Flux européens

L’8 e il 9 giugno 2017 si terrà all’Università di Milano-Bicocca un seminario pratico sul tema della sottrazione internazionale di minori, nel quadro del progetto EU Judiciary Training on Brussels IIa Regulation: from South to East, co-finanziato dalla Commissione europea e guidato da Costanza Honorati.

Intervengono Martina Erb-Klünemann (Tribunale di Hamm), Maria Domenica Maggi (psicologa e giudice onorario presso il Tribunale dei minorenni di Milano), Sara Lembrechts e Katrien Herbots (KeKi – Children’s Right Knowledge Centre di Ghent), Michael Ford (MiKK – International Mediation Centre for Family Conflict and Child Abduction), Costanza Honorati (Univ. Milano-Bicocca), Maria Caterina Baruffi (Univ. Verona), Cristina Gonzalez Beilfuss e Maria Alvarez Torné (Univ. Barcellona), Mirela Zupan (Univ. Osijek), Ivana Kunda (Univ. Rijeka), Agne Limante (Law Institute of Lithuania).

La locandina dell’evento è disponibile qui.

Ergo, Brogsitter, Granarolo...There is a long list of cases in which the CJEU is asked to decide whether a relationship between parties is contractual, with special jurisdiction determined by Article 7(1) of the Brussels I Recast Regulation, or one in tort, subject to Article 7(2) of same.

In C-249/16 Saale Kareda v Stefan Benkö Bot AG opined end of April. The Court is asked to rule on whether a recourse claim brought between jointly and severally liable debtors under a credit agreement constitutes a contractual claim. And if it is, the Court will have to examine whether such an agreement may be classified as an agreement for the provision of services, which will, as the case may be, lead it to determine the place of performance of its characteristic obligation.

I still think that what I dubbed the ancestry or pedigree test of Sharpston AG in Ergo, is a most useful litmus test to distinguish between 7(1) and 7(2):  what is the ancestry of the action, without which the parties concerned would not be finding themselves pleading in a court of law?: she uses ‘centre of gravity’ (‘the centre of gravity of the obligation to indemnify is in the contractual obligation’); ‘rooted in’ (‘the recourse action by one insurer against the other…is rooted in the contracts of insurance’); and ‘intimately bound up’ (‘[the action] is intimately bound up with the two insurers’ contractual obligation‘). (at 62 of her Opinion in Ergo). I am not sure though whether the Court itself follows the test.

Before the Austrian courts, Stefan Benkö, an Austrian national, is bringing a recourse claim against Saale Kareda, an Estonian national and his former partner, seeking payment of EUR 17 145.41 plus interest and costs. While they were living together in Austria, the applicant and the defendant bought a house in 2007 and for that purpose took out three loans totalling EUR 300 000 (‘the loan’) from an Austrian bank. They were both borrowers and the referring court states that they were both jointly and severally liable debtors. Ms Kareda broke up with Mr Benkö, moved back to Estonia, and ceased her loan payments. Being sued for the arrear payments by MR Benko, she now claims that the Landesgericht St. Pölten (Regional Court, St. Pölten), the court seised by the applicant, lacked territorial jurisdiction in so far as the loan was made by an Austrian bank and the place of performance for that loan, the bank’s registered office, is not located in the judicial district of that court.

Is it possible to ‘detach’ from the credit agreement the legal relationships arising between jointly and severally liable debtors following the conclusion of that agreement, or does this form an inseparable whole? (at 28) Bot AG suggests it is the latter and I believe he is right. I agree that it would be artificial, for the purposes of the application of the Brussels I Recast. to separate those legal relationships from the agreement which gave rise to them and on which they are based.

I am less convinced by the reference, at 32 and 33, to the need for consistency between Brussels I Recast and Rome I: regular readers of this blog will not be surprised by this. (But I believe I am fighting a losing battle there). The AG refers to Article 16 of Rome I, entitled ‘Multiple liability’, which provides inter alia that, ‘[i]f a creditor has a claim against several debtors who are liable for the same claim, and one of the debtors has already satisfied the claim in whole or in part, the law governing the debtor’s obligation towards the creditor also governs the debtor’s right to claim recourse from the other debtors’.

Having decided that the issue is contractual, the AG suggests the credit agreement is an agreement for the provision of services, and that in the context of a credit agreement, the characteristic obligation leading to jurisdiction is the actual granting of the sum loaned. The other obligation entailed by such an agreement, namely the borrower’s obligation to repay the sum loaned, exists only through the performance of the service by the lender, as repayment is merely its consequence.

