EAPIL blog

The Court of First Instance of Thessaloniki ruled on 24 June 2020 that an application by a psychological (non biological) mother to recognize and declare enforceable a UK custody order concerning a child born by the applicant’s partner contravenes Greek public policy (Ruling No. 6175, unreported).

Facts

The applicant [A] is a woman of Greek and American nationality. Her partner was a woman of American nationality [P]. They registered their partnership in the UK on 20 August 2013. Nearly a month later, P. gave birth to a child. The partners married in January 2015.

A. filed an application for child custody and parenting arrangements order in the UK. The court granted the application, and ordered that the child stays with the psychological mother on the basis of previous decisions concerning parental responsibility rights issued in the same country. In addition, the court ordered that the child reside with A., and it issued an order to remove the child permanently to Greece. Finally, the same court arranged the contact rights of the biological mother [P]. The information given in the Greek judgment is that the UK order was issued by the High Court – Family Division in Chelmsford, and that it was final. A. filed an application for the recognition and enforcement of the UK order before the Court of First Instance in Thessaloniki.

The Ruling

The Court of Thessaloniki began by acknowledging its jurisdiction and venue for the case at hand. It then entered into an analysis of the public policy defence, culminating in the conclusion, that the forum judge is obliged to defend national public policy, while at the same time demonstrating respect towards the state’s international obligations. To that end, a proportionality test of the domestic public policy with Article 8 ECHR standards is imperative. Following the above introduction, the court rushed to declare that same-sex marriage, and any subsequent relations emanating thereof are not allowed in Greece.

Public Policy

The first point raised by the court was a contradiction of the English order with established perceptions of Greek family law. By invoking Article 33 Greek Civil Code, i.e. the public policy defence in domestic Private International Law, the court held that Greek family law grants parental responsibility rights to the mother, if the child was born out of wedlock. In addition, the court stated that in the given situation, it was the biological mother who should be granted custody rights.

The second point raised by the court referred to the fundamental choice made by the domestic legislator and the Supreme Court, i.e. the prohibition of same-sex marriage. The public policy defence is the guarantor of this premise: Hence, an ontological change of a legal relationship within the country of destination, caused by the recognition of a foreign decision, affects state sovereignty. For a domestic standpoint, it is not acceptable to grant maternity rights to two women. It is also unbearable for the court that the birth of the child is a product of a same-sex marital relationship, which does not produce any legal effects in Greece.

In addition, the court held that the best interests of the child may not guarantee the preservation of a parental relationship with the biological mother, the latter being a situation not protected under Greek law. The bond worthy of protection emanates from constitutional provisions (equality / personality rights), the Fundamental Rights Charter, EU and ECHR standards. Consequently, the court ruled that the recognition and enforcement of the UK order would distort the legal pace of the country, because it is contrary to core domestic values and perceptions.

Assessment

The judgment follows a hard line under the strong influence of the harsh position taken by the Greek Supreme Court against same-sex couples. The factual situation is obviously not shaking the court’s foundation; even the best interests of the child did not motivate the court to soften its position. Hence, the child will have two mothers in the UK, and no mother in Greece.

What is also striking is the omission of the court to approach the matter from its European point of view. Out of the abundant material of legal scholarship, European and domestic case law concerning the matter, I will focus on the Coman case, which decided as follows:

In a situation in which a Union citizen has made use of his freedom of movement by moving to and taking up genuine residence, in accordance with the conditions laid down in Article 7(1) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, in a Member State other than that of which he is a national, and, whilst there, has created or strengthened a family life with a third-country national of the same sex to whom he is joined by a marriage lawfully concluded in the host Member State, Article 21(1) TFEU must be interpreted as precluding the competent authorities of the Member State of which the Union citizen is a national from refusing to grant that third-country national a right of residence in the territory of that Member State on the ground that the law of that Member State does not recognise marriage between persons of the same sex.

The case, of course, was not concerned with recognition of foreign judgments, but the rationale seems to make it relevant in this respect as well.

There are two more instances available for the applicant to alter the landscape. A first sign of progress has been already reported. It will be interesting to follow the developments and to report in due time.

Mateusz Grochowski (European University Institute) and Katarzyna Południak-Gierz (Jagiellonian University) have posted EU Private International Law in Internet-Related Disputes: The Polish Case Law Approach on SSRN.

The abstract reads:

The paper examines the way Polish courts apply EU private international law (EU PIL) rules in the disputes concerning online context. The analysis seeks, in particular, to better understand the patterns recurring in the judicial reasoning and to map the typical circumstances of internet-related disputes pled before Polish courts. The paper attempts to cluster the existing case law and to trace the use made of EU PIL and CJEU decisions by Polish judges. It also aims to identify how the courts perceive specificity of internet-related disputes from the perspective of conflict of laws and how they understand specific goals of EU PIL (especially consumer protection). The text delves also into the cases where – despite encountering transnational elements – courts did not address conflict of laws issues. It attempts to indicate the most common instances of such omission and hence, to elucidate further the possible barriers to full application of EU PIL.

The Universidade Portucalense, based in Porto, and its Research Center, in collaboration with the Universities of Vigo, Malaga, Salamanca and Granada as well as with the Federal University of Rio de Janeiro, organise an International Congress on Civil Procedural Law titled The Challenges of Sustainable Global and Digital Development, to be held on 20 and 21 May 2021, in virtual format.

The concept is as follows:

The pandemic caused by COVID-19 exposed the world to the positive and negative aspects of globalization; it also made evident the need for States to prepare for the challenges of global development; and, well, it showed us that the application and use of new technologies are fundamental. All these phenomena, of a transversal nature, are the motto of this Congress and motivate the study of procedural matters in the global and digital era, with a view to a result process.

In this context and also in the light of the United Nations 2030 Agenda Sustainable Development Goals, in particular those for promoting the rule of law at national and international level and ensuring equal access to justice for all, it is current and it is of practical and academic interest in critical analysis and the presentation of innovative proposals for procedural solutions that are part of this orientation. Above all, pay attention to the importance of consumer relations in sustainable development and in disputes with consumers.

This Congress aims to bring together researchers and professionals who, through their scientific studies and practical experiences, can contribute to the analysis of the impact of global and digital sustainable development in matters of procedural law, especially in civil proceedings, without excluding the application of the process to various branches of law.

Those interested in presenting a paper at the conference are invited to submit their abstracts on any of the following ‘thematic lines’: Transnational and European Civil Procedure. Global development process and challenges; Civil Procedure in the Digital Age – Challenges of technological development; Sustainable Consumption and Process.

The deadline for submissions is 28 February 2021.

See here for more information.

February starts with a hearing on 4 February in a PPU case. C-603/20 PPU MCP is a preliminary reference from the High Court of Justice, Family Division (United Kingdom), filed on November 2020 (that much for Brexit…), on the interpretation of Council Regulation (EC) No 2201/2003. The facts concern two Indian citizens habitually resident in the United Kingdom who share the parental responsibility for P, a British citizen aged three, born in the UK. P has been living in India since October 2018, when the mother took him there fleeing from (alleged) domestic violence. There has been no contact between the father and P since 2018.

