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Professor Victoria Camarero Suarez published an article on marriage for all and international public policy in the Spanish Journal on the Law of Church and State.

Here is the English abstract:

In this work, in the first place, some general considerations are carried out, in relation with same-sex marriages and their roots in comparative systems as far as the legal practice is concerned. After this brief outline, we offer a presentation of the Decision of the French Cour de Cassation dated 28 January 2015, following the development of its historical iter and the foundations on which it is based upon. Within the stage that we may define as a comment, our research makes a evaluation of such as those foundations and, above all, of the interplay between international public policy and Fundamental Rights. In the same way we make detailed comparisons with the Spanish legal practice within the terms specially defined by DGRN. We put an end to our study through suggestive reflections with a view to throwing some light on the issue concerning the performance criteria of the French High Court and the need to reach full Human Rights, avoiding to the extent possible the emergence of unnecessary conflicts with regard to the subject of coexistence among the different legal systems.

A second edition of the commentary of the Succession Regulation written by Andrea Bonomi and Patrick Wautelet has just been published. As with the first edition, the book is conceived as a commentary, article by article, of the Regulation. Written in French it provides in more than 1.000 pages a comprehensive analysis of the Regulation taking into account the vast literature already published on the Regulation, as well as various measures adopted by Member States in order to facilitate the practical operation of the Regulation.

More information available here.

 

 

Il 3 marzo 2016, i Presidenti della Camera e del Senato hanno provveduto alla nomina del nuovo Garante per l’infanzia e l’adolescenza, nella persona di Filomena Albano.

Il Garante è stato istituito — con la legge 12 luglio 2011, n. 112 — al fine di “assicurare la piena attuazione e la tutela dei diritti e degli interessi delle persone di minore età”, in conformità a quanto previsto dalla Convenzione delle Nazioni Unite sul diritto del fanciullo, dalla Convenzione europea dei diritti dell’uomo, dalla Convenzione europea sull’esercizio dei diritti dei fanciulli nonché dal diritto dell’Unione europea e dalle norme costituzionali e legislative nazionali.

Le competenze che la legge attribuisce Garante possono essere esercitate in relazione ad un’ampia gamma di situazioni in cui siano in gioco i diritti fondamentali delle persone minorenni, comprese le situazioni caratterizzate da elementi di internazionalità. Proprio in relazione a queste ultime il nuovo Garante può contare su una speciale competenza, maturata, fra le altre cose, come membro della Commissione per le adozione internazionali istituita ai sensi dell’art. 38 della legge 4 maggio 1983, n. 184, come direttore dell’Ufficio che si occupa di relazioni internazionali in senso alla Direzione generale della Giustizia civile del Ministero della Giustizia, oltre che come giudice, da ultimo presso il Tribunale di Roma.

Il 4 marzo 2016 il Principato di Monaco ha depositato il proprio strumento di ratifica della Convenzione dell’Aja del 13 gennaio 2000 sulla protezione internazionale degli adulti. La Convenzione — che reca un’articolata disciplina internazionalprivatistica di istituti come la tutela e l’amministrazione di sostegno — vincola attualmente Austria, Estonia, Finlandia, Francia, Germania, Repubblica Ceca, Regno Unito (limitatamente alla Scozia) e Svizzera, ed entrerà in vigore per il Principato il 1° luglio 2016.

Un passo analogo a quello compiuto da Monaco potrebbe essere realizzato nel prossimo futuro da altri paesi, dove sono state completate le procedure parlamentari dirette appunto alla ratifica della Convenzione: il riferimento è, in particolare, a Irlanda e Portogallo.

In altri paesi, come la Svezia, o autonome entità politiche, come l’Irlanda del Nord, la Convenzione ha formato l’oggetto di studi approfonditi commissionati dalle istituzioni, a conclusione dei quali è stata espressa l’opportunità di procedere alla ratifica.

