Flux européens

Entrée en fonction de nouveaux juges au Tribunal

In  AVOTIŅŠ v Latvia, the Grand Chamber of the ECtHR at Strasbourg held late May that Article 6 ECHR (right to fair trial) was engaged but not infringed by the Latvian’s Supreme Court’s application of Article 34(2( Brussel I (now Article 45(1) b Brussels I Recast).

The Article reads ‘A judgment shall not be recognised: (…) 2. where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so;…

In the case at issue applicant sought refusal by the Latvian court of recognition of a Cypriot judgment issued against him. After review of the Regulation’s core pedigree of mutual recognition and mutual trust, burden of proof particularly exercised the Court: at 121:

‘The fact that the applicant relied on that Article (34(2), GAVC) without having challenged the judgment as required necessarily raised the question of the availability of that legal remedy in Cyprus in the circumstances of the present case. In such a situation the Senate was not entitled simply to criticise the applicant, as it did in its judgment of 31 January 2007, for not appealing against the judgment concerned, and to remain silent on the issue of the burden of proof with regard to the existence and availability of a remedy in the State of origin; Article 6 § 1 of the Convention, like Article 34(2) in fine of the Brussels I Regulation, required it to verify that this condition was satisfied, in the absence of which it could not refuse to examine the applicant’s complaint. The Court considers that the determination of the burden of proof, which, as the European Commission stressed (see paragraph 92 above), is not governed by European Union law, was therefore decisive in the present case. Hence, that point should have been examined in adversarial proceedings leading to reasoned findings. However, the Supreme Court tacitly presumed either that the burden of proof lay with the defendant or that such a remedy had in fact been available to the applicant. This approach, which reflects a literal and automatic application of Article 34(2) of the Brussels I Regulation, could in theory lead to a finding that the protection afforded was manifestly deficient such that the presumption of equivalent protection of the rights of the defence guaranteed by Article 6 § 1 is rebutted. Nevertheless, in the specific circumstances of the present application the Court does not consider this to be the case, although this shortcoming is regrettable.’

Those ‘specific circumstances’ include in particular the applicant’s professional background: at 124:

‘the applicant, who was an investment consultant, should have been aware of the legal consequences of the acknowledgment of debt deed which he had signed. That deed was governed by Cypriot law, concerned a sum of money borrowed by the applicant from a Cypriot company and contained a clause conferring jurisdiction on the Cypriot courts. Accordingly, the applicant should have ensured that he was familiar with the manner in which possible proceedings would be conducted before the Cypriot courts (…). Having omitted to obtain information on the subject he contributed to a large extent, as a result of his inaction and lack of diligence, to bringing about the situation of which he complained before the Court and which he could have prevented so as to avoid incurring any damage’. 

I am not convinced by the Court’s view on the burden of proof ad on the national court’s duty to assess the law in the State of origin sua sponte. Judges Lemmens and Briede, jointly concurring but for different reasons as the court, in my view have the better argument where they say

‘If the applicant wanted to argue that no remedy had in fact been available to him in Cyprus, in our opinion it would have been for him to raise this issue explicitly before the Supreme Court. We question whether he could expect the Supreme Court to raise that issue of its own motion. And we definitely consider that he cannot complain under Article 6 § 1 of the Convention about the lack of an explicit response to an argument that was not explicitly made.’

The end result is the same at the ECtHR. For future application of the Brussels I (Recast) Regulation however it makes a big difference.

Geert.

 

 

Affum
Espace de liberté, sécurité et justice
La « directive retour » s’oppose à ce qu’un ressortissant d’un pays non UE puisse, avant d’être soumis à la procédure de retour, être mis en prison au seul motif de son entrée irrégulière sur le territoire d’un État membre via une frontière intérieure de l’espace Schengen

Affum
Espace de liberté, sécurité et justice
La « directive retour » s’oppose à ce qu’un ressortissant d’un pays non UE puisse, avant d’être soumis à la procédure de retour, être mis en prison au seul motif de son entrée irrégulière sur le territoire d’un État membre via une frontière intérieure de l’espace Schengen

I contratti internazionali di agenzia e distribuzione dall’Europa all’Oriente è il titolo dell’incontro in programma il 23 giugno 2016 a Vicenza, promosso dalla locale sezione dell’Associazione Italiana Giovani Avvocati (AIGA) con il patrocinio dell’Ordine degli Avvocati di Vicenza.

