Law Governing Rights of Law Governing Rights of Personality, Property, Personality, Property,

Int’l Family Law (Part 1)Int’l Family Law (Part 1)

Dr. Mateusz PilichDr. Mateusz PilichChair of Int’l Private and Trade Law,Chair of Int’l Private and Trade Law,

University of WarsawUniversity of Warsaw

Law ApplicableLaw Applicableto International Protectionto International Protection

of Personality Rightsof Personality Rights

IntroductionIntroduction

A non-unified question of delictual/tortious nature, deliberately A non-unified question of delictual/tortious nature, deliberately excluded from the scope of Rome II, see Article 1(2)(g):excluded from the scope of Rome II, see Article 1(2)(g): … … shall be excluded from the scope of this Regulation… non-shall be excluded from the scope of this Regulation… non-

contractual obligations arising out of contractual obligations arising out of violations of privacyviolations of privacy and and rights relating to personalityrights relating to personality, including , including defamationdefamation

The right to be 'let alone' (Warren & Brandeis)The right to be 'let alone' (Warren & Brandeis) National reply: Article 16(2) PILANational reply: Article 16(2) PILA

A natural person whose personal rights were threatened or A natural person whose personal rights were threatened or infringed may claim protection under the law of the state infringed may claim protection under the law of the state where the event giving rise to a threat or infringement where the event giving rise to a threat or infringement has occurredhas occurred, or under the law of the state , or under the law of the state where the where the consequences of the infringement occurredconsequences of the infringement occurred..

Case Study – Int'l ProtectionCase Study – Int'l ProtectionAgainst Internet Personality Against Internet Personality

ViolationsViolations A non-unified question of delictual/tortious nature, deliberately excluded A non-unified question of delictual/tortious nature, deliberately excluded

from the scope of Rome II, see Article 1(2)(g):from the scope of Rome II, see Article 1(2)(g): An Austrian Web portal has published a report of the court case against 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 a Polish radical right supporter convicted of a murder of a homosexual person. The convicted person habitually resident person. The convicted person habitually resident in Englandin England sues sues in in PolandPoland the Web administrator for giving up defamatory publications the Web administrator for giving up defamatory publications and moral damages and moral damages ((conf. conf. Joined Cases C-509/09 eDate and C-161/10 Joined Cases C-509/09 eDate and C-161/10 MartineMartinezz))

According to the ECJ, the jurisdiction According to the ECJ, the jurisdiction the option of bringing an action for the option of bringing an action for liability, in respect of liability, in respect of all the damageall the damage caused, either before the courts of the caused, either before the courts of the Member State in which Member State in which the publisher of that content is establishedthe publisher of that content is established or before the courts of the or before the courts of the Member State in which the centre of Member State in which the centre of the the aggravated person'saggravated person's interests is based interests is based..

The aggravated person may also, in respect of the The aggravated person may also, in respect of the damage caused damage caused in a particular countryin a particular country, bring an action before the courts of the , bring an action before the courts of the Member State Member State in in whose whose territory content placed online is territory content placed online is or has been accessibleor has been accessible (practically everywhere in the EU!)(practically everywhere in the EU!)

ConclusionsConclusions

Article 16(2) PILA vs jurisdiction:Article 16(2) PILA vs jurisdiction: The national rule gives the limited choice to the aggravated partyThe national rule gives the limited choice to the aggravated party The law of the cause-the law of the effectsThe law of the cause-the law of the effects Difficult to adjust to the scattered jurisdiction rules (they provoke, esp. in Difficult to adjust to the scattered jurisdiction rules (they provoke, esp. in

the latter case, to adjudicate under the court's own law)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 If Polish law has jurisdiction only in respect to the damage caused in this

country, then the plaintiff may choose among Polish and Austrian lawcountry, 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 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 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 lawlaw of the country in which the defendant is established or the laws of all s of all the countries in which the effects of the damage are felt ('the countries in which the effects of the damage are felt ('mosaic mosaic principle'principle')!)!

eDate & Martinez increases the need for the uniform conflicts rules for eDate & Martinez increases the need for the uniform conflicts rules for the personality infringements in the EUthe personality infringements in the EU

Reasonable interpretation of Article 16(2) with regard to Reasonable interpretation of Article 16(2) with regard to the the place of place of consequences of the infringementconsequences of the infringement (=a habitual residence of the (=a habitual residence of the aggravated party?)aggravated party?)

