Tag Archive for: European Private International Law

The European Parliament’s last plenary session & Private International Law

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This post was written by Begüm Kilimcio?lu (PhD researcher), Thalia Kruger (Professor) and Tine Van Hof (Guest professor and postdoctoral researcher), all of the University of Antwerp.

During the last plenary meeting of the current composition of the European Parliament (before the elections of June 2024), which took place from Monday 22 until Thursday 24 April, several proposals relevant to private international law were put to a vote (see the full agenda of votes and debates). All of the regulations discussed here still have to be formally approved by the Council of the European Union before they become binding law, in accordance with the ordinary legislative procedure.

It is interesting to note that, while many pieces of new legislation have a clear cross-border impact in civil matters, not all of them explicitly address private international law. While readers of this blog are probably used to the discrepancies this has led to in various fields of the law, it is still worth our consideration.

First, the European Parliament voted on and adopted the proposal for a Directive on Corporate Sustainability Due Diligence (CSDDD) with 374 votes in favour, 235 against and 19 abstentions (see also the European Parliament’s Press Release). The text adopted is the result of fierce battles between the Commission, Parliament and the Council and also other stakeholders such as civil society, academics and practitioners. This necessitated compromise and resulted in a watered-down version of the Commission’s initial proposal of 23 February 2022 and does not go as far as envisaged in the European Parliament’s Resolution of 10 March 2021 (see also earlier blog pieces by Jan von Hein, Chris Tomale, Giesela Rühl, Eduardo Álvarez-Armas and Geert van Calster).

The Directive is one of the few instruments worldwide that put legally-binding obligations on multinational enterprises. It lays down obligations for companies regarding their adverse actual and potential human rights and environmental impacts, with respect to their own operation, the operations of their subsidiaries, and the operations carried out by their business partners in the chains of activities. The Directive further stipulates specific measures that companies have to take to prevent, mitigate or bring an end to their actual or potential adverse human rights impacts. Besides national supervisory authorities for the oversight of the implementation of the obligations, the Directive enacts civil liability for victims of corporate harm.

The adopted Directive is more or less silent on private international law. The closest it gets to addressing our field of the law is Article 29(7), placing the duty on Member States to ensure the mandatory nature of civil remedies:

Member States shall ensure that the provisions of national law transposing this Article are of overriding mandatory application in cases where the law applicable to claims to that effect is not the national law of a Member State.

and Recital 90, which is more general:

In order to ensure that victims of human rights and environmental harm can bring an action for damages and claim compensation for damage caused when the company intentionally or negligently failed to comply with the due diligence obligations stemming from this Directive, this Directive should require Member States to ensure that the provisions of national law transposing the civil liability regime provided for in this Directive are of overriding mandatory application in cases where the law applicable to such claims is not the national law of a Member State, as could for instance be the case in accordance with international private law rules when the damage occurs in a third country. This means that the Member States should also ensure that the requirements in respect of which natural or legal persons can bring the claim, the statute of limitations and the disclosure of evidence are of overriding mandatory application. When transposing the civil liability regime provided for in this Directive and choosing the methods to achieve such results, Member States should also be able to take into account all related national rules to the extent they are necessary to ensure the protection of victims and crucial for safeguarding the Member States’ public interests, such as its political, social or economic organisation.

While the text contains references to numerous existing Regulations, Brussels I and Rome I are not among them; not even a precursory or confusing reference as in Recital 147 of the GDRP.

Second, the European Parliament voted on two other proposals that build on and implement the objectives of the European Green Deal and the EU Circular Economy Action Plan. The first is a proposal for a Regulation establishing a framework for setting eco-design requirements for sustainable products with 455 votes in favour, 99 against and 54 abstentions (see also the European Parliament’s Press Release). The Regulation aims to reduce the negative life cycle environmental impacts of products by improving the products’ durability, reusability, upgradability, reparability etc. It sets design requirements for products that will be placed on the market, and establishes a digital product certificate to inform consumers.

This Regulation does not contain a private-international-law type connecting factor for contracts or products. Neither does it expressly elevate its provisions to overriding rules of mandatory law (to at least give us some private international law clue). Its scope is determined by the EU’s internal market. All products that enter the European market have to be in conformity with the requirements of both regulations, also those that are produced in third countries and subsequently imported on the European market (Art. 3(1)). “Products that enter the market” is the connecting factor, or the basis for applying the Regulation as overriding mandatory law. The Regulation is silent on products that exit the market. Hopefully the result will not be that products that were still in the production cycle at the time of entry into force will simply be exported out of the EU.

