Luxembourg has a high number of applications of the European Small Claims Procedure (ESCP). This is atypical compared to other Member States where the ESCP is not widely used. There are several factors influencing the high use of the ESCP in Luxembourg. First, there are many varied ESCP cases involving Luxembourg plaintiffs, such as lawyers, dentists, and ambulances claiming fees from defendants living abroad. Second, Luxembourg courts often allow jurisdiction under the ESCP against foreign consumers by applying the jurisdictional rules broadly. This makes the ESCP an attractive option for Luxembourg plaintiffs. However, the ESCP provides less protection for consumer defendants compared to other procedures due to its more liberal jurisdictional rules and lack of refusal grounds.
The Instrumentalisation of Private International Law. A Regulatory Role for P...Veerle Van Den Eeckhout
Presentation "The Instrumentalisation of Private International Law. A Regulatory Role for Private International Law!? Private International Law and 'Social Justice'"
(Presentation Max Planck Institute Hamburg September 2019; presented previously - February 2019 - at Max Planck Institute Luxembourg)
Rules of International Jurisdiction in the Context of the "Second Generation"...Veerle Van Den Eeckhout
Rules of International Jurisdiction in the Context of the "Second Generation" Regulations. Some reflections from the perspective of protection of weak parties
(For the corresponding paper, see https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3243316
For a sequel (working paper), see https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3330821 )
The Private International Law Dimension of the UN Principles on Business and ...Veerle Van Den Eeckhout
Powerpoint-presentation
at Lausanne, 10 October 2014
Conference "The Implementation of the UN Principles on Business and Human Rights in Private International Law"
( see http://www.isdc.ch/d2wfiles/document/4713/4018/0/Human%20Rights%20in%20PIL-%2010-10-2014.pdf at http://www.isdc.ch )
Abstract:
In the reports on Business and Human Rights by John Ruggie, "access to remedies cq access to justice" appears to be a key element.
Rules of Private International Law can be seen as key factors in achieving access to remedies cq access to justice: PIL rules act like hinges that allow doors - granting access to a specific court and to a specific legal norm - to be opened or to be kept closed; thus, as PIL deals with issues of international jurisdiction and applicable law, PIL rules are of paramount importance in determining access to a specific court and access to a specific legal norm.
In his Guiding Principles, Ruggie addresses the responsibility of States for issuing suitable legislation and ‘access to remedies’; it may be well argued that PIL legislation (rules on jurisdiction and applicable law) and the interpretation of this legislation should also be examined in this context.
In the presentation the focus will be on the hypothesis that plaintiffs want to bring an action before a EU Member State court. When focusing on this hypothesis, one can observe that at least some PIL-aspects are covered by rules of PIL of European origin (the regulation of some other aspects is still left to the EU- Member States themselves). To what extent do these rules allow or deny access to remedies cq access to justice?
In the presentation, some rules and issues of (mainly) European PIL - both jurisdiction and applicable law - that deserve attention from this perspective will be highlighted in an introductory way.
Conference "The Citizen in European Private Law: Norm-Setting, Enforcement and Choice", Maastricht University, Faculty of Law, 18 October 2013.
Presentation Veerle Van Den Eeckhout "Choice and regulatory competition - Rules on choice of law and forum"
The Instrumentalisation of Private International Law. A Regulatory Role for P...Veerle Van Den Eeckhout
Presentation "The Instrumentalisation of Private International Law. A Regulatory Role for Private International Law!? Private International Law and 'Social Justice'"
(Presentation Max Planck Institute Hamburg September 2019; presented previously - February 2019 - at Max Planck Institute Luxembourg)
Rules of International Jurisdiction in the Context of the "Second Generation"...Veerle Van Den Eeckhout
Rules of International Jurisdiction in the Context of the "Second Generation" Regulations. Some reflections from the perspective of protection of weak parties
(For the corresponding paper, see https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3243316
For a sequel (working paper), see https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3330821 )
The Private International Law Dimension of the UN Principles on Business and ...Veerle Van Den Eeckhout
Powerpoint-presentation
at Lausanne, 10 October 2014
Conference "The Implementation of the UN Principles on Business and Human Rights in Private International Law"
( see http://www.isdc.ch/d2wfiles/document/4713/4018/0/Human%20Rights%20in%20PIL-%2010-10-2014.pdf at http://www.isdc.ch )
Abstract:
In the reports on Business and Human Rights by John Ruggie, "access to remedies cq access to justice" appears to be a key element.
Rules of Private International Law can be seen as key factors in achieving access to remedies cq access to justice: PIL rules act like hinges that allow doors - granting access to a specific court and to a specific legal norm - to be opened or to be kept closed; thus, as PIL deals with issues of international jurisdiction and applicable law, PIL rules are of paramount importance in determining access to a specific court and access to a specific legal norm.
In his Guiding Principles, Ruggie addresses the responsibility of States for issuing suitable legislation and ‘access to remedies’; it may be well argued that PIL legislation (rules on jurisdiction and applicable law) and the interpretation of this legislation should also be examined in this context.
In the presentation the focus will be on the hypothesis that plaintiffs want to bring an action before a EU Member State court. When focusing on this hypothesis, one can observe that at least some PIL-aspects are covered by rules of PIL of European origin (the regulation of some other aspects is still left to the EU- Member States themselves). To what extent do these rules allow or deny access to remedies cq access to justice?
In the presentation, some rules and issues of (mainly) European PIL - both jurisdiction and applicable law - that deserve attention from this perspective will be highlighted in an introductory way.
Conference "The Citizen in European Private Law: Norm-Setting, Enforcement and Choice", Maastricht University, Faculty of Law, 18 October 2013.
Presentation Veerle Van Den Eeckhout "Choice and regulatory competition - Rules on choice of law and forum"
Some advice to fashion and luxury businesses, from a barrister and solicitors practising in England & Wales and France, as well as a lawyer practising in Germany, specialising in intellectual property, on the practical steps to take in order to enforce one’s IPRS in France, Germany and the UK.
Holger Alt, ialci Member of the Executive Committee - responsible for Germany – and Partner, von Boetticher
INCOTERMS And CISG, (CONTRACT FOR THE INTERNATIONAL SALE OF GOODS)
LAW8118-INTERNATIONAL BUSINESS LAW
Examines the impact of the law on the enterprises that conduct international business and on particular transactions entered into by such enterprises. The law concerning the formation and some other aspects of international sales contracts especially pursuant to the CISG as well as the law relating to the international transport of goods by sea and international payments (documentary credits) will be examined. The course will also explore selected legal aspects of one particular regional grouping (namely the European Union). In addition, a study will be made of the law concerning some of the methods by which private international legal disputes are resolved with the focus being on international commercial arbitration.
Harmonized interpretation of regimes of Judicial cooperation in civil matters...Veerle Van Den Eeckhout
Presentation 1 June 2022 (Experts meeting Lugano Convention, Bern, Switzerland, 1-2 June 2022, https://www.bj.admin.ch/bj/en/home/wirtschaft/privatrecht/lugue-2007.html), presenting case law since the 2017-meeting.
In the presentation, issues of (un)harmonized interpretation and (in)consistency of various regimes are addressed, consecutively, at the stage of determining the applicability of regimes (the stage of determining if a regime is applicable - Part 1 of the presentation) and, subsequently, at the stage of application of regimes (the stage, once determined that a regime is applicable, of determining how the regime should be applied - Part 2 of the presentation). In a third part, the relevance of the foregoing is presented particularly in light of preliminary questions to the Court. In this third part, particular attention is paid to Articles 53 and 99 of the Rules of Procedure of the Court of Justice, especially as the application of these Articles might lead to issuing an “Order” instead of a judgment.
The presentation includes, inter alia, a discussion of issues of (in)consistency and influence/interaction between regimes, of giving or not a harmonized interpretation (in literature also sometimes indicated as issues of « coherent » or “uniform” interpretation. Cfr. also wordings such as the “articulation between regulations”, “dimension traversale” etc.) , of making possible deductions from decisions in one context to another context - in one way or another: possibly in a harmonized way; possibly, ultimately, making deductions “a contrario” or “a fortiori.”
As the presentation has been given on the occasion of the Lugano experts meeting, the presentation particularly took the perspective of the Lugano convention – thus positioning the Lugano Convention “in context”. However, the view was broader in some regards and several issues addressed were positioned taking also other perspectives in this broad context – the context of the current situation, with its ongoing dynamics, within “Judicial cooperation in civil matters.”
The presentation is not intended to be exhaustive but rather intends to “explore”: the presentation just includes some notes on issues of (un)harmonized interpretation of regimes, looking at recent case law from the Court regarding, especially, the Brussels 1 bis Regulation, the Lugano Convention and the second generation regulations – instruments that all focus on the regulation of procedural aspects of civil and commercial cases, in principle with the exclusion of family issues.
Any view expressed in this text and the document attached is the personal opinion of the author and does not necessarily reflect the view of the Court of Justice.
(Combined short and extended version.
See also, as a pdf-document, this Slide-share page, under "documents", see https://www.slideshare.net/vvde/documents , https://www.slideshare.net/vvde/defffpowerpointluganopdf )
Presentation delivered during the 8th edition of the International conference on tax law, at the Université Laval, Québec (convenor, Professor André Lareau.
As keynote speaker of the event, I discussed the recent development in the field of Taxpayers' Fundamental Rights protection comparing the European situation with the Canadian one.
"Competition rules at European Union (EU) level, as well as in Romania, provide investigative powers for the competition authorities.", Andreea Oprișan, Managing Associate Tuca Zbarcea & Asociatii.
