Introduction to Polish PIL:Introduction to Polish PIL:Law ApplicableLaw Applicable

to Natural Personsto Natural Persons

Dr. Mateusz PilichDr. Mateusz PilichUniversity of Warsaw,University of Warsaw,

Chair of International Private & Trade Chair of International Private & Trade LawLaw

Personal LawPersonal Law

Three Basic NotionsThree Basic Notions

One should make a distinction One should make a distinction between:between:

the law applicable to natural personsthe law applicable to natural persons the personal status of natural personsthe personal status of natural persons the personal law (the personal law (lex personalislex personalis) of ) of

natural personsnatural persons

Law Applicable to PersonsLaw Applicable to Persons

In Polish: In Polish: statut personalny – statut personalny – French: French: le statut personnel; le statut personnel; German: German: das das Personalstatut; Personalstatut; Spanish: Spanish: el estatuto personalel estatuto personal; ; Dutch – Dutch – het personeel het personeel statuutstatuut

English term: English term: personal statutepersonal statute seems seems incorrectincorrect ( (statute statute = law= law,, act of act of Parliament, not the legal system Parliament, not the legal system specifiedspecified as applicable) as applicable)

LLaw governing persons in generalaw governing persons in general (the beginning and the end of their (the beginning and the end of their existence, issues of legal capacity or capacity to act, the name, etc.)existence, issues of legal capacity or capacity to act, the name, etc.)

The scope of the law applicable differs under various systems of law of The scope of the law applicable differs under various systems of law of conflict (e.g. in Austria conflict (e.g. in Austria das Personalstatutdas Personalstatut means the law designated by the means the law designated by the so called personal connecting factors, esp. nationalityso called personal connecting factors, esp. nationality)) = more or less = more or less equivalent to the notion of the ‘personal law’ (equivalent to the notion of the ‘personal law’ (lex personalislex personalis))

In Poland – In Poland – ‘statut personalny’‘statut personalny’ is restricted is restricted only only to to the issues the issues immediately immediately connected with the persons (here: natural persons), see Chapter 2, Article connected with the persons (here: natural persons), see Chapter 2, Article 11 ff PILA 201111 ff PILA 2011

Personal statusPersonal status

English legal concept - quite broad meaningEnglish legal concept - quite broad meaning According to P. H. Neuhaus (According to P. H. Neuhaus (Die Grundbegriffe Die Grundbegriffe

des Internationalen Privatrechts, des Internationalen Privatrechts, 1976; Engl. 1976; Engl. transl. - see transl. - see Exhibit No. 1Exhibit No. 1): describes the position ): describes the position of a given person within the legal society, esp. as of a given person within the legal society, esp. as a family member, but also as a citizen or an alien, a family member, but also as a citizen or an alien, having or devoid of the full legal capacity, civil having or devoid of the full legal capacity, civil rights etc.rights etc.

Not too precise, yet it has something in common Not too precise, yet it has something in common with the sphere of the PIL; conf. Art. 12(1) of the with the sphere of the PIL; conf. Art. 12(1) of the UN Convention Relating to the Status of Refugees UN Convention Relating to the Status of Refugees (see (see Exhibit No. 2Exhibit No. 2))

Personal law (Personal law (prawo prawo personalnepersonalne))

Means Means every lawevery law indicated by the personal indicated by the personal connecting factors, as applicable to any connecting factors, as applicable to any relationship within the scope of personal, relationship within the scope of personal, family, or succession law (everything family, or succession law (everything sctrictly tied to the personality of a mansctrictly tied to the personality of a man))

Personal connecting factors for the natural Personal connecting factors for the natural persons are: 1) nationality (an international persons are: 1) nationality (an international equivalent of the citizenship), 2) residence equivalent of the citizenship), 2) residence ((domiciliumdomicilium), 3) habitual residence), 3) habitual residence

