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Avocat général Bobek : l’indemnisation au titre de l’assurance de responsabilité civile du producteur d’implants mammaires PIP pouvait être limitée aux femmes ayant subi une opération en France

The author of this post is François Mailhé (University of Picardy – Jules Verne).

“Nul n’a de droit à l’enfant”, that is, no one has a right to a child. This is the first amendment the French Senate has recently added to the latest reform of the Bioethics Act 1994 under discussion in Parliament this month, and which is intended to introduce Title VII of the First book of the civil code “on filiation”.

The Senate is the higher chamber of Parliament, with members elected by elected officials from local governments. It participates in the discussion of all legislative projects with the National Assembly (lower chamber), but the latter would ultimately prevail in case of conflict.

I reported earlier on the three judgments of the French supreme court for civil and criminal matters (Cour de cassation) which, on 18 December 2019, extended the recognition on foreign surrogacies in France. These judgments were expressly based on an advisory opinion concerning the recognition of legal parent-child relationships between a child born through a gestational surrogacy arrangement abroad and the intended mother, given by the European Court of Human Rights (ECtHR) in April 2019.

Surprisingly, the Cour de cassation had gone much further than the ECtHR, though, allowing direct recognition of the filiation for all parents appearing on the birth certificate, while the ECtHR had only required for the recognition of the biological father one.

What happened next is even more surprising if not unique in French legislative history.

On 7 January 2020, the Senate chose to oppose the Cour de cassation case-law, on a private international law issue, to better align French law on the ECHR solution. Amendment No 333 to the Bioethics Act reform would, if passed, create a new article 47-1 of the Code civil, drafted as follows:

Any civil status record or judgment for a French citizen or a foreigner made in a foreign country and establishing the filiation of a child born as a result of a surrogacy agreement shall not be transcribed in the registers in so far as it refers as mother to a woman other than the one who gave birth or when it mentions two fathers.

The provisions of the preceding paragraph shall not prevent the partial transcription of this act or judgment or the establishment of a second parent-child relationship under the conditions of Title VIII of this Book [on adoption], where such conditions are met.

The Amendment would in fact bring the French system back to what it was after the rulings rendered by the Cour de cassation in July 2017, and in line with the ECtHR opinion of April 2019. In practice, the biological father would be the only “intended parent” to be recognised as such through direct transcription. His husband or wife would only have a right to adopt the child at a later stage (as long as the procedure of adoption is not unreasonably long, which should not be the case under French law for the adoption of the husband’s child).

As the government backed a similar amendment, though milder than the one eventually adopted, it seems probable the National Assembly will not much alter it.

The change brought about by the rulings of the Cour de cassation of 4 October and 18 December 2019 may therefore be short-lived.

Foreign surrogacy agreements may not be so much welcome in France after all.

I seem to be having my environment cap firmly on this week so I am happy to thank Le Monde for flagging the judgment of the French Constitutional Court 2019-823 of 31 January in which it sanctioned (against the wishes of applicants, the Union des industries de la protection des plantes, essentially Bayer, Syngenta, BASF)  the Government’s ban on the manufacturing of and exportation of pesticides banned for use in France but hitherto available for export, mostly to Africa.

The case I would suggest is one that is also very suited to a business ethics class. Interestingly the Act also mentions that it applies to the degree it is not incompatible with WTO rules – the WTO is not addressed in the judgment.

Applicants’ case is grounded on the freedom of ‘enterprise’ or ‘commerce’, as expressed in the 1789 Déclaration des droits de l’homme et du citoyen – but also the Decret d’Allarde 1791. To the mix of objectives to be balanced, the Court adds the protection of public health (Constitutional recital, 1946) and the Environment Charter 2004, from which the court deduces that environmental protection, as common heritage of mankind, is a Constitutionally ringfenced objective.

At 6 the Court without much ado posits that the French Government in pursuing environmental policy, justifiably may take into account the extraterritorial environmental consequences of activities on French soil.

Having referred to the EU ban on the use of the substances at issue, based on scientific considerations discussed at length in the run-up to the EU law at issue, the Court at 9-10 refers to the principle that it should not overzealous in second-guessing the exercise by Parliament of its balancing exercise. At 11, it notes that the 3-year transitionary period gives corporations ample transitionary time in line with their freedom of commerce.

To the Court, it’s all very much self-evident. For environmental policy and extraterritoriality, its findings are quite relevant.

Geert.

 

Environment, territoriality.
French Constitutional court upholds ban on manufacturing and exportation of pesticides banned for use in France but hitherto available for export, mostly to Africa.
Rejects Bayer, Syngenta, BASF action aimed particularly at herbicide atrazine. https://t.co/KMH0QuKpL7

— Geert Van Calster (@GAVClaw) January 31, 2020

 

Statuant sur 32 requêtes introduites par des personnes détenues, la Cour de Strasbourg alloue à chacun des requérants une indemnisation en fonction de la durée de sa détention et s’échelonnant entre 4 000 et 25 000€.

