International Network of Law Firms

Based on European Union legislation an employee (worker) is entitled to paid annual leave. Nevertheless, the directive based on which the worker is entitled to such paid leave does not give a detailed explanation on the amount of remuneration that should be paid for those vacation days. There is case-law from the European Court of Justice, which clarifies the amount of remuneration that should be paid for the vacation days. Basically the European Court of Justice has ruled that annual leave remuneration must be maintained at the level the worker would have received if he would have been working.

Occasional of ancillary costs need not be taken into account in the calculation of payment of annual leave. All other remuneration which has an intrinsic link to the performance of work by the employee should be part of the remuneration during annual leave.

This means that compensation such as the allowances for irregular working times, structural commission payments, holiday allowance etc. should be taken into consideration when determining the financial value of vacation days. The same will apply to average bonus payments if there is an intrinsic link between this bonus payment and the performance of the task by the employee.

These rulings by the European Court of Justice have more recently received the interest of trade unions and individual employees in The Netherlands. This also led to several lower court rulings in which the value of a vacation day is clarified. Many employers in The Netherlands have apparently not adjusted the way of calculating the financial value of outstanding holidays, which is of course generally an issue when it comes to termination of the employment contract.

It is up to the national courts of the European member states to determine whether there is an intrinsic connection between certain part of the remuneration and the work performed.  In general, however it is important for the entrepreneurs to reconsider if they comply with those European Court of Justice rulings.

In case you have any further questions with regard to this topic, feel free to contact our attorneys at law at the different member states of our Proteus network.

In the preparation of the up-coming Bucharest Marathon, a press conference was held on 3 October, in which Dan Mihai - JMN Partner and Coordinator of the Sports & Anti-Doping Law practice, explained from a legal perspective the importance of governance in sport.

Sports competitions and sport in general mean organization and rigor. Transposing them into rules provides a degree of comfort to all those who are part of this phenomenon: organizers, sponsors, participants, spectators. In any competition organized under the aegis of an International Federation, all aspects are detailed and carefully checked to meet the standards required for these events. The requirements imposed by IAAF to obtain the "Bronze Label" are no exception. We have tried to adapt the Marathon Regulation to transpose both the IAAF requirements for organizing a "Bronze Label" certified event, as well as to trace certain aspects pointed-out by the participants in previous editions. 

The fact that the organizers of the Bucharest Marathon understood that governance in sport, an area that is still poor in Romania, is just as important as the corporate governance we are used to denotes that this event is a leader in professionalizing and imposing a model of organizing a sports competition addressed to elite athletes as well as to amateur and sports fans in general. 

This is one of the reasons why such an event should be supported, in the conditions in which Bucharest, due to infrastructure problems, lost in the last year the organization of two major sports events: the ATP tennis tournament in favour of Budapest and the European Gymnastics Championship in favour of Cluj.

Jinaru, Mihai & Noțingher

Law offices and Tax advisors

Bucharest, Romania

Jurisdiction, applicable law, recognition and enforcement of decisions in matters of successions are governed by Regulation (EU) n. 650/2012, as implemented by Regulation of execution (UE) n. 1329/2014, both effective from August 17th , 2015, which also create the European Certificate of Succession.

Regulation is applicable to successions opened or subsequent to August 17th, 2015[1]; UK, Ireland, Denmark are not bound by the Regulation and are not subject to its application[2].

Since Regulation n. 650/2012 deeply modify the principles regarding successions previously in force in most of the UE Member States, it is really important to fully understand how international successions are now governed.

First of all, the Regulation introduces the principle of coincidence between forum and ius: the authorities taking care of a succession (forum) do apply their own law (ius), so as to improve the efficiency of the judicial system.

In order to have forum and ius coincident, the Regulation rule  is the habitual residence, which usually corresponds to the place where the inheritance assets are mainly located[3]

As to jurisdiction

The Courts of the Member State of the habitual residence of the deceased at the time of death shall have jurisdiction to rule on the succession as a whole (article 4).

