Droit international général

The Court of Justice delivered last Thursday (17 June) its judgment in case C-800/19 (Mittelbayerischer Verlag KG v SM), which is about Brussels I bis. The judgment is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version):

« L’article 7, point 2, du règlement (UE) no 1215/2012 […] doit être interprété en ce sens que la juridiction du lieu où se trouve le centre des intérêts d’une personne prétendant que ses droits de la personnalité ont été violés par un contenu mis en ligne sur un site Internet n’est compétente pour connaître, au titre de l’intégralité du dommage allégué, d’une action en responsabilité introduite par cette personne que si ce contenu comporte des éléments objectifs et vérifiables permettant d’identifier, directement ou indirectement, ladite personne en tant qu’individu ».

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=243103&pageIndex=0&doclang=FR&mode=lst&dir=&occ=first&part=1&cid=1427608

At issue in  Khalifeh v Blom Bank S.A.L. [2021] EWHC 1502 (QB) is inter alia whether an anti-suit injunction is available to  a claimant who purports to have the protection of Section 4 of the Brussels Ia Regulation. That is the section which protects consumers by granting them a forum actoris and by limiting suits against them to, in principle (limited extensions are possible) their place of domicile. The contract is one in the banking sector, for the opening of 2 USD accounts. Defendant is a Lebanon-incorporated bank. The proceedings which are to be restrained, take place in Lebanon. Current order concerns anti-suit only. Other issues, including applicable law per Rome I (where of course the consumer title also plays a role) are not addressed.

The case is part of my essay questions in a conflicts exam at Leuven today. I would expect students to refer to the discussions in Gray v Hurley and to any reasons for EU courts to exercise, or not, judicial muscle-power in upholding the jurisdiction of courts in the EU as against that of courts outside it.

Claimants calls in support upon Samengo-Turner v J & H Marsh [2007] EWCA Civ 723 and Petter v EMC Europe Ltd [2015] EWCA Civ 828. In those cases, concerning employees, anti-suit was employed viz employers’ potential action outside the EU. Defendant doubts the authority of both (and in particular of Samengo-Turner, a first instance judgment). It refers to both scholarly criticism of the position, and to the Court of Appeal’s recent finding in Gray v Hurley, referred to the CJEU but unfortunately (for reasons of legal certainty) since dropped.

At [38] Freedman J holds he need not make a ‘binary’ decision at this stage, and refuses the application for anti-suit, leaving the discussion for full debate at trial. Part of his reason for doing so is defendant’s commitment not to take the case in Lebanon any further at this stage (no commitment has been made of it to be dropped). At that trial, the ATI debate may continue (this, one imagines, will depend on defendant’s actions in Lebanon), as of course will the applicability of Rome I’s protected categories of consumers.

A trial to look out for.

Geert.

EU Private International Law, 3rd ed. 2021, para 2.24.

Khalifeh v Blom Bank [2021] EWHC 1502 (QB)
Echoes of Gray v Hurley
Whether anti-suit injunction may be issued, targeting Lebanese proceedings, to protect rights as a consumer under Brussels Ia
Analysis forthcoming on the bloghttps://t.co/9fX1ecn2SZ

— Geert Van Calster (@GAVClaw) June 14, 2021

On 14 June 2021, the Research Service of the European Parliament released a briefing paper related to the proposal for a regulation on a computerised system for communication in cross-border civil and criminal proceedings (e-CODEX system), authored by Rafał Mańko (EP Research Service).

The abstract reads:

The e-CODEX system is the digital backbone of EU judicial cooperation in civil and criminal matters. e-CODEX comprises a package of software products that allow the setting up of a network of access points for secure digital communication between courts and between citizens and the courts, while also enabling the secure exchange of judicial documents.

The project, which was launched in 2010 with EU grant funding, is managed by a consortium of Member States and other organisations and is coordinated by the Ministry of Justice of the German Land of North Rhine-Westphalia. Even though it is currently used by 21 Member States, e-CODEX lacks a clear, uniform and EU-wide legal basis. To remedy this situation, on 2 December 2020 the Commission put forward a proposal for an e-CODEX legal instrument (a regulation) to formally establish the e-CODEX system at EU level. The management of the project would be entrusted to eu-LISA (the EU Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice).

Within the European Parliament, the LIBE and JURI committees are jointly in charge of the file, and the draft report is expected shortly.

The Briefing can be freely downloaded here.

Thanks to Jorg Sladic for the tip-off.

I reviewed the AG’s Opinion in C-800/19 Mittelbayerischer Verlag KG v SM here. The CJEU held yesterday (no English version yet at the time of posting). Tobias Lutzi already has analysis up here.

As I reported at the time, the AG suggested that despite the need for restrictive interpretation of the special jurisdictional rules, in the case at issue there was foreseeability of many a Pole’s centre of interests as a tort gateway, given the predictable fall-out of protest among Poles given the contents and context of the article (please refer to earlier post for detail): an ‘objective foreseeability test’.

The CJEU however restricts the availability of the centre of interests gateway further:  [46]

article 7, point 2, du règlement no 1215/2012 doit être interprété en ce sens que la juridiction du lieu où se trouve le centre des intérêts d’une personne prétendant que ses droits de la personnalité ont été violés par un contenu mis en ligne sur un site Internet n’est compétente pour connaître, au titre de l’intégralité du dommage allégué, d’une action en responsabilité introduite par cette personne que si ce contenu comporte des éléments objectifs et vérifiables permettant d’identifier, directement ou indirectement, ladite personne en tant qu’individu.

The aggrieved needs to be identifiable, at the time of publication, as an individual, not as belonging to an abstract group of offended persons.

With Gtflix TV pending, the CJEU will have a further opportunity to clarify the A7(2) gateway for defamation.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.12.2.5, and para 2.598 in fine.

