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Il 1° gennaio 2016, come anticipato in un post dello scorso ottobre, è entrata in vigore per l’Italia la Convenzione dell’Aja del 19 ottobre 1996 sulla competenza, la legge applicabile, l’efficacia delle decisioni e la cooperazione in materia di responsabilità genitoriale e di misure di protezione dei minori.

Nessuno sviluppo, tuttavia, si è registrato negli ultimi mesi quanto alle norme preposte all’attuazione del regime convenzionale nell’ordinamento italiano, che il Parlamento non è riuscito ad adottare nella sua interezza contestualmente all’autorizzazione alla ratifica. Il disegno di legge rivolto a tale scopo (atto Senato n. 1552 bis) rimane allo studio della Commissione Giustizia del Senato, senza che in quella sede si sia avuto alcun progresso rispetto dalla seduta del 21 luglio 2015, che ha disposto una serie di audizioni.

In queste circostanze, non è d’aiuto il fatto che il sito web della Conferenza dell’Aja di diritto internazionale privato, nella sezione in cui sono raccolte le informazioni relative alle Autorità centrali degli Stati contraenti, continui a mancare, nel momento in cui scriviamo queste righe, ogni menzione dell’Italia e della sua Autorità centrale (identificata dall’art. 3 della legge n. 101 del 18 giugno 2015 nella Presidenza del Consiglio dei Ministri).

Nel frattempo, soprattutto fuori dall’Italia, il confronto sui temi della Convenzione si fa sempre più intenso. Tra gli sviluppi più recenti, merita di essere segnalato il documento di conclusioni e raccomandazioni elaborato all’esito della conferenza dal titolo Cross Border Child Protection – The 1996 Hague Child Protection Convention in practice, organizzata a Ginevra tra il 21 e il 23 ottobre 2015 dall’ONG Service Social International in collaborazione con la Conferenza dell’Aja.

A two-day seminar on Recent Case Law of the European Court of Human Rights in Family Law Matters, organised by the Academy of European Law (ERA), will take place in Strasbourg on 11 and 12 February 2016.

This seminar will provide participants with a detailed understanding of the most recent jurisprudence of the European Court of Human Rights (ECtHR) related to family law matters. The spotlight is centred on Article 8 (respect for private and family life) in conjunction with Article 14 (prohibition of discrimination) and Article 12 (right to marry). The case law of the ECtHR concentrates not only on the legal implications but also on social, emotional and biological factors.

Speakers include Thalia Kruger (Univ. Antwerp) and Maria Elisa D’Amico (Univ. Maastricht).

For more information see here.

È stato pubblicato sulla Gazzetta ufficiale dell’Unione europea del 24 dicembre 2015 il regolamento (UE) 2015/2421 del 16 dicembre 2015, che modifica il regolamento n. 861/2007, istitutivo del procedimento europeo per le controversie di modesta entità, e il regolamento n. 1896/2006, istitutivo del procedimento europeo di ingiunzione di pagamento (si veda da ultimo, sulla revisione dei due strumenti, questo post).

Queste le novità principali per quanto riguarda i c.d. small claims.

(a) Viene estesa, innanzitutto, la portata applicativa del regolamento n. 861/2007. Le controversie “di modesta entità” sono ora definite tali in relazione ad una soglia di valore che passa dai 2.000 ai 5.000 Euro.

(b) Quanto al procedimento, che per principio rimane scritto, è previsto che il giudice fissi un’udienza “esclusivamente se ritiene che non sia possibile emettere la sentenza sulla base delle prove scritte o su richiesta di una delle parti” e che una richiesta tesa a questo scopo possa essere rigettata solo se il giudice “ritiene che, tenuto conto delle circostanze del caso, un’udienza sia superflua per l’equa trattazione del procedimento” (il testo tuttora in vigore prevede, più genericamente, che il giudice proceda a un’udienza “se lo ritiene necessario o su richiesta di una delle parti”, potendo rigettare una tale richiesta “se ritiene che, tenuto conto delle circostanze del caso, un’udienza sia manifestamente superflua per l’equa trattazione del procedimento”). È incentivato l’uso della videoconferenza e di analoghe tecnologie. Norme più specifiche sono introdotte, poi, con riguardo all’assunzione delle prove nonché in tema di notifiche e comunicazioni.