The final element to consider is then the actual place of performance of the characteristic obligation. In the AG’s view, only the place where the creditor has its place of business is capable of ensuring that the rules are highly predictable and of satisfying the objectives of proximity and standardisation pursued by the second indent of Article 7(1)(b) of Regulation No 1215/2012.  That place will be known by the parties from the time of the conclusion of the agreement and will also be the place of the court having the closest connection with that agreement. (at 46).

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2, Heading 2.2.11.2.9

Il 23 giugno 2017 si terrà a Lucca un seminario pratico sul regolamento (UE) n. 1215/2012 concernente la competenza giurisdizionale, il riconoscimento e l’esecuzione delle decisioni in materia civile e commerciale (Bruxelles I bis).

Durante il seminario, organizzato nel contesto del progetto European Civil Procedure for Lawyers (su cui vedi questo post), gli avvocati saranno chiamati a partecipare attivamente alla discussione e risoluzione di casi pratici in applicazione del regolamento n. 1215/2012.

Tra i relatori Giampaolo Benedetti Pearson (foro di Lucca), Elena D’Alessandro (Univ. Torino) e Silvana Dalla Bontà (Univ. Trento).

La locandina dell’evento è reperibile qui.

 

Many thanks to Jan von Hein for flagging the ultimate judgment (the link is to a press release) of the Bundesarbeitsgericht in Nikiforidis. I had of course reported earlier my serious misgivings about the CJEU’s judgment in same, upon preliminary review.

The judgment eventually declined to employ the opening left by the CJEU, to take Greek law into account ‘as a matter of fact’. Thank you, but no thank you: there was no suitable point of entry in German law to take account of the Greek austerity laws. Still, as Jan points out, the judgment in Luxembourg undoubtedly will feature as precedent in future cases.

Geert.

 

Lounes
Citoyenneté européenne
Selon l’avocat général Bot, un ressortissant d'un État non UE, membre de la famille d’un citoyen de l’Union, peut bénéficier d’un droit de séjour dans l’État membre dans lequel ce citoyen a séjourné avant d’en acquérir la nationalité et de développer une vie de famille

The 59th edition of the Urbino annual seminar on comparative and European Law will run from 21 August to 2 September 2017. The program is available here. For further information, see here.

Si svolgerà ad Urbino, dal 21 agosto al 2 settembre 2017, il 59ème Séminaire de droit comparé et européen. Il programma della nuova edizione è disponibile qui. Per ulteriori informazioni si veda a questo indirizzo.

Il 30 maggio 2017 l’Università di Valencia ospita il convegno BRIaTra: Brussels Ia and Transport. In occasione dell’evento verranno esposti i risultati di una ricerca finanziata dall’Unione europea nel quadro del programma Giustizia civile. Maggiori informazioni sono disponibili nel flyer, reperibile qui.

On 30 may 2017 the University of Valencia will host the conference ‘BRIaTra: Brussels Ia and Transport’. The outcome of a research project supported by the Civil Justice Program of the European Union will be presented during the event. Further information is available here.

Many thanks to KU Leuven law student Dzsenifer Orosz (she is writing a paper on the issues for one of my conflict of laws courses) for alerting me to the French Conseil D’Etat having referred ‘right to be forgotten’ issues to the European Court of Justice.  I have of course on occasion reported the application of data protection laws /privacy issues on this blog (try ‘Google’ as a search on the blog’s search function). I also have a paper out on the case against applying the right to be forgotten to the .com domain, and with co-authors, one where we catalogue the application of RTBF until December 2016. See also my post on the Koln courts refusing application to .com.

The Conseil d’Etat has referred one or two specific Qs but also, just to be sure, has also asked the Court of Justice for general insight into how data protection laws apply to the internet. The Court is unlikely to offer such tutorial (not that it would not be useful). However any Advocate General’s opinion of course will offer 360 insight.

One to look forward to.

Geert.

 

Parental Care and the Best Interests of the Child in Muslim Countries, edited by / a cura di Nadjma Yassari, Lena-Maria Möller, Imen Gallala-Arndt, SPringer, 2017, ISBN 9789462651739, pp. 353, EUR 145,59

 

This book is the first analysis of parental care regimes in Muslim jurisdictions, both in a comparative and country-specific sense. It contains the proceedings of a workshop on Parental Care and the Best Interests of the Child in Muslim Countries that the Max Planck Research Group “Changes in God’s Law: An Inner-Islamic Comparison of Family and Succession Law” hosted in Rabat, Morocco in April 2015. This workshop saw a total of 15 country reports presented on questions of custody, guardianship and their development within different Muslim jurisdictions (ranging from Indonesia to Morocco), a number of which are included in full in the book. Each of these country reports contains a historical perspective on the evolution of domestic rules regarding custody and guardianship, and on the introduction and development of the notion of the best interests of the child. Most importantly, the prevailing legal norms, both substantive and procedural, are explored and particular attention is given to legal practice and the role of the judiciary. In addition to a selection of country reports from the workshop, the volume includes two comparative analyses on questions of parental care in both public and private international law. With a high practical relevance for legal practitioners working in the area of cross-border custody disputes and the most up-to-date assessment of parental care regimes beyond a pure analysis of statutory law, this book combines a number of country reports authored by experts who have worked or are still based in the respective countries they are reporting on and thus contains in-depth discussions of legal practice and custody law in action.