The mother did not seise the English courts before removing P to India, nor did she obtain the consent of the father. On 26 November 2019, she seised the Family Court at Chelmsford for ‘permission to change jurisdiction of the child’. On 26 August 2020, the father filed an application in the High Court requesting in essence the return of the child to the UK. On 6 November 2020, the High Court (Family Division) addressed the issue of jurisdiction and determined that the English courts could not base jurisdiction neither on Article 8 on Article 12(3) of the Brussels IIa Regulation. Having doubts as to whether Article 10 of the Regulation applies where a child is wrongfully removed to or retained in a third country, it referred the following question for a preliminary ruling:

Does Article 10 of Brussels 2 retain jurisdiction, without limit of time, in a member state if a child habitually resident in that member state was wrongfully removed to (or retained in) a non-member state where she, following such removal (or retention), in due course became habitually resident?

The case is allocated to a chamber of five judges, with E. Regan as reporting judge. A. Rantos is the advocate general in charge.

The Opinion of AG Bobek in case C-800/19, reported in this blog some days ago, will be delivered on 23 February.

Finally, the judgment in C-804/19 Markt24 will be published on 24 February. The blog had informed about the questions referred here. The Opinion by AG Oe, of October 29, 2020, is not available in English. My tentative translation would be:

1. A claim for payment of the remuneration agreed in an employment contract, filed by a worker domiciled in a Member State against an employer domiciled in another Member State, falls within the scope of Regulation (EU) No. 1215/2012 (…) and, more specifically, section 5 of its chapter II, even when the worker has not, in practice, performed any work in compliance with the contract in question.
2. Regulation No. 1215/2012 precludes the application of the rules on jurisdiction established by the national law of the court seised, enabling an employee to bring an action in the place where his domicile or habitual residence is located during the employment relationship, or before the court in the place where the remuneration is to be paid.
3. When a employee and an employer have entered into an employment contract and, for whatever reason, no performance has been made in practice in compliance with that contract, ‘the place where or from where the employee habitually carries out his work’, within the meaning of Article 21, paragraph 1, letter b), subparagraph i), of Regulation No. 1215/2012, will coincide, in principle, with the workplace agreed in the aforementioned contract.

Although not directly related to PIL, I would like to draw the readers’ attention also to case C-490/20 Stolichna obshtina, Rayon “Pancharevo”. Hearing is taking place on 9 February. The questions referred by Administrativen sad Sofia-grad (Bulgaria) are:

Must Article 20 TFEU and Article 21 TFEU and Articles 7, 24 and 45 of the Charter of Fundamental Rights of the European Union be interpreted as meaning that the Bulgarian administrative authorities to which an application for a document certifying the birth of a child of Bulgarian nationality in another Member State of the EU was submitted, which had been certified by way of a Spanish birth certificate in which two persons of the female sex are registered as mothers without specifying whether one of them, and if so, which of them, is the child’s biological mother, are not permitted to refuse to issue a Bulgarian birth certificate on the grounds that the applicant refuses to state which of them is the child’s biological mother?

Must Article 4(2) TEU and Article 9 of the Charter of Fundamental Rights of the European Union be interpreted as meaning that respect for the national identity and constitutional identity of the Member States of the European Union means that those Member States have a broad discretion as regards the rules for establishing parentage? Specifically:

–    Must Art. 4(2) TEU be interpreted as allowing Member State to request information on the biological parentage of the child?

–    Must Article 4(2) TEU in conjunction with Article 7 and Article 24(2) of the Charter be interpreted as meaning that it is essential to strike a balance of interests between, on the one hand, the national identity and constitutional identity of a Member State and, on the other hand, the best interests of the child, having regard to the fact that, at the present time, there is neither a consensus as regards values nor, in legal terms, a consensus about the possibility of registering as parents on a birth certificate persons of the same sex without providing further details of whether one of them, and if so, which of them, is the child’s biological parent? If this question is answered in the affirmative, how could that balance of interests be achieved in concrete terms?

Is the answer to Question 1 affected by the legal consequences of Brexit in that one of the mothers listed on the birth certificate issued in another Member State is a UK national whereas the other mother is a national of an EU Member State, having regard in particular to the fact that the refusal to issue a Bulgarian birth certificate for the child constitutes an obstacle to the issue of an identity document for the child by an EU Member State and, as a result, may impede the unlimited exercise of her rights as an EU citizen?

If the first question is answered in the affirmative: does EU law, in particular the principle of effectiveness, oblige the competent national authorities to derogate from the model birth certificate which forms part of the applicable national law?

This will be (not surprisingly) a Grand Chamber decision.

The Private International Law Interest Group of the Italian Society of International Law and EU Law has organised a series of webinar, most of which will be conducted in English, under the title Private International Law in Europe: Current Developments in Jurisprudence.

The programme is as follows:

29 January 2021, 4 to 6 PM (CET): Limiting European Integration through Constitutional Law? Recent Decisions of the German Bundesvarfassungsgericht and their Impact on Private International Law – Speaker: Christian Kohler (Univ. Saarbrücken); Discussant: Giulia Rossolillo (Univ. Pavia).

19 February 2021, 4 to 6 PM (CET): State Immunity and Jurisdiction in Civil and Commercial Matters in Recent Court of Justice Rulings – Speaker: Alexander Layton (King’s College London); Discussant: Lorenzo Schiano di Pepe (Univ. Genova).

12 March 2021, 4 to 6 PM (CET): La trascrizione dell’atto di nascita nella recente giurisprudenza della Corte costituzionale italiana – Speaker: Sara Tonolo (Univ. Trieste); Discussant: Elena Rodriguez Pineau (Univ. Autonóma Madrid).

9 April 2021, 4 to 6 PM (CET): Law Governing Arbitration Agreements in a Recent Judgment of the UK Supreme Court – Speaker: Adrian Briggs (Univ. Oxford); Discussant: Pietro Franzina (Catholic Univ. of the Sacred Heart, Milan).

23 April 2021, 4 to 6 PM (CET) (TBC): Jurisdiction in Matters Relating to Cross-Border Torts according to the Recent Volkswagen Judgment of the Court of Justice – Speaker: Giesela Rühl (Humboldt Univ. Berlin); Discussant: Fabrizio Marongiu Buonaiuti (Univ. Macerata).

More information available here.

On 4 November 2020, the Austrian Supreme Court (OGH) ruled on the applicability of the consumer jurisdiction under Article 18 Brussels I bis Regulation to transactions related to Bitcoin.

Facts

The facts of this case were quite peculiar. An Austrian resident offered investment opportunities on a cross-border basis, which could only be paid for in Bitcoin. After being contacted by a German resident who expressed interest in the investment opportunities, the Austrian offeror sent three agents to the German customer.

The three agents brought with them a so-called Bitcoin ATM to carry out the transaction. Since the Bitcoin ATM did not function, they used the smartphone of the Austrian offeror, which they had also brought “just in case”, to transfer six Bitcoin belonging to the Austrian offeror to an investment account in the name of the German customer. It was agreed that the German customer would reimburse six Bitcoin within a month to the Austrian offeror.

When he failed to do so, he was sued by the Austrian offeror at the latter’s domicile in Austria.

In the proceedings, the German investor contested the jurisdiction of the Austrian courts.

