Agrégateur de flux

Landkreis Südliche Weinstraße
Libre circulation des personnes
Une mesure permettant à un Land de soumettre la prise en charge du transport scolaire à une condition de résidence dans ce Land constitue une discrimination indirecte à l’encontre des travailleurs frontaliers et de leur famille

Stim et SAMI
Liberté d'établissement
La location de véhicules automobiles équipés de postes de radio ne constitue pas une communication au public soumise au paiement de droits d’auteur

Caisse pour l'avenir des enfants (Enfant du conjoint d’un travailleur frontalier)
Libre circulation des personnes
Un Etat membre ne peut refuser de verser une allocation familiale pour l’enfant du conjoint d’un travailleur frontalier sans lien de filiation avec celui-ci

Coty Germany
Propriété intellectuelle et industrielle
Le simple entreposage par Amazon, dans le cadre de sa place de marché en ligne (Amazon-Marketplace), de produits portant atteinte à un droit de marque ne constitue pas une violation par Amazon de ce droit de marque

Commission / Pologne (Mécanisme temporaire de relocalisation de demandeurs de protection internationale)
Espace de liberté, sécurité et justice
En refusant de se conformer au mécanisme temporaire de relocalisation de demandeurs de protection internationale, la Pologne, la Hongrie et la République tchèque ont manqué à leurs obligations découlant du droit de l’Union

Ruska Federacija
DISC
Lorsqu’un État membre doit statuer sur une demande d’extradition d’un État tiers concernant un ressortissant d’un État de l’Association européenne de libre-échange (AELE), partie à l’accord sur l’Espace économique européen (EEE), il lui incombe de vérifier que ce ressortissant ne sera pas soumis à la peine de mort, à la torture ou à des peines ou traitements inhumains ou dégradants

L’union ne fait pas toujours la force. Par deux arrêts du 25 mars, le Conseil d’État a rejeté deux requêtes en excès de pouvoir formées conjointement par le Syndicat de la juridiction administrative (SJA) et l’Union syndicale des magistrats administratifs (USMA) portant sur l’annulation de deux décrets distincts.

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Anne Peters (Max Planck Institute for Comparative Public Law and International Law), Sabine Gless (University of Basel), Chris Thomale (Ruprecht-Karls Universität Heidelberg) and Marc-Philippe Weller (Heidelberg University) have posted Business and Human Rights: Making the Legally Binding Instrument Work in Public, Private and Criminal Law on SSRN.

The paper’s starting point is the United Nations Human Rights Council working group’s revised draft of a Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and other Business Enterprises of July 2019. The paper examines the draft treaty’s potential to activate and operationalize public law, private law, and criminal law for enforcing human rights. It conceptualizes a complementary approach of these three branches of law in which private and criminal legal enforcement mechanisms stand in the foreground. It argues for linking civil (tort) and criminal liability for harm caused by hands-off corporate policies, complemented by the obligation to interpret managerial duties in conformity with the human rights standards of public international law. The combination of public, private, and criminal law allows effective enforcement of human rights vis-à-vis global corporations.

The paper is part of the Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper Series.

Dans deux communiqués de presse du 16 et du 27 mars, la Cour européenne des droits de l’homme, dont le siège est à Strasbourg, annonce des mesures exceptionnelles, notamment procédurales, face à la crise sanitaire mondiale et aux mesures de confinement décidées par les autorités françaises. 

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If you notice something strange on the EAPIL website today, don’t worry. We’re upgrading some of the site functions, which may result in small disruptions. The site as such is up and running. Apologies for any inconvenience!

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Irrecevabilité

On 26 March 2020, advocate general Tanchev delivered his Opinion on the JE case (case C-249/19) – the first case to be decided by the CJEU on the Rome III Regulation on the law applicable to divorce and legal separation (Regulation 1259/2010).

At stake is the interpretation of Article 10 of the Regulation, according to which, ‘Where the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce or does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex, the law of the forum shall apply.’

The question for a preliminary ruling, from the Regional Court of Bucharest, revolves around the expression ‘the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce.

The referring court asks whether that should be interpreted

(a) in a strict, literal manner, that it is to say only in respect of a situation where the foreign law applicable makes no provision for any form of divorce, or

(b) more broadly, as also including a situation where the foreign law applicable permits divorce, but does so in extremely limited circumstances, involving an obligatory legal separation procedure prior to divorce, in respect of which the law of the forum contains no equivalent procedural provisions?

THE FACTS OF THE CASE

JE and KF married in Romania, on 2 September 2001. Fifteen years later, JE brought an action for divorce, also in Romania. By civil judgment of 20 February 2018, the national court established the general jurisdiction of the Romanian courts and established that the law applicable to the dispute was Italian law, pursuant to Article 8(a) of Regulation No 1259/2010, since — on the date on which the court was seized of the divorce petition — the parties were habitually resident in Italy (the parties have resided in Italy for a considerable time).

