Book Launch: A Conceptual Analysis of European Private International Law
Dr. Felix M. Wilke (University of Bayreuth, Germany) recently published a new book titled “A Conceptual Analysis of European Private International Law”.
The 31st annual conference on private international law at the Swiss Institute of Comparative Law
This year’s Journée de droit international privé of the Swiss Institute of Comparative Law will be devoted to Interim Measures in International Commercial Litigation, and will take place on 23 May 2019, in Lausanne.
Speakers include George A. Bermann, Andrea Bonomi, Lawrence Boo, Sabine Corneloup, Gilles Cuniberti, Karim El Chazli, Sandrine Giroud, Laurent Hirsch, Alexander Layton, Ilaria Pretelli, and Gian Paolo Romano.
The detailed program, with further information on registration and fees, can be found here.
A King without Land – the Assignee under the Commission’s Proposal for a Regulation on the law applicable to the third-party effects of assignments of claims
Professor Dr. Robert Freitag, Friedrich-Alexander-University Erlangen, has kindly provided us with his thoughts on the proposal for a Regulation on Third-Party Effects of Assigment:
Article 14 para. (1) of Regulation Rome I subjects the relationship between assignor and assignee under a voluntary assignment of a claim to the law that applies to the contract between the assignor and assignee. Pursuant to recital (38) of the regulation, the relevant law is to govern the “property aspects of an assignment, as between assignor and assignee”. It is a much debated question whether article 14 para. (1) of Regulation Rome I also applies to the third-party effects of assignments, i.e. to “proprietary effects of assignments such as the right of the assignee to assert his legal title over a claim assigned to him towards other assignees or beneficiaries of the same or functionally equivalent claim, creditors of the assignor and other third parties” (for this definition see article 2 lit. (2) of the Commission’s 2018 proposal for a Regulation of the European Parliament and of the Council on the law applicable to the third-party effects of assignments of claims, COM(2018)096 final). Read more
Alan Uzelac on the current challenges to investor-state arbitration in Europe
Prof. Uzelac has published recently an article on the current challenges to investor-state arbitration in Europe. The article comes almost as a birthday present, to celebrate one year after the CJEU published its famous Achmea ruling. The summary of the article reads as follows:
This paper addresses the current challenges to investor-state arbitration in Europe. Two parallel developments are outlined: the current change in the EU policy towards arbitration provisions in multilateral and bilateral investment treaties, and the consequences of the Achmea case decided by the Court of Justice of the European Union in March 2018. The author analyses the critical arguments behind the current European anti-arbitration stance and concludes that while some of them (but not all) may have some foundation, a sufficient number of reasons speak against the radical dismantling of the system of international investment arbitration. An analysis of the proposed alternatives shows that they fail to deliver viable solutions for diagnosed problems. In particular, the replacement of ad hoc tribunals by a multilateral investment court (MIC) seems to be a step in the wrong direction. The ISDS has played an important role in the global fostering of international investment by securing a basically fair system of dispute resolution in a very specific field. Its deficiencies are not beyond repair; on the other hand, the alternatives offered suffer from flaws that are the same or much more troubling. The author concludes that the consequences of the ‘change of tide’ in the approach to investor-state dispute resolution are likely to be detrimental to the very goals of those who advocate the abandoning of investment arbitration.
The article was published in the journal Access to Justice in Eastern Europe (AJEE), and is available in full text here.
The meaning of economic freedoms of movement
Following a call for papers announced on this blog a few months ago, the University of Nice will host on 23 and 24 May 2019 a conference exploring the meaning of economic freedoms of movement (Le sense des libertés économiques de circulation).
The event, part of the IFITIS Project led by Jean-Sylvestre Bergé, is the third in a series of multidisciplinary, international and comparative doctoral workshops devoted to the study of movement phenomena.
The goal is to foster discussion on the capacity of the various disciplines represented (including law, economics, management, philosophy, sociology, history and computer science) to question the meaning – reasons for being, justifications, purposes – of economic freedoms of movement (free trade, international trade and European freedoms of movement).
Further information, including as regards registration, may be found here.
