Agrégateur de flux

Alors qu’une proposition de loi sur les violences conjugales, centrée sur le développement de l’ordonnance de protection, finie sa navette parlementaire, une recherche faisant le point sur ce dispositif vient d’être publiée. L’application des lois par les magistrats diffère parfois des intentions des parlementaires.

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By Alexandre Biard, Erasmus University Rotterdam (ERC project – Building EU Civil Justice)

In a previous post published in November 2018, we presented policy discussions that were (at that time) going on in France, and aimed at introducing a new regulatory framework for ODR platforms. As also explained in an article published in September 2019 (in French), ODR tends to become a new market in France with a multiplication of players offering services of diverging qualities. Today this market is in need of regulation to ensure the quality of the services provided, and to foster trust among its users.

The Act in question was finally passed on 23 March 2019. Rules on ODR certification were recently detailed in a decree published on 27 October 2019. They establish a new voluntary certification scheme for ODR platforms (after discussions, the scheme was kept non-compulsory). ODR platforms wishing to obtain certification must bring evidence that (among other things) they comply with data protection rules and confidentiality, that they operate in an independent and impartial manner, or that the procedures they used are fair and efficient. ODR platforms will be certified by one of the COFRAC-accredited bodies (Comité français d’accréditation). In practice, this means that contrary to what currently exists for the certification of consumer ADR bodies in France for which a single authority is competent (Commission d’Evaluation et de Contrôle de la Médiation de la Consommation) several certification bodies will operate in parallel for ODR platforms (however a certification request can only be directed at one certification body, and not to multiple). Together, certification bodies will be in charge of certifying ODR platforms and will supervise their activities on an on-going basis. Certification is given for three years (renewable). Certified platforms are allowed to display a logo on their websites (practicalities still need to be further detailed by the Ministry of Justice).

Accredited bodies will have to submit annual reports to the Ministry of Justice in which they will have to specify the number of certifications granted (or withdrew), their surveillance activities, and the systemic problems they faced or identified. The updated list of ODR platforms complying with the certification criteria will be available on the website www.justice.fr.

The future will tell whether ODR platforms are incentivized to seek certification (as it is expected today) or whether they will prefer to keep their regulatory freedom instead. More generally, one will see whether this step can indeed foster trust and ensure high-quality services within the emerging ODR market.

Mise en danger de la personne

Chambre de l'instruction

Dans une décision du 1er octobre 2019 (JOUE L 261/97, 14 oct. 2019), la CJUE instaure un mécanisme interne de contrôle en matière de traitement des données à caractère personnel effectué dans le cadre des fonctions juridictionnelles de la Cour. 

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Commission / Irlande (Parc éolien de Derrybrien)
Environnement et consommateurs
L’Irlande est condamnée à des sanctions pécuniaires pour l’inexécution d’un arrêt antérieur de la Cour imposant notamment l’évaluation environnementale d’un parc éolien

Haqbin
Espace de liberté, sécurité et justice
Un demandeur de protection internationale coupable d’un manquement grave au règlement du centre d’hébergement dans lequel il est accueilli ou d’un comportement particulièrement violent ne peut être sanctionné par le retrait du bénéfice des conditions matérielles d’accueil ayant trait au logement, à la nourriture ou à l’habillement

Organisation juive européenne et Vignoble Psagot
Rapprochement des législations
Les denrées alimentaires originaires des territoires occupés par l’État d’Israël doivent porter la mention de leur territoire d’origine, accompagnée, lorsque ces denrées proviennent d’une colonie israélienne à l’intérieur de ce territoire, de la mention de cette provenance

Junqueras Vies
Privilèges et immunités
Selon l’avocat général Szpunar, l’acquisition du mandat parlementaire des députés européens résulte du seul vote des électeurs et ne peut être subordonnée à l’accomplissement subséquent d’une quelconque formalité

The Court of Appeal in [2019] EWCA Civ 1708 has reversed [2018] EWHC 3308 (Ch) PrivatBank v Kolomoisky and Boholiubov et al which I reviewed here. When I tweeted the outcome on the day of release I said it would take a little while for a post to appear, which indeed it has. Do please refer to my earlier post for otherwise the comments below will be gobbledegook.