A. jurkowska, antitrust private enforcement in polandMichal
This article presents the main difficulties surrounding private enforcement of
antitrust law in Poland, currently the key implementation problem in the field of
antitrust law. Whereas the basic standards concerning the public pillar of antitrust
enforcement have already been established, either in the European Community
(EC) or in its Member States, the private pillar of antitrust enforcement has not
yet been fully developed. The fact that private enforcement of antitrust law is
possible, and in fact equal, to public enforcement is not yet commonly recognized.
In response to the European Commission’s White Paper on Damages actions for
breach of the EC antitrust rules, private enforcement of antirust law is presently under intense discussion in EC Member States. This article should be considered
as one of the contributions to this debate.
It presents the main legal framework of private enforcement of antitrust law in
Poland. In order to do so, it directly refers to the Polish Act on competition and
consumer protection, the Civil Code and the Civil Procedure Code. This article
also discusses Polish case law in this area. It aims to assess whether existing Polish
legal provisions are, in fact, sufficient to ensure effective private enforcement of
Polish as well as EC antitrust law. The article refers to the main proposals of the
European Commission’s White Paper.
It is concluded that private enforcement of antitrust law is indeed possible in
Poland on the basis of currently applicable procedural rules, even if there are no
special instruments designed to facilitate it. However, it cannot be expect that in the
current legal climate, private parties will eagerly and frequently apply for damages
in cases of a breach of Polish antitrust law. Antitrust cases are special in many
aspects and, thus, they require specific solutions in procedural terms. This article
aims to pinpoint those areas, where the Polish law needs to be changed in order to
develop and promote private enforcement of antitrust law in Poland.
The ne bis in idem Principle in Proceedings Related to Anti- Competitive Agre...Michal
The source of the ne bis in idem principle in European Union law is found in both
the Protocol no. 7 to the Convention for the Protection of Human Rights and
Fundamental Freedoms (Convention) and in the legal systems of many Member
States. It is enshrined in the jurisprudence of the EU courts as a general principle
of EU law. Furthermore, it has also been introduced into some international
agreements concluded by the Member States, i.e. the Convention on the protection
of the European Communities’ financial interests and the Convention on the fight
against corruption, which remain an integral part of EU legislation, as well as in the
Convention implementing the Schengen Agreement, which has been progressively
integrated into EU legislation.
Following the entry into force of the Treaty of Lisbon, which incorporates the
Charter of Fundamental Rights of the European Union (Charter) into EU primary
law, the provision on the application of the ne bis in idem principle is now applied
in the European Union in areas broader than just the scope of the three abovementioned
Conventions. The significance of this principle may also be strengthened
following the accession of the EU to the Convention, as has been set forth in the
new Article 6(2) TEU.
The ne bis in idem principle has found its own, lasting place among the rights
and guarantees of undertakings in proceedings conducted by the Commission
and the national competition authorities (NCAs) of the Member States aimed
at prosecuting and/or sanctioning parties for agreements non-compliant with EU
competition law. However, it is still not applied in proceedings against agreements
having a scope which transcends EU borders, conducted by the Commission or the
NCAs of Member States on the one hand, and by the competition authorities of
non-member States on the other. This approach is grounded both in the provisions
of the Convention and in the provisions of the Charter.
Some advice to fashion and luxury businesses, from a barrister and solicitors practising in England & Wales and France, as well as a lawyer practising in Germany, specialising in intellectual property, on the practical steps to take in order to enforce one’s IPRS in France, Germany and the UK.
Holger Alt, ialci Member of the Executive Committee - responsible for Germany – and Partner, von Boetticher
INCOTERMS And CISG, (CONTRACT FOR THE INTERNATIONAL SALE OF GOODS)
LAW8118-INTERNATIONAL BUSINESS LAW
Examines the impact of the law on the enterprises that conduct international business and on particular transactions entered into by such enterprises. The law concerning the formation and some other aspects of international sales contracts especially pursuant to the CISG as well as the law relating to the international transport of goods by sea and international payments (documentary credits) will be examined. The course will also explore selected legal aspects of one particular regional grouping (namely the European Union). In addition, a study will be made of the law concerning some of the methods by which private international legal disputes are resolved with the focus being on international commercial arbitration.
Harmonized interpretation of regimes of Judicial cooperation in civil matters...Veerle Van Den Eeckhout
Presentation 1 June 2022 (Experts meeting Lugano Convention, Bern, Switzerland, 1-2 June 2022, https://www.bj.admin.ch/bj/en/home/wirtschaft/privatrecht/lugue-2007.html), presenting case law since the 2017-meeting.
In the presentation, issues of (un)harmonized interpretation and (in)consistency of various regimes are addressed, consecutively, at the stage of determining the applicability of regimes (the stage of determining if a regime is applicable - Part 1 of the presentation) and, subsequently, at the stage of application of regimes (the stage, once determined that a regime is applicable, of determining how the regime should be applied - Part 2 of the presentation). In a third part, the relevance of the foregoing is presented particularly in light of preliminary questions to the Court. In this third part, particular attention is paid to Articles 53 and 99 of the Rules of Procedure of the Court of Justice, especially as the application of these Articles might lead to issuing an “Order” instead of a judgment.
The presentation includes, inter alia, a discussion of issues of (in)consistency and influence/interaction between regimes, of giving or not a harmonized interpretation (in literature also sometimes indicated as issues of « coherent » or “uniform” interpretation. Cfr. also wordings such as the “articulation between regulations”, “dimension traversale” etc.) , of making possible deductions from decisions in one context to another context - in one way or another: possibly in a harmonized way; possibly, ultimately, making deductions “a contrario” or “a fortiori.”
As the presentation has been given on the occasion of the Lugano experts meeting, the presentation particularly took the perspective of the Lugano convention – thus positioning the Lugano Convention “in context”. However, the view was broader in some regards and several issues addressed were positioned taking also other perspectives in this broad context – the context of the current situation, with its ongoing dynamics, within “Judicial cooperation in civil matters.”
The presentation is not intended to be exhaustive but rather intends to “explore”: the presentation just includes some notes on issues of (un)harmonized interpretation of regimes, looking at recent case law from the Court regarding, especially, the Brussels 1 bis Regulation, the Lugano Convention and the second generation regulations – instruments that all focus on the regulation of procedural aspects of civil and commercial cases, in principle with the exclusion of family issues.
Any view expressed in this text and the document attached is the personal opinion of the author and does not necessarily reflect the view of the Court of Justice.
(Combined short and extended version.
See also, as a pdf-document, this Slide-share page, under "documents", see https://www.slideshare.net/vvde/documents , https://www.slideshare.net/vvde/defffpowerpointluganopdf )
Presentation delivered during the 8th edition of the International conference on tax law, at the Université Laval, Québec (convenor, Professor André Lareau.
As keynote speaker of the event, I discussed the recent development in the field of Taxpayers' Fundamental Rights protection comparing the European situation with the Canadian one.
"Competition rules at European Union (EU) level, as well as in Romania, provide investigative powers for the competition authorities.", Andreea Oprișan, Managing Associate Tuca Zbarcea & Asociatii.
A. jurkowska, antitrust private enforcement in polandMichal
This article presents the main difficulties surrounding private enforcement of
antitrust law in Poland, currently the key implementation problem in the field of
antitrust law. Whereas the basic standards concerning the public pillar of antitrust
enforcement have already been established, either in the European Community
(EC) or in its Member States, the private pillar of antitrust enforcement has not
yet been fully developed. The fact that private enforcement of antitrust law is
possible, and in fact equal, to public enforcement is not yet commonly recognized.
In response to the European Commission’s White Paper on Damages actions for
breach of the EC antitrust rules, private enforcement of antirust law is presently under intense discussion in EC Member States. This article should be considered
as one of the contributions to this debate.
It presents the main legal framework of private enforcement of antitrust law in
Poland. In order to do so, it directly refers to the Polish Act on competition and
consumer protection, the Civil Code and the Civil Procedure Code. This article
also discusses Polish case law in this area. It aims to assess whether existing Polish
legal provisions are, in fact, sufficient to ensure effective private enforcement of
Polish as well as EC antitrust law. The article refers to the main proposals of the
European Commission’s White Paper.
It is concluded that private enforcement of antitrust law is indeed possible in
Poland on the basis of currently applicable procedural rules, even if there are no
special instruments designed to facilitate it. However, it cannot be expect that in the
current legal climate, private parties will eagerly and frequently apply for damages
in cases of a breach of Polish antitrust law. Antitrust cases are special in many
aspects and, thus, they require specific solutions in procedural terms. This article
aims to pinpoint those areas, where the Polish law needs to be changed in order to
develop and promote private enforcement of antitrust law in Poland.
The ne bis in idem Principle in Proceedings Related to Anti- Competitive Agre...Michal
The source of the ne bis in idem principle in European Union law is found in both
the Protocol no. 7 to the Convention for the Protection of Human Rights and
Fundamental Freedoms (Convention) and in the legal systems of many Member
States. It is enshrined in the jurisprudence of the EU courts as a general principle
of EU law. Furthermore, it has also been introduced into some international
agreements concluded by the Member States, i.e. the Convention on the protection
of the European Communities’ financial interests and the Convention on the fight
against corruption, which remain an integral part of EU legislation, as well as in the
Convention implementing the Schengen Agreement, which has been progressively
integrated into EU legislation.
Following the entry into force of the Treaty of Lisbon, which incorporates the
Charter of Fundamental Rights of the European Union (Charter) into EU primary
law, the provision on the application of the ne bis in idem principle is now applied
in the European Union in areas broader than just the scope of the three abovementioned
Conventions. The significance of this principle may also be strengthened
following the accession of the EU to the Convention, as has been set forth in the
new Article 6(2) TEU.
