Język:
PL
| Data publikacji:
14-03-2024
|
Abstrakt
| s. 5-58
The subject of the considerations are drafts of: the EU regulation on jurisdiction, applicable law, recognition and enforcement of measures and cooperation in matters relating to the protection of adults, as well as the decision to authorize EU Member States to accede to the 2000 Hague Convention on the protection of adults concerning cross-border personal and care matters. The documents dated May 31, 2023 refer not only to the legal status of a person (e.g. partial incapacitation, guardianship, assistance in performing legal actions or functionally similar institutions under foreign law), but also the effects on civil law contracts with third parties (including rights and obligations within legal transactions). Detailed comments are presented about “measures of protection” for adults in legal transactions with foreign countries. The 2000 Hague Convention raises reflections on current trends in the sources of international civil procedure and private international law. They include, among others, the planned co-existence of the Hague convention and the EU “Brussels” and “Rome” regulations. The attempt to increase the number of parties to the convention and the participation of EU Member States generally deserve a positive assessment, which also means the ratification of the 2000 Hague Convention by Poland. However, some doubts are cast by the intention for simultaneous modification through an EU regulation. The idea of a draft EU regulation of 2023, intended to supplement and modify an international agreement for the needs of a regional economic integration organization, could prima facie be assessed positively. However, a detailed look at the draft regulation of 2023 leads to the conclusion that it should be corrected, as it partly contains provisions that are both desirable for judicial cooperation between Member States and solutions that are unnecessary or questionable. In particular, the proposed solution allowing for an unlimited choice of jurisdiction may raise doubts. It is not intended — as is typically the case in personal civil matters — that a jurisdiction can be chosen from among states that are in some way related to the adult’s current or future situation (e.g. by citizenship, location of assets, past or future residence, circumstances relating to the guardian or curator). Thus, a country (and law) may be chosen that are completely unrelated to the actual situation. Additionally, the proposed Articles 6—7 are not compatible with the conventional catalog of circumstances that determine the transfer of jurisdiction, nor with the conflict of law rules (Article 15), which provide for the choice of the applicable law in a narrower range of situations (citizenship, previous habitual residence, location of property). Under the proposed EU regulation the indirect possibility of choice of foreign law is possible through the choice of foreign jurisdiction. This makes it possible to achieve a substantive legal effect by the adult “selecting” the substantive law that he or she deems desirable at the time of choice, thus completely departing from the remaining provisions of the Convention and the Regulation in terms of jurisdiction and applicable law. There is no limitation to such an indirect choice from the perspective of the interests of third parties with whom the adult has personal or property relations. Moreover, such a solution may mean, in practice, a departure from the basic substantive legal principles of the country in which a given adult lives (habitually resides) or is a citizen, in favor of accepting the consequences resulting from a distant fact (i.e. unrelated to the actual situation) and legally (i.e. providing for axiologically different solutions concerning the broad category of ‘measures of protection’) of given law and state. Taking into account the variants of legislative action described in the impact assessment report (document 10108/23ADD), it would be worth postulating a change to the proposed method of legislative action. It seems more rational to temporally distinguish the two planned activities (projects) under option 4. First, take steps to join the 2000 Hague Convention and gather several years of experience in its operation, also between Member States. And then, in the longer term, taking into account the experience of applying the convention on the territory of the EU, consider supplementing or modifying intra-EU judicial cooperation in these matters. The longer experience of applying the 2000 Hague Convention can — firstly — verify the thesis about the need to improve its functioning, and secondly — determine precisely in which areas it would be desirable for the welfare of adults and their guardians in cross-border cases.
