The outcome of the referendum on the UK’s membership of the European Union poses, both to UK companies or individuals and those from EU, a range of completely new and unpredictable legal problems.
In the light of this, it is recommended a specific study for each case in order to avoid undesirable consequences and, over all, which were not taken into account when the proceeding or the legal relationship began.
Article 50, § 2 and 3, of the Treaty on European Union states:
2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
Two conclusions could be drawn from these rules:
a) UK’s exit is not automatic, but must take place within time yet to be determined; even the two years period is not mandatory.
b) There is a legal path, although unexplored; this is a negotiated process between the outgoing State (United Kingdom) and the rest of the EU countries. The outcome of such negotiations would shed light on the applicability or not of the EU law over British companies and citizens. Maybe, some EU rules will continue to apply in the future, as a kind of international treaties, as it happens with the particular situation of Denmark regarding some EU rules, such as Regulation 1215/2012.
It is still quite early to say what will happen with such important issues as the recognition and enforcement of the UK judgments in the EU (and vice versa), or if in the UK will be applied the system to determine the law applicable to contracts, or what immigration rules (visas, etc.) will be applied to UK citizens in Spain or how it will affect the freedom of establishment in the EU of British companies …
It is prudent to start working right now in the new legal scenario, anticipating the future; in this regard, for instance, should be initiated the proceedings to recognize and enforce in Spain of the judgments already rendered by UK Courts, because of the ignorance of what will happen in the future with EU Regulations in this field, due to the uncertainty about the transitional rules that could be established.
On 10 March 2012 has been published in the Spanish Official Gazette, the Law on Voluntary Jurisdiction (i.e., non-contentious), which implies important novelties in several issues of Private International Law.
On the one hand, its articles 9-12 deal with the issues of private international law in voluntary jurisdiction dossiers, with special significance regarding the registration in Spanish public registries of foreign judiciary decisions in this field and the effects in Spain of dossiers and decisions which come from foreign authorities.
On the other hand, the new Law modifies the previous rules in force in some specific áreas:
In this regard, could be briefly mentioned the following changes:
a) The article 107.2 (our traditional conflict rule on legal separation and divorce) has become superfluous, as a mere reference to the EU rules and those of the Spanish system of Private International Law. In this point, must be recalled that in this field are applicable both EU Regulation 2201/2003 and EU Regulation 1259/2010.
b) There are some modifications with regards to the way of entering into marriage, as well to the applicable rules on marital dossiers, competent authorities, etc, although the vast majority of these novelties will not entry in force till 30 June 2017.
c) The regulation on child abduction has been broaden, adding new paragraphs to the article 778 of the Civil Procedure Law.
d) The 22nd Final Disposition of the Civil Procedural Law has been re-drafted, to make easier the application in Spain of the EU Regulation 2201/2003.
e) A large number of articles of the Civil Code and the Civil Procedural Law, regarding inheritance matters, have been modified. It must be noted that, in this field, on 17 August 2015 will entry in force the EU Regulation 650/2012.
February 12, 2015 admin
Sin categoría
On January 10, 2015, entered into force Regulation 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, which replaces Regulation 44/2001 (http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32012R1215&from=EN).
Although this new EU regulation implies some changes in the field of international jurisdiction (lis pendens with third States, etc.), undoubtedly its essential novelty is the abolition of exequatur for the enforcement of judgments of the EU Member States courts, regarding issues where applicable Regulation 1215.
February 2, 2015 admin
Sin categoría
The European Court of Human Rights (ECHR) judgment of 27 January 2015 (case Paradiso y Campanelli vs Italy), along with the rulings of June 26, 2014 (Mennesson vs France and Labassee vs France) deals with the complex issue of surrogacy.
The jurisprudence of the European Court of Human Rights contrasts with the decisions of the Spanish Supreme Court. The Supreme Court Order of February 11, 2015, dismissed the application for the annulment of its judgment of February 6, 2014, issued in relation to the registration of the filiation status of some children born via surrogacy. The Court understands, albeit with several dissenting judges, that the aforementioned judgment neither infringes the fundamental rights of minors nor the rights of those who asked for being registered as parents.
December 9, 2013 admin
Sin categoría
Sorry, this entry is only available in Español.
December 27, 2012 admin
Sin categoría
On 20 December 2012 has been published in the Official Journal of the European Union one of the most important legislative developments in recent years, the Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
The Regulation, as of its full application from 10 January 2015, will replace the existing Regulation No 44/2001.
The new text contains several adjustments regarding the system to determine the international jurisdiction in cross-border disputes, but certainly the most significant advance and probably of more significance which has occurred in recent years, is the abolition of exequatur. Stating that “for the purposes of the free circulation of judgments, a judgment given in a Member State should be recognised and enforced in another Member State even if it is given against a person not domiciled in a Member State”. Applying the principle of mutual judiciary trust within the EU, according to which the judgments of the courts of the Member States should be treated and thus recognized and/or executed, as if they had been dictated by the courts of the Member State in which they are going to be effective.
On 27 July 2012 has been published in the Official Journal of the European Union the Regulation (EU) No 650/2012 of 4 July 2012 on jurisdiction, applicable law, recognition and the enforcement of decisions, acceptance and implementation of public documents relating to succession mortis causa and the creation of a European Certificate of Succession.
In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of that Regulation and is not bound by it or subject to its application.
The scope of the Regulation includes all civil-law aspects of succession to the estate of a deceased person, namely all forms of transfer of assets, rights and obligations by reason of death, whether by way of a voluntary transfer under a disposition of property upon death or a transfer through intestate succession. But in its Article 1 enumerates a list of matters which are excluded from its scope; among others, the Regulation nor will be applied to revenue, customs or administrative matters either the status of natural persons, as well as family relationships, etcetera.
It shall apply from 17 August 2015, with a few exceptions.
On 10 March 2012 has been published in the Spanish Official Gazette the Royal Decree-Law No 6/2012 of 9 March, adopting urgent measures to protect mortgage holders without resources. Among its most important points may be mentioned the moderation of interest for late payment; the establishment of a Code of Good Practice which, although voluntary for credit institutions, aims to encourage the renegotiation of the debt or at least the deliverance of the property in lieu of payment as a form of extinction of that debt; and, finally, the introduction of several tax measures to facilitate such actions.
http://www.boe.es/boe/dias/2012/03/10/pdfs/BOE-A-2012-3394.pdf
Spain’s Audiencia Nacional has referred several questions to the EU Court of Justice for a preliminary ruling, regarding the protection against Google of certain personal data, being the first Court which submits this issue to the ECJ. The case concerns an ad on Google which makes reference to a seizure of property. Although the proceedings had been settled long ago, these data still appeared in the search. The request poses several questions, including whether those affected in these cases should go to court in California (USA), where is domiciled the parent company of the group, and if they can refuse the broadcasting of such information, although it is lawful and accurate, because it is detrimental to them.
The European Commission has prepared a report on the implementation of Council Directive 2002/8/EC of 27 January 2003 to improve access to justice in cross border disputes by establishing minimum common rules relating to legal aid for such disputes.
The Directive has been transposed into national legislations by all Member States, although not in all cases properly. Mainly due to the differences between EU rules and the national laws and by the lack of a jurisprudence from the Court of Justice of the European Union which could allow a uniform interpretation. The report also highlights the need to inform its content both to the general public and the professionals in particular.
At the same time, another area under review deals with the possible accession of the EU to Hague Convention of 25 October 1980 on International Access to Justice.
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2012:0071:FIN:EN:PDF