Agrégateur de flux

Association One Voice et Ligue pour la protection des oiseaux
Environnement et consommateurs
Selon l’avocate générale Kokott, la chasse aux gluaux des grives et merles noirs autorisée dans le sud de la France peut être compatible avec la directive de l’Union concernant la conservation des oiseaux sauvages si cette chasse revêt une importance culturelle significative et si les autres conditions requises pour qu’il soit dérogé à l’interdiction de principe sont remplies

Bundesrepublik Deutschland (Notice rouge d’Interpol)
Principes du droit communautaire
Selon l’avocat général Bobek, l’interdiction de la double peine applicable dans l’espace Schengen peut faire obstacle à une extradition vers un État tiers

In C-519/19 Ryanair v DelayFix, the CJEU held yesterday. The case echoes the facts in Happy Flights v Ryanair at the Belgian Supreme Court.

Following inter alia  CJEU Jana Petruchova, the (absence of) impact of substantive European consumer protection rules on the consumer section of European private international law is now fairly settled. The separation between the two sets of laws seems quite clear for the application of the consumer section itself.

However under A25 BIa, EU consumer law might still play a role in those circumstances where the conditions of the consumer Section are not met (dual-use contracts, contracts for transport (such as here) etc.) yet where one of the parties may qualify as a consumer under substantive EU consumer protection law.

A core issue of contention is the consideration of the EU unfair terms in consumer contracts Directive 2019/2161 and its predecessor Directive 93/13 , which was applicable in Ryanair v DelayFix. Via Article 25’s lex fori prorogati rule on substantive validity for choice of court, the Directive plays an important role.

In the case at issue at the CJEU, Passenger Rights, now DelayFix, a company specialised in the recovery of air passengers’ claims under the EU Regulation on air passenger rights, has requested the courts at Warsaw to order Ryanair,  to pay EUR 250 in compensation, a passenger on the relevant flight having assigned DelayFix their claim with respect to that airline.

The CJEU first of all looks at the issue from the limited extent of what is actually materially regulated by A25: the requirement of ‘consent’ (as well as the formal expression of that consent. It holds, not surprisingly, that in principle of course a jurisdiction clause incorporated in a contract may produce effects only in the relations between the parties who have given their agreement to the conclusion of that contract (referring ex multi to Refcomp).  In the case at issue,  a jurisdiction clause incorporated in the contract of carriage between a passenger and that airline cannot, in principle, be enforced by the latter against a collection agency to which the passenger has assigned the claim.

However, at 47, there is a gateway for the choice of court nevertheless to extend to third parties, namely when the third party not privy to the original contract had succeeded to an original contracting party’s rights and obligations, in accordance with national substantive law. At 49, referring to A25(1), that law is the lex fori prorogati. Here: Irish law.

Recital 20 BIa in fact instructs to include the lex fori prorogati’s conflict of laws rules (in other words: an instruction for renvoi) to be part of the referral. In the aforementioned Belgian SC ruling in Happy Flights, renvoi was simply ignored. Here, the CJEU does not mention renvoi, even if it does not expressly exclude it.

The CJEU does point out that Directive 93/13 on unfair terms in consumer contracts of course is part of the Irish lex fori prorogati, as it is of all the Member States. In making that reference it would seem to have answered in the negative the question whether the ‘consent’ provisions of that Directive have not been superseded in the context of the ‘consent’ requirements of Article 25 Brussels Ia, as recently discussed obiter in Weco Projects.

Per previous case-law, the capacity of the parties to the original agreement at issue is relevant for the application of the Directive, not the parties to the dispute.  Further, a jurisdiction clause, incorporated in a contract between a consumer and a seller or supplier, that was not subject to an individual negotiation and which confers exclusive jurisdiction to the courts in whose territory that seller or supplier is based, must be considered as unfair under Article 3(1) of Directive 93/13 if, contrary to requirement of good faith, it causes significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer. Reference is made in particular to Joined Cases C‑240/98 to C‑244/98 Océano Grupo (at 58).

It will be up to the national courts seised of a dispute, here: the Polish courts, to draw legal conclusions from the potential unfairness of such a clause (at 61). DelayFix therefore are not quite yet home and dry.