According with Italian law, a divorce petition such as the one brought by JE can be applied for only where there has been a legal separation of the spouses established or ordered by a court and at least three years have passed between the legal separation and the time at which the court was seized of the divorce petition (the statement, in reality, does not accurately describe the Italian legislation on divorce, as reformed: in 2015, a bill was passed which reduced the three-year period to a one-year period, adding that six months suffice in particular circumstances; arguably, however, the change does not affect the substance of the AG’s reasoning).

Since it had not been demonstrated that a court decision had been made to effect a legal separation of the parties and since Romanian law makes no provision for legal separation proceedings, the court ruled that those proceedings had to be conducted before the Italian courts and, accordingly, any application to that effect made before the Romanian courts was inadmissible.

THE PROPOSAL AND ITS REASONING

The Opinion submits that Article 10 of Regulation No 1259/2010 must be interpreted strictly: the expression ‘where the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce’ therein relates only to situations in which the applicable foreign law does not foresee divorce under any form.

AG elaborates his proposal in a classical, orthodox way. First, he examines the wording and the scheme of the provision. The law of the forum only applies ‘where the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce’; the wording ‘makes no provision for divorce’ cannot mean that the applicable law ‘provides for divorce under certain (substantive or procedural) conditions’. AG explains that the provision is a consequence of the universal application of the Union conflict-of-law rules in relation to divorce and legal separation, in accordance with Article 4 of the same regulation. He acknowledges that Article 10 of Regulation No 1259/2010 endorses favor divortii, but with limits. In particular, it does not cover a case where the marriage cannot be ended because certain prerequisites are not met: for instance, where the applicable law sets out restrictive grounds for divorce such as the requirement of a long(er) period of separation.

To back his opinion, AG seeks additional support in systemic arguments, which he derives from Article 13 and Recital 26. Article 13 of Regulation No 1259/2010 provides that nothing in that regulation shall oblige the courts of a participating Member State whose law does not provide for divorce to pronounce a divorce. According to Recital 26, ‘where this Regulation refers to the fact that the law of the participating Member State whose court is seized does not provide for divorce, this should be interpreted to mean that the law of this Member State does not have the institut[ion] of divorce’. AG posits that the Recital gives an explanation beyond the specific context of Article 13 on the interpretation of the expression ‘makes no provision for divorce’- hence, it also applies to Article 10, which employs the same expression.

The historical interpretation supports as well the construction of the provision proposed in the present Opinion. AG recalls that the first alternative contained in Article 10 was introduced above all with a view to Maltese law, which, at the time of drafting of the Regulation, did not provide for the granting of any divorce.

The spirit and purpose of Article 10 speak equally in favor of a strict interpretation. Through the adoption of common rules on conflict-of-laws, the participating Member States accepted the principle that their courts could be obliged to apply foreign law despite differences which this might present vis-à-vis their own national law; they also accepted limited exceptions to that principle. Article 10 is one of them: like all exceptions, it must be interpreted strictly. Moreover, an extensive interpretation would frustrate the spouses’ autonomy in relation to divorce and to legal separation (foreseen under Article 5 of the regulation), and prevent the application (pursuant to Article 8 of the regulation, in the absence of a choice by the parties) of the law which is most closely linked to them.

CONSEQUENCES OF THE ANSWER

In addition to giving advice to the CJEU, AG Tanchev suggests how it could provide guidance on the consequences of the proposed answer to the preliminary question. In this regard, following the Commission, AG proposes that the court seized apply the substantive conditions foreseen by the applicable law and forgo the application of any procedural conditions foreseen by that law, in circumstances –like in the case at hand- where the procedural law of the forum does not allow for those procedural conditions to be met.

No doubt AG’s intention is to be praised. At the same time, and because the problem the Romanian court is facing can be characterized as pertaining to procedure (the Romanian court declared the petition inadmissible, which by the way begs the question, was it applying Romanian law as lex fori , or rather Italian law?), the proposed solution may be seen a little bit in the verge of overstepping the competences of the Court (who could nevertheless include it obiter). In addition, the parallelism AG Tanchev draws with EU regulations where respect for the substance of the applicable law in the State of the forum, when the latter’s law has no equivalent (substantive) concept in law, is reached through adaptation, is questionable.

Finally, still related to this part of the proposal: AG Tanchev indicates that the Romanian court should “confirm in its decision in the divorce proceedings that that condition of legal separation was fulfilled”. Fine, except for the fact that a problem remains regarding divorce: according to Italian law at least three years must have passed between the legal separation and the time at which the court was seized of the divorce petition. How is the Romanian court going to deal with this – for, obviously, no date of separation is available? (Further: it the parties agreed on the three-years period having elapsed, will their assertion be accepted ?)

