Flux européens

Gutiérrez Naranjo
Rapprochement des législations
La jurisprudence espagnole limitant dans le temps les effets de la nullité des clauses « plancher », insérées dans les contrats de prêt hypothécaire en Espagne, est incompatible avec le droit de l’Union

AGET Iraklis
Rapprochement des législations
Le droit de l’Union n’empêche pas, en principe, un État membre de s’opposer, en certaines circonstances, à des licenciements collectifs dans l’intérêt de la protection des travailleurs et de l’emploi

Commission / World Duty Free Group
Aide d'État
Selon la Cour, le Tribunal de l’UE a commis une erreur de droit en annulant la décision de la Commission déclarant un régime fiscal espagnol incompatible avec le marché intérieur

The Court held in C-102/15 Siemens just before mine and their summer break. It had escaped my attention. At issue was whether debt arising from the unjustified repayment of a fine for infringement of competition law falls within the scope of application of the Brussels I Recast. It does not. The Court distinguished flyLAL: while private actions brought to ensure compliance with competition law fall within the scope of the Regulation, a penalty imposed by an administrative authority in the exercise of the regulatory powers conferred upon it under national legislation comes within the concept of ‘administrative matters’, excluded from the scope of Regulation No 44/2001 in accordance with Article 1(1) thereof.(at 35).

An action in unjust enrichment related to the interest due, following to and fro, imposition and rescinding, ending finally in confirmation of the fine, is intimately bound up with that fine and therefore follows it in the exclusion.

A judgment of note for those who wish to keep complete overview.

Geert.

(Handbook of) European private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.2.2 ff.

Anyone with an interest in mutual recognition, risk and trade, and the exhaustive effect of EU food law should consult the Opinion of Advocate General Bobek in Case C-672/15 Noria Distribution, which was released last week.

Noria Distribution SARL (‘Noria’) is being prosecuted for having sold in France food supplements containing vitamins and minerals in quantities exceeding maxima set under French law. Noria does not deny doing so. However, it argues in response that those maxima are not valid because they were set in breach of EU law. Noria adds that it produces and sells the same products lawfully in other Member States.

The Advocate General suggests EU law on the issue is not exhaustive. Member States can set their own limits. An issue under discussion in the national proceeding is the origin (national or international) of the science underpinning the limits. The AG justifiably advises that the origin of the data is irrelevant. EU law concern is not about the details of bibliographies. It is rather that restrictions be justified on the basis of solid science demonstrating real risk or at least the inability to exclude risk: whether this is the case is for the national court to determine. The precautionary principle can be invoked by the Member States in setting their limits.

The AG’s approach is very sensible. Without losing himself in lengthy discussion, he reminds the national courts and authorities of the benchmarks for risk management.

Geert.

 

Do the newly negotiated EU rules on endocrine disruptors illustrate regulatory chill /the ‘freezing effect’ of international trade law?

The new European Commission proposals on endoctrine disruptors are, of course’ ‘science based’. It has been reported (EurActiv, 12 December 2016 and last consulted by me on 13 December) that publication of the proposals was followed by a closed door meeting (minutes of which were released only after a freedom of information request) between the EC and a select number of countries (US, Canada, Argentina, Brazil and Uruguay on 13 July this year). Discussion centered around the potential WTO incompatibility of parts of the EC proposal, particularly those surrounding the tolerance levels for endocrine disruptors present in imported substances (food and feed in particularly). The EC reportedly are prepared to replace “negligible exposure” with “negligible risk from exposure”. The EC defend the latter, arguing it might even ban more, rather than less imported substances: for even if there is only negligible exposure, that exposure may still be a risk. Opponents suggest that the insertion of a risk approach has sacrified precaution on the altar of science.

A few comments.

Firstly, the report (and potentially even the EC itself) repeats the misleading assertion that the debate concerns either science or precaution. Precaution is NOT unscientific. The very trigger of the precautionary approach is science.

