Droit international général

Another overdue post following up on earlier Twitter flag. In On the Beach Ltd v Ryanair UK Ltd & Anor [2022] EWHC 861 (Ch), a competition law ‘follow-on damages suit, Nugee LJ considered in particular whether in assessing the relatedness of proceedings, the judge can indeed may have to take into account what is likely to be pleaded by way of defence in both actions. He held [52] he can:

the better view is that where an application for a stay is made at a stage when the defence to an action has not yet been pleaded, the Court can have regard to the substance of a defence that it can confidently predict is likely to be pleaded.

However [53] ff on the facts he then held that the most likely outcome of that defence in the Irish proceedings is that these will be dismissed. This I believe is a form of judicial clairvoyance which goes too far, even in the wide remit which Article 30 gives to the judge assessing relatedness and the appropriateness of an Article 30 stay.

Geert.

EU Private International Law, 3rd ed. 2021, 2.521 ff.

Jurisdiction, competition law 'follow-on' damages
Stay on the basis of A30 Brussels Ia 'related actions' refused.
Re taking into account of possible defences in the Irish proceedings.

On the Beach Ltd v Ryanair UK Ltd & Anor [2022] EWHC 861 (Ch)https://t.co/SR85hPU1X9

— Geert Van Calster (@GAVClaw) April 19, 2022

Medina AG’s end June Opinion in C-238/21 Porr Bau GmbH v Bezirkshauptmannschaft Graz-Umgebung will delight waste lawyers for the case once again evolves around the definition of ‘waste’ as applied to excavated soil. Statute to be interpreted is the WFD or the Waste Framework Directive 2008/98. CJEU SAPPI is a recent judgment  often referred to by the AG.

Porr Bau, the applicant in the main proceedings, is a construction undertaking established in Austria. In July 2015, certain local farmers asked it to supply them, against payment, with excavated soil and to distribute it over their properties. The purpose of the farmers’ request was to level their agricultural land and improve their cultivation areas, thereby increasing yields. Porr Bau applied to the relevant authorities for a statement that the soil was not to be considered waste so as it could avoid a number of taxes. That authority disagreed and also held that the soil, which it considered to be waste, had not yet reached end-of-waste status.

The AG (36) opines that it should not be assumed that all excavated soil by a construction undertaking is by default to be discarded, and that it is difficult to conclude that, under circumstances such as those of the present case, the intention of a construction undertaking is to discard excavated soil that has been carefully selected, subjected to a quality control and supplied as uncontaminated top-quality material in order to attend to a specific request from local operators in need of that material. He also suggests, less convincingly in my view, (38 ff) that such soil may be considered a by-product of the construction sector. 

Should he not be followed on the waste definition issue, the AG suggests and he is right in my view that national law must not deny end-of-waste status until the holder fulfils certain formal requirements with no environmental relevance such as record-keeping and documentation obligations.

Geert.

EU Waste law, 2nd ed 2015, 1.20 ff.

Opinion Medina AG yday in a case involving uncontaminated excavated soil, supplied to farmers for land adaptation and development
National end of waste criteria, by-products as opposed to waste

C‑238/21 Porr Bau GmbH v Bezirkshauptmannschaft Graz-Umgebunghttps://t.co/Akl1PFYCrz

— Geert Van Calster (@GAVClaw) June 22, 2022

Earlier this month (13 July 2022), Senegal acceded to the Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents, which will enter into force for Senegal on 23 March 2023.
Source: https://www.hcch.net/en/news-archive/details/?varevent=868

This one is overdue for review on the blog. In Van Heck v Giambrone & Partners Studio Legale Associato [2022] EWHC 1098 (QB) the High Court confirmed in appeal the refusal of a stay on Article 29 Brussels Ia lis pendens grounds in a case concerning a barrister’s claim for professional fees. The defendant in the English proceedings had initiated an Italian claim, prior to the English claim, in which it denied liability for the fees: a classic mirror claim. The court of first instance in Palermo had denied it had jurisdiction. That judgment went to appeal, where it is pending however the first instance, sole judge in England held that the jurisdictional issue had been conclusively dealt with and was not in appeal. Hence that no ‘lis’ was still pending for Article 29 to apply.

Soole J [75] held that the critical question for determination was whether the proceedings in the court first seised, i.e. the Palermo Claim, had been ‘finally determined in relation to its jurisdiction’. Whether or not that is the case, in the absence of a European harmonised approach to whether the national courts are still seized of the jurisdictional issue, is a matter of national procedural law [80]] which the E&W judge is to assess as a matter of foreign law hence fact, to be proven by the parties. That finding is a factual issue which the judge held upon with the help of relevant expert and  is not within the appeal.

Stay therefore dismissed.

Geert.

Appeal dismissed, confirmation of refusal to stay E&W proceedings on barrister's fee claim in favour of proceedings in Palermo (A29 BIa, lis pendens)

Van Heck v Giambrone & Partners Studio Legale Associato [2022] EWHC 1098 (QB)https://t.co/Ngi3aQX8lZ

— Geert Van Calster (@GAVClaw) May 13, 2022

In their most recent article on A Hague Convention on Parallel Proceedings, 63 HARVARD INTERNATIONAL LAW JOURNAL ONLINE 1 (2022), Ron Brand and Paul Herrup argued that the Hague Conference on Private International Law should not undertake a project to require or prohibit exercise of original jurisdiction in national courts. Rather, the goal of current efforts should be to improve the concentration of parallel litigation in a “better forum,” in order to achieve efficient and complete resolution of disputes in transnational litigation. The Hague Conference is now taking this path. As the Experts Group and Working Group have moved forward on the Parallel Proceedings Convention project, however, there has been difficulty in leaving behind existing approaches that have not led to acceptable solutions. In particular, the work has failed to look far beyond the traditional civil law lis alibi pendens and common law forum non conveniens approaches to parallel litigation, or a focus on questions of jurisdiction.

In their new article, available here, the authors argue that the time is ripe for fresh thinking that reflects Twenty-first century realities in finding a workable approach to parallel litigation. They build on the previous article by discussing a possible architecture and some of the critical features of a parallel proceedings convention geared to moving litigation to the better forum.

In Deane v Barker & Ors [2022] EWHC 1523 (QB) concerns the frequent and upsetting scenario of falls in rented holiday accommodation. Claimant is habitually resident in England, proceedings were issued in December 2019, and subject therefore to Brussels Ia. Any jurisdictional challenge would have been tricky (but not impossible, seeing as 2 of the defendants are based in Spain; one of them one presumes is sued in E&W on the basis of BIa’s insurance title, the other (the Spanish company which manages the property) on the basis of the anchor mechanism or perhaps forum contractus). At any rate, there is no jurisdictional objection.