Legal procedure

The Austrian courts at first and second instance dismissed the claim for lack of jurisdiction. They characterised the contract as a contract for the exchange of Bitcoin for the participation in the investment. This led them to apply Article 7(1)(a) Brussels I bis Regulation, with the consequence that (i) the place of performance for each obligation must be determined according to the governing national law and (ii) the governing national law must be identified through the use of the rules of private international law of the forum (see the now classic CJEU judgments in Tessili and De Bloos). The courts took the view that under both Austrian and German law, the place of performance of contracts of exchange is the place of domicile of the debtor of the respective obligation. Since the result was the same under both laws, it did not matter which of the two was applicable to the obligation to return the Bitcoin.

According to the same courts, it was of no relevance in this case if the contract were to be characterized not as a contract for exchange, but as a loan. In the latter case, the place of performance would still be the place of domicile of the debtor under Austrian and German law. This view, however, ignores that loan contracts are governed by the uniform jurisdiction rule of Article 7(1)(b) Brussels I bis Regulation (see CJEU C-249/16, Kareda). The place of performance for a Bitcoin loan would therefore be determined uniformly and in an autonomous way. The CJEU has also previously ruled that the place of performance for long-term contracts is uniformly located at the domicile of the lender (see again Kareda).

The decision by the Austrian Supreme Court

The Supreme Court of Austria cut short the legal debate. It ruled that the German investor acted for a purpose that could not be attributed to her professional or commercial activity, and that she was therefore a consumer in the sense of Article 17 Brussels Ibis Regulation. In the absence of evidence to the contrary, the Austrian offeror was to be assumed to have acted in a professional capacity and therefore as an entrepreneur. The Austrian offeror had also directed his activities to the consumer’s country of residence, as evidenced by the fact that he had marketed the investments in Germany and had recruited numerous investors there. Therefore, the consumer jurisdiction rules of Article 18 Brussels Ibis Regulation applied. As a result, the German investor could only be sued at her place of domicile in Germany (Article 18(2) Brussels Ibis Regulation). The Austrian courts therefore lacked jurisdiction. The action was dismissed.

Assessment

The case raises a number of interesting questions about Bitcoin transactions and jurisdiction. In particular, it illustrates the importance of the question of whether or not Bitcoin can be characterised as money for the purposes of EU Private International Law. If Bitcoin were money, the applicability of the rules on sales or service contracts for performances paid with Bitcoin could be envisaged. If, on the contrary, Bitcoin lacks the legal characteristics of money, any transaction in Bitcoin can only be qualified as a contract falling under Article 7(1)(a) Brussels I bis Regulation, with the result that jurisdiction will depend on the national rules governing the transaction and their characterisation of Bitcoin.

Unfortunately, the Austrian Supreme Court was able to avoid answering the questions on the legal nature of Bitcoin by resorting to the consumer jurisdiction rules. Given the considerable and growing economic importance of Bitcoin, it would be desirable to obtain legal certainty on these questions. But at the least, the ruling underlines the need for protecting Bitcoin investors, including at the level of jurisdiction. It can hardly be doubted that the result reached by the Austrian Supreme Court was appropriate. Investors should not have to sue at a place of domicile of the counterparty simply because an investment can only be paid for in cryptocurrency and not in legal tender.

The General Report on the second project led by the EAPIL Young EU Private International Law Research Network on Overriding Mandatory Rules in the Law of the EU Member States, under the supervision of Tamás Szabados (University of Budapest), has just been published in the ELTE Law Journal, along with the written versions of some of the contributions of the online conference on the topic, organised in November 2020.

The editorial by Tamás Szabados reads as follows:

The Young European Union Private International Law Research Network was established in 2019 in order to promote academic cooperation within the young generation of private international lawyers in the European Union. The activity of the Network centres around projects and the project theme for 2020 was the application of overriding mandatory norms.

Overriding mandatory norms are beloved subjects for private international lawyers. Most often, however, they are analysed in the context of EU private international law, and principally in contract law, without due regard to other situations where overriding mandatory provisions may equally claim application. Therefore, the primary goal of the project was to reveal whether and to what extent overring mandatory provisions are applied in the autonomous private international law of the Member States, i.e. outside the scope of application of the EU private international law regulations. Some findings have been made in the general report prepared in the framework of the project, based on the contributions of national reporters from seventeen Member States. The report, however, clearly demonstrates that the application or consideration of overriding mandatory rules is also admitted in the autonomous private international law of the Member States, and most notably they involve rules on personal status and family law, property law and company law.

This enquiry on the application of overriding mandatory provisions in autonomous private international law is supplemented by the discussion of topics related to the application of overriding mandatory rules in private international law and arbitration. Martina Melcher examines which substantive law rules of EU law may qualify as overriding mandatory provisions under the Rome I and Rome II Regulations. Katažyna Bogdzevič puts the application of overriding mandatory provisions in family law and regarding names under scrutiny. Markus Petsche addresses the application of mandatory rules in international commercial arbitration. Uglješa Grušić discusses the implications of some recent English conflict-of-laws cases concerning the application of overriding mandatory provisions, such as Lilly Icos LLC v 8PM Chemists Ltd and Les Laboratoires Servier v Apotex Inc. Finally, the approach of the new Hungarian Private International Law Act towards overriding mandatory norms is presented by Csenge Merkel and Tamás Szabados.

The recent COVID-19 pandemic sadly enlightens a further category of overriding mandatory norms: public health measures. Measures related to the prevention of the spread of the coronavirus, introduced by many states around the world, can be considered as overriding mandatory norms. They include closing borders, cities and workplaces, ordering the cancellation of large-scale events, such as theatre and cinema shows or concerts, a mandatory ban on flights or road transport and the expropriation of local face masks production and stocks.

It was planned to hold a conference at ELTE Eötvös Loránd University with the participation of the project participants in March 2020 to discuss the research outcomes. The coronavirus epidemic interfered with this plan. However, academic cooperation continued without interruption. The conference has been scheduled for a later date and moved to the online space. Moreover, the written versions of the planned conference lectures can now be published in the ELTE Law Journal. The disease could reimpose borders across Europe, but this cannot prevent scholarly exchange. This is proved in this issue of the ELTE Law Journal.

Contributors include Tamás Szabados, Melcher, Katažyna Bogdzevič, Markus Petsche, Uglješa Grušić, and Csenge Merkel.

The full issue is available here.

 

In July 2020, Luxembourg eventually adopted a statute on Civil Liability for Harm related to a Nuclear Accident. The statute imposes strict liability on operators of nuclear installations for any damage that a nuclear accident might cause.

There is, however, no nuclear installation in Luxembourg, and there will not be anytime soon. A constant source of disagreement and discussion between the Grand Duchy and France is the French nuclear power plant of Cattenom, which sits a few kilometers away from the border (France has the curious habit of sitting its nuclear plants on the border with neighbouring states). In other words, the new Luxembourg law is solely concerned with foreign nuclear facilities, and indeed essentially with the one in Cattenom (there are also nuclear plants in Belgium, but farther from the border with Luxembourg).

Cattenom: A view from Luxembourg (Picture: Paperjams News) 1960 Paris Convention

The first question arising from the adoption of this statute is why luxembourg did not join instead the 1960 Paris Convention on Nuclear Third Party Liability (Luxembourg signed the Convention, but did not ratify it). The Luxembourg lawmaker explained that it felt that the goal of the Convention was only to limit the liability of nuclear operators, and that it was therefore not in the interest of a country which did not have any nuclear facilities to join the Convention.

