Agrégateur de flux

Dans un arrêt rendu à l’unanimité le 12 décembre 2023, la Cour européenne des droits de l’homme considère qu’une sanction de travaux d’intérêts généraux pour des faits de violences sexuelles répétées expose la victime à un traitement inhumain et dégradant par ailleurs attentatoire au respect de sa vie privée et familiale. 

Sur la boutique Dalloz Droit de l’exécution des peines 2023/2024 Voir la boutique Dalloz

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Marco Buzzoni, Doctoral Researcher at the Luxembourg Centre for European Law (LCEL) and PhD candidate at the Sorbonne Law School, offers a critical analysis of some recent rulings by the Court of Justice of the European Union in matters of data protection.

In a series of three preliminary rulings issued on 14th December and 21st December 2023, the Court of Justice of the European Union (‘CJEU’) was called upon again to rule on the interpretation of Article 82 of the General Data Protection Regulation (‘GDPR’). While these rulings provide some welcome clarifications regarding the civil liability of data controllers, their slightly inconsistent reasoning will most likely raise difficulties in future cases, especially those involving cross-border processing of personal data.

On the one hand, the judgments handed down in Cases C-456/22, Gemeinde Ummendorf, and C-340/21, Natsionalna agentsia za prihodite, explicitly held that three elements are sufficient to establish liability under Article 82 GDPR. In so doing, the Court built upon its previous case law by confirming that the right to compensation only requires proof of an infringement of the Regulation, some material or non-material damage, and a causal link between the two. On the other hand, however, the Court seemingly swayed away from this analysis in Case C-667/21, Krankenversicherung Nordrhein, by holding that a data controller can avoid liability if they prove that the damage occurred through no fault of their own.

In reaching this conclusion, the Court reasoned that imposing a strict liability regime upon data controllers would be incompatible with the goal of fostering legal certainty laid out in Recital 7 GDPR. By introducing a subjective element that finds no mention in the Regulation, the Court’s latest decision is nonetheless likely to raise difficulties in cross-border cases by introducing some degree of unpredictability with respect to the law applicable to data controllers’ duty of care. In time, this approach might lead to a departure from the autonomous and uniform reading of Article 82 that seemed to have prevailed in earlier cases.

The Court’s Rejection of Strict Liability for Data Controllers

According to the conceptual framework laid out by the CJEU in its own case law, compensation under Article 82 GDPR is subject to three cumulative conditions. These include an infringement of the Regulation, the presence of some material or non-material damage, and a causal link between the two (see Case C-300/21, UI v Österreichische Post AG, para 32). In the cases decided in December 2023, the Court was asked to delve deeper into each of these elements and offer some additional guidance on how data protection litigation should play out before national courts.

In case C-456/22, the CJEU was presented with a claim for compensation for non-material damage filed by an individual against a local government body. The plaintiff alleged that their data protection rights had been breached when the defendant intentionally published documents on the internet that displayed their unredacted full name and address without their consent. Noting that this information was only accessible on the local government’s website for a short time, the referring court asked the CJEU to clarify whether, in addition to the data subject’s mere short-term loss of control over their personal data, the concept of ‘non-material damage’ referred to in Article 82(1) of the GDPR required a significant disadvantage and an objectively comprehensible impairment of personal interests in order to qualify for compensation. Rather unsurprisingly, the Court (proceeding to judgment without an Opinion) answered this question in the negative and held that, while Article 82(1) GDPR requires proof of actual damage, it also precludes any national legislation or practice that would subject it to a “de minimis threshold” for compensation purposes.

In doing so, the Court followed the road map outlined in UI v Österreichische Post AG, which had already held that the concept of damage should receive an autonomous and uniform definition under the GDPR (Case C-456/22, para 15, quoting Case C-300/21, paras 30 and 44) and should not be limited to harm reaching a certain degree of seriousness. Arguably, however, the Court also went beyond its previous decision by stating that the presence of an infringement, material or non-material damage, and a link between the two were not only “cumulative” or “necessary” but also “sufficient” conditions for the application of Article 82(1) (Case C-456/22, para 14). Remarkably, the Court did not mention any other condition that could have excluded or limited the data subject’s right to compensation. Taken literally, this decision could thus have been understood as an implicit endorsement of a strict liability regime under the GDPR.

This impression was further strengthened by the judgment handed down in Case C-340/21, where the Court was asked to weigh in on the extent of a data controller’s liability in case of unauthorised access to and disclosure of personal data due to a “hacking attack”. In particular, one of the questions referred to the CJEU touched upon whether the data controller could be exempted from civil liability in the event of a personal data breach by a third party. Contrary to the Opinion delivered by AG Pitruzzella, who argued that the data controller might be exonerated by providing evidence that the damage occurred without negligence on their part (see Opinion, paras 62-66), the CJEU ignored once more the question of the data controller’s fault and rather ruled that the latter should establish “that there [was] no causal link between its possible breach of the data protection obligation and the damage suffered by the natural person” (Case C-340/21, para 72).

