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Leuven Law is recruiting 2 full-time chairs, at professorial level (the actual grade in which the chair will be appointed will depend on candidates’ experience) in both EU institutional and constitutional law, and public international law. The latter is a joint appointment with Open University of The Netherlands.

Questions on the chairs can be put to the dean (see the chair notice) however as Head of the Department of International and EU law, I am happy to entertain queries, too: preferably after the Christmas break for there is no rush. Deadline for applications is 10 March, 2016.

Geert.

Jana Felicia Dickler, Schiedsgerichtsbarkeit und Reform der EuGVVO – Standort Europa zwischen Stagnation und Fortschritt, Mohr Siebeck, 2015, ISBN 9783161539862, pp. 241, Euro 69.

[Dal sito dell’editore] Schiedsgerichtsbarkeit ist die wohl bekannteste und auch wirtschaftlich bedeutendste Möglichkeit außergerichtlicher Konfliktbewältigung. Trotzdem bestehen in weiten Teilen Überschneidungsbereiche zur staatlichen Gerichtsbarkeit. Um als Standort Europa auch in Zukunft wettbewerbsfähig zu sein, müssen aus gesetzgeberischer Perspektive für diesen Bereich der alternativen zivilrechtlichen Streitbeilegung adäquate normative Rahmenbedingungen geschaffen werden. Vor diesem Hintergrund beleuchtet Jana Dickler den über zehnjährigen Reformprozess, den das maßgebliche europäische Regelungsinstrument auf dem Gebiet zivilrechtlicher Verfahrenskoordinierung – die EuGVVO – durchlaufen hat, und bewertet das Ergebnis mit Blick auf die konfliktträchtigen Überschneidungsbereiche zwischen staatlicher und Schiedsgerichtsbarkeit um auf dieser Grundlage einen eigenen Lösungsvorschlag zu entwickeln.

Per ulteriori informazioni si veda qui.

Professor Gian Paolo Romano (University of Geneva) has just published a highly insightful paper entitled “Conflicts and Coordination of Family Statuses: Towards their Recognition within the EU?” The briefing note was prepared on request of the European Parliament as a contribution to a workshop on “Adoption: Cross-border legal issues” for JURI and PETI Committees, which took place on 1 December 2015. The paper focusses on, in the author’s words, “intra-EU conflicts of family statuses” that are bound to arise under the current legislative situation: Over the years, the European Union has adopted a wide set of Regulations that cover international jurisdiction, applicable law and recognition with regard to the legal effects flowing from a family status, while the creation or termination of family statuses are predominantly excluded from the Regulations’ scope. Thus, the question whether and on which grounds a family status awarded by one Member State is to be recognized in other Member States is still widely left to domestic PIL, often resulting in conflicts of inconsistent family statuses between Member States, which, at this stage, cannot be resolved in legal proceedings. After reflecting upon those conflicts being contrary to human rights as well as to the objectives and fundamental freedoms of the European Union and demonstrating their potential to frustrate the aims of European PIL instruments, the author discusses four possible legislative strategies for preventing conflicts of family statuses across the European Union or alleviating their adverse effects.

The compilation of briefing notes is available here (please see page 17 et seqq. for Professor Romano’s contribution).

The CJEU (General Court) sided with Sweden in T-521/14, concerning the failure, by the Commission, to adopt measures concerning the specification of scientific criteria for the determination of endocrine-disrupting properties.

To improve the free movement of biocidal products in the EU, while ensuring a high level of protection of human and animal health and the environment, the EU adopted Regulation 528/2012 concerning the making available on the market and use of biocidal products. It sets out the active substances which, in principle, cannot be approved. They include active substances which, on the basis of criteria to be established, are regarded as having endocrine-disrupting properties which may be harmful to humans, or which have been designated as having those properties. It also provides that, by 13 December 2013 at the latest, the Commission was to adopt the delegated acts as regards the specification of the scientific criteria for the determination of endocrine-disrupting properties.

The EC cited criticism  following its presentation of draft scientific criteria, as well as the need to make the various possible solutions subject to an impact assessment. The CJEU first of all held that the Commission had a clear, precise and unconditional obligation to adopt delegated acts as regards the specification of the scientific criteria for the determination of the endocrine-disrupting properties and that that was to be done by 13 December 2013.

With respect to the impact assessment, the General Court finds that there is no provision of the regulation which requires such an impact analysis. What is more, even if the Commission ought to have carried out such an impact analysis, that does not in any way exonerate it, in the absence of provisions to that effect, from complying with the deadline set for the adoption of those delegated acts.

