scholarly journals Validity of choice of court agreements, abusive terms in air carriage contracts, assignments and compensation, is there room for anyone else? (Comments on CJEU Judgment Delayfix, c-519/19)

2021 ◽  
Vol 13 (2) ◽  
pp. 882-895
Author(s):  
Anna María Ruiz Martín
Keyword(s):  
International Law ◽  
Case Law ◽  
Third Parties ◽  
Private International Law ◽  
The European Union ◽  
Consumer Contracts ◽  
Business To Consumer ◽  
Substantive Law ◽  
First Time ◽  
The Eu

In Delayfix case, the Court of Justice of the European Union (CJEU) has interpreted the formal and substantive validity of a “choice of court agreement” included in an air carriage of passenger’s contract. But, for the first time, the CJEU has openly declared the unfair nature of these choice of court agreements, not only for the passengers, but also for third parties assigned by them. In opposition with former case law on the effects of a choice of court agreement for assignees. In carriage of passengers’ contracts, third parties are usually agencies devoted to the defense of air passenger rights and collection of credits who claim for the compensation rights in accordance with the rights conferred by Regulation 261/2004. From the EU Private International Law approach, the preliminary ruling is of interest, being the Brussels I bis regulation the instrument for clarifying whether this choice of court agreement should be deemed as enforceable or not, regarding the requirements of Article 25 Brussels I bis due to these contracts are not considered as consumer contracts. To the analysis of the merits and substantive law, contrarily than under EU Private International law rules these contracts are considered as Business to consumer (B2C) contracts, and Directive 93/13/CEE and other EU Consumer rules must be applied so as to determine the unfair nature of these clauses in these contracts.

Changing balances of PIL theories in a Europeanized Private International Law

2018 ◽  
Vol 25 (5) ◽  
pp. 533-550
Author(s):  
Klea Vyshka
Keyword(s):  
Member State ◽  
International Law ◽  
Mutual Recognition ◽  
Case Law ◽  
Company Law ◽  
Private International Law ◽  
The European Union ◽  
International Laws ◽  
Methods Of Application ◽  
The Eu

This article offers a reading of the case law of the Court of Justice of the European Union (CJEU) from a private international law perspective (PIL). The developments that the CJEU thus gave start to in the field of company law, and especially in EU citizenship, invites for a reshaping of the balances between Union law and Member State private international laws, especially in the field of methods of application. This article aims to shed light into the question ‘To what extent has the EU citizenship as a connecting factor in the context of a Europeanized PIL changed the PIL traditional methods of application?’ The host Member State is obliged to recognize the duly created rights in the original Member State, with respect to the mutual recognition principle. The return of the vested rights theory as opposed to the use of the traditional conflict-of-law approach seems on its way.

scholarly journals Pojęcie współmałżonka w prawie unijnym – uwagi na tle orzeczenia w sprawie Coman (C‑673/16)

Politeja ◽  
2020 ◽  
Vol 17 (3(66)) ◽  
pp. 103-117
Author(s):  
Ewa Kamarad
Keyword(s):  
European Union ◽  
International Law ◽  
Mutual Recognition ◽  
Private International Law ◽  
Eu Law ◽  
The European Union ◽  
Court Of Justice ◽  
The Right ◽  
First Time ◽  
The Eu

The Term ‘Spouse’ in EU Law – Comments on the Judgment in the Coman Case (C‑ 673‑16) The paper concerns the judgment of 5 June 2018 issued by the Court of Justice of the European Union in the Coman case (C‑673‑16), in which the Court for the first time defined the term ‘spouse’ for the purpose of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. It discusses the consequences of the judgement and its relation to the traditional mechanisms of private international law and the EU principle of mutual recognition.

scholarly journals Kwalifikacja w prawie prywatnym międzynarodowym Unii Europejskiej. Od kwalifikacji autonomicznej ku… kwalifikacji według kolizyjnej legis fori?

