New EU Regulation 2019/452 establishes a framework for the screening of foreign direct investments into the Union 22.03.2019
On 21 March 2019, got published in the Official Journal of the European Union (OJEU, L 79 I/1), REGULATION (EU) 2019/452 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 19 March 2019 establishing a framework for the screening of foreign direct investments into the Unions.
In its recitals the Regulation:
stresses that there is currently no comprehensive framework at Union level for the screening of foreign direct investments on the grounds of security or public order, while the major trading partners of the Union have already developed such frameworks;
highlights that foreign direct investment falls within the field of the common commercial policy and that, in accordance with point (e) of Article 3(1) TFEU, the Union has exclusive competence with respect to the common commercial policy; and
emphasis that is important to provide legal certainty for Member States' screening mechanisms on the grounds of security and public order, and to ensure Union-wide coordination and cooperation on the screening of foreign direct investments likely to affect security or public order making clear that common framework is without prejudice to sole responsibility of Member States for safeguarding their national security, as provided for in Article 4(2) TEU and that it is also without prejudice to the protection of their essential security interests in accordance with Article 346 TFEU.
As a consequence, according to its Article 1 (1), this [new] Regulation establishes a framework for the screening by Member States of foreign direct investments into the Union on the grounds of security or public order and for a mechanism for cooperation between Member States, and between Member States and the Commission, with regard to foreign direct investments likely to affect security or public order. It includes the possibility for the Commission to issue opinions on such investments.
In accordance with this Regulation, Member States may maintain, amend or adopt mechanisms to screen foreign direct investments in their territory on the grounds of security or public order (for further details on screening mechanism of Member States see Article 3).
The Regulation enters into force on 11 October 2020.
Please find the new Regulation (EU) 2019/452 here.
CJEU: Judgement in Case C‑221/17- Ruling on the consequences of the loss, by law, of nationality of a Member State and citizenship of the EU; Article 20 TFEU, read in the light of Articles 7 and 24 of the Charter of Fundamental Rights of the EU 21.03.2019
In Case C 221/17 - M.G. Tjebbes, G.J.M. Koopman, E. Saleh Abady, L. Duboux v Minister van Buitenlandse Zaken- delivered on 12 March 2019, the questions referred:
Must Articles 20 and 21 TFEU, in the light of, inter alia, Article 7 of the [Charter], be interpreted — in view of the absence of an individual assessment, based on the principle of proportionality, with regard to the consequences of the loss of nationality for the situation of the person concerned from the point of view of EU law — as precluding legislation such as that in issue in the main proceedings, which provides:
(1) that an adult, who is also a national of a third country, loses, by operation of law, the nationality of his or her Member State, and consequently loses citizenship of the Union, on the ground that, for an uninterrupted period of 10 years, that person had his or her principal residence abroad and outside the [Union], although there are possibilities for interrupting that 10-year period;
(2) that under certain circumstances a minor loses, by operation of law, the nationality of his or her Member State, and consequently loses citizenship of the Union, as a consequence of the loss of the nationality of his or her parent, as referred to under (1) ...?’
are answered by the Court of Justice as follows:
Article 20 TFEU, read in the light of Articles 7 and 24 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding legislation of a Member State such as that at issue in the main proceedings, which provides under certain conditions for the loss, by operation of law, of the nationality of that Member State, which entails, in the case of persons who are not also nationals of another Member State, the loss of their citizenship of the Union and the rights attaching thereto, in so far as the competent national authorities, including national courts where appropriate, are in a position to examine, as an ancillary issue, the consequences of the loss of that nationality and, where appropriate, to have the persons concerned recover their nationality ex tunc in the context of an application by those persons for a travel document or any other document showing their nationality. In the context of that examination, the authorities and the courts must determine whether the loss of the nationality of the Member State concerned, when it entails the loss of citizenship of the Union and the rights attaching thereto, has due regard to the principle of proportionality so far as concerns the consequences of that loss for the situation of each person concerned and, if relevant, for that of the members of their family, from the point of view of EU law.
For further details read the entire judgement C-221/17 here.
WIPO-HCCH Guide on “When Private International Law meets Intellectual Property Law – A Guide for Judges” 15.03.2019
The Council on General Affairs and Policy (CGAP) of the Hague Conference on Private International Law met from 5 to 8 March 2019. According to the Conclusions & Recommendations adopted during its meeting (read the document here) the CGAP approved, i.a., the final draft of the WIPO-HCCH Guide on “When Private International Law meets Intellectual Property Law – A Guide for Judges” and asked the Permanent Bureau to cooperate with WIPO regarding the publication and promotion of the Guide. Furthermore, the CGAP invited the Permanent Bureau to cooperate with the WIPO Secretariat to publish the Guide and encouraged joint HCCH-WIPO activities aimed at widely promoting the Guide among judiciaries and other relevant stakeholders.
The foreword of the Guide states that "[its] objective is to give judges and legal practitioners an overview of how private international law (PIL) may apply in intellectual property (IP) disputes. Conscious of this being a complex subject, the Guide is designed to be as user-friendly as possible. It is written in straightforward language and includes diagrams to help explain key concepts that may find application in many States.
It also includes examples – both hypothetical examples of possible disputes where PIL and IP might interact and real-life examples of national, regional and international laws that may be relevant in such disputes. The real-life examples of laws are drawn mainly from those jurisdictions that the authors know best, namely Australia, Belgium and the European Union. They are purely illustrative: this short introductory Guide does not offer a comprehensive overview of all relevant laws, and each reader should complement it with more detailed study of the law relevant to their jurisdiction.
The Guide should be considered as a stepping-stone that will help judges and lawyers when they are resolving cross-border IP law issues. It does not advocate any particular approach to substantive issues of law or provide any solutions in individual cases; rather, by highlighting the main issues in this complex area, it aims to assist judges and lawyers in many different States to make informed decisions."
The Guide is prepared by Dr. Annabelle Bennett, Former Judge Federal Court of Australia, Sydney, Australia and Mr. Sam Granata, Judge Court of Appeal, Antwerp, Belgium, and Benelux Court of Justice, Luxembourg.
Please find the Guide on “When Private International Law meets Intellectual Property Law – A Guide for Judges”: here.
CJEU: Judgement in Case C 579/17 - Ruling on the interpretation of Article 1 Regulation Brussels Ia and admissibility of the request for a preliminary ruling in the context of Article 53 thereof 04.03.2019
In Case C 579/17 - BUAK Bauarbeiter-Urlaubs- u. Abfertigungskasse v Gradbeništvo Korana d.o.o. - delivered on 28 February 2019, the question referred, resumed in essence, whether Article 1 of Regulation No 1215/2012 must be interpreted as meaning that an action for payment of wage supplements in respect of annual leave pay brought by a body governed by public law against an employer, in connection with the posting of workers to a Member State where they do not have their habitual place of work, or in the context of the provision of labour in that Member State, or against an employer established outside of the territory of that Member State in connection with the employment of workers who have their habitual place of work in that Member State, falls within the scope of application of that regulation, is answered by the Court of Justice as follows:
Article 1 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that an action for payment of wage supplements in respect of annual leave pay brought by a body governed by public law against an employer, in connection with the posting of workers to a Member State where they do not have their habitual place of work, or in the context of the provision of labour in that Member State, or against an employer established outside of the territory of that Member State in connection with the employment of workers who have their habitual place of work in that Member State, falls within the scope of application of that regulation, in so far as the modalities for bringing such an action do not infringe the rules of general law and, in particular, do not exclude the possibility for the court ruling on the case to verify the merits of the information on which the establishment of that claim is based, which is a matter to be determined by the referring court.
According to the case facts:
BUAK, established in Vienna (Austria), is a body governed by public law that is responsible for collecting the funds required to satisfy claims under the BUAG*. It is more particularly responsible for the management and payment of claims to paid annual leave of workers in the construction sector. Korana, an undertaking established in Slovenia, posted workers to Austria in respect of construction works.
On 18 October 2016, BUAK brought an action before the Arbeits- und Sozialgericht Wien (Labour and Social Security Court, Vienna, Austria) seeking the payment, by Korana, of EUR 38 447.50 plus interest and costs, in respect of wage supplements owed by that company, under Section VIb of the BUAG, for the working days completed by workers posted by that company to Austria during the period between February and June 2016.
In support of its application, BUAK claimed that, as a leave pay fund, it was entitled, on the basis of the BUAG, to obtain a wage supplement from the employer, consisting inter alia of payments in respect of annual leave and management costs, calculated for each working day completed by a worker in the construction sector in Austria, according to a method of calculation fixed by law.
By a judgment of 28 April 2017, delivered in the absence of Korana, that court upheld BUAK’s claim in full. That judgment, which was notified to Korana on 21 June 2017, acquired force of res judicata in the absence of any opposition on the part of the latter. During the procedure which led to the delivery of that judgment, that court appears not to have examined whether it had jurisdiction in accordance with Regulation Brussels Ia.
On 31 July 2017, for the purposes of the execution of that judgment, BUAK brought before that court an application for the issue of the certificate referred to in Article 53 of that judgment. The referring court notes that the issue of such a certificate, under Article 53 of Regulation Brussels Ia, is subject to the condition that the procedure which led to the judgment of 28 April 2017 relates to civil and commercial matters, for the purposes of Article 1(1) of that regulation, which is not clearly apparent from the circumstances of the case in the main proceedings.
Reflecting the unusual situation that the main proceedings were already finished and had not dealt with the question of jurisdiction in accordance with Regulation Brussels Ia and a corresponding interpretation of Article 1 thereof, the Court, in relation to the question of admissibility of the request for a preliminary ruling, comes to the finding that:
The procedure for the issue of a certificate under Article 53 of Regulation Brussels Ia, in circumstances such as those at issue in the main proceedings, is judicial in character, with the result that a national court ruling in the context of such a procedure is entitled to refer questions to the Court for a preliminary ruling.
To give reasons for its decision, the Court argues, in short summary:
The system established by Regulation Brussels Ia is based on the abolition of exequatur, which implies that no control is exercised by the competent court of the requested Member State, since only the person against whom enforcement is brought can oppose the recognition or enforcement of the judgment affecting him. It is apparent from the combined provisions of Articles 37 and 42 of that regulation that, for the purposes of the recognition and enforcement in a Member State of a judgment delivered in another Member State, the applicant must produce solely a copy of the judgment concerned accompanied by the certificate issued, in accordance with Article 53 of that regulation, by the court of origin. That certificate is to be served on the person against whom enforcement is sought prior to any enforcement measure, in accordance with Article 43(1) of that regulation.
The functions thus performed by that certificate in the system of Regulation Brussels Ia justify, in particular in a situation such as that at issue in the main proceedings, where the court which delivered the judgment to be enforced did not rule, at the time of the judgment, on the applicability of Regulation Brussels Ia, that court being obliged, at the time of the issue of that certificate, to determine whether the dispute comes within the scope of application of that regulation. In such a case, as the Advocate General noted in essence in point 52 of his Opinion, by determining whether it is competent to issue the certificate under Article 53 of Regulation Brussels Ia, that court is continuing the previous judicial proceedings by guaranteeing the full effectiveness thereof, to the extent that, in the absence of certification, a judgment is not capable of circulating freely within the European judicial area. Such a conclusion responds to the need to guarantee rapid enforcement of court judgments while ensuring the legal certainty which is the basis of mutual trust in the administration of justice in the Union.
Moreover, in the scheme of Regulation Brussels Ia, the issue of the certificate is entrusted to the court which is most familiar with the dispute and which, as regards the substance, is most able to confirm that the judgment is enforceable. Therefore, by issuing such a certificate provided for in Article 53 of that regulation, the court of origin implicitly confirms that the judgment given in default which must be recognised and enforced in another Member State falls within the scope of application of that regulation, in view of the fact that the issue of the certificate under Article 53 of that regulation is possible only on that condition.
*The Bauarbeiter-Urlaubs- und Abfertigungsgesetz 1972 (Law of 1972 regulating paid leave and severance pay of workers in the construction sector) (BGBl. 414/1972)
The case will be added to the corresponding unalex Compendium on Brussels Ia.
Find the case in the unalex Case Collection under: unalex EU-787.
New Commission Delegated Regulation (EU) 2019/33 in relation to the Union Customs Code concerning entry summary declarations and pre-departure declarations in case of withdrawal of the UK 01.03.2019
Having regard to Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code, and in particular Articles 131(b) and 265(a) thereof, the European Commission adopted COMMISSION DELEGATED REGULATION (EU) 2019/334 of 19 December 2018 amending Delegated Regulation (EU) 2015/2446 as regards the time-limits for lodging entry summary declarations and pre-departure declarations in case of transport by sea from and to the United Kingdom of Great Britain and Northern Ireland, the Channel Islands and the Isle of Man. This regulation applies from the day following that on which the Treaties cease to apply to and in the United Kingdom pursuant to Article 50(3) of the Treaty on European Union. With the exception that a withdrawal agreement concluded with the United Kingdom in accordance with Article 50(2) of the Treaty on European Union has not entered into force by that date.
Please find the COMMISSION DELEGATED REGULATION (EU) 2019/334 published at the Official Journal of the European Union - L 60/1 - on 28 February 2019: here.
HCCH Annual Report 2018 - Special Edition 125 - published 28.02.2019
A year to celebrate: The HCCH turned 125 - On 12 September 1893, Tobias Asser, Dutch Jurist, Scholar and Statesman, opened the first Session of the HCCH. According to the foreword by Christophe Bernasconi, Secretary General of the HCCH, this special edition of the HCCH annual report 2018 has been prepared to commit to history the commemorations marking the 125th Anniversary of the HCCH. At the same time this report also records other achievements of the HCCH during 2018.
Please find the HCCH Annual Report 2018: here.
EASO new Practical Guide on the best interests of the child in asylum procedures 27.02.2019
The European Asylum Support Office (EASO) has published a new Practical Guide on the best interests of the child in asylum procedures.
According to the EASO: This practical guide has been developed by EASO with the support of a group of experts from Belgium, Denmark, Finland, Ireland, Norway and Romania, as well as the European Commission, the European Union Agency for Fundamental Rights (FRA), the United Nations High Commissioner for Refugees (UNHCR) and the United Nations Children’s Fund (Unicef). The aim of this practical guide is to help to identify and highlight the key milestones for the implementation of the best interests of the child. This is done in order to support EU+ states in applying the best interests’ principle and enhancing the guarantees within asylum procedures for children. EU+ states should establish child-friendly asylum processes that ensure the protection of the child throughout the procedure in line with EU and international law. This new practical guide aims to provide guidance and support to the competent national authorities on the required guarantees and safeguards which will ensure that the child’s best interests are given primary consideration when making decisions affecting the child in the asylum procedures.
