Agrégateur de flux

The International Commercial Chamber of the Court of Appeal of Paris (France) delivered a few days ago (27 October 2020) a decision (RG 20/01368) on commercial agents.  

Summary:

“The ICCP -CA was seized by an appeal against a decision of the Paris Commercial Court, which ruled that a commercial agent was liable of a serious breach, excluding the termination indemnities provided for in Articles L.134-11 et seq. of the French Commercial Code.

The ICCP -CA overturned this decision, ruling that a serious breach makes it impossible to maintain the contractual relationship; and that cannot be qualified as serious a breach of which the principal was aware well before the termination of the contract and which it tolerated without blaming the agent or warning or advising of the risk that this breach might have on the continuation of the agency contract. 

The Court thus held that the breach allegedly committed by the commercial agent in 2007, relating to the allegedly faulty registration of the disputed trademark in China, discovered in 2013, and followed by a retrocession agreement in 2014, cannot be qualified as serious enough to deprive the termination notified on 22 September 2016 of any indemnity .

The Court also held that the grievances subsequently raised by the principal were admissible even if they were not included in the letter of termination as they predated the termination; but in the present case, their existence and seriousness were not established and did not amount to a general lack of loyalty”.

27-octobre-2020-ccip-ca-rg-2001368Download

In May 2019 a seminar took place in Madrid on the occasion of the 90th anniversary of UNIDROIT. A book has followed edited by Alfonso Luis Calvo Caravaca (Universidad Carlos III, Madrid) and Ignacio Tirado Martí (Universidad Autónoma, Madrid, current Secretary General of UNIDROIT), with contributions in English and Spanish from Lena Peters, Alfonso Luis Calvo Caravaca and Javier Carrascosa González, Marta Requejo Isidro, Carlos Fernández Liesa, Celia Caamiña Domínguez, Anna Veneziano, Teresa Rodríguez de las Heras, and William Brydie-Watson, recalling some of the main achievements of the organization. The introductory words by Prof. Calvo summarize his intervention a the seminar:

UNIDROIT emerged within the League of Nations in 1926. Its cradle is the origin and meaning of its mandate. The spirit of cooperation between nations, as a method of overcoming the differences that had plagued much of the world during the First World War, had its corollary in bringing the different legal systems closer together and promoting socio-economic exchanges between citizens. of the world. In large part, the idea that was beating was none other than the consideration of commercial relations as the axis on which to build a world in peace.

The founding ideas remain in the DNA of the institution, which began as predominantly European (since the Great War had been predominantly European) and gradually became global. Currently, UNIDROIT gathers 63 countries, including all members of the G-20 and covering 80% of the world’s population. There has never been a better time for the unification of private law. UNIDROIT is part of the list of international organizations known as “Las Tres Hermanas” (the Three Sisters), together with the Hague Conference on Private International Law and the United Nations Commission for International Trade Law. The three institutions are currently developing an almost frenetic activity of great practical and academic relevance. This relationship, synergistic and sustained over time, entails a reciprocal benefit that we aspire to reinforce with this initiative, which we hope will be followed by many others.

For more information, see here.

Le 18 octobre 2020, le Conseil des régions, qui réunit les président.es des régions de France, a publié une motion pour « réaffirmer avec force leur volonté de défendre vigoureusement le siège du Parlement européen en France, à Strasbourg ». Aucune session ne s’est en effet tenue dans la métropole alsacienne depuis le mois de mars, en raison de la covid-19, ce qui ravive le débat ancien relatif au déplacement du siège à Bruxelles.

en lire plus

Veselības ministrija
Sécurité sociale des travailleurs migrants
Le refus, par l’État membre d’affiliation d’un patient, d’accorder une autorisation préalable pour le remboursement des coûts de soins de santé transfrontaliers lorsqu’un traitement hospitalier efficace est disponible dans cet État mais que les croyances religieuses de l’affilié réprouvent le mode de traitement utilisé instaure une différence de traitement indirectement fondée sur la religion

Commission / Italie e.a.
Aide d'État
L’avocat général Tanchev recommande à la Cour de rejeter le pourvoi formé par la Commission contre l’arrêt du Tribunal relatif aux mesures adoptées par un consortium de banques italiennes pour soutenir l’un de ses membres

We are happy to announce that Alina Ontanu, of the University of Rotterdam, has joined the team of the EAPIL blog! Check her first post, which is out today.