Geert.

European Private International Law, 3rd ed. February 2021, Chapter 2, para 2.240.

The European Order for Payment (EOP, Regulation (EC) No 1896/2006), the European Small Claims Procedure (ESCP, Regulation (EC) No 861/2007) and the European Account Preservation Order (EAPO, Regulation (EU) No 655/2014) applied for several years in Romania without any specific implementation legislation being adopted to coordinate their interaction with the national procedural rules.

As generally regulations do not require any specific additional legislative action from the Member States to be applied at national level, Romanian authorities relied on the principle of direct application of the three instruments. However, the referral to national procedural rules in several articles of the regulations (e.g. existence of an appeal mechanisms, costs of proceedings, assistance) as well as reliance on national rules when no specific provisions are contained in the European legislation (Article 26 EOP, Article 19 ESCP, and Article 46 EAPO) can create disparities and give rise to variations in the application of these instruments even within one Member State.

Recently, this direct application approach changed. In December 2019 the Romanian Government and, subsequently, the Parliament initiated acts to amend national laws. These legislative amendments were aimed at facilitating the application of these regulations and clarifying particular procedural aspects in order to ease judicial cooperation between Member States for the EOP, ESCP, and EAPO procedures. The new national rules dedicated to the EOP, ESCP, and EAPO focus mainly on issues of jurisdiction of Romanian courts, identifying the national authorities involved in the application of the Regulations, and establishing the applicable procedural fees.

EAPO: A Guided Implementation Process to Avoid an Infringement Procedure

The amendment of national legislation regarding the EAPO has been triggered by the initiation of an infringement procedure by the European Commission. A letter of formal notice (letter C(2019) 6729 final) was sent to the Romanian authorities in 2019 – more than two years since the regulation became applicable – because the Government failed to communicate relevant information for the application of the regulation as required by Article 50 EAPO Regulation.

Following this formal notice, the Romanian Government acted expediently to avoid a possible referral to the Court of Justice of the European Union in an infringement procedure. The Government’s Note proposing the legislative amendment as well as in the Statement of Reasons for the law approving the Government Emergency Ordinance containing implementation provisions refer to this risk as well as that of hefty fines for the national budget due to non-compliance with EU law. Based on these reasons the Government moved quickly in December 2019 to adopt an Emergency Ordinance – Ordonaţa de urgenţă nr. 75 din 13 decembrie 2019 pentru completarea Ordonanţei de urgenţă a Guvernului nr. 119/2006 privind unele măsuri necesare pentru aplicarea unor regulamente comunitare de la data aderării României la Uniunea Europeană, precum şi pentru modificarea Ordonanţei de urgenţă a Guvernului nr. 80/2013 privind taxele judiciare de timbre.

Based on the Government’s Note, the Emergency Ordinance No. 75/2019 was meant to address information that had not been clearly provided for the application of the EAPO in Romania. This concerned:

• the methods that could be used to obtain account information regarding a debtor holding a bank account in Romania (Article 50(1)(c) EAPO Regulation) and
• which courts were competent to handle EAPO requests, the available means of appeal, the national authority competent to receive requests for obtaining account information about bank accounts and to provide such information, and the methods applicable to receive this information (by Romanian and authorities in other Member States).

The new article Article I8 of the Government Emergency Ordinance No 119/2006 regarding certain measures necessary for the application of some Community Regulations after the date of accession of Romania to the European Union explicitly addresses the information requirements contained in Article 50(1) letters (a)-(d), (l) and (m) EAPO Regulation.

Based on this legislative amendment, the courts competent to issue Preservation Orders in Romania based on an authentic instrument would be the ones having jurisdiction to handle the claim at first instance (Article 1(1) Government Emergency Ordinance No 119/2006 in conjunction with Articles 6(4) EAPO Regulation). Further, any appeal against a decision to reject in whole or in part an application for a Preservation Order would be handle by the hierarchical higher court to the one that issued the initial decision (Article 1(2) Government Emergency Ordinance No 119/2006 in conjunction with Articles 21 EAPO Regulation). This means that different type of courts can have jurisdiction to receive an application for an EAPO based on the threshold of the claim. These would be either the district courts (judecătorii) for requests of up to 200.000 RON (approx. 42.000 euros) or the general courts (tribunale) for applications above this threshold. Similarly, any request to revoke or modify a Preservation Order based on Article 31(1) EAPO Regulation will be handled by the hierarchical higher court to the one that issued it (Article 1(3) Government Emergency Ordinance No 119/2006).

