WORKING SESSIONS OF THE FOURTEENTH ANNUAL MEETING
This text was prepared by Ma Asuncion Asin, Profesora titular of private international law, and Noemi Downes, Ph.D., Profesora contratada at the Faculty of law of the University of La Laguna.
In the course of the fourteenth meeting of the EGPIL that took place in Puerto de la Cruz, in the Island of Tenerife from the 17th to 19th September 2004, the European Group of Private International Law continued to examine questions related to partnerships in private international law. Moreover, work was carried on regarding conflict of law rules, unilateral private international law rules and human rights. Issues concerning personality rights and freedom of the press in private international law were also discussed.
The Group was duly informed of the developments in E.U. secondary law in civil and commercial matters, as well as the current and future projects of the Commission.
The following members of the Group attended the meeting in Tenerife : A. Borrás, President, P. Kinsch, General Secretary, M. Bogdan, A. Bucher, M. Fallon, L. Forlati Picchio, J.D. González Campos, T. Hartley, E. Jayme, H. Jessurum d’Oliveira, C. Kohler, K. Kreuzer, G. Möller, R. Morse, R.M. Moura Ramos, F. Pocar, K. Siehr, A.V.M. Struycken, J.H.A. van Loon.
Mrs. Karen Vanderkerchove, representing the Commission, was invited to attend the working sessions of the Group.
The opening session was enhanced by the participation, among others, of the President of the Autonomous Community of Canarias and of the Rector of the University of La Laguna. During the session, H. van Loon gave a particularly sensitive homage to Georges A.L. Droz, member of the Group who recently passed away. He took over from Mr. Droz as Secretary General of the Hague Conference on private international law.
I. PARTNERSHIPS AND PRIVATE INTERNATIONAL LAW
The group resumes the debate on partnerships (family unions), already discussed in previous meetings based on a new proposal prepared by the working subgroup. The object is to find out whether there is agreement on this subject matter in order to consider submitting a text to the Commission. The group is aware of the technical difficulties and complex nature of such a proposal, not exempt of possible legislative policy implications.
A second revised text (June 2004) is submitted by the working subgroup as an alternative to the one discussed in the previous meeting in Vienna.
[a) celebration of marriage between same-sex partners]
b) registration of declarations of a non-marital relationship made by opposite-sex or same-sex partners
c) registration of contracts on a non-marital relationship drawn up by opposite-sex or same-sex partners.
a) at least one partner was habitually resident in this Member State or
b) at least one partner was a national (in the United Kingdom and Ireland a domiciliary) of this Member State.]
(2) If the creditor is unable, by virtue of the laws referred to in the 1973 Hague Convention, to obtain maintenance from the debtor, the law of Member State in which the partnership has been established shall apply.
[3) Maintenance obligations not covered by the 1973 Hague Convention are governed by the law chosen by the partners or, if the applicable law has not been chosen, by the law of the Member State in which the partnership has been established.]
(2) If the law governing intestate succession does not provide a statutory share of the estate for the surviving partner [or their children], the law of the Member State in which the partnership has been established shall apply.
The law thus designated applies to the whole of their property. Nonetheless, the partners may designate with respect to all or some of the immovable property, the law of the place where such immovable property are located. They may also provide that any piece of immovable property which may subsequently be acquired shall be governed by the law of the place where the immovable property is located.
(2) If the partners have not designated the applicable law, their partnership property regime is governed by the internal law of the Member State in which the partnership has been established.
(2) If a partnership has been terminated in a Member State without any court decision, the termination is recognized if it is valid under the law of the Member State in which the partnership has been established. This also applies to the termination of a partnership by marriage.
(2) A partnership validly established in a Member State will not be recognized if such recognition is manifestly contrary to public policy of the forum state.
Under this new text :
There are several reasons for submitting a proposal according to the “recognition theory”:
The ensuing debate is centred on several issues, namely, the convenience of discussing the matter at all, the need to introduce a restriction in the proposed text to limit its application to intra-community situations only and the advantage of narrowing the debate to the issue of mutual recognition (some group member were not at ease with the term “recognition” itself). A possible inclination on the part of some Member States to undue recourse to public policy exceptions is also critically viewed and the attention of the members of the group is repeatedly focused throughout the debate in the inconsistency that some members appreciate in a proposal on recognition of registered partnerships disregarding the lack of uniform private international rules for marriages.
On the first subject, it is pointed out by some members of the group that a certain reluctance on the part of the group to tackle the issue in previous meetings led to the decision made by the working subgroup of limiting the scope of application, reducing the proposal to the subject of recognition. However, if the same reluctance persists, maybe it would be better to abandon the topic altogether and wait for the ECJ to take it up. For a different set of reasons there are other proposals in the same or similar direction.
For some, the group, as a scientific group, should limit itself to observe reality as such and propose solutions. In the very near future throughout the Member States different forms of partnerships or family unions will demand answers and therefore it is necessary to find a way to accomplish the coordination of systems. Technically, it must be decided whether the same solution for marriages and partnerships should be retained in order to determine the law applicable. If for marriage and its effects the law of the place of celebration is applied, there should be no objection to the law of the place of registration for partnerships. If instead nationality of the parties is considered as a connecting factor for marriage, then the law of the place of registration would pose the question of characterization in equivocal comparative law situations.
