Droit international général

On 13 October 2015 the European Commission issued a report on the application of Regulation No 1896/2006, establishing a European order for payment procedure. Through a uniform and simplified procedure based on the use of standard forms, the Regulation allows a creditor to request a competent court in a EU Member State to issue an order of payment. If the debtor fails to contest the claim in the way prescribed by the Regulation, the order may be enforced without prior exequatur in the rest of the European Judicial area.

In its report, the Commission begins by addressing the issues relating to the submission of applications for an order of payment and their management by courts.

In particular, as regards the examination of applications, the Commission observes that even though inaccuracies in the information on the parties have in some States led to a high number of returned applications, the forms available in the European e-Justice portal effectively assist users in filling in applications in a correct way.

Whereas some States manage to issue the order of payment within the 30-days period provided by the Regulation, most of the Member States fail to comply with that deadline. In some cases, orders have been issued after no less than nine months from the application. With regard to the costs of the procedure, the Commission finds that fees are similar to those required for litigating under analogous national procedures, which largely vary among Member States.

According to the Commission, the opposition, review and enforcement of the European order of payment do not raise specific questions, even if the rate of opposition to the order differs from one Member State to another.

On a different note, the report underlines the prejudice that might be brought about by orders issued against consumers, as courts are instructed to issue orders for payment without examining the substantive bases of the claim. In this respect, the Commission considers, inter alia, that, since Article 8 of the Regulation requires the court to examine the claim on the basis of the information available to it, the seised court may, in case of doubts as to the justification of part of the claim, issue only a partial order.

The report concludes that the application of the Regulation has improved the handling of uncontested claims in cross-border disputes. Yet, the procedure does not seem to be sufficiently known among businesses, citizens, practitioners and courts. Accordingly, in the Commission’s view, the Regulation needs to be better promoted, including through the opportunities of cooperation provided by the European Judicial Network in Civil and Commercial Matters.

First update of the information referring to Article 76 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, to be found here (OJ C 390/10, 24.11.2015).

The French Cour de Cassation’s in Banque Privee Edmond de Rothschild Europe v X held that a unilateral jurisdiction clause was invalid under (doubtful) reference to (then) Article 23 of the Brussels I Regulation. The clause was held not to be binding under the French doctrine of clauses potestatives, even though the agreed forum was Luxembourg (whence the validity of the clause was judged under the lex fori derogati, not prorogati; that will no longer be possible under the recast Jurisdiction Regulation). In Credit Suisse, it extended this view (without reference this time to clauses potestatives) to choice of court in the context of the Lugano Convention.

In Apple Sales international v eBizcuss.com, the Cour de Cassation effectively qualifies its Rotschild case-law. The Court of Appeal held as unacceptable, under the theory of clauses potestatives, choice of court obliging eBizcuss to sue in Ireland, while allowing Apple Sales International to sue either in Ireland, or the place of registered office of eBizcuss, or any place where Apple Sales would have suffered damage. The Cour de Cassation now held that this clause is perfectly acceptable under Article 23 (now 25)’s regime for it corresponds to the need of foreseeability. (Which more extreme unilateral clauses arguably do not have). As always, the judgment is scant on details of the underlying contract whence it is not entirely clear whether French law was lex contractus or whether the Cour stuck to lex fori as determining validity of choice of court.

Geert.

The 10th edition of the International Seminar on Private International Law, organized by Prof. Fernández Rozas and Prof. de Miguel Asensio will be held next 14 and 15 April 2016, at the Faculty of Law of the Universidad Complutense of Madrid .

At the sitting of Thursday 14 special attention will be paid to the recent reforms of Spanish private international law; the latest developments towards codification of private international law in Latin America will also be addressed . The following sessions, on Friday, will focus on the development of private international law in Europe and within international commercial arbitration.

As in previous editions the main lectures of the seminar will be in charge of well-known scholars, including Jürgen Basedow (Max Planck Institute Hamburg), Roberto Baratta (University of Macerata), Bertrand Ancel (Paris II), Christian Heinze (University of  Hannover) and Sebastien Mancieaux (University of Dijon). Nonetheless, the seminar is open to all scholars, either Spanish or foreigners, willing to participate with brief presentations. In this regard proposals including both the title and a brief summary are to be sent no later than December 15 to Prof. Angel Espiniella Menéndez (espiniell@gmail.com). The final written version of the presentations, not exceeding 25 pages, is to be submitted before April 1, 2016. Subject to prior peer-review they will be published in the Anuario Español de Derecho Internacional Privado, vol. XVI.

The registration deadline to attend the seminar, as well as the programme and further information will be announced in due time.

Less is sometimes more so I shall not attempt to summarise all issues in Case C-198/14 Valev Visnapuu. The case makes for sometimes condensed reading however it perfectly illustrates the way to go about dealing with obstacles to trade put in place for environmental, public health or, as in this case, both reasons.

Mr Visnapuu essentially forum shops Estonia’s lower prices on alcohol by offering Finnish clients home delivery of alcoholic beverages purchased there. No declaration of import is made to Finish customs and excise, thereby circumventing (accusation of course is that this is illegal) a variety of excise duties imposed for public health and environmental reasons, as well as a number of requirements relating to retail licenses and container requirements (essentially a deposit-return system) for beverages.