Judgment just out in Mittelbayerischer Verlag: jurisdiction in online defamation cases
For my review of AG Opinion see https://t.co/2d2Fjp70KT
Court takes a strict line of foreseeability, insists on nominatim or in abstracto identification of the victimhttps://t.co/EqSmpCeVol

— Geert Van Calster (@GAVClaw) June 17, 2021

AG Bobek delivered today his opinion in case C‑55/20 (Ministerstwo Sprawiedliwości joined parties: Pierwszy Zastępca Prokuratora Generalnego, Prokurator Krajowy, Rzecznik Dyscyplinarny Izby Adwokackiej w Warszawie), which is about the Rule of Law in Poland.

Context: “  In July 2017, the Prokurator Krajowy – Pierwszy Zastępca Prokuratora Generalnego […] (‘the National Prosecutor’) requested the Rzecznik Dyscyplinarny Izby Adwokackiej w Warszawie (Disciplinary Agent of the Bar Association in Warsaw, Poland) […] to initiate disciplinary proceedings against the lawyer of the former President of the European Council, Donald Tusk. In the view of the National Prosecutor, the statements made by that lawyer when publicly commenting on the possibility of his client being charged with a criminal offence amounted to unlawful threats and disciplinary misconduct. Twice, the Disciplinary Agent either refused to initiate such proceedings or decided to discontinue them. Twice, the Sąd Dyscyplinarny Izby Adwokackiej w Warszawie (Disciplinary Court of the Bar Association in Warsaw, Poland) […], following an appeal lodged by the National Prosecutor or the Minister of Justice, overturned those decisions and remitted the case back to the Disciplinary Agent.

2. The present request for a preliminary ruling has been made in a third ‘round’ of those proceedings, within which the Disciplinary Court is examining the decision of the Disciplinary Agent to discontinue once more the disciplinary inquiry against that lawyer, following an appeal lodged again by the National Prosecutor and the Minister of Justice. The referring court seeks to know whether Directive 2006/123/EC (‘the Services Directive’) (2) and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) are applicable to disciplinary proceedings pending before it. However, it appears that the crux of the matter before the referring court lies elsewhere: what concrete consequences, in procedural terms, is the referring court to draw from the Court’s judgment in A. K. and Others, (3) in view of the fact that its ruling might be subsequently appealed before the Izba Dyscyplinarna Sądu Najwyższego (Disciplinary Chamber of the Supreme Court, Poland)? How can that court, in specific and practical terms, ensure compliance with EU law?”

The suggested decision (Extract): “On the basis of the primacy of EU law:

–  A national court is required to set aside the provisions of national law which reserve jurisdiction to rule on cases to a court which is not an independent and impartial tribunal, so that those cases may be examined by a court which meets the requirements of independence and impartiality and which, were it not for those provisions, would have jurisdiction.

– A national court must, if necessary, disregard the rulings of a higher court if it considers that they are incompatible with EU law, including situations in which incompatibility derives from the lack of independence and impartiality of that higher court”.

Source: https://curia.europa.eu/juris/document/document.jsf?docid=243109&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=14807561

The CJEU has just rendered its decision in Case C-800/19 Mittelbayerischer Verlag (currently only available in French). The Court held that the courts of the claimant’s ‘centre of interests’ have jurisdiction (on this basis) only if the content complained of contains ‘objective and verifiable elements allowing to identify, directly or indirectly, the claimant as an individual’ (para 46). Accordingly, a Polish Holocaust survivor could not sue a German publishing house over the use of the term ‘Polish extermination camp’ in an online article in Poland.

The factual and legal background of the case are described in some detail in our report on the AG Opinion – in a nutshell, the case is about whether a Polish survivor of the Holocaust can sue the publisher of a German newspaper in Poland for an alleged violation of his personality rights (including his national dignity) by an online article containing the phrase ‘Polish extermination camp’. As the claimant sought a range of remedies, at least some of which should only be available in a court with ‘full’ jurisdiction (as per the Court’s decision in Case C-194/16 Bolagsupplysningen, para 48), he needed to rely on the Court’s ‘centre of interests’ criterion to seize the Polish courts. Yet, both the referring court and AG Bobek had doubts if this criterion would not require some kind of limit to prevent the publisher of an online article to be sued in all member states in which a person potentially affected in their national dignity might have their centre of interests.

Upon a first reading of the decision, four aspects may be noted:

(1) The Court appears to have followed the AG’s proposition to adopt “a narrow and minimalist approach [to] this case” (Opinion, para 43). Thus, instead of a full reconsideration of the ‘centre of interests’ criterion, let alone of its interpretation of Art. 7(2) Brussels Ia with regard to personality rights as a whole (as Geert van Calster was hoping for), the Court has opted for its incremental readjustment.

(2) But the importance of the readjustment should not be underestimated. Despite giving access to the ‘full’ range of remedies, the Court has never had an opportunity to specify the exact requirements of ‘centre of interests’ jurisdiction as introduced in Joined Cases C-509/09 and C-161/10 eDate. Although clearly intended to protect the claimant (see eDate, para 47), para 50 of the decision certainly left room for additional requirements regarding the connection between the publication in question and the forum.

The CJEU now has indeed picked up this paragraph and argues that in a situation such as the present one, in which the claimant has – unlike in eDate and Bolagsupplysningen – not been directly targeted by the publication in question, it would hurt the aim of predictability if the claimant could sue for the entirety of the damage (and all injunctions) at their ‘centre of interests’, which the defendant could not reasonably predict (paras 35–38). In support, the Court also cites the need for a particularly close link between the case and the forum for special jurisdiction (para 40), as well as the aim to prevent a multiplication of grounds of jurisdiction (para 39 – a point not easily reconcilable with the Court’s continued adherence to the mosaic principle). On this basis, it formulates the rule cited above:

[46] article 7, point 2, du règlement no 1215/2012 doit être interprété en ce sens que la juridiction du lieu où se trouve le centre des intérêts d’une personne prétendant que ses droits de la personnalité ont été violés par un contenu mis en ligne sur un site Internet n’est compétente pour connaître, au titre de l’intégralité du dommage allégué, d’une action en responsabilité introduite par cette personne que si ce contenu comporte des éléments objectifs et vérifiables permettant d’identifier, directement ou indirectement, ladite personne en tant qu’individu.