The third adopted proposal is the Regulation on packaging and packaging waste with 476 votes in favour, 129 against and 24 abstentions (see also the European Parliament’s Press Release). This Regulation aims to reduce the amount of packaging placed on the Union market, ensuring the environmental sustainability of the packaging that is placed on the market, preventing the generation of packaging waste, and the collection and treatment of packaging waste that has been generated. To reach these aims, the regulation’s key measures include phasing out certain single-use plastics by 2030, minimizing so called “forever chemicals” chemicals in food packaging, promoting reuse and refill options, and implementing separate collection and recycling systems for beverage containers by 2029.

Like the Eco-design Regulation, no word on Private International Law, no references. The Regulation refers to packaging “placed on the market” in various provisions (most notably Art. 4(1)) and recitals (e.g. Recitals 10 and 14).

Lastly, the European Parliament approved the proposal for a regulation on prohibiting products made with forced labour on the Union market with an overwhelming majority of 555 votes in favour, 6 against and 45 abstentions (see also the European Parliament’s Press Release). The purpose of this Regulation is to improve the functioning of the internal market while also contributing to the fight against forced labour (including forced child labour). Economic operators are to eliminate forced labour from their operations through the pre-existing due diligence obligations under Union law. It introduces responsible authorities and a database of forced labour risk areas or products.

Just as is the case for the other Regulations, this Regulation does not contain references to private international law instruments, and no explicit reference to instruments in this field, even though the implementation of the Regulation requires vigilance throughout the value chain. It would be correct to assume that this provides overriding mandatory law, as the ban on forced labour is generally accepted to be jus cogens even though the extent of this ban is contentious (see Franklin).

Other proposals that are more clearly in the domain of private international law have not (yet?) reached the finish line. First, in the procedure on the dual proposals in the field of the protection of adults of 31 May 2023, the European Parliament could either adopt them or introduce amendments at first reading. However, these proposals have not reached the plenary level before the end of term and it will thus be for the Conference of Presidents to decide at the beginning of the new parliamentary term whether the consideration of this ‘unfinished business’ can be resumed or continued (Art. 240 Rules of Procedure of the European Parliament).

In the second file, the proposal for a Regulation in matters of parenthood and on the creation of a European Certificate of Parenthood of 7 December 2022 the European Parliament was already consulted and submitted its opinion in a Resolution of 14 December 2023. It is now up to the Council of the European Union to decide unanimously (according to the procedure in Art. 81(3) of the Treaty on the Functioning of the European Union). It can either adopt the amended proposal or amend the proposal once again. In the latter case the Council has to notify or consult (in case of substantial amendments) the European Parliament again.

Van Calster on European Private International Law (4th Edition)

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The fourth edition of Geert van Calster’s (KU Leuven) European Private International Law has just been published by Hart/Bloomsbury. It focuses on those instruments and developments that are most significant in commercial litigation. I had the privilege to review the first edition of the book in the Law Quarterly Review and I am certain that the latest edition will live up to the expectations.

The blurb reads as follows:

This classic textbook provides a thorough overview of European private international law. It is essential reading for both practitioners and students of private international law and transnational litigation, wherever they may be located: the European rules extend beyond European shores.

Opening with foundational questions, the book clearly explains the subject’s central tenets: the Brussels I, Rome I and Rome II Regulations (jurisdiction, applicable law for contracts and tort). Additional chapters explore private international law and insolvency, freedom of establishment, and the impact of private international law on corporate social responsibility. The relevant Hague instruments, and the impact of Brexit, are fully integrated in the various chapters.

Drawing on the author’s rich experience, the new edition retains the book’s hallmarks of insight and clarity of expression ensuring it maintains its position as the leading textbook in the field.

Short-term PostDoc Position(s) at Humboldt University Berlin

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The graduate resesarch programme DynamInt (Dynamic Integration Order) of Humboldt University is inviting international PostDocs to apply for a short-term (3 to 6 months), fully paid research stay in Berlin.

The PostDoc is supposed to pursue her/his research project in the field of European Law. She/he is also expected to interact with the group of young researchers, who all work on their dissertation projects within the thematic framework of harmonization and plurality tendencies in the EU

More information is available here.

