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Monday, October 27, 2014

Did Benelux trademark and design legislation become younger than the Brussels Regulation (and does that matter?)?

In 2005, the Benelux countries (Netherlands, Belgium, Luxembourg) did some long overdue house keeping. They merged their separate Trademark and Designs treaties into a single "Benelux Treaty for Industrial Property", BCIP (beware, while this suggests "all IP" is in, only the Trademark and design IP has been unified in the Benelux, and patents, copyright etc are not included) which thus became the legal basis for the Benelux Trademark and the Benelux Industrial Designs.

As is the case with new treaties on the same subject, much of the subject matter was copy-pasted from the previous treaties, which probably both saves negotiation time, and also allows the new treaty to benefit from the case law already available for the provisions. The merger may have an important (and certainly unintended) consequence: because the convention has been concluded after entry into force of the Brussels I regulation  (which governs which EU court has jurisdiction in international cases, Regulatation 44/2001: Council Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters) it may need to be classified as a "posterior" (later) treaty. Unlike similar instruments (Article 57 of the Brussels convention that preceded the Brussels Regulation) there is a difference  anterior (earlier) and posterior treaties. In cases of conflict between the Brussels I regulation and a posterior treaty, the Brussels I provisions prevail and in Article 71 only anterior conventions can be applied when governing specific subjects.

So the basic question is: should the same provisions (jurisdiction in Benelux IP), with respect to the same IP forms (Benelux Trademarks/Benelux Designs) in a different treaty be prevailing over the Brussels I regulation (as is the case with amended conventions), or should Brussels I be prevailing over them (as is the case with posterior treaties)?

The Court of Appeal of The Hague (Gerechtshof Den Haag) was sufficiently convinced that Brussels I prevailed, and decided that it was thus not necessary to request a preliminary ruling. In its December 2013 decision in H&M v. G-Star (ECLI:NL:GHDHA:2013:4466) regarding infringement of a Benelux trademark of jeans it based its jurisdiction on Article 5(3) of Brussels I as there was a (treat of) infringement in the Netherlands. In line with the Pinckney decision (ECLI:EU:C:2013:635), in infringement proceedings of IP rights, the value of the claim was to be determined there based on the infringement in the member state of the court concerned (and not in the rest of the EU). Without further argumentation, the court stated that as the Benelux Trademark is a unitary right in 3 countries, the "member state concerned" was to be understood as the three Benelux countries.

In April 2014, the the Court of First Instance of The Hague (Rechtbank Den Haag) ECLI:NL:RBDHA:2014:5078, based its jurisdiction-argument on the reasoning of the verdict of the Gerechtshof (prevalence of Brussels I) in PT Mitra Prodin (commercially acting as "JWARE" (Indonesia) v Vandenberg Special Products BV, in combination with (to the extent that Brussels I would be fully determine jurisdiction within the Benelux) BCIP. The case concerned the use of the word mark "Cones"; a Benelux and Community Trademark of Vandenberg, considered not valid according by JWare. JWare  used the term cones for its pre rolled cigarette paper. The judge didn't seem fully convinced as he indicated that using this reasoning also because it was not contested by JWare, and that it was no problem that the defendant had not reacted, as the decision to apply Brussels I resulted in a for him favourable judgement. The case moved to the location of the defendant (the Court of Rotterdam) as the court didn't consider to be relatively competent; both if relative competence would need to be based on the BCIP and on the Dutch Civil Procedure Law (note that Brussels I does only confer international competence, but not within a country).