Core Problems: Legal Core Problems: Legal CapacityCapacity

and Capacity to Actand Capacity to Act

Case #1Case #1

John C., a young Scot aged 17, has arrived in 2010 to Warsaw John C., a young Scot aged 17, has arrived in 2010 to Warsaw together with his parents, temporarily employed by the Foreign Office together with his parents, temporarily employed by the Foreign Office in the UK Embassy. He got the driving licence and then decided to buy in the UK Embassy. He got the driving licence and then decided to buy a car. He did not pay the full price because of the lack of money; his a car. He did not pay the full price because of the lack of money; his parents denied their responsibility for this obligation. Thus the seller parents denied their responsibility for this obligation. Thus the seller declared the contract avoided and now wants his car back arguing declared the contract avoided and now wants his car back arguing that due to his age, John C. could not enter into the contract without that due to his age, John C. could not enter into the contract without the parental consent (Article 18 Polish Civ. Code). John C. opposed to the parental consent (Article 18 Polish Civ. Code). John C. opposed to this argument claiming that the age of consent according to Scots law this argument claiming that the age of consent according to Scots law shall be 16 (s.1 Age of Legal Capacity (Scotland) Act 1991).shall be 16 (s.1 Age of Legal Capacity (Scotland) Act 1991).

Is the buyer right? Which law governs the age of consent of a natural Is the buyer right? Which law governs the age of consent of a natural person under such circumstances, supposing that it is the Polish law person under such circumstances, supposing that it is the Polish law which is applicable to the sales contract (Article 4(1)(a) Rome I Reg.)?which is applicable to the sales contract (Article 4(1)(a) Rome I Reg.)?

ObservationsObservations

The law applicable to a contract governs its invalidity The law applicable to a contract governs its invalidity or ineffectiveness (Article 10 Rome I), together with or ineffectiveness (Article 10 Rome I), together with the consequences of nullity (Article 12 (1)(e) Rome I).the consequences of nullity (Article 12 (1)(e) Rome I).

The question of the legal capacity is The question of the legal capacity is the so-called the so-called "partial question""partial question" ( (Teilfrage Teilfrage in German), i.e. a legal in German), i.e. a legal problem without an independent meaning yet subject problem without an independent meaning yet subject to a quite different conflicts rule than the rest of the to a quite different conflicts rule than the rest of the casecase

Article 18 of Polish Civ.C. which mentions a "limited Article 18 of Polish Civ.C. which mentions a "limited capacity to act" as a necessary prerequisite for the capacity to act" as a necessary prerequisite for the validity of a juridical act concluded without a paternal validity of a juridical act concluded without a paternal consent, consent, makes an makes an implied reference implied reference to the law to the law governing the personal status of a persongoverning the personal status of a person

How to Decide on the Case How to Decide on the Case #1#1

From the standpoint of a Polish judge, the law governing the age of From the standpoint of a Polish judge, the law governing the age of consent depends on the consent depends on the nationalitynationality of the interested person (Article of the interested person (Article 11 (1) Polish PILA)11 (1) Polish PILA)

On the other hand, should the case have been decided upon by a On the other hand, should the case have been decided upon by a British judge (esp. in Scotland), the applicable law would have been British judge (esp. in Scotland), the applicable law would have been differentdifferent

a British national a British national the unique "British" private law system does not the unique "British" private law system does not exist, it is a multi-law stateexist, it is a multi-law state

Three-step solution: Three-step solution: (a)(a) the judge shall find the law of the UK as the judge shall find the law of the UK as applicable under Article 11; applicable under Article 11; (b)(b) British legal practice shall be referred British legal practice shall be referred to in order to decide which of particular territorial laws will apply; to in order to decide which of particular territorial laws will apply; (c)(c) to learn whether there is a to learn whether there is a renvoi renvoi (Article 5 PILA: „back to Poland”?)(Article 5 PILA: „back to Poland”?)

Most probably, the judge will apply the Scots law as most closely Most probably, the judge will apply the Scots law as most closely connected to the personconnected to the person

NationalityNationalityas a Connecting Factoras a Connecting Factor

Why is the Nationality Why is the Nationality ImportantImportant

The tradition of the nationality (otherwise speaking: The tradition of the nationality (otherwise speaking: citizenshipcitizenship) ) as a connecting factor dates back to the beginning of the 19as a connecting factor dates back to the beginning of the 19 thth century, see Art. 3 al. 3 of the French century, see Art. 3 al. 3 of the French Code civil Code civil 1804:1804:

Les lois concernant l’état et la capacité des personnes régissent les Les lois concernant l’état et la capacité des personnes régissent les Français, même résidant en pays étrangerFrançais, même résidant en pays étranger. . [The laws which concern [The laws which concern the status and capacity of the persons shall govern French people, the status and capacity of the persons shall govern French people, even if they reside in a foreign country.]even if they reside in a foreign country.]

