Agrégateur de flux

on: ‘JUSTIFYING CONCURRENT CLAIMS IN PRIVATE INTERNATIONAL LAW‘.

Written by Sagi Peari and Marcus Teo, the article analyses whether claimants can choose between contract and tort claims arising on the same facts with different jurisdictional and/or choice-of-law consequences. While domestic legal systems generally recognise a concurrent liability,  commentators object that its extension to private international law would be unprincipled and would threaten the field’s values. This, however, contrasts with the position in common law and under EU Regulations, where concurrent claims are generally recognised with only narrow limits. This article justifies concurrent claims in private international law, arguing that the same premises supporting concurrent liability in domestic law exist in private international law and that no field-unique concerns foreclose it.

En application de l’article 7, § 1, b), du règlement Bruxelles I bis, en cas de divergence entre le lieu de livraison stipulé au contrat et le lieu matériel effectif de livraison, le premier doit prévaloir.

Sur la boutique Dalloz Droit et pratique de la procédure civile 2021/2022 Voir la boutique Dalloz

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Dans cet arrêt du 31 janvier 2023, la CJUE revient sur les hypothèses restrictives de refus d’exécution des mandats d’arrêt européen. La Cour semble hausser le ton face aux autorités des États membres qui s’écartent des limites que leur impose la confiance mutuelle en matière de contrôle du respect des droits fondamentaux par l’autorité judiciaire d’exécution.

Sur la boutique Dalloz Guide pénal - Guide des infractions 2023 Voir la boutique Dalloz

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Les sanctions prononcées contre la société de télévision C8 par le Conseil supérieur de l’audiovisuel en raison du contenu de séquences diffusées dans l’émission Touche pas à mon poste, pour l’une attentatoire à l’image des femmes, pour l’autre de nature à stigmatiser les personnes homosexuelles et à porter atteinte à leur vie privée, n’ont pas enfreint l’article 10 de la Convention européenne des droits de l’homme.

Sur la boutique Dalloz Code de la communication 2023, commenté Voir la boutique Dalloz

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The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on Thursday 23 February 2023 at 14:30 (Mexico City time – CST), 21:30 (CET time). The topic of the webinar is the Right to Child Support within the international framework – Mexico and the United States of America and will be presented by Claudia Sierra Martínez of the Mexican Ministry of Foreign Affairs (SRE) (in Spanish).

By way of context, please note that Mexico is not yet a party to the 2007 HCCH Child Support Convention but the United States is. On the other hand, Mexico is a party to the Inter-American Convention on Support Obligations and the United Nations Convention on the Recovery Abroad of Maintenance but the United States is not. Faced with this conundrum and given the great number of Child Support cases between these two countries, other solutions have been made available (think for example of US domestic law / bilateral practices).

The details of the webinar are:

Link: https://us02web.zoom.us/j/87996362538?pwd=QjNuZThqNUpTVHQ3cFZaZ1BXZ0YzQT09

Meeting ID: 879 9636 2538

Password: AMEDIP

Participation is free of charge.

This event will also be streamed live: https://www.facebook.com/AmedipMX

Family disputes constitute the majority of cases of cross-border nature. The free movement of people within the European judicial space and the integration of third-country nationals has created a considerable number of multinational family structures, that give rise to a significant number of legal disputes, leading to complex conflict of law issues. It is no coincidence that in the area of family disputes one could identify the most extended number of EU legislative initiatives, from Regulation 1347/2000 (Brussels II Regulation) on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses, followed by the “successors”, i.e., Regulation No 2201/2003 (Brussels IIa Regulation) and Regulation 2019/1111 (Brussels IIb Regulation), Regulation 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, Regulation 1259/2010 (Rome III Regulation) on the applicable law to divorce and legal separation, as well as and Regulations 2016/1103 and 2016/1104 on international jurisdiction, applicable law, recognition and enforcement of decisions in matters of matrimonial property regimes and, registered partners, respectively, covering the maximum scope of personal or property family disputes. It is also notable that, as concluded after examining the data kindly brought to our attention by the Thessaloniki Court of First Instance Department of Publications, out of one hundred court judgments related to international law issued in the year 2022 by the above mentioned Court, approximately 70% of them concerned family disputes in a broader sense, either within the EU, or related to third countries, demonstrating the importance of the matter in practice.