Law ApplicableLaw Applicableto Ownershipto Ownership

and Other Property Rightsand Other Property Rights

Characterization IssuesCharacterization Issues

Idea of the ownership (esp. tangible property right) and other Idea of the ownership (esp. tangible property right) and other rights rights in remin rem rooted in the ‘civil law’ culture of the Continental rooted in the ‘civil law’ culture of the Continental EuropeEurope

Distinction based on the nature of a right being either Distinction based on the nature of a right being either relativerelative (person vs person) or (person vs person) or absoluteabsolute (person vs thing) (person vs thing)

Absolute property rights are Absolute property rights are exclusiveexclusive No-one allowed to possess or to use the thing owned by someone, No-one allowed to possess or to use the thing owned by someone,

unless permitted by the ownerunless permitted by the owner Hard to predict Hard to predict in abstractoin abstracto what is the ownership/property right, what is the ownership/property right,

remarkable differences between private law rules of different remarkable differences between private law rules of different States (e.g. the general right of retention)States (e.g. the general right of retention)

Importance of the problem – investments and collateralsImportance of the problem – investments and collaterals Connecting factor is the law at the place where the Connecting factor is the law at the place where the object of the object of the

rights is situatedrights is situated ( (lex rei sitaelex rei sitae))

PrinciplePrinciple

LEX REI SITAE – Article 41 PIL, the local law of the place LEX REI SITAE – Article 41 PIL, the local law of the place (country) of the (country) of the actual situation of the property objectactual situation of the property object

No legal fictionNo legal fiction Actual and (possibly) changeable place mattersActual and (possibly) changeable place matters Renvoi Renvoi problem – some countries keep the principle of the problem – some countries keep the principle of the lex lex

domicilii domicilii of the owner (law of his/her domicile – permanent of the owner (law of his/her domicile – permanent residence) for the movables, remission not excluded by Article residence) for the movables, remission not excluded by Article 5 PIL5 PIL

Acquiring/Loss of the title – lex rei sitae at the time of the Acquiring/Loss of the title – lex rei sitae at the time of the triggering event (as, triggering event (as, inter alia, inter alia, the tradition of a thing, the the tradition of a thing, the assignment of the property right, etc.)assignment of the property right, etc.)

ExamplesExamples

Anton G., living in Berlin, lost his Audi A6 car. One day he gets to know that after having Anton G., living in Berlin, lost his Audi A6 car. One day he gets to know that after having been stolen, the vehicle was bought by the person permanently resident in Poznan, who 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 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 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 German Civil Code (BGB) limiting the acquisitive prescription of the thing stolen or otherwise unwillingly lost by the owner. otherwise unwillingly lost by the owner. The possibility of vindication, the period of time 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 necessary in order to acquire the title by the possessor, etc. shall be subject to the law of of the place where the car physically is the place where the car physically is (be it Poland or any other country).(be it Poland or any other country).

The Polish international road carrier Alfa Sp. z o.o. (The Polish international road carrier Alfa Sp. z o.o. (company limitedcompany limited) opens its branch in ) opens its branch in Germany in order to be immediately accessible to its foreign clients. It consecutively 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 and moves there a number of trucks which so far have been registered in Poland and pledged with the registered charge (otherwise spoken, a ‘chattel mortgage’, in Polish: pledged with the registered charge (otherwise spoken, a ‘chattel mortgage’, in Polish: zastaw rejestrowyzastaw rejestrowy). German law does not know such an institution (the pledge requires ). German law does not know such an institution (the pledge requires the pledger to give away the pledged object to the pledgee). the pledger to give away the pledged object to the pledgee). The registered charge is The registered charge is believed to persist but in a changed form – for instance, after the trucks passed the 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 State border, the pledgee becomes their formal owner even though the pledger remains the possessor of the cars.the possessor of the cars.