 

Commission publishes a revised notice to stakeholders in the field of civil justice and private international law in view of UK’s withdrawal from the EU

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The DIRECTORATE-GENERAL JUSTICE AND CONSUMERS of the Commission has recently published a further notice on the EU-Brexit saga in the field of civil justice and private international law.

The notice covers core aspects, such as international jurisdiction, applicable law, recognition and enforcement, specific European procedures (EPO, ESCP), judicial cooperation instruments (Service and Evidence Regulations), insolvency, ans other pertinent issues (public documents, legal aid, mediation).

The full text of the notice may be retrieved here.

CJEU on the implications of its Judgment in Pula Parking: Joined cases C-267/19 and C-323/19, Parking / Interplastics

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Preliminary question and its context

In its Judgment of 7 May 2020, delivered in the joined cases C-267/19 and C-323/19 without Advocate General’s Opinion, the Court of Justice provides some further guidance on the implications of its previous case law and most notably of the Judgment in the case C-551/15, Pula Parking (‘Judgment in Pula Parking’).

Just as in the case that led to Judgment in Pula Parking, the requests for a preliminary ruling in the cases in question were lodged in the context of the proceedings on the oppositions to the writs of execution. Put succinctly: under the Croatian law, a notary issues a writ of execution based on an ‘authentic document’. The party against whom enforcement is sought may lodge an opposition to that writ. The court to which the opposition is transferred has jurisdiction to set aside the writ and to annul the measures taken so far. The procedure continues according to the rules applicable to cases of opposition to a payment order.

By way of background, in Judgment in Pula Parking, the Court held, inter alia, that ‘[the Brussels I bis Regulation] must be interpreted as meaning that, in Croatia, notaries, acting within the framework of the powers conferred on them by national law in enforcement proceedings based on an “authentic document”, do not fall within the concept of “court” within the meaning of that [Regulation]’.

The referring court in the present cases indicates that Judgment in Pula Parking receives various interpretation on the national level. It seems that the reading of this Judgment according to which it relates exclusively to enforcement proceedings conducted against a party being a natural person and national of another EU Member State prevails in the Croatian case law.

However, for the referring court, that reading of Judgment in Pula Parking establishes a discriminatory difference in the way in which the Brussels I bis Regulation is applied in Croatia. The referring court seems to understand that Judgment as implying that, in its Member State, notaries are not entitled to issue writs of execution based on an ‘authentic document’ and therefore, the fact that they continue to do so, is at odds with the Regulation.

In view of those explanations, at paragraph 42 the Court clarifies that it understands the request for a preliminary ruling as concerning the question whether Article 18 of the Treaty on the Functioning of the European Union and Article 47 of the Charter preclude national legislation entitling the Croatian notaries to issue the writs of execution on the basis of the ‘authentic documents’, which, in light of Judgment in Pula Parking, will not be recognized and/or enforced in other Member States under the scheme of the Brussels I bis Regulation.

 

Consideration of the question referred and what can be learned from it

At paragraph 43 the Court reaffirms that the writs of execution issued by the Croatian notaries would not benefit from the scheme of the Regulation when it comes to their recognition and/or enforcement. At paragraph 44, the Court reminds that Judgment in Pula Parking does not imply, however, that the Brussels I bis Regulation prevents the notaries from issuing the writs of execution. The references to Judgment in Pula Parking pave the way for the conclusion that neither Article 18 of the TFUE (paragraph 45), nor Article 47 of the Charter (paragraph 53) preclude national legislation entitling the notaries to issue the writs of execution which do not benefit from the recognition/enforcement scheme of the Regulation.

Incidentally, given that according to Judgment in Pula Parking the notaries do not fall within the concept of ‘court’ within the meaning of the Brussels I bis Regulation, paragraph 43 seems to imply that a writ of execution based on a ‘authentic document’ would not be recognized and/or enforced as ‘judgment’ within the meaning of Article 2(a) of the Regulation.

Neither the joined cases in question, nor the case that led to Judgment in Pula Parking offered an opportunity to address the question whether a writ of execution issued by a notary could be enforced under the scheme of the Brussels I bis Regulation as an ‘authentic instrument’ in the sense of Article 2(c) of the Regulation. In any case, an ‘authentic document’ on which a writ of execution is based cannot, in my view, be automatically placed on the same footing as such ‘authentic instrument’. Therefore, a writ of execution would not necessarily have to be an ‘authentic instrument’ based on an ‘authentic instrument’.

