Droit international général

The XXV Annual Conference of the Italian Society of International and EU Law (ISIL) on Shared Values and Commons in the International and Supranational Dimension will be hosted at the University of Salento on 18-19 June 2020. The Conference will consist of three sessions on the following topics:

-The respect and promotion of the democratic values and of the rule of law in the international and European legal orders;

-The mandatory principle of environmental conservation, with special emphasis on sustainability;

-The threats to human rights due to the increasing role played by new technologies in contemporary societies.

Papers are accepted for presentation in Italian, English or French. Abstracts (250 words max) and a short bio may be submitted to SIDI2020@unisalento.it by 25 January 2020. The selection process will be completed by the end of February 2020.

More information on this call for papers is available here.

Saloni Khanderia & David Stewart published recently on the Hague Judgments Convention in the following reviews:

• Saloni Khanderia, The Hague Conference on Private International Law’s Proposed Draft Text on the Recognition and Enforcement of Foreign Judgments: Should South Africa Endorse it?, Journal of African Law (Vol. 63, Issue 3/2019)
• David Stewart, The Hague Conference Adopts a New Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, American Journal of International Law (Vol. 113, Issue 4/2019)

In C‑212/18 Prato Nevoso Termo Energy the CJEU held on the not always straightforward concurrent application of the Waste Framework Directive (WFD) 98/2008 and the various Directives encouraging the uptake of renewable energy. It referred i.a. to the circular economy and to precaution.

On the face of it the economic and environmental benefits of the case may seem straightforward. Prato Nevoso operates a power plant for the production of thermal energy and electricity. It applied for authorisation to replace methane as the power source for its plant with a bioliquid, in this case a vegetable oil produced by ALSO Srl, derived from the collection and chemical treatment of used cooking oils, residues from the refining of vegetable oils and residues from the washing of the tanks in which those oils were stored. ALSO has a permit to market that oil as an ‘end-of-waste’ product within the meaning of relevant Italian law , for use in connection with the production of biodiesel, on condition that it has the physico-chemical characteristics indicated in that permit and that the commercial documents indicate ‘produced from recovered waste for use in biodiesel production’.

Prato Nevoso was refused the requested authorisation on the ground that the vegetable oil was not included in a relevant Italian list, which sets out the categories of biomass fuels that can be used in an installation producing atmospheric emissions without having to comply with the rules on the energy recovery of waste. The only vegetable oils in those categories are those from dedicated crops or produced by means of exclusively mechanical processes.

The argument subsequently brought was that the refusal violates Article 6 WFD’s rules on end-of-waste, and Article 13 of the RES Directive 2009/28. That Article essentially obliges the Member States to design administrative procedures in such a way as to support the roll-out of renewable energy.

The CJEU first of all refers to its finding in Tallina Vesi that Article 6(4) of Directive 2008/98 does not, in principle, allow a waste holder to demand the recognition of end-of-waste (EOW) status by the competent authority of the Member State or by a court of that Member State. MSs have a lot of flexibility in administering EOW in the absence of European standards. That the use of a substance derived from waste as a fuel in a plant producing atmospheric emissions is subject to the national legislation on energy recovery from waste, is therefore entirely possible (at 39). A13 of the RES Directive has no impact on that reality: that Article does not concern the regulatory procedures for the adoption of end-of-waste status criteria.

Nevertheless, the MS’ implementation of the RES Directives must not endanger the attainment of the WFD, including encouragement of the circular economy etc. and likewise, the WFD’s waste hierarchy has an impact on the RES’ objectives. A manifest error of assessment in relation to the non-compliance with the conditions set out in Article 6(1) of Directive 2008/98 could be found to be a MS violation of the Directive.

At 43: ‘It is necessary, in this case, to examine whether the Member State could, without making such an error, consider that it has not been demonstrated that the use of the vegetable oil at issue in the main proceedings, in such circumstances, allows the conclusion that the conditions laid down in that provision are met and, in particular, that that use is devoid of any possible adverse impact on the environment and human health.’ At 44:  ‘It is for the national court, which alone has jurisdiction to establish and assess the facts, to determine whether that is the case in the main proceedings and, in particular, to verify that the non-inclusion of those vegetable oils in the list of authorised fuels results from a justified application of the precautionary principle.’