In particular, the Luxembourg lawmaker wanted to avoid the numerous limitation of the liability of nuclear operators laid down by the Convention (maximum amount for compensation, time limits, limitation to certain types of losses), but also the exclusive jurisdiction of the court of the place of the operation of the nuclear facility, which would obviously exclude the jurisdiction of Luxembourg courts.

The Luxembourg lawmaker noted that Austria had also adopted its own legislation, and that the goal was to follow this path. It also noted that major nuclear powers such as the U.S., Russia or Japan never joined the 1960 Convention anyway.

Jurisdiction

Article 5 of the statute provides that Luxembourg courts have jurisdiction to entertain

actions related to nuclear losses resulting from nuclear accidents insofar as the Luxembourg territory, Luxembourg residents or person on Luxembourg territory at the time of the torts are concerned.

Parliamentary procedure in Luxembourg includes a review of bills by an independent body, the Council of State (Conseil d’Etat). In its opinion, the Council of State remarked that the Brussels I bis Regulation applied, and therefore requested (but did not demand) that the provision clarifies that it would only apply subject to the Regulation. The opinion of the Council was not followed.

It is likely that the Regulation would grant jurisdiction to Luxembourg courts anyway on the ground of the place of the damage, but only if direct damage was suffered in Luxembourg. The first draft of the bill expressly provided that it would apply to “losses caused directly or indirectly” by nuclear accidents, but, after the Council of State pointed out that this would be hard to reconcile with the concept of causation under the Luxembourg law of torts (which would apply: see below), the referrence was eventually omitted.

This being said, it is a bit problematic that the Brussels Ibis Regulation could limit the power of a Member State to develop its nuclear policy. This was the goal of the exclusion of public matters from the scope of the Regulation, but in this context it seems quite narrow. The Rome II Regulation allows Member States to adopt overriding mandatory provisions, but who will apply them if the Member States may not grant jurisdiction to their courts to apply them?

Of course, the Regulation would not apply if the defendant was domiciled in a third state (say, Ukraine…).

Picture : Les Echos Applicable Law

Article 6 of the statute provides that “In case of nuclear accidents, actions for civil liability are governed by Luxembourg law“.

Unlike jurisdiction, the Rome II Regulation expressly excludes from its scope nuclear liability. Even if it had not, the statute could certainly have qualified as an overriding mandatory provision.

Enforcement of Luxembourg Judgments Abroad

The statute is silent on the enforcement of Luxembourg judgements abroad. Quite obvious, isn’t it? How could Luxembourg possibly think about regulating enforcement of judgments abroad?

Not as obvious in Luxembourg, it seems. The bill initially included an additional provision stating that “Any judgment from a Luxembourg court which is res judicata cannot be reviewed on the merits“. Fortunately, the Council of State explained in its opinion that it understood that the purpose of the provision was to bind foreign courts, and formally opposed its adoption on the ground that it would violate the sovereignty of foreign states and public international law.

Sovereign Immunity

The statute is silent on sovereign immunity. The initial bill was silent as well, but defined “operators” as including “international organisations” and “states or any other public authority”. The Council of State wondered what was the goal of the drafters of the bill, and whether they genuinely intended that foreign states could be sued in Luxembourg courts and their nuclear policy challenged, and if so on which basis. These express references were eventually omitted from the statute, which defines operators as any person who has a power of decision with respect to, or benefits economically from, a nuclear facility.

Irrespective of whether the final definition of operators excludes states and international organisations (the Nuclear Energy Agency?), it is easy to imagine that private operators could be closely linked to states, and thus appear as emanations of states and benefit from sovereign immunities.

Conclusion: Preparing Future Negotiations? Source: antiatomnetz-trier.de

France and Luxembourg established a Franco-Luxembourg Commission on Nuclear Safety in 1994 which has met 18 times since then. In the last meeting in February 2020, France made clear that Cattenom would not be closed before 2035. The Luxembourg government has long expressed its disagreement with the facility being further maintained in operation.

The Luxembourg press has reported that some Luxembourg politicians hope that the law will increase the costs of neighbouring states, including insurance premiums, to operate nuclear facilities near Luxembourg. Will this change the dynamics of future negotiations between France and Luxembourg?

In February 2019, Michael G. Faure (Maastricht University and Erasmus Law School Rotterdam) and Kévine Kindji (Maastricht University) presented to the European Parliament a Study on Cross-border nuclear safety, liability and cooperation in the European Union.

The abstract reads:

This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the PETI Committee, aims at gaining deeper insights into the legal aspects of cross border nuclear safety and cooperation in the European Union. It analyses the legal framework of nuclear safety as well as the liability and insurance schemes for nuclear accidents. The study examines the current liability and insurance framework and formulates possibilities for a further involvement of the EU in the liability regime. Specific attention is paid to citizen and NGO involvement in decision-making concerning nuclear power plants. The study analyses the case law in that respect and formulates various recommendations to improve the regime concerning cross-border nuclear safety, liability and corporation in the EU.

The study can be freely downloaded here.

An e-mail has been sent to those who registered for the second EAPIL Virtual Seminar, on Digital Teaching and Private International Law, scheduled to take place on 27 January 2021 from 5 to 7 p.m. (MET), with the details to join the seminar, via Zoom.

If you have registered, and don’t see our e-mail in your inbox, please check the spam folder.

For further queries, please refer to Susanne Gössl at sgoessl@law.uni-kiel.de.

For the first time since the entry into force of the 1968 Brussels Convention and the EU Regulations in the field of judicial cooperation in civil matters, the Greek Supreme Court was called recently to examine an application for recognition and enforcement of an English order awarding alimony to a wife, while at the same time regulating property issues between the spouses.

On 12 June 2020, the Supreme Court [Nr. 662/2020] ordered the reversal of the appellate judgment [Athens Court of Appeal 4789/2018, unreported], which in turn had rejected the husband’s appeal against the first instance decision granting the recognition and declaration of enforceability of the English order [Athens court of 1st Instance 420/2015, unreported].

The Ruling of the Supreme Court

The case at hand concerned an order of the Family Division of the High Court, which was issued upon the request of the wife in the course of divorce proceedings. In particular, the wife requested that she retain the ownership of the family house in London, and that she be granted the amount of ₤ 600.000 as a capitalised maintenance payment, plus 100% of the interests from a Merchant Investors assurance program, whereas the husband would retain the ownership of eight parcels of land in Greece.

The English court granted the request. The judge ruled as follows:

I consider that the wife’s need could be met by an even distribution of the assets listed in the KT list [i.e. the list prepared by the wife’s lawyer] and I therefore intend to issue a financial provision order in the form of a lump sum of 600,000 ₤ payable to the wife…  I am satisfied that the order I issue achieves the purpose of a fair distribution of assets between the parties.

The order to pay the lump sum raised an interesting issue of characterisation with far reaching consequences. It could either be regarded as a maintenance payment, or as distribution of the assets of the spouses, and thus related to their matrimonial property regime.

