We should have reported earlier about this interesting judgment of the European Court of Human Rights of June 29th, 2011 (Sabeh El Leil v. France), where the Great Chamber of the Court ruled that France violated Article 6 of the European Convention by failing to give access to a court to an ex-employee of the Koweiti embassy in Paris suing his employer after it had dismissed him in 2000.

The ECHR had already ruled a year before in Cudak v. Lithuania that while sovereign immunities coud justify limiting the right to access to courts, preventing employees of embassies from suing their employers was a disproportionate limitation to their right when they were neither diplomatic or consular staff, nor nationals of the foreign states, and when they were not performing functions relating to the sovereignty of the foreign state.

In Sabeh El Leil, the French Courts had mentioned that the employee had “additional responsabilities” which might have meant that he was involved in acts of government authority of Koweit. The European court finds that the French courts failed to explain how it had been satisfied that this was indeed the case, as the French judgements had only asserted so, and had not mentioned any evidence to that effect.

Here are extracts of the Press Release of the Court:

An accountant, fired from an embassy in Paris, could not contest his dismissal,in breach of the Convention

Principal facts

The applicant, Farouk Sabeh El Leil, is a French national. He was employed as an accountant in the Kuwaiti embassy in Paris (the Embassy) as of 25 August 1980 and for an indefinite duration. He was promoted to head accountant in 1985.

In March 2000, the Embassy terminated Mr Sabeh El Leil’s contract on economic grounds, citing in particular the restructuring of all Embassy’s departments. Mr Sabeh El Leil appealed before the Paris Employment Tribunal, which awarded him, in a November 2000 judgment, damages equivalent to 82,224.60 Euros (EUR). Disagreeing with the amount of the award, Mr Sabeh El Leil appealed. The Paris Court of Appeals set aside the judgment awarding compensation. In particular, it found Mr Sabeh El Leil’s claim inadmissible because the State of Kuwait enjoyed jurisdictional immunity on the basis of which it was not subject to court actions against it in France.

Complaints, procedure and composition of the Court

Mr Sabeh El Leil complained that he had been deprived of his right of access to a court in violation of Article 6 § 1 of the Convention, as a result of the French courts’ finding that his employer enjoyed jurisdictional immunity.

The application was lodged with the European Court of Human Rights on 23 September 2005 and declared admissible on 21 October 2008. On 9 December 2008, the Court’s Chamber relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected.

Decision of the Court

Access to a court (Article 6 § 1)

Referring to its previous case-law, the Court noted that Mr Sabeh El Leil had also requested compensation for dismissal without genuine or serious cause and that his duties in the embassy could not justify restrictions on his access to a court based on objective grounds in the State’s interest. Article 6 § 1 was thus applicable in his case.

The Court then observed that the concept of State immunity stemmed from international law which aimed a promoting good relations between States through respect of the other State’s sovereignty. However, the application of absolute State immunity had been clearly weakened for a number of years, in particular with the adoption of the 2004 UN Convention on Jurisdictional Immunities of States and their Property. That convention had created a significant exception in respect of State immunity through the introduction of the principle that immunity did not apply to employment contracts between States and staff of its diplomatic missions abroad, except in a limited number of situations to which the case of Mr Sabeh El Leil did not belong. The applicant, who had not been a diplomatic or consular agent of Kuwait, nor a national of that State, had not been covered by any of the exceptions enumerated in the 2004 Convention. In particular, he had not been employed to officially act on behalf of the State of Kuwait, and it had not been established that there was any risk of interference with the security interests of the
State of Kuwait.

The Court further noted that, while France had not yet ratified the Convention on Jurisdictional Immunities of States and their Property, it had signed that convention in 2007 and ratification was pending before the French Parliament. In addition, the Court emphasised that the 2004 Convention was part of customary law, and as such it applied even to countries which had not ratified it, including France.

On the other hand, Mr Sabeh El Leil had been hired and worked as an accountant until his dismissal in 2000 on economic grounds. Two documents issued concerning him, an official note of 1985 promoting him to head accountant and a certificate of 2000, only referred to him as an accountant, without mentioning any other role or function that might have been assigned to him. While the domestic courts had referred to certain additional responsibilities that Mr Sabeh El Leil had supposedly assumed, they had not specified why they had found that, through those activities, he was officially acting on behalf of the State of Kuwait.

The Court concluded that the French courts had dismissed the complaint of Mr Sabeh El Leil without giving relevant and sufficient reasons, thus impairing the very essence of his right of access to a court, in violation of Article 6 § 1.

Just satisfaction (Article 41)

The Court held, by sixteen votes to one, that France was to pay Mr Sabeh El Leil 60,000 euros (EUR) in respect of all kind of damage and EUR 16,768 for costs and expenses.

The Hague Conference has announced that the Hague Prize for International Law 2011 will be awarded to Professor Paul Lagarde “in view of [his] outstanding contribution to the study and promotion of private international law”.

The Hague Prize for International Law 2011 will be awarded to Professor Paul Lagarde, expert, delegate, chairman and reporter for the Hague Conference, “in view of [his] outstanding contribution to the study and promotion of private international law”.

This prestigious prize was established in 2002 by the municipality of The Hague and is awarded by an independent foundation, the Hague Prize Foundation, “to physical persons and/or legal persons who – through publications or achievements in the practice of law – have made a special contribution to the development of public international law and/or private international law or to the advancement of the rule of law in the world”. The prize consists of a medal of honour, a certificate and a monetary amount of € 50,000.

The first recipient of the prize was Professor Shabtai Rosenne (2004), Professor M. Cherif Bassiouni received the prize in 2007 and in 2009 the prize was awarded to Dame Rosalyn Higgins.

The ceremony will take place on 21 September 2011 at the Peace Palace in The Hague.

Paul Lagarde taught at the university of Paris I (Panthéon-Sorbonne) from 1971 to 2001. He is the co-author of a leading treaty of French private international law (with Henri Batiffol).

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

Here is the contents:

• Catrin Behnen: “Die Haftung des falsus procurator im IPR – nach Geltung der Rom I- und Rom II-Verordnungen” – the English abstract reads as follows:

The extensive reform of the international law of obligations by the Rome I and Rome II-Regulations raises the question of the future classification of the liability of the falsus procurator under international private law. Since the new regulations entered into force, the problem of classification has not only arisen at national law level, but also at the level of European Union Law. Most importantly, it must be questioned, whether the new Regulations contain overriding specifications regarding the classification of the liability of the falsus procurator that are binding for the Member States. This article discusses the applicable law on the liability of an unauthorised agent and thereby addresses the issue of whether normative requirements under European Union law are extant. Furthermore, the Article illustrates how the proposed introduction of a separate conflict of laws rule on the law of agency in the Draft Rome I-Regulation impinges on this question, even though this rule was eventually not adopted.

