Isabel Rodríguez-Uría Suárez has just published a paper (click here) on the rules on the applicable law laid down by the Regulation 650/2012. The abstract of the paper, from the author, and different from the published version, reads as follows:

This paper analyzes the applicable law to the succession mortis causa as defined by the European Regulation on Succession. The general rules determining the lex successionis and the special rules setting out the applicable law to wills as well as the agreements as to succession are the main subject of this article. The scope of the aforementioned laws is also thoroughly analyzed.

On the upside, the author considers that the Regulation is an important improvement in the field of the international successions. She underlines the special features of the general rules laid down by the Regulation, and the special rules applicable to wills and to agreements as to succession. Furthermore the author highlights as extremely positive the distinction between agreements as to succession regarding the succession of one person and agreements as to succession regarding the succession of several persons. She also approves the flexibility of the general rules of the Regulation, welcoming the clause of exception to the more closely connected law, as well as the role played by the party autonomy. In respect to latter, the paper deals with the difference between professio iuris set out by art. 21, and the possibility of making a pactum de lege utenda according to art. 25.3. It is submitted that party autonomy should have been broader in its scope, and that the EU law maker has lost an opportunity to increase the role of the party autonomy, especially allowing a professio iuris to the law of the habitual residence of the deceased; this possibility would have been notably positive with regard to the agreements as to succession.

Notwithstanding her overall favourable assessment of the Regulation, the author is not blind to its downsides. Some options adopted in the Regulation are criticized in as far as they do not guarantee neither the predictability nor the legal certainty of estate planning: yet legal certainty is vital in this realm, especially when it comes to agreements as to successions, which require predictability from the very moment of their formal conclusion. In this sense, the classical approach adopted by the Regulation, placing the forced heirship under the scope of the lex successionis and fixing the lex successionis at the moment of demise (as a general rule), may give raise to several problems, which the paper analyzes in depth. The author assumes that the professio iuris would become the key factor providing the security essential to estate planning: but, as nobody can be forced to choose the law applicable to his or her succession, the possibility of coming up against problems of uncertainly (in short, the possibility that the will of the deceased be ruined by the forced heirship rules of a lex successionis unknown at the moment of the drawing up of the will or the agreement) remains open.

The paper has been drawn up as part of a global research project on succession law at comparative, international and inter-regional levels, sponsored by the Spanish Government. Linked to this same Project we have already given notice in a previous post of a paper on agreements as to successions according to the Proposal of Regulation on succession and wills. Other interesting publications related to the Project, on Forced Heirship in the Regulation on Successions and Wills, by Professor Álvarez González (abstract in English and full text in Spanish), and on the Proposal and the Spanish Interregional Law, by Isabel Rodríguez-Uría Suárez (abstract in English and full text in Spanish), can be found here and here.

Recently, the May/June issue of the German law journal “Praxis des Internationalen Privat- und Verfahrensrechts” (IPRax) was published.

• Christopher Selke: “Die Anknüpfung der rechtsgeschäftlichen Vertragsübernahme” – the English abstract reads as follows:

 More than fifty years after Konrad Zweigert’s essay on the applicable law to the assignment of contracts, some issues are still unsettled. The following article gives an overview of previous comments and focuses on the scope of application. It further emphasizes the crucial question, how to determine the applicable law in the case of a cross-border assignment of a contract. In this connection, the role of the principle of party autonomy shall be challenged more carefully than it has been in the past – which does not inevitably mean that it has to be completely dismissed. There just has to exist a subsidiary objective international private law rule in the case that the parties’ choice of law leads to difficulties. Therefore, this article concludes with a proposal for such a rule.

•  Wulf-Henning Roth: “Jurisdiction and Applicable Law in Cross-Border Defamation and Breach of Personality Rights”

 The article discusses the judgment of 25 October 2011, C-509/09 and C-161/10, eDate Advertising, in which the European Court of Justice clarifies two important issues of European private international law concerning cross-border injunctions and damages claims with regard to defamation and breach of personality rights on the internet. The first issue concerns the interpretation of Article 5 no. 3 of the Brussels I Regulation 44/2001/EC which establishes a special concurrent jurisdiction of the courts of the Member States in matters of tort liability. According to the Court, an applicant may bring an action before the court where the publisher is domiciled or before the courts of all Member States where the internet information is accessible, however restricted to the infringement of the personality rights in the relevant territory (“mosaic principle”). Alternatively, the applicant may also bring an action for an injunction or for all damages, incurred worldwide, before the court where he or she has his or her centre of interests. As for the applicable law concerning tort liability, the Court clarifies the intensely discussed meaning of Article 3 (1) and (2) of the e-commerce Directive 2000/31/EC. The Court holds that both provisions do not contain conflict of law rules. Rather, Article 3 (1) contains an obligation of the Member State where the internet provider has its seat of business to ensure that the internet provider complies with the national provisions applicable in that Member State. And Article 3 (2) allows that the Member States where the internet information is accessed may apply their own substantive law applicable to the infringement of personality rights, but not in such a way that the interstate provision of internet services is restricted.