2024-03-14
Czasopismo: Problemy Prawa Prywatnego Międzynarodowego
Język:
PL
| Data publikacji:
29-12-2022
|
Abstrakt
| s. 81-101
The Act of March 12, 2022 on Assistance to Citizens of Ukraine in Connection with Armed Conflict on the Territory of Ukraine introduced the possibility of establishing temporary custody for minor citizens of Ukraine who — following the war in their home country — found themselves on the territory of the Republic of Poland without the protection of adults (Article 25 of the Law). The author seeks to determine what are the grounds for the application of the above-mentioned provisions of Polish law to Ukrainian citizens while examining the grounds for asserting the domestic jurisdiction of Polish courts in temporary custody cases. Despite the existence of a 1993 bilateral agreement in Polish-Ukrainian relations, which contains conflict-of-law rules on applicable law and jurisdiction, the 1996 Hague Convention on Parental Responsibility, to which both Poland and Ukraine are parties, takes precedence in guardianship cases. Article 6 of this convention stipulates that for the children who, due to disturbances occurring in their country, are internationally displaced, the authorities of the country on the territory of which these children are present as a result of their displacement have jurisdiction. Article 15 of the Hague Convention, on the other hand, stipulates that the authority that has jurisdiction applies its own law. The author notes, however, that the Polish legislator has not referred to the abovementioned conflict rules justifying the jurisdiction of Polish courts and the jurisdiction of Polish law, but seems to treat the provisions on temporary custody as the international mandatory rules (lois l’application immédiate). It is also unfortunate that Article 25 of the Act refers to Polish law with regard to the premise of a minor present in Poland unaccompanied by “responsible adults.” However, the author contends that the point of reference here must be Polish conflict of laws (and not family law), which leads to the conclusion that the determination of who is responsible for the child should be determined on the basis of Ukrainian law.
2022-12-29
Czasopismo: Problemy Prawa Prywatnego Międzynarodowego
Język:
PL
| Data publikacji:
16-06-2022
|
Abstrakt
| s. 139-172
The jurisdiction provided for in Article 13 of Regulation 650/2012 is ancillary to the jurisdiction regulated in Articles 4—11 of the Regulation. It covers only the declarations described in this provision. Their content is determined by the law applicable to succession. Jurisdiction under Article 13, on the other hand, does not cover the consequences of the silence of a candidate for an heir. The effects of the waiver of the succession are assessed according to the provisions of the law applicable to succession even if the waiver occurred within the jurisdiction of Article 13 of the Regulation. In the case before the CJEU, the Bremen court of succession held that since it had not been served with the original document containing the waiver of the succession with an official translation into German within the deadline set by the law application to succession (Section 1944(3) BGB), there had been no effective waiver of the succession. Responding to the preliminary questions of the German court of second instance, the CJEU correctly stated that in the case of waiver of the succession in the state, in which the waiving heir has his or her habitual residence, it is sufficient to comply with the form requirements provided for by the law of the state in which that declaration is made, without a necessity to comply with the requirements of the lex successionis. On the basis of legis processualis, the German court of succession could have requested that translation into German of the documents drawn up in Dutch is submitted. On the same basis, it could also have demanded the submission of the originals of the above documents. However, it incorrectly held that these acts must be completed within the time limit for waiver of succession provided for in the legis successionis. It is also clear that the failure of the heir waiving the succession to comply with the instruction contained in the last sentence of recital 32 of the Regulation (paragraph 74) regarding the obligation to give notice of waiver, does not render the waiver invalid. It seems desirable in future, however, to explicitly include in the Regulation the obligation to notify the court of succession of the waiver, in the country of habitual residence of the waiving heir.
2022-06-16
Czasopismo: Problemy Prawa Prywatnego Międzynarodowego
Język:
PL
| Data publikacji:
10-12-2020
|
Abstrakt
| s. 97-135
The article presents the issue of the jurisdiction of a civil court in the light of the provisions of the EU Brussels I bis Regulation in relation to a matter in the field of insurance guarantee. This was presented against the background of qualification considerations of the insurance case and delimitation of the norms of the EU Brussels I bis Regulation in relation to disputes under the insurance contract from reinsurance disputes (in the strict sense and the so-called retrocession). At the same time, reasons were given for excluding social security from this scope. Because in practice (and in theoretical approaches) there are discrepancies as to the scope of the subject application of the standards in relation to individual insurance activities, one of the objectives of this study is to indicate that such nterpretation possibility which such a gap will remove, because it is even be harmful to the certainty of turnover, if it would appear in relation to such fundamental concepts as jurisdiction in international insurance disputes and jurisdiction in domestic disputes. Consequently, basically based on an autonomous interpretation and in the alternative: lex fori the possibility of refusing to apply the standards of section 3 of EU Regulation No. 1215/2012 to disputes in the field of insurance guarantee. An appropriate analysis of national law was also carried out, indicating the need for coherence between EU and internal law standards in the area of qualifying disputes arising from the insurance guarantee.
