Flux européens

Alame & Ors v Shell PLC & Anor [2025] EWHC 1539 (KB) is a milestone in business and human rights /environmental claims litigation, particularly as it pertains to legacy pollution. I reported on earlier developments in the case here, with further links in that post to yet other earlier judgments.

The Alame claim is also known as the Bille and Ogale group claim litigation. It is not to be confused with the ‘Bodo’ claim, in which hearings were concluded at the London courts earlier in June.

Of note is first of all that the judge’s findings are all on preliminary issues (‘PI’) of law. They are not on matters of fact. For instance, and with great importance viz the issue of ‘legacy’ pollution, the judge’s finding [77] that

The experts agree that where trespass is relied on, and as trespass does not require damage to be proved, a new cause of action will arise each day that oil remains on a claimant’s land.

and [180] that

Common law claims for damage caused by oil spills from non-pipeline assets may be brought in negligence, nuisance, Rylands v Fletcher and trespass, in each case depending upon the particular facts.

do not imply that the judge has held that Shell or any of the other defendants have trespassed by not cleaning up the relevant legacy pollution. It simply means that she has found there is such possibility, depending on the facts. Of course the finding is still hugely relevant, seeing also the energy (pun unintended) Shell had invested in fighting such a finding. One of the interesting questions imo for future reference, is how trespass as a promising private law claim to address legacy pollution, functions in the event of divestment by the polluter (such as here: the sale of Shell Nigeria to Renaissance).

The judgment is lengthy but very well structured and Leigh Day, solicitors for claimants, have good summary of the main issues here.

In this post, noblesse oblige, I focus on one specific private international law issue, namely question

PI 5 (1)  Insofar as a party alleges in the context of a claim under section 11 of the OPA that an oil spill was caused by Third Party Interference: What is the applicable law governing the burden and standard of proof?

This is a Rome II question.  [141]

The parties are agreed that the applicable law governing the burden and standard of proof is a matter of English private international law. As to that:

(a) Insofar as the event giving rise to damage occurred on or after 11 January 2009, the choice of law is governed by the Rome II Regulation (“the Regulation”). The parties agree that under Article 22 of the Regulation burden of proof is governed by the law of the claim, here Nigerian law. There is a dispute between them as to what law governs the standard of proof.

(b) Insofar as the event giving rise to damage occurred before 11 January 2009, choice of law is governed by Part III of the Private International Law (Miscellaneous Provisions) Act 1995 (“the 1995 Act”). Both sides agree that, under English choice of law principles, rules of evidence are a matter for the law of the forum, covering both burden and standard of proof: Dicey, Morris and Collins on the Conflict of Laws, 16th Edn. Para 4-034.

[143] explains the relevance:

If the standard of proof is governed by Nigerian law, then both experts agree that the consistent practice of the Nigerian courts is to apply the criminal standard of proof (i.e. beyond reasonable doubt), whether the allegation is made against a party or a nonparty. Under English law, the standard of proof is the civil standard i.e. balance of probabilities.

[144] Therefore the single contentious point for determination under this PI is whether the standard of proof in relation to post-11 January 2009 events, where choice of law is covered by the Regulation, is a matter governed by English law as the law of the forum or by Nigerian law as the law of the claim.

My most recent comment on the issue features in my review of Quilombola v Norsk Hydro at the Dutch courts – yet see also other posts using the tag ‘evidence and procedure’.

The one case on the issue discussed in current judgment is Marshall v MIB [2015] EWHC 3421 (QB) which I review here. Counsel for claimant suggested

that the approach of Dingemans J in Marshall was wrong in principle and should not be followed. She argued that Article 1(3) of the Regulation is concerned with the manner in which matters are proved rather than the standard to which they must be proved, submitting that the degree to which the court must be satisfied of a relevant matter (ie standard of proof) is an indivisible part of the burden of proof and should be regarded as part of the same rule of law under Article 22, applying the law of the claim. Alternatively, if the analysis in Marshall is accepted and standard of proof is to be determined under English common law, she suggested that the court should adopt a flexible approach – referring to the observations of Andrew Smith J in Fiona Trust v Privalov [2010] EWHC 3199 – and apply Nigerian law to both burden and standard of proof where a party raises an allegation of loss caused by [third party interference].