I like this judgment (it will no doubt be appealed by the EC). It reinforces the need to respect clearly defined dates and deadlines. And it takes a bit of the shine off impact assessments, the duration, extend, and lobbying of which can often lead to death by impact analysis.

Geert.

Claudio Biscaretti di Ruffìa, Alberto Santa Maria, Le società estere, in Trattato Cicu-Messineo, Giuffrè, 2015, pp. XIV – 340, ISBN: 9788814209703, Euro 42.

Ulteriori informazioni sul volume sono reperibili al sito dell’editore. L’indice dell’opera è disponibile qui.

I have referred repeatedly in the past to an inevitable attraction which some find in harmonising private, incuding contract law, in the Member States. The Common European Sales Law (CESL) proposal is dead, and for good reason. Its demise however has not led to the European Commission leaving the path of harmonisation in contract law. The EC has now selected bits and pieces of the CESL approach which it reckons might pass Member States objections. The proposed ‘fully harmonised’ rules on e-commerce formally do not close the door on party autonomy in the contracts under their scope of application. Yet in forcing regulatory convergence top-down, the aim is to make choice of law for these contracts effectively nugatory.

The EC itself formulates it as follows (COM(2015)634, p.1:

“This initiative is composed of (i) a proposal on certain aspects concerning contracts for the supply of digital content (COM(2015)634 final), and (ii) a proposal on certain aspects concerning contracts for the online and other distance sales of goods (COM(2015)635 final). These two proposals draw on the experience acquired during the negotiations for a Regulation on a Common European Sales Law. In particular, they no longer follow the approach of an optional regime and a comprehensive set of rules. Instead, the proposals contain a targeted and focused set of fully harmonised rules.”

Consequently the same proposal reads in recital 49 ‘Nothing in this Directive should prejudice the application of the rules of private international law, in particular Regulation (EC) No 593/2008 of the European Parliament and of the Council and Regulation (EC) No 1215/2012 of the European Parliament and the Council‘: that is, respectively, Rome I and Brussels I Recast’.

Consequently and gradually, choice of law for digital B2C contracts becomes redundant, for the content of national law converges. Support for this in my view is not rooted in fact (the EC’s data on the need for regulation have not fundamentally changed since its doomed CESL proposal), neither is it a good development even for the consumer. National consumer law is able to adapt, often precisely to the benefit of the consumer, through national Statute and case-law. Turning the EU regulatory tanker is much more cumbersome. The circular economy, recently often debated, is a case in point. Many national authorities point to limitations in contract law (incuding warranty periods and design requirements) as an obstacle to forcing manufacturers, including for consumer goods, to adopt more sustainable manufacturing and distribution models. The EC’s current proposals do no meet those challenges, rather, they obstruct them.

Geert.

On 4 February 2016, the University Jean Moulin Lyon 3 will host a workshop on Global Phenomena and Social Sciences.

The event will feature five panels, which will address the topic, respectively, from the point of view of politics, business, economics, anthropology and law.

Among the speakers of the latter panel, Jean-Sylvestre Bergé (Univ. Jean Moulin Lyon 3) will talk of Border Crossing Phenomenon and the Law.

Further information in the flier of the initiative.

On 6 June 2016, the 3rd Yale-Humboldt Consumer Law Lecture will take place at Humboldt-University Berlin. This year’s speaker will be Professor Richard Brooks (Yale Law School/Columbia Law School), Professor Henry Hansmann (Yale Law School) and Professor Roberta Romano (Yale Law School).

The program reads as follows:

• 2.00 p.m. Welcome by Professor Susanne Augenhofer and the Vice President for Research of Humboldt University, Professor Dr. Peter A. Frensch
• 2.15 p.m. Professor Richard Brooks, Columbia Law School
• 3.15 p.m. Coffee break
• 3.45 p.m. Professor Henry B. Hansmann, Yale Law School
• 4.45 p.m. Break
• 5.00 p.m. Professor Roberta Romano, Yale Law School
• 6.00 p.m. Panel Discussion
• 7.00 p.m. Reception

Further information regarding the event is available here. Participation is free of charge but registration is required. Please register online before 27 May 2016.

The annual Yale-Humboldt Consumer Law Lecture brings faculty members from Yale Law School and other leading US law Schools to Berlin where they spend time at Humboldt Law School. During their stay, and as part of a variety of activities, the three visitors will interact with colleagues as well as with doctoral candidates and students. Highlight of their stay is the Yale-Humboldt Consumer Law Lecture, which is open to all interested lawyers. The speakers’ remarks will be followed by discussion.