2020-12-10
Czasopismo: Problemy Prawa Prywatnego Międzynarodowego
Język:
PL
| Data publikacji:
02-06-2022
|
Abstrakt
| s. 31-56
The EU Regulation 1215/2012, as well as the Polish civil procedural law regarding individual employment relationships are employee-interest oriented. The employee’s domicile is a specific form of privilege on the level of the national jurisdiction regulations establishing international competence of national courts. The domicile provides effective protection for the employee in case of a potential dispute with an employer, who initiates the proceedings. Unfortunately, neither the Regulation 1215/2012 nor the Polish civil procedural law provides for equivalent protection for a third state employee (an employee from outside the EU) compared to an employee domiciled in Poland. The paper argues that despite a one-sided regulation, suing a third state employee before a Polish court is in principle impermissible. When applying the objective criterion to determine whether there is a national jurisdiction to hear the case, the court should consider the need to protect the employee and his or her legitimate interests. The author posits that the employee’s interest constitutes a legal basis for assessing whether in the proceedings before a Polish court — as forum conveniens — it is possible to safeguard the rights of a weaker party of a particular legal relationship. If a choice of court agreement was concluded, suing a third state employee before a Polish court will not be possible. This is because the prorogation agreement is subject to Article 23 of the Regulation 1215/2012. This provision requires that for the prorogation of jurisdiction to be effective, the employee, as party to an agreement, must be domiciled in one of the Member States.
2022-06-02
Czasopismo: Problemy Prawa Prywatnego Międzynarodowego
Język:
PL
| Data publikacji:
30-06-2019
|
Abstrakt
| s. 109-139
The article is aimed at determining the relevance of the flag state (regarding vessels) and the country of registration (regarding aircrafts) principles for the purpose of the application of territorial connecting factors (the place of the event giving rise to damage (place of acting) and the place where the damage occurred (place of damage)) employed by article 7(2) of the Regulation No 1215/2012 (Brussels I bis Regulation) providing a special jurisdiction rule in matters relating to tort, delict or quasi-delict and by article 4(1) of the Regulation No 864/2007 (Rome II Regulation) specifying the law applicable to a non-contractual obligation arising out of a tort or delict. The flag state and the country of registration principles could be taken into account when circumstances constituting the event giving rise to damage or the damage itself are situated on board of a vessel navigating in or an aircraft flying through the areas outside the sovereignty of any state (in particular the High Seas). The reference to the flag state or the country of registration instead of the sovereignty in order to identify the member state whose courts have jurisdiction pursuant to article 7(2) of the Brussels I bis Regulation or the state whose law is applicable according to article 4(1) of the Rome II Regulation may also be possible in cases when the determination of the place where the event giving rise to damage occurred or where the damage occurred is difficult or even when the competent jurisdiction and the applicable law identified based on the sovereignty over the area where the vessel navigated or the aircraft flew at the moment when the event giving rise to damage occurred or damage occurred does not materialise the closest connection principle.
2019-06-30
Czasopismo: Problemy Prawa Prywatnego Międzynarodowego
Język:
PL
| Data publikacji:
10-11-2022
|
Abstrakt
| s. 5-59
The article pertains to the matter of jurisdiction and the law applicable to relations between parents and children in Polish-Ukrainian relations. In recent years, in particular since the beginning of Russia’s military aggression against Ukraine, large waves of Ukrainian immigrants have come to Poland. The structure of the migration, with the domination of women and children, oblige Polish courts and other authorities to deal with the issues of parental responsibility, contacts with children, custody and maintenance in the cross-border context. In this situation, the bilateral Agreement between the Republic of Poland and Ukraine on legal assistance and legal relations in civil and criminal matters, signed in Kiev on 24 May 1993, acquires a new significance. It contains both the procedural rules (on jurisdiction, international legal aid, service of documents, as well as the recognition and enforcement of judgments) and confl ict of law provisions in the field of broadly understood civil matters, including relations between parents and children. The author undertakes a critical analysis of the provisions of Polish-Ukrainian Agreement as with respect to filiation (children’s origin), parental responsibility and child maintenance. The anachronism of its solutions and the need for its termination is emphasized.
