Agrégateur de flux

TofuTown.com
Agriculture
Les produits purement végétaux ne peuvent pas, en principe, être commercialisés avec des dénominations qui, telles les dénominations « lait », « crème », « beurre », « fromage » ou « yoghourt », sont réservées par le droit de l’Union aux produits d’origine animale

Menini et Rampanelli
Rapprochement des législations
Le droit de l’Union ne s’oppose pas à une réglementation nationale qui prévoit, dans les litiges impliquant des consommateurs, qu’une médiation obligatoire soit menée avant tout recours juridictionnel

La Rivista Freedom, Security & Justice: European Legal Studies (su cui si veda questo post) e l’Osservatorio sullo Spazio europeo di libertà, sicurezza e giustizia presso il Dipartimento di Scienze Giuridiche dell’Università di Salerno organizzano un convegno dal titolo Il processo di integrazione europea tra limiti e antinomie: cittadinanza, immigrazione e identità nazionali. L’evento, realizzato in collaborazione con il Gruppo di interesse sui Diritti fondamentali e sulla cittadinanza nello spazio di libertà, sicurezza e giustizia della Società italiana di diritto internazionale e diritto dell’Unione europea (SIDI), è programmato per il mese di novembre 2017.

Gli organizzatori hanno indetto un call for papers per ricevere e selezionare i contributi riguardanti il tema del convegno, da destinare in seguito al terzo fascicolo della Rivista. Gli interessati sono invitati ad inviare l’abstract del proprio contributo all’indirizzo slsg@unisa.it entro il 30 giugno 2017. L’abstract, in lingua italiana, inglese o spagnola, non dovrà superare i 9.000 caratteri (spazi inclusi).

Maggiori informazioni disponibili consultando la locandina della call for papers, reperibile qui.

 

The periodical Freedom, Security & Justice: European Legal Studies (also mentioned in this post) and the Observatory on the European area of freedom, security and justice of the Department of legal science of the University of Salerno organizes a conference called Il processo di integrazione europea tra limiti e antinomie: cittadinanza, immigrazione e identità nazionali (the process of European integration between limits and antinomies: citizenship, immigration and national identities). The event, achieved in collaboration with the Group of interest on fundamental rights and on immigration in the area of freedom, security and justice of the Italian society of International Law (SIDI-ISIL), is scheduled for November 2017.

The organizers have announced a call for papers in order to receive and select the papers regarding the topic of the conference, which will be later published in the third issue of the periodical. Whoever is interested in participating in the call for papers is invited to send the abstract of his or her paper to the address slsg@unisa.it within 30 June 2017. The abstract may be written in Italian, English or Spanish and must not exceed 9.000 characters (spaces included).

Further information may be found on the poster of the call for papers, available here.

Le 22 mai 2017, la Cour européenne des droits de l’homme a actualisé les différentes catégories de priorités des affaires relevant de sa politique de priorisation.

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The Gibraltar Betting and Gaming Association Limited et The Queen
Libre prestation des services
Le principe de libre prestation de services garanti par le droit de l’Union ne s’applique pas entre Gibraltar et le Royaume-Uni

From 18 September to 22 September 2017, the Department of Law of the University of Pavia, in cooperation with the Almo Collegio Borromeo and with the support of ELSA Pavia (European Law Students Association – Pavia Chapter), will host a Summer School in English on Dispute Resolution: A Multifaceted Approach. Further information can be found here.

Dal 18 al 22 settembre 2017, il Dipartimento di Giurisprudenza dell’Università di Pavia organizza insieme all’Almo Collegio Borromeo e con il supporto dell’associazione ELSA – Pavia (European Law Students Association – Pavia Chapter) una Summer School in inglese dal titolo Dispute Resolution: A Multifaceted Approach. Per maggiori informazioni consultare questa pagina.