(Source: EASO webpage -www.easo.europa.eu-)
Opinion of the AG Campos Sánchez-Bordona in C-129/18 – a child in the legal guardianship of an EU citizen under the Algerian Kafala system cannot be classed as a ‘direct descendant’ of that citizen 26.02.2019
In the Case C-129/18 - SM v Entry Clearance Officer, UK Visa Section- Advocate General Campos Sánchez-Bordona delivered his opinion in relation to the following questions referred:
Is a child who is in the permanent legal guardianship of a Union citizen or citizens, under “kefalah” or some equivalent arrangement provided for in the law of his or her country of origin, a “direct descendant” within the meaning of Article 2.2(c) of Directive 2004/38*?
Can other provisions in the Directive, in particular Articles 27 and 35, be interpreted so as to deny entry to such children if they are the victims of exploitation, abuse or trafficking or are at risk of such?
Is a Member State entitled to enquire, before recognising a child who is not the consanguineous descendant of the EEA national as a direct descendant under Article 2.2(c), into whether the procedures for placing the child in the guardianship or custody of that EEA national was such as to give sufficient consideration to the best interests of that child?
In his opinion Advocate General Campos Sánchez-Bordona indicates that: a child who is merely under the legal guardianship of an EU citizen, under the Algerian Kafala system, cannot be classed as a ‘direct descendant’ of that citizen within the meaning of the directive.
He argues that: kafala is a form of guardianship under which an adult Muslim assumes responsibility for the care, education and protection of a minor and acquires legal guardianship temporarily (until the child reaches the age of majority), without creating a relationship of filiation and does not equate to adoption, which is expressly forbidden in that country. Moreover, kafala is revocable.
The Advocate General than considers that:
that child may, however, fall within the category of ‘other family members’ if the other requirements are satisfied and following completion of the procedure laid down in the directive, in which case the host Member State must facilitate his or her entry and residence in that Member State in accordance with national legislation, having weighed the protection of family life and the defence of the child’s best interests. The Advocate General recalls that the protection of the child’s best interests must be the primary consideration in decisions and orders adopted in relation to the child.
For further details see the press release No 16/19, Luxembourg, 26 February 2019 and the opinion of AG Campos Sánchez-Bordona.
*Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p.77)
Communication from the Spanish Ministry of Foreign Affairs, European Union and Cooperation in relation to registration of children born after surrogacy. 25.02.2019
The Spanish Ministry of Justice announced on 16 February 2019 (source: see here), to invalidate the Instruction of the Directorate General of Registries and Notaries (Dirección General de los Registros y del Notariado - DGRN) sent to the consular registers which opened the door to the registration of children born abroad after surrogacy through the presentation of a DNA test that certifies the paternity or maternity of one of the parents.
In accordance with this announcement, the General Directorate of Registries and Notaries, published on 21 February 2019 in the official journal of the Spanish State (BOE 212.2019), instructions on updating the registry regime of the filiations of those born after surrogacy declaring void the former Instruction of the DGRN of 14 February 2019 on the actualisation of the registration regime of the filiations of those born after surrogacy. On the occasion, and calling for an international solution, the Ministry of Justice makes clear that:
Surrogacy constitutes a phenomenon in which there is a serious violation of the rights of minors and pregnant mothers. The preferential interest of the former must be safeguarded in any case, and at the same time the action of the public authorities must guarantee women adequate protection against the danger of abuse of situations of vulnerability that is completely unacceptable. It is also clear that the lucrative activity of the mediating agencies that operate in this field cannot be considered to be in accordance with the law. For the rest, this problem is not limited to Spain, but is carried out in an external environment, which would require coordinated international action to deal with it effectively. As long as that international framework is not available, and without prejudice to the adoption of appropriate and more forceful measures to tackle this practice in Spain, the phenomenon must be treated with the necessary rigor which makes necessary a treatment that allows assessing all the circumstances that arise in each particular case, meaning a valid and sufficient proof of the facts, data and declarations of will. This is much more the case especially in the light of clear abuses against pregnant women.
(The publications are only available in Spanish.)
Revised draft Guide to Good Practice on Article 13(1)(b) of the of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction 25.02.2019
The Hague Conference published the revised draft Guide to Good Practice on Article 13(1)(b) of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (find document no 7 of February 2019 here) to seek Council’s approval to publish the final Guide.
In accordance with the introduction of the published draft document:
"This Guide to Good Practice addresses Article 13(1)(b) of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter, the “1980 Convention” or simply “the Convention”), also known as the “grave risk exception”.
The introduction elaborates that: "The objective of this Guide is to promote, at the global level, the proper and consistent application of the grave risk exception in accordance with the terms and purpose of the 1980 Convention, taking into account interpretative aids such as the Convention’s Explanatory Report, as well as past Conclusions and Recommendations of the Special Commission, and existing Guides to Good Practice on the 1980 Convention. To achieve this objective, the Guide offers information and guidance on the interpretation and application of the grave risk exception, and shares good practices taken from a variety of jurisdictions."
The text of the introduction emphasis that: "Although the Guide focuses on Article 13(1)(b), other provisions of the 1980 Convention and other international instruments are referenced to the extent that they may play a role in the application of this Article. In particular, where it is in force between Contracting Parties, the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (hereinafter, the “1996 Convention”), may benefit children who are subject to international child abduction by supplementing and strengthening the 1980 Convention in various important respects.14 The website of the HCCH (< www.hcch.net >), contains updated information as to whether a State involved in an Article 13(1)(b) case is also Party to the 1996 Convention (under “Protection of Children,” then “Status Table”)."
The Guide's introduction makes clear that: "Although addressing interpretative issues from a general perspective, the Guide is not intended to direct the interpretation of Article 13(1)(b) in individual cases. This remains “an exclusive matter for the authority competent to decide on the return,” having due regard to the particular facts of each individual case. It is well known that 1980 Convention cases are highly fact-specific, and courts, Central Authorities and others are urged to keep this in mind when consulting this Guide."
Entry into force of new REGULATION (EU) 2016/1191 adopted in order to ensure the free circulation of public documents within the Union and, thereby, promote the free movement of Union citizens 20.02.2019
On the 16 of February 2019 entered into force REGULATION (EU) 2016/1191 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 6 July 2016 on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents in the European Union and amending Regulation (EU) No 1024/2012.
This new Regulation got adopted in order to promote the free movement of persons within the European Union. It sets out a system for further simplification of administrative formalities for the circulation of certain public documents and their certified copies where those public documents and the certified copies thereof are issued by a Member State authority for presentation in another Member State. It therefore adopts concrete measures to simplify the existing administrative requirements.
In accordance with its Article 2 (1) this Regulation applies to public documents issued by the authorities of a Member State in accordance with its national law which have to be presented to the authorities of another Member State and the primary purpose of which is to establish one or more of the following facts: (a) birth; (b) a person being alive; (c) death; (d) name; (e) marriage, including capacity to marry and marital status; (f) divorce, legal separation or marriage annulment; (g) registered partnership, including capacity to enter into a registered partnership and registered partnership status; (h) dissolution of a registered partnership, legal separation or annulment of a registered partnership; (i) parenthood; (j) adoption; (k) domicile and/or residence; (l) nationality; (m) absence of a criminal record, provided that public documents concerning this fact are issued for a citizen of the Union by the authorities of that citizen's Member State of nationality.
Additionally, in accordance with Article 2 (2), it also applies to public documents the presentation of which may be required of citizens of the Union residing in a Member State of which they are not nationals when those citizens wish to vote or stand as candidates in elections to the European Parliament or in municipal elections in their Member State of residence, under the conditions laid down in Directive 93/109/EC and Council Directive 94/80/EC respectively.
With regard to the above-mentioned documents the Regulation foresees, i.a., exemptions from legalisation and similar formality, and simplification of other formalities relating to certified copies, as well as simplification of other formalities relating to translations and multilingual standard forms.
Conference - Young Private International Law in Europe: ‘Recognition/Acceptance of Legal Situations’ - Save the date and call for participants - 20.02.2019
Young Private International Law in Europe
Despite common rules, mutual interests, and similar challenges, a pan-European discussion of private international law issues among the ‘junior faculty’ is still missing. We want to change this by creating a network that brings young scholars together and allows a truly European exchange in the context of a particular topic.
With that purpose in mind, a small group of young scholars from various European countries has been engaging in a closer dialogue to address a common issue – namely the ‘recognition/acceptance of legal situations’ as required by the ECJ regarding names and, most recently, marriages. Each group member gathered information regarding their home jurisdiction and drafted a (preliminary) national report. Awareness, legal rules, and methodological approaches differ – sometimes tremendously.
On April 5, 2019, the group will meet in Würzburg (Germany) to present and discuss the preliminary results of the comparative study. During the first session (2.30 – 3.30 pm), which will form an annex to the German Young Private International Law Conference in Würzburg (see here) and is open to the public, an overview will be given and particular methodological issues will be addressed. Afterwards, the group and a limited number of external participants will have the chance to engage in a more in-depth discussion in the context of a workshop (4 – 6 pm). The working language for both sessions is English.
We cordially invite any ‘junior faculty’ member of universities in EU Member States who is interested in the topic and the network itself to join us.
For the public session, please register here (when prompted, select ‘Friday: project presentation “Recognition of Status”). If you are also interested in joining the workshop, we would kindly invite you to write a short e-mail to Susanne Gössl (email@example.com) or Martina Melcher (firstname.lastname@example.org) by March 1, 2019. Both sessions are free of charge, but for the workshop only a limited number of places is available. In exceptional cases, we might be able to reimburse some of the travel costs.
Further information and a detailed programme are available here.
(Source: text of the official invitation)
CJEU: Judgement in Case C–630/17 - Ruling on Art. 4(1) and Art. 25 (preclusion of national law) and interpretation of Art. 17(1) (definition of a “consumer”) and Art. 24 (“rights in rem in immovable property”) of Regulation Brussels Ia 19.02.2019
In Case C‑630/17 - Anica Milivojević v Raiffeisenbank St. Stefan-Jagerberg-Wolfsberg eGen - delivered on 14 February 2019, the Court of Justice rules, in essence, that national law cannot invalidate, by a retroactive, general and automatic rule, credit agreements concluded with foreign lenders which were not authorised to provide credit services in that Member State; Jurisdiction of the national court to determine whether a person taking a loan for a dual purpose is a consumer.
The Court of Justice, answering the questions referred, finds that:
Article 56 TFEU must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, which has the effect, inter alia, that credit agreements and legal acts based on those agreements concluded in that Member State between debtors and creditors established in another Member State who do not hold an authorisation, issued by the competent authorities of the first Member State, to operate in that State, are invalid from the date on which they were concluded, even if they were concluded before the entry into force of that legislation.
Article 4(1) and Article 25 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters preclude legislation of a Member State, such as that at issue in the main proceedings, which, in the context of disputes concerning credit agreements featuring international elements which fall within the scope of that regulation, allows debtors to bring an action against non-authorised lenders either before the courts of the State in which they have their registered office or before the courts of the place where the debtors have their domicile or head office and restricts jurisdiction to hear actions brought by creditors against their debtors only to courts of the State on the territory of which those debtors have their domicile, whether they are consumers or professionals.
Article 17(1) of Regulation No 1215/2012 must be interpreted as meaning that a debtor who has entered into a credit agreement in order to have renovation work carried out in an immovable property which is his domicile with the intention, in particular, of providing tourist accommodation services cannot be regarded as a ‘consumer’ within the meaning of that provision, unless, in the light of the context of the transaction, regarded as a whole, for which the contract has been concluded, that contract has such a tenuous link to that professional activity that it appears clear that the contract is essentially for private purposes, which is a matter for the referring court to ascertain.
The first subparagraph of point 1 of Article 24 of Regulation No 1215/2012 must be interpreted as meaning that an action ‘relating to rights in rem in immovable property’ within the meaning of that provision, constitutes an action for the removal from the land register of the mortgage on a building, but that an action for a declaration of the invalidity of a credit agreement and of the notarised deed relating to the creation of a mortgage taken out as a guarantee for the debt arising out of that agreement does not fall within that concept.
For further details see the press release No 13/19, Luxembourg, 14 January 2019 or read the entire judgement C‑630/17 here.
The case will be added to the corresponding unalex Compendium on Brussels Ia and the unalex Case Collection.
Opinion of the European Economic and Social Committee on the Commission’s proposals for amending the Service and Evidence Regulation 18.02.2019
In the opinion of the European Economic and Social Committee (EESC), published at the Official Journal of the European Union - C 62/56 -, on 15 February 2019, the EESC makes general comments on the Taking of Evidence Regulation and on the proposed Service of Documents Regulation and calls on the Commission to take into account the observations in this document concerning their proposals.
Please find the document here.
CJEU: Judgement in Case C‑231/18 - Interpretation of the term ‘local markets’ in Article 13(1)(p) of Regulation (EC) No 561/2006 13.02.2019
In Case C‑231/18 - NK- delivered on 7 February 2019, the Court of Justice finds that:
The term ‘local markets’ in Article 13(1)(p) of Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85, as amended by Regulation (EU) No 165/2014 of the European Parliament and of the Council of 4 February 2014, must be interpreted as referring neither to the transaction carried out between a livestock wholesaler and a farmer nor to the livestock wholesaler himself, so that the exception provided for in that provision cannot be extended to include vehicles transporting live animals directly from farms to local slaughterhouses.
The Court argues, in essence, that in relation to the wording of Article 13(1)(p) of Regulation No 561/2006: "it should be observed that that provision does not concern the generic term ‘markets’ but the more specific term ‘local markets’. That term leaves no room for doubt that the exception set out in that provision is circumscribed according to the places of departure and destination of transports of live animals, as farms are not the same as ‘local markets’ selling cattle. Similarly, the adjective ‘local’ necessarily implies that the ‘markets’ concerned designate not the actual carrying out of transactions relating to the transportation of live animals, regardless of where those transactions take place, but rather precisely determined locations, distinct from, on one hand, farms or agricultural holdings and, on the other hand, local slaughterhouses, in the geographical area referred to in Article 13(1)(p) of Regulation No 561/2006." The Court adds that: "Consequently (...) it follows (...) that a ‘local market’ cannot be the same as the place of establishment of a farm or agricultural holding, which precludes the possibility of live animals being directly transported by a livestock wholesaler from that farm or agricultural establishment to the local slaughterhouse."