2022-11-10
Czasopismo: Problemy Prawa Prywatnego Międzynarodowego
Język:
EN
| Data publikacji:
29-06-2020
|
Abstrakt
| s. 91-105
The aim of the study is to discuss the impact of bilateral international treaties concluded by EU Member States with third countries on jurisdiction and recognition of judgments in matters of succession from Polish perspective. The author discusses the main problems in the interpretation of Article 75 of Regulation 650/2012 and the possible conflict of this solution with the Treaty on the Functioning of the EU. The article indicates also practical problems related to the collision of bilateral treaties and Regulation No 650/2012 regarding, for example, the possibility of concluding choice-of-court agreements, recognition of foreign judgments in matters of succession and the possibility of issuing the European Certificates of Succession.
2020-06-29
Czasopismo: Problemy Prawa Prywatnego Międzynarodowego
Język:
PL
| Data publikacji:
29-12-2022
|
Abstrakt
| s. 61-80
The subject of the study is the analysis of the conflict of law rules contained in Article 30 of the Agreement between the Republic of Poland and Ukraine on legal assistance and legal relations in civil and criminal matters, made in Kiev on May 24, 1993 (Journal of Laws of 1994, No. 96, item 465) determining the jurisdiction and applicable law for establishing, amending, terminating and canceling the adoption. Before proceeding with this analysis, some differences in the substantive and procedural/technical rules relating to adoption in Polish and Ukrainian law are pointed out. Furthermore, it is emphasized that under Article 30 of the Agreement the institution of renvoi plays no part. In the event of multiple Polish and Ukrainian citizenship, the decisive factor becomes the “effective” citizenship. Article 30, on the other hand, offers no solution for stateless persons. Next, the jurisdiction designated by Article 30 sec. 5 sentence 1 of the Agreement (dealing with matters of adoption, as well as the amendment, termination or annulment of the adoption) is analyzed. Subsequently, the author takes up the questions relating to determination of the law applicable to adoption by one person and the joint adoption by spouses. The author contends that the law applicable to the adoption is fixed and so it is not subject to changes. The article assumes that the effects of a full adoption “transform” — on the confl ict-of-laws level — into relations between parents and children, and the effects of a partial adoption are governed by the law applicable to the establishment of adoption. The article shows that the law applicable to its establishment of the adoption is applicable also to the amendment, termination and annulment of adoption. The author further submits that in theory the public policy clause may be used under the Polish-Ukrainian Agreement, but in practice this should not occur too often because there are no provisions of the Ukrainian adoption law, the application of which would result in consequences contrary to the fundamental principles of the Polish legal order.
2022-12-29
Czasopismo: Problemy Prawa Prywatnego Międzynarodowego
Język:
PL
| Data publikacji:
31-12-2019
|
Abstrakt
| s. 107-122
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.
2019-12-31
Czasopismo: Problemy Prawa Prywatnego Międzynarodowego
Język:
EN
| Data publikacji:
30-12-2024
|
Abstrakt
| s. 183-205
Unfortunately, Ukrainian children and their parents are faced with a lot of serious challenges to their rights and the situation as a result of Russian-Ukrainian war. Taking into account these challenges, the author focuses on the rules of two Hague Children’s Conventions: Convention of 25 October 1980 on the Civil Aspects of International Child Abduction and 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. One of the aims of the article is to compare court decisions, delivered in child abduction cases by Ukrainian courts and courts of the foreign states after February 24, 2022, in order to answer the question about the influence of issues of the security situation in Ukraine on the application of Article 13 (1) (b) of the 1980 Hague Convention. Attention is also paid to Article 21 of the 1980 Hague Convention and the institution of provisional measures of the 1996 Hague Convention that can be imposed in international child abduction cases, as alternative ways of (judicial) protection of the rights of parents-citizens of Ukraine who remained in Ukraine and lost contact with their children as a result of their removal abroad. The article also deals with specific issues of jurisdiction of the cases on determining the place of residence under the 1996 Hague Convention and peculiarities of the proceedings on establishing the fact of birth of a child on the temporarily occupied territories of Ukraine, over which Ukraine does not exercise effective control nowadays, particularly applying the rules of the Code of Civil Procedure of Ukraine and the Namibia exception. All of the abovementioned issues are analyzed, among others, on the basis of the Supreme Court Resolutions.