•  Ansgar Staudinger: “Geschädigte im Sinne von Art. 11 Abs. 2 EuGVVO” – the English abstract reads as follows:

 The present essay discusses the decision of the European Court of Justice in the case of Voralberger Gebietskrankenkasse/WGV-Schwäbische Allgemeine – C-347/08. In this case, the court was concerned with the question whether, under Article 11 Paragraph 2 of the Council Regulation (EC) No. 44/2001 of 22 December 2001 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters a social insurance agency acting as the statutory assignee of the rights of the directly injured party has the right to bring an action directly against the insurer in the courts of its own Member State. The ECJ denies such a privilege, which is the correct decision in the author’s opinion, who, after having reviewed the ECJ’s judgement, also discusses the assignability of the decision to other conventions. Afterwards he raises the question to what extent legal entities, heirs or persons who claim compensation for immaterial damages, damages resulting of shock or alimony are allowed to sue the injuring party’s insurer at their own local forum.

•  Maximilian Seibl: “Verbrauchergerichtsstände, vorprozessuale Dispositionen und Zuständigkeitsprobleme bei Ansprüchen aus c.i.c.” – the English abstract reads as follows:

The article firstly deals with the question as to whether and to what extent international jurisdiction can be affected by pre-trial dispositions regarding the asserted claim by the parties to a lawsuit. Secondly, it examines the consequences resulting from the new EC Regulations Rome I and Rome II to the classification of claims out of culpa in contrahendo in terms of international jurisdiction. The background of the article consists of two decisions, one by the OLG (Higher Regional Court) Frankfurt/Main and one by the OLG München. The former concerned a case in which the defendant had pursued commercial resp. professional activities in the Member State of the consumer’s domicile in accordance with Art. 15 sec. 1 lit. c) of the Brussels I Regulation at the time he concluded a contract with a consumer, but had ceased to do so before he was sued for damages in connection with the very contract. The latter – against which an appeal has meanwhile been dismissed by the BGH (German Federal High Court of Justice), cf. BGH, 10.2.2010, IV ZR 36/09 – concerned a case in which the party of a consumer contract had assigned his claim based on culpa in contrahendo to the plaintiff, so that the plaintiff could file a lawsuit against the other party of the contract. Here the question arose as to whether or not the jurisdiction norm of § 29a ZPO (German Code of Civil Procedure) – which provides a special forum for cases concerning consumer contracts negotiated away from business premises – was also applicable, if the plaintiff was not the person who had concluded the contract. The OLG München negated this question. Apart from that the court decided that jurisdiction in this case could not be based on § 29 ZPO which provides a special forum at the place of the performance of the contract, either. This part of the decision gives reason to the examination as to whether or not all claims based on culpa in contrahendo can still be subsumed under § 29 ZPO. Since these claims are now subject to Art. 12 of the Rome II Regulation, it appears to be doubtful whether the traditional German classification of culpa in contrahendo as a contractual claim in terms of jurisdiction can be upheld.

•  Ivo Bach: “Die Art und Weise der Zustellung in Art. 34 Nr. 2 EuGVVO: autonomer Maßstab versus nationales Zustellungsrecht” – the English abstract reads as follows:

 Article 34 (2) Brussels I in principle allows courts to deny recognition and enforcement of a foreign (default) judgment when the defendant was not served with the document which instituted the proceedings “in a sufficient time and in such way as to enable him to arrange for his defence”. As an exception to this principle, courts must not deny recognition and enforcement if the defendant failed to challenge the judgment in the country of origin. In its decision of 21 January 2010, the German Bundesgerichtshof (BGH) dealt with both aspects of Art. 34 (2) Brussels I. Regarding the defendant’s obligation to challenge the judgment, the BGH – rightfully – clarified that the obligation exists even when the defendant does not gain knowledge of the judgment before the enforcement proceedings. In such a case the defendant may request a stay of the enforcement proceedings while challenging the judgment in the country of origin. Regarding the time and manner of the service, the BGH relied on the formal service requirements as provided in the German code of civil procedure (ZPO) – Germany being the country where service was effected. The latter part of the decision calls for criticism. In this author’s opinion, in interpreting Art. 34 (2) Brussels I courts should not rely on national rules, but rather should look to autonomous criteria. As regards the manner of service, such autonomous criteria may be taken from the minimum standards-catalogue in Arts. 13 and 14 EEO.

•  Rolf A. Schütze: “Der gewöhnliche Aufenthaltsort juristischer Personen und die Verpflichtung zur Stellung einer Prozesskostensicherheit nach § 110 ZPO” – the English abstract reads as follows:

 Under § 110 ZPO (German Code of Civil Procedure) the court – on application of the defendant – has to make an order for security for costs if the claimant is resident abroad but not resident in an EU or EWR Member State. The ratio of this provision is that the defendant who successfully defends a baseless claim should be able to enforce a cost order against the claimant. Residence means the place where a person habitually and normally resides. The decision of the Oberlandesgericht Munich rules that a company (or other legal entity) is ordinarily resident in a place if its centre of management is at that place. Whilst the former Reichsgericht and the Bundesgerichtshof rule that the amount of the security must cover the possible claim of the defendant for recompensation of costs for all possible instances, the Oberlandesgericht Munich states that only the costs for the current instance and the appeal up to the time when the defendant can file a new application for security can be included in the calculation. The decision in both of its aspects is in accordance with the ratio of § 110 ZPO.

•  Peter Mankowski/Friederike Höffmann: “Scheidung ausländischer gleichgeschlechtlicher Ehen in Deutschland?” – the English abstract reads as follows:

Same-sex marriages are on the rise if seen from a comparative perspective. In contrast, German constitutional law strictly reserves the notion of “marriage” to a marriage celebrated between man and woman. This must also have its impact in German PIL. Same-sex marriages are treated like registered partnerships and subjected to the special conflicts rule in Arts. 17b EGBGB, not to the conflicts rules governing proper marriage as contained in Art. 13–17 EGBGB. Hence, a proper divorce of a same-sex marriage can as such not be obtained in Germany but ought to be substituted with the dissolution of the registered partnership inherent in the so-called “marriage”. Although theoretically a principle of recognition might be an opportunity (if one succumbs to the notion of such principle at all), the limits of such recognition would be rather strict in Germany nonetheless.

•   Alexander R. Markus/Lucas Arnet: “Gerichtsstandsvereinbarung in einem Konnossement” – the English abstract reads as follows:

 In its decision 7 Ob 18/09m of 8 July 2009 the Austrian Supreme Court of Justice (Oberster Gerichtshof, OGH), judged as substance of the case, the validity of an agreement conferring jurisdiction incorporated in a bill of lading, its character as well as its applicability to a civil claim for damages resulting from a breach of the contract of carriage on which the bill of lading was based. Aside from that, questions concerning the relation between the Lugano-Convention (LC) and the Brussels I Regulation arise in this judgement. An agreement conferring jurisdiction included in a bill of lading issued unilaterally by the carrier fulfils the requirements established in art. 17 par. 1 lit. c LC since in the international maritime trade the incorporation of agreements conferring jurisdiction in bills of lading can clearly be considered to be a generally known and consolidated commercial practice. Concerning the (non-)exclusivity of the agreement conferring jurisdiction (art. 17 par. 1/par. 4 LC) the OGH makes a distinction from its earlier case law and bases the decision on the European Court of Justices judgement of 24 June 1986, case 22/85, Rudolf Anterist ./. Credit Lyonnais. According to the in casu applicable Swiss Law the prorogatio fori in the bill of lading covers the contract of carriage as well, although in principle the contract does not depend on the bill of lading. Lastly, to identify the relation between the LC and the Brussels I Regulation, the analogous application of art. 54b par. 1 LC is decisive.

