Law Governing Rights of Personality Property Intl Family

Law Governing Rights of Personality, Property, Int’l Family Law (Part 1) Dr. Mateusz Pilich Chair of Int’l Private and Trade Law, University of Warsaw

Law Applicable to International Protection of Personality Rights

Introduction n A non-unified question of delictual/tortious nature, deliberately excluded from the scope of Rome II, see Article 1(2)(g): n n n … shall be excluded from the scope of this Regulation… non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation The right to be 'let alone' (Warren & Brandeis) National reply: Article 16(2) PILA n A natural person whose personal rights were threatened or infringed may claim protection under the law of the state where the event giving rise to a threat or infringement has occurred, or under the law of the state where the consequences of the infringement occurred.

Case Study – Int'l Protection Against Internet Personality Violations n A non-unified question of delictual/tortious nature, deliberately excluded from the scope of Rome II, see Article 1(2)(g): n An Austrian Web portal has published a report of the court case against a Polish radical right supporter convicted of a murder of a homosexual person. The convicted person habitually resident in England sues in Poland the Web administrator for giving up defamatory publications and moral damages (conf. Joined Cases C-509/09 e. Date and C-161/10 Martinez) n n According to the ECJ, the jurisdiction the option of bringing an action for liability, in respect of all the damage caused, either before the courts of the Member State in which the publisher of that content is established or before the courts of the Member State in which the centre of the aggravated person's interests is based. The aggravated person may also, in respect of the damage caused in a particular country, bring an action before the courts of the Member State in whose territory content placed online is or has been accessible (practically everywhere in the EU!)

Conclusions n Article 16(2) PILA vs jurisdiction: n n n n The national rule gives the limited choice to the aggravated party The law of the cause-the law of the effects Difficult to adjust to the scattered jurisdiction rules (they provoke, esp. in the latter case, to adjudicate under the court's own law) If Polish law has jurisdiction only in respect to the damage caused in this country, then the plaintiff may choose among Polish and Austrian law But assuming that the plaintiff lives in Poland (not in the UK) and sues in respect of the whole damage, then he would have had to choose either the law of the country in which the defendant is established or the laws of all the countries in which the effects of the damage are felt ('mosaic principle')! e. Date & Martinez increases the need for the uniform conflicts rules for the personality infringements in the EU Reasonable interpretation of Article 16(2) with regard to the place of consequences of the infringement (=a habitual residence of the aggravated party? )

Law Applicable to Ownership and Other Property Rights

Characterization Issues n n n Idea of the ownership (esp. tangible property right) and other rights in rem rooted in the ‘civil law’ culture of the Continental Europe Distinction based on the nature of a right being either relative (person vs person) or absolute (person vs thing) Absolute property rights are exclusive n n No-one allowed to possess or to use thing owned by someone, unless permitted by the owner Hard to predict in abstracto what is the ownership/property right, remarkable differences between private law rules of different States (e. g. the general right of retention) Importance of the problem – investments and collaterals Connecting factor is the law at the place where the object of the rights is situated (lex rei sitae)

Principle n n n LEX REI SITAE – Article 41 PIL, the local law of the place (country) of the actual situation of the property object No legal fiction Actual and (possibly) changeable place matters Renvoi problem – some countries keep the principle of the lex domicilii of the owner (law of his/her domicile – permanent residence) for the movables, remission not excluded by Article 5 PIL Acquiring/Loss of the title – lex rei sitae at the time of the triggering event (as, inter alia, the tradition of a thing, the assignment of the property right, etc. )

Examples n n Anton G. , living in Berlin, lost his Audi A 6 car. One day he gets to know that after having been stolen, the vehicle was bought by the person permanently resident in Poznan, who was unaware of his illegal possession due to the perfect forgery of the German car registration certificate. Anton G. wants to have his car back relying on Sec. 935 of the German Civil Code (BGB) limiting the acquisitive prescription of the thing stolen or otherwise unwillingly lost by the owner. The possibility of vindication, the period of time necessary in order to acquire the title by the possessor, etc. shall be subject to the law of the place where the car physically is (be it Poland or any other country). The Polish international road carrier Alfa Sp. z o. o. ( company limited) opens its branch in Germany in order to be immediately accessible to its foreign clients. It consecutively moves there a number of trucks which so far have been registered in Poland pledged with the registered charge (otherwise spoken, a ‘chattel mortgage’, in Polish: zastaw rejestrowy). German law does not know such an institution (the pledge requires the pledger to give away the pledged object to the pledgee). The registered charge is believed to persist but in a changed form – for instance, after the trucks passed the State border, the pledgee becomes their formal owner even though the pledger remains the possessor of the cars.

