Conflictoflaws

In case of opposition to a European Order for Payment, Article 17 (1) of Regulation (EC) No 1896/2006 (latest consolidated version) states: “the proceedings shall continue before the competent courts of the Member State of origin unless the claimant has explicitly requested that the proceedings be terminated in that event. The proceedings shall continue in accordance with the rules of: (a) the European Small Claims Procedure laid down in Regulation (EC) No 861/2007, if applicable; or (b) any appropriate national civil procedure”.

Moreover: 1) the transfer to civil proceedings is governed by the law of the State where the order has been issued, 2) this law must not prejudice the claimant’s position in the subsequent proceedings, and 3) the claimant is to be informed both of the opposition and of any transfer to civil proceedings.

Recital 24 of Regulation (EC) No 1896/2006 makes it clear that the opposition leads “to an automatic transfer of the case to ordinary civil proceedings”, adding that “the concept of ordinary civil proceedings should not necessarily be interpreted within the meaning of national law”.

The effects of the opposition in the CJEU’s case-law

The CJEU in turn has consistently stressed, on the one hand, that Article 17 produces only said effects and, on the other hand, that the transfer to ordinary civil proceedings is automatic (13 June 2013, Case C-144/12, Goldbet, para. 31; see also 4 September 2014, Joined Cases C-119/13 and C-120/13, eco cosmetics, para. 38).

In Flight Refund (10 March 2016, Case C-94/14), the Court sketched a slightly different scenario when holding that “the proceedings automatically continue […] in the Member State of origin of the order […]”, but further confirming that the continuation occurs “in accordance with the rules of ordinary civil procedure […]” (para. 52; emphasis added).

No national provisions for the transfer: how to fill the gap according to the Italian Supreme Court

What seems definite from the foregoing is that, if the claimant were not to request the termination of the proceedings, the opposition triggers the transfer to ordinary national civil procedure (or to the European Small Claims Procedure) under the law of the Member State of origin.

But, what if the lex fori does not provide rules as to the transfer?

An answer comes from the Italian Supreme Court (Corte di Cassazione) in a recent judgment (31 January 2019 no 2840). Although the Corte di Cassazione has reasoned under the initial version of the Regulation (EC) No 1896/2006, it infers from this latter certain principles which may be also applied to the latest version.

The Italian Court holds, in fact, that the continuation of the proceedings is not a matter left to national law, but it is directly governed by the Regulation through the reference to the national provisions that apply to ordinary civil proceedings.

The Member State has to apply the ordinary, normal form of national proceedings which apply to the disputed claim as if the claimant resorted directly to them.

In case the national legal order lacks rules to govern the transfer and determine the specific ordinary civil proceeding triggered by the opposition, the Corte di Cassazione puts forward the following solution.

First, the judge who issued the order is entitled not only to inform the claimant of the opposition, but also to give him a term to bring the action under the ordinary procedural rules. Second, the claimant may choose, among the ordinary civil proceedings, those that better suit the claim for which he resorted to the European procedure.

The Regulation does not allow the judge to lead the transfer, especially by determining the national rules governing the ordinary proceeding.

On the contrary, a national rule in case the claimant does not comply with the term to bring the action exists whereby the proceeding is extinguished (Article 307 (3), Italian Code of Civil Procedure).

A new “choice” for the claimant

The Italian Supreme Court finds in the Regulation the ground for providing the claimant with a sort of “choice of proceedings”.

Recalling the emphasis that both the Regulation and the CJEU put on the automatism in the “continuation/transfer” to the ordinary civil proceeding, what automatically comes out from the judgment of the Corte di Cassazione seems such “choice of proceedings” rather than the very “continuation/transfer”.

Moreover, on closer inspection, since the would-be ordinary proceeding is extinguished if the claimant makes the term to bring the action expire, the real “choice” lies between the continuation or the termination of the whole proceeding.

Perhaps the “choice” is not well founded in the Regulation, but…

The Italian Supreme Court’s effort to counterweigh the lack of national provisions is certainly worthwhile. As is it that to forge the transfer regime in compliance with the Regulation.

However, just reasoning with the Regulation in mind, one may wonder whether the aforementioned “choice” is actually well founded.

According to the Italian Supreme Court, the Regulation entitles the claimant to “explicitly” choose what national proceeding is to be applied. Furthermore, even though the claimant has not explicitly requested under the Regulation to terminate the proceedings following the debtor’s opposition, he is again requested, this time under Italian law, to possibly reveal such willingness by making the term expire without bringing the action.

Where is in the Regulation the room for such “choices”? Actually, where is the room for “choices” other than that to explicitly oppose to the transfer?

These doubts increase under the latest version of the Regulation.

Pursuant to Article 7 (4), the claimant may indicate to the court “which, if any, of the procedures listed in points (a) and (b) of Article 17(1) he requests to be applied to his claim in the subsequent civil proceedings”, unless he indicates to the court that “he opposes a transfer to civil proceedings […] in the event of opposition by the defendant”.

Article 17, which gives the claimant the alternative between the European Small Claims Procedure and any appropriate national civil procedure, adds that where the claimant has not indicated one of these procedures (or he has requested the application of the European Small Claims Procedure to a claim that does not fall within the scope of Regulation (EC) No 861/2007), “the proceedings shall be transferred to the appropriate national civil procedure” (para. 2; emphasis added).

Consequently, the Appendix 2 to the Application for a European Order for Payment (form A) puts in the claimant’s hand the option to request: 1) the discontinuance of the proceedings, or 2) the continuation in accordance with the rule of the European Small Claim Procedure, if applicable, or 3) the continuation in accordance with any appropriate national civil procedure.

