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In 2009, AGL, a dual Italian-Israeli citizen, and SRL, an Israeli citizen, married in Milan. The spouses, who were both Jews, married religiously.

Jewish religious marriages celebrated in Italy may be given effect in the Italian legal order provided that certain requirements, set forth in an understanding concluded between the Italian government and the Union of the Italian Jewish Communities, are met. The requirements in question basically refer to the marriage process. In particular, a notice of marriage must be filed with the local civil status office prior to celebration, in accordance with the Italian civil code.

In the circumstances, the prior notice and other requirements had not been complied with. As a result, the marriage of AGL and SRL was, from the standpoint of the Italian legal system, a purely religious one.

A few months later, the spouses – who always resided in Israel – seised the Rabbinical Court of Tel Aviv seeking a declaration that their marriage was valid.

Rabbinical Courts are part of the Israeli judiciary. They deal, inter alia, with matters concerning marriage and divorce, parental responsibility and succession. Their rulings have force in the legal system of Israel.

The Tel Aviv Rabbinical Court declared the marriage between AGL and SRL to be valid.

Next, the couple sought to have the Rabbinical Court judgment recognised in Italy. Based on the provisions of the Italian Statute on Private International Law concerning the (automatic) recognition of foreign judgments, they asked the civil status officer of Milan to record the judgment in the civil status registries, so that the marriage could be regarded as producing civil  effects in Italy, as well.

The officer denied the request. He argued that the rules on the recognition of judgments had no role to play in the circumstances. At issue, in his view, was whether the marriage celebrated in Milan in 2009 ought to be given effect in Italy, not whether the Rabbinical Court’s judgment ought to be recognised. The latter, he contended, merely acknowledged that the marriage had taken place and that it had been performed in accordance with the relevant Jewish rules — two circumstances that were already known to Italian authorities and were, as such, uncontroversial.

In any case, the officer contended, the judgment given by the Tel Aviv Rabbinical Court ought to be denied effect in Italy on grounds of public policy. By seeking a judicial statement of the existence of their marriage, the spouses aimed in fact to evade the Italian provisions that determine the conditions subject to which a Jewish religious marriage may be given effect in the Italian legal system.

By a decision of 29 January 2020, the Court of Appeal of Milan, seised of the matter, ruled in favour of the couple.

The Court conceded that the marriage between AGL and SRL was initially, as a matter of Italian law, devoid of civil effects. However, as a result of the Tel Aviv judgment, the marriage had acquired civil effects in the legal system of Israel. Based on this finding, the Court of Appeal found that, contrary to the civil status officer’s opinion, what was at issue was indeed the recognition of the Rabbinical Court’s judgments, and of the civil effects it added to the marriage.

The Court went on to assess whether the conditions contemplated in the Italian Statute on Private International Law for the recognition of foreign judgments were met in the circumstances. It found that the Tel Aviv judgment complied all such conditions. In particular: the judgment originated from the country of residence and nationality of the spouses at the time when the Rabbinical Court was seised; it represented the outcome of fair proceedings; it did not contradict any previous Italian judgment.

Furthermore, the Court observed, the judgment could not be characterised as inconsistent with the ordre public of Italy. The public policy defence, it recalled, operates as an exception and can only be invoked where the recognition of a foreign judgment or the application of a foreign law would be at odds with the fundamental principles of the Italian legal order.

In the Court’s view, this did not occur in the circumstances. The non observance of the Italian rules on the marriage process does not amount, as such, to a violation of the public policy of Italy, as long as it is established that the spouses’ consent was expressed freely by each of them.

The Court noted that the fundamental principles of Italy would rather be challenged if the judgment were denied recognition. Article 8 of the European Convention on Human Rights, as interpreted by the European Court of Human Rights in Wagner v Luxembourg and other rulings, indicates that family status validly created abroad, insofar as they correspond to an established social reality, cannot be denied recognition unless very strong reasons require otherwise.

— Thanks to Marzia Ghigliazza, family lawyer and mediator in Milan, for drawing my attention to the ruling of the Court of Appeal.

In C-654/18 Interseroh Sharpston AG opined on 30 January, in answer to a German court wishing to ascertain whether a waste stream composed principally of paper products should be categorised as so-called ‘green’ waste and therefore subject to the flexible control procedure provided in the EU’s Waste Shipment Regulation 1013/2016. The referring court also asks whether such waste can still be categorised as ‘green’ if it contains up to 10% impurities.

The Regulation combines rules of purely EU origin, with a sometimes complex combination of OECD and 1989 Basel Convention rules. It generally employs a listing system with corresponding light signals (green and amber, previously also red) with the green list being the most desirable to exporters: these only require compliance with the same rules as ordinary commercial transactions.

Regardless of whether or not wastes are included on the list of wastes subject to the Green Control Procedure (Appendix 3 of the EU Regulation), they may not be subject to the Green control procedure if they are contaminated by other materials to an extent which (a) increases the risks associated with the wastes sufficiently to render them appropriate for submission to the amber control procedure, when taking into account the criteria in Appendix 6 to this Decision, or (b) prevents the recovery of the wastes in an environmentally sound manner’.