In Italia, dopo la firma della Convenzione, risalente al 2008, un disegno di legge di autorizzazione alla ratifica ed esecuzione è stato presentato alla Camera il 23 dicembre 2014, senza peraltro ricevere, da allora, alcun seguito (v. più diffusamente, in proposito, questo post): in questi quattordici mesi, le Commissioni Giustizia e Affari esteri della Camera, a cui la proposta è stata assegnata, non hanno ancora avuto modo di iniziarne l’esame.

Col crescere del numero degli Stati parti della Convenzione dell’Aja del 2000, crescono anche le ragioni (già di per sé consistenti) che dovrebbero indurre l’Italia a guardare con favore alla prospettiva della ratifica.

Basti qui dire, fra i tanti possibili rilievi, che l’applicabilità della Convenzione in Stati che accolgono un gran numero di cittadini italiani emigrati — solo in Germania, Svizzera e Francia se ne contano ben oltre un milione e mezzo (e il dato è in crescita) — pone un concreto problema di coordinamento fra l’azione svolta dalle autorità degli Stati in questione (che sono per regola competenti a proteggere, ai sensi dell’art. 5, par. 1, della Convenzione, chiunque risieda abitualmente nel rispettivo territorio) e l’azione che può essere svolta in questa stessa materia dalle autorità italiane (che, in forza dell’art. 44 della legge 31 maggio 1995 n. 218, letto anche alla luce dell’art. 29 del decreto legislativo 3 febbraio 2011 n. 71, sull’ordinamento e le funzioni degli uffici consolari, possono operare in questo campo a tutela dei cittadini italiani residenti all’estero).

La Convenzione prefigura ampie opportunità di comunicazione e coordinamento fra autorità di Stati diversi, ma le riserva, come è naturale, alle autorità degli Stati contraenti. Rimanere estranei al regime dell’Aja significa, per l’Italia, rinunciare ad avvalersi di strumenti (ormai collaudati) capaci di accrescere in modo significativo l’effettività della protezione degli adulti vulnerabili.

The Department of Law of the University of Naples “Federico II” and the Institute for Research on Innovation and Services for Development of the National Research Council of Italy (IRISS) are working jointly on the analysis of the link between migration and development, and have decided to publish a collective volume on this subjects.

[From the presentation of the volume] – The ongoing debate on international migration and development is particularly relevant in current times. The recent events concerning the increased migratory flows in the Mediterranean have pushed the issue of international migration to the top of the global political agenda. The attention is focused more on the questions regarding admission / rejection of migrants on the territory of receiving countries than on the general topic of the contribution of migrants to the financial, social and cultural development of societies (of origin, transit or destination). In the last decades, States, international and intergovernmental organizations have fostered a dialogue at national, regional and international level. In September 2015, the United Nations included the question of migration in its post-2015 Development Agenda. The goal of the volume on Migration and Development is to give an overview of the main legal issues connected to the change of modern societies in order to answer the quest of a human-oriented management of migratory flows. The call for papers aims to offer an opportunity for experts, scholars and policy makers, with a view to discussing (primarily from an international law perspective) outcomes, implications and achievements regarding international migration and development.

Those wishing to contribute to the volume may submit abstracts of no more than 500 words, in English or French, no later than 15 March 2016, to migrationandevelopment@gmail.com.

For more information see here.

Written by Edina Márton

On 1 February 2016, the Committee on Legal Affairs of the European Parliament delivered an “Opinion on the legal basis of the proposal for a Regulation of the European Parliament and of the Council on promoting the free movement of citizens and businesses by simplifying the acceptance of certain public documents in the European Union and amending Regulation (EU) No 1024/2012 (COM(2013)0228 – C7-0111/2013 – 2013/0119(COD))”. As is clear from the opinion, the initial proposal was based on “dual legal basis” [i.e., Articles 114(1) and 21(2) TFEU]. After the removal of the former provision, the need for the assessment of the latter provision arose. Thus, the Chair, Mr Pavel Svoboda, assesses whether “the new single legal basis” of the proposal is valid and appropriate.