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Trépidante chronique du monde de la PJ, par l’un de ses acteurs de l’intérieur, plongeant au cœur de l’institution à travers la tentaculaire enquête consécutive au gigantesque braquage de l’une des plus célèbres bijouteries de la place Vendôme.

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Written by Jonathan Fitchen

The UK’s intention to attempt to accede to the 2007 Lugano Convention is apparently proceeding apace. Though the events leading up to Friday 31st January, when the UK left the EU,  rather overshadowed this fact, the UK Government had already announced that its intention to accede by a posting on 28th January 2020 that may be found here https://www.gov.uk/government/news/support-for-the-uks-intent-to-accede-to-the-lugano-convention-2007   As will be remembered, the 2007 Lugano Convention is open to non-EU third States if the consent of all the existing Convention parties can be first secured. The UK Gov posting records that the UK has secured statements in support of it joining the 2007 Convention from the Swiss, the Norwegians and Iceland. So now all that is required is to secure the consent of the EU to this course of action. Assuming that such consent can be secured, the UK Gov posting records that it is the intention of the UK Government to accede to the 2007 Convention at the end of the transition period (currently scheduled / assumed for 23.00 GMT on 31st December 2020).

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In 2009, AGL, a dual Italian-Israeli citizen, and SRL, an Israeli citizen, married in Milan. The spouses, who were both Jews, married religiously.

Jewish religious marriages celebrated in Italy may be given effect in the Italian legal order provided that certain requirements, set forth in an understanding concluded between the Italian government and the Union of the Italian Jewish Communities, are met. The requirements in question basically refer to the marriage process. In particular, a notice of marriage must be filed with the local civil status office prior to celebration, in accordance with the Italian civil code.

In the circumstances, the prior notice and other requirements had not been complied with. As a result, the marriage of AGL and SRL was, from the standpoint of the Italian legal system, a purely religious one.

A few months later, the spouses – who always resided in Israel – seised the Rabbinical Court of Tel Aviv seeking a declaration that their marriage was valid.

Rabbinical Courts are part of the Israeli judiciary. They deal, inter alia, with matters concerning marriage and divorce, parental responsibility and succession. Their rulings have force in the legal system of Israel.

The Tel Aviv Rabbinical Court declared the marriage between AGL and SRL to be valid.

Next, the couple sought to have the Rabbinical Court judgment recognised in Italy. Based on the provisions of the Italian Statute on Private International Law concerning the (automatic) recognition of foreign judgments, they asked the civil status officer of Milan to record the judgment in the civil status registries, so that the marriage could be regarded as producing civil  effects in Italy, as well.

The officer denied the request. He argued that the rules on the recognition of judgments had no role to play in the circumstances. At issue, in his view, was whether the marriage celebrated in Milan in 2009 ought to be given effect in Italy, not whether the Rabbinical Court’s judgment ought to be recognised. The latter, he contended, merely acknowledged that the marriage had taken place and that it had been performed in accordance with the relevant Jewish rules — two circumstances that were already known to Italian authorities and were, as such, uncontroversial.

In any case, the officer contended, the judgment given by the Tel Aviv Rabbinical Court ought to be denied effect in Italy on grounds of public policy. By seeking a judicial statement of the existence of their marriage, the spouses aimed in fact to evade the Italian provisions that determine the conditions subject to which a Jewish religious marriage may be given effect in the Italian legal system.

By a decision of 29 January 2020, the Court of Appeal of Milan, seised of the matter, ruled in favour of the couple.

The Court conceded that the marriage between AGL and SRL was initially, as a matter of Italian law, devoid of civil effects. However, as a result of the Tel Aviv judgment, the marriage had acquired civil effects in the legal system of Israel. Based on this finding, the Court of Appeal found that, contrary to the civil status officer’s opinion, what was at issue was indeed the recognition of the Rabbinical Court’s judgments, and of the civil effects it added to the marriage.

The Court went on to assess whether the conditions contemplated in the Italian Statute on Private International Law for the recognition of foreign judgments were met in the circumstances. It found that the Tel Aviv judgment complied all such conditions. In particular: the judgment originated from the country of residence and nationality of the spouses at the time when the Rabbinical Court was seised; it represented the outcome of fair proceedings; it did not contradict any previous Italian judgment.

Furthermore, the Court observed, the judgment could not be characterised as inconsistent with the ordre public of Italy. The public policy defence, it recalled, operates as an exception and can only be invoked where the recognition of a foreign judgment or the application of a foreign law would be at odds with the fundamental principles of the Italian legal order.

In the Court’s view, this did not occur in the circumstances. The non observance of the Italian rules on the marriage process does not amount, as such, to a violation of the public policy of Italy, as long as it is established that the spouses’ consent was expressed freely by each of them.

The Court noted that the fundamental principles of Italy would rather be challenged if the judgment were denied recognition. Article 8 of the European Convention on Human Rights, as interpreted by the European Court of Human Rights in Wagner v Luxembourg and other rulings, indicates that family status validly created abroad, insofar as they correspond to an established social reality, cannot be denied recognition unless very strong reasons require otherwise.

— Thanks to Marzia Ghigliazza, family lawyer and mediator in Milan, for drawing my attention to the ruling of the Court of Appeal.