Flux des sites DIP

Last weekend the GEDIP (Group européen de droit international privé / European Group for Private International Law) met in Luxembourg. The GEDIP defines itself as “a closed forum composed of about 30 experts of the relations between private international law and European law, mainly academics from about 18 European States and also members of international organizations”. Nevertheless, as the meeting was hosted by the MPI -together with the Faculty of Law of Luxembourg- I had the privilege of being invited to the deliberations.

The history and purpose of the Group are well known: founded in 1991 (which means that it has just celebrated its 25fh anniversary), the Group has since then met once a year as an academic and scientific think tank in the field of European Private International Law. During the meetings the most recent developments in the area are presented and discussed, together with proposals for improving the European PIL legal setting. Actually, while the latter activity is at the core of the GEDIP gatherings, the combination with the former results in a well-balanced program. At the same time it shows the openness and awareness of the Group to what’s happening in other fora (and vice versa): the Commission -K. Vandekerckhove joined as observer and to inform on on-going activities-; the Hague Conference -represented this time by M. Pertegás, who updated us on the work of the Conference-, or the ECtHR -Prof. Kinsch summarized the most relevant decisions of the Strasbourg Court since the last GEDIP meeting.

In Luxembourg we enjoyed as hors d’oeuvre a presentation by Prof. C. Kohler on the CJEU Opinion 2/13, Opinion of the Court (Full Court) of 18 December 2014, on the Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedom. Prof. Kohler started recalling the principle of mutual trust as backbone of the Opinion. From this he moved on to focus on the potential impact of the Opinion on PIL issues, in particular on the public policy clause in the framework of the recognition and enforcement of judgements in civil and commercial matters (here he recalled the recently published decision on C-681/13, where the Opinion is expressly quoted); and on cases of child abduction involving Member States, where the abolition of exequatur may elicit a doubt on the compliance with the ECHR obligations (see ad.ex. the ECtHR decision on the application no. 3890/11, Povse v. Austria). A second presentation, this time by Prof. T. Hartley, addressed the very much disputed issue of antisuit injunctions and the Brussels system in light of the Gazprom decision, case C-536/13. Prof. Hartley expressed his views on the case and explained new strategies developed under English law to protect the effects of choice of court agreements, like the one shown in AMT Futures Limited v. Marzillier, where the latter is sued for having induced the clients of the former to issue proceedings in Germany and to advance causes of action under German law, and thereby to breach the terms of the applicable exclusive jurisdiction and choice of law clauses. AMT claims damages against Marzillier for their having done so, its claim being a claim in tort for inducement of breach of contract

The heart of the meeting was the discussion on two GEDIP on-going projects: a proposal for a regulation on the law applicable to companies, and another on the jurisdiction, the applicable law, the recognition and enforcement of decisions and the cooperation in divorce matters. The first one is at its very final stage, while the second has barely started. From an outsiders point of view such a divergence is really interesting: it’s like assisting to the decoration of a baked cake (companies project), or to the preparation of the pastry (divorce project). Indeed, in terms of the intensity and quality of the debate it does not make much difference: but the fine-tuning of an almost-finished legal text is an amazing encaje de bolillos task, a hard exercise of concentration and deploy of expertise to manage and conciliate a bunch of imperative requisites, starting with internal consistency and consistency with other existing instruments. I am not going to reproduce here the details of the argument: a compte-rendu will be published in the GEDIP website in due time. I’d rather limit myself to highlight how impressive and strenuous is the work of finalizing a legal document, making sure that the policy objectives represented by one provision are not belied by another (the moment this happens the risk is high that the whole project, the underlying basics of it, is unconsciously being challenged), checking the wording to the last adverb, conjunction and preposition, deciding on what should be part of the text and what should rather be taken up in a recital, and so on. By way of example, let me mention the lively discussion on Sunday on the scope and drafting of art. 10 of the proposal on the law applicable to companies, concerning the overriding mandatory rules: I am really eager to see what the final outcome is after the heated debate on how to frame them in the context of a project where party autonomy is the overarching principle, at a time when companies are required to engage in the so-called corporate social responsibility whether they want it or not. Only this point has remained open and has been reported to the next meeting of the GEDIP next year.

I wouldn’t like to end this post without referring to the commitment of the GEDIP and its members with the civil society concerns. On Saturday Prof. Van Loon presented a document drafted in light of the plight of migrants, refugees, and asylum seekers in Europe. The text, addressed to the Member States and Institutions of the EU, aims to raise awareness of the immediate needs of these groups in terms of civil status and of measures to protect the most vulnerable persons within them. Reworked to take up the comments of the members of the GEDIP, a second draft was submitted on Sunday which resumes the problematic and insists on the role of PIL instruments in that context.

All in all, this has been an invaluable experience, for which I would like to thank the GEDIP and in particular the organizers of the event here, Prof. Christian Kohler and Prof. Patrick Kinsch.

The proceedings of the working sessions and the statements of the Group will soon be posted on its Website and published in various law reviews.

Laura Carballo Piñeiro, International Maritime Labour Law, Springer, 2012, pp. 311, ISBN 9783662470329, Euro 103,99.

[Dal sito dell’editore] ​This book focuses on maritime employment from a private international law perspective. The first chapter analyzes the background against which international jurisdiction and conflict of laws rules are drawn up and examines uniform law in this context, in particular the 2006 Maritime Labour Convention and the 2007 ILO Convention No. 188 on Work in Fishing. The second chapter addresses international jurisdiction issues as regards individual employment contracts, while also exploring other issues (e.g. insolvency-related and social security matters) that are subsequently revisited in the third chapter while discussing conflict of laws issues related to said contracts. In turn, chapter four focuses on collective labour relations and private international law, i.e. collective agreements, strikes and other forms of collective action and information, and on the participation rights of employees in business matters.

Ulteriori informazioni a questo indirizzo.

Eric Loquin, L’arbitrage du commerce international, Joly, 2015, pp. 464, ISBN 9782306000526, Euro 65.

[Dal sito dell’editore]  Justice privée, l’arbitrage est le mode normal de règlement des litiges nés des opérations du commerce international. Loin d’être une institution se développant en marge des juridictions étatiques et objet de leur défiance, l’arbitrage constitue une justice assistée par les juges des États, qui collaborent à son efficacité. Les législations étatiques comme les conventions internationales offrent un cadre juridique favorable à son bon fonctionnement. Le droit de l’arbitrage a fait de l’arbitrage international une institution autonome des ordres juridiques étatiques, dont le fonctionnement repose sur des normes choisies et élaborées par les parties, qui transcendent la diversité des droits étatiques. L’arbitrage international est devenu une justice transnationale répondant aux besoins d’une économie mondialisée. L’ouvrage offre une description exhaustive du droit français de l’arbitrage international après sa réforme par le décret du 13 janvier 2011. L’étude du droit français est accompagnée de nombreux développements de droit comparé destinés à présenter une vision globale du phénomène de l’arbitrage international dans le monde. L’auteur, universitaire spécialisé dans le droit de l’arbitrage et praticien de l’arbitrage, a voulu présenter une approche à la fois théorique et pratique de la procédure arbitrale. À ce titre, l’ouvrage est à la fois destiné aux enseignants et aux étudiants, mais aussi aux avocats, juristes d’entreprises, institutions d’arbitrage et bien sûr arbitres.

Si veda qui per maggiori informazioni.

