Agrégateur de flux

It has already been reported on this blog that the Council of the European Union was expected to authorise Austria to sign and ratify, and Malta to accede to, the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, “in the interest of the Union”.

A decision to this effect has in fact been adopted on at the Justice and Home Affairs Council of 10 March 2016, accompanied by a statement of the German government.

In the statement, Germany expresses its doubts as to whether the decision in question “falls within the exclusive external competence of the European Union”.

It is not clear, the statement observes, “why the future application of the Hague Service Convention to Austria and Malta could affect common rules on judicial cooperation between Member States in civil matters or alter their scope (Article 3(2) TFEU)”, since the Hague Service Convention applies in relation to third countries, whereas between European Union Member States, Regulation No 1393/2007 “clearly takes precedence over that Convention”.

In the view of the German government, the decision “should therefore not be used as a model for and should be without prejudice to any other measures in which the exclusive external competence of the European Union may play a role which may be taken by the European Union to resolve other similar cases”.

I have earlier reported on the referral in Universal, Case C-12/15. Szpunar AG opined today, 11 March (the English text of the Opinion is not yet available at the time I write this post) and suggests (at 37) that the Court not apply its Erfolgort /Handlungsort distinction per Case 21/76  Bier /Minnes de Potasse. He reminds the Court of Bier’s rationale: a special link between the Erfolgort and the case at hand, so as to make that place, the locus damni, the place where the damage arises, well suited to address the substantive issues raised by the claim. (He also reminds the Court, at 30, that the language of what is now Article 7(2) only refers to the harmful event; not in the slightest to damage).

In cases where the only damage that arises is purely economic damage, the locus damni is a pure coincidence (in the case of a corporation suffering damage: the seat of that corporation), bearing no relation to the facts of the case at all (lest it be entirely coincidental). The Advocate General skilfully distinguishes all relevant CJEU precedent and in succinct yet complete style comes to his conclusion.

The Court itself embraces its Bier ruling more emphatically than its AGs do (see the similar experience of Cruz Villalon AG in Hejduk).  That Universal Music is quite clearly distinguishable from other cases may sway it to follow the AG in the case at issue. However its fondness of Bier (judgment in 1976; it had been a hot summer that year) may I fear lead it to stick to its fundamental twin track of Erfolg /Handlungsort no matter the circumstances of the case.

Geert.

Pourvoi c/ Cour d'appel de Rennes, 16 septembre 2015

Pouvoir c/ Cour d'appel de Paris, pôle 2, chambre 1, 11 décembre 2014

Juridiction de proximité d'Angoulême, 9 février 2016

Pourvoi c/ Cour d'appel de Montpellier, 3e chambre correctionnelle, 22 avril 2014

Conseil de Prud'hommes de Toulouse, 17 février 2016

Irrecevabilité

Irrecevabilité

Irrecevabilité

Irrecevabilité

By a ruling of 8 March 2016, the German Federal Supreme Court declared that claims brought by German holders of Greek bonds against Greece, for damages suffered as a result of the Greek debt restructuring, were barred on grounds of State immunity (a press release may be found here, pending the publication of the full text of the decision).

The following is an excerpt of the report posted by Peter Bert at Dispute Resolution in Germany.

The bonds that the claimants had acquired – in Germany and through German Banks – where governed by Greek law. They did not contain collective action clauses. This notwithstanding, the terms of the bonds were subsequently amended by a majority vote of the bondholders and these amendments were declared binding upon all bondholders by laws passed by the Greek parliament. The measures that were implemented contained both a 53.5% haircut and an extension of the duration of the bonds.

Today, the Federal Supreme Court dismissed the actions as inadmissible (unzulässig). The Hellenic Republic was protected by the principle of sovereign immunity against these lawsuits in Germany. The international public law concept of sovereign immunity is recognized in German law (Sec. 20 para. 2 Courts Constitution Act; Art. 25 Basic Law; GG)

Raising capital by issuing bonds, according to the court, is per se not itself an sovereign act (nicht-hoheitliches Handeln; acta iure gestionis). However, whether the Hellenic Republic was protected by sovereign immunity was not only determined by the legal nature of the relationship between the parties, but also by the nature of the acts of state which are in dispute between the parties.