A few days later, however, the CJEU explicitly endorsed AG Pitruzzella’s reading of Article 82 GDPR in Case C-667/21. In a subtle yet significant shift from its previous reasoning, the Court there held that the liability of the data controller is subject to the existence of fault on their part, which is presumed unless the data controller can prove that they are in no way responsible for the event that caused the damage (Case C-667/21, holding). To reach this conclusion, The Court relied on certain linguistic discrepancies in Article 82 of the GDPR and held, contrary to the Opinion by AG Campos Sánchez-Bordona, that a contextual and teleological interpretation of the Regulation supported a liability regime based on presumed fault rather than a strict liability rule (Case C-667/21, paras 95-100). Formulated in very general terms, the holding in Case C-667/21 thus suggests that a controller could be released from liability not only if they prove that their conduct played no part in the causal chain leading to the damage but also — alternatively — that the breach of the data subject’s rights did not result from an intentional or negligent act on their part.

Lingering Issues Surrounding the Right to Compensation in Cross-Border Settings

According to the CJEU, only a liability regime based on a rebuttable presumption of fault is capable of guaranteeing a sufficient degree of legal certainty and a proper balance between the parties’ interests. Ironically, however, the Court’s approach in Case C-340/21 raises some significant methodological and procedural questions which might lead to unpredictable results and end up upsetting the parties’ expectations about their respective rights and obligations, especially in cases involving cross-border processing of personal data.

From a methodological perspective, the CJEU’s latest ruling does not fit squarely within the uniform reading of the GDPR that the Court had previously adopted with respect to the interpretation of Article 82 GDPR. In the earlier cases, in fact, the CJEU had consistently held that the civil liability requirements laid out in the Regulation, such as the notion of damage or the presence of an actual infringement of data protection laws, should be appreciated autonomously and without any reference to national law (on the latter, see in particular Case C-340/21, para 23). On the other hand, however, the Court has also made clear that if the GDPR remains silent on a specific issue, Member States should remain free to set their own rules, so long that they do not conflict with the principles of equivalence and effectiveness of EU law (on this point, see eg Case C-340/21, para 59).

Against this backdrop, the Court’s conclusion that the civil liability regime set up by the legislature implicitly includes the presence of some fault on the defendant’s part begs the question of whether this requirement should also receive a uniform interpretation throughout the European Union. In favour of this interpretation, one could argue that this condition should be subject to the same methodological approach applicable to the other substantive requirements laid out in Article 82 GDPR. Against this position, it could nonetheless be pointed out that in the absence of explicit indications in this Article, the defendant’s fault should be assessed by reference to national law unless another specific provision of the Regulation (such as Articles 24 or 32 of the GDPR) specifies the degree of care required of the data controller or processor. In the context of cross-border cases, the latter interpretation would thus allow each Member State to determine, based on their own conflict-of-laws rules, the law applicable to the defendant’s duty of care in cases of violations of data protection laws. If generalised, this approach might in time lead to considerable fragmentation across the Member States.

In addition to these methodological difficulties, the Court’s decision in Case C-340/21 also raises some doubts from a procedural point of view. In holding that the data controllers’ liability is subject to the existence of fault on their part, the CJEU calls into question the possible interaction between national court proceedings aimed at establishing civil liability under Article 82 GDPR and administrative decisions adopted by data protection authorities. With respect to the latter, the CJEU had in fact ruled in Case C-683/21, Nacionalinis visuomenés sveikatos centras, that Article 83 GDPR must be interpreted so that an administrative fine may be imposed pursuant to that provision “only where it is established that the controller has intentionally or negligently committed an infringement referred to in paragraphs 4 to 6 of that article” (Case C-683/21, holding). In other words, national supervisory authorities are also called upon to assess the existence of fault on the part of the data controller or processor before issuing fines for the violation of data protection laws.

At first glance, the CJEU’s decision in Case C-340/21 fosters some convergence between the private and public remedies set out in the GDPR. In reality, however, this interpretation might potentially create more hurdles than it solves. Indeed, future litigants will likely wonder what deference, if any, should be given to a supervisory authority’s determinations under Article 83 GDPR within the context of parallel court proceedings unfolding under Article 82. In a similar context, the Court has already held that the administrative remedies provided for in Article 77(1) and Article 78(1) GDPR may be exercised independently and concurrently with the right to an effective judicial remedy enshrined in Article 79 GDPR, provided that national procedural rules are able to ensure the effective, consistent and homogeneous application of the rights guaranteed by the Regulation (see Case C-132/21, Nemzeti Adatvédelmi és Információszabadság Hatóság v BE). Should the same principles apply to actions brought under Article 82 GDPR? If so, should the same rule also extend to conflicts between national court proceedings and decisions issued by foreign supervisory authorities (and vice-versa), even though each of them might have a different understanding of the degree of protection afforded by the Regulation?

Despite the CJEU’s laudable attempt to strike a balance between the interests of personal data controllers and those of the individuals whose data is processed, it is not certain that the Court has fully assessed all the consequences of its decision. Ultimately, in fact, the choice to reject a strict liability rule could lead not only to unequal protection of individual rights within the EU but also to major uncertainties for economic operators regarding the extent of their own liability under the GDPR.