Confronted with a demand to settle various tax debts, as well as with a suspended prison sentence, Mr Visnapuu turns to EU law as his defence in a criminal proceeding. The CJEU then had to settle a variety of classic trade and environment /public health questions: whether the packaging and packaging waste Directive is exhaustive on the issue of deposit-return system (answer: no and hence the system additionally needs to be assessed vis-a-vis EU primary law: Article 34 ff TFEU or Article 110 TFEU); whether in the context of that Directive excise duties on packaging may be imposed (yes) and packaging integrated into a functioning return system exempt (yes; in the absence of indications that imported systems are less likely to enjoy the exemption); whether the relevant excise duties fall under Article 34 ff TFEU or Article 110 TFEU (answer: it is part of an internal system of taxation hence needs to be judged vis-a-vis Article 110 TFEU); and finally whether the retail licence requirement needs to be judged viz Article 34 or Article 37 TFEU (answer: mixed, given the various requirements at stake). Final judgment on proportionality is down to the Finnish courts.

Readers in need of a tipple would be advised to postpone until after reading the judgment. Again though the case shows that if one keeps a clear head, classic structures of applying EU law go a long way in untangling even complex matters of law and fact.

Geert.

Il nuovo diritto di famiglia – Profili sostanziali, processuali e notarili, vol. IV – Tematiche di interesse notarile – Profili internazionalprivatistici, a cura di Alessandra Cagnazzo, Filippo Preite e Vera Tagliaferri, Giuffrè, 2015, ISBN 9788814201134, pp. 1360, Euro 150.

Tra i contributi di argomento internazionalprivatistico si segnalano: La legge italiana di diritto internazionale privato e le convenzioni internazionali, di Alessandra Zanobetti; Qualificazione e istituti del diritto di famiglia sconosciuti, di Stefano Armellini; La legge applicabile al divorzio nel regolamento c.d. “Roma III”, di Ilaria Viarengo; Il regolamento 2201/2003: circolazione delle sentenze in materia di separazione, divorzio e annullamento del matrimonio, di Ilaria Queirolo; La legge applicabile ai fini della determinazione dello status familiare nella disciplina del ricongiungimento, di Olivia Lopes Pegna; La circolazione delle sentenze ecclesiastiche di nullità del matrimonio, di Alessandra Lanciotti; Il riconoscimento del divorzio notarile, di Maria Caterina Baruffi; Giurisdizione in materia di responsabilità genitoriale: il regolamento n. 2201/2003, di Laura Carpaneto; La convenzione dell’Aja del 1996 sulla protezione dei bambini, di Laura Carpaneto; La libera circolazione delle decisioni in materia di responsabilità genitoriale nel regolamento n. 2201/2003, e Giurisdizione, legge regolatrice, riconoscimento ed esecuzione delle decisioni in materia di obbligazioni alimentari, di Margherita Salvadori; Le proposte di regolamenti dedicate ai regimi patrimoniali tra coniugi e partner in unioni registrate, di Elisabetta Bergamini; La cittadinanza multipla dei minori e diritto al nome, di Emilia Maria Magrone; Il riconoscimento dei provvedimenti di adozione stranieri, di Chiara Tuo; Il riconoscimento dei patti successori tra i coniugi, di Giovanna Debernardi; La sottrazione internazionale di minori, di Luciana Sangiovanni.

Per maggiori informazioni si veda qui.

SIDIBlog – the blog of the Italian Society of International Law and European Union Law – has issued a call for contributions to an on-line debate on EU Regulation No 848/2015 on insolvency proceedings (recast).

[From the blog] – The EU Regulation No 848/2015 of the European Parliament and of the Council of 20 May 2015 brings about the revision of the EC Regulation No 1346/2000 in matters of insolvency proceedings: while not departing from the structure of the pre-existing Regulation, the new instrument aims at improving the application of uniform rules under several aspects. With the following post of Professor Stefania Bariatti, and other ones that will be published in the coming weeks, the SIDIBlog intends to start a debate on the novelties contained in the new Insolvency Regulation, trusting to host further contributions of Italian and foreign scholars and practitioners, willing to discuss the issues raised by the new instrument. Prospective contributors can submit their posts at sidiblog2013@gmail.com.

Contributions may be submitted in English, French, Spanish or Italian. The papers received will appear in the next issue of the on-line journal Quaderni di SIDIBlog.

Trevor C. Hartley, Anti-suit Injunctions in Support of Arbitration: West Tankers Still Afloat, in International and Comparative Law Quarterly, 2015, p. 965 ss.

[Abstract] – In its eagerly awaited judgment in Gazprom, the CJEU declined to follow the Opinion of Advocate General Wathelet that West Tankers is no longer good law. The West Tankers case decided that the courts of one Member State are precluded from granting antisuit injunctions directed at proceedings in the courts of another Member State, even if the proceedings in which the injunction is granted fall outside the scope of the Brussels Regulation by reason of the fact that they are concerned with arbitration. The Gazprom case confirms that West Tankers is still good law.

Ulteriori informazioni sul fascicolo 4/2015 della rivista sono disponibili qui.

SIDIBlog – the blog of the Italian Society of International Law and European Union Law – has issued a call for contributions to an on-line debate on EU Regulation No 848/2015 on insolvency proceedings (recast).

[From the blog] – The EU Regulation No 848/2015 of the European Parliament and of the Council of 20 May 2015 brings about the revision of the EC Regulation No 1346/2000 in matters of insolvency proceedings: while not departing from the structure of the pre-existing Regulation, the new instrument aims at improving the application of uniform rules under several aspects. With the following post of Professor Stefania Bariatti, and other ones that will be published in the coming weeks, the SIDIBlog intends to start a debate on the novelties contained in the new Insolvency Regulation, trusting to host further contributions of Italian and foreign scholars and practitioners, willing to discuss the issues raised by the new instrument. Prospective contributors can submit their posts at sidiblog2013@gmail.com.