Exceptions to the PrincipleExceptions to the Principle

Ships, aircraft and railway vehicles Ships, aircraft and railway vehicles – as they permanently – as they permanently cross the State borders, it is believed that they should be legally cross the State borders, it is believed that they should be legally attached to a certain place – the law applicable to the property attached to a certain place – the law applicable to the property rights to such chattels is the law at the rights to such chattels is the law at the place of their place of their registrationregistration ( (lex librilex libri) or, in the absence of the registration, ) or, in the absence of the registration, where they harbored, have their mother station, or any similar where they harbored, have their mother station, or any similar place – place – see Article 42 PILsee Article 42 PIL

Goods in transportation (Goods in transportation (res in transitures in transitu) ) – if the carrier – if the carrier passes the third country (which is not the country of the passes the third country (which is not the country of the destination of the goods), or if he drives through the territory destination of the goods), or if he drives through the territory being subject to no State sovereignty, there must be another being subject to no State sovereignty, there must be another connecting factor than the physical location (practically speaking, connecting factor than the physical location (practically speaking, it is either the law of the place of it is either the law of the place of departuredeparture or of the or of the destinationdestination, , in Poland the former attitude prevails) – in Poland the former attitude prevails) – see Article 43 PILsee Article 43 PIL

Property Rights to Securities and Property Rights to Securities and Intangible ObjectsIntangible Objects

Flexibility of Article 41(1) PIL (reference not to the „thing” but to Flexibility of Article 41(1) PIL (reference not to the „thing” but to the „object of the right”the „object of the right”

Intangible property (e.g. rights) has no real situationIntangible property (e.g. rights) has no real situation Sometimes the situation may be derived from the basic Sometimes the situation may be derived from the basic

circumstances (e.g. the pledged mortgage placed in the country circumstances (e.g. the pledged mortgage placed in the country where the immovable is situated)where the immovable is situated)

More obvious – securities, see Article 44More obvious – securities, see Article 44 Contractual aspects – securities are based on the contract between the holder Contractual aspects – securities are based on the contract between the holder

and the issuerand the issuer Proprietary aspects – securities as documents held by the person whose title Proprietary aspects – securities as documents held by the person whose title

has to be proven in order to receive the performance/profitshas to be proven in order to receive the performance/profits

Scope of Article 44 – covers only proprietary aspects and only as Scope of Article 44 – covers only proprietary aspects and only as regards the dematerialized securities entered into an account regards the dematerialized securities entered into an account (other securities governed by the principle of the (other securities governed by the principle of the lex cartae sitaelex cartae sitae))

Intellectual Property Intellectual Property RightsRights

in the Private Int'l Lawin the Private Int'l Law

Intellectual Property Rights (IPR)Intellectual Property Rights (IPR)Basic IssuesBasic Issues

Rising importance of IPR in the modern economyRising importance of IPR in the modern economy Scope of the notion and the respective international law acts, see e.g.Scope of the notion and the respective international law acts, see e.g.