•  Karl-Nikolaus Peifer: “International Jurisdiction and Applicable Law in Trademark Infringment Cases”

 The German Federal Court had to deal with questions of international jurisdiction and applicable law in a trademark infringement case based upon the broadcasting of an Italian game show which was available in Germany. The Court found that German courts had jurisdiction upon the case and might apply national trademark law because trademark interests were affected in Germany. The result is arguable. However, it demonstrates that even codified rules in IP-Law leave substantial insecurities with regard to international harmony as long as IP-laws have territorial reach only.

•  Oliver L. Knöfel: “The European Evidence Regulation: First Resort or Last?”

 In Continental Europe, treaties and other devices of judicial assistance in the obtaining of evidence abroad have traditionally been understood as tools to prevent intrusions into another State’s authority and territory. Today, there are diverging views as to whether or not the relevant legal instruments designed for civil and commercial matters, such as the Hague Evidence Convention and the European Evidence Regulation (Council Regulation [EC] No 1206/2001), have the quality of being exclusive, that is, the effect of barring any other means of gathering evidence abroad. The article reviews a judgment of the European Court of Justice (First Chamber) of 6 September 2012 (C-170/11), dealing with the mandatory or non-mandatory character of the European Evidence Regulation. The question at stake is whether a judge in a Member State must have recourse to the Regulation on each occasion that she wishes to take evidence that is situated in another Member State. The ECJ declared a Member State’s court free to summon a witness resident in another Member State to appear before it in accordance with the lex fori processus, that is, without recourse to the Evidence Regulation. The author analyses the relevant comity issues, explores the decision’s background in international law and in international procedural law, and discusses its consequences for the relationship to Third States, as well as for the traditional concept of judicial sovereignty.

•  Gerald Mäsch: “The “Equitable Life” 2002 Scheme of Arrangement in the German Federal Court of Justice”

 The German Federal Court of Justice’s IVth Senate, in its decision of 15 February 2012, took the view that the High Court sanction of the English Insurance Company Equitable Life’s 2002 voluntary solvent scheme of arrangement has no binding effect on a dissenting policy holder residing in Germany on the ground that art. 35 (1) and 12 of the Brussels I Regulation prevent its recognition. In this article, the author argues that, based on the European Court of Justice’s ruling in “Group Josi Reinsurance”, the Brussels I Regulation pro-visions on insurance contracts should instead be interpreted as not applying to collective procedures aiming at the financial redress of an insurance company where the individual policy holder’s inferior knowledge of insurance issues is irrelevant. The same interpretation applies – mutatis mutandis – for the consumer contract provisions (art. 35 (1), 15 Brussels I Regulation), whereas the position of the IVth Senate would make the restructuring of any English company by way of voluntary agreements under English law nearly impossible if a significant number of dissenting private investors from Germany is involved. The author calls upon German courts confronted with the issue of recognition of English solvent scheme of arrangements not to follow the IVth Senate but rather to seek a preliminary ruling by the ECJ.

•  Herbert Roth: “Problems concerning the certification as a European Enforcement Order under the regulation (EC) No 805/2004”

 The reviewed order of the German Federal Supreme Court (BGH) is dealing with the revocation of a German decision fixing costs of an interim prohibition procedure, which was certified as an European Enforcement Order by German authorities. Both the result as well as the legal reasoning must be criticized for the excessive requirements concerning the information on legal remedies and the wrongfully denied cure of non-compliance with minimum standards. On the other hand the order of the local Augsburg trial court (Amtsgericht) is rightfully based on prevailing opinion of scholars and courts demanding only the formal service of the foreign judgement to the debtor in accordance with § 750 German Civil Procedure Code as a prerequisite of the execution of an European Enforcement Order. By contrast the formal service of the certification as an European Enforcement Order itself is no mandatory requirement of the later execution.

•  Kurt Siehr: “Foreign Certificate of Succession for Estate in Germany?”