Regarding the proposed restriction to intra-community issues, some point out the discrepancy of such limitation with general Community policies favouring universal application, as evidenced by Rome I and the future Rome II and the fact that the group should not adopt a more restrictive position. Others consider the limitation appropriate if the law governing partnerships uses the connection “place of registration” because it could be considered a Community rule inasmuch as it departs from standard family law solutions.
A different opinion is put forward, based on the actual fact that legally valid partnerships exist in some Member States and that the Directive 2004/38/EU, on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, establishes the meaning of “partner” as “the person with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State”. As a result, the question should not be whether the group should discuss the matter but rather the approach chosen to find the appropriate rules.
In the course of the debate part of the group points to the convenience of shifting the discussion to issues of recognition of registered partnerships between Member States, leaving aside other private international law issues. This new approach does not eliminate the original hesitation as to the extent of the recognition, whether it should remain an intra-community matter based on the principle of mutual trust or it should have a universal scope. For the benefit of the free movement of citizens of the Union, the group tends to take a half-way approach settling for a recognition of registered partnerships validly created in another Member State, as well as those already recognized in one Member State, in which case it is felt that the habitual residence of the partners, or at least one of the partners, should be required. Furthermore, reference to recognition brings about a terminology question that some group members find difficult to accept. Others point out that this has been a recurrent problem that could be solved by choosing another term that validly expresses “apply” or “take for granted” a fact or a situation that has to be transferred to another country.
The subgroup offers to work their proposal over on the basis of three rules containing what may be considered the minimum substance of the discussion at this point:
Special attention is drawn to the fact that if a public policy clause is introduced in the proposed text, it may be invoked by Member States to refuse recognition or, if prepared to recognise partnerships in connection with the free movement of citizens, Member States may reach out for the public policy exception when it comes to recognizing the effects of registered partnerships. The advantages and disadvantages of inserting in the proposed text a public policy clause generated a far reaching debate where various opinions were weighed to conclude that such a clause is necessary. It was suggested to insert a “special” clause in order to take account the features of the European Community.
In the course of the present session the working subgroup presented another revised version of the text in the following terms:
Revised version (September 2004)
(1) This instrument shall
apply to formalized unions of two persons (partnerships) evidenced by
b) registration of agreements creating a non-marital relationship drawn up by opposite-sex or same-sex partners.
[(2) This instrument does not apply to marriages between opposite-sex or same-sex spouses]
Article 2: Creation of Partnerships
(1) A partnership validly created in a Member State [under its P.I.L. rules] is also valid [or: is recognized] in all the other Member States [if at least one partner was habitually resident in this Member State at the time of creation.]
(2) A partnership validly created in a third State is also valid [or: is recognized] in all the other Member States if
(3) If the same partners have created different types of partnerships, the partnership created last prevails.
(4) A partnership created between persons either one of whom is still bound to a partnership with another person which is valid in the forum state, will not be accepted [or: recognized] until the former partnership has been validly terminated.
Article 3: Effects of Partnerships
(1) In all the Member States partners shall enjoy all the rights equivalent to those existing under the law of the State in which the partnership was created.
(2) The effects comprise:
(3) This article does not affect the application of international instruments to which the forum state is a party.
Article 4: Termination of Partnerships
(1) If a partnership has been terminated in a Member State by court decree, the decree shall be recognized according to the principles similar to those of the Brussels Regulation of 2003.
(2) If the partnership has been terminated in a Member State without any decision of a State authority, the termination is also valid [or: recognized] in all the other Member States. This also applies to the termination of a partnership by marriage.
Article 5: Order public in general
The creation, the effects and the termination of a partnership will not be accepted [or: recognized] if such an acceptance (or recognition) is manifestly contrary to the public policy of the forum state.
Article 6: European ordre public.
In situations covered by the law of the European Union a Member State shall not refuse to apply the law of another Member State by reason only that this law allows the marriage of same-sex persons or a partnership of opposite-sex or same-sex partners [at least if both partners have their habitual residence in this State at the time of the creation of the relationship]
In situations covered by the law of the European Union a Member State shall not refuse to recognize the validity of the effects of a marital relation, of a registered partnerships, or of any other family union by reason only that its own law does not allow the creation of such relations between persons of same-sex nor the conclusion of a partnership of same-sex or opposite-sex partners [at least if both partners have their habitual residence in this State at the time of the creation of the relationship]
In the above text, compared to the one submitted previously, the substance has not changed. Article 6 on European ordre public is added and there is in Article 1 a specific exclusion of same-sex marriages that some group members had suggested as necessary to limit the scope of application to partnerships only.
The following new round of opinions produces some critical observations on various subjects.
As for the title, it is pointed out that “partnerships in private international law” does not clearly reflect the contents of the proposal, which actually refers only to recognition of partnerships.
Regarding Article 1 some group members miss a clear common concept of the matter dealt with and claim that in order to avoid problems in the scope of application a well defined concept is needed. The term “registered partnerships” is not a useful comparative law concept because countries have different names and contents to what it is dealt with here. Some regret the disappearance of the term “family unions” present in the June 2004 version. There is another suggestion to transform the term partnership into “civil partnership” which seems to be the accepted term in England, in the bill being discussed at this time there. However, the term is still not good enough inasmuch as it does not translate properly into French. Union non maritale d’un couple would be more suitable as far as ease of translation is concerned. There is agreement in that whatever the term may be the proposal should stick to it and not introduce different terms in the same article as is the case in letters a) and b) of Article 1. It is also considered superfluous to insist on the non-marital nature of the relationship in letters a) and b) and in addition in the second paragraph of Article 1 reiterate that the instrument does not apply to marriages. Another weak point in Article 1 is the term “formalized” because it has no civil law substance. The French version shows it in brackets, and most members believe it should be deleted. Finally Article 1 appears under the heading: “Partnerships”, which is felt to be too general. It should be narrowed down to something like “Scope of application”.