Where the law chosen by the deceased to govern his succession is the law of his nationality, and such a law is a law of a Member State, the deceased can also choose that the Courts of such a Member State shall have exclusive jurisdiction (article 5).

Where the habitual residence of the deceased at the time of death is not located in a Member State, the Courts of a Member State in which assets of the estate are located shall have jurisdiction insofar as (article 10):

a) the deceased had the nationality of that Member State at the time of death; or, failing that,

b) the previous habitual residence of the deceased was in that Member State.

As to applicable law

The applicable law to the whole succession shall be the law of the State of the habitual residence of the deceased at the time of death (article 21)[4]

Neverthless, a person may choose as governing law of his succession the law of the State of his nationality, at the time of the choice or at the time of death (article 22).

The law determined as above shall govern the succession as a whole, whether or not it is the law of a Member State  (so-called “universal application” – articles 20 and 23).

Agreements as to succession shall be admissible only if admissible, under the applicable law determined by the Regulation, to the succession of all persons involved (articles 25 and 26)[5].

The application of a provision of the law determined by the Regulation may be refused if manifestly incompatible with the public policy (ordre public) of the forum (article 35).

Where the deceased had chosen the law applicable to his succession prior to 17th August, 2015, that choice shall be valid if (article 83 n.2):

(a) it meets the conditions of the Regulation as to the applicable law, or

(b) it is valid in application of the rules which were in force, at the time the choice was made, in the State of habitual residence of the deceased or in the State of his nationality.

 

Same as above for dispositions of property upon death (i.e. a will) prior to 17th August, 2015 (article 83 n.3). If such dispositions were made in accordance with the law the deceased could have chosen under the Regulation, that law shall be deemed to have been chosen as the law applicable to the succession (article 83 n. 4).

As to recognition, enforceability and enforcement of decisions[6]

Decisions on succession matters given in a Member State shall be recognised in the other Member States without any special procedure being required (article 39).

A decision shall not be recognised if (a) it is manifestly contrary to the public policy (ordre public) of the Member State in which recognition is sought, (b) the defendant was not served in time with the application which instituted the proceedings, (c) it is irreconcilable with a decision given in proceedings between the same parties in the Member State in which recognition is sought (article 40)

As to the European Certificate of Succession

The Regulation creates a European Certificate of Succession to be used in all Member States; the use of such a Certificate, however, shall not be mandatory (article 62).

Heirs or other persons having direct rights in the succession can use the Certificate in another Member State in order to invoke  their status or to exercise their rights (article 63).

The Certificate shall be issued in the Member State whose Courts have jurisdiction pursuant to the Regulation (article 64) and shall be requested and  issued by using a specific form (articles 65 and 67)[7].

The Certificate shall produce its effects in all Member States, without any special procedure being required, and it shall constitute a valid document for the recording of succession real estate properties in the relevant registers of a Member State[8].

________________________________________________________________________________

Taking into account the above new rules on international successions, let’s go now to apply them to some practical cases in order to better understand how do they work.

SOME PRACTICAL CASES

A Dutch citizen with habitual residence in Italy dies, without leaving a will. He was married with two children and owned two immovables, one in The Netherland and the second one in Italy. The estimated value of the inheritance is under € 1.000.000,00.

  • Succession is governed by Italian law (law of the State of habitual residence of the deceased) and Italian Courts shall have jurisdiction to rule on the whole succession. 
  • According to Italian law, the wife and the 2 sons are privileged heirs (1/3 each) and have to file a statement of succession. No inheritance tax is payable because the inheritance value is under € 1.000.000,00.[9]
  •  In order to prove their status of heirs in The Netherlands  (also in order of the property of the Dutch immovable), the heirs can apply in Italy for the European Certificate of Succession.

 

A Spanish citizen with habitual residence in France dies, choosing by will Spanish law as governing law of his succession. He owned in Spain one immovable only.