The Yale-Humboldt Consumer Law Lecture aims at encouraging an exchange between American and European lawyers in the field of consumer law, understood as an interdisciplinary field that affects many branches of law. Special emphasis will therefore be placed on aspects and questions which have as of yet received little or no attention in the European discourse.

This seventh volume in the Swedish Studies in European Law series (Hart Publishing, Oxford) brings together some of the most prominent scholars working within the fast-evolving field of EU civil justice. Civil justice has an impact on matters involving, inter alia, family relationships, consumers, entrepreneurs, employees, small and medium-sized businesses and large multinational corporations. It therefore has great power and potential. Over the past 15 years a wealth of EU measures have been enacted in this field. Issues arising from the implementation thereof and practice in relation to these measures are now emerging. Hence this volume will explore the benefits as well as the challenges of these measures. The particular themes covered include forum shopping, alternative dispute resolution, simplified procedures and debt collection, family matters and collective redress. In addition, the deepening of the field that continues post-Lisbon has occasioned a new level of regulatory and policy challenges. These are discussed in the final part of the volume which focuses on mutual recognition also in the broader European law context of integration in the area of freedom, security and justice.

The editors

 Burkhard Hess is Director at the Max Planck Institute Luxembourg for International, European and RegulatoryProcedural Law.

Maria Bergström is Senior Lecturer in EU law at the Faculty of Law, Uppsala University.

Eva Storskrubb is Marie Curie Research Fellow at Uppsala University

The Academy of European Law (ERA) will host a conference on the new proposals for Directives on contracts for the supply of digital content (COM(2015) 634 final) and contracts for the online and other distance sales of goods (COM(2015) 635 final), which were published by the European Commission on 9 December 2015 and contain a set of fully harmonized rules on e-commerce. The conference is organized by Dr Angelika Fuchs (ERA) and will take place on 18 February 2016 in Brussels. The event will offer a platform to discuss the new legislative package, which has already become the subject of highly controversial debate, at an early stage in the legislative process by bringing together representatives of the European Commission and the European Parliament as well as legal practitioners, stakeholders and academics.

Key topics will be:

• Scope of the proposed Directives
• How to define conformity?
• Remedies and exercise of remedies
• Specifics for the supply of digital content
• Looking ahead: High standards or low costs for online trade?

The full conference programme is available here.

The speakers are

• Razvan Antemir, Director Government Affairs, EMOTA, Brussels
• Professor Hugh Beale QC, University of Warwick, Harris Manchester College, University of Oxford
• Samuel Laurinkari, Senior Manager, EU Government Relations, eBay Inc., Brussels
• Professor Marco B.M. Loos, Centre for the Study of European Contract Law, University of Amsterdam
• Pedro Oliveira, Senior Adviser, Legal Affairs Department, BUSINESSEUROPE, Brussels
• Ursula Pachl, Deputy Director General, BEUC – The European Consumer Organisation, Brussels
• Professor Dirk Staudenmayer, Head of Unit – Contract Law, DG Justice, European Commission, Brussels
• Professor Matthias E. Storme, Institute for Commercial and Insolvency Law, KU Leuven
• Axel Voss MEP, Rapporteur, JURI Committee, European Parliament, Brussels / Strasbourg
• Diana Wallis, President of the European Law Institute, Vienna
• Professor Friedrich Graf von Westphalen, Rechtsanwalt, Friedrich Graf von Westphalen & Partner, Cologne

The conference language will be English. For further information and registration, please see here.

In Florin Lazar, a judgment rendered on 10 December 2015 (C-350/14), the ECJ clarified the interpretation of Article 4(1) of Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (Rome II).

Pursuant to this provision, the law applicable to a non-contractual obligation arising out of a tort is “the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur”.

The case concerned a traffic accident occurred in Italy, which resulted in the death of a woman. Some close relatives of the victim, not directly involved in the crash, had brought proceedings in Italy seeking reparation of pecuniary and non-pecuniary losses personally suffered by them as a consequence of the death of the woman, ie the moral suffering for the loss of a loved person and the loss of a source of maintenance. Among the claimants, all of them of Romanian nationality, some were habitually resident in Italy, others in Romania.