At 45 ff the CJEU does give a number of indications to the national judge, suggesting that no such infringement of the precautionary principle has occurred (including the reality that specific treatment and specific uses envisaged of the waste streams, has an impact on their environmental and public health safety). At 57: It must be considered that the existence of a certain degree of scientific uncertainty regarding the environmental risks associated with a substance — such as the oils at issue in the main proceedings — ceasing to have waste status, may lead a Member State, taking into account the precautionary principle, to decide not to include that substance on the list of authorised fuels’.

An important judgment.

Geert.

Handbook of EU Waste law, 2nd ed. 2015, OUP, 1.166 ff and 1.189 ff.

Written by Jack Wass, Stout Street Chambers, New Zealand

On 5 December 2019, the New Zealand Court of Appeal released a significant decision on jurisdiction over land in cross-border cases.

In Christie v Foster [2019] NZCA 623, the Court overturned the High Court’s decision that the Moçambique rule (named after British South Africa Co v Companhia de Moçambique [1893] AC 602) required that a dispute over New Zealand land be heard in New Zealand (for a case note on the High Court’s decision, see here). The plaintiff sought to reverse her late mother’s decision to sever their joint tenancy, the effect of which was to deprive the plaintiff of the right to inherit her mother’s share by survivorship. The Court found that the in personam exception to the Moçambique rule applied, since the crux of the plaintiff’s claim was a complaint of undue influence against her sister (for procuring their mother to sever the tenancy), and because any claim in rem arising out of the severance was precluded by New Zealand’s rules on indefensibility of title. As a consequence the Court declined jurisdiction and referred the whole case to Ireland, which was otherwise the appropriate forum.

In the course of its decision, the Court resolved a number of important points of law, some of which had not been addressed in any Commonwealth decisions:

First, it resolved a dispute that had arisen between High Court authorities about the scope of the in personam exception, resolving it in favour of a broad interpretation. In particular, the Court disagreed with High Court authority (Burt v Yiannakis [2015] NZHC 1174) that suggested an institutional constructive trust claim was in rem and thus outside the exception.

Second, it held (reversing the High Court) that the Moçambique rule does not have reflexive effect. The rule prevents the New Zealand court from taking jurisdiction over claims in rem involving foreign land out of comity to the foreign court, but does not require the New Zealand court to take jurisdiction over cases involving New Zealand land. Although New Zealand will often be the appropriate forum for a case involving New Zealand land, the court is free to send it overseas if the circumstances require, even if the claim asserts legal title in rem.

Third, the Court confirmed that there is a second exception to the Moçambique rule – where the claim arises incidentally in the administration of an estate. Dicey, Morris and Collins had suggested the existence of this exception for many editions, but it had to be inferred from earlier cases without being properly articulated. The Court expressly found such an exception to exist and that it would have applied in this case.

In the course of its analysis, the Court expressed sympathy for the arguments in favour of abolishing the Moçambique rule entirely. Although the Court did not go that far, it reinforced a trend of the courts restricting the application of the rule and suggested that in the right case, the courts might be prepared to abandon it entirely.

In A v OOO “Insurance Company Chubb” [2019] EWHC 2729 (Comm), Carr J refused an ex parte application for interim relief seeking (i.a.) anti-suit and discontinuation of Russian proceedings, pro agreed arbitration in London. Defendants are domiciled at Russia, France and Switserland. At 33 ff Carr J lists five reasons for refusal, despite as readers will know the English courts’ general willingness to assist arbitration. Three of her reasons jump out: the lack of full and frank disclosure (ia relating to contractual provisions); the lack of immediate urgency requiring ex parte application; and some of the measures sought being more than just interim measures (assessment of that nature required evidence by a Russian law expert on the further continuation, if any, of Russian proceedings following anti-suit).

A good reminder that these applications are neither straightforward nor should be taken for granted.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.1.

On 12 and 13 December 2019, the University of Ljubljana (Slovenia) is the destination of many experts and academics of different national and professional backgrounds who will join in the discussion about various legal aspects of the family property in cross-border situations in EU. The event titled “Best Practices in European Family and Succession Law” is the second public event within the Justice co-funded project PSEFS which stands for “Personalised Solution in Family and Succession Law”. Here is the programme of the event.

The news from the project and more are available at the PSEFS web page.

[2019] EWHC 3196 (Ch) Kinsella et al v Emasan et al is not quite as extensive an analysis on choice of court as Etihad Airways v Prof Dr Lucas Flöther which I review here.  Nevertheless the required ‘good arguable case’ standard is again responsible for the extensive discussion of the issue.