As a reminder: the High Court had set aside a worldwide freezing order (‘WFO’) granted earlier at the request of Ukraine’s PrivatBank, against Ihor Kolomoisky and Hennadiy Boholiubov – its two former main shareholders.

Fancourt J’s judgment implied in essence first of all, the Lugano Convention’s anchor defendant mechanism, concluding that ‘any artificial fulfilment (or apparent fulfilment) of the express requirements of Article 6.1 is impermissible, and this includes a case where the sole object of the claim against the anchor defendant is to remove the foreign defendant from the jurisdiction of domicile. Bringing a hopeless claim is one example of such abuse, but the abuse may be otherwise established by clear evidence. In principle, the fact that there is a good arguable case against the anchor defendant should not prevent a co-defendant from establishing abuse on some other ground, including that the “sole object” of the claim is to provide jurisdiction against a foreign domiciled co-defendant.‘

The English Defendants serving as anchor, were not considered legitimate targets in their own right and hence the ‘sole object’ objection was met. 

The Court of Appeal in majority (Lord Newey at 270 ff dissenting) disagreed and puts particular emphasis on the non-acceptance by Parliament and Council at the time of adoption of Brussels I, of an EC proposal verbatim to include a sole object test like was done in Article (then) 6(2) (it also refers to drafters and rapporteur Jenard making a bit of a muddle of the stand-alone nature, or not, of the sole object test). Following extensive consideration of authority it decides there is no stand-alone sole object test in (now) Article 8(1) Brussels I (or rather, its Lugano equivalent) but rather that this test is implied in the Article’s condition of connectivity: at 110: ‘we accept Lord Pannick’s analysis that, as shown by the references to Kalfelis and Réunion,..that the vice in using article 6(1) to remove a foreign defendant from the courts of the state of his domicile was met by a close connection condition.’

Obiter it held at 112 ff that even if the sole object test does exist, it was not met in casu, holding at 147 that the ability to obtain disclosure from the English Defendants provided a real reason for bringing these proceedings against them.

Fancourt J had also added obiter that had he accepted jurisdiction against the Switzerland-based defendants on the basis of the anchor mechanism, he would have granted a stay in those proceedings, applying the lis alibi pendens rule of Lugano reflexively, despite the absence of an Article 34 mechanism in Lugano. The Court of Appeal clearly had to discuss this given that it did accept jurisdiction against the Switserland-based defendants, and held that the High Court was right in deciding in principle for reflexive application, at 178: ‘This approach does not subvert the Convention but, on the contrary, is in line with its purposes, to achieve certainty in relation to jurisdiction and to avoid the risk of inconsistent judgments.’

That is a finding which stretches the mutual trust principle far beyond Brussels /Lugano parties and in my view is far from clear.

However, having accepted lis alibi pendens reflexively in principle, the Court of Appeal nevertheless held it should not do so in casu, at 200 as I also discuss below: ‘the fact that consolidation was not possible was an important factor militating against the grant of a stay, when it came to the exercise of discretion as to whether to do so’.

Finally, stay against the English defendants was granted by the High Court on the basis of A34 BIa, for reasons discussed in my earlier post. On this too, the Court of Appeal disagreed.

Firstly, on the issue of ‘related’ actions: At 183: ‘The Bank argues that the actions are not “related” in the sense that it is expedient to hear and determine them together, because consolidation of the Bank’s claim with Mr Kolomoisky’s claim in the defamation proceedings would not be possible. It is submitted that unless the two actions can be consolidated and actually heard together, it is not “expedient” to hear and determine them together. In other words, the Bank submits that expediency in this context means practicability.’ The Court of Appeal disagreed: At 191: ‘The word “expedient” is more akin to “desirable”, as Rix J put it, that the actions “should” be heard together, than to “practicable” or “possible”, that the actions “can” be heard together. We also consider that there is force in Ms Tolaney’s point that, if what had been intended was that actions would only be “related” if they could be consolidated in one jurisdiction, then the Convention would have made express reference to the requirement of consolidation, as was the case in article 30(2) of the Recast Brussels Regulation.’