One of the consequences of the distinction is that separate legal regimes govern the enforcement of maintenance and matrimonial property judgments. Two different regulations apply: either the Maintenance Regulation, which provides for immediate enforcement (abolition of exequatur: Articles 17 et seq.), or the Matrimonial Property Regulation which has retained the ‘traditional’ requirement of a declaration of enforceability (Articles 36 et seq.). In this case, the application was filed prior to the entry into force of both regulations, but separate regimes already applied to each category. The Brussels I Regulation applied to maintenance, resulting in the simplified procedure of articles 38 et seq. Matrimonial property fell outside of the EU framework, and was thus governed by the common law of foreign judgments of the Member States (in Greece, Articles 323 & 905 of the Code of Civil Procedure), i.e. a more conservative regime, which, in addition to the international jurisdiction barrier (Article 323 No. 2), has a different starting point, as it is not bound by the famous principle of mutual trust and free movement of judicial decisions between EU Member States.

The Greek Supreme Court made the following characterisation:

The award of this lump sum does not have a supportive purpose; it does not seek to meet the basic needs of the applicant, so as to be considered a maintenance claim, but has a rather redistributive-compensatory purpose, leading to the distribution of assets between the spouses, as expressly stated in the reasoning of the foreign order.

In view of the above, the Supreme Court ruled that the dispute fell outside the scope of the Brussels I Regulation, pursuant to the exception under article 1 (2) (a) [rights in property arising out of a matrimonial relationship]. It allowed the appeal, and referred the case for retrial to the appellate court.

The Supreme court cited in support of its decision three judgments of the European Court of Justice, C-143/78, De Cavel, C-25/81, C.H.W. and C- 220/95, van den Boogaard. In van den Boogaard, the ECJ ruled:

a decision rendered in divorce proceedings ordering payment of a lump sum and transfer of ownership in certain property by one party to his or her former spouse must be regarded as relating to maintenance and therefore as falling within the scope of the Brussels Convention if its purpose is to ensure the former spouse’s maintenance.

Courts and scholars in other Member States have already  pointed out that the van den Boogaard ruling did not resolve the issue entirely, granting a margin of discretion to national judges.

Comparative Overview

A search of similar situations and their treatment by national courts of other Member States leads us to a ruling of the German Supreme Court from 2009 [BGH 12.08.2009, NJW-RR 2010, pp. 1 f = IPRax 2011, pp. 187 f]. Confronted with similar facts, the Bundesgerichtshof opted for a solution akin to the Judgment of Solomon: departing from the characterization of the case, it accentuated the dual function of the provision [Doppelfunktionalität der Vorschrift], and granted the request for recognition and declaration of enforceability of the part demonstrating qualitative features of a maintenance claim. Respectively, for the remaining part of the order, it proceeded in the fashion chosen by the Greek Supreme Court.

On the other hand, English scholarship tends to include similar cases under the category of maintenance claims, drawing an additional argument from Annexes I-IV of Reg. 4/2009, while at the same time taking into account the case law of the CJEU, and the possibility of separation, as opted by the German Supreme Court.

In a recent decision, the Swiss Court of Cassation overturned a decision which ruled that the Lugano Convention did not apply to an English Financial Remedy Order, and referred the case to the Zurich Supreme Court for resolving the crucial issue of distinction between maintenance and matrimonial property disputes. A comment on the ruling is available here

The Impact of the Ruling

The withdrawal of the United Kingdom from the EU does not undermine the importance of the Greek Supreme Court ruling for the future. The intentions of the English legislator are not yet revealed. As  is already widely known, a primary indication does not exist, given that the field of judicial cooperation in civil and commercial matters has been left outside the Agreement. The expected accession of the UK to the Lugano Convention has been recorded ad calendas Graecas. However, a specific instrument will continue to govern the enforcement of maintenance judgments. The Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance will substitute EU law in the relations between the UK and Greece. A change of course by the Greek Supreme Court is highly unlikely, however, and financial provision orders will be subject to domestic rules of recognition and enforcement.

It should also be underscored that the issue is not unique to the United Kingdom. Similar systems are to be found in the legislation of other Member States [e.g. the Republic of Ireland, and partly France]. Therefore, fresh applications are not to be ruled out. Prospective applicants are however advised to prepare the file more diligently: English orders are issued on the basis of a judgment. It is therefore considered necessary to produce a translated true copy of the foreign judgment, so that the judge is able to understand the peculiarities of the foreign system, and to decide upon having seen the whole picture in advance.

Private International Law in Poland has been recently released by Wolters Kluwer. The monograph is written by Ewa Kamarad and Anna Wysocka-Bar (one of this blog’s editors), both affiliated with Jagiellonian University (Poland).

The e-version of the monograph forms part of the International Encyclopaedia of Laws, the volume on Private International Law edited by Bea Verschraegen, available online (for subscribers, for example via Peace Palace Library e-resources).

Private international law rules in Poland are unified at the EU level to a great extent. However, this unification leaves certain areas to domestic PIL or international agreements, including numerous bilateral ones in force in Poland (for example, law applicable to rights in rem or recognition and enforcement of judgements coming from outside the EU). Additionally, certain areas are unified in the EU within the enhanced cooperation mechanism which means that not all EU Member States apply them (for example, law applicable to divorce, jurisdiction, applicable law, as well as recognition and enforcement of EU judgements in matrimonial property matters). Poland is an example of a Member State, which is not participating in this cooperation and continues to apply its own rules. Due to the above the book might be of interest to international public, academics and practitioners, as it constitutes a general sketch of the whole system of PIL in Poland.

On 30 September 2020, the French Supreme Court for private and criminal matters (Cour de cassation) issued a remarkable decision in the field of French international arbitration (Cass. Civ. 1st Chamber, 30 September 2020, no. 18-19.241).

The Court held that the power of the arbitral tribunal to determine its own jurisdiction based on Articles 1448 and 1506 of the French Civil Procedural Code shall not infringe consumers’ rights conferred by EU law. Therefore, an arbitration clause that is at odds with the requirements resulting form Directive 1993/13 concerning unfair terms in consumer contracts should be set aside by the courts.

EU Background

For those who are familiar with EU consumer law, the added-value of the decision may seem limited. Indeed, more than ten years ago, the European Court of justice ruled that national courts shall invalidate an unfair arbitration clause included in a B2C contract, on the basis of directive 1993/13 (Mostaza Claro, C-168/05 and Asturcom Telecomunicaciones SL, C-40/08). But the cases dealt with actions to set aside the arbitral award (for the first one) or to enforce it (for the second one); this means at the “post-award” procedural stage. Here, the French case concerns the prior phase of arbitration.

Facts and Issue

A French national sought the advice of a Spanish law firm for the succession of her father, opened in Spain. Despite the international reputation of the law firm’s mother company, the French client was not satisfied with the legal services provided for and sued the Spanish law firm for damages before French court. The law firm opposed an arbitration clause included within the legal services contracts concluded with her French client and, in the alternative, challenged the international competence of the court.

In response, the Court of Appeal set aside the arbitration clause on the basis of the prohibition of unfair terms in B2C contracts pursuant to Directive 93/13 (Article 3(1)) because the clause had not been individually negotiated. Then, the Court of Appeal recognised its jurisdiction pursuant to the Brussels I bis Regulation (Article 17(1)(c) and Article 18(1)). The law firm appealed to the French Supreme Court.

