H. Patrick Glenn (1940—2014). Wspomnienie

The law applicable under Articles 24 and 25 of the EU Regulation No 650/2012 determines what types of legal acts, that could contain dispositions of property upon death, are admissible. On the other hand, according to Article 23(2)(b) and (e) of the Regulation, it is the law applicable to the succession under Article 21 and 22 which determines what types of dispositions may be carried out by the successor. Consequently, the law applicable to succession decides about the admissibility of the legacy (bequest) per vindicationem. It determines also the legal effects of the legacy per vindicationem. The question arises, however, as to the potential role played by the law applicable to
the proprietary status of the assets (lex rei sitae, etc.). Here, one needs to take into account the type of the asset that is subject to the legacy per vindicationem. The transfer of the ownership of the asset which belonged to the deceased to the legatee per vindicationem is governed by the law applicable to the succession. The legacy per vindicationem does not lead to a creation of a new right in rem but only to a transition of the right from one person to another. This is evident from Article 23(2)(e) of the Regulation. The numerus clausus principle is not infringed. The law applicable to succession determines whether the legacy per vindicationem of a receivable (claim) is admissible and what should be the characteristics of such a receivable. The law applicable to the receivable in question, on the other hand, governs questions such as the existence and content of the receivable, who is entitled to it, and whether it is transferable inter vivos or upon death. The legacy per vindicationem will lead to creation of the limited right in rem if the law applicable to succession knows a given type of the subject matter of the legacy and the lex rei sitae recognizes the limited right in rem, which the successor wishes to establish. The importance of the instrument referred to as „adaptation” is underlined in para 16 of the Preamble to the Regulation. The effectiveness of the legacy per vindicationem of a business or a farm located in a state different from the state which law is applicable to succession, depends on whether the law of the state where a business or a farm is located treats them as separate estates and makes them transferable (just as the law applicable to succession does). The term „legal requirements for recording in a register of rights” used in Article 1(2)(l) should be given a narrow meaning. It does not encompass the substantive title of the acquisition of the right which is subject to recording in the register nor subjecting it to the law applicable to the given register. However, the role of the register (including the one played in the discussed context) is determined by the law applicable to the register (which is underlined also in para 19 of the Preamble). This law should be applied next to the law applicable to the succession. It can postpone the effects of the legacy per vindicationem but it cannot annul its effects.

The aim of this paper is to explore the issues arising out of so called “compulsory transfer of the registered office of the company”. The judgment of Polish Supreme Court dated 12 March, 2015 (I CSK 452/14) relates to the contemporary legal status of Polish company incorporated before the Second World War in Lemberg but still leaves many questions unanswered. The Author seeks to find the solution to the problem of the effects of a succession of States after the incorporation of the company with the use of different instruments of private international law. Observations based on the jurisprudence of American, German and French courts highlight the right to transfer the company, which has its registered office after the succession on the territory of the succesor state, to the state which law previously governed the creation of the company.

The article focuses on problems with the determination of foreign law. According to Polish regulations, the court is obliged to ascertain the content of the applicable law of its own motion. However, obstacles might be encountered in the process, which effectively hinder the procedure. The author discusses the question whether the provision of Art. 10 S. 2 of the 2011 Act on Private International Law is a functional solution, especially as regards the statutory criterium of “reasonable time”. Namely, the court’s efforts to determine the content of the law applicable should be undertaken within a time limit deemed as “reasonable”, given the facts of the case and the need to resolve it in an effective way. The court is obliged to undertake all available measures to ascertain the content of applicable law, having in mind that it cannot lead to a situation where the parties’ interests would be frustrated by the process taking too long. Should the court find that the determination of foreign law is not possible within reasonable time, according to Art. 10 s. 2 of the Act cited above it is obliged to apply Polish law as a last resort. In the article it is analyzed whether the present statutory regulation fulfills its role, as expected in the law‑making process. The author concludes that this provision is a flexible solution, allowing the court to assess the situation in a given case and reach a decision taking into account all the important issues. There is no need modify the law, especially by introducing a more detailed provision.

Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non‑contractualobligations (the Rome II Regulation) defines the conflict‑of‑law rules applicable to non‑contractual obligations in civil and commercial matters. It has been in force since 11 January 2009. Article 30 of the Regulation foresees an evaluation report on its application. The European Commission already asked the Polish Ministry of Justice for an input via a Questionnaire
issued in 2012 (see M. Pazdan, M. Jagielska, W. Kurowski, M. Świerczyński, M.‑A. Zachariasiewicz, M. Zachariasiewicz, Ł. Żarnowiec: Materials: The Response to Commission’s Questionnaire to the Member States Regarding the Application of the Regulation 864/2007 on the Law. „Problemy Prawa Prywatnego Międzynarodowego” 2013, vol. 12, p. 165—197). At that stage — it was not yet possible to present a developed picture of our courts’ approach to the Regulation as no extensive case‑law was available in Poland. With the new Questionnaire dated June 2015 the Commission‑Directorate
A: Civil Justice asked the Polish Ministry of Justice for new information and insights on the application of the Rome II Regulation in Poland that have been gathered in the meantime. Similarly to the original response to the Commission’s Questionnaire, this supplement was prepared jointly, by a group of authors under a lead of professor Maksymilian Pazdan. The supplement constituted the basis for the reply given to the Commission by the Polish Codification Committee on behalf of the Polish government. Since the preparation of the original response time has passed and experience has accrued. Accordingly, a number of issues concerning the application of the Regulation have surfaced. The new opinion brings additional information on Polish case law to the attention of the Commission. The authors are of the of the view that the reason why the Regulation has been finally noticed by Polish courts may be the reference to this act included in Art. 33 of Polish Private International Law. Jurisprudential analysis presented in this supplement indicates that Polish courts face many difficulties when applying the Rome II Regulation. These concern, among others, the scope of the Regulation itself, as well are of its particular provisions, the demarcation of the Regulation and the Hague Convention of 1971, the interpretation of the criterion of a„manifestly closer connection” and the criterion of a „close connection of a tort with an earlier contract”, the determination of the place of damage and admissibility of the application of Arts. 16 and 17 of the Rome II Regulation. Unfortunately there are cases when the Regulation was ignored by Polish courts. The authors of the supplement propose a number of possible amendments to the Regulation, including changes to conflict rules for traffic accidents, the protection of privacy and other personal rights, intellectual property, unfair competition and the protection of third party rights.

Glosa dotyczy wyroku SN ws. ustanowienia rozdzielności majątkowej małżonków mieszkających w Polsce i Francji. SN rozpatrzył jurysdykcję sądów polskich w oparciu o umowę polsko-francuską. Oddalono skargę kasacyjną męża domagającego się wcześniejszej daty rozdzielności w związku z tymczasowym orzeczeniem sądu francuskiego. SN uznał, że orzeczenie to nie było odpowiednikiem polskiej separacji prawnej i nie skutkowało automatyczną rozdzielnością majątkową.

According to the main theses arising out of the statement of reasons of the Supreme Court Judgement of 28th May, 2014, I CSK 330/13: 1. The separation of property as provided in art. 54 § 1 of Polish Family and Guardianship Code (PFGC) may result from a foreign court order, if this order corresponds to the judgment on legal separation as known in the Polish law. 2. The ordinance of the French court authorizing the spouses to live separately, issued as part of divorce proceedings cannot be qualified as the equivalent of the judgment on legal separation known to the Polish law. Both theses should be approved. However, the first one must be supplemented with the fact that the effect provided in art. 54 § 1 PFGC may only be attributed to a foreign judgement, when the law applicable to the patrimonial effects of marriage in the moment of such judgement is the Polish one. Furthermore, the above mentioned effect can occur as a consequence of a foreign judgment only if this judgment is recognised in Poland. In order to check whether the foreign judgment concerned in casu corresponds to the Polish judgment on legal separation, the terms equivalence evaluation must be carried out. In the case concerned, it was necessary to carry out such an evaluation with reference
to the French ordinance authorizing the spouses to live separately [“l’ordonnance de résidence séparée”]. In the absence of sufficient similarity between the analysed ordinance and the Polish judgment on legal separation, the provision of art. 54 § 1 PFGC cannot apply with regard to the former. Therefore, in spite of some objections to the reasoning of the Supreme Court, we should agree with the final settlement made in the case.