Agrégateur de flux

Le litige né d’une action en responsabilité né de la rupture d’une relation commerciale établie n’entre pas dans le champ d’application de la clause attributive de juridiction stipulée entre un fournisseur allemand et un distributeur français, faute d’avoir été convenue à propos d’« un rapport de droit déterminé » au sens de l’article 23, 1, du règlement Bruxelles 1.

En carrousel matière:  Non Matières OASIS:  Rupture brutale d'une relation commerciale

en lire plus

On 9 December 2015, the European Commission presented two proposals aimed at the adoption of harmonised rules governing digital contracts, namely a proposal for a directive on certain aspects concerning contracts for the supply of digital content (COM (2016) 634 final), and a proposal for a directive on certain aspects concerning contracts for the online and other distance sales of goods (COM (2016) 635 final)

The proposed measures are meant to pursue one of the basic goals of the Commission’s Digital Market Strategy, ie to ensure better access for consumers and businesses to online goods and services across Europe.

To this end, the proposed directive on the supply of digital content lays down certain requirements “concerning contracts for the supply of digital content to consumers, in particular rules on conformity of digital content with the contract, remedies in case of the lack of such conformity and the modalities for the exercise of those remedies as well as on modification and termination of such contracts”, whereas the proposed directive on online sales of goods provides for rules “concerning distance sales contracts concluded between the seller and the consumer, in particular rules on conformity of goods, remedies in case of non-conformity and the modalities for the exercise of these remedies”.

The legal basis for both directives is Article 114 of the Treaty on the Functioning of the European Union, concerning the “approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market”.

As regards the coordination of the envisaged new directives with the existing rules of private international law that deal with digital contracts, the following remarks may be found in the Commission’s proposals and related texts.

In the explanatory memorandum accompanying the directive on the supply of digital content, the Commission observes that, “[t]ogether with the proposed new contract rules for the purchase of digital content as set out in this proposal, the existing rules on private international law establish a clear legal framework for buying and selling in a European digital market, which takes into account both consumers’ and businesses’ interests”.

As a consequence, “the proposal does not require any changes to the current framework of EU private international law, including to the Regulation (EC) No 593/2008 (Rome I)”. Recital 49 of the preamble reflects this assumption by stating that “[n]othing in this Directive should prejudice the application of the rules of private international law, in particular Regulation (EC) No 593/2008 of the European Parliament and of the Council and Regulation (EC) No 1215/2012 of the European Parliament and the Council”, ie the Brussels Ia Regulation.

A more detailed analysis of the private international law implications of the proposed new rules is provided in the memorandum relating to the directive on online sales of goods.

The Commission begins by noting that the proposal “is compatible with the existing EU rules on applicable law and jurisdiction in the Digital Single Market”. The Brussels Ia and Rome I Regulations “apply also in the digital environment”, “have been adopted quite recently and the implications of the internet were considered closely in the legislative process”.

As a matter of fact, “[s]ome rules take specific account of internet transactions, in particular those on consumer contracts”, and “aim at protecting consumers inter alia in the Digital Single Market by giving them the benefit of the non-derogable rules of the Member State in which they are habitually resident”. Since the proposal on online sales of goods “aims at harmonising the key mandatory provisions for the consumer protection, traders will no longer face such wide disparities across the 28 different legal regimes”.

As stated in the preamble of the proposed directive, “[e]xisting disparities may adversely affect businesses and consumers”, since, pursuant to the Rome I Regulation, “businesses directing activities to consumers in other Member States need to take account of the mandatory consumer contract law rules of the consumer’s country of habitual residence” and may thus “be faced with additional costs”. In these circumstances, “many businesses may prefer to continue trading domestically or only export to one or two Member States”. In addition, while consumers enjoy a high level of protection when they purchase online from abroad as a result of the application of the Rome I Regulation, “fragmentation also impacts negatively on consumers’ levels of confidence in e-commerce”.

In order to remedy those problems, “businesses and consumers should be able to rely on a set of fully harmonised, targeted rules for the online and other distance sales of goods”: uniform rules, the preamble goes on, “are necessary in relation to several essential elements of consumer contract law which under the current minimum harmonisation approach led to disparities and trade barriers across the Union”.

Here, too, in the Commission’s view, the existing rules on private international law establish a clear legal framework for buying and selling in a European digital market, and the legislative proposal does not require any changes to the Brussels Ia and Rome I Regulations. Accordingly, as indicated in Recital 37, nothing in the future directive should prejudice the application of the latter instruments.