L’incontro vedrà il susseguirsi di interventi in tema di liquidazione dell’indennità di fine rapporto nei contratti internazionali di agenzia e distribuzione nella giurisprudenza della Corte di giustizia (Silvia Petruzzino, Foro di Lugano), di agenzia e distribuzione in Vietnam e in Iran (Federico Vasoli, Foro di Milano) e di distribuzione e commercio elettronico in Cina (Roberto Luzi Crivellini, Foro di Verona).

Maggiori informazioni sull’incontro e sulle modalità d’iscrizione sono consultabili sulla locandina, qui disponibile.

Does Article 21 TEU on EU citisenship, facilitate one’s acquiring names bearing the tokens of nobility, acquired in one Member State (here: the flexible ‘deed poll’ regime available to citisens of the United Kingdom), for subsequent use in another Member State less keen on such (token or real) titles? In Case C-438/14 Bogendorff the CJEU held that it does not.

Applicant at issue had acquired UK nationality over and above German nationality (which he held by birth). Subsequent adoption but especially vanity had led to a change in first name and surname by deed poll, a very flexible name change regime available to UK citisens. German authorities however refused to recognise the name change upon the occasion of registration of applicant’s daughter, citing public order considerations in particular Germany’s long-standing objection against aristocratic titles, real or vanity, so as to emphasise equality before the law.  The court’s approach on free movement and names in my view has taken a better turn since Vardyn, Case C-391/09, where it left its insistence that only copy /paste recognition of names by authorities in other Member States can safeguard citisens free movement rights.

In the case of aristocratic titles, however, the court has always recognised in particular Austria’s and Germany’s right to extend domestic policies to incoming citisens, on the basis of public policy considerations. Current case differs from Sayn-Wittgenstein, C‑208/09. The latter concerned Austrian law, which has a strict prohibition on the use and transmission of titles of nobility. Under German law by contrast all privileges and inequalities connected with birth or position have been abolished in Germany. Titles of nobility which were actually borne when the Weimar Constitution entered into force may continue as elements of a name and may be transmitted as a fact of personal status. The creation of new titles of nobility and the grant of such titles are prohibited.

Hence for Germany to refuse to recognise such titles where they have been accidentally obtained abroad (by birth, marriage or adoption) would run counter EU citisenhip. By contrast, it would run counter to the intention of the German legislature for German nationals, using the law of another Member State, to adopt afresh abolished titles of nobility. Systematic recognition of changes of name such as that at issue in the main proceedings could lead to that result.

Name dropping undoubtedly will continue. Name shopping has been halted.

Geert.

 

Con un decreto depositato il 17 maggio 2016, il Tribunale per i minorenni di Bologna si è pronunciato sul riconoscimento di una sentenza di adozione emessa negli Stati Uniti con la quale era stata disposta l’adozione piena di una minore, cittadina americana, in favore della moglie della madre biologica.

Nel novembre del 2014, lo stesso Tribunale aveva sollevato una questione di legittimità costituzionale degli articoli 35 e 36 della legge 4 maggio 1983, n. 184, in materia di adozione, nella parte in cui non consentono al giudice di valutare, nel caso concreto, se risponda all’interesse del minore adottato all’estero il riconoscimento della sentenza straniera che abbia pronunciato la sua adozione da parte del coniuge del genitore, a prescindere dal fatto che il matrimonio abbia prodotto effetti in Italia (in proposito si veda questo post).

La Corte costituzionale, con sentenza n. 76 del 7 aprile 2016, aveva dichiarato inammissibile la questione. I giudici costituzionali hanno preso le mosse dalla ricostruzione dell’art. 41 della legge 31 maggio 1995 n. 218, di riforma del sistema italiano di diritto internazionale privato, che prevede due diversi procedimenti per il riconoscimento di provvedimenti stranieri in materia di adozione. Accanto al riconoscimento “automatico” contemplato attraverso il richiamo agli articoli 64, 65 e 66 della stessa legge, la norma stabilisce, al secondo comma, che “restano ferme le disposizioni delle leggi speciali in materia di adozione dei minori”, ossia gli articoli 35 e 36 della legge 184/1983.  Secondo la Corte “l’applicazione della legislazione speciale in materia di riconoscimento della sentenza di adozione internazionale di minori – che richiede un previo vaglio giudiziale, ad opera del Tribunale per i minorenni – non può che escludere il contemporaneo rinvio alle disposizioni ordinarie sul riconoscimento ‘automatico’ dei provvedimenti stranieri”.

