Agrégateur de flux

Le recouvrement des cotisations et contributions dues au titre d’un régime obligatoire de protection sociale ne revêt pas le caractère d’une pratique commerciale au sens de la directive 2005/29/CE et ne peut être, dans ce cadre, examiné à l’aune de la Charte des droits fondamentaux de l’Union européenne (Charte UE).

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A readworthy and laboursome book on International Maritime Labour Law, authored by Laura Carballo Piñeiro (Santiago de Compostela), has just been published within the Hamburg Studies on Maritime Affairs (Springer, 2015).

The blurb reads:

This book focuses on maritime employment from a private international law perspective. The first chapter analyzes the background against which international jurisdiction and conflict of laws rules are drawn up and examines uniform law in this context, in particular the 2006 Maritime Labour Convention and the 2007 ILO Convention No. 188 on Work in Fishing. The second chapter addresses international jurisdiction issues as regards individual employment contracts, while also exploring other issues (e.g. insolvency-related and social security matters) that are subsequently revisited in the third chapter while discussing conflict of laws issues related to said contracts. In turn, chapter four focuses on collective labour relations and private international law, i.e. collective agreements, strikes and other forms of collective action and information, and on the participation rights of employees in business matters.

More information is available here.

On the blog section of the Dutch journal Nederlands Juristenblad, a blog of Veerle Van Den Eeckhout on the importance of Private International Law has been published, see here.
The blog is entitled “The impact and potential of a curious and unique discipline. About PIL, Shell Nigeria, European and global competition and social justice.” It is written in Dutch; here is the English version.

The blog refers, inter alia, to the Shell-Nigeria case and to some PIL-aspects of international labour law. It was foreseen that on 14 July 2015 the Hague Court of Appeal would pass judgement in the Shell-Nigeria case, but in the meantime the judgement has been postponed until a later date.

On SSRN, an English verson of Van Den Eeckhout’s paper “The Right Way to Go in International Lbour law – and Beyond” has been made available meanwhile. This paper discusses some PIL-aspects of international labour law.

by Anastasia Gialeli

Anastasia Gialeli, LL.M. (Freiburg), is a doctoral candidate at the Albert-Ludwigs-University Freiburg (Germany) and a research assistant at the University’s Institute for Comparative and Private International Law (Dept. III). She has kindly provided us with her thoughts on a seemingly technical, but actually very sensitive legal and political issue raised by the Greek debt crisis.

The Court of Justice of the European Union (CJEU) on 11 June 2015 delivered its judgment in the joined cases C-226/13, C-245/13, C-247/13 and C-578/13 regarding the concept of “civil and commercial matters”, now for the first time within the meaning of the Service Regulation (No 1393/2007).

1. Background

In the main four proceedings before German courts (i.e. Landgericht Wiesbaden and Kiel), the claimants, all holders of Greek State bonds, had initiated legal actions against the Hellenic Republic based on German civil law. They were claiming compensation for disturbance of ownership and property rights, contractual performance of the bonds which have reached maturity or damages caused by the retroactive and unilateral change of the bonds by the Greek State in the framework of the Private Sector Involvement (PSI). The judgment is particularly important because it concerns numerous civil legal actions of German bondholders against Greece brought before German courts (cf. the identical request for a preliminary ruling made by Landgericht Aachen in case C-196/14 and the cited case law as follows).

In the decision made by the European Council regarding financial assistance for Greece at the summit of 21 July 2011 a “voluntary” PSI was included. It was regarded as an exceptional and unique solution for the sustainability of the Greek debt (Euro Summit Statement of 26 October, 2011, page 4-5, Statement by the Eurogroup of 21 February, 2012). A successful PSI operation was therefore a requirement for Greece in order to achieve a second Economic Adjustment Programme with the EU, the IMF and the ECB (Statement by the Eurogroup of 21 February, 2012). In line with this, the Greek Parliament adopted the Law No 4050/2012 entitled „Rules relating to the adjustment of securities, their issue or guarantee by the Greek State with the agreement of the bond holders“ (hereinafter: Greek Bondholder Act) on 23 February 2012.