(3) It is certainly a step forward that for once, the Court acknowledges the difficulties that its previous case law created for defendants of claims of alleged violations of personality rights through the internet (as to which see Lutzi, Private International Law Online, 2020, paras 4.75–83).

Yet, the Court does not go as far as proposed by AG Bobek, who, like AG Cruz-Villalón did before him, suggested the introduction of an objective foreseeability test, focusing on the relationship between the forum and the content in question (Opinion, paras 58–74; which would not necessarily have prevented the Polish courts from taking jurisdiction here). As a consequence, the new criterion introduced by the Court will raise many of the difficult questions of fact that AG Bobek warned against (Opinion, paras 45–57).

(4) The fact that the Court only considered ‘centre of interests’ jurisdiction may be seen as confirmation that at least some of the remedies sought by the claimant were ‘indivisible’ and therefore required ‘full’ jurisdiction. In this regard, the decision lends support to the reading of Bolagsupplysningen according to which most, if not all injunctions fall into this category (see Stadler, JZ 2018, 94, 95; Lutzi (2018) 34 LQR 208, 212).

With regard to the case at hand, the Court has been very clear that it does not pass the newly introduced threshold for ‘centre of interests’ jurisdiction (see also paras 36, 43, 45):

[44] Or, en l’occurrence, [le demandeur] n’est manifestement pas identifié en tant qu’individu, que ce soit directement ou indirectement, dans le contenu mis en ligne sur le site Internet de Mittelbayerischer Verlag […].

Accordingly, the Court did not need to engage with a number of follow-up questions raised obiter by AG Bobek (paras 75–87), including the potential role of the e-Commerce Directive.

Overall, it seems like the court has added another piece to the mosaic (pun intended) that is its case law on international jurisdiction for violations of personality rights through the internet. It appears not unlikely that the Court will continue to incrementally readjust individual pieces of this mosaic, rather than ever reconsidering it in its entirety – the next opportunity for which is just around the corner with Case C-251/20 Gtflix Tv.

Professor Jürgen Basedow does not need any introduction.

A volume published by Intersentia, titled EU Private Law. Anatomy of a Growing Legal Order, summarises, updates and completes studies he has published since the late 1980s. It exists as e-book (although this is not a book to read on the screen, but to hold in the hands).

EU law covers numerous sectors of private law and is still expanding. Due to its fragmentary nature, most legal literature addresses specific areas such as EU labour law, EU company law, EU private international law, EU consumer law, etc. In contrast, this book presents an innovative approach in its analysis of EU private law, considering its continuous expansion as an ongoing process and interrogating some central questions: What is private law in the framework of the EU? How does EU private law relate to traditional concepts of private law? What is the impact on horizontal relations of the law of the Union which was established with a view to the integration of peoples in Europe? Is the frequent reference to the policy orientation of EU law sufficient to overcome the differences between public and private law?

Like the growth rings of a tree the numerous acts and judgments of EU private law feed from the trunk and the roots, which developed in the vertical relations between the Union and the Member States. The foundations of EU law, which often have a background in legal history, comparative experience and public international law, impact upon horizontal relations in a manner previously unknown in national systems of private law.

Across ten parts grouped in four books devoted to foundations, principles, enforcement and implementation, respectively, as well as the external dimension, the author elaborates on the peculiarities of EU private law as compared to the traditional analysis of private law in any given national legal system. The author traces throughout the book the origins of legal principles and rules in comparative law, legal history and public international law and their application and development in EU private law instruments and the judgments of the CJEU. This comparison helps to strengthen our understanding of those peculiarities and paves the way for a comprehensive critical assessment of the state of EU private law today.

The table of contents is accessible at the website of Intersentia.

A book like this one is good news for academia.

The new issue of Rivista di diritto internazionale privato e processuale (Volume 57, Issue 1/2021) is out.

It features three articles, two in Italian, the other in English, whose abstracts are provided below.

Fausto Pocar, Riflessioni sulla recente convenzione dell’Aja sul riconoscimento e l’esecuzione delle sentenze straniere (Reflections on the Recent HCCH Convention on the Recognition and Enforcement of Foreign Judgments)

The Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, concluded on 2 July 2019 in the framework of the Hague Conference on Private International Law, signifies a further, albeit partial, step in the context of the more ambitious project, initiated over twenty-five years ago, aimed at achieving a so-called “double” convention on jurisdiction and recognition and enforcement of foreign judgments in civil or commercial matters. Through the careful consideration of the salient features of the Convention – some of which appear to be innovative in character, whereas others evoke more solutions – as well as of the interactions that the Convention’s adoption (and possible entry into force) entails in the existing multilateral treaty landscape, including the 2005 HCCH Convention on Choice of Court Agreements, the Author offers a dynamic and contextualized reading of the new instrument, emphasizing its lights and shadows, and illustrating the underlying interests surrounding the Convention’s possible ratification by the European Union.