All of these observations come underlined by the fact that in spite of the need to polish the text the group in general acknowledges important improvements in this new version.
The group has to decide also whether a registration requirement should be included in the text, because otherwise it would be difficult to apply rules without registration. Moreover, there is a suggestion to merge the contents of letters a) and b) in Article 1, but at the same time someone reminds the group that there is a reason for a separate formulation, considering a certain tendency to emphasize the difference between unions that are more contractual and others that are more institutional and such a difference should be acknowledged. . There is no clear agreement as to what has to be done because there are statutory unions not registered, just based on facts, and that cannot be ignored. The question remains open whether the group wants to limit the proposal to formalized unions as a starting point, to make sure the text may succeed, knowing that there are other non-formalized unions. For the same reason same-sex marriages should be excluded because dealing with them as registered partnerships would mean muddling the issue extraordinarily. The effects of partnerships are different from those of marriages.
Section 2 of Article 1 may be unnecessary; however, the group considers it useful just for its pedagogic value.
Article 2 sections1 and 2 require harmonization of terms. On the one hand, number one reads: “valid and recognized” and in number two the option is “valid and accepted”. Probably “recognized” would be alright in both cases. Section 2 b) should better state when the partners should be habitually residents. The options are: at the time of creation in a third state or alternatively in the Member State where it is first recognised. There is some disagreement as to the requirement in section 1 that at least one of the partners habitually resides in the Member State of creation.
Some group members find some of the criteria being discussed totally artificial and a source of discrimination that cannot be justified. A civil partnership is a family relationship and once established it should be recognized as such regardless of the habitual residence of the partners. Others mention the condition of residence to avoid the “Delaware effect” or circumstances similar to “easy divorces”. There is disagreement concerning the need for a link at the time of creation or recognition.
After extensive debate on the above mentioned issues some of the members of the working subgroup themselves deem the proposal prepared in too much of a hurry and suggest that further reconsideration is necessary to come up with a more mature text.
II. CONFLICT OF LAW RULES, UNILATERAL RULES AND THE PROTECTION OF HUMAN RIGHTS
L. Forlati Picchio presents a report concerning the protection of human rights in conflict of laws and unilateral rules. Thus, the subgroup continues its previous work on the incidence of fundamental rights in private international law. Taking into consideration that private international law calls for the application of different laws to private relations that belong to the same legal category, is this difference justified or does it entail a discriminatory risk?
The circumstances that decide the choice of law, and especially the circumstances of the parties for whom those same circumstance may bring about different laws applicable in different jurisdictions, may result in an unjustified source of discrimination. This shows that the neutrality of private international law is a false belief. There is a shift from neutral conflict rules to rules based on national interests and recently to rules inspired by higher interests such as European community principles and principles inferred from judgements of the Strasbourg Court for the protection of human rights.
The discriminatory potential of unilateral rules and mandatory rules is more significant than that of conflict of laws rules. Unilateral rules usually lack universal scope. This last condition and the bilateral character of choice of law rules afford them a certain protection against the risk of discrimination.
Concerning nationality as a connecting factor, it used to be considered a rather homogenous criterion, but nowadays it seems to be in decline. It may be loosing ground for several reasons such as massive emigrations from country to country and from one continent to the other, affected also by globalisation and not least by the need to protect human rights. On the hand, nationality is taking different connotations, not so much as an absolute as earlier, even for juristic persons. In the case Segers (ECJ, C-79/85, 10.7.1986 Segers/Bedrijsvereniging, Rec. p. 2375), the Court establishes the principle of total freedom of establishment in any member state for all undertakings, companies or firms constituted under civil or commercial law under the conditions laid down for its own nationals. Such freedom is not conditioned to any form of link of the person or the business chosen with the member state of establishment.
The collision course of nationality as connecting factor with human rights is determined by the non-discrimination principle. There is a collision where the conflict rule grants an unjustified prevalence to the nationality of one of the parties. The answer given by the Italian Constitutional Court and also by German constitutional case-law to questions concerning these issues eliminates the pretended neutrality of private international law. (Specially, judgements number 71 and 477 of 1987 of the Italian Constitutional Court that declared unconstitutional articles 18 paragraph 2 and 20 paragraph 1 of the private international law rules of the preliminary part of the Civil Code. These rules go against the principle of equality before the law because the nationality of the husband or the father is used as connecting factor in family relations). However, there is always a possibility of dealing with non-discrimination reasonably, as proved by the French Cour de cassation in a judgement of 31 January 1990, where the application of Brazilian law, which admits full adoptions for national and foreign resident adoptive parents, was considered. Thus, the right of the child to remain in its place of origin is protected, as required in Article 21 of the Convention for the protection of the rights of minors, attending also to the subsidiary role of international adoption.