As indicated in the inaugural issue of the EAPIL Newsletter, we wish to further expand the team. Interested EAPIL members are encouraged to get in touch with the managing editor, Pietro Franzina, at pietro.franzina@unicatt.it.

Applications from scholars or practitioners willing to report about developments in countries other than the countries currently covered by the team are especially welcome (the team is now covering Cyprus, France, Germany, Greece, Italy, Luxembourg, the Netherlands, Poland, Romania, and Spain).

The Blog is also seeking to appoint a social media manager, to improve and consolidate the Blog’s presence on LinkedIn, Twitter etc. Those applying for editor are encouraged to state whether they would also be happy to take care of the latter aspects.

On 6 November 2020 (13:30 – 16:30 CET) the Royal Netherlands Society of International Law (KNVIR) will be holding its Annual Meeting online via Zoom. This year the invited legal experts will be focusing on the theme of adaptability of (private) international law to the digital environment.

In their presentations Marjolein Busstra, Wieteke Teeuwen (Dutch Ministry of Foreign Affairs), Ybo Buruma (Netherlands Supreme Court and Radboud University Nijmegen), and Jerker B. Svantesson (Bond University; Swedish Law & Informatics Research Institute, Stockholm University, Sweden and Masaryk University) will be discussing whether the concepts and ideas developed in the ‘predigital era’ still fit the digital world. In doing so the speakers will analyse whether international law (both public and private) is ready for the digital era or whether law has been a rather ‘fragmented follower of developments’ and we should be fundamentally rethinking a number of notions and approaches.

Marjolein Busstra and Wieteke Teeuwen will focus on International Law in the Context of Cyber Operations. Ybo Buruma will look at internet from the perspective of International Law and Cyberspace – Issues of Sovereignty and the Common Good. Finally, Jerker B. Svantesson will be discussing whether International Law [Is] Ready for the (Already Ongoing) Digital Age: Perspectives from Private and Public International Law.

Registration is open until 3 November 2000 at info@knvir.org.

The reports (preadviezen) prepared by the legal experts have been published in November by Asser Press under the title International Law for a Digitalised World. You can find more information about this here.

Action civile - FNAEG

Chambre de l'instruction

Entreprise en difficulté (loi du 26 juillet 2005)

Bundesrepublik Deutschland (Détermination des taux des péages pour l'utilisation d'autoroutes)
Fiscalité
Les coûts liés à la police de la route ne peuvent pas être pris en compte pour le calcul des péages pour l’utilisation du réseau routier transeuropéen par les poids lourds

Shenzhen Senior Technology Material Co Ltd v Celgard, LLC [2020] EWCA Civ 1293 concerns an appeal against service out of jurisdiction (the judgment appealed is [2020] EWHC 2072 (Ch)). Celgard allege that the importation and marketing by Senior of battery separator film involves the misuse of Celgard’s trade secrets.

Senior (of China) contend that the judge fell into error in concluding, first, that Celgard (incorporated in Delaware) had established a serious issue to be tried (here part of the jurisdictional threshold) assuming that English law applies to its claims and, secondly, that England is the proper forum to try the claims. As to the latter the core argument is that in limiting its claims to remedies in respect of acts in the UK, Celgard could not establish the requisite degree of connection to England. As for the former, they argue the law applicable to Celgard’s claims is Chinese law, which would count against jurisdiction.

Strategically, Celgard’s case against Senior is not based on breach of the NDA applicable between Celgard and one of its former employees,  Dr Zhang who, when he left Celgard, told its then COO that he was going to work for General Electric in California, which does not compete with Celgard in the field of battery separators. It later transpired that he had in fact joined Senior in China, where he was using the false name “Bin Wang”. This element of the facts triggers the question whether Senior is liable for the acts of another, even if that other is its employee.

