Agrégateur de flux

Si l’assistance d’un défenseur n’est pas requise pour l’inspection de son étude, un notaire doit toutefois se voir communiquer les réquisitions du parquet dans le cadre des poursuites disciplinaires subséquentes.

En carrousel matière:  Oui Matières OASIS:  Procès équitable (Procédure civile) Convention européenne des droits de l'Homme Cour européenne des droits de l'Homme Profession libérale Ministère public

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The Permanent Bureau of the Hague Conference on Private International Law has just published two Practical Handbooks:
* Practical Handbook on the Operation of the Service Convention (4th edition);
* Practical Handbook on the Operation of the Evidence Convention (3rd edition).

Both publications are for sale in e-Book format on the Hague Conference website here.

Here is the announcement by the Permanent Bureau, as published in the news section of the Conference’s website:
“The new editions of these Handbooks bring together and synthesise the wealth of case law and commentary on the Convention on the one hand, as well as the work of the Special Commission and practice communicated by Contracting States on the other. Furthermore, in recent years, new issues have arisen with respect to the operation of the Conventions, many of which are the result of unprecedented technological developments. Thus, these new editions also include comprehensive research and analysis relating to the use of information technology in the operation of the Conventions, an area that continues to evolve.

Before their official release, both Handbooks were formally approved by the Council on General Affairs and Policy, the highest organ of the Hague Conference on Private International Law. This of course only increases the authoritative value of these Handbooks as a secondary source of information on the operation of these important Conventions.
For more information, please see the Service and Evidence Sections of the Hague Conference website.”

I have reported before on the narrow possibility, within the scope of the Brussels I Regulation, for refusal of recognition of judgments from fellow national courts in the EU (Diageo; Trade Agency). The High Court confirmed the exceptional character of the exercise in Smith v Huertas. Following conviction in a criminal court, Dr Smith had been instructed by the French courts to pay Huertas a considerable sum following fraudulent payments made by a new insolvent company, of which Dr Smith was a director. The argument on ordre public grounds was made viz alleged bias and hostility in one particular court hearing; the long duration of the trial; and one or two alleged procedural inadequacies (in particular, the refusal to interview Dr Smith on a number of occasions).

Most if not all of the complaints were taken by Dr Smith to the ECtHR, which decided not to proceed with the case (such decisions are made in summary manner and one therefore has to guess whether either the claims were found to be manifestly unfounded, or not of a nature as having actually put the applicant at a disadvantage).

Importantly, Cooke J emphasises the responsibility of applicant (seeking refusal of recognition) to raise matters which might conceivably lead to a refusal of recognition, in the Member State of origin: at 21:

Where the factors relied on as being contrary to public policy in England are factors which the court has already considered in the foreign jurisdiction or are factors which could have been raised by way of objection in that jurisdiction, it appears to me self-evident that the foreign jurisdiction must be treated as the best place for those arguments to be raised and determined. To do otherwise would be contrary to the spirit of the Convention and, where issues of unfairness are raised which are capable of being the subject of appeal in the foreign jurisdiction, the court in the enforcing jurisdiction would be much less able to assess them than the original court which was familiar with its own forms of procedure. It is plain that an enforcing court will have much more difficulty in understanding the overall foreign system and its procedures for ensuring that justice is done than the appeal court of the original jurisdiction itself. There is moreover a highly unattractive element in a defendant not raising points which he could have raised in the original jurisdiction, by way of appeal against the judgment and only seeking to raise those matters when the judgment is exported to an enforcing jurisdiction under the Convention as matters of public policy for that court.

Dr Smith’ task therefore was to (at 26) not only … show an exceptional case of an infringement of a fundamental principle constituting a manifest breach of a rule of law regarded as essential in the legal order in this country or of a right recognised as being fundamental within it but that the system of legal remedies in France did not afford a sufficient guarantee of his rights. Dr Smith must overcome the strong presumption that the procedures of the courts of France, another Contracting State, are compliant with Article 6…

A task which in the end Dr Smith failed to accomplish and summary judgment for recognition and enforcement was issued. Review by Cooke J may seem lengthy to some however CJEU case-law emphasises the ad hoc nature of the ordre public exception: that requires some case-specific assessment, of course.

Geert.