In accordance with the Greek Bondholder Act, the Greek State in February 2012 submitted an exchange offer to the applicants which provided for the original bonds to be exchanged for new bonds with a considerably reduced nominal value (53,5%) and a longer period of validity, which the applicants, however, rejected. Nevertheless, the Greek State carried out the proposed exchange in March 2012, by means of the restructuring clause contained in the Greek Bondholder Act, also known in financial terms as a so-called “CAC“ (Collective Action Clause) (see the detailed presentation by Sandrock RIW 2012, 429). Pursuant to this clause, the unilaterally proposed change of the initial conditions of the bonds could be accepted (or refused, but not renegotiated or modified) by a quorum representing 50% of the total outstanding bondholders concerned and with a decision by the qualified majority corresponding to two thirds of the participating capital. This decision then had to be approved by a resolution of the Greek Council of Ministers and executed by the Greek Central Bank. Article 1(9) of the Greek Law furthermore provides for an erga omnes effect of the decision adopted by the majority, which is also binding on the minority of the concerned bondholders and overrides any general or specific law and any contracts conflicting with it. Finally, it stipulates that these provisions protect the public interest and, thus, they constitute overriding mandatory rules, excluding any liability of the Greek State.

The exchange of the bonds was disadvantageous for the applicants, who obviously belong to the disagreeing minority (hold-out creditors, 5% pursuant to the Second Economic Adjustment Programme for Greece of March 2012, page 48). In order to serve the documents initiating the proceedings against the Greek State, the transmitting body (Bundesamt für Justiz, i.e. the German Federal Office for Judicial Administration and Cooperation) raised the question as to whether, for the purpose of Article 1 (1) of Regulation No 1393/2007, those actions concerned “civil or commercial matters” or acts or omissions in the exercise of State authority, which are, pursuant to Article 1 (1, 2nd sentence), explicitly excluded from the scope of the Regulation (acta iure imperii). The crucial question is whether the interpretation of the concept of civil or commercial matters should be made by focusing on the civil law basis of the legal actions or on the subject matter of the dispute.

The Landgericht Wiesbaden (one of the referring courts) tended towards characterizing the claims based on the subject matter of the dispute, namely the intervention by law in a case originally of a civil nature – i.e. the purchase of the bonds – and its effects on the property or contract rights of the applicants. Thus, according to this court, the case at issue should be classified as falling under the explicit exclusion in Article 1 (1, 2nd sentence) concerning the liability of a State acting in the exercise of public authority (LG Wiesbaden, 18.4.2013 para. 14-15). This is in line with the case law of other German civil courts, which in similar cases involving German bondholders’ actions have argued that the subject matter concerns the Greek State’s public authority and that, accordingly, the Hellenic Republic should enjoy immunity in this regard (cf. LG Konstanz 19.11.2013, para. 27; OLG Schleswig-Holstein 04.12.2014, para. 48-72, pending before the BGH ref. number XI ZR 7/15). This line of reasoning also corresponds with the leading judgment of the plenum of the Greek Council of State No 1116/2014 of 21 March, 2014.

2. Judgment

The CJEU, however, holds that article 1 (1) of the Service Regulation “must be interpreted as meaning that legal actions for compensation for disturbance of ownership and property rights, contractual performance and damages, such as those at issue in the main proceedings, brought by private persons who are holders of government bonds against the issuing State, fall within the scope of that regulation in so far as it does not appear that they are manifestly outside the concept of civil or commercial matters.”

Standard of evidence

First, the CJEU points out that it “suffices that the court hearing the case concludes that it is not manifest that the action brought before it falls outside the scope definition of civil and commercial matters“ (para. 49). The Court adopts the Commission’s opinion and argues that, because of the complexity of the distinction between civil or commercial matters and acta iure imperii, the court usually has to decide on this question only after having heard all the parties and thus having all the necessary information. In the case of the Service Regulation however, this question arose in a very early phase, i.e. even before the defendant had been served with the initiating document. Moreover, the answer to this question determines the methods of service of that document. Thus, “the court must limit itself to a preliminary review of the available evidence, which is inevitably incomplete, in order to decide” about the application of the Service Regulation.

As far as the question of distinguishing between civil or commercial matters, on the one hand, and acta iure imperii, on the other, arises within the framework of the Service Regulation, the answer is restricted to the method of the service without prejudice to the international jurisdiction and the substance of the case at issue (para. 46). Thus, the Court reasonably takes into account that the court seised may not have the jurisdiction that is required to deliver its judgment in substance. As a consequence, the Court facilitates the initiation of the proceedings, one of the key aims of the Regulation.