  •  Succession is governed by Spanish law (national law of the deceased, chosed by will).
  •  Disputes amongst heirs, if any, shall be referred to French Courts (forum  of the State of habitual residence of the deceased in the lack of choice, by will, of the Spanish forum).
  • The heirs according to Spanish law must file in France (State of habitual residence of the deceased) a statement of succession, and pay the inheritance tax on all the inheritance assets (including the immovable in Spain, in the lack of relevant bilateral Conventions or international Treaties between France and Spain on the subject matter).
  • If the heirs have to pay the inheritance tax in Spain for the Spanish immovable, then such a tax might be deducted from the French inheritance tax, if payable (depending on the inheritance value).

 

A German citizen with habitual residence in Switzerland (i.e. not a member State of E.U.) dies, without leaving a will. He was divorced without sons and with two brothers. He owned 2 immovables, one in Italy and the second one in Germany.

  •  Succession is governed by Swiss law (law of the State of habitual residence of the deceased); German Courts shall have jurisdiction to rule on the whole succession (forum of the State where one immovable is located) or also Italian Courts if the previous habitual residence of the deceased was in Italy (forum of the State where the second immovable is located).
  •  The heirs according to Swiss law (if not manifestly incompatible with the public policy of the competent forum – i.e. Germany or Italy - for the whole succession) must file in Switzerland a statement of succession, as well as in Germany and in Italy for the immovables located therein.
  •  The two brothers of the deceased, if heirs according to Swiss law, have to pay in Germany and in Italy the inheritance tax calculated on the value of the two immovables located therein[10].

A UK citizen with habitual residence in Italy dies. He was married with three children, and a close friend of him was appointed by will as universal heir, without any choice of applicable law and jurisdiction. He owned 2 immovables, one in UK and the other one in Italy, and a bank deposit in Switzerland.

  •  The whole succession is governed by Italian law (law of the State of habitual residence of the deceased); Italian Courts shall have jurisdiction  to rule on the whole succession.
  •  The will, even if valid and enforceable under UK law, can be contested, however, under Italian law insofar as testamentary dispositions cannot be prejudicial to rights reserved to the privileged heirs (in the case at issue, under Italian law,  the wife and the children). The inheritance, therefore, should be allotted to the heirs determined by the applicable law[11].
  •  UK, however, is not bound by the Regulation application. To the deceased’s succession, therefore, UK will apply UK law, with the so-called principle of “scission”: lex rei sitae for immovables and law of the State where the deceased was resident upon his death for movable goods.

·         Consequently:

ü  The UK immovable shall be transferred to the deceased’s friend, appointed by will (if valid and enforceable pursuant to UK law and with application of the principle of the lex rei sitae);

ü  The Italian immovable shall be transferred according to Italian law (being the applicable law as lex rei sitae under UK law, and also applicable law under the Regulation, being Italy the last habitual residence of the deceased);

ü  The Swiss bank deposit shall be transferred to the heirs as determined by Italian law (as applicable law under UK law on movable goods, and under the Regulation being Italy the last habitual residence of the deceased).

________________________________________________________________________________

As you can see, international successions as governed now by Regulation (EU) n. 650/2012, effective from August 17th, 2015, are not really easy to deal with. But for your convenience, Regulation of execution n. 1329/2014 (2 pages only) can give you a hand, with its 5 Exhibits (53 pages !!!) to be used for the proper application of Regulation (EU) n. 650/2012……

Good luck!

Avv. Roberto Rossi

This email address is being protected from spambots. You need JavaScript enabled to view it.



[1] Article 83 n. 1 

[2] Regulation premises n. 82 and 83

[3] The concept of “habitual residence” is not determined by many domestic laws, such as Italy,   whose  civil code just determine the concepts of domicile and residence: “A person’s domicile  is in the place where the center of his business and interests is located,  a person’s residence is in the place where he/she usually lives” (article 43 civil code).

[4] Italy, as well as many other EU Member Countries,  did apply,  on the contrary, the national law of the deceased  at the time of death as law applicable to his succession (article 46 n.1 Law 218/1995).

