Agrégateur de flux

La gravité des événements qui secouent l’Europe depuis la fin du mois de février obligera à commencer cette chronique autrement que par le rituel résumé des principaux thèmes abordés par la Cour européenne des droits de l’homme au cours des deux derniers mois.

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Une codification à droit constant constitue une circonstance de droit nouvelle qui interdit de regarder les dispositions issues de l’ordonnance comme purement confirmatives des dispositions législatives antérieures.

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A research seminar on the topic “Hard Legal Problems and Comparative Legal Analysis: The case of parental child abduction in international and Islamic law” is organised by the Aberdeen Centre for Private International Law under the auspices of the Aberdeen Law School Research Seminar Series. The seminar will be delivered by Professor Anver Emon from the Faculty of Law of the University of Toronto, Canada, and will be held on Friday 11 March 2022, 5-6.30 p.m. (UK time), through MS Teams. For more information, click here.

Bezirkshauptmannschaft Hartberg-Fürstenfeld (Effet direct)
Liberté d'établissement
Détachement de travailleurs : le juge national doit s’assurer que les sanctions pour la violation d’obligations administratives soient proportionnées

Commission / Royaume-Uni
Ressources propres des Communautés TVA
Le Royaume-Uni a manqué à ses obligations concernant le contrôle douanier et la mise à disposition de ressources propres de l’Union en n’adoptant pas les mesures nécessaires pour lutter contre des fraudes relatives à des importations sous-évaluées de produits textiles et de chaussures en provenance de Chine

This post was written by Paul Eichmüller and Verena Wodniansky-Wildenfeld, University of Vienna.

In a recent decision, the Austrian Supreme Court dealt with the interpretation of Article 10(2) of the Succession Regulation. It found that the latter provision does not establish an obligation to initiate probate proceedings ex officio in states having subsidiary jurisdiction. A national Austrian provision concerning the issue of these assets to third countries was thus considered in conformity with EU law, although Article 10(2) explicitly provides that the Member State shall have “jurisdiction to rule on those assets”. The court’s apparent classification of these questions as an acte clair is doubtful.

Facts

The Austrian courts were seized by a Canadian company. It was tasked by the Canadian courts to manage the estate of a German citizen, who had moved to Toronto where he established his habitual residence and eventually died in 2017. The deceased had a bank account in Austria where he and his son had jointly rented two safes containing gold “of substantial value”. The Canadian company then brought a request that the gold and the savings should be transferred to it so that it may become part of the general estate in Canada. However, the son opposed this request with regard to the gold on the basis that it was in fact in his own property and not in the deceased’s.

The court of first instance decided to transfer the money and the gold to the Canadian company, which was to hand it to the heirs as assessed in Canada. Concerning jurisdiction, the court based its decision on Article 10(2) of the Succession Regulation. The fact that it simply transferred the assets and did not conduct substantive probate proceedings was based on § 150 AußStrG (Austrian Non-Contentious Civil Procedure Act) – prescribing exactly this course of action in cases of Article 10(2) of the Succession Regulation. Appealing this decision, the son desired a full rejection of the claim on the grounds that § 150 AußStrG would be contrary to Article 10(2) and is thus not to be applied. The gold and the money should be handed to the heirs by Austrian courts themselves and not simply be transferred to the Canadian authorities (i.e. the authorised company).

The Decision by the Austrian Supreme Court

The Supreme Court ruled that issuing assets of the estate located in Austria, as long as no probate proceedings have been requested, does not violate Article 10(2) of the Regulation. This is laid down in § 150 AußStrG, which prescribes that upon request of a legitimised party, the assets must be transferred to the state in which the deceased had their last habitual residence. Its main argument was that the Succession Regulation does not oblige the competent Member States to initiate proceedings ex officio (para 31; also citing Hertel in Rauscher, EuZPR-EuIPR [2016] Art 23 EuErbVO para 49).

