Agrégateur de flux

M.I.C.M.
Liberté d'établissement
L’enregistrement systématique d’adresses IP d’utilisateurs et la communication de leurs noms et adresses postales au titulaire des droits intellectuels ou à un tiers afin de permettre d’introduire un recours en indemnisation sont admissibles sous certaines conditions

The new issue of Rivista di diritto internazionale privato e processuale (Volume 57, Issue 1/2021) is out.

It features three articles, two in Italian, the other in English, whose abstracts are provided below.

Fausto Pocar, Riflessioni sulla recente convenzione dell’Aja sul riconoscimento e l’esecuzione delle sentenze straniere (Reflections on the Recent HCCH Convention on the Recognition and Enforcement of Foreign Judgments)

The Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, concluded on 2 July 2019 in the framework of the Hague Conference on Private International Law, signifies a further, albeit partial, step in the context of the more ambitious project, initiated over twenty-five years ago, aimed at achieving a so-called “double” convention on jurisdiction and recognition and enforcement of foreign judgments in civil or commercial matters. Through the careful consideration of the salient features of the Convention – some of which appear to be innovative in character, whereas others evoke more solutions – as well as of the interactions that the Convention’s adoption (and possible entry into force) entails in the existing multilateral treaty landscape, including the 2005 HCCH Convention on Choice of Court Agreements, the Author offers a dynamic and contextualized reading of the new instrument, emphasizing its lights and shadows, and illustrating the underlying interests surrounding the Convention’s possible ratification by the European Union.

Federica Favuzza, Riflessioni in margine all’entrata in vigore del c.d. SOFA dell’Unione Europea (Reflections on the Entry into Force of the EU SOFA)

On 1 April 2019, the 2003 Status of Forces Agreement between the EU Member States finally entered into force. This international agreement applies within the territory of the EU and aims to define the legal status of individuals and entities involved in the preparation and execution of the tasks referred to in Art. 42 TEU, i.e. in the context of the Common Security and Defence Policy (CSDP). After examining its scope of application, the Author provides an overview of some of the main legal issues that the Agreement raises in respect of the exercise of criminal and civil jurisdiction. The analysis highlights the drafters’ deference to the approach and wording of the NATO SOFA. This choice is understandable, especially considering that individuals and entities involved in the CSDP are often also deployed in NATO context. However, in the Author’s view, it risks reproducing in the context of the EU some known difficulties and critical issues arisen in nearly 70 years of practice in the interpretation and application of the NATO SOFA.

Caterina Benini, Remarks on the Commission’s Proposal on the Law Applicable to the Third-Party Effects of Assignment of Claims [in English]

The paper provides an overview of the European Commission’s proposal on the law applicable to the third-party effects of the assignment of claims. The Proposal, based on a sensitive balance between the interests of the factoring and the securitisation industries, fosters the foreseeability of the applicable law and the harmony of solutions. The combination of the law of the assignor as general rule with the law of the assigned claim as exception is consistent with the solution adopted at the international level and fits the property interests underlying the assignment of claims. Normative consistency with the Insolvency Regulation is depicted as one of the main goals of the Proposal. However, due to the mismatches between the connecting factors adopted in the two instruments, such goal risks to remain only on paper. To avoid this, the present article suggests localising the assignor’s habitual residence at the company’s registered office under the COMI notion adopted under the Insolvency Regulation.

The issue also contains a review, by Francesca Clara Villata, of Felix M. Wilke’s A Conceptual Analysis of European Private International Law. The General Issues in the EU and its Member States.

The table of contents of the issue is available here.

La Cour européenne des droits de l’homme, si elle reconnaît l’existence d’une vie familiale entre les mères d’intention et l’enfant né d’une mère porteuse, refuse de condamner l’Islande sur le fondement de l’article 8 de la Convention européenne.

en lire plus

La personne détenue et visée par un mandat d’arrêt européen qui, sans motif légitime, refuse son extraction, est réputée avoir comparu, avoir refusé de consentir à sa remise aux autorités requérantes et ne pas avoir renoncé à la règle de spécialité.

en lire plus

Renforcement de la protection des lanceurs d’alerte, élargissement du statut protecteur aux personnes morales, création d’une autorité compétente unique… Voici un panorama des propositions visant à faire évoluer le droit français relatif à la protection des lanceurs d’alerte dévoilées sous forme de synthèse par le ministère de la Justice.

en lire plus

Entreprise en difficulté

Droit des consommateurs

QPC

Chambre de l'instruction - Douanes

In Greenaway v Parrish & Ors [2021] EWHC 1506 (QB) ( I signaled it a while ago but the case has only recently appeared on BAILII), Spencer J had to consider the practical implications of the impossibility of referrals to the Court of Justice of the EU, by UK judges. Plenty of pending cases were introduced before Brexit day. Moreover, an even larger number of cases will be subject to retained EU law.

In a specific conflict of laws sense, this raises the particular (procedural and substantive) issue of foreign law being fact and hence needing to be proven. Retained and /or previously applicable EU law, will not be foreign law as such, yet clearly it is law of a different nature than UK statutory and common law across the isles.

