the Ukraine-EU Association Agreement up for vote in the Netherlands. ....I think

UPDATE: the Council of State has announced it plans to give its verdict regarding the legal challenge of the referendum on Monday 26 October 4 pm CET. So from that moment we will have certainty on whether the referendum will be held. 

In a previous post, I have indicated that a "corrective consultative referendum" may be on its way to the poles in the Netherlands regarding the Association Agreement the EU (but also all its Member States, as well as Euratom) signed with Ukraine.

The number of app-based requests received, according to
Geenstijl (x= corrected data), via @datagraver

After parliamentary approval of the agreement in the Netherlands, within 6 weeks, over valid 300,000 requests had to be sent to the Election Council (Kiesraad) to trigger the referendum. Last week, on 14 October, the Election Council announced that threshold was reached exceeded: 472,849 requests were received. Based on a detailed test (name, address and signature match with registered data; person eligible to send the request) of a random sample of just over 4112 requests, ca 90.6% was deemed valid, and thus  427,939 were validated, which means a referendum is to take place.

Effect

The referendum has a consultative character only, but in the case of "NO" vote and a turnout of at least 30%, going against the outcome can not be done quietly: a draft act proposing either entry into force of the rejected act or retraction of that act, has to receive full parliamentary approval before it can enter into force. In the case of a clear decision (>60% NO) it thus seems -to me- unlikely that the law will enter into force, because approving such a law against the majority would equate to political suicide. ... Which means we are stuk with "provisional application" of the EU part of the agreement for an indefinite period, and possibly eventually a new agreement will have to be brokered. 

Appeal

Council of State, in The Hague

There is a caveat though, because -as any administrative decision of a government authority- it is open to appeal. In election (and referendum) matters only a single instance appeal is open, directly to the Council of State (Raad van State), and the procedure is designed to be fast: appeals have to be lodged within 6 days (which means Tuesday 20 October at the latest), and the Council of State is to decide the appeal in 6 days of the receipt.

I wouldn't be discussing this, if the Council of State hadn't announced today, an appeal had been filed. An oral hearing date was immediately set for Thursday 22nd, and based on the decision term, that means a final decision will be given on Monday 29th the latest.

Are print outs of online requests valid?

I am not sure what the grounds for the decision are, but according to website geenstijl.nl, one of the campaigners for the referendum, the point of contention is the mode in which the requests were received. They had to be sent to the Kiesraad on a designated form, or a "copy" thereof. The Kiesraad itself provided blank forms, as well as the possibility to create a pre-filled form, which only had to be printed and (manually) signed. The geenpeil campaign however, developed a web-based application, that allowed for submission of all required data, as well as the signature (to be produced using the trackpad of a laptop, drawing using a mouse, or using a touchscreen). Requests could not be printed by the applicant, but were stored on Geenpeil's servers, and printed and delivered by Geenpeil. (noone is contending this is a efficient system: the Election Council received the requests and DIGITIZED them before they further processed them)

According to Geenstijl, this system is in full conformity with the law, and they indicate they checked this with the Election Council. I am not an expert in the interpretation of the law on this point, but think the independent Election Council would have not allowed those forms, if they didn't think they would be within the law. Although we don't know which part of the requests were received using a printed computer-aided signature, according to Geenpeil, only a minority of requests were received through "regular" forms, so an invalidation of those forms will mean that no referendum will be held. But he last word is now with the Council of State.

Immunity of the European Patent Organization: Position of the Dutch Government

In a previous post, I commented on the somewhat precarious situation the Dutch government has found itself in (or manoeuvred itself in, depending on your position) regarding the European Patent Organisation EPO: in a verdict on appeal which thoroughly addressed jurisdiction issues, the The Hague Court of Appeal took jurisdiction in Labour Union SUEPO v EPO, despite the European Patent Convention's Protocol on Privileges and Immunities. It did so in a case regarding non-recognition of the Unions, because labour unions have no recourse to any appeal mechanism, which was a breach of the fundamental rights of its members.