In these circumstances, the issue arose of whether, in order to determine the applicable law under the Rome II Regulation, one should look at the damage claimed by the relatives in their own right (possibly to be localised in Romania) or only at the damage suffered by the woman as the immediate victim of the accident. Put otherwise, whether the prejudice for which the claimants were seeking reparation could be characterised as a “direct damage” within the meaning of Article 4(1), or rather as an “indirect consequence” of the event, with no bearing on the identification of the applicable law.

In its judgment, the Court held that the damage related to the death of a person in an accident which took place in the Member State of the court seised and sustained by the close relatives of that person who reside in another Member State must be classified as “indirect consequences” of that accident, within the meaning of Article 4(1).

To reach this conclusion, the ECJ began by observing that, according to Article 2 of the Rome II Regulation, “damage shall cover any consequence arising out of tort/delict”. The Court added that, as stated in Recital 16, the uniform conflict-of-laws provisions laid down in the Regulation purport to “enhance the foreseeability of court decisions” and to “ensure a reasonable balance between the interests of the person claimed to be liable and the person who has sustained damage”, and that “a connection with the country where the direct damage occurred … strikes a fair balance between the interests of the person claimed to be liable and the person sustaining the damage”.

The Court also noted that Recital 17 of the Regulation makes clear that “in cases of personal injury or damage to property, the country in which the damage occurs should be the country where the injury was sustained or the property was damaged respectively”.

It follows that, where it is possible to identify the occurrence of direct damage, the place where the direct damage occurred is the relevant connecting factor for the determination of the applicable law, regardless of the indirect consequences of the tort. In the case of a road traffic accident, the damage is constituted by the injuries suffered by the direct victim, while the damage sustained by the close relatives of the latter must be regarded as indirect consequences of the accident.

In the Court’s view, this interpretation is confirmed by Article 15(f) of the Regulation which confers on the applicable law the task of determining which are the persons entitled to claim damages, including, as the case may be, the close relatives of the victim.

Having regard to the travaux préparatoires of the Regulation, the ECJ asserted that the law specified by the provisions of the Regulation also determines the persons entitled to compensation for damage they have sustained personally. That concept covers, in particular, whether a person other than the direct victim may obtain compensation “by ricochet”, following damage sustained by the victim. That damage may be psychological, for example, the suffering caused by the death of a close relative, or financial, sustained for example by the children or spouse of a deceased person.

This reading, the Court added, contributes to the objective set out in Recital 16 to ensure the foreseeability of the applicable law, while avoiding the risk that the tort or delict is broken up in to several elements, each subject to a different law according to the places where the persons other than the direct victim have sustained a damage.

In Florin Lazar, a judgment rendered on 10 December 2015 (C-350/14), the ECJ clarified the interpretation of Article 4(1) of Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (Rome II).

Pursuant to this provision, the law applicable to a non-contractual obligation arising out of a tort is “the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur”.

The case concerned a traffic accident occurred in Italy, which resulted in the death of a woman. Some close relatives of the victim, not directly involved in the crash, had brought proceedings in Italy seeking reparation of pecuniary and non-pecuniary losses personally suffered by them as a consequence of the death of the woman, ie the moral suffering for the loss of a loved person and the loss of a source of maintenance. Among the claimants, all of them of Romanian nationality, some were habitually resident in Italy, others in Romania.

In these circumstances, the issue arose of whether, in order to determine the applicable law under the Rome II Regulation, one should look at the damage claimed by the relatives in their own right (possibly to be localised in Romania) or only at the damage suffered by the woman as the immediate victim of the accident. Put otherwise, whether the prejudice for which the claimants were seeking reparation could be characterised as a “direct damage” within the meaning of Article 4(1), or rather as an “indirect consequence” of the event, with no bearing on the identification of the applicable law.

In its judgment, the Court held that the damage related to the death of a person in an accident which took place in the Member State of the court seised and sustained by the close relatives of that person who reside in another Member State must be classified as “indirect consequences” of that accident, within the meaning of Article 4(1).

To reach this conclusion, the ECJ began by observing that, according to Article 2 of the Rome II Regulation, “damage shall cover any consequence arising out of tort/delict”. The Court added that, as stated in Recital 16, the uniform conflict-of-laws provisions laid down in the Regulation purport to “enhance the foreseeability of court decisions” and to “ensure a reasonable balance between the interests of the person claimed to be liable and the person who has sustained damage”, and that “a connection with the country where the direct damage occurred … strikes a fair balance between the interests of the person claimed to be liable and the person sustaining the damage”.