Furthermore, the objective of Article 10(2) of the Succession Regulation would not be thwarted by the Austrian provision, since § 150 AußStrG provides for the issue of assets only if no application for probate proceedings in Austria had been filed. Thus, the legal interests of the parties are protected and the subsidiary jurisdiction stipulated in Article 10(2) is respected. Issuing the assets would be a mere recognition of the foreign (Canadian) decision which legitimised the company to demand their transfer. As this decision originates in a third country, neither the Succession Regulation nor other acts of EU law are inapplicable to such a recognition (para 21).

The Supreme Court considered this assessment of the legal situation and the conformity with EU law to be sufficiently evident, so that a request for a preliminary ruling to the CJEU was not deemed necessary.

Assessment

To the extent that the jurisdiction established by Article 10(2) of the Succession Regulation is not combined with an obligation to initiate probate proceedings ex officio, the Supreme Court’s decision is to be followed.

In this respect, the procedural autonomy of the Member States is not restricted by EU law, thus the Regulation does not specify whether proceedings ought to be initiated either of the court’s own motion or upon application. The Regulation recognises the different procedural treatment of succession cases in the Member States, which is explicitly outlined, e.g., in Recital 29 (“Where succession proceedings are not opened by a court of its own motion”) and Article 14(c) (“if the proceedings are opened of the court’s own motion”) of the Succession Regulation. Hence, in contrast to probate proceedings in Austria, which are always initiated ex officio, other Member States (such as e.g. Germany, Belgium or Sweden) provide for the transfer of assets to the heirs ex lege without any proceedings being necessary. Therefore, a provision which prescribes that probate proceedings are initiated only on application in all cases where jurisdiction is based on Article 10(2) of the Succession Regulation (such as § 143 AußStrG in Austria) does indeed not violate EU law.

However, by issuing the gold and the savings to Canada, the Austrian authorities effectively transfer the jurisdiction for substantive probate proceedings over these assets to the Canadian authorities. This rejection of the Austrian jurisdiction over the assets located in its territory would happen outside the system of the Succession Regulation – which provides a transfer of jurisdiction in the cases listed in Article 6, but not whenever the court chooses to do so.

While the Succession Regulation does not prescribe how jurisdiction shall be exercised by a particular Member State, it does indeed prescribe that it must be exercised. The Austrian Supreme Court reasons that such a transfer is permissible because it does not interfere with the objectives of the regulation, as the alleged heirs could have brought a request to hold probate proceedings in Austria before anyway (para 27, 33). Yet, it thereby neglects that the transfer of jurisdiction would be final and thus deprives the heirs of the possibility to request proceedings in Austria at a later point in time. The Austrian courts may well choose to remain inactive until proceedings are requested, but then they have to remain exactly that – inactive. Hence, § 150 AußStrG – prescribing the opposite – is incompatible with EU law. While there might well be a case to see this differently, these arguments and the extensive criticism that has justly been raised about this issue by numerous respected Austrian scholars would have at least required a preliminary reference and leave the issue for the CJEU to decide.

The other reason given by the Supreme Court in support of its decision is the fact that it is bound by the recognition of the Canadian (third-state) judgment, which as such falls outside the scope of the Succession Regulation. Yet even when starting from the premise that the Canadian decision needs to be recognised, this will not necessarily result in an obligation of the Austrian authorities to transfer to the assets to Canada.

The decision of the Canadian Court confers upon the company the right (and duty) to collect the deceased’s assets as the estate trustee (para 2) – which is the standard for succession cases in Ontario. However, it did not directly decide on how the succession affects the assets. Recognising the company’s authorisation to receive the assets (i.e. its right of action) is only one of the requirements that need to be fulfilled so that the assets can be transferred to Canada. Yet, the Austrian courts still have to assess whether issuing the assets to a third state is consistent with Austrian law (including EU law).

The analysis shows that the legal question is far from clear and a preliminary reference to the CJEU would therefore have been necessary. While the Supreme Court was correct in its assessment that an ex officio initiation of probate proceedings is not required by the succession regulation, the rest of its judgment cannot be followed from this premise.