2024-12-30
Czasopismo: Problemy Prawa Prywatnego Międzynarodowego
Język:
PL
| Data publikacji:
29-12-2023
|
Abstrakt
| s. 139-182
The article discusses the judgment of the Court of Justice of the European Union (CJEU) in case C-342/19 VKI v. VW and the decision of the Polish Supreme Court of 12 May 2022, both connected with the infamous “dieselgate”. The cases concerned claims of the owners of Volkswagen cars equipped with the “defeat devices” that manipulated the emissions tests. The question decided by both courts was whether claimants may enforce their tort claims for damages against the manufacturer in the Member States where the cars where acquired. CJEU found that they do and the Polish Supreme Court followed suit. The article analyses both cases against the background of existing case law of the European Court under Article 7(2) of the Brussels I Regulation. According to the well-established case law of the Court, the place of harmful event is to be understood both as the place where the event leading to damage is located, as well as the place where the damage occurred. Regarding the place of damage, the author takes the view that it occurs not in the state where the car is acquired – as found by CJEU - but where it is registered and used. This in itself should not, however, suffice to establish the jurisdiction of the court at the place of damage. In each case (and not only when the damage is purely financial) the court must confirm under the individual circumstances of the case that this place is suitable as the forum for resolving the dispute. Among these circumstances the most important is that of the foreseeability for the defendant that because of his or her actions he or she can be sued at the given forum. This possibility to foresee should be established on the basis of defendant’s actions undertaken in the forum. In cases where a defective product is the source of liability (such as in VKI v. VW) these are in particular: marketing products in that state or directing advertising activities thereto. The paper also compares European solutions with those adopted in US. The author argues that the CJEU should more bold in looking into an American standard that requires “some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws” and thus protect the defendant from being sued in a place of damage that is loosely connected with the case.
2023-12-29
Czasopismo: Problemy Prawa Prywatnego Międzynarodowego
Język:
PL
| Data publikacji:
31-12-2019
|
Abstrakt
| s. 43-65
Since August 17, 2015 the courts of the Member States of the European Union apply the conflict-of-laws rules adopted in the EU Succession Regulation (EU) in succession matters. From the Polish point of view, this constitutes not only the change of the rules applied for the purposes of determining jurisdiction and the applicable law, but also a new approach to the overriding mandatory provisions.
Contrary to other European instruments of private international law, the Succession Regulation neither uses the term “overriding mandatory provisions”, nor defines its meaning. Nevertheless, in Article 30 the Regulation provides for application — irrespective of the law applicable to the succession under its conflict rules — of the special rules of the State, where certain immovable property, enterprises or other special categories of assets are located, and which — for economic, family or social considerations — impose restrictions concerning or affecting the succession in respect of those assets, in so far as, under the law of that State, they are applicable irrespective of the law applicable to the succession.
The interpretation of this provision cause difficulties. It is not clear whether the concept of the special provisions embodied in Article 30 refers to the concept of overriding mandatory rules, well known in the European private international law, or whether it constitutes an original solution. Another controversial issue discussed in the paper is the relevance of the mandatory rules of the forum or the third State other than those mentioned in Article 30.
2019-12-31
Czasopismo: Problemy Prawa Prywatnego Międzynarodowego
Język:
PL
| Data publikacji:
29-12-2020
|
Abstrakt
| s. 319-338
In cases C-512/17 and C-393/18 PPU, the national courts raised doubts as to the significance of the circumstances that should be taken into account in determining the habitual residence of a child. In particular the issue was whether the child’s physical presence is a prerequisite in order to recognize that a child has his habitual residence in the country concerned. In its judgment of 17 October 2018, the Court of Justice found that a child must be physically present in a Member State in order to be regarded as habitually resident in that Member State. The parent’s intention cannot be assigned a decisive role. The arguments in this respect are consistent with the interpretation of the concept of habitual residence laid out in the earlier judgment of 28 June 2018, in which the Court of Justice connected the habitual residence of the child with the place where the centre of that child’s life is actually situated, and not with the place where the child would have lived in accordance with the plans of one of the parents. The Court’s interpretation can be attributed to the so-called combined model of determining a habitual residence by looking for child’s centre of interest, taking into account a number of circumstances, including the intention of parents with parental responsibility. Physical presence has rightly been recognized as a necessary condition for establishing jurisdiction under Regulation No 2201/2003 based on habitual residence.