 

In spite of the open questions and doubts just described, I believe this is an Opinion that will well received. Indeed, concerning the core subject matter it is not a surprising one; it is at any rate is correct in contents and rationale, and a well articulated piece of work. And – not that common in the writings of the CJEU –  one with many references to legal doctrine.

A long overdue post I fear (I hope in the next week and a half or so to turn to draft posts which for all sorts of reasons have gotten stuck in the queue, finally to be published) on Lamesa Investments Ltd v Cynergy Bank Ltd  [2019] EWHC 1877 (Comm). Latham and Watkins have had background for some time here.

The case concerns a standard clause in an English law governed contract on ‘mandatory law’ as an excuse for contractual non-performance. Here, the clause (in a (credit) facility agreement) read: clause 9.1: (party is not in breach of the agreement if) “… sums were not paid in order to comply with any mandatory provision of law, regulation or order of any court of competent jurisdiction”.

“Regulation” was defined in the Agreement as including “any regulation, rule, official directive, request or guideline … of any governmental, intergovernmental, or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation”.

Lamesa argued that Cynergy could not rely on clause 9.1 because:

• “provision of law” meant a law that applied to a UK entity, acting in the UK, that had agreed to make a sterling payment pursuant to a contract governed by English law; and
• “mandatory” meant that the relevant law made it compulsory for Cynergy to refuse payment

‘In order to comply’ was the focus of discussions, in particular whether there was any territorial limit to it. Pelling J took a flexible approach, holding that Cynery could not reasonably be expected to have excluded the only type of sanction which it could have reasonably foreseen, namely secondary sanctions imposed by US sanctions law (at the time the parties entered into the Facility Agreement, Cynergy was aware that it was possible that US sanctions would be imposed on Lamesa).

Of interest to the blog is the brief reference to Rome I (and the Convention), at 23:

‘It was submitted on behalf of CBL and I agree that English lawyers during the period the FA was being negotiated and down to the date when it became binding would have understood a mandatory law to be one that could not be derogated from. The context that makes this probable includes the meaning given to the phrase “… mandatory provision of law …” in the Rome Convention 1980 and the Rome 1 Regulation on Choice of Law. It was not submitted by CBL that the construction for which they contend applies by operation of either regulation. It submits however and I accept that they provide some support for the submission that lawyers at the relevant time would have understood the effect of the word “mandatory” to be as I have described. It goes without saying that it was not open at any stage to either party to dis-apply the US statutes that purported to apply secondary sanctions by their agreement, nor did the parties attempt to do so either in the FA itself or afterwards.’

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 3, Heading 3.2.8, Heading 3.2.8.3.

Copropriété

Copropriété

Professor Susanne Lilian Gössl, Professor for Civil Law and Digitalization in Private Law, Comparative Law and Private International Law at Kiel University is looking for a highly skilled and motivated PhD candidate and fellow (Wissenschaftliche*r Mitarbeiter*in, 50% or 25%) to work in the areas of Civil Law and Digitalization in Private Law, Comparative Law and Private International Law.

For a detailed job description (in German) see https://www.goessl.jura.uni-kiel.de/de/aktuelles or as pdf .

The general course that Catherine Kessedjian (University of Paris II – Panthéon Assas) gave at the Hague Academy of International Law in January 2019 on Neutrals in International Law – Judges, Arbitrators, Mediators, Conciliators (Le tiers impartial et indépendant en droit international, juge, arbitre, médiateur, conciliateur) has been published in the Collected courses of the Academy.

The course is written in French, but the author has provided the following English abstract:

At a time when the role of adjudicators and neutrals is criticized in domestic as well as international law, it seemed a good idea to explore the characteristics of the women and men who participate in the act of justice, and their methods of working, either as judges, arbitrators, mediators or conciliators.

The goal of the lectures was to call the students’ attention to the fact that judicial decisions are not the only way neutrals speak to the larger public and us, legal specialists. There are many other ways that are pertinent for exploration in order to better understand how justice is rendered in international law.

International law is to be understood in the broad sense as covering both public international law and private international law. Indeed the lectures were given as the general course of the inaugural winter session of the Academy entitled “international law” and conceived as a departure from the classic dichotomy still pertinent for the summer session.

The lectures, therefore, endeavor to explore the common characteristics of all neutrals and those that may be more specifics for any of the sub categories.

Among all the topics that could have been chosen to reach the goal we had set for ourselves, only a few were indeed included in the lecture i.e. : theory of law; history; the special role of mediators and of domestic judges; architecture; allegories of justice; the personality of neutrals; impartiality; jurisdiction; cooperation and more.