The same reasoning (international competence for the Dutch court based on Brussels I, and no explicit decision on whether relative competence should be based on either Dutch Civil Procedure Law or BCIP) was followed by
*the The Hague court in BNP Paribas v Binckbank (ECLI:NL:RBDHA:2014:11184) regarding use of the word "Turbo".
* Brunel v Brunet (ECLI:NL:RBDHA:2014:7854, Article 2)
*"Het ijs van Columbus" case (ECLI:NL:RBDHA:2014:7508) (Article 2)
*Daamen v Vanguard (Python grade mark in safety shoes, ECLI:NL:RBDHA:2014:7104, which included both Article 2 and Article 6(1) jurisdiction)...
*Paperclip (stichting Paperclip v NCRV, ECLI:NL:RBDHA:2014:5261, Article 2). The court here stated it saw no reason to give the parties the possibility to comment whether Brussels I or BCIP would apply, as it would give the same result

Also in the Rummicub case (ECLI:NL:RBDHA:2014:9918) of the The Hague court, Brussels I was taken as a basis for NL-jurisdiction, in combination -to the extend needed to confer jurisdiction on the court- with 4.6 BCIP (the implicit question seemed to be: IF with Brussels I the judges of the (all?) Benelux have jurisdiction, BCIP may be needed to decide wether within that territory the Dutch judge has jurisdiction).

In August 2014, the Court of Rechtbank Den Haag ECLI:NL:RBDHA:2014:10760) in Bacardi v Seva based jurisdiction on Article 2 (jurisdiction of the state where the defendant is domiciled) of the Brussels I regulation (it would seem however that, as Bacardi is domiciled in non-member state Liechtenstein, not the Brussels I regulation, but the Lugano convention 2007 would apply. Article 67 of that treaty does however allow for specific conventions on specific matters to prevail; which in my assessment would have required the judge to basis its judgement on the Benelux Convention on Intellectual Property (BCIP)! Liechtenstein is not a party to Lugano, so that doesn't apply... Why does Brussels I apply? In H&M v Gstart the reasoning was followed that the international character of Benelux Trademarks made the case international and thus Brussels I would apply. However, article 4.6(1) of BCIP also gives jurisdiction to the court of the residence of the defendant, so there is no different effect here).

In Sojuzplodoimport v Spirits (ECLI:NL:RBDHA:2014:9739 (in a continuing saga of who became the rights holder to Vodka related IP rights in the wake of the collapse of the Soviet Union), the Court of First Instance of The Hague did not know how to determine its jurisdiction in relation to two related defendants and had options (while considering that article 22(4) of Brussels I rendered jurisdiction on the courts of the Benelux) determining jurisdiction within the Benelux:
*Brussels I, Article 6(1), for which there was not sufficient relation between the defendants, and jurisdiction should be denied
*BCIP, Article 4.6(5): which would lead to jurisdiction
*Rv109, the Dutch article, based on Article 6(1), but which -in the opinion of the judge- would allow for jurisdiction, as the court saw no reason to render the case law of the Brussels regulation fully applicable on the Dutch article.
The situation is complicated because of the interplay between absolute and relative and absolute competence and the possibility to use national law along Benelux/EU law in determining relative competence. The court therefore considered asking preliminary questions regarding jurisdiction to the  European Court of Justice (regarding Brussels I) and/or the Benelux Court of Justice (regarding BCIP). While we don't know how the case was resolved, but the court has made it clear last week that questions will not be asked in this matter...

The The Hague Court of First Instance may well have a second chance to ask preliminary questions, in Brite Strike ("Two police officers started Brite-Strike Technologies Inc. because they were simply not satisfied with what the "top makers" of tactical lights offered for the needs of police officers") Technologies Inc v Brite Strike Technologies SA (ECLI:NL:RBDHA:2014:13187). The matter concerns the use of a Benelux trademark with Brite Strike Technologies being domiciled in Luxembourg. Article 4.6(1) BCIP did render the Luxembourgian judge competent, while article 22(4) of the Brussels I regulation points to the judges of the Benelux (at least, that is one interpretation). The court therefore suggested the following questions (translation is from me):
I. Dient het BVIE (op de in het arrest van het gerechtshof Den Haag van 26 november 2013, overwegingen 28 - 34 genoemde gronden) te worden aangemerkt als een posterieur verdrag zodat artikel 4.6 BVIE niet kan worden aangemerkt als een bijzondere regeling in de zin van artikel 71 EEX-Vo?
Should BCIP (based on the reasoning in 28-34 in ECLI:NL:GHDHA:2013:4466) be considered a posterior treaty, so that Article 4.6 BCIP can not be regarded as a particular matter in the sense of Article 71 Brussels I?

