Agrégateur de flux

Le principe de l’application rétroactive de la peine plus légère ne fait pas obstacle à ce que soient poursuivies et sanctionnées les fausses déclarations en douane ayant pour but ou pour effet d’obtenir un avantage quelconque attaché à des importations intracommunautaires commises antérieurement à la mise en place du marché unique.

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Si terrà a Lucca, il 16 e 17 dicembre 2016, il terzo incontro organizzato nell’ambito del progetto European Civil Procedure for Lawyers: Promoting Training to Improve the Effectiveness of Transnational Justice (segnalato in questo post).

L’incontro avrà ad oggetto il regolamento (UE) n. 655/2014 istitutivo dell’ordinanza europea di sequestro conservativo su conti bancari (OESC).

Si tratta, come i precedenti, di un tirocinio formativo a partecipazione attiva con presentazione, discussione e risoluzione di casi concreti. La prima giornata sarà dedicata ai provvedimenti cautelari italiani e l’OESC, nonché alla richiesta di informazioni del creditore sui conti correnti bancari del debitore, mentre il secondo giorno si parlerà di esecuzione e dei rimedi possibili avverso l’OESC. Verrà analizzato anche il regolamento di esecuzione 2016/1823 del 19 ottobre 2016, con il quale la Commissione europea ha recentemente adottato i relativi moduli standard (si veda questo post).

Interverranno Elena D’Alessandro (Univ. Torino), Silvana Dalla Bontà (Univ. Trento), Antonio Mondini (Trib. Lucca) e Giampaolo Benedetti Pearson (Foro di Lucca).

La partecipazione al seminario è gratuita. Le iscrizioni sono già aperte e devono essere richieste tramite e-mail all’indirizzo info@europeancivilprocedureforlawyers.eu non oltre il 7 dicembre 2016.

Ulteriori informazioni sono disponibili qui.

The most recent issue of the Zeitschrift für Vergleichende Rechtswissenschaft (German Journal of Comparative Law; Vol. 115 [2016], No. 4) features the contributions to the conference on the application of EU private international law in German legal practice that was held at the University of Freiburg (Germany) on 14 and 15 April 2016 (see our previous post here). This event was part of the EUPILLAR („European Private International Law – Application in Reality“) project funded by the EU Commission (see the project’s homepage here); it was organized by the German branch of the project team, Prof. Dr. Jan von Hein, University of Freiburg.

The issue starts with a concise introduction by Jan von Hein into the EUPILLAR project (p. 483) and continues with an in-depth analysis of the problems involved in evaluating EU PIL Regulations by Prof. Dr. Giesela Rühl (University of Jena; p. 499). It then contains three articles dealing with pervasive problems inherent in the application of EU PIL: firstly, the challenges it poses for the organization of domestic courts (by Prof. Dr. Hannes Rösler, University of Siegen; p. 533); secondly, the challenges for the CJEU (by Prof. Dr. Martin Gebauer, University of Tübingen; p. 557); and thirdly, the application of foreign law designated by PIL rules (by Prof. Dr. Oliver Remien, University of Würzburg; p. 570). In the following contributions, the handling of the EU PIL Regulations in German case-law is scrutinized, starting with the application of Rome I by ordinary civil courts (Prof. Dr. Dennis Solomon, University of Passau; p. 586) and by labour courts (Prof. Dr. Dr. h.c. Monika Schlachter, University of Trier; p. 610). Moreover, Prof. Dr. Wolfgang Wurmnest (University of Augsburg) analyzes how German courts have interpreted the Rome II Regulation (p. 624). Finally, German court practice regarding international family law is evaluated as well, Brussels IIbis and Rome III by Prof. Dr. Peter Winkler von Mohrenfels (University of Rostock; p. 650), and the Maintenance Regulation resp. the Hague Protocol by Prof. Dr. Wolfgang Hau (University of Passau; p. 672).

The Zeitschrift für Vergleichende Rechtswissenschaft was founded in 1878 and is Germany’s oldest continuously published periodical on comparative and private international law. Its current editor-in-chief is Prof. Dr. Dres. h.c. Werner F. Ebke, University of Heidelberg. Content is available online either through the website of the Deutscher Fachverlag or via beck online.