The Celgard – Zhang NDA is governed by the law of South Carolina, application of which would also have triggered A4(3)(b) or (c) of the Trade Secrets Directive 2016/943. Celgard do rely on the NDA as supporting its case that the trade secrets were confidential. Rather Celgard claim that Senior’s employee acted in breach of an equitable obligation. This engages Rome II,  specifically Article 6(2) because Celgard’s claims are concerned with an act of unfair competition affecting exclusively the interests of a specific competitor, namely Celgard. In such circumstances, Article 6(2) provides that “Article 4 shall apply”.

Of note is that this is one of those cases that show that Rome II applies to more than just tortious obligations: as Arnold LJ notes at 51, as a matter of English law, claims for breach of equitable obligations of confidence are not claims in tort.

Celgard’s case, accepted by Trowe J at the High Court, is that A4(1) leads to English law because the ‘direct damage’ (per Rome II and CJEU Lazard indirect damage needs to be ignored) caused by the wrongdoing it complains of has occurred (and will, if not restrained, continue to occur) in the UK, that being the country into which the infringing goods (namely the shipment to the UK Customer and any future shipments of the same separator) have been (and will be) imported, causing damage to Celgard’s market here.

Senior’s case is that confidential information is intangible property and that damage to intangible property is located at the time and place it became irreversible (support is sought in extracts from Andrew Dickinson’s Rome II volume with OUP). At 58 ff Arnold LJ gives 7 reasons for rejecting the position. I will not repeat them all here. Of note is not just the (most justifiable) heavy leaning on the travaux but also the support sought in secondary EU law different from private international law (such as the Trade Secrets Directive 2016/943) as well as in the consistency between Brussels Ia and the Rome Regulations [on which Szpunar AG has written excellently in Burkhard Hess and Koen Lenaerts (eds.), The 50th Anniversary of the European Law of Civil Procedure]. This is not an easy proposition however given the lack of detail in Rome I and the need for autonomous EU interpretation, understandable.

The Trade Secrets Directive is further discussed at 65 ff for in A4(5) it makes importation of infringing goods an unlawful use of a trade secret “where the person carrying out such activities knew, or ought, under the circumstances, to have known that the trade secret was used unlawfully within the meaning of paragraph 3”. One of the possibilities embraced by paragraph 3 is (a), the person “having acquired the trade secret unlawfully”. Arnold LJ then asks: what law is to be applied to determine whether it was acquired “unlawfully”? Is A4(5) read together with A4(3)(a) an implicit choice of law rule pointing to the law of the place where the trade secret was acquired? Arnold LJ suggests this is not acte clair and may need CJEU clarification however not at this stage for his provisional view (with an eye on the jurisdictional threshold test) is that the Directive is not an implicit choice of law rule and that per Rome II, English law applies.

Plenty applicable law issues to discuss at the merits stage.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 4, Heading 4.6.2. Third ed. forthcoming February 2021.

 

 

Service out of jurisdiction with core role for applicable law considerations: Article 6 junto 4 Rome II, unfair competition. https://t.co/BUUjFlzY9P

— Geert Van Calster (@GAVClaw) October 9, 2020

The author of this post is Jorg Sladič, associate professor of International and European Law at the European Faculty of Law in Ljubljana.

On 11 August 2020, the Slovenian Supreme Court dismissed an appeal challenging the enforcement of an Austrian judgement compelling the judgment debtor to pay levies to the Austrian Construction Workers’ Annual Leave and Severance Pay Fund, known as BUAK (Bauarbeiter-Urlaubs- und Abfertigungskasse). The sums (claims for wage supplements regarding annual leave pay) to be paid to BUAK even though rather a matter of Austrian public law are under interpretation of Brussels I bis Regulation a civil and commercial matter (case Cpg 8/2020, ECLI:SI:VSRS:2020:CPG.8.2020).

Facts

A Slovenian judgment debtor was condemned by an Austrian court upon application of the Austrian person of public law BUAK to pay a sum of money as capital and a levy for claims for wage supplements regarding annual leave to BUAK on 3 May 2018.

