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Gilles Cuniberti

Alex Castermans and Ruben de Graaf (Leiden Law School) have posted The General Concept of Concurrence Applied to European Insolvency Law on SSRN.

Munagorri on Hierarchy of Norms and PIL

Rafael Munagorri (university of Nantes) has posted Droit international privé et hiérarchie des normes: Observations sur une rencontre (Private Law and Hierarchy of Norms: Some Remarks on Their Relations) on SSRN.

ECJ Rules on Territorial Reach of EU Data Protection Law

Many readers will have heard of the landmark decision of the Court of Justice of the European Union of May 13 in Gonzales v. Google (case C 131/12).

In 2010 Mario Costeja González, a Spanish national, lodged with the Agencia Española de Protección de Datos (Spanish Data Protection Agency, the AEPD) a complaint against La Vanguardia Ediciones SL (the publisher of a daily newspaper with a large circulation in Spain, in particular in Catalonia) and against Google Spain and Google Inc. Mr Costeja González contended that, when an internet user entered his name in the search engine of the Google group (‘Google Search’), the list of results would display links to two pages of La Vanguardia’s newspaper, of January and March 1998. Those pages in particular contained an announcement for a real-estate auction organised following attachment proceedings for the recovery of social security debts owed by Mr Costeja González.

Scholars are debatting whether there is now a right to be forgotten. The case also has a choice of law dimension, as it accepts that the Data Protection Directive applies to Google.

The press release of the Court summarized the ruling on this point as follows.

As regards the directive’s territorial scope, the Court observes that Google Spain is a subsidiary of Google Inc. on Spanish territory and, therefore, an ‘establishment’ within the meaning of the directive. The Court rejects the argument that the processing of personal data by Google Search is not carried out in the context of the activities of that establishment in Spain. The Court holds, in this regard, that where such data are processed for the purposes of a search engine operated by an undertaking which, although it has its seat in a non-member State, has an establishment in a Member State, the processing is carried out ‘in the context of the activities’ of that establishment, within the meaning of the directive, if the establishment is intended to promote and sell, in the Member State in question, advertising space offered by the search engine in order to make the service offered by the engine profitable.

Bamberski’s Trial to Start this Week

The trial of André Bamberski will be held in Mulhouse on Thursday and Friday (French style: no need to spend several months on that).

Mr Bamberski is accused of ordering the kidnapping of Dr Dieter Krombach in Germany for delivering him to French authorities so that he could be tried, again, for the murder of Kalinka Bamberski in 1982.

Second Issue of 2014’s Journal du Droit International

The second issue of French Journal du droit international (Clunet) for 2014 was just released. It contains three articles focusing on issues of private international law and several casenotes. A full table of content is available here.

Vincent Chetail (Institute of Graduate Studies, Geneva), Les relations entre droit international privé et droit international des réfugiés : histoire d’une brève rencontre

On 15 May 2014, the Supreme Court of the United Kingdom delivered its judgment in In the matter of K (A Child) (Northern Ireland).

The Court issued the following press summary.

BACKGROUND TO THE APPEALS

This appeal concerns the meaning of the words ‘rights of custody’ in article 3 of the Hague Convention on the Civil Aspects of International Child Abduction (‘the Convention’), and in the Brussels II Revised Regulation (EC) No 2201/2003 (‘the Regulation’) which complements and takes precedence over the Convention between most member states of the European Union. A child is wrongfully removed or retained in a country under the Convention if such removal or retention is in  breach of ‘rights of custody’. The issue is whether the rights of custody must already be legally  recognised and enforceable, or include informal rights (termed ‘inchoate rights’), the existence of  which would have been legally recognised had the question arisen before the removal or retention in  question.