Federica Favuzza, Riflessioni in margine all’entrata in vigore del c.d. SOFA dell’Unione Europea (Reflections on the Entry into Force of the EU SOFA)

On 1 April 2019, the 2003 Status of Forces Agreement between the EU Member States finally entered into force. This international agreement applies within the territory of the EU and aims to define the legal status of individuals and entities involved in the preparation and execution of the tasks referred to in Art. 42 TEU, i.e. in the context of the Common Security and Defence Policy (CSDP). After examining its scope of application, the Author provides an overview of some of the main legal issues that the Agreement raises in respect of the exercise of criminal and civil jurisdiction. The analysis highlights the drafters’ deference to the approach and wording of the NATO SOFA. This choice is understandable, especially considering that individuals and entities involved in the CSDP are often also deployed in NATO context. However, in the Author’s view, it risks reproducing in the context of the EU some known difficulties and critical issues arisen in nearly 70 years of practice in the interpretation and application of the NATO SOFA.

Caterina Benini, Remarks on the Commission’s Proposal on the Law Applicable to the Third-Party Effects of Assignment of Claims [in English]

The paper provides an overview of the European Commission’s proposal on the law applicable to the third-party effects of the assignment of claims. The Proposal, based on a sensitive balance between the interests of the factoring and the securitisation industries, fosters the foreseeability of the applicable law and the harmony of solutions. The combination of the law of the assignor as general rule with the law of the assigned claim as exception is consistent with the solution adopted at the international level and fits the property interests underlying the assignment of claims. Normative consistency with the Insolvency Regulation is depicted as one of the main goals of the Proposal. However, due to the mismatches between the connecting factors adopted in the two instruments, such goal risks to remain only on paper. To avoid this, the present article suggests localising the assignor’s habitual residence at the company’s registered office under the COMI notion adopted under the Insolvency Regulation.

The issue also contains a review, by Francesca Clara Villata, of Felix M. Wilke’s A Conceptual Analysis of European Private International Law. The General Issues in the EU and its Member States.

The table of contents of the issue is available here.

In Greenaway v Parrish & Ors [2021] EWHC 1506 (QB) ( I signaled it a while ago but the case has only recently appeared on BAILII), Spencer J had to consider the practical implications of the impossibility of referrals to the Court of Justice of the EU, by UK judges. Plenty of pending cases were introduced before Brexit day. Moreover, an even larger number of cases will be subject to retained EU law.

In a specific conflict of laws sense, this raises the particular (procedural and substantive) issue of foreign law being fact and hence needing to be proven. Retained and /or previously applicable EU law, will not be foreign law as such, yet clearly it is law of a different nature than UK statutory and common law across the isles.

The practical implications of all this have now surfaced in Greenaway. Following CJEU CILFIT, EU law is (usually) equally authentic in 22 languages. In the case at hand, this centres upon the meaning of the word ‘stolen’, in the motor insurance Directive 2009/103. How should a judge inform her /himself of the meaning of the word in the 22 languages, and potentially also of the implementation of the Directive across the Member States. 12 King’s Bench Walk have analysis of the case here. As they note, Mr Justice Spencer granted permission to each party to adduce four foreign law experts reports in EU jurisdictions of their choosing, so that the relevant foreign language versions of the Directive could be understood. He also gave permission for those experts to give evidence as to the implementation of the Directive in those member states, that material being part of the context in which the point at issue had to be decided.

This is an important procedural point which no doubt will surface in a variety of shapes in years to come.

Geert.

Languages and retained EU law
Of much note indeed
Greenaway & Rocks v Covea Insurance ea
How should the E&W courts deal with the CILFIT principle of 22 authentic language versions (see https://t.co/TE7wheSbTP) viz 'stolen' in Dir 2009/103
paging @Prof_KMcA @stefaanvdjeught https://t.co/0XhfqUdIbL

— Geert Van Calster (@GAVClaw) March 18, 2021

The Minerva Centre for Human Rights at Tel Aviv University is organising an international socio-legal workshop that will explore the impact of the Covid-19 crisis and its regulation on cross-border families. Topics include issues of belonging, travel restrictions, civil rights, birth across borders, international child abduction and transnational homes in pandemic times.

The workshop will take place on 22 June 2021. The  full program and registration form are available.

For additional information, contact eynatmey@tauex.tau.ac.il

The author of this post is Estelle Gallant, professor of private law at the University of Toulouse 1 Capitole.

In a judgment of 27 January 2021 the French Supreme Court for civil and criminal matters (Cour de cassation) applied the Hague Convention of 13 January 2000 on the International Protection of Adults (the ‘Adults Convention’) in a case concerned with a mandate in case of incapacity. More specifically, the issue was the content of the distinction between the conditions of validity of the mandate and its manner of exercise.

Currently applicable in 13 States (Austria, Belgium, Cyprus, Czech Republic, Estonia, Finland, France, Latvia, Monaco, Portugal, Switzerland and the United Kingdom), the 2000 Hague Convention takes into consideration a particular mechanism enabling an adult to organise in advance his or her personal or property protection for the time when he or she is no longer able to provide it. This legal form of mandate in case of incapacity, which was well known in North America and not very widespread in Europe at the time the Convention was drafted, is now more common in Europe. It exists in French law in the form of the “future protection mandate” and in Swiss law in the form of the “mandate for incapacity”. The mandate in case of incapacity is governed in the Adults Convention by Articles 15 and 16.

Article 15 refers to “powers of representation granted by an adult, either under an agreement or by a unilateral act, to be exercised when such adult is not in a position to protect his or her interests”. The adult thus entrusts a person or an institution of his or her choice with powers of representation for the future in the event that he or she is unable to protect his or her interests. Such mandate may take the form of an agreement, but also of a unilateral legal act. It may concern the management of property and affairs, but also the protection of the person, his or her care or the decisions to be taken at the end of life, in order to put an end to over-treatment for example. Generally speaking, the legislation establishing this mandate in case of incapacity makes the starting point of the mandate’s effects depend on a judicial and/or medical finding of incapacity.