The owners of the villa, like the claimant, are domiciled in England and they are being sued on the tort of negligence which, per A4(2) Rome II, makes English law in principle the applicable law to most of the claim (there is also an additional contractual claim against the property manager, said to be subject to Spanish law per the cascade of A4 Rome I; and a claim in tort subject to Spanish law per A4(1) ).

Issues such as the standard of care and breach of duty viz the main claim will be informed by whether the staircase complied with Spanish law safety standards – CTE: that is the result of A17 Rome II. The issues for this preliminary discussion, are [21]

Issue 1 Whether the works conducted at the villa and/or on the staircase were refurbishment works (such as to trigger the application of the CTE) or merely maintenance works (such as not to trigger the application of the CTE)? Issue 2 Whether the villa (and the staircase within it) was for general or public use (such that the material provisions of the CTE would presumptively apply) or for restricted use (such that the same provisions would not apply)? Issue 3 Whether, if the material provisions of the CTE apply, this would in principle give rise to a breach of duty in English and Spanish law?

Issue 1 and 2 depend on the interpretation of foreign law which, in common law courts, is fact and must be proven. The discussion here seems to have turned on lengthy debate on the exact meaning of definitions. That this should be discussed so intensely does not surprise me (unlike the judge who suggested it was unusual): if a definition is of great relevance to the outcome of the case, why should it not be extensively discussed.  The debate also engages the methods of interpretation by the Spanish courts: this leads [38ff] to expert views and discussion that are  interesting with a view to comparative statutory interpretation, and will be of relevance to those with an interest in languages and law.

Geert.

An interesting case on proving foreign law
Context: definitions in Spanish building codes, applicable per EU law, Rome II

Deane v Barker & Ors [2022] EWHC 1523 (QB) (Richard Hermer QC sitting as HCJ)https://t.co/sk7hotoct8

— Geert Van Calster (@GAVClaw) June 20, 2022

This post was written by Paul Lorenz Eichmüller, Vienna.

After the Austrian Supreme Court had filed a reference for a preliminary ruling to the CJEU (see here) in a matter concerning the definition of “judgments” in the Brussels I bis Regulation’s provisions on recognition and enforcement, the CJEU rendered its decision in its much discussed case of H Limited. Now that the Court of Justice has spoken, the matter was back in the Austrian Supreme Court – which has just rendered its final decision.

After Jordanian courts had ordered the borrower J (= Jabra Sharbain) to reimburse a loan to H (= HSBC Bank Middle East) Limited, the latter presented the Jordanian judgment to the English High Court, which issued a so-called merger decision. This type of judgment is not just a mere recognition but a new decision on the merits, albeit based on the foreign judgment’s payment order. It therefore contains a separate order against the defendant to pay the owed amount of money.

HSBC then tried to enforce the English decision in Austria under the Brussels I bis Regulation. Sharbain argued that a judgment that is based on a foreign decision should not be enforced according to the rules of Chapter III of the Regulation in another EU member state in order not to circumvent the Member States’ rules on recognition and enforcement of third-country judgments. However, the courts of first and second instance allowed for enforcement, arguing that the English merger decision was issued on the basis of adversarial proceedings where both parties could supposedly defend their side and should therefore qualify as a judgment in the sense of Article 36 et seq Brussels I bis Regulation. When the matter reached the Austrian Supreme Court, it sent a reference for a preliminary ruling to Luxembourg.

In its judgment, the CJEU shared the opinion of the Austrian courts: whether the basis for the judgment is a decision of third country is irrelevant for the purposes of the recognition and enforcement under the Brussels Regime. While the other member states in principle have to recognize such a merger decision, the CJEU specifically pointed to the fact that the ordre public could be used to resist enforcement (CJEU, C-568/20, H Limited para 41–46). It was left up to the deciding national court to reach a final decision on this matter.

After the CJEU explicitly left the question of the ordre public open, the Austrian Supreme Court was tasked with determining whether the English merger decision was contrary to Austrian public policy. Sharbain argued that the recognition and enforcement of merger decisions in general would infringe public policy, as there is no possibility for a review on the merits of the third-country decision. This lack of defence opportunities would trigger the public policy exception in Art 45(1)(a) Brussels Ibis Regulation. However, the Austrian Supreme Court dismissed this argument and stated that general considerations could not be regarded when assessing the ordre public. Only the proceedings in question could give rise to a public policy infringement – and in the case at hand, the court of first instance had found that the English High Court had actually given Sharbain the opportunity to oppose the claims from the Jordanian judgment. Thus, public policy could not be invoked and the English merger decision can be enforced in Austria.

Evaluation

Although the CJEU has left the back door of the ordre public open for the member states, it is good to see that, at least in Austria, it will only be used cautiously – not because double exequatur or the way around it with merger decisions is something to aspire to, but rather due to reasons of legal certainty and uniformity. If Member States were to invoke their public policy too loosely, the decision of the CJEU would mean a step backwards rather than forwards in the uniform recognition and enforcement of judgments in the EU. Ordre public is not and should not be a reason for generally denying the recognition and enforcement of certain types of judgments instead of looking at the specific circumstances and the final outcomes of the individual case.

While the Austrian Supreme Court was bound by the findings of the court of first instance regarding the extent to which the specific defendant had an adequate possibility to make his case and thus could not raise this question again, it is doubtful whether this was actually the case: the English High court explicitly stated that “A foreign judgment for a definite sum, which is final and conclusive on the merits, is enforceable by claim, and is unimpeachable (as to the matters adjudicated on) for error of law or fact” (JSC VTB Bank v Skurikhin & Ors [2014] EWHC 271 (Comm) at para 18, referred to in Arab Jordan Investment Bank Plc & Anor v Sharbain [2019] EWHC 860 (Comm) at para 14). There are only four exceptions to this rule, namely: 1) fraud, 2) public policy, 3) natural justice and 4) penalties. Whether that is indeed enough for a proper defence is not quite as clear. Thus, one must still wait for further cases to determine as to what extent a party must be given the opportunity to oppose the third-country judgment.

The EAPIL blog won’t stop running during the Summer, but new posts will come out at a slower pace in the coming weeks.

Business as usual will resume at the beginning of September.

Meanwhile, guest posts are always welcome. Those wishing to submit a piece, are invited to get in touch with the managing editor, Pietro Franzina, at blog@eapil.org.

Enjoy the Summer break!

The Mexican Academy of Private International and Comparative Law (AMEDIP) has published issue No 47 of the Revista Mexicana de Derecho Internacional Privado y Comparado (Mexican Journal of Private International and Comparative Law).  It is available here.