•   Götz Schulze: “Vorlagebeschluss zur intertemporalen Anwendung der Rom II-VO” – the English abstract reads as follows:

The Engl. High Court in Homawoo v. GMF has referred the question concerning the interpretation of Art. 31 and 32 of the Rome II-Regulation to the European Court of Justice for ay Preliminary Ruling according to Art. 267 TFEU. Judge Slade recommends to specify Art. 31 Rome II-Regulation (entry into force) by the date of application on 11 January 2009 set out in Art. 32 Rome II-Regulation. Judge Tomlinson in Bacon v. Nacional Suiza prefers a strict literal interpretation with an entry into force on 20 August 2007 and a procedural understanding of Art. 32 Rome II-Regulation.

•   Bettina Heiderhoff: “Neues zum gleichen Streitgegenstand im Sinne des Art. 27 EuGVVO” –  the English abstract reads as follows:

 The Austrian High Court (OGH) found that two actions do not involve the same cause of action when an identical claim is based on two different rules from different national laws and these rules stipulate different requirements. The decision is in conformity with the Austrian dogma that identity of the actions and lis pendens do not apply where a party bases a second claim on new facts. In other words, the identity of the cause of action depends on the facts presented to the court, unlike in Germany where the identity depends on the objective factual situation, no matter whether the claimant has presented all facts to the court in the first action or not. This Austrian point of view threatens uniform jurisdiction in the EU. It allows repetitive actions in different member states and, consequently, may lead to contradicting judgements. It encourages forum shopping. Therefore, it is a pity that the OGH did not present the case to the ECJ under Art. 267 TFEU.

•  Carl Friedrich Nordmeier: “Divergenz von Delikts- und Unterhaltsstatut bei tödlich verlaufenden Straßenverkehrsunfällen: österreichischer Trauerschadensersatz und brasilianisches pretium doloris vor dem Hintergrund der Europäisierung des Kollisionsrechts” – the English abstract reads as follows:

 Claims for compensation based on the loss of a maintenance debtor in transborder cases demand the coordination of the law applicable to tort and the law applicable to maintenance obligations. In the present case of the Austrian Supreme Court (Oberster Gerichtshof), concerning a fatal traffic accident in Austria, whose victims were Brazilian nationals, Austrian tort law and Brazilian maintenance law had to be applied. From the Austrian perspective, the Hague Convention on the Law Applicable to Traffic Accidents has priority over the national conflict of law rules and over the Rome II Regulation. This raises questions relating to the possibility of a choice of law in cases that fall within the scope of application of the Convention. Austrian law does not provide a pension for the compensation of grief suffered by relatives of a victim of a fatal traffic accident. A pretium doloris of the Brazilian law is to be qualified as a question of tort and was rightly not awarded.

•  Arkadiusz Wowerka: “Polnisches internationales Gesellschaftsrecht im Wandel” – the English abstract reads as follows:

 The Polish applicable international private law provides no specific regulations on the international private law of companies. Also the judicature has up till now delivered no decisions in this matter. The essential principles of the international private law of the companies were developed by the doctrine. Within the frame of the planned reform of the international private law the government has presented the draft of a new regulation on the international private law which, with its provisions on the legal entities and organised entities, should fill the current gap in the subject area. The present article gives an overview on the autonomous international private law of the companies and its current evolution, dealing with the issues of the definition of the company, rules for determination of the law governing the companies, scope of the law governing the companies and finally the question of recognition of companies, in each case with references to the proposals of the government draft regulation.

•  Christel Mindach: “Anerkennung und Vollstreckung von Drittlandsschiedssprüchen in Handelssachen in den GUS-Mitgliedstaaten” – the English abstract reads as follows:

 After the collapse of the Soviet Union, the newly founded States, establishing the Commonwealth of Independent States (CIS), had to build a completely new legal system. Quite naturally the legislation of international commercial arbitration played a secondary role during the first years of transformation, apart from the CIS Members Russia, Ukraine and Belarus. In the course of legislation process the most CIS States couldn’t base on own legal traditions or experiences in this field. This insufficient situation changed in principle only just, when these States decided about the accession to the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards. With the exemption of Tajikistan and Turkmenistan the New York Convention came in force for all CIS Members in the meantime. The following article describes in a concise manner some of the fundamental requirements for the recognition and enforcement of foreign arbitral awards in commercial matters rendered in the territory of a State other than a CIS State under the appropriate national laws of CIS States including the procedure of compulsory enforcement.

•   Erik Jayme on the conference on the Proposal for a Regulation 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, which took place in Vienna on 21 October 2010: “Der Verordnungsvorschlag für ein Europäisches Erbkollisionsrecht (2009) auf dem Prüfstand – Tagung in Wien” 
•  Stefan Arnold: “Vollharmonisierung im europäischen Verbraucherrecht – Tagung der Zeitschrift für Gemeinschaftsprivatrecht (GPR)” – the English abstract reads as follows:

 On the 4th and 5th of June 2010, the Zeitschrift für Gemeinschaftsprivatrecht (Journal for EU-Private Law, JETL) and the Frankfurter Institut für das Recht der Europäischen Union (Frankfurt Institute for the Law of the European Union, FIREU) hosted a conference on „Full Harmonisation in European Consumer Law“ at the Europa-Universität in Frankfurt (Oder). Prof. Dr. Michael Stürner (Frankfurt/Oder) had invited to the conference. The speakers addressed not only the concept of full harmonisation but also the European framework for the harmonisation of Private Law and the consumer protection achieved by the the rules on Conflict of Laws. Moreover, the Draft Common Frame of Reference and the effect of full harmonisation on specific fields of law were discussed. The participants also debated the practical effects of possible full harmonisation measures.

•  Erik Jayme on the congress in Palermo on the occassion of the bicentenary of Emerico Amari’s birth: “Rechtsvergleichung und kulturelle Identität – Kongress zum 200. Geburtstag von Emerico Amari (1810–1870) in Palermo”

The French Supreme Court for private and criminal matters (Cour de cassation) has delivered yesterday three judgments which ruled that foreign surrogacy agreements violate French public policy.