Exceptions to the Principle n n Ships, aircraft and railway vehicles – as they permanently cross the State borders, it is believed that they should be legally attached to a certain place – the law applicable to the property rights to such chattels is the law at the place of their registration (lex libri) or, in the absence of the registration, where they harbored, have their mother station, or any similar place – see Article 42 PIL Goods in transportation (res in transitu) – if the carrier passes the third country (which is not the country of the destination of the goods), or if he drives through the territory being subject to no State sovereignty, there must be another connecting factor than the physical location (practically speaking, it is either the law of the place of departure or of the destination, in Poland the former attitude prevails) – see Article 43 PIL

Property Rights to Securities and Intangible Objects n n Flexibility of Article 41(1) PIL (reference not to the „thing” but to the „object of the right” Intangible property (e. g. rights) has no real situation Sometimes the situation may be derived from the basic circumstances (e. g. the pledged mortgage placed in the country where the immovable is situated) More obvious – securities, see Article 44 n n n Contractual aspects – securities are based on the contract between the holder and the issuer Proprietary aspects – securities as documents held by the person whose title has to be proven in order to receive the performance/profits Scope of Article 44 – covers only proprietary aspects and only as regards the dematerialized securities entered into an account (other securities governed by the principle of the lex cartae sitae)

Intellectual Property Rights in the Private Int'l Law

Intellectual Property Rights (IPR) Basic Issues n n Rising importance of IPR in the modern economy Scope of the notion and the respective international law acts, see e. g. n n n Traditional model: approaching the property rights concerning tangibles, the absolute character (effects against third parties) Conventions focused on their substantive law aspects, not so much on the procedural and choice-of-law ones n n n Copyright (1886 Berne Convention for the Protection of Literary and Artistic Works, 1952 Geneva Universal Copyright Convention) Patents, trademarks, industrial patterns (1883 Paris Convention for the Protection of Industrial Property) Database right (the newest and having the poorest international legal regulation) IPR protected within the scope of the international economic cooperation conventions (TRIPS Agreement, WIPO) Mutual obligations among contracting states, the so-called assimilation principle Bundle of IPRs (a distinct IPR parallelly existing in each country) Article 14 bis of the Berne Convention as an expression of the territorialistic approach in the conflict of laws

Article 46 PILA n n Article 46. 1. The creation, content and termination of rights to intellectual property are governed by the law of the state, in which they are exercised. 2. Paragraph 1 also applies to the dispositions of the rights to intellectual property and to the determination of the priority of these rights. 3. The protection of the rights to intellectual property is subject to the law of the state under which the protection is sought. All these legal rules designate the same law applicable: n n Where the IPRs are exercised = Under which the protection is sought Example. A Polish composer sues in Poland a party who distributed a CD containing collected songs written by the former. The CD is sold in Poland, the Czech and Slovak Republic. The copyright is infringed in all these countries and their law applies respectively to the effects of the IPR violation.