The opinion is available here.

 Written by Edina Márton On 21 December 2015, the Committee on Legal Affairs of the European Parliament issued a Working Document on establishing common minimum standards for civil procedure in the European Union – the legal basis (PE572.853v01-00). The Rapporteur, Emil Radev, outlines the scope of the legislative competence of the EU regarding civil procedure law and discusses provisions of the EU Treaties as possible legal basis for harmonising national civil procedure laws in the EU. The Working Document is available here.

It has not been mentioned on this blog that the French Cour de cassation has submitted a request for a preliminary ruling to the ECJ regarding Article 5(3) Brussels I Regulation (Concurrence Sàrl v Samsung Electronics France SAS, Amazon Services Europe Sàrl – Case C-618/15) on 23 November 2015. The question relates to the interpretation of the phrase »the place where the harmful event occurred or may occur« and reads as follows:

»Is Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to be interpreted as meaning that, in the event of an alleged breach of a prohibition on resale outside a selective distribution network and via a marketplace by means of online offers for sale on a number of websites operated in various Member States, an authorised distributor which considers that it has been adversely affected has the right to bring an action seeking an injunction prohibiting the resulting unlawful interference in the courts of the territory in which the online content is or was accessible, or must some other clear connecting factor be present?« (OJ 2016 C 38/38, footnote omitted.)

Thanks to Edina Márton for the tip-off!

Trade Usages and Implied Terms in the Age of Arbitration, a cura di Fabien Gélinas, Oxford University Press 2016, pp. 328, ISBN 9780199916016, GBP 75.

[Dal sito dell’editore] If a dispute between commercial parties reaches the stage of arbitration, the cause is usually ambiguous contract terms. The arbitrator often resolves the dispute by applying trade usages, either to interpret the ambiguous terms or to determine what the given contract’s terms really are. This recourse to trade usages does not create many problems on the domestic level. However, international arbitrations are far more complex and confusing. Trade Usages and Implied Terms in the Age of Arbitration provides a clear explanation of how usages, and more generally the implicit or implied content of international commercial contracts, are approached by some of the most influential legal systems in the world. Building on these approaches and taking account of arbitral practice, this book explores possible conceptual frameworks to help shape the emerging transnational law of trade usage. Part I covers the treatment and conceptual grounding of usages and implied terms in the positive law of influential jurisdictions. Part II defines the approach to usages and implied terms adopted in the design and implementation of important uniform law instruments dealing with international business contracts, as well as in the practice of international commercial arbitration. Part III concludes the book with an outline of what the conceptual grounding of trade usages could be in the transnational law of commercial contracts.

Maggiori informazioni a questo indirizzo.

In Kokott AG’s words, ‘following the West Tankers case…in the present case the Court is once again confronted with a specific procedural feature of the Anglo-American legal system.’

Article 34 of the Brussels I Regulation (Article 35 in the recast) enables a court, by way of derogation from the principles and objectives of the Regulation, to refuse to recognize a judgment given by a court of another Member State. The whole starting point of the Regulation and its antecedents was to avoid much recourse to refusal of recognition. Free movement of judgments lies at the very core of the foundations of European private international law.

Little wonder then that the Regulation leaves limited freedom for Member States authorities (including courts) who are asked to recognise and enforce another State’s judgment. As I noted at the time, in Trade Agency the CJEU insisted that refusal of recognition on the basis of ordre public is only possible after review of the individual merits of the case. Courts in other EU Member States may not decide that the English system as such as contrary to public policy in the state of enforcement. Relevant case-law was most recently summarised by (the same) Kokott AG in fly LAL and also in Diageo.

The exequatur procedure of the Brussels I Regulation has been amended in the Brussels I Recast. However it is exactly on issues of the rights of the defence that exequatur can never be entirely automatic, even among EU Member States.