Click here to access the Journal page.

Below is the table of contents (including abstracts in English):

DOCTRINA

ACTOS JURÍDICOS RELACIONADOS CON BIENES MUEBLES E INMUEBLES EN EL DERECHO INTERESTATAL MEXICANO

Jorge Alberto SILVA

Abstract: This contribution is part of a larger research work on interstate Law related to property, in relation with article 121 of the [Mexican] Constitution. It reformulates the meaning of each of the sections with the treatment of assets from a merely constitutional approach based on judicial precedents and legal scholarship developed from the 19th century to the present. It ends up providing its own interpretive theses.

LA LEY APLICABLE AL CONTRATO DE INTERMEDIARIO QUE AMPARA ACTOS DE CORRUPCIÓN

James A. GRAHAM

Abstract: There is no particular reason to consider the intermediary or commission agent contract as an exception to the rule of lex contractus. The fight against corruption is in the Public Policy Law (“loi de police”), especially the foreign Public Policy Law. Despite the reluctance of judges and arbitrators to apply them due to lack of criteria, we believe that the Rome I Regulation can be used as a form of “international” criterion for both judicial and arbitral tribunals.

HACIA UNA INTERPRETACIÓN UNIFORME DEL CONCEPTO DE RESIDENCIA HABITUAL EN EL CONTEXTO DE LA SUSTRACCIÓN INTERNACIONAL DE MENORES

María Mayela CELIS AGUILAR (also known as Mayela Celis)

Abstract: This article seeks to analyze the concept of habitual residence, as well as the current trend towards its uniform interpretation in the context of international child abduction. In particular, we will try to show that habitual residence is a predominantly factual concept, and therefore flexible, and that its interpretation has an important impact, especially in times of pandemic.

PERSPECTIVAS COMPARADAS DE COMPETENCIA JUDICIAL INTERNACIONAL EN LA UE Y MÉXICO EN LAS CONTROVERSIAS ENTRE EL HUÉSPED-CONSUMIDOR Y LA PLATAFORMA DIGITAL DE ALOJAMIENTO TURÍSTICO

Silvana CANALES GUTIÉRREZ

Abstract: In a dispute arising from a digital intermediation services contract with an international element between a guest-consumer and a digital platform of tourist accommodations is not easy to establish the international jurisdiction. The response of Private International Law in both the European Union and Mexico depends on several factors that vary according to the specific case, and among them may be mentioned, whether or not the guest meets the requirements to be considered as a consumer, and the State where his domicile is located. With respect to the platform is relevant if it has an establishment in the State of domicile of the consumer or if it targets its activities to that State. If a person meets the requirements of a ”consumer”, that fact creates special rights regarding international jurisdiction for consumers domiciled in both the EU and Mexico, however the breadth of such rights reflects their Private International Law systems, which protect the consumer at different levels, on which the comparative analysis of this brief research is based.

JURISPRUDENCIA

NULIDAD DE LAUDO ARBITRAL. COMO CONSECUENCIA DE SER DECLARADA, NO PROCEDE CONDENAR A LOS ÁRBITROS A LA RESTITUCIÓN DE SUS HONORARIOS.

RESEÑAS POR LEONEL PEREZNIETO CASTRO

URUGUAY: TEXTO Y CONTEXTO. LEY GENERAL DE DERECHO INTERNACIONAL PRIVADO N.º 19.920, Uruguay, FCU, 2021, 280 pp. / Cecilia Fresnedo de Aguirre, Gonzalo A. Lorenzo Idiarte

CHILE: DERECHO INTERNACIONAL PRIVADO, LEYES, TRATADOS Y JURISPRUDENCIA, Chile, Thomson Reuter, 2022, 721 pp. / Eduardo Picand Albónico

The Permanent Bureau is looking for one intern for the period September to December 2022 or September 2022 to February 2023 to work on the 1993 Adoption Convention and the Parentage / Surrogacy Project. Applications will be accepted until 18:00 hours (CEST), Friday 29 July 2022.

Prospective applicants should complete an online application form and submit the supporting documentation described here.

Others will no doubt analyse Friends of the Earth Ltd & Ors, R (On the Application Of) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWHC 1841 (Admin) at much more length. I just thought I would pen down my thoughts when reading the judgment.

The case is a further judgment holding Governments to account for not addressing climate change challenges properly. The United Kingdom being a dualist country (all the more so following Brexit), the arguments do not much feature the Paris Agreement directly. Rather, claimants aim to hold Government to how Parliament said it should act in addressing climate change  in the Climate Change Act 2008 – CCA 2008, and, additionally, through the requirements of the European Convention on Human Rights, whether or not in combination with the UK Human Rights Act. The core of the exercise and judgment therefore is one of statutory interpretation.

Of note first of all is that most of the claimants’ arguments were rejected and one assumes therefore that they will be seeking permission to appeal (just as the Government will).

The judgment kicks off with the oblique reference to trias politica. Holgate J [22] cites R (Rights: Community: Action) v Secretary of State for Housing Communities and Local Government [2021] PTSR 553 at [6]: –

“It is important to emphasise at the outset what this case is and
is not about. Judicial review is the means of ensuring that public
bodies act within the limits of their legal powers and in
accordance with the relevant procedures and legal principles
governing the exercise of their decision-making functions. The
role of the court in judicial review is concerned with resolving
questions of law. The court is not responsible for making
political, social, or economic choices. Those decisions, and those
choices, are ones that Parliament has entrusted to ministers and
other public bodies. The choices may be matters of legitimate
public debate, but they are not matters for the court to determine.
The court is only concerned with the legal issues raised by the
claimant as to whether the defendant has acted unlawfully.”

And [194]: judicial review in this case must not be merits review and the judge must adopt a ‘light touch’.

Starting with the ECHR arguments, there were summarily dismissed [261] ff. They engaged with Article 2 ECHR’s right to life, Article 8’s right to family life (these two being the classic anchors for environmental rights in the ECHR) and Article 1 of the first protocol (‘A1P1′)’s right to [protection of property. Holgate J holds that the claimants’ argument on the ECHR ‘goes beyond permissible incremental development of clear and constant Strasbourg case law’ [275] and [269-270] that the Dutch Urgenda decision offers a narrow window of ECHR relevance to climate law which does not open in the current case (with [270] in fine an explicit warning that Dutch authority, it being a monist country, should not hold much sway in England and Wales).

A first ground discussed the role of quantitative v qualitative assessment and whether and the degree to which the Minister was to show the targets could be met quantitatively. The judge held that ‘the CCA 2008 does not require the Secretary of State to be satisfied that the quantifiable effects of his proposals and policies will enable the whole of the emissions reductions required by the carbon budgets to be met. The [statutory] obligation …does not have to be satisfied by quantitative analysis alone.’ [193].