In each of the three cases, the child or children were born in a state of the United States where the practice was lawful (MN twice, CA once). In a common press release, the Cour de cassation explained that it was faced with two issues: 1) did the American judgments violate public policy, and 2) if so, should they be nevertheless recognised as a consequence of rights of the French couple and of the children afforded by international conventions. All three judgments gave the same reasons: 

1. The foreign (ie American) birth certificate could not be mentioned in the French civil status registry.
2. The reason why was that the foundation of the birth certificate was a foreign judgment which violated French public policy.
3. Under present French law (“en l’état du droit positif“), surrogacy agreements violate a fundamental principle of French law.
4. The fundamental principle of French law is the principle that civil status is inalienable. Pursuant to this principle, one may not derogate to the law of parenthood by contract (see Art. 16-7 and 16-9 of the Civil Code).
5. This outcome does not violate Article 8 of the European Convention of Human Rights, as the children have a father in any case (ie the biological father), a mother under the law of the relevant US state, and may live together with the French couple in France. 
6. This outcome does not violate either Article 3-1 of the New York Convention on the Rights of the Child and the best interest of the child rule (no reason given for this statement)

We had already reported on one of the three cases, where the California judgment had first been recognised by the Paris Court of appeal. The Cour de cassation had then allowed an appeal against this decision on a procedural point. A second Court of appeal judgment followed, which held that the American judgment violated French public policy. This new judgment of the Cour de cassation dismisses an appeal against this second jugdment of another division of the Paris Court of appeal. 

Needless to say, the couple (picture) is not happy about this decision. They claim that the judgment ignores the best interest of the child. They challenge the fact that the children may live in France, as, it is argued, they would not be granted French citizenship in the absence of mention in the French civil status registry. The couple has already announced that they intend to initiate proceedings before the European Court of Human Rights.

The last issue of the Revue critique de droit international privé was just released. It contains two articles and several casenotes. The full table of content can be found here.

In the first article, Dr. Marius Kohler and Dr. Markus Buschbaum discuss the concept of recognition of authentic instruments in the context of cross-border successions (La « reconnaissance » des actes authentiques prévue pour les successions transfrontalières. Réflexions critiques sur une approche douteuse entamée dans l’harmonisation des règles de conflits de lois). The English abstract reads:

However advantageous the introduction of a European inheritance certificate may be, as envisaged by the Commission’s proposed Regulation on international successions, it is in its current form likely to create friction because of the way in which it organises the relationship with national inheritance certificates. It would therefore be wise to restrict the use of the European certificate to international successions, where it could then be drafted on basis of the national one, and to limit its effects to the Member States of destination. Moreover, as far as the free circulation of authentic instruments in general is concerned, the Regulation raises serious misgivings as to the use made by the proposal of the concept of mutual recognition. It appears that this concept – appropriate as it is for judicial decisions – is unsuitable to promote the circulation of authentic instruments.

In the second article, Professor Malik Laazouzi, who teaches at St Etienne University, discusses the impact of the recent Inserm decision of the French Tribunal des conflits (a translation of which can be found here) on choice of law in administrative contracts (L’impérativité, l’arbitrage international des contrats administratifs et le conflit de lois. A propos de l’arrêt du Tribunal des conflits du 17 mai 2010, Inserm c/ Fondation Saugstad). I am grateful to the author for providing the following summary:

The Inserm case deals primarily with international arbitration issues. But the way of reasoning used to decide the case could also interfere with the handling of public law matters involving French public entities in private international law by French jurisdictions.

How did the issue occur ?

A French public law entity (Inserm) entered into a contract with a Norwegian Fondation (Letten F. Sugstad) in order, inter alia, to achieve the implementation of a research facility in France, including a construction project. An arbitration occurred to decide over the termination of the agreement by the Fondation. The arbitral award, rendered in France, dismissed Inserm’s claims. The French entity then applied to set aside the award simultaneously before french civil and administrative courts. To assert the jurisdiction of the letter, Insermargued that the dispute arose out of a French administrative contract.

The case has given rise to the intricate issue of allocation of jurisdiction between civil and administrative courts. As a matter of consequence, it has been brought before the Tribunal des conflits.

The question which the Tribunal des conflits had to solve is complicated to enunciate. Which one of the French civil or administrative courts have jurisdiction to set aside an international arbitral award rendered in France, in a dispute arisen out of the performance or termination of a contract to be performed on the French territory and entered into between a French public law entity and a foreign individual or entity ?

The Tribunal des conflits decided, on 17 may 2010, that the application to set aside the award in such a case is to be brought before civil courts, even if the contract is an administrative one under French law. This solution allows an exception when the contract entered into by a french public entity is governed by a mandatory administrative regime. In this particular case, administrative courts retain jurisdiction to decide over challenges to the arbitral award.

This decision is strictly limited to some international arbitration matters involving a contract entered into by a french public entity. When it is not the case – i.e. when no french public entity is involved – French administrative courts does not intervene at all.

This case is worth mentioning within the field of private international law. The distinction it introduces between mandatory and non mandatory administrative rules in the international arena could reshape the very idea of the split in methods to solve conflict of laws issues according to the public or private law nature of the rules at stake.

On March 1, 2011,  the ICCS Convention No. 29 on the recognition of decisions recording a sex reassignment, adopted by the Lisbon General Assembly on 16 September 1999, and signed at Vienna on September 12, 2000, will enter into force. Two States have so far ratified the Convention:  Spain in October 2010, and the Netherlands in 2004.

Under the Convention final court or administrative decisions recording a person’s sex reassignment issued by the competent authorities in a Contracting State shall be recognized in other Contracting States, when at the time when the application was made the applicant was national or habitually resident in the State in which the decision was taken.

There are three exceptions to this rule:

– if the physical adaptation of the person concerned has not been carried out and has not been recorded in the decision in question

– recognition is contrary to public policy in the required Contracting State

– the decision has been obtained by fraudulent means

The State which recognizes a resolution pursuant to the Convention shall update  the birth certificate of the person concerned, on the basis of the resolution and in the manner prescribed by its domestic law.

On December 14th, 2010, the European Commission issued a Green Paper exploring whether the circulation of public documents should be simplified: Less Bureaucracy for Citizens: Promoting Free Movement of Public Documents and Recognition of the Effects of Civil Status Records.

Here are some of the possible reforms discussed by the Green Paper.

Public documents:

a) The abolition of administrative formalities for the authentication of public documents

The administrative formalities relating to the presentation of public documents, originally based on consular and intergovernmental practices, are still causing problems for European citizens and no longer meet the requirements or correspond to the state of development of contemporary society, in particular in an area of common justice.

The need for these formalities, which are not suitable for relations between Member States based on mutual trust or for increased mobility of citizens, can legitimately be questioned.
(…)

b) Cooperation between the competent national authorities

The abolition of administrative formalities could be accompanied by cooperation between the competent national authorities.
(…)

c) Limiting translations of public documents

In parallel with the administrative formalities such as legalisation and the apostille, the translation of a public document issued by another Member State is another procedure citizens may have to deal with. Just like the abovementioned administrative formalities, translation also represents a cost in terms of time and money.

Optional standard forms, at least for the most common public documents (for example a declaration of the loss or theft of identity papers or a wallet), could be introduced in a number of administrative sectors in order to cope with translation requests and avoid costs.
(…)

d) The European civil status certificate

European driving licences and passports already exist. A European certificate of inheritance has been proposed by the Commission. Thought might be given to introducing a European civil status certificate.