The ne bis in idem principle has found its own, lasting place among the rights
and guarantees of undertakings in proceedings conducted by the Commission
and the national competition authorities (NCAs) of the Member States aimed
at prosecuting and/or sanctioning parties for agreements non-compliant with EU
competition law. However, it is still not applied in proceedings against agreements
having a scope which transcends EU borders, conducted by the Commission or the
NCAs of Member States on the one hand, and by the competition authorities of
non-member States on the other. This approach is grounded both in the provisions
of the Convention and in the provisions of the Charter.
The Dawn of a General Anti Avoidance Rule: the Italian ExperienceUniversity of Ferrara
Italy has recently introduced a GAAR in its tax system. While the wording of the clause is not original, considering the experience the other countries might have about it, it is the context in which the provision shall operate that arose the interest of the firs commentators.
The article considers is particular the ways in which it will be arguably applied, taking into account the similar (although tailor-made) regulations that address the phenomenon, and that that have not been repealed by it. Treaty based, EU inspired, special law enacted clauses are still there and may potentially collide with the GAAR, making the overall outcome unpredictable for the Interpreter and for the taxpayer as well.
Possible legal instruments to tackle media pluralism and
freedom
Elda Brogi, CMPF
29 October 2012, EUI, Villa la Fonte
http://cmpf.eui.eu/events/policy-conference.aspx
Procedural Autonomy of Member States and the EU Rights of Defence in Antitrus...Michal
The general rule concerning the application of EU law in the Member States is
that, unless the procedural issues are directly regulated in EU primary or secondary
law, the Member States possess a so-called ‘procedural autonomy’. This rule applies
fully to national antitrust proceedings, where the presumed infringement may
affect trade between EU Member States (decentralised EU antitrust proceedings). However, the procedural guarantees offered to undertakings in EU antitrust
proceedings before the European Commission, often referred to the undertakings’
‘rights of defence’, also form a part of the procedural acquis of EU law. This article
examines the question whether that procedural acquis, stemming mainly from EU
courts’s jurisprudence and formulated with regard to the proceedings before the
European Commission, should be applied as a standard in national (i.e. Polish)
antitrust proceedings where EU law applies.
CJEU case-law. A few observations on recent CJEU case law with attention for ...Veerle Van Den Eeckhout
Presentation Veerle Van Den Eeckhout "Aktuelles aus der Rechtsprechung
des EuGH (in englischer Sprache)" at "Dialog Internationales Familienrecht 2023", University of Münster.
Any view expressed in this document is the personal opinion of the author.
The presentation focuses on case law of the CJEU regarding international family law, but adopts a broad view, particularly by taking into account dynamics going on in PIL outside the field of international family law, and by paying attention to case law of the CJEU outside the pure interpretation of PIL regulations. Thus, for example, a judgment such as Belgische Staat (Réfugiée mineure mariée), Case C-230/21, regarding a right to family reunification based on Directive 2003/86 is considered in the analysis.
While presenting case law of the CJEU in PIL matters, the presentation particularly aims to explore some aspects of methodology, reasoning, deductions and “consistency”. The presentation thus presents some aspects of methodology of interpretation of European law by the CJEU, as well as some issues of analysis of case law of the CJEU, and some questions regarding possible further deductions of some cases.
The presentation continues on some reflections that I presented in a discussion of CJEU case law at the Lugano Experts Meeting on 1 June 2022. See Harmonized interpretation of regimes of Judicial cooperation in civil matters? Some notes on recent case law of the Court regarding Brussels 1 bis, Lugano and the second generation regulations (slideshare.net). In a broader way, the presentation builds upon my earlier work, including, inter alia, “De wisselwerking tussen materieel recht en internationaal privaatrecht: eenrichtings- of tweerichtingsverkeer?” Rechtskundig Weekblad, 2000, p. 1249-1265; “The Promotion of Fundamental Rights by the Union as a contribution to the European Legal Space: the Role of European Private International Law”, 2006, Refgov FR 4, 44 p. and “Promoting Human Rights within the Union: the Role of European Private International Law”, European Law Journal, 2008, p. 105-127; “Europees recht en nationaal procesrecht. Enkele beschouwingen naar aanleiding van recente rechtspraak van het Europees Hof van Justitie inzake grensoverschrijdende inning van schuldvorderingen in de EU”, tijdschrift@ipr.be, 2020, p. 49-68 (for a related PowerPoint presentation, see European Law and National Procedural Law. Some considerations following a few cases of the European Court of Justice regarding cross-border debt recovery in the EU (slideshare.net)); my previous comments on some particular issues (see e.g., regarding C-501/20, “Europees echtscheiden. Bevoegdheid en erkenning van beslissingen op basis van de EG Verordening 1347/2000” in Het nieuwe Europese IPR: van verdrag naar verordening, Antwerpen, Intersentia, 2001, p. 69-102), and my many publications, starting from the 1990s, on the relation between migration law and international family law and the instrumentalisation of PIL.
CJEU case-law. A few observations on recent CJEU case law with attention for ...Veerle Van Den Eeckhout
Presentation at "Dialog Internationales Familienrecht 2023", University of Münster (in progress), with Extended version.
Any view expressed in this document is the personal opinion of the author.
The presentation focuses on case law of the CJEU regarding international family law, but adopts a broad view, particularly by taking into account also case law outside the field of international family law – especially when issues arise both in the context of international family law and in the context of PIL outside the field of international family law - , and by paying attention to case law of the CJEU outside the pure interpretation of PIL regulations – where a national court is not asking in its question referred for a preliminary ruling, as such, for an interpretation of a PIL regulation, but the case might, possibly, affect PIL or interrelate with PIL; thus, for example, a recent judgment such as Belgische Staat (Réfugiée mineure mariée), Case C-230/21, regarding a right to family reunification based on Directive 2003/86 was also considered in the analysis. While presenting case law of the CJEU in PIL matters, the presentation particularly aimed to explore some aspects of methodology, reasoning, deductions and “consistency”. The presentation thus presents some aspects of methodology of interpretation of European law by the CJEU – regarding methods the CJEU is using to interpret European law -, as well as some issues of analysis of case law of the CJEU – whereby a case of the CJEU subsequently raises questions regarding its content and reasoning -, and some questions regarding possible further deductions based on the case law of the CJEU. The presentation does not pretend any exhaustiveness in this regard, but rather explores and presents some of these aspects, looking at recent cases of the CJEU.
The presentation continues on some reflections that were presented in another analysis of CJEU case law in PIL Matters – see for the PowerPoint of the discussion of CJEU case law at the Lugano Experts Meeting on 1 June 2022, Harmonized interpretation of regimes of Judicial cooperation in civil matters? Some notes on recent case law of the Court regarding Brussels 1 bis, Lugano and the second generation regulations (slideshare.net). The presentation at the Lugano experts discusses issues of harmonised interpretation of regimes of judicial cooperation in civil matters. As a matter of fact, one may observe a wide range of instruments that are indicated as instruments of “Judicial cooperation in civil matters”. The presentation at the Lugano experts meeting offers, inter alia, a discussion of issues of (in)consistency and influence/interaction between regimes, of giving or not a harmonised interpretation, of making possible deductions from a judgment in one context to another context. The relevance thereof is presented particularly in light of preliminary questions to the CJEU, with attention for article 53 and 99 of the Rules of Procedure of the Court.
CJEU case-law. A few observations on recent CJEU case law with attention for ...Veerle Van Den Eeckhout
Extended version (draft) Presentation at "Dialog Internationales Familienrecht 2023", University of Münster.
Any view expressed in this document is the personal opinion of the author.
Harmonized interpretation of regimes of Judicial cooperation in civil matters...Veerle Van Den Eeckhout
Presentation 1 June 2022 (Experts meeting Lugano Convention, Bern, Switzerland, 1-2 June 2022, https://www.bj.admin.ch/bj/en/home/wirtschaft/privatrecht/lugue-2007.html). The presentation essentially concerns case law since the previous Experts meeting in 2017.
In the presentation, issues of (un)harmonized interpretation and (in)consistency of various regimes are addressed, consecutively, at the stage of determining the applicability of regimes (the stage of determining if a regime is applicable - Part 1 of the presentation) and, subsequently, at the stage of application of regimes (the stage, once determined that a regime is applicable, of determining how the regime should be applied - Part 2 of the presentation). In a third part, the relevance of the foregoing is presented particularly in light of preliminary questions to the Court. In this third part, particular attention is paid to Articles 53 and 99 of the Rules of Procedure of the Court of Justice, especially as the application of these Articles might lead to issuing an “Order” instead of a judgment.
The presentation includes, inter alia, a discussion of issues of (in)consistency and influence/interaction between regimes, of giving or not a harmonized interpretation (in literature also sometimes indicated as issues of « coherent » or “uniform” interpretation. Cfr. also wordings such as the “articulation between regulations”, “dimension traversale” etc.) , of making possible deductions from decisions in one context to another context - in one way or another: possibly in a harmonized way; possibly, ultimately, making deductions “a contrario” or “a fortiori.”
As the presentation has been given on the occasion of the Lugano experts meeting, the presentation particularly took the perspective of the Lugano convention – thus positioning the Lugano Convention “in context”. However, the view was broader in some regards and several issues addressed were positioned taking also other perspectives in this broad context – the context of the current situation, with its ongoing dynamics, within “Judicial cooperation in civil matters.”
The presentation is not intended to be exhaustive but rather intends to “explore”: the presentation just includes some notes on issues of (un)harmonized interpretation of regimes, looking at recent case law from the Court regarding, especially, the Brussels 1 bis Regulation, the Lugano Convention and the second generation regulations – instruments that all focus on the regulation of procedural aspects of civil and commercial cases, in principle with the exclusion of family issues.