Referring to residence as a connecting factor, its function is reinforced as an alternative or subsidiarily next to domicile due to Article 12 of the New York Convention on the status of stateless persons. Currently residence as a connecting factor also increases significantly due to forced or massive displacement of people. In most cases, residence as a connecting factor is used in the form of habitual residence.
An area of special attention is that of consumer protection. In that area clues can be found to overcome double standards in the protection of human rights. The report stresses the need to consider the difference between active and passive consumer as very important in the context of a humanitarian globalisation. Active consumer is the one who deploys his/her buying power in the market in such a way that may impose conditions to promote the protection of various human rights, among others, labour rights, environmental protection rights and even ethical treatment of animals. This effect works not only in connection with goods produced for the Community’s internal market but also for European Union production to supply consumers in third countries. For goods produced for consumption in the European Union, there is a positive discrimination promoted by the active consumer favouring traditional methods of production in developing countries. Activities to secure transnational markets for their products are a form of protection of human economic and social rights, an effective dimension of the humanitarian globalisation and of the assumption of public interests by private groups. Therefore, when applying the clauses containing exceptions to the WTO Treaty, it is necessary to take into account current tendencies that allow member states to unilaterally protect vital non-economic interests. Reference is made to judgements of the WTO concerning the application of standard rules of Articles XX of the GATT Treaty or XIV GATS on free movement of services. At present there is a certain tendency to attribute to these clauses an extraterritorial scope.
The Group considers that human rights certainly have a role to play in selecting connecting factors in choice of law rules. Nonetheless, the extent and complexity of the subject calls for a narrowing down of the debate to the actual scope of the concept “human rights”. Some group members, referring to the Chart of Fundamental Rights of the European Union, ask themselves to what extent this text technically affects private international law rules. Others add that the report contributes to show that second generation human rights may also be involved in private international law, an example being the judgement of the Italian Cour de cassation (Sect. Travail, 11.11.2002, nº 15822) that excludes the application of U.S. law æwhich would have admitted the resolution of an employment contract concluded with an Italian national taken on in the United States by the sole decision of the employer, in this case an Italian Bankæ due to its contradiction to public policy, including community public policy. However, usually the debates are mainly centred in consumer rights. In this respect the group raises the question as to whether such rights, as a right of not to be discriminated against in comparison to others, hold sufficient substantive weight to justify human right status.
It is interesting to consider how the authors of Article 5 of the 1980 Rome Convention have used the habitual residence as a connecting factor for the protection of the passive consumer, identified as the weak party in the transaction. For some Article 5 is a non-discriminatory bilateral rule applicable erga omnes. On the contrary, others consider it a discriminatory rule, the discrimination being blamed on the connecting factor. The law of the habitual residence of the consumer protects the consumer there where there are consumer protection rules. From the point of view of the European Union the European consumer is protected in his territory against foreign entrepreneurs. However, all transactions between European entrepreneurs and foreigners belonging to third world countries, where consumer protection is not developed enough, tend to protect the entrepreneur. The consumers would be protected applying European rules but not applying rules of a third country where the consumer is. An analysis of the concept of jurisdiction is suggested as a line of work.
Some group members propose further reflection on the role of the non-discrimination principle in private international law. Non-discrimination may play a role in the selection of connecting factors, but also in the use of the public policy exception, specially in family law.
It would be necessary to define which are the objectionable criteria and above all to know their effects on private international law rules. Some point out that the problems arising from nationality and residence as connecting factors, specially in family relations, are to find an answer to the question, who is the victim of discrimination. It is an area of contention between private persons, each one of them claiming their own fundamental rights (national and cultural identity, religious identity). In this respect, it is very difficult to achieve a balance of fundamental rights.
It would be necessary to distinguish between differentiation and discrimination and therefore to determine when a differentiation is introduced in conflict rules arbitrarily. The procedure should be similar to the one followed by the Strasbourg Court and the Luxembourg Court when assessing a discrimination case. Some suggest also that the recourse to human rights should be prevented when it is done for political reasons by Constitutional courts as well as ordinary judges.
Regarding juristic persons, the question is if they may be entitled to human rights protection. Principally they seem to be indifferent to some human rights. Nonetheless, they may play a role in the protection of human rights. The ECHR has recognised the freedom of speech based on Article 10 of EHRC to Autronic A.G. (judgement of 24 April 1990 number 14/1989/175, paragraph 47). Article 10 applies to both natural and juristic persons.
Regarding the will of parties as a connecting factor, the debate centred on determining if freedom to choose the applicable law is the expression of a requirement of protection of a human right. Some underline the importance of autonomy as a connecting factor, and insist on the solution proposed by Community case law in the Garcia Avellò judgement. In this sense, they wonder if private international law and the non-discrimination principle could be distinct from the question of tolerance of the cultural diversity of national substantial laws.
As far as internationally mandatory rules are concerned, the function of Community preference compared to market factors for products coming from third states is the most disputable from the point of view of the human right to equality of treatment. Case law of the Court of justice in the matter of international exhaustion compared to European exhaustion of brands, is an instructive example in this respect. But a justification should be found to a case by case discrimination.
There are cases where the EU recognizes extraterritorial applicability to measures of protection applied to third state nationals, so that they keep from activities considered as harmful for the internal market and for Community interests (for example in matter of publicity for tobacco products) and towards third states (Directive 95/46 of October 24 1995 relative to the protection of physical persons towards treatment of personal data and movement of these data).