This would exist alongside Member States’ national civil status records. It would be optional, not compulsory. Citizens could continue to ask for a national certificate. The European certificate would not therefore replace Member States’ civil status certificates.

Civil Status Records:

Several solutions could be considered to ensure recognition of the effects of a civil status record or legal situation connected with civil status created in a Member State other than the one in which it is invoked. In this context, it is important to stress that the EU has no competence to intervene in the substantive family law of Member States. Therefore, the Commission has neither the power nor the intention to propose the drafting of substantive European rules on, for instance, the attribution of surnames in the case of adoption and marriage or to modify the national definition of marriage. The Treaty on the Functioning of the European Union does not provide any legal base for applying such a solution.

Against this background, several practical problems arising in the daily lives of citizens in cross-border situations could be solved by facilitating recognition of the effects of civil status records legally established in other EU Member States. The European Union has three policy options to deal with these problems: assisting national authorities in the quest for practical solutions; automatic recognition and recognition based on the harmonisation of conflict-of law rules.

The consultation will take place from 14 December 2010 to 30 April 2011.

Many thanks to Bram van der Eem for the tip-off.

We are grateful to Professor Burkhard Hess (Heidelberg) for the following remarks on the German preliminary reference in case C- 491/10 PPU (Andrea Aguirre Pelz):

Mutual Recognition and Fundamental Rights

Case C-491/10PPU – Andrea Aguirre Pelz

An important preliminary reference has recently reached the ECJ’s dockets: In the case C-491/10PPU the Higher Regional Court of Celle referred to Luxemburg the following questions:

1. Where the judgment to be enforced issued in the Member State of origin contains a serious infringement of fundamental rights, does the court of the Member State of enforcement exceptionally itself enjoy a power to examine the matter, pursuant to an interpretation of Article 42 of the Brussels II^bis Regulation in conformity with the Charter on Fundamental Rights?
2. Is the court of the Member State of enforcement obliged to enforce notwithstanding the fact that, according to the case-file, the certificate issued by the court of the Member State of origin under Article 42 of the Brussels II^bis Regulation is clearly inaccurate?

The case addresses fundamental issues of mutual recognition and of mutual trust. As most of the readers of conflict of laws are certainly aware of, the EU-Commission is going to publish its proposals for the amendment of the Regulation Brussels I in the course of this week (on Wednesday). The enlargement of mutual recognition within the Regulation will certainly be one of the core proposals. The ECJ’s decision in Andrea Aguirre Pelz will undoubtedly influence the discussion on the abolition of exequatur proceedings and the (general) implementation of the principle of mutual recognition under the Regulation Brussels I.

The facts and the legal issues of the case

In this case, a Spanish-German couple which had resided near Bilbao separated in 2007. Their (then) eight years old daughter stayed with the mother; both spouses applied for divorce at the Spanish court and sought the sole parental responsibility for their daughter. In May 2008, the Spanish court transferred the custody to the father and the daughter temporarily moved to the father. The mother returned to Germany. However, after a holiday visit to her mother in summer 2008, Andrea did not return to Spain. The father immediately sought her return to Spain and the 5^th court for family matters in Bilbao ordered that Andrea was generally forbidden to leave Spanish soil.[1] An order for the return of Andrea of the same day was not recognized under the Hague Child Abduction Convention in Germany, after Andrea had been heard by the German family court and strongly opposed to her return.[2] In December 2009, the Spanish court gave a judgment on the merits and transferred the custody to the father. The court did not personally hear the mother and the daughter, although both had been summoned, but did not appear in the hearing.[3] However, the Spanish judge had denied the mother’s request for granting safe conduct and had not accepted the proposal of her lawyer to hear Andrea by video-conference.[4] The Court of Appeal of Biskaya dismissed the mother’s appeal in April 2010 which was based on the insufficient hearing of the child.

Some weeks earlier, in February 2010, the 5^th family court of Bilbao had issued a certificate under Article 42 of the Regulation ordering the immediate return of Andrea to her father. According to Article 11 (8) of the Regulation Brussels II^bis, German family courts must immediately enforce the return order of the Spanish court without any recognition proceedings.[5] Nevertheless, the mother filed a new action in the (competent) German family court seeking a declaration that the Spanish decision was unenforceable in Germany, because Andrea and her mother had not been personally heard by the Spanish judge. On appeal, the Higher Regional Court of Celle referred to the ECJ (under Article 267 TFEU) the questions whether it was obliged to enforce the Spanish decision ordering the return of the child of ten years although the child had not get a personal hearing at the court of origin and whether it was bound by a form which seemed to be filled in incorrectly.

According to the referring court, the Spanish court had not sufficiently respected the child’s right to be heard – a right which shall protect her family relations and procedural situation under Articles 24 and 47 of the CFR. The necessity of hearing the child and the parent is equally expressed by Article 42 (2) of the Regulation. However, the German court asked the ECJ whether a serious violation of human rights (as guaranteed by the Charta) entails the need of reviewing a judgment of another Member State even in the context of mutual recognition. If the answer of the ECJ is positive, the abolition of exequatur and of the public policy clause (which directly refers to fundamental rights) by Article 42 of the Regulation Brussels will be modified (or even reversed). Thus, the reference of the Higher Regional Court of Celle directly questions the concept of mutual recognition and its underlying assumption that all courts of the Member States fully and equally respect the fundamental rights of the parties.

In addition, the 2^nd question equally raises fundamental issues of the application of mutual trust: in practice, mutual recognition operates on the basis of forms which are filled in by the court of the Member State of origin. These forms pursue several functions:[6] firstly, they shall inform the requested court about the enforceable decision and its content. Secondly, they shall reduce the need of translating the decision. Thirdly, and most importantly, they contain factual or legal findings which shall bind the courts and judicial organs in the Member State of enforcement. However, the court of origin is not obliged to give any motivation for its findings – the forms are usually filled out by simple crossing. As a result, the requested court must simply enforce the foreign judgment – any verification does not take place.[7] However, sometimes the forms are not filled out accurately – the 2^nd question asks about the binding force of a form which was apparently incorrectly established.

Some preliminary observations:

Although the questions of the Higher Regional Court reflect the uncertainties surrounding the principle of mutual trust in civil matters, some of the legal findings of the referring court may be questioned:

– To start with the second question: it is not entirely clear whether the form was incorrectly filled out. According to Article 42 the child must get an opportunity to be heard (…) having regard to its age or maturity. Thus, the question is whether the summoning of Andrea to the hearing by the court of origin was sufficient to give her an opportunity to be heard. – According to the referring court Article 42 requires a factual hearing and additional efforts of the (foreign) court to organise such a hearing. Although the arguments put forward by the German Court with regard to the interpretation of the necessary hearing of the parties in the light of Articles 24 and 47 of the Charter of Fundamental Rights seem to be pertinent, there is still the question whether the Regulation requires that all procedures of the taking of evidence abroad must be exhausted if the parties do not respond to the request of the court to appear in the competent court. Accordingly, it seems to be doubtful whether the form was filled out incorrectly – at least formally, Andrea had an opportunity to get heard by the Spanish judge.