The main issue at stake, under French international arbitration law, was the implementation of the cornerstone principle of “jurisdiction to decide jurisdiction” (principe compétence-compétence) laid down in Article 1448 of the French Civil Procedure Code and applicable to international arbitration pursuant to Article 1506 of the same Code.

This principle has a twofold dimension. On the first hand, in case of dispute on the validity of an arbitration agreement, the arbitral tribunal has exclusive jurisdiction to assess its own jurisdiction. On the other hand, when such a dispute is brought before a court, such court shall decline jurisdiction. However, article 1448 provides for a narrow exception “if an arbitral tribunal has not yet been seized of the dispute and if the arbitration agreement is manifestly void or manifestly not applicable”.

Precedents and New Solution

Was the arbitration clause here “manifestly void”?

No, the law firm argued, as a comprehensive assessment by the Court of Appeal was needed to conclude to the unfair nature of the term. And this was indeed the position of the French Supreme Court so far, despite criticisms by the legal doctrine. In two famous cases, Jaguar (Cass. Civ., 1st Chamber, 21 May 1997) and Rado (Cass. Civ., 1st Chamber, 30 March 2004), related to B2C contracts, the French Supreme Court declined jurisdiction “in the absence of clear invalidity” of the arbitration clause and stated that the arbitral tribunal is entitled to apply any mandatory provisions commanded by the international public policy to assess its jurisdiction.

In the present case, the French Supreme Court overturns its jurisprudence and approves the decision of the Court of Appeal. However, the decision is taken outside the exception laid down in article 1448 (op. cit.). The solution is justified by the implementation of the “test of effectiveness” in the framework of the European principle of procedural autonomy. According to settled case-law of the Court of Justice:

“[…] in the absence of relevant Community rules, the detailed procedural rules designed to ensure the protection of the rights which individuals acquire under Community law are a matter for the domestic legal order of each Member State, under the principle of the procedural autonomy of the Member States, provided that they are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the Community legal order (principle of effectiveness)” (par. 24, Mostaza Claro, C-168/05).

As a consequence, the exclusive jurisdiction of arbitrators to assess the validity of an arbitration clause makes it more difficult for a claimant, in his/her capacity as European consumer, to benefit from his/her European rights, in particular in the present case the assessment of an arbitration clause under Directive 93/13. This is obviously a change of perspective, strongly documented by European case-law references in the ruling.

Assessment

In the present case, the French Supreme Court extends the principle of effectiveness into the prior stage of international arbitration proceedings. The control of an alleged violation of a European mandatory requirement by an arbitration clause shall therefore be undertaken ex ante to ensure the effectiveness of EU law.

It emerges from this decision that the autonomous nature of arbitration vis-à-vis State justice and national legal orders is incompatible with the autonomy of the European legal order. As arbitrators do not belong to any jurisdiction, shall we therefore assume, more globally, that they can never be trusted to implement European mandatory provisions, such as European consumer rights?

This decision is a key development from the French Supreme Court within a local legal framework that has traditionally shown a liberal as well as a favourable approach to international arbitration.

As announced on this blog a few days ago, the second EAPIL Virtual Seminar, devoted to Digital Teaching and Private International Law, will take place on 27 January 2021 from 5 to 7 p.m. (MET).

Around ninety persons have already registered and will soon receive the details to attend the seminar.

All others interested in joining the discussion are encouraged to fill in this form: registrations are open until 25 January at noon.

The Comité Français de Droit International Privé has launhed the 6th edition of the Committee’s Thesis Award.

For detailed information, see the official announcement.

Eligible PhD dissertations are those written in French and defended between 1 January 2020 and 15 January 2021.

The deadline for submissions is 16 February 2021.

 

Pursuant to Protocol No 22 to the Treaty on European Union and the Treaty on the Functioning of the European Union, Denmark is not bound by the measures enacted by the EU in the area of freedom, security and justice, including as regards judicial cooperation in civil matters.

However, an agreement was concluded in 2005 between the European Community, as it was then, and Denmark to ensure the application in Denmark, and in respect of Denmark, of the EU rules concerning the service of judicial and extrajudicial documents in civil and commercial matters, i.e., at that time, the rules laid down in Regulation 1348/2000.

According to Article 3(2) of the 2005 agreement, whenever amendments to the latter Regulation are adopted, Denmark shall notify to the Commission of its decision whether or not to implement the content of such amendments.

This occurred when the 2000 Service Regulation was replaced by Regulation 1393/2007, and has now occurred for Regulation 2020/1784 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters, which was adopted on 25 November 2020 (as announced on this blog by this post by Apostolos Anthimos) and is set to apply in full from 1 July 2022.

In accordance with Article 3(2) of the 2005 agreement, Denmark has by letter of 22 December 2020 notified the Commission of its decision to implement the contents of Regulation 2020/1784. In accordance with Article 3(6) of the agreement, the Danish notification creates mutual obligations between Denmark and the Community. Thus, Regulation (EU) 2020/1784 constitutes an amendment to the agreement and is considered annexed thereto.

In accordance with Article 3(4) of the agreement, the necessary administrative measures enter into force on the date of entry into force of Regulation 2020/1784.

The European Commission is carrying out a public consultation on the modernisation of judicial cooperation via digital technology (Modernising judicial cooperation between EU countries – use of digital technology). The consultation is opened until 5 February 2021 and will be taken into account for a proposal for an initiative by the European Commission. This will be followed by a public consultation later this year.

The initiative for which the European Commission is gathering input aims to make judicial cooperation in cross-border cases throughout the EU more efficient and more resilient to crises, such as the COVID-19 pandemic that we are currently going through.

The project for the regulation seeks to make it mandatory for the authorities involved in judicial cooperation each Member State to use digital technology for communicating documents and information, instead of paper, as it is usually the case at the moment. In taking this initiative, the European Commission looks to improve access to justice by ensuring that individuals, businesses and legal practitioners involved in cross-border civil, commercial or criminal cases can communicate digitally with the competent authorities in the other Member States.

Additional information on European Commission’s vision and objectives for the coming period can be found in the communication published on 2 December 2020 – Communication on digitalisation of justice in the EU – A toolbox of opportunities.

This post is addressed, in particular, to my fellow colleagues of the ILA Committee Committee on the Protection of Privacy in Private International and Procedural Law; may we meet this year, in person.

Violeta Friedman (1930–2000) was a Jewish Holocaust survivor born in Marghita, Transylvania, Romania. She became well-known in Spain thanks to a ruling of the Constitutional Court (STC 214/1991 – aka the ‘Violeta Friedman case’) on the fundamental right to honor.

Violeta Friedman was deported in 1944 to the Auschwitz-Birkenau concentration camp, at the age of fourteen. She lost most of her family to the Nazis. After the  War she lived in Canada and in Venezuela; in 1965 she moved to Spain with her daughter.