The Court also noted that Recital 17 of the Regulation makes clear that “in cases of personal injury or damage to property, the country in which the damage occurs should be the country where the injury was sustained or the property was damaged respectively”.

It follows that, where it is possible to identify the occurrence of direct damage, the place where the direct damage occurred is the relevant connecting factor for the determination of the applicable law, regardless of the indirect consequences of the tort. In the case of a road traffic accident, the damage is constituted by the injuries suffered by the direct victim, while the damage sustained by the close relatives of the latter must be regarded as indirect consequences of the accident.

In the Court’s view, this interpretation is confirmed by Article 15(f) of the Regulation which confers on the applicable law the task of determining which are the persons entitled to claim damages, including, as the case may be, the close relatives of the victim.

Having regard to the travaux préparatoires of the Regulation, the ECJ asserted that the law specified by the provisions of the Regulation also determines the persons entitled to compensation for damage they have sustained personally. That concept covers, in particular, whether a person other than the direct victim may obtain compensation “by ricochet”, following damage sustained by the victim. That damage may be psychological, for example, the suffering caused by the death of a close relative, or financial, sustained for example by the children or spouse of a deceased person.

This reading, the Court added, contributes to the objective set out in Recital 16 to ensure the foreseeability of the applicable law, while avoiding the risk that the tort or delict is broken up in to several elements, each subject to a different law according to the places where the persons other than the direct victim have sustained a damage.

On 9 December 2015, the European Commission presented two proposals aimed at the adoption of harmonised rules governing digital contracts, namely a proposal for a directive on certain aspects concerning contracts for the supply of digital content (COM (2016) 634 final), and a proposal for a directive on certain aspects concerning contracts for the online and other distance sales of goods (COM (2016) 635 final)

The proposed measures are meant to pursue one of the basic goals of the Commission’s Digital Market Strategy, ie to ensure better access for consumers and businesses to online goods and services across Europe.

To this end, the proposed directive on the supply of digital content lays down certain requirements “concerning contracts for the supply of digital content to consumers, in particular rules on conformity of digital content with the contract, remedies in case of the lack of such conformity and the modalities for the exercise of those remedies as well as on modification and termination of such contracts”, whereas the proposed directive on online sales of goods provides for rules “concerning distance sales contracts concluded between the seller and the consumer, in particular rules on conformity of goods, remedies in case of non-conformity and the modalities for the exercise of these remedies”.

The legal basis for both directives is Article 114 of the Treaty on the Functioning of the European Union, concerning the “approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market”.

As regards the coordination of the envisaged new directives with the existing rules of private international law that deal with digital contracts, the following remarks may be found in the Commission’s proposals and related texts.

In the explanatory memorandum accompanying the directive on the supply of digital content, the Commission observes that, “[t]ogether with the proposed new contract rules for the purchase of digital content as set out in this proposal, the existing rules on private international law establish a clear legal framework for buying and selling in a European digital market, which takes into account both consumers’ and businesses’ interests”.

As a consequence, “the proposal does not require any changes to the current framework of EU private international law, including to the Regulation (EC) No 593/2008 (Rome I)”. Recital 49 of the preamble reflects this assumption by stating that “[n]othing in this Directive should prejudice the application of the rules of private international law, in particular Regulation (EC) No 593/2008 of the European Parliament and of the Council and Regulation (EC) No 1215/2012 of the European Parliament and the Council”, ie the Brussels Ia Regulation.

A more detailed analysis of the private international law implications of the proposed new rules is provided in the memorandum relating to the directive on online sales of goods.

The Commission begins by noting that the proposal “is compatible with the existing EU rules on applicable law and jurisdiction in the Digital Single Market”. The Brussels Ia and Rome I Regulations “apply also in the digital environment”, “have been adopted quite recently and the implications of the internet were considered closely in the legislative process”.

As a matter of fact, “[s]ome rules take specific account of internet transactions, in particular those on consumer contracts”, and “aim at protecting consumers inter alia in the Digital Single Market by giving them the benefit of the non-derogable rules of the Member State in which they are habitually resident”. Since the proposal on online sales of goods “aims at harmonising the key mandatory provisions for the consumer protection, traders will no longer face such wide disparities across the 28 different legal regimes”.

As stated in the preamble of the proposed directive, “[e]xisting disparities may adversely affect businesses and consumers”, since, pursuant to the Rome I Regulation, “businesses directing activities to consumers in other Member States need to take account of the mandatory consumer contract law rules of the consumer’s country of habitual residence” and may thus “be faced with additional costs”. In these circumstances, “many businesses may prefer to continue trading domestically or only export to one or two Member States”. In addition, while consumers enjoy a high level of protection when they purchase online from abroad as a result of the application of the Rome I Regulation, “fragmentation also impacts negatively on consumers’ levels of confidence in e-commerce”.