Indien deze vraag bevestigend wordt beantwoord:
If this question is answered in the affirmative:II. Volgt uit artikel 22 lid 4 EEX-Vo dat zowel de Belgische, als de Nederlandse en de Luxemburgse rechter internationaal bevoegd zijn van het geschil kennis te nemen?
Does it follow from Article 22(4) Brussels I that both the Belgian, Dutch and Luxembourgian judge are internationally competent to hear the dispute?

III. Zo nee, hoe dient dan in een geval als het onderhavige te worden vastgesteld of de Belgische, dan wel de Nederlandse of de Luxemburgse rechter internationaal bevoegd is? Kan voor deze (nadere) vaststelling van de internationale bevoegdheid artikel 4.6 BVIE (wél) worden toegepast?
If not, how should in such a case be determined whether the Belgian, the Dutch or the Luxembourgian judge is internationally competent? Can in such a case Article 4.6 BCIP be applied?

IV. Voor zover met vaststelling van de internationale bevoegdheid niet tevens de relatieve bevoegdheid is vastgesteld, dient dan de relatieve bevoegdheid te worden bepaald aan de hand van het nationale (Belgische, Nederlandse respectievelijk Luxemburgse) recht of dient daarvoor artikel 4.6 BVIE (wél) te worden toegepast?
To the extent that in determining the international competence, the relative competence has not also been determined, should the relative competence be determined using national (Belgian, Dutch, Luxembourgian respectively) law or should article 4.6 BCIP be applied?
The parties have until 19 November to give there opinion regarding these questions and advice the judge whether to ask them to the Benelux Court of Justice (the preliminary reference system is very similar to the ECJ system) or to ECJ.  It seems to me that the first 3 questions (except for the last sentence of question III) should be addressed to ECJ and questions III and IV to BCJ. The court could however also decide to ask all questions to BCJ (its a Benelux trademark matter), which in turn is allowed (and as a highest court required) to ask prejudicial questions to ECJ (as determined back in 1997 in Dior v Evora ECLI:EU:C:1997:517; the court did so in 2002 in Melkunie v Benelux Trademark Office, ECLI:EU:C:2004:87) in order to answer (part of) its own questions.

It is hard to evaluate what the answers of ECJ and/or BCJ will be, but indeed, the questions posed seem indeed to be the relevant questions. If I had to give my best guess of the answers I'd say:
I: This is a clash between following the letter of Brussels I (rendering BCIP posterior) or the intent of the EU and Benelux legislator (rendering BCIP anterior). Most clarity will be given if the answer is in the negative: when Brussels I is to prevail, a regulation should be applied which was never written with the peculiarities of the Benelux territory in mind, which is bound to result in more questions. However, the ECJ is known to favour the literal interpretation of Brussels I for the sake of predictability, so I think the answer will be: YES
II: The second question is regarding Brussels I 22(4) and gives jurisdiction to the courts of the Member State in which the deposit or registration has been applied for (this can be: the Benelux, rendering all courts competent; or where the physical application took place: at the trademark office in The Hague, Netherlands, rendering always NL competent), has taken place (idem) or is under the terms of a Community instrument (not applicable?) or an international convention (BCIP) deemed (the convention explicitly excludes the location of registration as a determinant in jurisdiction, and would point to the Benelux courts in generalto have taken place. I would assume that because of the last part of the sentence, courts from all 3 countries are competent.
III: This may be the trickiest question... IF the Benelux is to be regarded a separate territory for the application of Brussels I, then the internal law of Benelux (BCIP?) should determine jurisdiction. However, if multiple courts have international jurisdiction (in this case NL, BE, LU) under Brussels
I, normally they all have jurisdiction, and the lis pendens doctrine will render the court first seized competent to hear the case. Again, I don't see much reason why ECJ would not take a literal meaning of 22(4), render all courts competent, and the location within Benelux dependent on the court first seized.
IV Here I am lost; this would much depend on how the questions I-II-III are answered...