However, the Court argues that its interpretation is also confirmed by the general scheme of the Service Regulation, as this results from recital 10, which states that “the possibility of refusing service of documents should be confined to exceptional situations”, in conjunction with Article 6 (3), which enables the receiving agency to return the documents to the transmitting agency if the concerned request for service is “manifestly outside the scope of that regulation“. This argument is not fully convincing as it should be noted that the cited provision is a special rule and is addressed to the receiving agency because of the non-judicial nature of those bodies in contrast to the seised court. The seised court, however, is the competent body to decide on the applicability of the Service Regulation. Thus, the systematic argument of the Court is rather doubtful (see also Advocate General Bot 9.12.2014, para 72 and footnote 73).

The CJEU further stipulates that, in conformity with its case law on the Brussels Convention and Brussels I, the concept of civil or commercial matters must be regarded as an independent concept within the framework of the Service Regulation as well, interpreted by referring to the objectives and the scheme of that Regulation. With regard to the main objectives of the Service Regulation, the Court points out that recitals 2, 6 and 7 provide for the improvement and the expediency of the transmission of judicial and extrajudicial documents, in order to ensure the proper functioning of the internal market. In this context, it should be noted that – in contrast to the opinion of AG Bot (AG Bot 9.12.2014, para. 49) – the Court seems not willing to take into proper consideration the general objectives of legal certainty and coherence of law, but overestimates the objective of the effectivity of the Service Regulation. The service of a document should certainly be improved and facilitated, but only under the condition that the case at issue falls into the scope of the Regulation at all.

Decisive criterion for the distinction

The wording of the Court’s ruling that ”legal actions (…) fall within the scope of that regulation in so far as it does not appear that they are manifestly outside the concept of civil or commercial matters” is rather unfortunate and unusual – compared to, e.g., C-302/13 flyLAL, C-292/05 Lechouritou, C-645/11 Sapir, C-14/08 Roda Golf – and ends in a vicious circle, which does not provide a safe harbour for national courts having to determine whether the case at issue falls in or outside the scope of the Regulation.

In the reasoning of its judgment, the Court tries to define the crucial criterion for determining whether the case at issue falls in or outside the scope of the Service Regulation. In general terms, the disputed act of the state authority should lead directly and immediately to a change in the legal relationship involved and therefore should cause the alleged damage. The Court holds that ”it is not obvious that the adoption of the Law No 4050/2012 led directly and immediately to changes to the financial conditions of the securities in question and therefore caused the damage (…)” (para. 57). Instead of the Greek Bondholder Act itself, the Court considers the decision of the majority of the bondholders accepting the exchange offer as the event giving rise to the damage. This is hard to square with the fact that it was exactly the Greek Bondholder Act which imposed the retroactive erga omnes effect of a majority decision upon the hold-out bondholders’ contracts in order to safeguard public interests. The direct binding effect of the majority’s decision on the contracts of the hold-out applicants does not, however, fall under the scope of ordinary legal rules applicable to relationships between private individuals. Further, it should be pointed out that, first, the bond exchange was executed by the Central Bank of Greece after a resolution of the Council of Ministers had approved the majority’s decision, also by an administrative process, and secondly, that the content of the decision itself was not negotiable by the majority but in fact unilaterally designated by the Greek Bondholders Act. Finally, this Act was adopted in order to deal with a severe financial crisis and especially to restructure the public debt and secure the stability in the Eurozone, objectives closely linked to state sovereignty. Those objectives are also noticed by the Court, but the judges do not consider them as decisive. Thus, the Court, similar to its earlier Sapir judgment (C-645/11 para. 35-37) concerning Brussels I, interprets the concept of civil or commercial matters widely in the framework of the Service Regulation as well.

In contrast, AG Bot had pleaded persuasively that the case at issue should be excluded from the scope of the Service Regulation because the present dispute was rooted in the adoption and the implementation of the Greek Bondholders Act, which constitutes an act in the exercise of public power (AG Bot para. 63-70). This opinion is in accordance with my reading of the earlier case law of the CJEU with regard to the unilateral and binding manner of acting by a public authority, which appears as inextricably linked to a State’s public interest, in the case at issue to financial policy (cf. especially CJEU Lechouritou C-292/05 para. 37; Baten C-271/00, para. 36; Tiard C-266/01, para. 33; Sapir C-645/11, para. 33; flyLAL C-302/13, para. 31; cf. Kropholler/von Hein EuZPR, 9th ed., Art. 1 EuGVO para. 6; Stein/Jonas/Wagner ZPO, 22nd ed., Art. 1 EuGVO para. 11).