Copyright Copyright (1886 Berne Convention for the Protection of Literary and (1886 Berne Convention for the Protection of Literary and Artistic Works, 1952 Geneva Universal Copyright Convention)Artistic Works, 1952 Geneva Universal Copyright Convention)

Patents, trademarks, industrial patterns Patents, trademarks, industrial patterns (1883 Paris Convention for (1883 Paris Convention for the Protection of Industrial Property)the Protection of Industrial Property)

Database right Database right (the newest and having the poorest international legal (the newest and having the poorest international legal regulation)regulation)

IPR protected within the scope of the international economic cooperation IPR protected within the scope of the international economic cooperation conventions (TRIPS Agreement, WIPO)conventions (TRIPS Agreement, WIPO)

Traditional model: approaching the property rights concerning Traditional model: approaching the property rights concerning tangibles, the absolute character (effects against third parties)tangibles, the absolute character (effects against third parties)

Conventions focused on their substantive law aspects, not so much on Conventions focused on their substantive law aspects, not so much on the procedural and choice-of-law onesthe procedural and choice-of-law ones

Mutual obligations among contracting states, the so-called assimilation Mutual obligations among contracting states, the so-called assimilation principleprinciple

Bundle of IPRs (a distinct IPR parallelly existing in each country)Bundle of IPRs (a distinct IPR parallelly existing in each country) Article 14bis of the Berne Convention as an expression of the as an expression of the

territorialistic approach territorialistic approach in the conflict of lawsin the conflict of laws

Article 46 PILAArticle 46 PILA

Article 46. 1. The creation, content and termination of rights to Article 46. 1. The creation, content and termination of rights to intellectual property are governed by the law of the state, intellectual property are governed by the law of the state, in in which they are exercisedwhich they are exercised..

2. Paragraph 1 also applies to the dispositions of the rights to 2. Paragraph 1 also applies to the dispositions of the rights to intellectual property and to the determination of the priority of intellectual property and to the determination of the priority of these rights.these rights.

3. The protection of the rights to intellectual property is subject 3. The protection of the rights to intellectual property is subject to the law of the state to the law of the state under which the protection is soughtunder which the protection is sought..

All these legal rules designate the same law applicable:All these legal rules designate the same law applicable: Where the IPRs are exercised = Under which the protection is Where the IPRs are exercised = Under which the protection is

soughtsought Example.Example. A Polish composer sues in Poland a party who A Polish composer sues in Poland a party who

distributed a CD containing collected songs written by the distributed a CD containing collected songs written by the former. The CD is sold in Poland, the Czech and Slovak former. The CD is sold in Poland, the Czech and Slovak Republic. Republic. The copyright is infringed in all these countries and The copyright is infringed in all these countries and their law applies respectively to the effects of the IPR violation.their law applies respectively to the effects of the IPR violation.

The Interplay Between the The Interplay Between the Polish Law and Article 8 Rome Polish Law and Article 8 Rome

IIII Article Article 8 Rome II8 Rome II. . 1. The law applicable to a non-contractual 1. The law applicable to a non-contractual

obligation arising from an infringement of an intellectual property obligation arising from an infringement of an intellectual property right shall be the law of the country for which protection is claimed.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 2. In the case of a non-contractual obligation arising from an infringement of a unitary Community intellectual property right, the infringement of a unitary Community intellectual property right, the law applicable shall, for any question that is not governed by the law applicable shall, for any question that is not governed by the relevant Community instrument, be the law of the country in which relevant Community instrument, be the law of the country in which the act of infringement was committed.the act of infringement was committed.

3. The law applicable under this Article may not be derogated from 3. The law applicable under this Article may not be derogated from by an agreement pursuant to Article 14.by an agreement pursuant to Article 14.

A complex relation:A complex relation: A non-contractual obligation usually is one of the effects of the IPR A non-contractual obligation usually is one of the effects of the IPR

infringementinfringement Article 8 RII covers many legal remedies left to the interested person Article 8 RII covers many legal remedies left to the interested person

(first and foremost, the action for damages, royalties, etc.)(first and foremost, the action for damages, royalties, etc.) Polish law gives the way to the European instrument, Article 46(3) PILA 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 does not apply to cases where there is an 'obligation' between the entitled person and the other partyentitled person and the other party