Read the entire judgment C‑231/18 here.
CJEU: Judgement in Case C–535/17- Material scope of application of Article 1(1) Brussels I Regulation in relation to insolvency proceedings 12.02.2019
In Case C–535/17 - NK, liquidator in the bankruptcies of PI Gerechtsdeurwaarderskantoor BV and of PI v BNP Paribas Fortis NV- delivered on 6 February 2019, the Court of Justice answers the question if a claim for damages against a third party brought by the liquidator, pursuant to the task assigned to him in Article 68(1) of the Law on insolvency of administering and liquidating the bankrupt estate, on behalf of all the creditors of the bankrupt, on the grounds that that third party acted wrongfully (consisting in an alleged failure to fulfil its monitoring obligations in relation to a withdrawal of PI which gave rise to the loss suffered by the creditors) towards the creditors, the proceeds of which, if the claim succeeds, accrue to the estate, is covered by the exception in Article 1(2)(b) of [Regulation No 44/2001], as follows:
Article 1(1) and (2)(b) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that an action, such as that at issue in the main proceedings, concerning a claim for damages arising from liability for a wrongful act, brought by the liquidator in insolvency proceedings and the proceeds of which, if the claim succeeds, accrue to the general body of creditors, is covered by the concept of ‘civil and commercial matters’ within the meaning of Article 1(1), and therefore falls within the material scope of that regulation.
The Court argues, in essence, that "according to the case-file submitted (...), the action brought by the liquidator against Fortis is an action for liability for a wrongful act. The purpose of such an action is therefore for Fortis to be found liable on the basis of an alleged failure to fulfil its monitoring obligations, under which it ought to have refused the cash withdrawals made by PI (...), because, according to the liquidator, the withdrawals gave rise to the loss suffered by the creditors." The Court takes on the view that "therefore, having regard to these factors, such an action is based on the ordinary rules of civil and commercial law and not on the derogating rules specific to insolvency proceedings."
The Court stresses that "even if, in the main proceedings, the existence of a link with insolvency proceedings is undeniable, since an action brought by the liquidator in the interests of the creditors is concerned, the fact remains that, as is apparent from the documents before Court, such an action may be brought by the creditors individually, whether before, during or after the conduct of the insolvency proceedings."
Furthermore, the Court makes clear that "an action such as that at issue in the main proceedings, which may be brought by the creditor himself, so that it does not fall under the exclusive competence of the liquidator, and is independent of the opening of insolvency proceedings, cannot be considered a direct and inherent result of those proceedings. It must be held, therefore, that such an action is based not on derogating rules specific to insolvency proceedings but, on the contrary, on the ordinary rules of civil and commercial law, and therefore does not fall outside the scope of Regulation No 44/2001."
Read the entire judgment C‑535/17 here.
The case will be added to the unalex Case Collection and corresponding unalex Compendium.
Fifth meeting of the Experts’ Group on Parentage / Surrogacy in The Hague 10.02.2019
On 29 January to 1 February 2019, the Experts’ Group on Parentage / Surrogacy met for the fifth time in The Hague. A group of 21 Experts from different States, three observers and members of the Permanent Bureau agreed that it would be feasible to develop:
- a general private international law instrument on the recognition of foreign judicial decisions on legal parentage; and
- a separate protocol on the recognition of foreign judicial decisions on legal parentage arising from ISAs (international surrogacy arrangements).
Therefore, the Experts’ Group recommends that these matters should be followed up in order to ensure that proposals for inclusion in future instruments relating to the recognition of judicial decisions are made.
The report of the meeting is accessible here.
CJEU: Judgement in Case C-149/18 – 3 years limitation period for actions seeking damage for compensation no overriding mandatory provision in the context of Art. 16 Rome II and Art. 28 of Directive 2009/103/EC no conflict-of-law rule 04.02.2019
In Case C-149/18 - Agostinho da Silva Martins v Dekra Claims Services Portugal SA - delivered on 31 January 2019, the Court of Justice answers the questions, firstly, whether the national legislation in force in Portugal prevails as an overriding, mandatory rule within the meaning of Article 16 of the Rome II Regulation, secondly, whether that rule constitutes a provision of Community law laying down a conflict-of-law rule within the meaning of Article 27 of the Rome II Regulation and, thirdly, whether in the light of Article 28 of Directive 2009/103, it must be concluded that the limitation period set out in Article 498(3) of the Portuguese Civil Code is applicable where a Portuguese citizen is the victim of a road traffic accident in Spain, as follows:
Article 16 of Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) must be interpreted as meaning that a national provision, such as that at issue in the main proceedings, which provides that the limitation period for actions seeking compensation for damage resulting from an accident is three years, cannot be considered to be an overriding mandatory provision, within the meaning of that article, unless the court hearing the case finds, on the basis of a detailed analysis of the wording, general scheme, objectives and the context in which that provision was adopted, that it is of such importance in the national legal order that it justifies a departure from the law applicable, designated pursuant to Article 4 of that regulation.
Article 27 of Regulation No 864/2007 must be interpreted as meaning that Article 28 of Directive 2009/103/EC of the European Parliament and of the Council of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability, as transposed into national law, does not constitute a provision of EU law which lays down a conflict-of-law rule relating to non-contractual obligations, within the meaning of Article 27 of that regulation.
The Court argues, in essence, that in the context of the Rome Convention, a plea relating to the existence of a ‘mandatory rule’ within the meaning of the legislation of the Member State concerned must be interpreted strictly and that it is settled case-law of the Court, that it is, in that context, for the national court, in the course of its assessment of whether the national law which it proposes to substitute for that expressly chosen by the parties to the contract is a ‘mandatory rule’, to take account not only of the exact terms of that law, but also of its general structure and of all the circumstances in which that law was adopted in order to determine whether it is mandatory in nature in so far as it appears that the legislature adopted it in order to protect an interest judged to be essential by the Member State concerned.
The Court emphasis that by analogy, it must be held that, with regard to the possible identification of an ‘overriding mandatory provision’, within the meaning of Article 16 of the Rome II Regulation, the referring court must find, on the basis of a detailed analysis of the wording, general scheme, objectives and the context in which that provision was adopted, that it is of such importance in the national legal order that it justifies a departure from the applicable law, designated pursuant to Article 4 of that regulation. The Court stresses that although it is not for the Court of Justice to assess the provisions in question, it must be pointed out that, in spite of the variety of national rules of prescription and limitation, Article 15(h) of the Rome II Regulation expressly makes such rules subject to the general rule on determining the law applicable, and that no other provision of EU law establishes specific requirements with regard to the limitation period for actions such as that at issue in the main proceedings. Therefore, in those circumstances the application to an action seeking compensation for damage resulting from an accident of a limitation period other than that laid down in the law designated as applicable would require the identification of particularly important reasons, such as a manifest infringement of the right to an effective remedy and to effective judicial protection arising from the application of the law designated as applicable pursuant to Article 4 of the Rome II Regulation.
In relation to the second and third question referred the Court sees it appropriate to examine these two together to clarify whether Article 27 of the Rome II Regulation must be interpreted as meaning that Article 28 of Directive 2009/103, as transposed into national law, constitutes a provision of EU law which lays down a conflict-of-law rule relating to non-contractual obligations, within the meaning of Article 27 of that regulation. In its finding the Court makes clear that under Article 27, the Rome II Regulation is not to prejudice the application of provisions of EU law which, in relation to particular matters, lay down conflict-of-law rules relating to non-contractual obligations and in that connection, it must be observed that there is nothing in the wording or the objectives of Directive 2009/103 to suggest that it is intended to lay down conflict-of-law rules. The Court argues that the directive is in fact limited to requiring Member States to adopt measures guaranteeing that the victim of a road traffic accident and the owner of the vehicle involved in that accident are protected. In accordance with its objective of protecting the victims of accidents caused by motor vehicles, Article 28 of Directive 2009/103 in fact allows the adoption of rules that are more favourable for those victims than those required under the directive, that provision concerns solely the transposition legislation of a Member State and does not concern the question of whether, in a specific case, those more favourable rules are to be applied rather than the rules of other Member States. Therefore, the Court finds that in such a case, the national transposition legislation is assessed only once the law applicable has initially been determined in accordance with the provisions of the Rome II Regulation.
Find the case in the unalex Case Collection under unalex EU-783
The case will be added to the corresponding unalex Compendium on Rome II.
Opinion of the AG Kokott in C-25/18 – Interpretation of Article 7(1)(a) Brussels Ia Regulation and exclusive jurisdiction under Article 24 Brussels Ia 04.02.2019
In the Case C-25/18 - Brian Andrew Kerr v Pavlo Postnov, Natalia Postnova - Advocate General Kokott delivered his opinion in relation to the legal situation described as:
“Which national court has international jurisdiction under the Brussels Ia Regulation where an association of property owners has brought an action seeking to enforce payment of contributions for the maintenance of a property, but the defaulting property owners are domiciled in another Member State? This question arises in the present case in connection with a payment obligation arising from resolutions made by an association of property owners which does not have legal personality under national law.”
“The referring court is uncertain in this context whether, rather than the general jurisdiction of the domicile of the defendant, the special jurisdiction of the place of performance of the obligation in question can be applied in so far as the claims for payment in question constitute ‘matters relating to a contract’ within the meaning of Article 7(1)(a) of the Brussels Ia Regulation. The referring court would also like to know whether the Rome I Regulation is applicable to resolutions made by an association of property owners like that in the present proceedings and by which conflict-of-law rules claims arising from such resolutions are to be assessed substantively.”
In his opinion Advocate General Kokott indicates that: Notwithstanding exclusive jurisdiction under the first alternative in the first subparagraph of Article 24(1) in conjunction with the first alternative in the first sentence of Article 8(4) of Regulation (EU) No 1215/2012 (Brussels Ia), proceedings concerning claims arising from decisions which are taken by the majority of the members of an association of property owners without legal personality, but which bind all members, including those who did not cast a vote, are to be regarded as matters relating to a contract within the meaning of Article 7(1)(a) of Regulation (EU) No 1215/2012 (Brussels Ia).
And that: Article 7(1) of Regulation (EU) No 1215/2012 (Brussels Ia) is to be interpreted as meaning that
– the performance of a management task by the organs of an association of owners, within which decisions regarding expenditure for building maintenance are taken, is not to be classified as ‘services’ within the meaning of the second indent of point (b);
–the place of performance of a payment obligation arising from such decisions is to be determined on the basis of the law applicable to the legal relationship in question under the conflict-of-law rules of the forum State in accordance with point (a).
For further details see the full text of the Opinion of AG Kokott in C-25/18 delivered on 31 January 2019.
Now out! Call for proposals for action grants - JUST-JTRA-EJTR-AG-2019 01.02.2019
Call for proposals for action grants to support transnational projects on judicial training covering civil law, criminal law or fundamental rights.
Opening date: 31 January 2019. Deadline: 27 June 2019.
Tight project budget? Don't start from scratch! Use the possibilities of the unalex database technology.
If you are taking part in the current call JUST-JTRA-EJTR-AG-2019 (details here) of the EU Commission’s civil justice programme please be informed that Justice projects can use the tools and database of the multilingual legal information platform unalex – www.unalex.eu –. The platform's fully developed technical content management infrastructure provides the ground for all kinds of European legal projects. Special project sites can be created in the unalex project library (examples here) with project specific content, including the publication of reports/materials and project results with links to the collected sources that help projects to achieve long-term sustainability. unalex projects can be based on service agreement or on partnership.
For details contact us at: email@example.com.
CJEU: Judgement in Case C-97/18 – the enforcement of a confiscation order adopted in an issuing State allows, if necessary, an imposition of imprisonment provided for in the executing State 01.02.2019
In Case C-97/18 - ET - delivered on 10 January 2019, the Court of Justice finds that:
Article 12(1) and (4) of Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders must be interpreted as not precluding the application of the legislation of an executing State, such as that at issue in the main proceedings, which, for the purpose of enforcing a confiscation order adopted in an issuing State, authorises, where necessary, a term of imprisonment to be imposed.
Furthermore, the Court rules that:
The fact that the legislation of the issuing State also authorises possible recourse to a term of imprisonment has no bearing on the application of such a measure in the executing State.
Read the entire judgment C-97/18 here.
EULF - New issue 5/6-2018 published 31.01.2019
The European Legal Forum - CONTENTS Issue 5/6-2018
Private International Law and International Civil Procedure
Achim Puetz, Rules on Jurisdiction and Recognition or Enforcement of Judgments in
Specialised Conventions on Transport in the Aftermath of TNT: Dynamite or Light in the
International Civil Procedure
CJEU 24 October 2018 – C-595/17 – Apple Sales International and Others –
unalex EU-775 – Brussels I Regulation 44/2001 Article 23
CJEU 4 October 2018 – C-337/17 – Feniks – unalex EU-773 – Brussels Ia Regulation
CJEU 4 October 2018 – C-379/17 – Società Immobiliare Al Bosco Srl – unalex EU-769 –
Brussels I Regulation 44/2001 Article 38(1)
CJEU 12 September 2018 – C-304/17 – Löber – unalex EU-767 –Brussels I Regulation
CJEU 6 September 2018 – C-21/17 – Catlin Europe – unalex EU-765 –
European Order for Payment Regulation 1896/2006; Service Regulation 1393/2007
Corte di Cassazione (IT) 26 November 2018 – n. 30527 – unalex IT-948 –
Brussels Ia Regulation
OGH (AT) 27 June 2018 – 3Ob30/18k – unalex AT-1174 – Brussels I Regulation
BGH (DE) 22 February 2018 – IX ZR 83/17 – unalex DE-3566 – Brussels Ia Regulation
Family Law and Successions
CJEU 17 October 2018 – C-393/18PPU – UD – unalex EU-774 – Brussels IIa Regulation
CJEU 4 October 2018 – C-478/17 – IQ – unalex EU-771 – Brussels IIa Regulation
CJEU 20 September 2018 – C-214/17 – Mölk – unalex EU-770 – Hague Maintenance Prot.