The case was "appealed" in Cassatie to the Hoge Raad (Supreme Court), in a procedure, which is only open to questions on  application of (the principles of) law, but not anymore regarding the facts of the case. As I noted, the Dutch government has requested to become a party to those procedures, and was granted that right last month. Now the government has shed some more light on their motives to do so in answer to parliamentary questions of Van Nispen en Ulenbelt. The relevant answer reads (in my translation, with comments in red):

The Dutch State as on 22 May submitted its request to become a party to the proceedings with the Hoge Raad. It did so, because regarding the immunity from jurisdiction and execution attributed to EPO, the verdict of the The Hague Court of Appeal did not take into account sufficiently on one hand the international obligations resulting from the Protocol on Privileges and Immunities of the EPO and on the other hand the special character of EPO, which has a seat not only in the Netherlands, but also in different states. The Dutch state has therefore become party to the proceedings regarding
*The absence of jurisdiction of the Dutch Judge regarding EPO, because of its immunity as an international organisation with a seat in multiple countries [multiple countries argument; I have no idea if the number of seats of an international organization has ever mattered regarding immunity? The point of multiple countries was brought up by EPO of course].
*The scope of the verdict in relation to EPO's immunity from execution 

The state has the duty to guarantee that international law is followed in the Netherlands. Violation of international law by the state and its organs leads to international liability of the Netherlands. That means that the State has to guarantee the immunity EPO has. The Netherlands should also ensure that its judges don't take jurisdiction, which they don't have according to international law. This means in the present case that the Dutch judge can not render a decision regarding an organisation over which it has no jurisdiction as a result of immunity. Besides that, the Dutch judge is not competent regarding subjects within the competence of other states. The decision of the court however is directed at the organisation as a whole, including its divisions in other states. For the Netherlands, as a host of EPO and many other international organisations, the international obligation to guarantee immunity is sufficiently important to become a party to the case on the side of this international organisation [after the legal arguments, that is a mostly opportunistic argument]. 

Well, the good thing of this is, that the arguments of the Court of Appeal are now being tested thoroughly at the Hoge Raad, and the State has every right to join the proceedings. But the strength with which the State dismisses a court decision in a case to which it is not a party is also troubling as it touches upon the balance of power between the judicial and the executive branches. It would have been a lot more respectful and appropriate if the State would have followed a different approach and said that "in the interest of development of law" it wants the Supreme Court to weigh the arguments to the maximum extent possible.

Will a decision of the Hoge Raad be the end of the business? In view of the importance of the ECHR case law regarding international organisations, an appeal there seems likely in the case of a loss of SUEPO in the Netherlands

Conflict of the Conflict of the Laws: jurisdiction involving Choice of Court Agreements

Which court has jurisdiction in international cases is a classic “conflict of law” subject and several instruments exist (bilateral and multilateral), to avoid the unsatisfactory result that the same case is litigated in several venues, and –worse- those venues reach different outcomes. 

In Europe, two complimentary instruments exist with regards to "civil and commercial matters": the Brussels regulation applied in the European Union and the Lugano convention in the European Union, Iceland, Norway and Switzerland. A case purely related to the European Union falls outside the scope of the Lugano convention. 

Changes: new Brussels Regulation and Hague Convention

2015 saw two important changes to this system: In January, the original Brussels regulation (44/2001) was replaced by a new one (2012/2015). While the old Brussels Regulation was almost to the letter identical to the Lugano Convention, the new Brussels regulation is not. Significantly –and the object of this post– is an exception to the “lis pendens” system, a corner stone of both instruments that indicates that the court seized first has jurisdiction and other courts should stay their proceedings until that first court has given its decision. This provision is to be regarded so strictly, that even if the parties had a Choice of Court Agreement for -say- a German court but proceedings were brought first for an Italian court, that German court would have to wait for the Italian court to determine it had no jurisdiction, before it could take jurisdiction. This sometimes resulted in seizing a non-chosen court being a useful delay tactic (especially when a backlogged court was chosen), informally termed the “Italian Torpedo”.  The new Brussels I Regulation addressed this and allowed a court to take jurisdiction, if the court unambiguously was chosen in a  valid choice of court agreement; even if parallel proceedings in a different court had been commenced.