Article 15(1) of the Convention designates the law of the adult’s habitual residence at the time the instrument is drawn up as applicable to mandates in case of incapacity. Article 15(2) also offers the adult the possibility of choosing the applicable law among three: a) his or her national law, b) the law of a former habitual residence, c) the law of the place where his or her property is located. Irrespective of how it is designated, the applicable law applies to “the existence, extent, modification and extinction of powers of representation” granted by the adult. However, the manner of exercise the powers conferred by the mandate is governed by the law of the State where it is exercised, according to Article 15(3). It follows that whenever the mandate is to be implemented in a State other than the one whose law is applicable, the manner of exercise the mandate will be governed by a different law than the one governing the mandate.

This was the issue raised by the case before the Cour de cassation. A mandate in case of incapacity had been established in Switzerland, where the adult had his habitual residence, before moving to France. As he wished to implement the mandate in France, one of his sons obtained that the mandate be verified formally and “stamped” by an officer of the court (visé par le greffier du Tribunal) in accordance with French procedure. However, another son of the grantor brought proceedings to challenge the implementation of the mandate. He won before the court of appeal of Pau, which annulled the clerk’s stamping on the grounds that it should not have been granted because the mandate did not include any means of controlling the representative of the adult.

The son who had obtained the stamping appealed to the Cour de cassation, which allowed the appeal. The Court held that by requiring that the clerk’s stamping be granted only if the mandate expressly provided any arrangements with respect to the control of the representative, the court of appeal had actually imposed conditions which were not concerned with the implementation of the mandate, but with its validity.

According to the Cour de Cassation, the implementation in France of a Swiss mandate in case of incapacity could not be subject to a condition of validity of French law that was not imposed by Swiss law. The provisions of the Adults Convention are thus perfectly respected: they imply making a distinction between conditions of validity and manner of exercise of mandates in case of incapacity.

The Court of Justice (Grand Chamber) delivered today its decision in case C‑645/19 (Facebook Ireland Ltd, Facebook Inc., Facebook Belgium BVBA, v Gegevensbeschermingsautoriteit), which is about the cross-border processing of personal data:

“1. Article 55(1), Articles 56 to 58 and Articles 60 to 66 of Regulation (EU) 2016/679 […] on the protection of natural persons with regard to the processing of personal data and on the free movement of such data […] read together with Articles 7, 8 and 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that a supervisory authority of a Member State which […] has the power to bring any alleged infringement of that regulation to the attention of a court of that Member State and, where necessary, to initiate or engage in legal proceedings, may exercise that power in relation to an instance of cross‑border data processing even though it is not the ‘lead supervisory authority’, within the meaning of Article 56(1) of that regulation, with respect to that data processing, provided that that power is exercised in one of the situations where Regulation 2016/679 confers on that supervisory authority a competence to adopt a decision finding that such processing is in breach of the rules contained in that regulation and that the cooperation and consistency procedures laid down by that regulation are respected.

2. Article 58(5) of Regulation 2016/679 must be interpreted as meaning that, in the event of cross-border data processing, it is not a prerequisite for the exercise of the power of a supervisory authority of a Member State, other than the lead supervisory authority, to initiate or engage in legal proceedings, within the meaning of that provision, that the controller with respect to the cross-border processing of personal data against whom such proceedings are brought has a main establishment or another establishment on the territory of that Member State.

3. Article 58(5) of Regulation 2016/679 must be interpreted as meaning that the power of a supervisory authority of a Member State, other than the lead supervisory authority, to bring any alleged infringement of that regulation to the attention of a court of that Member State and, where appropriate, to initiate or engage in legal proceedings, within the meaning of that provision, may be exercised both with respect to the main establishment of the controller which is located in that authority’s own Member State and with respect to another establishment of that controller, provided that the object of the legal proceedings is a processing of data carried out in the context of the activities of that establishment and that that authority is competent to exercise that power, in accordance with the terms of the answer to the first question referred.

4. Article 58(5) of Regulation 2016/679 must be interpreted as meaning that, where a supervisory authority of a Member State which is not the ‘lead supervisory authority’ […] has brought a legal action, the object of which is an instance of cross-border processing of personal data, before 25 May 2018, that is, before the date when that regulation became applicable, that action may, from the perspective of EU law, be continued on the basis of the provisions of Directive 95/46/EC […] on the protection of individuals with regard to the processing of personal data and on the free movement of such data, which remains applicable in relation to infringements of the rules laid down in that directive committed up to the date when that directive was repealed. That action may, in addition, be brought by that authority with respect to infringements committed after that date, on the basis of Article 58(5) of Regulation 2016/679, provided that that action is brought in one of the situations where, exceptionally, that regulation confers on a supervisory authority of a Member State which is not the ‘lead supervisory authority’ a competence to adopt a decision finding that the processing of data in question is in breach of the rules contained in that regulation with respect to the protection of the rights of natural persons as regards the processing of personal data, and that the cooperation and consistency procedures laid down by that regulation are respected, which it is for the referring court to determine.

5. Article 58(5) of Regulation 2016/679 must be interpreted as meaning that that provision has direct effect, with the result that a national supervisory authority may rely on that provision in order to bring or continue a legal action against private parties, even where that provision has not been specifically implemented in the legislation of the Member State concerned”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=242821&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=14254177

Aldricus – Makanan ialah zat yang dikonsumsi oleh makhluk hidup untuk memperoleh gizi yang selanjutnya dibuat jadi energi. Karbohidrat, lemak, protein, vitamin, dan mineral sebagai nutrien pada makanan yang diperlukan oleh badan. Cairan yang digunakan untuk tujuan ini kerap disebutkan minuman, tapi kata ‘makanan’ bisa juga digunakan. Makanan yang dimakan oleh manusia disebutkan pangan, sedang makanan yang dimakan oleh hewan disebutkan pakan.