The initial purchase of the bonds is, in line with the Court’s judgment, governed by the ordinary financial market and legal rules applying to individuals. However, the decision of the majority of the bondholders, which pursuant to the Court should be regarded as the decisive act, does constitute the implementation of the Greek Bondholders Act itself. It seems that the Court adopts an inconsistently technical view of the subject matter when it refuses to consider the form of the crucial act of the Greek State, i.e. the adoption of the Law in itself, as decisive, but at the same time characterizes the majority bondholders’ acceptance as the decisive criterion, although that acceptance was in fact only motivated by a desire to avoid an absolute loss (cf. Sandrock RIW 2013, 12, 15: Bondholders had the choice between Scylla and Charybdis). Furthermore, the argument that the intention of the Greek State (para. 57) was to keep the handling of the bonds within a regulatory framework of a civil nature should be irrelevant to an autonomous definition in European civil procedure law.

3. Outlook

After the Court has paved the way for applying the Service Regulation in the cases of German bondholders, it must be awaited how the German courts will evaluate the parallel issue at the level of jurisdiction. As far as the courts accept the civil nature of the case, they must then determine which head of jurisdiction under Brussels Ia could apply. After the Kolassa judgment (C-375/13), the only available basis is found in Article 7 No 2, which in turn may be overruled by a choice of court agreement (Article 25). On a conflict of laws level, it is assumed that in the general terms of the exchange of the bonds at issue a choice of law clause in favour of Greek, English or Swiss law has been made (Sandrock, RIW 2012, 429 434). In case that the lex causae is not Greek law, the question arises as to whether the Greek Bondholder Act must be characterized as an overriding mandatory rule (cf. the request for a preliminary ruling of the BAG, 25.2.2015 in case C-135/15 Nikiforidis, concerning labour contracts with the Greek State, and the previous post by Dr. Lisa Günther on this issue).

Non renvoyée au Conseil constitutionnel

Non renvoyée au Conseil constitutionnel

Non renvoyée au Conseil constitutionnel

Non renvoyée au Conseil constitutionnel

Tribunal de grande instance de Bordeaux, 19 juin 2015

Pourvoi c/ Cour d'appel de Paris, 6 mars 2015

Tribunal des affaires de sécurité sociale de la Moselle, 1 juillet 2015

Tribunal de grande instance de Paris, 15 mai 2015

Pourvoi c/ Cour d'appel de Paris, Chambre de l'instruction, 7 mai 2015

Pourvoi c/ Cour d'appel de Paris, 17 février 2015

Il 2 ottobre 2015, l’Università degli Studi di Milano ospiterà il convegno dedicato al tema della Libera circolazione e riconoscimento delle famiglie: profili di diritto internazionale privato, tutela dei diritti e ordinamento interno. 

L’incontro è organizzato nell’ambito del modulo Jean Monnet on European Family Law, di cui è titolare Chiara Ragni, in cooperazione con la Rivista GenIUS, Rivista di studi giuridici sull’orientamento sessuale e l’identità di genere.

I lavori si articoleranno in due sessioni, dedicate al riconoscimento degli status e delle situazioni familiari e a quello della trascrizione di atti giuridici stranieri attestanti l’esistenza di rapporti familiari. A conclusione di ciascuna sessione è previsto un incontro programmato: chi ne abbia interesse può sottoporre una proposta di intervento sul tema del convegno nel settore del diritto internazionale privato, della tutela internazionale dei diritti umani, del diritto dell’Unione europea o del diritto costituzionale.

[Dalla presentazione del convegno] – L’eterogeneità normativa che caratterizza la disciplina dei rapporti familiari, ancora significativamente condizionata dai principi etico-morali e dalle tradizioni culturali − e spesso religiose − dominanti in ciascuno Stato, ha spesso come effetto il mancato riconoscimento nello Stato di rapporti instaurati altrove ai sensi di una legge straniera, in considerazione della loro contrarietà all’ordine pubblico ovvero per la mancata previsione di istituti giuridici ad essi assimilabili nei quali poterli inquadrare, con la conseguente proliferazione di rapporti giuridici c.d. claudicanti. In tale contesto le norme di diritto internazionale privato da un lato non sono spesso in grado di fornire risposte adeguate ai problemi descritti, dall’altro la loro rigida applicazione può condurre a risultati incompatibili sia con l’esercizio delle libertà comunitarie, che con la tutela dei diritti dell’uomo. A tale ultimo riguardo, la Corte europea dei diritti dell’uomo ha recentemente ribadito che il diritto al rispetto della vita familiare, sancito dall’art. 8 Cedu, implica che sia garantita la continuità degli status o, meglio, delle situazioni familiari che fanno capo all’individuo o che quantomeno ne sia assicurata una protezione equivalente a quella fornita nello Stato dove il legame si è instaurato. Nell’ambito della più ampia tematica del riconoscimento degli effetti giuridici derivanti da rapporti costituiti altrove si pongono pertanto sia problemi di bilanciamento tra interessi confliggenti, sia di coordinamento tra i diversi sistemi giuridici che ne sono espressione.