I am much annoyed one has to refer to cases like these yet again as X v Y (see also here, also on Article 22 Rome II). I understand the need for anonymisation in this particular case, ECLI:NL:PHR:2023:1114, which concerns the liability of a Dutch mother, guardian of a (young) adult son with mild autism and ADHD and a number of mental health challenges, who stabbed and otherwise attacked a Russian (immaterial to the attack) boy living in Germany but holidaying with his family in Crete. Yet some kind of acronym might be helpful.

At any rate, the interest of this tragic case for the blog lies in Advocate General Vlas discussing Rome II particularly the evidence and procedure carve-out as qualified by Article 22 Rome II’s inclusion of the burden of proof in the lex causae:

Article 22 Rome II

Burden of proof

1.   The law governing a non-contractual obligation under this Regulation shall apply to the extent that, in matters of non-contractual obligations, it contains rules which raise presumptions of law or determine the burden of proof.

2.   Acts intended to have legal effect may be proved by any mode of proof recognised by the law of the forum or by any of the laws referred to in Article 21 under which that act is formally valid, provided that such mode of proof can be administered by the forum.

Parties agree Greek law is the lex causae. Dutch law applies procedurally as the lex fori, with the A22 Rome II caveat. (3.25) the AG cites the relevant burden of proof issue in the Greek Civil Code: Article 923:

 “Whoever has the supervision of a person under age or of a person placed under judicial assistance is liable for the damage that such persons unlawfully cause to a third party, unless he proves that he has exercised properly the duty of supervision or that the damage could not have been avoided. (…)”. (…)’

(3.26) the AG summarises the implications of A22 as follows (translated by me, and omitting his references (ia to prof Peters, Magnus/Mankowski/Queirolo, Kramer, and Bart-Jan van het Kaar) 

In brief, it follows from A22(1) Rome II that the lex causae applies to the burden of proof. A22 concerns substantive issues of the law of evidence, such as the distribution of the burden of proof. It does not concern issues relating to the formal elements of the burden of proof, such as admissibility and the appreciation of evidence. These issues are subject (see A10:3 Dutch Civil Code) to Dutch law as the lex fori.

A relevant consideration, one will have to wait and see whether the Supreme Court itself will engage with the A22 issue, which is only a small part of the appeal.

Geert.

EU Private International Law, 4th ed 2024, 4.79 ff.

X v Y (parental responsibility). Vlas AG (of the Supreme Court of The Netherlands) ia on the evidence and procedure carve-out and Article 22 Rome II.https://t.co/OGt1m04LPx

— Geert Van Calster (@GAVClaw) January 17, 2024

In a previous post, I presented the traditional approach of the French Supreme Court in civil and criminal matters (Cour de cassation) on the applicable law to the time limit to enforce foreign judgments, which was confirmed by a judgment of 11 January 2023. But the central issue addressed by this judgment was whether the action to seek a declaration of enforceability of a foreign judgment (exequatur) was itself governed by any time limit.

Background

The case was concerned with an acte de défaut de biens issued by a Swiss authority. This peculiar act of Swiss law is a public document issued by a Swiss enforcement authority (office des poursuites) when a debtor was unable to meet its debts. The acte is an enforceable title, which as such can be enforced in other European States under the Lugano Convention.

In this case, the creditor had sought a declaration of enforceability in France of an acte de défaut de biens 15 years after it was issued in Lausanne. The debtor argued that the action to seek the declaration was time barred. The lower court had ruled that it was not, on the ground that the time limit to enforce an acte de défaut de biens was 20 years under Swiss law. In contrast, the debtor argued that the French time limit of 10 years should have been applied.

Judgment

The case raised the novel issue of the time limit to seek a declaration of enforceability, which is distinct from the issue of the time limit to actually enforce a foreign judgment in France, on the basis of such declaration.

Time Limit to seek exequatur

The Court de cassation ruled that there is no applicable time limit to seek exequatur in France. The rule is formulated in general terms, by referring to exequatur. The applicability of the Lugano Convention, and the fact that the Swiss judgment was to be declared enforceable, and not granted exequatur, is not mentionned, and seems irrelevant for the court.

French scholars debated which law should apply to the determination to the time limit to seek exequatur of a foreign judgment. But none of them had considered the possibility that there might be none. Certainly, by ruling that there is no time limit to seek exequatur of a foreign judgment in France, the court implicitly ruled that the issue is governed by French law.

In a context where the time limit applicable to the enforcement of the foreign judgment is provided by the law of the State of origin (as it is under Swiss law), the practical consequence of having no time limit to seek exequatur is limited. The creditor has no particular incentive to wait to seek exequatur, since it does not impact the time limit to enforce the judgment, which is running.

But the French rule is different. The applicable time limit to enforce a foreign judgment in France is the French 10 year time limit, and it starts running from the French exequatur decision. This means that any creditor with a foreign judgment the time limit of which is about to expire may seek exequatur in France and get a new 10 year period to enforce in France. In the foreign time limit was already quite long (for instance, 30 years in Luxembourg), the result could be to offer the possibility to the creditor to enforce the judgment for a remarkably long time period (40 years).

Should the Rule Be Different Under the European Law of Judgments?

