Agrégateur de flux

Les concessions de service de transport aérien sont qualifiées de délégations de service public lorsqu’elles sont conclues par une collectivité territoriale. Cette qualification entraîne l’application des règles de la commande publique.

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La protection des résidents de longue durée sur le territoire d’un État membre contre les mesures d’éloignement s’étend à l’ensemble de ces mesures, indépendamment de leur nature. Un résident de longue durée ne peut donc pas être expulsé pour le seul motif qu’il a été condamné à une peine privative de liberté supérieure à un an.

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La Convention franco-algérienne du 27 août 1964 impose au juge, fût-il premier saisi, devant qui est invoquée une décision rendue dans l’autre État, de vérifier, au besoin d’office, si cette décision remplit les conditions prévues pour jouir de plein droit de l’autorité de chose jugée.

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This volume (2017, 295 pp., € 79.00, ISBN 978-3-8487-3736-9) is a collection of edited papers (all in English) presented on the occasion of the 6th Seoul-Freiburg Law Faculties Symposium held in Freiburg (Germany) in June 2016. Since its inception in 1996, the cooperation and academic exchange between the Law Faculties of the Seoul National University (SNU) and the Albert-Ludwigs-Universität Freiburg has flourished and contributed substantially to the mutual understanding of legal thought and research in the two legal cultures and jurisdictions, keeping alive the old and precious tradition of maintaining a close relationship between Korean and German law. Like previous symposia, the 2016 Symposium on the „Relationship between Legislature and Judiciary“ was devoted to a rather broad and abstract subject which is of fundamental relevance for both countries, covering constitutional law, legal theory, private law (including private international law), criminal law, commercial law, and administrative law. The symposium was supported by the Thyssen Foundation (Cologne).

The volume is edited by Jan von Hein, Hanno Merkt, Sonja Meier, Alexander Bruns, Yuanshi Bu, Silja Vöneky, Michael Pawlik, and Eiji Takahashi. It contains contributions by Un Jong Pak, Matthias Jestaedt, Ralf Poscher, Hong Sik Cho, Kye Joung Lee, Frank Schäfer, Jinsu Yune, Jan von Hein, Sank Won Lee, Ok-Rial Song, Boris Paal, Maximilian Haedicke, Seongwook Heo, and Dongjin Lee.
Further information is available on the publisher’s website here.

A post suited to be this year’s last, given the religious context of the current holiday period: Wahl AG advised late November in C-426/16. See my previous posts on the issue. A European Regulation (1099/2009) provides for an unclear, and conditional,  exemption from a requirement of stunning animals for religious slaughter. (Regularly the practise is also called ‘ritual’; including in current Opinion. ‘Religious’ must be the preferred term).

Practised in particular by the Jewish (Shechita; leading to ‘kosher’ meat) and Muslim (Zabihah; with halal meat) faith, a core aspect of the practice is that animals are not stunned prior to slaughter. The science on the effect of stunned or unstunned slaughter is equivocal. What is certain is that neither stunned nor unstunned slaughter, when carried out incorrectly (well documented in the case of stunned slaughter) aids the welfare of the animal.

The Flemish Minister responsible for animal welfare announced that, from 2015 onwards, he would no longer issue approvals for temporary slaughter plants at which religious slaughtering could be practised during the Islamic Feast of the Sacrifice because such approvals in his view were contrary to EU legislation, in particular the provisions of Regulation 1099/2009. The muslim community objects to the discontinuation of temporary slaughter plants.

The Advocate-General’s Opinion is lengthy, and there is a lot to chew on.  There is little point in rehashing all the AG’s points: readers are best referred to the Opinion itself. Of note however is

• Firstly, the AG’s attempt strictly to delineate the issue.