En cas de recours à des travailleurs détachés, le maître d’ouvrage ou le donneur d’ordre est tenu envers son cocontractant à une obligation de vigilance. Dans un arrêt du 11 février, le Conseil d’État précise la portée de cette obligation et la sanction en cas de manquement.

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Saisi d’une demande d’avis par le tribunal administratif de Nantes, le Conseil d’État vient de préciser les conditions de délivrance d’un visa de long séjour en qualité d’étudiant.

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Par un arrêt du 10 février 2022, la Cour de justice se prononce sur la définition du contrat ayant pour objet un droit réel immobilier et du contrat de bail d’immeuble au sens de l’article 6, paragraphe 4, sous c), du règlement Rome I.

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A new series of webinars on the application of the EU Succession Regulation in the Member States will be organised in the framework of the ELI SiG Family and Succession Law. In five webinars of two hours each, representatives of the Member States will talk about their experiences within their respective legal systems.

The organizers state the objectives of the event series as follows (emphasis added):

 

“Join us for the webinar series on the ‘Application of the EU Succession Regulation in the Member States’! 

The five webinars organized within the Special Interest Group on Family and Succession Law of the European Law Institute will take place between March and June 2022 and shall shed light on the actual practice regarding cross border succession cases in the Member States. The reporters will open the webinars with short introductory statements and will then take part in a lively panel discussion on the application of the EU Succession Regulation in their respective jurisdictions. The results of these webinars will be presented as comparative reports at an online conference in September 2022.

 

Attendance is free of charge. A ZOOM link will be sent to those who register by sending an e-mail to  zivilrecht@uni-graz.at

 

For more information see the program (provided below)!

 

Gregor Christandl        Jens Kleinschmidt       Jan Peter Schmidt

Univeristät Graz                   Universität Trier          Max Planck Institute

 

 

 

PANEL 1 TUESDAY, 15 MARCH, 4-6 pm CET Belgium Patrick Wautelet, Université de Liège Estonia Karin Sein, University of Tartu France Stefan Stade, ArteJURIS Cabinet d’Avocats, Strasbourg Portugal Afonso Patrão, University of Coimbra PANEL 2 TUESDAY, 5 APRIL, 4-6 pm CET Bulgaria Boriana Musseva, University of Sofia Latvia Janis Grasis, Riga Stradins University Malta Paul George Pisani, Notary Public, Victoria The Netherlands Katja Zimmermann, University of Groningen Spain Guillermo Palao Moreno, University of Valencia PANEL 3 TUESDAY, 26 APRIL, 4-6 pm CET Czech Republic Magdalena Pfeiffer, Charles University, Prague Germany Lena Kunz, University of Heidelberg Lithuania Katažyna Bogdzevic, Mykolas Romeris University Poland Anna Wysocka-Bar, Jagiellonian University Romania Daniel Berlingher, Vasile Goldis Western University of Arad PANEL 4 TUESDAY, 31 MAY, 4-6 pm CET Austria Brigitta Lurger, University of Graz Croatia Mirela Župan, University of Osijek Hungary Csongor István Nagy, University of Szeged Slovakia Elena Judova, Matej Bel University Slovenia Jerca Kramberger Škerl, University of Ljubljana PANEL 5 TUESDAY, 21 JUNE, 4-6 pm CET Cyprus Achilles Emilianides, University of Nicosia Finland Tuulikki Mikkola, University of Turku Greece Haris P. Pamboukis, Giorgos Nikolaidis, University of Athens Italy Domenico Damascelli, University of Salento Sweden Michael Bogdan, University of Lund ”

Additional information may be obtained from the accompanying PDF Document.

 

 

 

 

EFFORTS (Towards more EFfective enFORcemenT of claimS in civil and commercial matters within the EU) is an EU-funded Project conducted by the University of Milan (coord.), the Max Planck Institute Luxembourg for Procedural Law, the University of Heidelberg, the Free University of Brussels, the University of Zagreb, and the University of Vilnius.