The Interplay Between the Polish Law and Article 8 Rome II n n Article 8 Rome II. 1. The law applicable to a non-contractual obligation arising from an infringement of an intellectual property right shall be the law of the country for which protection is claimed. 2. In the case of a non-contractual obligation arising from an infringement of a unitary Community intellectual property right, the law applicable shall, for any question that is not governed by the relevant Community instrument, be the law of the country in which the act of infringement was committed. 3. The law applicable under this Article may not be derogated from by an agreement pursuant to Article 14. A complex relation: n n n A non-contractual obligation usually is one of the effects of the IPR infringement Article 8 RII covers many legal remedies left to the interested person (first and foremost, the action for damages, royalties, etc. ) Polish law gives the way to the European instrument, Article 46(3) PILA does not apply to cases where there is an 'obligation' between the entitled person and the other party

International Family Law

Polish Int’l Family Law and EU Law n n n The family matters - the sphere of competence of the sovereign States, see Article 9 of the Charter of Fundamental Rights of the EU (Exhibits) Impact of the EU law on the Member States' PIL legislation- International Family Law as the field of the shared competence (of the EU and its Members States) Conf. Article 81(3) TFEU (see Exhibits) – special legislative procedure and consent of all the States necessary for the adoption of the EU measure

Law Applicable to the Conclusion of the Marriage

Law Applicable to the Substance of Marriage n The scope of the law applicable pursuant to Article 48 PIL 2011 (the ability to conclude marriage): n n n the minimum age for marriage the consent of the third person or the State authority to the marriage the reasons fot which the marriage shall be null and void or becomes voidable (sometimes called the ‘matrimonial impediments’)

Documentary Evidence Aspects n n n Registration of natural persons' status n Public law matters, State organs involved n Polish Vital Records Offices (Urzędy Stanu Cywilnego, USC), all acts performed and documents issued by the Head of the Office (kierownik USC) or his deputy n Vital records may be (i) birth certificates, (ii) marriage licences, (iii) death certificates Legal character of the foreign vital records n Certificate of the vital record made up abroad remains the sole evidence of the events certified therein, even where it has not been transcribed to the Polish registry of vital records (Polish S. C. , III CZP 58/12) n Transcription of foreign documents to the Polish civil status registers ( ksiegi stanu cywilnego) Problem of the legal 'recognition' of marriages, filiation, etc. n n in practical terms, does not refer to the choice-of-law rules See ECJ ruling in C-336/94 Dafeki

Connecting Factors – The Substance Example n Polish national Anna J. was converted to Islam. In 2010 she met via Internet a man from the United Arab Emirates, whom she intends to marry. The fiancé had already been married. n Should Anna J. be allowed to enter into the union? Would it have any legal effects in Poland?

Case - Comments n n n Article 48 PIL 2011: connecting factor is the nationality of the person entering into marriage (if, however, the natural person is stateless or a refugee, his or her domicile or habitual residence shall decide) The marriage concluded between two given persons, the ability to marry may differ Polygamy n n n National authorities' approach n n n In many Near East (and in particular Arab) countries it is accepted and practised It is contrary to the Polish (and European) model of the marital union Inadmissibility of polygamy as the so-called ‘two-side impediment’- the union inadmissible with regard to both even if the opposite provided by the law of one party Public policy exception as the UAE national In practical tems, Polish authorities can make hardly anything to oppose to the planned marriage Effects: there is no ‘recognition of marriage’, which may be limping At the same time marriage is legally existing abroad and may have some legal effects in Poland

Law Applicable to the Form of Marriage n The scope of the law applicable pursuant to Article 49 PIL 2011: n n n n the requirement of public announcement of the intended marriage (the socalled „banns”) the obligation of the persons betrothed to be present at the certain place at the same time (or, similarly, the possibility to enter into the marriage in absentia) => the question of the empowerment to represent a person entering into marriage Person, organ or body competent to solemnize the marriage Participation of witnesses Way in which the parties’ declarations of entering into marriage have to be taken Registration of the marriage What is not the form, should be considered as the substance –> Article 48 PIL applies

Connecting Factors – The Form Example n Maria T. , a Greek national, met during her studies in Germany Georgios K. , an ethnic Greek who was born and lived in this country for his whole life and hence he has nationality of both Germany and Greece. The couple enters into the marriage before the orthodox priest in Hamburg. German law requires the marriage to be concluded basically in the secular form (before the registrar). Which law shall govern the formal validity of marriage according to Polish Private Int’l Law?