The remedies available to the debtor against the enforcement of a Preservation Order according to Article 34 EAPO Regulation will rest with the enforcement court (Article 1(4) Government Emergency Ordinance No 119/2006). Again any appeal against the remedies available to the creditor and the debtor based on the provisions of Articles 33-35 EAPO will lie with the hierarchical higher courts to the courts that issued the Preservation Order (Article 1(3)-(4) Government Emergency Ordinance No 119/2006 in conjunction with Articles 33(1), 34 and 35 EAPO Regulation). In such circumstances, the appeal would have to be introduced within a period of 30 days from the date of communication of the decision challenged, unless the law establishes otherwise. This last part gives rise to some uncertainty, especially for foreign parties which are presumed not to be familiar with the Romanian legal system and its particularities. Hence, relying on a local practitioner would remain necessary although representation is not mandatory in the EAPO procedure (Article 41 EAPO Regulation).

Any request to obtain information and identify a debtor’s potential bank accounts in Romania according to Article 14 EAPO Regulation will be dealt with by the National Union of Judicial Enforcement Officers (Uniunea Naţională a Executorilor Judecătoreşti, UNEJ). The National Union of Judicial Enforcement Officers is the designated information authority competent to provide this information upon request. For this purpose, the Union has been granted direct and free of charge access to the Ministry of Public Finance IT system – PatrimVen (Article 2 Government Emergency Ordinance No 119/2006).

With regard to procedural costs related to the issuance of a European Account Preservation Order, the court fees are fixed at 100 RON (approx. 21 euros) (Article 11(1) Government Emergency Ordinance No 80/2013 regarding the judiciary stamp fees). The EAPO court fee is similar to fees applicable in other national procedures concerning protective measures. Its low value is certainly convenient, especially for high-value EAPOs.

EOP and ESCP: Implementation Legislation A Decade into their Application

The EOP and ESCP have been the testing ground for direct application of ‘second-generation’ European regulations into national procedure. This has led to interpretation difficulties (e.g. amount of court fees to be paid, appeal and review mechanisms, lack of legal assistance) and mixed results according to previously published research findings (e.g. further Luxembourg Report on Mutual Trust and Free Circulation of Judgments and Cross-Border Debt Recovery in the EU). During this initial period, the only legislative provision implicitly referring to these instruments was Article 636 New Code of Civil Procedure. The article states that European enforceable titles for which the exequatur procedure is not required are immediately enforceable in Romania without any preliminary formality.

The legislative change for these two European procedures came in July 2020. A law – Law No 132 of 15 July 2020 – was adopted by the Parliament. The law amended one more time the Government Emergency Ordinance No 119/2006 regarding certain measures necessary for the application of some Community Regulation after the date of accession of Romania to the European Union and the Government Emergency Ordinance No 80/2013 regarding the judiciary stamp fees. Two new articles were added to facilitate the application of the EOP and ESCP Regulation in Romania – Articles I9 and I10 (see Statement of Reasons). As for the EAPO Regulation, these articles address only some of the elements that require coordination between the European rules and national legislation, namely: the requirements of Article 29(1)(a)-(b) EOP Regulation and Article 25(1)(a), (c) and (g) ESCP Regulation

For the EOP, the jurisdiction will rest with the courts that would be competent to handle the claims on the merits at first instance (Article 1 Government Emergency Ordinance No 119/2006). These would be either the district courts (judecătorii) or the general courts (tribunale). The district courts have competence for claims up to 200.000 RON (approx. 42.000 euros). The claims above this threshold will be handled by the general court as first instance court.