Venerdì 30 giugno 2017 si terrà a Torino un convegno intitolato Il riconoscimento e l’esecuzione di decisioni e lodi arbitrali stranieri: trends e sviluppi recenti, organizzato dell’Union Internationale des Avocats, dall’Ordine degli Avvocati di Torino e dal Dipartimento di Giurisprudenza dell’Università di Torino.

La locandina dell’evento è disponibile qui.

Makhlouf / Conseil
Relations extérieures
Le Tribunal de l’UE confirme que le gel de fonds prononcé à l’encontre de Rami Makhlouf, cousin de Bachar al-Assad, doit être maintenu pour la période 2016-2017

This is one for the conflict of laws anoraks. In C-29/16 HanseYachts the Court of Justice held (on 4 May) that an application for proceedings to preserve or establish, prior to any legal proceedings, evidence of facts on which a subsequent action could be based, does not constitute a proceeding within the meaning of (now) Article 32(1) Brussels I. If it had, it would trigger the lis alibi pendens regime of that Article, impacting therefore on any future substantive proceedings.

At 33 the Court defers to the insight into the relevant provisions of French judicial procedure, offered by the French Government: Although there may indeed be a connection between the court seised on the basis of that article and the court having jurisdiction to hear the substance of the case with a view to which the measure of inquiry was ordered, the fact remains that such proceedings for the taking of evidence are independent in relation to the substantive procedure which may, if necessary, be brought subsequently. The Court’s ruling however is dependent (at 34) upon the French courts confirming this interpretation of French civil procedure: for the CJEU does not offer final interpretations on internal State law.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.14.1.

 

Berlioz Investment Fund
DFON
Les juridictions d’un État membre peuvent contrôler la légalité des demandes d’informations fiscales adressées par un autre État membre

L’accord de libre-échange avec Singapour ne peut pas, dans sa forme actuelle, être conclu par l’Union européenne seule

Landeskreditbank Baden-Württemberg / BCE
Politique économique BCE
Le Tribunal de l’UE rejette le recours de la Landeskreditbank Baden-Württemberg contre sa soumission à la surveillance directe de la BCE

I reported at the time on the General Court‘s decision in Dyson. The CJEU yesterday in Case -44/16P agreed, albeit in less prosaic terms than my earlier post, that the Court’s reasoning was wanting. The case now goes back to the General Court to reconsider those pleas made by Dyson which the Court considers to have been insufficiently answered.

Of most interest to readers of this blog is the argument re proof, science and procedure (at 72 ff): According to the Commission, Dyson does not explain in what way the development of a test with a loaded receptacle would have been more proportionate. The Commission submits that it was not obliged to show that no better test method could be developed, and that it was on the contrary for Dyson to prove that a more appropriate test method existed, which in the view of the General Court it failed to do.

The Court of Justice agrees that the General Court’s entertainment of this question is wanting – the particular parameter was required under the delegating Directive, alleged absence of a reliable test is not enough to ignore it. That is not to say, that upon reconsideration the eventual General Court’s answer may not be the same.

Geert.

Krijgsman
Transport
Un transporteur aérien qui n’est pas en mesure de prouver qu’un passager a été informé de l’annulation de son vol plus de deux semaines avant l’heure de départ prévue est tenu de l’indemniser

Krijgsman
Transport
Un transporteur aérien qui n’est pas en mesure de prouver qu’un passager a été informé de l’annulation de son vol plus de deux semaines avant l’heure de départ prévue est tenu de l’indemniser

Asociación Profesional Elite Taxi
Liberté d'établissement
Selon l’avocat général Szpunar, la plateforme électronique Uber, tout en étant un concept innovant, relève du domaine du transport, si bien qu’Uber peut être obligée de posséder les licences et agréments requis par le droit national

Asociación Profesional Elite Taxi
Liberté d'établissement
Selon l’avocat général Szpunar, la plateforme électronique Uber, tout en étant un concept innovant, relève du domaine du transport, si bien qu’Uber peut être obligée de posséder les licences et agréments requis par le droit national