As I flagged in my post on Marshall, I am not convinced by standard of proof following the evidence and procedure carve-out. The precise delineation of burden of proof under Rome II could do with more authority.

I imagine permission to appeal may be sought on a number of issues. Trial on the substance is scheduled for 2027.

Geert.

EU Private International Law, 4th ed, 2024, 4.82 ff.

 

Commission / Espagne (Participations indirectes)
Aide d'État
La Cour confirme l’annulation de la décision de la Commission déclarant illicite le régime fiscal espagnol de déduction des prises de participations indirectes dans des sociétés étrangères

SALUS
Rapprochement des législations
Une tisane médicinale qualifiée de médicament traditionnel à base de plantes ne peut, en principe, être commercialisée avec le logo bio

EVH / Commission
Concurrence
La Cour de justice confirme, comme l’a fait auparavant le Tribunal, l’approbation, par la Commission, de l’achat de certains actifs de production d’E.ON par RWE

Comité interprofessionnel du vin de Champagne et INAO / EUIPO - Nero Lifestyle (NERO CHAMPAGNE)
NERO CHAMPAGNE ne peut pas être enregistré en tant que marque de l’Union européenne pour des vins d’appellation d’origine protégée « Champagne »

Ryanair / Commission (Condor II ; COVID-19)
Aide d'État
Le Tribunal rejette le recours de Ryanair contre l’approbation par la Commission de l’aide Covid-19 de l’Allemagne au profit de Condor pour l’année 2020

GR REAL
La protection des consommateurs et l’exigence d’une protection juridictionnelle effective requièrent qu’ils puissent, sous certaines conditions, contester la légalité du transfert de propriété à un tiers à l’issue d’une exécution forcée d’une hypothèque sur leur logement familial

Sanofi Pasteur
Environnement et consommateurs
Responsabilité en matière de vaccins : l’avocate générale Medina considère que l’application inconditionnelle d’un délai de forclusion de dix ans dans le cas de pathologies évolutives est contraire à la Charte

Google et Alphabet / Commission
Concurrence
L’avocate générale Kokott propose à la Cour, dans l’affaire Google Android, de rejeter le pourvoi formé par Google et de confirmer ainsi l’amende de 4,124 milliards d’euros prononcée par le Tribunal

Commission / Pologne (Publicité pour les pharmacies)
Rapprochement des législations
L’interdiction de publicité pour des pharmacies en vigueur en Pologne est contraire au droit de l’Union

[If you do use the blog for research, practice submission or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.]

X v Y ECLI:NL:GHDHA:2025:1020 at the court of Den Haag, acting upon appeal is an interesting ‘residual’ application of the Rome I Regulation 593/2008 and an excellent case to appreciate ordre public.

The parties had married in Iran in 2009. The divorce was established by the courts at The Hague in 2022. Jurisdiction is established under Regulation 2016/1103 (‘Rome IVa) and [5.1], with respect to the dower, under residual Dutch law.

The first instance court held that no lis pendens could be accepted with concurrent divorce proceedings in Iran, due to there not being a recognition Treaty with Iran under which any Iranian finding can be recognised and enforced in The Netherlands. This part of the ruling had not been appealed.

The court also held that the parties’ prenuptial arrangements must be enforced, and that ordre public considerations do not prevent that.

The prenup gave the wife a 50% share in the husband’s estate, unless it was the wife who initiated divorce proceedings; and it included the husband’s dower arrangements, consisting of a (modest) cash payment and additionally 150 Bahar-Azadi gold coins. Payment is indeed by way of dower and not dowry as I had first erroneously reported on X, Bluesky and Linkedin. Thank you Béligh Elbalti for pointing out that a dowry is property or money brought by a bride to her husband or his family at the time of marriage. Islamic law seemingly does not recognise dowry. But it does recognise a dower: property or money provided by a husband for his wife.