Cross-border family disputes are the Focus of the current issue and were examined in an online conference of Lex and Forum (8.12.2022), under the Presidency of the Supreme Court Judge, Ms. Evdoxia Kiouptsidou-Stratoudaki. The topics of the conference concern the international jurisdiction on matrimonial and child custody disputes according to Regulation No 2019/1111, by Ioannis Delikostopoulos, Professor at the Faculty of Law of the University of Athens; the practical problems of the application of the Regulations for family disputes and parental custody disputes, by Ms. Aikaterini Karaindrou, Judge at the First Instance Court; the agreements on the exercise of parental care according to Regulation No 2019/1111 and their relationship with Greek law, by Aikaterini Fundedaki, Professor at the Law Faculty of the University of Thessaloniki; Law No 4800/2021 and the harmonization of the Greek legal provisions with international law, by Ioannis Valmantonis, Judge at the Court of Appeal, and the new Hague Convention for the protection of adults, by Dr. Vasileios Sarigiannidis, Head of the Private International Law Department at the Hellenic Ministry of Justice.

The present issue also contains case comments on the CJEU judgment, 15.11.2022, Senatsverwaltung/TB, on the recognition of dissolution of marriage from another member state, by Dr. Apostolos Anthimos; the CJEU judgments, 15.11 .2021, ??/FA and 10.2.2022, OE/VY, on the concept of habitual residence and, respectively, the importance of the length of residence of the claimant in a member state for the establishment of international jurisdiction under the Brussels IIa/b Regulation, by Paris Arvanitakis, Professor at the University of Thessaloniki, and . Stefania Kapaktsi, Judge at the Court of First Instance; the Greek Supreme Court judgment No 30/2021 on the declaration of enforceability of a foreign decision on the distribution of the spouses’ common property, by Dr. Apostolos Anthimos; the Greek Supreme Court cases No 48/2021 and 54/2021 on international child abduction, by Ioannis Valmantonis, Judge at the Court of Appeal; the judgment of the Thessaloniki First Instance Court No 1285/2022, on the temporary regulation of contact rights according to the Brussels IIb Regulation and the 1996 HAGUE Convention, by Professor Delikostopoulos, and the German Supreme Court judgment dated from 29.9. 2021, on the non-opposition to public order of a marriage performed by a proxy, with a note by Dr. Anthimos. The jurisprudence section also contains the CJEU decisions, 22.4.2022, Volvo/RM, regarding the temporal scope of the Directive No 2014/104 and their incorporation into substantive or procedural EU law, accompanied by the Opinion of the Advocate General, Mr. Athanassios Rantos, with a case comment by Dr. Stefanos Karameros, PhD, and the Court of First Instance case No 13535/2019, on the possibility of implicit prorogation of jurisdiction in case of provisional measures in the Brussels Ia Regulation, despite a contrary agreement, with a case comment by Ioanna Pissina, PhD Candidate.

The issue is completed with the Praefatio by Vassilios Christianos, Emeritus Professor at University of Athens, and former Director of the Center of International and European Economic Law, regarding the contribution of the comparative method to EU procedural law; the expert opinion by Dimitrios Tsikrikas, Professor at the Athens Faculty of Law, on the scope of application of choice-of-court agreements in bond loans and interest rate contracts; and finally, the analysis of practical issues on the recognition of foreign divorce decrees, focusing on the difficulties of the applicants to prove the finality of the foreign decision (L&F Praxis), by Dr. Anthimos.

[editorial prepared by Professor Paris Arvanitakis, scientific director of Lex & Forum]

In a judgment of 11 January 2023, the French supreme court for private and criminal matters (Cour de cassation) ruled that enforcement measures can be validly carried out 5 minutes after the certificate provided for in Article 53 of the Brussels I bis Regulation was served on the judgment debtor.

I have already reported on this judgment which also addressed the issue of the scope of the exclusive jurisdiction in Article 24(3).

Background

The case was primarily concerned with the enforcement of an English money judgment rendered in 2012 and thus subject to the Brussels I Regulation. However, the English court delivered an order in 2018 which ruled that the shares owned by the wife of the judgment debtor in a French company were only held fictitiously by the wife, and that they should be considered as actually owned by the debtor, her husband. The 2018 English order was subject to the Brussels I bis Regulation.

The judgment creditor initiated enforcement proceedings in France over the shares on the basis of both the 2012 judgment and the 2018 order.

Requirements for Enforcing the English Decisions in France

There was no issue that the 2012 judgment was enforceable in France: the creditor had obtained a declaration of enforceability from the competent French authority, pursuant to the Brussels I Regulation shortly after obtaining the judgment.