Any review request in the framework of the EOP Regulation will be examined by the same court that issued the EOP but in a panel of two judges (Article 2 Government Emergency Ordinance No 119/2006). Although this legislative step clarifies some organisational aspects of the review proceeding, it does not solve how the review should be handled based on various national means (see here also). The national procedures according to which the review should be handled are broader in scope than the provisions of Article 20 EOP Regulation and require some legal knowledge. This keeps the proceeding rather complex for a first-time user with little legal training.

With regard to the ESCP, the Romanian courts competent to issue the ESCP judgment are the district courts (judecătoriile) according to Article 2(1) Government Emergency Ordinance No 119/2006. The ESCP judgment will be subject only to appeal before the competent general court (tribunal) and will have to be filed within 30 days from the moment the judgment was communicated to the party (Article 2(2) Government Emergency Ordinance No 119/2006 in conjunction with Article 17 ESCP Regulation).

A request for review – as for the EOP procedure – will rest with the court that issued the ESCP judgment. However, unlike for the EOP, the provisions related to the ESCP do not expressly indicate that the review will be handled by a panel of judges. This difference in the drafting of the legal text is regrettable as it gives rise to potential confusions and interpretations per a contrario given the special nature of the rules.

Both EOP and ESCP provisions related to the competent courts to receive the application forms do not change the practice of the Romanian courts but confirm the already existing interpretation followed by practitioners.

For court fees, the Romanian legislator opted for a fixed court fee as for similar national procedures (ordonanţa de plată and procedura cu privire la cererile de valoare redusă). Hence, an application for an EOP will cost the applicant 200 RON (approx. 41 euros) (Article 6(2) Government Emergency Ordinance No 80/2013 regarding the judiciary stamp fees). While the ESCP claims will vary between 50 RON (approx. 10,5 euros) for claims below 2.000 RON (or their equivalent) and 200 RON (approx. 41 euros) for claims above this threshold (Article 6(2) Government Emergency Ordinance No 80/2013). The procedure following opposition to an EOP and review requests will involve an additional fixed fee of 100 RON (approx. 21 euros) (Article 6(21) Government Emergency Ordinance No 80/2013 regarding the judiciary stamp fees. This legislative action is welcomed as it puts an end to the different approaches followed by Romania courts. These varied between a fixed cost identical to the equivalent national procedures and a court fee based on the value of the claim submitted.

The most important legislative development related to the application of the ESCP concerns the implementation of specific provisions regarding the assistance to the provided to the parties (Article 11 ESCP Regulation).

According to Article 1 Government Emergency Ordinance No 119/2006, practical assistance for filling in the Claim Form (Form A) will be provided by the lawyers designated for this purpose by each local Bar Association for periods of three months (on a rotation basis). The list of lawyers to provide legal assistance and their contact details will be published online by the Union of National Bar Associations in Romania and each local Bar Association. This list is also to be communicated to each district court for publication at its premises as well as online on the website of the Romanian Courts. Finding the necessary details will remain certainly more challenging for foreign users as the information on the websites is generally available only in Romanian.

The costs for this assistance will be fixed based on a protocol of understanding establishing the representation fees for ex officio legal representation. No fee will have to be paid by the party receiving assistance in accordance with Article 11 ESCP Regulation. Although a welcomed legislative clarification such lists do not appear to have been published for the time being with the indicated national websites or their whereabouts are not easy to spot (even for a legally trained subject). Given that the legislative changes were only introduced four months ago, practical application and technical adjustments may take some time to be calibrated by the local Bar Associations and district courts.

These legislative steps undertaken by the Romanian authorities are certainly a good development for facilitating the interaction between the European and national procedural rules and the application of the EOP, ESCP, and EAPO. Domestic rules have an important influence on the manner in which the European procedures are applied and represent a key prerequisite for certainty, visibility of the procedures, and their subsequent success.