In order to remedy those problems, “businesses and consumers should be able to rely on a set of fully harmonised, targeted rules for the online and other distance sales of goods”: uniform rules, the preamble goes on, “are necessary in relation to several essential elements of consumer contract law which under the current minimum harmonisation approach led to disparities and trade barriers across the Union”.

Here, too, in the Commission’s view, the existing rules on private international law establish a clear legal framework for buying and selling in a European digital market, and the legislative proposal does not require any changes to the Brussels Ia and Rome I Regulations. Accordingly, as indicated in Recital 37, nothing in the future directive should prejudice the application of the latter instruments.

As already announced in its Digital Single Market Strategy adopted on 6 May 2015, the Commission has, on 9 December 2015, finally presented a legislative initiative on harmonised rules for the supply of digital content and online sales of goods. The Commission explains: “This initiative is composed of (i) a proposal on certain aspects concerning contracts for the supply of digital content (COM(2015)634 final), and (ii) a proposal on certain aspects concerning contracts for the online and other distance sales of goods (COM(2015)635 final). These two proposals draw on the experience acquired during the negotiations for a Regulation on a Common European Sales Law. In particular, they no longer follow the approach of an optional regime and a comprehensive set of rules. Instead, the proposals contain a targeted and focused set of fully harmonised rules” (COM(2015)634, p. 1). From the perspective of legal policy, this change of approach can only be applauded (see already in this sense von Hein, Festschrift Martiny [2014], p. 365, 389: “Die beste Lösung dürfte aber eine effektive Harmonisierung des europäischen Verbraucherrechts auf einem verbindlichen Niveau darstellen, das optionale Sonderregelungen für den internationalen Handel überflüssig machen würde.”) According to the Commission, “[t]he proposals also build on a number of amendments adopted by the European Parliament in first reading concerning the proposal for a Regulation on the Common European Sales Law, in particular the restriction of the scope to online and other distance sales of goods and the extension of the scope to certain digital content which is provided against another counter-performance than money” (COM(2015)634, p. 1).

On the relationship between the new directive on certain aspects concerning contracts for the online and other distance sales of goods and the existing Brussels Ibis and Rome I Regulations, the Commission elaborates (COM(2015)635, p. 4):

“The proposal is compatible with the existing EU rules on applicable law and jurisdiction in the Digital Single Market. Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters and the Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), which provide rules to determine the competent jurisdiction and applicable law, apply also in the digital environment. These instruments have been adopted quite recently and the implications of the internet were considered closely in the legislative process. Some rules take specific account of internet transactions, in particular those on consumer contracts. These rules aim at protecting consumers inter alia in the Digital Single Market by giving them the benefit of the non-derogable rules of the Member State in which they are habitually resident. Since the current proposal on the online and other distance sales of goods aims at harmonising the key mandatory provisions for the consumer protection, traders will no longer face such wide disparities across the 28 different legal regimes. Together with the proposed new contract rules for online and other distance sales of goods as set out in this proposal, the existing rules on private international law establish a clear legal framework for buying and selling in a European digital market, which takes into account both consumers’ and businesses’ interests. Therefore, this legislative proposal does not require any changes to the current framework of EU private international law, including to Regulation (EC) No 593/2008 (Rome I).”

Aldricus is glad to host the following announcement, provided by Susanne Gössl (Univ. Bonn).

As a group of doctoral and post-doctoral students with a keen interest in private international law (PIL), we are trying to improve the exchange between young scholars in this field. To further this aim, we have undertaken to organize a conference for all German-speaking young scholars (ie doctoral and post-doctoral students) with an interest in private international law.

PIL is understood broadly, including international jurisdiction and procedure, ADR, uniform and comparative law, as long as there is a connection to cross-border relationships.

The conference – which we hope to develop into a recurring event – will take place at the University of Bonn on 6 and 7 April 2017. It will be dedicated to the topic Politics and Private International Law (?) [Politik und Internationales Privatrecht (?)]. 