 A Turkish citizen passed away in Turkey. The deceased had a bank account with a German bank in Munich. The plaintiff, a son adopted by the deceased, presented to the bank a Turkish certificate of succession and asked for payment of the account. The certificate of succession mentioned the plaintiff as the only heir. The defendant bank declined to pay and asked for a German certificate of succession (§ 2369 BGB) which may be granted for that part of the estate which is located in Germany. The County Court of Munich gave judgment for the plaintiff. The Turkish certificate of succession has to be recognized under § 17 of the German-Turkish Succession Treaty of 1929 and the defendant is not allowed under principles of good faith to insist on the presentation of a German certificate of succession by the plaintiff.

The County Court decision has to be criticized. Certificates of succession in continental European law are quite different. The most advanced certificate is the German one which also served as a model for the European certificate of succession as adopted by the European Union in Articles 62 et seq. of the Succession Regulation of 2012. The Turkish certificate, as the Swiss one (as the model for the Turkish Civil Code), are not very well regulated and many questions are left open and have not yet been settled by the courts of these countries. Open is still the question whether a debtor of the estate can validly pay his debt to the person mentioned as heir in the Turkish certificate. This is different according to German law. The German certificate is issued by the probate court after diligent examination of the facts and, if issued, guaranties that the debtor may validly pay his debt to the person mentioned in the German certificate [§ 2367 BGB; similar Article 69 (3) Succession Regulation]. If it is not established without any doubt that a foreign certificate of succession has the same effect of a German one, the debtor in Germany of any claim of the estate of a foreigner may insist that a German limited certificate of succession (§ 2369 BGB) be presented by the collecting heir.

•  Götz Schulze/Henry Stieglmeier: “The State’s Right to succeed in shares of the inheritance – Qualification, Subrogation and ordre public”

 The State’s Right to succeed to shares of the inheritance asserted by the KG in the context of Russo-German relations has already been the subject of comment by Dörner (see: IPRax 2012, 235–238). As an additional point of analysis, in question here is the qualification of an undivided joint-inheritance of co-heirs (Miterbgemeinschaft) of an estate. It is our opinion that the portion of the estate subject to co-inheritance should share the conflict-of-law judgement applied to the whole estate. In the case of sale, this also applies to the subrogation of revenues accruing on the estate. Otherwise, the choice-of-law decision depends upon chance factors such as the number of heirs or the date of alienation of the estate. The portion of the estate subject to co-inheritance is therefore to be considered immovable property, which in the case of the KG would have led to a partial renvoi to German law. Furthermore, the KG’s judgement leads to the strange outcome that the USSR’s legal successor can exercise a State’s Right to succeed that it would not enjoy in either of the present-day jurisdictions. A nephew’s subjective right of inheritance, as that of an heir of the third order, is eliminated by an intertemporal referral to an earlier and then already controversial legal situation in the USSR. Ordre public can be set against an entrenchment of outdated judgements and ensure application of laws governing relatives’ inheritance rights in line with all the legal jurisdictions involved at the time of judgement.

•  Arkadiusz Wudarski/Michael Stürner: “Unconstitutional EU Secondary Legislation?”

 For the first time the Polish Constitutional Court had to decide whether it is competent to hear a complaint based on the alleged unconstitutionality of a provision of European secondary legislation. The claimant had contested as unconstitutional the procedure of exequatur in which a Polish court had declared enforceable a Belgian judgment in ex parte proceedings pursuant to Article 41 Brussels I Regulation. The Constitutional Court admitted the request in principle, but held that in the present case there was no violation of the relevant provisions of the Polish Constitution. The article explores whether there are other examples where EU secondary legislation in the field of international civil procedure might conflict with national constitutional law.

•  Brigitta Lurger: “The Austrian choice of law rules in cases of surrogate motherhood abroad – the best interest of the child between recognition, European human rights and the Autrian pro-hibition of surrogate motherhood”

In the first decision reviewed in this article the Austrian Constitutional Court (VfGH) held that a child born by a surrogate mother in Georgia/USA after the implantation of the ovum and sperm (embryo) of the intentional parents, an Austro-Italian couple living in Vienna, was the legal child of the intentional parents and not of the surrogate mother. The same result was achieved by the second VfGH decision reviewed here, in the case of a surrogate motherhood in the Ukraine. The intentional and genetic parents of the twins born by the Ukrainian surrogate mother were Austrians living in Austria.