In a judgment of 16 September 2015, in the case of Alpha Bank Cyprus Ltd v. Dau Si Senh and others (Case C?519/13), the ECJ clarified the interpretation of Regulation No 1393/2007 on the service of judicial and extrajudicial documents in civil or commercial matters (the Service Regulation).

The judgment originated from a request for a preliminary ruling submitted by the Supreme Court of Cyprus in the framework of proceedings initiated by a Cypriot bank against, inter alia, individuals permanently resident in the UK.

The latter claimed that the documents instituting the proceedings had not been duly served. They complained, in particular, that some of the documents they had received (namely the order authorising service abroad) were not accompanied by a translation into English and that the standard form referred to in Article 8(1) of Regulation No 1393/2007 was never served on them.

Pursuant to Article 8 of the Service Regulation, the “receiving agency”, ie the agency competent for the receipt of judicial or extrajudicial documents from another Member State under the Regulation, must inform the addressee, “using the standard form set out in Annex II”, that he has the right to refuse to accept a document if this “is not written in, or accompanied by a translation into, either of the following languages: (a) a language which the addressee understands; or (b) the official language of the Member State addressed”.

In its judgment, the ECJ held that the receiving agency “is required, in all circumstances and without it having a margin of discretion in that regard, to inform the addressee of a document of his right to refuse to accept that document”, and that this requirements must be fulfilled “by using systematically … the standard form set out in Annex II”. The Court also held, however, that, where the receiving agency fails to enclose the standard form in question, this “does not constitute a ground for the procedure to be declared invalid, but an omission which must be rectified in accordance with the provisions set out in that regulation”.

The ECJ based this conclusion on the following remarks.

Regarding the binding nature of the standard form, the Court noticed that the wording of Article 8 of the Regulation is not decisive, and that the objectives of the Regulation and the context of Article 8 should rather be considered.

As regards the objectives of the Regulation, the Court stated that the uniform EU rules on the service of documents aim to improve the efficiency and speed of judicial procedures, but stressed that those objectives cannot be attained by undermining in any way the rights of the defence of the addressees, which derive from the right to a fair hearing, enshrined in Article 47 of the Charter of Fundamental Rights of the EU and Article 6(1) of the ECHR.

The Court added, in this regard, that “it is important not only to ensure that the addressee of a document actually receives the document in question, but also that he is able to know and understand effectively and completely the meaning and scope of the action brought against him abroad, so as to be able effectively to assert his rights in the Member State of transmission”. It is thus necessary to strike a balance between the interests of the applicant and those of the defendant by reconciling the objectives of efficiency and speed of the service of the procedural documents with the need to ensure that the rights of the defence of the addressee of those documents are adequately protected.

As concerns the system established by the Service Regulation, the ECJ began by noting that the service of documents is, in principle, to be effected between the “transmitting agencies” and the “receiving agencies” designated by the Member States, and that, in accordance with Article 5(1) of the Regulation, it is for the transmitting agency to inform the applicant that the addressee may refuse to accept it if it is not in one of the languages provided for in Article 8, whereas it is for the applicant to decide whether the document at issue must be translated.

For its part, the receiving agency is required to effectively serve the document on the addressee, as provided for by Article 7 of Regulation No 1393/2007. In that context, the receiving agency must, among other things, inform the addressee that it may refuse to accept the document if it is not translated into one of the languages referred to in Article 8(1).

By contrast, the said agencies “are not required to rule on questions of substance, such as those concerning which language(s) the addressee of the document understands and whether the document must be accompanied by a translation into one of the languages” specified in Article 8(1). Any other interpretation, the ECJ added, “would raise legal problems likely to create legal disputes which would delay or make more difficult the procedure for transmitting documents from one Member State to another”.

In the main proceedings, the UK receiving agency considered that the order authorising service of the document abroad should not be translated and deduced from that that it was not required to enclose with the document at issue the relevant standard form.

In reality, according to the ECJ, the Service Regulation “does not confer on the receiving agency any competence to assess whether the conditions, set out in Article 8(1), according to which the addressee of a document may refuse to accept it, are satisfied”. Actually, “it is exclusively for the national court before which proceedings are brought in the Member State of origin to rule on questions of that nature, since they oppose the applicant and the defendant”.

The latter court “will be required, in each individual case, to ensure that the respective rights of the parties concerned are upheld in a balanced manner, by weighing the objective of efficiency and of rapidity of the service in the interest of the applicant against that of the effective protection of the rights of the defence on the part of the addressee”.

Specifically, as regards the use of the standard forms, the ECJ observed, based on the Preamble of the Regulation, that the forms “contribute to simplifying and making more transparent the transmission of documents, thereby guaranteeing both the legibility thereof and the security of their transmission”, and are regarded by the Regulation as “instruments by means of which addressees are informed of their ability to refuse to accept the document to be served”.

The wording of the Regulation and of the forms themselves makes clear that the ability to refuse to accept a document in accordance with Article 8(1) is “a ‘right’ of the addressee of that document”. In order for that right to usefully produce its effects, the addressee of the document must be informed in writing thereof.

As a matter of fact, Article 8(1) of the Regulation contains two distinct statements. On the one hand, the substantive right of the addressee of the document to refuse to accept it, on the sole ground that it is not drafted in or accompanied by a translation in a language he is expected to understand. On the other hand, the formal information about the existence of that right brought to his knowledge by the receiving agency. In other words, in the Court’s view, “the condition relating to the languages used for the document relates not to the information given to the addressee by the receiving agency, but exclusively to the right to refuse reserved to that addressee”.

The ECJ went on to stress that the refusal of service is conditional, in so far as the addressee of the document may validly make use of the right only where the document at issue is not drafted in or accompanied by a translation either in a language he understands or in the official language of the receiving Member State. It is ultimately for the court seised to decide whether that condition is satisfied, by checking whether the refusal by the addressee of the document was justified. The fact remains, however, that the exercise of that right to refuse “presupposes that the addressee of the document has been duly informed, in advance and in writing, of the existence of his right”.

This explains why the receiving agency, where it serves or has served a document on its addressee, “is required, in all circumstances, to enclose with the document at issue the standard form set out in Annex II to Regulation No 1393/2007 informing that addressee of his right to refuse to accept that document”. This obligation, the Court stressed, should not create particular difficulties for the receiving agency, since “it suffices that that agency enclose with the document to be served the preprinted text as provided for by that regulation in each of the official languages of the European Union”.

Moving on to the consequences of a failure to provide information using the standard form, the ECJ noted, at the outset, that it is not apparent from any provision of that regulation that such a failure leads to the invalidity of the procedure for service.

Rather, the Court reminded that, in Leffler — a case relating to the interpretation of Regulation No 1348/2000, the predecessor of Regulation No 1393/2007 — it held that the non-observance of the linguistic requirements of service does not imply that the procedure must necessarily be declared invalid, but rather involves the necessity to allow the sender to remedy the lack of the required document by sending the requested translation. The principle is now laid down in Article 8(3) of Regulation No 1393/2007.

According to the ECJ, a similar solution must be followed where the receiving agency has failed to transmit the standard form set out in Annex II to that regulation to the addressee of a document.

In practice, it is for the receiving agency to inform “without delay” the addressees of the document of their right to refuse to accept that document, by sending them, in accordance with Article 8(1), the relevant standard form. In the event that, as a result of that information, the addressees concerned make use of their right to refuse to accept the document at issue, it is for the national court in the Member State of origin to decide whether such a refusal is justified in the light of all the circumstances of the case.