Once again, where is the room for “choices” other than that to explicitly oppose to the transfer, or to request that the proceedings be continued under the European Small Claim Procedure or under the appropriate national civil procedure? Moreover, may the judgment as to the “appropriateness” of the national civil procedure be left to the claimant? May it be left to him even when the request to apply the European Small Claim Procedure is ungrounded because the claim falls outside the scope of Regulation (EC) No 861/2007? Who decides about the lack of “appropriateness”? Accordingly, what happens in case the claimant brings an action for civil proceedings that are not “appropriate” or suitable for the claim he sought to satisfy through the European Order for Payment procedure?

…the “choice” logically is the best way not to prejudice the claimant

All things considered, a room in the Regulation (EC) No 1896/2006 seems to unfold more for further judge’s burdens than for further claimant’s “choices” when it comes to governing the transfer under Article 17 in absence of specific national provisions.

However, it’s worth recalling that Article 17 (3) provides that “where the claimant has pursued his claim through the European order for payment procedure, nothing under national law shall prejudice his position in subsequent civil proceedings”.

It goes without saying that the claimant is not prejudiced, but fully protected, if he may even choose the national civil proceedings after the debtor’s opposition and benefits from a second choice between continuing or terminating the whole proceeding.

What about the defendant?

Despite being inclined to safeguard the claimant, the Regulation pays close attention also to the rights of the defendant.

Therefore, it should not be underestimated, as a concluding remark, that “[i]n the European order for payment, the defendant shall be informed that […] where a statement of opposition is lodged, the proceedings shall continue before the competent courts of the Member State of origin in accordance with the rules of ordinary civil procedure […]” (Article 12 (4)(c)).

It is debatable whether, from the defendant’s standpoint, the “accordance” with the rules of ordinary civil procedure may also include – in the silence of the Regulation and in absence of national rules governing the transfer – the “accordance” with the claimant’s choice of the national procedure that the defendant may eventually undergo.

The doubts increase if one considers that, unlike the claimant, who would benefit from a series of choices, the defendant has only two means (except for the remedies) to impinge on the procedural destiny of the disputed claim (to pay the amount or to oppose the order), which both result in the European procedure’s closing.

Ultimately, the idea that the claimant may choose the national civil proceeding and profits from a second choice between continuing or terminating the whole proceeding seems to unbalance the position in which the Regulation has placed the claimant and the defendant after the order has been issued.

On Friday, 12 April 2019, the EU Justice funded project GoInEu (Governing Inheritance Statutes after the Entry into Force of EU Succession Regulation) and the Hungarian Chamber of Civil Law Notaries’ will organize a conference and a workshop on the first three (and half) years of application of the EU Succession Regulation (650/2012/EU).

The conference and workshop will be held in Budapest (Hungary). The complete programme is available here. 

Participation is free of charge. The conference language will be Hungarian, with simultaneous English translation.

Those who wish to attend are kindly requested to register by filling out the registration form available here.

For questions and inquiries please contact Ádám Fuglinszky (Eötvös Loránd University, Budapest) at fuglinszky@ajk.elte.hu.

Another HCCH Convention has recently reached the number of 100 Contracting Parties. In February and March 2019, two States joined the HCCH Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption (Intercountry Adoption Convention): Guyana (by accession) and Honduras (by ratification).

The Intercountry Adoption Convention will enter into force for Guyana and Honduras on 1 June 2019 and 1 July 2019, respectively. The status table is available here.

As announced, Guyana and Honduras are the first States in the Americas to become a party to all four modern HCCH Children’s Conventions. In addition to the Intercountry Adoption Convention, the other modern HCCH Children’s Conventions are:

• the HCCH Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (Child Abduction Convention);
• the HCCH Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (Child Protection Convention); and
• the HCCH Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance (Child Support Convention).

There is also a Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations but neither of them is yet a party.

The other two Hague Conventions that have reached 100 or more Contracting Parties are the Child Abduction Convention (see my previous post here) and the HCCH Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (Apostille Convention). The latter has 117 Contracting Parties, the latest one being the Philippines (to enter into force on 14 May 2019 see here).

The HCCH news item is available here.

We are happy to report that one of our editors, Ralf Michaels from Duke University, has been appointed a new Director of the Max Planck Institute for Comparative and International Private Law in Hamburg. Succeeding Prof. Dr. Dr. h.c. must. Jürgen Basedow, who retired in 2016, Ralf assumed the position part-time in January 2019 and will take on his duties full-time in summer 2019.

Congratulations!

For more on Ralf’s appointment and his research agenda see here.

The CJEU published last week a judgment on a request for a preliminary ruling by the Vienna Labour and Social Security Court. The facts of the case are presented under recitals 21-31. The Austrian court referred the following question to the Court:

‘Is Article 1 of Regulation … No 1215/2012 … to be interpreted as meaning that proceedings involving the assertion of claims by [BUAK] for wage supplements against employers as a result of the posting to Austria of workers without a habitual place of work in Austria for the purposes of performing work or in connection with the hiring-out of workers, or against employers established outside Austria as a result of the employment of workers with a habitual place of work in Austria, constitute “civil and commercial matters” to which the aforementioned regulation applies, even where such claims by BUAK for wage supplements concern employment relationships governed by private law and serve to cover workers’ claims to annual leave and payment in respect of annual leave, governed by private law and arising from employment relationships with employers, but nevertheless

–        both the amount of the workers’ claims against BUAK for annual leave pay and that of BUAK’s claims against employers for wage supplements are determined not by contract or collective bargaining agreement but, instead, by decree of a Federal Minister,

–        the wage supplements owed by employers to BUAK serve to cover not only the expenses for the payment in respect of annual leave payable to workers but also BUAK’s expenses for administrative costs, and

–        in connection with the pursuit and enforcement of its claims for such wage supplements, BUAK has more extensive powers by law than a private person, in that

–        employers are required to submit reports to BUAK on specific occasions as well as at monthly intervals, using communication channels set up by BUAK, to take part in and allow BUAK’s inspection measures, grant BUAK access to wage and business records and other documents, and provide information to BUAK, failing which a fine may be imposed, and

–        in the event that an employer breaches its obligations to provide information, BUAK is entitled to calculate the wage supplements owed by the employer on the basis of BUAK’s own investigations, whereby, in that case, BUAK has a claim for wage supplements in the amount calculated by BUAK, irrespective of the actual circumstances of the posting or employment?’