That was an imperfect rule of law, silent on anyone having no That was an imperfect rule of law, silent on anyone having no French nationalityFrench nationality

It was only the famous Italian scolar and statesman It was only the famous Italian scolar and statesman Pascuale Pascuale Stanislao ManciniStanislao Mancini (1817-1888), who developped the doctrine of (1817-1888), who developped the doctrine of nationality in the conflict of laws in his nationality in the conflict of laws in his famous Turin lecture famous Turin lecture (18(186262): ): „„Della nazionalità come fondamentoDella nazionalità come fondamento del diritto delle del diritto delle genti genti [On the nationality as the foundation of the law of nations][On the nationality as the foundation of the law of nations]””

the idea of the natural social environment of every natural the idea of the natural social environment of every natural person – we always have the same set of rights and obligations, person – we always have the same set of rights and obligations, no matter where residingno matter where residing

the personal, family, and inheritance relationships (the ‘private the personal, family, and inheritance relationships (the ‘private law of necessity’ = law of necessity’ = diritto privato necessariodiritto privato necessario) should be ) should be protected due to the links to the human personality, national protected due to the links to the human personality, national customs, etc.customs, etc.

Weak Points in the ConceptWeak Points in the Concept

What to do with dual/multiple nationals (What to do with dual/multiple nationals (bi-,bi-, pluripatridaepluripatridae)?)?

How to treat people whose connection with their How to treat people whose connection with their mother countries have been breached (esp. mother countries have been breached (esp. refugees)? What about stateless persons?refugees)? What about stateless persons?

Is the connecting point of the nationality in line Is the connecting point of the nationality in line with the EU law (prohibition of discrimination with the EU law (prohibition of discrimination under Article 18 TFEU…)?under Article 18 TFEU…)?

Does the nationality mirror a natural person’s Does the nationality mirror a natural person’s legal culture and environment (heterogenous legal culture and environment (heterogenous societies, often and easy changing of domicile)?societies, often and easy changing of domicile)?

Conflicts of Nationality Conflicts of Nationality (dual/multiple nationality)(dual/multiple nationality)

The PIL does not regulate the matters of multiple The PIL does not regulate the matters of multiple nationalsnationals

Every sovereign State is in the position to decide Every sovereign State is in the position to decide who shall be its national, growing number of who shall be its national, growing number of multinationalsmultinationals

The conflicts at the international level dealt with The conflicts at the international level dealt with under under customary international lawcustomary international law,, the role of the role of the 1930 Hague Convention on Certain Questions the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality LawsRelating to the Conflict of Nationality Laws

The subject matter of PIL amounts only to the The subject matter of PIL amounts only to the question of choosing one of ‘competing’ nationalities question of choosing one of ‘competing’ nationalities as the point of connection of one’s personal statusas the point of connection of one’s personal status

Case #2Case #2

Mario S. is a son of a mixed Italian-Polish Mario S. is a son of a mixed Italian-Polish couple. He was born in Milan in 1980, he couple. He was born in Milan in 1980, he does not speak Polish at all and moreover, does not speak Polish at all and moreover, he has never seen Poland so far.he has never seen Poland so far.

How does the Polish court decide on his How does the Polish court decide on his nationality in a civil case? Does his origin nationality in a civil case? Does his origin from the Polish mother play any role in from the Polish mother play any role in this inquiry?this inquiry?