One thing seems clear however: while the court was quite confident in 2013 regarding the relationship between Brussels I and BCIP, several questions remain with the Dutch judiciary, so let's hope a case will soon find its way to ECJ/BCJ in order to obtain the much wanted clarity. Does anyone know about how this is played out in Belgium and Luxembourg? Are they following a divergent approach or did the matter not come up? IF a divergent approach is followed there, it is also possible that the Dutch desire to ask ECJ questions is not because it doubts the interpretation of EU/BX law, but because it wants Belgium (and Luxembourg) to comply. But that's only wild speculation!

Sunday, September 28, 2014

Sex Trafficking Act also implements Hague Maintenance Convention

What just happened? Did the United States (after many false starts) this month set the decisive step which will lead to entry into force of the Hague Maintenance Convention for the US in 2017? It certainly seems that it did, by passing an act which title is only cursory linked to the convention: the Preventing Sex Trafficking and Strengthening Families Act.

UPDATE (30 October): And we have confirmation now that president Obama has signed the legislation!

Hague Maintenance Convention

But what am I talking about? The Hague Maintenance Convention is short hand for the Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance, a convention concluded within the framework of the Hague Conference on Private International Law. The convention thus handles receiving child support, alimony etc in international cases. The convention does not determine which law should govern child support: the latter is the subject of the Hague Maintenance Protocol, concluded on the same day in 2007. 

In the words of Article 1 of the Convention, the aim is: 
The object of the present Convention is to ensure the effective international recovery of child support and other forms of family maintenance, in particular by -
  1. establishing a comprehensive system of co-operation between the authorities of the Contracting States;
  2. making available applications for the establishment of maintenance decisions;
  3. providing for the recognition and enforcement of maintenance decisions; and
  4. requiring effective measures for the prompt enforcement of maintenance decisions.
Each country is to set up one or more Central Authorities which serves as the focal point for the convention in that country. They are to provide information regarding legislation, but also in individual cases to help e.g. identify the debtor  and facilitate (accelerated) payments. Decisions regarding maintenance should be accepted [although reservation can be made regarding some bases] in other convention states if jurisdiction is based on 1 of 6 bases, most of which are based the residence of the parent of the child.


The convention had a relatively slow start and requires both signature and ratification. The United States was the only country to immediately sign it in 2007, to be followed by Burkina Faso 2 years later. The ratification (after signature in 2010/2011) of Norway and Albania triggered entry into force of the convention on 1 January 2013; almost 6 years after its adoption. In 2013 the convention also entered into force for Bosnia and Herzegovina as well as Ukraine. The most significant event after entry into force took however place on 1 August: the European Union became a party. Because the EU has competence over all matters related to the convention [no, that does not mean maintenance issues have been harmonised over its member states, but that the regulations regarding international jurisdiction and enforcement have], the convention applies in all member states completely, and EU member states can not become parties themselves [except the UK, France and the Netherlands, on behalf of the territories outside the EU].... The only exception is Denmark and the EU ratification has not bearing there. 

US ratification

Family support is a state-competence, and since the nineties, a legal system is in place where every state has implemented (its own version of) the Uniform Interstate Family Support Act (UIFSA), which together gives a consistent system of recognition of family support decisions throughout the country. Under the system, also orders of "reciprocating countries" (countries outside the US, with which at state or federal level a system for recognition is already in place) are recognized. 
The Federal state has pushed for UIFSA to be implemented in all states by making federal level financial support for child support enforcement dependent on implementation of UIFSA by 1998. 

