Agrégateur de flux

In Philipp Plein, the court at Rotterdam held against the applicability of contractual choice of court to cases involving (alleged) unfair trading practices /infringement of competition law. (The judgment is not entirely clear on how the alleged tort needs to be qualified). I should also rephrase: I am assuming the case involves clothing chain Philipp Plein (‘PP’): this party’s name (albeit with presumably a typoo reported as ‘Philipp Klein’) is mentioned once in the judgment, probably because redacting missed this one particular reference. I find this process of anonimisation rather tiring: I fail to understand why in issues of commercial law, companies should at all be offered anonymity in public recording of the case. But I digress.

PP is domiciled at Lugano. The court is not entirely clear in its distinction between the Brussels I Recast Regulation and the Lugano Convention 2007. Domicile of the defendant in Switzerland was already immaterial under the Brussels I Regulation, given that one of the parties is domiciled in The Netherlands. The court applies Brussels I Recast and Lugano 2007 more or less jointly, given their similar outcome for the case at issue. Given this parallel application it is quite remarkable that no reference is made to CDC, which emphasised that extension of choice of court to non-contractual liability cannot be assumed. Instead the court here reviews how other parts of PP’s standard terms and conditions are formulated and what impact this has on the clause at issue.

It decides the choice of court clause (which read ‘“If both parties are businessmen, then the place of jurisdiction […] is Nuremberg, Germany”.’) does not extend to non-contractual liability. Parties seemingly agreed that in the event of non-applicability of choice of court, the Court at Rotterdam can hear the case on the basis of Article 5(3) Lugano 2007 (similar to now Article 7(2) Brussels I Recast).

I agree with Bas Braeken and Marianne Meijssen: A good result but an awkward way to go about it.

Geert.

(Handbook of) European Prviate International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.9, Heading 2.2.9.7.

 

Chiara Ghionni, Adozione internazionale e diritto alla famiglia, Edizioni Scientifiche Italiane, 2016, pp. 192, ISBN 9788849532098, EUR 23.

Nel volume si esamina il tema dell’adozione nella sua evoluzione normativa e applicativa, dal contesto internazionale ed europeo a quello interno, assumendo come filo conduttore la ricerca dei diritti del minore e la loro effettività. Il declino della c.d. famiglia tradizionale e la parallela emersione di nuovi, e diversi, modelli genitoriali obbligano ad un’attenta riflessione e ad una prudente valutazione delle situazioni inedite e complesse che la vita contemporanea propone, al fine di selezionare adeguatamente i valori guida cui affidare la soluzione delle questioni di disciplina. Un discorso sull’adozione internazionale, dunque, diventa un banco di prova per testare il grado di resistenza dei principi generali nell’attuale trasformazione che coinvolge i diritti della persona, i diritti fondamentali e gli istituti posti a fondamento della società, quali sono la famiglia e i rapporti di filiazione.

La Cour de justice de l’Union européenne (CJUE), interrogée par le Conseil d’État, se prononce, dans un arrêt du 16 novembre 2016, sur l’exploitation numérique des livres indisponibles.

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Le 17 novembre 2016, la Commission européenne a demandé « instamment » à la France de se conformer à la législation de l’Union sur les déchets

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The author of this entry is Dr. Arantxa Gandía Sellens, senior research fellow at the MPI Luxembourg.

Yesterday the UK government announced that it is proceeding with preparations to ratify the Unified Patent Court Agreement. Following the Brexit vote, this piece of news is not only relevant for the patent world, but also for the future Brexit negotiations between the UK and the EU (art. 50 Treaty of the European Union).

Here I will focus on the implications of this decision on the unitary patent system.

A brief explanation of the unitary patent system

The European patent with unitary effect –thus different from the «classic» European patent– was introduced by Regulation (EU) no. 1257/2012 of the European Parliament and of the Council of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection (hereinafter, Regulation 1257/2012).