The seventh EFFORTS Newsletter has just been released, giving access to up-to-date information about the Project, save-the-dates on forthcoming events, conferences and webinars, and news from the area of international and comparative civil procedural law.

In this framework, the EFFORTS International Exchange Seminar was organised and hosted online by the Max Planck Institute Luxembourg on February 25th, 2022: an account of the resulting engaged discussions between academics and practitioners in the field of cross-border enforcement of claims will be given in the Report on practices in a comparative and cross-border perspective, to be published soon on the Project website.

Regular updates are also available via the Project’s LinkedIn and Facebook pages.

Project JUST-JCOO-AG-2019-881802
With financial support from the Civil Justice Programme of the European Union

The Special Interest Group on Family and Succession Law of the European Law Institute will host a series of webinars on the Application of the EU Succession Regulation in the Member States, organised by a sub-group on Succession Law chaired by Gregor Christandl of the University of Graz.

The five webinars in the series will take place between March and June 2022 and will shed light on the actual practice regarding cross border succession cases in the Member States.

The reporters will open the webinars with short introductory statements and will then take part in a lively panel discussion on the application of the EU Succession Regulation in their respective jurisdictions. The results of these webinars will be presented as comparative reports at an online conference in September 2022. 

A message from Organizers and the programmme is available here.

Attendance is free of charge. A ZOOM link will be sent to those who register at zivilrecht@uni-graz.at.

The Conference represents the final event of the JUDGTRUST Project, funded by the Justice Programme of the European Union. The objective of the Project is to identify best practices and to provide guidelines in the interpretation and application of Regulation 1215/2012 (BI-bis). The JUDGTRUST Project is coordinated by the T.M.C. Asser Instituut and carried out in partnership with the University of Hamburg, the University of Antwerp and the Internationaal Juridisch Instituut.

The Conference will host panels on, inter alia, the scope of application, relationship with other instruments, rules on jurisdiction, provisional measures, as well as enforcement and recognition of foreign judgments. Additionally, the key findings from the National Reports of the EU Member States will be presented. It aims to bring together academics, policy makers and legal practitioners. It will take place on 21 – 22 April 2022 at the T.M.C. Asser Instituut, The Hague.

Further information and a link for registration can be found @ T.M.C. Asser Instituut – Events.

Speakers:
Prof. Dr. Markus Tobias Kotzur, University of Hamburg
Dr. Vesna Lazic, Asser Institute, The Hague; Utrecht University
Prof. Dr. Burkhard Hess, Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law
Mr. David Althoff, International Legal Institute, The Hague
Prof. Dr. Louise Ellen Teitz, Roger Williams University School of Law, Bristol, Rhode Island
Prof. Dr. Wolfgang Hau, Ludwig-Maximilians University of Munich
Prof. Dr. Antonio Leandro, University of Bari
Mr. Michiel de Rooij, Asser Institute, The Hague
Prof. Dr. Javier Carrascosa González, University of Murcia
Prof. Dr. Pietro Franzina, Catholic University of the Sacred Heart in Milan
Prof. Dr. Gilles Cuniberti, University of Luxembourg
Dr. Fieke van Overbeeke, International Legal Institute, The Hague
Dr. Mukarrum Ahmed, University of Lancaster
Prof. Dr. Jachin Van Doninck, Free University Brussels
Prof. Dr. Luis de Lima Pinheiro, University of Lisbon
Ms. Lisette Frohn, International Legal Institute, The Hague
Prof. Dr. Beatriz Añoveros Terradas, University of Barcelona
Dr. Pontian Okoli, University of Stirling
Prof. Dr. Francesca Clara Villata, University of Milan

Moderators:
Prof. Dr. Johan Meeusen, University of Antwerp
Prof. Dr. Marta Pertegás Sender, University of Antwerp
Dr. Fieke van Overbeeke, International Legal Institute, The Hague
Ms. Lisette Frohn, International Legal Institute, The Hague

Coordinator

JUDGTRUST is coordinated by Vesna Lazic, senior researcher in private international law at the Asser Institute. She is part of the ‘Public interest(s) inside/within international and European institutions and their practices’ research strand. She has published extensively on international trade law, international commercial arbitration, and European private international law.