(c) Le spese di giustizia richieste dai singoli Stati membri “non devono essere sproporzionate e maggiori di quelle applicate ai procedimenti giudiziari nazionali semplificati nello stesso Stato membro”. Agli Stati membri viene comunque chiesto di provvedere “affinché le parti possano pagare le spese di giudizio con mezzi di pagamento a distanza, che consentano alle parti di effettuare il pagamento anche da uno Stato membro diverso da quello in cui ha sede l’organo giurisdizionale”, dovendo essere offerta almeno almeno una delle seguenti modalità di pagamento: bonifico bancario, pagamento con carte di credito o debito, addebito diretto sul conto corrente dell’attore.

(d) La procedura di riesame della sentenza in casi eccezionali è ora consentita al convenuto a cui non è stato notificato il modulo di domanda o, nel caso si sia tenuta un’udienza, se il convenuto stesso non è stato citato a comparire a tale udienza in tempo utile e in modo tale da consentirgli di provvedere alla propria difesa. In alternativa, il riesame rimane ammissibile se il convenuto non ha avuto la possibilità di contestare la domanda a causa di forza maggiore o di circostanze eccezionali a lui non imputabili. Il termine per chiedere il riesame, sin qui ancorato a un parametro generico (“purché agisca tempestivamente”) viene fissato in 30 giorni, decorrenti “dal giorno in cui il convenuto ha avuto effettivamente conoscenza del contenuto della sentenza ed è stato posto nelle condizioni di agire, al più tardi dal giorno della prima misura di esecuzione avente l’effetto di rendere i suoi beni indisponibili in tutto o in parte”. Viene poi garantita, in caso di annullamento della sentenza a seguito dell’accoglimento della richiesta di riesame, la salvezza degli effetti della domanda: ai sensi del nuovo art. 18, par. 3, secondo comma, “l’attore non perde i benefici di un’interruzione dei termini di prescrizione o decadenza ove tale interruzione si applichi ai sensi del diritto nazionale”.

(e) Si prevede adesso che le conciliazioni approvate da un organo giurisdizionale o concluse dinanzi a un organo giurisdizionale nell’ambito del procedimento europeo per le controversie di modesta entità e aventi efficacia esecutiva nello Stato del foro “sono riconosciute ed eseguite in un altro Stato membro alle stesse condizioni delle sentenze emesse nell’ambito del procedimento europeo per le controversie di modesta entità”.

Passando alle innovazioni relative al regolamento n. 1896/2006 sul procedimento europeo di ingiunzione di pagamento, è ora previsto che, in caso di tempestiva opposizione, il procedimento prosegua “dinanzi ai giudici competenti dello Stato membro d’origine” secondo il procedimento europeo per le controversie di modesta entità, laddove applicabile, oppure in conformità con “un rito processuale civile nazionale appropriato”.

Spetterà al ricorrente precisare, nella domanda di ingiunzione, quale di queste procedure debba essere seguita in caso di opposizione alla sua domanda nel successivo procedimento civile qualora il convenuto presenti opposizione all’ingiunzione di pagamento europea.

In mancanza di tale indicazione, o qualora il ricorrente abbia chiesto che si applichi il procedimento europeo per gli small claims a una controversia che non rientra nel campo di applicazione di tale regolamento, “il procedimento viene trattato secondo l’appropriato rito civile nazionale, a meno che il ricorrente non abbia esplicitamente chiesto che tale mutamento di rito non avvenga”.

Le modifiche prefigurate dal nuovo regolamento saranno applicabili a decorrere dal 14 luglio 2017.