This outcome is surprising, considering the Austrian legal provisions which forbid surrogate motherhood and determine that the legal mother is always the woman who gives birth to the child. In the first decision, the reasoning of the court focusses on the supposedly limited competence/scope of the Austrian rules which could not apply to “foreign” artificial procreation cases, the internationally mandatory character of the laws of Georgia and on the best interest of the child. In the second case, the court recognizes the Ukrainian birth certificate of the twins which was purportedly based on Ukrainian family law and argues that the application of Austrian substantive law to this case would violate Art. 8 ECHR and the principle of protection of the best interest of the child. In both cases, the Austrian Constitutional Court unjustifiedly avoids addressing the issue of non-conformity of the Austrian substantive rules on motherhood with Art. 8 ECHR.

The article tries to show that the result achieved by both decisions is correct, albeit the reasoning is flawed in many respects. It analyzes the conflict of laws problems arising in cases of Austrian intentional parents causing foreign surrogate motherhood on a general basis, and discusses the implications of European primary law (Art. 21 TFEU) and European human rights (Art. 8 ECHR). Even though present Austrian choice of law rules lead in most cases to the application of the Austrian “birth-motherhood rule”, the constitutional protection of private and family life by Art. 8 ECHR requires Austrian authorities to somehow “recognize” the legal family status acquired by a child and its intentional Austrian parents under the law of Georgia or the Ukraine where surrogate motherhood is legally permissible. The conformity of the birth-motherhood rule in domestic cases of surrogate motherhood (or in international cases where no “real” conflict of laws is present) with Art. 8 ECHR is questionable and should be re-viewed thoroughly by national courts and the ECHR.

•  Yuko Nishitani: “International Jurisdiction of Japanese Courts in Civil and Commercial Matters”

 This paper examines the 2011 reform of the Japanese Code of Civil Procedure (CCP), which introduced new provisions on international adjudicatory jurisdiction. After considering the salient features of major jurisdiction rules in the CCP, the author analyzes the regulation of international parallel litigations. The relevant rules of the Brussels I Regulation (Recast) are taken into consideration from a comparative perspective. In conclusion, the author points out that the basic structure of Japanese jurisdiction rules is in line with that of the Brussels I Regulation (Recast), whereas some important jurisdictional grounds clearly deviate from the latter.

•  Erik Jayme: “Glückwünsche für Fritz Schwind – Der Schöpfer des österreichischen Internationalen Privatrechts wird 100 Jahre alt”

•  Simon Laimer: “Richterliche Eingriffe in den Vertrag/L’intervention du juge dans le contrat”

The European Commission has issued last week a new Proposal for a Regulation of the European Parliament and of the Council on promoting the free movement of citizens and businesses by simplifying the acceptance of certain public documents in the european Union and amending Regulation (EU) No 1024/2012 (COM(2013) 228).

The proposal establishes a clear set of horizontal rules exempting public documents falling under its scope from legalisation or similar formality (Apostille). In (sic) also foresees simplification of other formalities related to the cross-border acceptance of public documents, namely of certified copies and certified translations. In order to guarantee the authenticity of public documents which circulate from one Member State to another, it introduces an effective and secure administrative cooperation based on the Internal Market Information System (“the IMI”), established by Regulation (EU) No 1024/2012 of the European Parliament and of the Council of 25 October 2012.15 The IMI includes also a functionality to maintain a repository of model templates of public documents used within the Single Market that can serve as first checking point of unfamiliar documents.

The proposal also establishes Union multilingual standard forms concerning birth, death, marriage, registered partnership and legal status and representation of a company or other undertaking. In addition, with the aim to further reduce the remaining translation requirements for EU citizens and businesses, such Union multilingual standard forms could be established at a later stage for public documents relating to name, parenthood, adoption, residence, citizenship and nationality, real estate, intellectual property rights and absence of a criminal record. The Union multilingual standard forms should not be mandatory but when used they
have the same formal evidentiary value as the simular public documents drawn up by the authorities of the issuing Member State.

The press release of the Commission can be found here.

H/T: Maarja Torga

Dean Symeon C. Symeonides (Willamette University – College of Law) has posted The Hague Principles on Choice of Law for International Contracts: Some Preliminary Comments  on SSRN.

This Article discusses The Hague Principles on Choice of Law for International Contracts, a new soft-law instrument recently adopted by the Hague Conference of Private International Law.

