Overview of the Council on General Affairs and Policy of the Hague Conference (March 2019)

“The Council on General Affairs and Policy (CGAP) met from 5 to 8 March 2019, with record attendance, representing 70 Members (including one Member REIO (EU)), 3 non-Member States, and other Observers from 3 IGOs / 9 NGOs.

[…] Amongst others, CGAP welcomed the advice of the Special Commission on the Recognition and Enforcement of Foreign Judgments that it had completed its mandate and instructed the Permanent Bureau to continue preparations for the Twenty-Second Session in June – July 2019.

CGAP also welcomed the work of the Experts’ Group on Parentage / Surrogacy and endorsed continuation of the work in line with the Experts’ Group report. It agreed that another meeting of the Experts’ Group should be convened prior to the 2020 meeting of CGAP.

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CJEU on Article 1 Brussels I bis

The Court of Justice delivered on 28 February 2019 its judgment in case C‑579/17 (BUAK Bauarbeiter-Urlaubs- u. Abfertigungskasse v Gradbeništvo Korana d.o.o.), which is about Brussels I bis:

“Article 1 of Regulation (EU) No 1215/2012 [….] must be interpreted as meaning that an action for payment of wage supplements in respect of annual leave pay brought by a body governed by public law against an employer, in connection with the posting of workers to a Member State where they do not have their habitual place of work, or in the context of the provision of labour in that Member State, or against an employer established outside of the territory of that Member State in connection with the employment of workers who have their habitual place of work in that Member State, falls within the scope of application of that regulation, in so far as the modalities for bringing such an action do not infringe the rules of general law and, in particular, do not exclude the possibility for the court ruling on the case to verify the merits of the information on which the establishment of that claim is based, which is a matter to be determined by the referring court”.

Source: here

Guyana now a party to the Child Abduction and Protection of Children Hague Conventions

On 5 February 2019, Guyana became a party to both the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction and the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. The first one will enter into force for Guyana on 1 May 2019 and the second one on 1 December 2019.

Source : here

Council decisions authorising MS to accept the accession of third States to the 1980 Hague Convention on Child Abduction

Those decisions, which were published at the OJEU L 51 on 22 February 2019, are the following:

__ Council Decision (EU) 2019/305 of 18 February 2019 authorising Austria, Cyprus, Croatia, Luxembourg, Portugal, Romania and the United Kingdom to accept, in the interest of the European Union, the accession of the Dominican Republic to the 1980 Hague Convention on the Civil Aspects of International Child Abduction, p. 9

__ Council Decision (EU) 2019/306 of 18 February 2019 authorising Austria to accept, in the interest of the European Union, the accession of Ecuador and Ukraine to the 1980 Hague Convention on the Civil Aspects of International Child Abduction, p. 11

__ Council Decision (EU) 2019/307 of 18 February 2019 authorising Austria and Romania to accept, in the interest of the European Union, the accession of Honduras to the 1980 Hague Convention on the Civil Aspects of International Child Abduction, p. 13

__ Council Decision (EU) 2019/308 of 18 February 2019 authorising Austria, Luxembourg and Romania to accept, in the interest of the European Union, the accession of Belarus and Uzbekistan to the 1980 Hague Convention on the Civil Aspects of International Child Abduction, p. 15

Source: here

CJEU on Article 16 of the European Small Claims Procedure

The Court of Justice delivered two days ago (14 February 2019) its decision in case C‑554/17 (Rebecka Jonsson v Société du Journal L’Est Républicain). It has not yet been translated in English. However, it is available in nearly all other EU Languages. Here is the French version:

« L’article 16 du règlement (CE) n° 861/2007 […] ne s’oppose pas à une réglementation nationale en vertu laquelle, lorsqu’une partie n’obtient que partiellement gain de cause, la juridiction nationale peut ordonner que chacune des parties à la procédure supporte la charge de ses propres frais de procédure ou peut répartir ces frais entre ces parties. Dans une telle hypothèse, la juridiction nationale demeure, en principe, libre de répartir le montant desdits frais, pourvu que les règles procédurales nationales de répartition des frais de procédure dans les petits litiges transfrontaliers ne soient pas moins favorables que les règles procédurales régissant des situations similaires soumises au droit interne et que les exigences procédurales liées à la répartition de ces frais de procédure ne conduisent pas les personnes intéressées à renoncer à faire usage de cette procédure européenne de règlement des petits litiges en imposant au demandeur, lorsqu’il a largement eu gain de cause, de supporter tout de même ses frais de procédure ou une partie substantielle de ceux-ci ».