The proceedings concern a boy (‘K’) born in Lithuania in March 2005. From the time of his birth until 2012 he lived with and was cared for by his maternal grandparents. His father separated from his mother before he was born and has played no part in his life. His mother moved to Northern Ireland  without K in May 2006 and has lived there ever since. A month after K’s birth she authorised her mother to seek medical assistance for K and, before she left for Northern Ireland, executed a notarised consent for her mother to deal with all institutions in relation to K on her behalf. In 2007 a court order was made in Lithuania putting K under the temporary care of his grandmother. This order terminated when K’s mother returned in February 2012 seeking to take K into her own care. K’s mother also applied to withdraw the notarised consents. Meetings were held at the Children’s Rights Division of the local authority where orders were made for her to have weekly contact with K. She was advised that legal proceedings against her mother to obtain custody of K would be costly and protracted and decided instead to seize K forcibly in the street while he was walking home from school with his grandmother on 12 March 2012, and to travel immediately back to Northern Ireland with him by car and ferry.

The grandparents were told by the Lithuanian authorities that they had no right to demand the return  of K. However, in February 2013 they issued an originating summons in Northern Ireland seeking a declaration that K was being wrongfully retained in breach of their rights of custody. Maguire J refused their application, and their appeal against his decision was dismissed by the Northern Ireland  Court of Appeal.

JUDGMENT

The Supreme Court by a majority (Lord Wilson dissenting) allows the appeal, finding that the grandmother did enjoy ‘rights of custody’ such that K’s removal from Lithuania was wrongful. It orders that K should be returned to Lithuania forthwith. If K’s mother wishes to apply for permission to argue at this very late stage that any of the exceptions to the court’s obligation to return K found in article 13 of the Convention apply, this order will be stayed if she makes her application within 21 days. Lady Hale gives the only judgment of the majority. Lord Wilson gives a dissenting judgment.

REASONS FOR THE JUDGMENT

The University of Luxembourg is seeking to recruit a post-doctoral researcher with a strong interest in international and comparative civil procedure.

Interested candidates should contact me by mid June at gilles.cuniberti@uni.lu.

European Account Preservation Order adopted

The European Commission issued yesterday the following Press Release.

European Account Preservation Order adopted: New EU rules will make it easier for companies to recover millions of cross-border debt

New EU rules making it easier for companies to recover claims across borders have been adopted today by EU Ministers. Member States in the General Affairs Council signed off on the agreement recently reached with the European Parliament to establish a European Account Preservation Order (MEMO/14/101) – a Regulation that will be directly applicable in the Member States (except in the UK and Denmark which have an opt-out in this area). The European Account Preservation Order is essentially a European procedure that will help businesses recover millions in cross-border debts, allowing creditors to preserve the amount owed in a debtor’s bank account. The proposal had been made by the European Commission in July 2011 (IP/11/923).

“Every Euro counts: Small and medium-sized enterprises are the backbone of European economies, making up 99% of businesses in the EU. Around 1 million of them face problems with cross-border debts. In economically challenging times companies need quick solutions to recover outstanding debts. This is exactly what the European Account Preservation Order is about,” said Johannes Hahn, EU Commissioner responsible for Justice during Vice-President Viviane Reding’s electoral leave. “Today’s adoption is good news for Europe’s SMEs and the economy. Thanks to these new rules, small businesses will no longer be forced to pursue expensive and confusing lawsuits in foreign countries.”

While the EU’s internal market allows businesses to enter in cross-border trade and boost their earnings, today around 1 million small businesses face problems with cross-border debts. Up to €600 million a year in debt is unnecessarily written off because businesses find it too daunting to pursue expensive, confusing lawsuits in foreign countries. The European Account Preservation Order will help recovering debt across borders by preventing debtors from moving their assets to another country while procedures to obtain and enforce a judgment on the merits are ongoing. It would thus improve the prospects of successfully recovering cross-border debt.

Next steps: After its publication in the Official Journal – the EU’s Statute book ­, expected in June 2014, the Regulation will be directly applicable in the Member States (except in the UK and Denmark).

Trimble on the Marrakesh Puzzle

Marketa Trimble (University of Nevada William S Boyd School of Law) has posted The Marrakesh Puzzle on SSRN.

Third PIL Workshop at Nanterre University

The University of Paris Ouest Nanterre la Defense will host its third private international law workshop on 14 May 2014 at 6:30 pm.

Christophe Lapp (ALTANA Law firm) and judge Pauline Dubarry (French Central authority) will present on the taking of evidence abroad.

Dr François de Bérard (Nanterre University) will act as a discussant.