The Court of justice delivered today its judgment in case C‑519/19 (Ryanair DAC v DelayFix, formerly Passenger Rights sp. z o.o.), which is about jurisdiction clauses, assignment of passenger claim and unfair terms:

“Article 25 of Regulation (EU) No 1215/2012 […] must be interpreted as meaning that, in order to contest the jurisdiction of a court to hear and determine an action brought for compensation under Regulation (EC) No 261/2004 […]  establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, […] and against an airline, a jurisdiction clause incorporated in a contract of carriage concluded between a passenger and that airline cannot be enforced by the airline against a collection agency to which the passenger has assigned the claim, unless, under the legislation of the Member State whose courts are designated in that clause, that collection agency is the successor to all the initial contracting party’s rights and obligations, which it is for the referring court to determine. Where appropriate, such a clause, incorporated, without having been subject to an individual negotiation, in a contract concluded between a consumer, that is to say, the air passenger, and a seller or supplier, that is to say, the airline, and which confers exclusive jurisdiction on the courts which have jurisdiction over the territory in which that airline is based, must be considered as being unfair within the meaning of Article 3(1) of Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts”.

Source: http://curia.europa.eu/juris/document/document.jsf?text=&docid=233867&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=14547437

Dalloz actualité publie un premier bilan du ministère de la Justice sur sa loi de programmation qui évoque notamment les cours criminelles, la justice civile, les nouvelles peines et la construction de prison. Trois annexes sont dédiées à l’outre-mer, aux femmes en détention et aux modules de confiance.

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Witten by Abubakri Yekini, Lecturer at Lagos State University, Nigeria.

 

The idea of economic integration is not new to Africa. It is a phenomenon that has been conceived as far back as the 1960s when many African countries gained independence. In 1980, the Organisation of African Unity (now African Union) came up a blueprint for the progressive development of Africa: the Lagos Plan of Action for the Economic Development of Africa, 1980–2000. However, the first concrete step towards achieving this objective was taken in 1991 when the African Heads of State and Government (AHSG) signed the treaty establishing the African Economic Community (AEC) (Abuja Treaty) in Nigeria.  One of the operational stages of the AEC was the creation of a Continental Free Trade Area by 2028. In 2013, the AHSG further signed a Solemn Declaration during the 50th anniversary of the African Union. The Declaration sets another blueprint for a 50-year development trajectory for Africa (Agenda 2068). Item C of that Declaration is a commitment from the Member States to the speedy implementation of the Continental Free Trade Area. At last, this is now a reality.

 

The AfCFTA was adopted 5 years later on 21st March 2018 and it became effective on 30th May 2019. It was expected that trading activities under this framework would commence in July 2020. The ongoing global pandemic and shutdown of national economies frustrated the plan. The Agreement is now scheduled to take effect from 1st January 2021.

 

Africa seems to be showing some seriousness with the AfCFTA compared to previous attempts. Concerns were initially expressed when Nigeria was reluctant to sign the Agreement (Ghana Ports and Harbours Authority, 2020; Mizner, 2019; Financial Times, 2019). Such concerns cannot be dismissed considering that Nigeria is the biggest economy in Africa and has a population of about 200 million people. Happily, the Nigerian Federal Executive Council formally approved the ratification of the Agreement on 11th November 2020(Government of Nigeria, 2020). As at today, all the African countries are members of the AfCFTA except Eritrea. We can safely say that AfCFTA has come to stay.

 

According to the United Nations Economic Commission for Africa, the AfCFTA will be the biggest single market, with a GDP of $2.5 trillion and a whooping population of 2.5 billion people across 55 countries (UNECA, 2020). By 2050, it is also projected that Africa’s population will be 2.5 billion; contributing about 26% of the world’s working-age population (UNECA, 2020). As expected, AfCFTA has been generating interesting debates. Some legal commentators have penned some thoughts on the Agreement largely from international economic/trade law perspectives (Magwape, 2018; Onyejekwe and Ekhator, 2020; Akinkugbe 2019). Only a few private international scholars have written on the framework (Theunissen, 2020; Uka, 2020).