2020-12-29
Czasopismo: Problemy Prawa Prywatnego Międzynarodowego
Język:
PL
| Data publikacji:
31-12-2019
|
Abstrakt
| s. 5-25
The international child abduction is regulated in the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, in the Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (Brussels II bis), and in the domestic law — in the Code of Civil Procedure. In the recent years the Regulation Brussels II bis was subject to review. As a result drawbacks were indicated and amendments have been proposed, in particular with a view of simplifying the procedures. The changes were triggered by the increasing number of cases in which one of the parents removes the child without a consent from the other. The Ministry of Justice does not provide any data on the amount of cases taking place in Poland. It is nevertheless certain that this amount has increased in comparison to previous years. Moreover, it is acknowledged that contrary to the Hague Convention and the EU Regulation, many children abducted by their parents are retained in Poland. The amendments to the Code of Civil Procedure seem to address this situation and streamline the process of the return of the children. The question remains: do the proposed amendments to the EU Regulation and those already enacted in the Code of Civil Procedure warrant to a sufficient degree that the welfare of a child — being one of the determinants of these regulations — is safeguarded?
2019-12-31
Czasopismo: Problemy Prawa Prywatnego Międzynarodowego
Język:
PL
| Data publikacji:
14-12-2022
|
Abstrakt
| s. 133-161
The article is dedicated to the matters of succession in the Agreement of 1993 on Legal Aid concluded between Poland and Ukraine. The author touches upon a number of issues. First, he discusses the role of the “general compatibility clause” provided for in Article 97 of the 1993 Agreement. He concludes that the clause does not produce effects with regard to the Regulation (EU) No 650/2012. Under the “general compatibility clause”, in all situations where the 1993 Agreement does not provide for a rule being the equivalent of the rules laid down in the Hague Convention of 1961 determining the law applicable to the form of a testamentary disposition, in Poland, in relations between Poland and Ukraine, the law applicable to the form of a testament is to be determined pursuant to the provisions of the Hague Convention of 1961. Second, the author discusses the conflict-of-laws rules set out in the Agreement which designate, as the applicable law, either Polish or Ukrainian law. He contends that where the deceased is a Polish and Ukrainian national, in order to determine which of those nationalities have to be taken into account for the purposes of Article 37 (1) of the 1993 Agreement, the criterion of the most effective (more closely connected) nationality should be relied on. However, the situations that involve a deceased of Polish or Ukrainian nationality, who is also a third-State national, do not fall within the scope of the 1993 Agreement. The application of the 1993 Agreement is, on the other hand, not barred by the fact that an immovable property in a third State forms part of the estate. Jurisdiction and the law applicable to the succession of such immovable property must be determined, both in Poland and in Ukraine, pursuant to their general conflict-of-laws regulations on matters of succession. The author explains also that the drafters of the 1993 Agreement (in Articles 37 (1) and (2)) ruled out the principle of unity of succession in favour of the principle of scission, employing the connecting factors of nationality and of location of the immovable property. This results in numerous complications in the determination of the applicable law and in its application. However, the law applicable to succession determined on the basis of Article 37 (1) and (2) of the 1993 Agreement of 1993 governs the succession as a whole, with the exception of issues covered by other rules provided for in that agreement (for example, Article 39) and of the issues that do not fall within its scope of the 1993 Agreement. Although Article 39 (1) of the 1993 Agreement expressly mentions only consequences of defective consent, there is no doubt that the said rule also covers the legal requirements for effective declaration of consent. Third, the author addresses the function of Article 38 of the 1993 Agreement, which is a substantive law provision on the estate without a claimant. This provision enjoys priority over Article 33 of the Regulation No 650/2012. Article 38 solely determines the State (Poland or Ukraine) acquiring the estate without a claimant. The concerned State enjoys the competence to designate the entity that will become the subject of rights and obligations forming part of the estate without a claimant. Finally, the author comments on the pending case resulting from the preliminary question posed by the Opole District Court (Sąd Okręgowy, case no II Czz. 438/21). The Opole Court requested from the European Court a ruling on whether a Ukrainian national residing in Poland may, under Article 22 of the Regulation No 650/2012, choose Ukrainian law. The author suggests, that — although not without a doubt — it is tempting to answer this question in the affirmative. The argument here is that the freedom to choose the applicable law in matters of succession falls entirely outside the ambit of the 1993 Agreement and so the Agreement does not preclude the choice.