Further, on the finding of ‘sound administration of justice’: at 211:  ‘the unavailability in the Ukrainian court of consolidation of the Bank’s current claim with Mr Kolomoisky’s defamation claim remains a compelling reason for refusing to grant a stay. In particular, the fact that the Bank’s claim would have to be brought before the Ukrainian commercial court rather than before the Pechersky District Court in which the defamation proceedings are being heard means that if a stay were granted, the risk of inconsistent findings in these different courts would remain. Furthermore, we accept Lord Pannick’s overall submission that, standing back in this case, it would be entirely inappropriate to stay an English fraud claim in favour of Ukrainian defamation claims, in circumstances where the fraud claim involves what the judge found was fraud and money laundering on an “epic scale” ‘

Finally, at 213, ‘that the English claim against Mr Kolomoisky and Mr Bogolyubov and the English Defendants should be allowed to proceed, it inevitably follows that the BVI Defendants are necessary or proper parties to that claim and that the judge was wrong to conclude that the proceedings against the BVI Defendants should be set aside or stayed.’

One or two issues in this appeal deserve to go up to the CJEU. I have further analysis in a forthcoming paper on A34.

Geert.

(Handbook of) European Private International Law – 2nd ed. 2016, Chapter 2, Heading 2.2.14.5

 

 

L’arrêt rapporté procède à d’intéressants rappels relatifs au principe de légalité et à la motivation du choix de la peine en matière correctionnelle.

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Dans cet arrêt de grande chambre rendu à l’unanimité, la Cour européenne des droits de l’homme condamne la formulation de propos négationnistes, même dans l’arène politique, en identifiant un abus du droit à la liberté d’expression.

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Le chroniqueur judiciaire Julien Mucchielli, collaborateur au sein de Dalloz actualité, reprend le dossier de François Darcy, condamné pour avoir assassiné son épouse le 26 avril 2012. Dans un livre-enquête passionnant, l’auteur pointe les défauts des investigations menées dans cette affaire, tout en relatant les deux procès d’assises.

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In C-215/18 Libuše Králová v Primera Air Scandinavia, Saugmandsgaard ØE AG now unsurprisingly (following the CJEU predecent of Feniks and Flightright), advised that in a package of services acquired from a travel agent, where there is no direct agreement with the airline carrying out the flight part of the package, there is a ‘contract’ between the individual and the airline within the meaning of Article 7(1) BIa.

At 37 the AG emphasises the element of predictability on the part of the airline, who should not be surprised to be sued by the individual whom they agree with the travel agency to transport, both in the place of take-off and landing, per Zurich Insurance.

However unlike the Commission, the AG supports a less extensive interpretation of the consumer section. Package travel as defined in Directive 90/314, unlike simple tickets for transport only, are covered by the protective provisions of Article 17 ff BIa. Yet the AG proposes to extend that regime only to the direct relationship between the travel agent and the consumer, not the airline who merely carries out the transport side of the arrangement. At 48 ff the AG sets out his reasons for the limitation: the emphasis in the consumer section on the very consumer and professional party who concluded the contract (48-49); the distinction with Maletic since in the case at issue claimant is after the airline company only, not an in solidum finding against the agency and the airline (5-52); and of course the need for strict interpretation.

Note of course the different balance struck by the AG as opposed to e.g. the High Court in Bonnie Lackey.

Geert.

(Handbook of) European private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.8.2.

L’arrêt rapporté vient enrichir le contentieux des restitutions durant l’instruction en apportant d’intéressantes précisions.

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The XXth volume of the Yearbook of Private International Law has just been published. Ilaria Pretelli, who has edited this volume together with Andrea Bonomi and Gian Paolo Romano, has been so kind as to provide not only the following teaser but also the Table of Contents and Foreword to conflictoflaws.net.

The new 20th volume (2018/2019) of the Yearbook of Private International Law contains over 30 articles on the most important aspects of private international law by authors from all over the world. You will find inspiring articles on the law of non-recognised states, the American restatement on international arbitration, the recognition of so-called marriage for all in Europe and, highly topical, a contribution to the Hague Judgments Convention and the reform of the Brussels IIa Regulation.

As always, the National Reports with information on relevant legal developments worldwide, News from the Hague, the case law section and also the forum are highly interesting and unique.

Hospitalisation sans consentement

Sécurité sociale