The Lugano Convention and EU regulations on foreign judgments are silent on the time limit to seek exequatur (including, obviously, the Brussels I bis Regulation, which does not provide for any exequatur). Does that mean that there should be none, or that the issue is governed by national law? If it is governed by national law, it would seem, however, that too short a time period might not comport with the European freedom of circulation of judgments. In contrast, it is hard to criticise the French rule in that respect.

The Croatian Academy of Science and Art organises the roundtable titled “Private international law and global trends“, which will be held on Monday, 22 January 2024, at 11 h, in the premises of the Faculty of Law in Zagreb in Cirilometodska street, 4 (due to ongoing renovation of the Academy’s building which suffered damage in the earthquake of 2020, as visible in the photo when expanded). Attendance is open to all, but your intention to join should be communicated to Ms. Muhek at zmuhek@hazu.hr.

The programme includes the following topics:
Prof. Dr. Ines Medic, University of Split, Faculty of Law
Challenges of globalization of private international law for national judiciary

Prof. Dr. Ivana Kunda, University of Rijeka, Faculty of Law
Have frontier digital technologies surpassed the boundaries of private international law?

Prof. Dr. Mirela Zupan, Assoc. Prof. Dr. Paula Poretti, Jura Golub, University of J. J. Strossmayer in Osijek, Faculty of Law
Foreign public documents in the digital age

Asst. Prof. Dr. Danijela Vrbljanac, University of Rijeka, Faculty of Law
Breach of personal data in private international law

Asst. Prof. Dr. Tena Hosko, University of Zagreb, Faculty of Law
Protection of workers in private international law

Assoc. Prof. Dr. Dora Zgrabljic Rotar, University of Zagreb, Faculty of Law
The effect of the Hague Judgments Convention of 2019 on the recognition and enforcement of foreign court decisions in the Republic of Croatia

The proceeds from the conference will be edited by Prof. Dr. Mirela Zupan and published in a book within the series Modernisation of Law whose general editor is Academy Member Prof. Dr. Jakša Barbic.

Kaili / Parlement et Parquet européen
Droit institutionnel
Levée de l’immunité parlementaire : le recours de Mme Eva Kaili contre la demande de la cheffe du Parquet européen et la décision de la présidente du Parlement est rejeté

On Tuesday, February 6, 2024, the Hamburg Max Planck Institute will host its 41st monthly virtual workshop Current Research in Private International Law at 11:00-12:30 (CET). Heinz-Peter Mansel (Universität zu Köln) will speak, in German, about

Supply Chains and Conflict of Laws – Selected Issues

The presentation will be followed by an open discussion. All are welcome. More information and sign-up here.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

As announced on this blog, registrations for the EAPIL Winter School, which is taking place in Como between 12 and 16 February 2024, will close on 25 January 2024

Organised by the University of Insubria, in cooperation with the Jagiellonian University in Kraków, the University of Murcia and the University of Osijek, this year’s edition of the Winter School will be devoted to Personal Status and Family Relationships.

The detailed programme can be found here.

The School is aimed primarily at law graduates, law practitioners and PhD candidates with an interest in private international law, EU law and human rights law.

Those interested in attending the School are invited to submit their application through this form before 25 January 2024. The admission fees amount to 250 Euros.

For information: eapilws@gmail.com.

The Max Planck Institute for Social Anthropology in Halle (Saale), Germany, is advertising two PhD positions in Private Law within the context of a research project on “Cultural Diversity in
Private Law” lead by Dr Mareike Schmidt.

More information can be found here.

Österreichische Datenschutzbehörde
Principes du droit communautaire
Une commission d’enquête parlementaire doit en principe respecter le règlement général sur la protection des données

Intervyuirasht organ na DAB pri MS (Femmes victimes de violences domestiques)
Espace de liberté, sécurité et justice
Violences faites aux femmes : la Cour précise les conditions pour bénéficier de la protection internationale

This blogpost is written by Stichting IJI (The Hague Institute for private international law and foreign law)

On 13 June 2023 the Amsterdam Court of Appeal addressed the scope of Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes (hereinafter: Regulation 2016/1103) (ECLI:NL:GHAMS:2023:1358).

The court had to rule on the matter of jurisdiction regarding the division of real estate located in New Zealand between parties who had agreed upon the exclusion of marital property. In this post, we will discuss the court’s assessment of the substantive scope of Regulation 2016/1103 with regard to the jurisdiction of the Dutch court.

Regulation 2016/1103: Overview

Regulation 2016/1103 entered into application on 29 January 2019 following the objective of certain Member States to establish a more enhanced cooperation between themselves aimed at adopting common rules on jurisdiction, applicable law and the recognition and enforcement of decisions with regard to property regimes of international couples, covering both marriages and registered partnerships.

The Regulation has been adopted under the special regime of enhanced cooperation, as provided for by Article 20 of the Treaty on European Union (TEU) and Articles 326 to 334 of the Treaty on the Functioning of the European Union (TFEU). The territorial scope of the Regulation is therefore limitedly binding for the Member States participating in this cooperation.

According to Article 69 of Regulation 2016/1103 the regulation applies only to legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded on or after 29 January 2019.