Recourse to reciprocity measures is a common Community strategy towards third states. It is common practice in the management of relationships of private law or administrative law with transnational character, and is rarely used in the context of connecting factors.
Two subjects have been proposed for future works. On the one hand, verifying if connecting factors, for example nationality, could or could not be considered to be discriminatory in certain cases. On the other hand, the examination of the effects of some human rights on the rules of private international law, for example the right to family life, remains to be studied thoroughly.
The working group will discuss the elements of this debate in preparing the next meeting.
III. RIGHTS RELATING TO PERSONALITY, FREEDOM OF THE PRESS AND PRIVATE INTERNATIONAL LAW
To introduce the subject of personality rights and freedom of the press the group is reminded that the debate on the influence of human rights in private international law, on the one hand, and the communitarization of private international tort rules (Rome II) on the other, justifies the attention devoted at this time to these issues.
There are three basic reasons for this interest:
1. The important differences in substantive rules on these subjects in common law as well as in continental civil law systems and also within continental systems themselves.
2. The differences are even more significant in private international law rules, again, both in common law and civil law. These differences are stressed by the new choice of law rules in the Private International Law Act 1995 and also by the interpretation of Article 5.3 of the Brussels Convention by the European Court of Justice in Shevill v. Presse Alliance.
3. The third element is the growing influence of human rights in this area, as evidenced by the case Caroline von Hannover decided by the European Court of Human Rights in June 2004.
This whole picture may be completed with the preparatory drafts for the Rome II Regulation that initially adopted for torts relating to personality rights a conflict rule calling for the application of the law of the place where the damage occurred, later a correction was introduced to take into account possible damages generated in several places, prevailing in that case the law of the country of domicile or residence of the purported victim. Subsequently there was a return by the Commission to the law of the place of damage but with the corrective application of the law of the forum when necessary to preserve the freedom of the press and, of late, it seems the solution retained may be the straight application of forum law.
In view of the above some group members have brought the matter to the attention of rest of the group with the idea that perhaps the group should engage more intensively in the subject.
R. Morse introduces a paper dealing with the state of the matter in English courts with a remark concerning the term “rights relating to personality” which is not a term of art in the common law systems. The protection of these rights takes place through a variety of legal techniques, among which the paper refers to defamation and invasion of privacy, prevaling the former, divided into libel and slander, and occupying the latter a secondary place. Some consideration is given to other common law systems excluding the United States that takes a different approach to these issues.
a) Reasons that make English substantive libel law attractive.
1) Liability is strict
2) It is not required to prove that the statement is false
3) No proof of special damage is necessary
4) Each publication of a statement is a separate tort
5) No need for “actual malice” on the part of the publisher
6) Claims can be tried by jury (until recently juries were prone to award large sums. Not anymore. Claimants may replace the financial advantage by the vindication effect of restoring their reputation).
b) Private international law issues.
Claimants would usually go to English courts against English based defendants who are subjected to English jurisdiction and English law. More relevant from a private international law standpoint is the fact that sometimes foreign based media defendants are sued for libel by English and foreign claimants in English courts.
As for claims for invasion of privacy, England is not so likely to be looked on as a forum of choice, because English law does not recognise a right of privacy, as such, that can be protected by a civil action. Nonetheless the implementation of the European Convention on Human Rights Act 1998 has made possible a fast development in this area of law.
The long arm jurisdiction of English courts may be justified in some of the cases reviewed in the paper bearing in mind that there must be some connection of the case with the courts, because the court is going to apply its own law. Jurisdiction equates with choice of law in relation to a publication in England but not in a foreign country.
Instead, there is no conflicts law of privacy. A recent case, Douglas v. Hello! Ltd., however, allows to conclude that claims of invasion of privacy could be similar to claims for libel in that the claimant may rely on English law and the defendant’s reference to foreign law will not help. Therefore the only private international law question is that of jurisdiction and if there is a publication in England there is not much the defendant can do about it.
The next step, enforcing a judgement, is not always guaranteed, but it is also not always what claimants want. In the case of American courts, recognition has been refused for violation of first the Amendment based, in the cases at hand, mainly on the fact that liability is strict and there is no public figure defence.
c) Clash between competing human rights.
These issues confirm the point that English law and legal systems derived from it seem to give greater protection to reputation than to freedom of expression, thus producing a clash between competing human rights. Media defendants may say their freedom of expression is severely restricted. That is the reason why the media favours the country of origin principle, perhaps motivated by saving money, considering it is far cheaper to comply with your own law than it is to comply with foreign laws. Similarly with internet publishers, the cost to comply with foreign law increases the cost of doing business. Going back to the balance between protection of reputation and freedom of expression, it is clear that the protection of reputation leads to an attraction to certain fora more pro-claimant. With privacy on the other hand, the English system appears very undeveloped and the gravitation is towards other jurisdictions.
d) Rome II proposal.
The media favours the country of origin choice of law rule as opposed to the connections proposed in the different Rome II drafts. The rule is certain. It is cheaper to comply with. The rule is also practical since the mechanics of daily newspaper production make it impossible to seek legal advice as to the laws of all the countries into which the newspaper may find its way. Internet is also a real problem because of easy access from anywhere in the world.
e) Declarations adopted by the Conference – Declaration on Article 73m of the Treaty establishing the European Community. (O.J. C 340, 10/11/1997 p. 0135).