In 1985, feeling outraged by statements made by the former head of the Waffen SS L. Degrelle to a Spanish journal, where he denied the Holocaust and voiced anti-Semitic and racist opinions, she started civil proceedings in Spain against him, the journalist signing the report, and the editor of the journal. After several unfavorable decisions of the ordinary courts, the Constitutional Court of Spain confirmed her legal standing to sue in 1991, based on ‘her dual condition, as a citizen of a people such as the Jews, who suffered an authentic genocide by National Socialism, and as a descendant of her parents, maternal grandparents and great-grandmother (all of whom were murdered in the aforementioned concentration camp)’. Most relevant, just before this assertion the Court had said that

It is considered as original legal standing that of a member of a specific ethnic or social group, when the offense is directed against that entire group in such a way that, by belittling said group, it tends to provoke feelings from the rest of the social community hostile or, at least, contrary to the dignity, personal esteem or respect to which all citizens are entitled.

The Constitutional Court also found that Degrelle’s assertions amounted to a violation of the right to honor of Violeta Friedman and the victims of Nazi camps. This ruling served as a precedent for the reform of the Spanish Criminal Code.

Violeta Friedman’s claim was never contested on the basis of lack of international jurisdiction of the Spanish courts. L. Degrelle was present in Spain when he was interviewed, and there appears to have been no discussion about his domicile there at the time the court was seized; the same applies to the co-defendants. Degrelle’s anti-Semitic assertions were printed in a Spanish magazine, and distributed mainly in Spain. It could be argued that, even if the case involved a foreign element to some extent, it affected the claimant’s side and did not trigger doubts related to the international jurisdiction under the applicable rules.

40 years later, one can safely take for granted that the declarations of Degrelle would be on the net, largely accessible. Violeta Friedman could have read them at home in Madrid; other survivors of a concentration camp, at home as well, in Bucharest or in Paris – just to name a couple of places. For the sake of the argument, let’s assume that the publisher has its seat in Germany and the online newspaper is published in German on a website ending ‘.de’. Would the Spanish (Romanian, French, etc) courts still have jurisdiction for a claim like hers?

In fact, there is no need to assume anything. A preliminary reference currently pending before the Court of Justice, which has so far, to the best of my knowledge, remain unnoticed, will provide for an answer in due course. Case C-800/19 relates to a dispute between SM, a Polish national living in Warsaw, and Mittelbayerischer Verlag KG, a German company which publishes a daily journal in German on the http://www.mittelbayerische.de website. The newspaper is regional in nature but may be accessed from other countries, including Poland.

SM was a prisoner in Auschwitz during the Second World War; today, he is involved in activities aimed at preserving, in the public consciousness, the memory of the victims of crimes committed by Nazi Germany against Poles during the Second World War. On 15 April 2017, an article entitled ‘Ein Kämpfer und sein zweites Leben’ was published on http://www.mittelbayerische.de. At some point, the sentence ‘was murdered in the Polish extermination camp of Treblinka’ (italics added) appeared in the text. The phrase remained on the website for only a few hours on 15 April 2017. After an e-mail by the Polish consulate in Munich, the phrase in question was replaced with ‘was murdered by the Nazis in the German Nazi extermination camp of Treblinka in occupied Poland’, thus reflecting the historical fact that the camp in Treblinka was a German Nazi extermination camp established during the Second World War within the territory of occupied Poland.

SM lodged an application against Mittelbayerischer Verlag KG with the Regional Court of Warsaw on 27 November 2017, requesting that his personality rights, in particular national identity and national dignity, be protected by:

–   prohibiting the defendant from disseminating in any way the terms ‘Polish extermination camp’ or ‘Polish concentration camp’ in German or any other language in relation to German concentration camps located within the territory of occupied Poland during the Second World War;

–   ordering the defendant to publish on its website a statement with the content specified in the application, apologising to the applicant for the infringement of his personality rights caused by the online publication of 15 April 2017, which suggested that the extermination camp in Treblinka was built and operated by Poles;

–  ordering the defendant to pay the amount of PLN 50 000 to the Polski Związek Byłych Więźniów Politycznych Hitlerowskich Więzień i Obozów Koncentracyjnych (Polish Association of Former Political Prisoners of Nazi Prisons and Concentration Camps).

To justify the jurisdiction of the Polish court, the applicant relied on the judgment of the Court of Justice in eDate Advertising and Martinez (Joined Cases C-509/09 and C-161/10).

The defendant filed a motion for dismissal of the action on the ground that Polish courts lack jurisdiction. He stresses that, unlike the situation in Joined Cases C-509/09 and C-161/10, the online article which became the basis for SM’s action did not directly concern the applicant. The defendant also emphasises its regional profile and readership range, as its reporting covers the Upper Palatinate, Bavaria and focuses primarily on regional news; the heading ‘Germany and the World’ is only in fourth place on the page menu. He also points out that the website exists solely in a German-language version. All in all, the defendant relies on the requirement that jurisdiction under Article 7(2) of the Brussels Ibis Regulation must be predictable and claims that, operating on a local scale and addressing its message to recipients who do not include the applicant, he could not have objectively foreseen the jurisdiction of Polish courts.

The case reached the Court of Appeal of Warsaw, First Civil Division, which has addressed the following questions to the Court of Justice:

1. Should Article 7(2) of Regulation (EU) No 1215/2012 […] be interpreted as meaning that jurisdiction based on the centre-of-interests connecting factor is applicable to an action brought by a natural person for the protection of his personality rights in a case where the online publication cited as infringing those rights does not contain information relating directly or indirectly to that particular natural person, but contains, rather, information or statements suggesting reprehensible actions by the community to which the applicant belongs (in the circumstances of the case at hand: his nation), which the applicant regards as amounting to an infringement of his personality rights?
2. In a case concerning the protection of material and non-material personality rights against online infringement, is it necessary, when assessing the grounds of jurisdiction set out in Article 7(2) of Regulation No 1215/2012 […], that is to say, when assessing whether a national court is the court for the place where the harmful event occurred or may occur, to take account of circumstances such as:

– the public to whom the website on which the infringement occurred is principally addressed;

– the language of the website and in which the publication in question is written;

– the period during which the online information in question remained accessible to the public;

– the individual circumstances of the applicant, such as the applicant’s wartime experiences and his current social activism, which are invoked in the present case as justification for the applicant’s special right to oppose, by way of judicial proceedings, the dissemination of allegations made against the community to which the applicant belongs?

At point 16 of the request, the referring court states

At the present stage of the main proceedings, no consideration may be given to the substantive law applicable to the assessment of the claims submitted and the Sąd Apelacyjny (Court of Appeal) is even less able to consider whether those claims have merit under the substantive law and whether the applicant is entitled to make them.

I am not sure one can split the decision on legal standing and the one on international jurisdiction when the latter requires identifying the center of interest of the victim. In any event, and not only for this: a preliminary reference which deserves to be followed.

Marilyn Freeman (University of Westminster, London) has written an in-depth analysis on the Child Perspective in the Context of the 1980 Hague Convention at the request of the Committee on Legal Affairs (JURI Committee) of the European Parliament.

The abstract reads as follows:

This in-depth analysis, commissioned by the Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the Committee on Legal Affairs in the context of the Workshop to mark the 40th Anniversary of the Hague Convention on the Civil Aspects of International Child Abduction, examines the way in which subject children feature within Convention proceedings. It considers the aims of the Convention, and the lack of supranational control of its application. It draws on empirical research relating to the effects and consequences of child abduction to discuss the opportunities for children and young people to participate within Convention proceedings, and highlights the international obligations for such participation within the United Nations Convention on the Rights of the Child, The Charter of Fundamental Rights of the European Union, and other regional instruments. Different jurisdictional approaches are explained, and the role of culture in this context is probed. The impact of COVID-19 on abducted children is also explored.