The United States have -both at federal and at state level- been strongly involved in the negotiation of the convention, and the result has been hailed in the US as convention that mimics the family support system in inter-state cases. The US was therefor the first to sign it in 2007 on the day of its adoption, and also the next steps went relatively smooth: the Uniform Law Commission (a forum of US states for uniformity in legislation in matters where states are competent) amended UIFSA in July 2008 to allow also "convention countries" (states where the 2007 convention applies) to have family support orders recognised and the Senate approved the Convention in September 2010. The Federal Office for Child Support Enforcement set out the steps that need to be taken afterwards: Congress must adopt implementing legislation and all states must adopt the amended UIFSA act. As with the original UIFSA version, the threat of losing federal funding will again form the incentive for all states to adopt the new UIFSA version....
In contrast to approval of the convention, approval of the implementing legislation proved to be quite a hurdle. There were in the past years during the last 3 congresses several bills, which never made it through congress:
  • S. 3848 ((SAVE Child Support) Act, in committee)
  • S. 1383 ((SAVE Child Support) Act, in committee)
  • S. 508 ((SAVE Child Support) Act, in committee)
  • H.R. 4282 (International Child Support Recovery Improvement Act of 2012, passed house)
  • H.R.1896 (International Child Support Recovery Improvement Act of 2013, passed House), 
  • S. 1870 (Supporting At-Risk Children Act, in committee
However, 2 weeks ago Senate passed an act which was only introduced last June:
  • H.R.4980 (Preventing Sex Trafficking and Strengthening Families Act, passed both houses)
In Title III of the bill (surprisingly if you look at the title), implementation of the convention is foreseen. I keep wondering why such a matter is placed in an act on sex trafficking, but the main point is that it has passed. The act gives states until the 1st quarter after its next legislative year to implement the act. This would mean 1 Jan 2017 if the act is signed into law before 1 October, and 1 April if it is signed after that... Although that means that it will take some time before the convention comes into effect in the US, it seems that now finally a deadline has been set. For many states that will mean that they have to place UIFSA on the agenda, because according to the Uniform Law Commission, only 12 (Florida, Georgia, Maine, Minnesota, Missouri, Nevada, New Mexico, North Dakota, Rhode Island, Tennessee, Utah, Wisconsin) have already enacted it (Washington has introduced the legislation in 2014, but not passed it yet).

The only question left is: will Obama sign the bill into law? In view of the long legislative history for the convention, not doing so might just delay things by another (half) decade...

Saturday, September 20, 2014

And 15 States sign Match Fixing Convention

Convention signatories (green), as well as other potential
signatories from COE (yellow) and other states (blue)
Just a short update, following the signature ceremony in Magglingen of the Council of Europe Convention on Manipulation of Sports Competitions. The convention was signed by 15: Armenia, Azerbaijan, Bulgaria, Denmark, Finland, Georgia, Germany, Greece, Lithuania, Montenegro, the Netherlands, Norway, Russia, Serbia and Switzerland and the status is now available here.

As described in my previous post besides the 47 Council of Europe members, also to the EU, and 11 other states, but the signatures are until now confined to the Council of Europe. Entry into force of the convention requires ratification by 5 states (3 of which should be COE states). That will not happen anymore in 2014 and also 2015 seems early. My guess is that the 5 ratification will be achieved in a about 2 years from now in Summer 2016....

Tuesday, September 16, 2014

Opening for signature: the COE Sports Betting Convention

It's not every day that a brand new multilateral convention opens for signature, but this Thursday all eyes will be on the Scottish referendum in the Swiss Magglingen (Macolin) the Council of Europe Convention on the Manipulation of Sports Competitions (explanatory report) will be signed. It goal is "to protect the integrity of sport and sports ethics in accordance with the principle of the autonomy of sport."

UPDATE: according to Daniel Holtgen (@CoESpokesperson), Director of Communications at the Council of Europe, tomorrow "some 12 states" will sign the convention tomorrow! It seems Russia and Bulgaria will be amongst them.   


