Agrégateur de flux

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Pourvoi c/ Cour d'appel de Pau, chambre des mineurs, 25 juillet 2018

Pourvoi c/ Cour d'appel de Pau, Cabinet du Président de la chambre de l'instruction, 22 novembre 2018

Pourvoi c/ Cour d'appel de Grenoble, 1re chambre civile, 24 avril 2018

Tribunal des affaires de sécurité sociale du Gard, 7 février 2018

CCOO
SOPO
L’avocat général Pitruzzella propose à la Cour de constater l’existence d’une obligation pour les entreprises d’instaurer un système de mesure du temps de travail journalier effectif

Par un arrêt important, la Cour de justice de l’Union européenne se penche sur le régime de la litispendance dans le cadre des règlements Bruxelles I et Bruxelles II bis, à propos du cas où le juge saisi en second lieu prononce une décision au lieu de se dessaisir au profit du juge saisi en premier.

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Construction immobilière

Assurance dommages - ouvrage

Assurance dommages - ouvrage

Construction immobilière

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

M. Wendland: Procedural challenges within the system of international jurisdiction according to the new European regulations on matrimonial property regimes and the property consequences of registered partnerships: Well-known and innovative instruments from the experimental laboratory of the European Commission

As from 29th January 2019 two new EU regulations will apply establishing a comprehensive legal framework which regulates jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes (2016/1103) and of the property consequences of registered partnerships (2016/1104). The two regulations will close one of the last remaining gaps within the system of International Private and Procedural Law in family matters. Its regulative approach is as new as innovative even though not entirely unproblematic. This paper examines selected problems of both regulations from the perspective of International Procedural Law and presents possible solutions.

R. Magnus: The implied choice of law in international succession and family law

Recent EU Regulations have led to major changes in international succession and family law. This article compares the conflict of laws rules of the different Regulations dealing with the possibility to choose the applicable law implicitly. The main focus lies on a question not yet much discussed, namely whether or not the validity of the implied choice depends on the validity of the legal act from which it is inferred (e.g. will, agreement as to the succession, marriage contract, prenuptial agreement). As conclusion it is proposed that careful distinctions should be made taking into account the different reasons that might hinder the validity of a legal act (in particular the distinction between invalidity because of a lack of the required form and invalidity due to a conflict with public policy) and specific particularities of family and succession law.

F.Eichel: The jurisdictional concept of ‘the place of the event giving rise to the damage’ and international trade mark infringements spread through digital media

Both the German Federal Court (BGH, 19.11.2017 – I ZR 164/16) and the Austrian Supreme Court (OGH, 20.12.2016 – 4 Ob 45/16w) have applied to Article 125(5) of Regulation No 2017/1001 (EU trade mark regulation) the general case law on the determination of “the place of the event giving rise to the damage” in terms of Art. 7(2) of the Recast Brussels Regulation. If that was correct, Art. 125(5) would, to a large extent, lose its effectiveness. Contrary to the position of the OGH and the BGH, the ECJ rulings “Hejduk” and “Wintersteiger” on Art. 7(2) Brussels Regulation are not applicable to Art. 125(5), and neither is the ECJ ruling “Nintendo ./. BigBen” which has no jurisdictional dimension. Instead, Art. 125(5) Regulation No 2017/1001 (as well as Art. 82(5) Regulation No 6/2002) must be interpreted independently and should be aligned with Article 2:202 of the “CLIP Principles”. This latter model rule places jurisdiction for infringement claims upon the courts of a state when an alleged infringer who has not acted in this state has directed his or her activities to the forum.

P. Schlosser: International Jurisdiction in case of Transborder Transportation in Execution of a Single Order

The direct claim of the injured party, or its insurer, may be introduced alternatively in the court or the place of dispatch or in the court of the place of destination.

