Progress in The Hague on the Parentage / Surrogacy Project

From 29 October to 1 November 2019, the Hague Experts’ Group on Parentage / Surrogacy met for the sixth time. The meeting focused on proposing provisions for developing both a general private international law instrument on the recognition of foreign judicial decisions on legal parentage; and a separate protocol on the recognition of foreign judicial decisions on legal parentage rendered as a result of an international surrogacy arrangement. The feasibility of making provisions in relation to applicable law rules and public documents was also considered.

Extract of the report of the meeting in relation to a draft convention:

“Recognition of foreign judgments on legal parentage by operation of law

10. The Group agreed that the recognition regime should occur by operation of law and be subject to the satisfaction of certain indirect grounds of jurisdiction in the State where the judgment was issued.

a. Indirect grounds of jurisdiction

11. The Group agreed on the need to limit the grounds for indirect jurisdiction to ensure that there is sufficient proximity between the subject matter and the State of judgment. The Group agreed on the following alternative indirect grounds of jurisdiction that would have to be fulfilled at the time when proceedings were initiated:

(a) the child’s habitual residence, noting the need for another ground in exceptional circumstances based on presence such as for refugee children;

(b) the respondent’s habitual residence, noting that the State might be the respondent in certain jurisdictions.

12. The Group recognised that in certain cases a real and substantial connection could be a very useful ground, provided that further clarification be given as to the application of such a connecting factor.

13. The Group agreed that grounds for indirect jurisdiction relating to party autonomy (i.e., choice of court and submission to the jurisdiction of the court) should not be included in light of the subject matter of the proceedings (legal parentage).

b. Grounds for refusal of recognition

CJEU on the European Account Preservation Order

The Court of Justice delivered yesterday its judgement in case C‑555/18 (K.H.K. v B.A.C., E.E.K):

“1. Article 4(10) of Regulation (EU) No 655/2014 […] to facilitate cross-border debt recovery in civil and commercial matters must be interpreted as meaning that an order for payment, such as that at issue in the main proceedings, which is not enforceable, does not constitute an ‘authentic instrument’ within the meaning of that provision.

AG Saugmandsgaard Øe on Brussels I (articles 5.1, 15 et 17)

AG Saugmandsgaard Øe delivered yesterday his opinion in case C‑215/18 (Libuše Králová v Primera Air Scandinavia), which about Brussels I and Regulation 261/2004. It is available in the vast majority of EU languages, albeit not in English. Here is the French version :

« 1) L’article 5, point 1, du règlement (CE) no 44/2001 du Conseil, du 22 décembre 2000 […] doit être interprété en ce sens qu’il couvre une action aux fins d’indemnisation intentée par un passager contre le transporteur aérien effectif, alors même que ces parties n’avaient pas conclu de contrat entre elles et que ce vol faisait partie d’un ensemble de services fournis au titre d’un contrat conclu entre la partie requérante et une tierce personne.

2) Les dispositions de la section 4 du chapitre II du règlement no 44/2001, comprenant les articles 15 à 17 de celui‑ci, doivent être interprétées en ce sens qu’elles ne sont pas applicables à une telle action judiciaire.

CJEU on Brussels I bis and the Montreal Convention

The Court of Justice delivered today its judgment in case C‑213/18 (Adriano Guaitoli and alii v easyJet Airline Co. Ltd), which will be of importance in particular to frequent air travellers:

“1. Article 7(1), Article 67 and Article 71(1) of Regulation (EU) No 1215/2012 […] and Article 33 of the Convention for the Unification of Certain Rules for International Carriage by Air, concluded in Montreal on 28 May 1999 […] must be interpreted as meaning that the court of a Member State hearing an action to obtain both compliance with the flat-rate and standardised rights provided for in Regulation (EC) No 261/2004 […] establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights […] and compensation for further damage falling within the scope of that convention, must assess its jurisdiction, for the first head of claim, in the light of Article 7(1) of Regulation No 1215/2012, and, for the second head of claim, in the light of Article 33 of that convention.

2. Article 33(1) of the Convention for the Unification of Certain Rules for International Carriage by Air, concluded at Montreal on 28 May 1999, must be interpreted, as regards actions for damages falling within the scope of that convention, as governing not only the allocation of jurisdiction as between the States Parties to the convention, but also the allocation of territorial jurisdiction as between the courts of each of those States”.

Source: here

Breach of Article 19.1 TEU by Poland (CJEU)

The Grand Chamber of the CJEU delivered on 5 November 2019 its judgment in the sensitive case C‑192/18 (European Commission v Republic of Poland), which is about Article 19.1 TEU, which states that “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law”.

The CJEU:

“1. Declares that, in establishing, by Article 13(1) to (3) of the […] Law amending the Law on the system of ordinary courts and certain other laws) of 12 July 2017, a different retirement age for men and women who are judges in the ordinary Polish courts and the Sąd Najwyższy (Supreme Court, Poland) or are public prosecutors in Poland, the Republic of Poland has failed to fulfil its obligations under Article 157 TFEU and Articles 5(a) and 9(1)(f) of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation;

AG Sharpston on the EOP Regulation

Advocate-General Sharpston delivered on 31 October 2019 her opinion in joined Cases C 453/18 and C 494/18 (“Bondora”), which is about the EOP Regulation:

“In the context of the examination of an application for an order for payment made under Regulation (EC) No 1896/2006 […] creating a European order for payment procedure and relating to a claim based on a contract concluded between a seller or supplier and a consumer, the court seised is entitled to review of its own motion the potentially unfair nature of the terms laid down in that contract, in accordance with Articles 6 and 7 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, read in the light of Article 38 of the Charter of Fundamental Rights of the European Union and Article 6(1) TEU.

The European Data Protection Supervisor on the Service and Evidence Regulations

The summary of the Opinion of the European Data Protection Supervisor on the revision of the EU Regulations on service of documents and taking of evidence in civil or commercial matters has been published today at the OJEU (C 370, 31.10.2019, p. 24).

Extracts:

“26. There are three major recommendations the EDPS makes to ensure compliance with the Charter and the GDPR:

Palau accedes to the Apostille Convention

On 17 October 2019, the Republic of Palau deposited its instrument of accession to the HCCH Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents. It will enter into force for Palau on 23 June 2020.

Source: here

‘When Private International Law Meets Intellectual Property – A Guide for Judges’

The Hague Conference has released today a guide for judges on private international law and intellectual property. The Guide is a joint product of the HCCH and the World Intellectual Property Organization (WIPO). The Guide may be accessed here.

Conclusions and Recommendations of the 11th electronic Apostille Programme Forum

From 16 to 18 October 2019 the 11th International Forum on the electronic Apostille Programme was held in Fortaleza, Brazil. The Conclusions and Recommendations are now available here.