Its substantive scope should include all civil-law aspects of matrimonial property regimes, both the daily management of matrimonial property and the liquidation of the regime, in particular as a result of the couple’s separation or the death of one of the spouses. For the purposes of the Regulation, the term ‘matrimonial property regime’ should be interpreted autonomously and should encompass not only rules from which the spouses may not derogate but also any optional rules to which the spouses may agree in accordance with the applicable law, as well as any default rules of the applicable law. It includes not only property arrangements specifically and exclusively envisaged by certain national legal systems in the case of marriage but also any property relationships, between the spouses and in their relations with third parties, resulting directly from the matrimonial relationship, or the dissolution thereof (Recital 18).

The Facts

The parties involved in this case got married in New Zealand in 1993. At that time, both parties had the Dutch nationality. Additionally, the woman had also the New Zealand citizenship. The parties lived in New Zealand and three children were born during their marriage.

Before marriage, the parties drew up prenuptial agreements in the Netherlands. The parties chose to apply Dutch law to their marital property and, regarding their marital property regime, decided on the exclusion of community of property in accordance with Dutch law.

On 31 March 1999 the man purchased a house in New Zealand. The parties lived in this accommodation from 2000 to 2008 with their three children. In 2007 the man paid off his mortgage on this property. Before relocating to the Netherlands, the parties drew up a ‘property agreement’ with regards to the house, stating that the parties were now co-owners of the property. This was necessary as the applicable Dutch marital property regime of the exclusion of community of property would not result in co-ownership over the property. In the property agreement the parties agreed on the following:

(…)

BACKGROUND

(…)

1. 1976. The parties wish to record their agreement as to the ownership of the home pursuant to Section 21(2) of the Property (Relationships) Act 1976.

AGREEMENT TERMS

1. 1. The husband declares that the home is relationship property.
   2. As from the date of this agreement the husband and the wife shall own the home as joint tenants and the husband declares that he now holds ownership of the home, as registered proprietor, as trustee for the husband and the wife accordingly.
   3. (…)
   4. Ownership of the home, and any transfer, is subject to all existing registered encumbrances, but the mortgage to the ASB Bank is to be discharged, as it has been repaid in full.
   5. This agreement is made pursuant to Section 21(2) of the Property (Relationships) Act 1976 and is specific to the home and is not attempting to determine ownership of any other property (separate or relationship) which may also be owned by the husband and/or the wife, nor does it otherwise effect the pre-nuptial agreement signed by the parties prior to their marriage.
   6. This agreement is binding on the parties in all circumstances including (…) dissolution of marriage (…).
   7. Each party:

(a) (…)

(b) acknowledges that before signing this agreement he or she has had independent legal advice as to the nature, effect and implications of this agreement.

(…)

The parties eventually got divorced on 18 November 2019 in the Netherlands.

First Instance Judgment

As an ancillary provision to the divorce petition the man requested the Amsterdam District Court to divide the property in New Zealand and to grant him compensation for his private investments in this property. The court retained itself competent to decide on this request based on Article 6 of Regulation 2016/1103. The court recognized the co-ownership of the property and applied Dutch law to the division of the property in line with the choice of law in the prenuptial agreement of the parties.

The court then ordered the sale of the property and ordered the woman to cooperate with that sale. If the woman would not cooperate, the court granted the man the power to act solely with regards to the sale of the property. In addition, the court ruled that both parties would share the revenue and would be held responsible for the costs regarding the sale. The woman appealed the court’s decision on the matter of the court’s competence and the applicable law to the division of the house.

Appeal Request

According to the woman, the Dutch court should have never considered itself competent under Article 6 (a) of Regulation 2016/1103 because that Regulation did not apply to the matter at hand. Accordingly, the Amsterdam District Court could not establish its jurisdiction based on the application of the Regulation.

According to the woman the parties shared no marital property in light of their prenuptial agreement. Therefore, the request regarding the division of the property could not fall within the scope of Articles 1 and 3 of Regulation 2016/1103. Instead, the woman argued that any community of property should be dissolved under “common” property law specifically related to proprietary rights and interests, since the marital property regime stipulated the full exclusion of community of property.

Court of Appeal Judgment

The Amsterdam Court of Appeal stated that with regard to legal claims in the field of international matrimonial property law that are brought on or after 29 January 2019, the Dutch court shall establish its jurisdiction on the basis of Articles 4 to 19 of Regulation 2016/1103. This applies even if the claim relates to a marriage that was concluded prior to this date. Materially, Regulation 2016/1103 covers “matrimonial property regimes” (Article 1(1) of Regulation 2016/1103). This includes all property relationships which, as a result of the marriage or its dissolution, exist between the spouses or in relation to third parties (Article 3 (1) (a) of the Regulation). The Court of Appeal then explained then the scope of the Regulation with regards to the property agreement at hand, as follows:

The parties entered into the Property Agreement in 2008. With this agreement the parties became co-owners of the property in New Zealand. Under subsection D of the Property Agreement, the parties recorded that they entered into the agreement “pursuant to Section 21(2) of the Property (Relationships) Act 1976.” It is further recorded under Section 5 of the Property Agreement that “This agreement is made pursuant to Section 21(2) of the Property (Relationships) Act 1976 and is specific to the home and is not attempting to determine ownership of any other property (separate or relationship) (…) nor does it otherwise effect the pre-nuptial agreement signed by the parties prior to their marriage.”