In October 2015, the long awaited Commission Report on the application of Regulation No 1896/2006 creating a European Order for Payment Procedure (that was due December 2013) was published. It generally and optimistically concludes that:

Overall, the objective of the Regulation to simplify, speed up and reduce the costs of litigation in cases concerning uncontested claims and to permit the free circulation of European payment orders in the EU without exequatur was broadly achieved, though in most Member States the procedure was only applied in a relatively small number of cases. From the studies and consultation carried out, it appears that there have been no major legal or practical problems in the use of the procedure orin the fact that exequatur is abolished for therecognition and enforcement of the judgments resulting from the procedure.

On the basis of a limited and somewhat outdated set of data the following observations are made. Annually, approximately 12.000 to 13.000 applications for the procedure are received. Most orders are issued in Germany and Austria (approx. 4.000). In seven other Member States, the number of applications is between 300-700, while in the remaining Member States the use of the procedure is very limited.

The time lapse between the application and issuing the order (that should normally not be more than 30 days according to Art. 12 of the EOP Regulation) varies considerably per Member State. Some Member States are able to issue the order within one or several weeks, while the majority of the Member States take several months and up to nine months. Only six Member States have an average length of the procedure lower than 30 days, according to available data upon which the report is based. Another important element for assessing the effectiveness of the procedure is the number of oppositions against the European order for payment; if opposition is lodged the case should proceed according to domestic procedural rules (Art. 16 and 17 EOP Regulation). This percentage varies largely, from approx. 4% (in Austria) to over 50% (in Greece). Looking at the numbers, the general trend is that in Member States where the procedure is used often the opposition rate is low, whereas in Member States where the procedure is rarely used the opposition rate is high. It would be interesting to know what causes what – the chicken and egg dilemma.The costs of the procedure vary considerably per Member State as well, and when translation of documents is required (which is the case in most countries, as the majority only accepts documents in the domestic language), the costs of the procedure are high. Furthermore, Member States have varying methods to calculate court fees.

The report rightfully concludes that Art. 20 of the EOP Regulation requires clarification as has been proposed for the European Small Claims Procedure (see our earlier post). From national case law and a number of cases that have reached the Court of Justice, notably eco cosmetics and Raiffeisenbank St. Georgen (joined cases C-119 and C-120) it is clear that not all situation where a remedy should be available due to defect service are covered by the Regulation. The Court of Justice ruled that national law should provide such remedy. This is clearly a shortcoming of the Regulation also considering that remedies in the Member State of enforcement are limited if not absent, and it (further) undermines the uniform application. On a positive note, the report concludes that generally no problems were reported in the enforcement of EOPs, except for the general lack of transparency of debtors’ assets for enforcement purposes in a cross-border context. This optimistic conclusion may, however, also be due to the lack of information on the actual enforcement track, which can generally be troublesome in many Member States. Regarding the Banco Español case (C-618/10) addressing the issue of order for payment and unfair contract terms (it concerned a clause on interest), the Report concludes that Art. 8 of the EOP Regulation requiring the court to examine whether the claim appears to be founded on the basis of the information available to it, the courts have sufficient room to take account of the principle of effectiveness. They can, for instance, on the basis of Art. 10 issue only a partial order. In addition, a full appreciation takes place after opposition. One might still question whether this satisfactorily resolves the issue, especially how this relates to the encouraged full automatization and digitalization of the procedure and how it shifts the burden to the consumer.

The report urges to raise awareness of the procedure, and suggests that the electronic processing should be maintained and improved; most Member States do not provide electronic submission possibilities for (all) parties yet. Concentration of jurisdiction, as some Member States have done, is advised, as this contributes to a swift resolution of the procedure. Swiftness in general is a problem; the report once again stresses the fact that late payments are a key cause of insolvencies in small and medium-sized enterprises. It then the EOP procedure takes 6 months, the beneficiary effect of the procedure is annihilated.

Happy holidays!