– On the other hand, the decision of the Spanish court not to grant a guarantee of safe conduct to the mother was certainly unfortunate. However, one is wondering why the Spanish and German judges did not try to communicate directly on these issues – supportive measures for the communication are available at the Central Authorities and from the liaison judges under the Hague Convention on Child Abduction. However, I have not read the decision of the Spanish court and, therefore, I do not know the motivation of the Spanish court not to give such a guarantee to the mother.[8]

– With regard to the first question, the interplay between the proceedings on the merits and those on the immediate return of the child is not entirely clear: The decision on the custody of December 19, 2009 was a decision on the merits which is recognised under Articles 21 and 23 of the Regulation. According to Article 23 b, “a judgment relating to parental responsibility shall not be recognised if it was given (…) without the child having been given an opportunity to be heard.” Thus, this Article explicitly confers to the German court the power to review the foreign judgment with regard to fundamental rights as guaranteed by Articles 24 and 47 CFR. However, the order on the return of Andrea was based on Articles 11 (8) and 42. These Articles provide for immediate relief in the specific case of the unlawful retention of the child. However, the question arises whether the request of Spanish court under Article 42 must be qualified as a request on the enforcement of the judgment on the merits (of December 19, 2009). As this judgment conferred the parental responsibility to the father, the father was equally entitled to request the return of the child. In this respect, the (functional) application of Articles 11 and 42 of the Brussels II^bis Regulation for the enforcement of the decision of the merits does not seem to be fully in line with the system of the Regulation.[9]

The proceedings at the ECJ

Although the referring court requested the ordinary procedure (Article 267 TFEU) due to the importance of the referred questions, the President of the ECJ decided that the case should be dealt with in the preliminary urgent procedure. The hearing of the case took place last Monday (6 December). A judgment is expected in the course of the next months. This case will probably entail an important judgment for the future of European law of civil procedure.

The Institute for Private International and Comparative Law at Heidelberg translated the decision of the Higher Regional Court into English. Here is the translation: 

Higher Regional Court Celle[a]

Case 18 UF 67/10

Order of September, 30, 2010

Relating to the return of the child: Andrea Aguirre Pelz

Born 31 January 2000.

The Court refers the following questions to the European Court of Justice:

1. Where the judgment to be enforced issued in the Member State of origin contains a serious infringement of fundamental rights, does the court of the Member State of enforcement exceptionally itself enjoy a power to examine the matter, pursuant to an interpretation of Article 42 of the Brussels II^bis Regulation in conformity with the Charter on Fundamental Rights?
2. Is the court of the Member State of enforcement obliged to enforce notwithstanding the fact that, according to the case-file, the certificate issued by the court of the Member State of origin under Article 42 of the Brussels II^bis Regulation is clearly inaccurate?

The present lawsuit relates to the enforcement of a decision of the family court No.5 in Bilbao (Biscay, Spain) which orders the return of the child Andrea from her mother to her father.  
I.

The parents married on 25 September 1998 in Erandio (Spain). The marriage produced the now 10,75-year-old daughter Andrea, who was born on 31 January 2000. The child has both the German and the Spanish nationality. The place of residence of the parents was located in Sondka (Spain). Towards the end of 2007, the parents broke up with each other. Upon the father’s approval the mother firstly remained alone in the former joint home with the daughter Andrea. Yet, after a short time, considerable disputes arose between the parents. Both parents applied for a divorce in February 2008. In addition, each parent applied for the grant of the sole custody of Andrea.

By its order of 12 May 2008 the family court No.5 in Bilbao (Biscay, Spain) granted the custody of Andrea temporarily to her father. Thereupon Andrea moved in the household of her father. In June 2008, her mother moved to Germany. After Andrea’s visit with her mother in the summer holidays of 2008, the mother kept Andrea with herself.  Since 15 August 2008 Andrea lives in the household of her mother in Germany. On the same day, the family court No.5 in Bilbao (Biscay, Spain) issued an order which prohibited Andrea to leave Spain.

The father’s application for the return of Andrea to Spain was dismissed by the order of the German Court of 1 July 2009. The dismissal was based on Article 13 para.2 Hague Child Abduction Convention. At that time, the hearing of Andrea in court revealed that Andrea strongly objected to the return which her father had applied for. She assertively refused to return to Spain. The court thereupon asked for an expert opinion, which stated that, given her age and maturity, Andrea’s opinion should be taken into consideration.

This decision was transmitted by the German Federal Office of Justice[b] on 8 July 2009 under reference to Article 11 para.6 and 7 of the Regulation Brussels II^bis to the central authority of Spain, with the request for transmission to the competent Spanish court. In the same month the custody proceedings before the family court No.5 in Bilbao (Biscay, Spain) were continued. The court considered it bidden to ask for another expert opinion as well as a personal hearing of Andrea and scheduled a hearing in Bilbao. At the hearing, neither Andrea nor the mother appeared. Prior to this, the court had refused the mother’s application for the grant of safe conduct to her and Andrea during the assessment by an expert and for the time of the hearing in court. It also did not hear Andrea via video conference as explicitly suggested by the mother.

By its judgment of 16 December 2009 the family court No.5 in Bilbao (Biscay, Spain) transferred the sole custody of Andrea to her father. The mother appealed to this decision and argued in particular with the necessity of a hearing of Andrea. The regional court of Biscay which was competent for the appeal explicitly refused the need of a hearing of Andrea personally by a decision of 21 April 2010.

Based on its decision on the custody of 16 December 2009, the family court No.5 in Bilbao (Biscay, Spain) issued a certificate on 5 February 2010 under Article 42 of the Regulation Brussels II. By letter of 26 March 2010 the German Federal Office of Justice transmitted to the district court –family court- of Celle the judgment of the family court No.5 in Bilbao (Biscay, Spain) of 16 December 2009 as well as the certificate under Article 42 of the Regulation Brussels II of 5 February 2010. The central authority pointed out to the family court of Celle, that the order to surrender the child under Section 44 para.2 IntFamRVG (IFLPA)[c]  must be enforced ex officio.

The mother for her part filed an application for a declaration that the enforcement order could not be executed and the disallowance of the order to surrender the child of the family court No.5 in Bilbao (Biscay, Spain).

By decision of 28 April 2010 the family court of Celle held that the corresponding judgment of the family court No.5 in Bilbao (Biscay, Spain) is not be recognized and thus not to be enforced, because the family court No.5 in Bilbao (Biscay, Spain) had not heard Andrea prior to its decision.

The father of Andrea, who is (only) at second instance represented by the German Federal Office of Justice, opposes to this decision through an appeal of 18 June 2010. By way of his objection of 18 June 2010 he requests the removal of the decision of the family court of Celle of 28 April 2010 and the dismissal of the applications of the mother, as well as the enforcement of the decision to surrender Andrea of the family court No.5 in Bilbao (Biscay) ex officio.

II.