In Case C-559/14 Meroni, at issue are Mareva injunctions: (sometimes) worldwide freezing orders issued by English courts (among others), designed to prevent a creditor being deprived of access to the debtor’s assets as a result of a prior disposal of those assets. However, as is often the case, the reputation of Mareva injunctions far exceeds their actual bite. There is no one size fits all such injunction and a number of tools are at the disposal of both the debtor affected, and third parties, to have the order varied or indeed lifted. The rights of third parties in particular are quite relevant in the current review with the CJEU. Part of the injunction are often the debtor’s participations in companies: for the recalcitrant debtor may find all sorts of useful ways to spirit value away from his companies and into vaults safe from prying English or European eyes – especially if the debtor is sole or majority shareholder.

In the case at issue, Mr A.L. is prohibited, inter alia, from disposing of assets which can be attributed directly or indirectly to his property. The injunction extends to  interests in the Latvian company VB. Mr A.L. has a direct interest in that company with only one share. According to the referring court, however, he is also the ‘beneficial owner’ of shares in at least one other company (‘Y’), which itself has substantial interests in VB. Mr Meroni is part of the management of Y. Following a seizure ordered by the relevant Latvian office, he also acts as the bailee for the interests in Y. for which Mr A.L. is the beneficial owner. Mr Meroni claims that the freezing injunction prevents the shareholder Y. from exercising its voting rights in respect of VB. This affects constitutionally protected property rights, especially since the company was not heard in the English proceedings. This, it is argued, is contrary to the principle of the right to a fair trial.

The AG Opined differently. At 44, she argues that it is not clear to what extent that injunction might be contrary to basic principles of Latvian substantive law or procedural law, especially since, as the referring court acknowledges, the Latvian legal order does permit judgments as provisional measures without a prior hearing of the party against whom enforcement is sought. Consequently measures such as Mareva orders cannot be said to be fundamentally against the Latvian ordre public. At 45: ‘ Aside from this, the English freezing injunction at issue does not provide for any irreversibly drastic measures for its enforcement overseas, in particular in so far as third persons who were not parties to the proceedings in England are concerned. Rather, the freezing injunction claims legal effects on third persons resident in other countries — and thus the companies controlled by Mr A.L. — only subject to strict requirements: first, it is to have legal effects on a without notice basis only where this is permitted by the foreign law; second, anyone served with the freezing injunction may apply to the court to vary or discharge it; and, third, compliance with contractual obligations in other countries is still to be possible notwithstanding the freezing injunction.‘ (footnotes omitted)

There is no evident breach of basic principles of the legal order of the State in which enforcement is sought – breach of ordre public must therefore be rejected.

Now, earlier in the judgment, the AG also considers albeit more or less obiter (the CJEU is certain not to entertain it) what may in fact be the more important (for it tends to be less sub judice at the CJEU) part of her Opinion: whether the Mareva orders actually constitute a ‘judgment’ for the purposes of the Regulation. Ms Kokott suggests that the Denilauler criteria (easily fulfilled in the case at issue: see para 31) ought to be relaxed under the Regulation, as opposed to the stricter approach under the 1968 Convention. That is because following judgment in ASML, notwithstanding defects in service, if the person concerned fails to commence proceedings in the State of origin of the judgment to challenge the judgment issued upon default, when it was possible for him to do so, recognition may not be refused. The AG suggests to extend the ASML rule to provisional measures.

Geert.

On 2 March 2016 the European Commission adopted  a proposal for a Council decision authorising enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions on the property regimes of international couples, covering both matters of matrimonial property regimes and the property consequences of registered partnerships (COM(2016) 108 final).

This stance comes close after the failure, in December 2015, to reach a political agreement among all Member States on the proposals relating to matrimonial property regimes and registered partnerships adopted in 2011.

Over the last few weeks, seventeen Member States – namely Belgium, Bulgaria, the Czech Republic, Germany, Greece, Spain, France, Croatia, Italy, Luxembourg, Malta, the Netherlands, Austria, Portugal, Slovenia, Finland and Sweden – addressed a request to the Commission to propose a decision authorising the establishment of enhanced cooperation between themselves in this field.