2022-12-14
Czasopismo: Problemy Prawa Prywatnego Międzynarodowego
Język:
PL
| Data publikacji:
10-12-2020
|
Abstrakt
| s. 138-158
Brexit is a unique phenomenon as no Member State has ever expressed the will to leave the European Union. Never before had the in-depth impact of a Member State withdrawal been analysed. The issue has started to be analysed after the referendum in which the British voted in favour of leaving the European Union. The topic of the potential consequences of Brexit in the field of private international law concerns, inter alia, national jurisdiction in civil and commercial matters, mutual recognition and enforcement of judgments, specific procedures of EU uniform law, judicial cooperation between Member States or the functioning of the e-Justice Portal and dynamic forms. Before a given Member State withdraws from the EU, interested parties should have been informed, inter alia, of how pending proceedings will be conducted starting with the withdrawal day, what about proceedings initiated at the date of withdrawal or later on, and what about the rulings of the courts of the applicant state covered by the exequatur procedure before the withdrawal. Therefore, the primary purpose of the article is to determine the framework for the future relationship between the EU and the UK in the field of private international law. An additional aim of this paper is to better prepare natural and legal persons for the new post-Brexit reality. European integration has brought Europe peace and prosperity and enabled unprecedented cooperation in all areas of common interest. Following the withdrawal decision, the state and its citizens cease to benefit from the acquis communautaire. In fact, the United Kingdom left the European Union on 31 January 2020. As far as private international law is concerned, the United Kingdom has become a third country. Subsequently, on 1 February 2020 a transition period has started and it aims to provide more time for citizens and businesses to adapt. The negotiations on the future partnership between the EU and the UK has started in March 2020, but they were postponed due to the coronavirus COVID-19 pandemic. The relationship between the United Kingdom and the European Union is sometimes compared to love that has passed away, but former lovers must continue to meet from time to time to manage certain common affaires. The analysis of the topic leads to the conclusion that, in fact, Brexit is a unique phenomenon that has no added value.
2020-12-10
Czasopismo: Problemy Prawa Prywatnego Międzynarodowego
Język:
EN
| Data publikacji:
29-06-2020
|
Abstrakt
| s. 71-89
The Regulations on Matrimonial Property (No 2016/1103) and on the Property Consequences of Registered Partnerships (No 2016/1104) are new important pieces in the “puzzle” of European private international law. This article particularly focuses on the relationship between the Matrimonial Property Regulations and the Succession Regulation, two instruments which will often be applied in parallel because of the close connection between the two areas they govern. The author examines in particular the scope of those instruments as well as their interaction with respect to jurisdiction and applicable law. At the same time, an attempt is also made to assess the position of Poland and of those other Member States that are bound by the Succession Regulation, but not by the Matrimonial Property Regulation.
2020-06-29
Czasopismo: Problemy Prawa Prywatnego Międzynarodowego
Język:
EN
| Data publikacji:
29-06-2020
|
Abstrakt
| s. 57-70
The article contains an overview of the rules relating to the scope of application of the EU private international law regulations. It addresses the treatment of the relevant preliminary questions, with special reference to the Succession Regulation. The issues are discussed in three steps. The first is connected with the way of interpreting the notions and concepts, such as marriage, adoption, legal capacity etc., where such matters as personal status, legal capacity or family relationship may come to the foreground as a preliminary question. The second is dealing with the law applicable to the preliminary question. The author compares pros and cons of the “independent reference” (lex fori) and the “dependent reference” (lex causae) solutions, considering the latter as less effective, producing more negative consequences. The third step embraces questions relating to the jurisdiction with respect to preliminary question.