In a judgment of 16 September 2015, in the case of Alpha Bank Cyprus Ltd v. Dau Si Senh and others (Case C‑519/13), the ECJ clarified the interpretation of Regulation No 1393/2007 on the service of judicial and extrajudicial documents in civil or commercial matters (the Service Regulation).

The judgment originated from a request for a preliminary ruling submitted by the Supreme Court of Cyprus in the framework of proceedings initiated by a Cypriot bank against, inter alia, individuals permanently resident in the UK.

The latter claimed that the documents instituting the proceedings had not been duly served. They complained, in particular, that some of the documents they had received (namely the order authorising service abroad) were not accompanied by a translation into English and that the standard form referred to in Article 8(1) of Regulation No 1393/2007 was never served on them.

Pursuant to Article 8 of the Service Regulation, the “receiving agency”, ie the agency competent for the receipt of judicial or extrajudicial documents from another Member State under the Regulation, must inform the addressee, “using the standard form set out in Annex II”, that he has the right to refuse to accept a document if this “is not written in, or accompanied by a translation into, either of the following languages: (a) a language which the addressee understands; or (b) the official language of the Member State addressed”.

In its judgment, the ECJ held that the receiving agency “is required, in all circumstances and without it having a margin of discretion in that regard, to inform the addressee of a document of his right to refuse to accept that document”, and that this requirements must be fulfilled “by using systematically … the standard form set out in Annex II”. The Court also held, however, that, where the receiving agency fails to enclose the standard form in question, this “does not constitute a ground for the procedure to be declared invalid, but an omission which must be rectified in accordance with the provisions set out in that regulation”.

The ECJ based this conclusion on the following remarks.

Regarding the binding nature of the standard form, the Court noticed that the wording of Article 8 of the Regulation is not decisive, and that the objectives of the Regulation and the context of Article 8 should rather be considered.

As regards the objectives of the Regulation, the Court stated that the uniform EU rules on the service of documents aim to improve the efficiency and speed of judicial procedures, but stressed that those objectives cannot be attained by undermining in any way the rights of the defence of the addressees, which derive from the right to a fair hearing, enshrined in Article 47 of the Charter of Fundamental Rights of the EU and Article 6(1) of the ECHR.

The Court added, in this regard, that “it is important not only to ensure that the addressee of a document actually receives the document in question, but also that he is able to know and understand effectively and completely the meaning and scope of the action brought against him abroad, so as to be able effectively to assert his rights in the Member State of transmission”. It is thus necessary to strike a balance between the interests of the applicant and those of the defendant by reconciling the objectives of efficiency and speed of the service of the procedural documents with the need to ensure that the rights of the defence of the addressee of those documents are adequately protected.

As concerns the system established by the Service Regulation, the ECJ began by noting that the service of documents is, in principle, to be effected between the “transmitting agencies” and the “receiving agencies” designated by the Member States, and that, in accordance with Article 5(1) of the Regulation, it is for the transmitting agency to inform the applicant that the addressee may refuse to accept it if it is not in one of the languages provided for in Article 8, whereas it is for the applicant to decide whether the document at issue must be translated.

For its part, the receiving agency is required to effectively serve the document on the addressee, as provided for by Article 7 of Regulation No 1393/2007. In that context, the receiving agency must, among other things, inform the addressee that it may refuse to accept the document if it is not translated into one of the languages referred to in Article 8(1).

By contrast, the said agencies “are not required to rule on questions of substance, such as those concerning which language(s) the addressee of the document understands and whether the document must be accompanied by a translation into one of the languages” specified in Article 8(1). Any other interpretation, the ECJ added, “would raise legal problems likely to create legal disputes which would delay or make more difficult the procedure for transmitting documents from one Member State to another”.

In the main proceedings, the UK receiving agency considered that the order authorising service of the document abroad should not be translated and deduced from that that it was not required to enclose with the document at issue the relevant standard form.

In reality, according to the ECJ, the Service Regulation “does not confer on the receiving agency any competence to assess whether the conditions, set out in Article 8(1), according to which the addressee of a document may refuse to accept it, are satisfied”. Actually, “it is exclusively for the national court before which proceedings are brought in the Member State of origin to rule on questions of that nature, since they oppose the applicant and the defendant”.

The latter court “will be required, in each individual case, to ensure that the respective rights of the parties concerned are upheld in a balanced manner, by weighing the objective of efficiency and of rapidity of the service in the interest of the applicant against that of the effective protection of the rights of the defence on the part of the addressee”.

Specifically, as regards the use of the standard forms, the ECJ observed, based on the Preamble of the Regulation, that the forms “contribute to simplifying and making more transparent the transmission of documents, thereby guaranteeing both the legibility thereof and the security of their transmission”, and are regarded by the Regulation as “instruments by means of which addressees are informed of their ability to refuse to accept the document to be served”.

The wording of the Regulation and of the forms themselves makes clear that the ability to refuse to accept a document in accordance with Article 8(1) is “a ‘right’ of the addressee of that document”. In order for that right to usefully produce its effects, the addressee of the document must be informed in writing thereof.

As a matter of fact, Article 8(1) of the Regulation contains two distinct statements. On the one hand, the substantive right of the addressee of the document to refuse to accept it, on the sole ground that it is not drafted in or accompanied by a translation in a language he is expected to understand. On the other hand, the formal information about the existence of that right brought to his knowledge by the receiving agency. In other words, in the Court’s view, “the condition relating to the languages used for the document relates not to the information given to the addressee by the receiving agency, but exclusively to the right to refuse reserved to that addressee”.

The ECJ went on to stress that the refusal of service is conditional, in so far as the addressee of the document may validly make use of the right only where the document at issue is not drafted in or accompanied by a translation either in a language he understands or in the official language of the receiving Member State. It is ultimately for the court seised to decide whether that condition is satisfied, by checking whether the refusal by the addressee of the document was justified. The fact remains, however, that the exercise of that right to refuse “presupposes that the addressee of the document has been duly informed, in advance and in writing, of the existence of his right”.

This explains why the receiving agency, where it serves or has served a document on its addressee, “is required, in all circumstances, to enclose with the document at issue the standard form set out in Annex II to Regulation No 1393/2007 informing that addressee of his right to refuse to accept that document”. This obligation, the Court stressed, should not create particular difficulties for the receiving agency, since “it suffices that that agency enclose with the document to be served the preprinted text as provided for by that regulation in each of the official languages of the European Union”.

Moving on to the consequences of a failure to provide information using the standard form, the ECJ noted, at the outset, that it is not apparent from any provision of that regulation that such a failure leads to the invalidity of the procedure for service.

Rather, the Court reminded that, in Leffler — a case relating to the interpretation of Regulation No 1348/2000, the predecessor of Regulation No 1393/2007 — it held that the non-observance of the linguistic requirements of service does not imply that the procedure must necessarily be declared invalid, but rather involves the necessity to allow the sender to remedy the lack of the required document by sending the requested translation. The principle is now laid down in Article 8(3) of Regulation No 1393/2007.

According to the ECJ, a similar solution must be followed where the receiving agency has failed to transmit the standard form set out in Annex II to that regulation to the addressee of a document.