The Austrian judgment-creditor moved to enforce the judgment. A Slovenian court granted a writ of execution on 16 June 2019. The judgement-debtor appealed and the appeal arrived at the Slovenian Supreme Court and raised among others a plea in law according to which such an Austrian judgement is contrary to Slovenian public policy. As it was alleged that the liabilities to be paid under the Austrian judgement were already paid under Slovenian law, the enforcement would mean a double payment of the same obligation. Anyhow, according to the judgment-debtor the said Austrian judgment is not a civil or commercial matter governed by Brussels I bis Regulation as the judgment-creditor BUAK is a legal person of public law, the obligation to be paid under the said Austrian judgement (claim for wage supplements regarding annual leave pay) is an obligation of public law or even a levy

Ruling

The Supreme Court dismissed the appeal on the following grounds.

Civil and Commercial Matters

Article 1(1) of the Brussels I Regulation provides that it applies to civil and commercial matters, but does not cover tax, customs or administrative matters or the State’s liability for acts and omissions in the exercise of State authority (acta iure imperii). Point (c) of the second paragraph of Article 1 of the Regulation explicitly states that it does not apply to social security.

As the Court of First Instance rightly explained, the question of the applicability of the Brussels I bis Regulation has already been settled by the Court of Justice in a preliminary ruling in the case of Korana, decided in 2019 (Case C-579/17). The Court of Justice clarified that the term “civil and commercial matters” must be interpreted autonomously under the regulation and that the fact that BUAK has the status of a collective body governed by public law is not decisive. The legal basis of the relationship from which the claim originates shall be decisive.

The employer’s obligation to pay wage supplements regarding annual leave claimed by BUAK before the Austrian forum is inextricably linked to the employees’ right to annual leave paid under civil law, so the nature of BUAK’s claim is also that of a right under civil law. In addition, a distinction must be made between cases where BUAK itself can issue a certificate of unpaid debts, which is an enforceable title, and cases – such as the case under consideration – where BUAK has to claim unpaid wage supplements regarding annual leave belonging to posted workers not having their habitual place of work in Austria before a court, which is also an argument in favour of the nature of the claim as being a claim of civil law.

The Court of Justice of the EU has in addition also ruled that this is not a benefit in the sense of the“social security” exception, which would also be excluded from the scope of the Brussels I bis Regulation. A social security benefit exists where it would be granted to beneficiaries on the basis of a legally defined position without any individual or discretionary assessment of personal needs. In the present case, however, the issue is the remuneration for annual leave, which in turn depends on the wage supplements, which are the legal basis for employer’s payment. Remuneration for annual leave in connection with work performed by a posted worker must be paid by the employer, even if the payment is made through the BUAK.

Decisions of the Court of Justice of the EU on preliminary questions are binding on the national courts of the Member States, therefore the applicants’ disagreement with the position of the Court of Justice cannot lead to different conclusions than those already reached by the Court of First Instance in the contested order. The Brussels I bis Regulation also applies to claims of BUAK for wage supplements regarding annual leave of posted workers, as these claims are of a civil nature.

Ordre public defense

The applicants’ plea that the levies or contributions claimed by the judgement-creditor in the enforcement proceedings referring to the Austrian judgment had already been paid in Slovenia, as a result the recognition and enforcement of the judgment of the Republic of Austria is allegedly contrary to Slovenian ordre public does not have any merits. In the appeal, the appellants (judgment-debtors) themselves claim that the Slovenian legal order does not provide for the payment wage supplements regarding annual leave of posted workers in the construction sector, as foreseen in Austrian law, therefore as a consequence the performance of obligations under the challenged judgement cannot already notionally constitute a double payment of the same claim. The mere fact that the Slovenian legal system does not legislate on a certain contribution or that it enacts contributions differently does not mean that the payment of a claim under the impugned judgment is contrary to the Slovenian ordre public. Namely, ordre public does not include all mandatory provisions of domestic law, but only those imperative legal norms and moral rules, the violation of which would endanger the integrity of the Slovenian legal order. However, the payment of contributions in favour of workers does not justify such opposition.