Remarks and ReflectionsRemarks and Reflections

Mario S. has acquired (probably) Polish nationality Mario S. has acquired (probably) Polish nationality lege lege sanguinissanguinis (being born from a Polish national) (being born from a Polish national)

He is not an Italian for Polish authorities, even though the He is not an Italian for Polish authorities, even though the latter nationality is ‘effective’ (= he has the close links with latter nationality is ‘effective’ (= he has the close links with Italy), see the Italy), see the exclusive nationality principleexclusive nationality principle, Article 2 , Article 2 (1) PILA(1) PILA

The nationality is evidenced in the way foreseen by the law The nationality is evidenced in the way foreseen by the law of the State whose citizenship is at stake (of the State whose citizenship is at stake (lex causae lex causae principle), principle), passportspassports treated as treated as prima facie prima facie evidenceevidence

EU law: Application of Polish law only may seem EU law: Application of Polish law only may seem exorbitantexorbitant, see ECJ case C-148/02 , see ECJ case C-148/02 Garcia Avello vs Belgian Garcia Avello vs Belgian StateState

A multinational having no Polish citizenship – the closest A multinational having no Polish citizenship – the closest relationship test applied (Article 2 (2) PILA)relationship test applied (Article 2 (2) PILA)

EU Law and the NationalityEU Law and the Nationality

EU law neither forbids the nationality as a EU law neither forbids the nationality as a connecting factor nor imposes upon Member States connecting factor nor imposes upon Member States any particular legal policyany particular legal policy

To apply one’s national law, may not To apply one’s national law, may not a limine a limine be be perceived to mean that a person e.g. is perceived to mean that a person e.g. is discriminateddiscriminated

Evidence that the role of the nationality is Evidence that the role of the nationality is decreasing step by step:decreasing step by step: the cross-border mobility of individuals, esp. in the the cross-border mobility of individuals, esp. in the

European Union, trends towards the migrants' faster legal European Union, trends towards the migrants' faster legal integrationintegration

the growing importance of the EU citizenship (see for the growing importance of the EU citizenship (see for instance the ECJ case C-353/06 instance the ECJ case C-353/06 Grunkin and PaulGrunkin and Paul))

Alternative (Substitute)Alternative (Substitute)Personal Connecting Personal Connecting

FactorsFactors

Stateless Persons and Stateless Persons and RefugeesRefugees

International point of view: people International point of view: people ((de iure de iure or or de factode facto) ) unprotected unprotected by their mother states, who is to protect them?by their mother states, who is to protect them?

Conflictual point of view: nationality no more a link with a Conflictual point of view: nationality no more a link with a particular legal system, whose law applies then?particular legal system, whose law applies then?

Article 3 (1): Article 3 (1): DomicileDomicile or, or, in the absence of the in the absence of the latterlatter, , one’s one’s habitual residenchabitual residencee

Domicile and habitual residence - quite a difficult distinction; Domicile and habitual residence - quite a difficult distinction; real real centre of lifecentre of life

The intention to stayThe intention to stay ( (animus manendianimus manendi) also plays a role here ) also plays a role here (e.g. a person imprisoned in a foreign State generally should not (e.g. a person imprisoned in a foreign State generally should not be deemed to have established his or her domicile/habitual be deemed to have established his or her domicile/habitual residence in that latter country)residence in that latter country)

Habitual residence seems rather to be directed towards the Habitual residence seems rather to be directed towards the objective criteria but indeed, the difference is the slight oneobjective criteria but indeed, the difference is the slight one

Special RulesSpecial Ruleson the Capacity to Acton the Capacity to Act

Capacity to ActCapacity to Actin Business Transactionsin Business Transactions

Article 11(2) PILA:Article 11(2) PILA: A natural person making a juridical act (transaction) A natural person making a juridical act (transaction)

within the scope of his/her business within the scope of his/her business (i.e. within the (i.e. within the scope of a commercial activity)scope of a commercial activity)

Without a necessary capacityWithout a necessary capacity Suffice to have capacity to act under the law Suffice to have capacity to act under the law where the where the

business is operatedbusiness is operated (= where there is a (= where there is a center of one's center of one's commercial activitycommercial activity))

Residual and subsidiary norm (Residual and subsidiary norm ("it shall suffice "it shall suffice that…"that…"))

Does not replace the basic connection (Article 11(1) Does not replace the basic connection (Article 11(1) PILA)PILA)

Minor significance, no reported case lawMinor significance, no reported case law

Deviation from the Deviation from the lex patriae lex patriae – „Lizardi’s Exception”– „Lizardi’s Exception”