International Family LawInternational Family Law

Polish Int’l Family LawPolish Int’l Family Lawand EU Lawand EU Law

The family matters - the sphere of competence of The family matters - the sphere of competence of the sovereign States, see Article 9 of the Charter the sovereign States, see Article 9 of the Charter of Fundamental Rights of the EU of Fundamental Rights of the EU (Exhibits)(Exhibits)

Impact of the EU law on the Member States' PIL Impact of the EU law on the Member States' PIL legislation- legislation- International International Family LawFamily Law as the field as the field of the shared competence (of the EU and its of the shared competence (of the EU and its Members States)Members States)

Conf. Article 81(3) TFEU Conf. Article 81(3) TFEU (see Exhibits) (see Exhibits) – special – special legislative procedure and consent of all the legislative procedure and consent of all the States necessary for the adoption of the EU States necessary for the adoption of the EU measuremeasure

Law ApplicableLaw Applicableto the Conclusionto the Conclusionof the Marriageof the Marriage

Law ApplicableLaw Applicableto the Substance of Marriageto the Substance of Marriage

The scope of the law applicable pursuant The scope of the law applicable pursuant to to Article 48 PIL 2011Article 48 PIL 2011 (t (the ability to he ability to conclude marriageconclude marriage):): the minimum age for marriagethe minimum age for marriage the consent of the third person or the State the consent of the third person or the State

authority to the marriageauthority to the marriage the reasons fot which the marriage shall be the reasons fot which the marriage shall be

null and void or becomes voidable (sometimes null and void or becomes voidable (sometimes called the ‘matrimonial impediments’)called the ‘matrimonial impediments’)

Documentary Evidence Documentary Evidence AspectsAspects

Registration of natural persons' statusRegistration of natural persons' status Public law matters, State organs involvedPublic law matters, State organs involved Polish Vital Records Offices (Polish Vital Records Offices (Urzędy Stanu CywilnegoUrzędy Stanu Cywilnego, USC, USC), all ), all

acts performed acts performed and documents issued by the Head of the Office and documents issued by the Head of the Office ((kierownik USCkierownik USC) or his deputy) or his deputy

Vital records may be (i) birth certificates, (ii) marriage licences,Vital records may be (i) birth certificates, (ii) marriage licences,(iii) death certificates(iii) death certificates

Legal character of the foreign Legal character of the foreign vital recordsvital records Certificate of the vital record made up abroad Certificate of the vital record made up abroad remainremains the s the sole sole

evidence of the events evidence of the events certified therein, certified therein, even even where it has not where it has not been been transcribed to the Polish registry of vital recordstranscribed to the Polish registry of vital records (Polish S.C., (Polish S.C., III CZP 58/12)III CZP 58/12)

Transcription of foreign documents to the Polish civil status Transcription of foreign documents to the Polish civil status registers (registers (ksiegi stanu cywilnegoksiegi stanu cywilnego))

Problem of the legal 'recognition' of marriages, filiation, etc.Problem of the legal 'recognition' of marriages, filiation, etc. in practical terms, does not refer to the choice-of-law rulesin practical terms, does not refer to the choice-of-law rules See See ECJ ruling in C-336/94 DafekiECJ ruling in C-336/94 Dafeki

Connecting FactorsConnecting Factors– The Substance– The Substance

ExampleExample

Polish national Anna J. was converted to Islam. Polish national Anna J. was converted to Islam.

In 2010 she met via Internet a man from the In 2010 she met via Internet a man from the

United Arab Emirates, whom she intends to United Arab Emirates, whom she intends to

marry. The fiancé had already been married.marry. The fiancé had already been married.

Should Anna J. be allowed to enter into the union? Should Anna J. be allowed to enter into the union?

Would it have any legal effects in Poland?Would it have any legal effects in Poland?