2019 ◽  
Vol 25 ◽  
pp. 107-122
Author(s):  
Krzysztof Pacuła
Keyword(s):  
European Union ◽  
International Law ◽  
Functional Characterization ◽  
Case Law ◽  
Private International Law ◽  
Eu Law ◽  
The European Union ◽  
Conflict Of Laws ◽  
Starting Point ◽  
The Eu

The terms ‘characterization’ (‘classification’) and ‘exercise of characterization’ refer in particular to the efforts made to determine which conflict of law rule — and in the sense presented in this paper, also rule on jurisdiction — which is part of the law of the forum State, should be applied to the circumstances of a particular case. In relation to the norms of private international law of the European Union, the triumph of an autonomous characterization at first sight seems undeniable. The term autonomous characterization (in principle — ‘autonomous interpretation’, the case law usually does not distinguish between exercise of characterization and exercise of interpretation) has been referred to over the last fifty years in order to describe the vast majority of operations of interpretation undertaken in relation to the norms of EU private international law. The contemporary concept of characterization in private law of the European Union, although consistently referred to as ‘autonomous’, does not fully meet the criteria thereof. The papers argues that while the starting point was the autonomous characterization in its pure form (stage one), over time it partially gave way to the place of characterization according to the EU law-oriented legis fori (stage two), and finally it was enriched with new elements which gave it the form of a specific functional characterization (stage three). It is not so much about the consistency of the results of the exercises of characterization with the universal understanding of certain concepts. Exercises of characterization are carried out through the prism of their effects, so as to ensure the effectiveness of the norms of EU law (effet utile) other than rules on conflict of laws and on jurisdiction.

The EU in Search for Stronger Enforcement Rules: Assessing the Proposed Amendments to Trade Enforcement Regulation 654/2014

2020 ◽  
Vol 23 (4) ◽  
pp. 865-884
Author(s):  
Wolfgang Weiß ◽  
Cornelia Furculita
Keyword(s):  
European Union ◽  
International Law ◽  
World Trade ◽  
Free Trade Agreement ◽  
Trade Agreement ◽  
Third Parties ◽  
The European Union ◽  
Political Implications ◽  
Eu Commission ◽  
The Eu

Abstract Considering the new focus of the European Union (EU) trade policy on strengthening the enforcement of trade rules, the article presents the proposed amendments to the EU Trade Enforcement Regulation 654/2014. It analyzes the EU Commission proposal and the amendments suggested by the European Parliament Committee on International Trade (INTA), in particular with regard to uncooperative third parties and the provision of immediate countermeasures. The amendments will be assessed in view of their legality under World Trade Organization (WTO), Free Trade Agreement (FTA), and general international law and in view of their political implications for the EU’s multilateralist stance. Finally, the opportunity to amend Regulation 654/2014 to use it for the enforcement of FTA trade and sustainable development chapters will be explored. The analysis shows that the shift towards more effective enforcement should be pursued with due care for respecting existing international legal commitments and with more caution to multilateralism.

scholarly journals Las insolvencias transfronterizas en la Unión Europea: perspectivas jurisprudenciales y retos = Cross-border insolvencies in the European Union: recent case law and new challenges

2019 ◽  
Vol 11 (2) ◽  
pp. 360
Author(s):  
Elisa Torralba Mendiola
Keyword(s):  
European Union ◽  
International Law ◽  
Case Law ◽  
Recent Case ◽  
Private International Law ◽  
The European Union ◽  
Cross Border ◽  
New Challenges ◽  
Insolvency Proceedings

  Resumen: El Reglamento 848/2015, sobre procedimientos de insolvencia regula los problemas de Derecho internacional privado que suscitan las situaciones concursales en el ámbito de la Unión Euro­pea. En este trabajo se analiza la más reciente jurisprudencia del TJUE en materia concursal y los retos que se plantean a día de hoy en el tratamiento de la materia, que ponen de relieve la necesidad de adaptar la aplicación de los textos legales a situaciones políticas –y jurídicas– cambiantes.Palabras clave: insolvencia, cooperación, competencia.Abstract: Regulation 2015/848 on Insolvency Proceedings rules the private international law mat­ters regarding insolvencies within the European Union. This paper analyses the most recent case law of the EUCJ and the challenges actually existing in this area, that evidence the need to adapt the application of the rules to the changing legal and political context.Keywords: insolvency, cooperation, jurisdiction.

scholarly journals Consumer contracts in the European Court of Justice case law. Latest trends = Los contratos de consumo en la jurisprudencia del TJUE. Últimas tendencias

