European law

By Paul Niekirk, barrister

Competition lawDominant positionThe Commission has refused to sanction a proposed merger between Airtours plc and First Choice plc (Decision 2000/276/EC, Case IV/M.1524 - Airtours/First Choice, OJ L 93, 13 April 2000, pages 1 to 33).

In reaching its decision the Commission noted that, if the proposed merger were to be approved, short-haul package holidays in the United Kingdom would be dominated by the new entity and two other tour operators.

It stated (applying Gencor v Commission, Case T-102/96, not yet published) that a collective dominant position in a market could occur without any active collusive conduct of any kind, as a result of adaptation by members of an oligopoly to market conditions.

Community institutionsThe Council has adopted new rules of procedure for itself (Decision 2000/396/EC, ECSC, Euratom, OJ L 149, 23 June 2000, pp.

21 to 35); these include the formalities for the adoption of legislation.Family proceedingsThe Council has adopted a regulation on the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses (Regulation (EC) 1347/2000, OJ L 160, 30 June 2000, pp.19 to 36).

Exclusive jurisdiction over divorce, judicial separation and annulment will lie with the courts of a member state on the basis of residence, and such courts will also have jurisdiction over issues of parental responsibility.

Judgments in such cases must be accorded recognition in other member states (subject to specific grounds for exception) without any special procedure.

The enforcement in other member states of judgments on the exercise of parental responsibility delivered by the courts of one member state will, however, depend upon declarations of enforcement from the appropriate courts in the other states in accordance with their national law; decisions on such issues will be subject to appeal.

The regulation will enter into force on 1 March 2001 (without retrospective effect).

ImmigrationSome member states entered agreements on the gradual abolition of checks on persons at common borders in 1985 and 1990 (the 'Schengen acquis'), and the acquis was integrated into the framework of the European Union by a protocol annexed to the Treaty on European Union.

That protocol noted that the United Kingdom and Ireland were not bound by the acquis, but left open the possibility of those countries requesting participation in some or all of its provisions.

Following requests, this country has been permitted to participate partially in the acquis (but not in the frontiers provisions), in particular in the establishment and operation of the Schengen information system (except in relation to the provisions relating to alerts) (Decision 2000/365/EC, OJ L 131, 1 June 2000, pp.43 to 47).

InsolvencyThe Council has adopted a regulation on cross-border insolvency proceedings (Regulation (EC) 1346/2000, OJ L 160, 30 June 2000, pp.1 to 18).

It relates to collective insolvency proceedings which entail partial or total divestment of a debtor and the appointment of a liquidator; it does not apply to proceedings concerning certain undertakings subject to specific regulation.

Jurisdiction is conferred on the courts of the member state within which the debtor's main interests are situated, but secondary proceedings may be instituted in respect of assets situated in another member state in the latter state.

Subject to exceptions, the law applicable to insolvency proceedings and their effects will be that of the state in which they are opened (lex concursus), but the validity of disposals by the debtor for a consideration of certain assets after proceedings have opened will be determined by the lex situs.

Creditors residing, domiciled or with a registered office in any member state may lodge claims in the proceedings.

The opening of insolvency proceedings will not affect the rights in rem of creditors or third parties in respect of assets situated in another member state.

The effect of insolvency proceedings on contracts of employment will be governed by the law applicable to such contracts.

Judgments in insolvency proceedings made under the regulation in one member state must normally be recognised in other member states, and the powers of liquidators may be exercised in any member state.

The regulation will enter into force on 31 May 2002, at which date a number of bilateral treaties will cease to have effect.

Service of documentsThe Council has adopted a regulation on the service in member states of judicial and extra-judicial documents in civil and commercial matters (Regulation (EC) 1348/2000, OJ L 160, 30 June 2000, pp.37 to 52).

The regulation will apply only where the address of the intended recipient is known.

The documents for service will be passed by an officially designated transmitting agency to a similarly designated receiving agency (any requirement as to translation being notified by the transmitting agency).

The receiving agency will arrange for service as soon as possible; the date of service being determined according to the law of the country of service.

A certificate of service will be sent to the transmitting agency.

Certain costs will fall on the applicant for service.

Proof of service may be necessary in such cases before judgment can be entered in default of appearance.

The regulation will enter into force on 31 May 2001.