Case - CommentsCase - Comments

Article 48 PIL 2011: Article 48 PIL 2011: connecting factor is connecting factor is the the nationalitynationality of the person of the person entering into marriage (if, however, the natural person is stateless or a entering into marriage (if, however, the natural person is stateless or a refugee, his or her domicile or habitual residence shall decide)refugee, his or her domicile or habitual residence shall decide)

The marriage concluded The marriage concluded betweenbetween two given persons, the ability to marry two given persons, the ability to marry may differmay differ

PolygamyPolygamy In many Near East (and in particular Arab) countries it is accepted and practisedIn many Near East (and in particular Arab) countries it is accepted and practised It is It is contrarycontrary to the Polish (and European) model of the marital union to the Polish (and European) model of the marital union

National authorities' approachNational authorities' approach Inadmissibility of polygamy as the so-called ‘two-side impediment’- the 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 inadmissible with regard to both even if the opposite provided by the law of one partyparty

Public policy exception as the UAE nationalPublic policy exception as the UAE national In practical tems, Polish authorities can make hardly anything to oppose to In practical tems, Polish authorities can make hardly anything to oppose to

the planned marriagethe planned marriage Effects:Effects: there is there is no ‘recognition of marriage’no ‘recognition of marriage’, which may be limping, which may be limping At the same time marriage is legally existing abroad and may have some At the same time marriage is legally existing abroad and may have some

legal effects in Polandlegal effects in Poland

Law ApplicableLaw Applicableto the Form of Marriageto the Form of Marriage

The scope of the law applicable pursuant to The scope of the law applicable pursuant to Article 49 PIL Article 49 PIL 20112011:: the requirement of public announcement of the intended marriage the requirement of public announcement of the intended marriage

(the so-called (the so-called „banns”„banns”)) the obligation of the persons betrothed to be present at the the obligation of the persons betrothed to be present at the

certain place at the same time (or, similarly, the possibility to certain place at the same time (or, similarly, the possibility to enter into the marriage enter into the marriage in absentiain absentia) => the question of the ) => the question of the empowerment to represent a person entering into marriageempowerment to represent a person entering into marriage

Person, organ or body competent to solemnize the marriagePerson, organ or body competent to solemnize the marriage Participation of witnessesParticipation of witnesses Way in which the parties’ declarations of entering into marriage Way in which the parties’ declarations of entering into marriage

have to be takenhave to be taken Registration of the marriageRegistration of the marriage

What is not the form, should be considered as What is not the form, should be considered as the substancethe substance–> Article 48 PIL applies –> Article 48 PIL applies

Connecting Factors – The Connecting Factors – The FormForm

ExampleExample

Maria T., a Greek national, met during her studies in Maria T., a Greek national, met during her studies in

Germany Georgios K., an ethnic Greek who was born and Germany Georgios K., an ethnic Greek who was born and

lived in this country for his whole life and hence he has lived in this country for his whole life and hence he has

nationality of both Germany and Greece. The couple nationality of both Germany and Greece. The couple

enters into the marriage before the orthodox priest in enters into the marriage before the orthodox priest in

Hamburg. German law requires the marriage to be Hamburg. German law requires the marriage to be

concluded basically in the secular form (before the concluded basically in the secular form (before the

registrar). Which law shall govern the formal validity of registrar). Which law shall govern the formal validity of

marriage according to Polish Private Int’l Law?marriage according to Polish Private Int’l Law?

Case - CommentsCase - Comments

Lex loci matrimoniiLex loci matrimonii principleprinciple (law of the country where the (law of the country where the ceremony of marriage takes place) comes first pursuant to ceremony of marriage takes place) comes first pursuant to Article 49(1) PIL 2011Article 49(1) PIL 2011

Outside Poland Outside Poland (Article 49(2) PIL 2011), the subsidiary (Article 49(2) PIL 2011), the subsidiary connecting factor of the paragraph 2 could be invokedconnecting factor of the paragraph 2 could be invoked

Parties have to possess the same nationality, domicile (ordinary Parties have to possess the same nationality, domicile (ordinary residence), or habitual residenceresidence), or habitual residence