[5] Agreements as to  succession are agreements where  one or more persons make arrangements of their succession, or of their possible rights further to a future succession, or of the waiver to the same rights.  Under Italian law such agreements are null and void (article 458 civil code)  

[6] Provisions  of Regulation n. 650/2012 as to recognition, enforceability and enforcement of decisions on succession matters are very similar to those of the well known  Regulation (EU) n. 44/2001 on jurisdiction, recognition and enforcement of decisions  in civil and commercial matters.

[7] Forms were introduced by Regulation of execution (UE) n. 1329/2014, effective from 17th August, 2015

[8] In Italy, for instance, with the “Conservatoria dei Registri Immobiliari”

[9]The spouse, descendants and ascendants, under Italian law, are exempted from Inheritance tax up to € 1.000.000,00 for each beneficiary.

[10]  According to Italian tax law, the brothers are exempted up € 100.000,00,  then must pay 6% on the rest.

[11]  I. e. Italian law,  as follows: for 1/4 to the deceased close friend (share available by will), for 1/4  to the wife and for 2/4 to the three  children (shares reserved to the privileged heirs).

 

The European Commission's Communication on Ten Years of Council Regulation 1/2003  identified numerous potential scopes for action to make the national competition authorities even more effective enforcers. The proposal for new rules by the Commission dated on 22 March, 2017 follows the public consultation on empowering national competition authorities to be more effective, which the Commission launched in November 2015. (To allow national specificities to be respected the proposal for new rules takes the form of a Directive.)

The Commission in the Executive Summary of the Impact Assessment dated on 22 March, 2017 which accompanies the Proposal for the Directive detailed above highlighted the role of the Member States' competition authorities in the protection of the well-functioning Single Market and protection of the interests of the European consumers and businesses.

The Executive Summary stated that  due to the malfunctions of the operation of law in each year losses of € 181- 320 billion accrue due to undiscovered cartels which typically increase prices by 17 to 30 %. The commission identified the following main problems causing the deficiency of the effective Member State law enforcement:

1.     lack of effective tools;

2.     lack of power to impose retentive fines;

3.     divergences in leniency programmes between Member States;

4.     lack of resources and independency.

The public consultation which closed on 12 February 2016 and in meetings with stakeholders confirmed that all categories of respondents (including companies and industry associations, law firms, consumer organisations and public authorities) agreed that actions should be taken to empower the Member States' competition authorities to be more effective enforcers.

According to the Press Release of the Commission on the proposed rules, the directive is intended to provide the national competition authorities with a ‘minimum common toolkit’ as follows:

1.     total independency and impartiality;

2.     proper financial and human resources;

3.     powers to gather all relevant evidence (such as the right to search mobile phones, laptops and tablets);

4.     adequate tools to impose proportionate and retentive sanctions;

5.     develop coordinated leniency programmes which encourage companies to come forward with evidence of illegal cartels.

The above detailed ‘minimum common toolkit’ also enables the authorities to take united actions against escaping fines through corporate re-structuring.

In our opinion a coordinated practice of national enforcement actions may also increase the legal certainty and stability providing predictable judgments however we indubitably agree with the statement of the Executive Summary according to which it is indispensable to ensure the due respect for fundamental rights.

The Hungarian Competition Authority, with the active participation of the Hungarian and international legal experts, is organising a Forum in June, 2017, whereby, amongst others, the above topic will be discussed in more detail.

The summary of the legislative initiatives above is not by any means exhaustive and has a purely informative nature. 

Riesz & Péteri - Attorneys at Laws

dr. Tamás Riesz / dr. Csaba Bíró

 

Budapest, 25 May, 2017

By Spyros ANTONELOS (This email address is being protected from spambots. You need JavaScript enabled to view it.)