The second change is more recent: the entry into force of the 2005 Hague Convention on Choice of Court Agreements. The convention now has two parties: Mexico and the European Union, which means that it applies immediately to 28 states (in addition to Mexico, all EU member states except Denmark). The convention has a much more limited scope than the Brussels regulation or the Lugano convention, as it only applies when a choice of court agreement is concluded. The system is similar to the new Brussels Regulation: the chosen court must hear the case, regardless of any pending actions for other courts. Courts not chosen should declare themselves not competent to hear the case. Also similar to the Brussels system: a decision should be recognised in other Hague convention states, regardless of the merits of the decision. 

From 1 October, the membership of those three instruments is as follows:

Country	EU member	Lugano	Hague Convention
Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and UK	x	x	x
Denmark	x	x	-
Iceland, Norway, Switzerland	-	x	-
Mexico	-	-	x

Conflict of the Conflict of law measures

So now we have ended up -in the European Union at least at least- with 3 systems to determine international jurisdiction in the presence of a choice of court agreement. Although they all -eventually- favour the agreement, the reasons to reject them varies. Furthermore, the Lugano convention still places the lis pendens regime above the choice of court agreement, so the chosen court will have to wait until the non-chosen court has rejected jurisdiction. It thus matters under which legal instrument the choice of court clause is evaluated. 

For the relationship between the Lugano and the Brussels convention is quite clear in this area. If a resident of Iceland, Norway or Liechtenstein is involved, or such a court is chosen, or seized before the chosen court is seized, the Lugano convention will apply, while in cases involving solely the EU, the Brussels convention applies (and yes, there are some areas, where there is ambiguity, but I won't go into that).

The relationship between the Hague Convention and other conventions is treated in article 26 and indicates that the convention should be interpreted as far as possible consistenly with other treaties. The rest of the provisions are complex to read, because they are phrased with many double negations (... where non of the parties (...) is not  a member ....). I will try to rephrase them positively, as that is a lot easier to understand. It may however come at the loss of some exactness (possibly when a person should be considered resident in more than one location). 
-26(2): Another convention [e.g. Lugano] takes precedence if all parties are residents of
-:'states, which are party to that other convention [e.g. Lugano]; and/or
-:'non Hague convention states 
-26(3): If the court seized has conflicting obligations with respect to an older [concluded before the contracting state became a Hague party, e.g. Lugano] treaty with respect to a non-Hague State (e.g. Switzerland). 
-26(6)a: The rules of a Regional Economic Integration Organization (REIO, e.g. the EU; applying Brussels Regulation) apply when all parties are residents of 
-:'REIO states [e.g. Brussels regulation]; and/or
-:'non Hague convention states' 

How does that all work in practice, especially in relation to the Italian torpedo risk? I'll evaluate that using a hypothetical case. The case concerns a dispute regarding a contract with a choice of court agreement favouring "the courts of state A" and the contract parties are party A, resident in State A and party B, resident in State B. When a conflict arises, Party B sues in State C. Subsequently Party A starts a procedure for (the chosen court) of state A. Let's see what happens, when we make A, B and C specific, I get the following applicable instruments:

	A	B	C	Applicable instrument in state A	lis pendens?
	(party A, Chosen courts)	(party B)	court first seized	[applicable Hague "advantage"  provision]
1	France	Belgium	Greece	Brussels I [Hague 26(6)]	no
2	France	Belgium	United States	Brussels I [Hague 26(6)]	no
3	France	Mexico	Greece	Hague	no
4	France	Belgium	Switzerland	Lugano [Hague 26(2)]	yes
5	France	Mexico	Switzerland	Lugano [Hague 26(3)]	yes
6	Switzerland	Mexico	France	Lugano	yes
7	France	United States	Belgium	Brussels I [Hague 26(6)]	no
8	United States	France	France	-	no

Case 1 is quite straight forward: if only EU states are involved, the Brussels I regulation applies, and -in its new version- that means no waiting for the Greek court to have decided. Case 2 involves only EU residents, and thus Brussels I applies at well. When residents of only non-EU Hague State Mexico are involved, the Hague Convention applies (example 3). 

