Agrégateur de flux

Le Conseil constitutionnel examinait mardi 17 avril la « QPC Frank Berton ».

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Le Conseil constitutionnel examinait mardi 17 avril la « QPC Frank Berton ». 

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Egenberger
Principes du droit communautaire
L’exigence d’appartenance religieuse pour un poste au sein de l’église doit pouvoir être soumise à un contrôle juridictionnel effectif

Krüsemann e.a.
Transport
Une « grève sauvage » du personnel navigant suite à l’annonce surprise d’une restructuration ne constitue pas une « circonstance extraordinaire » permettant à la compagnie aérienne de se libérer de son obligation d’indemnisation en cas d’annulation ou de retard important de vol

Commission / Pologne
Environnement et consommateurs
Les opérations de gestion forestière concernant le site Natura 2000 Puszcza Białowieska prises par la Pologne enfreignent le droit de l’Union

B
Citoyenneté européenne
Le bénéfice de la protection renforcée contre l’éloignement du territoire est notamment subordonné à la condition que l’intéressé dispose d’un droit de séjour permanent

It has not been yet noted on this blog that the CJEU has recently settled a classic problem of characterisation that has plagued German courts and academics for decades (CJEU, 1 March 2018 – C-558/16, Mahnkopf, ECLI:EU:C:2018:138). The German statutory regime of matrimonial property is a community of accrued gains, i.e. that each spouse keeps its own property, but gains that have been made during the marriage are equalised when the marriage ends, i.e. by a divorce or by the death of one spouse. According to § 1371(1) of the German Civil Code (Bürgerliches Gesetzbuch – BGB), the equalisation of the accrued gains shall be effected by increasing the surviving spouse’s share of the estate on intestacy by one quarter of the estate if the property regime is ended by the death of a spouse; it is irrelevant in this regard whether the spouses have made accrued gains in the individual case. How is this claim to be characterised? In the course of the German discussion, all solutions had been on the table: some have advocated to classify the issue as a part of succession law only, others have argued for characterising the issuse as belonging to the field of matrimonial property law, and a minority opinion has developed a so-called “double characterisation”, i.e accepting the spouse’s share in the estate only if both the applicable succession and matrimonial property law would countenance such a solution. In 2015, the German Federal Court of Justice (Bundesgerichtshof – BGH), ruling on former autonomous choice of law rules, had settled the issue in favour of applying the German conflicts rules on matrimonial property, mainly arguing that § 1371(1) BGB determines what is left to the estate after the gains accrued during the marriage have been equalised (BGHZ 205, 289). The Court argued that, for practical reasons, the means that the provision deploys to allocate the gains are found in succession law, but its function is to deal with the dissolution of a marriage because of the death of one of the spouses. If frictions arose between the law applicable to matrimonial property and the rules governing succession – e.g. a widow receiving nothing although the succession law and the matrimonial property regime would grant her a share if applied in isolation –, such problems would have to be solved by the technique of adaptation.

In light of the Europeanisation of private international law, however, it had become doubtful whether this approach would remain valid within the context of the Succession Regulation (Regulation (EU) No. 650/2012). A pertinent question was referred to the CJEU by the Kammergericht (Higher Regional Court Berlin). Following the conclusions by AG Szpunar, the CJEU now has decided the case in diametrical opposition to the earlier judgment of the BGH, by adopting a purely succession-oriented characterisation. The CJEU argues that “Paragraph 1371(1) of the BGB concerns not the division of assets between spouses but the issue of the rights of the surviving spouse in relation to assets already counted as part of the estate. Accordingly, that provision does not appear to have as its main purpose the allocation of assets or liquidation of the matrimonial property regime, but rather determination of the size of the share of the estate to be allocated to the surviving spouse as against the other heirs. Such a provision therefore principally concerns succession to the estate of the deceased spouse and not the matrimonial property regime. Consequently, a rule of national law such as that at issue in the main proceedings relates to the matter of succession for the purposes of Regulation No 650/2012” (para. 40). The main reason, however, is to ensure that the European Certificate of Succession remains workable in practice by giving a true and comprehensive picture of the surviving spouse’s share in the estate, no matter whether domestic law achieves this result by inheritance law alone or rather by a combination of matrimonial property and succession law (see in particular paras. 42 et seq.). It remains to be seen how much scope this approach will leave to an application of the European Matrimonial Property Regulation (Regulation (EU) No. 2016/1103), which also covers the liquidation of the matrimonial property regime as a result of the death of one of the spouses. Whereas the law applicable to matrimonial property is, in principle, stabilised at the first common habitual domicile of the spouses, the applicable succession law is changed much more easily – it suffices that the deceased spouse had acquired a new habitual residence before his or her death. Thus, an extension of the Succession Regulation to the detriment of the Matrimonial Property Regulation may disappoint legitimate expectations of the surviving spouse concerning the allocation of accrued gains. The CJEU, however, does not seem to worry too much about this aspect, which was not problematic in the case at hand (para. 41). Future cases may be more enlightening in this regard.