Should any of the parties have dual or multiple nationality, then the Should any of the parties have dual or multiple nationality, then the general rules of the PIL shall apply (see Article 2 PIL 2011)general rules of the PIL shall apply (see Article 2 PIL 2011)

The woman is Greek (only) but the man is a dual national The woman is Greek (only) but the man is a dual national closely connected to Germany – yet we recognize him to be closely connected to Germany – yet we recognize him to be a Greek irrespective of the expatriationa Greek irrespective of the expatriation

Consular MarriagesConsular Marriages

Marriages entered into abroad between nationals of a country Marriages entered into abroad between nationals of a country whose consul (consular officer) receives the marital vowswhose consul (consular officer) receives the marital vows

E.g. two Swedish nationals in Warsaw before the Swedish consul; two E.g. two Swedish nationals in Warsaw before the Swedish consul; two French nationals in Kraków before the French consul, etc.French nationals in Kraków before the French consul, etc.

The form of marriage is governed by The form of marriage is governed by the law of the State the law of the State sending the consulsending the consul

The receiving state simply accepts the consul's competence as the part The receiving state simply accepts the consul's competence as the part of his or her missionof his or her mission

The marriage takes place in Poland but The marriage takes place in Poland but it is not registeredit is not registered by the by the registrar in whose district the consul was actingregistrar in whose district the consul was acting

Marriage certificate issued by the sending State’s authorityMarriage certificate issued by the sending State’s authority Validity prerequisitesValidity prerequisites

Law of the sending state recognizes such a form abroad (in Poland Law of the sending state recognizes such a form abroad (in Poland Article 1(6) of the Family and Guardianship Code)Article 1(6) of the Family and Guardianship Code)

Law of the receiving state does not oppose itLaw of the receiving state does not oppose it At least one –and usually two– of spouses has the nationality of the At least one –and usually two– of spouses has the nationality of the

sending statesending state No-one of spouses should be the national of a receiving stateNo-one of spouses should be the national of a receiving state

Entering into Marriage in Entering into Marriage in PolandPoland

Any person intending to marry is obliged toAny person intending to marry is obliged to provide provide evidence of identity evidence of identity written written statement of statement of assurance that he or she is not aware of the assurance that he or she is not aware of the

existence of circumstances excluding the marriage;existence of circumstances excluding the marriage; marriage marriage permitpermit, if required , if required (e.g. the court permission issued at the (e.g. the court permission issued at the

request of the 16-year-old women - not to confuse with the marriage request of the 16-year-old women - not to confuse with the marriage license)license)

foreign vital records, if not registered in Polandforeign vital records, if not registered in Poland A A foreigner intending to marry foreigner intending to marry submitsubmitss a document stating that a document stating that

he/shehe/she may conclude marriage in accordance with the applicable may conclude marriage in accordance with the applicable lawlaw, unless it is governed by Polish law (see Article 79 of the Vital , unless it is governed by Polish law (see Article 79 of the Vital Records Act 2014)Records Act 2014)

If obtaining such a document encounters obstacles that are difficult to If obtaining such a document encounters obstacles that are difficult to overcome, the court in non-litigious proceedings at the request of a overcome, the court in non-litigious proceedings at the request of a foreigner may release him or her from submitting it.foreigner may release him or her from submitting it.

In proceedings for the exempting the foreigner from submitting the In proceedings for the exempting the foreigner from submitting the document, the court determines according to the applicable law document, the court determines according to the applicable law whether a person may enter into marriagewhether a person may enter into marriage

Form – marriage may be either civil or religious (which does Form – marriage may be either civil or religious (which does not alter its effects and character of marriage)not alter its effects and character of marriage)

Subsequent Validation of Subsequent Validation of MarriagesMarriages

Case before German Tribunal of the Empire - Case before German Tribunal of the Empire - Reichsgericht Reichsgericht (RG),(RG),16 May 1931, RGZ 132, 41616 May 1931, RGZ 132, 416