CJEU 19 September 2018 – C-325/18 PPU and C-375/18 PPU – C.E. and N.E. –
unalex EU-768 – Brussels IIa Regulation
Private International Law
OGH (AT) 16 May 2018 – 2 Ob 71/18g – unalex AT-1169 – Rome I Regulation
International and European Intellectual Property Law
CJEU 27 September 2018 – C-24/16 and C-25/16 – Nintendo – unalex EU-764 –
Regulation 6/2002; Brussels I Regulation 44/2001; Rome II Regulation
European Criminal Law
CJEU 19 September 2018 – C-327/18 PPU – RO – unalex EU-772 – TEU Article 50
Francesca Maoli, Giovanni Sciaccaluga, Tine Van Hof, Sara Lembrechts, Laura Carpaneto,
Thalia Kruger, Wouter Vandenhole, Giving a VOICE to the child’s best interests.
An analysis of case law in the field of international child abduction.
Table of Abbreviations II
Conference Calendar III
The European Legal Forum is directed at an international readership and provides researchers and legal practitioners with in-depth information on current developments in case law and legislation. The journal is linked to the unalex system.
Request a free trial copy here.
Find all cases in the unalex Case Collection and in the corresponding Compendia. (Please note: If you are not a registered user you can access 2 judgments per day for free.)
Achim Puetz - Rules on Jurisdiction and Recognition or Enforcement of Judgments in Specialised Conventions on Transport in the Aftermath of TNT: Dynamite or Light in the Dark? 30.01.2019
In the essay, Rules on Jurisdiction and Recognition or Enforcement of Judgments in Specialised Conventions on Transport in the Aftermath of TNT: Dynamite or Light in the Dark? Achim Puetz* addresses the scope of application of Article 71 Brussels Ia Regulation.
Starting with the wording of Article 71(1) of Regulation No. 1215/2012, of 12 December, on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Brussels Ia or Recast Regulation), according to which the Regulation “shall not affect any conventions to which the Member States are parties and which, in relation to particular matters, govern jurisdiction or the recognition or enforcement of judgments” and emphasising that the rule has not yet been the subject of a preliminary ruling by the CJEU, Puetz analyses three decisions (CJEU 4.5.2010, C-533/08, TNT Express Nederland BV ./. AXA Versicherung AG, unalex EU-222; CJEU 19.12.2013, C-452/12, Nipponkoa Insurance Co. (Europe) Ltd ./. Inter-Zuid Transport BV, unalex EU-570; CJEU 4.9.2014, C-157/13, Nickel & Goeldner Spedition GmbH ./. ‘Kintra’ UAB, unalex EU-604) which were adopted in relation to the predecessor Article 71 of the Brussels I Regulation and deal with the 1956 Geneva Convention on the Contract for the International Carriage of Goods by Road (CMR), a treaty that came into force long before the Brussels I Regulation did. To define the scope of application of Article 71 Brussels Ia Regulation, Puetz than contrasts this decisions with a more recent judgement adopted by the CJEU (CJEU 13.7.2016, C-230/15, Brite Strike Technologies Inc. ./. Brite Strike Technologies SA, unalex EU-669) which examines the validity of a provision on jurisdiction contained in a convention enacted after the entry into force of the Brussels I Regulation, the Benelux Convention on Intellectual Property of 25 February 2005. A situation that following Puetz precisely cannot be regarded as covered by Article 71 of the Brussels Ia Regulation.
The essay is part of a study that has been conducted within the framework of the research project “Transport as a Motor of Socio-Economic Development: Protection of the Weak Contracting Party and Progress as regards Transport Sector Liberalization”, (DER2015-65424-C4-3-P), financed by the Ministry of Economy and Competitiveness (Ministerio de Economía y Competitividad), cofinanced by the European Regional Development Fund (MINECO/FEDER) (main researcher: M.V. Petit Lavall).
The essay is published in the recent edition of our legal journal EuLF 5/6-2018 request a free trial copy here.
* Tenured professor of commercial law, Institute for Transport Law, Jaume I-University, Castellon (ES).
Now out! Call for proposals for action grants -Just-AG-2019 28.01.2019
Call for proposals for action grants to support national and transnational projects to promote judicial cooperation in civil and criminal matters.
Opening date: 15 January 2019. Deadline: 16 April 2019.
Tight project budget? Don't start from scratch! Use the possibilities of the unalex database technology.
If you are taking part in the current call Just-AG-2019 (details here) of the EU Commission’s civil justice programme please be informed that Justice projects involving the collection of case law of Member State courts in the area of judicial cooperation in civil and criminal matters can use the multilingual legal information platform unalex – www.unalex.eu – for the management of collected international case law and corresponding EU legislation/international Conventions. The platform's fully developed technical content management infrastructure and database provides the ground for all kinds of European legal projects. Projects can use and add to the unalex case collection with presently over 10,000 cases. Special project sites can be created in the unalex project library (examples here) with project specific content, including the publication of reports and project results with links to the collected sources that help projects to achieve long-term sustainability. unalex projects can be based on service agreement or on partnership.
For details contact us at: firstname.lastname@example.org.
CJEU: Judgement in Case C-386/17 - Non-observance of the rules of lis pendens in matrimonial proceedings does not justify the denial of recognition of a judgment 18.01.2019
In Case C-386/17 - Liberato - adopted on 16 January 2019, the Court of Justice answers the question, whether an infringement, of the provisions relating to lis pendens in EU law, laid down in Article 19 of Regulation No 2201/2003 and Article 27 of Regulation No 44/2001 by the courts which issued the decision which is the subject of the request for recognition, may be regarded as being a ground for withholding recognition of that judgment by reason of the fact that it is contrary to public policy as follows:
The rules of lis pendens in Article 27 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters and Article 19 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 must be interpreted as meaning that where, in a dispute in matrimonial matters, parental responsibility or maintenance obligations, the court second seised, in breach of those rules, delivers a judgment which becomes final, those articles preclude the courts of the Member State in which the court first seised is situated from refusing to recognise that judgment solely for that reason. In particular, that breach cannot, in itself, justify non-recognition of a judgment on the ground that it is manifestly contrary to public policy in that Member State.
For details read the entire judgment under unalex EU-781.
The case will be added to the corresponding unalex Compendia.
CJEU: Judgement in Case C-102/18 - the use of Form IV in Annex 4 to Implementing Regulation No 1329/2014 in the context of a European Certificate of Succession is optional 18.01.2019
In Case C‑102/18 - Brisch - delivered on 17 January 2019, the Court of Justice finds that:
Article 65(2) of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession and Article 1(4) of Commission Implementing Regulation (EU) No 1329/2014 of 9 December 2014 establishing the Forms referred to in Regulation No 650/2012 must be interpreted as meaning that, for the purposes of an application for a European Certificate of Succession, within the meaning of Article 65(2) of Regulation No 650/2012, the use of Form IV in Annex 4 to Implementing Regulation No 1329/2014 is optional.
The Court argues, in essence, that Article 1(4) of Implementing Regulation No 1329/2014 must be read in conjunction with Annex 4 to that regulation, to which it refers and which includes Form IV. In the section ‘Notice to the applicant’, which heads Form IV, it is clearly specified that Form IV is optional. Thus, the wording ‘form to be used’ in Article 1(4) of Implementing Regulation No 1329/2014 does not determine whether the use of Form IV is mandatory or optional, but merely states that, if an applicant wished to lodge his application for a certificate by means of a form, the appropriate form to be used would be Form IV. Furthermore, the Court makes clear, although, according to Article 38 of the Proposal for a Regulation of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession (COM(2009) 154 final), which led to the adoption of Regulation No 650/2012 and corresponds to Article 65 of that regulation, it was provided that the application for a certificate was required to be lodged via the form a model of which was provided in Annex I to that proposal. The change to the wording of Article 38 of the proposal to that in Article 65(2) of the regulation implies that, despite the intention of the Commission at an early stage in the legislative process to require the mandatory use of a form, that initial intention was not endorsed by the EU legislature. Accordingly, the legislative process in adopting Regulation No 650/2012 also confirms that it follows from the wording of Article 65(2) of that regulation that the use of Form IV, for the purposes of applying for a certificate, is optional. The Court finally states that, therefore, it is clear from a literal interpretation of Article 65(2) of Regulation No 650/2012, read in conjunction with Annex 4 to Implementing Regulation No 1329/2014, that, for the purposes of an application for a certificate, the use of Form IV is optional.
For details read the entire judgment C-102/18 here.
The case will be added to the corresponding unalex Compendium and Case Collection.
New Directive (EU) 2019/1 to empower the competition authorities of the Member States 15.01.2019
Published in the Official Journal of the European Union, L 11/3, on 14 January 2019: Directive (EU) 2019/1 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market.
This new Directive, aims to ensure that competition in the internal market is not distorted. In its recitals it states that effective enforcement of Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) - which are a matter of public policy and should be applied effectively throughout the Union - is necessary to ensure fairer and more open competitive markets in the Union, in which undertakings compete more on their merits and without company- erected barriers to market entry, enabling them to generate wealth and create jobs.
Therefore, this Directive when defining the subject matter, according to its Article 1, sets out certain rules to ensure that national competition authorities have the necessary guarantees of independence, resources, and enforcement and fining powers to be able to effectively apply Articles 101 and 102 TFEU so that competition in the internal market is not distorted and that consumers and undertakings are not put at a disadvantage by national laws and measures which prevent national competition authorities from being effective enforcers. Additionally it sets out certain rules on mutual assistance to safeguard the smooth functioning of the internal market and the smooth functioning of the system of close cooperation within
the European Competition Network.
The Directive enters into force on 3 February 2019.
The full text of the Directive (EU) 2019/1 can be find here.
Opinion of the AG Szpunar in C-507/17 - Limitation of the scope of the de-referencing that search engine operators are required to carry out to the EU 11.01.2019
In the Case C-507/17, Google v CNIL, Google refused to comply with a formal notice, served by the President of the French Commission nationale de l’informatique et des libertés (National Commission for Information Technology and Civil Liberties; ‘the CNIL’), containing that when acceding to a request from a natural person for the removal of links to web pages from the list of results displayed following a search performed on the basis of that person’s name, Google must apply that removal to all of its search engine’s domain name extensions. But, instead of following the scope of the notice Google merely removed the links in question from only the results displayed following a search performed on the domain names corresponding to the versions of its search engine in the Member States of the EU.
In his opinion Advocate General Szpunar indicates that the provisions of EU law applicable to the present case (Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p.31) do not expressly govern the issue of the territorial scope of de-referencing. He therefore takes the view that a distinction must be made depending on the location from which the search is performed. Thus, search requests made outside the EU should not be affected by the de-referencing of the search results. He is therefore not in favour of giving the provisions of EU law such a broad interpretation that they would have effects beyond the borders of the 28 Member States.
Therefore, he proposes that the Court should hold that the search engine operator is not required, when acceding to a request for de-referencing, to carry out that de-referencing on all the domain names of its search engine in such a way that the links in question no longer appear, irrespective of the location from which the search on the basis of the requesting party’s name is performed.
However, the AG underlines that, once a right to de-referencing within the EU has been established, the search engine operator must take every measure available to it to ensure full and effective de-referencing within the EU, including by use of the ‘geo-blocking’ technique, in respect of an IP address deemed to be located in one of the Member States, irrespective of the domain name used by the internet user who performs the search.
For further details see the press release No 2/19, Luxembourg, 10 January 2019.
UK accedes to the Hague Conventions on choice of court agreements and on maintenance 03.01.2019
The 2005 Hague Convention on choice of court agreements and the 2007 Hague Maintenance Convention will come into force in the United Kingdom on 1 April 2019 in the event that there is a "no deal" Brexit. Because the UK wishes to ensure continuity of application of both Conventions it has submitted the Instruments of Accession in preparation for this situation. The Instruments of Accession
declare that the UK accedes to the Conventions in its own right. In the event that the Withdrawal Agreement is signed, ratified and approved by the UK and the European Union and enters into force on 30 March 2019, with the effect that the UK will still be treated as a Member State of the European Union during the agreed transition period, the
UK will withdraw the Instruments of Accession which it has deposited.
Detailed information can be find here (Choice of court agreements) and here (Maintenance Convention).
Brexit: “no-deal” Contingency Action Plan of the European Commission 19.12.2018
The United Kingdom will leave the European Union in 100 days' time. Because of the still unsettled situation of the withdrawal the European Commission implements a “no-deal” Contingency Action Plan in specific sectors, such as: Financial services, Transport, Customs and the export of goods and EU climate policy. The package includes 14 measures in this limited number of areas where a "no-deal" scenario would create major disruption for citizens and businesses in the EU27. The Commission calls on the European Parliament and the Council to ensure the adoption of the proposed legislative acts so that they are in force by 29 March 2019.
Information in detail here.
Council conclusions on mutual recognition in criminal matters 15.12.2018
On 13 December 2018, Council conclusions on mutual recognition in criminal matters got published in the Official Journal of the European Union - C 449/6. Starting to recall that in accordance with Article 82(1) TFEU, judicial cooperation in criminal matters in the Union is based on the principle of mutual recognition of judgments and judicial decisions, these newly adopted conclusions have several addressees (the Member States, the Commission, the European Judicial Network, Eurojust, the Council and Presidency) which are addressed with the aim to promote mutual recognition by enhancing mutual trust.
Read the entire document here.
New EU Regulation 2018/1935 establishes forms in matters of matrimonial property regimes in relation to Council Regulation (EU) 2016/1103 14.12.2018
The European Commission, in accordance with the opinion of the Committee concerning applicable law, jurisdiction and enforcement in matters of matrimonial property regimes and in accordance with Council Decision (EU) 2016/954 as well as for the purpose of proper application of Regulation (EU) 2016/1103, adopted on 7 December 2018, Commission Implementing Regulation (EU) 2018/1935 establishing the forms referred to in Council Regulation (EU) 2016/1103 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes (OJEU, L 314/14 – 11.12.2018).
The Regulation enters into force on 29 January 2019.
Please find the new Implementing Regulation (EU) 2018/1935 here.
EC -HCCH Joint Conference on the Cross-border Protection of Vulnerable Adults 14.12.2018
At a conference organised jointly by the European Commission and the Hague Conference on Private International Law (HCCH), experts from all over the world, met from 5 to 7 December 2018 in Brussels, Belgium, to discuss the cross-border protection of vulnerable adults.