K. Thorn/C. Lasthaus: Legal Succession concerning Immovable Property under the European Commission’s Succession Regulation

The European Commission’s succession regulation 650/2012 aims to harmonise the application of succession law among EU member states. However, its material scope, in particular the ambit of the exemptions under Art. 1 para. 2, has remained contentious. In recent decisions, the European Court of Justice (ECJ) and the Austrian Supreme Court (OGH) leaned towards a narrow interpretation of the exemptions provided by Art. 1 para. 2 lit. k and l thereby extending the Regulation’s scope. The ECJ held that under Art. 1 para. 2 lit. k and l, 31 a legacy “by vindication”, which directly grants a proprietary interest in the bequeathed, in this case immovable, property to the legatee, should be given effect even in member states where proprietary interests cannot be directly transferred by legacy. The OGH discussed the scope of Art. 1 para. 2 lit. l concerning the constitutive effect of a recording in the public register provided by the law of the Member State in which the register is kept. In this legal review, the authors argue that while the courts’ intention to strengthen the Regulation’s objective is to be supported, their reasoning should have been more precise.

A. Golab: Cross-border implications of fictitious service and unreasoned judgements in the EU

In the present case the Federal Court of Justice addressed the issue of acceptability of effects produced by a Polish court’s recourse to fictitious service of documents from the perspective of German procedural public policy. The aim of the annotation is to assess whether the application of Article 1135 (5) of the Polish Code of Civil Procedure met the criteria of public policy exception and how the conclusion of this analysis might apply to other similar instances where fictitious service is at play with regard to recognition or enforcement of judgements in the Brussels regime. In addition, the annotation will also address the issue of an unreasoned Polish judgment, which was also expounded on by the Federal Court of Justice.

A.-S. Tietz: The notarisation of articles of association incorporating a German Limited Liability Company (GmbH) by a Swiss notary based in the Canton of Berne

The Higher Regional Court of Berlin (Kammergericht) held that a German Limited Liability Company (GmbH) had been properly incorporated, even though its articles of association had been notarised by a Swiss notary in the Cantone of Berne in Switzerland. It reversed the decision of the District Court (Amtsgericht) of Charlottenburg which had refused to enter the company into the Commercial Register as it had deemed the content of the foreign deed invalid. The Higher Regional Court held that the foreign notarisation had substituted a notarisation carried out by a German notary, as the notarial deed had been read aloud to the participants in the presence of the notary, and subsequently approved and signed personally by the participants. It therefore ordered the District Court to enter the company into the German Commercial Register. Although this was the first time that a German Higher Regional Court had been confronted with this question, the decision has revived the debate on the “recognition” of legal relationships evidenced by foreign deeds under German corporate law. The article contributes to the discussion by addressing the legal questions resulting from the decision, which concern the applicable law to the formal requirements as well as the “substitution” of a notarisation by a German notary by a Bernese notary within the meaning of Sec. 2 German Limited Liability Companies Act.

S.L. Gössl: Regulatory Gaps and Analogies in Conflict of Laws – Example: Embryo Parenthood

The German Supreme Court (BGH) had to decide which law to apply to the (assumed) parenthood on embryos in California. The court developed a conflict of laws rule not reflecting the German substantive law regarding this issue. The article analyses and criticizes the decision. It focuses on the question how, from a methodological point of view, private international law deals with regulatory gaps, and how to close them by analogy. Eventually, the article proposes an alternative characterization of the issue and, consequently, an alternative conflict of laws rule. It furthermore shows that the most important gap lies in the (deficient) substantive law where regulation is needed urgently.

Planta Tabak
Liberté d'établissement
L’interdiction par étapes, au niveau de l’UE, de cigarettes et tabac à rouler contenant un arôme est valide

Le retrait d’habilitation à exercer les fonctions d’officier de police judiciaire (OPJ) constitue une procédure disciplinaire spécifique accordant le bénéfice de garanties suffisantes préservant les droits de la défense.

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Un cautionnement ne peut être maintenu que s’il est actuellement nécessaire et la restitution de biens saisis qui ne constituent pas en totalité le produit de l’infraction ne peut être refusée que si l’atteinte au droit au respect des biens par le maintien des saisies pénales n’est pas disproportionnée.