Kualitas satu makanan bisa dipandang dari energi makanan dan usia taruh yang dipunyainya. Mengonsumsi makanan secara tidak pas atau kurang cukup akan mengakibatkan malnutrisi, yang bisa berbuntut pada beragam masalah kesehatan.

Disamping itu, beberapa macam makanan dapat memacu munculnya alergi makanan saat dimakan oleh pribadi yang peka. Bahan makanan dibuat jadi beragam sajian yang berbeda dan jadi keunikan satu kebudayaan atau warga di lokasi geografis tertentu. Makanan sebagai subyek yang didalami dalam beragam pengetahuan, seperti pengetahuan pangan, pengetahuan nutrisi atau gizi, dan gastronomi.

2017 itu trendingnya makanan sehat . Maka, untuk kamu yang ingin ngikutin trend saat ini, mulai seringkali dech searching resep makanan sehat. Satu diantaranya alpukat yang menjadi bahan makan harus buat trend makanan sehat tahun 2017 ini. Yuk lihat resepnya!

Jika kamu umumnya makan pagi dengan toast dan selai, coba saat ini tukar menu sarapanmu dengan toast dan alpukat. Sama gampangnya dan rasanya juga lebih nikmat dan sehat. Triknya mudah, mengambil daging buah alpukat dan remukin kasar dengan memakai sendok, jadi dech seperti selai kasar. Jika kamu ingin menambah rasa, kamu dapat taburin chili powder di atasnya.

Alpukat pas sekali lho buat jadi rekan makan steak. Jika umumnya kamu cicipin dengan sauce barbecue, saat ini kamu punyai rekomendasi lain yakni sauce alpukat. Triknya sama gampangnya seperti buat selai alpukat untuk toast-mu barusan.

Sukai makan nachos gunakan sambal salsa? Nach, saat ini kamu dapat tambahin akar alpukat dalam sauce salsa itu. Dengan kombinasi tomat, bawan bombay dan alpukat, ditanggung kesan makan nachos gunakan sauce salsamu menjadi lebih terasa.

Siapa ngomong goreng-gorengan tidak sehat? Jika bahan intinya alpukat, tentu masih sehat, donk? Nach, buat alternatif daging-dagingan, kamu dapat buat fried avocado buat jadi isian Tacos ini. Tambahin dengan sauce salsa atau irisan tomat dan paprika, Tacos a la kamu tentu lebih nikmat!

Alpukat bisa juga kamu jadiin makanan fancy lho dengan memadukannya dengan rebusan telur 1/2 masak di atasnya. Trus, untuk sentuhan akhir, kamu dapat kasih taburan keju parmesan atau chili powder dech. Hm, nikmat!

Saat ini, style makan pizza dapat semakin sehat kembali dengan menukar topping-nya. Jika umumnya kamu pakai sauce barbecue, saat ini kamu dapat tukar dengan sauce alpukat dengan potongan tipis dan potongan buah-buahan yang lain. Tidak kalah menarik dech visualnya seperti pizza komersial yang lain!

Sukai malas makan buah? Jus saja! Dengan percampuran beragam bahan buah-buahan dan makanan jadi sup, tentu kamu menjadi lebih nikmat melahapnya. Kasih topping buah-buahan lain yang lebih fresh seperti mangga.

Salmon dan sauce alpukat sebagai salah satunya kombinasi yang tidak ada yang dapat menyaingi. Dengan memakai alpukat yang telah diblender secara lembut, tentu rasa Baked Salmonmu menjadi lebih nikmat dan sehat. Ingin mencoba?

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The post 8 Cara Sehat Nikmatin Alpukat di Sajian Makananmu appeared first on Aldri Blog.

The post you are reading is the 500th post of the blog of the European Association of Private International law since the blog was launched in November 2019.

How have things gone for the blog over this time? The statistics below provide some answers.

The number of those who wish to be notified by e-mail of new new posts has steadily grown over the months. They currently exceed 540.

How many people come and visit us? The figure below shows the number of times a unique visitor has viewed the blog or any of its posts. To date, views exceed 170.000 in the aggregate.

Where do our readers come from? The color gradation in the maps below shows the countries where blog visitors are based: the greener the country, the larger its share of the overal blog viewers.  

Top 10 – World Countries
Germany: 10,55%
Italy: 10,22%
Luxembourg: 9,66%
Netherlands: 7,86%
United Kingdom: 7,83%
France: 7,32%
Spain: 6,17%
United States: 4,56%
Belgium: 4,13%
Poland: 2,94%

Posts are grouped, according to their content, into different categories. The five categories with the most posts are, in order, scholarship, case law, normative texts, views and comments and conferences and academic events.

The aim of the EAPIL blog is not just to inform readers but also to foster debate on any issues relating to private international law, consistent with the goals of the Association. Readers’ comments are crucial to that. They are very welcome! So far, blog posts have received more than 230 comments.

The post that has received the most comments is French Supreme Court Redefines Territoriality of Enforcement over Debts, by Gilles Cuniberti, published on 18 March 2021. It discussed two judgments delivered by the French Supreme Court for civil and criminal matters which extended the reach of French attachments to any claims owed to third parties established in France, irrespective of whether the third party had its headquarters in France or abroad, and irrespective of the situs of the debt. It attracted 14 comments.

While most of the posts are written by the blog editors, the blog regularly hosts contributions by academics and practitioners form outside the team. So far, the blog has welcomed posts from specialists based in Australia, Austria, Belgium, Cyprus, France, Germany, Italy, Japan, Lithuania, Luxembourg, Netherlands, Singapore, Slovenia, Spain, Switzerland and United Kingdom. Those willing to submit a guest post, are invited to write an e-mail to blog@eapil.org.

And don’t forget: the blog, and the Association generally, is active on social media too. So, join us also on Twitter (@eapilorg) and LinkedIn!