Lawyer, Mediator MCIArb (2008), Trainer, SPYROS ANTONELOS LAW OFFICE (www.antoneloslaw.gr) and RESOLVE Mediators (www.resolve.gr) founding Partner, Athens SMEs Chamber Mediation Centre Director (www.diam-acsmi.gr), MEF University (Istanbul) ADR Instructor

In today’s quick-paced and uncertain business environment, in which, on the one hand, electronic transactions are happening with the simple click of a PC mouse and on the other hand, many E.U. countries’ national economies face slow economic growth, stagnation or financial crisis, proliferating commercial disputes, mediation is more needed than ever for both clients -physical persons or companies- and legal professionals.

Mediation can briefly be described as an extrajudicial private -civil or commercial- dispute resolution process, in which parties and their lawyers seek a settlement agreement with the even-handed assistance of a mediator, a specialist trained in psychology, negotiations and law (most often a legal professional with additional training and accreditation). This agreement in many countries is ipso jure or becomes, through a simple additional process, an enforceable act.

In order to keep the present article concise and accessible to readers who are unfamiliar with mediation and its different international models, I am compelled to indicate that it is based on the facilitative mediation model, which prevails in the E.U. and includes some generalizations in an effort to find a common denominator between European mediation processes provided by E.U. countries domestic mediation laws, which include more variatıons than alluded here.  It is also an important aspects list rather than an exhaustive how-to list, which would also often prove unfit for a dynamic mediation process, in which surprises and unexpected developments are almost certain to occur.

Mediation offers some advantages that make it particularly suitable for cases in which emotions are high, preserving relations (working, business or family) is important, sensitive information that needs to remain confidential is involved, a swift solution is needed or parties want to determine themselves the solution of their dispute in a manner adapted to their needs:

These are the flexibility and the speed of the process, confidentiality of the negotiations content and lower costs. Lower costs are mainly due to lower process-related expenses than the ones applicable in court proceedings and not to a loss in lawyers’ fees as it is wrongly assumed by some: various fiscal stamps, court bailiff delivery costs, legal interests etc. are avoided. Lawyers' fees are paid by clients in mediation as they pay them before courts. In most countries lawyers' presence in mediation is either mandatory by law or chosen by the parties, in order to receive legal advice during the mediation process, which has significant and binding results for them. The above financial advantages give lawyers who use mediation and regularly propose it to their clients a real opportunity to develop their clientele and to diversify their income sources.

Still, it is noteworthy that mediation being an assisted negotiation, requires both a specific mindset, different from the one required for participation in court proceedings, which are based on the adversarial model and a negotiation-oriented approach for both clients and lawyers. Taking this into account, lawyers’ preparation of clients, of strategy for negotiation and of themselves for mediation present some interesting particularities, which are examined below.

How Lawyers can explain to their clients and to the other party what mediation is and why to choose it

A lawyer’s role in informing the client for mediation is crucial. He/she not only has to explain this process to clients because they don’t have legal background and may not know of it but also has to compare it with other available dispute resolution options (court proceedings, arbitration, conciliation) and their characteristics as well as explain why it suits their specific case.

The lawyer, as a legal expert being familiar with all the above processes -and if not, becoming easily familiar with them through a varıety of more or less lengthy seminars or trainings available nowadays- is the best-suited specialist to provide this input.

Convincing a client to go to mediation may prove not as hard as it may seem on first consideration to a lawyer who has never attended a mediation: he/she can either invoke the numerous advantages of the process aforementioned or just convince the client to consult a mediator together, who shall provide ample information and address the client’s possible emotional tension when referring to the history and other aspects of his/her case.

The same applies to convincıng the other party and his/her Lawyer to participate to mediation; unless prohibited by domestic law, the mediator can contact them and deal in a neutral and empathetic manner with the potential questions and doubts, which may occur from their side. This is not an absolute rule, the way no other suggestion included in the present is absolute; still, a mediator’s communication with the other party and its lawyer in order to introduce mediation to them can be received with less suspicion and preconceived ideas than a call made by the lawyer of the party, which first decided to attempt mediation.