The Italian Supreme Court rules on the effects of the opposition to a European Order for Payment
In case of opposition to a European Order for Payment, Article 17 (1) of Regulation (EC) No 1896/2006 (latest consolidated version) states: “the proceedings shall continue before the competent courts of the Member State of origin unless the claimant has explicitly requested that the proceedings be terminated in that event. The proceedings shall continue in accordance with the rules of: (a) the European Small Claims Procedure laid down in Regulation (EC) No 861/2007, if applicable; or (b) any appropriate national civil procedure”.
Moreover: 1) the transfer to civil proceedings is governed by the law of the State where the order has been issued, 2) this law must not prejudice the claimant’s position in the subsequent proceedings, and 3) the claimant is to be informed both of the opposition and of any transfer to civil proceedings.
Recital 24 of Regulation (EC) No 1896/2006 makes it clear that the opposition leads “to an automatic transfer of the case to ordinary civil proceedings”, adding that “the concept of ordinary civil proceedings should not necessarily be interpreted within the meaning of national law”.
The effects of the opposition in the CJEU’s case-law
The CJEU in turn has consistently stressed, on the one hand, that Article 17 produces only said effects and, on the other hand, that the transfer to ordinary civil proceedings is automatic (13 June 2013, Case C-144/12, Goldbet, para. 31; see also 4 September 2014, Joined Cases C-119/13 and C-120/13, eco cosmetics, para. 38).
In Flight Refund (10 March 2016, Case C-94/14), the Court sketched a slightly different scenario when holding that “the proceedings automatically continue […] in the Member State of origin of the order […]”, but further confirming that the continuation occurs “in accordance with the rules of ordinary civil procedure […]” (para. 52; emphasis added).
No national provisions for the transfer: how to fill the gap according to the Italian Supreme Court
What seems definite from the foregoing is that, if the claimant were not to request the termination of the proceedings, the opposition triggers the transfer to ordinary national civil procedure (or to the European Small Claims Procedure) under the law of the Member State of origin.
But, what if the lex fori does not provide rules as to the transfer?
An answer comes from the Italian Supreme Court (Corte di Cassazione) in a recent judgment (31 January 2019 no 2840). Although the Corte di Cassazione has reasoned under the initial version of the Regulation (EC) No 1896/2006, it infers from this latter certain principles which may be also applied to the latest version.
The Italian Court holds, in fact, that the continuation of the proceedings is not a matter left to national law, but it is directly governed by the Regulation through the reference to the national provisions that apply to ordinary civil proceedings.
The Member State has to apply the ordinary, normal form of national proceedings which apply to the disputed claim as if the claimant resorted directly to them.
In case the national legal order lacks rules to govern the transfer and determine the specific ordinary civil proceeding triggered by the opposition, the Corte di Cassazione puts forward the following solution.
First, the judge who issued the order is entitled not only to inform the claimant of the opposition, but also to give him a term to bring the action under the ordinary procedural rules. Second, the claimant may choose, among the ordinary civil proceedings, those that better suit the claim for which he resorted to the European procedure.
The Regulation does not allow the judge to lead the transfer, especially by determining the national rules governing the ordinary proceeding.
On the contrary, a national rule in case the claimant does not comply with the term to bring the action exists whereby the proceeding is extinguished (Article 307 (3), Italian Code of Civil Procedure).
A new “choice” for the claimant
The Italian Supreme Court finds in the Regulation the ground for providing the claimant with a sort of “choice of proceedings”.
Recalling the emphasis that both the Regulation and the CJEU put on the automatism in the “continuation/transfer” to the ordinary civil proceeding, what automatically comes out from the judgment of the Corte di Cassazione seems such “choice of proceedings” rather than the very “continuation/transfer”.
Moreover, on closer inspection, since the would-be ordinary proceeding is extinguished if the claimant makes the term to bring the action expire, the real “choice” lies between the continuation or the termination of the whole proceeding.
Perhaps the “choice” is not well founded in the Regulation, but…
The Italian Supreme Court’s effort to counterweigh the lack of national provisions is certainly worthwhile. As is it that to forge the transfer regime in compliance with the Regulation.