The reached conclusions and recommendations can be find
CJEU: Judgement in Case C-621/18 – Free unilateral revocation from intention to withdraw reflects a sovereign decision to retain its status as a Member State of the European Union 10.12.2018
According to the judgment in case C-621/18, Wightman and Others v Secretary of State for Exiting the European Union, of 10 December 2018, the United Kingdom is free to revoke unilaterally the notification of its intention to withdraw from the EU. Such a revocation, decided in accordance with its own national constitutional requirements, would have the effect that the United Kingdom remains in the EU under terms that are unchanged as regards its status as a Member State.
The Court rules that Article 50 TEU does not explicitly address the subject of revocation. It neither expressly prohibits nor expressly authorises revocation. The Court notes that in the absence of an express provision governing revocation of the notification of the intention to withdraw, that revocation is subject to the rules laid down in Article 50(1) TEU for the withdrawal itself, with the result that it may be decided unilaterally, in accordance with the constitutional requirements of the Member State concerned.
The revocation by a Member State of the notification of its intention to withdraw reflects a sovereign decision to retain its status as a Member State of the European Union, a status which is neither suspended nor altered by that notification.
The Court therefore rules that Article 50 TEU must be interpreted as meaning that, where a Member State has notified the European Council, in accordance with that article, of its intention to withdraw from the European Union, that article allows that Member State — for as long as a withdrawal agreement concluded between that Member State and the European Union has not entered into force or, if no such agreement has been concluded, for as long as the two-year period laid down in Article 50(3) TEU, possibly extended in accordance with that paragraph, has not expired — to revoke that notification unilaterally, in an unequivocal and unconditional manner, by a notice addressed to the European Council in writing, after the Member State concerned has taken the revocation decision in accordance with its constitutional requirements.
For details see the press release No 191/18, Luxembourg, 10 December 2018 and the judgment C-621/18.
Council opinion on proposed recast of the Brussels IIa Regulation 09.12.2018
The proposal on the recast of Brussels IIa Regulation was presented by the Commission on 30 June 2016 and is subject to the special legislative procedure which requires unanimity in the Council after consultation of the European Parliament which delivered its opinion already on 18 January 2018. In a document, published on 30 November 2018, the Council takes position on the revision Brussels IIa regulation and agrees on more effective rules to solve cross border parental responsibility issues.
Detailed information here.
Opinion of the AG Campos Sánchez-Bordona in C-621/18 - Article 50 TEU allows the unilateral revocation from intention to withdraw from the EU 04.12.2018
According to the opinion of the AG Campos Sánchez-Bordona, delivered on 4 December 2018, in case C-621/18, the Court of Justice should declare that Article 50 TEU allows the unilateral revocation of the notification of the intention to withdraw from the EU, until such time as the withdrawal agreement is formally concluded, provided that the revocation has been decided upon in accordance with the Member State’s constitutional requirements, is formally notified to the European Council and does not involve an abusive practice.
The AG interprets Article 50 TEU, having recourse, with regard to what is not expressly provided for in that article, to the relevant provisions of the Vienna Convention on the Law of Treaties on which Article 50 TEU is based. Pursuant to Article 68 of that convention (read here), notifications of withdrawal from an international treaty may be revoked at any time before they take effect. The AG emphasises that withdrawal from an international treaty, which is the reverse of a treaty making power, is by definition a unilateral act of a State party and a manifestation of its sovereignty. Unilateral revocation would also be a manifestation of the sovereignty of the departing Member State, which chooses to reverse its initial decision.
In his systematic analysis of Article 50 TEU the Advocate General elaborates 4 reasons in favour of his opinion:
Firstly, the conclusion of an agreement is not a prerequisite for the withdrawal to be completed;
Secondly, Article 50(2) TEU states that a Member State which decides to withdraw is to notify the European
Council of ‘its intention’ and not of its decision to withdraw, and such an intention may change;
Thirdly, the unilateral nature of the first phase of the procedure under Article 50 TEU, in which the Member State decides to withdraw from the EU in accordance with its own constitutional requirements, is projected onto the subsequent phase (of negotiating the terms of its withdrawal with the EU institutions), in such a way that if the withdrawal decision is revoked in accordance with the departing Member State’s constitutional procedures, its constitutional foundation will disappear; and
Fourthly, the rejection of revocation would in practice entail the forced exit from the EU of a State which, according to the Court of Justice’s recent case law, continues to be an EU Member State in all respects.
For details see the press release No 187/18, Luxembourg, 4 December 2018 and the Opinion of AG Campos Sánchez-Bordona.
Child Abduction Convention enters into force for Cuba 04.12.2018
On 1 December 2018, the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (Child Abduction Convention) entered into force for Cuba.
Further information can be found here.
G20 Leaders' commitment to improve functioning of WTO 03.12.2018
In the G20 Leaders’ declaration Building consensus for fair and sustainable development the G20 Leaders agreed in paragraph 27 to support necessary reforms of the WTO:
"International trade and investment are important engines of growth, productivity, innovation, job creation and development. We recognize the contribution that the multilateral trading system has made to that end. The system is currently falling short of its objectives and there is room for improvement. We therefore support the necessary reform of the WTO to improve its functioning. We will review progress at our next Summit."
Read the entire declaration here.
Brazil accedes to the Hague Service Convention 03.12.2018
From 1 June 2019 the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention) will apply to Brazil.
Further information regarding the accession on 29 November 2018 can be found here.
Proposal to save the WTO Appellate Body - Communication, dated 23 November 2018 28.11.2018
The European Union, together with other WTO members (China, Canada, India, Norway, New Zeland, Switzerland, Australia, Republic of Korea, Iceland, Singapore and Mexico), expressing their deep concern over the fact that the enduring absence of consensus in the Dispute Settlement Body ("DSB") to fill the vacancies on the Appellate Body risks undermining the viability of the WTO dispute settlement System, made a proposal to the General Council which concerns the procedural reforms that could improve the operation of the Appellate Body. (Access the official documents WT/GC/W/752 and WT/GC/W/753, 26 November 2018,
The proposed amendments which shall enable the litigation component to continue to playing its role in reducing trade tensions deal with:
Transitional rules for outgoing Appellate Body members - to provide that an outgoing Appellate Body member shall complete the disposition of a pending appeal;
Timelines for appellate proceedings - to overcome the absence of consultation of the parties when the 90-day timeframe is exceeded;
The meaning of municipal law as an issue of fact - to exclude the legal interpretation of municipal law;
Findings unnecessary for the resolution of the Dispute - to address only those issues necessary to resolve the Dispute and;
The issue of precedent - to mitigate the Appellate Body's approach to treat its own reports effectively as precedent that panels are to follow absent "cogent reasons".
Additionally, the EU, China and India propose additional amendments which aim at strengthening the independence and impartiality of the Appellate Body, improving efficiency so as to enable it to meet the required timeframes, and ensuring an orderly transition as well as an orderly launch of selection procedures.
Therefore, these additional amendments include:
One single but longer (6-8 years) term for Appellate Body members;
To increase the number of Appellate Body members from 7 to 9 and to ensure that the membership of the Appellate Body is the exclusive occupation of its members;
Transitional rules for outgoing Appellate Body members; and
An automatically launched, time-bound selection process regarding new members.
Tribunal Supremo (ES) 09 July 2018 – STS 2644/2018 (unalex ES-1104) 27.11.2018
Vienna Convention on Diplomatic Relations 1961, Articles 1, 3 and 25 – Head of the mission – Duty of acting – Scope of capacity – Representing and Protecting –
Full facilities for the performance
Even though neither Article 3 Vienna Convention on Diplomatic Relations 1961, nor any other Article of the Convention, explicitly expresses that an ambassador may decide to bring
a legal action against an agreement of the Government of the receiving State, the concept ‘representing’ used in Article 3(1)(a) allows to understand that an ambassador, in his capacity
as representative of his State in the receiving State, is entitled to bring a judicial action. This argumentation is reinforced by the notion ‘protecting’ used in Article 3 (1)(b) and
the concept provided in Article 25 that the receiving State shall accord full facilities for the performance of the functions of the mission. (Editor’s headnote)
For more on that: The European Legal Forum (EuLF) Issue 4 - 2018. Request a free trial copy here.
Find the case in the unalex Case Collection under unalex ES-1104.
EULF - New issue 4-2018 published 26.11.2018
The European Legal Forum - CONTENTS Issue 4-2018
Private International Law and International Civil Procedure
Athanasios T. Kastanidis, Procedural issues of international arbitration under the Brussels Ibis
Regulation and the New York Arbitration Convention of 1958 from a Greek perspective 89
International Civil Procedure
CJEU 11 July 2018 – C-88/17 – Zurich Insurance and Metso Minerals – unalex EU-764 –
Brussels I Regulation 44/2001 Article 5(1)(b) 94
CJEU 5 July 2018 – C-27/17 – flyLAL-Lithuanian Airlines – unalex EU-763 –
Brussels I Regulation 44/2001 Article 5(3) and (5) 95
CJEU 31 May 2018 – C-306/17 – Nothartová – unalex EU-754 – Brussels Ia Regulation 1215/2012 Article 8(3) 99
Audiencia Provincial San Sebastián (ES) 9 March 2018 – AAP SS 105/2018 –
unalex ES-1106 – Regulation 1896/2006 Article 22 100
Family Law and Successions
CJEU 28 June 2018 – C-512/17 – HR – unalex EU-761 –
Brussels IIa Regulation 2201/2003 Article 8(1) 101
Private International Law
OGH (AT) 28 March 2018 – 6Ob5/17d – unalex AT-1158 –
Rome Convention 1980 Article 1; Rome I Regulation Article 1 105
International and European Labour Law
CJEU 11 September 2018 – C-68/17 – IR v. JQ – unalex EU-766 –
Directive 2000/78/EC Article 4(2) ; Charter of Fundamental Rights of the EU Article 21 107
Law of the European Organisations
Tribunal Supremo (ES) 9 July 2018 – STS 2644/2018 – unalex ES-1104 –
Vienna Convention on Diplomatic Relations Articles 1, 3 and 25 110
Recommendations of the CJEU to national courts and tribunals in relation to the
initiation of preliminary ruling proceedings 112
Table of Abbreviations II
Conference Calendar III
The European Legal Forum is directed at an international readership and provides researchers and legal practitioners with in-depth information on current developments in case law and legislation. The journal is linked to the unalex system.
Request a free trial copy here.
Find all cases in the unalex Case Collection and in the corresponding Compendia.
CJEU: Judgement in Case C-627/17 – The concept of "parties" in the European Small Claims Procedure 23.11.2018
According to the judgment in case C-627/17,
ZSE Energia v RG, of 22 November 2018,
Article 3(1) of Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure, as amended by Council Regulation (EU) No 517/2013 of 13 May 2013, must be interpreted as meaning that the concept of ‘parties’ covers solely the applicant and the defendant in the main proceedings.
Additionally the Court finds that
Article 2(1) and Article 3(1) of Regulation No 861/2007, as amended by Regulation No 517/2013, must be interpreted as meaning that a dispute such as that in the main proceedings, in which the applicant and the defendant have their domicile or their habitual residence in the same Member State as the court or tribunal seised, does not come within the scope of that regulation.
In Case C-627/17, ZSE Energia (established in Bratislava, Slovak Republic) seised the referring court with a request concerning a claim amounting to EUR 423,74. In its application
ZSE Energia used Form A in Annex I to Regulation No 861/2007, indicating himself as Claimant 1. On that form, ZSE Energia CZ (established in the Czech Republic), was indicated as Claimant 2. In response to a question put by the seised Court, regarding the relation of these two claimants, ZSE Energia CZ indicated that it is taking part in the pending proceedings as an intervener. Thereupon
ZSE Energia submitted a corrected Form A that mentioned
ZSE Energia alone as ‘claimant’ while ZSE Energia CZ was listed only as ‘intervener’. The referring court was unsure wether the question before it constituted a cross-border case coming within the scope of Regulation No 861/2007.
The Court answering the first question referred, whether Article 3(1) of Regulation No 861/2007 must be interpreted as meaning that the concept of ‘parties’ covers solely the applicant and defendant in the main proceedings or whether it also includes an ‘intervener’ participating in the proceedings in support of one of those parties, notes that
Article 3(1) of Regulation No 861/2007 does not define the concept of ‘parties’, nor does it refer to the law of the Member States on that issue. Therefore, the concept of ‘parties’ must be given an autonomous and uniform interpretation within the legal order of the European Union. The Court argues that it cannot be inferred with certitude, solely from the wording of Article 3(1) of Regulation No 861/2007, that the concept of ‘parties’ does not also include the concept of ‘intervener’, but regarding the general scheme of Regulation No 861/2007 it must be noted, that that regulation provides solely for the rights and obligations of the applicant and defendant in the main proceedings. It follows that Forms A and C in Annexes I and III to that regulation must be filled in respectively by the applicant, that is, the ‘claimant’, as regards Form A, and by the defendant, that is, the ‘respondent’, as regards Form C. By contrast,
aside from the forms that Regulation No 861/2007 reserves for the court having jurisdiction, no other section is provided for other persons who may be involved in the dispute in the main proceedings. It therefore follows from the general scheme of Regulation No 861/2007 that the participation of parties intervening in the disputes covered by that regulation was not envisaged.
The Court answering the second question referred, whether Article 2(1) and Article 3(1) of Regulation No 861/2007 must be interpreted as meaning that a dispute comes within the scope of that regulation when the applicant and the defendant are domiciled in the same Member State as the court or tribunal seised, finds that it is sufficient to note that Article 2(1) of Regulation No 861/2007 explicitly limits the scope of that regulation to cross-border disputes. Likewise Article 3 of that Regulation defines a cross-border dispute as a dispute in which the applicant and/or the defendant has his domicile or habitual residence in a Member State other than that of the court or tribunal seised. Consequently, a dispute in which the applicant and the defendant are domiciled in the same Member State as the court seised, does not come within the scope of Regulation No 861/2007.
Read the entire judgement C-627/17
The case will be added to the corresponding unalex Compendium and Case Collection.