The Rotterdam court in Hanjin Europe held on the opening of secondary proceedings in The Netherlands, in application of the European Insolvency Regulation (EIR), with main proceedings and COMI in Germany. On the application of the insolvency Regulation there are few that match prof Wessels’ insights and I am happy to refer to them. Indeed it is Bob who alerted me to the case. Prof Wessels in particular points us to the following considerations:

• the relationship between Annex A, Annex C and the abstract definition of ‘insolvency’ in the EIR. Useful precedent is Eurofood.
• the power of a provisionary liquidator to request the opening of secondary proceedings.
• the exact meaning of ‘establishment’, inter alia following judgment in Interedil.
• whether applicant has to show an interest in requesting secondary proceedings.

Geert.

(Handbook of) European private international law, 2nd ed. 2016, Chapter 5.

Thomas Kadner Graziano, Cross-border traffic accidents in the EU – The potential impact of driverless cars, Brussels, 2016

Commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the JURI committee, this study provides an analysis of the potential legal impact of the introduction of connected and autonomous vehicles on rules of private international law determining jurisdiction and applicable law in the EU Member States in the event of a cross-border traffic accident. Following a case-studies approach, it makes a number of recommendations to improve the legal framework. In line with recent EU law trends towards enhanced protection for the victims and given that products liability is likely to gain more importance in the area, the study suggests the introduction of a duty for car manufacturers to contract liability insurance covering traffic accidents victims; the possibility of a direct action against a manufacturer’s liability insurer and the establishment of a forum at the domicile of the victim for claims against manufacturers of cars using new technologies. In order to increase legal certainty, the study recommends to redefine the respective scopes of application of the two systems of private international law currently coexisting in the EU to determine the law applicable (the Rome II Regulation and the 1971 and 1973 Hague Conventions), and to apply Rome II in cases in which both the claimant and the defendant are domiciled in EU Member States. Finally, autonomous technologies may increase the difficulty to initiate extra-contractual liability claims therefore the study proposes that limitation periods be extended at the substantive law level or that a cumulative connecting mechanism be introduced at private international level for the benefit of the victims.

Au sens du règlement Bruxelles I bis, une action en annulation d’un acte de donation d’un immeuble pour incapacité de contracter du donateur relève non pas de la compétence exclusive de la juridiction de l’État membre où l’immeuble est situé mais de la compétence spéciale prévue en matière contractuelle.

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Many thanks to Hans van Loon for this piece of information.

At its 26th meeting, which took place in Milan last September, the European Group on Private International Law worked further on the establishment of common rules of conflict of laws in company law, on the basis of the achievements of the Florence and Luxembourg meetings. As a result the Draft rules on the law applicable to companies and other bodies were agreed upon.

Moreover, a Resolution on the Commission Proposal for a recast of the Brussels IIa Regulation, concerning parental responsibility and child abduction was adopted to support the Commission proposal of 30 June 2016 for a recast of the Brussels II a Regulation.

Besides a exchange of information on the current state of law of the Union, the Hague Conference and the the jurisprudence of the European Court of Human Rights took place. Finally, various papers were presented on the evolution of Italian civil union law, on the impact of the Brexit on private international law, on the follow-up to the Luxembourg Resolution concerning the legal status of applicants for international protection, and on the principles of interpretation of uniform substantive law.

The report was elaborated in collaboration with Marie Dechamps, Faculty of Law and Criminology of the Catholic University of Louvain, and can be fully read here.

Only five months after the UK Brexit Referendum the first (German) book dealing with the legal consequences of Brexit has been published (“Brexit und die juristischen Folgen, Nomos 2017, ISBN 978-3-8487-3564-8). Edited by Malte Kramme, Christian Baldus and Martin Schmidt-Kessel from the University of Bayreuth the book discuss the effects Brexit will have on European private and economic law, notably contract law, corporate law, capital markets law, tax law, labour law, competition law and consumer law.

The most interesting chapter for readers of this blog is the chapter by Johannes Ungerer from the University of Bonn. It deals with the effects of Brexit on the Brussels I Regulation and other Regulations on European private international law and can be downloaded here free of charge.