Le lundi 26 mars 2018, la Cour de cassation a rendu public un projet de textes sur le filtrage des pourvois, véritable proposition « clés en main » à l’intention du gouvernement. Une telle réforme serait-elle conforme à la Convention européenne des droits de l’homme ?

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Par un avis rendu le 11 avril, le Conseil d’État a précisé qu’un étranger faisant l’objet d’une mesure de transfert qui ne dispose que d’une domiciliation postale peut être assigné à résidence.

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On Monday, 23 April 2018, the Erasmus School of Law of Erasmus University Rotterdam (Netherlands) will host a national workshop that takes place within the framework of the research project “Informed Choices in Cross-Border Enforcement” (IC²BE). Funded by the Justice Programme (2014-2020) of the European Commission, the project aims to assess the working in practice of the “second generation” of EU regulations on procedural law for cross-border cases, the European Enforcement Order, European Order for Payment Procedure, the European Small Claims Procedure and the Account Preservation Order. The project has the objective to create a database of national case law. The project is led by the University of Freiburg (Prof. Jan von Hein), and partners are the MPI Luxembourg and the universities of Antwerp, Complutense, Milan, Rotterdam, and Wroclaw.

Four speakers will present the European procedures and share experiences on the application of the procedures in the Netherlands. The speakers are: Prof. C.H. (Remco) van Rhee (University of Maastricht), Kasper Krzeminski (Lawyer at Nauta Dutilh), Jeroen Nijenhuis (judicial officer, board member Royal Professional Organization of Judicial Officers), and Eva Calvelo Muiño (director European Consumer Centre Netherlands). The workshop and roundtable are chaired by Xandra Kramer (Erasmus University Rotterdam).

The language of the workshop is Dutch. Partcipation is free of charge, but requires registration. Further information on the program and on how to register is available here: Workshop IC2BE NL-Rotterdam

Prof. Makridou and Prof. Diamantopoulos are hosting on 23/04/2018 a seminar on the law of evidence in Spain and Greece. The event starts at 09.00 and will take place in the conference room of the Central Library of the Aristotle University of Thessaloniki.

The program of the seminar is the following:

CHAIRMAN

Prof. Konstantinos Polyzogopoulos, National and Kapodistrian University of Athens

SPEAKERS

Prof. Fernando Gascón Inchausti, Complutense University of Madrid

Prof. Enrique Vallines Garcia, Complutense University of Madrid

Prof. Kalliopi Makridou,  Aristotle University of Thessaloniki

Ass. Prof. Ioannis Delikostopoulos, National and Kapodistrian University of Athens

CONCLUSIONS

Prof. Georgios Diamantopoulos, Aristotle University of Thessaloniki

 

This seminar forms part of a project initiated by Prof. Makridou and Prof. Diamantopoulos back in 2014. In the course of the past 5 years, the professors have edited three volumes, published in the series ‘Greek and Foreign Civil Procedural Systems’, Sakkoulas Publications.

Vol. 1: Issues of Estoppel and Res Judicata in Ango-American and Greek Law (2014)

Vol. 2: Civil trial of first and second instance according to Swiss and Greek Law (2014)

Vol. 3: Provisional measures in Italian and Greek Law  (2016)

Our paper on the innovation principle, with Kathleen Garnett and Leonie Reins is just out in Law, Innovation and Technology. We discuss how industry has been pushing for the principle to be added as a regulatory driver. Not as a trojan horse: industry knocks politely but firmly at the EU door, it is then simply let in by the European Commission. We discuss the ramifications of such principle and the wider consequences for EU policy making.

Happy reading.

Geert.

(Handbook of) EU Environmental Law (with Dr Reins), 1st ed. 2017, Chapter 2.

À Paris, la situation s’enlise. Ailleurs, la ministre de la justice a demandé le démontage des box dits barreaudés et « un travail » sur les box sécurisés.

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Non lieu à renvoi

Vente commerciale

Non lieu à renvoi

Des citoyens des régions séparatistes de l’est de l’Ukraine ont créé un tribunal qui doit juger des responsables de crimes de guerre qui auraient été commis par les forces gouvernementales. Une initiative qualifiée de « performance politique » par une organisation de la société civile.