The case he suggests is simply about what material conditions, in terms of equipment and operating obligations, must accompany unstunned slaughter in order for it to comply with the relevant EU rules. He suggests a rephrasing of the referring court’s questions in that direction. Along these lines he also in substance refuses to entertain the questions as to the validity of Regulation 1099/2009 itself, or the exemption from the duty to use approved slaughterhouses under the Regulation’s ‘cultural’ exception. (See footnote 13). In my view the Regulation is very vulnerable on this issue: sporting and cultural events are entirely excluded from its scope of application; religious rites are subject to a qualified exemption. That to me cannot survive a discrimination test.

The Brussels court had given the case a much wider scope: it suggested that the contested Flemish decision creates a limitation on the exercise of freedom of religion and undermines Belgian customs relating to religious rites, since it obliges Muslims to perform the ritual slaughter of the Islamic Feast of the Sacrifice in slaughterhouses that have been approved in accordance with Regulation No 853/2004. In the opinion of that court, this limitation is neither relevant nor proportionate in order to attain the legitimate objective of protecting the welfare of animals and human health (at 20). The AG however sees no limitation of freedom of religion at all, resulting from the general obligation to use approved slaughterhouses.

• Despite the attempt at delineation, the background to the case is undeniable and filters through in the Opinion.

If only because the AG has to complete the analysis should the CJEU disagree with his view that freedom of religion is not being limited, he does review the legality of a total ban on slaughtering other than in plants that have been approved in accordance with the rules established in Annex III to Regulation No 853/2004.

First of all he refers to European Commission audits of the previously approved temporary slaughterhouses to make the point that they protected animal welfare sufficiently. He directly criticises the Regulation for its arguably disproportionate criteria in this respect: see in particular at 127.

Religious slaughter falls squarely within the European Convention of Human Rights Article 9’s freedom of religious expression. It is clear that the AG believes that the ban on unstunned slaughter other than in approved abattoirs, in the name of animal welfare or otherwise,  offends freedom of religious expression to such a degree that it simply must not pass: para 133 and the preceding argumentation is very clear.

The AG’s reasoning holds all the more for a total ban un unstunned slaughter full stop. That is the clear implication of this Opinion and one which must be welcomed.

Guten Rutsch ins neue Jahr!

Geert.

By virtue of Article 42 Law 4509/2017, a new provision has been added to the Code of Civil Procedure, bearing the title of the EU Regulation. Article 738 A CCP features 6 paragraphs, which are (partially) fulfilling the duty of the Hellenic Republic under Article 50 EAPO. In brief the provision states the following:

• 1: The competent courts to issue a EAPO are the Justice of the Peace for those disputes falling under its subject matter jurisdiction, and the One Member 1st Instance Court  for the remaining disputes. It is noteworthy that the provision does not refer to the court, but to its respective judge, which implies that no oral hearing is needed.
• 2: The application is dismissed, if

1. it does not fulfil the requirements stipulated in the Regulation, or if
2. the applicant does not state the information provided by Article 8 EAPO, or if
3. (s)he does not proceed to the requested amendments or corrections of the application within the time limit set by the Judge.

Notice of dismissal may take place by an e-mail sent to the account of the lawyer who filed the application. E-signature and acknowledgment of receipt are pre-requisites for this form of service.

The applicant may lodge an appeal within 30 days following notification. The hearing follows the rule established under Article 11 EAPO. The competent courts are the ones established under the CCP.

• 3: The debtor enjoys the rights and remedies provided by Articles 33-38 EAPO. Without prejudice to the provisions of the EU Regulation, the special chapter on garnishment proceedings (Articles 712 & 982 et seq. CCP) is to be applied.
• 4: If the EAPO has been issued prior to the initiation of proceedings to the substance of the matter, the latter shall be initiated within 30 days following service to the third-party.

If the applicant failed to do so, the EAPO shall be revoked ipso iure, unless the applicant has served a payment order within the above term.

• 5: Upon finality of the judgment issued on the main proceedings or the payment order mentioned under § 4, the successful EAPO applicant acquires full rights to the claim.
• 6: The liability of the creditor is governed by Article 13 Paras 1 & 2 EAPO. Article 703 CCP (damages against the creditor caused by enforcement against the debtor) is applied analogously.