The first instance court argued that ordre public must be applied in ad hoc fashion rather than across the board; that the wife had negotiated a pre-nup which canceled out the ordinarily applicable rule that spouses do not share their property, instead each keeping their separate property, both that brought into the marriage and that acquired before it; that therefore if the wife initiated the divorce, she was brought back to the situation as exists had there not been a prenup (and the same situation which applied to the man at any rate); and that the Dutch legal order’s objection to the pressure the man may therefore put on the wife to initiate the divorce, is not of such an intense nature as to offend ordre public. 

As for the dower, the first instance court held that 110 coins be paid immediately and a further 40 when the ex-husband’s financial arrangements so allow: this followed from the application of Iranian law, as clarified by expert report,  that any dower above 110 coins may be postponed to take account of the husband’s financial situation. 

The appeal court looked at the applicable law issue from a more explicit international /European angle than the first instance court.

For the matrimonial property issue (the 50% issue), the court, like the parties, applies the 1978 Hague Convention. Consequently Iranian law applies. Rather than the first instance court’s assessment of ordre public viz the Dutch provisions on same, the appeal court tests it against Article 14 of the Hague Convention, yet it comes to the same conclusion. Like the first instance court it does so with much reference to the standard Iranian practice. [5.10] ff it holds obiter that even if the provision were to offend Dutch ordre public, the impact of that finding would give the wife an inalienable right to 50% of the husband’s share (not reciprocated for the husband) which in turn would offend ordre public for it would go directly against Iranian law’s intention both party autonomy and protection for the wife: viz that latter element the court points out that in accordance with the applicable Dutch law provisions for maintenance, the wife will be looked after, on top of the dower entitlement which the court addresses next, [5.13] ff:

Rome I A1(2)b excludes “obligations arising out of family relationships and relationships deemed by the law applicable to such relationships to have comparable effects, including maintenance obligations” and in (c) it excludes “obligations arising out of matrimonial property regimes, property regimes of relationships deemed by the law applicable to such relationships to have comparable effects to marriage, and wills and succession”.

The dower element of the claim in the case clearly is not covered by Rome I itself. However The Netherlands, like for instance Belgium, applies Rome I ‘even when it does not apply’ – as long the dower can be considered a contract under the relevant Dutch PrivIntLaw provision (not: the Rome I autonomous interpretation) which the court [5.14] holds it is. [5.17] That the cash payments have been made, is not contested.

The husband claims that the wife divorced him by khul, or khula, with relinquishment of the dower. The court [5.21] disagrees. The divorce is subject to Dutch law, which does not have a khul-type procedure. As for the ordre public arguments under Dutch law (which apply here; contrary to the matriomonial property issues where as noted above, the Hague Convention applies) the appeal court confirms the lower court’s findings. A dower is part and parcel of Iranian law. The case at hand does not offend Dutch ordre public with such intensity that payment of the dower must be dismissed.

[5.21] finally the court holds that parties do not consider that the dower payments of the gold coins are covered by Iranian export sanctions.

An interesting case.

Geert.

1/2 Interesting application of Rome I to dowry per Iranian marriageRome applies residually despite exclusion of family property law: Dutch PrivIntLaw revives itNo ordre public objection to payment in fullNo relinquishment by wife seeing as Dutch law, applicable to the divorce,

— Geert Van Calster (@gavclaw.bsky.social) 2025-06-14T07:46:05.099Z

Entrée en fonctions d’un nouveau membre de la Cour de justice et de deux nouveaux membres du Tribunal de l’Union européenne

WS e.a. / Frontex (Opération de retour conjointe)
Droit institutionnel
Avocate générale Ćapeta : opérations de retour - le Tribunal a commis une erreur dans son appréciation du lien de causalité dans le cadre d’un recours en dommages et intérêts introduit par une famille syrienne contre Frontex

OHB System / Commission
Marché publics
Programme Galileo : l’arrêt du Tribunal rejetant le recours d’OHB System contre l’attribution du marché des satellites de transition est annulé

Espagne / Commission
Agriculture
Les recours introduits contre la détermination par la Commission de zones à protéger, abritant ou susceptibles d’abriter des écosystèmes marins vulnérables dans certains lieux de pêche en eau profonde, sont rejetés

[If you do use the blog for research, practice submission or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.]