In practice, it is for the receiving agency to inform “without delay” the addressees of the document of their right to refuse to accept that document, by sending them, in accordance with Article 8(1), the relevant standard form. In the event that, as a result of that information, the addressees concerned make use of their right to refuse to accept the document at issue, it is for the national court in the Member State of origin to decide whether such a refusal is justified in the light of all the circumstances of the case.

In Roonse Recycling & Serice BV v BSS Heavy Machinery GmbH, the Court at Rotterdam first of all discussed the factual circumstance of a possible choice of court agreement between parties, in favour of the courts at Eberswalde (Germany). Such choice of court is made in the general terms and conditions of seller, BSS. whether parties had actually agreed to these, was in dispute. Roonse suggests the reference on the front page of the order form to the general terms and conditions on the backside (‘umseitiger‘) was without subject for that back page was blank. The court therefore suggests that agreement depends on whether, as was suggested, the standard terms and conditions were attached (stapled, presumably) to the order form. Whether this was the case is a factual consideration which Rotterdam does not further entertain for even if the choice of court agreement is invalid, the court found it would not have jurisdiction under the only other alternative: Article 7(1) special jurisdictional rule for ‘contracts’.

Roonse suggest that the parties had agreed that the contract, a delivery of good, is performed in Rotterdam for that, it argues, is where delivery took place per the Incoterm CPT (carriage paid to). The CJEU has flagged the inconclusive effect of the mere use of Incoterms for the purposes of finding an agreement between parties under Article 7, in Electrosteel Case C-87/10 (in that case with respect to the use of ‘ex works’) and has generally insisted, per Car Trim Case C-381/08 that the courts need to make reference to all relevant terms and conditions in the agreement so as to determine the place of delivery.

Rotterdam in casu held the Incoterm CPT Rotterdam as being mostly a reference to costs, not place of delivery. Where it is impossible to determine the place of delivery on that basis, without reference to the substantive law applicable to the contract, that place at least for the sale of goods, the CJEU held, is the place where the physical transfer of the goods took place, as a result of which the purchaser obtained, or should have obtained, actual power of disposal over those goods at the final destination of the sales transaction. In casu, this was found to be in the geographical jurisdiction of the courts at Den Haag. Given that Article 7(1) does not merely identify the courts of a Member State but rather a specific court within a Member State, Rotterdam has no jurisdiction.

The case is a good reminder of the limited power of Incoterms to determine jurisdiction. Better have a specific choice of court clause (which here may or may not have presented itself here in the general terms and conditions of seller).

Geert.

Uno degli obiettivi sottesi all’imminente riforma del regolamento n. 861/2007, istitutivo del procedimento europeo per le controversie di modesta entità, segnalata in un post recente, è quello di assicurare a tale modello, nella pratica, una fortuna maggiore di quella registratasi in questi anni.

Poche, specie in Italia, sono infatti le decisioni pubblicate, rese in applicazione del regolamento, che pure è applicabile dal 1° gennaio 2009.

Vale dunque la pena di dar conto, a titolo di esempio, di un provvedimento pronunciato sulla base del regolamento n. 861/2007, segnalato alla redazione di Aldricus dall’avv. Grazia Ferdenzi di Parma. Si tratta della decisione con cui il 6 febbraio 2014 il Giudice di pace di Parma ha condannato la compagnia aerea EasyJet al pagamento di una somma per il ritardo prolungato subito da alcuni passeggeri.

Questi ultimi avevano basato le proprie richieste sul regolamento n. 261/2004 che istituisce regole comuni in materia di compensazione ed assistenza ai passeggeri in caso di negato imbarco, di cancellazione del volo o di ritardo prolungato, ed avevano convenuto la compagnia aerea di fronte al Giudice di pace di Parma instaurando, appunto, un procedimento europeo per le controversie di modesta entità.

Nella domanda, redatta compilando il Modulo A allegato al regolamento n. 861/2007 (tutti i formulari relativi al procedimento sono reperibili qui), gli attori hanno invocato, per affermare la giurisdizione italiana, le norme europee che disciplinano la competenza giurisdizionale in materia di contratti conclusi con in consumatori. Se è pur vero che il passeggero, in Italia, può essere associato alla figura del consumatore (tanto che sono proprio le associazioni a protezione dei consumatori che si occupano di salvaguardare i diritti dei passeggeri di trasporti aerei alla luce della normativa europea), ai fini dell’individuazione dell’organo competente in controversie a carattere transnazionale che coinvolgano un consumatore, questa nozione deve essere intesa in maniera autonoma.

L’art. 15, par. 3 (“competenza in materia di contratti conclusi dai consumatori”), del regolamento (CE) n. 44/2001 concernente la competenza giurisdizionale, il riconoscimento e l’esecuzione delle decisioni in materia civile e commerciale (qui applicabile ratione temporis, oggi sostituito dal regolamento (UE) n. 1215/2012), esclude espressamente l’applicazione della sezione relativa ai contratti conclusi da consumatori “ai contratti di trasporto che non prevedono prestazioni combinate di trasporto e di alloggio per un prezzo globale”.

Varrebbe, semmai, il foro del contratto, come determinato in base all’art. 5, punto 1, del regolamento (CE) n. 44/2001. Nello specifico, nel caso Peter Rehder (9 luglio 2009, causa C‑204/08), la Corte di giustizia ha chiarito che il contratto di trasporto concluso con una compagnia aerea deve essere interpretato quale contratto di prestazione di servizi, ai fini del quale la competenza giurisdizionale deve essere individuata nell’autorità giurisdizionale del luogo “situato in uno Stato membro, in cui i servizi sono stati o avrebbero dovuto essere prestati in base al contratto” (art. 5, punto 1, lett. b), secondo trattino). Ciò premesso, la Corte ha specificato che il giudice competente a conoscere di una domanda di compensazione pecuniaria basata sul contratto di trasporto concluso da un passeggero con una compagnia aerea e sul regolamento (CE) n. 261/2004, che istituisce regole comuni in materia di compensazione ed assistenza ai passeggeri in caso di negato imbarco, di cancellazione del volo o di ritardo prolungato, è quello “a scelta dell’attore, nella cui circoscrizione si trovano il luogo di partenza o il luogo di arrivo dell’aereo quali indicati in detto contratto”.

Negli atti del procedimento dinanzi al Giudice di Parma, rileva anche il fatto che il provvedimento non sia stato emesso mediante la compilazione del Modulo D, come (non solo raccomandato, ma) formalmente prescritto dal regolamento n. 861/2007. La mancata osservanza della forma pregiudica l’elevato grado di standardizzazione che connota questo regolamento e, di conseguenza, la circolazione delle decisioni emesse all’esito del relativo procedimento.

In Chevron Corp v Yaiguaje, the Canadian Supreme Court confirmed the country’s flexible approach to the jurisdictional stage of recognition and enforcement actions. I have reported on the case’s overall background before. More detail on the case is provided here by Border Ladner Gervais, as do McMillan (adding a critical note) here, and I am happy to refer – suffice to say on this blog that an accommodating approach to the very willingness of courts to entertain a recognition and enforcement action is not as such unusual to my knowledge. It is very much a case of comity to at least not blankly refuse to hear the case for enforcing a judgment issued by a foreign court.

Much more challenging will be the merits of the case, for one imagines the usual arguments against will certainly exercise the Canadian courts.

