Agrégateur de flux

Pourvoi c/ Cour d'appel d'Aix-en-Provence, 1re chambre A, 29 septembre 2016

La loi n° 2017-226 du 24 février 2017 autorisant l’adhésion de la France au deuxième protocole relatif à la Convention de La Haye de 1954 pour la protection des biens culturels en cas de conflit armé a été publiée au Journal officiel du 25 février 2017. Ce protocole constitue un instrument essentiel du droit international humanitaire alors que les atteintes aux biens culturels se multiplient du Moyen Orient au Mali depuis le début de la décennie. 

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On the 9th and 10th of March 2017, the Academy of European Law (ERA) hosted the conference “Property regimes of international couples and the law of succession” in Trier, Germany. It gave an opportunity to more than 60 academics and practitioners of 24 different nationalities to discuss property aspects of marriage and registered partnerships at European level. The focus has been put on the two new additions to European family, i.e. the property regime Regulations (No 2016/1103 and 2016/1104) and their interplay with the already applicable Succession Regulation (No 650/2012).

This post by Amandine Faucon, research fellow at the MPI Luxembourg, provides an overview of the presentations and the discussions held at the Conference.

Setting the scene

Enhanced cooperation in family matters: genesis of the Regulations – María Vilar Badia (EU Commission) explained that the aim of the Regulations was to complete the existing European family law framework. In that perspective, two texts were proposed to the European legislator in 2011 but were rejected, after four years of negotiations, by Poland and Hungary. The main obstacle was the indirect recognition of same-sex couples. Given the lack of necessary unanimity, the Council suggested adopting the already negotiated texts through the enhanced cooperation process. This approach was supported and six months later, in June 2016, the instruments were adopted by eighteen Member States.

A comprehensive set of EU rules on international family estate law – Prof. Dieter Martiny acknowledged the broad scope of EU Regulations, now covering almost all aspects of family life. He briefly presented each of these instruments as well as their material scope. Furthermore, he discussed the interplay of the new Regulations with the already applicable ones, especially with regard to characterization matters, since one act can raise questions that have to be solved under different texts (e.g.: donation). He then presented the recurrent features of all existing instruments, e.g. the existence of party autonomy, and pointed out some issues such as the lack of common general provisions.

New rules on matrimonial property regimes

Jurisdiction in case of death or divorce and in all other cases – Prof. Costanza Honorati illustrated the characterisation issue notably with the concept of marriage and registered partnership. Regarding jurisdiction, she stated that the new Regulations fulfil classical private International law objectives by aiming at concentrating jurisdiction, through a reference to the forum successionis and the forum divortii, and at favoring the application of the lex fori by making a detour by the applicable law, in case it is a chosen one. For the rest, habitual residence and nationality are the main criteria.

Applicable law, its scope and effects in respect of third parties and which choices can be made? – Dr. Ian Summer first explained the difficulty of knowing which Regulation to apply through the example of a relationship being considered as a marriage in a country and a registered partnership in a second. He then criticized the exclusion of pension rights which are a significant part of patrimonial disputes. As regard to applicable law, he explained the main features of the new Regulations: unity, universality and a hierarchy of connecting factor in the absence of a choice of law. The latter, being the privileged factor, was particularly detailed notably as regard to the different choice possible and the formal conditions to be fulfilled. The effects of the law applicable with respect to third party were also addressed.

Special rules for property consequences of registered partnerships – María Vilar Badia laid out the differences existing between the Regulation on matrimonial property regime (No 2016/1103) and the Regulation on the property consequences of registered partnerships (No 2016/1104). The overall objective of the legislator was to have very similar text so that both types of relationships are treated equally. The differences are therefore rare and consist of additional safeguards to protect registered partners, as this status does not exist in every participating State.

Crossover: property regimes and succession law

Workshop: Making the right choice – party autonomy in property & succession law

Within the workshop the following case has been set as working hypothesis: An Italian and an Austrian got married in Belgium where they lived for six months before moving to Germany. The wife bought a holiday apartment in Antibes and received a flat in Italy. After a while, they separated and the wife moved back to Italy. The participants addressed the relevant questions of property regime, divorce, succession and maintenance. The concept of habitual residence and the application of party autonomy as a tool to achieve some coherence were particularly examined. The participants concluded that there is no unique answer to the case and that the final outcome largely depends on the will of the parties involved. It is, therefore, fundamental for practitioners to carefully provide legal advises to their clients.

Equalization of accrued gains and pension rights adjustment – Peter Junggeburth discussed the characterization problem regarding pension rights and its impact on the increase in the share of the succession or divorce. The presentation was given from the point of view of German inheritance and matrimonial property law but contemplated the impact of the questions raised in cross-border situations.

Planning cross-border successions

Options for drafting a last will under the EU Succession Regulation: first experiences – Dr. Julie Francastel first considered the general rule – the law of the last habitual residence of the deceased – and raised the issue of determining the habitual residence. She used the case of a retired person living part-time in Mallorca and part-time in Germany as an example. In that situation, choosing the law applicable can be advisable. She stressed the impact of such a choice on jurisdiction and added that a choice should be considered even if a situation does not bear cross-border elements at first sight. The formal conditions of the choice and the issue of succession contracts (that do not exist in every Member States) were also addressed.

European Certificate of Succession and the division of the estate – Dr. Jan-Ger Knot presented the European Certificate of Succession (hereafter ECS) and its objectives. He stressed that its operation in practice remains very unclear and leads to many difficulties for practitioners. It was also recalled that depending on the Member State, the authorities issuing the ECS can be a Notary or a Court. He then described the effects of the ECS and the different means to challenge it. The problem of conflicting ECS was also addressed and in this respect the European Network of Registers of Wills Association has been introduced as a possible solution.