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Innovating Business Courts: A European Outlook

On 10 July 2018, a seminar will be held on the establishment of international business courts in a number of Member States. It aims to discuss these initiatives, in particular the novelties in the court administration and the procedural rules, to exchange views on the possible impact on international commercial and complex litigation, and to reflect on the challenges ahead.

The seminar is organised by Erasmus School of Law (ERC project ‘Building EU Civil Justice’) of Erasmus University Rotterdam, in collaboration with the Max Planck Institute for Procedural Law Luxembourg, and the Montaigne Centre for Judicial Administration and Conflict Resolution (Utrecht University)

More information on the program and how to register will follow soon!

Seminar International Business Courts – 10 July 20…

Yehya Badr, Associate Professor at the Alexandria University, Egypt, published an article “A Cure From Rome for Montreal’s Illness: Article 5 of the Rome I Regulation and Filling the Void in the 1999 Montreal Convention’s Regulation of Carrier’s Liability for Personal Injury”, in (2018) 83 JOURNAL OF AIR LAW AND COMMERCE 83.  The abstract reads:

“An examination of the 1999 Montreal Convention shows that the drafters did not intend to lay down a comprehensive treaty that would organize a carrier’s liability for personal injury to passengers. They opted to achieve a certain level of uniformity through enacting a set of rules that tackled several key issues such as the grounds for a carrier’s liability, the available defenses, and the limits on the recoverable damages. Consequently, some unaddressed issues created a void in the Montreal Convention and were then left without a clear remedy. In this article, a distinction is made between two types of voids: first, the definitional void describes the lack of definition for several key terms used in the Montreal Convention, such as “accident” and “carrier.” Second, the regulatory void describes the lack of rules to address issues such as determining the effect of a passenger’s contributory negligence as a defense for liability and the right of action. This article demonstrates that national courts have resorted either to the forum’s law or the forum’s choice-of-law rules to fill the void in the Montreal Convention. As a result, international uniformity of results cannot be achieved nor is there any predictability. This article recommends the adoption of Article 5 of the Rome I Regulation as a solution to this problem. Doing so would give both parties the freedom to choose a law from a predetermined list, and fill the above mentioned voids, while providing alternative choice-of-law rules if the parties decided not to choose a law to govern their contract for air carriage.”

The full text can be downloaded here.

The last issue of the “Revue critique de droit international privé” will shortly be released.

It contains several casenotes and three articles.

The first one is authored by Gilles Cuniberti and Sara Migliorini. It discusses the issues of private international law raised by the European Account Preservation Order procedure established by Regulation (EU) no 655/2014. After presenting the scope of the Regulation, it addresses the issues of jurisdiction, choice of law, and enforcement of judgments arising under the new instrument.

The second article is authored by Gerald Goldstein. It deals with the « legal certainty exception » under Dutch law.

Born out of a deep internationalist perspective, section 9 of Book 10 of the Civil code of the Netherlands codified a new general exception to the application of a conflict rule. Under this « legal certainty exception », a court may apply a law applicable under the private international law of a foreign State involved, in contravention to the law designated by the Dutch private international law, whenever doing otherwise would constitute an unacceptable violation of the legitimate expectations of the parties or of legal certainty.

The legal certainty exception’s function is to avoid a serious lack of foreseeability possibly leading to a limping situation, stemming from the application of the law normally applicable under the conflict of law rule of the forum. Such a general and exceptional rule based on conflict justice aims to coordinate conflicting systems of private international law by allowing a measure of flexibility into the conflict of law resolution. Taking globalization into consideration, this rule gives a broader role to private parties. Its effect is to allow a court a discretionary power to put the conflict rule into perspective while upsetting the usual hierarchy of private international law principles. Unlike the escape clause, the legal certainty exception will give predominance to foreseeability over proximity. It will designate a law which is not necessarily the law having objectively the closest connection to the situation but the law applicable under the subjective expectations of the parties or the law whose effectivity should not be altered.

In order to limit the disturbing impact of the legal certainty exception due to the discretionary nature of its intervention, cumulative conditions are required. The parties to the relationship must have erroneously, albeit legitimately, believed that a law applied under the private international law of a foreign State involved in such relationship. In addition, to ignore this state of fact would constitute an unacceptable violation of the legitimate expectations of the parties or of legal certainty.

A comparative analysis between the legal certainty exception and other already known notions allows to state that while presenting some similarities with some of them (among them, the conflict of systems theory, the recognition method and a subsidiary unilateral system of conflict of laws) the legal certainty exception keeps its singularity.

The third article is authored by Christian Kohler. It discusses the new German legislation on marriage and private international law.

A full table of contents is available here.