Next, the case is reported at a time a lot of people are getting jittery about the regulatory co-operation mechanisms in free trade agreements such as CETA and TTIP. The meeting and the subsequent EC reaction to our trading partners’ comments, would then represent an example of the ‘freezing effect’ in international trade: with our trading partners flying the flag of WTO incompatibility, the EU would then have caved in to threats of litigation in Geneva. Yet in reality WTO input by fellow WTO Members is at least as old as the WTO itself, indeed it predates it. The 1978 Tokyo Standards Code already obliged the then GATT Contracting Parties to notify their draft standards to the GATT Secretariat. The very point of notification and transparency is that the issues raised are being discussed and may indeed lead to the draft standard being adopted. Changes made to REACH, to name but one example, reflected concerns of fellow WTO Members and REACH can hardly be said to pander to industry’s demands.

However there needs to be one core appreciation in this process: just as notification serves transparency (anyone can consult the TBT notification gateway to review draft measures that have been notified), so too should the process of review after reception of the comments, be conducted in a transparent manner. This clearly has not happened here. By conducting these meetings in private, and by refusing to release the minutes until prompted to do so, EC services have given the impression that there is more than meets the eye. In times where even CETA has not yet been ratified, that is most definitely the wrong approach.

Geert.

 

On 29 and 30 May 2017, the University of Milan will host an international conference under the title Business and Human Rights: International Law Challenges and European Responses. Scholars are encouraged to submit their proposals for papers, not exceeding 600 words, before 31 January 2017, to the following email address: EUlawbusinesshumanrights@unimi.it. More information is available here.

I giorni 29 e 30 maggio 2017, l’Università di Milano ospiterà un convegno dal titolo Business and Human Rights: International Law Challenges and European Responses. Gli interessati sono invitati a trasmettere un paper, che non superi le 600 parole, entro il 31 gennaio 2017, a questo indirizzo email: EUlawbusinesshumanrights@unimi.it. Maggiori informazioni sono disponibili qui.

 

On 10 November 2016, the French MEP Joëlle Bergeron submitted to the Committee on Legal Affairs of the European Parliament a draft report regarding the protection of vulnerable adults.

The draft report comes with a set of recommendations to the European Commission. Under the draft, the European Parliament, among other things, ‘deplores the fact that the Commission has failed to act on Parliament’s call that it should submit … a report setting out details of the problems encountered and the best practices noted in connection with the application of the Hague Convention [of 13 January 2000 on the international protection of adults], and ‘calls on the Commission to submit … before 31 March 2018, pursuant to Article 81(2) of the Treaty on the Functioning of the European Union, a proposal for a regulation designed to improve cooperation among the Member States and the automatic recognition and enforcement of decisions on the protection of vulnerable adults and mandates in anticipation of incapacity’.

A document annexed to the draft report lists the ‘principles and aims’ of the proposal that the Parliament expects to receive from the Commission.

In particular, following the suggestions illustrated in a study by the European Parliamentary Service, the regulation should, inter alia, ‘grant any person who is given responsibility for protecting the person or the property of a vulnerable adult the right to obtain within a reasonable period a certificate specifying his or her status and the powers which have been conferred on him or her’, and ‘foster the enforcement in the other Member States of protection measures taken by the authorities of a Member State, without a declaration establishing the enforceability of these measures being required’. The envisaged regulation should also ‘introduce single mandate in anticipation of incapacity forms in order to facilitate the use of such mandates by the persons concerned, and the circulation, recognition and enforcement of mandates’.

In the meanwhile, on 15 December 2016, Latvia signed the Hague Convention of 2000 on the international protection of adults. According to the press release circulated by the Permanent Bureau of the Hague Conference on Private International Law, the Convention is anticipated to be ratified by Latvia in 2017.

Il 10 novembre 2016, la deputata europea Joëlle Bergeron ha presentato alla Commissione giuridica del Parlamento europeo un progetto di relazione sulla protezione degli adulti.