 

Nigeria’s ratification of AfCFTA indicates that AfCFTA will become effective in Nigeria from next year, although Nigerian law requires AfCFTA to be domesticated (Abacha v. Fawehinmi [2000] 6 NWLR (Pt 660) 228). AfCFTA is projected to have significant impacts on the Nigerian economy. Although Nigeria’s trade in goods and services to other African countries stands at 19.6% (export) and 2.13% (import) as indicated in the Q4 2019 statistic (National Bureau of Statistics, 2019), it is expected that this should witness a significant growth when AfCFTA becomes effective. More intra-African trading activities would potentially lead to the increase in cross border litigation in Africa generally and Nigeria in particular. The relevant question is to what extent does Nigerian private international law support trade liberalisation agenda of AfCFTA?

 

The AfCFTA has a dispute settlement mechanism modelled along the WTO system. This affects only disputes between the Member States. The Agreement is conspicuously silent on cross-border disputes amongst private citizens and the divergent systems of law operating in the Member States. It thus appears that for the meantime, the divergent national private international rules which are obsolete in many Member States will continue to govern cross-border disputes. To what extent this can support the objective of intra-African trade facilitation is left to be seen.

 

For Nigeria, it is time we revamped the Nigerian private international law. As a prominent member of AfCFTA, Nigeria should take a special interest in the progressive development of private international law through multilateral platforms both under the AfCFTA and other global bodies such as the Hague Conference. The current lackadaisical attitude to multilateral private international rules needs to change. For instance, Nigeria has neither joined the Hague Conference nor acceded to any of its conventions. The Evidence and Service Conventions would have delivered a more efficient international civil procedure for Nigeria. Also, the 2005 Choice of Court Convention (and hopefully the 2019 Judgments Convention) would give Nigerian judgments wider circulation and respect. At the Commonwealth level, Nigeria did not pay any significant role in the making of the 2017 Commonwealth Model Law on Judgments and has no intention of domesticating it. The point we are making is that Nigeria needs to be responsive to international calls for the development of private international law, not just from AfCFTA when such is made, but also ongoing global private international law projects.

 

To reap the benefit of AfCFTA, the Nigerian justice system must be made to be attractive to foreign businesspersons. No doubt, foreign litigants will be more interested in doing business in countries that have in place an efficient, effective and credible legal system that enforce contracts and dispose of cases timeously. Nigeria will be competing with countries such as South Africa, Egypt, Rwanda and Ghana. In one recent empirical research carried out by Prof Yemi Osibajo, the current Vice President of Nigeria, on the length of trial time in civil cases in Lagos State, it takes an average of 3.4 years to resolve a civil and commercial transaction in Nigeria. A further period of 2.5 and 4.5 years is required if the matter proceeded to the Court of Appeal and the Supreme Court respectively (Osinbajo, 2011). Excessive delays in dispute resolution may make Nigeria unattractive for resolving business disputes. The other side of the coin is the enforcement of contracts, especially jurisdiction agreements. Foreign litigants may be persuaded to trade with Nigeria if they are assured that foreign jurisdiction clauses will be respected by Nigerian courts. The current approach is not too satisfactory as there are some appellate court decisions which suggest that parties’ choice may not be enforced in certain situations (Okoli, 2020b). Some of the local statutes like the Admiralty Jurisdiction Act which grants exclusive jurisdiction over a wide range of commercial matters may equally need to be reviewed.

 

Jurisdiction and judgments are inextricably linked together. Nigerian litigants should now be concerned about how Nigerian judgments would fare in other African countries. Our jurisdictional laws need to be standardised to work in harmony with those of foreign countries. Recent decisions indicate that Nigerian courts still apply local venue rules – designed to determine which judicial division should hear a matter (for geographical and administrative convenience) within a State in Nigeria – to determine jurisdiction in matters involving foreign element; consider taking steps to release property as submission; may even exercise jurisdiction based on temporary presence (Okoli, 2020a; Okoli, 2020b; Bamodu, 1995; Olaniyan, 2012; Yekini, 2013). It is doubtful if judgments from these jurisdictional grounds will be respected in other African countries, the majority of whose legal systems are not rooted in common law. In the same vein, Nigerian courts will recognise and enforce judgments from other African countries notwithstanding that Nigeria has not extended its statutory enforcement scheme to most African countries (Yekini, 2017). Nigerian judgments may not receive similar treatment in other African states as our reciprocal statute can be misconstrued to mean that their judgments are not enforceable in Nigeria without a treaty. Nigerian government should either discard the reciprocity requirement or conclude a treaty with other African states to guarantee the enforcement of Nigerian judgments abroad.

