Views
The ECtHR rules on the compatibility with the right to respect for private and family life of the refusal of registration of same-sex marriages contracted abroad
By a judgment Orlandi and Others v. Italy delivered on December 14 the ECtHR held that the lack of legal recognition of same sex unions in Italy violated the right to respect of private and family life of couples married abroad.
The case concerned the complaint of six same sex-couples married abroad (in Canada, California and the Netherlands). Italian authorities refused to register their marriages on the basis that registration would be contrary to public policy. They also refused to recognize them under any other form of union. The complaints were lodged prior to 2016, at a time when Italy did not have a legislation on same-sex unions.
The couples claimed under articles 8 (right to respect of private and family life) and 14 (prohibition of discrimination) of the Convention, taken in conjunction with article 8 and 12 (right to marry), that the refusal to register their marriages contracted abroad, and the fact that they could not marry or receive any other legal recognition of their family union in Italy, deprived them of any legal protection or associated rights. They also alleged that “the situation was discriminatory and based solely on their sexual orientation” (§137).
Recalling that States are still free to restrict access to marriage to different sex-couples, the Court indicated that nonetheless, since the Oliari and others v. Italy case, States have an obligation to grant same-sex couples “a specific legal framework providing for the recognition and the protection of their same-sex unions” (§192).
The Court noted that the “the crux of the case at hand is precisely that the applicants’ position was not provided for in domestic law, specifically the fact that the applicants could not have their relationship – be it a de facto union or a de jure union recognized under the law of a foreign state – recognized and protected in Italy under any form” (§201).
It pointed out that although legal recognition of same-sex unions had continued to develop rapidly in Europe and beyond, notably in American countries and Australia, the same could not be said about registration of same-sex marriages celebrated abroad. Giving this lack of consensus, the Court considered that the State had “a wide margin of appreciation regarding the decision as the whether to register, as marriage, such marriages contracted abroad” (§204-205).
Thus, the Court admitted that it could “accept that to prevent disorder Italy may wish to deter its nationals from having recourse in other States to particular institutions which are not accepted domestically (such as same-sex marriage) and which the State is not obliged to recognize from a Convention perspective” (§207).
However, the Court considered that the refusal to register the marriages under any form left the applicants in “a legal vacuum”. The State has failed “to take account of the social reality of the situation” (§209). Thus, the Court considered that prior to 2016, applicants were deprived from any recognition or protection. It concluded that, “in the present case, the Italian State could not reasonably disregard the situation of the applicants which correspond to a family life within the meaning of article 8 of the Convention, without offering the applicants a means to safeguard their relationship”. As a result, it ruled that the State “failed to strike a fair balance between any competing interests in so far as they failed to ensure that the applicants had available a specific legal framework providing for the recognition and the protection of their same-sex union” (§ 210).
Thus, the Court considered that there had been a violation of article 8. It considered that, giving the findings under article 8, there was no need to examine the case on the ground of Article 14 in conjunction with article 8 or 12. (§212).
Functioning of the ODR Platform: EU Commission Publishes First Results
Written by Emma van Gelder and Alexandre Biard, Erasmus University Rotterdam (PhD and postdoc researchers ERC project Building EU Civil Justice)
On 13 December 2017, the European Commission published a report on the functioning of the Online Dispute Resolution (ODR) Platform for consumer disputes, and the findings of a web-scraping exercise of EU traders’ websites that investigated traders’ compliance with their information obligations vis-à-vis consumers. Read more
Conference Report: Contracts for the Supply of Digital Content and Digital Services, A legal debate on the proposed directive, ERA Brussels, 22 November 2017
Written by Antonella Nolten, Research Fellow at the EBS Law School, Wiesbaden, Germany
On 22 November 2017 the Academy of European Law (ERA) hosted a conference on the recent developments on the Proposal for a Digital Content Directive in Brussels. Read more
News
The tenth EFFORTS Newsletter is here!
EFFORTS (Towards more EFfective enFORcemenT of claimS in civil and commercial matters within the EU) is an EU-funded Project conducted by the University of Milan (coord.), the Max Planck Institute Luxembourg for Procedural Law, the University of Heidelberg, the Free University of Brussels, the University of Zagreb, and the University of Vilnius.