The Court of Appeal considered that the property agreement refers explicitly to the Property (Relationships) Act 1976. The Property (Relationships) Act 1976 pertains to the division of property of married couples (or cohabitating couples) in the event of divorce or death in New Zealand. In addition, the parties signed the property agreement as “husband” and “wife”. Thus, with the referral to the Act and the signing of the agreement in their official capacity as husband and wife, the parties had chosen to establish proprietary consequences through their marital status. With that in mind, the Court of Appeal established that the request for the division of the property in New Zealand falls within the scope of Regulation 2016/1103. Then, the Court of Appeal concluded that since the spouses were habitually resident in the Netherlands at the time the case was brought before the first instance court, the Dutch court had jurisdiction pursuant to Article 6 (a) of the Regulation. The fact that the property is established in New Zealand does not alter the foregoing.

Conclusion

This decision of the Amsterdam Court of Appeal clarifies the broad scope of Article 1 in relation with Article 3 of the Regulation 2016/1103 and Recital 18 of the preamble. Art 1(1) provides that this Regulation applies to matrimonial property regimes. This Article should be read in conjunction with Article 3(1)(a), which defines the notion of ‘matrimonial property regime’ as ‘a set of rules concerning the property relationships between the spouses and in their relations with third parties, as a result of marriage or its dissolution.’  The Court of Appeal explains in its decision that the Regulation 2016/1103 may apply even in cases where the marital property regime includes an exclusion of community of property. The exclusion of community of property might entail that an issue relating to assets of the spouses does not fall within the material scope of the Regulation. After all, it can be argued that there is no connection with the marriage of the persons concerned. However, if the spouses made an agreement with respect to a certain asset and opt for a property relationship as a result of – or in connection with – their marriage, the provisions of Regulation 2016/1103 may be applied for the division of such property.

As the Regulation is still quite young, it will be interesting to monitor rulings on similar subjects from the courts of the participating countries.

This post is part of a series regarding Colonialism and the general structure of (German) Private International Law, based on a presentation I gave in spring 2023. See the introduction here.

As mentioned in the introduction, this series does not intent to automatically pass judgment on a norm or method influenced by colonialism as inherently negative. Instead, the aim is to reveal these influences and to initiate a first engagement with and awareness of this topic and to stimulate a discussion and reflection.

The first post (after the introduction) dealt with classic PIL and colonialism. This second considered structures and values inherent in German or European law, implicitly resonating within the PIL and, thus, expanding those values to people and cases from other parts of the world.  The third category discusses an imagined hierarchy between the Global North and Global South that is sometimes inherent in private international law thinking. The fourth and for the moment last (but not least) category deals with PIL rules that allow or at least contribute to the exploitation of a power asymmetry between parties from the Global North and the Global South. For example, this power and negotiation asymmetry, in conjunction with generous rules on party autonomy, can lead to arbitration and choice of law clauses being (ab)used to effectively undermine rights of land use under traditional tribal law.

After the first post, in the comment section a discussion evolved regarding the (non-)application of tribal law. One question asked for an example. This post can also (hopefully) serve as such an example.

1. Party Autonomy in German and EU PIL

One value inherent to the German and EU legal systems is that of private and party autonomy. It reflects and expresses the individualism of the Enlightenment and a neo-liberal social order and is recognised today, at least in part, as one of the “universal values” of PIL. However, the choice of law and, thus, party autonomy as a core connecting factor or method of PIL can lead to the exploitation of negotiation asymmetries in the relationship between companies in the Global North and states or companies in the Global South, particularly to the detriment of the population in the Global South, by avoiding state control and socially protective regulations.

2. “Land Grabbing” as an Example

“Land grabbing” refers to, among other things, the procedure used by foreign investors to acquire ownership to or rights to exploit territories in former colonies. The contract is concluded with the landowner, often the state, and includes an arbitration and choice of law clause, often within the framework of bilateral investment protection agreements. The use of the land can conflict with the collective, traditional use by certain local groups, which is based on customary and tribal law. Such rights of land use were often only fought for politically after the former colony gained independence, while the original colonial legal system overrode indigenous rights of use (see also former posts here and see the  discussion in the comment section of the post). These land use rights of indigenous groups often stem from public law and are conceived as protection rights of the indigenous population, who are thus authorised to live on their traditional land.

The arbitration agreement and the choice of law clause make it possible for legal disputes to be settled before a private arbitration tribunal. The tribes concerned, as they are not part of the treaty on the land and its use, can only become parties to the legal dispute with difficulty. Furthermore, they may not have knowledge of the treaty and the arbitration clause or the possibility to start a proceeding at the tribunal. In addition, a law applicable to the contract and its consequences may be chosen that does not recognise the right of land use based on tribal law. If the arbitrator, not knowing about the not applicable tribal law or the existence of the tribe, makes a decision based on the chosen law, the decision can subsequently become final and enforceable. This may force the tribes using the land having to vacate it as property disturbers without being able to take legal action against it.