As already announced in its Digital Single Market Strategy adopted on 6 May 2015, the Commission has, on 9 December 2015, finally presented a legislative initiative on harmonised rules for the supply of digital content and online sales of goods. The Commission explains: “This initiative is composed of (i) a proposal on certain aspects concerning contracts for the supply of digital content (COM(2015)634 final), and (ii) a proposal on certain aspects concerning contracts for the online and other distance sales of goods (COM(2015)635 final). These two proposals draw on the experience acquired during the negotiations for a Regulation on a Common European Sales Law. In particular, they no longer follow the approach of an optional regime and a comprehensive set of rules. Instead, the proposals contain a targeted and focused set of fully harmonised rules” (COM(2015)634, p. 1). From the perspective of legal policy, this change of approach can only be applauded (see already in this sense von Hein, Festschrift Martiny [2014], p. 365, 389: “Die beste Lösung dürfte aber eine effektive Harmonisierung des europäischen Verbraucherrechts auf einem verbindlichen Niveau darstellen, das optionale Sonderregelungen für den internationalen Handel überflüssig machen würde.”) According to the Commission, “[t]he proposals also build on a number of amendments adopted by the European Parliament in first reading concerning the proposal for a Regulation on the Common European Sales Law, in particular the restriction of the scope to online and other distance sales of goods and the extension of the scope to certain digital content which is provided against another counter-performance than money” (COM(2015)634, p. 1).

On the relationship between the new directive on certain aspects concerning contracts for the online and other distance sales of goods and the existing Brussels Ibis and Rome I Regulations, the Commission elaborates (COM(2015)635, p. 4):

“The proposal is compatible with the existing EU rules on applicable law and jurisdiction in the Digital Single Market. Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters and the Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), which provide rules to determine the competent jurisdiction and applicable law, apply also in the digital environment. These instruments have been adopted quite recently and the implications of the internet were considered closely in the legislative process. Some rules take specific account of internet transactions, in particular those on consumer contracts. These rules aim at protecting consumers inter alia in the Digital Single Market by giving them the benefit of the non-derogable rules of the Member State in which they are habitually resident. Since the current proposal on the online and other distance sales of goods aims at harmonising the key mandatory provisions for the consumer protection, traders will no longer face such wide disparities across the 28 different legal regimes. Together with the proposed new contract rules for online and other distance sales of goods as set out in this proposal, the existing rules on private international law establish a clear legal framework for buying and selling in a European digital market, which takes into account both consumers’ and businesses’ interests. Therefore, this legislative proposal does not require any changes to the current framework of EU private international law, including to Regulation (EC) No 593/2008 (Rome I).”

Fútbol Club Barcelona / OHMI (Représentation du contour d'un écusson)
Propriété intellectuelle et industrielle
Le Tribunal rejette le recours du club de football de Barcelone qui souhaitait l’enregistrement comme marque communautaire des contours de son écusson

Aldricus is glad to host the following announcement, provided by Susanne Gössl (Univ. Bonn).

As a group of doctoral and post-doctoral students with a keen interest in private international law (PIL), we are trying to improve the exchange between young scholars in this field. To further this aim, we have undertaken to organize a conference for all German-speaking young scholars (ie doctoral and post-doctoral students) with an interest in private international law.

PIL is understood broadly, including international jurisdiction and procedure, ADR, uniform and comparative law, as long as there is a connection to cross-border relationships.

The conference – which we hope to develop into a recurring event – will take place at the University of Bonn on 6 and 7 April 2017. It will be dedicated to the topic Politics and Private International Law (?) [Politik und Internationales Privatrecht (?)]. 

Choice-of-law rules established in continental Europe have since Savigny traditionally been regarded as ‘neutral’ as they only coordinate the law applicable in substance. However, the second half of the last century was marked by a realisation that choice-of-law rules may themselves promote or prevent certain substantial results. In the US, this has led to a partial abolishment of the classic understanding of the conflict of laws, and to its replacement by an analysis of the particular governmental interests concerned. Other legal systems have also seen traditional choice-of-law rules changed or limited by governmental or other political interests. The conference is dedicated to discussing the different aspects of this interplay between private international law and politics as well as their merits and demerits.

We welcome contributions which focus on classic political elements of private international law, such as lois de police, ordre public or substantial provisions within choice-of-law systems, but also comparisons to methodical alternatives to PIL or contributions discussing more subtle political influences on seemingly neutral choice-of-law rules. Examples range from the ever increasing influence of the European Union over national or international political agendas to questions of ‘regulatory competition’ (which may be relevant in establishing a national forum for litigation or arbitration) or other regulatory issues (such as the regulation of the allegedly international internet). By the same token, international family law and questions of succession are constantly increasing in relevance, the current growth of international migration making it a particularly important field for governmental regulation.

We are glad to announce that Professor Dagmar Coester-Waltjen (University of Göttingen) has accepted our invitation to inaugurate our conference on 6 April 2017. The afternoon will be dedicated to academic discourse and discussion and conclude with a dinner. The conference will continue on 7 April. We plan to publish all papers presented in a conference volume.