Issues are similar as under A25 BIa – in the case at issue it is the Lugano Convention (Article 23) that is engaged. Teverson M’s analysis is very much a factual, contractual one: the basis of Emasan’s (defendant, domiciled at Switzerland) jurisdiction challenge is that: it is domiciled in Switzerland; an alleged 2002 Agreement was an oral agreement which was not subject to any jurisdiction agreement; that alleged 2002 Agreement was not varied by 2006 and 2007 Deeds in such a way as to bring claims for breaches of its alleged terms within the ambit of the jurisdiction clauses contained in those later Deeds, but was superseded by them; there is no other basis upon which the jurisdiction of the English Courts is established in relation to claims based on the 2002 Agreement.

Whether choice of court was made for the 2002 agreement depended on whether A23 Lugano’s conditions were fulfilled that the agreement be made in writing or evidenced in writing; or in a form which accords with practices which the parties have established between themselves (the lex mercatoria gateway was not relevant at issue).

Every one of the written agreements made to give effect to claimant’s entitlement under the original, oral 2002 Agreement included a jurisdiction clause recognising the jurisdiction of the English Courts. A great deal of emphasis was placed on witness statements. At 101 Master Teverson holds that the agreement on jurisdiction under the 2002 agreement can properly in the circumstances of this case be regarded as evidenced by the jurisdiction clauses in the 2006 and 2007 Deeds.

Geert.

(Handbook of) European Private international law, 2nd ed. 2016, Ch.2, Heading 2.2.9

We are happy to officially announce that the European Association of Private International Law (EAPIL) has recently been founded!

An independent and non-partisan organization registered as a non-profit association under the laws of Luxembourg, EAPIL aims to promote the study and development of private international law by fostering the cooperation of academics and practitioners  as well as the exchange of information on the sources of the discipline, its scholarship and practice.

To learn more about EAPIL – and to become a member – please check out the Association’s website.

To learn about the EAPIL founding conference, to be held at the University of Aarhus (Denmark) in May 2020, please visit the official conference website.

The CJEU on Thursday last week largely confirmed Saugmansdgaard ØE’s Opinion which I reviewed here, in C-421/18 Dinant Bar v maître JN, however with different emphasis than the AG. The Court insists that in accordance with Belgian law, registration with the bar association constitutes a legal obligation to which practising as a professional lawyer is subject, and that individuals wishing to practise that profession must be a member of a bar association and must comply with decisions taken by that association, notably as regards the payment of fees.

Disputes concerning those fees then are not civil and commercial and therefore not covered by Brussels I a, unless,

‘in so far as those fees constitute consideration for services freely consented to, including insurance services, which that bar association may have negotiated with a third party with a view to obtaining more advantageous terms for its lawyer members, the obligation to pay those fees would be of a contractual nature and, therefore, an action initiated with a view to ensuring that that obligation is performed would come within the scope of Article 7(1)(a) of Regulation No 1215/2012. It is for the referring court to ascertain whether that is the case in the dispute in the main proceedings’.

The AG had emphasised the factual circumstances of the case, in which the Bar had lowered the fees for maître JN to the very insurance premium only. In most cases of course Bar fees disputes probably will be about more than that and the Court’s approach may lead to split (non)applicability of Brussels Ia, in which payments for services freely consented to will have to be distinguished from those due in return for public service obligations. (Bar councils may wish to split these sums in their yearly invoice).

Geert.

Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.2.2

[2019] EWHC 3128 (Comm) Lotus v Marcassus Sport Sarl concerns the application of Articles 29-30 Brussels Ia – the lis alibi pendens rules.

Lotus, an English company, is a well-known manufacturer of cars. By a series of four written contracts entered in 2016, Lotus appointed Marcassus, a French company in the business of distributing sports cars, as a non-exclusive dealer and authorised repairer of Lotus cars in Toulouse and Bordeaux. Each of these contracts was governed by English law and provided for the non-exclusive jurisdiction of the English courts.

In September 2018 Lotus gave notice terminating one of the four agreements. It is common ground that the parties’ overall relationship thereafter terminated. Marcassus then brought proceedings in the Toulouse Commercial Court, claiming loss of profits and bonuses and seeking to enforce contractual penalties. A summons was filed with the Hussier de Justice on 21 December 2018 for onward transmission to the Foreign Process Section of the High Court for service on Lotus, summoning Lotus to appear in Toulouse on 26 March 2019. Marcassus’ claim was filed at the Toulouse Commercial Court on 7 January 2019. Lotus did indeed appear at the hearing on 26 March 2019 and has served a defence disputing the claim, but not claiming in respect of or relying on Marcassus’ non-payment of the 2018 invoices. Lotus offered to undertake not to make such a claim in the Toulouse proceedings hereafter, provided of course that these proceedings were permitted to continue. Meanwhile, on 13 March 2019, Lotus issued these proceedings claiming the amounts due under the 2018 invoices. Marcassus was served with the claim form on 24 April 2019.