Finally, even if Chevron assets in Canada were not to suffice to meet the considerable award (in particular if the courts further down the line were to keep the mother company out of the action), any success in Canadian courts, however small, no doubt will serve applicants’ case for recognition in other jurisdictions.

Geert.

 

 

 

Il terzo fascicolo del 2015 di Internationales Handelsrecht ospita un articolo di Kasper Steensgaard intitolato Battle of the forms under the CISG – one or more solutions? (p. 89-94), dedicato alle soluzioni ricavabili dalla Convenzione di Vienna sulla compravendita internazionale di beni mobili del 1980 (CISG) circa il conflitto fra condizioni generali di contratto, o “battaglia dei formulari”, cioè la situazione che si verifica allorché, in sede di formazione del contratto, le parti si richiamino a condizioni generali fra loro divergenti.

Il problema, che dev’essere affrontato nell’ottica dell’art. 19 CISG, relativo all’accettazione della proposta contrattuale, consiste fondamentalmente nello stabilire se per effetto dell’emissione di dichiarazioni negoziali corredate da un richiamo alle rispettive condizioni generali, si sia formato un vincolo contrattuale fra le parti e, laddove la risposta sia positiva, quale ne sia il contenuto.

L’autore dell’articolo, attraverso un’indagine incentrata soprattutto sulla giurisprudenza sviluppata negli Stati Uniti e in Germania, analizza le due principali soluzioni proposte in quest’ambito, costituite, rispettivamente, dalla last-shot rule e dalla knock-out rule.

La prima soluzione è, per Steensgaard, quella preferibile, trattandosi del derivato “logico e naturale” del principio della corrispondenza fra proposta e accettazione (“mirror image principle”), sancito all’art. 19, par. 1, CISG. Di fatto, l’oblato, quando replica alla proposta richiamando le proprie divergenti condizioni generali, emette una controproposta: se l’offerente non reagisce, la dichiarazione negoziale dell’oblato (il “last shot”), se seguita dall’accettazione anche tacita dell’altra parte, condurrà alla conclusione di un contratto conforme agli standard terms richiamati dallo stesso oblato. Questi, in pratica, delinea i contenuti del contratto, in assenza di obiezioni ad opera dell’altra parte, mediante il richiamo alle proprie condizioni. Una simile conclusione si impone, peraltro, solo quando alla parte che finisce col soccombere nella “battaglia” delle condizioni generali sia imputabile un’accettazione almeno implicita, ad esempio mediante fatti concludenti, non essendo sufficiente a questo fine una mera inerzia.

La seconda soluzione, vale a dire la knock-out rule, implica invece un raffronto tra proposta e accettazione allo scopo di estrapolare dalle condizioni generali di entrambe le parti tutti e soltanto gli elementi comuni, che costituiranno il contratto, estromettendo i termini divergenti, i quali verranno sostituiti dal corrispondente regime legale. Senonché, stando all’autore dell’articolo, la knock-out rule, che pure ha il pregio di valorizzare il consenso delle parti, mal si concilia con i dati offerti dalla Convenzione.

A tal proposito, merita di essere segnalato il contrario parere del CISG Advisory Council (Opinion No 13, punto 10), favorevole al knock-out approach, in linea con quanto previsto in materia dai Principi Unidroit e nonostante il potenziale contrasto con la lettera dell’art. 19 CISG. L’applicabilità della knock-out rule viene giustificata facendo leva sull’art. 6 CISG, che consente alle parti di derogare la Convenzione, valorizzando la loro autonomia come principio generale della CISG: se esse concordano sull’applicazione di alcuni termini, comuni ad entrambe, e manifestano la volontà di incorporarli nel contratto, tale loro accordo prevale sulla CISG.

Ulteriori informazioni sul fascicolo, compreso il sommario, sono reperibili a questo indirizzo.

Intellectual Property and Private International Law, a cura di Paul Torremans, Edward Elgar, 2015, pp. 880, ISBN 9781783471423, GBP 265.

[Dal sito dell’editore]  This collection, made possible by the recent convergence of intellectual property and private international law as critical disciplines, brings together the most important papers on these now linked subjects. More and more issues of private international law arise in the area of intellectual property, and the articles selected chart the route that both disciplines have covered together, discussing bridges built and dead-ends reached. Also looking forward to the future of the subject, with an original introduction by Professor Paul Torremans, Intellectual Property and Private International Law will prove to be an essential research tool for all students, academics and practitioners working in this fast-developing area.

Maggiori informazioni, compreso il sommario dell’opera, sono disponibili a questo indirizzo.

Dr. Christoph Reithmann and Professor Dr. Dieter Martiny (editors) have just published a new edition of their standard treatise on international contract law: Internationales Vertragsrecht – Das internationale Privatrecht der Schuldverträge, 8th. ed., Cologne (Dr. Otto Schmidt) 2015.

This 2348-pages strong volume is universally acknowledged as one of the leading works on international contract law in the German language. It features in-depth analyses not only of the Rome I-Regulation, but also of various aspects not dealt with in Rome I, such as capacity and agency. Moreover, it also contains a chapter on choice of law under the Rome II Regulation. The book has been written by a team that is made up of renowned German and Swiss PIL scholars and practitioners. Highly recommended! For further information, see the publisher’s website here.

The exam season is over, otherwise Goldhar v Haaretz would have made a great case for comparative analysis. Instead this can now feed into class materials. This is an interlocutory judgment on the basis of lack of jurisdiction and /or abuse of process. Plaintiff lives in Toronto.  He is a billionaire who owns i.a. Maccabi Tel Aviv. (Chelsea’s first opponent in the Champions League. But that’s obviously an aside). Mr Goldhar visits Israel about five or six times per year. Defendant is Haaretz Daily Newspaper Ltd. which publishes Haaretz, Israel’s oldest daily newspaper (market share about 7%).   It also publishes an English language print edition.  Haaretz is published online in both English and Hebrew.

Haaretz published a very critical article on Mr Goldhar in November 2011. The print version was not published in Canada, in either English or Hebrew. However, Haaretz was made available internationally on its website in Israel in both Hebrew and English – the judgment does not say so specifically however I assume this was both on the .co.il site – even if currently Haaretz’ EN site is available via a .com site.

Information provided by the defendants reveals that there were 216 unique visits to the Article in its online form in Canada. Testimony further showed that indeed a number of people in Canada read the article – this was sufficient for Faieta J to hold that a tort was committed in Ontario and thus a presumptive connecting factor exists. Presumably this means that the court (and /or Canadian /Ontario law with which I am not au fait) view the locus delicti commissi (‘a tort was committed’) as Canada – a conclusion not all that obvious to me (I would have assumed Canada is locus damni only). Per precedent, the absence of a substantial publication of the defamatory material in Canada was not found to be enough to rebut the finding of jurisdiction.

Forum non conveniens was dismissed on a variety of grounds, including applicable law being the law of Ontario (again Ontario is identified as the locus delicti commissi: at 48). Plaintiff will have to cover costs for the appearance, in Canada, of defendants’ witnesses. Importantly, plaintiff will also only be able to seek damages for reputational harm suffered within Canada.

I can see this case (and the follow-up in substance) doing the rounds of conflicts classes.

Geert.

 

 

 

È ora disponibile il programma dell’incontro del 2 ottobre 2015 — già segnalato in questo post — dal titolo Libera circolazione e riconoscimento delle famiglie: profili di diritto internazionale privato, tutela dei diritti e ordinamento interno. 