The General Court adopts amendments to the practice rules for the implementation of his rules of procedure 22.11.2018
These newly adopted Amendments to the Practice Rules for the Implementation of the Rules of Procedure of the General Court (
OJEU L 294/23 - 21.11.2018) which enter into force on 1 December 2018, are made in accordance with the following recitals:
"Whereas the General Court adopted amendments to its Rules of Procedure on 11 July 2018 and the Decision of the General Court on the lodging and service of procedural documents by means of e-Curia, also on 11 July 2018;
Whereas, in accordance with those texts, the e-Curia application will become the only means of exchanging documents between representatives of the parties and the Registry of the General Court from 1 December 2018;
Whereas certain points in the Practice Rules should be adapted accordingly;
Whereas it is also desirable, in the interests of the parties and of the General Court, to provide clarification in respect of the reckoning of time limits, the submission of applications for suspension of operation or enforcement or other interim measures, the use of technology at hearings, and the rules on addressing the General Court in the case of individuals who do not have the status of representative;
Whereas all references to appeals before the General Court against decisions of the European Union Civil Service Tribunal should be removed in pursuance of Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants;
Whereas the changes made to the text of the Practice Rules in force are such that points should be renumbered and cross-references updated to ensure greater legibility;"
Please click on the link above to read the full text of the document.
Athanasios T. Kastanidis - International arbitration and the Brussels Ia Regulation from a Greek perspective 21.11.2018
“(...) and the recourse to arbitration is more preferable to an ordinary litigation, because the arbitrator seeks equity, whilst the judge seeks the law.
And for that reason an arbitrator was found. For equity to prevail.”
Aristotle, Rhet. I.13, 1374b 18-22
In the essay, Procedural issues of international arbitration under the Brussels Ibis Regulation and the New York Arbitration Convention of 1958 from a Greek perspective,
Athanasios T. Kastanidis* addresses the arbitration exclusion from the regulatory scope of the Brussels Ibis Regulation.
As the Brussels Ibis Regulation governs only the conflicts of competence arising among courts of Member States rather than between State courts and arbitral tribunals the author
turns to the pending and unresolved question of these conflicts by providing a comprehensive and detailed analysis which deals with the issue of incompatible judgments and arbitral
awards and addresses the problems arising from parallel proceedings brought before State courts and/or arbitral tribunals.
Concluding his analysis Kastanidis takes the view that:
“Jurisdiction and arbitration conflicts cannot be reconciled by the BR [Brussels Ibis Regulation]. Although the scope of the BR remains slightly unchanged with respect to arbitration,
the recital’s provisions seem not to clarify the extent of the arbitration exclusion. Hence, most issues of conflicts are to be settled by the New York Convention and the national laws
that mostly lead to different approaches within the European area. Undoubtedly, autonomous conceptions could serve comity the most, but until then, the ideal of legal certainty and the
inherent need for practical solutions to the occurring problems seem to form inalienable goals.”
The essay is published in the recent edition of our legal journal EuLF 4-2018 request a free trial copy here.
*LL.B., LL.M., Civil, Civil Procedural and Labour Law, Ph.D. Cand., Aristotle University of Thessaloniki, Greece. Scientific Guest Scholar, Max Planck Institute for Procedural Law, Luxembourg.
Lawyer, Piraeus Bar, Greece.
Planned amendment of the Swiss private international law in matters of International Arbitration 21.11.2018
With the planned amendment of the Swiss private international law (IPRG) in matters of International Arbitration, specified in Chapter 12 of this Act, the legislative initiative aims to further increase the attractiveness of Switzerland as a location for arbitration courts.
According to the draft the amendments include, inter alia, that essential principles of the established case law of the Federal Supreme Court will be laid down by law (this primarily concerns appeals relating to arbitral awards) and that in proceedings before the Federal Supreme Court not only enclosures but also the filing of legal submissions can be made in English.
Detailed further information (available in German, French and Italian) can be found
Lodging and service of procedural documents by means of e-Curia 20.11.2018
Following the DECISION OF THE COURT OF JUSTICE of 16 October 2018 on the lodging and service of procedural documents by means of e-Curia (
OJEU L 293/37 – 20.11.2018 ) having regard to the Rules of Procedure and, in particular, Articles 48(4) and 57(8) thereof the information technology application known as ‘e-Curia’, common to the constituent courts of the Court of Justice of the European Union now allows the representatives of the parties and courts and tribunals of the Member States the lodging (Article 3) and service (Article 6) of procedural documents by electronic means in accordance with the conditions laid down by this Decision.
The Decision, pursuant to its Article 10, entered into force on the first of November 2018.
Brexit - Draft agreed on the withdrawal 19.11.2018
On 14 November 2018, the negotiators of the EU and the United Kingdom have agreed the Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (
official Document TF50 (2018) 55– Commission to EU27).
According to Title VI of the Draft - ONGOING JUDICIAL COOPERATION IN CIVIL AND COMMERCIAL MATTERS – and following the Articles 66 to 69 contained therein, the decisive criteria for the further application of the European provisions on JUDICIAL COOPERATION IN CIVIL AND COMMERCIAL MATTERS will be the temporal requirement “before the end of the transition period” (which is determined in Article 126 of the “Withdrawal Agreement”) added to certain provisions which require a specific event to happen or action to take place.
This is to apply according to Article 66 - Applicable law in contractual and non-contractual matters - in relation to Regulation (EC) No 593/2008 and Regulation (EC) No 864/2007; according to Article 67 - Jurisdiction, recognition and enforcement of judicial decisions, and related cooperation between central authorities - in relation to Regulation (EU) No 1215/2012, Regulation (EU) 2017/1001, Regulation (EC) No 6/2002, Regulation (EC) No 2100/94, Regulation (EU) 2016/679, Directive 96/71/EC, Regulation (EC) No 2201/2003, Regulation (EC) No 4/2009, Regulation (EC) No 805/2004, Regulation (EU) 2015/848, Regulation (EC) No 1896/2006, Regulation (EC) No 861/2007 and Regulation (EU) No 606/2013; according to Article 68 - Ongoing judicial cooperation procedures - in relation to Regulation (EC) No 1393/2007, Regulation (EC) No 1206/2001 and Council Decision 2001/470/EC; and according to Article 69 - Other applicable provisions - in relation to Directive 2003/8/EC, Directive 2008/52/EC, Directive 2004/80/EC, Regulation (EU) No 1215/2012 and Regulation (EC) No 1393/2007.
Furthermore, in the Protocol on Ireland/ Northern Ireland annexed to the “Withdrawal Agreement”, the negotiators of the EU and the United Kingdom have agreed to set out the necessary arrangements to avoid a hard border between Ireland and Northern Ireland. Both agreed to use their best endeavours to conclude, by 31 December 2020, an agreement which supersedes the mentioned Protocol in whole or in part and which is concluded before the end of the transition period. If this is not the case, the United Kingdom may at any time before 1 July 2020 request the extension of the transition period referred to in Article 126 of the “Withdrawal Agreement”. Alternatively, Article 6 of the Protocol establishes the backup solution for Ireland and Northern Ireland until a future relationship becomes applicable. This back-up foresees a single customs territory between the EU and the United Kingdom, which will apply from the end of the transition period until a later agreement enters into force. Accordingly, Northern Ireland is in the same customs territory as Great Britain. The single customs territory is extended to all goods, with the exception of fishery and aquaculture products. The trade between the parts of the single customs territory is set out in detail in Annex 2 to the Protocol.
CJEU: Judgement in Case C-296/17 - Exclusive jurisdiction of the courts of the Member State in whose territory the insolvency proceedings have been opened - 16.11.2018
According to the judgment in case C-296/17,
Wiemer & Trachte GmbH v Zhan Oved Tadzher,
Article 3(1) of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings must be interpreted as meaning that the jurisdiction of the courts of the Member State within the territory of which insolvency proceedings have been opened to hear and determine an action to set a transaction aside by virtue of the debtor’s insolvency which has been brought against a defendant whose registered office or habitual residence is in another Member State is exclusive.
Following the reasoning of the judgment this finding cannot be called in question neither by the context of Article 3(1) of Regulation No 1346/2000. As the Court elaborates neither Article 18(2) nor Article 25(1) of that regulation call in question the exclusive nature of the international jurisdiction of the courts referred to in Article 3(1).
Firstly, because Article 18(2) of Regulation No 1346/2000 does concern only the specific situation where the liquidator was appointed in the context of proceedings covered by Article 3(2) of that regulation and cannot apply in a situation, such as that at issue in the main proceedings, where the liquidator was appointed in the context of the main insolvency proceedings.
As emphasised by the Advocate General in point 64 of his Opinion, that distinction can be explained by the fact that the powers of the liquidator are, in the context of proceedings covered by Article 3(2) of Regulation No 1346/2000, territorially limited in so far as, by virtue of that provision, the effects of those proceedings are confined to the assets of the debtor situated in the territory of the Member State on the date those proceedings are opened. In such a situation, the liquidator must therefore be able to bring an action to set a transaction aside in connection with those proceedings before a court of a Member State other than the one which opened the secondary proceedings if the assets that are the subject of those proceedings were transferred, after those proceedings were opened, to another Member State.
Secondly, it is also not possible to use Article 25(1) of Regulation No 1346/2000 to support an interpretation of Article 3(1) thereof which favours optional international jurisdiction in respect of actions to set a transaction aside.
As noted by the Advocate General in point 65 of his Opinion, that provision covers only the recognition and enforceability of judgments deriving directly from the insolvency proceedings and which are closely linked with them, even if they were handed down by another court. That provision merely allows for the possibility that the courts of a Member State within the territory of which insolvency proceedings have been opened pursuant to Article 3(1) of Regulation No 1346/2000 may also hear and determine an action deriving directly from those proceedings, whether that be the court which opened the insolvency proceedings under that provision, or another court of that same Member State having territorial and substantive jurisdiction.
Read the entire judgement C-296/17
The case will be added to the corresponding unalex Compendium and Case Collection.
New EU DIRECTIVE 2018/1713 allows EU Member States to apply to publications supplied electronically the same VAT rates that currently apply to printed publications 15.11.2018
According to the new Council Directive (EU) 2018/1713 of 6 November 2018 amending Directive 2006/112/EC as regards rates of value added tax applied to books, newspapers and periodicals, electronically supplied publications
should be able to benefit from the same preferential VAT rate treatment as publications that are supplied on physical means of support.
In order to achieve this objective Directive 2006/112/EC is amended as follows:
(1) in Article 98(2), the second subparagraph is replaced by the following:
‘The reduced rates shall not apply to electronically supplied services with the exception of those falling under point (6) of Annex III.’;
(2) in Article 99, the following paragraph is added:
‘3. By way of derogation from paragraphs 1 and 2 of this Article, and in addition to the rates referred to in paragraph 1 of Article 98, Member States which, on 1 January 2017, applied, in accordance with Union law, reduced rates lower than the minimum laid down in this Article or granted exemptions with deductibility of the VAT paid at the preceding stage to the supply of certain goods referred to in point (6) of Annex III, may also apply the same VAT treatment where that supply is supplied electronically, as referred to in point (6) of Annex III.’;
(3) in Annex III, point (6) is replaced by the following:
‘(6) supply, including on loan by libraries, of books, newspapers and periodicals either on physical means of support or supplied electronically or both (including brochures, leaflets and similar printed matter, children's picture, drawing or colouring books, music printed or in manuscript form, maps and hydrographic or similar charts), other than publications wholly or predominantly devoted to advertising and other than publications wholly or predominantly consisting of video content or audible music;’.
Find the full text of the new Directive (EU) 2018/1713 here.
CJEU: Judgement in Case C-308/17 - Claims brought against the Greek State by an individual holding Greek sovereign bonds are not a ‘civil or commercial’ matter for the purposes of Brussels Ia Regulation - 15.11.2018
According to the judgment in case C-308/17,
Leo Kuhn v Hellenic Republic,
the Brussels Ia Regulation is not applicable in determining which Member State’s
courts have jurisdiction to rule on claims brought against the Greek State by an individual holding Greek sovereign bonds following their forced exchange in 2012
The Court holds that
the Brussels Ia Regulation does not apply to the dispute at issue, as it is not a dispute of a ‘civil or commercial matter’ within the meaning of that Regulation. In fact,
the origin of the case at issue stems from a manifestation of public authority and
results from actions of the State in the exercise of that public authority
For details see the
press release No 177/18, Luxembourg, 15 November 2018 and the judgment
The case will be added to the corresponding unalex Compendium and Case Collection.
Combating money laundering by criminal law – New EU DIRECTIVE 2018/1673 – 13.11.2018
With the Directive (EU) 2018/1673 of the European Parliament and of the Council
of 23 October 2018 the European Union incorporates anti-money laundering measures through criminal law.
Money laundering and the related financing of terrorism and organised crime remain significant problems at Union level, thus damaging the integrity, stability and reputation of the financial sector and threatening the internal market and the internal security of the Union. In order to tackle those problems and to complement and reinforce the application of Directive (EU) 2015/849, this new Directive aims to combat money laundering by means of criminal law, enabling more efficient and swifter cross-border cooperation between competent authorities.
Find the new DIRECTIVE (EU) 2018/1673 on combating money laundering by criminal law here.
CJEU: Judgement in Case C-310/17 - Taste of a food product not eligible for copyright protection - 13.11.2018
The taste of a food product cannot be classified as a 'work' and consequently is not eligible for copyright protection under the Copyright Directive 2001/29.
In Case C-310/17, Levola Hengelo BV v Smilde Foods BV, the claimant Levola took the view that the production and sale of 'Witte Wievenkaas' (a product manufactured by the defendant Smilde Foods) infringed its copyright in the taste of 'Heksenkaas' (a product whose intellectual property rights had been transferred to the current rightholder Levola). Levola claimed that the taste of 'Heksenkaas' is a work protected by copyright and that the taste of 'Witte Wievenkaas' is a reproduction of that work.
In the Judgment the Court states that for there to be a 'work' as referred to in the Copyright Directive 2001/29, the subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity. In that regard, the Court finds that the taste of a food product cannot be identified with precision and objectivity. Unlike, for example, a literary, pictorial, cinematographic or musical work, which is a precise and objective expression, the taste of a food product will be identified essentially on the basis of taste sensations and experiences, which are subjective and variable.
For further details see the press release No 171/18, Luxembourg, 13 November 2018.
The judgement is only published in Dutch and French so far.
The first Paris Peace Forum - discussions on strengthening multilateralism and WTO - 12.11.2018
In the first Paris Peace Forum on 11 -13 November 2018, an event dedicated to the idea that “international cooperation is key to tackling global challenges and ensuring durable peace”, Director-General of the WTO Roberto Azevêdo, speaking during the Peace Forum, urged leaders to “roll up their sleeves” and transform the current crisis of multilateralism into an opportunity to strengthen and improve it, including by reinforcing the WTO.