Phillips J first of all (at 15 ff ) deals with the issue of which course was ‘seized’ first (compare MB v TB). Lotus contended that Marcassus’ application should fall at the first hurdle because Marcassus has not demonstrated when, if at all, the summons in the Toulouse proceedings was received by the “authority responsible for service” of that summons for the purposes of A32 Brussels Ia, and so cannot establish that the Toulouse court was seised before the English court was seised by the issue of the claim form on 13 March 2019. Marcassus’ case is that the relevant authority is the Hussier de Justice, it being accepted that he received the summons on 21 December 2018. But, in the alternative, if the relevant authority is the Foreign Process Section of the High Court (as Lotus contends), Marcassus invites the inference that it was received by that authority shortly after that date, but in any event before 13 March 2019. Marcassus points to the fact that Lotus appeared before the Toulouse court on 26 March 2019 and has taken no point on service in those proceedings.

Phillips J decides not to hold on this point given that he rejects Article 29 lis alibi pendens anyway – however he indicates he does not find Lotus’ assertion very attractive.

On Article 29, Marcassus accepted that the proceedings, whilst between the same parties, do not presently involve the same “cause of action” however argued that the court could take into account the likely future shape of the proceedings, namely, that Marcassus would seek to set-off and counterclaim the very same claims it has brought in Toulouse. This approach however cannot fly per CJEU C-111/01 Gantner, at 31: in order to determine whether there is lis pendens in relation to two disputes, account cannot be taken of the defence submissions, whatever their nature, and in particular of defence submissions alleging set-off, on which a defendant might subsequently rely when the court is definitively seised in accordance with its national law” and the Article 29 route was duly dismissed.

On Article 30, the claims were found not to be ‘related’ on grounds of Lotus having secured an exclusion of set-off in the contract (Phillips J spent some time debating whether the contract did include such clear exclusion of set-off). This clause effectively keeps the claims on various invoices at arm’s length.

Even had Article 30’s conditions been met, the case would not have been stayed on grounds that the judge (unlike in A29 cases) has discretion whether to do so. Referring to The Alexandros T, at 44: ‘it is obvious that these proceedings should be permitted to continue so that the question of whether clause 29.2 is an effective no set-off clause is determined in this jurisdiction. That issue. (sic) which does not arise in the Toulouse proceedings (limiting the extent of “relatedness”), is an issue of the interpretation of an English law contract (establishing close proximity with this jurisdiction) and can be determined speedily in a summary judgment application (indicating that the stage proceedings have reached is not a factor against this jurisdiction). Further, the parties have expressly agreed to the jurisdiction of the English courts, albeit on a non-exclusive basis.

Application dismissed.

Geert.

(Handbook of) European Private International Law – 2nd ed. 2016, Chapter 2, Heading 2.2.14.5

The case Monasky v. Taglieri will be argued on Wednesday 11 December 2019 at 10:00 a.m. before the US Supreme Court. As you may remember, this case deals with the determination of habitual residence under the HCCH Child Abduction Convention and may be pivotal in resolving the split in the US circuit courts. Our previous posts on this case are available here and here.

You will be able to read the transcript of the oral arguments this Wednesday and listen to the audio recording of the oral arguments soon thereafter.

As indicated on the US Supreme Court website, “The transcripts of oral arguments are posted on this website on the same day an argument is heard by the Court. Same-day transcripts are considered official but subject to final review. The audio recordings of all oral arguments heard by the Supreme Court of the United States are available to the public at the end of each argument week.”

In [2019] EWHC 3172 (QB) Rahmatullah and Ali v Ministry of Defence and the Foreign and Commonwealth Office claimants argue on the basis of the torts of negligence and misfeasance in public office. They are Pakistani nationals both of whom allege that they were captured by British forces in Iraq in February 2004. They contend that they were subsequently handed over to United States’ control and, thereafter, taken to Afghanistan where they were subjected to prolonged detention, torture and mistreatment.