Measures adopted pursuant to Article 73m of the Treaty establishing the European Community shall not prevent any Member State from applying its constitutional rules relating to freedom of the press and freedom of expression in other media.
As commented by M. Bogdan :
The above is a joint declaration not just a Swedish declaration. It is true that it is based on a Swedish initiative. Article 73m of the Treaty of Amsterdam corresponds to Article 65 of the Treaty Establishing the European Community.
Swedish rules on freedom of the press and freedom of expression enjoy constitutional protection, not just on a general level. The Swedish Acts on these matters are voluminous and enjoy constitutional status in their entirety. This includes a lot of details.
1) Time limitation (must sue quickly)
2) Trial by jury (only occasion this is required)
3) The person who actually committed the defamation enjoys total immunity. Every action (both civil and criminal) must be initiated against the editor responsible for the publication in question.
This caused certain worries when Article 65 of the Treaty was adopted because Swedish courts could be forced to recognise and enforce judgements of member states that may be against constitutional rules.
(2) The legal value of the declaration.
From the point of view of community law the optimism of the Swedish government as to the legal value of the declaration may not be totally justifiable. The ECHO has already stated (Defrenne v. Sabena S.A.) that member states cannot change community law, not even by unanimous agreement. Member states cannot agree to dispense with community law.
(3) The legal interest of the declaration
The above allows to believe that Article 6 in the proposed Rome II Regulation has something to do with this declaration. It probably made it easier to introduce the exception to Article 3 for the protection of freedom of the press. Secondly, it may have some importance for the application of the order public of the member states. It would make it difficult for the EC Court to question the fundamental nature of specific rules mentioned in this declaration.
Finally it must be taken into account that the declaration refers only to Article 65 of the Treaty and not to other EC conflict norms.
f). Decision of the European Court of Human Rights Lindberg v. Sweden, 15 January 2004 (Application nº 48198/99)
P. Kinsch indicates that there are two aspects of this decision that may be of interest to the members of the group:
1) The recourse by a contracting state to the European Convention on Human Rights against recognition of a judgement of the courts of another contracting state violating substantive conventional rules (as opposed to the right to a fair process), in this case, referring to freedom of expression.
2) The implications derived from Pellegrini v. Italy (Judgement 20 July 2201, Application nº 30882/96) commented in the EGPRIL meeting in Vienna).
No clear conclusions can be drawn from this decision. Except perhaps for the fact that a judgement, clearly violating the right of freedom of expression (which was not the case in Lindberg), may generate for contracting states an obligation not to enforce it in any other contracting state. This obligation certainly exists if the judgement is given by a non-contracting state. But it does not seem totally excluded that if the judgement is given by a contracting state the only right of the victim is to go against the original judgement, whilst other contracting states are not obliged to refuse enforcement.
Equally uncertain is the reference to the Pellegrini judgement, mentioned together with the other cases where the test for fair process is attenuated when the judgement seeking recognition in a contracting state was given by a non-contracting state.
g) It is possible to discern three positions in the ensuing debate:
1) A practical approach which is based on the expectations of the press and media in general that lobby in favour of the criterion of the country of establishment of the tort feasor, assuming they are always going to be sued in their own jurisdiction. This solution is the same as proposing the application of the law of the forum.
2) The press approach partially implement the Shevill judgement so that the plaintiff can sue in the country of establishment of the tort feasor or the country of distribution, taking for granted that courts will apply their own law. A conflict of laws approach, instead, should separate both issues, accepting the Shevill solution to determine jurisdiction, but if the plaintiff sues in the country of distribution he/she should be allowed to choose as law applicable the law of the establishment of the tort feasor, if it is more favourable.
3) Some group members consider that the debate does not take sufficiently into consideration the point of view of the victim. It must be recalled that there are two fundamental rights in competition and not just the freedom of the press. The present Rome II draft also reflects this situation when it applies the law of the forum and nothing else. A better approach should be to distinguish two levels of discussion: on the one hand the conflict of fundamental rights. The Amsterdam declaration and the contents of Article 6 stress the right of freedom of the press. On the other hand, the decisions of the Strasbourg Court, instead, do not place one right above the other right. On the contrary, they seek a balance. Thus, if member states do not make a move towards that balance, the Court may compel them in that direction so that they may not have too much room to legislate regarding those rights.
The above leads to the conclusion that there is no need for Article 6 of the draft Rome II for the special protection of the right of freedom of the press, nor for the rights relating to personality for that matter, as a fundamental right. The proposal is to return to the application of only one law. That law could be the traditional conflict rule of the law of the place where the damage occurred, introducing for multistate torts the corrective mechanism of the centre of gravity, that could be located in the place of domicile or residence of the victim. Or, an answer that favours the application of just one law coherent with the main options adopted in Rome II rather than the proposed law of the forum.
IV. DEVELOPMENTS IN SECONDARY LAW AND DRAFT EUROPEAN CONSTITUTION
1. Failure of a member state to fulfil obligations. Judgement of the European Court of Justice (First Chamber) Commission v. Spain , 9 September 2004, Case C-70/03.
C. Kohler refers to a decision of the ECJ that merits being brought to the attention of the group because it is the first time a member state is found responsible by the Court for failing to transpose correctly into national law EC Directive 93/13.