Some additional remarks related to the Explanatory Report would provide a better insight to the foreign reader.

1. There is an explicit reference to the German and Austrian model.
2. The placement of the provision (i.e. within the 5th Book of the CCP, on Interim Measures) clarifies the nature of the EAPO as an interim measure, despite its visible connotations to an order, which is regulated in the 4th chapter of the 4th Book, on Special Proceedings. Nevertheless, the explanatory report acknowledges resemblance of the EAPO to a payment order.
3. There is no need to provide information on the authority competent to enforce the EAPO, given that the sole person entrusted with execution in Greece is the bailiff.

The initiative taken by the MoJ is more than welcome. However, a follow-up is imperative, given that Article 738 A CCP does not provide all necessary information listed under Article 50 EAPO.

This report is provided by Dr. Wenliang Zhang, who is currently a lecturer in the Law Scool of Renmin U, China (PRC).

Against the lasting global efforts to address the issue of recognition and enforcement of civil and commercial judgments (“REJ”), some scholars from Mainland China, Japan and South Korea echoed from a regional level, and convened for a seminar on “Recognition and Enforcement of Judgments between China, Japan and South Korea in the New Era”. The seminar was held in School of Law of Renmin University of China on December 19, 2017 and the participants were involved in discussing in depth the status quo and the ways out in relation to the enduring REJ dilemma between the three jurisdictions, especially that between China and Japan.

Unfortunately, despite the immense volume of civil and commercial interactions, China and Japan have been stuck in the REJ deadlock ever since China first refused to recognize Japanese judgments in the infamous 1994 case Gomi Akira. After this misfortune, both Chinese and Japanese courts have waged rounds of repeated refusals or revenges, forming a vicious circle in the guise of the so-called reciprocity. The Sino-Japanese REJ stalemate is considered to be illustrative of the most formidable blockades lying on the way to free movement of judgments. Between China and South Korea, the REJ future is promising. Although China refused to recognize, at least in one case, Korean judgments for lack of reciprocity, Korean courts have nevertheless recognized Chinese courts on a reciprocity basis. The positive move by Korean courts may well pave the way for Chinese courts to recognize Korean judgments in the future.

For smooth REJ, understanding must be ensured between the three jurisdictions and mutual trust should also be established. In light of China’s recent positive movement in applying reciprocity, there may exist a way out for the REJ deadlock if the other two jurisdictions could well join the trend. The papers presented for the seminar will appear in a special 2018 issue of Frontiers of Law in China:

1. Yuko Nishitani, Coordination of Legal Systems by Recognition of Judgments ? Rethinking Reciprocity in Sino-Japanese Relationships
2. Kwang Hyun Suk, Recognition and Enforcement of Foreign Judgments among China, Japan and South Korea: Korean Law Perspective
3. Qisheng He, Wuhan University Law School Topic: Judgment Reciprocity among China, Japan and South Korea: Some Thinking for Future Cooperation
4. Wenliang Zhang, To break the Sino-Japanese Recognition Feud – Lessons Learnt As Yet
5. Lei Zhu, The Latest Development on the Principle of Reciprocity in the Recognition and Enforcement of Foreign Judgments in China
6. Yasuhiro Okuda, Unconstitutionality of Reciprocity Requirement for Recognition and Enforcement of Foreign Judgments in Japan.

The upcoming negotiations regarding the United Kingdom’s exit from the European Union are of great interest to politicians, economists, the public and academics. The withdrawal agreement will set the course for the economic relations between the EU and the UK, while taking into account that it might have a considerable impact on the binding strengths of the European integration.

In this context, the Mannheim Centre for Competition and Innovation (MaCCI), a joint research initiative of the Faculty of Law of Mannheim University and the ZEW (Centre for European Economic Research) together with the European Research Centre for Economic and Financial Governance (EURO-CEFG) of the Universities of Leiden, Delft and Rotterdam will host an interdisciplinary conference on 25/26 January 2018 in Mannheim to raise crucial questions and challenges with respect to the Brexit negotiations and discuss them from both the legal and economic perspective.

