Agrégateur de flux

The Centre for European Policy (CEP) in Freiburg (Breisgau) is the European-policy think tank of the German non-profit foundation “Stiftung Ordnungspolitik”. It has just released its policy brief on the Proposal COM(2018) 96 of 12 March 2018 for a Regulation of the European Parliament and of the Council on the law applicable to the third-party effects of assignments of claims. The CEP’s main conclusion reads as follows:

“The general rule, that the applicable law is that of the assignor’s habitual residence, strengthens legal clarity and thus legal certainty. However, it increases transaction costs and complexity. For syndicated loans, an exception to the general rule should be added to avoid the application of various laws. To avoid legal uncertainty, the Regulation must clarify what is meant by the habitual residence ‘at the material time’ and should only allow overriding mandatory provisions of the law of the Member State in which the assignment has to be or has been performed. The Regulation’s rules on conflict of laws overlap with those of other EU directives and regulations. This results in inconsistencies.”

The full text of the policy brief is available here. See also the earlier posts on this topic by Robert Freitag and by Leonhard Hübner.

Chambre de l'instruction

Action civile

Moreira / EUIPO - Da Silva Santos Júnior (NEYMAR)
Propriété intellectuelle et industrielle
Le Tribunal de l’UE confirme la nullité de l’enregistrement par un tiers de la marque NEYMAR

M, C-77/17 X, C-78/17 X
Espace de liberté, sécurité et justice
Les dispositions de la directive sur les réfugiés relatives à la révocation et au refus de l’octroi du statut de réfugié pour des motifs liés à la protection de la sécurité ou de la société de l’État membre d’accueil sont valides

CCOO
SOPO
Les États membres doivent obliger les employeurs à mettre en place un système permettant de mesurer la durée du temps de travail journalier

The Centre for Notary and Registry Studies (CENoR) of the Faculty of Law, University of Coimbra, will host a conference on 6 and 7 June, co-organized with the Spanish Colegio de Registradores de Propiedad, dealing with registration aspects of Regulation (EU) 2016/1103 on matrimonial property regimes.

 

More information and enrolment here.

L’intérêt de cet arrêt est de souligner qu’en application de l’article 706-154 du code de procédure pénale, le procureur de la République peut autoriser par tout moyen l’officier de police judiciaire à saisir les sommes versées sur un compte bancaire.

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Irrecevabilité

On 10 and 11 May 2019, the 2nd Dialogue on International Family Law took place at the University of Marburg (Germany). The dialogue serves as a forum for the exchange between high-level practitioners and academics active in the field of international family law; it is organised on an annual basis by Professors Christine Budzikiewicz (Marburg) and Bettina Heiderhoff (Münster), Dr. Frank Klinkhammer, a judge at the German Federal Supreme Court and an honorary professor in Marburg, and Dr. Kerstin Niethammer-Jürgens, a renowned family lawyer in Potsdam/Berlin. This year’s meeting focused on the well-being of the child in international family law, the pending revision of the Brussels IIbis Regulation and conflict of laws with regard to matrimonial property.

The conference was opened by Professor Rüdiger Ernst, a judge at the Kammergericht (Court of Appeals of Berlin), who described and analysed the various standards regarding the procedure to hear a child in international cases, with a special focus on the current state of play concerning the Brussels IIbis Regulation. The second presentation on the well-being of the child in the procedural law of the EU (the Brussels IIbis and the Maintenance Regulation) was given by Bettina Heiderhoff, who, in light of an intense scrutiny of the case-law, posed the critical question as to whether judges actually give weight to the well-being of the child in determining jurisdiction or whether they merely pay lip-service to this overarching goal. In particular, Heiderhoff focused on the question to which degree concerns for the well-being of children had an influence on determining their habitual residence. The second panel was started by Professor Anatol Dutta (University of Munich), who dealt with issues of lis pendens and annex jurisdiction in international family procedures – apparently, this is another area where more coherence between the various European regulations would be highly desirable. Then, Dr. Andrea Schulz (European Commission) analysed the new system of enforcement of judgments in the framework of the revised Brussels IIbis Regulation, which, by abolishing exequatur, shows a discernible influence of the paradigm shift already achieved by Brussels Ibis. At the moment, the English text is being finalised; it is to be expected that the revised version will be adopted by the Council of Ministers at the end of June 2019.