The matter brought to the Court by the Commission against the Kingdom of Spain refers to Articles 5 and Article 6 (2) of the Directive 93/13/EEC on unfair contract terms in consumer contracts claimed incorrectly transposed into national legislation. The Kingdom of Spain stated that those provisions were transposed into the Spanish legal system by Law 7/1998, of 13 April 1998 on general contract terms [Articles 6(2) and 3(2)] and amended Law 26/1984, of 19 July 1984 providing for consumer protection Articles 10(2) and 10a (3)]. The reply was found unsatisfactory by the Commission.
For the group the main interest of this judgement lies in the disapproval of the Court of the terms in which, the much discussed, Article 6 (2) of the Directive was implemented by the Spanish legislation. Article 10a (3) of amended Law 26/1984 is responsible for implementing Article 6 (2) of the Directive. The Spanish text determines the scope of application of consumer protection against abusive clauses by reference to Article 5 of the Rome Convention, a restrictive rule that excludes from its substantive scope of application certain consumer contracts. On the other hand, Article 3 (2) of Law 7/1998 æand this is what Spain claims in its defenceæ applies to all contracts concluded without individual negotiation on the basis of general terms.
It is pointed out that the clues to this matter are to be found in the determination of the concept “a close connection” used by the Directive. The Court seems to explain it as follows:
Firstly, the term close connection is a general expression that “seeks to make it possible to take account of various ties depending on the circumstances of the case”.
Secondly, the previous remark is attenuated stating:
Thus, the cumulative connecting factors as those of Article 5 of the Rome Convention, referred to in Article 10a (3) of amended Law 26/1984 explicitly and in Article 3 (2) of Law 7/1998 implicitly, represent too stringent a restriction and are not acceptable.
It is generally felt that the consequences that this Court decision will inevitably bring about for the many Directives already disparately implemented by various national legislations are not foreseeable.
Other critical remarks include the impression that the Court seems to be treating this Article 6(2) of the Directive as a rule of a Regulation and not a Directive. Or, turning the argument completely around and observing it from the opposite side, it could be interpreted in the sense that applicability is decided by the circumstances of the case only.
Whilst there is nearly a general acceptance that the ruling of the Court is justified, considering that Article 6(2) has to be implemented flexibly enough to favour the application of the Directive, the majority of the members of the group feel that the latter interpretation leads to a disappointing result because as a conflict rule Article 6(2) could end up behaving as a non-rule.
2. Proposal for a Directive of the European Parliament and of the Council on services in the internal market.
E. Jayme calls the attention of the group to the proposal for a Directive on services in the internal market considering that already a great deal has been said about the country of origin principle. It is obvious that the proposed draft follows the pattern of the Directive 2000/31/CE on electronic commerce. Article 16 contains a general rule based on the country of origin principle followed by many exceptions listed mainly, but not only, in Article 17. There are other exceptions in the following Articles 18 and 19. In Article 17 the exceptions listed under numbers (20) (21) (22) and (23) are private international law rules concerning party autonomy, consumer contracts, formal validity of contracts and non-contractual liability of a provider in case of accidents.
There appears to be a certain contradiction in establishing a main principle followed by a great number of exceptions. Yet another contradiction derives from the fact that this Directive is being drafted at the same time that work is being carried out on the Rome II Regulation on non-contractual obligations. Thus, the expected result in private international law will be the coexistence of the proposed Article 23 of Rome II that regulates the relationship with other provisions of Community law and this Directive followed by all the national legislations to implement it. It will be difficult for judges to know which rules they must apply. Briefly, there are contradictions in this Directive but no innovation. So far the draft has been amply criticized.
3. Developments in the Draft European Constitution
In the new version available at the time of the meeting, there are three changes in Article III-170 of text issued by the Convention and all of them seem to reflect a rather restrictive tendency. The changes appear to give heed to criticism previously disregarded concerning the need for a connection of the civil matters regulated with the internal market.
These modifications affect the second paragraph of Article III-269. The initial sentence now contains an assertion absent in the previous text regarding measures established in civil matters having cross-border implications, namely, the phrase “particularly when necessary for the proper functioning of the internal market”. As opposed to Article 65 of the Treaty the “functioning of the internal market” is no longer a condition, an inherent limitation of the powers of the Union, it is only indicative of the extent of those powers without excluding that eventually action may be taken for different reasons. It is too early to speculate about the significance of these changes but it should favour different constructions and mitigate the feeling that judicial cooperation in civil matters is a “policy which stands on its own feet”.
The second and third changes are in letters e) and f) and also confirm a slight restrictive tendency. In letter e) the previous text demanded a high level of effective access to justice. In the modified text the demand for a “high level” disappears and calls for an effective access to justice only. Letter f) was very controversial because the previous wording was interpreted as too demanding and it has been soften adding “the elimination of obstacles” in front of the “proper functioning of civil proceedings…”
There are two complementary pieces of information. Firstly, the special statute of the United Kingdom, Ireland and Denmark subsists. The protocol concerning Title IV of the EC Treaty on the subject of judicial cooperation in civil matters subsists for the United Kingdom and Ireland with the possibility to opt-in and for Denmark with a very special solution to opt-in contained in a rather obscure text.