In the dispute at issue Interseroh collects used sales packaging (lightweight packaging) from private final consumers throughout Germany which it then consigns to recovery. It ships the prepared waste paper across the border for recycling in a paper factory in Hoogezand (Netherlands). New paper and new paperboard is produced from the waste paper. The Netherlands purchaser, ESKA stipulates that the waste paper must meet the following specifications. It should be composed of at least 90% used, residue-drained, system-compatible paper, paperboard or cardboard (PPC) articles and PPC-based combinations, with the exception of liquid packaging board including packaging parts such as labels etc. Also, the waste stream must contain no more than 10% impurities (‘the mixture of wastes at issue’).

The Dutch and German import cq export authorities differ as to the inclusion or not of the transported wastes at issue, with the Dutch taking a more relaxed approach on the basis of the Dutch version of the relevant Basel entry B3020.

• The Dutch version reads „De volgende materialen, mits deze niet vermengd zijn met gevaarlijke afvalstoffen:
  Oud papier en karton:
  – ongebleekt papier en karton of gegolfd papier en golfkarton; – overig papier en karton, hoofdzakelijk gemaakt van gebleekt chemisch pulp, dat niet in bulk is gekleurd; – papier en karton hoofdzakelijk gemaakt van mechanisch pulp (bv. kranten, tijdschriften en soortgelijk drukwerk); – overige, met inbegrip van: 1. gelamineerd karton, 2. ongesorteerd afval
• The German version: “Folgende Stoffe, sofern sie nicht mit gefährlichen Abfällen vermischt sind:
  Abfälle und Ausschuss von Papier und Pappe
  – ungebleichtes Papier und Wellpapier und ungebleichte Pappe und Wellpappe; – hauptsächlich aus gebleichter, nicht in der Masse gefärbter Holzcellulose bestehendes anderes Papier und daraus bestehende andere Pappe; – hauptsächlich aus mechanischen Halbstoffen bestehendes Papier und daraus bestehende Pappe (beispielsweise Zeitungen, Zeitschriften und ähnliche Drucksachen); – andere, einschließlich, aber nicht begrenzt auf: 1. geklebte/laminierte Pappe (Karton) , 2. nicht sortierter Ausschuss.
• The English version: The following materials, provided they are not mixed with hazardous wastes:
  Waste and scrap of paper or paperboard of:
  – unbleached paper or paperboard or of corrugated paper or paperboard; – other paper or paperboard, made mainly of bleached chemical pulp, not coloured in the mass; – paper or paperboard made mainly of mechanical pulp (for example, newspapers, journals and similar printed matter); – other, including but not limited to: (1) laminated paperboard, (2) unsorted scrap.

According to the wording of the German-language version, point 2 of the fourth indent covers ‘nicht sortierten Ausschuss’ (‘unsorted scrap’) and not ‘nicht sortierte Abfälle’
(‘unsorted waste’), as the Dutch Supreme Court held on the basis of the Dutch language version (‘ongesorteerd afval’). The term ‘scrap’ is not synonymous with the terms ‘waste’ or ‘mixture’. In addition, a distinction is drawn in the French language version between ‘mélange de déchets’ and ‘rebuts non triés’, just as in the English-language version between ‘mixture of wastes’ and ‘unsorted scrap’. The terms ‘scrap’ and ‘waste’ are therefore not synonymous. Since, in the Dutch language version of the heading of Basel Code B3020, the term ‘waste’ is not used, but it instead reads ‘papier, karton en papierproducten’, the term ‘afval’ in point 2 of the fourth indent in the Dutch-language version does not cover the entire entry, but only what does not come under the first three indents.

Specifically, on 20 May 2015, the Raad van State (Council of State, Netherlands) ruled in proceedings involving ESKA that a waste paper mixture, regardless of the presence of impurities, comes under Basel Code B3020. Accordingly, any such mixture of wastes constituted ‘Green’ listed waste and came within the list of wastes subject to the Green control procedure under Article 18 of Regulation No 1013/2006. It did so on the basis of the Dutch language version of Basel Code B3020. ESKA had previously been employing the stricter prior notification procedure under Article 4 of the Regulation.

Interseroh then brought an action before the referring German court seeking a declaration that it is entitled to ship the mixture of wastes at issue to other EU Member States in accordance with the Green control procedure.