Tribunal des affaires de sécurité sociale d'Évry, 03 janvier 2017

Cour d'appel de Bourges, chambre de l'application des peines, 1er juin 2017

Tribunal de Grande Instance de Chalon-sur-Saône, 29 mai 2017

Thank you very much indeed Sarah Venn and Emma Hynes both for flagging Garcia v BIH, Total Gabon and Sigma, [2017] EWHC 739 (Admlty), and (Emma) for providing me with copy (Bailii are not yet running it). This case is extremely suited to an oral exam of conflict of laws: in a written exam to many issues would have to be discussed. (Mine this term are mostly written. Hence I’ll run this piece early).

Claimant is a French national who worked as a professional diver offshore Gabon, West Africa, and suffered catastrophic brain injury which he blames on poor working practices on the second defendant’s site (Total Gabon), which is where he was working. He was employed by first defendant BIH, a UK based company, with choice of court and governing law made for English courts cq English law. First defendant is clearly domiciled in the UK and the Brussels I Regulation clearly applies to it. The third defendant Sigma, was contracted by Total Gabon. Claimant’s position is that he was deployed by BIH to work under the control of Sigma on the site which was, or should have been, supervised by Total Gabon. Total Gabon claim the contractual relationships between it and Sigma prevent a claim against the former.

BIH is small fish which may even have been struck off the company register. It is clear that plaintiff will not receive from BIH the amounts he needs for his constant medical care.

A default judgment was issued against BIG who did not engage with proceedings – at any rate jurisdiction against BIG per Owusu (with which readers of this blog are now ad nauseam familiar) could not be dismissed; . Total Gabon contest jurisdiction on the basis that England and Wales is not the appropriate forum.

This is not said in so many words in the Judgment however the presence of an anchor defendant per Article 4 Brussels I Recast, is of no relevance where the co-defendants are not domiciled in the EU. The regulation cannot be used to justify such anchor, residual conflicts rules take over.

Jervis Kay QC AR considers many cases which I have reported on before: VTB, Owusu, Lungowe, Spiliada. Lungowe in particular is considered by Mr Kay, including the issue of abuse of the use of anchor defendants and (at 23 in fine) the acknowledgment, implicitly (I wrote it explicitly in my review of the case) that of course EU precedent in this respect is pro inspiratio only.  Applying English residual conflicts rules, the judge then reviews whether there is a serious case (‘a real prospect of succeeding’) that could be made against Total Gabon, either one in tort or one in contractual liability. He found there is such real prospect, for both, but especially for tort.

However the case eventually (access to justice issues in Gabon were not flagged neither discussed) stumbles on the question whether the English courts would be the most appropriate forum: it is found they are not. Inspiration is found especially in Erste Group Bank [2015] EWCA Civ 379, a case in which forum non conveniens was applied even against an England-domiciled defendant because there had already been submission to Russian jurisdiction. In Garcia, the Court applies Erste per analogiam: the parallel, Mr Kay suggests, is that the case against the first defendant has effectively been wrapped up. The spectre of competing judgments therefore, Mr Kay holds, does not arise (at 36) and England is therefore not the appropriate forum. If the case is appealed I would imagine this altogether brief consideration of appropriateness and the parallel seen with Erste, I would imagine would be its Achiless heel.

(One of the considerations which defendant, per VTB, considers, is that as a rule of thumb, Gleichlauf is to be preferred (I have often found this a less attractive part of the Supreme Court’s ruling). Which is why defendant considers Rome II: if the English courts were to hear the case, they would have to apply Rome II even if their jurisdiction is a result of residual English conflicts rules).

An alternative action for Mr Garcia, one imagines, would have been (or perhaps it still is) to use Total France SA as anchor in France, to try and have the subsidiary’s actions assigned to it: a more classic CSR case.

Anyways, I think you will agree that one could have a good chinwag on this judgment at oral exam.

Geert.