 

Boosting investors’ confidence requires some assurances from the Nigerian government for the respect of rule of law. The government’s rating is not too encouraging in this regard. In its 2020 Rule of Law Index, the World Justice Project ranked Nigeria 108 out of 128 countries surveyed (World Justice Project, 2020). This should not surprise practitioners from Nigeria.  For instance, the Nigerian government does have regard for ECOWAS judgments although court sits in Abuja, Nigeria’s Federal Capital Territory. Such judgments are hardly recognised and enforced thereby contravening art 15(4) of the ECOWAS Revised Treaty which stipulates that judgments of the court shall be binding on Member States (Adigun, 2019).

 

Lastly, AfCFTA should spark the interest of Nigerian practitioners, judges, academia, policymakers and other stakeholders in private international law matters. Nigeria cannot afford to be a spectator in the scheme of things. It should leverage on its status in Africa to drive an Afrocentric and global private international law agenda. More awareness should be created for the subject in the universities. Government and the business community should fund various programmes and research on the impact of AfCFTA, and subsequent frameworks that will be rolled out to drive AfCFTA, on the Nigerian legal system, its economy and people.

 

 

 

 

 

 

Jonathann Daval comparaît devant la cour d’assises de Haute-Saône, à Vesoul, pour le meurtre de son épouse Alexia Daval, en 2017. Un meurtre qu’il a fini par reconnaître trois mois après les faits. Il encourt la réclusion criminelle à perpétuité (C. pén., art. 224-1).

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Non-lieu à renvoi

Nationalité

Juridictions de l'application des peines - Circulation routière

Droit international privé

Lietuvos geležinkeliai / Commission
Concurrence
Le Tribunal confirme la décision de la Commission constatant l’abus de position dominante de la société nationale des chemins de fer de Lituanie sur le marché lituanien du fret ferroviaire

Syndicat CFTC
SOPO
Une convention collective nationale peut réserver aux seules mères un congé supplémentaire de maternité

The Administrative Court of the City of Sofia, Bulgaria, has recently submitted a request for a preliminary revolving around the recognition of a foreign birth certificate issued by another EU Member State (Case C-490/20):

The case concerns a refusal of a municipality in Sofia to issue a Bulgarian birth certificate to a child of two female same sex mothers of Bulgarian and UK nationality who entered into a civil marriage in Gibraltar, UK. The child was born in Spain, where a birth certificate  was issued on which it was recorded that mothers of the child were both a Bulgarian national, designated ‘Mother A’, and a UK national, designated ‘Mother’, both persons being female. The municipality refused to issue the requested birth certificate because the applicants did not point out who was the biological mother, intending most probably to issue the certificate only for one mother. Bulgaria is one of the few EU Member States without access to either same sex marriage or any type of civil partnership.

The Bulgarian mother brought legal proceedings before the Administrative Court of the City of Sofia against the refusal by the Sofia municipality, where the court referred  the following questions to the CJEU for a for preliminary ruling:

1. 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?

2. 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 the 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?

3. 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?

4. 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?

 

Thank you, Boriana Musseva, for the tip-off!

 

Dimitry Kochenov (University of Groningen) and Uladzislau Belavusau (T.M.C. Asser Institute) have posted on After the Celebration: Marriage Equality in EU Law post-Coman in Eight Questions and Some Further Thoughts on SSRN.

The abstract reads:

