Flux européens

Lexitor
Environnement et consommateurs
Contrats de crédit à la consommation : en cas de non-respect de l’obligation d’information, une banque peut être privée de son droit aux intérêts

Engagement solennel de trois membres de la Commission européenne

Servis-Terminal LLC v Drelle [2025] EWCA Civ 62 is an interesting case highlighting the difference between recognition and enforcement, and the circumstances in which one may not need formal recognition of a foreign court’s finding, in order effectively to enforce that finding. 

Can a bankruptcy petition be presented when payment ordered by foreign Court has not been made yet foreign judgment has not been sought to be enforced? The first instance judge had held [Drelle v Servis-Terminal LLC [2024] EWHC 521 (Ch)] that the fact that the Judgment had not been the subject of recognition proceedings in this jurisdiction did not prevent it from being the basis of a bankruptcy petition. 

Newey LJ [40], reversing, confirms that “(p)lainly, a foreign judgment can be determinative on a point even in the absence of recognition or registration.” Referring to Dicey Rule 45, the Court of Appeal recalls that as a general principle a foreign judgment “has no direct operation in England” and [39] “[a] judgment creditor seeking to enforce a foreign judgment in England at common law cannot do so by direct execution of the judgment” but “must bring an action on the foreign judgment”. Lord Justice Newey then uses a sword and shield analogy: [41]

The principle that a foreign judgment “has no direct operation in England” reflects the common law’s aversion to enforcing a foreign exercise of sovereign power. As Professor Briggs has explained, “if a foreign adjudication and judgment is understood as being an act of state sovereignty, … it is regarded as completely effective within the territory of the sovereign, and as completely unenforceable outside it”: see paragraph 21 above. That logic suggests that any use of an unrecognised and unregistered judgment as a “sword”, including presentation of a bankruptcy petition founded on it, is objectionable.

The ‘revenue rule’ (famously and extensively entertained in SKAT) [42]

has a similar root. Professor Briggs referred to it as “a particular manifestation of a more fundamental rule, that an assertion or exercise of the sovereign right of a foreign state will not be enforced by an English court”: see paragraph 21 above. In Solo Partners, Lord Lloyd-Jones thought that the “revenue rule” was to be explained on the basis that “enforcement of a claim for taxes is but an extension of the sovereign power which imposed the taxes, and … an assertion of sovereign authority by one state within the territory of another, as distinct from a patrimonial claim by a foreign sovereign, is (treaty or convention apart) contrary to all concepts of independent sovereignties”: see paragraph 20 above.

Further authorities re discussed however Newey LJ’s mind is firm on the ‘shield and sword’ issue: [55] an unrecognised foreign judgment, which …involves an exercise of sovereign power [similar to a foreign tax not giving rise to a debt that can be the foundation of a bankruptcy petition] cannot form the basis of such petition. Of note! Geert. https://x.com/GAVClaw/status/1886740770033438751

Russmedia Digital et Inform Media Press
Liberté d'établissement
Commerce électronique et RGPD : l’avocat général Szpunar clarifie les responsabilités de l’exploitant d’une place de marché en ligne

A short note (on the day the UKSC appeal in MSC Flaminia is being heard) on the CJEU judgment in C‑188/23 Land Niedersachsen v Conti  11. Container Schiffahrts-GmbH & Co. KG MS ‘MSC Flaminia’.

The Court essentially followed the Opinion of Capeta AG which I discussed here. The operative part reads

Article 1(3)(b) of Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste

must be interpreted as meaning that the exclusion from the scope of that regulation that that provision provides for, pertaining to the waste generated on board a ship following damage sustained by that ship on the high seas until that waste is offloaded in order to be recovered or disposed of, no longer applies to the waste which remains on board that ship in order for it to be shipped, together with that ship, for recovery or disposal, after part of that waste has been offloaded in a safe port in order to be recovered or disposed of, that interpretation being in conformity with Article 1(4) of the Convention on the control of transboundary movements of hazardous wastes and their disposal, signed in Basel on 22 March 1989, approved on behalf of the European Economic Community by Council Decision 93/98/EEC of 1 February 1993.

The CJEU applies the VCLT’s interpretative matrix holding it leads to the Basel Convention having to be applied teleologically, and it also reminds us [58] of the ling-standing CJEU authority that “in interpreting a provision of EU law, it is necessary to consider not only its wording but also its context and the objectives pursued by the legislation of which it forms part”. It then essentially repeats the AG’s lines of analysis that while exemption from notification etc may be justified in the light of the immediate aftermath of an incident at sea, but is no longer justified once the ship had docked and the captain etc can properly assess the various implications of what has happened.