The Principles will apply to “commercial” contracts only, specifically excluding consumer and employment contracts. For this reason, the Principles adopt a decidedly liberal stance toward party autonomy, exemplified inter alia by a strong endorsement of non-state norms. Such a liberality would be unobjectionable, indeed appropriate, if a contract’s “commerciality” alone would preclude the disparity of bargaining power that characterizes consumer and employment contracts. The fact that — as franchise contracts illustrate — this is not always the case makes even more necessary the deployment of other mechanisms of policing party autonomy. The Principles provide these mechanisms under the rubric of public policy and mandatory rules, but their effectiveness is not beyond doubt.

The Principles are intended to serve as a model for other international or national instruments and as a guide to courts and arbitrators in interpreting or supplementing rules on party autonomy. Like other international instruments, the Principles are as good as the consensus of the participating delegations would allow. But the real test of success for these Principles depends not on academic approbation but on their reception by contracting parties, courts, and arbitrators. While it is too early to tell whether the Principles will pass this test, there is reason for optimism.

In any event, and regardless of whether they will be widely accepted, the Principles will enrich the quality of the international discourse by providing a guiding light in the search for proper solutions to the problems encountered in honoring, and defining the limits of, contractual choice of law in international contracts. This alone would be a significant contribution to the advancement of the art and science of law-shaping.

The Article is forthcoming in the American Journal of Comparative Law (Vol. 61, 2013) and, in French, in the Revue critique de droit international privé.

The latest issue of the Journal of Private International Law was just released.

Samuel Zogg, Accumulation of Contractual and Tortious Causes of Action under the Judgments Regulation 

This article examines jurisdictional issues under the Judgments Regulation in cases where a claimant alleges to have, from one and the same incident, a contractual and a tortious cause of action, both providing for full compensation. It analyses the relationship between Article 5(1) and 5(3); particularly, whether and to what extent these provisions are mutually exclusive and whether they provide for accessory jurisdiction for related claims. Furthermore, the question is raised whether the claimant is free to “choose” the jurisdictional rule by skilful drafting of his claim.

As far as the claimant is free to pursue his claims in different fora, questions of how to deal with such parallel proceedings are discussed; namely, whether lis pendens exists (Article 27) and whether Article 28 applies. After termination of such proceedings, delicate res judicata issues arise; particularly whether and to what extent a judgment on one claim precludes judgment on the other and, if not, how double satisfaction may be prevented.

Wenliang Zhang has published Recognition and Enforcement of Foreign Judgments in China: A Call for Special Attention to Both the “Due Service Requirement” and the “Principle of Reciprocity” in the last issue of the Chinese Journal of International Law.

Nowadays, recognition and enforcement of foreign judgments in China is gaining in practical significance. However, a “great wall” seems to have been erected against recognition and enforcement of foreign judgments in China. To make a breakthrough, the essentials for achieving recognition and enforcement of foreign judgments in China must be unveiled from a practical perspective rather than for purpose of purely theoretical analyses. Investigation into the representative cases in this regard shows that there are two requirements that are of Chinese courts’ first and foremost concern, namely the “principle of reciprocity” and the “due service requirement”. Special attention should be paid to both requirements informing the aforesaid cases. Satisfaction of these two requirements may well bring an anticipated recognition and enforcement of foreign judgments in China. As a necessity, applicants and foreign courts must enrich their knowledge of the Chinese law and judicial practice in this respect.

The Permanent Bureau of the Hague Conference on Private International Law is seeking to recruit a new Legal Officer.

He or she will have a law degree (Master of Laws, J.D., or equivalent), good knowledge of private international law as well as familiarity with comparative and civil law and will work primarily in the areas of international family law, child protection, and international litigation and be part of the legal team, under the direction of two First Secretaries supporting the relevant Hague Conventions and projects.

Duties will include comparative law research, preparation of research papers and other documentation, organisation and preparation of materials for publication, including The Judges’ Newsletter on International Child Protection, assistance in the preparation of and participation in conferences, seminars and training programmes, and such other work as may be required by the Secretary General from time to time.

The successful applicant will preferably be a French native speaker, or if not, will have full bilingual abilities in French, written and spoken language. He or she should have excellent knowledge of English. Knowledge of a third language (in particular Spanish) is an asset. He or she will be sensitive to different legal cultures. Experience in publishing / editing is a plus. He or she should work well in a team, be able to work in more than one area of law, and respond well to time-critical requests. Additional legal or academic work experience would be an advantage.

Type of appointment and duration: one-year contract, possibly renewable.

Starting date: 1 September 2013.

Grade (Hague Conference adaptation of Co-ordinated Organisations scale): A/1 subject to relevant experience.

Deadline for applications: 31 May 2013.