Sharpston AG at 27 starts by pointing out that the shipments at issue are kosher commercial and regulatory transactions: at least 90% of the mixture is made up of what can be described generically as paper, paperboard and paper product wastes. The waste also includes a maximum of 10% impurities. This, in other words, is not a cowboyesque trafficking practice. She then explores the legislative history of the amended Annexes, paying less attention to the linguistic analysis perhaps than one might expect – object and purpose is, after all, a guiding principle in the interpretation of texts with seemingly diverging language versions. She concludes from that assessment (please refer to her Opinion itself; there is little point in me paraphrasing it here) that the lighter, green list procedure can only apply if the notifier shows with scientific evidence that the level of impurities does not prevent the recovery of the wastes in question in an environmentally sound manner. She also acknowledges at 72 (as the EC already did in its 2009 FAQs) that clarity on the issue is wanting: ‘establishing what is a tolerable level of contamination is a matter that is due (perhaps, overdue) for examination’. However given the lack of formal regulatory guidance on the issue, the Article 28 procedure of Regulation applies: where the competent authorities of the Member State of dispatch and the Member State of destination cannot agree on the classification of a particular consignment of wastes (and hence on whether the more flexible Green control procedure in Article 18 may be used), the Annex IV amber list procedure must be applied.

Geert.

(Handbook of) EU Waste Law, 2nd ed 2015, Chapter 4.

(Opinion earlier signalled here)

Une équipe de recherche, sous l’égide de la mission de recherche Droit et Justice, s’est penchée sur les procès des terroristes islamistes, en correctionnelle comme aux assises. Une recherche riche qui montre l’évolution progressive de notre justice, sa spécialisation et l’alourdissement des peines. Au risque de passer d’une justice spécialisée à une justice spéciale ?

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Generálny riaditeľ Sociálnej poisťovne Bratislava
Sécurité sociale des travailleurs migrants
Une réglementation nationale limitant le bénéfice d’une allocation instituée en faveur de certains sportifs de haut niveau aux seuls citoyens de l’État membre concerné constitue une entrave à la libre circulation des travailleurs

Uniwersytet Wrocławski / REA
Recherche, informations, éducation, statistiques
Le Tribunal a commis une erreur de droit en jugeant que l’existence d’un contrat d’enseignement entre une partie et son avocat porte atteinte à l’exigence d’indépendance du représentant en justice devant les juridictions de l’Union

In 2016, an application for the recognition of a judgment rendered by the Southern District Court of New York against the State of Iran, some of its emanations and other non-State parties was filed with a Luxembourg court.

If recognised, this U.S. judgment, which awarded 1.3 billion USD of compensatory damages and 4.7 billion USD of punitive damages to the victims of the terrorist attacks of 9 September 2001 and/or their families, would have enabled the claimants to seize Iranian assets held with a Luxembourg-based clearing house.

As it happens, the application was not not successful.

A recently published Working Paper of the MPI Luxembourg series (also available on SSRN) puts the American decision into a broader context and provides for an in-depth analysis of the grounds for refusal from the point of view of both private and public international law.

The paper takes stock of the attempts made by the families of the victims of the 9/11 terrorist attacks to enforce the New York judgment in Europe.

It brings together four different contributions, focusing on specific aspects of the Havlish saga.

To set the scene for the proper understanding of the Havlish litigations, Stephanie Law analyses the development of the U.S. legal framework on the state-sponsored terrorism exception and its impact on the U.S. proceedings, which resulted in the judgment whose recognition and enforcement is being sought in Europe.

The ruling given in March 2019 by the Luxembourg court is analysed by Vincent Richard and Edoardo Stoppioni, who deal in turn with the arguments set forth vis-à-vis non-State parties and with the use, by the Luxembourg Court, of the law on State immunity as it applies to the Iranian State and its emanations (see further on this judgment Burkhard Hess “Keine juristische Fussnote: Klagen aus 9/11 vor Luxemburgischen Gerichten”, IPRax, 5/2019, p. 442-446).

Finally, Martina Mantovani addresses the parallel attempts made by the U.S. claimants to enforce the Havlish judgments in other European Jurisdictions, which have given rise to ongoing exequatur procedures in England and in Italy.

[2020] EWHC 98 (Ch) Wilson and Maloney (bankruptcy trustees of Michael McNamara),  concerns mostly Article 49 TFEU (freedom of establishment) and Article 24(1) of the Citizens’ Rights Directive 2004/38 (equal treatment). (At 114) the critical question is whether the exclusion of pension rights on bankruptcy is something that can impact on the right of establishment, or is otherwise within the scope of Art 49 TFEU.

The substantive case at issue concerns the inclusion or not of in investment in a certain pension scheme, into the bankruptcy. My interest in the judgment lies in the succinct reference to forum shopping under insolvency regimes.

Mr McNamara was made bankrupt on 2 November 2012 on his own petition, presented that day. Prior to his bankruptcy Mr McNamara had been a high profile property developer operating primarily, if not exclusively, in the Republic of Ireland. But he and his wife had moved to London in July 2011, and the Court accepted that he had moved his centre of main interests (or COMI) from Ireland to England by the date of presentation of the petition.

Nugee J decided to refer to the CJEU for preliminary review (this having happened on 23 January, clearly one of the last if not the last UK reference to go up to the CJEU). Whether COMI was moved for forum shopping purposes is not likely to feature in the eventual judgment – for there does not seem to be any suggestion that the move of COMI to England had been properly established.

Geert.

 

La Cour de cassation nous éclaire dans une affaire mélant concours d’infractions, récidive, condamnations pour partie prononcées à l’étranger et application de la loi dans le temps

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