 

Objective
This seminar will provide participants with a detailed understanding of the most recent jurisprudence of the European Court of Human Rights (ECtHR) related to family law matters.

The spotlight is centred on Article 8 (respect for private and family life) in conjunction with Article 14 (prohibition of discrimination) and Article 12 (right to marry). The case law of the ECtHR concentrates not only on the legal implications but also on social, emotional and biological factors.

Key topics
Notion of family life – current definition and interpretation by the ECtHR
International child abduction
Balancing children’s rights, parents’ rights and public order
Surrogacy parenthood
Home births and assistance rights
Abortion
Same-sex relationships and trans individuals’ gender recognition

Who should attend?
Lawyers specialised in family law, human rights lawyers, judges dealing with family law matters, ministry officials, representatives of NGOs and child’s rights organisations.

See the full programme here.

L’Istituto Ellenico di diritto internazionale e straniero ha comunicato attraverso il suo sito, il 28 gennaio 2016, la decisione di sospendere, per ragioni finanziarie, la pubblicazione della Revue hellénique de droit international.

Fondata nel 1948, la Revue hellénique ha rappresentato il principale veicolo di diffusione della dottrina greca nel campo del diritto internazionale pubblico e privato, oltre che nel campo del diritto dell’Unione europea, in lingua francese e inglese.

Rispetto alle tematiche internazionalprivatistiche, la rivista ha ospitato, oltre a numerose cronache della giurisprudenza greca, molti contributi scientifici importanti, di studiosi greci e non (le coordinate bibliografiche degli scritti apparsi sulla rivista sono reperibili a questo indirizzo).

La sospensione delle pubblicazioni della Revue hellénique, se non dovesse essere solo temporanea, costituirebbe una perdita significativa per la comunità scientifica degli internazionalisti europei. Essa in ogni caso riflette le condizioni di straordinaria difficoltà in cui sono costretti a lavorare gli studiosi greci, dopo la drammatica crisi che ha colpito il loro paese.

Dorota Leczykiewicz, Human Rights and the Area of Freedom, Security and Justice: Immigration, Criminal Justice and Judicial Cooperation in Civil Matters, available here through on SSRN.

[Abstract] – The chapter considers the rich acquis of the EU falling within the Area of Freedom, Security and Justice from the perspective of human rights. It starts by looking at human rights issues arising from EU asylum and migration law and moves on to the EU’s prevention of crime measures, where it focuses on the judicial cooperation in criminal matters. It finishes by considering the human rights issues arising in the context of judicial cooperation in civil matters. The chapter explains the double role of human rights in the AFSJ – as a policy objective realised through legislative measures and a standard of review of acts adopted as part of this EU activity. It also explains why so many human rights issues arise in the AFSJ and investigates the way in which they have been addressed by the Court of Justice of the EU. The chapter argues that the Court’s case law exhibits an extreme version of utilitarianism, which is incompatible with a corrective justice conception of human rights, underlying the ECHR and the Charter of Fundamental Rights. It concludes that the Court of Justice is far from usurping a human rights jurisdiction for itself and that the full potential of the Charter of the Fundamental Rights to infuse EU law in the AFSJ with content inspired by human rights has not yet been realised. Instead, the chapter observes, the Court is often using the argument of effectiveness to resist arguments of human rights, which, as a result, are protected in the AFSJ only in so far as they are recognised and codified in secondary law.

 

La surveillance de l’utilisation d’internet par un salarié sur le lieu et pendant les heures de travail met en jeu le droit au respect de la vie privée et de la correspondance garanti par l’article 8 de la Convention européenne. Toutefois, il n’est pas déraisonnable de vouloir vérifier que les employés achèvent leurs tâches professionnelles.

