Agrégateur de flux

Actions possessoires et lois et règlements

Creditors in international business transactions need to follow a three step plan in order to secure the satisfaction of their claims: Secure an enforceable judgment in their jurisdiction; declare the latter enforceable in the country of the judgment debtor; and proceed swiftly or at least timely to execution measures. Practice shows that the problems are usually appearing in steps 1 or 2. A recent ruling of the Greek Supreme Court demonstrates that potential pitfalls are to be expected even beyond.

 

THE FACTS

The parties are a Greek [GR] and an American company [US]. Following litigation before the courts of Baltimore, Maryland, US was in possession of an enforceable money judgment against G issued in October 1999. US moved to recognize the above judgment in Greece. Its application was successful, and no appeal was lodged by GR against the judgment of the Athens Court of 1st instance [Nr. 4138/2002, unreported].

For reasons not clarified in the ruling, US entered the enforcement stage only in June 2013, i.e. nearly 14 years after the Baltimore court had issued its judgment. Soon afterwards, i.e. early July same year, US rushed to the Baltimore court’s clerk, requesting the judgment’s renewal. The clerk granted the request late July. January 2014 GR filed an application to revoke the renewal which was sustained. In particular, the Baltimore court considered the request for renewal as inadmissible, because it was not filed timely, i.e. within 12 years following the judgment’s date of entry, in accordance with Rule 2-625 Maryland Rules, Title 2. Civil Procedure–Circuit Court.

Nevertheless, US moved ahead with enforcement in Greece. As it was to be expected, GR applied for stay of execution, which was however dismissed by the Athens 1st Instance Court [Nr. 6235/2015, unreported]. US appealed successfully [Athens CoA Nr. 3074/2016, unreported].

THE RULING

The reasoning of the Supreme Court’s ruling may be summarized as follows:

• An expired foreign judgment previously declared enforceable in Greece does not affect the exequatur proceedings ex post.
• The judgment debtor may however file an application for reversal or request the court to confirm the foreign judgment’s lack of enforceability in the state of origin. If enforcement has already begun, the judgment debtor may file an application for stay of execution.
• The validity and enforceability of the foreign judgment are examined in accordance with the law of the country of origin, i.e. the country where the judgment was rendered.
• The domestic judgment, i.e. the one issued in the exequatur proceedings, does not replace the original enforceable title; moreover, it simply extends its enforceability in the country of destination. If the foreign judgment is no longer enforceable in the country of origin, execution may not begin in the country of destination.
• If execution may not take place for the main claim, it is equally forbidden for subsequent claims included in the foreign judgment, such as interest claims.
• The fact that Greek law provides for a longer limitation time (20 years) may not lead to the assumption that the same rule should apply for the foreign judgment, simply because it has been recognized by a Greek court of law.
• There’s no contradiction between the fact that the recognition of the foreign judgment in Greece is final and conclusive, and the fact that the US judgment may not be enforced due to its expiry pursuant to the rules of the law of origin.

AREIOS PAGOS Nr. 767/2019, unreported.

COMMENTS

I start with the provision which was the game-changer in the ordinary process of execution:

RULE 2-625. EXPIRATION AND RENEWAL OF MONEY JUDGMENT: A money judgment expires 12 years from the date of entry or most recent renewal. At any time before expiration of the judgment, the judgment holder may file a notice of renewal and the clerk shall enter the judgment renewed.

US showed negligence and paid for it. It is somehow questionable, why the clerk at the Baltimore court decided to grant renewal: The wording of the rule is clear and the maths could be done easily even by a child in elementary school.

The ruling of the Supreme Court is in line with standard case law in the country, which covers all foreign judgments irrespective of their origin.

 

 

Generalbundesanwalt beim Bundesgerichtshof (Principe de spécialité)
Espace de liberté, sécurité et justice
Une mesure restrictive de liberté prise contre une personne visée par un premier mandat d’arrêt européen (MAE) sur la base de faits antérieurs et différents de ceux qui ont justifié sa remise en exécution d’un second MAE n’est pas contraire au droit de l’Union si cette personne a quitté volontairement l’État membre d’émission du premier MAE

Mercredi 23 septembre, le Club des femmes pénalistes et des journalistes de l’Association de la presse judiciaire organisaient à la maison du barreau de Paris une table-ronde autour de quatre personnalités du monde judiciaire pour débattre de la présomption d’innocence à l’heure de #MeToo. Vidéo de l’intégralité de la soirée

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The Hague Lectures of Lauro Gama (Pontifical Catholic University of Rio de Janeiro) on the Unidroit Principles and the Law Governing International Commercial Contracts (Les principes UNIDROIT et la loi régissant les contrats de commerce international) were published in volume 406 of the Collected Course of the Hague Academy of International Law.