According to its art. 2 (c), the European patent with unitary effect is a «[…] European patent which benefits from unitary effect in the participating Member States by virtue of this Regulation». Furthermore, its arts. 5 (1) and 1 (1) establish that the so-called unitary effect of this kind of patent consists of the protection provided throughout the territories of the Member States participating in the enhanced cooperation authorized by Decision 2011/167/EU. The unitary patent protection may be requested for any European patent granted on or after the date of application of Regulation 1257/2012 (art. 18.6), which is linked to the date of entry into force of the Agreement on a Unified Patent Court (hereinafter, UPC Agreement), following its art. 18 (2).

The object of the UPC Agreement is to establish a Unified Patent Court for the settlement of disputes relating to European patents and European patents with unitary effect (art. 1). The Agreement requires for its entry into force the ratification of at least thirteen Member States, including the three Member States in which the highest number of European patents had effect in 2012 (art. 89 (1)). At the moment, eleven States have ratified the convention, and only one of them is among those three States whose ratification is mandatory, namely France.

Who can sign and ratify the UPC Agreement?

According to art. 84 of the UPC Agreement, it is open for signature by any Member State. Regarding ratification, the same requirement applies: “This Agreement shall be subject to ratification in accordance with the respective constitutional requirements of the Member States. […]”.

Thus, while the UPC Agreement is not an EU instrument but a classical international convention, only Member States of the European Union can sign and ratify the UPC Agreement.

Notwithstanding the Brexit vote, the UK remains for the moment a Member State of the European Union; therefore, at this time the requirements established by the UPC Agreement for ratification are met. However, the UK government is determined to proceed to Brexit and to become a non-EU country. Therefore, the ratification could create a measure that is contrary to the European Treaties to which the UK is still bound. According to art. 4.3 of the Treaty on European Union a Member State “shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives”.

Consequences of the UK’s ratification of the UPC Agreement

Ratification of the UPC Agreement, followed by exit from the EU would create a series of consequences that would have to be dealt with:

1. The unitary patent cannot cover the territory of a third State. According to art. 3 of Regulation 1257/2012, the unitary patent shall have equal effect in all the participating Member States, meaning that States without the status of “Member State” are excluded. In that scenario, the unitary patent would not have effect in the UK, unless the necessary modifications are made in the legal instruments that constitute the so-called “unitary patent package”.
2. Both Regulation 1257/2012 and the UPC Agreement use the terms “participating Member States” or “Contracting Member States” when referring to the States taking part in the system. This wording is a reaction to the ECJ’s Opinion 1/09, which dealt with the question of the compatibility of the failed agreement creating a Unified Patent Litigation System with EU law (open also to third States). The ECJ opposed the participation of third States in that convention, as the referral of preliminary questions on EU law could not be guaranteed. Moreover, a third State cannot refer preliminary questions on EU law to the ECJ. This means that a non-member State would not be able to comply with Art. 21 of the UPC Agreement, titled “Requests for preliminary rulings”: “[…] the Court shall cooperate with the Court of Justice of the European Union to ensure the correct application and uniform interpretation of Union law […]”.

3. A seat of the central division cannot be located in a third State. Art. 7.2 of the UPC Agreement establishes that the central division shall have its seat in Paris, with sections in London and Munich. Although the UPC Agreement does not require that the sections of the central division must be located in a Contracting Member State (paradoxically, this requisite does exist for the local and regional divisions, so that it could also be argued that it applies to the central division, mutatis mutandis), the question is not clear cut in light of the EU’s constitutional framework, which includes the Treaty on European Union and the Treaty on the Functioning of the European Union.

Two options for the unitary patent system after the Brexit vote

Taking into consideration that the UK will have the status of a non-EU country (third State), two options remain open to proceed with the establishment of the system following the Brexit vote:

First option) Maintaining the status quo. As discussed above, if the UK ratifies now the UPC Agreement, the other Member States might rely on art. 4.3 EU Treaty in order to block that ratification. Once the UK’s ratification is blocked –and the wording of the UPC Agreement remains– the process for the start-up of the unitary patent system will be delayed until the negotiations following the exit declaration (art. 50 EU Treaty) are concluded.