Contributions may be submitted in English, French, Spanish or Italian. The papers received will appear in the next issue of the on-line journal Quaderni di SIDIBlog.

The following announcement has been kindly provided by Béligh Elbalti, Assistant Professor, Graduate School of Law, Kyoto University.
On December 19, 2015, a one-day international symposium on the theme of private international law in Asian countries will be held at Doshisha University, Kyoto (Japan). The symposium is organized by The Research Center of International Transaction and Law (RECITAL), Doshisha University (Professor Naoshi Takasugi, Director of RECITAL) with the support of the Ministries of Justice and Foreign Affairs of Japan and coordinated by Professor Yuko Nishitani (Kyoto University). The symposium presents an opportunity to gather distinguished experts in the field of Private International Law from many countries (especially Asian countries) as well as representatives from the Hague Conference on Private International Law. The ultimate purpose of the symposium is to discuss private international law issues from an Asian perspective and to share knowledge as well as experience with the aim of building a set of “Asian Principles of Private International Law”. The program of the symposium is as follows:

Morning Session
Title: “Private International Law from a Comparative Perspective”
Time: 9:30 – 12:00
Venue: Doshisha University, Imadegawa Campus, “Ryoshin-Kan” Building, 1st floor room 107

9:30 – 9:40
Naoshi Takasugi (Professor, Doshisha University, Japan)
“Opening Speech: Towards the Asian Principles of Private International Law (APPIL)”

9:40 – 10:10
Kanaphon Chanhom (Professor, Chulalongkorn University, Thailand)
“Private International Law in Thailand: Focusing on Jurisdiction”

10:10 – 10:40
Yu Un Oppusunggu (Professor, University of Indonesia)
“Introduction to Private International Law in Indonesia”

10:40 – 11:10
Gérald Goldstein (Professor, Montreal University)
“Highlights of Quebec Private International Law Rules and Case Law”

11:10 – 11:40
Discussion

Afternoon Session:
Title: “Cross-Border Business Transactions and the Hague Conference in Asia”
Time: 13:30 – 17:30
Venue: Doshisha University, Imadegawa Campus, “Ryoshin-Kan” Building, 1st floor room 107
Chair: Naoshi Takasugi (Director of RECITAL; Professor, Doshisha University)

13:30-13:35
Koji Murata (President, Doshisha University)
“Welcome Speech”

13:35-13:45
Muneki Uchino (Councilor, Ministry of Justice, Civil Affairs Bureau)
“Opening Speech”

Part 1 – Hague Principles: Soft Law of PIL

13:45-14:15
Yuko Nishitani (Professor, Kyoto University)
“Hague Principles and Party Autonomy in International Contracts”

14:15-14:45
Anselmo Reyes (Representative of HAPRO; Professor, Hong Kong University)
“Hague Principles from a Practical Viewpoint in Asia”

14:45-15:20
Discussion

(Coffee Break)

Part 2 – Foreign Judgment Project: Past, Present and Future

15:30-16:00
Marta Pertegás (First Secretary, Hague Conference on Private International Law)
“Development of the Hague Judgments Project”

16:00-16:30
Keisuke Takeshita (Professor, Hitotsubashi University)
“The Hague Choice of Court Convention and Dispute Resolution in Asia”

16:30-16:50
Masato Dogauchi (Professor, Waseda University)
“Comments”

16:50-17:30
Discussion

Participation to this event is free of charge. However, all those who are interested in taking part of this event are cordially required to contact beforehand via email Professor Naoshi Takasugi (ntakasug@mail.doshisha.ac.jp) and indicate their name, affiliation and email address. All presentations are in English.

Access:
(http://www.doshisha.ac.jp/en/information/campus/imadegawa/imadegawa.html#)
By Subway: from “Kyoto Station”, take Karasuma line to Kokusai-Kaikan and get off at “Imadegawa Station” (10 mn). (Exit #1 of Subway Imadegawa Station is directly connected to the symposium venue, Ryoshinkan, Doshisha University).

Evidence in Contemporary Civil Procedure. Fundamental Issues in a Comparative Perspective, a cura di C.H. van Rhee e Alan Uzelac, 2015, Intersentia, ISBN 9781780683386, pp. 364, Euro 79.

[Abstract] – Since the start of the new millennium, many contemporary jurisdictions have been revisiting the fundamental principles of their civil procedures. Even the core areas of the civil process are not left untouched, including the way in which evidence is introduced, collected and presented in court. One generator of the reforms in the field of evidence-taking in recent decades has been slow and inefficient litigation. Both in Europe and globally, reaching a balance between the demands of factual accuracy and the need to adjudicate disputes in a swift, cost-effective and efficient way is still one of the key challenges. The second reason that many countries are reforming their law of evidence is related to cultural and technological changes in modern societies. As the balance between, on the one side, traditional human rights such as the right to privacy and due process is shifting towards, on the other side, the modern need for security, efficiency and quick access to justice, the perception of what is admissible or not in the context of evidence-taking is changing as well. In the same sense, the fast pace of modern life commands different practices of fact-finding, accompanied by new methods of selection of evidence that are appropriate for this purpose. Last but not least, the overwhelming penetration of new technologies into all spheres of public and private life has the capacity to dramatically change the methods of the collection and presentation of evidence.

L’indice completo può essere consultato qui. Ulteriori informazioni a questo indirizzo.

The report of the fifth meeting of the Working Group established by the Council on General Affairs and Policy of the Hague Conference on Private International Law to prepare proposals in connection with “a future instrument relating to recognition and enforcement of judgments, including jurisdictional filters” is now available through the Conference’s website (see here for an account of the previous meeting).