Thank you Alain Devers for alerting us to the Supreme Court’s decision in follow-up of the CJEU judgment in Case C‑633/22 Real Madrid Club  de Fútbol, AE v EE, Société Éditrice du Monde SA which I discussed here.

On 28 May the Supreme Court held that the court of appeal’s refusal of recognition is annulled, and needs to be reconsidered by a different court of appeal. Its annulment is based squarely on the court of appeal not having properly considered the elements identified by the CJEU. Evidently, the final judgment may still lead to the same result, but will have to be justified differently if that is the route that will be taken.

[33] it notes that the court of appeal had reviewed the substance of the Spanish courts’ findings, in reassessing whether the French journalists and editor had acted with disregard for their professional duties and in reevaluating both the seriousness of their disregard and the impact this had on the aggrieved.

[39] it refers to the court of appeal’s ordre public finding which had not considered the seriousness of the infringement as held by the Spanish courts.

[45] the court of appeal is faulted for not having considered the financial means of the journalist in question, in considering whether the recognition and enforcement would have an impact on free speech: this is one of the criteria the CJEU had held as being relevant.

[51] the same consideration is made viz the newspaper itself.

[57] the court of appeal should have considered, as now instructed by the CJEU, the distinction between the reputation of a legal cq natural person (the former lacking the ‘moral’ element of impacting on the ‘dignity’ of the person).

The CJEU had given very specific instructions to the national judges in cases like these and I am not sure that is the way to go. As Szpunar AG had noted in his Opinion in the case, the relevant CJEU authorities prior to current case hitherto had engaged with procedural law ordre public exceptions, rather than substantive rules such as here fundamental rights. The obvious downside of that route is that national courts may now be tempted nay feel obliged to refer to the CJEU to seek substantive instruction for the ordre public assessment of other rights, too, leading to Kirchberg having to give specific instructions for umpteen scenarios. Not what Brussels Ia intended, me thinks.

Geert.

EU Private International Law, 4th ed, 2024, 2.619 ff.

[If you do use the blog for research, practice submission or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.]

In Stichting Environment and fundamental rights v Repsol Perú BV et al ECLI:NL:RBDHA:2025:8700, the claim relates to the 15 January 2022 oil leak at La Pampilla, Peru, also known as the Callao Oil Spill.

Defendants are Repsol Perú BV, domiciled at The Hague: this is the anchor defendant and jurisdiction against it is easily established using Article 4 Brussels Ia. The other defendants are Repsol SA Madrid, and Refinería La Pampilla SAA of Callao. Peru.

‘Forum connexitatis’ is the power for a court to exercise jurisdiction over defendants against whom it does not ordinarily have jurisdiction, provided the claims against them are so closely related to (hence ‘connexitatis’) one against a defendant viz whom said court undisputedly has jurisdiction, that the interest of justice requires joint treatment of all claims concerned. The latter defendant is called the ‘anchor defendant’.

In the case at issue, forum connexitatis needs to be tested against the EU rules (Article 8 Brussels Ia) in the case of Repsol SA; and under residual Dutch rules (Article 7(1) CPR, because A8(1) does not apply against non-EU domiciled defendants) in the case of Refiniería La Pampilla SAA.

Current judgment deals with the jurisdictional issues only and does not mention applicable law at all. It is likely claimants make use of Article 7 Rome II’s lex ecologia provisions (compare the Lliuya v RWE judgment just last week) however I cannot be sure.