The book is written in French, but the author has kindly provided the following abstract in English:

This course outlines the challenges related to the application of the UPICC as the law governing international commercial contracts. It examines the UPICC both in the context of disputes submitted to State courts and arbitration, and how and why the UPICC differ from domestic law and international conventions in the role of governing law. It also analyses cases in which the UPICC apply as primary or subsidiary governing law. In addition, the course highlights the limits of the current rules of private international law to deal with the new kind of normativity represented by the UPICC. Traditional conflict rules tend to prevent both the choice and application of a non-state law such as the UPICC, as well as the concomitant use of multiple normative instruments as law applicable to the merits of a dispute. As a substantive non-state law in motion, a “work in progress” in permanent dialogue with domestic law and international conventions, the UPICC remains a challenge from the point of view of private international law.

The International Commercial Chamber of the Court of Appeal of Paris (France) delivered a few days ago (15 September 2020) a decision (RG 19/09518) on abrupt termination of established commercial relationships.

The summary: “In this liability case based on the abrupt termination of established commercial relationships, the ICCP-CA found admissible the action brought against the French subsidiary of the Asus group, alongside its Singaporean subsidiary, which had signed a partnership agreement with Sodexpo for the distribution of ASUS branded products in the French overseas departments and territories, in view of its interference in the establishment, execution and development of the said partnership, which created the appearance of a legitimate belief that the two Asus companies were partners in the commercial relationship (§§ 17 – 26). 

The ICCP-CA found the French and Singaporean subsidiaries of the Asus group liable of the abrupt termination of the commercial relationship. It ruled that the relationship was well established and that it had lasted for 25 months, among others in view of the development of the partnership between 2014 and 2016 and the granting of an exclusivity right at the end of 2016, suggesting a continuity of business flow for 2017 (§§ 30-37). The ICCP-CA held that the abruptness of the termination was characterized by the failure to give sufficient notice. It considered that in view of the 25-month duration of the commercial relationship, the constantly growing business volume (representing 40% of Sodexpo’s sales in 2016), the brand’s reputation and positioning in the global market, as well as the loss of a market that Sodexpo contributed to create in the French overseas departments and territories and the difficulty for the company to develop new business, the notification of termination should have been given 6 months in advance, rather than 7 days. 

The ICCP-CA has set the compensation for the abruptness of the termination on the basis of the loss of gross margin on the discounts granted by the Asus companies within the framework of their partnership with Sodexpo, specifying that the loss could not be calculated by reference to the margin earned by Sodexpo on its sales with wholesalers, third parties to the relationship, but only on the loss of the advantage resulting from the partnership with Asus (§§ 46-51). The ICCP-CA held that the abruptness of the termination also gave rise to a distinct harm affecting the image and commercial credibility of Sodexpo, taking into account the reputation of the Asus brand and the development of its distribution in the French overseas departments and territories.

The ICCP-CA furthermore rejected Sodexpo’s claim for compensation for the misappropriation of know-how in the absence of any proof establishing both wrongful acts committed by the Asus companies and a distinct loss resulting from the abruptness of the termination (§§ 54). It also rejected Sodexpo’s claim for reimbursement of unsold stock because of the lack of proof of an impossibility of selling it (§§ 57)”.

The decision is attached to this post.

15 sept 2020 CCIP- CA RG 1909518Download

The Explanatory Report on the HCCH Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters has been approved yesterday. You can find it attached .

HCCH Judgments Convention – Explanatory ReportDownload

Cession amiable

Expropriation - Indemnités

Expropriation - Utilité publique

Espagne / Commission
Aide d'État
Le régime fiscal espagnol applicable à certains accords de location-financement conclus par des chantiers navals constitue un régime d’aides

Landesbank Baden-Württemberg / CRU
Politique économique
Le Tribunal annule la décision du Conseil de résolution unique sur le calcul des contributions ex ante au Fonds de résolution unique pour 2017 et constate l’illégalité partielle du règlement délégué 2015/63

Asociaţia "Forumul Judecătorilor Din România"
Adhésion de nouveaux Etats
L’avocat général Bobek estime que la nomination ad interim de l'Inspecteur judiciaire en chef et les dispositions nationales relatives à la création d'une section spéciale des poursuites ayant compétence exclusive pour les infractions commises par des magistrats sont contraires au droit de l'Union

Vas Megyei Kormányhivatal
SERV
Le principe de la libre prestation des services et la directive sur les soins de santé transfrontaliers s’opposent à une réglementation nationale qui exclut, en l’absence d’autorisation préalable, le remboursement des coûts liés à une intervention subie d’urgence par une personne assurée, résidente d’un État membre, dans un autre État membre

The Supreme Administrative Court in Poland (Naczelny Sąd Administracyjny – NSA) issued on 10 September 2020 two judgments concerning the legal status in Poland of a child born by a surrogate mother in the US.