The author represented the CJEU at the meeting, giving the presentation on the CJEU case law, but any view expressed is the personal opinion of the author.
(In an upcoming presentation ("CJEU case law. A few observations on recent CJEU case law with attention for some aspects of logic and argumentation theory") I will continue on some aspects of this presentation)
Corporate Social Responsibility - Aspects de droit international privéVeerle Van Den Eeckhout
Université de Valenciennes - Mars 2017.
PowerPoint Veerle Van Den Eeckhout (deuxième partie): "Corporate Social Responsibility; aspects de droit international privé"
Internationaal privaatrecht en fundamentele rechten. Ipr als instrument ter b...Veerle Van Den Eeckhout
Abstract "Internationaal privaatrecht en fundamentele rechten. Ipr als instrument ter bevordering van respect voor fundamentele rechten?"
Veerle Van Den Eeckhout
Boek 10 BW en plaats Boek 10 ten aanzien van supranationale ipr-regelgeving d...Veerle Van Den Eeckhout
Congres/College Internationaal Privaatrecht
Academie Voor de Rechtspraktijk
5 april 2012
Inleidend onderdeel "Inleiding, overzicht IPR"
Veerle Van Den Eeckhout
Responsibilities of the office bearers while registering multi-state cooperat...Finlaw Consultancy Pvt Ltd
Introduction-
The process of register multi-state cooperative society in India is governed by the Multi-State Co-operative Societies Act, 2002. This process requires the office bearers to undertake several crucial responsibilities to ensure compliance with legal and regulatory frameworks. The key office bearers typically include the President, Secretary, and Treasurer, along with other elected members of the managing committee. Their responsibilities encompass administrative, legal, and financial duties essential for the successful registration and operation of the society.
In 2020, the Ministry of Home Affairs established a committee led by Prof. (Dr.) Ranbir Singh, former Vice Chancellor of National Law University (NLU), Delhi. This committee was tasked with reviewing the three codes of criminal law. The primary objective of the committee was to propose comprehensive reforms to the country’s criminal laws in a manner that is both principled and effective.
The committee’s focus was on ensuring the safety and security of individuals, communities, and the nation as a whole. Throughout its deliberations, the committee aimed to uphold constitutional values such as justice, dignity, and the intrinsic value of each individual. Their goal was to recommend amendments to the criminal laws that align with these values and priorities.
Subsequently, in February, the committee successfully submitted its recommendations regarding amendments to the criminal law. These recommendations are intended to serve as a foundation for enhancing the current legal framework, promoting safety and security, and upholding the constitutional principles of justice, dignity, and the inherent worth of every individual.
ALL EYES ON RAFAH BUT WHY Explain more.pdf46adnanshahzad
All eyes on Rafah: But why?. The Rafah border crossing, a crucial point between Egypt and the Gaza Strip, often finds itself at the center of global attention. As we explore the significance of Rafah, we’ll uncover why all eyes are on Rafah and the complexities surrounding this pivotal region.
INTRODUCTION
What makes Rafah so significant that it captures global attention? The phrase ‘All eyes are on Rafah’ resonates not just with those in the region but with people worldwide who recognize its strategic, humanitarian, and political importance. In this guide, we will delve into the factors that make Rafah a focal point for international interest, examining its historical context, humanitarian challenges, and political dimensions.
A "File Trademark" is a legal term referring to the registration of a unique symbol, logo, or name used to identify and distinguish products or services. This process provides legal protection, granting exclusive rights to the trademark owner, and helps prevent unauthorized use by competitors.
Visit Now: https://www.tumblr.com/trademark-quick/751620857551634432/ensure-legal-protection-file-your-trademark-with?source=share
Military Commissions details LtCol Thomas Jasper as Detailed Defense CounselThomas (Tom) Jasper
Military Commissions Trial Judiciary, Guantanamo Bay, Cuba. Notice of the Chief Defense Counsel's detailing of LtCol Thomas F. Jasper, Jr. USMC, as Detailed Defense Counsel for Abd Al Hadi Al-Iraqi on 6 August 2014 in the case of United States v. Hadi al Iraqi (10026)
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Winding up, also known as liquidation, refers to the legal and financial process of dissolving a company. It involves ceasing operations, selling assets, settling debts, and ultimately removing the company from the official business registry.
Here's a breakdown of the key aspects of winding up:
Reasons for Winding Up:
Insolvency: This is the most common reason, where the company cannot pay its debts. Creditors may initiate a compulsory winding up to recover their dues.
Voluntary Closure: The owners may decide to close the company due to reasons like reaching business goals, facing losses, or merging with another company.
Deadlock: If shareholders or directors cannot agree on how to run the company, a court may order a winding up.
Types of Winding Up:
Voluntary Winding Up: This is initiated by the company's shareholders through a resolution passed by a majority vote. There are two main types:
Members' Voluntary Winding Up: The company is solvent (has enough assets to pay off its debts) and shareholders will receive any remaining assets after debts are settled.
Creditors' Voluntary Winding Up: The company is insolvent and creditors will be prioritized in receiving payment from the sale of assets.
Compulsory Winding Up: This is initiated by a court order, typically at the request of creditors, government agencies, or even by the company itself if it's insolvent.
Process of Winding Up:
Appointment of Liquidator: A qualified professional is appointed to oversee the winding-up process. They are responsible for selling assets, paying off debts, and distributing any remaining funds.
Cease Trading: The company stops its regular business operations.
Notification of Creditors: Creditors are informed about the winding up and invited to submit their claims.
Sale of Assets: The company's assets are sold to generate cash to pay off creditors.
Payment of Debts: Creditors are paid according to a set order of priority, with secured creditors receiving payment before unsecured creditors.
Distribution to Shareholders: If there are any remaining funds after all debts are settled, they are distributed to shareholders according to their ownership stake.
Dissolution: Once all claims are settled and distributions made, the company is officially dissolved and removed from the business register.
Impact of Winding Up:
Employees: Employees will likely lose their jobs during the winding-up process.
Creditors: Creditors may not recover their debts in full, especially if the company is insolvent.
Shareholders: Shareholders may not receive any payout if the company's debts exceed its assets.
Winding up is a complex legal and financial process that can have significant consequences for all parties involved. It's important to seek professional legal and financial advice when considering winding up a company.
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These slides helps the student of international law to understand what is the nature of international law? and how international law was originated and developed?.
The slides was well structured along with the highlighted points for better understanding .
1. EPO and ESCP in Luxembourg
MPI Luxembourg, 27 September 2019
Veerle Van Den Eeckhout
2. www.mpi.lu
Table of content
I. EPO and ESCP: general introduction
I. Both European uniform procedures ( but…)
II. Both for cross-border debt recovery
III. Both optional (for creditors, optional regimes) – “IC2BE”
II. ESCP
I. In general
I. Choice: presupposes regime available, informed choice presupposes aware of advantages – impact case
law CJEU
II. Choice: presupposes awareness of existence – = general problem
III. Problems faced by the ESCP in various Member States: “the ESCP is not a success story”
II. The Luxembourgish “atypical” case
I. Luxembourgish case law: varied ESCP-cases (with some “typical” cases)
II. Luxembourgish ESCP-procedures in which “consumer” is the defendant (commenced by Luxembourgish
plaintiffs)
III. “Consumer” as a plaintiff commencing an ESCP (= ESCP commenced by “consumer”)
III. In conclusion: is the ESCP to be considered a “working legal weapon” used by consumers?
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III. EPO: also high application in Luxembourg
I. (but) issue of jurisdiction
I. Rule article 6, 2 EPO
II. Check, remedies – Luxembourgish practice
a. At stage request
b. At stage review
c. At other stages?
II. Issue of pieces to be submitted
III. Issue of review
IV. Service issues
IV. Concluding
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I. EPO and ESCP: General introduction
= two of 4 second generation regulations, Nr. 2 (EPO) and 3
(ESCP) in row of 4 regulations,
“newborns” at the time,
meanwhile ESCP celebrating already its 10th
anniversary this year (as ESCP in force since 1/1/2009) (not anymore
“growing and teething” – already in its teens).
(see also https://cecluxembourg.lu/septieme-conference-sur-des-
aspects-du-droit-de-la-consommation/ )
hereafter first some common features (and differences)
.
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I. Both European uniform procedures (but
…)
Regulations have given birth to special
European procedures; European, uniform,
autonomous procedures with specific rules
from the commencement, including rules on
the value of the judgement, once obtained, in
other European countries
- but issue national aspects; see e.g.
ESCP article 17 appeal, art 19 reference to
national procedural law: many references to
the national procedural laws
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II. Both for cross-border debt recovery
I. Special regimes recovery of debt in cross-border
situations; aims: easy, quick, cheap procedures; plus
no exequatur (“second generation”) – cfr. Now Brussels 1
bis: also no exequatur anymore – but Brussels 1 bis still
more refusal grounds than ESCP and EPO)
II. (Note: with remark ESCP thought particularly
about consumers – aim of enhancing access to
justice for consumers) (but not necessarily, not
limited to consumers)
III. Note: sometimes overlapping scope, sometimes
not – e.g. ESCP limitation claims up to 5.000 euro,
since the amendment)
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III. Both optional (for creditors, optional
regimes)
I. To each other (when overlap). Note already: ESCP
contradictory procedure – EPO unilateral procedure.
II. To procedures existing under the laws of the member
states: (ordinary national procedure/special national
procedure, with Brussels 1 bis.