The practical implications of all this have now surfaced in Greenaway. Following CJEU CILFIT, EU law is (usually) equally authentic in 22 languages. In the case at hand, this centres upon the meaning of the word ‘stolen’, in the motor insurance Directive 2009/103. How should a judge inform her /himself of the meaning of the word in the 22 languages, and potentially also of the implementation of the Directive across the Member States. 12 King’s Bench Walk have analysis of the case here. As they note, Mr Justice Spencer granted permission to each party to adduce four foreign law experts reports in EU jurisdictions of their choosing, so that the relevant foreign language versions of the Directive could be understood. He also gave permission for those experts to give evidence as to the implementation of the Directive in those member states, that material being part of the context in which the point at issue had to be decided.

This is an important procedural point which no doubt will surface in a variety of shapes in years to come.

Geert.

Languages and retained EU law
Of much note indeed
Greenaway & Rocks v Covea Insurance ea
How should the E&W courts deal with the CILFIT principle of 22 authentic language versions (see https://t.co/TE7wheSbTP) viz 'stolen' in Dir 2009/103
paging @Prof_KMcA @stefaanvdjeught https://t.co/0XhfqUdIbL

— Geert Van Calster (@GAVClaw) March 18, 2021

Sharpston / Conseil et Conférence des Représentants des Gouvernements des États membres
Droit institutionnel
La Cour confirme le rejet de deux recours en annulation introduits par Mme Eleanor Sharpston, aux fins de faire constater l’illégalité de la fin anticipée de son mandat d’avocate générale du fait du retrait du Royaume-Uni de Grande Bretagne et d’Irlande du Nord de l’Union européenne

The Minerva Centre for Human Rights at Tel Aviv University is organising an international socio-legal workshop that will explore the impact of the Covid-19 crisis and its regulation on cross-border families. Topics include issues of belonging, travel restrictions, civil rights, birth across borders, international child abduction and transnational homes in pandemic times.

The workshop will take place on 22 June 2021. The  full program and registration form are available.

For additional information, contact eynatmey@tauex.tau.ac.il

The author of this post is Estelle Gallant, professor of private law at the University of Toulouse 1 Capitole.

In a judgment of 27 January 2021 the French Supreme Court for civil and criminal matters (Cour de cassation) applied the Hague Convention of 13 January 2000 on the International Protection of Adults (the ‘Adults Convention’) in a case concerned with a mandate in case of incapacity. More specifically, the issue was the content of the distinction between the conditions of validity of the mandate and its manner of exercise.

The Adults Convention

Currently applicable in 13 States (Austria, Belgium, Cyprus, Czech Republic, Estonia, Finland, France, Latvia, Monaco, Portugal, Switzerland and the United Kingdom), the 2000 Hague Convention takes into consideration a particular mechanism enabling an adult to organise in advance his or her personal or property protection for the time when he or she is no longer able to provide it. This legal form of mandate in case of incapacity, which was well known in North America and not very widespread in Europe at the time the Convention was drafted, is now more common in Europe. It exists in French law in the form of the “future protection mandate” and in Swiss law in the form of the “mandate for incapacity”. The mandate in case of incapacity is governed in the Adults Convention by Articles 15 and 16.

Article 15 refers to “powers of representation granted by an adult, either under an agreement or by a unilateral act, to be exercised when such adult is not in a position to protect his or her interests”. The adult thus entrusts a person or an institution of his or her choice with powers of representation for the future in the event that he or she is unable to protect his or her interests. Such mandate may take the form of an agreement, but also of a unilateral legal act. It may concern the management of property and affairs, but also the protection of the person, his or her care or the decisions to be taken at the end of life, in order to put an end to over-treatment for example. Generally speaking, the legislation establishing this mandate in case of incapacity makes the starting point of the mandate’s effects depend on a judicial and/or medical finding of incapacity.

Article 15(1) of the Convention designates the law of the adult’s habitual residence at the time the instrument is drawn up as applicable to mandates in case of incapacity. Article 15(2) also offers the adult the possibility of choosing the applicable law among three: a) his or her national law, b) the law of a former habitual residence, c) the law of the place where his or her property is located. Irrespective of how it is designated, the applicable law applies to “the existence, extent, modification and extinction of powers of representation” granted by the adult. However, the manner of exercise the powers conferred by the mandate is governed by the law of the State where it is exercised, according to Article 15(3). It follows that whenever the mandate is to be implemented in a State other than the one whose law is applicable, the manner of exercise the mandate will be governed by a different law than the one governing the mandate.

The Ruling – Distinguishing between Validity and Exercise of Mandates

This was the issue raised by the case before the Cour de cassation. A mandate in case of incapacity had been established in Switzerland, where the adult had his habitual residence, before moving to France. As he wished to implement the mandate in France, one of his sons obtained that the mandate be verified formally and “stamped” by an officer of the court (visé par le greffier du Tribunal) in accordance with French procedure. However, another son of the grantor brought proceedings to challenge the implementation of the mandate. He won before the court of appeal of Pau, which annulled the clerk’s stamping on the grounds that it should not have been granted because the mandate did not include any means of controlling the representative of the adult.

The son who had obtained the stamping appealed to the Cour de cassation, which allowed the appeal. The Court held that by requiring that the clerk’s stamping be granted only if the mandate expressly provided any arrangements with respect to the control of the representative, the court of appeal had actually imposed conditions which were not concerned with the implementation of the mandate, but with its validity.

According to the Cour de Cassation, the implementation in France of a Swiss mandate in case of incapacity could not be subject to a condition of validity of French law that was not imposed by Swiss law. The provisions of the Adults Convention are thus perfectly respected: they imply making a distinction between conditions of validity and manner of exercise of mandates in case of incapacity.