1. The admissibility of the request

Prior to answering the question referred, the Court examined the admissibility of the request. The novelty of the matter lies on the existence or non-existence of a judicial character for the issue of a certificate under Article 53 of Brussels I bis Regulation. In other words, the question was raised after the termination of the proceedings and the publication of the judgment. It came to the surface due to the reservations of the competent Austrian body to issue the above certificate, thus labelling the case with a civil or commercial nature. The answer was given in recital 41:

Consequently, the procedure for the issue of a certificate under Article 53 of Regulation No 1215/2012, in circumstances such as those at issue in the main proceedings, is judicial in character, with the result that a national court ruling in the context of such a procedure is entitled to refer questions to the Court for a preliminary ruling.

2. On the civil or commercial nature of the dispute

Following the affirmative answer to the admissibility issue, the Court proceeded to the examination of the legal nature of the case at hand. Its analysis extends to recitals 46-64, wherefrom the following could be highlighted:

• The exercise of public powers by one of the parties excludes a case from civil and commercial matters within the meaning of Article 1(1) of Regulation No 1215/2012 [Recital 49].
• The CJEU held that the Austrian court’s powers were limited to a simple examination of the conditions for the application of Paragraph 33h (2b) of the BUAG, with the result that, if those conditions are satisfied, the court cannot carry out a detailed examination of the accuracy of the claim relied on by BUAK [Recital 57].
• In so far as Paragraph 33h (2b) of the BUAG places BUAK in a legal position which derogates from the rules of general law regulating the exercise of an action for payment, by attributing a constitutive effect to the determination by it of the claim and by excluding, according to the referring court, the possibility for the court hearing such an action to control the validity of the information on which that determination is based, it must be concluded that that body acted, in that case, under a public law prerogative of its own conferred by law [Recital 60].
• In such a case, BUAK should be considered to be acting in the exercise of State authority in the context of a dispute such as that which led to the judgment delivered on 28 April 2017, which would have a major influence over the modalities for the exercise of that procedure, and therefore over its very nature, such that that dispute does not come within the concept of ‘civil and commercial matters’ or, therefore, within the scope of application of Regulation No 1215/2012 [Recital 61].

The Court dedicated only six recitals for the concept of social security and its exclusion pursuant to Article 1(2) (c) Brussels I bis Regulation [Recitals 65-70], concluding that, on the basis of facts delivered, the case does not come within the concept of social security for the purposes of the provision aforementioned.

3. Some thoughts on the ruling

The significance of the judgment is self-explanatory: Unlike its predecessor, the certificate under Art. 53 Brussels I bis is one of the core documents needed for direct enforcement in the country of destination. The previous exequatur stage is abolished; hence, the issue on the legal nature of the case is transferred to the court which would try the application for refusal. Therefore, the decision of the Austrian court to refer the matter to the CJEU should be endorsed; the same goes for the position of the latter in regards to the admissibility issue.

The case resembles a recent judgment of the Thessaloniki Court of 1st Instance, which refused to grant exequatur to a German Notice of the National Association of Statutory Health Insurance Physicians against a doctor of Greek origin, active in the region of Rhineland-Palatinate. As in the case of the Austrian BUAK, the notice was issued ex parte, but no court proceedings ensued in the country of origin. Moreover, the German authorities issued a certificate without questioning the legal nature of the matter at hand. Given that the case fell under the scope of Brussels I Regulation, the Greek judge denied exequatur, stating that the above notice was of an administrative nature, thus falling out of the Regulation’s ambit. The case is published in its original text in: Armenopoulos 2018, pp. 812 et seq. It is also reported in a case note I prepared for the German journal Praxis des Internationalen Privat- und Verfahrensrechts, see: Nichtanwendung der EuGVVO 2001 auf den Bescheid einer deutschen kassenärztlichen Vereinigung in Griechenland – LG Thessaloniki, 19.12.2017 – 19865/2017, IPRax (forthcoming).

On 2 and 3 May 2019, academics, IT and legal professionals will meet in Lisbon to discuss how to improve the collaboration between these communities in cross-border civil procedures. During this two-day conference, participants will reflect on issues that currently complicate the cooperation, but are also invited to share ideas on possible solutions. The goal of the conference is to identify the issues at stake, to learn of diverging approaches on citizen-centered cross-border justice and to find means to jointly deploy these approaches to bring justice closer to citizens.

The full program will be published shortly. You can pre-register here.

The event is organised by the e-CODEX Plus project in cooperation with the ‘Building EU Civil Justice’ project run by the Erasmus School of Law of the Erasmus University in Rotterdam.

In February 2019, two States acceded to the HCCH Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (Child Protection Convention): Guyana and Nicaragua. Thus, the Convention has reached the milestone of more than 50 Contracting Parties.

The status table of the Convention is available here. The Child Protection Convention will enter into force for both States on 1 December 2019.

Unlike the Child Abduction Convention, the Children Protection Convention has put in place a mechanism of objections to an accession. Under Article 58(3) of the Child Protection Convention an “accession shall have effect only as regards the relations between the acceding State and those Contracting States which have not raised an objection to its accession in the six months after the receipt of the notification referred to in sub-paragraph b of Article 63. Such an objection may also be raised by States at the time when they ratify, accept or approve the Convention after an accession. Any such objection shall be notified to the depositary.”

