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Kanyeba
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Lorsqu’un voyageur monte à bord d’un train sans billet, il conclut un contrat avec le transporteur

Flausch e.a.
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Quand le public n’est pas mis à même de participer effectivement à l’évaluation des incidences environnementales d’un projet, il ne peut se voir opposer un délai de recours contre la décision d’autorisation de celui-ci

ADDE / Parlement
Droit institutionnel
La décision du Parlement européen relative au financement du parti ADDE en 2015 est annulée pour défaut d’impartialité

La Cour de justice de l’Union européenne met en accès libre, sur son site Internet, des documents procéduraux et doctrinaux

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Succession

In a case concerning the declaration of enforceability of a UK costs order, the Supreme Court of the Hellenic Republic decided that the ‘excessive’ nature of the sum (compared to the subject matter of the dispute) does not run contrary to public policy. This judgment signals a clear-cut shift from the previous course followed both by the Supreme and instance courts. The decisive factor was the principle of mutual trust within the EU. The calibre of the judgment raises the question, whether courts will follow suit in cases falling outside the ambit of EU law.

[Areios Pagos, Nr. 579/2019, unreported]

THE FACTS

The claimant is a Greek entrepreneur in the field of mutual funds and investment portfolio management. His company is registered at the London Stock Exchange. The defendant is a well known Greek journalist. On December 9, 2012, a report bearing her name was published in the digital version of an Athens newspaper, containing defamatory statements against the claimant. The claimant sued for damages before the High Court of Justice, Queens Bench Division. Although properly served, the respondent did not appear in the proceedings. The court allowed the claim and assigned a judge with the issuance of an order, specifying the sum of the damages and costs. The judge ordered the default party to pay the amount of 40.000 ? for damages, and 76.290,86 ? for costs awarded on indemnity basis. The defendant did not appeal.

The UK order was declared enforceable in Greece [Athens CFI 1204/2015, unreported]. The judgment debtor appealed successfully: The Athens CoA ruled that the amount to be paid falls under the category of ‚excessive‘ costs orders, which are disproportionate to the subject matter value in accordance with domestic perceptions and legal provisions.  Therefore, the enforcement of the UK order would be unbearable for public policy reasons [Athens CoA 1228/2017, unreported]. The judgment creditor lodged an appeal on points of law before the Supreme Court.

THE RULING

The Supreme Court was called to examine whether the Athens CoA interpreted properly the pertinent provisions of the Brussels I Regulation (which was the applicable regime in the case at hand), i.e. Article 45 in conjunction with Art. 34 point 1. The SC began its analysis by an extensive reference to judgments of the CJEU, combined with recital 16 of the Brussels I Regulation, which encapsulates the Mutual Trust principle. In particular, it mentioned the judgments in the following cases: C-7/98, Krombach, Recital 36; C-38/98, Renault, Recital 29; C-302/13, flyLAL-Lithuanian Airs, Recital 45-49; C-420/07, Orams, Recital 55), and C-681/13, Diageo, Recital 44. It then embarked on a scrutiny of the public policy clause, in which the following aspects were highlighted:

• The spirit of public policy should not be guided by domestic views; the values of European Civil Procedure, i.e. predominantly the European integration, have to be taken into consideration, even if this would mean downsizing domestic interests and values. Hence, the court of the second state may not deny recognition and enforcement on the grounds of perceptions which run contrary to the European perspective.
• The gravity of the impact in the domestic legal order should be of such a degree, which would lead to a retreat from the basic principle of mutual recognition.
• Serious financial repercussions invoked by the defendant may not give rise to sustain the public policy defense.
• In principle, a foreign costs order is recognized as long as it does not function as a camouflaged award of punitive damages. In this context, the second court may not examine whether the foreign costs order is ‘excessive’ or not. The latter is leading to a review to its substance.
• The proportionality principle should be interpreted in a twofold fashion: It is true that high costs may hinder effective access to Justice according to Article 6.1 ECHR and Article 20 of the Greek Constitution. However, on an equal footing, the non-compensation of the costs paid by the claimant in the foreign proceedings leads to exactly the same consequence.
• In conclusion, the proper interpretation of Article 34 point 1 of the Brussels I Regulation should lead to a disengagement of domestic perceptions on costs from the public policy clause. Put differently, the Greek provisions on costs do not form part of the core values of the domestic legislator.

In light of the above remarks, the SC reversed the appellate ruling. The fact that the proportionate costs under the Greek Statutes of Lawyer’s fees would lead to a totally different and significantly lower amount (2.400 in stead of 76.290,86 ?) is not relevant or decisive in the case at hand. The proper issue to be examined is whether the costs ordered were necessary for the proper conduct and participation in the proceedings, and also whether the calculation of costs had taken place in accordance with the law and the evidence produced. Applying the proportionality principle in the way exercised by the Athens CoA amounts to a re-examination on the merits, which is totally unacceptable in the field of application of the Brussels I Regulation.

COMMENTS

As mentioned in the introduction, the ruling of the SC departs from the line followed so far, which led to a series of judgments denying recognition and enforcement of foreign (mostly UK) orders and arbitral awards [in detail see my commentary published earlier in our blog, and my article: Recognition and Enforcement of Foreign Judgments in Greece under the Brussels I-bis Regulation,  in Yearbook of Private International Law, Volume 16 (2014/2015), pp. 349 et seq]. The decision will be surely hailed by UK academics and practitioners, because it grants green light to the enforcement of judgments and orders issued in this jurisdiction.