At issue in this civil case is whether the English PIL rule of locus damni (for personal injury cases) needs to be displaced in favour of English law, by virtue of the exceptions to this rule including, all else failing, ordre public. (For the relevant text, see the judgment).

Rome I does not apply given the case clearly is one of acta iure imperii. Note that this does not, in England and Wales, displace the residual rules of the Private International Law (Miscellaneous Provisions) Act 1995.

Turner J keeps the discussion very to the point, holding that there is no reason to displace the general rule: the law of Iraq applies to the claims prior to the claimants’ rendition from Iraq to Afghanistan and that of Afghanistan thereafter. His clear application of the precedents is much enjoyable.

One particularly interesting point is raised at 34:

The claimants make the further point that transferring a detainee from one country to another in breach of Article 49 [of the Fourth Geneva Convention, GAVC] would legitimise forum shopping by illegal rendition. The defendants accepted during the course of oral submissions that circumstances could arise in which this was a legitimate concern where, for example, a detainee had been relocated in a rogue state selected for its lack of adequate legal protection for those within its geographical and jurisdictional boundaries. However, in this case there is no evidence to suggest that any consideration of the putative advantages of the application of Afghan jurisprudence lay behind the rendition decision or indeed to the effect that Afghan law would provide, as a matter of fact, a particularly suitable environment within which to achieve any such darker purpose.

Of note is also, at 29, claimants’

‘point that those in senior positions who are to be held accountable for the alleged failures under the return claim were based in England and were acting (or failing to act) in the exercise of state authority.’

An argument which, Turner J finds, has been found to be relevant in the authorities, however not striking with sufficient force in casu to meet the very high burden of proof for displacing the standard rule.

Geert.

A collection of essays titled Investment Arbitration in Central and Eastern Europe, edited by Csongor istván Nagy (University of Szeged, Hungary), has recently been published by Edward Elgar. See here for more information on the book, its contents and contributors.

As noted in the publisher’s blurb, Central and Eastern Europe (CEE) appears to be the testing ground for investment arbitration in Europe: the majority of the cases against EU Member States are proceedings launched against countries from the region. Despite their relevance, CEE experiences have not been analysed in a comprehensive manner. The book aims to fill this gap.

The introductory chapter, written by the editor, is titled Intra-EU BITs after Achmea: A Cross-Cutting Issue and can me downloaded via SSRN.

As noted earlier on this blog, we will celebrate the forthcoming establishment of the European Association of Private International Law (EAPIL) at a conference to  be held at Aarhus University, Denmark, from 14 to 16 May 2020.

The conference will bring together academics and practitioners from all over Europe and provide a unique opportunity to talk and think about European Private International Law in a pan-European fashion. Topics to be discussed will include the effects and the challenges of digitalization, the problems of fragmentation as well as other challenges the discipline is currently facing.

Early bird registration is still possible via the conference website. For questions, please get in touch with the local organizer, Morten M. Fogt (mmf@law.au.dk).

Stay tuned for more Information about the European Association of Private International Law (EAPIL) including information about how to join!

An essentially Dutch group employs English restructuring law and has the resulting restructuring recognised in Canada. Need one say more to show that regulatory competition is alive and well and that the UK, England in particular need not fear a halt to restructuring forum shopping post Brexit.

Blakes first alerted me to the case, the Initial recognition order 2019 ONSC 5774 is here (I have not yet managed to locate the final order). Insolvency trustee PWC have a most informative document portal here. See also the Jones Day summary of the arrangements here. The main issue of contention was the so-called third party release in favour of Syncreon Canada which could have bumped into ordre public hurdles in Ontario as these clearly have an impact on the security of underlying debt. The way in which the proceeding are conducted (fair, transparent, with due consideration of minority holders etc.) clearly have an impact on this exercise.

Geert.

(Handbook of) EU Private International Law, 2nd edition 2016, Chapter 2, Chapter 5.

In November 2019, there were a couple of new signatory States to the HCCH Conventions. New Zealand signed the HCCH Child Support Convention and Austria did the same with respect to the HCCH Service Convention.

These HCCH Conventions are not yet in force for New Zealand and Austria as both States would need to ratify them pursuant to the relevant articles under each Convention. Nevertheless, by signing the Conventions both States have acquired the “obligation not to defeat the object and purpose of a treaty prior to its entry into force” in accordance with Article 18 of the Vienna Convention on the Law of Treaties.