The EAPIL asked us to share information about their Webinar “What Measures Should the EU Adopt to Enhance the Protection of Adults in Europe?” on 10 March from 17 to 19.00 Central European Time (GMT +1). You can register until 9 March.

This is in response to the European Commission’s public consultation on the need for improved EU cooperation in the field of the protection of adults, in conjunction with the Hague Convention of 2000.

Also of note is that the Hague Conference on Private International Law is in the process of drawing up a practical handbook and has launched its consultation with Member States on the the draft practical handbook.

 

 

The EAPIL Young Research Network is looking forward to welcoming the academic and research community to the beautiful city of Dubrovnik on 14 and 15 May 2022 for a closing conference on the EAPIL Young Research Network’s third research project with the title: Jurisdiction Over Non-EU Defendants – Should the Brussels Ia Regulation be Extended?

The research project aimed at facilitating a critical discussion of the possibility envisaged in Article 79 of the Brussels I bis Regulation of extending the personal scope of the jurisdictional rules contained in the Regulation.

The conference will include a presentation of the research project and its core results as well as discussions with the representatives of the European Commission, the Hague Conference on Private International Law and leading scholars. The Conference will be held at the Inter-University Centre located at the address Don Frana Bulića 4, in close vicinity of the Dubrovnik historical centre.

There is no fee for attending the conference and we are providing limited assistance in booking the most appropriate accommodation (as explained in the application form).

Please direct all inquiries regarding the conference to youngresearch@eapil.org.

The Conference Program is available here; the Application Form here.

Lors de la présentation du rapport d’information sur l’évaluation de la loi française sur le devoir de vigilance des multinationales, le député Dominique Potier, qui porte ce sujet depuis une dizaine d’années, a livré un premier décryptage du projet de directive de la Commission européenne.

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Deutsche Umwelthilfe (Réception des véhicules à moteur)
Environnement et consommateurs
Avocat général Rantos : les associations de protection de l’environnement agréées doivent pouvoir contester en justice une réception CE par type de véhicules équipés de « dispositifs d’invalidation » susceptibles d’être interdits

The EAPIL Young Research Network is looking forward to welcoming the academic and research community to the beautiful city of Dubrovnik on 14 and 15 May 2022 for a closing conference on the EAPIL Young Research Network’s third research project with the title: Jurisdiction Over Non-EU Defendants – Should the Brussels Ia Regulation be Extended?

The research project aimed at facilitating a critical discussion of the possibility envisaged in Art. 79 Brussels Ibis Regulation of extending the personal scope of the jurisdictional rules contained in the Regulation.

The conference will include a presentation of the research project and its core results as well as discussions with the representatives of the European Commission, the Hague Conference on Private International Law and leading scholars. The Conference will be held at the Inter-University Centre located at the address Don Frana Buli?a 4, in close vicinity of the Dubrovnik historical centre.

There is no fee for attending the conference and we are providing limited assistance in booking the most appropriate accommodation (as explained in the application form).

Please direct all inquiries regarding the conference to youngresearch@eapil.org.

• Conference Program
• Application Form

On 2 March 2022 the US signed the Hague Convention of 2 July 2019 on the recognition and enforcement of foreign judgments in civil or commercial matters. Five more States have already signed the Convention, namely Costa Rica, Israel, the Russian Federation, Ukraine and Uruguay.

So far, none of the above States has ratified the Convention. According to Article 28, two ratifications are needed for the Convention to enter into force.

In July 2021, the European Commission presented a proposal for a Council decision on the accession to the Convention by the European Union. In December 2021, the Council forwarded the draft Council decision to the European Parliament, the consent of which is a precondition for the adoption of the decision pursuant to Article 218 of the TFEU.

Quelle place pour l’avocat au cœur du droit européen ? Comment les outils du droit de l’Union européenne protègent-ils les justiciables ?

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