Source : here

Impossibility to extend to professionals the protective rules of consumers and concept of consumer (Brussels I bis)

The Court of Justice delivered yesterday (14 February 2019) its judgment in case C‑630/17 (Anica Milivojević v Raiffeisenbank St. Stefan-Jagerberg-Wolfsberg eGen), which is about Brussels I bis.

Extract of the reasoning: “80 In so far as Article 8(1) and (2) of that law also applies to disputes between professionals, it must be noted that it departs from the general rule of jurisdiction laid down in Article 4(1) of Regulation No 1215/2012, that is to say, the defendant’s domicile, in that it extends the scope of more protective jurisdictional rules, laid down as an exception in Article 18(1) of that regulation in favour only of consumers, to all debtors.

81 It is appropriate to recall that, in the scheme of Regulation No 1215/2012, the jurisdiction of the courts of the Member State within the territory of which the defendant is domiciled is the general principle. It is only by way of derogation from that principle that that regulation provides for an exhaustive list of cases in which the defendant may or must be sued before the courts of another Member State (see, to that effect, judgment of 25 January 2018, Schrems, C‑498/16, EU:C:2018:37, paragraph 27). Accordingly, the fact that a Member State provides in its national legislation for rules of jurisdiction which derogate from that general principle, which are not provided for in another provision of that regulation, runs counter to the system instituted by that regulation and, more particularly, by Article 4 thereof”.

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Towards Hague instruments on legal parentage and international surrogacy arrangements?

“From 29 January to 1 February 2019, the Experts’ Group on Parentage / Surrogacy met for the fifth time in The Hague […] The mandate of the Group is “to explore the feasibility of advancing work (…) on the private international law issues surrounding the status of children, including issues arising from international surrogacy arrangements” […] Following these meetings, the Group agreed that it would be feasible to develop 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 arising from [international surrogacy arrangement]s.

The Experts’ Group will recommend to the 2019 CGAP meeting that work continue with a view to preparing proposals for inclusion in future instruments relating to the recognition of judicial decisions.

Source: here

The report of the fifth meeting is available here.

CJEU on scope of application of the Brussels I and Insolvency Regulations (bankruptcy of a bailiff, action brought by the liquidator, Brussels I)

The Court of Justice delivered today its judgment in case C–535/17 (NK, liquidator in the bankruptcies of PI Gerechtsdeurwaarderskantoor BV and of PI v BNP Paribas Fortis NV).

The facts : « PI was a bailiff from 2002 until his removal from office in December 2008. For the purposes of his bailiff practice, PI was the holder of a current account opened in Belgium with Fortis. That account was the one which was intended to credit the persons whose debts he sought to recover.

10 In 2006 PI established PI Gerechtsdeurwaarderskantoor BV (‘PI.BV’), a company governed by Netherlands law, of which he was the sole shareholder and administrator. The purpose of that company was to run PI’s bailiff practice, the assets of which he contributed to PI.BV, including the current account with Fortis. PI.BV was also the holder of a third-party account with another bank, established in the Netherlands, which held the funds of about 200 clients of the bailiff practice.

11 In the period from 23 to 26 September 2008, PI transferred, by way of electronic transfer, a total sum of EUR 550 000 from that third-party account to the account with Fortis. A few days later, from 1 to 3 October 2008, PI withdrew EUR 550 000 in cash from the current account with Fortis. That act was classified as embezzlement of funds and PI was sentenced to imprisonment in that respect.

12 The bankruptcy of PI.BV was declared on 23 June 2009 and was followed by the personal bankruptcy of PI, which was declared on 2 March 2010.

13 Within the context of those bankruptcy proceedings, the liquidator brought an action before the Rechtbank Maastricht (District Court, Maastricht, Netherlands) seeking an order that Fortis pay the sum of EUR 550 000. In support of his claim, the liquidator stated that Fortis had incurred liability towards the general body of creditors of PI.BV and PI by fully cooperating, in breach of its statutory obligations, with the cash withdrawals made by PI, thereby causing loss to the creditors of the two bankrupt estates ».

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