For the sake of completeness, AG Bot touched upon a somehow similar question in the context of the Regulation No 805/2004 (Regulation on European Enforcement Order for uncontested claims) in his Opinion in the case C-484/15, Zulfikarpaši. At points 45 to 49, he considered that a writ of execution is not an ‘authentic instrument’ within the meaning of Article 3(1) of that Regulation because the writ does not concern an uncontested claim. That argumentation is in line with the interpretation that the Court presented in its Judgment in that case and in particular at its paragraph 55. However, such argumentation could most probably not be directly transposed to the Brussels I bis Regulation as this Regulation does not confine its scope solely to uncontested claims.

It is also worth noticing that the Judgment of 7 May 2020 makes a point that exceeds the scope of the inquiry on the implications of Judgment in Pula Parking for the Croatian legal system. At paragraphs 33 et seq., in the part of the Judgment of 7 May 2020 relating to the jurisdiction of the Court, the criteria set in Article 3(1) of the Regulation no 1896/2006 (Regulation on European Order for Payment) in order to define a ‘cross-border case’ within the meaning of that Regulation are referred to in order to establish the existence of an international element that is necessary for the Brussels I bis Regulation to become applicable to a specific case.

The requests for a preliminary ruling in the cases in question can be consulted here and here. For numerous linguistic versions of the Judgment see here (no English version yet).

Conference: “Le successioni internazionali in Europa” (International Successions in Europe) – Rome, 13 October 2016

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The Faculty of Law of the University of Rome “La Sapienza” will host a German-Italian-Spanish conference on Thursday, 13th October 2016, on International Successions in Europe. The conference has been convened for the presentation of the volume “The EU Succession Regulation: a Commentary”, edited by Alfonso-Luís Calvo Caravaca (University “Carlos III” of Madrid), Angelo Davì (University of Rome “La Sapienza”) and Heinz-Peter Mansel (University of Cologne), published by Cambridge University Press, 2016. The volume is the product of a research project on “The Europeanization of Private International Law of Successions” financed through the European Commission’s Civil Justice Programme.

Here is the programme (available as .pdf):

Welcome addresses: Prof. Enrico del Prato (Director, Department of Legal Sciences, University “La Sapienza”); Prof. Paolo Ridola (Dean, Faculty of Law, University “La Sapienza”); Prof. Angelo Davì (University “La Sapienza”).

First Session

Chair: Prof. Ugo Villani (University of Bari, President of SIDI-ISIL – Italian Society for International Law)

  • Prof. Javier Carrascosa González (University of Murcia): La residenza abituale e la clausola di eccezione (Habitual Residence and Exception Clause);
  • Prof. Cristina Campiglio (University of Pavia): La facoltà di scelta del diritto applicabile (Choice of the Applicable Law by the Testator);
  • Prof. Erik Jayme (University of Heidelberg): Metodi classici e nuove norme di conflitto: il regolamento relativo alle successioni (Traditional Methods and New Conflict Rules: the EU Regulation Concerning Succession);
  • Prof. Claudio Consolo (University “La Sapienza”): Il coordinamento tra le giurisdizioni (Coordination between Jurisdictions).

Second Session

Chair: Prof. Sergio Maria Carbone (University of Genova)

  • Prof. Peter Kindler (University of Munich): I patti successori (Agreements as to Succession);
  • Round Table: The European Certificate of Succession
    Introduction: Prof. Claudio Consolo (University “La Sapienza”);
    Participants: Dr. Ana Fernández Tresguerres (Notary in Madrid); Dr. Paolo Pasqualis (Notary in Portogruaro); Dr. Fabian Wall (Notary in Ludwigshafen).

Concluding remarks: Prof. Sergio Maria Carbone (University of Genova).

(Many thanks to Prof. Fabrizio Marongiu Buonaiuti, University of Macerata, for the tip-off)

Seminar: “New Trends in EU Private International Law” (Milan, 15 September 2016)

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The University of Milan will host a very interesting seminar on 15 September 2016 (15h00) on “New Trends in EU Private International Law”. Here is the programme:

Welcome address: Prof. Laura Ammannati (Univ. of Milan);

Chair: Prof. Dr. h.c. mult. Fausto Pocar (Univ. of Milan);