The Working Group proceeded on the basis that the Convention should: (a) be a complementary convention to the Hague Choice of Court Convention of 30 June 2005, currently in force for the EU and Mexico; (b) provide for recognition and enforcement of judgments from other contracting States that meet the requirements set out in a list of bases for recognition and enforcement; (c) set out the only grounds on which recognition and enforcement of such judgments may be refused; and (d) not prevent recognition and enforcement of judgments in a contracting State under national law or under other treaties, subject to one provision relating to exclusive bases for recognition and enforcement (covering matters in the fields of intellectual property rights and immovable property).

The proposed draft text of the Convention prepared by the Working Group is annexed to the report.

The Working Group recommended to the Council on General Affairs and Policy (which is expected to meet in March 2016) that the proposed draft text be submitted for consideration to a Special Commission “to be held, if possible, in June 2016″.

It also recommended that matters relating to direct jurisdiction (including exorbitant grounds and lis pendens) be considered by the Experts’ Group in charge of the Judgments Project “with a view to preparing an additional instrument”. In the Working Group’s view, the Experts’ Group “should meet soon after the Special Commission has drawn up a draft Convention”.

The report of the fifth meeting of the Working Group established by the Council on General Affairs and Policy of the Hague Conference on Private International Law to prepare proposals in connection with “a future instrument relating to recognition and enforcement of judgments, including jurisdictional filters” is now available through the Conference’s website (see here for an account of the previous meeting).

The Working Group proceeded on the basis that the Convention should: (a) be a complementary convention to the Hague Choice of Court Convention of 30 June 2005, currently in force for the EU and Mexico; (b) provide for recognition and enforcement of judgments from other contracting States that meet the requirements set out in a list of bases for recognition and enforcement; (c) set out the only grounds on which recognition and enforcement of such judgments may be refused; and (d) not prevent recognition and enforcement of judgments in a contracting State under national law or under other treaties, subject to one provision relating to exclusive bases for recognition and enforcement (covering matters in the fields of intellectual property rights and immovable property).

The proposed draft text of the Convention prepared by the Working Group is annexed to the report.

The Working Group recommended to the Council on General Affairs and Policy (which is expected to meet in March 2016) that the proposed draft text be submitted for consideration to a Special Commission “to be held, if possible, in June 2016”.

It also recommended that matters relating to direct jurisdiction (including exorbitant grounds and lis pendens) be considered by the Experts’ Group in charge of the Judgments Project “with a view to preparing an additional instrument”. In the Working Group’s view, the Experts’ Group “should meet soon after the Special Commission has drawn up a draft Convention”.

Il fascicolo 11/2015 de La nuova giurisprudenza civile commentata riporta il testo di una sentenza, depositata il 9 aprile 2015, con cui la Corte d’Appello di Venezia ha negato l’efficacia in Italia di un provvedimento marocchino che ha dichiarato lo scioglimento del matrimonio contratto fra due cittadini marocchini per l’intervenuto ripudio della moglie da parte del marito.

La pronuncia è accompagnata da un commento di Omar Vanin.

[Dall’abstract fornito dall’autore del commento] – La sentenza veneziana afferma la non riconoscibilità del provvedimento marocchino per inosservanza del principio del contraddittorio, ai sensi dell’art. 64, lett. b) e c), della legge 31 maggio 1995 n. 218, di riforma del sistema italiano di diritto internazionale . La motivazione dapprima delinea per sommi capi la disciplina del ripudio nella shari’a, per poi richiamare la giurisprudenza più recente pronunciatasi sulla questione. Infine, è argomentato il carattere fondamentale e inderogabile del principio del contraddittorio nell’ordinamento italiano, concludendo che il provvedimento straniero che non si conforma nei fatti a tale principio non può trovare ingresso nell’ordinamento interno. La nota alla sentenza descrive la disciplina del ripudio nel particolare contesto del diritto marocchino, anche alla luce delle novelle che hanno interessato l’istituto negli ultimi decenni. Viene poi osservato come il carattere negoziale o meno dell’istituto muta le modalità di eventuale ingresso nell’ordinamento interno dello status personale da esso determinato. Il commento si sofferma sulle soluzioni individuate dalla dottrina e giurisprudenza italiana, nonché dalla giurisprudenza francese. Le ultime battute sono invece dedicate ad una lettura della questione alla luce dell’art. 8 della Convenzione europea dei diritti dell’uomo, sul iritto al rispetto della vita personale e familiare, e della relativa giurisprudenza della Corte di Strasburgo.

Corte d’Appello di Venezia, 9 aprile 2015, in Nuova giurisprudenza civile commentata, 2015, parte I, p. 1029 ss., con nota di Omar Vanin, Ripudio islamico, principio del contraddittorio e ordine pubblico italiano.

In a judgment of 6 October 2015 (Case C-489/14, A v. B), the European Court of Justice (ECJ) clarified the interpretation of Article 19(1) and (3) of Regulation No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels IIa).

The provisions concerned deal with parallel proceedings. In particular, pursuant to Article 19(1), where proceedings relating to divorce, personal separation and matrimonial annulment, or to parental responsibility, are brought before courts of different Member States and concern the same parties (or the same child), the court second seised shall, of its own motion, stay its proceedings until the jurisdiction of the court first seised is established. Corresponding provisions may be found in Article 27 of the Brussels I Regulation (now Article 29 of the Brussels Ia Regulation) and in Article 21 of the Brussels Convention.