Paying inheritance tax twice? – Prof. Alain Steichen first gave an overview of the main reasons leading to double taxation: the location of the deceased, heirs and assets in Member States having different taxation systems. Given the increasing mobility of citizens and purchases abroad, the problem is expanding but there are no possibilities to force Member States to avoid double taxation. He presented the Model for treaties on double taxation on inheritance from the OECD (1982) and the EU recommendation (2011) favoring the taxation at the residence of the heir but their impact is limited. A common rule to be followed by every State should be imposed to avoid the problem.

Hands-on experience: Planning cross-border successions with a view to third states and offshore jurisdictions

EU and Switzerland – Tobias Somary first indicated that internationality is becoming normality and therefore stressed the importance of estate planning. In that regard, the law applicable to matrimonial property regime should be carefully considered, as it can significantly impact the size of the estate and its distribution at the dissolution of the matrimonial regime. He then turned to the inheritance question and stressed that according to the Succession Regulation the law of a non-member State, such as Switzerland, can be applied to the inheritance. He, therefore, advised to plan the succession carefully and gave some examples as an illustration of the possible difficulties.

UK before & after BREXIT and off-shore jurisdictions – Alex Ruffel explained that the UK is not part of the Succession Regulation and therefore applies its own private International law. She presented the related English provisions and illustrated them with practical examples. She then stressed out the present uncertainty as to whether the UK should be considered as a third State with regard to the application of Article 34 of the Succession Regulation (renvoi). This problem will vanish post-Brexit and is the only before/after difference regarding successions. Concerning off-shore jurisdictions, she explained that although most have a common law system, creating a trust or a company is advisable to avoid further complications.

The concluding remarks were presented by Prof. Dieter Martiny who noted the willingness of the EU to ease the life of European citizens but stressed that many uncertainties remain and lay in the hands of the European Court of Justice.

Erasmus School of Law (Erasmus University Rotterdam) has six vacancies in the area of private international law and civil procedure.

• One vacancy for an Assistant professor Private International Law for a period of max. five years. The position involves teaching and research in the area of private international law and international and European litigation. Start date is 1 August 2017 at the latest. The deadline to apply is 1 May 2017. More information on the vacancy, the requirements and how to apply is available here.
• Five research positions (2 PhD and 3 Postdoc positions) within the ERC Consolidator project ‘Building EU civil justice: challenges of procedural innovations bridging access to justice’ (EU-JUSTICE). This project, financed by the European Research Council, investigates how digitalisation, privatisation, self-representation, and specialisation trends influence access to justice in selected Member States, and what the repercussions are for the emerging EU civil justice system. Further information on the project, the vacancies, and how to apply is available here. The closing date is 14 April 2017.

Pourvoi c/ Cour d'appel de Paris, pôle 2, chambre 1, 10 septembre 2015

Fraus omnia corrumpit (fraud corrupts all; alternatively formulated as ex turpi causa non oritur actio) is not easily applied in conflict of laws. See an earlier post here.  In Sinocore International Co Ltd v RBRG Trading , the Commercial Court granted permission for the enforcement of a foreign arbitral award despite allegations that the transaction in question had been “tainted” by fraud: this is how the case is summarised by Mayer Brown and I am happy broadly to refer to their overview and analysis.

The Commercial Court’s relaxed attitude is another sign of strong support of the English courts for the New York Convention and its narrow application of ordre public.

An interesting case for comparative conflicts /arbitration classes.

Geert.

L’interdiction du port du voile découlant d’un règlement intérieur d’une entreprise privée interdisant le port visible de tout signe politique, philosophique ou religieux sur le lieu de travail ne constitue pas une discrimination directe fondée sur la religion ou sur les convictions. En revanche, une telle règle est susceptible de constituer une discrimination indirecte…

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L’accord sur le renvoi des migrants a été conclu entre les États membres de l’Union européenne et la Turquie et ne peut donc pas faire l’objet d’un recours en annulation devant les juridictions de l’Union. 

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La Cour de justice de l’Union européenne confirme dans une décision du 7 mars 2017 qu’un taux réduit de TVA ne peut s’appliquer dans le cadre de la fourniture de livres électroniques.

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The book Free Movement of Civil Judgments in the European Union and the Right to a Fair Trial (T.M.C. Asser Press/Springer, 2017), authored by Monique Hazelhorst, has just been published. It is the commercial edition of a PhD thesis succesfully defended at Erasmus School of Law (Rotterdam).

This book examines the attainment of complete free movement of civil judgments across EU member states from the perspective of its conformity with the fundamental right to a fair trial. In the integrated legal order of the European Union, it is essential that litigants can rely on a judgment no matter where in the EU it was delivered. Effective mechanisms for cross-border recognition and the enforcement of judgments provide both debtors and creditors with the security that their rights, including their right to a fair trial, will be protected. In recent years the attainment of complete free movement of civil judgments, through simplification or abolition of these mechanisms, has become a priority for the European legislator.
The text uniquely combines a thorough discussion of EU legislation with an in-depth and critical examination of its interplay with fundamental rights. It contains an overview and comparison of both ECtHR and CJEU case law on the right to a fair trial, and provides a great number of specific recommendations for current and future legislation.
With its critical discussion of EU Regulations from both a practical and a theoretical standpoint, this book is particularly relevant to legislators and policymakers working in this field. Because of the extensive overview of the functioning of the EU’s mechanisms and of relevant case law it provides, the book is also highly relevant to academics and practitioners.

More information is available here.

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