If, after the negotiations, it is agreed that the unitary patent system should be established without the UK, the UPC Agreement will have to be modified, at least regarding the seat of the UPC central division in London (art. 7.2 of the UPC Agreement).

Second option) Including the UK in the unitary patent system. If the UK ratifies the UPC agreement and the other Member States do not rely on art. 4.3 EU treaty, the setting up process will continue as it has been foreseen.

At the moment, as the UK is still an EU Member State, its active participation in the unitary patent system does not entail any problem, formally speaking. On the contrary, the UK is one of the three Member States in which the highest number of European patents had effect in 2012, which makes its ratification a condition for the setting up of the system (art. 89 of the UPC Agreement). However, when the UK loses its status as EU Member State, some modifications to the UPC Agreement will have to be made. Those modifications will have: 1) to make sure that third States are invited to take part in the system, provided that they oblige themselves to respect EU law and refer questions to the ECJ (in light of the Opinion 1/09); and 2) to change Regulation 1257/2012, in order that the unitary patent system can cover the territory of third States. This might also entail the participation in the system not only by the UK, but also by other interested third States.

The biggest disadvantage of this option is the risk of endangering the application and interpretation of EU law, as already pointed out in the ECJ’s Opinion 1/09. The ECJ will have to be consulted on the possibility of the inclusion of third states if those third States are willing to respect the primacy of EU law, referring preliminary questions to the ECJ when necessary. This would be a new feature in comparison to the failed agreement creating a Unified Patent Litigation System, where the referral of preliminary questions to the ECJ was not guaranteed.

Contrat de travail, Rupture - Preuve

A public meeting was held on 15 November 2016, in Washington, under the auspices of the US Department of State, to obtain the views of interested stakeholders on the current draft provisions of the Convention on the recognition and enforcement of foreign judgments, presently under discussion within the Hague Conference on Private International Law (regarding the Judgments Project, see further here; as concerns the draft text of the Convention, see here). A text resuming the outcome of the Washington meeting is available here.

Il 15 novembre 2016 si è svolto a Washington, con il patrocinio del Dipartimento di Stato americano, un incontro pubblico volto a conoscere le opinioni degli interessati circa il progetto di una Convenzione a vocazione universale sul riconoscimento e l’esecuzione delle decisioni straniere, attualmente in discussione in seno alla Conferenza dell’Aja di diritto internazionale privato (sul Judgments Project della Conferenza, si veda qui; quanto alla bozza della Convenzione, si veda qui). Un resoconto dell’incontro di Washington è disponibili a questo indirizzo.

Agriculture - Organisation interprofessionnelle

Transport aérien - Responsabilité des transporteurs de personnes

Non-lieu à renvoi

Engagement solennel devant la Cour de justice de l’Union européenne de deux nouveaux Membres de la Cour des comptes européenne

Rotenberg / Conseil
Relations extérieures
Le Tribunal de l’UE confirme le gel de fonds prononcé à l’encontre de M. Arkady Rotenberg pour la période 2015-2016

Commission / France et Orange
Aide d'État
La Cour rejette le pourvoi de la Commission dans l’affaire de l’avance d’actionnaire proposée à France Télécom par les autorités françaises alors que l’opérateur connaissait une crise importante

According to a press release of 28 November 2016, the UK government is proceeding with preparations to ratify the Unified Patent Court Agreement.

Secondo un comunicato stampa del 28 novembre 2016, il Governo britannico sta procedendo alla preparazione della ratifica dell’Accordo relativo a un Tribunale Unificato dei Brevetti.

For those with an interest in UK constitutional law and its impact on the EU, these evidently are interesting days. I just wanted briefly to flag that the Scottish Government’s submission to the Supreme Court’s Article 50 case contains a short section on the EU’s civil justice agenda. At 48, the submission points out the impact withdrawal will have on the civil justice relations between Scotland, the remainder of the UK, and the EU.