Ungerer shows that there can be no doubt that Brexit will have considerable effects on jurisdiction, recognition and enforcement of judgments in Europe. Particularly, this concerns the Brussels regime, which threatens to fall back from the modern Recast Regulation to the outdated 1968 Convention developed for relations between the UK and the then EEC Member States. Considering that no transition rules are in existence, this fall back could only be prevented by the withdrawal agreement, which is likely to be negotiated. An alternative might be the UK’s accession to the 2007 Lugano Convention (and perhaps rejoining EFTA). The Hague Conventions are expected to be maintained where applicable in international legal proceedings. As for choice of law,
the Rome regime for contracts should basically remain unchanged, yet for non-contractual obligations there might be the risk of legal uncertainty. With regard to international insolvency, the domestic regimes of the Member States will take over from the European Insolvency (Recast) Regulation.

Le procureur a requis 10 mois et 3 ans de prisons avec sursis à l’encontre de trois policiers, prévenus d’avoir blessé 5 personnes et d’en avoir mutilé une 6e, le 8 juillet 2009, à Montreuil (93). La défense plaide ce vendredi matin.

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Le Conseil d’Etat vient de rejeter le recours formé par l’Ordre des avocats de Paris contre le refus d’abroger des dispositions du Code général des impôts qui interdisent aux particuliers de déduire la TVA versée sur les honoraires d’avocats.

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Tribunal de grande instance de Lorient, juge de l'exécution, 22 novembre 2016

Pourvoi c/ Cour d'appel d'Aix-en-Provence, 15e chambre A, 27 mai 2016

Le mandat de Greffier du Tribunal de M. Emmanuel Coulon est renouvelé

by Lukas Schmidt, Research Fellow at the Center for Transnational Commercial Dispute Resolution (TCDR) of the EBS Law School, Wiesbaden, Germany.

As announced earlier this year at the Commission´s conference on “Convergence of insolvency frameworks within the European Union – the way forward” (see Blogpost http://wp.me/p4SfbY-4OQ) Vera Jourová, EU Commissioner for Justice, Consumers and Gender Equality has presented a proposal for a Directive on preventive restructuring frameworks, second chance and measures to increase the efficiency of restructuring, insolvency and discharge procedures on Thursday 22 November (see http://europa.eu/rapid/press-release_IP-16-3802_en.htm). The proposal has to be seen in the context of the Juncker Plan, the Action Plan on Building a Capital Markets Union and the Single Market Strategy, all aiming at strengthening of Europe´s Economy and the stimulation of investments in Europe. However, it is a much bigger step towards a harmonized European Insolvency Law than the Commission´s non-binding recommendation on a new approach to business failure and insolvency from 2014. Furthermore, whereas the EIR recast deals with issues of jurisdiction, applicable law, recognition and enforcement of insolvency decisions, as well as coordination of cross-border insolvency procedures, the proposal now obliges Member States to introduce sprecific types of procedures and set up measures to ensure that insolvency proceedings are effective in regards to promoting preventive restructurings and second chance. It thereby aims to reduce barriers to cross-border investment related to differences between the Member States’ restructuring and second chance frameworks as well as unnecessary liquidations of viable companies. Additionaly it shall improve the effectiveness of all restructuring, insolvency and second chance procedures within the EU.

The proposal consists of 47 recitals and 36 Articles on 55 pages. It can be roughly divided into main three parts. It is setting up a preventive restructuring framework (Title II), minimum standarts for the second chance for entrepeneurs (Title III) and measures to raise the effiency of restructuring, insolvency and second chance (Title IV and V).

Preventive Restructuring Frameworks

Art. 4 requieres the Member States to ensure that, „where is the likelihood of insolvency, debtors in financial diffculty have access to an effective preventive restructuring framework that enables them to restructure their debts or business, restore their viability and avoid insolvency.“ Interestingly Art. 5 states that the appointment of a practitioner in the field of restructuring is not mandatory in all cases. It remains to be seen how the group of insolvency practitioners will react to this aspect. According to Art. 6 a general or a limited stay of individual enforcement actions may be ordered for a maximum period of no more than four months. The proceeding aims at negotationg a restructuring plan (see Chapter 3). The restructuring plan needs to be approved by the creditors and confirmed by a judicial or administrative authority (Art.9 and 10). Where the neccessary majority of creditors in one or more voting classes is not reached the plan may still be confirmed by ways of a cross-class cram-down compliant to Art. 11.