2020-06-29
Czasopismo: Problemy Prawa Prywatnego Międzynarodowego
Język:
EN
| Data publikacji:
29-06-2020
|
Abstrakt
| s. 27-43
The article discusses the impact of the EU Succession Regulation on the German system of private international law. The change came with some important differences introduced in the text of the Regulation as in comparison to previous German solutions (especially the use of the habitual residence as the main connecting factor instead of nationality), and, as a result of the number of decisions of the CJEU on the Regulation (in particular the Kubicka case). The paper presents the most important, up-to-date German case-law relating to the EU Succession Regulation. It starts with the general remarks in that regard and continues to discuss judgments covering issues of jurisdiction, applicable law, and the European Certificate of Succession. Three conclusions are drawn therefrom. First, the cases show a general willingness of the courts to cope with the fundamental changes introduced by the Regulation. In particular, the concept of “habitual residence” is applied on the basis of an autonomous interpretation by reference to the case-law of the CJEU on Regulation Brussels IIa. Second, a number of decisions make apparent that the courts are sometimes slow to accept the consequences which flow from the changes brought about by the Regulation, and which oblige to re-consider the German practice in matters of international successions. That applies in particular to the issuing of the European Certificate of Succession. Third, German courts are generally ready to initiate cooperation with the CJEU by formulating preliminary questions (three questions posed by the end of 2019).
2020-06-29
Czasopismo: Problemy Prawa Prywatnego Międzynarodowego
Język:
EN
| Data publikacji:
29-06-2020
|
Abstrakt
| s. 15-25
The author advocates a flexible approach with respect to the interpretation of the term “Member State” as employed in the Succession Regulation, allowing the differentiation between “participating” and “non-participating” States. It does not mean that the term “Member State” should always be interpreted in a wide sense including the three non-participating States: Denmark, the Republic of Ireland, and the United Kingdom. Whether a wide or a narrow interpretation is appropriate depends on the context and the purpose of the single provision. Most provisions contained in the chapter on jurisdiction refer to participating Member States only. But some articles such as the Article 13 of the Regulation, provide a counter-example. A uniform interpretation of the concept of Member State in all provisions of the Succession Regulation seems far too sweeping. It reminds of Begriffsjurisprudenz and does not take account of the purpose of the single provisions. In particular, it disregards the need for the cross-border protection of individual rights in a Union with open frontiers.
2020-06-29
Czasopismo: Problemy Prawa Prywatnego Międzynarodowego
Język:
PL
| Data publikacji:
29-12-2021
|
Abstrakt
| s. 151-167
The Supreme Administrative Court has correctly adjudicated that without determining which inheritance law is applicable to the inheritance from the testator, the tax authority cannot categorically claim that an heir subject to inheritance and donation tax acquired the ownership of things or rights by inheritance at the time of the testator’s death. The ruling of the Supreme Administrative Court is also an opportunity to take a broader look at the provisions of the Act of the 28th of July 1983 on inheritance and donation tax which go beyond the issues covered by this jurisdiction. That act also raises other issues the resolution of which requires the application of conflict-of-law rules or, at the very least, of the methods of qualification specific to private international law. The position adopted by the Supreme Administrative Court in this verdict should contribute to the increase of the interest of tax authorities in conflict-of-law issues. Inheritance and donation tax is a public levy with which, due to the nature of the legal events covered by it, there are cases with the so-called „foreign element”. These are also of interest to the conflict-of-law rules. When considering them, as follows from the ruling of the Supreme Administrative Court, it is necessary to refer not only to our own (Polish) provisions of civil law, but also, by applying appropriate conflict-of-law rules, to the provisions of foreign civil law.
2021-12-29
Czasopismo: Problemy Prawa Prywatnego Międzynarodowego
Język:
EN
| Data publikacji:
29-06-2020
|
Abstrakt
| s. 7-8
The current volume of “Problemy Prawa Prywatnego Międzynarodowego” — the leading Polish periodical in the field of private international law — is primarily devoted to the Regulation No 650/2012 of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (“the Succession Regulation”).
2020-06-29
Czasopismo: Problemy Prawa Prywatnego Międzynarodowego
Język:
EN
| Data publikacji:
29-06-2020
|
Abstrakt
| s. 241-252
On 12 September 2019, the premises of the Faculty of Law and Administration of the University of Silesia in Katowice (Poland) witnessed one of such events, which will arguably go down in history of private international law in Poland. On that day, the University hosted an international conference on the Regulation (EU) No 650/2012 of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (“the Succession Regulation”), and on the various issues relating to the succession matters within the European area of freedom, security and justice.
2020-06-29
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English
Język Polski