L’evento si terrà presso l’Università degli studi di Milano ed è organizzato nell’ambito del modulo Jean Monnet on European Family Law di cui è titolare Chiara Ragni, in cooperazione con la Rivista GenIUS.

Il convegno si articolerà in tre sessioni. La prima, dedicata a Diritti umani e diritto internazionale privato, introdotta e presieduta da Nerina Boschiero (Univ. Milano), ospiterà le relazioni di Francesco Salerno (Univ. Ferrara) e Patrick Kinsch (Univ. Lussemburgo).

Durante la seconda sessione, incentrata sul Riconoscimento degli status e diritti umani nell’ordinamento dell’Unione europea e nel diritto costituzionale italiano e moderata da Stefania Bariatti (Univ. Milano), si alterneranno le relazioni di Marilisa D’Amico (Univ. Milano) e Giulia Rossolillo (Univ. Pavia), seguiti dagli interventi di Livio Scaffidi Runchella, Joelle Long, Manuela Naldini, Giuseppe Zago ed Eva De Goetzen.

Nell’ultima sessione, su La questione della trascrizione degli atti formati all’estero, presieduta da Ilaria Viarengo (Univ. Milano), si svolgeranno le relazioni di Barbara Pezzini (Univ. Bergamo), Giuseppa Palmieri (Univ. Palermo), Emanuele Calò, Marco Magri (Univ. Ferrara) e Luca Morassuto (Foro di Ferrara).

Per le modalità di registrazione e ulteriori informazioni, si veda qui.

Here is the update for the PILAGG program 2015: past events and the ones foreseen from September 2015 on.

 

I. GLOBAL PARADIGM AND LEGAL METHOD(S): MARCH 2015

The emergence of a global legal paradigm upsets assumptions/fictions developed within the modern, Westphalian model, which takes the law to be a self-contained, stable and coherent system and designs its method(s) accordingly. To what extent, then do comparative and internationalist perspectives provide plausible alternative legal methodology(ies) within an emerging “global legal paradigm”? Paying critical attention to law in global context is likely to constitute a “dangerous method” with respect to its subversive and emancipatory potential.

• The Mind and the Method(s): Jan Smits (Maastricht)
• Global Legal Paradigm: Ralf Michaels (Duke)

II. LAW AND AUTHORITY WITHOUT (STATE) PEDIGREE: MAY 2015

Competing, diffuse, post-Westphalian forms of authority and correlative displacements of power to non-state actors are difficult to capture in legal terms.  Is it possible to take seriously – whether to legitimize, challenge, or govern – new, diffuse and disorderly expressions of authority and normativity which do not necessarily fit traditional forms of legal knowledge, nor respond to familiar methods of legal reasoning? Is legal pluralism adequate to assess legitimacy of such claims or to solve conflicts between them? What are the alternative accounts of informal law (s) beyond the state?

• Transnational Authority: Max del Mar and Roger Cotterell (Queen Mary, London)

 

RENTREE 2015:What are the specific insights of the discipline of the conflict of laws in respect of some of the most significant issues which challenge contemporary legal theory, in its attempts to integrate the radical changes wrought by globalisation in the normative landscape beyond (framed outside, or reaching over) the nation-state. Indeed, remarkably, these changes have brought complex interactions of conflicting norms and social systems to the center-stage of jurisprudence. This means that the conflict of laws has a plausible vocation to contribute significantly to a “global legal paradigm” (Michaels 2014), that is, a conceptual structure adapted to unfamiliar practices, forms and “modes of legal consciousness” (Kennedy 2006). Conversely, however, private international legal thinking has all to gain from attention to the other legal disciplines that have preceded it in the effort to “go global”. Thus, it needs to undergo a general conceptual overhauling in order to capture law’s novel foundations and features. In this respect, it calls for an adjustment of its epistemological and methodological tools to its transformed environment. It must revisit the terms of the debate about legitimacy of political authority and reconsider the values that constitute its normative horizon. From this perspective, the ambition of this paper is to further the efforts already undertaken by various strands of legal pluralism, as an alternative form of “lateral coordination” in global law (Walker 2015), towards the crafting of a “jurisprudence across borders” (Berman 2012). Societal constitutionalism (Teubner 2011), which has explicitly made the connection between transnational regime-collison and the conflict of laws, provides a particularly promising avenue for unbounding the latter, which might then emerge as a form of de-centered, reflexive coordination of global legal interactions.

 

III.     CONFLICTS OF LAWS UNBOUNDED:?THE CASE FOR A LEGAL-PLURALIST REVIVAL. : 25th SEPTEMBER 2015

•  Horatia Muir Watt (Sciences-po Ecole de droit) FRIDAY 25 Septembre 2015. Salle de réunion (4e étage), 14h-17h, Ecole de droit, Sciences po, 13 rue de l’Université, 75007 Paris.
• Discussant : Loic AZOULAI (Sciences po, Ecole de droit)

 (NB Martijn Hesselink will give his talk later on in the term

IV. GLOBAL LEGAL PLURALISM AND THE CONFLICT OF NORMS: OCTOBER 9th

“It has now been approximately 20 years since scholars first began pushing the insights of legal pluralism into the transnational and international arena.  During those two decades, a rich body of work has established pluralism as a useful descriptive and normative framework for understanding a world of relative overlapping authorities, both state and non-state.  Indeed, there has been a veritable explosion of scholarly work on legal pluralism, soft law, global constitutionalism, the relationships among relative authorities, and the fragmentation and reinforcement of territorial boundaries »[Berman 2012]. Competing plural and transnational assertions of authority are singled out as the emblematic feature of our complex world, while the defining problem in contemporary legal thought lies in the interactions of legal traditions, social spheres, cultural values, rights and identities, epistemologies or world-visions. Various responses come in the form of a search for consensus (around constitutional values), the promotion of new utopias (the quest for global justice), the celebration of diversity as competition (law and economics), the devising of methodologies designed to mediate or coordinate (systems theory), or renewed definitions of authority and legitimacy (socio-legal studies). At first sight, the conflict of laws would appear to fit quite well among these pluralist strands of thought.

• Paul Schiff Berman: A jurisprudence across borders
• Discussant: Jean-Philippe ROBE

V. GLOBAL LAW AND INTERDISCIPLINARY INQUIRY: OCTOBER 16th

Law’s status as (empirical)  social science, repeatedly mooted then rejected in the name of its “internal” or dogmatic perspective, is arguably the most significant methodological debate in its modern history. But what is it about globalization which makes the need for interdisciplinarity resurface today in view of rethinking legal method? Is global law a relevant object of inquiry for the social sciences? Can the methods of private international law help frame a common problematic?  