Second Chance for Entrepeneurs

Title III sets up rules about the discharge of debt for over-indebted entrepeneurs. First of all the Member States have to ensure that over-indebted entrepeneurs may be fully discharged of their debts (Art. 19). Aditionally the proposal states in Art. 20 that the maximum period of time after which over-indebted entrepreneurs may be fully discharged from their debts shall be no longer than three years. It has to be noted that this might lead to different discharge periods for entrepeneurs and consumers.

Measures to increase the efficiency of restructuring, insolvency and second chance

Title IV mainly tries to ensure that judiciariy and adminsitrative authorities dealing with restructuring and insolvency are proper trained (art. 25). The same applies to insolvency practitioners (Art. 25).  Again, it remains to be seen how the group of insolvency practitioners will react to this aspect. Title V instructs member states to set up a data collection on annual statistics about restructuring and insolvency proceedings.

Finally some thoughts on the interplay between the proposal and the EIR recast. The new preventive restructuring proceedings will principally fall within the scope of the EIR recast (see Art. 1 c) EIR recast). But as it is a directive we will see many different national proceedings. One may not forget that aditionally all these proceedings need to be signed up in Annex A of the EIR to fall within its scope. The proposal might raise some further questions with regards to the EIR recast: Is it possible to give an undertaking pursuant to Art. 36 EIR recast in a preventive restructuring proceeding? May a court order a stay of the opening of a secondary insolvency proceedings according to Art. 38 III EIR recast where there is a preventive restructuring proceeding in the main proceeding?

The Commission´s proposal is ambitiuos. However, it lets important parts of substantive insolvency law, e.g. the ranking of claims or directors liablities untouched. Furthermore it still has to pass the Council and the Parliament. As the Commission´s proposal on the EIR recast, it will probably undergo some major changes in the upcoming process, too. It will be highly interesting how different interest groups might influence the final version of the proposal.

The External Dimension of EU Private International Law after Opinion 1/13, edited by / a cura di Pietro Franzina, Intersentia, 2017, ISBN 9781780684376, pp. xii+226, EUR 59.

The interest of the EU in international efforts towards the harmonisation of private international law has steadily increased over the years. The EU is already a party to several conventions that lay down uniform rules on jurisdiction, conflicts of laws and the recognition and enforcement of judgments. Additionally, various international instruments dealing with judicial cooperation in civil matters have been ratified by the Member States ‘in the interest of the Union’, or are now administered by the EU. On different occasions the Court of Justice has expressed its views regarding the scope of the external competence of the Union in the field of private international law, the conditions upon which this competence should be regarded as exclusive and the principles according to which the competence itself should be exercised. In spite of this, the development of the external dimension of EU private international law remains a controversial topic, and different questions still await answers. The essays collected in this volume critically address some of the main issues concerning the relations of the EU with non-EU countries and international organisations in the area of private international law, as well as the impact of these relations on EU legislation dealing with matters featuring cross-border implications. [T]he book discusses, in particular, the principles stated in the latest intervention of the Court of Justice on this topic, Opinion 1/13, regarding the Union’s competence as to the acceptance of the accession of third States to the Hague Convention of 1980 on international child abduction, as well as the implications of the Opinion for the development of the EU’s external action and legislation in this area.

With contributions by / Con scritti di: Paul Beaumont, Marise Cremona, Serena Forlati, Pietro Franzina, Giorgio Gaja, Jan-Jaap Kuipers, Fabrizio Marongiu Buonaiuti, Alex Mills, Chris Thomale, Chiara E. Tuo, Karen Vandekerckhove and Alessandra Zanobetti.

The table of contents may be downloaded here / Il sommario può essere scaricato qui.

Contrat de travail, exécution - Inaptitude au travail

Contrat de travail, exécution - Inaptitude au travail

Juge des libertés et de la détention

Juge des libertés et de la détention

Lorsqu’une personne demande l’accès à des documents en matière environnementale, la notion d’« informations relatives à des émissions dans l’environnement » couvre notamment celles concernant la nature et les incidences des rejets d’un pesticide dans l’air, l’eau, le sol ou sur les plantes