See Article 13 Rome I, Article 12 PILASee Article 13 Rome I, Article 12 PILA The colloquial name of the institution comes from the famous case settled by The colloquial name of the institution comes from the famous case settled by

the French the French Cassation Court Cassation Court in 1861:in 1861: A Mexican national called A Mexican national called LizardiLizardi, aged 22 or 23, bought and sold precious objects , aged 22 or 23, bought and sold precious objects

in France and got indebted up to a staggering sum of nearly 700,000 golden francsin France and got indebted up to a staggering sum of nearly 700,000 golden francs After his creditors had begun to seek relief, he argued the contracts he had made After his creditors had begun to seek relief, he argued the contracts he had made

were null and void due to the lack of his legal capacity (the age of consent according were null and void due to the lack of his legal capacity (the age of consent according to the Mexican law of that time was 25 years)to the Mexican law of that time was 25 years)

Lizardi's contentions ineffective before the French courts, the Lizardi's contentions ineffective before the French courts, the reasonable reliance reasonable reliance (good faith) (good faith) of French citizens as to the legal capacity of the foreigner protectedof French citizens as to the legal capacity of the foreigner protected

Two factors taken into consideration:Two factors taken into consideration: Knowledge of the other interested party: Knowledge of the other interested party: both factual circumstances and both factual circumstances and

(rather occassionally) the availability of the information concerning the content of (rather occassionally) the availability of the information concerning the content of foreign lawforeign law

Due diligence: Due diligence: someone acting carelessly, who negligently ignores the content of a someone acting carelessly, who negligently ignores the content of a foreign law, may never count on the court’s leniencyforeign law, may never count on the court’s leniency

Instutition quite rarely met in the legal practice, no reported case law in Instutition quite rarely met in the legal practice, no reported case law in PolandPoland

Remaining IssuesRemaining IssuesConnected with PersonalityConnected with Personality

IncapacitationIncapacitation

Incapacitation (Article 13) – limitation or loss of legal capacity of a natural Incapacitation (Article 13) – limitation or loss of legal capacity of a natural person due to his or her illness, age, or any other such circumstanceperson due to his or her illness, age, or any other such circumstance

The application of Polish The application of Polish lex fori lex fori depends on the jurisdiction and instigation depends on the jurisdiction and instigation of proceedings before the Polish court, so paragraph 1 should be applied of proceedings before the Polish court, so paragraph 1 should be applied quite exceptionallyquite exceptionally

Protective measures: guardianship and/or custody, governed by the law Protective measures: guardianship and/or custody, governed by the law specified by Article 60 (the same law applies)specified by Article 60 (the same law applies)

2008 Poland signed (has not ratified yet) the 2000 Hague Convention on 2008 Poland signed (has not ratified yet) the 2000 Hague Convention on the International Protection of Adults, which would replace the rule of the International Protection of Adults, which would replace the rule of Article 13Article 13

It is probable that Poland will not have to do it – the EU as the whole It is probable that Poland will not have to do it – the EU as the whole considers adoption of this Conventionconsiders adoption of this Convention

'Artificial End''Artificial End'of Natural Personalityof Natural Personality

Article 14 PILA refers to the Article 14 PILA refers to the presumption presumption or or declaration declaration of of death, both methods of establishing the fact or the time of the death, both methods of establishing the fact or the time of the death if it is not certaindeath if it is not certain

Paragraph (2) is another exception from the rule that the law of Paragraph (2) is another exception from the rule that the law of nationality governs the end of the person’s legal existence and nationality governs the end of the person’s legal existence and capacity to actcapacity to act

The The ordinary presumptions of death ordinary presumptions of death (known to the (known to the common common lawlaw) are always subject to the law of nationality of the person ) are always subject to the law of nationality of the person presumed to be deadpresumed to be dead

The application of the court’s own law (The application of the court’s own law (lex forilex fori), as referred to in ), as referred to in Article 14(2) PILA, Article 14(2) PILA, depends on jurisdictiondepends on jurisdiction (see Article 1106 CCP: (see Article 1106 CCP: the foreigner's place of domicile or habitual residence in the RP the foreigner's place of domicile or habitual residence in the RP shall be sufficient)shall be sufficient)