Accordingly, in the case at hand, it is not the issuance of bonds or the contractual relationship between the bondholders and Greece which is relevant for decision on immunity, but the legal nature of the acts that Greece took in order to restructure its debt. In particular, the dispute between the parties centred on the validity of the Greek law 4050/2012 of February 23, 2012 and the decisions of the Greek Council of Ministers dated March 9, 2012. These were the legal acts that declared the majority vote of the bondholders binding on all bondholders, and they clearly were sovereign acts (acta iure imperii).

In the words of the court, the very idea behind the concept of sovereign immunity is to prevent one state from ruling on the legality of sovereign acts of another state (“Der Grundsatz der Staatenimmunität will gerade Entscheidungen eines Staates über die Rechtmäßigkeit der hier maßgeblichen hoheitlichen Maßnahmen eines anderen Staates verhindern.”). But this is exactly what the German courts would have to do, were they to decide these disputes on the merits.

Thanks to Peter Bert for giving permission for the reproduction of his post.

Our co-editor Tanja Domej from University of Zurich has authored a monograph entitled “Internationale Zwangsvollstreckung und Haftungsverwirklichung am Beispiel der Forderungspfändung” (International Execution and the Implementation of Liability). The volume has been published by Mohr Siebeck. It is written in German.

The official abstract reads as follows:

Tanja Domej retraces the debates over the relevancy and meaning of the principle of territoriality for the cross-border attachment of debts from a comparative perspective. On the basis of an interest analysis, she presents perspectives for an appropriate approach to dealing with issues of cross-border attachment of incorporeal assets.

More information is available on the publisher’s website.

Granted, the (bad) pun in the title would have worked better around the end of year, which is when I had originally planned this posting, before I got sidetracked. Bob Wessels has excellent overview here (including admirably swift and exact translation of core parts of the judgment). OOO PROMNEFTSTROY v Yukos at the Dutch Supreme Court is but one instalment in running litigation literally taking place across the globe.

Of particular interest to the blog is the court’s finding (at 3.4.2) that the existence of a corporation is subject to the lex incorporationis not, as the Court of Appeal had held, the lex concursus in the event of insolvency. The EU’s Insolvency Regulation does not apply for COMI is not within the EU. The Insolvency Regulation does not in so many words say the same as the Dutch Supreme Court however it is likely that under the EIR, too, this issue falls under lex societatis /lex incorporationis (see e.g. Miguel Virgos & Francisco Garcimartin, The European Insolvency Regulation: Law and Practice, Kluwer, 2004, p.82 (par 123, f: dissolution of the company).

One can imagine of course the one or two complications arising out of the seizure of assets of a company which no longer exists.

Geert.

Moss, Fletcher and Isaacs on the EU Regulation on Insolvency Proceedings, 3a ed., Oxford University Press, 2016, ISBN 9780199687800, GBP 175.

[Dal sito dell’editore] – This practical book provides complete analysis of the revised EU
Regulation on Insolvency Proceedings (EIR), the main Regulation on cross-border insolvencies in the EU. This is an essential work for anyone who requires knowledge of insolvency law in the UK or in any of the other 26 EU countries to which the Regulation is directly applicable. Timed to take into account the final amended version of the EIR, this third edition of the leading work contains detailed analysis and opinion on the effect of the changes to Regulation in practice. It also considers the numerous ECJ and relevant national cases which have been decided since the last edition. 

Ulteriori informazioni sul volume, che tiene conto del regolamento 2015/848, recante la rifusione del regolamento n. 1346/2000, sono disponibili a questo indirizzo.

La réglementation comptable française évite aux entreprises d’amortir systématiquement le fonds commercial éventuellement présent dans leurs comptes individuels. Ce choix fait débat sur sa légalité au regard du droit de l’Union européenne. Selon notre enquête, l’enjeu est considérable.

en lire plus

Refuser à un ressortissant étranger en couple stable homosexuel le droit de séjour au titre du regroupement familial est discriminatoire et contraire au droit à une vie familiale normale.

en lire plus

Irrecevabilité

Irrecevabilité

Irrecevabilité