Note: Special procedure Luxembourg: “OPA” (“Ordonnance
de paiement”)
“’Mother regulation“ Brussels 1 bis still alive and kicking; (thus, one can still use a
national procedure – an ordinary national procedure or a special national
procedure (existing under the law of a Member State) – instead of a European
procedure, leading to a judgment, and use then the Brussels 1 bis Regulation in
order to have the decision of the judge of one European MS enforced in another
European MS
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SO: still national regimes + “European” regimes in new
regulations, as alternatives (and sometimes choice
between ESCP and EPO)
Optional for creditors: the plaintiff may choose among
different options.
Optional for creditors: how do creditors choose
between various regimes? – “IC2BE”-project: “Informed
Choices in Cross-Border Enforcement”
Hereafter first ESCP then EPO
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II. ESCP
I. In general
As said, Optional: choices (options for plaintiff); IC2BE (how do
creditors choose?)
I. “Choice”: Presupposes – for choice – that regime
available and – for “informed” choices – that aware of
advantages/disadvantages, points of attractiveness;
relevance Case law CJEU here: impact on availability and
attractiveness.
Cfr. two Cases CJEU so far on ESCP, on availability and
attractiveness ESCP for plaintiff):
- ZSE Energia, C-627/17 (“cross-border”) (scope of
application) – thus on availability ESCP
- and Rebecka Jonsson, C-554/17 (“costs”) – thus on
attractiveness ESCP
remark Rebecka Jonsson: illustrates, testifies problem
articulation European law – national law; what
European/what national – and how to act when national
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(note, distinction European/national:)
Cfr. Quote Raffelsieper and Duvé 2015: “(…), il se révèle
particulièrement difficile de tracer une ligne nette entre les règles de
procedure purement nationales et l’application présupposée uniforme
des instruments européens. Il semble que l’ordre juridique européenne
se retrouve face à une combinaison complexe de compétence
nationale avec une priorité processuelle des règles européennes, dans
le cas transfrontières”
(Raffelsieper and Duvé in book “Boundaries”, p. 611, with references in
footnote 45)
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CJEU Rebecka Jonsson (C-554/7), European/national:
Case about Fees distribution regime
Article 16 “costs”, “unsuccessful party” – article 19 national law
What if Parties successful in part and unsuccessful in part?
CJEU:
Article 16 “unsuccessful”: only regarding parties whose demands are not just
partially, but completely dismissed
Article 19: applicable procedural law: national law can determine the court fees
distribution regime in situation parties successful in part and unsuccessful in part
Though, in that situation, respecting principles of equivalence and effectiveness
(cfr. note hereafter on this)
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(Note CJEU Rebecka Jonsson: when national, procedural
autonomy: “principles of equivalence and effectiveness”)
Note: Reference in CJEU Rebecka Jonsson to previous case law CJEU
CJEU Rebecka Jonsson:
“26 Therefore, under Article 19 of that regulation, read in conjunction with recital 29 thereof, in a case such as that at issue in the main
proceedings, in which a party is only partially successful, procedural matters relating to the apportionment of the costs of the proceedings
between the parties remain governed by the national law of the Member States.
27 In that regard, it must be pointed out that, in the absence of harmonisation of domestic mechanisms for the apportionment of procedural
costs and subject to the provisions of Regulation No 861/2007, the procedural rules for determining such apportionment are a matter for the
domestic legal order of each Member State, in accordance with the principle of the procedural autonomy of the latter. However, those rules must
not be less favourable than those governing similar domestic actions (principle of equivalence) or such as to make it in practice impossible or
excessively difficult to exercise the rights conferred by EU law (principle of effectiveness) (see, by analogy, judgment of 13 December 2012,
Szyrocka, C-215/11, EU:C:2012:794, paragraph 34 and the case-law cited).”
CJEU Syzrocka: on EPO, referring itself in nr. 34 to
“34 In the absence of harmonistaion of domestic mechanisms for the recovery of uncontested claims, and subject to the conditions laid down
in Article 25 of Regulation No 1896/2006, the procedural rules for determining the amount of the court fees is a matter for the domestic legal
order of each Member State, in accordance with the principle of the procedural autonomy of the Member States. However, those rules must not
be less favourable than those governing similar domestic actions (principle of equivalence) or such as to make it in practice impossible or
excessively difficult to exercise the rights conferred by European Union law (see, to that effect, Case C-618/10 Banco Español de Crédito
[2012] ECR, paragraph 46 and the case-law cited).”
= case law court on Directive unfair terms, principle equivalence and effectiveness as applied in that context - reference
to CJEU Banco Español on claims (by consumer) on Directive unfair terms;
noteworthy here: perspective plaintiff in ESCP case in case that might be against consumer;
Reference to case law CJEU regarding protection consumer Directive consumer, but here consumer might be
defendant, here perspective plaintiff (who might be an enterprise and who might be considering to use ESCP against a
defendant who is a consumer) - Here perspective plaintiff, idea not discourage plaintiff - possibly against
consumer
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II. Choice: Presupposes awareness of existence
Choice: presupposes awareness of existence, and
presupposes familiar how works
= problem, = general problem. Touch here already
one of biggest issues when talking in general
Cfr. hereafter problems in general ESCP (problems
faced by the ESCP in various member states)
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III. Problems faced by the ESCP in various Member States
Problems of
• lack of awareness of the existence of the ESCP,
• lack of familiarity with the ESCP-procedure,
• cumbersome service (transmission of documents),
• language issues,
• costs of translation and other costs (e.g. often representation costs),
• enforcement uncertainties,
• ….
(note: practice guide ESCP, recently even updated – see http://conflictoflaws.net/2019/updated-european-small-claims-guides/ ,
but so problem awareness, problem also “national aspects”: lack of knowledge (also) how it works in other countries – as much
depends on national and thus might be different in various Member States)
…
said: “ESCP is not a success story”
Ex. Germany: in 2017, 478 small claim procedures, but a total of 950.000 proceedings in the local courts.
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II. The Luxembourgish “atypical” case
Cases collected ourselves when going to Cité Judiciaire:
Statistics Cité Judiciaire even higher, see figure on next page (“Petits
litiges” = ESCP)
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2014 34
2015 100
2016 83
2017 140
2018 139
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(II. The Luxembourgish “atypical” case)
Statistics Cité Judiciaire (“Petits litiges” = ESCP): even higher, see
figure
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Nouvelles affaires
Décisions prises
17. www.mpi.lu
So, Luxembourg: high number of application ESCP – = “atypical”
– turning Luxembourg into an interesting “laboratory”, “testing
ground”
Factors influencing the preferences of a plaintiff?
- for the use of an ESCP-procedure,
- especially for the use of an ESCP-procedure in
Luxembourg?
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a) Luxembourgish case law: varied ESCP-cases (with some
“typical” cases)
Workshop June, quote Luxembourgish judge - “Luxembourg is cosmopolitan, with lots
of commuters”,
Can be seen in Cases: cfr. cases about, i.a.,
Luxembourgish lawyers claiming lawyers fees,
cases payment Luxembourgish ambulances,
cases claims by Luxembourgish dentists etc.
against people living in Metz, Arlon, Trier …)
But more than this: Varied.
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(However) With Some patterns, “typical cases”, often seen in case
law:
ESCP often used by Luxembourgish professionals or Luxembourgish
organisations against private persons located abroad (Luxembourgish
plaintiffs claiming the costs for the services they had provided in
Luxembourgish to these people living abroad.
These professionals and organisations seem to have “discovered” the
ESCP as a welcome instrument
- e.g. “Services” in Luxembourg, Luxembourgish plaintiffs: jurisdiction
rules?? In cases against “consumers” (non-professionals). ? See hereafter
for some remarks
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b) Luxembourgish ESCP-procedures in which “consumer” is the
defendant (commenced by Luxembourgish plaintiffs)
(= including cases against consumers and similar persons) (“non-
professionals”)
* Typical problems (issues):
* Jurisdiction: possibility to commence ESCP in Luxembourg against a
foreign “consumer” (private person)?
Jurisdiction rules: narrow concept of “consumer” in article 17 (1) Reg.
Brussels 1bis (rules offering protection to “consumers”) (issue of difference
between “passive” and “active” consumers, whether activities have been
directed or not to country of consumer …)
- Relying on this, Luxembourgish judges often make it possible for plaintiffs
to rely on article 7 no 1 and no 2 of Reg. Brussels 1bis (opening up
jurisdiction in Luxembourg)
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note
(note: said e.g. in interviews not big difference “active/passive”
consumers – both easily falling under protection “consumers”. Cfr.
“Consumers” as plaintiff/defendant in several Luxembourgish cases.
Attention though (from perspective “consumer”, non-professional,
regarding jurisdiction rules): when about claims by Luxembourgish
lawyers against foreign clients: many cases client not considered as
“consumer” (said not directed activities to country of client by lawyer)
(thus, “in advantage” of plaintiff who might sue foreign defendant in
Luxembourg)
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Note: looking at jurisdiction rules applicable to the ESCP/the way they are
applied in Luxembourg, ESCP might be “tempting” to use for
plaintiffs.
ESCP might be “tempting” to use for Luxembourgish plaintiffs
against non-professional parties abroad,
2 remarks:
- Difference in jurisdiction rules with Art. 6 (2) EPO
- Difference with Brussels 1 bis (“refusal grounds”)
See hereafter:
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Remark 1: difference in jurisdiction rules with Art. 6 (2)
EPO
Article 6, 2 EPO: severe rule, more severe than rules ESCP. Seen this way, in
ESCP less protection regarding jurisdiction rules for “consumer”-defendants, as just rules
Brussels I bis and e.g. in cases by Luxembourgish lawyers many cases where
defendants not considered as “consumers” in the sense of Brussels 1 bis
(note: see, though, for more on the EPO-rule, below, including rules
on issues of enforcement of this rule).