This is not a small difference as States are more hesitant and weary to file an objection, and thus the Convention is more widely applied among its Contracting Parties. Indeed, there are currently no objections; all previous objections have been withdrawn. See here (Depositary’s website).

See also my previous post on the milestone of the Child Abduction Convention here.

Two conferences on private international law have been announced for Brazil. From March 13-16, the University of Brasilia will organize a conference on the topic of “Challenges to Private International Law in contemporary society” (Program here.) Prior to that, I will teach a graduate mini-course on comparative law and private international law on March 11-13. Sign-up information for both is on the linked sites.

And then, on March 15-17, the 3rd international law conference RIBAMAR at the Universidade Estadual do Maranhão will discuss “Emerging Topics in Private International Law.” The program is here, instructions for signing up here.

Exciting to see that the energy is sustained n Brazil, after the JPIL conference in 2017 in Rio de Janeiro.

The meaning of submission was the central question, though by no means the only one, in the Supreme Court of Canada’s decision in Barer v Knight Brothers LLC, 2019 SCC 13 (available here).  Knight sought enforcement of a Utah default judgment against Barer in Quebec.  The issue was governed by Quebec’s law on the recognition and enforcement of foreign judgments, which is set out in various provisions of the Civil Code of Quebec (so much statutory interpretation analysis ensued).  Aspects of the decision may be of interest to those in other countries that have similar provisions in their own codes.

The court held that the Utah decision was enforceable in Quebec.  Seven judges (Gascon J writing the majority decision) held that Barer had submitted to the Utah court’s jurisdiction.  Two judges held that he had not.  One of them (Brown J) held that the Utah court had jurisdiction on another basis, and so concurred in the result, while the other (Cote J) held it did not, and so dissented.

The majority held that in his efforts to challenge the Utah’s court’s jurisdiction, Barer had presented substantive arguments going to the merits of the dispute (para 6).  It analysed various possible steps in a foreign proceeding that either would or would not constitute submission (paras 59-63).  It was invited by Barer to consider the “save your skin” approach to submission, which would recognize that a defendant who both challenged jurisdiction and raised substantive arguments would not be taken to have submitted.  It rejected that approach (para 68).  Its core concern was to protect “the plaintiff’s legitimate interest in knowing at some point in the proceedings, whether or not the defendant has submitted to the jurisdiction” (para 62).  It added that “plaintiffs who invest time and resources in judicial proceedings in a jurisdiction are entitled to some certainty regarding whether or not the defendants have submitted to the court’s jurisdiction” (para 67).

The majority acknowledged that in a case in which the process of the foreign forum required the raising of a substantive argument alongside a jurisdictional challenge, this could affect the determination of whether the defendant had submitted (para 75).  But this was not such a case: the defendant had not established, as a factual matter, that this was such a feature of the Utah procedure (paras 75 and 78).  Accordingly, the fact that Barer had raised a defence on the merits – that a pure economic loss rule barred the claim against him – amounted to submission (para 71).

In dissent, Justice Cote finds the majority’s test for submission to be “too strict” (para 212).  She urged a “more flexible approach” which would allow a defendant to raise substantive arguments alongside a jurisdictional challenge (para 213).  In her view, if “a broad range of arguments may convince a Utah court that it lacks jurisdiction over a matter … A defendant must be allowed to present those arguments” (para 219).  While Gascon J put the onus of showing that the Utah process required raising substantive arguments at a particular time on the defendant, Cote J put that onus on the plaintiff, the party seeking to enforce the foreign judgment (para 223).

Brown J’s concurring decision did not comment at any length on the test for submission.  He held that “I agree with my colleague Cote J. that Mr. Barer has not submitted to the jurisdiction of the Utah court merely by presenting one argument pertaining to the merits of the action in his Motion to Dismiss” (para 146; emphasis in original).  This is consistent with Cote J’s approach to the meaning of submission.

There is a further interesting dimension to the reasons.  Cote J held, in the alternative, that even if Barer had submitted, the plaintiff also had to show a real and substantial connection between the dispute and Utah before the judgment could be enforced (para 234).  This engaged her in a complex argument about the scheme and wording of the Civil Code.  Having identified this additional legal requirement, she held this was a case in which the submission itself (if established) was not a sufficiently strong connection to Utah and so the decision should nonetheless not be enforced (para 268).  In contrast, Brown J held that there was no separate requirement to show such a connection to Utah (paras 135 and 141-42).  Showing the submission was all that was required.  The majority refused to resolve this interpretive dispute (para 88), holding only that on the facts of this case Barer’s submission “clearly establishes a substantial connection between the dispute and the Utah court” (para 88).

The judges disagreed about several other aspects of the case.  Put briefly and at the risk of oversimplification, Brown J relied primarily on the notion that all parties and aspects of the dispute should have been before the Utah court.  Barer was sufficiently connected with various aspects of the dispute, over which Utah clearly did have jurisdiction, that its jurisdiction over him was proper (see paras 99, 154 and 161-62).  Neither Cote J nor Gascon J agreed with that approach.  There are also disputes about what types of evidence are proper for establishing the requirements for recognition and enforcement and what law applies to various aspects of the analysis.

In a small tangent, the majority decision criticized the “presumption of similarity” doctrine for cases in which the content of foreign law is not properly proven and it offered a more modern explanation of why forum law is applied in such cases (para 76).

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:

H.-P. Mansel/K. Thorn/R. Wagner: European conflict of laws 2018: Final Spurt!