However one of the grounds on which the challenge did succeed is the quality of the input for the Minister’s decision: this overall briefing was held to have omitted data the minister was legally obliged to take into account, and which was not insignificant. As a result the Minister failed to take it into account as a material consideration, so that his decision was unlawful (compare [200]). [221] the briefing was held to have been wanting, in that it failed to identify under the quantitative analysis the contribution each quantifiable proposal or policy would make to meeting the UK’s carbon budgets; and it failed to identify under the qualitative analysis which proposals and policies would meet the 5% shortfall for one of the carbon budgets and how each would do so.

[246] ff (where Holgate J does refer, albeit with statutory distinguishing, to relevant Irish cases), another partial ground is upheld namely that of proper information given to Parliament (and therefore also the public; both a sore point in the current UK Government) on the data reached for the Ministerial conclusion and data on the pathways for delivery themselves. [257]: ‘contributions from individual policies which are properly quantifiable must be addressed in’ the report given to Parliament and hence the public.

The result therefore is important in terms of accountability and transparency (where unfortunately no mention was made of the Aarhus Convention which Continues to apply to the UK), with the latter element also being inspirational for other jurisdictions where Governments have been told to go back to the climate change drawing board.

Geert.

In a judgment of 16 June 2022 (case T 3379-21) the Swedish Supreme Court held that the United Nation’s 1956 Convention on the Contract for the International Carriage of Goods by Road (CMR) takes precedence over the Rome I Regulation on the law applicable to contractual obligations and that the Convention shall be applied as implemented in the forum State.

CMR contains uniform substantive rules for transport contracts and is applied by all EU member states as well as several other states around the world. Article 1 of the CMR states that the Convention is applicable to international road transport agreements when either the state from where the goods is transported or the state that is designated for delivery is a CMR state. In practice, the CMR applies to a very large share of road transport contracts in the EU. Nonetheless, it is not exactly clear what relation the CMR and the Rome I Regulation have with each other. Shall the CMR be applied “directly” without the application of the Rome I Regulation or must first the law applicable according to the Rome I Regulation be determined to see e.g. with what potential national reservations the CMR shall be applied?

This issue arose for the Swedish Supreme Court in a dispute over a carrier’s liability for a transport of cigarettes that were stolen during a transit storage. As the theft triggered Swedish excise duty on tobacco for the sending party, the substantive issue was whether the excise duty expenses should be reimbursed by the carrier. It is here noteworthy that out of the 154.565 euros that the dispute was about, 135 325 euros were compensation for excise duty and 19.240 euros were compensation for the loss of the goods.

The extent of the carrier’s liability is regulated in Article 23 of the CMR. According to a compilation of international case law made in the Swedish court of appeal’s judgment, this carrier liability has been interpreted differently in contracting states. Whereas e.g. the UK and Denmark have held carriers to compensate also for excise duties, Germany and the Netherlands have applied a more restrictive approach only allowing for compensation that directly relates to the transport (not including tax levied after theft). In this perspective, an application of the CMR under Dutch law would most probably follow the restrictive approach applied by the Dutch courts. If the CMR was to be applied under Swedish law, the liability issue was more unclear.

In its judgment, the Swedish Supreme Court noted that it normally is the Rome I Regulation that determines the law applicable for contractual disputes in Swedish courts. For the relation between the Rome I Regulation and international conventions, Article 25(1) of the Regulation contains a special conflict rule that gives precedence for multilateral conventions that were already in force when the regulation was adopted under the condition that the convention “lay down conflict-of-law rules relating to contractual obligations”. As the CMR is a multilateral convention that existed when the Rome I Regulation entered into force, a question for the Swedish Supreme Court was whether it also contained a conflict of law rule relating to contractual obligations.

Article 1(1) of the CMR contains a rule on the scope of application for the convention. This rule states that the convention shall be applied to

every contract for the carriage of goods by road in vehicles for reward, when the place of taking over of the goods and the place designated for delivery, as specified in the contract, are situated in two different countries, of which at least one is a contracting country, irrespective of the place of residence and the nationality of the parties.

With references to the Swedish preparatory works from the 1960s and 1970s relating to the Swedish accession to the CMR, the Supreme Court noted that the Swedish legislator had understood the named article as a conflict-of-law rule. The Supreme Court concurred to the legislator’s understanding and added that Article 1 of the CMR can be seen as a unilateral conflict-of-law rule. The fact that not a single member state notified the CMR as such a convention that could have precedence under Article 25 of the Rome I Regulation back in 2009 when the Regulation was to enter into force, was not mentioned by the court.

Regardless of whether unilateral conflict-of-law rules take precedence according to Article 25, the Supreme Court referred to the CJEU’s judgment in TNT Express Nederland to interpret the meaning of Article 25 in the Rome I Regulation.

In TNT Express Nederland, the CJEU ruled on Article 71 of the old Brussels I Regulation (44/2001), which concerns that regulation’s relationship with international conventions. The CJEU held then that the lis pendens rules in the CMR could take precedence over the Brussels I Regulation on the ground that the lis pendens rules of the Convention

are highly predictable, facilitate the sound administration of justice and enable the risk of concurrent proceedings to be minimized and that they ensure, under conditions at least as favourable as those provided for by the regulation, the free movement of judgments in civil and commercial matters and mutual trust in the administration of justice in the European Union.

Clearly inspired by the TNT Express Nederland judgment, the Swedish Supreme Court held that also the conflict-of-law rules in a convention shall have precedence over the Rome I Regulation if that leads to a high degree of predictability, facilitate the sound administration of justice and ascertains the EU goals on free movement and mutual trust between the judicial authorities under conditions at least as favourable as those provided for by the Rome I Regulation.

With this, in my opinion, somewhat bold analogy from the TNT Express Nederland case, the Supreme Court concluded that CMR takes precedence over the Rome I Regulation and that CMR shall be applied as it has been implemented according to lex fori. In other words, the Swedish Supreme Court applied the CMR without determining the law applicable according to the Rome I Regulation.

In substance, the choice-of-law matter did not affect the liability issue. Just like what was reported to be the case in the Netherlands, also the Swedish Supreme Court embraced the restrictive approach when interpreting Article 23 of the CMR. Therefore, the carrier was not held liable to pay the expenses for the excise duty on tobacco. Even if that conclusion might have been the same under Dutch law, this conflict of public and private international law raises issues that are not just theoretically interesting.