Il progetto reca una serie di raccomandazioni rivolte alla Commissione europea. Si dice nel testo, fra le altre cose, che il Parlamento “deplora che la Commissione non abbia dato seguito alla richiesta del Parlamento di presentare a tempo debito … una relazione che identifichi i problemi incontrati e le migliori pratiche per l’attuazione della Convenzione dell’Aia [del 13 gennaio 2000 sulla protezione degli adulti]”, e “chiede alla Commissione di presentare …, anteriormente al 31 marzo 2018, sulla base dell’articolo 81, paragrafo 2, del trattato sul funzionamento dell’Unione europea, una proposta di regolamento volto a rafforzare la cooperazione tra gli Stati membri nonché a migliorare il riconoscimento con pieno diritto e l’esecuzione delle decisioni relative alla protezione degli adulti vulnerabili e dei mandati di inidoneità [sic], secondo le raccomandazioni particolareggiate figuranti in allegato”. La proposta dovrebbe altresì “introdurre moduli unici di mandato di inidoneità al fine di promuovere l’uso di tali mandati da parte delle persone interessate, nonché la circolazione, il riconoscimento e l’attuazione di tali mandati”.

Un documento allegato alla proposta di relazione elenca i “principi” e gli “obiettivi” che dovrebbero caratterizzare la proposta che il Parlamento si attende di ricevere dalla Commissione.

In particolare, conformandosi in larga parte alle indicazioni emerse da uno studio predisposto dal Servizio Ricerca del Parlamento europeo, la proposta di regolamento dovrebbe includere, fra le altre, delle regole volte a “riconoscere a qualsiasi persona che assicura la protezione della persona o dei beni di un adulto vulnerabile il diritto di ottenere dalle autorità competenti, entro un termine ragionevole, un certificato attestante la sua qualità e i poteri che le sono conferiti”, nonché delle regole che favoriscano “l’esecuzione delle misure di protezione adottate dalle autorità di uno Stato membro negli altri Stati membri senza che sia necessaria una dichiarazione [di] esecutiva di tali misure”.

Nel frattempo, il 15 dicembre 2016, la Lettonia ha firmato la Convenzione dell’Aja del 2000 sulla protezione internazionale degli adulti. Stando al comunicato stampa diffuso dal Permanent Bureau della Conferenza dell’Aja di diritto internazionale privato, ci si attende che la Convenzione venga ratificata dalla Lettonia nel corso del 2017.

In JEB Recoveries v Binstock, [2016] EWCA Civ 1008, the Court of Appeal (on appeal from the High Court, 2015] EWHC 1063 (Ch)) exhaustively reviewed relevant EU precedent for the determination of the ‘place of performance’ of a contract under Article 5(1) (now 7(1)) of the Brussels I (Recast) Regulation. Kitchin LJ first of all refuses to deal with the alleged submission to jurisdiction by Mr Binstock. The argument was made that,  by making and pursuing an application for security for costs, Mr Binstock had submitted to the jurisdiction. The issue was however not raised before the High Court and therefore not sub judice at the Court of Appeal.

Mr Binstock (of casino fame) argued that the contracts at issue were not performed in England, for he himself was domiciled in Spain  and the claimant in the case at issue (for most of the relevant contracts, jurisdiction was dismissed at hand) had arguably carried out his contractual arrangements largely from Paris.

Relevant CJEU precedent was C-19/09 Wood Floor Solutions the findings of which Lord Justice Kitchin helpfully summarised as follows:

1. ‘…First, the place of performance must be understood as the place with the closest linking factor between the contract and the court having jurisdiction and, as a general rule, this will be at the place of the main provision of the services.
2. Secondly, the place of the main provision of the services must be deduced, so far as possible, from the provisions of the contract itself.
3. Thirdly, if the provisions of the contract do not enable the place of the main provision of the services to be determined, either because they provide for several places where services are to be provided or because they do not expressly provide for any specific place where services are to be provided, but services have already been provided, it is appropriate, in the alternative, to take account of the place where activities in performance of the contract have for the most part been carried out, provided that the provision of services in that place is not contrary to the parties’ intentions as appears from the contract.
4. Fourthly, if the place of the main provision of the services cannot be determined on the basis of the terms of the contract or its performance, then it must be identified by another means which respects the objectives of predictability and proximity, and this will be the place where the party providing the services is domiciled.’

Based upon the place where the services have for the most part been carried out, the Court of Appeal held that JEB has no good arguable case that the place of the main provision of Mr Wilson’s services was England.

A neat application of Article 7(1) and an improved re-phrasing of the CJEU’s own rules.