Alexander Panayatov attempts an exercise in an inter-disciplinary conceptual clarification.  Discussing the impediments to, and conditions for,  inter-disciplinary collaboration based on exploring law and political science research cultures, he evaluates “The Legalization and World Politics” (LWP) project that offers a framework for deploying political science methodology to law. He also offers a supplementary framework for studying jurisdictional politics. This framework will specify four distinct mechanisms accounting for the creation of transnational jurisdictional regimes

•  Alexander Panayatov (NYU): Transnational jurisdictional regimes and interdisciplinarity FRIDAY OCTOBER 16th 2015. Salle de réunion (4e étage), 14h-17h, Ecole de droit, Sciences po, 13 rue de l’Université, 75007 Paris.
• Discussants : Véronique Champeil-Desplat (Paris X), auteure de Méthodologies du droit et des sciences du droit, Dalloz 2014
• Jérôme Sgard (Sciences po Paris)

VI. INTIMATIONS OF GLOBAL LAW: NOVEMBER 13th

Indisputably, globalisation, or its contemporary (fourth?[1]) avatar, is inflicting an identity crisis upon the conflict of laws[2]. One of the reasons for this is that it shows up the link between legal methods elaborated in view of dealing with conflicting norms and the framing of law’s origins, functions and objects within a particular legal paradigm. In other words, modes of legal reasoning in the face of conflicting norms and claims to authority reflect various conceptions and expectations as to what law is and does, where it comes from and the types of issues it deals with. Change affecting these assumptions and representations about the world affects established forms of legal knowledge; probing them is, as we know, a distinctly “dangerous method”. So what is left of state-bound legal-theoretical conceptions of the law in its “global intimations”?

•  Neil WALKER:  The intimations of global law
• Mikhail XIFARAS: Further global intimations

 

UPCOMING EVENTS :

THE CONSTRUCTION OF GLOBAL LAW : Date to be determined

Various attempts are being from a markedly public law perspective (global administrative law/global constitutionalism) to build a global law. These are all certainly relevant to contemporary “private” international law, to the extent that the discipline has always had a strong process-orientation (remember “conflicts justice”?) and is currently in the process of renewal from the perspective of  fundamental individual and collective rights. Meanwhile (as we have already seen), the new Brussels school has turned to pragmatism in legal philosophy (Benoît Frydmann), while Gunter Teubner’s “societal constitutionalism” is a significant contender from an interdisciplinary  perspective. Interestingly, both of these use specifically private international tools, methods or approaches (jurisdiction and RSE; conflicts solutions to legal pluralism).  The last session discussed the potential contribution of socio-legal theory to this debate, with a view to understanding new forms of transnational authority.  But what happens to private law in this process?

THE RIGHT TO JUSTIFICATION IN GLOBAL PRIVATE LAW: Martijn Hesselink, (Amsterdam)

Si è svolta il 14 settembre 2015, in seno alla Commissione giuridica del Parlamento europeo, una breve discussione sull’ipotesi — già affacciata in altre occasioni dallo stesso Parlamento europeo — che l’Unione si doti di uno strumento normativo riguardante la protezione dei maggiorenni vulnerabili nelle situazioni a carattere internazionale.

Lo scambio di idee, animato dalla deputata Joëlle Bergeron e documentato nel video disponibile a questo indirizzo (il tema viene trattato a partire dal minuto 19 e 20 secondi), si è concluso con una rinnovata richiesta alla Commissione europea affinché prenda in considerazione, in funzione dell’elaborazione di specifiche proposte, gli auspici espressi dal Parlamento europeo nella risoluzione del 18 dicembre 2008 recante raccomandazioni alla Commissione sulla protezione giuridica degli adulti.

L’idea, in estrema sintesi, è quella di rafforzare in questo campo la cooperazione fra gli Stati membri, prendendo come base le soluzioni offerte dalla Convenzione dell’Aja del 13 gennaio 2000 sulla protezione internazionale degli adulti (sin qui ratificata, per la verità, da appena sei Stati membri; tra questi non vi è l’Italia: vedi, peraltro, a quest’ultimo proposito questo post).

Ulf Bergquist, Domenico Damascelli, Richard Frimston, Paul Lagarde, Felix Odersky and Barbara Reinhartz have written an article-by-article commentary on the new EU Succession Regulation that recently entered into force. Authored by members of the Experts Group that drafted the Commission’s Proposal for the Regulation the commentary discusses all crucial points of the new legal framework including:

• law applicable to a succession,
• election as to the applicable law,
• recognition and enforcement,
• authentic instruments,
• the European Certificate of Succession.

The commentary is available in English, French and German. More information is available here and here.

This post has been written by Ester di Napoli.

In a judgment of 9 September 2015 (Christophe Bohez v. Ingrid Wiertz, Case C-4/14), the European Court of Justice (ECJ) clarified the interpretation of Article 1(2) and Article 49 of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matter (Brussels I), corresponding to Articles 1(2) and 55 of Regulation No 1215/2012 (Brussels Ia), as well as the interpretation of Article 47(1) of Regulation No 2201/2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels IIa). The questions referred to the Court concerned the enforcement of a penalty payment (astreinte) issued to ensure compliance with the rights of access to children granted to one of the parents.

While Article 49 of the Brussels I Regulation states that judgments ordering “a periodic payment by way of a penalty” are enforceable in a different Member State “only if the amount of the payment has been finally determined by the courts of the Member State of origin”, no equivalent provision may be found in the Brussels IIa Regulation. The latter merely specifies, in Article 47(1), that the enforcement procedure is governed by the law of the Member State of enforcement.

The case from which the judgment originated may be summarised as follows.

Mr Bohez and Ms Wiertz married in Belgium in 1997 and had two children. When they divorced, in 2005, Ms Wiertz moved to Finland. In 2007, a Belgian court rendered a decision on the responsibility over the children. As a means to ensure compliance with the rights of access granted to the father, the court set at a periodic amount per child to be paid to Mr Bohez for every day of the child’s non-appearance, and fixed a maximum amount that the defaulting parent could be requested to pay under the astreinte.

The mother failed to comply with the Belgian decision, so the father sought enforcement of the Belgian order in Finland relying on Article 49 of Brussels I Regulation. The Finnish authorities observed that the amount of the payment had not been determined in the Member State of origin, and added that, in any event, the request did not fall within the scope of the Brussels I Regulation but rather within the scope of the Brussels IIa Regulation.

The ECJ, seised by the Finnish Supreme Court, pointed out that the scope of Brussels I Regulation is limited to “civil and commercial matters”, and that the inclusion of interim measures is determined “not by their own nature but by the nature of the rights that they serve to protect”.  Thus, since the Brussels I Regulation expressly excludes from its scope “the status of natural persons” (notion “which encompasses the exercise of parental responsibility over the person of the child”), the Court held that Article 1 of Brussels I Regulation must be interpreted as meaning that it does not apply to the enforcement of a penalty payment imposed in a judgment concerning matters of parental responsibility.

The ECJ then moved on to consider the interpretation of the Brussels IIa Regulation.

It recalled that mutual recognition of judgments concerning rights of access is “a priority within the judicial area of the European Union” and observed that, although the Regulation does not contain any provision on penalties, a penalty payment imposed in a judgment concerning rights of access “cannot be considered in isolation as a self-standing obligation, but must be considered together with the rights of access which it serve to protect and from which it cannot be dissociated”. Accordingly, its recovery forms part “of the same scheme of enforcement as the judgment concerning the rights of access that the penalty safeguards and the latter must therefore be declared enforceable in accordance with the rules laid down by Regulation No 2201/2003”.

The Court stressed that, in order to seek enforcement of the decision ordering a penalty payment, the amount must have been finally determined by the courts of the Member State of origin. Where the penalty payment has not been determined, “a requirement, in the context of Regulation No 2201/2003, for quantification of a periodic penalty payment prior to its enforcement is consistent with the sensitive nature of rights of access”.