A first argument of defendants is that under Article IX of the 1992 International Convention on Civil Liability for Oil Pollution Damage  – CLC, the claim must be brought in Peru:

“Where an incident has caused pollution damage in the territory, including the territorial sea or an area referred to in Article II, of one or more Contracting States or preventive measures have been taken to prevent or minimize pollution damage in such territory including the territorial sea or area, actions for compensation may only be brought in the Courts of any such Contracting State or States.”

[4.6] the court acknowledges that prima facie this does look like a knock-out point. However [4.7] it points out that on the other hand, the CLC only regulates the liability of the ship owner and its insurer and how they can be sued. [4.9] the court confirms its reading of text itself, the travaux and the DNA of the CLC as not pertaining to claims against parties other than the ship owner and its insurer. ‘A 2002 judgment by the Italian Supreme Court’ which I suspect is I.O.P.C.F. v. Registro Italiano Navale and others, re the sinking
of m/t “Erika”, Italian Supreme Court 17 October 2002 n. 14769 is distinguished on the ground that that claim involved the affiliated persons listed in A IX CLC.

The court then considers A8(1) BIa viz Repsol SA, and [4.13] points out that the same principles in application of the EU anchor rules, apply equally to the residual Dutch rules.

[4.11] it suggests that the claim against the anchor defendant must have a prospect of success, for A8(1) jurisdiction to be possible. That view is not imo supported by the authorities and the issue is currently sub judice at least as far as follow-on damages claims are concerned, in CJEU C-673/23 Electricity & Water Authority of Government of Bahrain ea v Prismiian ea. I review the Opinion of Kokott AG here.

[4.16] the core reproach viz the defendants is said to concern the inadequacy of the La Pampilla reception facilities, and defendants’ inadequate response to the spill. Repsol BV argues that it is a most remote shareholder and not at all involved in the goings-on in Peru and that even Repsol SA has no direct dealings with the Peruvian operations. [4.17] claimants argues the near exclusive ownership (more than 99%) of Repsol BV in La Pampilla, a shared director and other links show the direct involvement or at the very least a culpable non-involvement: Repsol VB ought to have used its influence to avoid the calamity.

[4.18] however the court rejects the shareholding and other circumstances and demands claimants show “direct involvement” by Repsol BV. That is most definitely a step back viz recent duty of care litigation, including in The Netherlands. The court did not immediately refuse instant permission to appeal hence I suspect (but I am not a Dutch CPR expert) this must be possible – and most definitely should be exercised.

The merits review test is as I argue above, not good law under A8(1) authority and the requirement of ‘direct involvement’ is not in line with recent duty of care practice.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.13.1 (in particular 2.496); Heading 2.2.15.3.2; Chapter 7.

'Global North' business & human rights claim, Peru oil spillDutch court rejects forum connexitatis viz Spanish, Peruvian corps, wth Dutch anchor defendantAccepts jurisdiction viz NL defendant despite 1992 CLC ConventionStichting E&FR v Repsol BV ea deeplink.rechtspraak.nl/uitspraak?id…

— Geert Van Calster (@gavclaw.bsky.social) 2025-05-26T07:17:55.045Z

Tony’s Open Chair have today published my opinion on the impact the European Commission’s ‘Omnibus’ deregulation proposal will have on the applicable law for supply chain liability claims. In short: not a good one.

Richard Gardiner has other updates on the issue here and he is generally a marvel when it comes to sharing all things CS3D.

Geert.

EU Private International Law, 4th ed 2025, Chapter 7.

Commission / Zippo Manufacturing e.a.
Relations extérieures
Litige de 2020 entre l’Union européenne et les États-Unis concernant les droits de douane : selon l’avocate générale Ćapeta, la Commission n’a pas violé le droit de Zippo d’être entendue

Pumpyanskiy / Conseil
Relations extérieures
Gel des fonds : l’avocate générale Medina considère que le critère d’inscription de femmes et d’hommes d’affaires influents sur les listes de personnes faisant l’objet de mesures restrictives à la suite de l’invasion de l’Ukraine par la Russie est légal