2020 ◽  
Vol 12 (1) ◽  
pp. 86
Author(s):  
Alfonso-Luis Calvo Caravaca
Keyword(s):  
International Law ◽  
Case Law ◽  
Private International Law ◽  
Consumer Contract ◽  
Mass Consumption ◽  
Cross Border ◽  
European Court ◽  
Social Landscape ◽  
Consumer Contracts ◽  
Private Individual

Abstract: The concept of “consumer” is, in theory, a restrictive concept. However, the ECJ has now extended it to cases in which a private individual has gone on to practice as a professional in an manifest, public and conspicuous manner. Judgment ECJ 25 January 2018, C-498/16, Facebook proves it. In relation to consumers of financial products, the ECJ skillfully pulls strings in the context of art. 7.2 BR I-bis; however, that norm is totally insensitive with regards to the consumer. The future is stepping forward towards online mass consumption, and in the present virtual social landscape it is necessary for the ECJ to open up new ways of protecting the consumer that keep up with times. In this context, it is necessary that future amendments to the Brussels I-bis Regulation incorporate the concepts that the ECJ has created in relation to jurisdiction in the cross-border consumer sector: the concepts of “act of consumption”, “consumer”, “professional”, and “directed activity”, for example, should stop being jurisprudential concepts to become legal concepts.Keywords: act of consumption, consumer, consumer contract, cross-border consumer sector, directed activity, dual contracts with both private and professional purpose, (international) jurisdiction, Private International Law, professional.Resumen: El concepto de “consumidor” es, en teoría, un concepto restrictivo. Sin embargo, el TJUE lo ha extendido a casos en los que un particular, en el momento presente, ha pasado a ejercer como profesional de manera evidente, pública y notoria. La STJUE 25 enero 2018, C-498/16, Facebook, es la prueba. En relación con los consumidores de productos financieros, el TJUE mueve sus hilos con destreza en el contexto del art. 7.2 RB I-bis, pero este precepto es totalmente insensible al consumidor. El futuro camina digitalmente hacia un consumo masivo online y en dicho paisaje social virtual es necesario que el TJUE abra vías de protección al consumidor de un modo evolutivo. En dicho contexto, es preciso que futuras reformas del Reglamento Bruselas I-bis incorporen los conceptos que el TJUE ha creado en relación con la competencia judicial en el sector del consumo transfronterizo: los conceptos de “acto de consumo”, “consumidor”, “profesional”, y “actividad dirigida”, por ejemplo, deberían dejar de ser conceptos jurisprudenciales para pasar a ser conceptos legales.Palabras clave: acto de consumo, competencia judicial internacional, consumidor, consumo transfronterizo, contrato de consumidores, contratos con doble finalidad profesional y privada, Derecho internacional privado, profesional, actividad dirigida.

scholarly journals Article 3(5) TEU a decade on: Revisiting ‘strict observance of international law’ in the text and context of other EU values

2021 ◽  
pp. 1023263X2110151
Author(s):  
Rupert Dunbar
Keyword(s):  
European Union ◽  
International Law ◽  
Case Law ◽  
Eu Law ◽  
The European Union ◽  
Balanced Approach ◽  
Court Of Justice ◽  
External Relations ◽  
Domestic Courts ◽  
The Eu

Article 3(5) of the Treaty on the European Union concerns EU external relations and was a new provision of the Lisbon Treaty. It has been seized upon by scholars for its reference to ‘strict observance of international law’ by the EU in its relations with the wider world. However, recent case law in the Court of Justice of the European Union has demonstrated little movement towards this supposed ideal. This article supports the fact that rigid and unquestioning adherence to international law has not emerged in case law, particularly as Article 3(5) TEU also mandates that the Union ‘uphold and promote its values and interests’. By taking a broader view of both the text and context of Article 3(5) TEU in EU law as a whole, and through consideration of the limited demands international law places on domestic courts, the article argues that – contrary to current literature – a more expressly balanced approach towards respect for international law is required and should be nurtured in the case law.