The ruling applies however exclusively within the ambit of the Brussels I Regulation. It remains to be seen whether Greek courts will follow the same course in cases not falling under the Regulation’s scope, e.g. arbitral awards, third country judgments, or even UK judgments and orders, whenever Brexit becomes reality.

The new Doctoral Training Group DynamInt at the Faculty of Law at Humboldt-University encourages young researchers with a doctoral / PhD degree in law to apply for fully paid research stay for up to 6 months.

Tasks and Research Topic

The PostDoc is supposed to pursue her/his research project in the field of European Law. She/he is also expected to interact with the group of young researchers, who all work on their dissertation projects within the thematic framework of harmonization and plurality tendencies in the EU.

Duration

The research stay should last between 3 and 6 months.

Working condition

The PostDoc receives a salary of full-time position (salary grade 13) and will be provided with a fully equipped working place.

Research-Teaching ratio

There is no teaching assignment to the PostDoc. However, if she/he wishes to teach classes, this is of course possible.

Residence

The Post Doc is expected to spend most or at least 2/3 of her/his time at DynamInt in Berlin or its surroundings.

Requirements

Beside a doctoral/PhD degree, applicants should at least have a solid listening comprehension in German as it serves as the lingua franca of the Training Group.

Deadline

There is no specific deadline. Applications can be submitted at any time.

Submission

Please direct your applications to dynamint@rewi.hu-berlin.de.

Importation sans autorisation

Importation sans autorisation

Commission / Pologne (Indépendance des juridictions de droit commun)
Principes du droit communautaire
Les règles polonaises relatives à l’âge du départ à la retraite des juges et des magistrats du parquet, adoptées en juillet 2017, sont contraires au droit de l’Union

Magistrats et policiers se sont exprimés sur la valeur des informations transmises par Claude Chossat, accusé de l’assassinat de Richard Casanova perpétré à Porto-Vecchio le 23 avril 2008.

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‘The race between technology and the law could be termed as a hare and tortoise race – As technology gallops, the law tries to keep pace.’ (see further below).

Thank you Daphne Keller for flagging CS (OS) 27/2019 Swami Ramdev et al v Facebook et al at the Delhi High Court on 23 October. Defendants are Facebook Inc, Google Inc, YouTube LLC, Twitter etc. The allegation of Plaintiffs is that various defamatory remarks and information including videos, found earlier to have been defamatory (a judgment currently before the Supreme Court without having been stayed), are being disseminated over the Defendants’ platforms.

At 6 Prathiba M Singh J summarises the parties’ position: None of the Defendants have any objection to blocking the URLs and disabling the same, insofar as access in India is concerned. However, all the Defendant platforms have raised objections to removal/blocking/disabling the impugned content on a global basis. On the other hand, the Plaintiffs argued that blocking merely for the Indian territory alone is not sufficient as the content would be accessible through international websites, which can be accessed in India. Thus, according to the Plaintiffs, for the remedy to be effective, a global blocking order ought to be passed.

Particularly in the review of plaintiff’s submission at 8 ff, the parallel is clear with the discussions on the role of intermediaries in Eva Glawischnig-Piesczek v Facebook. Reference of course is also made to Equustek and, at 64, to the CJEU in Google v CNIL. Facebook refers to the material difference between defamation laws across the globe: at 10: ‘Defamation laws differs from jurisdiction to jurisdiction, and therefore, passing of a global disabling order would be contrary to the principle of comity of Courts and would result in conflict of laws.’

At 44 ff Prathiba M Singh J extensively reviews global precedent, and, at 69, to Eva Glawischnig-Piesczek v Facebook. At 88 ff this leads justice Singh

• to uphold fairly straightforwardly the court’s power to order global delisting given the origin in India of the original act of uploading: ‘The act of uploading vests jurisdiction in the Courts where the uploading takes place. If any information or data has been uploaded from India on to a computer resource which has resulted in residing of the data on the network and global dissemination of the said information or data, then the platforms are liable to remove or disable access to the said information and data from that very computer resource. The removal or disabling cannot be restricted to a part of that resource, serving a geographical location.’
• and at 99, to make an effectiveness argument: ‘it is clear that any order passed by the Court has to be effective. The parties before this Court i.e. the platforms are sufficiently capable to enforce an order of global blocking. Further, it is not disputed that the platforms are subject to in personam jurisdiction of this Court.’
• finally, at 91: ‘The race between technology and the law could be termed as a hare
  and tortoise race – As technology gallops, the law tries to keep pace’. This does not imply the law simply laying down to have its belly rubbed. Exactly my sentiment in my post on the UK AI case.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.8.2, Heading 2.2.8.2.5

 

 

 

La notification de la date de l’audience dans un délai raisonnable afin de permettre au requérant de répondre à l’avis de l’avocat général à la Cour de cassation. Si en droit belge, celui-ci n’a pas la qualité de partie au procès, le principe du contradictoire doit être respecté dès lors que son avis est destiné à conseiller et influencer la Cour de cassation. 

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