As a response, the Commission adopted the aforementioned proposal for a Council decision authorising enhanced cooperation, as well as a proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes (COM(2016) 106 final) and a proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships (COM(2016) 107 final).

The adoption of the decision authorising enhanced cooperation requires a qualified majority of Member States within the Council and the consent of the European Parliament. The adoption of the two regulations implementing the enhanced cooperation requires unanimity by the participating Member States and the consultation of the European Parliament.

The non-participating Member States will continue to apply their national private international law rules to cross-border situations dealing with matrimonial property regimes and the property consequences of registered partnerships, and will remain free to join the enhanced cooperation at any time.

This post has been written by Ilaria Aquironi.

On 2 March 2016 the European Commission adopted  a proposal for a Council decision authorising enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions on the property regimes of international couples, covering both matters of matrimonial property regimes and the property consequences of registered partnerships (COM(2016) 108 final).

This stance comes close after the failure, in December 2015, to reach a political agreement among all Member States on the proposals relating to matrimonial property regimes and registered partnerships adopted in 2011.

Over the last few weeks, seventeen Member States – namely Belgium, Bulgaria, the Czech Republic, Germany, Greece, Spain, France, Croatia, Italy, Luxembourg, Malta, the Netherlands, Austria, Portugal, Slovenia, Finland and Sweden – addressed a request to the Commission to propose a decision authorising the establishment of enhanced cooperation between themselves in this field.

As a response, the Commission adopted the aforementioned proposal for a Council decision authorising enhanced cooperation, as well as a proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes (COM(2016) 106 final) and a proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships (COM(2016) 107 final).

The adoption of the decision authorising enhanced cooperation requires a qualified majority of Member States within the Council and the consent of the European Parliament. The adoption of the two regulations implementing the enhanced cooperation requires unanimity by the participating Member States and the consultation of the European Parliament.

The non-participating Member States will continue to apply their national private international law rules to cross-border situations dealing with matrimonial property regimes and the property consequences of registered partnerships, and will remain free to join the enhanced cooperation at any time.

It is a tradition of the University of Maribor to organise conferences “Corporate Entities at the Market“. This year the conference will include issues related to cross-border debt collection. The conference is supported and partly financed by the European Commission, in the framework of EU Project BIARE. The programme of the conference is divided into five sessions:

1st Session: Corporate Law – Current Issues Related to ZGD-1 and Amendments
2nd Session: Commercial Legal Transactions
3rd Session: Cross-border Disputes in Civil and Commercial Matters (International session, English-Slovene interpretation) – 1. part
4th Session: Cross-border Disputes in Civil and Commercial Matters (International session, English-Slovene interpretation) – 2. part
Poster Session: National System of Enforcement from Perspective of Bruxelles Ia (Slovenia, Croatia, Austria, Germany, Italy, Czech Republic, Portugal, Netherlands, France, Lithuania, Estonia, Belgium, Sweden, UK, Greece).

The conference will take place on 19–21 May 2016 in Portoroz, Slovenia. The registration form can be accessed here.

On 17 March 2016 the Luxembourg Chamber of Commerce will host a conference titled The Luxembourg banker and private international law, organised by the Luxembourg Association of Banking Law Lawyers.

Speakers include Marie-Elodie Ancel (Univ. Paris-Est Créteil), Gilles Cuniberti (Univ. Luxembourg), Michèle Grégoire (Univ. Brussels), Patrick Kinsch (Univ. Luxembourg) and Grégory Minne (Univ. Luxembourg).

The program of the conference is available here.

As I have reported before, English practice is to continue using anti-suit injunctions outside of the Brussels I Regulation, in particular to support arbitration. Recent application was made in Crescendo Maritime, restraining litigation in China. Teare J confirmed among others (per Toepfer v Cargill) that forum non conveniens (Chine was the natural forum for litigation in ordinary) has little relevance in the context of arbitration clauses.