The rule on lis pendens set forth in Article 19 of the Brussels IIa Regulation must be read in conjunction with Article 16 of the same Regulation, which establishes that a court shall be deemed to be seised when the document instituting the proceedings is lodged with the court or, if it has to be served before being lodged, when it is received by the authority responsible for the service, provided that the applicant has not subsequently failed to take the steps he was required to take, respectively, to have the document lodged with the court or served on the respondent.

The dispute in the main proceedings concerned a couple of French nationals habitually resident in the United Kingdom. They were the parents of three minor children. In March 2011, the husband commenced separation proceedings in France; a couple of months later, the wife applied for child support in the UK and filed a petition for divorce, which was dismissed pursuant to Article 19 of the Brussels IIa Regulation. On 15 December 2011, the French court issued a non-conciliation order stating that the issues concerning the children had to be decided in the UK, but retained jurisdiction to adopt certain interim measures. According to the French Civil Code, if divorce proceedings have not been instituted within 30 months of the issuing of the non-conciliation order, all of the provisions of the order are null and void. In the case at hand, the order’s provisions would have expired at midnight of 16 June 2014.

On 13 June 2014, the wife filed a fresh divorce petition in the UK attempting to ensure that it took effect only from the time the French order had expired. On 17 June 2014 the husband brought in turn divorce proceedings in France. This occurred early in the morning, at a time of day when, due to the time differene, it was impossible to bring an action before a United Kingdom court. The husband claimed that the wife’s petition had to be dismissed, as the jurisdiction of the French courts had been established in the terms of Articles 16 and 19 of the Brussels IIa Regulation.

The English court asked the ECJ whether Article 19(1) and (3) of the Brussels IIa Regulation should be interpreted as meaning that, in a situation in which the proceedings before the court first seised in the first Member State expired after the second court in the second Member State was seised, the jurisdiction of the court first seised must be regarded as not being established.

In its judgment, the ECJ begins by identifying the requirements that need to be met for a situation of lis pendens to be established. It first clarifies that this mechanism – aimed at preventing parallel proceedings and avoiding conflicts between decisions within Member States – is “based on the chronological order in which the courts are seised”, according to Article 16 of the Regulation. In addition, the Court recalls that in matrimonial proceedings, the applications brought before different Member States do not have to feature precisely the same cause of action. Thus, lis pendens may exist “where two courts of different Member States are seised, as in the main case, of judicial separation proceedings in one case and divorce proceedings in the other, or where both are seised of an application for divorce”. In the present case, therefore, the French judge had to be considered as first seised.

However, the ECJ further considers that, for lis pendens to exist, the proceedings have to be pending simultaneously before the courts of different Member States. If one set of proceedings expires, the risk of irreconcilable decisions disappears, and so the situation of lis pendens within the meaning of Article 19 of the Brussels IIa Regulation. In practice, “even if the jurisdiction of the court first seised was established during the first proceedings, the situation of lis pendens no longer exists and, therefore, that jurisdiction is not established”.

Accordingly, in a situation such as the one of the main proceedings, where the proceedings before the French court lapsed as a result of the expiry of legal time-limits, the criteria for lis pendens were no longer fulfilled as from the date of that lapse, “and the jurisdiction of that court must, therefore, be regarded as not being established”.

Quite a lot of attention has been going to a Belgian court ordering Facebook to stop collecting data from non-users through the use of so-called datr cookies.  Applicant is Willem Debeuckelaere, the chairman of the Belgian privacy commission, in his capacity as chairman (not, therefore, as a private individual). Our interest here is of course in the court’s finding that it has jurisdiction to hear the case, and that it can apply Belgian law. The judgment is drafted in Dutch – an English (succinct) summary is available here.

Defendants are three parties: Facebook Inc, domiciled in California; Facebook Belgium BVBA, domiciled in Brussels; and Facebook Ireland Ltd., domiciled in Dublin. Facebook Belgium essentially is FB’s public affairs office in the EU. FB Ireland delivers FB services to the EU market.

Directive 95/46 and the Brussels I Recast Regulation operate in a parallel universe. The former dictates jurisdiction and applicable law at the level of the relationship between data protection authorities (DPAs), and data processors (the FBs, Googles etc. of this world). The latter concerns the relation between private individuals and both authorities and processors alike. That parallelism explains, for instance, why Mr Schrems is pursuing the Irish DPA in the Irish Courts, and additionally, FB in the Austrian courts.

Current litigation against FB lies squarely in the context of Directive 95/46. This need not have been the case: Mr Debeuckelaere, aforementioned, could have sued in his personal capacity. If he is not a FB customer, at the least vis-a-vis FB Ireland, this could have easily established jurisdiction on the basis of Article 7(2)’s jurisdiction for tort (here: invasion of privacy): with Belgium as the locus damni. Jurisdiction against FB Inc can not so be established in the basis of Article 7(2) (it does not apply to defendants based outside the EU). If the chairman qq natural person is a FB customer, jurisdiction for the Belgian courts may be based on the consumer contracts provisions of Regulation 1215/2012 – however that would have defeated the purpose of addressing FB’s policy vis-a-vis non-users, which I understand is what datr cookies are about.

Instead, the decision was taken (whether informed or not) to sue purely on the basis of the data protection Directive. This of course requires application of the jurisdictional trigger clarified in Google Spain. German precedent prior to the Google Spain judgment, did not look promising (Schleswig-Holstein v Facebook).