In the Swedish Supreme Court’s case the matter was clearly at heart of the substantive rules of the CMR. However, conventions tend often not to be so thorough that there are no gaps that need to be filled out. Also states ratify conventions with different reservations. In my opinion, these aspects call for at least a subsidiary application of the private international choice-of-law rules.

To me, it is unfortunate that the CJEU was not given a chance to have a say on the interplay between conventions and the Rome I Regulation. A clarifying judgment on this matter would improve predictability for international civil and commercial matters in the EU.

W Nagel (a firm) v Pluczenik& Ors [2022] EWHC 1714 (Comm) concerns litigation in the diamond sector. It is an appeal against permission for service out which triggers various jurisdictional considerations, including forum non, as well as disclosure and ‘clean hands’ concerns.

The judgment is a good illustration of claim and counterclaim serving jurisdictional purposes.

Defendants are a Belgium-domiciled diamond manufacturer (PDC) and its equally Belgium-based managing director Mr Pluczenik . Claimant Nagel is a UK based diamond broker. Nagel is defendant in Belgian proceedings brought in May 2015 by defendants in the E&W proceedings, who used a Belgian-based anchor defendant to sue the English claimant in Belgium (A8(1) Brussels Ia); Nagel are also defendant in a September 2015 Belgian claim brought by the same claimants and since consolidated by the Belgian courts. Nagel itself issued a claim against PDC in the English High Court in March 2015, did not serve it, but sent a letter before action which indicated that it intended to bring proceedings in England.

In June 2015, as direct reaction to the Belgian Claim, Nagel amended the English Claim to seek negative declaratory relief to the effect that it was not liable in respect of a number of contractual duties.

In July 2017 Popplewell J found for Nagel, including in respect of the negative declaratory relief: W Nagel (A Firm) v Pluczenik Diamond Company NV [2017] EWHC 1750 (Comm). His judgment was confirmed by the Court of Appeal: [2018] EWCA Civ 2640, payments were made and the E&W proceedings ended.

Come forward third defendant in the current E&W proceedings, Ms Shine, who was the CEO of a subsidiary of De Beers – De Beers Trading Company. She has never worked for either of the Claimant or the First or Second Defendants, but she gave a statement to the Belgian court in 2017, supporting PDC. Her statement was provoked it seems by the outcome of the E&W proceedings which did not match her recollection. Nagel originally objected to jurisdiction solely on the ground of lis pendens (A29-30 BIa).

In July 2020 (one can see that in this case the speed of Belgian proceedings is nothing like in the case I reported yesterday) the Belgian claimants put forward their arguments on jurisdiction based on Antwerp being forum contractus per A7(1) BIA (they argued centre of gravity or characteristic performance was in Antwerp) [20].

In an interim, February 2021 interim judgment the Belgian court held it had jurisdiction on the basis of A7 forum contractus. It considered the lis pendens issue noting that it could no longer apply now that the English Claim was concluded. It then concluded that it had jurisdiction to determine the dispute. The Court noted that “the defendants apparently do not (or no longer) dispute” that the services were performed in Antwerp. 

Nagel then dropped the jurisdictional arguments and at hearings 7 May 2021 onwards went for res judicata, arguing …the English judgment has the status of res judicata with regard to the present proceedings, so that the court on the basis of Article 23 and 25 Judicial Code [the Belgian CPR, GAVC] is currently prohibited from again deciding on the claim…” [30]. End of May 2021 Nagel then commenced the present claim in the Commercial Court. The claim alleges that the Belgian Claim constitutes a tortious abuse of process and forms part of an unlawful means conspiracy between the Defendants. Ms Shine is the Third Defendant. It is said that the provision of the Shine Statement and its (lack of) merits justify an inference that she was involved in the abuse of process and the conspiracy [31].

In September 2021 Moulder J gave permission for service out (required post Brexit) on the basis that the claim met limb (a) of the tort gateway viz “damage was sustained, or will be sustained, within the jurisdiction” (Nagel trades from England, paid sums to Belgian lawyers from a bank account in England and has consequently suffered loss here; she also UKSC Brownlie for the damage gateway). She refused permission on two other gateways – necessary and proper party and tort committed within the jurisdiction. It is alleged by defendants that Moulder J was not given any indication of the Belgian interim judgment.

The Belgian Claim is now scheduled for trial in January 2023.

[64] Cockerill J holds that the Belgian findings on jurisdiction and the existence of a judgment which dealt in terms with jurisdiction should on any view have been put before Moulder J and [65] that this breach of duty of disclosure was deliberate. She also holds [70] that the picture sketched of the Belgian proceedings being ‘in limbo’ was plainly wrong: they were definitely active, and that it had been wrongfully suggested that the Belgian judge was not going to deal with the res judicata issue. On that basis, she would have set aside permission for service out [75] however this point turns out to be obiter for the reason for reversal of the order is that E&W are not the appropriate forum [76] ff. Relevant factors being that (i) the jurisdiction of the Belgian Courts appears to have been established by PDC and accepted by Nagel (at least on a prima facie basis), (ii) the Belgian claim is progressing and (iii) there is scope for determination of a res judicata issue (which replicates the issues sought to be brought here) and (iv) a determination of the res judicata issue is (and was) likely to be determined relatively soon.

Moreover, Belgium clearly is an appropriate forum [79] the Belgian Claim is one brought by a Belgian company (PDC), arising out of services provided in Belgium (as the Belgian Court has held), alleging fraud on the Belgian Court. (The serious issue to be tried discussion leads to an analysis of Article 4 Rome II as retained EU law).

A good illustration as I mentioned of claim, counterclaim, and of course the clean hands principle.

Geert.

Res judicata issues and claims of abuse of process by launching Belgian proceedings under Brussels Ia

W Nagel (a firm) v Pluczenik& Ors [2022] EWHC 1714 (Comm)https://t.co/UKQi3rEer9

— Geert Van Calster (@GAVClaw) July 6, 2022

The Law Faculty at University of Antwerp is offering a full-time doctoral scholarship in EU Private International Law with a focus on EU citizenship and its interaction with conflict of laws.

The chosen candidate is expected to:

• work actively on the preparation and defence of a PhD thesis, written in English or in Dutch, on the topic of “Continuity of civil status for mobile citizens in a diverse European Union”. Within this framework, the candidate is expected to examine how EU law can ensure Union citizens’ status continuity while ensuring a right balance between freedom of movement, fundamental rights, and respect for the competences and national identities of the Member States. The innovative research will have to entail a full and systematically integrated analysis of both Union citizens’ rights and EU Member States’ rights and competences, and take into account the characteristics of the EU’s so-called “area of freedom, security and justice”. The research is expected to stretch beyond the analysis of the current EU Treaties and case law in order to examine the adoption of new legislation and/or possible amendments to the EU Treaties.
• publish scientific articles related to the topic of the PhD project.
• carry out a limited number of teaching and research support tasks for the University of Antwerp’s Faculty of Law and its research group Government and Law.