Kennedys have background to the case (essentially, backdating of a shipbuilding contract to avoid newly introduced international rules on tank coatings). The considered use of anti-suit once again underlines the importance of tools of civil procedure to support global arbitration practices.

Geert.

Tu, Guangjian, Private international law in China, Springer, 2016, pp. XI+192, ISBN: 9789812879929, Euro 83,19.

[Dal sito dell’editore] – This book provides a systematic elaboration of Chinese Private International Law, reveals the general techniques concerning conflict of laws in China, explains the detailed Chinese conflict rules for different areas of law, and demonstrates how international civil litigation is pursued in China. Clearly structured and written by a native Chinese scholar specializing in the field, the book’s easy-to-read style makes it accessible to a broad readership, while its content makes it a useful reference guide, especially for jurists and researchers.

Ulteriori informazioni sono reperibili qui.

Against the backdrop of the CJEU’s judgment in Kolassa (Case C-375/13, see here and here for previous posts), Matthias Lehmann has written an article that is forthcoming in the August issue of the Journal of Private International Law. The article can be downloaded here.

The abstract reads as follows:

In its Kolassa judgment, the CJEU has for the first time decided which national court in the EU has jurisdiction for claims against an issuer of securities based on an allegedly false prospectus. This contribution analyses this fundamental and at the same time ambiguous ruling.

The ruling’s most important part concerns tort jurisdiction, in particular the identification of the place where loss is suffered by the investor. The court’s mixture between the domicile of the investor and the location of the bank that manages his account is unsatisfying and leads to problems, which will be analysed. With regard to the place of conduct, the decision will be criticized for hesitating between four different connecting factors, the relation of which among each other remains unclear. Moreover, this contribution argues that prospectus liability never falls under the consumer provisions or the contractual head of jurisdiction in the Brussels I(a) Regulation because such liability is delictual in nature. Contrary to the CJEU’s assumption, the particularities of the securities holding system do not play any role in the determination of the competent court.

Finally, it will be shown that the judgment is not limited to the determination of the competent court, but also affects the governing law for prospectus cases. It will be argued that the consequences of the Kolassa judgment under the Rome II Regulation are so drastic that a legislative reform of this Regulation has become necessary.

This post has been written by Ilaria Aquironi.

After nearly three years of negotiations, the time apparently has come for the adoption of a regulation aimed at simplifying the requirements for presenting certain public documents in the European Union (the initial proposal may be found here).

The regulation aims at promoting the free movement of EU citizens (a) by facilitating the circulation within the European Union of certain public documents (those regarding, inter alia, birth, death, marriage, legal separation and divorce, registered partnership, adoption, parenthood), as well as their certified copies, and (b) by simplifying other formalities, such as the requirement of certified copies and translations of public documents.

Here’s a summary of the key developments occurred over the last two years.

In February 2014, the European Parliament adopted its position at first reading on the proposed regulation. In June 2015, the Council approved, as a general approach, a compromise text (contained in document 6812/15 and its annex I, in combination with document n. 3992/15, and annexes I, II and III here) and further agreed that it should constitute the basis for future negotiations with the European Parliament.

In October 2015, an agreement was reached between the Council and the European Parliament on a compromise package; the agreement was then confirmed  by COREPER and the compromise package was endorsed by the European Parliament’s Committee on Legal Affairs.

The Chair of the latter Committee addressed a letter to the Chair of COREPER II to inform him that, should the Council formally transmit its position to the European Parliament in the form presented in the Annex to that letter, he would recommend to the plenary that the Council’s position be accepted without amendment, subject to legal-linguistic verification, at the European Parliament’s second reading.

In December 2015, the Council adopted a political agreement on the compromise package and instructed the Council’s legal-linguistic experts to proceed with the revision of the text.

