Agrégateur de flux

Bogatu
Sécurité sociale des travailleurs migrants
Le droit de l’Union n’exige pas qu’une personne exerce une activité salariée dans un État membre pour y bénéficier de prestations familiales pour ses enfants résidant dans un autre État membre

My eye fell last week-end on The Times of London’s obituary of Sir Peter Singer, z”l , who passed away late in December.

The Times recall among others his linguistic skills and refer specifically to his judgment in [2013] EWHC 49 (Fam) DL  v EL, upheld by the Court of Appeal in [2013] EWCA Civ 865. Regular readers will be aware of my interest in languages at the CJEU.

Sir Peter was applying the Brussels IIa Regulation 2001/2003 and had to decide inter alia where the child was habitually residing. In an endnote he discussed C-497/10 PPU Mercredi v Chaffe. At 76 he juxtaposes the English and French versions of the judgment (a technique I insist my students and pupils employ), observing the difference between ‘stabilité ‘ used in the French version and ‘permanence’ in the English, concluding that ‘stability’ would be the more accurate term. The Court of Appeal discusses the issue in 49.

Delightfully accurate and erudite.

Geert.

Les associés d’une SCI n’ont pas qualité pour contester cette saisie ni la SCI pour invoquer une atteinte au droit à la vie privée et au respect du domicile de ses associés. En outre l’exigence de proportionnalité s’apprécie au regard de la gravité concrète des faits et de la situation personnelle de l’intéressé.

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Par un arrêt du 16 janvier 2019, la chambre commerciale se prononce à propos de l’action d’un sous-acquéreur contre son vendeur, en s’inscrivant dans la ligne de deux arrêts récents de la Cour de cassation.

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Le Conseil d’État admet que, de manière exceptionnelle, le bénéfice de la protection fonctionnelle aux anciens interprètes afghans peut conduire à la délivrance d’un titre de séjour.

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Prof. Dr. Dr. h.c. Burkhard Hess and Ms. Martina Mantovani (Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law) recently posted a new paper in the MPILux Research Paper Series, titled Current Developments in Forum Access: Comments on Jurisdiction and Forum Non Conveniens – European Perspectives on Human Rights Litigation.

The paper will appear in F. Ferrari & D. Fernandez Arroyo (eds.), The Continuing Relevance of Private International Law and Its Challenges (Elgar, 2019).

Here is an overview provided by the authors.

“The paper analyses the legal framework governing the exercise of civil jurisdiction over claims brought before European courts by victims of mass torts committed outside the jurisdiction of European States.

The first part of the paper focuses on the private international law doctrine of the forum of necessity, often used by foreign plaintiffs as a “last resort” for accessing a European forum. Ejected from the final version of the Brussels Ibis Regulation and thus arguably unavailable in cases involving EU-domiciled defendants, this doctrine has recently been subjected, in domestic case law, to formalistic interpretations which further curtail its applicability vis-à-vis non-EU domiciled defendants. The Comilog saga in France and the Naït Liman case in Switzerland are prime examples of this approach.

Having taken stock of the Naït Liman judgment of the Grand Chamber of the European Court of Human Rights, which leaves an extremely narrow scope for reviewing said formalistic interpretations under article 6 ECHR, the second part of the paper assesses alternative procedural strategies that foreign plaintiffs may implement in order to bring their case in Europe.

A first course of action may consist in suing a non-EU domiciled defendant (usually a subsidiary) before the courts of domicile of a EU domiciled co-defendant (often the parent company). Hardly innovative, this procedural strategy is recurrent in recent case law of both civil law and common law courts, and allows therefore for a comparative assessment of the approach adopted by national courts in dealing with such cases. Particular attention is given to the sometimes-difficult coexistence between the hard-and-fast logic of the Brussels Ibis Regulation, applicable vis-à-vis the anchor defendant, and the domestic tests applied for asserting jurisdiction over the non-domiciled co-defendant, as well as to the ever-present objections of forum non conveniens and of “abuse of rights”.

A second course of action may consist in suing, as a single defendant, either a EU domiciled contractual party of the main perpetrator of the abuse (as it happened in the Kik case in Germany or in the Song Mao case in the UK), or a major player on the international market (e.g. the RWE case in Germany). In these cases, where the Brussels Ibis Regulation and its hard-and-fast logic may deploy their full potential, the jurisdiction of the seised court is undisputable in principle and never disputed in practice.