The tenth EFFORTS Newsletter has just been released, giving access to up-to-date information about the Project, save-the-dates on forthcoming events, conferences and webinars, and news from the area of international and comparative civil procedural law.
Finally, regular updates are available via the Project website and the Project’s LinkedIn and Facebook pages.
Project JUST-JCOO-AG-2019-881802
With financial support from the Civil Justice Programme of the European Union
Save the date: EAPIL Seminar on the Rome II Regulation on December 2
On Friday, December 2, at 4 pm, the European Association of Private International Law (EAPIL) will hold an Online-Seminar on the Rome II Regulation. The Seminar will shed light on the Study that was prepared in 2021 by the British Institute of International and Comparative Law (BIICL) in consortium with Civic Consulting to support the preparation of the report on the application of the Rome II Regulation.
Speakers will be:
- Eva Lein, BIICL (UK)/University of Lausanne (Switzerland)
- Constanze Bonzé, BIICL (UK)
- Xandra Kramer, University of Rotterdam (Netherlands)
- Martin Ebers, University of Tartu (Estonia)
- Marie Louise Kinsler, 2 Temple Gardens, London (UK)
More information (including a detailed program and registration information) will be made available via this blog in November.
Out Now: Étienne Farnoux, Les considérations substantielles dans le règlement de la compétence internationale des juridictions – Réflexion autour de la matière délictuelle
Although it has in fact been out for several months now, there are few books more deserving of recognition on this blog than Étienne Farnoux’ impressive work on the substantive considerations that inform the rules on international jurisdiction.
Across the book’s 700+ pages, Farnoux launches a sustained attack on the principe de proximité as the foundation of most rules on international jurisdiction, including, most importantly, the forum delicti. He does so in two steps (as any serious French scholar would do): He first discusses the insufficiencies of the proximity-based status quo before developing an alternative approach to international jurisdiction based on procedural and, more importantly, substantive (i.e. policy) considerations.
In the first part, Farnoux explains how localised connecting factors are regularly manipulated to achieve a certain result, most often to create a forum actoris, a practice particularly prevalent in the case law of the CJEU. His analysis is based on a wide range of judgments – Shevill, Kronhofer, Kolassa, Löber, eDate, Bolagsupplysningen, Wikingerhof, Gtflix Tv, … – but does not fail to acknowledge the occasional nuance, as reflected, i.a., by the recent decisions in Vereniging van Effectenbezitters and Mittelbayerischer Verlag. Farnoux deconstructs the alleged objectives of the the principe de proximité – ease of evidence, foreseeability, and effective administration of justice – and demonstrates their inability to justify the allocation of adjudicative jurisdiction in a growing number of inherently delocalised torts.
In the second part, Farnoux therefore proposes a complete change of perspective for international jurisdiction on torts. Rather than chasing an ever more elusive proximity, two sets of considerations should drive the search for the appropriate connecting factor: la justice procédurale, i.e. the just allocation of procedural advantages between claimant and defendant, and la justice substantielle, i.e. the substantive interests of both parties, and of the potential forum. Based on these considerations, Farnoux develops a set of two propositions: First, he suggests to replace the forum delicti by a forum victimae (or forum actoris contrôlé), which would vest jurisdiction in the domicile of the claimant provided that their claim passes a prima-facie exam of its substantive merit – a proposition that certainly holds a claim to intellectual honesty if compared to the practically similar status quo of the Brussels Ia regime, but comes with its own set of problems, including the challenge of examining the merits of a claim before jurisdiction has been established (admittedly a common exercise in English law, though). Alternatively, he proposes to create a new forum protectionis in tort for structurally weaker parties, a proposition that may have a wider appeal, not least for avoiding to abolish the principle of actor sequitur entirely. In the final part of the book, these proposals are supplemented by some thoughts on how the interests of the prospective fora also influence the rules on international jurisdiction.
All in all, Farnoux masterfully combines a thorough, yet very timely analysis of the existing rules on international jurisdiction for torts through the lens of the principe de proximité with some innovative, well-argued propositions on how the latter could be replaced. The book has deservedly won a series of prizes already and is all but certain to become a staple in the library of any scholar working on international jurisdiction.