Agrégateur de flux

La cour d’appel de Paris, qui rejuge le couple Balkany pour fraude fiscale, a décidé lundi de poursuivre les débats malgré l’absence du maire de Levallois-Perret, hospitalisé depuis jeudi. Patrick Balkany a transmis à la cour un courrier précisant qu’il acceptait d’être jugé en son absence. En première instance, c’est son épouse Isabelle, hospitalisée après une tentative de suicide, qui n’avait pas comparu.

en lire plus

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:

H. Schack: The new Hague Judgment Convention

This contribution presents the new Hague Convention on the recognition and enforcement of foreign judgments in civil or commercial matters adopted on 2 July 2019 by the Hague Conference on Private International Law. This Convention simple with a positive list of accepted bases for recognition and enforcement supplements the 2005 Hague Convention on choice of court agreements. The benefit of the 2019 Convention, however, is marginal, as its scope of application is in many ways limited. In addition, it permits declarations like the “bilatéralisation” in Art. 29 further reducing the Convention to a mere model for bilateral treaties. If at all, the EU should ratify the 2019 Convention only after the US have done so.

F. Eichel: The Role of a Foreign Intervener in Establishing a Cross-Border Case as a Requirement for the Application of European Legislation on Civil Procedure

The Small-Claims Regulation (No. 861/2007) is only applicable in crossborder cases. The European Court of Justice (ECJ) in its judgment in ZSE Energia has decided that the foreign seat of an intervener does not turn an otherwise purely domestic case into a cross-border case. The IPRax article agrees with this decision, but criticizes the reasons given by the ECJ. Without specific need, the ECJ stated that the participation of an intervener would be inconsistent with the Small-Claims Regulation at all, although general procedural issues are governed by the procedural law of the lex fori (cf. article 19 Small-Claims Regulation). In addition, the article analyses the impact of the ECJ’s ruling on other European legal acts such as the European Order for Payment Regulation (No. 1896/2006), the European Account Preservation Order Regulation (No. 655/2014), the Directive on the right to legal aid (RL 2002/8/EC), and the Mediation Directive (RL 2008/52/EC).

C.A. Kern/C. Uhlmann: When is a court deemed to be seised under the Brussels Ia Regulation? Requirements to be met by the claimant and pre-action correspondence

In the aftermath of the VW-Porsche takeover battle, an investor based on the Cayman Islands announced to sue Porsche SE in the High Court of England and Wales. Probably in an attempt to secure a German forum, Porsche initiated a negative declaratory action in the Landgericht Stuttgart. However, the complaint could not be served on the investor for lack of a correct address. The German Federal Supreme Court held that Porsche had not met the requirements of Art. 32 no. 1 lit. a of the recast Brussels I Regulation and asked the lower court to determine whether the „letter before claim“ sent by the investor had already initiated proceedings in England so that parallel proceedings in Germany were barred. The authors agree that Art. 32 no. 1 must be interpreted strictly, but doubt that a „letter before claim“ is sufficient to vest English courts with priority under the Brussels Regulation.

C. Thomale: Treating apartment-owner associations at Private International Law

In its recent Brian Andrew Kerr ./. Pavlo Postnov and Natalia Postnova decision, the CJEU has taken a position on how to handle apartment owners’ obligations to contribute to their association in terms of international jurisdiction and choice of law. The casenote analyses the decision, notably assessing the relationship of international jurisdiction and choice of law, the concept of “services” as contained in the Brussels I Regulation and the Rome I Regulation respectively, as well as the company law exception according to Art. 1 (2) (f) Rome I Regulation.

H. Roth: The Probative Value of Certificates as per Art 54 Brussels I and Art 53 Brussels Ia

According to the European rules on recognition and enforcement of judgments in civil and commercial matters, the probative value of both certificates is determined as mere information provided by the court of origin. At the second step of assessing whether there are grounds to refuse recognition (appeal or refusal of enforcement), the court of the member state in which enforcement is sought will have to verify itself the factual and legal requirements for service of process.