Against this backdrop, the paper concludes that, where the Brussels Ibis Regulation is triggered, establishing jurisdiction and accessing a forum is quite an easy and straightforward endeavor. Nevertheless, the road to a judgment on the merits remains fraught with difficulty for victims of an extraterritorial harm.  Firstly, there are several other procedural hurdles, concerning for example the admissibility of the claim, which may derail a decision on the merits even after jurisdiction has been established. Secondly, the state of development of the applicable substantive law still constitutes a major obstacle to the plaintiff’s success. In common law countries, where the existence of a “good arguable case” shall be proven already at an earlier stage, in order to establish jurisdiction over the non-EU domiciled defendant, the strict substantive test to be applied for establishing a duty of supervision of the parent company, as well as its high evidentiary standard, have in most cases determined to the dismissal of the entire case without a comprehensive assessment in the merits, despite the undisputable existence of jurisdiction vis-à-vis the domiciled parent company. In civil law countries, the contents of the applicable substantive law, e.g. the statute of limitations, may finally determine an identical outcome at a later stage of the proceedings (as proven by the extremely recent dismissal of the case against Kik).”

In Agostinho da Silva Martins v Dekra Claims Services Portugal SA (C-149/18), between Mr Agostinho da Silva Martins, who suffered damages in a car accident, and the insurance company Dekra Claims Services Portugal SA, the CJEU was called to rule on two different issues of qualification: one related to the interpretation of Article 16 of the Rome II Regulation on overriding mandatory provisions and the other related to interpretation of Article 28 of Directive 2009/103 on protection of victim in case of a motor vehicle accident.

Regarding the overriding mandatory provisons under the Rome II Regulation, the CJEU refers to the definition in Article 9(1) of the Rome I Regulation and reasons that in order to qualify a national rule on statutory limitation period as an overriding mandatory the national court has to be satisfied that there exist “particularly important reasons, such as a manifest infringement of the right to an effective remedy and to effective judicial protection arising from the application of the law designated as applicable”. The relevant part of the CJEU holding uses careful phrasing suggesting restrictive interpretation of overriding mandatory rules: a rule

cannot be considered to be an overriding mandatory provision, […] unless the court hearing the case finds, on the basis of a detailed analysis of the wording, general scheme, objectives and the context in which that provision was adopted, that it is of such importance in the national legal order that it justifies a departure from the law applicable.

Regarding the conflict of law nature of Article 28 of Directive 2009/103, which regulates the Member States’ obligation to provide measures guaranteeing that the victim of a road traffic accident and the owner of the vehicle involved in that accident are protected, the CJEU states that this is not the conflict-of-law provision and that, consequently, it does not take precedence over the Rome II Regulation under Article 27 of the latter.

Pourvoi c/ Cour d'appel de Douai, chambre de l'instruction, 6 juillet 2018

Tribunal de grande instance d'Angoulême, 17 janvier 2019

Tribunal correctionnel de Chalon-sur-Saône, 18 janvier 2019

Tribunal correctionnel de Fort-de-France, 7 janvier 2019

Entrée en fonctions d’un nouvel avocat général à la Cour de justice

Autriche / Allemagne
Citoyenneté européenne
L’avocat général Wahl propose que la Cour de justice rejette le recours formé par l’Autriche contre la nouvelle redevance d’utilisation du réseau autoroutier allemand

Written by Prof. Maarit Jänterä-Jareborg, Uppsala University, Sweden

On 1 January 2019, new restrictions came into force in Sweden’s private international law legislation in respect of marriages validly concluded abroad. The revised rules are found in the Act (1904:26 p. 1) on Certain International Relationships on Marriage and Guardianship, Chapter 1 § 8a, as amended by SFS 2018:1973. The content of the new legislation is, briefly, the following: no marriage shall be recognised in Sweden if the spouses or either one of them was under the age of 18 years at the time of the marriage. By way of exception, this rule may be set aside once both parties are above 18 years of age, if there are exceptional reasons to recognise the marriage. 