The appeal of the father is admissible… On the matter itself the court comes to the provisional conclusion that the appeal is not well-founded, because Andrea has not been duly heard by the Spanish judge. With regard to the case-law of the European Court of Justice referred to by the appellant, two questions arise on the interpretation of the Regulation Brussels II^bis. These questions are essential for the decision of the case and the Court refers them to the ECJ for the following reasons:

a)    The judgment of the family court No.5 in Bilbao (Biscay, Spain) of 16 December 2009 is a judgment requiring the return of the child under Article 11 para.8 Regulation Brussels II^bis. It is a judgment of the Member State of origin subsequent to an order refusing the return of the child of the enforcing Member State based on Article 13 Hague Child Abduction Convention. For such judgments exists the simplified enforceability from chapter III paragraph 4, therefore under Articles 40  et seq.of the Regulation Brussels II^bis.

Therefore the appeal is to be granted insofar as the court of the enforcing Member State generally does not have an own review power under Article 21 Regulation Brussels II^bis  in cases of return under Article11 para 8 of the Regulation Brussels II^bis (ECJ 7/11/2008 case C-195/08 PPU Inga Rinau; ECJ, 7/1/2010 case C-211/10 PPU Povse). In fact, such judgments requiring return are generally enforceable without any declaration of enforceability or possibility of opposing its recognition (Article 42 para.1 of the Regulation Brussels II^bis). If this principle applies without exceptions, the judgment of the family court of Celle is to be set aside and the enforcement of the judgment requiring the return of the child under Article 42 of the Regulation Brussels II^bis of 5 February 2010 is to be executed ex officio (Section 44 FamFG[d]) pursuant to the appeal.

The situation would be different if the court of the enforcing Member State had an own power of review in cases of severe violations of fundamental rights. The Senate supports this assumption for the following reasons. Article 24 para.1 of the Charter of Fundamental Rights of the European Union provides that the “views of the child shall be taken into consideration on matters which concern them in accordance with their age and maturity”. The family court No.5 in Bilbao (Biscay, Spain) did not detect the current view of Andrea and could therefore not take it into consideration in its custody decision of 16 December 2009.

At the same time the Senate does not misconceive that the family court No.5 in Bilbao (Biscay, Spain) initially tried to obtain the view of Andrea in summer 2009. Yet the efforts in this regard did not suffice in view of the importance of the consideration of the child’s view which is especially protected by Article 24 para.1 of the Charter of Fundamental Rights of the European Union. Furthermore, the Senate does not address the issue of whether the mother could be summoned at all to send Andrea to Spain given the criminal proceedings against her and accordingly the travel ban from Spain on Andrea. Any possible default or misconduct of the mother in this matter cannot be imputed to the affected child.

The misconduct of a parent does not release the court from its obligation to take the child’s view into consideration pursuant to Article 24 Charter of Fundamental Rights of the European Union. The situation would only be different if the conduct of the parent rendered the detection of the view of the child impossible. However this constellation is not at hand. In fact, the detection of the view of Andrea would have been possible, for example in the course of a video conference which was explicitly offered by the mother. In addition there would have been other possibilities, such as: the conduct of a hearing of the child in the way of mutual legal assistance or a journey of the competent judge to Germany in order to hear Andrea personally. Furthermore it would have been possible to detect the view of the child through the appointment of a temporary representative for the purpose of the proceedings under the terms of Section 158 FamFG. The temporary representative has to discover the interests of the child and to assert them during the proceedings (Section 168 para.4 FamFG). All relief of this kind remained undone and has not been addressed in the judgment. Therefore the personal views of Andrea could not have been taken into consideration in the judgment.

In the opinion of the Senate this violation is insomuch severe that it must entail a review power of the enforcing Member State by way of exception and in order to interpret Article 42  para.1 of the Regulation Brussels II^bis in conformity to the Charter of Fundamental Rights of the European Union.

The omitted hearing is problematic especially in cases of Article11 para.8 Regulation Brussels II^bis where the return of the child is rejected under Article13 para.22 HCAC because of unwillingness of the child. The preferential treatment in the enforcement of judgments under Article11 para.8 can only be justified in cases pursuant to Article13 para.2 Hague Child Abduction Convention, when the child has been heard before the decision is given. Only in this constellation the court of the Member State of origin does have the possibility to deal with the unwillingness of the child and its reasons. After all, these reasons were considered of such importance by the court of the enforcing Member State that it refused the return of the child despite the fact that its removal or retention was unlawful. If the court of the Member State of origin wants to deviate from this and wants to miss out the resistance of the child which has been substantial in the Hague Child Abduction Convention-proceedings in the course of the custody decision which it is competent for, it has to hear the current view of the child in advance. The content of the certificate which is issued in context of the simplified enforcement under Article42 para.2 Regulation Brussels  II^bis also indicates the great significance of the hearing of the child. Within the certificate, the hearing of the child must be duly certified.

Thus, the privileged enforcement without recognition by a court of the enforcing Member State as intended by Article11 para.8 combined with Article 42 Regulation Brussels II^bis mandatory requires that the child had the possibility to get heard. In the present case, Andrea did not get this possibility. Accordingly, the senate assumes a violation of Article24 Charter of Fundamental Rights of the European Union as well as a violation of the fundamental principle of the right to be heard.[e]

The Senate agrees with the assertion put forward by the appellant that grounds for non-enforcement which impede the enforcement as such must generally be asserted in the court of the Member State of origin which ordered the enforcement – in the present case in Spain. However, this principle cannot be applied when the enforceable decision itself – as has been argued above – violates fundamental rights. The applicability of the Regulation Brussels II^bis cannot result in an obligation of the court of the enforcing Member State to execute judgments of the Member State of origin that are in breach of fundamental rights.

b)    If the courts in the Member State of enforcement do not dispose of such a power of review despite a severe violation of fundamental rights, the question remains whether the enforcing Member State can be bound to a clearly incorrect certificate under Article 42 Regulation Brussels II^bis. The certificate at hand of 5 February 2010 which is to be enforced clearly contains incorrect information.

Persuant to Article 42 para.2a Regulation Brussels II^bis the certificate may only be issued if “the child was given an opportunity to be heard, unless a hearing was considered inappropriate having regard to his or her age or degree of maturity”. Although Andrea was not heard by the family court No.5 in Bilbao (Biscay, Spain) the respective question is affirmed within the certificate (No.11).

The argument of the father (…) that Andrea has had the opportunity to be heard in summer 2009 in consequence of the evidence warrant of the family court No.5 in Bilbao (Biscay, Spain) is not persuasive. Even if one agrees with the statement within the appeal of the father that the mother illegitimately impeded the hearing which was considered necessary and therefore ordered by the family court No.5 in Bilbao (Biscay, Spain), this conduct cannot be attributed to the child. The protective function of Article 24 para.1 of the Charter of Fundamental Rights of the European Union cannot be conditioned on the correct conduct of a parent. This especially applies as it would indeed have been possible -as demonstrated above- that the family court No.5 in Bilbao (Biscay, Spain) detected the current will and view of Andrea despite the possibly illegitimate refusal of her mother to travel to Spain.

