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Mutual Trust: Judiciaries under Scrutiny – Recent reactions and preliminary references to the CJEU from the Netherlands and Germany

I. Introduction: Foundations of Mutual Trust

A crucial element element for running a system of judicial cooperation on the basis of mutual trust is sufficient trust in the participating judiciaries. EU primary law refers to this element in a more general way in that it considers itself to be based on „the rule of law“ and also „justice“. Article 2 TEU tells us: „The Union is founded on the values of (…) the rule of law (…). These values are common to the Member States in a society in which „(…) justice (…) prevail.“ Subparagraph 2 of the Preamble of the EU Charter of Fundamental Rights, recognized by the EU as integral part of the Union’s foundational principles in Article 6 (1) TEU, confirms: „Conscious of its spiritual and moral heritage, the Union (…) is based on (…) the rule of law. It places the individual at the heart of its activities, by (…) by creating an area of freedom, security and justice“. Article 47 of the EU Charter of Fundamental Rights guarantees the right to an effective remedy and to a fair trial when EU law is „implemented“ in the sense of Article 51 of the Charter, as does Article 6(1) European Convention on Human Rights generally.

A few thoughts on the HCCH Guide to Good Practice on the grave-risk exception (Art. 13(1)(b)) under the Child Abduction Convention, through the lens of human rights (Part II)

Written by Mayela Celis – The comments below are based on the author’s doctoral thesis entitled “The Child Abduction Convention – four decades of evolutive interpretation” at UNED (forthcoming)

As indicated in a previous post, the comments on the HCCH Guide to Good Practice on the grave-risk exception (Art. 13(1)(b)) under the Child Abduction Convention (subsequently, Guide to Good Practice or Guide) will be divided into two posts. In a previous post, I analysed the Guide exclusively through the lens of human rights. In the present post, I will comment on some specific legal issues of the Guide but will also touch upon on some aspects of human rights law.

Please refer to Part I. All the caveats mentioned in that post also apply here.

Same Region, Two Different Rulings on Fake News at the Internet

Fernando Pedro Meinero

Recently, two criminal court decisions investigating the spread of fake news show the difficulty of determining the scope of national court jurisdiction over the internet.

In Argentina, Google was successful in reversing a decision that determined the deindexation of a person’s name from search engines hosted outside the country. In this case, the searcher associated a person’s name with crimes of possession of drugs and weapons, something that proved to be false. But in Brazil, Twitter and Facebook were forced to globally block the access of investigated people to their respective accounts. These people are investigated for participating in the dissemination of defamatory publications through these internet platforms against members of the Legislative and Judiciary.

News

Mandatory Mediation Process Has Been Introduced in Turkey Relating to Certain Consumer Disputes

The Law Amending the Civil Procedure Law and Certain Laws No. 7251 has entered into force on 28 July 2020 and has amended the Consumer Protection Law No. 6502. Accordingly, a mandatory mediation process has been implemented under Article 73/A of the Consumer Protection Law as a prerequisite to file a lawsuit relating to consumer disputes having a monetary claim of 10,390 Turkish Liras and above. Provisional Article 2 of the Consumer Protection Law excludes the application of this mandatory mediation rule to cases pending before the first instance and the regional courts of appeal as well as the Court of Cassation, as of the date of entry into force of this amendment.

Recognition under Article 27/A of the Law on Civil Registry Services

Article 27/A of Law on Civil Registry Services provides an exception to the recognition and enforcement regime under Turkish law. Foreign decisions that shall be subjected to the recognition process envisaged under Article 27/A of the Law on Civil Registry Services are specified as those relating to divorce, annulment or nullity of a marriage or a declaratory action to show the existence or non-existence of a marriage. In this regard, the decisions relating to custody, child maintenance, marital property or compensation shall not be given any effect pursuant this new process under Article 27/A of Law on Civil Registry Services. “Regulation on Registration of Decisions Rendered by Administrative or Judicial Authorities to Civil Registry” (Regulation) further stipulates conditions required for a divorce decision to be recognised pursuant this new process. (more…)

Opinion of AG Saugmandsgaard Øe on characterisation of an action relating to abuse of dominant position brought between parties to a contract. Articles 7(1) and (2) of the Brussels I bis Regulation in the case C-59/19, Wikingerhof

An action brought between parties to a contract in a scenario where the consent to at least some of the contractual terms was allegedly expressed by the plaintiff only on account of the dominant position of the defendant is to be considered as falling within the concept of ‘matters relating to contract’ [Article 7(1) of the Brussels I bis Regulation] or within the concept of ‘matters relating to delict or quasi-delict’ [Article 7(2) of the Regulation]?

In his Opinion delivered last Thursday, 10 September 2020, Advocate General Saugmandsgaard Øe addresses that question for the purposes of the reference for a preliminary ruling in the case C-59/19, Wikingerhof.

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