At the least, the Belgian court’s application of the Google Spain test, is debatable: as I note in the previous post,

Article 4(1)(a) of Directive 95/46 does not require the processing of personal data in question to be carried out ‘by’ the establishment concerned itself, but only that it be carried out ‘in the context of the activities’ of the establishment (at 52): that is the case if the latter is intended to promote and sell, in that Member State, advertising space offered by the search engine which serves to make the service offered by that engine profitable (at 55). The very display of personal data on a search results page constitutes processing of such data. Since that display of results is accompanied, on the same page, by the display of advertising linked to the search terms, it is clear that the processing of personal data in question is carried out in the context of the commercial and advertising activity of the controller’s establishment on the territory of a Member State, in this instance Spanish territory (at 57).

Google Spain’s task was providing support to the Google group’s advertising activity which is separate from its search engine service. Per the formula recalled above, this sufficed to trigger jurisdiction for the Spanish DPA. Google Spain is tasked to promote and sell, in that Member State, advertising space offered by the search engine which serves to make the service offered by that engine profitable. The Belgian court withholds jurisdiction on the basis of Facebook Belgium’s activities being ‘inseparably linked’ (at p.15) to Facebook’s activities. With respect, I do not think this was the intention of the CJEU in Google Spain. At the very least, the court’s finding undermines the one stop principle of the data protection Directive, for Belgium’s position viz the EU Institutions means that almost all data processors have some form of public interest representation in Belgium, often indeed taking the form of a BVBA or a VZW (the latter meaning a not for profit association).

The court further justifies (p.16) its jurisdiction on the basis of the measures being provisionary. Provisionary measures fall outside the jurisdictional matrix of the Brussels I (Recast), provided they are indeed provisionary, and provided there is a link between the territory concerned and the provisional measures imposed. How exactly such jurisdiction can be withheld vis-a-vis Facebook Ireland and Facebook Inc, is not clarified by the court.

The court does limit the provisionary measures territorially: FB is only ordered to stop using datr cookies tracking data of non-FB users ‘vis-a-vis internetusers on Belgian territory’, lest these be informed of same.

I mentioned above that the data protection Directive and the Brussels I recast can be quite clearly distinguished at the level of jurisdiction. However findings of courts or public authorities on the basis of either of them, do still face the hurdle of enforcement. That is no different in this case. Recognition and enforcement of the judgment vis-a-vis FB Inc will have to follow a rather complex route, and it is not inconceivable that the US (in particular, the State of California) will refuse recognition on the basis of perceived extraterritorial jurisdictional claims (see here for a pondering of the issues). Even vis-a-vis Facebook Ireland, however, one can imagine enforcement difficulties. Even if these provisionary measures are covered by the Brussels I Recast (which may not be the case given the public character of plaintiff), such measures issued by courts which lack jurisdiction as to the substance of the matter, are not covered by the enforcement Title of the Regulation.

All in all, plenty to be discussed in appeal.

Geert.

On 11 November 2015, the ECJ rendered its judgment in the case of Tecom Mican SL (case C-223/14). The ruling clarifies the interpretation of Regulation No 1393/2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (the Service Regulation), and, more specifically, the interpretation of Article 16 (“Extrajudicial documents may be transmitted for service in another Member State in accordance with the provisions of this Regulation”).

The dispute in the main proceedings concerned an agency agreement between a German and a Spanish company. The Spanish agent asked a Spanish judicial officer to effect service of a letter of demand on the German principal, through the competent German authority, seeking payment of a goodwill indemnity and of unpaid commission, or, in the alternative, disclosure of the principal’s accounts. The letter stated that the same demand had already been addressed to the German company in a previous letter of demand certified for official purposes by a Spanish notary.

The judicial officer refused to grant the application on the basis that no legal proceedings had been brought requiring the judicial assistance sought to be granted. The Spanish company then brought proceedings in Spain for review of that refusal.

The seised court, however, decided to stay proceedings and to refer some questions to the ECJ for a preliminary ruling, regarding both the meaning of the expression “extrajudicial document” and the rules governing the service of such a document from one Member State to another.

In its judgment, the ECJ begins by noting that, for the purposes of the Service Regulation, the expression “extrajudicial document”, as already stated in Roda Golf, must be treated as an autonomous concept of EU law. It must be given a broad definition and cannot be limited to documents that are connected to legal proceedings alone. The Court reiterates that the concept, as suggested in the latter judgment, may include documents drawn up by notaries, but concedes that it cannot be inferred from those findings alone whether, in the absence of legal proceedings, the concept in question includes only documents drawn up or certified by a public authority or official, or whether it also encompasses private documents.

Relying, in particular, on the preparatory work leading to the adoption of the Regulation (including the explanatory report of the Convention on the service in the Member States of the European Union of judicial and extrajudicial documents in civil or commercial matters, which never entered into force), the Court concludes that the concept of an “extrajudicial document”, within the meaning of Article 16 of the Service Regulation, must be interpreted as encompassing “both documents drawn up or certified by a public authority or official and private documents of which the formal transmission to an addressee residing abroad is necessary for the purposes of exercising, proving or safeguarding a right or a claim in civil or commercial law”.

The ECJ goes on to address the issue of whether, under the Service Regulation, service of an extrajudicial document can be effected pursuant to the detailed rules laid down by that Regulation even where an earlier service has already been effected through another means of transmission.

The Court examines, in the first place, the case in which the earlier service has been effected under rules not provided for in the Service Regulation. In that regard, the ECJ notes that the wording of Article 1(1) of the Regulation makes clear that that Regulation is applicable “where a[n] … extrajudicial document has to be transmitted from one Member State to another for service there”. As the Court itself asserted in Alder, this means that the Regulation provides for only two situations in which the service of a document falls outside its scope: where the permanent or habitual residence of the addressee is unknown and where that person has appointed an authorised representative in the Member State of the forum.