The law reform is in line with a recent European trend, carried out in e.g., Germany, Denmark and Norway, to protect children from marrying and, one could claim, to ‘spare’ people who married as a child (or with a child) from their marriage.[1] The requirement of 18 years of age has been introduced not only as the minimum marriage age for concluding a marriage in the State’s own territory, i.e., as a kind of an internationally mandatory rule, but also as a condition for the recognition of a foreign marriage.

The new Swedish legislation constitutes perhaps the most extreme example on how to combat the phenomenon of child marriages. The marriage’s invalidity in Sweden does not require a connecting factor to Sweden at the time of the marriage, or that the spouses are underage upon arrival to Sweden. Theoretically, the spouses may arrive to Sweden decades after marrying, and find out that their marriage is not recognised in Sweden. The later majority of the persons involved does not repair this original defect. The only solution, if both (still) wish to be married to each other, will be to (re)marry!

It remains to be seen whether the position taken in the Government Bill, claiming that the new law conforms with EU primary law and the ECHR, is proportionate and within Sweden’s margin of appreciation, will be shared by the CJEU and the ECtHR. Swedish Parliament, in any case, shared this view and did not consider that EU citizens’ free movement within the EU required exempting underage spouses from the rule of non-recognition. The new law applies to marriages concluded as of 1 January 2019. It does not affect the legal validity of marriages concluded before that date.

To understand the effects of the Swedish law reform, the following needs to be emphasised. One of the special characteristics of Swedish family procedure law is that is does not provide for decrees on marriage annulment or the invalidity of a marriage. Divorce and death are in Sweden the only ways of dissolving a marriage! This position has applied since 1 January 1974, when the right to immediate divorce became the tool to dissolve any marriage concluded in Sweden against a legal obstacle to the marriage, e.g., a spouse’s still existing marriage or duress to marry. A foreign marriage not recognised in Sweden is, however, invalid directly by force of Swedish private international law legislation. It follows that it cannot be dissolved by divorce – as it does not exist as a marriage in the eyes of Swedish law. It does not either produce any of the legal effects of marriage, such as the right to maintenance or property rights. It does not qualify as a marriage obstacle, with the result that both ‘spouses’ are free to marry each other or anyone else.

What, then, is the impact of the legislation’s exception enabling, in exceptional circumstances, to set aside the rule of non-recognition? This is an assessment which is aimed to take place ad hoc,usually in cases where the ‘marriage’s’ validity is of relevance as a preliminary issue, whereby each competent authority makes an independent evaluation. It is required that non-recognition must produce exceptional hardships for the parties (or their children). The solution is legally uncertain and unpredictable and has been subject to heavy criticism by Sweden’s leading jurists.

The 2019 law reform follows a series of reforms carried out in Sweden since 2004. According to the established main rule, a marriage validly concluded in the State of celebration or regarded as valid in States where the parties were habitually resident or nationals at the time of the marriage, is recognised in Sweden, Chapter 1 § 7 of the 1904 Act. Since a law reform carried out in 2004, an underage marriage is, nevertheless, invalid directly by force of law in Sweden, if either spouse had a connection to Sweden through habitual residence or nationality at the time of the marriage. (The 2019 law reform takes a step further, in this respect.) Recognition can, in addition, be refused with reference to the ordre publicexception of the 1904 Act, Chapter 7 § 4. The position taken in Swedish case law is that ordre publiccapturesanymarriage concluded before both parties were 15 years of age. Forced marriages do not qualify for recognition in Sweden, since the 2004 reform. The same applies to marriages by proxy, since 2014, but only on condition that either party to the marriage had a connection to Sweden through habitual residence of nationality at the time of the marriage.

The 2019 legislation differs in several respects from the proposals preceding it, for example the proposed innovation of focusing on the underage of a spouse at the time of either spouse’s arrival to Sweden.  A government-initiated inquiry is currently pending in Sweden, the intention being to introduce rules on non-recognition of polygamous marriages validly concluded abroad.

[1] See M. JÄNTERÄ-JAREBORG, ‘Non-recognition of Child Marriages: Sacrificing the Global for the Local in the Aftermath of the 2015 “Refugee Crisis”’, in: G. DOUGLAS, M. MURCH, V. STEPHENS (eds), International and National Perspectives on Child and Family Law, Essays in Honour of Nigel Lowe, Intersentia 2018, pp. 267-281.