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Selon l’avocat général Bot, le mécanisme de règlement des différends entre investisseurs et États prévu par l’accord de libre-échange entre l’Union européenne et le Canada est compatible avec le droit de l’Union

Twice last week did the Lugano Convention’s protected categories title feature at the Court of Justice. On Tuesday, Szpunar AG opined in C-694/17 Pillar Securitisation v Hildur Arnadottir (consumer protection), and on Thursday Saugmansgaard ØE opined in C-603/17 Bosworth (Arcadia Petroleum) (employment contracts).

The issues that are being interpreted are materially very similar as in Brussels I Recast hence both evidently have an impact on the Brussels I Recast Regulation, too.

At stake in Pillar Securitisation (no English version of the Opinion at the time of writing) is the meaning of ‘outside his trade or profession’ in the consumer title. Advocate General Szpunar takes the case as a trigger to fine-tune the exact relationship between private international law such as was the case, he suggests, in Kainz and also in Vapenik.

I wrote in my review of Vapenik at the time: ‘I disagree though with the Court’s reference to substantive European consumer law, in particular the Directive on unfair terms in consumer contracts. Not because it is particularly harmful in the case at issue. Rather because I do not think conflict of laws should be too polluted with substantive law considerations. (See also my approval of Kainz).’

Ms Arnadottir’s case relates to the Kaupting reorganisation. Her personal loan exceeded one million € and therefore is not covered by Directive 2008/48 on credit agreements for consumers (maximum threshold there is 75K). Does that exclude her contract being covered by Lugano’s consumer Title?

The Directive’s core notion is ‘transaction’, as opposed to Lugano’s ‘contract’ (at 30 ff). And the Advocate-General of course has no option but to note the support given by the Court to consistent interpretation, in Vapenik. Yet at 42 ff he suggests a narrow reading of Vapenik, for a variety of reasons, including

• the presence, here, of Lugano States (not just EU Member States);
• the need for consistent interpretation between Lugano and Brussels (which does not support giving too much weight to EU secondary law outside the private international law sphere);
• and, most importantly, Kainz: a judgment, unlike Vapenik, which directly concerns Brussels I (and therefore also the link with Lugano). One of the implications which as I noted a the time I like a lot, is precisely  its respect for the design and purpose of private international law rules as opposed to other rules of secondary law; and within PIL, the distinction between jurisdiction and applicable law.

At 52 ff Advocate General Szpunar rejects further arguments invoked by parties to suggest the consumer title of the jurisdictional rules should be aligned with secondary EU consumer law. His line of reasoning is solid, however: autonomous interpretation of EU private international law prevents automatic alignment between consumer law and PIL.

Should the CJEU follow its first Advocate General, which along Kainz I suggest it should, no doubt distinguishing will be suggested given the presence of Lugano parties in Pillar Securitisation – yet the emphasis on autonomous interpretation suggest a wider calling.

 

C‑603/17 Bosworth v Arcadia then was sent up to Luxembourg by the UK’s Supreme Court [UKSC 2016/0181, upon appeal from [2016] EWCA Civ 818] concerning the employment Title of Lugano 2007 (which only the other week featured at the High Court in Cunico v Daskalakis). As helpfully summarised by Philip Croall, Samantha Trevan and Abigail Lovell: do the English courts have jurisdiction over claims for conspiracy, breach of fiduciary duty, dishonest assistance and knowing receipt brought against former employees of certain of the claimant companies now domiciled in Switzerland.

Gross J at the Court of Appeal had applied Holterman and Brogsitter, particularly in fact the Opinion of Jääskinen AG in Brogsitter – albeit with caution, for the AG’s Opinion was not adopted ‘wholesale’ by the CJEU (at 58, Court of Appeal). The mere fact that there is a contract of employment between parties is not sufficient to justify the application of the employment section of (here) the Lugano Convention. Gross J at 67: “do the conspiracy claims relate to the Appellants’ individual contracts of employment? Is there a material nexus between the conduct complained of and those contracts? Can the legal basis of these claims reasonably be regarded as a breach of those contracts so that it is indispensable to consider them in order to resolve the matter in dispute?” – answer: whilst not every conspiracy would fall outside the relevant section, and those articles could not be circumvented simply by pleading a claim in conspiracy, in the circumstances of this case, however precisely the test was formulated, the answer was clearly “no”: key to the alleged fraud lay not in the appellants’ contracts of employment, but in their de facto roles as CEO and CFO of the Arcadia Group.