Conclusion

The ruling does completely comply with the judgment of the Court of Justice in the 2019 Korana case. The Slovenian and the ECJ cases both refer to Slovenian posted workers in the construction sector in Austria (Slovenia and Austria are neighbouring countries). At the economic level both cases show how the freedom of movement and freedom to provide services operate between East- and West EU. Whereas the Korana case concerned a litigation before the Labour and Social Court of Vienna, the discussed Slovenian case shows the next stage, i.e. the enforcement of Austrian rulings in Slovenia.

The only surprising element in this case is the timing. The Korana case was decided by the ECJ on 28 February 2019, the first ruling by the highest national court of another EU Member State where an enforcement of Austrian judgements based on that ruling is sought was handed down already on 11 August 2020. Considering the translation issues, the service of judicial and extrajudicial documents in civil or commercial matters between two EU Member States and then the Coronavirus pandemics, the cross-border cooperation between Slovenia and Austria seems to work quite fast.

Depuis le 19 octobre, les ressortissant.e.s britanniques et leur.e.s familles peuvent déposer en ligne leur demande de titres de séjour. 

en lire plus

On Monday, 16 November 2020, starting at 9.15 am CET, the Young EU Private International Law Research Network of the European Association of Private International Law (EAPIL), organizes a webinar on “Overriding Mandatory Rules in the Law of the EU Member States”.

In two sessions, Young PIL researchers from various EU Member States will discuss selected issues related to overriding mandatory rules, such as their explicit legislative characterization in recent EU directives and their application by arbitral tribunals.

Subsequently, the General Report of the second Young EU PIL project, namely “The Application of Overriding Mandatory Norms outside the Scope of Application of the EU Private International Law Regulations” as well as some national perspectives will be presented. The concluding discussion of the webinar is dedicated to future initiatives and projects of the Research Network.

All young PIL researchers who are interested in joining the webinar and/or the Young EU Private International Research Network are cordially invited to send an e-mail to youngeupil@gmail.com. Attendance is free of charge. Details regarding the virtual attendance will be sent to all registered participants.

The programme reads as follows:

9.15 am   Opening of the conference – Tamás SZABADOS (ELTE)

Session I – Chair: Florian HEINDLER (Sigmund Freund University Vienna)

9.20 am   Ennio PIOVESANI (University of Turin/University of Cologne): Overriding Mandatory Rules in the Context of the Covid-19 Pandemic

9.35 am   Martina MELCHER (University of Graz): Substantive EU Regulations as Overriding Mandatory Provisions?

9.50 am   Johannes UNGERER (University of Oxford): Explicit Legislative Characterization of Overriding Mandatory Provisions in EU Directives

10:05 am   Uglješa GRUŠI? (University College London): Some Recent Developments Regarding the Treatment of Mandatory Rules of Third Countries

10.20-10:35 am   Discussion

Session II – Chair: Dr. Eduardo Alvarez-Armas (Brunel University London)

10.45 am   Katarzyna BOGDZEVI? (Mykolas Romeris University): Overriding Mandatory Provisions in Family Law and Personal Status Issues

11.00 am   Markus PETSCHE (Central European University): The Application of Mandatory Rules by Arbitral Tribunals

11.15 am   István ERD?S (ELTE): Imperative Rules in Investment Arbitration

11.30-11.45 am   Discussion

Young EU PIL Project: The Application of Overriding Mandatory Norms outside the Scope of Application of the EU Private International Law Regulations

2.00 pm   Tamás SZABADOS (ELTE): Presentation and Discussion of the General Report

2.15 pm   Stefano DOMINELLI (University of Genoa) and Ennio PIOVESANI (University of Turin/University of Cologne): Italian Perspective

Holger JACOBS (University of Mainz): German Perspective

Dora ZGRABLJI? ROTAR (University of Zagreb): Croatian Perspective. Overriding Mandatory Rules and the Proposal on the Law Applicable to the Third-party Effects of Assignments of Claims

3.00 -3.30 pm   Future of the Young EU Private International Law Network (Chair: Martina MELCHER and Tamás SZABADOS)