Cross-border litigation in England and Wales

2018 ◽  
Vol 25 (2) ◽  
pp. 139-167 ◽  
Author(s):  
Mihail Danov
Keyword(s):  
International Law ◽  
Access To Justice ◽  
Private International Law ◽  
The European Union ◽  
Legal Regime ◽  
England And Wales ◽  
Decision To Leave ◽  
Cross Border ◽  
The United Kingdom ◽  
The Eu

In the pre-Brexit era, England has established itself as one of the dominant jurisdictions for the resolution of cross-border disputes in the European Union (and the world). The legal regime in relation to private international law (PIL) in England and Wales has been significantly influenced by the EU PIL framework that was adopted at EU level. The United Kingdom decision to leave the EU might have significant implications for the parties’ access to justice in cross-border cases. This paper aims to devise a theoretical framework that is necessary to evaluate the potential impact of the UK’s decision to leave the EU on the private parties’ access to legal remedies. To this end, the author relies on empirical (qualitative) data that was gathered in 2015 and early 2016 in the context of the EU Private International Law: Legal Application in Reality (‘EUPILLAR’) project, indicating how the current EU PIL framework is functioning in England and Wales. An analysis of the way the parties’ strategies are devised under the current EU PIL regime helps in identifying the aspects which need to be considered, in order to set the research agenda and ascertain how the legal landscape in relation to PIL should be revised in the post-Brexit era.

scholarly journals PRIVATE INTERNATIONAL LAW AND EU EXTERNAL RELATIONS: THINK LOCAL ACT GLOBAL, OR THINK GLOBAL ACT LOCAL?

2016 ◽  
Vol 65 (3) ◽  
pp. 541-579 ◽  
Author(s):  
Alex Mills
Keyword(s):  
International Law ◽  
External Action ◽  
Private International Law ◽  
The European Union ◽  
External Effects ◽  
External Relations ◽  
Internal Action ◽  
External Dimension ◽  
The Eu

AbstractIn the European Union, private international law has almost exclusively been developed through the adoption of internal acts (particularly EU Regulations) in the pursuit of internal goals (principally, enhancing the efficient functioning of the internal market, and more recently and broadly the construction of an area of freedom, security and justice). This focus has and must come under challenge in light of two developments. The first is the apparent establishment of EU exclusive external competence in the field of private international law, creating the opportunity for external action by the EU. The second is the increased recognition that internal action by the EU has external effects, which should be viewed not merely as incidental but also as potentially instruments of external policy. In conjunction, these developments demand consideration of what role private international law could and should play as part of EU external relations. This article critically examines a range of possible techniques which might be adopted in relation to this new external dimension of EU private international law. These methods are not necessarily unique to private international law or the EU, and thus this article also provides a case study of the range of legal techniques which can be used by international actors to project policies externally.

scholarly journals Economic Sanctions, Procedural Rights and Judicial Scrutiny: Post-Kadi Developments

2010 ◽  
Vol 12 ◽  
pp. 455-490 ◽  
Author(s):  
Takis Tridimas
Keyword(s):  
Supreme Court ◽  
Economic Sanctions ◽  
Case Law ◽  
Third Parties ◽  
The European Union ◽  
Court Of Justice ◽  
Uk Supreme Court ◽  
Judicial Scrutiny ◽  
The Uk ◽  
The Eu

AbstractThe judgment of the Court of Justice of the European Union in Kadi is of defining constitutional importance. The Court understood the EU Treaties (at the time, the EC Treaty) as establishing their own constitutional space, asserted the autonomy of EU law vis-à-vis international law and held that responses to emergencies should be handled through, rather than outside, the bounds of the EU Treaties. The judgment is predicated on liberal democratic ideals and views respect for legality as a sine qua non in times of emergency. This chapter seeks to discuss selected case law developments after Kadi. It focuses on the effect of invalidity of sanctions on third parties, issues pertaining to the validity and interpretation of Council Regulation 881/2002/EC, economic sanctions against nuclear proliferation and corresponding developments in the case law of the UK Supreme Court. It does not deal exhaustively with post-Kadi case law. Section I provides a brief introduction to the judgment in Kadi. Section II explores the effect of the ruling on third parties. Section III discusses a selection of recent case law of the Court of Justice and the General Court, and section IV explores in some detail the judgment of the UK Supreme Court in Jabar Ahmed.

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