Case - Comments n n Lex loci matrimonii principle (law of the country where the ceremony of marriage takes place) comes first pursuant to Article 49(1) PIL 2011 Outside Poland (Article 49(2) PIL 2011), the subsidiary connecting factor of the paragraph 2 could be invoked n n n Parties have to possess the same nationality, domicile (ordinary residence), or habitual residence Should any of the parties have dual or multiple nationality, then the general rules of the PIL shall apply (see Article 2 PIL 2011) The woman is Greek (only) but the man is a dual national closely connected to Germany – yet we recognize him to be a Greek irrespective of the expatriation

Consular Marriages n Marriages entered into abroad between nationals of a country whose consul (consular officer) receives the marital vows n n The form of marriage is governed by the law of the State sending the consul n n E. g. two Swedish nationals in Warsaw before the Swedish consul; two French nationals in Kraków before the French consul, etc. The receiving state simply accepts the consul's competence as the part of his or her mission The marriage takes place in Poland but it is not registered by the registrar in whose district the consul was acting Marriage certificate issued by the sending State’s authority Validity prerequisites n n Law of the sending state recognizes such a form abroad (in Poland Article 1(6) of the Family and Guardianship Code) Law of the receiving state does not oppose it At least one –and usually two– of spouses has the nationality of the sending state No-one of spouses should be the national of a receiving state

Entering into Marriage in Poland n Any person intending to marry is obliged to provide n n n A foreigner intending to marry submits a document stating that he/she may conclude marriage in accordance with the applicable law , unless it is governed by Polish law (see Article 79 of the Vital Records Act 2014) n n n evidence of identity written statement of assurance that he or she is not aware of the existence of circumstances excluding the marriage; marriage permit, if required (e. g. the court permission issued at the request of the 16 -year-old women - not to confuse with the marriage license) foreign vital records, if not registered in Poland If obtaining such a document encounters obstacles that are difficult to overcome, the court in non-litigious proceedings at the request of a foreigner may release him or her from submitting it. In proceedings for the exempting the foreigner from submitting the document, the court determines according to the applicable law whether a person may enter into marriage Form – marriage may be either civil or religious (which does not alter its effects and character of marriage)

Subsequent Validation of Marriages n n n Case before German Tribunal of the Empire - Reichsgericht (RG), 16 May 1931, RGZ 132, 416 In 1918, a man of the Austrian nationality belonging to the Roman Catholic Church had married a Russian Jew. According to the Austrian law of the time, interreligious couples could not enter into a valid union (impedimentum disparitatis cultus). A couple left for the city of Trieste and both acquired the Italian nationality. Finally, the spouses moved to Germany, where the divorce application was lodged by the husband Is the wedlock null and void ab initio according to the husband's personal law at the time of the marriage conclusion, or should it preserve its validity according to both spouses' new personal law?

Concept n n n Matrimonium claudicans ('limping marriage') – legal divergences regarding the prerequisites of marriage make the couple union existing in one country and void -or voidable- in the other one Subsequent validation – a new legal system applicable to the effects of marriage allows the court to preserve its validity, whereas the normally applicable law does not Arguments for the subsequent validation n Favor of the interested persons Stability with regard to family relations Against such a view n n Lack of legal basis (see the Decree of 3 Feb. 1947 on the recognition of validity of certain marriages and divorces of Polish citizens) Limited applicability of such a doctrine (only the last spouses' common law of nationality or domicile taken into consideration)

Divorce and marriage nullity recognition n n Marriage license sometimes requires courts and/or registars to examine incidental questions (e. g. of whether the previous marriage still exists) Recognition of foreign decrees concerning marriage n n Between EU Member States – see Brussels IIbis Regulation (No. 2201/2003) – Article 21 ff (foreign divorce and annulment recognized ex lege) Divorce/ Legal separation as between Poland several non-EU countries (e. g. Australia, China, Egypt) – see the 1970 Hague Convention on the recognition of divorces and Legal Separations (binding since 24/06/1996) Under the lex fori processualis Recognition of foreign private divorces (repudiation) n n Lack of legal basis (see the Decree of 3 Feb. 1947 on the recognition of validity of certain marriages and divorces of Polish citizens) Limited applicability of such a doctrine (only the last spouses' common law of nationality or domicile taken into consideration)

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