However, just reasoning with the Regulation in mind, one may wonder whether the aforementioned “choice” is actually well founded.
According to the Italian Supreme Court, the Regulation entitles the claimant to “explicitly” choose what national proceeding is to be applied. Furthermore, even though the claimant has not explicitly requested under the Regulation to terminate the proceedings following the debtor’s opposition, he is again requested, this time under Italian law, to possibly reveal such willingness by making the term expire without bringing the action.
Where is in the Regulation the room for such “choices”? Actually, where is the room for “choices” other than that to explicitly oppose to the transfer?
These doubts increase under the latest version of the Regulation.
Pursuant to Article 7 (4), the claimant may indicate to the court “which, if any, of the procedures listed in points (a) and (b) of Article 17(1) he requests to be applied to his claim in the subsequent civil proceedings”, unless he indicates to the court that “he opposes a transfer to civil proceedings […] in the event of opposition by the defendant”.
Article 17, which gives the claimant the alternative between the European Small Claims Procedure and any appropriate national civil procedure, adds that where the claimant has not indicated one of these procedures (or he has requested the application of the European Small Claims Procedure to a claim that does not fall within the scope of Regulation (EC) No 861/2007), “the proceedings shall be transferred to the appropriate national civil procedure” (para. 2; emphasis added).
Consequently, the Appendix 2 to the Application for a European Order for Payment (form A) puts in the claimant’s hand the option to request: 1) the discontinuance of the proceedings, or 2) the continuation in accordance with the rule of the European Small Claim Procedure, if applicable, or 3) the continuation in accordance with any appropriate national civil procedure.
Once again, where is the room for “choices” other than that to explicitly oppose to the transfer, or to request that the proceedings be continued under the European Small Claim Procedure or under the appropriate national civil procedure? Moreover, may the judgment as to the “appropriateness” of the national civil procedure be left to the claimant? May it be left to him even when the request to apply the European Small Claim Procedure is ungrounded because the claim falls outside the scope of Regulation (EC) No 861/2007? Who decides about the lack of “appropriateness”? Accordingly, what happens in case the claimant brings an action for civil proceedings that are not “appropriate” or suitable for the claim he sought to satisfy through the European Order for Payment procedure?
…the “choice” logically is the best way not to prejudice the claimant
All things considered, a room in the Regulation (EC) No 1896/2006 seems to unfold more for further judge’s burdens than for further claimant’s “choices” when it comes to governing the transfer under Article 17 in absence of specific national provisions.
However, it’s worth recalling that Article 17 (3) provides that “where the claimant has pursued his claim through the European order for payment procedure, nothing under national law shall prejudice his position in subsequent civil proceedings”.
It goes without saying that the claimant is not prejudiced, but fully protected, if he may even choose the national civil proceedings after the debtor’s opposition and benefits from a second choice between continuing or terminating the whole proceeding.
What about the defendant?
Despite being inclined to safeguard the claimant, the Regulation pays close attention also to the rights of the defendant.
Therefore, it should not be underestimated, as a concluding remark, that “[i]n the European order for payment, the defendant shall be informed that […] where a statement of opposition is lodged, the proceedings shall continue before the competent courts of the Member State of origin in accordance with the rules of ordinary civil procedure […]” (Article 12 (4)(c)).
It is debatable whether, from the defendant’s standpoint, the “accordance” with the rules of ordinary civil procedure may also include – in the silence of the Regulation and in absence of national rules governing the transfer – the “accordance” with the claimant’s choice of the national procedure that the defendant may eventually undergo.
The doubts increase if one considers that, unlike the claimant, who would benefit from a series of choices, the defendant has only two means (except for the remedies) to impinge on the procedural destiny of the disputed claim (to pay the amount or to oppose the order), which both result in the European procedure’s closing.
Ultimately, the idea that the claimant may choose the national civil proceeding and profits from a second choice between continuing or terminating the whole proceeding seems to unbalance the position in which the Regulation has placed the claimant and the defendant after the order has been issued.