M. Brosch: Public Policy and Conflict of Laws in the Area of International Family and Succession Law

The public policy-clause is rarely applied in private international law cases. Relevant case law often concerns matters of international family and succession law. This also applies to two recent decisions of the Court of Appeal in Berlin and the Austrian Supreme Court relating, respectively, to the recognition of a Lebanese judgement on the validity of a religious marriage and the applicability of Iranian succession law. Although systemically coherent, the courts’ findings give rise to several open questions. Furthermore, it is argued that two opposite tendencies can be identified: On the one hand, the synchronisation between forum and ius as well as the prevalence of the habitual residence as connecting factor in EU-PIL leave little room for the application of the public policy-clause. On the other hand, its application may be triggered in areas where the nationality principle still prevails, i.e. in non-harmonised national PIL and PIL rules in bilateral treaties.

E.M. Kieninger: Vedanta v Lungowe: A milestone for human rights litigation in English courts against domestic parent companies and their foreign subsidiary

In Vedanta v Lungowe, a case involving serious health and environmental damage due to emissions into local rivers from a copper mine in Sambia, the UK Supreme Court has affirmed the jurisdiction of the English courts, in relation to both the English parent company and the subsidiary in Sambia. In the view of the Supreme Court, the claim against the parent company has a real issue to be tried and denying access to the English courts would equal a denial of substantive justice. The decision is likely to have consequences not only for the appeal against the Court of Appeal’s denial of access to the English courts in Okpabi v Royal Dutch Shell, but also for the development of a more general duty of care of parent companies towards employees and people living in the vicinity of mines or industrial plants run by subsidiaries.

B. Lurger: How to Determine Foreign Legal Rules in Accelerated Proceedings in Austrian Courts

In a rather lengthy proceeding initiated in 2014 in the district court Vienna Döbling the wife claimed maintenance from her husband. The Austrian Supreme Court (OGH) examined the special conditions of the application of foreign law in accelerated proceedings (motion for injunctive relief). The Court first clarified the construction of Art. 5 Hague Maintenance Protocol in relation to a pending divorce proceeding in which Austrian law applied, whereas the habitual residence of the claimant was situated in the United Kingdom. The OGH held that in accelerated proceedings, the question of whether foreign law had to be applied (the choice of law question) can regularly be answered without considerable effort. As the next step, the determination of the content of the foreign law must be undertaken by the lower courts with reasonable means and effort. As in ordinary proceedings, the parties do not have any particular duties to assist the court in this determination. Considering the special circumstances of the case, which consisted in the considerable wealth of the parties and the divorce and maintenance proceedings going up and down the instances in Vienna already for years, the Supreme Court arrived at the conclusion that the application of English law by the Austrian courts was appropriate even in the accelerated proceeding at hand.

The XXV Annual Conference of the Italian Society of International and EU Law (ISIL) on Shared Values and Commons in the International and Supranational Dimension will be hosted at the University of Salento on 18-19 June 2020. The Conference will consist of three sessions on the following topics:

-The respect and promotion of the democratic values and of the rule of law in the international and European legal orders;

-The mandatory principle of environmental conservation, with special emphasis on sustainability;

-The threats to human rights due to the increasing role played by new technologies in contemporary societies.

Papers are accepted for presentation in Italian, English or French. Abstracts (250 words max) and a short bio may be submitted to SIDI2020@unisalento.it by 25 January 2020. The selection process will be completed by the end of February 2020.

More information on this call for papers is available here.

Saloni Khanderia & David Stewart published recently on the Hague Judgments Convention in the following reviews:

• Saloni Khanderia, The Hague Conference on Private International Law’s Proposed Draft Text on the Recognition and Enforcement of Foreign Judgments: Should South Africa Endorse it?, Journal of African Law (Vol. 63, Issue 3/2019)
• David Stewart, The Hague Conference Adopts a New Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, American Journal of International Law (Vol. 113, Issue 4/2019)

In C‑212/18 Prato Nevoso Termo Energy the CJEU held on the not always straightforward concurrent application of the Waste Framework Directive (WFD) 98/2008 and the various Directives encouraging the uptake of renewable energy. It referred i.a. to the circular economy and to precaution.