3. Party Autonomy and Colonialism

This possibility of “land grabbing” is made possible by the fact that a state – often a former colony – has a high interest in attracting foreign investment. She, therefore, tries to organise its own legal system, and therefore also her conflict of laws, in an investment-friendly manner and accommodate the investor in the contract. The generous granting of party autonomy and individual negotiating power plays a key role here. A domino effect can be observed in former colonies, where a legal system follows that of neighbouring states once they have attracted foreign investment in order to be able to conclude corresponding agreements. The endeavours of states to introduce a liberal economy form, which is reflected in party autonomy in PIL, can therefore also express a structural hierarchy and form of neo-colonialism. It also indirectly revives the original behaviour of the colonial rulers towards the indigenous peoples with the support of the central state (see former post).

4. Assessment of “Land Grabbing”

If the aforementioned power asymmetry is not counter weighted, arbitration and choice of law clauses can lead to an avoidance of unwanted laws, such as those granting traditional land use rights to local tribes. From a German domestic perspective, the problem arises that the enforcement of (one’s own) local law is a matter for the foreign state. A case where local law will be addressed before German courts will be scarce, esp. in the case of an arbitration proceeding. German courts only come into contact with the legal dispute if an arbitration proceeding has already resulted in a legally binding award and this award is now to be enforced in Germany. In my opinion, this case has to be handled in the same procedure proposed in a former post for the integration of local, non-applicable law. If foreign tribal law is mandatory in the state in question, for example, because there is an obligation under international and domestic law, the arbitral tribunal should be presumed to also observe this obligation as an internationally mandatory norm, irrespective of which lex causae applies. When enforcing the arbitral award domestically, the declaration of enforceability should be prohibited on the grounds of a violation of public policy if the arbitral tribunal has not complied with this obligation.

Furthermore, the use of party autonomy could be more strictly controlled and restrictively authorised when special domestic values and interests of third parties are at stake, as can be the case in particular with the use of land. The lex rei sitae might be more appropriate without allowing for a choice of law.

Finally, restrictions on party autonomy in cases in which negotiation asymmetries are assumed are not unknown to German and European PIL. So, ideas from these rules could be taken up and consideration could be given to which negotiation asymmetries could arise in relation to non-European states. For example, certain types of contract that are particularly typical of power asymmetries could be provided with special protection mechanisms similar to consumer contracts under Art. 6 Rome I Regulation. But that is an international problem that should be discussed on the international level. Therefore, the international community could work towards an international consensus in arbitration proceedings that, for example, property law issues are subject to the lex rei sitae and are not open to a choice of law. Similarly, there could be a discussion whether safeguards should ensure that no choice of law can be made to the detriment of third parties and that, where applicable, participation rights must be examined in arbitration proceedings. Many legal systems already provide those saveguards, so this would not come as a huge novelty.

However, it would also be paternalistic and neo-colonialist if such considerations originated in the Global North without involving the countries to which they refer. It would therefore be desirable to have a stronger and more enhanced dialogue with countries from the Global South that also allows representatives of the local population and local communities to have their say, so that these interests and possibilities for exploiting negotiation asymmetries can be better taken into account.

5. Epilogue

This series has tried to start a debate about Colonialism and Private International Law from the point of view of German PIL. Posts from other jurisdictions might follow. It is a very complex topic and this series only scratched on its surface. As writen in the introduction, I welcome any comments, experiences and ideas from other countries and particularly from countries that are former colonies.

Par arrêt de grande chambre du 21 décembre 2023, la Cour de justice de l’Union européenne fournit de précieuses indications sur l’étendue du contrôle opéré par les autorités respectives des États membres dont relèvent les procureurs européens délégués et procureurs européens délégués assistants dans le cadre d’une enquête transfrontière décidée par le parquet européen.

Sur la boutique Dalloz Droit et pratique des audiences correctionnelles et de police 2024/2025 Voir la boutique Dalloz

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Le décret a pour objet d’intégrer en droit français les nouvelles règles adoptées par l’Union européenne en matière de circulation de véhicules automoteurs et de l’assurance de responsabilité civile couvrant les dommages susceptibles d’être causés par leur utilisation.

Sur la boutique Dalloz Code des assurances, code de la mutualité 2023, annoté et commenté Voir la boutique Dalloz

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As announced in a previous post, a seminar series on the recast of Brussels I bis Regulation, is taking place during the 2023-2024 academic year, both in Paris at the Cour de cassation and online (in French), under the scientific coordination of Marie-Elodie Ancel (University of Paris-Panthéon-Assas) and Pascal de Vareilles-Sommières (University of Paris 1 Panthéon-Sorbonne).

The second seminar will take place on 18 January 2024 from 16.00 to 18.00 (UTC+1).

It will be devoted to the recast of the Brussels I bis Regulation’s provisions on special jurisdiction. The main topics to be discussed include jurisdiction on contractual matters, in litigation over financial damage and in disputes relating to collective redress.

The list of speakers includes David Sindres (University of Angers), Bernard Haftel (University of Sorbonne Paris Nord), Caroline Kleiner (University of Paris Cité) and Valérie Pironon (University of Nantes).

The programme, as well as registration and access details can be found here.

The recording of the first seminar (30 November 2003) is now available online.