The research activities will be supervised by dr. Johan Meeusen

Profile requirements for the candidates:

• holding a Master’s degree in Law. Students in the final year of their degree can also apply. This is a condition of admissibility.
• outstanding academic results.
• demonstrating excellent legal research and writing skills.
• having a particular interest, and having obtained excellent study results in European Union law and Private International Law.
• acting in accordance with the University of Antwerp’s Mission statement
• research qualities that are in line with the faculty and university research policies.
• showing attention to quality, integrity, creativity, and cooperation.
• excellent language skills that permit high-level academic research in EU law and Private International Law. Apart from active and passive knowledge of English, the candidate has to have at least a passive knowledge of French and, preferably, of German as well as of other languages.

The Faculty of Law is offering:

• a doctoral scholarship for a period of two years. Following a positive evaluation, the scholarship can be renewed once for another two-year period.
• starting date is 1 October 2022 or as soon as possible thereafter.
• the monthly scholarship amount is calculated according to the scholarship amounts for doctoral scholarship holders on the pay scales for Contract Research Staff (Dutch: Bijzonder Academisch Personeel, BAP).
• ecocheques, Internet-connectivity allowance and a bicycle allowance or a full reimbursement of public transport costs for commuting.
• to work at the UAntwerp City Campus, in a dynamic and stimulating working environment, in the research group Government and Law.

How to apply:

• You can apply for this vacancy through the University of Antwerp’s online job application platform up to and including 8 August 2022 (CET). Applications submitted after this deadline or not containing all requested documents, will be declared inadmissible. Together with the complete the online application form you will have to include the following documents, in English:
  • motivation letter;
  • CV;
  • a detailed account of your study results;
  • a document of maximum 2 pages explaining the research approach and methodology that you consider the most appropriate for the successful and timely completion of this research project.

A preselection will be made from amongst the submitted applications. The preselected candidates will be informed of their selection at the latest on Thursday 25 August 2022 . The interviews of preselected candidates will take place, on campus or online, on Tuesday 30 August 2022.

For any questions about the online application form, check the frequently asked questions or send an email to jobs@uantwerpen.be. If you have any questions about the job itself, please contact dr. Johan Meeusen.

More information on the academic environment and scientific research at the University of Antwerp is available here. More information about working at the University of Antwerp is available here.

On 19 July 2022, a new Report on practices in Comparative and Cross-Border Perspective was posted on the website of EFFORTS (Towards more EFfective enFORcemenT of claimS in civil and commercial matters within the EU), an EU-funded Project conducted by the University of Milan (coord.), the Max Planck Institute Luxembourg for Procedural Law, the University of Heidelberg, the Free University of Brussels, the University of Zagreb, and the University of Vilnius.

The Report was authored by Marco Buzzoni and Carlos Santaló Goris (both Max Planck Institute Luxembourg for Procedural Law).

By building upon the deliverables previously published by the Project Partners (available here), the Report casts light on the implementation of five EU Regulations on cross-border enforcement of titles (namely: the Brussels I-bis, EEO, EPO, ESCP, and EAPO Regulations) in the seven EU Member States covered by the Project (Belgium, Croatia, France, Germany, Italy, Lithuania, and Luxembourg). Against this background, the Report notably provides an in-depth analysis of national legislation and case law in an effort to identify general trends and outstanding issues regarding the cross-border recovery of claims within the European Union.

Regular updates on the EFFORTS Project are available via the Project’s website, as well as LinkedIn and Facebook pages.

Project JUST-JCOO-AG-2019-881802
With financial support from the Civil Justice Programme of the European Union

Simon v Tache & Ors [2022] EWHC 1674 (Comm) is an interesting judgment which one assumes is very appealable given the untested Withdrawal Agreement and other angles.

At issue is i.a. whether Article 67 Withdrawal Agreement requires both sets of proceedings which are a candidate for Brussels Ia’s Article 29-30 lis pendens /related cases provisions, to have been pending prior to Brexit Implementation Date and what date needs to be considered the date of seizing.

Claimants argue, that the Belgian Proceedings, which I outline below, could only have become related on 3 May 2021 by the lodging of the 3 May Submissions, and that the English Court only became seized of the English proceedings after 31 December 2020, either on the making of Service Out Application or on the subsequent issue of the English Proceedings. On this basis it would not be open to the Defendants in the English proceedings to rely upon Article 67 as applying Articles 29 and 30 of Brussels Recast to the English Proceedings.

Claimant is a French national living in London. She is a medical doctor who previously practiced. She now focuses on art and design. Defendants are Belgian nationals, contemporary art dealers with a gallery website in English. This element notably raises issues whether the contract could qualify as a consumer contract. Defendants deny this, citing the very example I often give in class when teaching the relevance of language in the context of the Pammer Alpenhof criteria: the very use of English on websites, particularly in the art, design or hospitality sector in cities like Brussels are hardly an indication of direction of activities outside the location. The contract being a consumer contract seemingly was not flagged in claim form or submissions, it only came up at hearing.

Claimant and defendants having met in Paris, various artworks were delivered to claimant’s Paris address. Lex contractus is disputed [20]. The relationship soured and Belgian libel proceedings by defendants in the E&W proceedings were initiated end of October 2020. End of March 2021 Dr Simon was given permission to serve out. Her application mentioned the Belgian proceedings but argued that these were unrelated, ia in light of the different (non)contractual basis of those proceedings [35]. A claim form was sent to defendants’ lawyers early April 2021 and the claim form was filed 10 May 2021. On 3 May the defendants in the E&W proceedings amended thier Belgian claim, adding a request for declaration of non-liability: in other words they requested the Belgian court to declare that there was no wrongdoing on their part in the contractual relationship.

End of October 2021 the first instance Belgian court held it does have jurisdiction, but that no damage was proven. That court however declined to rule on the claim for a negative declaration because the allegations were before the English court. The Belgian court’s dictum on that issue is very brief, declaring only ‘“Whereas the ensuing dispute was never resolved and is currently the subject of a lawsuit in London, such that this court will refrain from commenting on the merits of that case.” : it did not specify why which clearly is a failure on its part.

[50] it is the Defendants’ case that the Belgian court was first seized on 3 May 2021, before the E&W Court was first seized on 10 May 2021 on the issue of proceedings. On the other hand, it is Dr Simon’s case that the E&W Court was first seized on the making of the Service Out Application and/or the making of the Service Order on 30 March 2021, alternatively on the issue of the Claim Form on 10 May 2021, but that the Belgian court was only seized when the Defendants’ claim for a negative declaration was filed on 5 August 2021.