Applications should be made by e-mail, with Curriculum Vitae, letter of motivation and at least two references, to be addressed to the Secretary General, at: secretariat@hcch.net.

See below for an announcement regarding an extremely interesting conference on Non-State Law next week in Washington, DC

Symposium of the International Legal Theory Interest Group, titled “The Rise of Non-State Law”
May 2, 2013, 8:30 a.m. – 5:15 p.m.
ASIL Headquarters, Tillar House – 2223 Massachusetts Avenue, NW
Washington, DC 20008

Trends in legal philosophy, international law, transnational law, law & religion, and political science all point towards the increasing role played by non-state law in both public and private ordering. Indeed, numerous organizations, institutions, associations and groups have emerged alongside the nation-state, each purporting to provide their members with rules and norms to govern their conduct and organize their affairs. This International Legal Theory Interest Group Symposium aims to explore this Rise of Non- State Law by bringing together experts on international law, transnational law, legal theory and political philosophy to consider the growing impact of non-state law.

For full details, see this announcement (ASIL Flier).

The British Institute of International and Comparative Law will hold a seminar on Unilateral Jurisdiction and Arbitration Clauses, Valid or Not? on Wednesday 8 May 2013 from 17:15 to 19 pm.

This seminar examines so-called unilateral or asymmetric dispute resolution clauses, which oblige only one of the parties to bring their case in a specific court, while the other is free to select between different fora. Recently, the French Cour de Cassation has decided that this type of clause is invalid. Since, the validity of one-way jurisdiction clauses has been debated in various countries. The debate includes the question how hybrid arbitration clauses are to be assessed.
Speakers will discuss the French Supreme Court’s decision; the views of different Member States on the interpretation of Art. 23 Brussels I Regulation; the future of unilateral jurisdiction clauses; and the interpretation of hybrid arbitration clauses.

Chair:
Craig Tevendale, Partner, Herbert Smith Freehills

Speakers:
Professor Gilles Cuniberti, University of Luxemburg
Dr Maxi Scherer, Special Counsel, WilmerHale; Senior Lecturer, Queen Mary (London)
Professor Matthias Lehmann, University of Halle-Wittenber

For more information, see here.

On the basis of a ‘Letter of Employment’ dated 10 July 2004 and drafted in English, Mr Las, a Netherlands national resident in the Netherlands, was employed as Chief Financial Officer for an unlimited period by PSA Antwerp, a company established in Antwerp (Belgium) but part of a multinational group operating port terminals whose registered office is in Singapore. The contract of employment stipulated that Mr Las was to carry out his work in Belgium although some work was carried out from the Netherlands.

When he was dismissed, Mr Las challenged the validity of the Letter of Employment on the ground of a 1973 Belgian Decree on Use of Languages, which provides:

Article 1 – This decree is applicable to natural and legal persons having a place of business in the Dutch-speaking region. It regulates use of languages in relations between employers and employees, as well as in company acts and documents required by the law.

Article 2 – The language to be used for relations between employers and employees, as well as for company acts and documents required by law, shall be Dutch.

Article 10 – Documents or acts that are contrary to the provisions of this Decree shall be null and void. The nullity shall be determined by the court of its own motion. (…) A finding of nullity cannot adversely affect the worker and is without prejudice to the rights of third parties. The employer shall be liable for any damage caused by his void documents or acts to the worker or third parties.

Is this Belgian Decree contrary to the freedom of movement of workers in the European Union?

Yes it is, the Grand Chamber of the European Court held on April 16th in Anton Las v. PSA Antwerp NV (case C 202/11).

This is because “such legislation is liable to have a dissuasive effect on non Dutch speaking employees and employers from other Member States and therefore constitutes a restriction on the freedom of movement for workers.”

Of course, the Court held, the “objective of promoting and encouraging the use of Dutch, which is one of the official languages of the Kingdom of Belgium, constitutes a legitimate interest which, in principle, justifies a restriction on the obligations imposed by Article 45 TFEU.”

But this legislation is not proportionate to those objectives. ” [P]arties to a cross-border employment contract do not necessarily have knowledge of the official language of the Member State concerned. In such a situation, the establishment of free and informed consent between the parties requires those parties to be able to draft their contract in a language other than the official language of that Member State.”

Ruling:

Article 45 TFEU must be interpreted as precluding legislation of a federated entity of a Member State, such as that in issue in the main proceedings, which requires all employers whose established place of business is located in that entity’s territory to draft cross-border employment contracts exclusively in the official language of that federated entity, failing which the contracts are to be declared null and void by the national courts of their own motion.