The following points are addressed in the convention 
  1. Prevention, co-operation and other measures
  2. Exchange of information
  3. Substantive criminal law and co-operation with regard to enforcement
  4. Jurisdiction, criminal procedure and enforcement measures
  5. Sanctions and measures
  6. International co-operation in judicial and other matters
  7. Follow up
The first point is not "hard law", but mainly encourages states to take preventive measures, and to subsidise, encourage and assist sports organisations to do so. The Law enforcement part requires countries to render certain acts illegal. Exchange of information is envisioned through national platforms that every country should constitute. 

The criminal law (point 3) is not to be harmonised through the convention but criminal sanctions should be available for i) manipulation of sports contributions, ii) money laundering related this manipulation and iii) aide for these activities. Sanctions should furthermore be available for organisations. 

So who has jurisdiction over such activities? The rule is quite simple as jurisdiction lies with the location where the bet is placed AND with a person's nationality. The convention furthermore requires to render illegal any sports betting activity that is not legal in this jurisdiction. This means that a Swiss resident that places a sports bet over the internet (wether manipulated or not!) in Liechtenstein, this is only allowed if it is legal in ... Switzerland.

The follow up section (which institutes a follow up committee) shows that COE sees the convention only as a beginning for a more comprehensive and harmonised way of prosecution in the future.


Countries that may sign; COE countries (blue) and others (green)
The convention is open for signature for all 47 COE members, its 6 observers (Canada, Holy See, Israel, Japan, Mexico and the United States), the European Union, the 4 other states that were involved in the negotiations (Australia, Belarus, Morocco and New Zealand) and further members of the European Cultural Convention (at the moment only Kazakhstan). Besides those 59 members any other interested state may request to be invited to sign.

CJEU questions

In the enthusiasm of a signature ceremony, one country seems determined to spoil the party. Malta has problems with the jurisdiction regime in combination with the definition of "illegal betting". Its Lotteries and Gaming Authority has filed a request for an opinion from the Court of Justice of the European Union, asking "whether the envisaged Convention, and in particular the definition of “illegal sports betting” [sports betting not allowed according to the applicable law; the law where the bet was placed or of the nationality of the person], coupled with the betting provisions, Articles 9 [combat the manipulation of sports competitions  ensures regarding the betting regulatory authority or other responsible authority or authorities] and 11 [The fight against illegal sports betting] thereof, are compatible with the Treaties and in particular, with Articles 18 [no discrimination on nationality], 49 [right of establishment] and 56 [freedom to provide services] TFEU."
The main risk for non-compatibility in the EU was the jurisdiction linked to the nationality of the person. Therefore EU states are free to declare not to apply this jurisdiction rule and only link to the place where the bet was placed. The services concern seems to have more merit: if sports betting is legal in 1 EU country, it may be deemed illegal in another country and according to Malta, this goes against the freedom to provide services. Any ideas on the chances of Malta and its effect on the convention? I assume signature is still possible, but for ratification, EU states must wait until the CJEU has given its judgement, which will probably by the end of next year!

Hague Child Abduction Convention: CJEU to decide next month if the EU should decide which accessions to accept!

The Hague Child Abduction convention, or more officially the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction has generally nothing to do with abductions or kidnappings of children by strangers for the sake of money: they are mainly about a parent that takes a child to another country without the assent of the other custodial parent.

The core of the convention is the principle that legal fights regarding children (custody, child maintenance etc) should be fought at the home (formally the "habitual residence") of the child, and thus if a parent takes the child to another jurisdiction, the judge there should dismiss any claims for custody etc and order the speedy return of the child to its home. Exceptions are rare and mainly apply if a long period (1 year) has evolved before the convention is invoked; or in case of a so called article 13b defence: when there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

Central role for central authorities

Central authorities play an important role in the convention. Every state party [in fact, in states like the United States there are over 50: 1 for every state] is to designate one, which may help in locating the child, giving information about legal procedures, and assisting in return of the child. The designation of a central authority is however not a requirement for the entry into force of the convention.