Transcription – No!  

A US birth certificate indicated a Polish national as the father and also contained information that the child was born through surrogacy (without mentioning the surrogate mother’s name).

Two judgments were issued as a result of two separate administrative proceedings instituted by the father. One concerned the application for the transcription of the US birth certificate into Polish civil status registry. The other was resulted from the application for a confirmation that the child acquired Polish nationality by birth.

In both cases administrative authorities had rejected the requests based on grounds of public policy, stating that surrogacy arrangements are against fundamental principles of the legal order in Poland. One of these fundamental principles is that the mother is always a woman, who gave birth to the child, whereas paternity results from a scheme of legal presumptions. This argument is not new, as similar cases were dealt with before by administrative authorities and administrative courts.

This argument was also upheld by the NSA in the first judgement (signature: II OSK 1390/18) where it underlined that a foreign birth certificate, which does not indicate the mother, but only the father may not be transcribed into Polish civil status registry.

Acquisition of Nationality  – Yes!

What shows a slight evolution in the Court’s attitude is the second judgment (signature: II OSK 3362/17), where the NSA stated that a foreign birth certificate is the only proof of an occurrence mentioned in it and its probative force may not be questioned in the course of an administrative proceeding concerning acquisition of the nationality. For a confirmation to be produced, it suffices that the foreign birth certificate indicates a Polish national as a parent.

Here it might be reminded that an opposite view of the NSA with respect to nationality of children born by a surrogate mother resulted in a claim filed to the European Court of Human Rights against Poland in 2015 (communicated in 2019 – see cases nos. 56846/15 and 56849/15: here).

If Not Transcription – What?

The two commented cases show that in NSA’s view surrogacy arrangements are against public order in Poland, but at the same time the fact of being born by a surrogate mother should not impact the legal status in every respect and consequently quality of life of the child in Poland. In the first mentioned judgement, the NSA underlined that even without Polish birth certificate the child should be able to obtain a PESEL number (explained below), a national ID card and a passport. The practical question is whether the above is a wishful thinking of the NSA or this will happen in practice.

It must be explained that for an everyday life and functioning in Poland one should have a PESEL number (which name comes from the first letters of the Powszechny Elektroniczny System Ewidencji Ludności – the General Electronic System of Population Registration).

A PESEL must be provided when one applies for ID card, passport, files a tax return or wants to get a drug prescription. Similarly, a child’s PESEL must be indicated if parents/legal representatives apply for child’s ID card, want the child to be covered by the national social security system or want the child to go to a kindergarten. For children born in Poland (no matter if to Polish parents or foreigners) PESEL is issued in connection with the drafting of a birth certificate. If a Polish child is born abroad, the PESEL is issued in connection with the application for an ID card or a passport.

Hence, if a child does not have a Polish birth certificate or a foreign birth certificate which might be transcribed into Polish civil status registry (and additionally is not perceived as a Polish national), administrative authorities do not have an adequate legal basis for allocating a PESEL to the child and … everyday life might get complicated.

What are the Effects of the Judgments?

The judgments issued by the NSA are binding on the administrative authorities concerned and with respect to the particular cases at issue, but not on other authorities in other proceedings.

Hence, it remains to be seen whether a PESEL number and ID documents will be issued based on a foreign birth certificate as suggested by the NSA or whether another time-consuming proceeding will commence. As one can imagine the commented proceedings lasted for few years counting from the first application to the judgement of the NSA.

The information about the above two cases was published by Polish Ombudsman (Rzecznik Praw Obywatelskich) on its official website (see: here). The ombudsman joined both cases to support the applicant. Usually NSA’s judgements are published in the freely available official database once the justification part of the judgement is prepared (here). The justification is written after the judgement was issued. Hence, it is not yet available.

Dans un arrêt du 3 septembre 2020, la Cour de justice de l’Union européenne se penche, à propos de la détermination du juge compétent dans l’Union, sur la qualification d’une action en référé engagée par une organisation internationale appartenant à l’OTAN.

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