The text resulting from the revision carried out by the legal-linguistic experts can be found here (Council document No 14956/15 of 25 February 2016).

The Council is expected to discuss the adoption of its position at first reading on 10 and 11 March 2016.

Determining whether a legal relationship is one in tort, for the purposes of (now) Article 7(2) of the Brussels I Recast Regulation, is in principle subject to autonomous interpretation. National law ought not to feature (emphasised ia in Melzer). In the Brussels I Regulation, Article 5(3) features alongside Article 5(1)’s jurisdictional rule for contract. (In the Recast Regulation, Artt 7(1 and (2)). Sometimes, as in Brogsitter, both are present between two contractual parties and one needs to be separated from the other. In Kalfelis, the CJEU defined ‘tort’ as ‘all actions which seek to establish the liability of a defendant and which are not related to a “contract” within the meaning of Article 5(1).‘

Tobias Lutzi’s review is very useful in reminding us of the need to distinguish the two tracts of the Kalfelis definition. Just focusing on Brogsitter might lead one into thinking that Article 5(1) and 5(3) [7(1) /7(2)] ‘dovetail’: i.e. if it is not the one, it is the other (with tort being the subordinate category). That is however clearly not the case: that it may have looked like this in Brogsitter is due to liability being present in any case: the issue was there where contractual liability stops and liability in tort takes over.

Article 5(3) therefore requires an ‘action which seeks to establish the liability of a defendant’ which leads the Advocate General here into lengthy review of the Austrian implementation of EU law on copyright levies. With respect, I do not think that is what is either called for or justified. Article 5(3) requires an autonomous, EU interpretation. Too much interference of national law spoils that broth – a point also made in Melzer. Moreover the application of the jurisdictional categories is just that: it determines jurisdiction only. Once that settled, the national courts regain their authority to requalify and indeed may still decide that there is no liability in tort (or contract, as the case may be) at all, but rather one in contract (or tort, as the case may be) or indeed none at all.

I feel Sharpston AG’s centre of gravity etc. modus operandi, suggested by her re distinguishing between Rome I and II in Ergo but (probably) not accepted by the Court, would have come in handy at the jurisdictional level in Austro Mechana, too.

The CJEU’s judgment here is one to look out for.

Geert.

 

 

 

After nearly three years of negotiations, the time apparently has come for the adoption of a regulation aimed at simplifying the requirements for presenting certain public documents in the European Union (the initial proposal may be found here).

The regulation aims at promoting the free movement of EU citizens (a) by facilitating the circulation within the European Union of certain public documents (those regarding, inter alia, birth, death, marriage, legal separation and divorce, registered partnership, adoption, parenthood), as well as their certified copies, and (b) by simplifying other formalities, such as the requirement of certified copies and translations of public documents.

Here’s a summary of the key developments occurred over the last two years.

In February 2014, the European Parliament adopted its position at first reading on the proposed regulation. In June 2015, the Council approved, as a general approach, a compromise text (contained in document 6812/15 and its annex I, in combination with document n. 3992/15, and annexes I, II and III here) and further agreed that it should constitute the basis for future negotiations with the European Parliament.

In October 2015, an agreement was reached between the Council and the European Parliament on a compromise package; the agreement was then confirmed  by COREPER and the compromise package was endorsed by the European Parliament’s Committee on Legal Affairs.

The Chair of the latter Committee addressed a letter to the Chair of COREPER II to inform him that, should the Council formally transmit its position to the European Parliament in the form presented in the Annex to that letter, he would recommend to the plenary that the Council’s position be accepted without amendment, subject to legal-linguistic verification, at the European Parliament’s second reading.

In December 2015, the Council adopted a political agreement on the compromise package and instructed the Council’s legal-linguistic experts to proceed with the revision of the text.

The text resulting from the revision carried out by the legal-linguistic experts can be found here (Council document No 14956/15 of 25 February 2016).

The Council is expected to discuss the adoption of its position at first reading on 10 and 11 March 2016.