The Milan Law Review (MLR), run by the Faculty of Law of the State University of Milan, is a multidisciplinary and multilingual law journal, published on a six-monthly basis in open access mode.

The editors of the journal are calling, inter alia, for articles on topics in the field of public and private international law, either in Italian or in English.

Interested authors will find more information here.

Papers intended for the next issue shall be submitted by 31 October 2021.

A quick note on Dhir v Flutter Entertainment Plc (Rev 2) [2021] EWHC 1510 (QB), in which Griffiths J had to consider ia whether choice of law had been made at all and if so (or also if no choice of law had been made), whether this was for the onshore law of the Emirate of Dubai – onshore Dubai law, or for the law of the Dubai International Financial Centre – DIFC.

Claimant (Amarjeet Dhir) is a Dubai-based businessman who advanced money to another businessman in Dubai which he thought would be invested in the local property market. Unknown to him, the man taking his money (Tony Parente) was a gambling addict. As Mr Parente now admits, he applied money he had been given by Mr Dhir (and, it seems, others) to fund his gambling habit. One of the gambling businesses with which he lost a lot of money in a short space of time was the defendant, through that part of its operations branded as Paddy Power. Mr Dhir now seeks to recover from Paddy Power money in its hands which he says represents the money he is entitled to recover from Mr Parente.

The relevant agreement includes express choice of law as follows: 

“This agreement is signed in Dubai and shall be governed and construed in accordance with the laws of Dubai”.

Claimant says that it meant DIFC laws, while defendant says that it means onshore Dubai law). All experts agreed that it had to be one or the other: it could not be both.

[116] jurisdiction before the E&W Courts is by prorogation (A26 Brussels Ia). Both parties agree [129] that the Rome I Regulation guides the search for the lex contractus. The agreement is silent on choice of court: otherwise that could certainly have been a factor in determining choice of law (recital 12 Rome I). In general [118] the judge is cautious in ‘letting the jurisdiction dog wagging the choice of law tail’, and held the many ties of parties and contract with Dubai (including signature at Dubai and not DIFC: a geographically distinct location) pointed to onshore Dubai law as  lex contractus.

Choice of law therefore made not verbatim, yet ‘clearly demonstrated’ (A3(1) Rome I).

Geert.

EU Private International Law, 3rd ed. 2021, Heading 3.2.4.

Dhir v Flutter Entertainment [2021] EWHC 1510 (QB)
Considers ia A3(1) Rome I: choice of law: whether agreement to advance monies is governed by the onshore law of the Emirate of Dubai or by the law of the Dubai International Financial Centre DIFChttps://t.co/PrQQwQCXrd

— Geert Van Calster (@GAVClaw) June 14, 2021

The Mexican Academy of Private International and Comparative Law (AMEDIP) will be holding its annual XLIV Seminar entitled “New perspectives for Private International Law in a post-pandemic society” (perspectivas para el derecho internacional privado en una sociedad post-pandemia) from 17 to 19 November 2021 for the second time online.

The main focus of the seminar will be to analyse the impact of the Covid-19 pandemic on the development of private international law.

Potential speakers are invited to submit a paper in Spanish, English or Portuguese by September 1st 2021. Papers must comply with the criteria established by AMEDIP and will be evaluated accordingly. Selected speakers will be required to give their presentations preferably in Spanish as there will be no interpretation services but some exceptions may be made by the organisers upon request.

Participation is free of charge. The platform that will be used is Zoom and it will also be streamed via Facebook Live. For more information, please click here.

The following post was written by Paul Eichmüller (Vienna).

Although rules concerning the use of a name of natural persons have been liberalised in the member states of the European Union to a large extent after the CJEU’s famous decisions in C-148/02, Garcia Avello, and C-535/06, Grunkin and Paul, there still remain areas where national name law remains untouched. The Austrian Supreme Court has shown in its latest decision from 20 April 2021 that even for citizens of two member states, the conflict of laws rules for name matters may not generally be affected by CJEU judicature.

The parties of the case in question were the unmarried German mother and the Italian father of a son with German-Italian dual citizenship. After the child had been born in Germany – where he acquired his mother’s surname, as is usual under German law if the parents are unmarried – the boy and his mother moved to Austria. There, the father brought a request in court to change the child’s surname to a compound name consisting of both the mother’s and the father’s surnames. The mother, however, wanted her son to retain his current surname.

The Austrian courts of first and second instance concordantly dismissed the father’s request to change the child’s surname. Under Austrian law, the law applicable to name disputes follows the personal statute, which in turn is determined by a person’s citizenship (§§ 13, 9 IPRG). In cases of dual nationality – neither nationality being Austrian – the “effective nationality” (i.e. the nationality of the state to which the person has the closest link) determines the personal statute (§ 9(1) sentence 3 IPRG).

The courts concluded that the link to Germany had in this case been stronger, as the boy had been born in Germany and lived in a household with his German mother. German law, which accepts the renvoi (Article 10(1) EGBGB), does not provide for a change of the child’s surname against the will of the other parent unless the well-being of the child is affected, so that the request was denied.

The Austrian Supreme Court upheld the lower courts’ decisions. It found no fault in how the previous instances had determined the applicable law. More importantly, it also ruled that this outcome was compatible with the CJEU’s rulings on European name disputes. According to the CJEU in Garcia Avello and Grunkin and Paul, Articles 18 and 20 TFEU merely require that EU citizens that lawfully use a name in one member state are allowed to use this name also in other member states. However, in the present case, the child in the case at hand had precisely not yet acquired a different name in Italy. Additionally, the father even conceded that under Italian law, a child may alternatively bear the surname of one parent or a compound name of both parents’ surnames. Thus, there were no objections from a perspective of European law, as neither freedom of movement was restricted nor was there discrimination on the basis of citizenship, and the request was dismissed.