There are plenty of papers out there on the impact of Brexit on conflict of laws. Without the correct arrangements, the UK is bound to lose a lot of its attraction in international dispute settlement. With the falling pound, Christmas shopping in London is particularly attractive to those outside the UK. Forum shopping a lot less so.

Geert.

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

U. Magnus: A Special Conflicts Rule for the Law Applicable to Choice of Court and Arbitration Agreements?
The article examines whether the German legislator should enact a separate conflicts rule which determines the law that is applicable to the conclusion and validity of choice of court and arbitration agreements. With respect to choice of court agreements the national legislator’s room for manoeuvre is anyway very limited due to the regulations in Art. 25 Brussels Ibis Regulation and Art. 5 Hague Convention on Choice of Court Agreements of 2005. There is no genuine need for an additional national conflicts rule, in particular since the interpretation and exact scope of the new conflicts rule in Art. 25 (1) Brussels Ibis Regulation still requires its final determination by the CJEU. After weighing all pros and cons the article recommends not to enact a separate conflicts provision. The same result is reached for arbitration agreements. Here, the international practice that in the absence of a choice the law at the place of arbitration applies should be fixed on the international or European level.

K. Bälz: Failing states as parties in international commercial disputes: public international law and conflict of laws
In the aftermath of the “Arab Spring” a number of states in the immediate vicinity of Europe have turned into failing states. Using the Libya cases of the English High Court as a starting point, this article examines the practical questions that arise in commercial disputes involving failing states. The key question is how to implement the international law principles on regime change and state failure in international disputes.

U.P. Gruber: The new international private law on the equalization of pension rights – a critical assessment
German international private law contains an extremely complicated rule on the equalization of pension rights. Under this rule, the equalization of pension rights of husband and wife shall be subject to the law applicable to the divorce according to the Rome III Regulation; however, an equalization shall only be granted if accordingly German law is applicable and if such equalization is recognized by the law of one of the countries of which the spouses were nationals at the time when the divorce petition was served. If one of the spouses has acquired during the subsistence of the marriage a pension right with an inland pension fund and carrying out the equalization of pension rights would not be inconsistent with equity, the equalization of pension rights of husband and wife shall be carried out pursuant to German law on application of a spouse.
Lately, Art. 17 (3) EGBGB was amended. Whereas in former times, Art. 17 (3) EGBGB referred to the law applicable to divorce determined by an autonomous German rule, the provision now makes referral to the Rome III Regulation. In the legislative process, this amendment was neither discussed nor justified. At a closer look, however, the new rule has serious flaws and should be changed.

C. Heinze/B. Steinrötter: When does a contract fall within the scope of the „directed activity“ as provided for in Art. 15 (1) (c) Regulation (EC) No 44/2001 (= Art. 17(1) (c) Regulation [EU] No 1215/2012)?
This contribution analyses the recent Hobohm-judgment of the European Court of Justice (ECJ), which concerns the requirement “contract falls within the scope of such activities” in Art. 15 (1) (c) Regulation (EC) No 44/2001 (= Art. 17 (1) (c) Regulation [EU] No 1215/2012). The CJEU decided that the rules on jurisdiction over consumer contracts are applicable even if the respective contract on its own does not fall within the scope of the professional activity which has been directed to the consumer’s home state, provided that it is closely linked to an earlier contract falling under Art. 17 (1) (c). The authors analyse the elements of this test of close connection and place it into the more general context of the jurisdiction rules for consumer disputes.

T. Lutzi: Qualification of the claim for a ‘private copying levy’ and the requirement of seeking to establish the liability of a defendant under Art. 5 No. 3 Brussels I (Art. 7 (2) Brussels I recast)
Seized with the question whether a claim for the “blank-cassette levy” under § 42b of the Austrian Urheberrechtsgesetz (which transposes Art. 5 (2) b of the European Copyright Directive) qualifies as delictual within the meaning of Art. 5 No. 3 of the Brussels I Regulation (Art. 7 (2) of the recast Regulation), the Court of Justice had an opportunity to refine its well-known Kalfelis formula, according to which an action falls under Art. 5 No. 3 if it “seeks to establish the liability of a defendant” and is “not related to a ‘contract’ within the meaning of Art. 5 No. 1”. Holding that the claim in question sought to establish the liability of the defendant “since [it] is based on an infringement […] of the provisions of the UrhG”, the Court seems to have moved away from the more restrictive interpretation of this criterion it has applied in the past. Yet, given the implications of such a broad understanding of Art. 5 No. 3, not least for claims in unjust enrichment, a restrictive reading of the decision is proposed.