This article provides a detailed critical analysis of the case of Coman, where the Court of Justice of the EU clarified that the meaning of the term ‘spouse’ in Directive 2004/38 was gender-neutral, opening up the door for same-sex marriage recognition for immigration purposes all around the EU, thus destroying the heteronormative misinterpretations of the clear language of the Directive practiced in a handful of Member States. The state of EU law after Coman is still far from perfect, however: we underline a line of important questions which remain open and which the Court will need to turn to in the near future to ensure that marriage equality in moves beyond mere proclamations in the whole territory of the Union. In particular, we: (1) Question the effectiveness of the Commission as an effective guardian of the Treaties, puzzled by its failure to make basic EU citizenship rights available to EU citizens who are in a same-sex relationship. (2) Interrogate the deficiencies of single-purpose marriage recognition and question the speed of the eventual spill-overs of such recognition into other fields outside immigration per se. (3) We demonstrate that Coman is a textbook example of the free-movement paradigm of non-discrimination at work, which is, besides obviously being accepted in EU law, also deeply questionable, since those who do not move within the internal market might also want to have a family. (4) Issues of coherence among different instruments of secondary EU law equally arise, (5) just as the issue of ‘genuine residence’, which Coman brings up, whatever this might mean in the 21st century with its fast pace of life and increasing numbers of people – not all of them heterosexual – living between countries and homes. (6) Numerous questions arise as a result of the natural conflict, which is omnipresent, between principles of EU law and private international law approaches. (7) The CJEU’s language of ‘strengthening family life’ is both dangerous and out of place, in our respectful opinions, informed by the desire to keep the Court out of Europeans’ (and Americans’, as in Coman) spousal beds. (8) The last issue we raise is the question of ‘what’s next?’ for others who are still arbitrarily persecuted by EU and national law and for whom (and how many of them) they love. Once the principle is established that states should not interfere with our sexuality without imperative reasons of the public good – what the LGBTQ community has been subjected to abundantly and still suffers from, and to which Coman is a wonderful illustration – the same test is bound to apply in other contexts, especially polygamy and other persecuted or ‘non-recognised’ loving relationships. But first we turn back to the facts and the context of the case, and praise the Court for a significant achievement, which righted the failure of the Commission to ensure the basic applicability of the Directive 2004/38 to gay European citizens.

The paper is forthcoming in the Maastricht Journal of European and Comparative Law.

KCA Deutag UK Finance PLC, Re (In the Matter of the Companies Act 2006) [2020] EWHC 2977 (Ch) is in most part a classic scheme of arrangement sanctioning hearing, with the scheme proposed by a UK-incorporated company with COMI undisputedly there, too. See a range of posts on the blog for the classic jurisdictional analysis.

What is slightly out of the ordinary is the contractual commitment by the creditors not to oppose the scheme in foreign jurisdictions.  Snowden J, at 33:

In this case, two things give me that comfort. The first is that there was an overwhelming vote by Scheme Creditors in favour, and a very large number of such creditors entered into a lock-up agreement which bound them contractually to support the Scheme and not to do anything to undermine it. It is very difficult to see how such creditors who contractually agreed to support the Scheme and/or who voted in favour could possibly be allowed to take action contrary to the Scheme in any foreign jurisdiction, and the number and financial interests of those who did not vote in favour is comparatively very small indeed. That alone is sufficient to demonstrate to me that the Scheme is likely to have a substantial international effect and that I would not be acting in vain if I were to sanction it.

I would intuitively have felt quite the opposite, although detail is lacking (e.g. was the commitment given as a blank cheque before the details of the scheme were known): such contractual commitment even if valid under (presumably; no details are given) English law as the lex contractus of the commitment, could serve to undermine international effectiveness. For I would not be surprised if creative counsel on the continent could find a range of laws of lois de police or ordre public character, to try and object to contractual commitment to sign away the right to oppose.

Geert.

(Handbook of) EU Private International Law, 2nd edition 2016, Chapter 2, Chapter 5. Third edition forthcoming February 2021.

Scheme of arrangement, sanctioned
Company UK incorporated, & UK COMI
Number of creditors domiciled ex-UK
Novelty is that these contractually committed to not opposing the scheme in foreign jurisdictions
Expert evidence of enforceability in US, DE, NOR, RUS, Oman also considered https://t.co/mi8ruTIgPR

— Geert Van Calster (@GAVClaw) November 6, 2020

Dalloz Actualité publie l’avant-projet de loi « confortant les principes républicains », dans sa version transmise au Conseil d’État. Ce texte long, 57 articles, et foisonnant sera présenté en conseil des ministres le 9 décembre. Les débats parlementaires devraient être animés, ce texte touchant à de nombreuses libertés.

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