 

Il volume n. 375 del Recueil des cours de l’Académie de Droit International de la Haye, uscito a Novembre 2015, comprende, fra gli altri, uno scritto di Ted M. de Boer intitolato Choice of Law in Arbitration Proceedings.

[Dal sito dell’editore] – Contrary to national courts, arbitral tribunals are not bound to local rules of private international law: there is no lex fori determining the choice-of-law issues that may be raised in arbitration proceedings. Arbitrators are thus faced with the problem of choosing (a) the law governing disputes on the existence and validity of arbitration agreements, (b) the law governing the merits of the case, and (c) the law governing the proceedings as such. Most of these problems could be solved by an express choice of law by the parties. However, apart from the question of whether such a choice is valid and permissible and which law applies to that issue, the principle of party autonomy is of no avail in the absence of a (valid) agreement on the applicable law. In this course, various solutions to the choice-of-law problems that may arise in arbitration proceedings are discussed and evaluated.

Ulteriori informazioni sull’intero volume, compresi gli indici degli articoli, sono disponibili a questo indirizzo.

Regular readers of the blog will know I do not easily stray from the legal menu. When I do, it has to be for something extraordinary. Master in the kitchen is just that, for it takes away all excuses not to spend time with family and friends preparing and enjoying great food produce. (Instead of just food products). Plus the site’s photography offers a lot of eye candy.

To all readers, Merry Christmas or alternative seasons’s greetings.

Geert.

Thanks to the generosity of Sophie Nappert (BCL’86, LLB’86), the Nappert Prize in International Arbitration will be awarded for the second time in 2016 after an enormously successful inaugural competition in 2014. The Nappert Competition is open to all students, junior scholars and junior practitioners from around the world. To be eligible for the prize, authors must be either currently enrolled in a B.C.L, LL.B., J.D., LL.M., D.C.L., or Ph.D. program (or their local equivalents). Those who are no longer in school must have taken their most recent degree within the last three years, or have been admitted to the bar (or the local equivalent) for no more than three years (whichever is later).

Prizes: First place: Can $4,000; Second place: Can. $2,000; Third place: Can $1,000. Winning one of the awards will also carry with it the presentation of the paper at a symposium to be held at McGill in autumn 2016 (the expenses of the winners for attending the symposium will be covered). The precise date of the symposium will be fixed in the coming months. The best oralist will receive an award of Can. $1,000.

Deadline: April 30, 2016.

The essay:
• must relate to commercial or investment arbitration;
• must be unpublished (not yet submitted for publication) as of April 30;
• must be a maximum of 15, 000 words (including footnotes);
• can be written in English or in French;
• should use OSCOLA or some other well-established legal citation guide (e.g. McGill Red Book; Bluebook);
• must be in MS Word format.

Jurors for the 2016 competition will be:
• Sébastien Besson, Partner, Lévy Kaufmann-Kohler, Geneva
• Chester Brown, Professor of International Law and International Arbitration, The University of Sydney Faculty of Law
• José Feris, Deputy Secretary-General, ICC International Court of Arbitration, Paris
• Henry Gao, Associate Professor, Singapore Management University
• Meg Kinnear, Secretary-General, International Centre for Settlement of Investment Disputes, Washington, DC
• Cesar Pereira, Partner, Justen, Pereira, Oliveira, and Talamini, São Paolo
• Abby Cohen Smutny, Partner, White & Case LLP, Washington, DC

Submissions are to be emailed to Camille Marceau, Camille.Marceau@mail.mcgill.ca, as an attached file before April 30, 2016. Submissions should be accompanied by a statement affirming the author’s eligibility for the competition, confirmation that the work is original to the author, and confirmation of the unpublished status of the paper. Review of the papers will start after April 30. For more information, kindly email Mlle. Marceau, Camille.Marceau@mail.mcgill.ca, or Professor Andrea K. Bjorklund, andrea.bjorklund@mcgill.ca, Faculty of Law, McGill University.

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.