On the face of it the economic and environmental benefits of the case may seem straightforward. Prato Nevoso operates a power plant for the production of thermal energy and electricity. It applied for authorisation to replace methane as the power source for its plant with a bioliquid, in this case a vegetable oil produced by ALSO Srl, derived from the collection and chemical treatment of used cooking oils, residues from the refining of vegetable oils and residues from the washing of the tanks in which those oils were stored. ALSO has a permit to market that oil as an ‘end-of-waste’ product within the meaning of relevant Italian law , for use in connection with the production of biodiesel, on condition that it has the physico-chemical characteristics indicated in that permit and that the commercial documents indicate ‘produced from recovered waste for use in biodiesel production’.

Prato Nevoso was refused the requested authorisation on the ground that the vegetable oil was not included in a relevant Italian list, which sets out the categories of biomass fuels that can be used in an installation producing atmospheric emissions without having to comply with the rules on the energy recovery of waste. The only vegetable oils in those categories are those from dedicated crops or produced by means of exclusively mechanical processes.

The argument subsequently brought was that the refusal violates Article 6 WFD’s rules on end-of-waste, and Article 13 of the RES Directive 2009/28. That Article essentially obliges the Member States to design administrative procedures in such a way as to support the roll-out of renewable energy.

The CJEU first of all refers to its finding in Tallina Vesi that Article 6(4) of Directive 2008/98 does not, in principle, allow a waste holder to demand the recognition of end-of-waste (EOW) status by the competent authority of the Member State or by a court of that Member State. MSs have a lot of flexibility in administering EOW in the absence of European standards. That the use of a substance derived from waste as a fuel in a plant producing atmospheric emissions is subject to the national legislation on energy recovery from waste, is therefore entirely possible (at 39). A13 of the RES Directive has no impact on that reality: that Article does not concern the regulatory procedures for the adoption of end-of-waste status criteria.

Nevertheless, the MS’ implementation of the RES Directives must not endanger the attainment of the WFD, including encouragement of the circular economy etc. and likewise, the WFD’s waste hierarchy has an impact on the RES’ objectives. A manifest error of assessment in relation to the non-compliance with the conditions set out in Article 6(1) of Directive 2008/98 could be found to be a MS violation of the Directive.

At 43: ‘It is necessary, in this case, to examine whether the Member State could, without making such an error, consider that it has not been demonstrated that the use of the vegetable oil at issue in the main proceedings, in such circumstances, allows the conclusion that the conditions laid down in that provision are met and, in particular, that that use is devoid of any possible adverse impact on the environment and human health.’ At 44:  ‘It is for the national court, which alone has jurisdiction to establish and assess the facts, to determine whether that is the case in the main proceedings and, in particular, to verify that the non-inclusion of those vegetable oils in the list of authorised fuels results from a justified application of the precautionary principle.’

At 45 ff the CJEU does give a number of indications to the national judge, suggesting that no such infringement of the precautionary principle has occurred (including the reality that specific treatment and specific uses envisaged of the waste streams, has an impact on their environmental and public health safety). At 57: It must be considered that the existence of a certain degree of scientific uncertainty regarding the environmental risks associated with a substance — such as the oils at issue in the main proceedings — ceasing to have waste status, may lead a Member State, taking into account the precautionary principle, to decide not to include that substance on the list of authorised fuels’.

An important judgment.

Geert.

Handbook of EU Waste law, 2nd ed. 2015, OUP, 1.166 ff and 1.189 ff.

La Cour de justice de l’Union européenne s’est récemment prononcée dans le cadre d’une question préjudicielle en apportant des indications sur l’exigence d’indépendance de l’« autorité judiciaire d’émission » d’un mandat d’arrêt européen et sur l’exigence de protection juridictionnelle effective, qui doit être assurée aux personnes faisant l’objet d’un tel mandat d’arrêt.

en lire plus

La directive (UE) 2019/1937 du Parlement européen et du Conseil, adoptée le 23 octobre 2019 et publiée au JOUE du 26 novembre 2019, entre en vigueur le 16 décembre 2019 et devra être transposée par les États membres au plus tard au 17 décembre 2021. Elle porte sur la protection des personnes qui signalent les violations du droit de l’Union. Elle offre un complément mais également une protection unifiée aux lanceurs d’alerte au sein de l’Union européenne. 

en lire plus