L’abstract dell’intervento – che non dovrà superare le 500 parole in lingua italiana o inglese – dovrà essere inviato in formato pdf, entro il 20 agosto 2015, all’indirizzo chiara.ragni@unimi.it e dovrà riportare quattro parole chiave oltre a cognome e nome del proponente, la qualifica accademica o professionale, unitamente a tutti i contatti utili (telefono, cellulare, e-mail).

Ulteriori informazioni sono disponibili qui.

I have reported previously on this action, when it was launched. The Court at The Hague held late June. For good (and impressive) measure, it immediately released an English translation of the judgment. Jolene Lin has excellent overview here, I will simply add the one or two things which I thought were particularly striking.

Firstly, this judgment was not written by a bunch of maverick ‘environmental’ judges. It is the commercial court at The Hague which issued it (see the reference to ‘team handel’, ‘handel’ meaning commerce, or trade).

The judgment hinges on the State’s duty of care which the court established. Urgenda, applicant, had suggested that regardless of the individual behaviour of Dutch citisens and corporations, the Government carries overall or ‘systemic’ responsibility (‘systeemverantwoordelijkheid’), as the representative of the sovereign Dutch nation, to ensure that it controls emissions emanating from The Netherlands. Article 21 of the Dutch Constitution and the international no harm (sic utere tuo) principle featured heavily in the court’s acceptance of the State duty of care. That the Dutch action might only be a drop in the ocean, did not impress the judge: plenty of pennies make a pound, and at any rate, The Netherlands, as a developed nation, were found to have increased responsibility.

At 4.42 and 4.43, the Court then applies what in EU law is known as the Marleasing principle.

‘From an international-law perspective, the State is bound to UN Climate Change Convention, the Kyoto Protocol (with the associated Doha Amendment as soon as it enters into force) and the “no harm” principle. However, this international-law binding force only involves obligations towards other states. When the State fails one of its obligations towards one or more other states, it does not imply that the State is acting unlawfully towards Urgenda. It is different when the written or unwritten rule of international law concerns a decree that “connects one and all”. After all, Article 93 of the Dutch Constitution determines that citizens can derive a right from it if its contents can connect one and all. The court – and the Parties – states first and foremost that the stipulations included in the convention, the protocol and the “no harm” principle do not have a binding force towards citizens (private individuals and legal persons). Urgenda therefore cannot directly rely on this principle, the convention and the protocol. (….) 

This does not affect the fact that a state can be supposed to want to meet its international-law obligations. From this it follows that an international-law standard – a statutory provision or an unwritten legal standard – may not be explained or applied in a manner which would mean that the state in question has violated an international-law obligation, unless no other interpretation or application is possible. This is a generally acknowledged rule in the legal system. This means that when applying and interpreting national-law open standards and concepts, including social proprietary, reasonableness and propriety, the general interest or certain legal principles, the court takes account of such international-law obligations. This way, these obligations have a “reflex effect” in national law.‘

In this respect the court also referred extensively to the European Court of Human Rights’ case-law on the duty of a State to put into place a legislative and administrative framework to address the challenges posed by dangerous activities.

The Court also, with reference to international scientific consensus, concluded that climate mitigation, rather than adaptation, is the more effective, efficient and least expensive way to address climate change.

Eventually it settles for a finding of duty of care and ensuing responsibility to reduce the emission of greenhouse gases by at least 25% viz 1990 levels, by 2020. This 25% is the floor of what the international scientific community suggests is needed properly to address the dangers of climate change. (The court, in deference to trias politica, therefore did not want to go higher than that floor).

Next up (other than appeal, one might imagine): the Belgian courts, which have been seised of a similar action.

Geert.

Declaration of interest: I advice the Belgian litigation pro bono.