This article provides an overview of developments in Brussels in the field of judicial cooperation in civil and commercial matters from January 2018 until December 2018. It provides an overview of newly adopted legal instruments and summarizes current projects that are presently making their way through the EU legislative process. It also refers to the laws enacted at the national level in Germany as a result of new European instruments. Furthermore, the authors look at areas of law where the EU has made use of its external competence. They discuss both important decisions and pending cases before the CJEU as well as important decisions from German courts pertaining to the subject matter of the article. In addition, the article treats current projects and the latest developments at the Hague Conference of Private International Law.

C. Kohler: Lis pendens of a complaint seeking to join a civil claim for damages to criminal proceedings before the investigating magistrate

Case C-523/14 raised the issue whether a complaint seeking to join a civil claim for damages to criminal proceedings before the investigating magistrate is lis pendens in respect of subsequent proceedings brought in another Member State involving the same cause of action. The ECJ held at the outset that such a complaint falls within the scope of Regulation No 44/2001 in so far as its object is to obtain monetary compensation for harm allegedly suffered by the complainant. On the point of lis pendens the ECJ ruled that under Art. 27(1) of the Regulation proceedings are brought when the complaint seeking to join the civil action has been lodged with an investigating magistrate, even though the judicial investigation of the case at issue has not yet been closed. The Court further held that according to Article 30 of the Regulation, where the complaint seeking to join a civil action is initiated by lodging a document which need not, under the applicable national law, be served before that lodging, the relevant time for holding the investigating magistrate to be seised is the time when the complaint was lodged. The author approves the ECJ’s interpretation of the relevant provisions of Regulation No 44/2001. However, he considers that the rule which gives jurisdiction to the court seised of criminal proceedings to rule on a civil claim for damages deserves criticism. That rule is an alien element within the Brussels-Lugano system which favours the plaintiff whereas the defendant may be sued in exorbitant jurisdictions and cannot oppose the recognition and enforcement of the civil judgment given by the criminal court.

S. Kurth: Determining the habitual residence of a testator who alternately lived in two states

The article critically analyses the decision of the German Higher Regional Court (Oberlandesgericht) Hamm (reference number: 10 W 35/17) on the interpretation and application of the habitual residence concept to establish jurisdiction under Art. 4 (EU) Regulation No 650/2012. The Court relies on the concept to determine the habitual residence of a German testator who for several decades spent extended periods of time on the Spanish Costa Brava and in the German backcountry. The author argues for an autonomous interpretation of the Regulation and expresses regret over the approach taken by which the “habitual residence of the deceased” as the connecting factor under the Regulation is construed in line with national law. Moreover, the article examines the two definitions of habitual residence used by the Court and demonstrates that on closer scrutiny none of them is persuasive in light of the established canons of interpretation. The author argues to instead define the habitual residence of the deceased as the place where he is primarily integrated as well as regularly and consistently spends time. Further, the article criticises the Court’s findings on circumstantial evidence and, among others, demonstrates the importance of the deceased’s re-lationships with family and friends as pieces of circumstantial evidence neglected by the Court.

D. Coester-Waltjen: Marriages of Minors – Against the Legislative Furore

The German law against “child marriages” of 2017 was the subject matter of some recent court decisions. The German Supreme Court doubts in its decision the constitutionality of the “Law against Child Marriages” regarding the invalidation of marriages validly formed under the applicable foreign law, but void under the new German law in case one of the spouses was below the age of fourteen at the time of formation. The other cases concerned marriages each validly formed under the applicable law by two EU citizens in their respective home country. Since the bride in both cases was only 16, respectively 17 years old, the new German law obliges the German courts to invalidate these marriages, unless under extraordinary circumstances such invalidation would cause extreme hardship to the still minor spouse (or the spouse has reached majority and wants to stay in the marriage). Only in those cases, by way of exception, no invalidation should take place. Despite the pitfalls of the new law the courts succeed in reaching a sensible and adequate result. This article analyses how the courts struggle with the interpretation of the relevant provisions. Emphasis is placed on the European dimension of the topic as well as on the constitutional aspects in the relevant situations.

C. Benicke: The need for Adaptation (Anpassung) to cure deficiencies in the protection of the child’s financial interests caused by the parallel application of German inheritance law and English child custody law

The decision of the Munich Higher Regional Court raises the question of the extent of the father’s power of representation for his minor son under English law when he sells the interest in a German partnership which the son has inherited under German law. The parallel application of English law for the parental responsibility issues on the one hand and of German law as inheritance law for the acquisition of the partnership interest on the other hand leads to a legal gap in respect to the provisions aiming at the protection of the child’s financial interests. As German law regulates this issue in its child custody law through provisions limiting the extent of the parents’ powers to act as legal representatives, and English law protects the child’s interests in its inheritance law through provisions about the administration of the estate, neither of these provisions are invoked by the relevant choice of law rules. This raises the question of adaptation (Anpassung) as an instrument of private international law to avoid outcomes that are inconsistent with both legal orders at stake.

L. Rademacher: Multilocal Torts, Favor Laesi, and Renvoi

In the case of a multilocal tort, the defendant commits the tortious act in a state different from the state in which the claimant suffers the resulting injury. In such a scenario, identifying the applicable law can prove difficult. Under Art. 4 para. 1 Rome II Regulation, the defendant’s liability is determined by the law of the state in which the claimant was injured. By contrast, Art. 40 para. 1 sent. 1 EGBGB (Introductory Act to the German Civil Code) relies on the location of the defendant’s tortious act as the relevant connecting factor. The injured party, however, can demand the application of the law of the state where the injury was sustained according to Art. 40 para. 1 sent. 2 EGBGB. Since the codification of German international tort law in 1999, it has been in dispute whether in the case of a multilocal tort the references in Art. 40 para. 1 EGBGB encompass a foreign legal system’s conflict-of-laws rules or refer to foreign substantive law only. This case note, on the occasion of a decision of the Higher Regional Court of Hamm, critically evaluates the arguments for and against the acceptance of renvoi in this context. Contrary to the court, it argues in favour of a reference that includes foreign private international law. It is submitted that only this view can be reconciled with the general rule on renvoi laid down in Art. 4 EGBGB and with the absence of a strict notion of favor laesi in Art. 40 para. 1 EGBGB.