En carrousel matière:  Oui Matières OASIS:  Vie privée

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Bail d'habitation

Appel civil

Action en justice

Pourvoi c/ Cour d'appel de Lyon, 7e chambre, 4 décembre 2014

Pourvoi c/ Cour d'appel de Grenoble, 1er chambre des appels correctionnels, 1er avril 2015

Autriche / Commission
Aide d'État
Le Tribunal confirme que la garantie accordée par l’Autriche à la BayernLB dans le cadre de sa restructuration en ce qui concerne les lignes de crédit de BayernLB en faveur de Hypo Group Alpe Adria constitue une aide d’État qui est toutefois compatible avec le droit de l’Union

Azarov / Conseil
Relations extérieures
Le Tribunal de l’UE annule le gel de fonds de cinq Ukrainiens dont MM. Mykola Yanovych Azarov et Sergej Arbuzov, anciens Premiers ministres de l’Ukraine, pour la période allant du 6 mars 2014 au 5 mars 2015

Laezza
Liberté d'établissement
Une réglementation nationale sur les jeux de hasard peut être contraire au principe de proportionnalité si elle impose au concessionnaire de céder gratuitement les équipements utilisés pour la collecte de paris

Éditions Odile Jacob / Commission
Concurrence
La Cour rejette le pourvoi d’Odile Jacob dans l’affaire du rachat de Vivendi Universal Publishing par Lagardère

Lors d’un point presse organisé mercredi 27 janvier 2016, le bâtonnier de Paris Frédéric Sicard a rappelé qu’il avait appelé à un débat constitutionnel sur l’Habeas corpus et le droit à l’avocat. « Les pouvoirs publics ont donné une réponse inquiétante », a révélé le bâtonnier, qui a expliqué qu’il lui avait été répondu en substance que le gouvernement n’avait pas le temps de s’occuper de la question.

En carrousel matière:  Non Matières OASIS:  Néant

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The CJEU has held in Case C-521/14 Sovag that Article 6(2) Brussels I (Article 8(2) in the Recast) applies regardless of whether the proceedings are brought against (which is what inter alia the English language version suggests) or by a third party.

A, the victim of a traffic accident that took place in Germany, brought an action in Finland against SOVAG, with which the vehicle responsible for the damage was insured. That traffic accident also constituting a work accident under the Law on accident insurance, If, which is established in Finland, paid A compensation for the accident in accordance with that law. After A had brought the action against SOVAG, If itself sued SOVAG before the same court of first instance.

The national court in first instance held that, in accordance with Article 8 of Regulation 44/2001, in matters relating to insurance jurisdiction may be determined by the provisions of Section 3 of Chapter II of that Regulation alone. According to SOVAG, Article 6(2) of Regulation 44/2001 is indeed not applicable because Section 3 of Chapter II of the same Regulation establishes an autonomous system for the conferring of jurisdiction in matters of insurance. On this issue, the CJEU (at 30) reminded the national court of earlier case-law that where the action at issue in the main proceedings concerns relations between professionals in the insurance sector, and will not affect the procedural situation of a party deemed to be weaker, the insurance title does not apply. The objective of protecting a party deemed to be weaker being fulfilled once jurisdiction is established on the basis of Section 3 of Chapter II of Regulation 44/2001, subsequent procedural developments concerning only relations between professionals cannot fall within the ambit of that section.

Next, the wording of several of the language versions of Article 6(2), in particular the German, French, Finnish and Swedish versions, does not prevent the court before which the original proceedings are pending from having jurisdiction to hear and determine an action brought by a third party against one of the parties to the original proceedings.  However, other language versions of that provision, particularly the English language version, appear to restrict its scope to actions brought against third parties (‘a person domiciled in a Member State may also be sued: … as a third party’).

While the CJEU acknowledged that the special jurisdictional rules need to be applied restrictively, ie not going beyond their purpose, here the purpose of Article 6(2) is the harmonious administration of justice, namely minimising the possibility of concurrent proceedings and ensuring that irreconcilable judgments will not be given in two Member States. Therefore Article 6(2) must also apply where the third party brings the proceedings, not just where it is drawn into those proceedings by others.

However, the Court also sanctioned the Finnish rule of civil procedure that the right of a third party to bring an action in connection with pending judicial proceedings, is contingent on that action being linked to the original proceedings. Given that Article 6(2) does not apply where the proceedings were brought ‘solely with the object of removing’ the party concerned from the jurisdiction of the court which would ordinarily have jurisdiction to hear the case,  the CJEU OK-ed the Finnish rule as being one that assist in helping to avoid abuse of the rule on joinders.

I would have thought the Court would have made that rule one of EU law, given its insistence on autonomous interpretation. (Rather than simply OK-ing a national rule). Whether there is such a European rule therefore must stay into the open a little longer.

Geert.