With regard to Austria, and given the external competence of the European Union in these matters, it is important to note that the signature was made pursuant to the Council Decision (EU) 2016/414 of 10 March 2016 authorising the Republic of Austria to sign and ratify, and Malta to accede to, the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, in the interest of the European Union. Interestingly, this decision requires that the ratification to the Service Convention be made by 31 December 2017 at the latest. I am unaware of any updates with respect to this decision.

The HCCH news items are available here (New Zealand) and here (Austria).

In [2019] EWHC 2766 (Ch) Vestel Elektronik v HEVC Advance and Koninklijke Philips NV, Hacon J found no jurisdiction in a stand-alone competition law damages case (no finding of infringement yet; claim is one of abuse of dominant position). He rejected the existence of jurisdiction against Philips NV (of The Netherlands) on the basis that no damage existing or potential could be shown grounding Article 7(2) Brussels Ia tortious Jurisdiction. Against the Delaware defendant, the relevant CPR rules applied per Four Seasons v Brownlie did not lead to jurisdiction either.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.12.1

On 13-14 February 2020, ERA (Academy of European Law) will host a Seminar in Strasbourg to present the major judgments related to family matters issued by the European Court of Human Rights (ECtHR) in 2019. The focus of the presentations will be mainly on:

• Children in European migration law
• Parental rights, pre-adoption foster care and adoption
• Parental child abduction
• Reproductive rights and surrogacy
• LGBTQI rights and gender identity

The Seminar, organised by Dr Angelika Fuchs, will provide participants with a detailed understanding of this recent jurisprudence. The focus will be placed, in particular, on Article 8 ECHR (respect for private and family life) and the analysis of the case law of the ECtHR will tackle the legal implications but it will also extend to social, emotional and biological factors.

The opening speech will be given by Ksenija Turkovi?, Judge at the European Court of Human Rights in Strasbourg.

More information on the event and on registration is available here.

This event is organised with the support of the Erasmus+ programme of the European Union

Hot on the heels of yesterday’s post on e-collars, a short note on yet another trade and animal welfare /biodiversity case. In [2019] EWHC 2951 (Admin) Friends of Antique Cultural Treasures v Secretary of State for the environment, food and rural affairs, Justice Jay (‘Jay J’ even though correct might sound a bit too intimate) upheld the UK’s planned ban on ivory trade, stricter than anything in place elsewhere. As a general rule, the Act interdicts the sale of antique worked ivory, that is to say pre-1947 artefacts, unless one of limited exemptions is applicable.

The discussion engages CITES, pre-emption /exhaustion by harmonised EU law, the environmental guarantee of Article 193 TFEU (albeit not, oddly, the issue of notification to the EC), Article 34 TFEU, and A1P1 ECHR.

On uncertainty, Justice Jay refers to the precautionary principle: at 155: ‘we are in the realm of scientific and evidentiary uncertainty, and the need for a high level of protection. §3.1 of the Commission’s 2017 Guidance makes that explicit. Although the evidence bearing on the issues of indirect causation and demand in Far Eastern markets may be uncertain, statistically questionable, impressionistic and often anecdotal, I consider that these factors do not preclude the taking of bold and robust action in the light of the precautionary principle.’

Rosalind English has analysis here and refers even to Edmund de Waal’s novel The Hare with the Amber Eyes which has been on my reading list after my wife recommended it – this is a good reminder.

Geert.

EU environmental law (with Leonie Reins), Edward Elgar, 2018, p.28 ff., and Chapter 17 (p.308 ff).

I tweeted the judgment the day it was issued, apologies for late succinct review. I wrote a few years back on the legality of use restrictions on goods lawfully marketed in other Member States, and see also my brief review of Amsterdam’s booze bikes here. In [2019] EWHC 2813 (Admin) The Electronic Collar Manufacturers Association v Secretary of State for Environment, Food and Rural Affairs, Morris J upheld the UK Government’s ban on e-collars (a hand-held remote-controlled (not automated: a distinction that matters as Rosalind English points out) e-collar device for cats and dogs, used particularly in dogs for training purposes).

His analysis engages all the right issues in discussing the lawfulness of a ban at 204 ff under Article 34 TFEU (including consultation and commissioned research issues and of course proportionality), less focused than I would have expected perhaps on the fact that these items are lawfully marketed elsewhere in the EU, and indeed A1P1 (Article 1, first Protocol) ECHR. The remainder of the judgment discusses internal UK judicial review. An excellent primer on trade and animal welfare under EU and ECHR law.

Geert.