Parties: ratification is not accession

Parties to the convention that ratified (light blue) or acceded (dark blue); via Wikimedia Commons
At the moment the convention has 93 parties, including all G-7 countries, all European Union states and its membership continues to grow. In 2014 the convention got 3 new parties: Japan, Iraq and [only last month] Zambia. As with many conventions states become a party through ratification (after signature) or through accession: accession is open to any state, while ratification is only open to those 27 states that were a member of the  Hague Conference of Private International Law in 1980 when the convention was concluded. Unlike most other conventions there is a big difference between accession and ratification. While the convention applies immediately between ratifiers, the convention applies only between an acceding country and those ratifying countries that explicitly accepted its accession. The convention is thus for example only applicable between ratifier Montenegro on one hand and the other ratifiers, and only 3 acceding countries; Slovenia, Ukraine and ... Andorra [the latter only out of sympathy with other small countries?]. Between two acceding countries the convention only applies if the country that acceded first accepts the accession of the newer state.

No role for the EU to play?

The European Union can not become a party to the convention, as back in 1980 no clauses were added to conventions for Regional Economic Integration Organizations (REIOs) to become a party. But within the EU much of the child abduction has been regulated within the Brussels II-bis regulation; and when the EU has legislated in an area within the EU it may also have exclusive [that is: at the exclusion of the Member States of the EU] competence to act on the matter in relations between the EU and other states [The Court of Justice of the European Union, CJEU, has decided so in decision ECLI:EU:C:2006:81 when determining that the EU had competence in concluding the Lugano convention (between the EU and Switzerland, Norway and Iceland). It argued that in questions of jurisdiction the smallest lacuna in those rules could give rise to the concurrent jurisdiction of several courts to resolve the same dispute, but also to a complete lack of judicial protection, since no court may have jurisdiction to decide such a dispute, which formed a major reason for declaring exclusive competence of the EU regarding the Lugano convention.]

European Council and member states disagree

The European Commission now considers that -in view of the Child abduction rules in Brussels II-bis- member states have lost their competence to accept the accession of new countries to the Child Abduction convention and drafted in 2011 8 [Russia, Albania, Andorra, Armenia, Gabon, Morocco, Seychelles and Singapore] Council Regulations on the declaration of acceptance the Member States, in the interest of the European Union of the Child Abduction Convention. In other words, the member states should accept the accession because the EU can't, after approval of the EU, and more or less on behalf of the EU. The Draft decision state that the moment of acceptance should be coordinated among the member states. While the European Parliament's rapporteur was positive especially as many EU citizens are of Andorran origin, the member states that need to approve the decision were critical. The UK government for example writes it attaches great importance to scrutiny of the acceding country's ability and willingness to operate the Convention effectively in cases where parents are seeking the return of their children from the country concerned and suggests such scrutiny has not taken place as the proposals do not appear to contain any element of evaluation of the ability of the States in question to operate the Convention successfully.

Questions to CJEU

In order to break the impasse, the European Commission decided in 2012 to ask CJEU if the EU had exclusive competence regarding the acceptance of accessions, stating that it had competence due to parallel legislation (Brussels II-bis). After a hearing last April, the court is now finally give its decision [well, its Opinion, but it carries so much weight that a Decision would be more appropriate], which will arrive on 14 October.

So what will the CJEU judges decide? If the question is boils down to: is acceptance a truly conflict of laws related decision in an area where the EU already has legislated, the answer seems clear: based on the Lugano opinion (see above) the EU has exclusive competence. But if the question can be phrased as: does it harm the EU conflict of law system if -say- Slovakia decides not to apply the convention to -say- the Seychelles, then the question may well be that the EU is not exclusively competent and subsidiarity requirements are not met.  I have no idea how this case will be determined, but if I had to guess... I think the CJEU will answer the question rephrased as in the first sentence and thus conclude the EU has exclusive competence... It remains in that case up to 28 member states to approve the draft Decisions and to coordinate the delivery of their acceptances at the same date at The Hague... We'll know in one month!