However, in order to enforce the 2018 order, it was necessary to obtain an Article 53 certificate from the court of origin, and serve it on the debtor “before the first enforcement measure”, pursuant to Article 43(1) of the Brussels I bis Regulation.

Article 43 does not say how long in advance the certificate should be served on the debtor, but Recital 32 explains that service should be effected “in a reasonable time” before the first enforcement measure.

In that case, the creditor served the certificate on the debtor at 2:55 pm. Then, it carried out the attachment of the shares at 3 pm.

The debtor applied for the attachment to be lifted on a number of grounds, including that the attachment had not been carried out in a reasonable time after service of the certificate.

Judgment

The argument was not formulated very clearly at the early stages of the proceedings. The court of appeal only underscored that service of the certificate was the only requirement for enforcing the 2018 order, and that service had been made at 2:55 pm, before the attachment.

In contrast, the argument was perfectly formulated in the appeal before the Supreme Court, with a direct reference to Recital 32 and to the claim that 5 minutes was not a reasonable time.

The Cour de cassation dismissed the appeal and thus validated the attachment.

Unfortunately, while it did answer the argument on the jurisdiction of the English Court, it did not give any reason to dismiss the argument on the time of service of the Article 53 certificate, except that it was manifestly wrong. It held:

Sur les premier et deuxième moyens et sur le troisième moyen, pris en seconde branche, ci-après annexés

En application de l’article 1014, alinéa 2, du code de procédure civile, il n’y a pas lieu de statuer par une décision spécialement motivée sur ces griefs qui ne sont manifestement pas de nature à entraîner la cassation.

And that’s it !

The French Cour de cassation has long been famous for delivering cryptic decisions, offering reasons in a couple of sentences. In recent years, however, the Court has realised that it had to make efforts and give more reasons in order to improve the accessibility of its judgments and of the law generally. The Court entered into a new era of motivation enrichie (enriched reasons), or motivation développée.

Well, so much for motivation enrichie and developpée.

We are back to the days of guessing what the court meant. What we know, however, is that the challenge against the enforcement measure has now been finally dismissed, and that the argument that the certificated was served 5 minutes before the enforcement measure was rejected, and that it was considered “manifestly” wrong.

Assessment

The requirement that the art 53 certificate was introduced in 2012. While the European lawmaker was completing its project of abolishing all intermediate measures to enforce foreign judgments within the EU (initiated in Tampere in 1999), it reintroduced one with Art. 43(1): the requirement only applies to the enforcement foreign jugdments, and is thus an additional delay and cost for the creditor. Just as good old exequatur.

The goal is to offer an additional protection to the debtor by informing him of the intention of the creditor to initiate enforcement proceedings in another Member State. But one wonders why the debtor should receive any additional protection. By definition, he was ordered to pay the monies by an enforceable judgment, which means that he could not convince the foreign court. He still does not want to pay, which forces the creditor to initiate enforcement proceedings. Finally, the debtor may be taking step to dispose of his assets, which is exactly what the debtor had done in this case, by transferring his assets to his wife. This all begs the question of why EU law should afford him any additional protection. Have we not reached the stage where the right to enforcement of the creditor should simply prevail?

It is therefore submitted that this judgment of the Cour de cassation is excellent, and that Article 43(1) of the Brussels I bis Regulation should be abolished, as the EAPIL Working Group on the Reform of the Brussels I bis Regulation will hopefully propose.

Distinguishing Enforceability and Enforcement of Judgments

If we leave aside policy and get back to law, there are several grounds which could be put forward to justify the outcome of this judgment.

Let’s first insist that the measures carried out over the shares at 3 pm were enforcement measures, aiming at transferring their ownership to the creditor. They were not protective measures, to which Article 43(1) does not apply (see Article 43(3)). Unfortunately, the judgment mentions at the beginning that the measure was a “saisie conservatoire“. This is simply a mistake (!), and art. 43(3) was never raised at any point of the proceedings.

The best rationale for the outcome of the judgment is that the proceedings were concerned with the validity of the French enforcement measure over the shares. As the CJEU has repeatedly held, however, the Brussels I bis Regulation only governs the conditions at which foreign judgments become enforceable in other Member States, but does not govern enforcement per se. The validity of French enforcement measures is only governed by French law. The requirement that the Article 53 certificate be served could not, therefore, impact the validity of an enforcement measure. It could only limit the enforceability of the foreign judgment. But there is no indication in the Brussels I bis Regulation that service of the certificate is a requirement for extending the enforceability of judgments in other Member States.

