction and redress measures should be available to consumers in every member state, allowing representative action at national and EU level;

Qualified entities (organisations or a public bodies) will be empowered and financially supported to launch actions for injunction and redress on behalf of groups of consumers and will guarantee consumers’ access to justice;

On designation criteria for qualified entities, the rules distinguish between cross-border cases and domestic ones. For the former, entities must comply with a set of harmonised criteria. They have to demonstrate 12 months of activity in protecting consumers’ interest prior to their request to be appointed as a qualified entity, have a non-profit character and ensure they are independent from third parties whose economic interests oppose the consumer interest;

For domestic actions, member states will set out proper criteria consistent with the objectives of the directive, which could be the same as those set out for cross-border actions;

The rules strike a balance between access to justice and protecting businesses from abusive lawsuits through the Parliament’s introduction of the “loser pays principle”, which ensures that the defeated party pays the costs of the proceedings of the successful party;

To further avoid abusive lawsuits, Parliament negotiators also insisted that courts or administrative authorities may decide to dismiss manifestly unfounded cases at the earliest possible stage of the proceedings in accordance with national law;

Negotiators agreed that the Commission should assess whether to establish a European Ombudsman for collective redress to deal with cross-border representative actions at Union level;

The scope of collective action would include trader violations in areas such as data protection, financial services, travel and tourism, energy, telecommunications, environment and health, as well as air and train passenger rights, in addition to general consumer law”.

Source: here

Six mois après la publication du rapport d’évaluation par le Groupe d’États contre la corruption (GRECO) sur la prévention de la corruption et la promotion de l’intégrité au sein des gouvernements et des services répressifs qui a invité la France à fournir davantage d’efforts en la matière1, et à l’approche de la réévaluation du dispositif français par l’OCDE, la Chancellerie a diffusé le 2 juin 2020 une circulaire de politique générale de lutte contre la corruption internationale.

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