III.

Accordingly, the Senate refers to the ECJ the following questions (….see supra at I).

IV.

The senate explicitly does not request the application of the urgent preliminary ruling procedure in the present case. The senate considers both questions on the consultation requirement of the child- especially regarding comparable cases of return rejections under Article13 para. 2 Hague Child Abduction Convention  – as fundamental. The examination of such basic issues should be carried out in the context of a request for a preliminary ruling, at length, and not in an accelerated procedure.

Additional note of the editors:

The file number at the ECJ is C-491/10PPU – the President of the ECJ ordered that the case should be decided in the accelerated procedure. The hearing took place on December 6, 2010. A judgment of the ECJ is expected for January or February 2011.

[a] Translated and adapted for the publication by Katharina Mandery and by Burkhard Hess, all rights reserved.

[b] The Federal Office of Justice is the German Central Authority (Article 53 of Regulation Brussels II^bis ).  It provides for a helpful web site (in English) at:  http://www.bundesjustizamt.de/nn_1704226/EN/Topics/Zivilrecht/HKUE/HKUEInhalte/Rechtsvorschriften_20und_20Erl_C3_A4uternde_20Berichte.html.

[c] An English translation is available at: Act to Implement Certain Legal Instruments in the Field of International Family Law,  (International Family Law Procedure Act – IFLPA).

[d] Act on Proceedings in Non-Contentious and Familiy Matters of Sep. 1, 2009.

[e] Article 47 Charter of Fundamental Rights.

[1] Any infringement of this order entailed criminal sanctions against the mother.

[2] The German court relied on Article 13 of the Hague Child Abduction Convention. According to this provision, a non-return may be ordered in the best interest of the child.

[3] The Spanish court had ordered the personal appearances of both, mother and the child.

[4] It should be noted that Article 11 (4) of Regulation Brussels IIbis explicitly provides for “adequate arrangements to secure the protection of the child after his or her return.” These measures include the protection of a parent who accompanies the child, Hess, Europäisches Zivilprozessrecht (2010), § 7, para 93.

[5] ECJ, 7/11/2008, case C-195/08 PPU, Inga Rinau, ECR 2008 I- paras 59 et seq.; EuGH 7/1/2010, case C-211/10 PPU Povse, ECR 2010 I- nyp.

[6] Hess, Europäisches Zivilprozessrecht, § 3, paras 55 et seq.

[7] As a result, mutual trust operates like a kind of „blind trust“, because the requested court has normally no possibility to verify whether the information contained in the form is appropriate.

[8] See Hess, Europäisches Zivilprozessrecht (2010), § 7, paras 80 – 82.

[9] It seems that the relationship between Articles 23 b) and Articles 11 (8), 42 of the Regulation is not entirely clear – the Court should take up this case for further clarifications.

In the case of the two men who had contracted with a woman living in California in a case of international surrogate motherhood, a Court of Appeal has recently issued its ruling, reversing in part the decision of the lower court (Court of Appeal of Liège, 1^st Chamber, ruling of 6 September 2010, docket No 2010/RQ/20).

As has been indicated, the lower court had denied any recognition to the birth certificates of the twin girls issued by the authorities in California. The lower court had based its reasoning primarily on the violation of the public policy exception, holding that the birth certificates were only the last step in a series of events which started with the surrogacy agreement. The court placed great weight on the fact that this agreement violated basic human dignity in that it put a price on the life of a child.

In appeal, the Court again reviewed the matter ab novo. It found that the first step in the analysis was to review whether the birth certificates could have been issued if the rules of Belgian private international law had been applied. This test is mandated by Article 27 of the Code of Private International Law, which requires that foreign acts, including acts concerning the civil and family status of individuals, comply with the requirements of the law(s) declared applicable by the Belgian rules of private international law. Since both men were Belgian nationals, the Court of Appeal first undertook to determine whether the birth certificates could have been issued applying Belgian law.

The Court proceeded first to review the situation of the parent who was the biological father of the twin girls. It found that under Belgian law, since the surrogate mother was not married, the father could have recognized the children and hence legally become their father. The situation was different for the other man who had ‘commissioned’ the children, as he was not biologically linked with the children. The Court found that under Belgian law, there was no possibility to establish a legal parentage between a child and two persons of the same sex, outside the specific situation of adoption by same sex couples.

Having found that at least one of the commissioning parents could have established his paternity over the children, had Belgian law been applied, the Court undertook to review the impact on this paternity of the very peculiar circumstances which surrounded the birth of the twin. Specifically the Court examined whether these circumstances, and in particular the existence of a contract between the mother and the commissioning parents, contract which had given rise to the payment of money, did not lead to a violation of public policy.

While it recognized that contracts which directly concern human beings and the human body were void under public policy principles, the Court noted that the public policy reservation called for a nuanced application. Among the principles which could be taken into consideration in the light of the public policy mechanism, the Court singled out the interest of the children, as protected both by international law instrument and the Belgian Constitution. According to the Court, this interest would be unreasonably curtailed if the children, who resided in Belgium, were deprived of any legal link with their biological father, while at the same time they could not legally be considered the children of the mother who had carried and delivered them. The same could not be said, however, according to the Court, for the legal link between the twin sisters and the other man.

Accordingly, the Court only partially granted the relief sought by the two men. It decided to recognize and give effects to the birth certificates issued in California in so far as they form the basis for the legal link between the sisters and their biological father.

While this ruling may not be the last word in this case, it is quite likely that the other parent will now seek to adopt the children.

Editors’ note: Patrick Wautelet is a professor of law at Liege University.

Many thanks to Isabel Rodríguez-Uría Suárez

The 5th of October the Spanish Dirección General de los Registros y el Notariado (hereinafter DGRN) has issued an Instruction about the regulation of affiliation registration in cases of surrogate pregnancy in order to protect the best interests of the child and the interests of the women who give birth (see BOE, n. 243, 7.10.2010).

According to the Instruction, a prerequisite is required for the registration of births by surrogate motherhood: it is necessary to produce before the Spanish responsible of the Registro Civil a judicial resolution of the competent Court of the country in which the surrogate pregnancy occurred. The judicial resolution must determine the affiliation of the child. This requisite is demanded in order to control the legal requirements of the surrogate pregnancy contract and to ensure the protection of the best interests of the child and the interests of the pregnant mother.

The foreign court decision raises a question of recognition in Spain. The DGRN distinguishes between contentious and non-contentious proceedings: on the one hand, contentious foreign decisions must be recognized by exequatur; on the other hand, the DGRN gives a set of guidelines for the recognition of non-contentious decisions in affiliation matters. In short, the Spanish officer in charge of the Registro Civil must check: a) the formal validity of the foreign decision b) that the original court had based its international jurisdiction in conditions equivalent to those provided by Spanish law c) the due process respect d) that the interests of the child and the pregnant mother had been guaranteed e) that the foreign decision is a final decision and that the consents given in the contract are irrevocable.

Finally, the Spanish DGRN states that foreign registration certificates do not support affiliation registration in the Registro Civil.