Hannah Dittmers, LL.M. candidate at the University of Michigan (USA) and doctoral candidate at the University of Freiburg (Germany), has just published an interesting paper on recent developments concerning corporate liability under the Alien Tort Statute in the Journal of Science, Humanities and Arts (JOSHA). On April 3rd 2017, the New York Times published an article with the heading: “Supreme Court to Weigh if Firms Can be Sued in Human Rights Cases”. On the same day, the Supreme Court of the United States had granted the petition for certiorari to consider an issue that now has come before the highest US court already for the second time. The Second Circuit through the case In re Arab Bank has again brought the question before the Justices whether private corporations can be sued under the Alien Tort Statute of 1789 (ATS) for aiding and abetting human rights violations that occurred outside the territory of the United States. The Supreme Court is now to provide guidance on the issue that is not uniformly assessed by the US Circuit Courts. The full article is available here.

Si svolgerà a Milano, il 26 giugno 2017, un convegno dal titolo L’evoluzione della disciplina della crisi di impresa dell’Unione Europea – Il Regolamento (UE) 848/2015 e la proposta di direttiva UE per l’armonizzazione da parte degli Stati membri della disciplina di alcuni aspetti delle procedure di insolvenza.

Intervengono Stefania Bariatti (Univ. Milano), Giorgio Corno (avvocato in Monza), Giacomo D’Attorre (Universitas Mercatorum), Patrizia De Cesari (Univ. Brescia), Giovanni La Croce (ODCEC Milano), Caterina Macchi (Tribunale di Milano), Galeazzo Montella (avvocato in Milano), Gaetano Presti (Univ. Cattolica di Milano), Patrizia Riva (Univ. Piemonte Orientale), Luciano Panzani (Corte di Appello di Roma).

Maggiori informazioni a questo indirizzo.

La collision entre un avion et un oiseau constitue une circonstance extraordinaire au sens du règlement (CE) n° 261/2004 du 11 février 2004 sur les droits des passagers aériens, qui peut exempter le transporteur aérien de son obligation d’indemnisation en cas de retard important du vol.

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This post could have also carried the title ‘Pro real seat theory. Bud is it?’ [Polbud, Probud, you see…], but with all the Brexit shenanigans going on on Twitter I am somewhat running dry of pun headlines.

I do indeed wonder the following: Kokott AG Opined in C-106/16 Polbud on 4 May, Gillis Lindemans pondered the Opinion (in Dutch) early May – I’have had the Opinion and one or two other things on my mind since.

As Ms Kokott summarises, the present request for a preliminary ruling concerns Polbud’s plan to change its legal form to that of a private limited liability company governed by Luxembourg law. Since Luxembourg, like all other Member States, requires as a condition of incorporation and continued existence under national law that companies have a statutory seat in national territory, such a plan necessarily entails the transfer of Polbud’s statutory seat. Indeed, this appears to have been achieved inasmuch as Consoil was entered in the Luxembourg Companies Register. It must now be clarified, in essence, whether the freedom of establishment precludes that arrangement. What sets the situation in this case apart is the fact that, according to the information contained in the request for a preliminary ruling, the cross-border conversion is not accompanied by a change to the centre of the company’s commercial activities. The referring court asks whether, in that context, the freedom of establishment is applicable (third question), whether that freedom has been restricted (first question) and, if so, whether that restriction is justifiable (second question).

The AG takes us through relevant precedent (readers of the blog will have seen my reviews at the time of judgment): one is best left to simply read her Opinion.  Ms Kokott concludes that the freedom of establishment provided for in Articles 49 and 54 TFEU only applies to an operation whereby a company incorporated under the law of one Member State transfers its statutory seat to another Member State with the aim of converting itself into a company governed by the law of the latter Member State, in so far as that company actually establishes itself in the other Member State, or intends to do so, for the purpose of pursuing genuine economic activity there.

In other words she most  definitely proposes a test along the lines suggested by Darmon AG in Daily Mail, but rejected by La Pergola AG in Centros. So far, so good: AG’s often propose a change of tack, most famously Poiares Maduro in Cartesio. Except, Ms Kokott suggests the Opinion is a simple confirmation of the CJEU’s case-law on the issue: no change of tack. Simply confirmation ex multi. That now does leave me puzzled: the Opinion walks and talks like confirming old precedent; but it does not, surely?

Geert.

(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 7.