Diversity in Unity: The Succession Regulation in Hungary and Beyond – International conference and workshop on the EU Succession Regulation
On Friday, 12 April 2019, the EU Justice funded project GoInEu (Governing Inheritance Statutes after the Entry into Force of EU Succession Regulation) and the Hungarian Chamber of Civil Law Notaries’ will organize a conference and a workshop on the first three (and half) years of application of the EU Succession Regulation (650/2012/EU).
The conference and workshop will be held in Budapest (Hungary). The complete programme is available here.
Participation is free of charge. The conference language will be Hungarian, with simultaneous English translation.
Those who wish to attend are kindly requested to register by filling out the registration form available here.
For questions and inquiries please contact Ádám Fuglinszky (Eötvös Loránd University, Budapest) at fuglinszky@ajk.elte.hu.
It is possible! Another milestone for the Hague Conference: the Intercountry Adoption Convention has 101 Contracting Parties
Another HCCH Convention has recently reached the number of 100 Contracting Parties. In February and March 2019, two States joined the HCCH Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption (Intercountry Adoption Convention): Guyana (by accession) and Honduras (by ratification).
The Intercountry Adoption Convention will enter into force for Guyana and Honduras on 1 June 2019 and 1 July 2019, respectively. The status table is available here.
As announced, Guyana and Honduras are the first States in the Americas to become a party to all four modern HCCH Children’s Conventions. In addition to the Intercountry Adoption Convention, the other modern HCCH Children’s Conventions are:
- the HCCH Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (Child Abduction Convention);
- the HCCH 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 (Child Protection Convention); and
- the HCCH Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance (Child Support Convention).
There is also a Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations but neither of them is yet a party.
The other two Hague Conventions that have reached 100 or more Contracting Parties are the Child Abduction Convention (see my previous post here) and the HCCH Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (Apostille Convention). The latter has 117 Contracting Parties, the latest one being the Philippines (to enter into force on 14 May 2019 see here).
The HCCH news item is available here.
Conflictoflaws.net editor Ralf Michaels appointed Director of the Max Planck Institute Hamburg
We are happy to report that one of our editors, Ralf Michaels from Duke University, has been appointed a new Director of the Max Planck Institute for Comparative and International Private Law in Hamburg. Succeeding Prof. Dr. Dr. h.c. must. Jürgen Basedow, who retired in 2016, Ralf assumed the position part-time in January 2019 and will take on his duties full-time in summer 2019.
Congratulations!
For more on Ralf’s appointment and his research agenda see here.
Admissibility of a reference for a preliminary ruling regarding the issue of a certificate under Article 53 of Regulation No 1215/2012: On the legal nature of the judgment delivered
Case C-579/17
BUAK Bauarbeiter-Urlaubs- u. Abfertigungskasse v GRADBENIŠTVO KORANA
The CJEU published last week a judgment on a request for a preliminary ruling by the Vienna Labour and Social Security Court. The facts of the case are presented under recitals 21-31. The Austrian court referred the following question to the Court:
‘Is Article 1 of Regulation … No 1215/2012 … to be interpreted as meaning that proceedings involving the assertion of claims by [BUAK] for wage supplements against employers as a result of the posting to Austria of workers without a habitual place of work in Austria for the purposes of performing work or in connection with the hiring-out of workers, or against employers established outside Austria as a result of the employment of workers with a habitual place of work in Austria, constitute “civil and commercial matters” to which the aforementioned regulation applies, even where such claims by BUAK for wage supplements concern employment relationships governed by private law and serve to cover workers’ claims to annual leave and payment in respect of annual leave, governed by private law and arising from employment relationships with employers, but nevertheless
– both the amount of the workers’ claims against BUAK for annual leave pay and that of BUAK’s claims against employers for wage supplements are determined not by contract or collective bargaining agreement but, instead, by decree of a Federal Minister,
– the wage supplements owed by employers to BUAK serve to cover not only the expenses for the payment in respect of annual leave payable to workers but also BUAK’s expenses for administrative costs, and
– in connection with the pursuit and enforcement of its claims for such wage supplements, BUAK has more extensive powers by law than a private person, in that
– employers are required to submit reports to BUAK on specific occasions as well as at monthly intervals, using communication channels set up by BUAK, to take part in and allow BUAK’s inspection measures, grant BUAK access to wage and business records and other documents, and provide information to BUAK, failing which a fine may be imposed, and
– in the event that an employer breaches its obligations to provide information, BUAK is entitled to calculate the wage supplements owed by the employer on the basis of BUAK’s own investigations, whereby, in that case, BUAK has a claim for wage supplements in the amount calculated by BUAK, irrespective of the actual circumstances of the posting or employment?’