P. Hay: Foreign Law as Fact in American Litigation – Foreign Government’s Interpretation of Its Own Law is Not Conclusive

The U.S. Supreme Court confirmed unanimously that foreign law is to be treated as fact, not law, in federal civil litigation. In determining the content and in interpreting foreign law, the lower court may consider all relevant materials. The interpretation of the foreign government of its own law is to be received with respect under principles of comity, but it is not conclusive. The Court reversed and remanded an appellate court’s decision that had concluded that courts were “bound to defer” to the “reasonable” interpretation of the Chinese government of its own law. The Supreme Court ruled that Federal Rule of Civil Procedure 44.1 does not go this far, but continues to embody the traditional American fact-orientation with regard to foreign country law.

M. Stürner/A. Hemler: Recognition of a French astreinte in California

The French astreinte is a private penalty payable to the creditor designed to bend the debtor’s will. In the case discussed, the U.S. Court of Appeals for the Ninth Circuit examines the enforceability of a French judgement condemning Californian editor Wofsy to pay an astreinte in favour of French publisher de Fontbrune. First, the Court of Appeals considers the determination of foreign law in accordance with Rule 44.1 FRCP, which permits the decision on foreign law using “any relevant material or source”, thus classifying it as “question of law”. Given this explicit departure from the question of fact doctrine, the Court of Appeals holds that the ascertaining of foreign law is permitted outside the pleading stage as well. Since foreign penal judgements are not enforceable under Californian law, the Panel also examines whether the astreinte is punitive in nature. In view of its characterisation as predominantly inter partes and its connection to the fulfilment of the debtor’s obligation, the Court of Appeals concludes that the enforcement of the astreinte in question cannot be denied.

With the accession of Guyana, the HCCH Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“Child Abduction Convention”) has reached the milestone of 100 Contracting Parties.

For acceding States, it is important to bear in mind that a bilateralisation regime applies. Under Article 38(4) of the Child Abduction Convention, an accession “will have effect only as regards the relations between the acceding State and such Contracting States as will have declared their acceptance of the accession. Such a declaration will also have to be made by any Member State ratifying, accepting or approving the Convention after an accession [see Art. 37 of the Convention]. Such declaration shall be deposited at the Ministry of Foreign Affairs of the Kingdom of the Netherlands; this Ministry shall forward, through diplomatic channels, a certified copy to each of the Contracting States.”

It is therefore of great importance that ratifying States and previous acceding States accept the accession of new States.

A useful excel sheet of the acceptances of accessions under this Convention is available here.

The HCCH news item is available here.

The University of Genoa, together with the Universities of Antwerp and Ghent, Missing Children Europe, Child Focus, Centrum IKO and MIKK has launched a research study, co-financed by the European Commission, for the promotion of  child-friendly justice and the enhancement of the well-being of children in international child abductions cases – VOICE.

On 14 March (10.00 – 18.30) and 15 March (9.30 – 13.00) 2019, the VOICE team is organising an interactive seminar to report on some of the research results and provide a discussion among academics and practitioners.

The seminar will focus on the existing legal framework concerning international child abduction and on the hearing of the child from a practical and interdisciplinary point of view. The aim is to provide the tools necessary to evaluate and pursue the best interests of the child.

The programme is available here.

Registration is required at the following link: Registration training VOICE

The event includes a contribution of 25 euros, which can be paid locally or by bank transfer to the organizing body, as follows:

Bank:                    ING Belgium, Avenue Marnix, 24, 1000 Brussels – Belgium

Recipient:           Missing Children Europe

IBAN:                    BE43 310 165 832 401
BIC:                       BBRUBEBB

Following the signature of Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms on March 2, 2017, the Hellenic Republic proceeded yesterday to its ratification. Article 1 of Law 4569/2019 reproduces the English version of the Protocol, coupled with a Greek translation. Articles 2-4 regulate formal issues, such as the procedure for submitting a request for advisory opinion (Article 1), the necessary content of the request and the latter’s notification to the parties (Article 3), and issues concerning the stay and reopening of national  proceedings (Article 4).

The last issue of the Revue critique de droit international privé has been released. It contains several casenotes and one article, authored by Professor Paul Lagarde (“La codification du droit international privé monégasque”).

The abstract reads as follows:

“The princedom of Monaco has just given itself a brand-new legislation, a more or less complete codification of its private international law. In doing so, it joins the trend that has developed, particularly in Europe, since the latter part of the twentieth century and for which the model (under all meanings of the term) was the Swiss Act of 18th December 1987”.

A full table of contents is available here.

The Hague Conference has posted its annual report 2018, in traditional pdf and even more traditional paper format. Much space is taken up by reminiscences of the 125th anniversary , including the publication of several speeches. Beyond that are reports of other events, as well as general information, some more useful (new ratifications and accessions in 2018), some perhaps less so (the number of followers on twitter).

The recognition of surnames determined abroad by virtue of a judgment or an administrative act has never attracted the attention of academics in Greece. The frequency of appearance concerning reported judgments is also scarce. In practice however, applications are filed regularly, mostly related with non EU-Member States. Until recently, recognition was granted by courts of law, save some minor exceptions, where the public order clause was invoked to deny recognition. A ruling of the Thessaloniki Court of Appeal from 2017 brings however an unexpected problem to surface.