Since it is common ground that the Regulation does not provide for any other exception, the Court concludes that, in the case considered, the cross-border service of an extrajudicial document pursuant to the means of transmission of the Service Regulation remains possible.

Secondly, as regards the consequences related to the case in which an applicant effects an earlier service pursuant to the detailed rules laid down by Regulation No 1393/2007, the Court notes that the Regulation lays down various means of transmission applicable to the service of extrajudicial documents exhaustively.

The Regulation states in Article 2 that the service of judicial documents is, in principle, to be effected between the transmitting agencies and the receiving agencies designated by the Member States. However, it also provides, in Section 2, for other means of transmission, such as service by diplomatic or consular agents or service by postal services.

As the Court already observed in Plumex, the Service Regulation does not establish a hierarchy between the various means of transmission that it put in place. Besides, in order to ensure an expedient cross-border transmission of the relevant documents, the Regulation neither entrusts the transmitting or receiving agencies, nor the diplomatic or consular agents, the judicial officers, officials or other competent persons of the Member State addressed with the task of determining whether the reasons for which an applicant may wish to effect service of a document through the means of transmission laid down are appropriate or relevant.

Consequently, in the Court’s view, service of an extrajudicial document pursuant to one of the means laid down by Regulation No 1393/2007 remains valid, even where an earlier transmission of that document has already been effected by a means other than those laid down therein.

The last question addressed by the ECJ is whether Article 16 of Regulation No 1393/2007 must be interpreted as meaning that it is necessary to ascertain, on a case-by-case basis, whether the service of an extrajudicial document has cross-border implications and is necessary for the proper functioning of the internal market.

The Court observes that the Service Regulation falls precisely within the area of judicial cooperation in civil matters that have cross-border implications, and that, pursuant to Article 1(1), it applies where a document has to be transmitted “from one Member State to another” for service there.

As a result, since the cross-border implications of the transmission of a document constitute an objective condition for the applicability of the Regulation, “those implications must be considered, without exception, to be necessarily satisfied where the service of such a document falls within the scope of that Regulation”, and must therefore be effected in accordance with the system established by the Regulation itself.

As regards the proper functioning of the internal market, it is common ground that that element constitutes the primary objective of the system of service laid down by the Regulation. Thus, in so far as all the means of transmission of judicial and extrajudicial documents envisaged therein have been put in place expressly in order to obtain that objective, it is reasonable to consider that, once the conditions for the application of those means of transmission are satisfied, the service of such documents necessarily contributes to the proper functioning of the internal market.

In the end, where the conditions of Article 16 are satisfied, it is not necessary to ascertain, on a case-by-case basis, whether the service of an extrajudicial document has cross-border implications and is necessary for the proper functioning of the internal market.

On 11 November 2015, the ECJ rendered its judgment in the case of Tecom Mican SL (case C-223/14). The ruling clarifies the interpretation of Regulation No 1393/2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (the Service Regulation), and, more specifically, the interpretation of Article 16 (“Extrajudicial documents may be transmitted for service in another Member State in accordance with the provisions of this Regulation”).

The dispute in the main proceedings concerned an agency agreement between a German and a Spanish company. The Spanish agent asked a Spanish judicial officer to effect service of a letter of demand on the German principal, through the competent German authority, seeking payment of a goodwill indemnity and of unpaid commission, or, in the alternative, disclosure of the principal’s accounts. The letter stated that the same demand had already been addressed to the German company in a previous letter of demand certified for official purposes by a Spanish notary.

The judicial officer refused to grant the application on the basis that no legal proceedings had been brought requiring the judicial assistance sought to be granted. The Spanish company then brought proceedings in Spain for review of that refusal.

The seised court, however, decided to stay proceedings and to refer some questions to the ECJ for a preliminary ruling, regarding both the meaning of the expression “extrajudicial document” and the rules governing the service of such a document from one Member State to another.

In its judgment, the ECJ begins by noting that, for the purposes of the Service Regulation, the expression “extrajudicial document”, as already stated in Roda Golf, must be treated as an autonomous concept of EU law. It must be given a broad definition and cannot be limited to documents that are connected to legal proceedings alone. The Court reiterates that the concept, as suggested in the latter judgment, may include documents drawn up by notaries, but concedes that it cannot be inferred from those findings alone whether, in the absence of legal proceedings, the concept in question includes only documents drawn up or certified by a public authority or official, or whether it also encompasses private documents.

Relying, in particular, on the preparatory work leading to the adoption of the Regulation (including the explanatory report of the Convention on the service in the Member States of the European Union of judicial and extrajudicial documents in civil or commercial matters, which never entered into force), the Court concludes that the concept of an “extrajudicial document”, within the meaning of Article 16 of the Service Regulation, must be interpreted as encompassing “both documents drawn up or certified by a public authority or official and private documents of which the formal transmission to an addressee residing abroad is necessary for the purposes of exercising, proving or safeguarding a right or a claim in civil or commercial law”.

The ECJ goes on to address the issue of whether, under the Service Regulation, service of an extrajudicial document can be effected pursuant to the detailed rules laid down by that Regulation even where an earlier service has already been effected through another means of transmission.

The Court examines, in the first place, the case in which the earlier service has been effected under rules not provided for in the Service Regulation. In that regard, the ECJ notes that the wording of Article 1(1) of the Regulation makes clear that that Regulation is applicable “where a[n] … extrajudicial document has to be transmitted from one Member State to another for service there”. As the Court itself asserted in Alder, this means that the Regulation provides for only two situations in which the service of a document falls outside its scope: where the permanent or habitual residence of the addressee is unknown and where that person has appointed an authorised representative in the Member State of the forum.