Finally, it is to be noted that these are the first Hague lectures reproducing images to help the discussion. In a world where images are omnipresent, we are convinced that they contribute to a better understanding of the topics and facilitate memory to concentrate on some of the more potent messages these lectures want to convey. Several testimony of that method have been reported in the lectures themselves.

Caricature created by A. Senegacnik for Ch. 14 of C. Kessedjian’s Lectures,
Reproduced with the kind permission of the artist

The full table of contents of the Lectures can be found here.

Courts in the EU increasingly issue injunctions against anti-suit injunctions, or “anti-anti-suit injunctions”. We have already read in this blog about the French practice. The Germans are doing it as well.

Facts

One example is a decision by the Court of Appeal in Munich dated 12 December 2019 (English translation here). As in the French proceedings, at issue was a claim for patent violation. And again, the defendant raised a counter-claim for fair, reasonable and non-discriminatory (FRAND) licensing in the US and applied for an anti-suit injunction against the proceedings in Europe. 

Perhaps less usual is that the defendant resorting to this tactic was a behemoth of the German industry, the company Continental, which produces everything from tyres to electronic systems for car manufacturers. Continental had been sued in Germany by Finnish company Nokia for an alleged patent violation. Continental in turn sued Nokia in the US for FRAND licensing and applied for an anti-suit injunction there to stop the German proceedings.

The reason behind this behaviour apparently is that the US courts interpret the conditions for FRAND licensing more favourably for the licensee than their European counterparts. Defendants in patent licensing disputes therefore try to shift the battlefield to the other side of the Atlantic. Even German companies now prefer Californian over Bavarian courts, and companies called “Continental” switch to different continents.

Decision

Continental’s tactic drew the ire of the Landgericht Munich I, a tribunal of first instance. It issued an injunction against the German company, enjoining it from any anti-suit application in the US against the proceedings in Germany (English translation here). The Court of Appeal (Oberlandesgericht) in Munich affirmed.

The legal rule on which Nokia’s lawyers based their claim was quite peculiar. They resorted to nothing less than the authorisation of self-defense under the German Civil Code (sec. 227 BGB). One is accustomed to the usage of this provision in cases about pub brawls or domestic violence, but less in intellectual property rights disputes between multinational companies.

The Munich Court of Appeal felt somehow uneasy with this legal basis. They stayed in more familiar terrain by weighing the interests of the parties. The court stressed Nokia’s right to pursue its patent in court (sec. 1004 BGB applied by analogy), which would be constitutionally protected and impeded by the pending US anti-suit injunction. The defendant, on the other hand, could be expected to raise the FRAND issue in the German proceedings. Hence the decision to issue the anti-anti-suit injunction.

Group of companies – A minor complication

One peculiarity of the case is that the defendant in the German proceedings, the parent company Continental AG, was not identical to the party of the counter-proceedings in the US. Instead, these had been started had been another company of the Continental group. The court had however little problems in attributing the behaviour of the subsidiary to the parent of the same “Konzern” or group of companies.

Public international law – A major problem

What is more surprising is that the Munich court had no qualms to consider its injunction as being entirely in line with customary public international law. In the past decades, European courts, especially in Germany, have complained about the extraterritorial overreach by US courts and the violation of sovereignty through anti-suit injunction. Now they are doing the same.

The tribunal of first instance had come up with an interesting justification. In its opinion, anti-suit injunctions could not be illegal under customary public international law because the Anglo-Saxon courts had issued them for years. In other words, bad practice creates bad customary law.

The Munich Court of Appeal found an even easier excuse. It simply stated that the extraterritorial effects would be a mere reflex of the anti-anti-suit injunction and not impair the sovereignty of the US. More worryingly still, it also opined that the legality under public international law hardly mattered since the injunction was in line with the German constitution. Constitutionality trumps legality under international law – a strange and dangerous concept.

Assessment 

Anti-anti-suit injunctions are a remarkable shift from the traditional European aversion against extraterritoriality and the interference with judicial proceedings abroad. Courts in Germany and in France seem to have lost both their naivety and their innocence. They now use the same weapons as their Anglo-Saxon counterparts.

The development can be summarised in terms of the Old Testament: “An eye for an eye”. As the experience of claw-back-litigation has taught, the winning country will be the one where most assets are located. German companies will thus probably never again apply for anti-suit injunctions against proceedings in Germany.

The aim of the European courts to defend their jurisdiction is certainly understandable. Yet the mutual exchange of anti-suit injunctions across the Atlantic also has costs. What stops a US court from issuing an “anti-anti-anti-suit injunction”? In the end, civil justice becomes a power play. It is long ago that public international law incarnated the polite rules of diplomacy. We seem to be back to the state of nature.