(Moreover, requirement Luxembourgish special “OPA”-procedure that
defendant is domiciled in Luxembourg)
Thus: start a cumbersome ordinary procedure in Luxembourg? Start a
procedure (European/foreign national (ordinary or special) procedure abroad?
So, if Luxembourgish plaintiff, looking for possibility to start an “easy”
procedure in “own” country plaintiff: ESCP might be tempting for plaintiffs.
Thus, ESCP might be “tempting” for plaintiffs.
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Remark 2: violation of protective jurisdiction rules: no
“refusal ground” for consumers if erroneously applied
(difference with article 45 Brussels 1bis)
Looking at ESCP this way: ESCP “stripped-down” version of Brussels 1
bis, in this sense.
Seen this way: ESCP attractive for plaintiffs
(note: taking into account also that often said “consumer” “apathie” when sued abroad!? Issue here
circumstance that in principle written procedure: is circumstance encouraging/discouraging defendant
from reacting!?)
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(note: safety net defendant “review” – room for issues
of jurisdiction!?)
Article 18 ESCP: “review mechanism” (art 18 ESCP). But apparently,
seemingly no room for issues of jurisdiction in this mechanism.
(review article 18 ESCP: on service, force majeure …
(see also more on this in presentation Mr. Vincent Richard)
(Case law: tried already “language issues”)
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(note: language issues and review in ESCP)
See e.g.
Justice de Paix de Luxembourg, 3 avril 2015, n° 1553/15
Justice de Paix de Luxembourg, 20 décembre 2016, n°4802/2016, RPL 104/16,
Justice de Paix de Luxembourg, 13 juin 2017, n°2296/2017, RPL 231/16,
E.g. Decision 13 Juin 2017: German defendant asking for a review from the Luxembourgish court; argument: documents were
delivered to him in French, a language he did not understand)
Court responds : « Même à supposer que (…) ne comprend pas la langue française, cette circonstance ne saurait en elle-même
constituer un cas de force majeure ou une circonstance extraordinaire telle que prévue par l’article 18 b) précité, étant donné qu’il
lui aurait été loisible de consulter le modèle du formulaire de demande A en langue allemande figurant sur le site internet de
l’Union européenne, ce d’autant plus que le formulaire de réponse C lui a été notifié en langue allemande et qu’il était partant
parfaitement au courant qu’une procédure était lancée à son encontre. » (Justice de Paix de Luxembourg, 13 june 2017,
n°2296/2017, RPL 231/16, Case nr. 317)
“Assuming that (…) does not speak French, this fact by itself could not account for a case of force majeure or an extraordinary
circumstance as provided by the aforementioned article 18 b), since it was possible for them to look up the model form A in
German on the website of the European Union, all the more so because they were notified of the form C in German, and that they
were fully aware that proceedings had been initiated against them.”
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So, issues comparison ESCP with EPO and Brussels 1 bis
from this perspective: ESCP attractive to use in
Luxembourg
Issue comparison ESCP with EPO and Brussels 1 bis from this perspective: less
protection for consumer/non-professionals – defendants in context ESCP.
(more possibilities to start ESCP in Luxembourg against foreign defendant than in
EPO, and when consumer, no refusal ground as in Brussels 1 bis).
Thus: ESCP attractive for plaintiff, particularly when regarding jurisdiction rules!?
(remark in this context: see for possibly interesting case law on issues of check of
jurisdiction recent case Salvoni, with opinion (C-347/18, 4 September 2019, and
possibly also Weil (C-361/18, 6 June 2019) – as such not on ESCP or other second
generation regulations, but with possible reasonings when asking similar questions
regarding second generation regulations, looking at ressemblances/differences
between regimes?
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So: seen from this perspective ESCP attractive for plaintiffs
However, in a relativistic way: Luxembourgish judges check
competence when defendant does not “appear” (art 28 Brussels 1 bis).
Thus: judges not “easy” for plaintiff, check in any case competence
when no appearance (with note regarding e.g. cases of lawyers
claiming their fees)
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in any case, regardless how
“difficult”/”easy” Luxembourgish judges for
plaintiffs,:
Point of attraction to start proceeding in
Luxembourg:
• no court fees in Luxembourg
• Probably also: judges experienced in cross-border cases
(note: seen from this perspective, less need to “centralize” – as, in general – regarding other countries - lack of experience of judges with
instruments is often mentioned as a reason to centralize)
These 2 points of attraction might also be important in ESCP-procedures
commenced by consumers/non-professionals, see hereafter
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c) “Consumer” as a plaintiff, commencing an ESCP
(= ESCP-procedures by consumers)
• Case law – varied cases
• Usual problems (also present in Luxembourg) faced by consumers commencing
an ESCP:
lack of awareness, lack of knowledge, problems in filling out standard forms etc. …
(judges may be experienced in cross-border cases and familiar with instruments, consumers (/non-professional) themselves
are not
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Note on problems consumers in Luxembourg
Consumers sometimes, though, “helped” by judges, e.g. regarding
jurisdiction issues, who describe this as their professional task of
assistance; cfr. “mystery calls” to courts: said good experiences
(regarding jurisdiction issues: sometimes linked to discussion of centralization. Not so much an issue in
Luxembourg, where only three juges de paix (and where, as said, judges experienced. Some however in
favour of centralization)
But e.g. language problems consumers – e.g. regarding “open part” in
ESCP-form. English not officially accepted in Luxembourg! Forms but
“open part” – said that language issues sometimes reason to avoid
Luxembourgish courts
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c) “Consumer” as a plaintiff, commencing an ESCP - continuation
(= ESC-procedures by consumers)
• Cases of “consumers” against airlines
(claims compensation cancelled/delayed flights) – some victories for “consumers”
− Note: plaintiffs no “consumers” in sense of Brussels 1 bis; jurisdiction often based on article 7
Brussels 1 bis (CJEU Rehder)
(Rehder: C-204/08, 9 July 2009) – even case Luxembourg where Luxembourg not departure/arrival:
(in one case, the competence was (implicitly) accepted even though Luxembourg was just the original departure of a subsequent
second flight that was cancelled (see Justice de Paix de Luxembourg, 18 juillet 2018, n°2768/2018, RPL 118/17).
Several ESCP-cases against airlines often discuss the competence of the court – defendants sometimes replying, sometimes
absent and then check by Luxembourgish judge relying on article 28 Brussels 1 bis
− Note: recent case law on forum choices airlines – Belgian Supreme Court 8 February 2019;
(case C-629/18 Ryanair: removed from register CJEU)
(cases on strikes, pending case CJEU Ryanair C-735/18 and considered preliminary question
Luxembourg in ESCP-case Justice de Paix Luxembourg 21 janvier 2019, n° 650/2019)
(note: for a Luxembourgish EPO-case against airlines, see decision 30 June 2015; claim was
higher than ESCP-threshold at the time)
• Consumers (just) threatening the businesses with the commencement of an ESCP (threatening
that easy procedure, no need lawyer etc.)
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III. Conclusion
Is the ESCP to be considered a “working legal weapon used
by consumers”?
(Is it:
• an effective instrument used by (- and against? -)
consumers?
• a workable tool to enforce consumer rights (enhancing access
to justice)?
In EU-Member States – especially in Luxembourg?
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I. Issue of jurisdiction
High application also (as ESCP in
Luxembourg), but article 6, 2 EPO (issue of
jurisdiction) as a possibly refraining factor
I. Rule art 6, 2 EPO: concept of “consumer”
(wide!?) in, and absolute character of art. 6, 2
EPO: seemingly more protection for consumer-
defendant in EPO than in ESCP/Brussels 1 bis
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(Note on rule article 6, 2 EPO):
I. Luxembourgish case law: reference to case law CJEU on Directive consumer
protection
(reference to case law CJEU (“falling under scope Directive consumer”) to argue
that consumer contract in sense of art 6, 2 EPO)
(Note: regarding concept consumer in Directives/in jurisdiction rules Regulations, see i.a.
CJEU Vapenik (C-508/12), CJEU Pillar Securitisation (C-617))
II. (only?) condition art 6, 2: (defendant) non-professional (and if follow Vapenik (C-
508/12) on EEO: not C2C)
III. Seemingly (?) no additional requirements Brussels 1 bis (in any case these
requirements not mentioned/repeated in article 6,2 EPO) (thus also
protection for active consumers-defendants!?)
IV. In any case absolute rule (forum choice not allowed)
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?
or
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II. So, severe rule, but: check, remedies article 6, 2 EPO?
Sanctions if rule not respected by plaintiff?? Issue: judge
relies on information by plaintiff – check at
a. stage request/
b. at stage review/
c. other stages??
.
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a. Luxembourgish judges seemingly check article 6, 2
EPO at stage request
said in interview with Luxembourgish judge: is
“educational” task judge
« Ils font cette analyse dans un but éducatif en
quelque sorte. »
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b. Luxembourgish judges check article 6, 2 EPO in
context review
(Attention CJEU Thomas Cook (C-245/14): CJEU quite severe
(cfr. Quote Professor Nourissat: “caractère impitoyable”, “prix à payer”:
Prof. Nourissat comment on Thomas Cook, quote: “On ne peut qu'approuver la Cour de justice dont l'arrêt est solidement étayé. Et souligner en définitive à nouveau le
caractère impitoyable de la procédure européenne d'injonction de payer. Son efficacité est probablement à ce prix et les débiteurs et leurs conseils ne doivent pas le sous-
estimer.)