On the second day of the conference, Professor Dirk Looschelders (University of Düsseldorf) gave a presentation on the substantive scope of the Matrimonial Property Regulation (and the Regulation on Property Aspects of Registered Partnerships). The fact that there is no common European definition of the concept of “marriage” leads to numerous difficulties of characterisation; moreover, European courts will have to develop autonomous criteria to draw the line between matrimonial property regimes and adjacent legal areas (contracts, partnerships) not governed by the Regulation. Subsequently, Dr. Jens Scherpe (University of Cambridge) talked about forum shopping before English courts in matrimonial property cases. He focused on determining jurisdiction, calculating alimony and maintenance under English law and the thorny issue of under which circumstances English courts will accept matrimonial contracts as binding. Finally, Frank Klinkhammer gave a survey on recent case-law of the Federal Supreme Court in cases involving international agreements on surrogacy, in particular regarding the Ukraine. In a recent decision of 20 March 2019 (XII ZB 530/17), the Court had decided that a child who, after being born by a Ukrainian surrogate mother, was then brought to Germany as planned by all parties did not have its first habitual residence in the Ukraine, but in Germany, which, in effect, leads to consequence that the German designated mother has no other option but to adopt the child if she wishes to establish a family relationship. This led to an intense discussion about the principle of recognition and the determination of habitual residence (again). The conference proceedings will be published by Nomos. The next dialogue will take place on 24-25 April 2020 in Münster.

The latest issue of the Zeitschrift für Europäisches Privatrecht (ZEuP 2/2019) features a very interesting article by the former president of the Groupe Européen de Droit International Privé (GEDIP), Christian Kohler, on “Comparative Law in Action at the Court of Justice of the European Union – European Conflict of Laws in Theory and Practice” (p. 337). In this autobiographical essay, Kohler traces his professional career from studying at the Free University of Berlin under the supervision of his academic teacher, the legendary Wilhelm Wengler, to becoming General Director at the European Court of Justice while also being part of European academia as an honorary professor for private international law, European civil procedural law and comparative law at the University of Saarbrücken. In particular, Kohler elucidates the practical working of the CJEU and the very important role that comparative legal research plays in preparing the Court’s rulings. Although, seen from the outside, the influence of comparative considerations is frequently not discernible in the Court’s decisions themselves – which, following the French style in this regard, contain neither footnotes nor lengthy doctrinal discussion –, Kohler vividly describes the enormous amount of work that was put into building a world-class legal library in Luxembourg and the intense use that the Advocates General and their scientific staff make of its resources. A fascinating read – highly recommended!

In the editorial of the same issue (p. 249), Alexandre Biard and our fellow conflictoflaws.net co-editor Xandra Kramer (Erasmus University Rotterdam) give a critical comment on “The EU Directive on Representative Actions for Consumers: a Milestone or Another Missed Opportunity?”. This article intends to contribute to ongoing policy discussions at the EU level by pointing out several loopholes in the current Commission’s proposal. After highlighting a few key elements of the proposed representative action, the authors focus on selected issues. They submit that first, in view of the ever-increasing globalisation of goods and services, a revision of European private international law rules is urgently needed for resolving cross-border mass claims. Secondly, they argue that the Commission’s proposal fails to fully consider new actors and new forms of mass litigation that are now emerging, in particular the rise of mass dispute entrepreneurs who are using online platforms and digital tools to structure and to create mass claims. Thirdly, the authors elaborate that the Commission’s proposal leaves several questions relating to the financing of mass litigation still unanswered.

In addition, the issue contains three case-notes on recent important decisions:

Wolfgang Hau (University of Munich) analyses the decision of CJEU in the case C-467/16, ECLI:EU:C:2017:993 ? Brigitte Schlömp ./. Landratsamt Schwäbisch Hall, in which the Court decided that Articles 27 and 30 of the Lugano Convention must be interpreted as meaning that, in the case of lis pendens, the date on which a mandatory conciliation procedure was lodged before a conciliation authority under Swiss law is the date on which a “court” is deemed to be seized (p. 384).

Anton S. Zimmermann (University of Heidelberg) deals with the ruling of the CJEU in the case C-210/16, ECLI:EU:C:2018:388 – Wirtschaftsakademie Schleswig-Holstein GmbH ./. Unabhängiges Landeszentrum für Datenschutz Schleswig-Holstein, in which the Court decided that European data protection rules must be interpreted as meaning that the concept of “controller” within the meaning of those provisions encompasses the administrator of a fan page hosted on a social network. In addition, the Court gave further guidance on the applicability of European data protection rules to international cases (p. 395).

Finally, Kasper Steensgaard (University of Aarhus) comments on a judgment of the Danish Supreme Court of 6 December 2016, case no. 15/2014 (p. 407). In this judgment, the Danish Supreme Court reaffirmed an interpretation of § 2a of the Danish Law on salaried employees (LSE) that the CJEU had found to be precluded by EU law. Whereas the CJEU had instructed the Danish Supreme Court to either change the interpretation or to disapply the provision as barred by the general principle of non-discrimination on grounds of age, the Danish judges found it impossible to change the interpretation, and the majority decided to apply the controversial understanding of § 2a LSE, despite the CJEU’s ruling to the contrary.

For the further content of the same issue of the ZEuP, see last week’s selection of other no less interesting articles here.