It is undisputed [52] that as a matter of Belgian procedural law, it would be open to Dr Simon to raise a counterclaim in respect of the causes of action that she seeks to pursue by the English Proceedings in the Belgian Proceedings, and to do so notwithstanding that they are now before the Belgian Appeal Court. Expectations of the Court of Appeal ruling varied between one and five years [54] however in the end that Court surprised all and held after the English judge’s draft judgment had been circulated.

In November 2021 Dr Simon at her turn added a claim to her English claim form, one in dishonesty.

The judge holds [74] that BIa continues to apply to new claims added to proceedings commenced prior to 31 December 2020 and claims against new defendants joined to such proceedings after that date. He refers to  On the Beach Ltd v Ryanair UK Ltd [2022] EWHC 861 (Ch) in support (acknowledging that that case is not authority to him and that the parties in that case were in agreement on the issue).

On the issue of seizure, the judge holds [92] that this must be linked to the formal lodging of a claim form in order to issue proceedings, rather than the taking of some preliminary step to obtain permission with regard to the service of proceedings which might never be issued. I have sympathy with the view [85] that this gives the other party a great opportunity to torpedo proceedings.

‘“the same cause of action, between the same parties” is judged, despite an acknowledgment of EU autonomous interpretation, with reference to Belgian procedural law and expert reports on same [103]. That must be a vulnerable position.

Conclusion on A29 is that a stay must be ordered [114] and obiter [120] that one would have been ordered on A30 grounds.

Service out is discussed [121] in a bit of a vacuum because of course is BIa applies then service out is not required. Here reference is made to Rome I’s applicable law as an element of the gateway requirements (contract governed by English law) (held: no: Belgian law is prima facie lex contractus [134], with discussion ia of the consumer title. As a pudding, forum non conveniens is considered and this is surely where the jurisdictional arguments become excessive per Lord Briggs’ speech in Vedanta.

Then comes the final pousse-café: the Belgian Court of Appeal, unexpectedly fast, found it had no jurisdiction (this may be appealable to the Belgian Supreme Court), leaving the possibility of a negative conflict of jurisdiction which the parties were invited to comment upon.

A case to watch.

Geert.

Application of Brussels Ia's lis pendens (As 29-30) rules re concurrent Belgian proceedings, with BE Court of Appeal eventually holding, like the E&W courts, that it has no jurisdiction
More soon

Simon v Tache & Ors [2022] EWHC 1674 (Comm)https://t.co/APyROT7Fi9

— Geert Van Calster (@GAVClaw) July 6, 2022

The yearly seminar on European and Comparative law  organized by the Centre of European Legal Studies (CELS) in Urbino (Italy) will take place this summer from 22 August to 3 September 2022.

The Seminar aims to develop knowledge of European and International law as well as to facilitate exchanges between lawyers, officials of the European Communities, professors, judges and advanced students.

The list of speakers for 2022 includes Marie-Elodie Ancel (University of Paris-Panthéon-Assas), Robert Bray (former Head of Unit of the Secretariat of the Legal Affairs Committee of the European Parliament), Georges Cavalier (University of Lyon 3), Ilaria Pretelli (Swiss Institute of Comparative Law), Tuto Rossi (University of Fribourg), Martin Svatos (Charles University), Alessandro Bondi (University of Urbino Carlo Bo), Fabrizio Marrella (University of Venezia Ca’ Foscari), Rosa Maria Emilia Palavera (University of Urbino Carlo Bo), Jens Karsten (Lawyer), Edoardo Alberto Rossi (University of Urbino Carlo Bo), Helmut Satzger (Ludwig-Maximilians-University Munich).

The programme is available here and enrollment information here.

The Belgian Data Protection Controller (DPA)’s decision of March 2022 (thank you Peter Craddock for alerting me to it at the time) has been travelling with me since it was issued mid March 2022: a late posting, I realise. There is however follow-up because Google have appealed.

The case concerns a classic ‘right to be forgotten’ aka delisting request, which Google refused, made by a practising solicitor with a criminal conviction and disciplinary measures taken against him. Google was rebuked, but not fined, for not dealing with the request promptly. However in substance the DPA agreed with Google’s refusal to delist, citing the link of the convictions to the applicant’s current profession, the recent nature of the conviction, and the severity of the facts.

This post however wants to signal the issue for which Google have appealed: the territorial reach of the GDPR under Article 3(1) v 3(2) GDPR,  as also explained in the European Data Protection Board (EDPA) December 2019 guidelines on the territorial scope of the GDPR (and something which the Belgian Court of Appeal has grappled with before, albeit not in the 3(1) v 3(2) setting).

Article 3(1) of the GDPR applies to “the processing of personal data in the context of the activities of an establishment of a controller or processor in the Union, regardless of whether processing takes place in the Union or not“. Article 3(2) applies the GDPR to “the processing of personal data of data subjects who are in the Union by a controller or processor not established in the Union, where the processing activities are related to (a) the offering of goods or services, irrespective of whether a payment of the data subject is required, to such data subjects in the Union, or (b) the monitoring of their behaviour as far as their behaviour takes place within the Union“.

Google Ireland was fast out off the picture by consent among the parties and the DPA [39-40]: it had no role at all in any of the processing. Google LL.C. admitted [44] that Article 3(1) applies to it, while Google Belgium [53] posits that as a mere internal consultancy /lobbying outfit for the Google group, it, too, has no role in the processing of the data.

Citing earlier decisions and CJEU Google Spain, the DPA nevertheless takes a broad view of ‘data processing’, arguing [64] that Google Spain identifies an ‘inextricable link’ between the various units of a group as sufficient to trigger DPA jurisdiction, even if one of these units has no role in the data processing.  While this reasoning ([68] and [71] in particular) suggests the wide notion of inextricable link triggers Article 3(1), in subsequent paras ([69] in particular) suggest the opposite causality: suggesting that because Article 3(1) applies, the activities are inextricably linked. Clearly, as Peter Craddock had pointed out before (I read it at the time but cannot find the source anymore I fear) that is a case of circular reasoning.

For Google, application of the GDPR to the US based entity as opposed to the EU based ones clearly is of significant difference. Its appeal with the Court of Appeal will be heard in the autumn.

Geert.

EU private international law, 3rd. ed. 2021, 2.256 ff.

This is the most important take of the judgment delivered on 7 July 2022 in LKW WALTER Internationale Transportorganisation AG (Case C-7/21) (see already the report of K. Pacula here).