I. The legal status in Greece

Name and surname issues are regulated by a decree published in 1957, as amended. For a person to change her/his name, there are certain requirements and an administrative procedure to be followed. The applicant has to prove the existence of a reason, such as psychological problems due to cacophonous sound of the surname, its pronunciation difficulty or hilarious meaning, its bad reputation or connotation, the lack of any contact with the applicant’s father, whose last name she/he uses, etc. In case of acceptance, the competent Mayor issues an act, granting the right of the petitioner to carry the new surname.  If the application is dismissed, the applicant may file a recourse before the General Secretary of the territorially competent Decentralized Administration unit. The Council of State, i.e. the highest administrative court in Greece, serves as the last resort for the applicant.

II. The treatment of foreign judgments / administrative acts

The above decree does not regulate the situation where a person of double nationality (one of which is of course Greek) requests the registration of a foreign judgment or administrative act, whereupon a change of surname has been determined. Being confronted with relevant petitions, the Greek administration sought the assistance of the Legal Council of State, i.e. an advisory body at the service of state authorities. By virtue of a legal opinion issued in 1991, the Legal Council stated that registration may not take place prior to court recognition of the foreign judgment, pursuant to standard procedures provided for by the Greek Code of Civil Procedure [= GCCP]. In this fashion, the ball was sent to the courts.

III. The practice of the courts

Until recently, Greek courts reacted in a rather formal and simplistic way: Reference to the applicable provisions of the GCCP, presentation of facts, brief scrutiny on the merits and the documents produced, and recognition was granted. There are two exceptions to the rule. The first one is a reported case from 1996 [Athens 1st Instance Court Nr. 4817/1996, published in: Hellenic Justice 1997, p. 452], where a court order by the Supreme Court of Queensland was denied recognition, because it was based on the applicant’s wish to give up his surname and acquire a new one, without any examination by the Australian court. The Greek court invoked the public policy clause, stating that the issue goes beyond private autonomy, and is differently regulated in Greece. The same outcome appeared 32 years later in the course of an application for the recognition of an act issued by the Civil Registry of Suchoj Log, Sverdlovsk Oblast: In a ruling from last year, the Thessaloniki 1st Instance Court refused recognition on public policy grounds, because the procedure followed in Russia contravened mandatory rules of Greek law on the change of surnames [Thessaloniki 1st Instance Court Nr. 8636/2018, unreported].

A different stance was however opted by the Piraeus Court of Appeal with respect to an act issued by the Mayor of Vienna: After quashing the first instance decision, which dismissed the application as legally unfounded, the appellate court stayed proceedings, requesting a legal opinion on the procedure followed for the change of surnames pursuant to Austrian law. Upon submission of the legal opinion, the court proceeded to a brief analysis, whose outcome was the recognition of the Austrian act. In particular, the court confirmed that the procedure followed was in accordance with Austrian law [Bundesgesetz vom 22. März 1988 über die Änderung von Familiennamen und Vornamen (Namensänderungsgesetz – NÄG)]. Hence, no public policy reservations were in place [Piraeus Court of Appeal Nr. 141/2017, unreported].

IV. The Game Changer

The complacency era though seems to be over: In a judgment of the Thessaloniki CoA issued end 2017, things are turning upside-down. The application for the recognition of a registration made by the Civil Registry of Predgorny, District of Stavropol, was denied recognition, this time not on public order grounds, but on lack of civil courts’ jurisdiction. The court stated that the recognition of a foreign administrative act may not be examined by a civil court, if the subject matter at stake (change of surname) is considered to be an administrative matter according to domestic law. Bearing in mind that the change of surname is a genuinely administrative procedure in Greece (see under I), civil courts have no jurisdiction to try such an application.

V. Repercussions and the way ahead

What would be the consequences of this ruling in regards to the overall landscape?

First of all, there could be a sheer confusion in practice: If the administration demands court recognition, and courts decline their jurisdiction, stagnation is at the gates. A ping pong game will start between them, and the ball will be the poor applicant, trapped in the middle. Needless to say, there is no other judicial path for recognition. The Code of Administrative Procedure does not contain any provisions on the matter.

Secondly, is it to be expected that the same stance will prevail with respect to judgments or administrative acts coming from EU Member States? A spillover effect is not to be excluded. Courts seem to be encapsulated in their national niche. It is remarkable that no reference is made to the case law of the CJEU, even in the case regarding the Austrian Mayor’s act.

Therefore, an intervention by the legislator is urgently needed, otherwise we’re heading for stormy weather.

The Swiss Institute of Comparative Law has just published the proceedings from its 30th Private International Law Day, which focused on digital platforms and their implications for the conflict of laws. The following teaser, as well as the volume’s table of contents, have been kindly provided by its editor and main organiser of the conference, Ilaria Pretelli:

Since its creation in the early 1990s, the World Wide Web has intensified its role and skills at too speedy pace for any sober reflection in human sciences.

The exponential rise of tech oligopolies is also a consequence of the “statelessness” of the platform economy, a circumstance that explains the great interest of the subject for lawyers and the choice of this topic for the 30th day conference in Private International Law of the Swiss Institute of Comparative Law, held on June 28th, 2018 whose proceedings, enriched by further contributions, are collected in the 86th volume of its red series.

The disruptive potential of the platform economy challenges traditional approaches based on the bilateral legal relationship and its geographical location.

It is worth asking whether the basic principles of private international law can be adapted to the immateriality of the digital space, whether a new revolution in the theory of private international law can be expected, or whether private international law is an inapt tool for platform governance and the only promising way is that of a multilateral and harmonising approach.

Collecting the proceedings of the conference, the 86th volume of our red series aims to contribute, through a multidisciplinary analysis, to the collective effort to build a legal theory adapted to digital platforms.