However (example 5), the French court has the possibility to stay proceedings pending a decision by the Swiss court: under Hague 29(3), the Lugano convention's lis pendens regime is an international treaty obligation which should be respected, as non-Hague state Switzerland is involved. However, this give-way rule only applies when a non-Hague state is involved, so should Switzerland however become a member to the Hague Convention, then the Hague convention should be applied. 

In case 7 the EU system applies again, as no non-EU Hague states are involved. 

This whole system of examples does not change a lot when other Lugano states become party to the Hague Convention: only in example 5 (Hague 26(3)), Lugano would be inapplicable when Switzerland joins the Hague convention, as it allows only for conventions to gain precedence with regards to treaty obligations in relation to non Hague parties. 

Remaining Lugano Relevance
However, the rules under article 26(2) (if only Lugano states are involved + other states that are non Hague states), the Lugano convention applies) are still applicable. That means that the lis pendens regime in the Lugano states can only be resolved through a change in that convention. It puzzels me why no -public- mention of such negotiations is known: the divergence between Lugano an Brussels regulation seems something that politicians have tried to avoid for ages. There must be some hidden problem in the new Brussels regulation as far as the other Lugano states are involved, that hampers the corresponding change in the Lugano convention. Or could it have been that a tactical error has been made in not involving them in the negotiations of the Brussels I regulation recast, and they feel uncomfortable with a "take it or leave it" attitude with regards the corresponding change in the Lugano convention? Who knows!?

SUEPO v EPO: immunity-based rejection of service of a judgement holding that that immunity doesn't apply

"National courts are not to hear cases regarding international organizations, because they enjoy immunity from prosecution.” On this basis courts generally do not assume jurisdiction in conflicts in which an international organization is involved, and generally that must be assumed to be a correct mode of action.

There are however several limits to immunity of international organizations: protocols on immunity generally exclude immunity in actions not directly related to their core task like conflicts about procurement of goods. Even if a subject matter is covered by immunity protocols, courts in -at least- Europe should take into account the case law of the European Court of Human Rights, interpreting the European Convention on Human Rights. In brief, employees of international organisations on European soil can not be denied their fundamental rights stemming from the ECHR. The pivotal case is Waite & Kennedy v Germany (nr. 26083/94) in a case where Germany had denied jurisdiction based on immunity of the European Space Agency. ECHR found that the German courts were right to do so stating that as a minimum requirement to avoid "national" jurisdiction, the international organization should have a “reasonable alternative means to protect effectively their rights under the Convention".

EPO labour dispute
It is based on the latter point that the Dutch Court of Appeal of The Hague has taken jurisdiction in a case between labour union SUEPO and the European Patent Organization (EPO), reversing a First Instance decision. SUEPO was not recognised by EPO, and was not able to appeal its non-recognition decision. While EPO argued that individual employees of EPO had recourse to the administrative tribunal of the international labour organisation (ILOAT), the judge held that that did not absolve EPO from providing an appeal mechanism to SUEPO (whether with ILOAT or elsewhere). The court thus took jurisdiction and ordered i) recognition of the union, ii) a wider “right to strike” and iii) allowing the union to send emails to its members. The judgement seemed well reasoned to me and clearly took into account the intergovernmental context, as no Dutch labour standards were imposed.