In virtù di tali rilievi, il Tribunale per i minorenni di Bologna – escludendo l’applicabilità della procedura di riconoscimento di cui all’art. 36, comma 4, della legge n. 184/1983 (che estende il controllo giudiziale del minore ad una particolare ipotesi di adozione di minori stranieri in stato di abbandono da parte di cittadini italiani), poiché al momento dell’adozione tanto la ricorrente quanto la minore erano cittadine americane – ha considerato che il provvedimento straniero dovesse essere sottoposto a riconoscimento automatico mediante trascrizione a cura dell’ufficiale di stato civile. Il Tribunale, evidenziando tuttavia che la Consulta ha disatteso il rilievo in merito alla cittadinanza (anche) italiana della ricorrente al momento della domanda, ha escluso la propria potestas decidendi non sussistendo i presupposti di cui all’art. 41, comma 2, della legge n. 218/95 per derogare alla competenza della Corte d’appello con riguardo al riconoscimento di provvedimenti stranieri e, di conseguenza, ha dichiarato l’inammissibilità della domanda.

Affinché la ricorrente possa poi “conseguire il risultato sperato”, il Tribunale ha infine suggerito di trarre spunto da un caso analogo a quello di specie e giunto dinanzi alla Corte d’appello di Milano (la decisione è consultabile qui).

Si ringrazia l’avv. Claudio Pezzi per la segnalazione.

Institute of Cetacean Research v. Sea Shepherd Conservation Society has recently come to my attention thanks to Juliett Hatchett over at Baker: her analysis is spot on and I am happy to refer to it. She summarises the case as the district court confirming that perpetrating and funding piracy and unsafe navigation are within the scope of ATS jurisdiction, but holding that there is no enforceable international norm against whaling or financing terrorism.

The case is not easy to find however Sea Shepherd tend to link to court documents in their updates on the litigation.

I flag the case mainly to bring it to readers’ attention that CSR litigation can be done proactively: one need not wait for alleged violations of relevant legal standards to seek to seize a court. Exactly a point I assessed in the context of vulture fund litigation, end of May. (And in forthcoming paper).

Geert.

 

Moreda-Riviere Trefilerías / Commission
Concurrence
Le Tribunal rejette les recours des quatre sociétés espagnoles ayant participé à l’entente sur le marché européen de l’acier de précontrainte

Moreda-Riviere Trefilerías / Commission
Concurrence
Le Tribunal rejette les recours des quatre sociétés espagnoles ayant participé à l’entente sur le marché européen de l’acier de précontrainte

Bogendorff von Wolffersdorff
Principes du droit communautaire
Un nom contenant plusieurs éléments nobiliaires et librement choisi par un Allemand dans un autre État membre dont il possède également la nationalité ne doit pas nécessairement être reconnu en Allemagne

Bogendorff von Wolffersdorff
Principes du droit communautaire
Un nom contenant plusieurs éléments nobiliaires et librement choisi par un Allemand dans un autre État membre dont il possède également la nationalité ne doit pas nécessairement être reconnu en Allemagne

Vervloet e.a.
Liberté d'établissement
L’avocat général Kokott estime que la garantie accordée par la Belgique aux sociétés coopératives financières ARCO enfreint le droit de l’Union

Vervloet e.a.
Liberté d'établissement
L’avocat général Kokott estime que la garantie accordée par la Belgique aux sociétés coopératives financières ARCO enfreint le droit de l’Union

Clayton P. Gillette, Advanced Introduction to International Sales Law, Edward Elgar Publishing, 2016, ISBN 9781784711870, pp. 160, GBP 58,50.

[Dal sito dell’editore] – Providing a concise overview of the basic doctrines underlying the UN Convention on Contracts for the International Sale of Goods (CISG), Clayton Gillette explores their ambiguities and thus considers the extent to which uniform international commercial law is possible, as well as appraising the extent to which the doctrines in the UN Convention reflect those that commercial parties would prefer. With its compelling combination of doctrine and theory, this book makes an ideal companion for students and legal scholars alike.

Ulteriori informazioni sono disponibili a questo indirizzo.

On 24 June 2016, the University of Lincoln will host the conference titled Private and Public International Law: Strengthening Connections”.