The other seminars will take place from 16.00 to 18.00 (UTC+1) on 26 February, 18 March, 22 April, 30 May and 24 June 2024.

The seminar series is organised by the Research Centre for Private International Law and International Trade (CRDI, University of Paris Panthéon Assas) and the Sorbonne Department Study of International Private Relationships (SERPI, University of Paris 1 Panthéon-Sorbonne), together with the Société de Législation Comparée (SLC), the French national school for the judiciary (ENM) and the French Supreme Court for civil and criminal matters (Cour de cassation).

La transposition de la directive conduit à préciser le champ d’application de l’obligation d’assurance, à définir les modalités de contrôle du respect de cette obligation, à faciliter les conditions de la souscription de l’assurance automobile et à renforcer le régime d’indemnisation des victimes.

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The University of Stirling is bringing together academics, practitioners and other stakeholders to present research examining the role of Scots law in the international legal landscape. It is hoped this will promote the ways in which Scots law can offer solutions to global legal challenges but also to offer critiques of the way in which Scots law can or must evolve to preserve and promote its value.

With many Law Schools diversifying their programme offerings beyond Scots law it is a critical time to explore the interactions between Scots law and other jurisdictions. It is also necessary to consider the relationships between the curriculum within Law Schools and the needs of legal practice.

Seminars will be delivered in hybrid format to enable busy stakeholders to engage with these discussions.

Please register for each event in the series individually here, and find out more about a seminar by emailing internationalisationofscotslaw@stir.ac.uk.

This seminar series has been generously funded by the Clark Foundation for Legal Education.

On 12 January 2024, the United Kingdom has signed the 2019 Judgments Convention (Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters), as announced in the press release of the Hague Conference on Private International Law.

This a milestone for private international law within the coming about of the worldwide framework for recognition and enforcement of foreign judgments and potentially a valuable instrument in the post-Brexit legal landscape.

This post is part of a series regarding Colonialism and the general structure of (German) Private International Law, based on a presentation I gave in spring 2023. See the introduction here.

As mentioned in the introduction, this series does not intent to automatically pass judgment on a norm or method influenced by colonialism as inherently negative. Instead, the aim is to reveal these influences and to initiate a first engagement with and awareness of this topic and to stimulate a discussion and reflection.

The first post (after the introduction) dealt with classic PIL and colonialism and already sparked a vivid discussion in the comments section. This second considered structures and values inherent in German or European law, implicitly resonating within the PIL and, thus, expanding those values to people and cases from other parts of the world.  The third category discusses an imagined hierarchy between the Global North and Global South that is sometimes inherent in private international law thinking, for instances where courts or legislators abstractly or paternalistically apply the public policy to “protect” individuals from foreign legal norms. This is especially evident in areas like underage marriages and unilateral divorce practices found inter alia in Islamic law.

1. The public policy exception – abstract or concrete control?

The public policy exception is intended to prevent the application of foreign law by way of exception if the result of this application of law conflicts with fundamental domestic values. Such control is necessary for a legal system that is open to the application of foreign law and, in particular, foreign law of a completely different character. German law is typically very restrictive in its approach: The public policy control refers to a concrete control of the results of applying the provisions in question. In addition, the violation of fundamental domestic values must be obvious and there must be a sufficient domestic connection. In other countries, the approach is less restrictive. In particular, there are also courts that do not look at the result of the application of the law, but carry out an abstract review, i.e. assess the foreign legal system in the abstract. For a comparison of some EU Member States see this article.

2. Explicit paternalistic rules

Furthermore, there are some rules that exercise an abstract control of foreign law. Article 10 of the Rome III Regulation contains a provision that analyses foreign divorce law in the abstract to determine whether it contains gender inequality. According to this (prevailing, see e.g. conclusions of AG Saugmandsgaard Øe) interpretation, it is irrelevant whether the result of the application of the law actually leads to unequal treatment. This abstract assessment assumes – even more so than a review of the result – an over-under-ordering relationship between domestic and foreign law, as the former can assess the latter as “good” or “bad”.

Even beyond the ordre public control, there has recently been a tendency towards “paternalistic rules”, particularly triggered by the migration movements of the last decade. The legislator seems to assume that the persons concerned must be protected from the application of “their” foreign law, even if they may wish its application. In particular, the “Act to Combat Child Marriage” which was only partially deemed unconstitutional by the Federal Constitutional Court (see official press release and blog post), is one such example: the legislator considered the simple, restrictive ordre public provision to be insufficient. Therefore, it created additional, abstract regulations that block the application of foreign, “bad” law.

3. Assessment

In the described cases as a conceptual hierarchy can be identified: The impression arises that foreign legal systems, particularly from the “Global South”, are categorised in the abstract as “worse” than the German/EU legal system and that persons affected by it must be protected from it (“paternalistic norms”). As far as I can see there is a high consensus in the vast majority of German literature (but there are other voices) and also the majority of case law that the abstract ordre public approach should be rejected and that the aforementioned norms, i.e. in particular Art. 13 III EGBGB (against underage marriages) and Art. 10 Rome III-VO (different access to a divorce based on gender), should ideally be abolished. It would be desirable for the legislator to take greater account of the literature in this regard.