In the main proceedings, the referring court must therefore determine whether the courts of England and Wales have jurisdiction to rule on those claims or whether it is the courts of Switzerland, as courts of the domicile of the former directors implicated, that must hear all or part of the claims.

The facts behind the case are particularly complex, as are the various wrongdoings which the directors are accused of and there is little merit in my rehashing the extensive summary by the AG (the SC’s hearings leading to the referral lasted over a day and a half).

Saugmansgaard ØE essentially confirms Gross J’s analysis. Company directors who carry out their duties in full autonomy are not bound to the company for which they perform those duties by an ‘individual contract of employment’ within the meaning of the employment section – there is no subordination (at 46). Note that like Szpunar SG, Saugmansgaard ØE too emphasises autonomous interpretation and no automatic colouring of one field of EU law by another: ‘the interpretation which the Court of Justice gives to a concept in one field of EU law cannot automatically be applied in a different field’ (at 49).

In the alternative, he opines that a claim made between parties to such a ‘contract’ and legally based in tort does fall within the scope of that section where the dispute arose in connection with the employment relationship and, secondly, that an ‘employer’ within the meaning of the provisions of that section is not necessarily solely the person with whom the employee formally concluded a contract of employment [at 109: what the AG has in mind are group relations, where ‘an organic and economic link’ between two companies exists, one of whom sues even if the contract of employment is not directly with that company].

It is in this, subsidiary section, at 66 ff, that the AG revisits for the sake of completeness, the difference between ‘contract; and ‘tort’ in EU pil in a section which among others will delight (and occupy) one of my PhD students, Michiel Poesen, who is writing his PhD on same. Michiel is chewing on the Opinion as we speak and no doubt will soon have relevant analysis of his own.

At 82 ff the AG points to the difficulties of the Brogsitter and other lines of cases: ‘the case-law of the Court is ambiguous, to say the least, in so far as concerns the way in which Article 5(1) and Article 5(3) of the Brussels I Regulation and the Lugano II Convention are to be applied in cases where there are concurrent liabilities. It would be useful for the Court to clarify its position in this regard.’ At 83: it is preferable to adopt the logic resulting from [Kalfelis] and to classify a claim as ‘contractual’ or ‘tortious’ with regard to the substantive legal basis relied on by the applicant. At the very least, the Court should hold onto a strict reading of the judgment in Brogsitter’: at 79: the Court meant to classify as ‘contractual’ claims of liability in tort the merits of which depend on the content of the contractual duties binding the parties to the dispute.’, even if (at 84) this authorises a degree of forum shopping, enabling the applicant to choose jurisdiction, with an eye to the appropriate rules: for forum shopping particularly for special jurisdictional rules, is not at all absent from either Regulation or Convention.

There is of course an applicable law dimension to the dispute. The relationships between companies and their directors are governed not by employment law, but by company law (at 52). For an EU judge, the Rome I and Rome II Regulations kicks in. Rome I contains, in Article 8, provisions relating to ‘individual employment contracts’, however it also provides, in Article 1(2)(f), that ‘questions governed by the law of companies’ concerning, inter alia, the ‘internal organisation’ of companies are excluded from its scope (at 55). Rome II likewise has a company law exemption. That puts into perspective the need (or not; readers know that I am weary of this) to apply Rome I and Brussels /Lugano consistently.

One had better sit down for a while when reviewing these Opinions.

Geert.

Handbook of) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.8.2, Heading 2.2.11.2, Heading 2.2.11.2.9.

Par son arrêt du 19 décembre 2018, la Cour européenne des droits de l’homme se prononce dans une espèce originale concernant la Grèce, dans laquelle l’application du droit grec à un testament établi en Grèce a été contestée par des proches du défunt, au motif que celui-ci était musulman et que l’État grec est tenu par des engagements internationaux garantissant un certain particularisme religieux.

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