Secondly, there are some developments regarding the effects on external Community competences in matters of interest to the group. At this time there is a proposed Declaration of the member states that will be attached to the Final Act of the Intergovernmental Conference regarding Article 300 of the EC Treaty on the conclusion of international agreements on behalf of the Community, corresponding to future Article III-225 of the draft Constitution. The latter refers to agreements concluded by member states. Thus, the declaration states that the Conference confirms that member states have a right to negotiate and conclude agreements with third countries or international organisations in civil matters of judicial cooperation as long as those agreements comply with Union law. The exact meaning of such a declaration is unclear and interpretation remains open
.V. PRESENT AND FUTURE PROJECTS OF THE COMMISSION
A representative of the Commission informs the members of the group of the current and future projects of the Commission.
Their attention is drawn to those projects concluded in the course of the last year: the Brussels II bis Regulation, the Regulation on enforcement orders for uncontested claims, the Directive on compensations to crime victims, the Green paper on maintenance obligations and the Communication on the assessment of the Tampere programme and future orientations.
Shortly, that is before the end of October, the preliminary draft Directive on certain aspects of mediation should be proposed. This proposal intends to create a general legal framework for mediation and pursues three objectives: to promote the use of mediation, the improvement of its quality and thirdly, its proper interaction with judicial proceedings. Mediation has to be regarded as complementary to the codes of conduct for mediators that have just been introduced by the Commission.
There will be a report on Regulation 1348/2000 on service of documents. This report from the Commission has been prepared in accordance with a technical obligation contained in the Regulation. The report is based on an external study and it is not limited to an evaluation of its application but it also intends to gather suggestions for possible solutions to the application problems addressed in the report.
Also, before the end of October there will be some technical adjustments in the annexes of Brussels I and Brussels II Regulations. In the Accession Treaty technical adjustments are not bound to the codecision procedure and therefore these adjustments may be introduced in a separate text. A small modification will also affect the Brussels II bis Regulation to take into account the Concordat between Malta and the Holy See.
Another project programmed for the month of October is the publication of a vademecum on the application of the Brussels II bis Regulation, not legally binding and without prejudice to interpretations of the Court of Justice.
Regarding this publication, one
of the members of the group observes that Regulations should not be
accompanied by an explanatory report. Nonetheless, the different scopes
of practical guides, vademecums and explanatory reports are difficult
to determine. The vademecum of the Brussels II bis Regulation refers
only to the part concerned with the protection of children without any
reference to matrimonial matters. For the rest of the subjects, there
are no objections to turn to Ms. Borrás’s explanatory report.
It is not a very safe reference because the report was meant for the
original text of the Convention therefore it is clear only in connection
with aspects not modified by Regulations Brussels II and Brussels II
bis. Besides, the report was adopted by the drafting committee of the
Convention. In any case, the Civil law Committee responsible for the
text of Brussels II bis was not consulted for the preparation of the
At the beginning of next year, in January 2005, the Commission plans to approve the Green paper on succession. In this respect some group members asked which would be the scope of application of a Green paper on this subject and what would be the incidence of the Hague Convention on successions in the proposal of the Commission. The answer is that the Green paper is just for consultation. As for the Commission a future instrument should address the questions of jurisdiction and of conflict of laws. However, the outcome should depend on the reactions to the previous consultation. Concerning The Hague Convention, one of the questions that will be introduced in the process of consultation will be its interaction with the proposals.
Another programmed Green paper is the one on law applicable to divorce.
On the external level, for the beginning of next year, on first fortnight of January, there will probably be a public hearing on the draft Convention on choice of jurisdiction prepared in The Hague.
Regarding other projects for the year 2005, one of the priorities of the Commission is the enforcement of court judgements. In this respect a study has been conducted, which can be consulted in the web-site, on the three measures connected to the enforcement: transparency of the assets of debtors, a European bank attachment of assets and provisional remedies. A consultation on this subject will be launched during 2005.
As a new legislative proposal, the Rome I Regulation must be mentioned.
If following the public consultations that will be launched in October on the Regulation on service of documents amendments are required, a new proposal will be prepared. Also following consultations on maintenance obligations there will be a legislative proposal.
As for Rome II, the draft Regulation has been widely accepted by member states. There are still important questions that remain open. One of those questions is its legal basis and under what circumstances the instrument could have a universal scope. These are important questions that will also influence the records of Rome I
Another difficult issue is the interaction of Rome II with the interior market and particularly with the draft Directives on services. On the other hand, the question of defamation is still very difficult and a perfect balance of all the different interests involved should be found (protection of freedom of the press on the one hand and of private life on the other).
Yet another very important issue for the Commission, now in front of the Council and Parliament, is the European procedure for aggregation of payments. However, negotiations are rather difficult. The big question is to know how far article 65 of the Treaty EC allows the development of a European procedure not just limited to transborder conflicts but also applicable to domestic conflicts. Even when optional, could it be applied to purely internal disputes? There is still no definition for the concepts “purely internal disputes” and “transborder disputes”. We are faced with a legal as well as a political debate.
On the external level, for the year 2005 the conclusion of negotiations on the parallel Conventions with Denmark is expected: the Convention on the application of the Brussels I Regulation and the application of the Regulation on service of documents.
Also, once the ECJ decision is made available, negotiations on the new Lugano Convention are expected to conclude.
Still in the external level, negotiations continue in The Hague on the draft Convention on choice of jurisdiction and on a draft Convention on maintenance obligations.
The Community also expects to
be able to carry on discussions on the amendment of the statute of the
Hague Conference, following the accession by the Community.