Without explicitly stating it, the Austrian Supreme Court made one point very clear in its judgment: the EU fundamental freedoms as interpreted by the CJEU in Garcia Avello and Grunkin and Paul do not impose on the member states the duty to determine the law on name disputes in a different way. Only the recognition of legal facts or acts from other member states, but not the identification of the applicable law is affected by the freedoms.

EU primary law requires that a name legally borne or acquired in another member state may also be borne in all other member states. It does, however, not impose a specific conflict-of-laws rule. Therefore, the law that determines whether and under which circumstances the name (even of a dual citizen) can be changed in another member state is not affected.

As the desired name is not legally borne in the other state, it remains merely hypothetical and thus is not subject to the fundamental freedoms. Whether the father could have changed his son’s name without the consent of the mother under Italian law was therefore not even assessed by the Supreme Court, as it deemed it not of importance.

As conflicts issues with regard to the change of name are concerned, each state is thus free to apply its own national rules of private international law. However, as most states offer the possibility to apply for a name change in their home state anyway, this issue will mainly arise in parental disputes. Like in the case at hand, one parent may wish to change the name of a child living in a different country against the will of the other parent and thus might bring an action in the family court at the child’s habitual residence pursuant to Article 8 of the Brussels II bis Regulation. When posed with the question of whether a change of name is possible, this court can then – free from obligations of EU primary law – assess the possibility of the name change according to its very own (private international) law.

The London Steam-Ship Mutual Insurance Association Ltd v The Kingdom of Spain (M/T PRESTIGE) [2021] EWHC 1247 (Comm) has been in my blog in-tray for a little while: I had thought of using it for exam purposes but have now decided against that.

The case is the appeal against Cook J’s registration of the Spanish judgment in the Prestige disaster.  I have reported thrice before on the wider litigation – please use tag ‘Prestige’ in the search box.

References in the judgment are to Brussels I (44/2001), not its successor, Brussels Ia (1215/2012) however the  relevant provisions have not materially changed. Application is for recognition and enforcement of the Spanish Judgment to be refused,  and the Registration Order to be set aside for one or both of two main reasons, namely: (1) that the Spanish Judgment is irreconcilable with a 2013 Hamblen J order, upheld on Appeal,  enforcing the  relevant Spanish award (A34(3) BI), and (2) that recognition would entail a manifest breach of English public policy in respect of (a) the rule of res judicata and/or (b) human and fundamental rights (A34(1) BI).

Butcher J referred the first issue to the CJEU on 18 December 2020 – just before the Brexit deadline. I have not been able to obtain a copy of that judgment – the judge merely refers to it in current one. The CJEU reference, now known as Case C-700/20, is quite exciting for anyone interested in the relationship between arbitration and the Brussels regime. Questions referred, are

1) Given the nature of the issues which the national court is required to determine in deciding whether to enter judgment in the terms of an award under Section 66 of the Arbitration Act 1996, is a judgment granted pursuant to that provision capable of constituting a relevant ‘judgment’ of the Member State in which recognition is sought for the purposes of Article 34(3) of EC Regulation No 44/2001?

(2) Given that a judgment entered in the terms of an award, such as a judgment under Section 66 of the Arbitration Act 1996, is a judgment falling outside the material scope of Regulation No 44/2001 by reason of the Article 1(2)(d) arbitration exception, is such a judgment capable of constituting a relevant ‘judgment’ of the Member State in which recognition is sought for the purposes of Article 34(3) of the Regulation?

(3) On the hypothesis that Article 34(3) of Regulation No 44/2001 does not apply, if recognition and enforcement of a judgment of another Member State would be contrary to domestic public policy on the grounds that it would violate the principle of res judicata by reason of a prior domestic arbitration award or a prior judgment entered in the terms of the award granted by the court of the Member State in which recognition is sought, is it permissible to rely on Article 34(1) of Regulation No 44/2001 as a ground of refusing recognition or enforcement or do Articles 34(3) and (4) of the Regulation provide the exhaustive grounds by which res judicata and/or irreconcilability can prevent recognition and enforcement of a Regulation judgment?

These are exciting questions both on the arbitration exception and on the res judicata refusal for recognition and enforcement. They bring into focus the aftermath of CJEU West Tankers in which the status of the High Court confirmation of the English award was also an issue.

The Club’s argument that recognition would be contrary to English public policy because the Spanish Judgment involved a breach of human and fundamental rights was not referred to the CJEU. Discussion  here involves ia CJEU Diageo. Suggested breaches, are A 14(5) ICCPR; breach of fundamental rights in the Master being convicted on the basis of new factual findings made by the Supreme Court; inequality of arms; and; A1P1.

There is little point in rehashing the analysis made by Butcher J: conclusion at any rate is that all grounds fail.

That CJEU case is one to look out for!

Geert.

EU Private International Law, 3rd ed 2021, 2.84 ff, 2.590 ff.

The University of Manchester Law School is seeking to recruit a Lecturer in Conflicts of Law.

The new appointment is meant to enhance teaching and research in Conflict of Laws, comparative private law and or commercial litigation at both undergraduate and postgraduate levels. This post will be available from 1 September 2021.

The candidate must fulfill the following requirements:

• have a relevant PhD (or equivalent) and demonstrate the ability to produce high quality publications, meet flexible curricular and teaching needs, and demonstrate capability to contribute organisationally to the wider School community.
• have experience of delivering research-informed teaching at an institution of higher learning or should be able to demonstrate the clear potential to do so.

The deadline for the applications is 17 June 2021.

Enquiries about the vacancy, shortlisting and interviews should be addressed to Professor Yenkong Hodu (yenkong.ngangjohhodu@manchester.ac.uk). Blended working arrangements may be considered.

More information about the vacancy can be found here.