The conference will consist of three parts, the first one dealing with the bargaining positions of the EU and the UK. The second part will look into the future relations: which type of trade agreement could serve as a model and what are the respective requirements and economic consequences? Lastly, the third part will focus on specific sectoral issues regarding for instance the future embodiment of cross-border trade and financial services or ensuring the unity of law.

Registration for this conference is possible here.

Find the detailed programme here.

Non lieu à renvoi

Non lieu à renvoi

 

By a judgment Orlandi and Others v. Italy delivered on December 14 the ECtHR held that the lack of legal recognition of same sex unions in Italy violated the right to respect of private and family life of couples married abroad.

The case concerned the complaint of six same sex-couples married abroad (in Canada, California and the Netherlands). Italian authorities refused to register their marriages on the basis that registration would be contrary to public policy. They also refused to recognize them under any other form of union. The complaints were lodged prior to 2016, at a time when Italy did not have a legislation on same-sex unions.

The couples claimed under articles 8 (right to respect of private and family life) and 14 (prohibition of discrimination) of the Convention, taken in conjunction with article 8 and 12 (right to marry), that the refusal to register their marriages contracted abroad, and the fact that they could not marry or receive any other legal recognition of their family union in Italy, deprived them of any legal protection or associated rights. They also alleged that “the situation was discriminatory and based solely on their sexual orientation” (§137).

Recalling that States are still free to restrict access to marriage to different sex-couples, the Court indicated that nonetheless, since the Oliari and others v. Italy case, States have an obligation to grant same-sex couples “a specific legal framework providing for the recognition and the protection of their same-sex unions” (§192).

The Court noted that the “the crux of the case at hand is precisely that the applicants’ position was not provided for in domestic law, specifically the fact that the applicants could not have their relationship – be it a de facto union or a de jure union recognized under the law of a foreign state – recognized and protected in Italy under any form” (§201).

It pointed out that although legal recognition of same-sex unions had continued to develop rapidly in Europe and beyond, notably in American countries and Australia, the same could not be said about registration of same-sex marriages celebrated abroad. Giving this lack of consensus, the Court considered that the State had “a wide margin of appreciation regarding the decision as the whether to register, as marriage, such marriages contracted abroad” (§204-205).

Thus, the Court admitted that it could “accept that to prevent disorder Italy may wish to deter its nationals from having recourse in other States to particular institutions which are not accepted domestically (such as same-sex marriage) and which the State is not obliged to recognize from a Convention perspective” (§207).

However, the Court considered that the refusal to register the marriages under any form left the applicants in “a legal vacuum”. The State has failed “to take account of the social reality of the situation” (§209). Thus, the Court considered that prior to 2016, applicants were deprived from any recognition or protection. It concluded that, “in the present case, the Italian State could not reasonably disregard the situation of the applicants which correspond to a family life within the meaning of article 8 of the Convention, without offering the applicants a means to safeguard their relationship”. As a result, it ruled that the State “failed to strike a fair balance between any competing interests in so far as they failed to ensure that the applicants had available a specific legal framework providing for the recognition and the protection of their same-sex union” (§ 210).

Thus, the Court considered that there had been a violation of article 8. It considered that, giving the findings under article 8, there was no need to examine the case on the ground of Article 14 in conjunction with article 8 or 12. (§212).

 

 

 

Union européenne - Portée du certificat E 101

Pourvoi c/Cour d'appel de Montpellier, Chambre de l'instruction, 15 décembre 2017

Pourvoi c/ Cour d'appel de Paris, Chambre, 15 juin 2017

Tribunal d'instance d'Angoulême, 6 décembre 2017

Tribunal de grande instance de Paris, 28 juillet 2017

Conseil de prud'hommes de Lyon, 12 décembre 2017