But:)
Luxembourg: already checked jurisdiction rules and granted review because of violation of jurisdiction rule,
see Tribunal de Paix Luxembourg 30 June 2015, n° 2691/2015
(note: Tribunal de Paix Luxembourg 26 septembre 2017, nr. 3142: also assessed, but review not granted:
said that defendant was no “consumer” in sense article 6, 2 EPO because not acted as a non-professional)
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(Note on review and jurisdiction rules EPO)
* note: see e.g. also decision juge de Paix de Luxembourg 20 octobre 2015, nr. 3582, regarding
review because of violation of other jurisdiction rules (not about consumer issues but sales contract –
article 25 and 7, 1, b Brussels 1 bis)
* But see e.g. also reference in Tribunal d’Arrondissement Jugement Civil, 1ere Chambre, 17 Janvier
2018, n° 19/2018 to CJEU Thomas Cook, seemingly in sense that quite demanding before might
speak of “error”, judge not quickly reproached to have made “error”, not quickly reproached to have
made wrong assessment
“… En l’espèce … le tribunal estime que la vérification de la compétence par la jurisdiction d’origine
aurait nécessité un examen approfondi des circontances de fait …
… Par consequent, le tribunal retient qu’il n’est pas “manifeste” que l’injunction de payer européenne
… aurait été délivrée à tort au vu des exigences fixées par le règlement et rejette ce moyen.”
(so: difference between error as such in jurisdiction/error by judge in (quick) assessment?) (thereby
severe, demanding, regarding “error”, “fault”?)
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c. Luxembourgish judges check article 6, 2 EPO (even)
after contestation (stage “transfer”)!?
= remarkable practice
Rather start all over again here (see CJEU Flight Refund (C-94/14))!?
Note: CJEU Goldbet (C-144/12) (contestation does not mean tacit agreement for ordinary procedure)
followed in Luxembourg: Luxembourgish practice regarding this issue in line with case law Goldbet of CJEU,
but, so, remarkable practice Luxembourg: check article 6, 2 after opposition - and in this case law, when said
violation art 6, 2 EPO: courts stop procedure – instead of transferring to ordinary procedure and check
Brussels 1 bis!?)
general remark about transfer “dossiers en attente”:
Cfr; remark, note in Luxembourgish report on “transfer”of the case. See also remark during interview
with Luxembourgish judge, on the practice of the EPO in Luxembourg, about cases “en attente” as
none of the parties have taken actions once the court informed them of the opposition:
« L’opposition est faite, ils informent les parties des suites de la procédure et les deux doivent réagir
avant que les juges puissent faire quelque chose. Le plus souvent aucune ne réagit, souvent même le
demandeur. Le dossier est alors en attente. »
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II. Issue of pieces to be submitted
So: Luxembourgish judges rather severe with EPO regarding
jurisdiction
+ rather severe regarding pieces
said in interview with Luxembourgish judges: “judges
not instruments”:
« Il y a un risque que sans les pièces, le juge soit instrumentalisé. »
(and e.g.
« Il semble impossible alors de demander à quelqu’un de payer avant même d’avoir vérifié les pièces, selon elle, et ça
va à l’encontre de leur éducation en tant que juges. Cela peut être liée au contrôle automatisé tel qu’il est mentionné
dans les textes, qui transformerait le titre exécutoire en simple rappel de facture. »)
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Cfr. Issue of “abuse”
Quotes from interview with Luxembourgish judge:
“L’idée qu’on ne soit pas obligé de verser des pièces mais de
simplement les décrire invite à la fraude”
And quote from interview with lawyer:
(plaintiff) “peut dire n’importe quoi”
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Note:
in this light, perspective: pending case Bondora (C-453/18 and C-494/18)
particularly regarding Directive unfair terms, Spain, but
issue: what must/can judge do?
(previously: CJEU Banco Español de Credito (C-
618/10) – issue as such not addressed by CJEU; possible relevance CJEU
Szyrocka, C-215/11?))
(possible reasonings, argumentations from cases CJEU Salvoni (C-347/18)/Weil
(C-361/8)?)
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Note:
interview Luxembourgish judges: said that asking pieces is also in
interest plaintiff;
interview Luxembourgish lawyers: apparently often pieces
spontaneously sent by lawyers
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III. Issue of review
(and issue: streamlining in future with review mechanism ESCP?)
article 20 EPO includes aspect “error” (“clearly wrongly issued”) - not present in
ESCP
Streamline in future art 20 (par 1) EPO with review mechanism ESCP??
(regarding (service)), with/without keeping part (article 20 par 2) about errors?
if streamline (without keeping part about errors): no “safety net” anymore for
errors (such as jurisdiction) – is a bad thing? (importance jurisdiction with EPO - being a
written procedure?)
(regarding aspect article 20 “service” – see presentation mr. Vincent Richard)
regarding hypothesis/case CJEU Eco Cosmetics (C-119/13 and C-120/13) in
Luxembourg (CJEU: to be remedied by national law): see Luxembourgish case law
Tribunal d’arrondissement de Luxembourg, 21 mars 2017, nr. 78/2017 – several
interviewees: suggestion to include in legislation in order to make it more transparent
(Note: Tribunal de Paix Luxembourg 26 September 2017, nr 3142 about EPO
and language issue – not accepted as “force majeure” in context review)
CJEU, also on service, language and EPO: recently Catlin Europe C-21/17
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IV. Service issues
Service issues - issue receive AND understand
criticism on service EPO (by post) – huge importance
defendant being made alert in context EPO (as huge effect
reaction/lack of reaction defendant): might say that the protection of the
debtor’s rights of defense stands or falls on a sound and secure
service!?
problem (notified): comprehension of what received, what
must/can do?
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Said two extremes:
- See, ultimately, as publicity material
or
- Completely overwhelmed and intimidated as “coming from” a judge
Cfr. Quote interview Luxembourgish judge:
« Pour les injonctions de payer, on reçoit un formulaire avec des explications très longue que beaucoup ne comprennent pas ou
ne lisent même pas. Ce formulaire peut même sembler publicitaire et beaucoup ne comprennent pas la valeur de ce qu’ils
reçoivent. Ils ne s’en rendent compte qu’une fois que l’huissier leur explique que ce qu’ils reçoivent a la valeur d’un jugement. La
forme du formulaire induit en erreur, ainsi que le fait que le formulaire vient par la poste et non pas par un huissier.
Il y a l’autre extrême, certains comprennent de quoi il s’agit, mais n’osent même plus répondre et par peur croient qu’ils sont déjà
obligés de payer. »
and
“Le risque avec ces procédures, surtout qu’au Luxembourg elles sont gratuites, c’est qu’elles peuvent très facilement
impressionner, car elles sont signées par un juge. Ils pensent alors qu’il sont obligés de payer.”
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IV. Concluding
Two Achilles heels regulations:
- service – see more on this today i.a. in presentation mr.
Vincent Richard
- enforcement issues - see more today, e.g. presentation Mr.
Hinrichs
But first, before that: ESCP and EPO France, see presentation Mr.
Carlos Santaló
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50. EEO in France
MPI Luxembourg, 27 September 2019
Veerle Van Den Eeckhout
51. www.mpi.lu
Table of Contents
I. Some remarks on general features of the EEO
II. Some remarks on ressemblances/differences with Brussels 1 bis. EEO:
I. No exequatur (idem Brussels 1 bis)
II. Almost no refusal grounds (difference Brussels 1 bis)
III. Check by Court of origin (“instead”?)
I. Note: see e.g. CJEU Cornelius de Visser
II. Note: see e.g. CJEU Collect Incasso and Zulfikarpasic
III. Thus, seemingly severe - = kind of shift/…??
III. France EEO: additional value, enthusiasm?
I. On the one hand – criticism, resistance, reluctance etc.
II. On the other hand – practice notaries!
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I. Some remarks on general features of the EEO
EEO in general:
- was first of newborns at the time (chronologically);
first one of second generation regulations for cross border debt recovery (“Cross-border”:
not for purely national cases (with strict definitions)
But this, first, regulation, European enforcement order: not necessarily cross-border situation at the
beginning)) – see opinion CJEU Zulfikarpasic C-484/15 nr 25 on need or not of internationality –
touching, thus, issue of “availability” of regime
“25. Unlike Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a
European order for payment procedure, (5) Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July
2007 establishing a European Small Claims Procedure, (6) or even Regulation (EU) No 655/2014 of the European Parliament and
of the Council of 15 May 2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt
recovery in civil and commercial matters, (7) Regulation No 805/2004 does not impose any requirement relating to the cross-border
nature of the dispute, which more often than not means that at least one of the parties must be domiciled or habitually resident in a
Member State other than the Member State of the court seised. (8)”
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- this regulation creating a European Enforcement Order for
“uncontested” claims
Remark: “uncontested” = also, about “availability” regime – and also here
issue (cfr. first presentation) what is European/what is national) (cfr. some
more remarks on this below)
- when effectively obtained certificate as a European Enforcement
Order: (functions as a) kind of “European passport”; Allow to give a kind
of European Passport to decisions of a member state, providing these
decisions with enforceability in other countries, but under condition
that certain requirements have been met. In regulation, can find so-
called minimum-standards a judgment should have complied with (in
order to obtain that European Enforcement Order).