  • Prof. Paul Lagarde (Univ. of Paris I Panthéon-Sorbonne): Les règlements en matière de régimes matrimoniaux et d’effets patrimoniaux des partenariats enregistrés;
  • Prof. Dr. Dr. h.c. mult. Jürgen Basedow (MPI, Hamburg): Damages claims for anticompetitive conduct and the competition of legal services;
  • Prof. Dr. Christian Kohler (Univ. des Saarlandes): Les dispositions de d.i.p. du règlement 2016/679 relatif à la protection des données à caractère personnel (et de la directive 2016/680);
  • Prof. Francisco Garcimartín Alférez (Univ. Autónoma de Madrid): The GEDIP proposal on the law applicable to companies;
  • Prof. Manlio Frigo (Univ. of Milan): Methods and techniques of dispute settlement in the international practice of restitution and return of cultural property;

Final remarks: Prof. Stefania Bariatti (Univ. of Milan).

Further information and the (mandatory) registration form can be found here.

(Many thanks to Prof. Francesca Villata for the tip-off)

Reminder: 2015 JPIL Conference at Cambridge: Booking Deadlines

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The 10th Anniversary of the Journal of Private International Law Conference is being held at the Faculty of Law, Cambridge University on 3-5 September 2015.  Booking for accommodation closes soon – on 15th July.  Booking for the conference and dinner will close on 13th August.

The conference offers an excellent opportunity to hear and discuss many issues currently facing private international law.

More information and registration is here.  A draft programme is available on the same web site.

Milan Conference on the Reform of the Brussels I Regime (13 December 2013)

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The University “Luigi Bocconi” of Milan will host on Friday 13 December (9h30 – 13h00) a conference on the recast of the Brussels I reg., organized in collaboration with the International Law Association: “The Reform of the ‘Brussels I’ Regime – The Recast Regulation (EU) No 1215/2012”. A substantial part of the colloquium will be held in English. Here’s the programme (available as a .pdf file):

Welcome Address: Giorgio Sacerdoti (Università Bocconi)

Opening Remarks: Alberto Malatesta (Secretary, ILA-Italy)

Chair: Fausto Pocar (Università degli Studi di Milano)

  • The Revised Brussels I Regulation – A general outlook: The Rt. Hon. Lord Jonathan Mance (Judge, Supreme Court of the UK and Chair, Executive Council, ILA);
  • Does the Recast Regulation Make Choice-of-Court Agreements More Effective?: Gianluca Contaldi (Università di Macerata);
  • The New Rules on Parallel Proceedings with Particular Regard to Relations with Third States: Pietro Franzina (Università degli Studi di Ferrara);
  • The Abolition of Exequatur and the New Rules on the Free Movement of Judgments: Paola Mariani (Università Bocconi).

– – – –

Roundtable (held in Italian): “Il ruolo di Bruxelles I nel contesto globale: quale ruolo per le norme UE?”

Chair: Riccardo Luzzatto (Università degli Studi di Milano)

Speakers:

  • Luigi Fumagalli (Università degli Studi di Milano);
  • Alberto Malatesta (LIUC Università Carlo Cattaneo);
  • Gian Battista Origoni della Croce (Attorney at Law, Milan);
  • Fausto Pocar (Università degli Studi di Milano).

Further information and the registration form are available on the conference’s webpage.

Davì, Le renvoi en droit international privé contemporain (Recueil des cours, vol. 352)

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Prof. Angelo Davì (University of Rome “La Sapienza”) has recently published in the Recueil des cours (vol. 352) the course on renvoi held at the Hague Academy of International Law: “Le renvoi en droit international privé contemporain“.

An English presentation has been kindly provided by the author (a French version is available on the publisher’s website):

The Course deals with the modern development of scientific thinking on renvoi, examines its various functions in contemporary legal systems and assesses the importance of its current role. The different models of renvoi present in domestic legislations as well as in uniform rules on conflict of laws, of either a conventional or supra-national origin, are analysed on the basis of the fundamental distinction between models which merely take into account foreign choice of law rules and models based on a complete reconstruction of the content of foreign private international law. Ample space is accorded to developments in the EU system of private international law, as well as to an analysis of the relationship between renvoi and other methods and techniques currently employed in this area of the law, mainly for the purpose of assessing the effects their diffusion is likely to produce on the role played by renvoi as an instrument of coordination in contemporary private international law.

Title: Le renvoi en droit international privé contemporain, by Angelo Davì, Brill Academic Publishers – Martinus Nijhoff (series: Collected Courses of the Hague Academy of International Law, vol. 352), Leiden, 2012, pp. 528.

ISBN: 9789004227262. Price: EUR 145. Available at Brill.