Things went interesting from a jurisdiction case law and international relations point of view from then on. To be executable, the judgement had to be served to EPO, which SUEPO had done through a gerechtsdeurwaarder (court’s bailiff) as is required in the Netherlands. EPO however refused to comply with the judgement because of its immunity. Furthermore, Dutch Minister of Justice Ivo Opstelten ordered (rather late, as the judgement had already been served, and a served judgement can not be “unserved”) bailiffs not to serve the judgement under a part of the bailiffs act (gerechtsdeurwaarderswet, Article 3a) that allows the Minister to prohibit service if it would run contrary to his obligations uphold immunity to intergovernmental organisations, embassies, ambassadors etc. I was shocked by Opstelten ordering non-service based on immunity, not because I am opposed to the principle of such immunity, but because the judge had so elaborately discussed (on appeal and not in first instance) why it held that it had jurisdiction, and from that decision it would automatically follow that denial of service could thus not be based on the -in this case not applicable- immunity. Parliamentary questions on the subject were asked and answered by Minister Van der Steur (Opstelten's successor), in which he held that -whatever the content or nature of the verdict- it could never be served by a court's bailiff, because of the inviolability of the premises of EPO, classified as an "absolute immunity from service". The minister contended however that non-service did not mean that an international organization "has no rights under international law or the law of its seat". In other words: the Dutch government holds that verdicts should be executed, but that it is not in a position to take the steps it would normally take to ensure that. I wonder if that is a position which would be followed by the European Court of Human Rights: if justice is done, but the judgement is not followed, that's just as effective as denial of justice. 
.
Current litigation
The matter doesn’t end here however, as the court dispute is currently fought on “two fronts”. SUEPO has appealed the order that bailiffs can not perform service of the judgement and thus has started a case against the state. I don’t know what the status is of that case.
EPO on the other hand has appealed the judgement of the The Hague Court to the Supreme Court in “cassatie”; which means that appeal is only possible on principles of law, rather than the facts of the case. In the latter case, 2 weeks ago the Dutch state was allowed to intervene and thus become a party to the proceedings.

I am following the cases with interest, as it will make clear how far a state can go in upholding immunity (in this case: inviolability of premises), based on a reasoned judgement -whatever one may think of that- that renders immunity (from cases involving unions) inapplicable. It also is interesting to see if the Supreme Court will follow EPO in its argumentation that as its employees (the individual members of SUEPO) have recourse to ILOAT, no separate process for Unions has to be provided.

But more important of all, its time for EPO, SUEPO and other EPO employees to find a way forward in solving their conflicts, as there are far too many indications, that the working environment at EPO is in dire need for improvement.

An EU referendum in the Netherlands during its EU presidency?

BREAKING: UPDATE 27 September. Geenstijl reports over 450 000 registered referendum requests. If that's correct, then a referendum seems very likely. The final word however is with the Election Council (Kiesraad), which will do the official counting, remove fake, incorrect and duplicate requests, and determine the number of valid requests. 

UPDATE 23 September: with about 4 days to go Geenstijl reports 255 000 out of 300 000 referendum requests have been received; which still means -if the data are correct- it will a close call whether NL will organise a referendum on the Association Agreement...

UPDATE 8 September: About halfway in the 6 week period available to obtain the necessary 300 000 signatures, 140 000 (47%) have been obtained. It seems to becoming a close call, whether a referendum will need to be called. 

The UK will have its in-or-out referendum in 2016 and Denmark organizes in December an opt-out to opt-in referendum: changing their default opt out in civil and justice matters to an opt in. In this way they can, like the UK and Ireland, decide regulation by regulation whether to participate or not. 

Also for the Netherlands an EU-related referendum might be in the works. IF it happens, its timing will be interesting: in the first quarter of 2016 and during the Dutch EU presidency.

A possible Dutch EU referendum is however not an in-or-out referendum, but addresses a less immediate topic: the association agreement the EU (and its 28 member states) concluded with Ukraine last year. Approval of the Agreement is running smoothly, with ratification of Ukraine, 22 EU states as well as the European parliament already fully finished. The Netherlands have finished their parliamentary process resulting in publication of the approval act on 28 July 2015. If it had been approved 1 month earlier, that would be the formal end of the democratic process and the Netherlands could proceed to deposit its instrument of ratification with the Council of the European Union. But on 1 July quietly the "Wet raadgevend referendum" (WRR, "Consultational" Referendum Act; translation as "Advisory Referendum Act" is also possible, but note it only advises after an act has been signed into law) came into force, giving groups of people the possibility to call a referendum.

Ukraine Association agreement

The request for a referendum is a two-stage process: first 10 000 signatures for a "preliminary request" have to submitted to the Dutch Election Council (Kiesraad) within 4 of the publication. After that stage is succesful, 300 000 applications for a referendum have to be raised within 6 weeks.

The first act to pass the preliminary stage was the Ukraine-EU Association Agreement approval act, after a campaign by website geenstijl.nl (via geenpeil.nl) and burgercomite-eu.nl/. This means the approval act is now suspended until the Kiesraad has announced wether sufficient applications for the referendum have been raised. The deadline for submission of applications is 28 September.