As the final event of a two-year research project led by academics in Edinburgh and Lincoln, the conference aims at exploring the connections existing between Private and Public International Law across a wide range of interdisciplinary topics.

Subjects covered include jurisdiction, State immunity, corporate social responsibility, arbitration, and trade in medical services.

The full program of the conference is available here.

Further information can be found here.

In C-222/15 Hőszig Advocate General Szpunar opined using the sensible route, on the application of Article 23 of Regulation 44/2001 . His excursus though on Article 25 of the Brussels I Recast and the new lex fori prorogati rule is the part of his judgment which I read with most interest.

First things first: can choice of court made in underlying documentation in the context of a tender, for which Hőszig entered a winning bid, be considered valid under Article 23 of the Brussels I Regulation (now: Article 25 Brussels I Recast). Pursuant to Clause 23.1 of these ‘general conditions of purchase’, headed ‘applicable law and settlement of disputes’, ‘[t]he Order shall be governed by and interpreted in accordance with French law. The application of the United Nations Convention on the International Sale of Goods dated April 11, 1980 is excluded. Any dispute arising out of or in connection with the validity, construction, performance or termination of the Order, which the parties are unable to settle amicably shall be finally and exclusively settled by the courts of Paris, including in the case of a summary procedure, injunctions or conservatory measure.’

Hőszig tried to sue instead in what it considered to be the place of performance of the contract, per Article 5(1) (now 7(1) in the Recast). Its torpedo of the choice of court included in the general conditions of purchase, was based on recourse to Article 10(2) Rome I, which holds that the putative law of the contract does not apply to consider a party’s consent if it would not be reasonable to do so. In such case the law of the habitual residence of said party applies. Here this would lead to Hungarian law rather than French law and Hungarian law, it is argued, would not accept such incorporation of general terms and conditions. Szpunar AG however simply refers to the fact that choice of court agreements are excluded from the Rome I Regulation. Recourse to Article 10(2) is barred by that exclusion.

What needs to be considered under Article 23 Brussels I is whether parties have reached consensus, ‘clearly and precisely demonstrated’, the AG suggests. This wording is typically associated with choice of law under Rome I however I would support its use in the context of the Brussels I (and Recast) Regulation, too, for that is what the Court’s case-law on the Article amounts to. Applying Case 24/76 Colzani mutatis mutandis, and taking into account that express reference to the general terms and conditions in documents exchanged between the parties prior to the tender being awarded, the AG concludes that agreement had been reached.

Now, is the expression ‘courts of Paris’ sufficiently precise? Szpunar AG suggests it is and I would concur, albeit that the last word on  that is probably not yet said. The Advocate General refers to Capotorti AG in Case 23/78 Meeth, who had advised that a clause worded such as here, refers by implication to the system of rules of territorial jurisdiction (typically on the basis of a combination of value and subject-matter) to determine precisely at which court proceedings must be instituted. The Court itself did not at all elaborate in the eventual judgment. Szpunar AG suggests it must have taken Capororti’s suggestion for granted. Therefore (at 44 of the Opinion) it is French procedural law which governs the question of precisely which Paris court is competent.

This leaves open the question, though (which I understand is not sub judice here) whether parties can employ choice of court to trump national rules of civil procedure. What if they agree that the courts of say province X in Member State A are preferable to settle the issue, e.g. because of perceived know-how, even if national civil procedure would ordinarily assign the case to province Y? Not an issue which to my knowledge has been settled by EU case-law.

By way of sign-off, the Advocate General then reviews whether the new text, Regulation 1215/2012, has in any way altered or added to the discussion on choice of court agreements. Readers will be aware (via this blog or the Handbook or otherwise) that the new Regulation refers to the lex fori prorogati to determine the validity of the choice of court agreement:  ‘[i]f the parties, regardless of their domicile, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction, unless the agreement is null and void as to its substantive validity under the law of that Member State’ (emphasis added by Szpunar AG).

Under Brussels I, various options were defended. Szpunar AG refers to Slynn AG having defended lex fori prorogati in Case 150/80 Elefanten Schuh,  and Szpunar AH himself suggest (at 47 in fine) lex fori additi under the Brussels I Regulation (44/2001).