Geert.

(Handbook of) EU Private International Law, Chapter 2Heading 2.2.11.1.,

Mondelez UK Holdings & Services / EUIPO - Société des produits Nestlé (Forme d’une tablette de chocolat)
Propriété intellectuelle et industrielle
Selon le Tribunal, l’EUIPO doit réexaminer si la forme tridimensionnelle correspondant au produit « Kit Kat 4 barres » peut être maintenue comme marque de l’Union européenne

Infineon Technologies / Commission
Concurrence ENTR
Le Tribunal de l’UE rejette les recours de Philips et d’Infineon dans le cadre de l’entente sur le marché des puces pour cartes

TestBioTech e.a. / Commission
Environnement et consommateurs
Le Tribunal de l’UE confirme la légalité de la décision par laquelle la Commission a rejeté comme non fondée une demande de réexamen de l’autorisation de mise sur le marché de produits contenant du soja génétiquement modifié

Depesme et Kerrou
Libre circulation des personnes
En matière d’avantage social transfrontalier, un enfant au sein d’une famille recomposée peut être considéré comme l’enfant du beau-parent

Engagement solennel devant la Cour de justice de l’Union européenne d’un nouveau Membre de la Commission européenne

Branganca Linares Verruga e.a.
Libre circulation des personnes
En subordonnant le bénéfice d’une bourse d’études pour l’enfant d’un frontalier à la condition que ce dernier ait travaillé sur le territoire luxembourgeois pendant une durée ininterrompue de cinq ans au moment de la demande de bourse, le Luxembourg a enfreint le droit de l’Union

Thank you Steve Peers for alerting me to the relevance of the conflict of laws and the Rome I Regulation in particular in the recent Aslam et al v Uber Employment Tribunal decision. The case essentially revolves around whether claimants are employees – it is a pivotal case determining the immediate regulatory context for this part of the ‘sharing economy’. Para 87 is a particularly delightful expression of scepticism towards the sharing economy’s claims (further highlights are here).

Conflict of laws is addressed at para 103 onwards, a completion of the analysis in case of rejection of the tribunal’s view that the UK company in the Uber group employs claimants, and instead one would have to regard Uber BV (of The Netherlands) as employer. I do not think the tribunal expresses itself entirely clearly on Rome I.

If Uber BV is the employer, reclassification of the contract as one of employment (as opposed to one for the provision of services), makes the choice of law for Dutch law partially inoperable (not, as the tribunal notes at para 105 in fine, replaced with the laws on England and Wales). Next the tribunal (paras 106-109) continues to speak of ’employer’ but reviews application of Article 3 (including the application of Article 3(3)’s ‘purely domestic contracts’. If there is a contract of employment, in my view only Article 3(1) and (2) can have any impact on the analysis: the remainder of Article 3 concerns provisions for which Article 8 itself provides exhaustive rules.

From para 110 onwards, the tribunal does more tidily address Article 8 Rome I and holds, after reference to counsel view, that if indeed the Dutch BV is the employer (for it does not suggest that the contract would have to be qualified as one of services), Dutch law would largely apply, except for a limited number of provisions of English law by way of mandatory rules. (Reference to Article 21’s ordre public is justifiably rejected).

I am assuming Uber are appealing. Expect the conflicts analysis to return.

Geert.

(Handbook of) European private international law, Chapter 3, Heading 3.2.5.

 

Golden Endurance v RMA, [2016] EWHC 2110 (Comm), illustrates the attraction of having a unified approach to submission (to jurisdiction), otherwise known as voluntary appearance. In current case, the judgment that needs to be recognised is ex-EU (Moroccan) hence the Brussels I Recast does not apply: English law does. This is in fact exactly why The Hague is working hard at its ‘Judgments’ Convention – not an easy project in my view. As helpfully summarised by Sam Goodman, the court held that a Moroccan judgment would not be recognised in England because the claimant had not submitted to the jurisdiction of the Moroccan court. Although the claimant had appeared in the Moroccan proceedings, it had done so in order to ask the court to stay the Moroccan proceedings in favour of arbitration and had only engaged with the merits as it was obliged to do so under Moroccan law.