An EU referendum or a Association referendum?

While the referendum formally "just" is about the Association Agreement, the referendum-groups argue that it presents the only way for the Dutch people to have their say on the EU as a whole, so they are prepared to present a possible referendum in that context. The Association agreement is further placed in the EU enlargement context: the Association Agreement provides the first stage in alignment with the EU acquis, which has historically often ended in full membership of the EU. Ukraine-specific arguments are also provided and are linked foreign policy effects of the agreement has had in relationship to Russia.

Chances for success?

Will the call for a referendum be successful? That is hard to say at this moment. While website geenstijl drives a lot of traffic, discussion in newspapers and main Dutch television has been piecemeal. The bar of 300 000 requests amounts to over 2% of eligible voters and the requirement to submit request on paper provides a further burden. Geenpeil.nl however seems to have found a loophole in the "in writing" requirement and has produced a browser-fillable form (including a signature system) that produces pdf files it can print and hand deliver to the Kiesraad. The form has been submitted about 30 000 times in the first 1.5 days, but was not able to double that amount in the 4 days that followed.

And IF a referendum is held?

Then the WRR requires it to take place in 3-6 months after the announcement has become final. I am not sure when that is, but -unless legal actions are started against the decision- it must be in the first half year of 2016, awkwardly coinciding with the Dutch presidency. Until such a referendum, the approval act is suspended and the Netherlands can not ratify. The planned 1 January entry into force will in the case not be met, and the Netherlands can only ratify after a positive vote (approving the act) in the referendum, or if the turnout is below 30%. If the Act is rejected, it can only enter into force, after it is resubmitted (and re-approved) by parliament.

After a NO-vote in a referendum?

Although formally possible, it seems politically impossible to pass the approval act after it has been voted down in a referendum [well, if it the "against" votes would be 50-51% a case would possibly be made for ignoring; interpreting the result as a draw] unless and until changes are (NL-specific) negotiated. And that would be complicated, as the association agreement is just one agreement in a framework of many. Meanwhile the practical effect of non-entry into force may be small: the agreement is already for a large part "provisionally applied" since December 2014 and the practical difference between formal entry into force and lengthy provisional application seems small [there are effects however: Ukraine agreed to forbid use of terms of Champagne etc for products made on its territory within 10 years of entry into force; a term that does not start running until all states have ratified].

Hague Evidence Convention and the EU: did member state loose competence?

The Hague Evidence convention was already concluded 45 years ago, but it has lost not much of its relevance. The Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, as it is formally called handles preserving evidence for later civil litigation in cross border situations and thus forms, with 58 parties, an important convention in Private International Law.

The European Union has similar rules in place since the 1206/2001 Regulation on "cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters", which explicitly names the Hague convention and replaces it in situations between member states. One of the reasons for adopting it, was that not all EU member states were parties (still Belgium, Ireland and Austria are non-parties).

One of the peculiarities of the Evidence convention is, that it allows member states of the Hague Conference (in 1970) to sign and ratify the convention, and other states to accede. Contrary to most conventions (but as is the case often with Hague conventions), there is a difference in legal effect of accession and ratification. The convention applies always between all ratifying states, but only between acceding states after their accession has been explicitly accepted by a ratifying state (or an acceding state that acceded earlier). The Hague Conference maintenance a nice excel sheet following acceptance, from which can be seen, for example, that the recent accession of Armenia has only effect with respect to 11 states (including the EU countries Czech Republic, Bulgaria, Germany)

In the past, EU member states have accepted new acceding states at their own initiative and pace, but is this still allowed or should they ask permission from the EU and approve accession of other states "in the interest of the European Union"? This post investigates the present situation, and -to stay with our example- whether the acceptances by Czech Republic, Italy and Germany of Brazil's accession without the approval of the EU are lawful.