Finally, one wonders whether it was necessary to enforce the 2018 English order in the first place. The money judgment was the 2012 judgment. The 2018 order did not really need to be enforced. It only declared who the owner of the relevant assets was. Arguably, it would have been enough to recognise the 2018 order. And for that purpose, Article 43(1) does not require service of the Article 53 certificate.

Dans un arrêt en grande chambre, la Cour européenne des droits de l’homme a condamné la Lituanie pour avoir limité la diffusion d’un livre pour enfants avec des personnages LGBTI. La Cour a estimé que la loi restreignant l’accès des enfants aux contenus présentant des relations homosexuelles ne poursuivait pas un but légitime.

Sur la boutique Dalloz Code de la communication 2023, commenté Voir la boutique Dalloz

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The editors of the European Yearbook of International Economic Law (EYIEL) welcome abstracts from scholars and practitioners at all stages of their career for the EYIEL 2023. This year’s focus section will be on European and International (Public) Procurement and Competition Law. Next to this, in Part II the EYIEL will consider Current Challenges, Developments and Events in European and International Economic Law.

For the General Section, abstracts shall address topics which are currently of relevance in the context of European and International Economic Law. Similarly, reviews of case-law or practices and developments in the context of international organisations are encouraged. For the Focus Section, abstracts may cover any topic relating to (public) procurement and competition law in the field of European and international economic law, though preference is given to topics focusing on the international perspective.

Abstracts should not exceed 500 words. Abstracts together with a short bionote may be submitted until 28 February 2023 via e-mail to eyiel@leuphana.de.

For all the relevant information, see here.

I am hoping for a few gaps in yet again a mad diary this week, to catch up on quite a few developments I tweeted on earlier. First up is judgment in C‑147/21 Comité interprofessionnel des huiles essentielles françaises (CIHEF) et al v Ministre de la Transition écologique ea. The case concerns the possibility for Member States to adopt restrictive measures on commercial and advertising practices for biocidal products. It is a good illustration of the mechanism of precaution or pre-emption in EU law, and of the classic application of Article 36 TFEU’s exceptions to free movement of goods.

Applicants contest the French restriction of commercial practices such as discounts and rebates, as well as advertising, for two specific biocides categories: rodenticides and insecticides. The secondary law benchmark is Biocidal Products Regulation 528/2012.

As for the first category, commercial practices such as discounts, price reductions, rebates, the differentiation of general and specific sales conditions, the gift of free units or any equivalent practices, the Court, also seeking report in the AG’s Opinion, held [33] that the Regulation’s definitions of ‘making available on the market’ and ‘use’ of biocidal products are as such sufficiently broad to cover commercial practices linked to the sale of those products, however [34] that the Regulation does not seek to harmonise the rules relating to commercial practices linked to the sale of biocidal products.

That leaves the classic CJEU Case 8/74 Dassonville test (all measures of a Member State which are capable of hindering, directly or indirectly, actually or potentially, trade within the European Union are to be considered as measures having an effect equivalent to quantitative restrictions within the meaning of that provision), tempered by Joined cases C-267/91 and C-268/91 Keck et Mithouard : there is no direct or indirect hindrance, actually or potentially, of trade between Member States, in the event of:

• the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements [[39] of current judgment the CJEU confirms this is the case here]
• on condition that those provisions apply to all relevant traders operating within the national territory [41 held to to be the case here] and that they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States [[42] held to have to be judged by the national court but 43 ff strongly suggested to be the case here (i.e. there not being distinctive affectation of domestic cq imported products)].

Should the national court decide that (unlike what the CJEU indicates) the French measures are not selling arrangements, carved out from Article 34’s scope altogether, the CJEU [48] ff holds that the French measures most likely  (the final arbiter will be the French judge) enjoy the protection of both Article 36 TFEU’s health and life of humans exception, and the Court’s Cassis de Dijon-inserted ‘overriding reason in the public interest’ aka the rule of reason aka the mandatory requirements exception: strong indications are that the measures are justified by objectives of protection of the health and life of humans and of the environment, that they are suitable for securing the attainment of those objectives and that they do not not go beyond what is necessary in order to attain them. The referring court will have to confirm.

As for the French obligations relating to advertisements addressed to professionals (which includes in particular adding a specific statement), here the Court holds [60] ff that the Regulation does exhaustively harmonise the  wording of statements on the risks of using of biocidal products which may appear in advertisements for those products. This precludes the relevant French rules.