L. Hübner: Effects of cross-border mergers on bonds
The article deals with the complex interplay of international contract law and international corporate law exemplified by the ECJ decision in the KA Finanz case. Three issues will be focused on: (i) the law applicable to a bond indenture after a cross-border merger of one of the contracting parties with a third party; (ii) the law applicable to the legal consequences of such a merger (legal and asset succession as well as creditor protection); and (iii) the application of Art. 15 of Directive 78/855 to securities to which special rights are attached.

C. Thomale: Multinational Corporate Groups, Secondary insolvency proceedings and the extraterritorial reach of EU insolvency law
In its preliminary ruling on the Nortel Networks insolvency dispute, the ECJ has made important assertions on procedural and substantive aspects of secondary insolvency proceedings and their coordination with the main proceedings as well as their reach to extraterritorial assets of the debtor. At the same time, the decision fuels the general regulatory debate on corporate group insolvencies. This comment analyses the decision and develops an alternative approach.

D.-C. Bittmann: Requirements regarding a legal remedy in terms of art. 19 of Regulation (EC) No. 805/2004 and competence for carrying out the certification of a judgment as a European Enforcement Order
The following article examines a judgment of the ECJ, which deals with several problems regarding the interpretation of Regulation (EC) No. 805/2004 creating a European Enforcement Order (EEO) for uncontested claims. The first part of the decision regards the requirements established by Art. 19 of the regulation. The ECJ rules, that Art. 19 (1) of Regulation (EC) No. 805/2004 requires from the national legal remedy in question that it effectively and without exception allows for a full review, in law and in fact, of a judgment in both of the situations referred to in that provision. Furthermore the EJC rules, that this legal remedy must allow the periods for challenging a judgment on an uncontested claim to be extended, not only in the event of force majeure, but also where other extraordinary circumstances beyond the debtor’s control prevented him from contesting the claim in question (Art. 19 (1) (b)). In the second part of the decision the ECJ rules, that the certification of a judgment as an EEO, which may be applied for at any time, can be carried out only by a judge and not by the registrar. The latter is only allowed to carry out the formal act of issuing the standard form according to Art. 9 of Regulation (EC) No. 805/2004 after the decision regarding certification as an EEO has been taken by the judge.

S. Arnold: Contract, Choice of Law and the Protection of the Consumer abroad when lured into business premises
Consumer protection is a cornerstone of European Law – just like party autonomy. Even in consumer contracts, parties can choose the applicable law. Yet the choice must not be to the detriment of the consumer. This is the core idea of Art. 6 (2) Rome I-Regulation. The OLG Stuttgart (Higher Regional Court of Stuttgart) addressed the range of that provision which is a central tool of consumer protection through conflict of laws. During a package holiday in Turkey, an 85 year old lady had bought a carpet. Turkish substantive Law did not allow for the lady to withdraw from the contract, German substantial Law, however, did. The OLG Stuttgart decided that the lady could withdraw from the contract on the basis of German substantial Law. The OLG Stuttgart found that the Turkish seller had worked together with the German travel agency in order to lure tourists from Germany into his business premises.

C. Wendelstein: Cross-border set-off based on counterclaim governed by Italian law
In the context of an international set-off the German Federal Court of Justice had to deal with various questions in the field of conflict of laws. For the first time the Court had to adjudicate upon the characterization of the notion of liquidità in Italian law (Art. 1243 Codice civile = Cc). According to the Federal Court of Justice this question has to be answered by the law designated by Art. 17 Rome I Regulation. The author agrees with this finding.