Of note is that Phillips J points out that under the relevant English statutory rules, the question arises as to when defending a case on its merits, at the same time as contesting jurisdiction, submission applies: a scenario for which the Brussels I Recast provides specifically in Article 26. An English court does not for this exercise rely on civil procedure rules in the country of origin of the judgment: this surely makes sense for otherwise it would encourage forum shopping by unscrupulous claimants. Instead, whether one has submitted is ‘a question of mixed law and fact’ (at 46) which in this case was decided in favour of the claimant in the English court, ‘the claimant, having requested the dismissal of the claim in Morocco in favour of arbitration proceedings and having done so continually and as its primary response, did not voluntarily appear in the Moroccan courts’ (at 47).(The remainder of the judgment relates to transport law: the ‘Hague Rules’).

Geert.

(Handbook of) EU private international law, Chapter 2, Heading 2.2.7.

 

 

Aude Fiorini, The Protection of the Best Interests of Migrant Children – Private International Law Perspectives, forthcoming / di prossima pubblicazione in Giacomo Biagioni, Francesca Ippolito (eds), Migrant Children in the XXI Century. Selected Issues of Public and Private International Law, Editoriale Scientifica, available through / disponibile su Social Science Research Network.

Migration news stories have, in recent years, captured the world’s attention almost daily. Migration is not however a new phenomenon. The first wave of globalisation, between 1870 and 1914 saw as much as 10% of the world’s population move permanently to a new country. It is paradoxical therefore that, at the start of the new millennium, migration was still under-researched. The phenomenon may generally be divided into diverse categories: temporary labour migration or highly skilled and business migration; internal or international migration; legal or illegal migration; forced or chosen migration; family reunification migration, return migration… Such typology reflects an approach that largely sees migration as a challenge states and primarily considers it under the angle of international politics and security. Migration can though also be studied from the perspective of the individual migrant. In this whilst it is human rights law which immediately resonates, private international law also has a key role to play. The interface between human rights and private international law as regards issues of migration has not frequently been considered. And this is particularly the case as regards children. Can and do States achieve the protection of the best interests of migrant children in part through the framework of private international law? To answer this question, this article will consider first the relevance of private international law to migrants and migration. It then discusses whether the reliance on private international law rules, methods and approaches, including the increasingly popular connecting factor of habitual residence is adequate as a basis on which to protect the best interests of migrant children.

Following a report issued by the Commission in March 2016, the Council of the European Union adopted on 8 December 2016 its Conclusions on the European Judicial Network in civil and commercial matters.

The Council, among other things, calls on Member States to ‘promote the use of the expertise of other legal practitioners by involving relevant professional associations more closely in the Network’s activities’  and to ‘encourage interaction at national level to share knowledge and gather information on the practical application of the EU instruments in civil and commercial matters’, including, where appropriate, by establishing ‘national networks bringing together the national contact points, Network members and other legal practitioners’.

Facendo seguito a una relazione presentata dalla Commissione nel marzo del 2016, il Consiglio ha adottato, l’8 dicembre 2016, le sue Conclusioni sulla Rete giudiziaria europea in materia civile e commerciale.

Il Consiglio, tra le altre cose, sollecita gli Stati membri a “promuovere l’uso delle conoscenze specialistiche di altri operatori della giustizia coinvolgendo più strettamente i pertinenti ordini professionali nelle attività della rete” e a “incoraggiare l’interazione a livello nazionale per condividere conoscenze e raccogliere informazioni sull’applicazione pratica degli strumenti dell’UE in materia civile e commerciale”, considerando, tal fine, “l’eventualità di istituire, ove opportuno, reti nazionali che riuniscano i punti di contatto nazionali, i membri della rete e altri operatori della giustizia”.

A conference on Parental responsibility and children protection in cross border situations, in the light of the 1996 Hague Convention will take place in Florence on 12 December 2016. The programme is available here. 

Lunedì 12 dicembre 2016, si terrà a Firenze un incontro intitolato Responsabilità genitoriale e protezione dei minori in contesto transfrontaliero anche alla luce dell’entrata in vigore della convenzione dell’Aja 1996. Il programma integrale è consultabile a questo indirizzo.