Since Conflict of Laws became a subject section at the Society of Legal Scholars in 2017, it has been part of the Society’s annual conference. This year’s conference, which will be held in Preston, UK, from 3 September to 6 September (right before the Journal of Private International Law Conference in Munich), is no exception and the organiser’s of the Conflict of Laws section, Andrew Dickinson and Máire Ní Shúilleabháin, have kindly provided the following Call for Papers:

SLS Conflict of Laws Section: Call for Papers and Panels for 2019 SLS Annual Conference at the University of Central Lancashire, Preston

This is a call for papers and panels for the Conflict of Laws section of the 2019 SLS Annual Conference to be held at the University of Central Lancashire in Preston from Tuesday 3rd September – Friday 6th September.  This year’s theme is ‘Central Questions About Law’.

This marks the third year of the Conflict of Laws section, and we are hoping to build on the successful meetings in Dublin and London.

The Conflict of Laws section will meet in the first half of the conference on Tuesday 3rd and Wednesday 4th September.

We intend that the section will comprise four sessions of 90 minutes, with 3 or more papers being presented in each session, followed by discussion. At least three of the sessions will be organised by theme. We hope, if submissions allow, to be able to set aside one session for papers by early career researchers (within 5-years of PhD or equivalent).

We welcome proposals from scholars in the field for papers or panels on any issue relating to any topical aspect of the Conflict of Laws (private international law), including but not limited to those addressing this year’s conference theme.

If you are interested in delivering a paper, we ask you to submit a proposed title and abstract of around 300 words. If you wish to propose a panel, please submit an outline of the theme and rationale for the panel and the names of the proposed speakers (who must have agreed to participate), together with their proposed titles and abstracts. We welcome proposals representing a full range of intellectual perspectives in the subject section, and from those at all stages of their careers.

Please submit your paper abstract or panel details by 11:59pm UK time on Monday 18th March 2019.  All abstracts and panel details must be submitted through the Oxford Abstracts conference system which can be accessed using the following link – https://app.oxfordabstracts.com/stages/1028/submission – and following the instructions (select ‘Track’ for the relevant subject section). If you registered for Oxford Abstracts for last year’s conference, please ensure that you use the same e-mail address this year if that address remains current. If you experience any issues in using Oxford Abstracts, please contact slsconference@mosaicevents.co.uk.

As the SLS is keen to ensure that as many members with good quality papers as possible are able to present, we discourage speakers from presenting more than one paper at the conference.  With this in mind, when you submit an abstract via Oxford Abstracts, you will be asked to note if you are also responding to calls for papers or panels from other sections.

The SLS offers a Best Paper Prize which can be awarded to academics at any stage of their career and which is open to those presenting papers individually or within a panel.  The Prize carries a £250 monetary award and the winning paper will, subject to the usual process of review and publisher’s conditions, be published in Legal Studies.

To be eligible for the Best Paper Prize:

• speakers must be fully paid-up members of the SLS;
• papers must not exceed 12,000 words including footnotes (as counted in Word);
• papers must be uploaded to the paperbank by 11.59pm UK time on Monday 26th August; and
• papers must not have been published previously or have been accepted or be under consideration for publication.

We have also been asked to remind you that all speakers will need to book and pay to attend the conference and that they will need to register for the conference by Friday 14th June in order to secure their place within the programme, though please do let us know if this is likely to pose any problems for you.  Booking information will be circulated in due course.

We note also that prospective speakers do not need to be members of the SLS or already signed up as members of a section to propose or deliver a paper.

We look forward to seeing you, as a speaker or delegate, at the Conflict of Laws session in Lancashire.

With best wishes,

Professor Andrew Dickinson, St Catherine’s College, University of Oxford
Dr Máire Ní Shúilleabháin, University College Dublin (Conveners)

La condamnation du prévenu pour refus de se soumettre au prélèvement biologique ne porte pas atteinte au droit au respect de sa vie privée dans la mesure où il existe une possibilité concrète, en cas d’enregistrement de l’empreinte génétique au fichier, d’en demander l’effacement. 

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