Name of a Natural PersonName of a Natural Person

Under Article 15(1) PILA 2011, national law of a person Under Article 15(1) PILA 2011, national law of a person concerned applies to his or her concerned applies to his or her name and surnamename and surname

A special provision concerning the aquiring and the change A special provision concerning the aquiring and the change of the name and surname (Article 15(2) PILA 2011):of the name and surname (Article 15(2) PILA 2011): A voluntary change (due to the wish of a person concerned) A voluntary change (due to the wish of a person concerned)

shall be subject to one’s shall be subject to one’s national national lawlaw Acquiring or change caused by a certain legal fact (i.e. birth, Acquiring or change caused by a certain legal fact (i.e. birth,

adoption, marriage) shall be governed by the adoption, marriage) shall be governed by the lex causae lex causae (the (the law governing this fact)law governing this fact)

A choice of the name by the spouses entering into marriage A choice of the name by the spouses entering into marriage shall be subject to their shall be subject to their respective personal lawsrespective personal laws

SC dec. 8.8.2003, V CK 6/02, OSNC 2004/7-8/11: SC dec. 8.8.2003, V CK 6/02, OSNC 2004/7-8/11: in in spite of the declaration that the name as such is subject to spite of the declaration that the name as such is subject to the national law of the person bearing it, the law applicable the national law of the person bearing it, the law applicable to spouses’ surname shall be subject to the law governing to spouses’ surname shall be subject to the law governing effects of marriageeffects of marriage

Rights of PersonalityRights of Personality(Article 16 PILA)(Article 16 PILA)

Institutions protecting the person's dignity and fameInstitutions protecting the person's dignity and fame Personality means more or lessPersonality means more or less

One’s intimate and private life (e.g. thoughts, feelings, personal relationships, One’s intimate and private life (e.g. thoughts, feelings, personal relationships, sexual life)sexual life)

Honour and personal reputationHonour and personal reputation Personal imagePersonal image

Combined approachCombined approach Existence and the content Existence and the content of such rights as a part of one’s personal law, the of such rights as a part of one’s personal law, the

applicable law is the law of one’s nationality (lex patriae, cf. Article 24(1) Italian applicable law is the law of one’s nationality (lex patriae, cf. Article 24(1) Italian PILA: PILA: L’esistenza ed il contenutoL’esistenza ed il contenuto dei diritti della personalità sono regolati dalla dei diritti della personalità sono regolati dalla legge nazionale del soggettolegge nazionale del soggetto = The existence and the content of the rights of = The existence and the content of the rights of personality shall be subject to the national law of the interested person)personality shall be subject to the national law of the interested person)

Means of protection of such rights Means of protection of such rights (e.g. the claim for material or immaterial (e.g. the claim for material or immaterial damages, giving up violations, making an apology etc.) subject to the law damages, giving up violations, making an apology etc.) subject to the law designated by Article 16(2) and (3) PILAdesignated by Article 16(2) and (3) PILA

Problematic CharacterizationProblematic Characterizationof Personality Rightsof Personality Rights

The decision of the Polish lawgiver deserves some criticism:The decision of the Polish lawgiver deserves some criticism: The international protection of rights of personality is clearly the The international protection of rights of personality is clearly the

matter of non-contractual obligationsmatter of non-contractual obligations The declaration of existence and content of such rights hardly ever The declaration of existence and content of such rights hardly ever

constitutes the independent subject matter of the civil caseconstitutes the independent subject matter of the civil case The personality is internationally protected due to the universal The personality is internationally protected due to the universal

recognition of human rightsrecognition of human rights Interesting case law:Interesting case law:

SC judg. 28.9.2011, I CSK 743/10, OSNC [SCRep.-Civ.] SC judg. 28.9.2011, I CSK 743/10, OSNC [SCRep.-Civ.] 2012/3/40: 2012/3/40: A defamatory press article in the Internet suggesting that A defamatory press article in the Internet suggesting that three Libyans are ‘suspect’ and ‘unwellcome’, the Supreme Court three Libyans are ‘suspect’ and ‘unwellcome’, the Supreme Court found for the applicants applying only the Polish law and the European found for the applicants applying only the Polish law and the European Convention of Human Rights (Article 8)Convention of Human Rights (Article 8)

Thanks for your attention!Thanks for your attention!