Internal competence means external competence
The first question to be asked, is whether the EU has competence with regards to the Hague Evidence Convention. The EU is not a party, and "only" 25 of its 28 member states are, and matters within the EU are now falling outside the scope of the Convention, as the Regulation has replaced them. Nevertheless, in the famous opinion regarding the Lugano convention (Case 1/03, ECLI:EU:C:2006:81), the European Court of Justice  confirmed that if the EU has regulated a matter internally (in this case through the Execution regulation 44/2001), that also gives it competence for externally (the Lugano convention mostly the same text, but between the EU and EFTA states). The mere similarity between the systems makes that the two may "effect eachother". In the case between the Evidence REgulation and Convention this similarity clearly exists.

"Accepting an accession" is a treaty action
What is the acceptation of an accession? According to CJEU in opinion 1/13, and based on teh Vienna Convention on the law of treaties, the acceptance of an accession constitutes a treaty-making action. Thus if the EU would be (exclusively) competent to conclude the treaty, it should be (exclusively) competent to accept an accession. That seems crystal clear.

Exclusive or Shared competence?
Is the competence exclusive or shared? That's for me an open question, but -given the similarities in the fields- I assume, we are talking exclusive competence of the EU here.

Conclusion: 
The conclusion from this exercise is that acceptance of accessions of the Hague Evidence Convention falls in the (probably exclusive) competence of the EU. That is already the case  for some years (since 2001 when the Evidence Regulation was concluded?), but this became only apparent when acceptance of Hague Child Abduction acceptances were discussed (2012), and only became very clear once CJEU opinion 1/13 was given by 14 October 2014.
So, to return to our Brazil example; were Bulgaria, Czech and Germany at fault? They accepted after 1/13 was given, and thus it seems they are to blame for accepting without being competent to.

Other Hague conventions involved?
With competence of the EU established in the Hague Adoption Convention (explicitly) and the Hague Evidence Convention (by me at least;-), the story might not be over. Opinion 1/13 should also be evaluated in light of the 1996 Hague "Protection of Children" convention (similar provisions in Brussels II: 2201/2003), the 1965 Hague Service Convention (similar to Service Regulations 1393/2007 and 1348/2000). Those conventions however do not  allow member states to accept an accession, but allow them to prevent entry into force by lodging an objection within 6 months. There are more Hague conventions with relevant provisions and where the EU has (at least some) competence (the 1980 Access to justice convention, the Access to Justice convention), but the relevance of those conventions in daily practice is much lower. Last but certainly not least, the Hague Apostille Convention, the most ratified Hague convention with over 100 parties, also has the possibility of objection to accessions, and may (and here I am guessing) also be partly under EU competence (many of the documents falling under that convention fall under an easier EU system)...

Busy period for EC?
The European Commission will have a busy time in proposing regulations (1 for each acceding member state) for acceptance of the two conventions, or it will face delay in implementation. That is not just a legislative matter, but also a practical one: what criteria are to be fulfilled for accepting (or in the case of some conventions: not objecting) acceding countries? Should a national authority be in place (required by most convnetions and necessary for its functioning)? Or should a state show it can comply with the obligations? Do diplomatic conflicts factor in? It would be wise to have a discussion on those matters and see if a regulation can be proposed that delegates the responsibility for accepting to an EU institution or a working group of member states if relevant criteria have been met. That seems the only way to do this transparently and fast.
In the case of the Hague Service Convention and the Child Protection Convention, time is even more of the essence, because entry into force of a regulation allowing member states to reject accession of an acceding state within 6 months of the accession seems much too fast for the EU legislative machine.

Unified Patent Court: a Dutch Post Consultation Update

Last May, the Dutch government has held a consultation regarding the changes to the Rijksoctrooiwet (the Kingdom Patents Act) in order to implement the provisions of the unitary patent. The consultation also included implementation provisions for the approval act of the Unified Patent Court.

I have dedicated a blog post to my unease with the current implementation path which IMO had serious disadvantages for the caribbean territories in the Kingdom, to which -as non EU territories- the unitary patent would never apply, but to which the Dutch version of the European Patent (including translation requirements etc) would continue to apply. For those who understand Dutch: my contribution to the consultation is here.