During the public discussion Director-General Azevêdo argued for a strengthening of multilateral cooperation on trade. He said:
"Think about the world without the WTO. It would be the law of the jungle. It would be a return to unilateralism, with no global cooperation on trade issues. Our economists have been looking at the effects of such a scenario and the question is not whether people are going to lose – the question is how much. In fact, everyone would lose out. Two-thirds of products traded are produced in at least two countries, so if you disrupt trade it affects everyone in some manner. Trade is like oxygen – you only notice it when it's gone." (The full text of his statement is accessible
A joint declaration was issued by President Emmanuel Macron, UN Secretary-General Antonio Guterres, UNESCO Director-General Audrey Azoulay, OECD Secretary-General Angel Gurría, World Bank Group President Jim Yong Kim, IMF Managing Director Christine Lagarde, ILO
CJEU: Judgment in Joined Cases C-569/16 and C-570/16 - Rights of the heirs of a deceased worker 07.11.2018
The heirs of a deceased worker may claim from the latter's former employer an allowance in lieu of the paid annual leave not taken by the worker.
The deceased worker's right to an allowance in lieu of leave which is not taken may be passed on by inheritance to his heirs.
For further details see the press release No 164/18, Luxembourg, 6 November 2018 and the judgement
Harmonisation of Swiss private international law in matters of succession with EU Regulation No 650/2012 06.11.2018
Because of the fact that cross-border inheritance cases regularly lead to conflicts of competence between the
authorities of the states involved and in consequence to conflicting decisions, the EU has already addressed
international jurisdiction and the recognition of legal acts in matters of succession in EU Regulation No. 650/2012
(System unalex consolidated Legislative Texts, LEX-8, fee-based access). The Regulation applies to all EU Member States
except Denmark, Ireland and the United Kingdom and is applicable to the succession of a person in the event of death after 16 August 2015.
The planned harmonisation, i.e. the
amendment of the Swiss Federal Law on Private International Law (IPRG) in the area of inheritance law
now likewise aims to minimise conflicts of jurisdiction with other states in this particular field of law and therefore to prevent
conflicting decisions in international inheritance matters.
See for details the
→ preliminary draft and
→ explanatory report
For further information on this matter (available in German, French and Italian) please visit the
→ website of the Swiss Federal Department of Justice and Police FDJP
Convention of 13 January 2000 on the International Protection of Adults enters into force for Cyprus 02.11.2018
On 1 November 2018, the Hague Convention of 13 January 2000 on the International Protection of Adults entered into force for Cyprus, following the signature on 1 April 2009, and deposit of its instrument of ratification on 4 July 2018. The named Convention currently has 12 Contracting Parties.
More information is available on the Protection of Adults Section of the Hague Conference website.
Supreme Court (IE) 9 May 2018 –  IESC 26 (unalex IE-124) 29.10.2018
Brussels Convention 1968; Brussels II Regulation; TFEU Article 67 –
Temporal scope of application – Former Constitutional prohibition on divorce in Ireland – Irreconcilable divorce judgments – ‘Limping marriages’ – Area of freedom, security and justice – Freedom of movement
Where two Irish nationals have obtained a divorce in another Member State at a time where that divorce was not recognisable in Ireland and in particular the Brussels II Regulation was not yet in force, the Irish courts are not impeded from deciding on the divorce of the spouses anew. (Editor’s headnotes)
For more on that: The European Legal Forum (EuLF) Issue 3-2018 → request a free trial copy now
Find the case in the unalex Case Collection under unalex IE-124
Opinion of the AG Szpunar in C-469/17 - a simple military report cannot enjoy copyright protection - 25.10.2018
In Case C-310/17,
Funke Medien NRW GmbH v Federal Republic of Germany,
Federal Republic of Germany
infringed its copyrights in relation with regularly drawn military status reports designated as Parliament briefings and sent only to selected parties. These reports are categorised as ‘classified documents’ – restricted, which is the lowest level of confidentiality. Summary versions, intended as public versions, are published by the Federal Republic of Germany. The German company Funke Medien, operating a website of a daily newspaper, applied for access to all those reports drawn over a period of 11 years. Although the application was refused on the ground that disclosure could have adverse effects on security-sensitive interests,
, nevertheless, obtained and published large amounts of these reports. The
Federal Republic of Germany
brought proceedings before the German civil courts with the aim to stop that alleged infringement.
The Bundesgerichtshof (Federal Court of Justice, Germany) requests the Court of Justice to interpret the EU law on copyright protection in particular in the light of the fundamental right of freedom of expression.
According to the opinion of the AG Szpunar delivered on 25 October 2018 in case C-469/17, a simple military report cannot enjoy copyright protection.
In his opinion AG Szpunar doubts that such reports can be classified as works eligible for copyright protection. He states that these reports in question are purely informative documents, drafted in absolutely neutral and standardised terms, providing an accurate report of events or stating that no events of interest have occurred. Such ‘raw’ information, that is to say, information presented in an unaltered state, is excluded from copyright, which protects only the manner in which ideas have been articulated in a work.
In case that the Court does not accept that proposal, the answer to the question whether a Member State can rely on its copyright over documents such those at issue in order to curtail freedom of expression, in his opinion, should be negative. He observes, although the State is entitled to benefit from the civil right of ownership, such as the right to intellectual property, it cannot rely on the fundamental right to property as a means of restricting another fundamental right such as freedom of expression. The State is not a beneficiary of fundamental rights, but is rather under an obligation to safeguard fundamental rights.
Furthermore, AG Szpunar adds that the objective to protect the confidential nature of certain information deemed to be sensitive and which therefore should not be published in the public versions of the reports falls entirely outside the objectives of copyright. He states that Copyright is therefore being used here to pursue objectives that are entirely unrelated to it.
For further details see the full text of the
press release No 161/18, Luxembourg, 25 October 2018 and the
Opinion of AG Szpunar.
Order of the Vice-President of the Court in the Case C-619/18R “Commission v Poland” 20.10.2018
Following the order: Poland must immediately suspend the application of the provisions of national legislation relating to the lowering of the retirement age for Supreme Court judges.
On 3 April 2018 the new Polish Law on the Supreme Court lowered the retirement age for Supreme Court judges to 65. According to the national law in question, to continue in active judicial service beyond the age of 65 requires, beside the submission of a statement indicating the desire to continue, the consent of the President of the Republic of Poland. In making his decision, the President of the Republic of Poland is not bound by any criteria and that decision is not subject to any form of judicial review. Additionally, the Law on the Supreme Court allows the President of the Republic of Poland to freely decide, until 3 April 2019, to increase the number of Supreme Court judges.
On 2 October 2018 the Commission brought an action (C-619/18) for failure to fulfil obligations before the Court of Justice. Arguing that by lowering the retirement age plus applying that new retirement age to judges appointed to the Supreme Court up until 3 April 2018 as well as granting the President of the Republic of Poland the discretion to extend the active judicial service of Supreme Court judges, Poland has infringed EU law. In the context of interim proceedings the Commission requested: (1) to suspend the application of the national provisions in question; (2) to take all necessary measures to ensure that judges may continue to perform their duties and (3) to refrain from adopting measures concerning the appointment of judges replacing judges concerned.
By her order, the Vice-President of the Court, Ms Rosario Silva de Lapuerta, acting upon the Commission's requests and before the submission by Poland of its observations in the interim proceedings, in accordance with Article 160(7) of the Rules of Procedure of the Court of Justice, provisionally grants all the Commission’s requests until such time as an order is made closing the interim proceedings. The order of the Vice-President of the Court is to apply, with retroactive effect, to the judges of the Polish Supreme Court concerned by those provisions.
For further details see the full text of the press release No 159/18, Luxembourg, 19 October 2018.
Original text of the order (published so far only) → in French
→ in Polish
Rainer Hausmann, comments on the “Mahnkopf” decision of the CJEU of 1 March 2018 – C-558/16 – (unalex EU-751) 19.10.2018
In an essay of utmost practical relevance, Drawing the Border Line between the Succession Regulation and the Matrimonial Property Regulation: The example of section 1371(1) German Civil Code (BGB)*, Rainer Hausmann (Professor emeritus at Konstanz University, Germany) outlines and explains the relationship of the two regulations by using illustrating case studies. Additionally, and to complete the picture, he critically comments on the “Mahnkopf” decision of the CJEU of 1 March 2018.
According to Hausmann the main starting point to address the issue is that:
“One of the most difficult and disputed questions raised by the growing number of European legal instruments is the question of classification of legal rules or principles provided for in the national law of the Member States, i.e the answer to the question as to which European legal instrument such national rules or institutions are governed by if they have relations to two or more different instruments. As the liquidation of the matrimonial property regime caused by the death of one spouse often has a significant impact on the rights of the surviving spouse in the estate of the predeceased spouse, the problem of classification is of particular practical importance in the border area between succession law and matrimonial property law.”(...)
Pointing out the legal consequences of the “Mahnkopf” decision the author emphasis that:
"(...) problems arise if different laws apply to the matrimonial property regime and to the succession of the predeceased spouse." Problems which, as he states, "(...) have not been addressed by the CJEU because in the “Mahnkopf” case German Law governed both aspects." Therefore, in the course of this essay, he gives illustrating examples in the case of an interplay of (a) German succession law and foreign matrimonial property law or (b) German matrimonial property law and foreign succession law.
In a concluding argument, and suggesting a possible solution for the legal consequences of the “Mahnkopf” decision, Hausmann argues in favour of the application of the institute of "adaptation" expressly provided for in Article 31 Succession Regulation for unknown rights in rem.
*The wording of Section 1371(1) German Civil Code
Equalisation of accrued gains in the case of death
(1) If the property regime is ended by the death of a spouse, the equalisation of the accrued gains is effected by the share of the inheritance on intestacy of the surviving spouse being increased by one quarter of the inheritance; it is irrelevant here whether the spouses in the individual case have made accrued gains.
All the cited case law is accessible on the unalex Case Collection. Please find the “Mahnkopf" decision under unalex EU-751.
The essay is published in our legal journal EuLF 3-2018 → request a free trial copy now
On unalex - English content remarkably expanded - Check it out for free! 19.09.2018
We are proud to tell you that we have expanded our English content at large and offer now more than 1000 pages of highly valuable information in particular on Brussels Ia, Brussels IIa and the EU Service Regulation. For more on that please have a look at our special short commentary format “the Compendium” under the rubric System unalex.
We strongly welcome suggestions and ideas from our readers just → contact unalex
Use the following data to access our portal without obligation for the next 14 days for free!
- Username: unalexTest-exclusive
- Password: useme
WTO Modernisation - Introduction to future EU proposals 18.09.2018
The European Council of 28-29 June 2018 gave the Commission a mandate to pursue World Trade Organisation (WTO) modernisation in pursuit of the objective making the WTO more relevant and adaptive to a changing world, and strengthening the WTO's effectiveness. The EU believes that a modernisation of the WTO is urgently needed stating that: since 1995 the world has changed; the WTO has not.
The EU approach to the reform of the WTO is outlined in a document published on September 18 of 2018
The three concept papers published are covering (1) rulemaking and development; (2) regular work and transparency; and (3) dispute settlement setting out the direction of a possible modernisation effort.
This document, already consulted with the EU Member States, is intended to serve as a basis for discussion with the European Parliament. Without prejudice to the final position of the EU on these issues, the ideas presented in the papers refer to three main aspects:
- to update the rules and to create the conditions for the rules to be updated, taking into account the world economy of today;
- the strengthening of the WTO oversight function; and
- how to overcome the impending stalemate of the WTO dispute settlement system.
This ideas will be presented to the EU partners in Geneva on September 20 during a meeting on this issue convened by Canada.
UK government - Guidance in case of a "no deal" scenario 18.09.2018
On 13 September 2018 the UK government published a paper on civil judicial cooperation between the UK and EU countries to provide guidance in case of a scenario in which the UK leaves the EU without agreement.
The paper → Handling civil legal cases that involve EU countries if there’s no Brexit deal is part of the series of technical notices which shall allow businesses and citizens to understand what they would need to do in a ‘no deal’ scenario, in order to make informed plans and arrangements.
Further information on the series →https://www.gov.uk/government/collections/how-to-prepare-if-the-uk-leaves-the-eu-with-no-deal
Note on Habitual Residence and the Scope of the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 17.09.2018
On 13 July 2018 the Permanent Bureau of The Hague Conference released a Note on Habitual Residence and the Scope of the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption. The concept of habitual residence is key to the effective operation of the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption. Contracting States to the 1993 Hague Convention have, however, noted that in practice they have encountered challenges in some instances in determining the habitual residence of prospective adoptive parents and adoptable children. Uncertainty regarding the habitual residence of a person – for example, as a result of their move from one State to another – can complicate the determination of whether the 1993 Hague Convention applies to a particular adoption. As a result, this topic was discussed at the 2010 and 2015 Special Commission meetings on the practical operation of the 1993 Hague Convention.
The Note now released by The Hague Conference aims to promote the proper interpretation and application of Article 2 of the 1993 Hague Convention. It does so by seeking to clarify a) the scope of the Convention, and b) the concept of habitual residence, and ultimately promote greater consistency in determinations of habitual residence in Contracting States in the context of this Convention, including by “developing a common understanding of the factors which might be considered when determining habitual residence” for the purposes of this Convention.
Please find detailed information under
Less than two month to go! - JUST-JTRA-EJTR-AG-2018 – 26.08.2018
EU call for proposals for action grants to support transnational projects on judicial training covering civil law, criminal law or fundamental rights.
Opening date: 14 June 2018. Deadline: 25 October 2018.
If you are taking part in the current call of the EU Commission’s civil justice programme
(https://ec.europa.eu/research/participants/portal/desktop/en/opportunities/just/topics/just-jtra-ejtr-ag-2018.html) please be informed that unalex provides special support for research projects in the area of international law.
Use the possibilities of the unalex database technology → unalex project library.
For detailed further information do not hesitate to contact us: email@example.com
Current issues – European Commission proposals for amendments of Regulation 1206/2001 and 1393/2007 23.08.2018
Please find detailed information on the European Commission proposals for a Regulation amending the European Evidence Regulation 1206/2001 under:
and the European Service Regulation 1393/2007 under:
Dominelli, Stefano, Comments on the judgement Paweł Hofsoe , CJEU of 31 January 2018 – C-106/17 – (unalex EU-744) 21.08.2018
In the essay,
Direct Actions of ‘Injured Parties’ in the Brussels Ia Regulation: The
Paweł Hofsoe Case of the Court of Justice of the European Union as an Expression of Legal Pragmatism,
Stefano Dominelli* notes that:
"In the last few years the Court of Justice of the European Union has delivered a number of decisions concerning the application of rules on international jurisdiction and conflict of laws in insurance matters. The most recent
arrêt follows a line of judgments that seeks to identify who is to be considered as the ‘injured party’ under uniform international civil procedure, and – as such – recognised with specific protective rules. The Court has most recently built upon previous reasoning to avoid excessive legal abstractionism of principles paving the way for the reconstruction of rules that might run against the basic legal thought underpinning the principles themselves."(...)
