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Opinion of AG Emiliou on stay of enforcement of final return order in the case C-638/22 PPU
In the case Rzecznik Praw Dziecka and Others, C-638/22 PPU, a Polish court asks the Court of Justice in essence whether, in accordance with the Brussels II Regulation and The 1980 Hague Convention on the Civil Aspects of International Child Abduction, a Member State may provide for the possibility of an appeal in cassation (in practice: a third judicial instance) involving a stay of enforcement of a final return order on a simple application by one of the public entities entitled to lodge such an appeal.
AG Emiliou states from the outset that this question calls for a negative answer. His Opinion explains why this is the case.
A summary of the facts of the case reported here case has been already posted online by Marta Requejo Isidro so I am happy to refer to her contribution.
The urgency of the matter has compelled the Court to submit the case, at the request for the referring court, to the urgent preliminary ruling procedure provided for in Article 107 of the Rules of Procedure of the Court of Justice.
I might add that the provision of national law that made the aforementioned stay of enforcement possible entered into force on 24 June 2022 and the request for a preliminary ruling has been brought before the Court of Justice already on 13 October 2022.
Concerning the preliminary question itself, in his Opinion, AG Emiliou recognizes that the 1980 Hague Convention and the Brussels II bis Regulation do not unify the procedural rules applicable to return applications based on that Convention. Those issues are left to the procedural law of the Member State where a request for a return order is made (point 52).
Nevertheless, the competence of the Member States has its limits. For AG Emiliou, those limits are not respected by the Polish provision in question.
Advocate General argues that by adopting the provision in question, the Polish legislator has exceeded the limits of its competence: he has rendered the return proceedings ineffective. Furthermore, in doing so, the legislator has also limited the fundamental right to respect for family life and the fundamental right to an effective remedy of the parent requesting the return, despite there being no compelling justification for such limitation and the negative consequences it entails (point 54).
All those aspects are addressed in a detailed manner in the Opinion, so there is still a lot to unpack.
The Opinion is available here (so far only in French).
Draft UNIDROIT Principles on Digital Assets and Private Law – Public Consultation
As part of the UNIDROIT Project on Digital Assets and Private Law, UNIDROIT has launched a Public Consultation to solicit comments and feedback on a set of Draft Principles and Commentary which have been prepared by its Working Group over the course of 7 sessions between 2020-2022. These Principles have been drafted to provide guidance to legislators, judges, practitioners, and the industry involved in the digital asset economy with regard to issues of private law. This includes issues regarding the definition of a digital asset, the importance of control, matters related to transfer of digital assets, custody relationships, conflicts of law, secured transactions, enforcement, and insolvency. The text contains a detailed introduction which explains what the Principles seek to do. UNIDROIT now looks for comments. All the relevant information can be found on this page. All comments should be provided using this online form. The Secretariat is seeking wide distribution of the consultation.
One Private International Law Article published in the First Issue of the International and Comparative Law Quarterly for 2023
One recent article on private international law was published today in International and Comparative Law Quarterly:
A Chong, “Characterisation and Choice of Law for Knowing Receipt”
Knowing receipt requires the satisfaction of disparate elements under English domestic law. Its characterisation under domestic law is also unsettled. These in turn affect the issues of characterisation and choice of law at the private international law level, as knowing receipt sits at the intersection of the laws of equity, restitution, wrongs and property. This article argues that under the common law knowing receipt ought to be considered as sui generis for choice of law purposes and governed by the law of closest connection to the claim. Where the Rome II Regulation applies, knowing receipt fits better within the tort rather than unjust enrichment category and the escape clause in Article 4(3) of the Regulation ought to apply.