Choice-of-law rules established in continental Europe have since Savigny traditionally been regarded as ‘neutral’ as they only coordinate the law applicable in substance. However, the second half of the last century was marked by a realisation that choice-of-law rules may themselves promote or prevent certain substantial results. In the US, this has led to a partial abolishment of the classic understanding of the conflict of laws, and to its replacement by an analysis of the particular governmental interests concerned. Other legal systems have also seen traditional choice-of-law rules changed or limited by governmental or other political interests. The conference is dedicated to discussing the different aspects of this interplay between private international law and politics as well as their merits and demerits.

We welcome contributions which focus on classic political elements of private international law, such as lois de police, ordre public or substantial provisions within choice-of-law systems, but also comparisons to methodical alternatives to PIL or contributions discussing more subtle political influences on seemingly neutral choice-of-law rules. Examples range from the ever increasing influence of the European Union over national or international political agendas to questions of ‘regulatory competition’ (which may be relevant in establishing a national forum for litigation or arbitration) or other regulatory issues (such as the regulation of the allegedly international internet). By the same token, international family law and questions of succession are constantly increasing in relevance, the current growth of international migration making it a particularly important field for governmental regulation.

We are glad to announce that Professor Dagmar Coester-Waltjen (University of Göttingen) has accepted our invitation to inaugurate our conference on 6 April 2017. The afternoon will be dedicated to academic discourse and discussion and conclude with a dinner. The conference will continue on 7 April. We plan to publish all papers presented in a conference volume.

We intend to accommodate 6 to 10 papers in the conference programme, each of which will be presented for half an hour, with some additional room for discussion. We will publish a Call for Papers in early 2016 but invite everyone interested to note down the conference date already and consider their potential contributions to the conference topic (in German language).

Questions may be directed at Dr. Susanne L. Gössl, LL.M (sgoessl(at)uni-bonn.de).

For further information please see here.

In a recent article, Samuel Fulli-Lemaire, a Senior Research Fellow at the Max Planck Institute for Comparative and International Private Law in Hamburg and a PhD candidate in Private International Family Law at the Paris II – Panthéon-Assas University, examined the private international law aspects of the PIP breast implants scandal.

The article, in French, appeared under the title Affaire PIP: quelques réflexions sur les aspects de droit international privé in the first issue for 2015 of the Revue internationale de droit économique, together with other papers concerning the PIP case.

Here’s an abstract of the article, provided by the author.

It is now common knowledge that the PIP company, domiciled in France, fraudulently mixed industrial-grade and medical-grade silicone gels to make its breast implants. The victims, women who have received the defective implants and have subsequently developed medical conditions, or who wish to have the implants removed or replaced as a precaution, can claim damages from a variety of actors. Because the victims, the clinics where the operations were performed, and the companies that were part of the supply chain, as well as their insurers, are domiciled in states spread all over the world, this case raises innumerable private international law issues.

This paper focuses on some of these issues, specifically those related to the tort actions which the victims can bring against the manufacturer, its executives, its insurer, and the notified body, which is the entity that was tasked with ensuring that PIP complied with its obligations under the European Union legal framework for medical products. In each case, both international jurisdiction and applicable law will be addressed.

To that end, some technical questions have to be answered first, for instance determining the place where the damage is sustained following the insertion of a potentially defective implant, or to what extent criminal courts can be expected to apply private international rules.

But on a more fundamental level, the PIP case highlights some of the shortcomings of the product liability regime in the single market. To take just one striking example, a French judge ruling on a claim against the manufacturer would apply the rules of the 1973 Hague Convention on the law applicable to products liability, while a German judge would apply the specific provision for product liability of the Rome II Regulation, a discrepancy which might ultimately result in the two claims being subject to different laws. Even though this particular field of the law has been harmonized by the 1985 Product Liability Directive, significant differences remain between the legislations of Member States, and these could have a decisive influence on the outcome of the cases.

This is just one factor that parties should take into account when deciding before which court to start proceedings, and it is likely that the significant forum shopping opportunities afforded to the victims by the Brussels I Regulation will be put to good use by the best-informed among them.

This state of affairs might legitimately be regarded as a lesser evil, since what is ultimately at stake is the compensation of victims of actual or possible bodily harm brought about by the fraudulent behaviour of a manufacturer. But the unequal treatment of victims, particularly depending on their domicile, cannot be regarded as satisfactory, any more than the considerable risk that contradictory or incoherent decisions will be rendered by the courts of different Member States, as some lower courts in Germany and France have already done.

The development of class actions, as introduced recently in French law, albeit in a very limited way, could help suppress or mitigate these difficulties, but accommodating these mechanisms within the framework of European private international law will create additional challenges.