By presenting the first national and supranational responses to the challenges of the platform economy – still disordered and sometimes contradictory – the book attempts to synthesise the main trends in the legal developments that are forthcoming in various legal fields, with a focus on the need to protecting weak parties (workers, consumers, small and medium businesses).

After years in the making, the revised HCCH draft Guide to Good Practice on Article 13(1)(b) of the Child Abduction Convention has been completed and is accessible here. It has been submitted to the governance body of the Hague Conference on Private International Law (i.e. the Council on General Affairs and Policy) for approval.

There are five exceptions under the Child Abduction Convention and this is one of them; see also Arts 12(2), 13(1)(a), 13(2) and 20 of the Convention. Under this exception, the judicial or administrative authority of the requested State may refuse to return the child to his or her State of habitual residence following a wrongful removal or retention.

According to the latest survey of the Hague Conference of applications made in 2015, the refusals on the basis of Article 13(1)(b) of the Child Abduction Convention amount to 18% of the total judicial refusals. Thus, this is the most frequently raised exception. Other grounds for judicial refusal relate to the scope of the Convention (such as the lack of habitual residence or rights of custody). See the survey available here (p. 15).

Article 13(1)(b) contains the following three different types of risk:

• a grave risk that the return would expose the child to physical harm;
• a grave risk that the return would expose the child to psychological harm; or
• a grave risk that the return would otherwise place the child in an intolerable situation.

Particularly useful for practitioners are the examples of assertions that can be raised under this exception, which include but are not limited to (see paras 53-77):

• Domestic violence against the child and / or the taking parent
• Economic or developmental disadvantages to the child upon return
• Risks associated with circumstances in the State of habitual residence
• Risks associated with the child’s health
• The child’s separation from the taking parent, where the taking parent would be unable or unwilling to return to the State of habitual residence
• Separation from the child’s sibling(s)

In my opinion, the Child Abduction Convention, and in particular this exception, can no longer be interpreted in a vacuum and one should also look to the human rights case law which is quickly developing in this area (in addition to the applicable regional regulations).

Please see the the last issue of 2018 of the Belgian Journal of Private International Law here.

Besides the latest judgments by the Court of Justice of the European Union, it also contains case law of the Belgian Constitutional Court and courts of appeal. The cases are in Dutch or French.

The judgment of the Constitutional Court (of 11 October 2018) concerned the response to a question posed to this court by the Commercial Court of Liège (p. 14 pof the issue). It involved the so-called cautio judicatum solvi. The question was whether the fact that only foreign national plaintiffs can be requested to give a warranty for costs infringes the Belgian Constitution, particularly its Articles 10 and 11 guaranteeing equality and prohibiting discrimination. The Court referred to the limitations that the Court of Justice of the EU had already set to the application of the cautio (it cannot be used against EU citizens). Moreover, the provision only applies in the absence of international conventions eliminating the cautio.The issue in this case was that Belgian plaintiffs living abroad (in Ecuador in the current instance), even if they have no assets in Belgium cannot be subjected to such warranty. The court found that the cautia juricatum solvi (Art. 851 of the Code of Civil Procedure) infringes the Constitution. The differentiation in treatment is not justifiable as it is not the plaintiff’s nationality but his or her residence outside Belgium and lack of property in Belgium that can cause the defendant to fear that he or she will not be able to recover costs. The Court left the provision intact and gave the legislator until 31 August 2019 to fix it.

* In the meantime, on 24 Januari 2019, a legislative proposal was submitted to delete the cautio judicatum solvi from the Code of Civil Procedure.

Other judgments deal with the attribution of Belgian nationality, with parentage and with the recognition of marriages.

A judgment by the Court of Appeal of Brussels (judgment of 10 August 2018) addresses the recognition of the parentage of twins born out of a surrogate mother in California (p. 15 of the issue). The Californian judgment establishing the parentage of two men (one Belgian and one French) was at issue. The Court of appeal recognised the Californian judgment, thus recognising both fathers as parents. The Court considered two grounds for refusal (under Art. 25 of the Belgian Code of Private International Law). First  it found that the recognition of the judgment would not amount to a result that was manifestly contrary to public policy. The Court on the other hand found that the intending fathers did attempt to evade the law that would have been applicable, i.e. Belgian law as the intended father whose parentage was at issue had Belgian nationality (and this law governs parentage according to Art. 62 of the Belgian Code of Private International Law).  However, the Court, after considering the particular situations of the children and the facts surrounding the case, found that the best interests of the children had the result that the parentage should be recognised in this case.

* See also the case note (in French) by Patrick Wautelet entitled “De l’intérêt supérieur de l’enfantcomme facteur de neutralisation de la fraude à la loi” (On the best interests of the child as a neutralising factor for evasion of the law) at p. 61 of the issue.

The enactment of Regulations 2016/1103 and 2016/1104, implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes and of the property consequences of registered partnerships, represents a significant step forward in the development of a European Private International Law in the field of Family and Successions Law.

The application of the application of these instruments from January the 29th 2019, is also going to deeply affect the autonomous Private International Law systems of those Member States which participate in such enhance cooperation proceeding.

A selected group of Spanish academics and legal practitioners (including, Lawyers, Judges, Notaries and Land Registers) published a profound analysis of those Regulations, as well as their coordination with other instruments in the field of Judicial Cooperation in Civil matters and its interaction with national provisions from participating Member States: see here.)

This book constitutes the first Spanish Commentary devoted to Regulations 2016/1103 and 2016/1104, prepared by the same experienced group of specialists, edited by Profs. Iglesias Buhigues and Palao Moreno (University of Valencia), who previously edited an aclaimed Commentary to the EU Successions Regulation 650/2012 (see  here).