How Lawyers can establish a strategy for mediation with their clients

When both parties are convinced and a mediation agreement is concluded, each side -namely each Lawyer and client- need to prepare carefully together their negotiation strategy for the mediation process to come. Doing so together is needed because in a mediation they act together throughout the process.

It may prove quicker or easier to do it if the lawyer starts by asking the client what they want and help him/her find it, when the client doesn’t know it already. Then prioritization of objectives is required, to both prepare mentally and sentimentally the client for the mediation process, which is a negotiation, often involving give-and-take from both sides. This also allows to help him/her realize that some objectives may not be reached and choose, which the ones he/she prefers aiming at, are.

Then familiarizing the client with the nature of the process (i.e. it being facilitative), its participants and their role (i.e. lawyers, parties, the mediator and other advisors or experts agreed by the parties to be present), its steps (i.e. joint and private meetings, lunch break, other possible breaks) and its aim (a mutually acceptable settlement, which may become an enforceable act under legal conditions), with potential surprises (i.e. a party asking for a break or showing strong emotions) and with their management with the assistance of the mediator.

Identifying each party’s BATNA (best alternative to a negotiated agreement; namely the best that can happen after not settling in mediation) and WATNA (worst alternative to a negotiated agreement; namely the worst that can happen after not settling in mediation) are also crucial. Working on possible scenarios of offers and counter-offers from both sides often also proves important, in order to go to mediation with clear and organized ideas, planned strategies and knowledge of tangible options.

How Lawyers can prepare themselves for mediation

Apart from lawyer’s fees determination for mediation, which is definitely a topic to consider carefully prior to mediation and a sensitive issue each professional deals with quite subjectively, therefore I respectfully abstain from submitting thoughts on, it is undeniable that some other considerations require lawyers’ consideration before starting the mediation main step, namely the mediation day in which parties and lawyers meet and negotiate.

These may be: examining all factual and legal aspects of the dispute (i.e. deadlines involved, liability questions, relevant case-law) as well as the legal and procedural aspects of questions, which may occur during the negotiation (i.e. how long would it take to solve the same dispute in court if it did not settle, which is a quite common question to be answered at some point of the day, which are the legal considerations to have in mind when  offering a form of collateral to the other party, if enforceability of the settlement agreement is desired and necessary), which legal considerations are the most sensitive and could derail the negotiation process if mentioned too early and before rapport is built between the parties and the lawyers (i.e. a premature request of an admission of responsibility) as well as which could be the right timing for bringing them into the discussion. All the above are already well known to lawyers who are familiar with negotiations, i.e. contract ones. Perhaps, the following two aspects of preparation for lawyers may prove to be more of a challenge.

Mediation is about assisting one’s client to make choices and decisions. This requires the client to express his/her thoughts, feelings, needs and interests and to acknowledge them. Lawyers used to assuming the biggest part of choices and risks for his/her client’s case management themselves in their daily work, especially the ones of us who regularly litigate, may need to spend time preparing for a less active and vocal role so as to give space to their client’s expression. This in no-way means that they will be absent from the process; they shall actually need to often be silently alert and very present, in order to make timely interventions when appropriate for the benefit of the negotiatıons’ progress i.e. for clarifications or for giving a legal question, which occurred, an answer.

Preparation also applies to finding ways to convince the other party and its lawyer to reach a settlement with one’s client; a strong adversarial approach and attitude during the mediation negotiation phase may create an unproductive environment, a tension and a hostility, which may be excused or needed at times in court hearings, but could lead the other party to feel not trusted, even offended and either not to collaborate in reaching an agreement or leave the mediation table.

Last but not least, a lawyer with some life experience and self-awareness probably understands we humans all have biases and he/she is no exception to this. Preparing for mediation can also consist of assessing one’s own biases before the mediation so as not to let them hinder the process and do disservice to the client’s needs.

A well-prepared client and a well-prepared lawyer significantly increase their chances of reaching a satisfying result through mediation, despite the process’s potential surprises or challenges.

I thank you for your time and attention.

Spyros Antonelos,

April 28, 2017