Chris Thomale, Mietmutterschaft – Eine international-privatrechtliche Kritik, Mohr Siebeck, 2015, ISBN 9783161542398, pp. 154, Euro 34.

[Dal sito dell’editore] Die rechtliche Behandlung der Leihmutterschaft beschäftigt in wachsendem Maße Gerichte und Normsetzer auf allen Ebenen. Dabei berühren sich familienrechtliche mit international-privatrechtlichen, kollisionsrechtliche mit prozessrechtlichen sowie einfachrechtliche mit grundrechtlichen und unionsrechtlichen Anwendungsproblemen. Dieser Oberfläche der rechtspositiven Debatte liegen jedoch rechtsethische, rechtstheoretische und vor allem rechtspolitische Fragestellungen zugrunde, die sich erst aus der Regulierungsperspektive eines äußeren Betrachters und hypothetischen Rechtsetzers beurteilen lassen. Chris Thomale bemüht sich darum, beide Herangehensweisen zusammenzuführen, um die internationale Leihmutterschaft einer umfassenden Fundamentalkritik zu unterziehen.

Maggiori informazioni a questo indirizzo.

Il Dipartimento di Giurisprudenza dell’Università di Catania organizza il 9 dicembre 2015 un incontro di studio sul tema Genitorialità, problematiche acquisite all’estero.

L’incontro, presieduto da Tommaso Auletta (Univ. Catania) ed introdotto da Pasquale Pirrone (Univ. Catania), ospiterà le relazioni di Roberto Baratta (Univ. Macerata) su Diritti fondamentali e riconoscimento dello status filii in casi di maternità surrogata, e Giulia Rossolillo (Univ. Pavia) in tema di Riconoscimento di adozioni sconosciute all’ordinamento nazionale. Interverranno, tra gli altri, Adriana Di Stefano e Rosario Sapienza (entrambi Univ. Catania).

Maggiori informazioni nella locandina reperibile qui.

Jurisdiction and the internet is a topic which has featured once or twice on this blog recently (and in a  paper which I have already referred to in those earlier postings). Belgian’s Supreme Court in ordinary (the Hof van Cassatie /Cour de Cassation) employed the objective territoriality principle in a case with roots going back to 2007 (the fraudulent purchase of and subsequent failure to pay for electronic equipment from a shop in Dendermonde, Belgium), Yahoo! was requested to hand over the IP addresses associated with e-mail accounts registered to Yahoo!’s e-mail service. Yahoo! Inc, domiciled in California, refused to comply, triggering fines under criminal law.

Responding to Yahoo!s claims that Belgium was imposing its criminal laws extraterritorially, the Court of Appeal had held that Yahoo! is territorially present in Belgium, hereby voluntarily submitting itself to the jurisdiction of the Belgian authorities: it takes an active part in economic life in Belgium, among others by use of the domain name http://www.yahoo.be, the use of the local language(s) on that website, pop-up of advertisements based on the location of the users, and accessibility in Belgium of Belgium-focussed customer services (among others: a ‘Belgian’ Q&A, FAQ, and post box). [Notice the similarity with the Pammer /Alpenhof criteria]. The Court of Appeal had suggested that the accusations of extraterritoriality could only be accepted had there been a request for the handover of data or objects which are located in the USA, with which there is no Belgian territorial link whatsoever, and if the holder of these objects or data is not accessible in Belgium (either physically or virtually).

The Supreme Court on 1 December (not yet published in relevant databases – I have a copy for interested readers) confirmed all of the Court of Appeal’s arguments, essentially linking them to the objective territoriality principle. Yahoo! actively directs its activities towards consumers present in Belgium.

Even though the case involves a criminal proceeding, the Court’s judgment inevitably (not necessarily justifiably) will be used as further support for the Belgian tussle with Facebook.

Geert.

The Federal Judicial Center (FJC) has just published the most recent item in their series on international litigation. The text, entitled “Discovery in International Civil Litigation: A Guide for Judges,” was written by Timothy Harkness, Rahim Moloo, Patrick Oh and Charline Yim. The guide joins a variety of other titles, including those on mutual legal assistance treaties (T. Markus Funk), the Foreign Sovereign Immunities Act (David Stewart), international commercial arbitration (S.I. Strong), recognition and enforcement of foreign judgments (Ron Brand), and international extradition (Ronald Hedges).

The new text can be downloaded from the FJC website here. The other texts are also available for download at fjc.gov. If you would like a free copy of the new discovery guide or any of the judicial guides on international law, just contact the FJC.