The AG is most certainly correct in my view that the lex fori prorogati is not meant to cover all aspects of the validity of the agreement. In my Handbook I distinguish between the expression of consent (harmonised by Article 25), and the formation of consent (not touched upon by Brussels I and now subject to the lex fori prorogati). He then suggests that the insertion of lex fori prorogati was meant to align the Brussels I (Recast) with the 2005 Hague Convention on Choice of Court Agreements, to which the EU have now acceded. I do not recall any such reference in the travaux preparatoires of Regulation 1215/2012 – however it has been a while since I consulted them extensively and the AG presumably has.

The Court of course will be much more succinct than its AG.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.9Heading 2.2.9.4. Chapter 3, Heading 3.2.2 .

 

 

Achbita
Principes du droit communautaire
Selon l’avocat général Kokott, l’interdiction de porter un foulard en entreprise peut être licite

Achbita
Principes du droit communautaire
Selon l’avocat général Kokott, l’interdiction de porter un foulard en entreprise peut être licite

The title exaggerates. However the CJEU will have an opportunity in C-136/16 SMD v Banco Santander to hold how ‘international’ a case has to be to trigger application of the European private international law Regulations. In both Owusu and Lindner the Court suggested a flexible approach to the ‘international’ character of a case (hence to the Regulations being easily engaged). The case referred is reminiscent of Banco Santander Totta at the High Court. In that case, however, jurisdiction was not contested and analysis focused on the reach of Article 3(3) Rome I (relating to ‘purely domestic contracts’).

I have copy/pasted the questions referred below. No doubt the CJEU will not entertain them all.

Crucial questions, are: is choice of court ex the country enough for the  case to be considered ‘international’; if it is, can forum non conveniens-type considerations lead to the (national) Court seized ignoring choice of court; if it is not, what other international elements need to be present and does choice of law play a role in this assessment.

Exciting. Once private international law engaged, literally the whole world opens up to contracting parties. If it is not, one is stuck with national law.

Geert.

(Handbook of) European Private International Law Chapter 2, Heading 2.2.2.1

 

In a dispute between two national undertakings of a Member State concerning agreements, does the fact that such agreements contain clauses conferring jurisdiction to another Member State constitute a sufficient international element to give rise to the application of Regulation (EC) No 44/2001 1 and Regulation No 1215/2012 to determine international jurisdiction, or must there be other international elements?

May application of the jurisdiction agreement be waived where the choice of the courts of a Member State other than that of the nationality of the parties causes serious inconvenience for one of those parties and the other party has no good reason to justify such choice?

In the event that it is held that other international elements are necessary in addition to the jurisdiction agreement:

Do the swap agreements concluded between [Sociedade Metropolitana de Desenvolvimento, S.A.] (‘SMD’) and Banco Santander Totta have sufficient international elements to give rise to the application of Regulation (EC) No 44/2001 and Regulation (EU) No 1215/2012 in order to determine which courts have international jurisdiction to settle disputes relating to them where:

(a)    Those entities are nationals of a Member State, Portugal, that concluded two swap agreements in Portugal consisting of an ISDA Master Agreement and two confirmations, negotiated by the Autonomous Region of Madeira on behalf of SMD;

(b)    In that negotiation, the Autonomous Region of Madeira, assisted by Banco BPI, S.A., and by a law firm, invited more than one international bank to submit proposals, one of those invited banks being JP Morgan;

(c)    Banco Santander Totta is wholly owned by Banco Santander, with domicile in Spain;

(d)    Banco Santander Totta acted in its capacity as an international bank with subsidiaries in various Member States and under the single brand Santander;

(e)    Banco Santander Totta was considered in the ISDA Master Agreement as a Multibranch Party, able to make and receive payments in any transaction through its subsidiaries in London or Luxemburg;

(f)    Under the terms of the ISDA Master Agreement concluded, the parties may, in certain cases, transfer their rights and obligations to other representative offices or subsidiaries;

(g)    The parties to the swap agreements specified that English law was applicable and concluded jurisdiction agreements that confer exclusive jurisdiction on the English courts;

(h)    The agreements were drafted in English and the terminology and concepts used are Anglo-Saxon;

(i)    The swap agreements were concluded with the objective of covering the risk of variation in the interest rates of two financing agreements, both drafted in English and concluded with foreign entities (one based in the Netherlands and the other in Italy), and in one of the financing agreements it is provided that borrowers’ payments must be made to the HSBC Bank Plc account in London, on dates defined by reference to the London time zone and subject to English law and the English courts;

(j)    Banco Santander Totta acted as an intermediary of the international market, having concluded hedging agreements in the context of the international market?