Here’s an overview of the analysis.

The 1980 Hague Convention considers as paramount children’s interest in matters relating to their custody as well as their protection from the harmful effects of their wrongful removal or retention, and the procedures to secure their prompt return to the State of habitual residence. According to Article 12(1) of the Convention an abducted child under the age of 16 should be returned in less than one year since his/her wrongful removal or retention unless one of the limited exceptions to return under the Convention is established (see Articles 12(2), 13 and 20), and there are opportunities for children’s involvement in the far-reaching decisions which are taken in those proceedings.

The way in which these relevant provisions are interpreted and applied within the 101 Contracting States determine both the extent to which children’s rights are recognised and upheld under the Convention, as well as the success of the Convention in its aim of protecting children from the harmful effects of child abduction.

The present in-depth analysis relies on a small-scale qualitative study based on 34 interviews carried out by Professor Freeman (more about this can be read here). The empirical research sought to reveal more about ‘the lived experiences of those who had been through an abduction many years earlier’ and ascertain ‘whether, and how, the participants felt that the abduction had affected their lives, and if those effects had continued long-term’.

The results indicate that there is often still a lack of awareness by children and young people, and their families, about the opportunities to participate in the proceedings, as well as on how to ensure that their rights are recognised and protected. Furthermore, to observe the right of the children to benefit from meaningful opportunities to participate in the proceedings and prevent harm, it appears that a closer integration of children’s rights’ principles in the application of the Convention is desirable.

The impact of COVID-19 on children subject to abduction proceedings is also discussed. The international nature of these cases and the difficulties and limitations created by the pandemic meant that children had to spend an undesirable period after the decision waiting for return to be carried out. Additionally, a procedure of return can involve periods of quarantine, a situation that can exacerbate the child’s distress due to the separation from the abducting parent who may be a primary or joint primary carer and who may choose not to return with the child or be unable to do so. According to the analysis, the emotional effect of a return ordered in these circumstances may be very difficult for the child to manage. The remote conduct of return hearings can also create challenges for subject children and reflect on their decision about participating in a hearing that concerns them. According to Professor Freeman ‘children should have opportunities to express their views within abduction proceedings whether or not an objection to return has been raised, and regardless of whether or not the jurisdiction involved is governed by a regulatory regime, like Brussels IIa and the upcoming Recast, which specifically address the rights of children to be heard within a specific jurisdictional area’. Thus, to protect children from the harmful effects of child abduction, it is paramount to give children who wish to participate in the proceedings about their abduction the opportunity to be heard when the decision has the potential to impact significantly on their lives.

The analysis concludes that further discussions are necessary in this area as well as a ‘closer incorporation of children’s rights’ principles in the 1980 Convention framework’.

2021 will be a milestone for the International Commission on Civil Status (ICCS). Driven by a powerful internationalisation movement, the new internal regulation of ICCS entered into force on 1 January 2021.

I have interviewed Nicolas Nord, the Secretary General of ICCS, on the Commission’s work, functioning and challenges.

— Can you remind us what the ICCS is and the scope of its activities?

The ICCS is an international organisation created in 1949. The seat is in Strasbourg, in France. Its objectives are to facilitate international co-operation in civil-status matters and to further the exchange of information between civil registrars. A practical approach has always been privileged. The idea is to deal with concrete issues that arise in the daily activity of national authorities.

To achieve the general aims, the ICCS draws up normative instruments. 34 international conventions and 11 recommendations have been adopted till today. Comparative law studies are also carried out. The goal is always the same: harmonizing the provisions in force in the member States on matters relating to the status and capacity of persons, to the family and to nationality and improving the operation of civil-status departments in those States.

It materializes in different ways and has given rise to the creation of original methods. This is the case with multilingual civil status forms which allow any State authority to understand an act issued in another State Party, without having to face the problem of translation. It is an essential tool that also makes life easier for individuals. This is why Convention n° 16 has been so successful. It is in force in 24 States. Uniform acts such as certificates of matrimonial capacity (convention n° 20) or of life (convention n° 27) have also been created. There are the same in all the States parties. Another aspect is cooperation between authorities. Different conventions allow a direct international communication between the civil registrars. This allows for simplified updating of civil status documents in the various States Parties (convention n°3, 23 and 26).

The ICCS also compiles and keeps up to date a documentation on legislation and case-law setting out the law of the member States on the matters falling within its field of competence and provides, on the basis of that documentation, information to the national authorities.

— The ICCS recently adopted a new internal regulation. Can you tell us more about it?

The will of the member States is to modernize the organisation, to adapt it to new challenges and to make it more attractive. Some essential reforms have thus been introduced. Three examples may be given. English becomes the second official language of the organisation, alongside French. Membership is no longer reserved for states but also open, from now on, to any international organisation, any regional economic integration organisation and any other international entity. Membership procedure has been simplified. An approval by the General Assembly is the only requirement.

— What’s in it for the European Private International Law community?

The birthplace of ICCS is in Europe. Most of our members are European. Our instruments are in force in many European countries, although there is of course no geographical limitation. Our desire by introducing a second official language is to allow non-French speaking countries, European or not, to join us in order to work together. We also want to allow the EU to join us.

We have been working with the European Commission for many years now. The cooperation agreement between our two institutions was concluded in 1983. The adoption of the “public documents” regulation, now in force, clearly reflects this cooperation since the methods invented by the ICCS, such as multilingual forms or the coding of civil status forms, have been used in it. However, the instruments of the EU and the ICCS now coexist in Europe. It is a source of complexity and is not always well understood by practitioners. That is why we would like to strengthen our links with the EU.

— Some scholars have recently expressed their worries about the future of the ICCS (here). What do you think?

We fully understand their concern. It is a reaction to the surprising withdrawal of France. There is a risk of disappearance of the organisation if all the States adopt the same attitude of course.This would be prejudicial for the States themselves and for the practitioners of civil status. The reform of the ICCS internal regulation is precisely a reaction to such concerns, in order to make the organisation more attractive and to ensure its sustainability. Our wish is to convince new member states, new international entities to join us and to allow a return of our former members. 

— What are the ICCS’ work forecasts and challenges ahead?

 In September 2021, we are organising a conference on our flagship convention, the convention n° 16. Our wish is to establish a kind of diagnosis and to see what works well, gives satisfaction to the practitioners but also to detect the problems which appeared since 1976, date of its adoption. This is an exciting prospect. Having such feedback will be very enriching, both for the States Parties, the civil registrars and the organisation itself.

In addition to working on the substance of the matter, we want to make our organisation known, highlight its instruments which have demonstrated their effectiveness in practice and convince new States and international organisations to join us, by becoming members or by adopting our instruments.

As a conclusion, I would like to thank Nicolas for the very interesting light he has shed on the ICCS central mission for States and regional organisations such as the European Union to pursue and perhaps even step up their work on the key-issue of civil status for mobile citizens. Let us wish that the ICCS’ makeover will lead to a greater European and international cooperation in the field of civil status in the near future!

Please note that Nicolas is available to answer any questions that fellow blog readers may have on the ICCS.