The exciting news of today: the government response to the consultation is in! It shows a disappointingly low response: only 9 responses were received. The response to my (and apparently others') concerns and suggestions regarding the implementation in the caribbean translated (disclaimer: by me) below (with my comments in red):

A couple of respondents asked wether it was possible to implement the option to request unitary effect for a European patent also also for Curaçao, Sint Maarten and the Caribbean part of the Netherlands. This is impossible, as both the Unified Patent Court Agreement and Regulations 1257/2012 and 1260/2012 only can apply to the EU Member State the Netherlands and can therefore not apply to the Caribbean part of the Kingdom. This is true for the Regulations, but it is very much debatable with regards to the UPC Agreement, to which the Kingdom is a signatory, and which will anyway apply to the Caribbean part as the territorial scope of decisions regarding non-unitary patents extends to everywhere where the European patent applies (Article 34 of the UPC agreement seems clear: Decisions of the Court shall cover, in the case of a European patent [with non-unitary effect], the territory of those Contracting Member States for which the European patent has effect.). It remains incomprehensible that the chosen procedure for the UPC agreement approval does use a regular Act and not a Kingdom act. Even if ratification takes only place for the European Netherlands, the Kingdom act approval process guarantees consultation of Curaçao and Sint Maarten and the possibility to include their views in an area where they are clearly effected. 

A couple of respondents has pleaded to extend the Act with provisions that are specific to the situation where a [Dutch version of the] European patent is only applicable in the Caribbean part of the Kingdom, such as other translation requirements, financial provisions or different governance competences. The government is of the opinion that such changes are out of scope of the proposed act. It is emphasized that when a European patent enjoys unitary effect in the European part of the Netherlands, and also gives protection in Curaçao, Sint Maarten and the Caribbean part of the Netherlands as a result of national validation, the situation in the Caribbean part of the Netherlands does not differ from a national validation applicable to the whole Kingdom [e.g. a non-unitary Dutch EP].

Again, the idea is thus that in a case of unitary effect by taking the European Netherlands out of the territorial scope of the "Dutch European patent", nothing changes for the Caribbean. This is not true of course, because:

-invalidation of a unitary effect does not invalidate the the Caribbean part (and vice versa!)

-infringement of a unitary patent in Sint Maarten and in Amsterdam has to be litigated separately

Furthermore, although there may be quite some similarities between 

i) a non unitary EP valid through the whole kingdom on subject x and 

ii) a territorially limited Dutch EP on subject y

but this is not the most relevant comparison, because it still means that a big difference will exist between the unitary patent in the European Netherlands on subject x and the same limited Dutch EP also on subject x in the rest of the Kingdom. This means for example that for the same invention, probably the applicable law is different and renewal fees need to be paid at 2 different locations. 

Regarding the level of renewal fees that should apply to this situation [the territorially limited Dutch EP], the government notes that this is not the subject of the Kingdom Patents Act, but of the implementing Decision of the Kingdom Act. That's true, but it is also a bit cryptic. If the implementing decisions are not changed, patent holders keep paying the full price for their territorially limited Dutch EP. Does the government anticipate to lower renewal fees? And to what level? The fact that the economic value of the Dutch EP falls by 99% (in terms of GDP) means that also with a significant reduction of -say- 50%, the proposition for a territorially limited Dutch EP would be a lot less strong. 

Conclusion

This blogger is slightly disappointed that the government keeps its somewhat formalistic approach (nothing changes in the Caribbean as they don't get a new court or patent) and genuinly annoyed about the fact that the implementation path does not acknowledge the situation that according to article 34 UPC decisions apply also to the Caribbean. He reminds again that as a rule, European Union treaties are approved by an approval act covering the whole Kingdom (because it concerns also the Caribbean parts as Overseas Countries), while ratifying only for the European part (the territorial scope of Union law). That should also be the minimum thing to do here as well. 

And now we wait...

The proposal is now off to the Raad van State (Council of State), a routine and required step. Its advice will be made public as soon as the government sends the legislation to the parliament. The government has the possibility to amend the proposal based on the advise, and may also amend it during the first stage of the parliamentary procedure (before parliamentary voting) through a "nota van wijziging" (Note of amendment). And also members of the 2e Kamer (house of deputies) are able to propose amendments and draft motions (e.g. regarding renewal fees). So not all is lost, there is still lots of intelligent people that can bring the legislation on a level where EU unification doesn't mean separation in the Kingdom!