Since it is common ground that the Regulation does not provide for any other exception, the Court concludes that, in the case considered, the cross-border service of an extrajudicial document pursuant to the means of transmission of the Service Regulation remains possible.

Secondly, as regards the consequences related to the case in which an applicant effects an earlier service pursuant to the detailed rules laid down by Regulation No 1393/2007, the Court notes that the Regulation lays down various means of transmission applicable to the service of extrajudicial documents exhaustively.

The Regulation states in Article 2 that the service of judicial documents is, in principle, to be effected between the transmitting agencies and the receiving agencies designated by the Member States. However, it also provides, in Section 2, for other means of transmission, such as service by diplomatic or consular agents or service by postal services.

As the Court already observed in Plumex, the Service Regulation does not establish a hierarchy between the various means of transmission that it put in place. Besides, in order to ensure an expedient cross-border transmission of the relevant documents, the Regulation neither entrusts the transmitting or receiving agencies, nor the diplomatic or consular agents, the judicial officers, officials or other competent persons of the Member State addressed with the task of determining whether the reasons for which an applicant may wish to effect service of a document through the means of transmission laid down are appropriate or relevant.

Consequently, in the Court’s view, service of an extrajudicial document pursuant to one of the means laid down by Regulation No 1393/2007 remains valid, even where an earlier transmission of that document has already been effected by a means other than those laid down therein.

The last question addressed by the ECJ is whether Article 16 of Regulation No 1393/2007 must be interpreted as meaning that it is necessary to ascertain, on a case-by-case basis, whether the service of an extrajudicial document has cross-border implications and is necessary for the proper functioning of the internal market.

The Court observes that the Service Regulation falls precisely within the area of judicial cooperation in civil matters that have cross-border implications, and that, pursuant to Article 1(1), it applies where a document has to be transmitted “from one Member State to another” for service there.

As a result, since the cross-border implications of the transmission of a document constitute an objective condition for the applicability of the Regulation, “those implications must be considered, without exception, to be necessarily satisfied where the service of such a document falls within the scope of that Regulation”, and must therefore be effected in accordance with the system established by the Regulation itself.

As regards the proper functioning of the internal market, it is common ground that that element constitutes the primary objective of the system of service laid down by the Regulation. Thus, in so far as all the means of transmission of judicial and extrajudicial documents envisaged therein have been put in place expressly in order to obtain that objective, it is reasonable to consider that, once the conditions for the application of those means of transmission are satisfied, the service of such documents necessarily contributes to the proper functioning of the internal market.

In the end, where the conditions of Article 16 are satisfied, it is not necessary to ascertain, on a case-by-case basis, whether the service of an extrajudicial document has cross-border implications and is necessary for the proper functioning of the internal market.

Kommentar zur EU-Erbrechtsverordnung, a cura di Astrid Deixler-Hübner e Martin Schauer, MANZ’sche Verlags- und Universitätsbuchhandlung GmbH, 2015, ISBN: 9783214075156, pp. XXVI+738, 148 Euro.

The adoption of the Regulation No 650/2012 and of the Implementing Regulation No 1329/2014 are a major step towards facilitating cross-border successions. They have had an impact on intergenerational wealth planning, on the Austrian ‘probate procedure’ (Verlassenschaftsverfahren) and on disputes concerning the inheritance and the compulsory portion. The new law is characterised by the habitual residence as the central connecting factor in applicable law and international jurisdiction, by the principle of a single global estate and by a limited choice of law concerning legal succession upon death. A major concern was not only the focus on the regulation a such, but to also consider the regulatory environment of the national law, which also includes the adjustment provisions established in the Act on the Amendment of Succession Law of 2015 (ErbRÄG 2015). The editors, Professor Astrid Deixler-Hübner, head of the Institute for European and Austrian Civil Procedure Law at the Johannes Kepler University in Linz and Professor Martin Schauer, deputy head of the Institute for Civil Law at the University of Vienna, and the authors, being academics or practitioners, are leading experts in the field of succession law.

Maggiori informazioni a questo indirizzo.

— Astrid Deixler-Hübner and Martin Schauer (eds), Kommentar zur EU-Erbrechtsverordnung, MANZ’sche Verlags- und Universitätsbuchhandlung GmbH, 2015, ISBN: 9783214075156, pp. XXVI+738, 148 Euros.

The adoption of the Regulation No 650/2012 and of the Implementing Regulation No 1329/2014 are a major step towards facilitating cross-border successions. They have had an impact on intergenerational wealth planning, on the Austrian ‘probate procedure’ (Verlassenschaftsverfahren) and on disputes concerning the inheritance and the compulsory portion. The new law is characterised by the habitual residence as the central connecting factor in applicable law and international jurisdiction, by the principle of a single global estate and by a limited choice of law concerning legal succession upon death.

A major concern was not only the focus on the regulation a such, but to also consider the regulatory environment of the national law, which also includes the adjustment provisions established in the Act on the Amendment of Succession Law of 2015 (ErbRÄG 2015).

The editors, Professor Astrid Deixler-Hübner, head of the Institute for European and Austrian Civil Procedure Law at the Johannes Kepler University in Linz and Professor Martin Schauer, deputy head of the Institute for Civil Law at the University of Vienna, and the authors, being academics or practitioners, are leading experts in the field of succession law.

For further information, see here.