G. Schulze: The personal statute in case of ineffective dual nationalities (case note on a judgment given by the Federal Court of Justice of Germany on 24th June 2015 – XII ZB 273/13)
The applicant had been living in Germany since his birth. As he had a double name (according to Spanish customs) registered in the civil registry in Spain he wanted to go by his Spanish family name in Germany as well. The case raises the question of how to determine the personal statute of a multinational person having both a Spanish and a Moroccan nationality if the person has no connections whatsoever to the countries in question. The Federal Court of Justice of Germany (Bundesgerichtshof, BGH) held: That in default of an “effective” citizenship the law of habitual residence shall be applicable, in casu: German law. That the “limping” name does not violate EU law. There are doubts about this solution: The effectiveness of nationality does not form a part of the elements of Art. 10 (1) of the Introductory Act to the Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch, EGBGB). Effectiveness serves only to clearly define the personal statute for given connecting factors, viz. in order to choose between several citizenships in Art. 5 (1) sentence 1 or to determine the (closer connected) habitual residence in Art. 5 (2) EGBGB. De lege lata there is no well-founded basis for a supported rejection of the application of law of nationality. However the general tendency to apply the law of habitual residence is not a reason to apply Art. 5 (2) EGBGB in analogy given multiple ineffective nationalities. It is not suitable to extend the escape clause in Art. 5 (2) EGBGB. In any case it is not a solution if the nationalities are EU nationalities. A former opportunity for choice of law which was unknown by the tenants does not eliminate an infringement of Art. 18 TEU (discrimination) and 21 TEU (freedom of movement).

M. Andrae: The matrimonial property regime of the spouses with former Yugoslav nationality
For the determination of the law applicable to matrimonial property referring to spouses who had at the time of marriage the Yugoslav nationality, two principles have a special significance: 1. The law of the former Yugoslavia shall not apply, including its interregional law and its conflict of laws principles. 2. An automatic change of the applicable law must be avoided, if possible and if it is not the consequence of a choice of law. Priority is given to the first principle. The connecting factor of the common nationality pursuant to Art. 15 (1) and 14 (1) No. 1 EGBGB must be supplemented. For this it is suitable to use the principle of closest connection by analogy to Art. 4 (3) sentence 2 EGBGB. Reference is made to the right of a successor State, if the spouses have had at the time of entering the marriage the Yugoslav nationality and a common closest connection to an area of the former Yugoslavia, which is now the territory of successor state. If such a connection is absent, then the applicable law has to be determined in accordance with Art. 15 (1) and 14 (1) No. 2 of the EGBGB, if necessary by Art. 14 (1) No. 3 EGBGB.

A. Reinstadler/A. Reinalter: The decision opening the debtor-in-possession proceeding pursuant to § 270a German Insolvency Act is not an insolvency proceeding pursuant to the European Insolvency Regulation (2002)
The Court of Appeal of Trento, local section of Bolzano (Italy) had to rule on the question whether the debtor-in-possession proceeding/Verfahren auf Eigenverwaltung (§ 270a German Insolvency Act) can be qualified as decision opening an insolvency proceeding pursuant to art. 16 European Insolvency Regulation (2002) and has, therefore, to be recognized automatically by operation of law by the courts of other Member States. Judge-Rapporteur Elisabeth Roilo concluded (implicitly referring to the Eurofood-formula) that the decision issued by the German district court in which opened the debtor-in-possession proceeding pursuant to § 270a German Insolvency Act is neither listed in Annex A of the Regulation nor is the appointed provisional liquidator (vorläufiger Sachwalter) included in Annex C of the Regulation. Since the decision, furthermore, foresees neither the divestment of debtor’s assets nor the forfeiture of the powers of management which he has over his assets, the criteria set down in the Eurofood-judgment are not fulfilled. The result is that the decision may not be qualified as a decision opening an insolvency procedure under the terms of art. 16 European Insolvency Regulation (2002).

Peines - Jugements et arrêts

Registre du commerce et des sociétés

Entreprise en difficulté