Under Article 12 of the Service Regulation Recast (formerly Article 8 of Regulation 1393/2007), the addressee of a document has a right to refuse to accept the document on the ground that it was not translated in a language that he understands or an official language of the place of service. The time limit for so doing is now 2 weeks. The CJEU rules that national time limits may not run during this time limit (which was only one week under former Art. 8), and must therefore begin to run after the expiry of the time limit in the Service Regulation.

The case was concerned with proceedings in Slovenia involving an Austrian company. A judgment rendered by the Slovenian court was served on the Austrian party (for more details, see the reports of K. Pacula). Under Slovenian law, a time limit to object to the judgment starts running from the date of service (as under the law of many Member States).

As a result, two time limits started to run at the same time: one to exercise the right of refusal under the Service Regulation, and another to object to the judgment. In addition, the time limits, which were the same, and thus overlapped, were short: 8 days. But it does not seem that the shortness of the time limit mattered for the CJEU. It ruled:

41 The effectiveness of the right to refuse to accept a document to be served requires (…) that [the addressee] has the full one-week period to assess whether it is appropriate to accept or refuse to accept service of the document and, in the event of refusal, to return it.

So, addressees should be able to enjoy fully the period afforded by the Service Regulation (which is now 2 weeks) to determine whether to refuse the document. As a result:

46 (…) the starting point of the period within which a right of appeal is to be exercised in accordance with the legislation of the Member State of the authority which issued the document (…) in principle must begin to run after the expiry of the one-week period referred to in Article 8(1) of the Charter (sic) [Regulation].

The proposition that you need the full time period to assess whether the document is written in a language that you understand is a bit surprising. As everybody knows, it takes anybody a few minutes to realise that.

What might take much longer is to seek legal advice to know about your rights with respect to the document. The right of refusal, however, is explained on a form which must be served to the addressee with the relevant document(s).

Interestingly, this case was actually an action against the Austrian lawyers of the applicant. They had received the documents from the client indicating when they had been received. It does not seem that they advised the client to refuse to accept service. They filed an objection on behalf of the client, but missed the Slovenian deadline by a few days. As a result, the client sued them for professional negligence. It could have been that the client would have trusted his lawyers to understand the document, and that the full time period would indeed have been useful, but this was not the case here. Neither the client, nor the lawyers seem to have an issue with Slovenian. In any case, the issue is not whether the lawyers of the addressee understand the relevant language, but the addressee itself.

Another issue with the effect given by the CJEU to the time period in the Service Regulation is that it will benefit to addressees who perfectly understand the relevant language, or to addressees served with documents written in an official language of the place where they live, and who thus may not refuse to accept service. It seems that it is exactly what happened in this case.

The CJEU explains, however, that it did not want to introduce a discrimination between addressees who do not need the time period, and who could thus immediately dedicate their time to the assessment of their rights under national law (i.e. whether to appeal) and others, who need first to assess their rights under the Service Regulation. As a consequence, the CJEU explains that it fears that it would give an incentive to addressees based in other Member States to refuse to accept service, and decides to eliminate the problem by putting all addressees in the same situation.

One can only applaud the court for taking into consideration the potential effect of its judgment on the behaviour of parties, and assess whether such behaviour would be desirable.

This being said, it is unclear whether the Service Regulation really offers avenues for strategic behaviour and thus incentives for parties to use their right of refusal strategically. If a foreign based addressee assesses that it understands the relevant language, that addressee may not refuse to accept the document. If it does so, it will generate useless legal debates on the issue, but will ultimately lose. It will be found that service was proper since the start, and the refusal will have no impact.

It might be that, under certain circumstances, the demonstration of whether the addressee understands the relevant language will be difficult, and that it could not be assessed with certainty whether s/he is entitled to refuse. Maybe then the addressee could decide, after carefully weighing his options (and thus using fully the time period under the Regulation), not to refuse and to focus directly on the merits of the case.

Early July the courts at Rotterdam held in ITWF, Nautilus International and FNV v Marlow Navigation Netherlands BV et al that the International Transport Workers Federation (IT(W)F) Non Seafarers’ Work Clause, also known as the Dockers’ Clause, falls within the CJEU ‘Albany’ exception of EU competition law. The case se was brought against a number of shipowners who disregarded the clause.

In the interest of full disclosure, I should note I acted as expert witness for the ITWF.

The dockers’ Clause, negotiated between trade unions and employers, forms an integral part of a set of agreements primarily entered into by ITF and the Joint Negotiation Group (JNG – represent maritime owners from across the world) . In short  the clause amounts to a ban on ships’ crews carrying out work relating to securing and releasing the load on a ship (often: containers), collectively known as ‘lashing’ /’unlashing’ work. Tiredness and fatigue are some of the biggest risks for seafarers, who are expected to rest in the ports, not carry out the specialised and dangerous work of dockers. 

The Dockers’ Clause, together with the other employment conditions, was the result of an intensive and multi-year period of negotiations between a large number of social partners. Exemptions are possible under conditions.

Collective agreements of course are prima facie suspect under EU competition rules. The Albany ‘exception’ of the Court of Justice of the European Union concerns the core criteria which the CJEU employs in its competition law assessment of the activities carried out by organisations that organise social protection for workers in a given sector. The Court held (at 60) that

It therefore follows from an interpretation of the provisions of the Treaty as a whole which is both effective and consistent that agreements concluded in the context of collective negotiations between management and labour in pursuit of such objectives must, by virtue of their nature and purpose, be regarded as falling outside the scope of Article 85(1) of the Treaty.

Article 85(1) is what is now Article 101 TFEU, and by ‘such objectives’ the Court (at 59) means ‘social policy objectives’.

Note, for conflicts lawyers, the application of Article 4-4 Rome I, and, viz some of the defendants, Article 4(1) Rome II, to conclude application of Dutch law.

The Court at Rotterdam held that the seafarers clause fits squarely within the Albany exception: it is ‘entered into in the framework of collective bargaining between employers and employees’, and it improves the employment and working conditions of workers’. Note at 4.38 the reference to these agreements necessarily involving a ‘package deal’ which implies that the interest of all involved will be weighed and that as a result of the collective bargaining, some of those concerned will get a better deal than others. However both the CJEU and the Court at Rotterdam leave that assessment to the negotiation process.

Further arguments based ia on free movement of workers, services, establishment  were rejected. (A narrow Covid19 exception was accepted for a narrow set of circumstances).

An important judgment for those interested in competition law and collective bargaining.

Geert.

Pleased to have contributed to this important finding on the collective agreements 'Albany' exception in EU competition law. https://t.co/MWaEiUfsUN

— Geert Van Calster (@GAVClaw) July 8, 2022