[68] ff however the French prohibition of advertising addressed to the general public, is held not to have been regulated by the Regulation, with the Court coming to the same conclusions as above, viz Article 34’s selling arrangements carve-out and, subsidiarily, Article 36 TFEU’s and the rule of reason exceptions.

A final check therefore is to be done by the referring court however it seems most likely the French restrictions will be upheld.

Geert.

EU Environmental Law, 2017, Chapter 17, p.308 ff.

The Biocides judgment is now here https://t.co/shbrzHqfzA, #neonicotinoids here https://t.co/o6zK33JHHe https://t.co/tjwfrI7Nil

— Geert Van Calster (@GAVClaw) January 20, 2023

The Hague Conference on Private International Law (HCCH) has recently published the new edition of the Practical Handbook on the Operation of the Apostille Convention.

The Handbook provides guidance on the practical implementation and operation of the HCCH Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents, applied tens of millions of times every year to the benefit of individuals, families, and businesses from across the world.

This second edition provides updated information and resources in response to the latest developments in relation to the Convention, including by incorporating advice from recent meetings and reflecting on the experiences of the growing number of Contracting Parties. Key changes include a greater focus on the electronic Apostille Programme (e-APP), further explanation of the role of diplomatic missions, and the incorporation of outcomes of the Working Group on the Authentication of Documents Generated by Supranational and Intergovernmental Organisations, the Experts’ Group on the e-APP and New Technologies, as well as the most recent meetings of the International Forum on the e-APP and the Special Commission on the practical operation of the Apostille Convention.

The Handbook is available here in English, French and Spanish.

The INSOL Europe Academic Forum (IEAF) is inviting submission for its 19th annual conference, taking place on 11-12 October 2023 in Amsterdam. Expressions of interest are invited for the delivery of research papers within the overall theme of the academic conference The Perpetual Renewal of European Insolvency Law.

Submissions are welcome dealing, for instance, with (i) Public and social policy and the impact on corporate rescue, and vice versa, (ii) Pre-packs rehabilitated, (iii) Modern issues surrounding directors’ duties to file for insolvency and (iv) EU Preventive Restructuring Directive and European Insolvency Regulation.

Expressions of interest in delivering a paper should be sent by email on or before 1 March 2023 to the IEAF’s Deputy Chair, Dr. Jennifer Gant, at jenniferl.l.gant@gmail.com by using the form available here.

The call for papers is available here. For further information on the conference, see here.

Bank M. (Conséquences de l’annulation du contrat)
Rapprochement des législations
Avocat général Collins : à la suite de l’annulation d’un contrat de prêt hypothécaire en raison de la présence de clauses abusives, les consommateurs peuvent faire valoir à l’encontre des banques des prétentions allant au-delà du remboursement de la prestation monétaire ; les banques non

China Chamber of Commerce for Import and Export of Machinery and Electronic Products e.a. / Commission
Relations extérieures
Contestation antidumping : l’avocate générale Medina suggère à la Cour de reconnaître la qualité pour agir de la China Chamber of Commerce en tant qu’association représentative

Asociaţia "Forumul Judecătorilor din România"
Principes du droit communautaire
Selon l’avocat général Emiliou, une procédure de promotion des juges fondée sur une évaluation de leur travail et de leur conduite par une commission composée du président et de juges de la cour de rang supérieur compétente est compatible avec le droit de l’Union

Chief Appeals Officer e.a.
Principes du droit communautaire
Avocate générale Ćapeta : la mère d’un travailleur mobile de l’Union peut demander une prestation sociale sans que cette demande remette en question son droit de séjour

Lufthansa Technik AERO Alzey
Espace de liberté, sécurité et justice
La Cour précise la notion de « circonstances exceptionnelles » permettant à l’autorité judiciaire compétente de suspendre l’exécution d’une décision certifiée en tant que titre exécutoire européen

Rzecznik Praw Dziecka e.a. (Suspension de la décision de retour)
Le droit de l’Union s’oppose à ce que des autorités nationales puissent obtenir sans justification la suspension d’une décision définitive de retour d’un enfant

HYA e.a. (Motivation des autorisations des écoutes téléphoniques)
Rapprochement des législations
Une décision autorisant une mise sur écoute téléphonique peut ne pas contenir de motifs individualisés

Tráficos Manuel Ferrer
Concurrence
Actions en dommages et intérêts pour infractions au droit de la concurrence : le droit de l’Union en la matière ne s’oppose pas à une règle nationale selon laquelle, en cas d’accueil partiel de la demande, les dépens demeurent à la charge de chaque partie, qui supporte alors la moitié des frais communs