In 1918, a man of the In 1918, a man of the Austrian nationalityAustrian nationality belonging to the Roman belonging to the Roman Catholic Church had married a Catholic Church had married a RussianRussian Jew. According to the Austrian Jew. According to the Austrian law of the time, law of the time, interreligiousinterreligious couples could not enter into a valid union couples could not enter into a valid union (impedimentum disparitatis cultus). A couple left for the city of Trieste (impedimentum disparitatis cultus). A couple left for the city of Trieste and both and both acquired the Italian nationalityacquired the Italian nationality. Finally, the spouses moved . Finally, the spouses moved to to GermanyGermany, where the , where the divorce applicationdivorce application was lodged by the husband was lodged by the husband

Is the wedlock null and void Is the wedlock null and void ab initioab initio according to the husband's according to the husband's personal law at the time of the marriage conclusion, or should it personal law at the time of the marriage conclusion, or should it preserve its validity according to both spouses' new personal law?preserve its validity according to both spouses' new personal law?

ConceptConcept

Matrimonium claudicans Matrimonium claudicans ('limping marriage') – legal divergences ('limping marriage') – legal divergences regarding the prerequisites of marriage make the couple union regarding the prerequisites of marriage make the couple union existing in one country and void -or voidable- in the other oneexisting in one country and void -or voidable- in the other one

Subsequent validation Subsequent validation – a new legal system applicable to the – a new legal system applicable to the effects of marriage allows the court to preserve its validity, effects of marriage allows the court to preserve its validity, whereas the normally applicable law does notwhereas the normally applicable law does not

Arguments for the subsequent validationArguments for the subsequent validation Favor of the interested personsFavor of the interested persons Stability with regard to family relationsStability with regard to family relations

Against such a viewAgainst such a view Lack of legal basis (see the Decree of 3 Feb. 1947 on the recognition of Lack of legal basis (see the Decree of 3 Feb. 1947 on the recognition of

validity of certain marriages and divorces of Polish citizens)validity of certain marriages and divorces of Polish citizens) Limited applicability of such a doctrine (only the last spouses' common Limited applicability of such a doctrine (only the last spouses' common

law of nationality or domicile taken into consideration)law of nationality or domicile taken into consideration)

Divorce and marriage nullity Divorce and marriage nullity recognitionrecognition

Marriage license sometimes requires courts and/or registars to Marriage license sometimes requires courts and/or registars to examine examine incidental questions incidental questions (e.g. of whether the previous (e.g. of whether the previous marriage still exists)marriage still exists)

Recognition of foreign decrees concerning marriageRecognition of foreign decrees concerning marriage Between EU Member States – see Brussels IIbis Regulation (No. 2201/2003) Between EU Member States – see Brussels IIbis Regulation (No. 2201/2003)

– Article 21 ff (foreign divorce and annulment recognized – Article 21 ff (foreign divorce and annulment recognized ex legeex lege)) Divorce/ Legal separation as between Poland and several non-EU countries Divorce/ Legal separation as between Poland and several non-EU countries

(e.g. Australia, China, Egypt) – see the 1970 Hague Convention on the (e.g. Australia, China, Egypt) – see the 1970 Hague Convention on the recognition of divorces and Legal Separations (binding since 24/06/1996)recognition of divorces and Legal Separations (binding since 24/06/1996)

Under the Under the lex fori processualislex fori processualis Recognition of foreign private divorces (repudiation)Recognition of foreign private divorces (repudiation)

Lack of legal basis (see the Decree of 3 Feb. 1947 on the recognition of Lack of legal basis (see the Decree of 3 Feb. 1947 on the recognition of validity of certain marriages and divorces of Polish citizens)validity of certain marriages and divorces of Polish citizens)

Limited applicability of such a doctrine (only the last spouses' common law Limited applicability of such a doctrine (only the last spouses' common law of nationality or domicile taken into consideration)of nationality or domicile taken into consideration)

Thanks for your Thanks for your attention!attention!