Find a detailed discussion of the judgement in our legal journal EuLF 2-2018. → request a free trial copy now
Find the case in the unalex Case Collection under unalex EU-744.
*PhD in Civil, Corporate and International Law (University of Genoa, Department of Law); Researcher in EU Law at the University of Milan, Department of International, Legal, Historical and Political Studies.
Tribunal Superior de Justicia de Valencia (ES) 1 January 2018 - STSJ CV 239/2018 - (unalex ES-1103) 27.07.2018
Regulation Brussels Ia Article 21 – Jurisdiction over actions against an employer - place where the employee habitually carries out his work - "home base" as a significant indication
Although within the framework of Article 21(1) b) i) of Regulation Brussels I a , the doctrine established by the Judgment of the ECJ, C-168/16 (unalex EU-731) of 14 September 2017, indicates that the concept of "home base" constitutes a significant indication to determine the "place where the employee habitually carries out his work", that indicator cannot be the sole or conclusive evidence, but is to be assessed against the concurrent set of circumstances in order to determine where the employee fulfils the largest proportion of his contractual obligations. It is appropriate to declare the lack of jurisdiction (here of the Spanish Courts), if, as in the present case, (a) the plaintiff rendered services on board an Irish aircraft, (b) was subject to the work orders issued from Dublin (crew management) and to the disciplinary regime imparted there, (c) as well as to Irish Social Security legislation, and (d) receiving the salary in an account owned by the plaintiff opened in Ireland.
You will soon find a detailed discussion of the judgement in our legal journal EuLF.
Find the case in the unalex Case Collection under unalex ES-1103.
Commercial Court of Madrid (ES) 14 June 2018 - SJM M 1231/2018 - (unalex ES-1113) 26.07.2018
Regulation 1/2003 Article 2 and Treaty on the Functioning of the European Union Articles 101 and 102-
Action claiming the violation of EU Competition Law - Passive selling - Burden of proof
In application of Article 2 of Regulation 1/2003 it cannot be considered as proof of the existence of an absolute territorial protection clause,
prohibited by Article 3(3) of the Treaty on European Union and Articles 101 and 102 of the Treaty on the Functioning of the European Union,
if all the evidence provided by the plaintiff and directed to prove the prohibition or restriction of sales outside the Spanish territory refer to a single client.
Find the case in the unalex Case Collection under unalex ES-1113.
England and Wales Court of Appeal (Civil division) (UK) 9 March 2018 – Ioanna Lambrou Christofi v. National Bank of Cyprus (Greece) Ltd –  EWCA Civ 413 - (unalex UK-1504) 19.06.2018
Brussels I Regulation 44/2001 Article 43(5) – Appeal brought against a declaration of enforceability of a foreign decision – Two months time limit –
Extension of time limit – Principle of non discrimination
The court is obliged to enforce the time limit Article 43(5) Brussels I Regulation strictly, subject only to the residual power to extend a mandatory time limit in the
rare case where its application would impair the very essence of the right of appeal, and strict adherence to it would infringe Article 6 of the Human Rights Convention.
For more on that: The European Legal Forum (EuLF) Issue 1 2018 → request a free trial copy now.
Find the case in the unalex Case Collection under unalex UK-1504.
BGH (DE) 20 December 2017 – XII ZB 333/17 (unalex DE-3570) 19.06.2018
Brussels IIa Regulation Article 8(1); Hague Child Protection Convention 1996
– Unaccompanied refugee minors – Parent and child matters regarding a ‘child’ who has already completed 18 years of age – Age of majority –
Establishment of age of majority in application of foreign law
A person who has already completed 18 years of age may nevertheless be considered a ‘child’ within the meaning of sect. 99 of the German FamFG
if he or she is considered a minor under the law applicable with regard to this issue.
Even if a German court bases international
jurisdiction in a question of appointment of a guardian on Article 8(1) Brussels IIa Regulation, hypothetical jurisdiction under Articles 5 and 6 of the
Hague Child Protection Convention 1996 is sufficient for applying German law in accordance with Article 15(1) of the Convention. (Editor’s Headnote)
For more on that: The European Legal Forum (EuLF) Issue 1 2018 → request a free trial copy now.
Find the case in the unalex Case Collection under unalex DE-3570.
Now out! - JUST-JCOO-AG-2018 21.03.2018
Call for proposals for action grants to support transnational projects to promote judicial cooperation in civil and criminal matters.
Opening date: 07 March 2018. Deadline: 19 June 2018.
If you are taking part in the current call of the EU Commission’s civil justice programme
(→ https://ec.europa.eu/research/participants/portal/desktop/en/opportunities/just/topics/just-jcoo-ag-2018.html) please be informed that unalex provides special support for research projects in the area of private international law. We offer project teams planning to collect case law of the courts of the EU member States and/or further materials a special research environment.
Tight project budget? Don't start from scratch! Use the possibilities of the unalex database technology
→ unalex project library.
Provide sustainability to your project. In the unalex research environment you can base your project on the results achieved by past projects and coordinate with other ongoing projects.
Over time, unalex has grown to over 8,500 cases in the unalex case collection. The aim of unalex is to provide the European area of justice with multilingual information on all legal
instruments of European private international law. Let your project merge to the unalex pool of international legal information.
For detailed further information please contact us: firstname.lastname@example.org
Successful completion of project "unalex" - Achievements 15.03.2018
First of all a warm thank you to the partners and colleagues of the unalex project!
The project unalex – multilingual information for the uniform interpretation of the instruments of judicial cooperation in civil
matters – JUST/2014/JCOO/AG/CIVI/7736 conducted by the University of Innsbruck, in cooperation with various European universities and IPR Verlag, has been successfully completed.
The scope of the project was to improve the level and availability of specialised information of high standards on the application of the European legal
instruments of judicial cooperation in civil matters for the legal practice in all Member States.
During the project over 1,500 new cases were added to the unalex international case collection and elaborated with case head notes.
As a result, the case collection has grown to over 8,500 cases of the CJEU and of the courts of the Member States, selected for applying the European instruments of judicial
cooperation in civil matters and prepared with legal meta-information informing on the special application made of them by the courts.
The unalex Compendium, which provides systematic article-by-article overviews over the legal instruments’ application in the Member States, was likewise updated during the project period.
Additionally, legal instruments were added as well as new Compendium texts. The Compendium is prepared under a special technique, under which it is closely linked to the unalex case collection.
It allows identification of similar or comparable cases and thus of leading opinions and best practices at European level. The Compendium also permits
to identify diverging opinions decided by courts in different Member States, which may give rise to in-depth legal discussion and referral for preliminary ruling to the CJEU. The unalex case collection and the Compendium are created in English, French, German, Italian and Spanish. Under the project, the language coverage could be largely expanded.
On the occasion of several conferences in the area of European private international law and international civil procedure (details see → unalex project library), the project brought together legal authors from the various Member States, who specialise in private international law.
The project laid the grounds for setting up a European Network of Authors. Many outstanding experts expressed their interest in such international cooperation, which may build on the content and techniques of the unalex system and the underlying genuinely European approach.
Soon to be published – Brussels IIa Compendium 08.12.2017
In January 2018 we are going to publish large parts of the Compendium on Brussels IIa Regulation authored by Rainer Hausmann,
Professor Emeritus at Konstanz University (DE).
All commenting text will be available in English and German. Additionally, structuring headings will
also be available in French, Italian and Spanish. Case head notes are fully translated into the five languages mentioned before. Access to the unalex Compendium
is available for only € 26, 00 per month + German VAT (or € 15, 60 per month + German VAT for non-German speaking Countries).
Details see Price sheet (right navigation bar).
From Monday the 11th of December you will find a free sample → here and on the login/registration page (extracts accessible without prior registration).
The European Legal Forum 3, 4/ 2017 - Special edition 15.11.2017
Order your free trial copy of our legal journal EuLF. This issue contains a password for free access to our website and the products offered
without prior registration. The granted free trial period ends on 31.12.2017. → Request your free trial copy now.
The special edition has the aim to present the functionality of our legal information system, our products and services. Special attention is given to the so called unalex Compendium - providing
a systematic overview of the case law found in the unalex Case Collection, organized according to legal instruments and articles within each legal instrument -. Therefore,
the special edition contains i.a.
(→ complete table of content) a reprint of an entire article (article 21) of the Brussels Ia Compendium.
Please note, that the free trial login details also enable access to the Brussels IIa Compendium authored by Rainer Hausmann, which will be published soon on our website.
The annual subscription price for EuLF is € 145 + VAT + Shipping costs. Special prices in case of subscribtion to “System unalex” available. Please see
→ registration page. (Complete price list with special introductory prices for 2018 available from 27.11.2017.)
5th unalex conference in Innsbruck/Austria, 24 November 2017 12.10.2017
Topic: “(Non-)Uniform interpretation of EU-Instruments on Private International Law by the Courts of the Member States - Conclusions from Case law collected in the unalex system”
Speakers and their lectures:
Prof. Bea Verschraegen - University of Vienna
- Autonumous interpretation of EU uniform legal instruments -
Prof. Marie-Elodie Ancel, UPEC - University Paris XII
- Asymmetric jurisdiction clauses – a long and winding road to effectiveness -
Prof. Achim Pütz - University of Castellón
- Conventions on particular matters in the European area of civil justice:
Article 71 Brussels Ia Regulation in the case law of the EU Member States -
Dr. Apostolos Anthimos - European University of Cyprus
- Service of documents abroad in the enforcement stage -
Dr. Gottfried Musger - OGH (Austrian Supreme Court of Justice)
- Uniform interpretation of the European private international law rules - a challenge for the judiciary -
Ass. Prof. Marion Ho-Dac - University of Valenciennes
- The habitual residence - a common notion in European private international family law? -
Ass. Prof. Anabela de Sousa Gonçalves - University of Braga
- Portuguese court decisions on Brussels II a Regulation in the light of the European case law -
Prof. Gabor Palasti - Károli Gáspár University of Budapest
- Different views of Member State courts on the concept of civil and commercial matters under the Brussels Regime -
The European Legal Authors Network – Chances and Perspectives
Dr. Thomas Simons - IPR Verlag Munich
- The unalex system and the European Legal Authors Network -
Univ.-Prof. Andreas Schwartze - University of Innsbruck
- The European legal research and the challenge of a European legal literature -
Venue: University of Innsbruck, Madonnensaal, Karl-Rahner-Platz 3, 2nd Floor, in
There is no conference fee. If you like to attend please register by fax: +43-512 507 81297 or email: email@example.com
(Ms. Helene Haas, tel. +43-512 507 81231) until November 15th, 2017.
→ Detailed timetable
Save the date! 5th unalex conference 26.09.2017
Next unalex Conference, Friday 24 November 2017 at the University of Innsbruck/Austria. Topic: (Non-) Uniform Interpretation of EU-Instruments on Private International Law by the Courts of the Member States - Conclusions from Case law collected in the unalex system -
You will find the final conference programme here shortly. Please register now if you are interested in participating.
→ Further information
Planning collection of case law? 24.08.2017
Beware of the deadline for the submission of projects on the occasion of the open call under the European Commission’s civil justice programme on Tuesday, 19 September 2017.
If you are taking part in the current call of the EU Commission’s civil justice Programme http://ec.europa.eu/research/participants/portal/desktop/en/opportunities/just/topics/just-jcoo-ag-2017.html
please be informed that unalex provides special support for research projects in the area of private international law. We offer project teams planning to collect case law of the courts of the EU member States and/or further materials a special research environment.
Tight project budget? Don't start from scratch! Use the possibilities of the unalex database technology → unalex project library.
4th unalex conference in Valencia/Spain, 8 September 2017 14.08.2017
Topic: The EU Matrimonial and Partnership Property Regulations and the unalex Compendium. – Selected issues regarding the new Regulations 2016/1103 and 2016/1104 – Conference chaired by Carlos Esplugues, University of Valencia and Prof. Andreas Schwartze, University of Innsbruck
Speakers and their lectures:
Mr. Franco Salerno-Cardillo, Notary in Palermo (Italy) - Council of the Notariats of the European Union (CNEU)
- Overview over Regulations 2016/1103 and 2016/1104 –
Ass. Prof. Dr. Pablo Quinzá, University of Valencia
- Interaction of Regulations 2016/1103 and 2016/1104 with the Brussels IIa Regulation –
Ass. Prof. Marion Ho-Dac, University of Valenciennes
- Interaction of Regulations 2016/1103 and 2016/1104 with the Succession Regulation –
Prof. Rainer Hausmann, University of Konstanz
- Drawing the border line between Succession Regulation and Matrimonial Property Regulation –
Dr. Susanne Goessl, University of Bonn
- Choice of law in the Matrimonial Property Regulation no. 2016/1103-
Mr. Gabriel Alonso Landeta, Land Register in A Coruña (Spain)
- European Land Registry Association (ELRA) - Application of Regulations 2016/1103 and 2016/1104 in "non-uniform" systems-
Ms. María Reyes Sánchez Moreno, Notary in Alicante (Spain) - Council of the Notariats of the European Union (CNEU)
- Application of Regulations 2016/1103 and 2016/1104 by notaries-
Mr. Mihai Taus, Head of land registry Dept. Of Brasov County Office - European Land Registry Association (ELRA)
- Application of Regulations 2016/1103 and 2016/1104 by land registers –
Venue: Colegio Mayor Rector Peset, Plaça del Forn de Sant Nicolau, 4.
Free to attend seminar. Registration required, please send an email to Ass. Prof. Dr. Pablo Quinzá - firstname.lastname@example.org
→ Detailed timetable
Project unalex – deadline extended, longer free trial period 12.07.2017
unalex is presently subject to the ongoing project unalex – multilingual information for the uniform interpretation of the instruments of judicial cooperation in civil matters.
Please check if you fulfil the criteria for free registration in the context of the project until project termination now on 31.12.2017 → registration page