1. The admissibility of the request
Prior to answering the question referred, the Court examined the admissibility of the request. The novelty of the matter lies on the existence or non-existence of a judicial character for the issue of a certificate under Article 53 of Brussels I bis Regulation. In other words, the question was raised after the termination of the proceedings and the publication of the judgment. It came to the surface due to the reservations of the competent Austrian body to issue the above certificate, thus labelling the case with a civil or commercial nature. The answer was given in recital 41:
Consequently, the procedure for the issue of a certificate under Article 53 of Regulation No 1215/2012, 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.
2. On the civil or commercial nature of the dispute
Following the affirmative answer to the admissibility issue, the Court proceeded to the examination of the legal nature of the case at hand. Its analysis extends to recitals 46-64, wherefrom the following could be highlighted:
- The exercise of public powers by one of the parties excludes a case from civil and commercial matters within the meaning of Article 1(1) of Regulation No 1215/2012 [Recital 49].
- The CJEU held that the Austrian court’s powers were limited to a simple examination of the conditions for the application of Paragraph 33h (2b) of the BUAG, with the result that, if those conditions are satisfied, the court cannot carry out a detailed examination of the accuracy of the claim relied on by BUAK [Recital 57].
- In so far as Paragraph 33h (2b) of the BUAG places BUAK in a legal position which derogates from the rules of general law regulating the exercise of an action for payment, by attributing a constitutive effect to the determination by it of the claim and by excluding, according to the referring court, the possibility for the court hearing such an action to control the validity of the information on which that determination is based, it must be concluded that that body acted, in that case, under a public law prerogative of its own conferred by law [Recital 60].
- In such a case, BUAK should be considered to be acting in the exercise of State authority in the context of a dispute such as that which led to the judgment delivered on 28 April 2017, which would have a major influence over the modalities for the exercise of that procedure, and therefore over its very nature, such that that dispute does not come within the concept of ‘civil and commercial matters’ or, therefore, within the scope of application of Regulation No 1215/2012 [Recital 61].
The Court dedicated only six recitals for the concept of social security and its exclusion pursuant to Article 1(2) (c) Brussels I bis Regulation [Recitals 65-70], concluding that, on the basis of facts delivered, the case does not come within the concept of social security for the purposes of the provision aforementioned.
3. Some thoughts on the ruling
The significance of the judgment is self-explanatory: Unlike its predecessor, the certificate under Art. 53 Brussels I bis is one of the core documents needed for direct enforcement in the country of destination. The previous exequatur stage is abolished; hence, the issue on the legal nature of the case is transferred to the court which would try the application for refusal. Therefore, the decision of the Austrian court to refer the matter to the CJEU should be endorsed; the same goes for the position of the latter in regards to the admissibility issue.
The case resembles a recent judgment of the Thessaloniki Court of 1st Instance, which refused to grant exequatur to a German Notice of the National Association of Statutory Health Insurance Physicians against a doctor of Greek origin, active in the region of Rhineland-Palatinate. As in the case of the Austrian BUAK, the notice was issued ex parte, but no court proceedings ensued in the country of origin. Moreover, the German authorities issued a certificate without questioning the legal nature of the matter at hand. Given that the case fell under the scope of Brussels I Regulation, the Greek judge denied exequatur, stating that the above notice was of an administrative nature, thus falling out of the Regulation’s ambit. The case is published in its original text in: Armenopoulos 2018, pp. 812 et seq. It is also reported in a case note I prepared for the German journal Praxis des Internationalen Privat- und Verfahrensrechts, see: Nichtanwendung der EuGVVO 2001 auf den Bescheid einer deutschen kassenärztlichen Vereinigung in Griechenland – LG Thessaloniki, 19.12.2017 – 19865/2017, IPRax (forthcoming).