In a judgment of 9 September 2015 (Christophe Bohez v. Ingrid Wiertz, Case C-4/14), the European Court of Justice (ECJ) clarified the interpretation of Article 1(2) and Article 49 of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matter (Brussels I), corresponding to Articles 1(2) and 55 of Regulation No 1215/2012 (Brussels Ia), as well as the interpretation of Article 47(1) of Regulation No 2201/2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels IIa). The questions referred to the Court concerned the enforcement of a penalty payment (astreinte) issued to ensure compliance with the rights of access to children granted to one of the parents.

While Article 49 of the Brussels I Regulation states that judgments ordering “a periodic payment by way of a penalty” are enforceable in a different Member State “only if the amount of the payment has been finally determined by the courts of the Member State of origin”, no equivalent provision may be found in the Brussels IIa Regulation. The latter merely specifies, in Article 47(1), that the enforcement procedure is governed by the law of the Member State of enforcement.

The case from which the judgment originated may be summarised as follows.

Mr Bohez and Ms Wiertz married in Belgium in 1997 and had two children. When they divorced, in 2005, Ms Wiertz moved to Finland. In 2007, a Belgian court rendered a decision on the responsibility over the children. As a means to ensure compliance with the rights of access granted to the father, the court set at a periodic amount per child to be paid to Mr Bohez for every day of the child’s non-appearance, and fixed a maximum amount that the defaulting parent could be requested to pay under the astreinte.

The mother failed to comply with the Belgian decision, so the father sought enforcement of the Belgian order in Finland relying on Article 49 of Brussels I Regulation. The Finnish authorities observed that the amount of the payment had not been determined in the Member State of origin, and added that, in any event, the request did not fall within the scope of the Brussels I Regulation but rather within the scope of the Brussels IIa Regulation.

The ECJ, seised by the Finnish Supreme Court, pointed out that the scope of Brussels I Regulation is limited to “civil and commercial matters”, and that the inclusion of interim measures is determined “not by their own nature but by the nature of the rights that they serve to protect”.  Thus, since the Brussels I Regulation expressly excludes from its scope “the status of natural persons” (notion “which encompasses the exercise of parental responsibility over the person of the child”), the Court held that Article 1 of Brussels I Regulation must be interpreted as meaning that it does not apply to the enforcement of a penalty payment imposed in a judgment concerning matters of parental responsibility.

The ECJ then moved on to consider the interpretation of the Brussels IIa Regulation.

It recalled that mutual recognition of judgments concerning rights of access is “a priority within the judicial area of the European Union” and observed that, although the Regulation does not contain any provision on penalties, a penalty payment imposed in a judgment concerning rights of access “cannot be considered in isolation as a self-standing obligation, but must be considered together with the rights of access which it serve to protect and from which it cannot be dissociated”. Accordingly, its recovery forms part “of the same scheme of enforcement as the judgment concerning the rights of access that the penalty safeguards and the latter must therefore be declared enforceable in accordance with the rules laid down by Regulation No 2201/2003”.

The Court stressed that, in order to seek enforcement of the decision ordering a penalty payment, the amount must have been finally determined by the courts of the Member State of origin. Where the penalty payment has not been determined, “a requirement, in the context of Regulation No 2201/2003, for quantification of a periodic penalty payment prior to its enforcement is consistent with the sensitive nature of rights of access”.

Joseph Lookofsky, Ketilbjørn Hertz, EU-PIL: European Union Private International Law in Contract and Tort, 2a edizione, Juris Publishing, 2015, pp. 216, ISBN 9781578234455, USD 75.

[Dal sito dell’editore] Experienced practitioners in Europe realise the increasing commercial significance of the discipline known as Private International Law (Conflict of Laws). As indicated by its title, the focus of this book is on the Private International Law rules applied by courts and arbitral tribunals in the European Union, but by including numerous concrete examples, the authors emphasise the interdisciplinary nature of the subject and thus the many relevant ‘connections’ between private international law and substantive commercial law, especially as regards contractual and delictual matters (e.g.) in cases concerning contracts for the international sale of goods, cross-border claims relating to product liability, etc. This second edition has been revised to consider the new ‘recast’ of the Brussels I Regulation on Jurisdiction and Judgments (2012). This new edition also incorporates a number of important decisions which the Court of Justice of the European Union has had occasion to render as regards the proper interpretation of key rule-sets covered in this volume.

Maggiori informazioni a questo indirizzo.

The CJEU yesterday confirmed the Opinion of Cruz Villalón AG in Holterman: please refer to my posting on the Opinion for background.

In particular of course, a contract for employment needs to be distinguished from a contract for the provision of services. ‘Contract of employment’ was addressed in the abstract by the CJEU in Shenavai, Case 266/85, where the Court identified a double requirement for it referred to the need for a contract to be qualified as a contract of employment: there must be durable relation between individual and company: a lasting bond, which brings the worker to some extent within the organisational framework of the business; and a link between the contract and the place where the activities are pursued, which determines the application of mandatory rules and collective agreements. However precedent value of Shenavai for the Brussels I and recast Regulation is necessarily incomplete, for a the time employees as a protected category did not yet exist in the Regulation and the Court’s findings on contracts of employment took place within the need to identify a ‘place of performance’ under the Brussels Convention’s special jurisdictional rule on contracts.

The Jenard and Möller report to the 1988 Lugano Convention suggested the relationship of subordination of the employee to the employer.

In Holterman the Court throws into the mix reference to its interpretation of secondary EU law on health and safety at work as well as European labour law, holding that ‘the essential feature of an employment relationship is that for a certain period of time one person performs services for and under the direction of another in return for which he receives remuneration’ (at 41).

Consequently the national courts now have quite a number of criteria which need to apply in practice: it is not for the CJEU to do so in an individual case. In Holterman the Court does seem to suggest that once a worker finds himself qualified as an employee, for the purposes of the application of the Jurisdiction Regulation, that qualification will trump any other roles which that individual may play in the organisation (at 49: ‘the provisions of Chapter II, Section 5 (Articles 18 to 21) of Regulation No 44/2001 must be interpreted as meaning that they preclude the application of Article 5(1) and (3) of that regulation, provided that that person, in his capacity as director and manager, for a certain period of time performed services for and under the direction of that company in return for which he received remuneration, that being a matter for the referring court to determine.’).

In light of the deference to the factual assessment of the national court, the CJEU does complete the analysis with respect to (now) Article 7(1): if the contract is not one of employment, then the special jurisdictional rule of Article 7(1) needs to be applied. The director of a company, the Court holds, provides a service to the company within the meaning of Article 7(1)b. In the absence of any derogating stipulation in the articles of association of the company, or in any other document, it is for the referring court to determine the place where Mr Spies in fact, for the most part, carried out his activities in the performance of the contract, provided that the provision of services in that place is not contrary to the parties’ intentions as indicated by what was agreed. For that purpose, it is possible to take into consideration, in particular, the time spent in those places and the importance of the activities carried out there, it being a matter for the national court to determine whether it has jurisdiction in the light of the evidence submitted to it (at 64).

Finally, should national law also allow for an action in tort against the director of a company, the locus delicti commissi is the place where the director carries out his duties for the company (at 76). The locus damni is the place where the damage alleged by the company actually manifests itself; it cannot be construed so extensively as to encompass any place where the adverse consequences can be felt of an event which has already caused damage actually taking place elsewhere (at 77-78).

All in all, a useful completion of the Shenavai criterion, and in the main a referral to the national court for factual analysis.

Geert.