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II. Some remarks on ressemblances/differences with
Brussels 1 bis
I. (¨passport¨:) no exequatur
- cfr. currently Brussels 1 bis (thus questioned “raison d’être” – issue
additional value at this moment)
II. but EEO almost no refusal ground country enforcement
* (public order (lack of public order as a refusal ground in EEO
while still present in Brussels 1 bis: in interviews mostly not considered relevant)
* refusal ground jurisdiction weak party: not present in EEO; but
(at least) refusal ground consumer-jurisdiction (as at the time in Brussels 1) more or
less moved as condition (in situation as mentioned in EEO) to check by country
origin
III. (instead?) “country origin”, check there (and possibly withdrawal there)
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Some more remarks/thoughts on issue “court origin”:
- severe what to check etc. (/even more “severe” than Brussels 1 bis?)
(1) Cornelius de Visser C-292/10
(dictum:
“3. European Union law must be interpreted as precluding certification as a European Enforcement Order, within the
meaning of Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a
European Enforcement Order for uncontested claims, of a judgment by default issued against a defendant whose
address is unknown.”)
CJEU in this case: comparison with Brussels 1, see nr. 66 of the judgment:
“66 As is clear from paragraph 57 of the present judgment, the defendant, by opposing, in accordance with
Article 34(2) of Regulation No 44/2001, recognition of the judgment issued against him, will have the opportunity to
ensure respect for his rights of defence. That guarantee would, however, be lacking if, in circumstances such as those
of the main proceedings, a judgment by default issued against a defendant who was unaware of the proceedings was
certified as a European Enforcement Order.”
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(Note cfr. Also recently CJEU in judgment C-518/18 (Cornelius de Visser
recently confirmed in RD v SC, C-518/18)
nr 26-27:
“26 The Court observed that, in the light of Article 14(2) of Regulation
No 805/2004 and the objectives and scheme of that regulation, a judgment
by default issued in circumstances where it is impossible to ascertain the
domicile of the defendant cannot be certified as a European Enforcement
Order (judgment of 15 March 2012, G, C-292/10, EU:C:2012:142,
paragraph 64).
27 That conclusion remains valid despite the appointment of a guardian
ad litem for the purpose of the proceedings, by the referring court which
had been unable to obtain SC’s address.”)
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(2) see eg also Collect Incasso C-289/17 and Zulfikarpasic C-
484/17;) – severe, holding on to minimum standards regulation
(Collect Incasso: address court should be mentioned; issue not
mentioning address
Zulfiparsakov: issue notary, (un)contested; notary is not court, not
certificate if not consent
These: In same line as Cornelius de Visser? Rights of defense, severe,
strict, court of origin
- looking at (1) (Cornelius de Visser) and (2) (several other cases
on EEO): might say shift and severe, even more severe than
Brussels 1 bis??
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Note: cfr. Quote Prof. Hess in “50 years Bussels 1 bis”, G.
Van Calster (red), p. 41-42 discussing CJEU Collect Inkasso
and CJEU Zulfikarpasic:
“From a scholarly point of view, these decisions are not very compelling. However,
they demonstrate the firm intention of the Court of Justice to reinforce the right of
defence by strictly applying the standards guaranteed by these instruments. It
seems that the CJEU is aware of the imminent dangers of these regulations
which permit the direct cross-border enforcement of judgments without any
exequatur proceedings. Yet, in return, these procedures provide for a residual
control in the EU Member State of origin. Therefore, the Court of Justice has
reinforced the judicial control of the proceedings and of the substantial claim in the
Member State of origin where the enforceable title is rendered. This corresponds
to the underlying design of these instruments but the CJEU also clearly reinforced
the procedural guarantees of these instruments.”
So Prof. Hess: about risks of regulations, but reinforce rights defense, court origin
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(idea here might seem to be that court origin does what
otherwise done/possible afterwards; thus, would be pure
shift. But question: purely shift? Or deleted, abolished
(stripped down) – or conversely, even more severe?
(cfr. European procedures ESCP and EPO: swift, during procedure integrated,
assured, integrated? Must check there/can ask there (at origin) same (as in country
enforcement regarding Brussels 1 bis?) Caliber rules, task all actors there? Cfr. what
already mentioned regarding EPO and ESCP regarding possibilities to
check/remedy during procedure and presence/absence of remedies afterwards –
including issue of review in those procedures)
Regarding EEO: Cases Cornelius de Visser etc.: set the tone, representative,
(pure) shift from Member State enforcement to Member State origin – and
there very severe regarding rights of defense, protection of defendant?
Or is less, and kind of stripped down version of Brussels 1 bis?
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Note: comparison EEO-Brussels 1 bis, remarks:
* EEO, literature: in any case e.g. criticism Grusic lack of special protection
other category weak party i.e. employees - risk “undermine” Brussels I bis)
(but consumer concept in EEO (consumer protection in EEO, as condition
to be checked by court origin: more protective for consumer-defendant,
because also including active consumers?? CJEU Vapenik (C-508/12):
issue of (in)coherence EEO and Brussels 1 bis regarding C2C; but what
about difference active/passive consumer? (in EEO no additional
requirements Brussels 1 bis, thus broader concept consumer, thus more
protective?)
* opinion in recent case Salvoni (C-347/18): nr. 72 opinion comparison
Brussels 1 bis – EEO (consumer protection)
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III. France EEO – additional value of the EEO,
enthusiasm about this instrument?
Might say France:
“on the one hand” …
“on the other hand” …
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“on the one hand”: criticism, resistance, reluctance
etc.
* (Cfr. Also presentation Prof. Nourissat workshop MPI June 2018, cfr. case law)
problem understand/accept that (almost) nothing can be done in country
enforcement (regarding possibilities to contest etc.),
(cfr. “educational” role of case law French Cour de Cass, saying that EEOs cannot be contested in the
Member State of enforcement, but only where they have been issued)
(Cfr. EPO)
if France is country of enforcement: one should go to the country of origin to ask for a withdrawal of EEO,
to contest or ask a review of the EPO etc.
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(Note, remark in report: issue may be linked to issue of jurisdiction:
Reflection: the foregoing might be related to remarks about non-response by
defendants when they receive documents “from abroad”, in cross-border
procedures taking place abroad – especially when they are consumers.
Nevertheless, afterwards, it is “too late” to act and (almost) nothing is possible
anymore; (almost) no possibilities in country enforcement, (almost) no possibilities
court of origin; on this issue in context EPO, see already before, on art 6, 2 trying to
assure that takes place in country domicile defendant – but issue there check and
remedies)
The foregoing might, in turn, be linked with the rules of international jurisdiction in
the regulations.)
(Note: special rule in article 23 EEO – several cases on application of this article)
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* said also – e.g. in the context of the
discussion on the EEO in France - that there is
a “culture clash” between the “protection of
the plaintiff” (instead of/) rather than “protection
of the debtor-defendant,” - as regulations are
“pro-creditor”, versus French “pro-debtor”
orientation (more debtor-friendly) – this is
e.g. said in the context of the discussion on the
EEO in France (e.g. during workshop June
2018)
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* issue “uncontested”
issue “uncontested” – cfr. case law CJEU Pebros Servizi C-511/14 and Zulfikarpasic C-484/15 (and
recently (27 June 2019) RD v SC C-518/18)
(very recent: 27 June 2019) decision on EEO, “RD v SC”:
“Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004
creating a European Enforcement Order for uncontested claims must be interpreted as meaning
that, where a court is unable to obtain the defendant’s address, it does not allow a judicial decision
relating to a debt, made following a hearing attended by neither the defendant nor the guardian ad
litem appointed for the purpose of the proceedings, to be certified as a European Enforcement
Order.”
(Thus reconfirmed CJEU Cornelius de Visser:
26 The Court observed that, in the light of Article 14(2) of Regulation No 805/2004 and the objectives
and scheme of that regulation, a judgment by default issued in circumstances where it is impossible to
ascertain the domicile of the defendant cannot be certified as a European Enforcement Order (judgment
of 15 March 2012, G, C-292/10, EU:C:2012:142, paragraph 64).
27 That conclusion remains valid despite the appointment of a guardian ad litem for the purpose of the
proceedings, by the referring court which had been unable to obtain SC’s address.)
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Remark: issue of “uncontested”: also relates to
(already-mentioned) issue of “availability” of regimes (as was
mentioned in the beginning of the first presentation, on ESCP and
EPO),
and to issue of what is European/what is national, as also
already mentioned with other Regulations (Cfr. Presentation on EPO
and ESCP in Luxembourg)
All in all: seemingly reluctance etc.
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“on the other hand”: practice notaries!
Note: seems in line with case law CJEU C-484/15, Zulfikarpasic: only if
accepted, consented
French notaries seem to require express consent (express, explicit consent)
Cfr. Dictum Zulfikarpasic:
1. Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European
Enforcement Order for uncontested claims 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.
2. Regulation No 805/2004 must be interpreted as meaning that a writ of execution adopted by a notary, in Croatia, based on
an ‘authentic document’, and which has not been contested may not be certified as a European Enforcement Order since it does
not relate to an uncontested claim within the meaning of Article 3(1) of that regulation.
(Thus, Remark: the practice of the French notaries seems to be in line with the case law of the Court, see CJEU C-484/15,
Zulfikarpašic, 9 March 2017 (in which the Court decided, i.a., that the EEO must be interpreted as meaning that a writ of execution
adopted by a notary, in Croatia, based on an “authentic document”, and which has not been contested may not be certified as a
European Enforcement Order since it is not related to an uncontested claim within the meaning of Article 3(1) of the Regulation):
French notaries seem to require express consent.)
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Usefulness of the EEO indicated by French notaries;
actual use of EEO by French notaries (even seems to
be a flourishing practice)
On this practice of French notaries particularly more by Mr. Cagniart -
but before, presentation on EEO in Luxembourg, and presentation Mr.
Hinrichs on Redress 17, results research several regulations (including
also EEO – and others such as ESCP, (EPO) and Brussels 1 bis)
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