We intend to accommodate 6 to 10 papers in the conference programme, each of which will be presented for half an hour, with some additional room for discussion. We will publish a Call for Papers in early 2016 but invite everyone interested to note down the conference date already and consider their potential contributions to the conference topic (in German language).

Questions may be directed at Dr. Susanne L. Gössl, LL.M (sgoessl(at)uni-bonn.de).

For further information please see here.

Un jugement étranger produisant ses effets sur le territoire français selon la loi du for, les intérêts moratoires dus par le débiteur sont régis par l’article 1153-1 du code civil. Ils commencent à courir à compter de la décision d’exequatur et non à compter de la date du jugement étranger.

En carrousel matière:  Oui Matières OASIS:  Jugement étranger (Procédure civile) Intérêts des capitaux Exequatur

en lire plus

Assurance - Courtier

Séparation des pouvoirs - Voie de fait

Transports maritimes - Voyageurs - Responsabilité

Séparation des pouvoirs

In a recent article, Samuel Fulli-Lemaire, a Senior Research Fellow at the Max Planck Institute for Comparative and International Private Law in Hamburg and a PhD candidate in Private International Family Law at the Paris II – Panthéon-Assas University, examined the private international law aspects of the PIP breast implants scandal.

The article, in French, appeared under the title Affaire PIP: quelques réflexions sur les aspects de droit international privé in the first issue for 2015 of the Revue internationale de droit économique, together with other papers concerning the PIP case.

Here’s an abstract of the article, provided by the author.

It is now common knowledge that the PIP company, domiciled in France, fraudulently mixed industrial-grade and medical-grade silicone gels to make its breast implants. The victims, women who have received the defective implants and have subsequently developed medical conditions, or who wish to have the implants removed or replaced as a precaution, can claim damages from a variety of actors. Because the victims, the clinics where the operations were performed, and the companies that were part of the supply chain, as well as their insurers, are domiciled in states spread all over the world, this case raises innumerable private international law issues.

This paper focuses on some of these issues, specifically those related to the tort actions which the victims can bring against the manufacturer, its executives, its insurer, and the notified body, which is the entity that was tasked with ensuring that PIP complied with its obligations under the European Union legal framework for medical products. In each case, both international jurisdiction and applicable law will be addressed.

To that end, some technical questions have to be answered first, for instance determining the place where the damage is sustained following the insertion of a potentially defective implant, or to what extent criminal courts can be expected to apply private international rules.

But on a more fundamental level, the PIP case highlights some of the shortcomings of the product liability regime in the single market. To take just one striking example, a French judge ruling on a claim against the manufacturer would apply the rules of the 1973 Hague Convention on the law applicable to products liability, while a German judge would apply the specific provision for product liability of the Rome II Regulation, a discrepancy which might ultimately result in the two claims being subject to different laws. Even though this particular field of the law has been harmonized by the 1985 Product Liability Directive, significant differences remain between the legislations of Member States, and these could have a decisive influence on the outcome of the cases.

This is just one factor that parties should take into account when deciding before which court to start proceedings, and it is likely that the significant forum shopping opportunities afforded to the victims by the Brussels I Regulation will be put to good use by the best-informed among them.

This state of affairs might legitimately be regarded as a lesser evil, since what is ultimately at stake is the compensation of victims of actual or possible bodily harm brought about by the fraudulent behaviour of a manufacturer. But the unequal treatment of victims, particularly depending on their domicile, cannot be regarded as satisfactory, any more than the considerable risk that contradictory or incoherent decisions will be rendered by the courts of different Member States, as some lower courts in Germany and France have already done.

The development of class actions, as introduced recently in French law, albeit in a very limited way, could help suppress or mitigate these difficulties, but accommodating these mechanisms within the framework of European private international law will create additional challenges.

Chris Thomale, Mietmutterschaft – Eine international-privatrechtliche Kritik, Mohr Siebeck, 2015, ISBN 9783161542398, pp. 154, Euro 34.

[Dal sito dell’editore] Die rechtliche Behandlung der Leihmutterschaft beschäftigt in wachsendem Maße Gerichte und Normsetzer auf allen Ebenen. Dabei berühren sich familienrechtliche mit international-privatrechtlichen, kollisionsrechtliche mit prozessrechtlichen sowie einfachrechtliche mit grundrechtlichen und unionsrechtlichen Anwendungsproblemen. Dieser Oberfläche der rechtspositiven Debatte liegen jedoch rechtsethische, rechtstheoretische und vor allem rechtspolitische Fragestellungen zugrunde, die sich erst aus der Regulierungsperspektive eines äußeren Betrachters und hypothetischen Rechtsetzers beurteilen lassen. Chris Thomale bemüht sich darum, beide Herangehensweisen zusammenzuführen, um die internationale Leihmutterschaft einer umfassenden Fundamentalkritik zu unterziehen.

Maggiori informazioni a questo indirizzo.

Sûretés réelles mobilières