All in all a sensible judgment.

Geert.

Handbook of EU Waste Law, 2nd ed. 2015, Oxford, OUP, Chapter 3, 3.27 ff.

Ryanair / Commission (TAP II ; aide au sauvetage ; COVID-19)
Aide d'État
Le Tribunal rejette le recours de Ryanair contre la décision de la Commission approuvant de nouveau l’aide au sauvetage à TAP dans le contexte de la pandémie de Covid-19

Pologne / Commission
Droit institutionnel
Réforme de la justice polonaise de 2019 : le Tribunal confirme que la Pologne doit payer un montant total d’environ 320 200 000 euros au titre de l’astreinte prononcée par la Cour de justice au cours de la procédure en manquement

Commission / Courtois e.a.
Droit institutionnel
L’obligation de la Commission de divulguer l’identité des membres de l’équipe de négociation pour l’achat anticipé de vaccins contre la Covid-19 est suspendue provisoirement, dans l’attente de l’arrêt de la Cour

Keren
Espace de liberté, sécurité et justice
Protection internationale : le droit de l’Union ne s’oppose pas, sous certaines conditions, à ce que les bénéficiaires d’une protection internationale doivent réussir un examen d’intégration civique

Asociația Inițiativa pentru Justiție / Commission
Adhésion de nouveaux Etats
État de droit : le recours d'une association professionnelle de procureurs roumains contre la décision de la Commission abrogeant la décision instituant le mécanisme de coopération et de vérification est rejeté comme irrecevable

ASG 2
Concurrence
Réparation du préjudice causé par une entente : une réglementation nationale empêchant une action groupée en recouvrement peut enfreindre le droit de l’Union

Engagement solennel de la présidente et des membres de la Commission européenne devant la Cour de justice de l’Union européenne

I reviewed the first instance judgment in Clifford Change v SocGen here. Soc Gen have unsuccessfully appealed, see Clifford Chance LLP & Anor v Societe Generale SA (Rev1) [2025] EWCA Civ 14, with Phillips LJ not taking up much space to do so.

Viz the question whether Clifford Change LLP was bound, he holds [46] that the pleaded basis of the core of SocGen’s appeal on this aspect is that the Judge erred as a matter of interpretation (emphasis in the original) of the Framework Agreements, asserting that the Judge failed to give effect to the true intention of the parties (ditto) to those agreements that all Clifford Chance entities would be bound by their terms. [47] ‘However, it is entirely clear that the Judge did not decide the question of whether CC LLP was bound by the Framework Agreements as a matter of interpretation, but on the basis that SocGen did not have a good arguable case that CC LLP was, or became, a party to them.’

In other words SocGen’s appeal was held to be questioning the judge’s factual findings on authority to bind parties, findings which it was not allowed to challenge in the appeal. Entirely obiter, Phillips LJ does review those findings [57] ff, holding obiter [60] that SocGen has failed to demonstrate that that evaluation was plainly wrong.

On Clifford Chance Europe being bound, the grounds of appeal are as follows ([65-66]):

SocGen first challenges the Judge’s assumption that there is no substantive claim against CC Europe. SocGen points out that the letter of claim addressed to CC Europe asserted a claim on the basis that CC Europe was the “dominus litis”, a French law claim based on the concept that CC Europe had a supervisory role in relation to the conduct of the Goldas Litigation by CC LLP. SocGen further emphasises that the Judge did not have evidence of French law in that regard, and that in any event the pleadings in the French proceedings have not closed. SocGen contends that if CC Europe wishes to obtain a negative declaration in respect of its liability for such a claim, it is contractually obliged to do so in France, where proceedings on the same issue are already underway.

The second challenge is to the Judge’s concern that staying CC Europe’s claim in this jurisdiction would lead to a multiplicity and/or a fragmentation of proceedings. SocGen points out that there is already and will continue to be a multiplicity of proceedings, pointing out that (i) that position was caused by the respondents’ decision to seek negative declarations in England when proceedings were being brought in France; and (ii) such multiplicity was foreseeable by the parties when (contrary to SocGen’s case) CC LLP was implicitly retained separately and on different terms as to governing law than had been agreed between CC Europe and SocGen.

However Phillips LJ holds [67] that the Judge was right to find that there are strong reasons not to stay CC Europe’s claim in E&W:

There is no doubt that SocGen’s primary and substantive claim is against CC LLP, being the firm that was retained in relation to the Goldas Litigation and whose actions or inactions are now alleged to have been negligent. That is apparent from the letter of claim addressed to CC Europe, all the faults and negligence alleged being those in the conduct of the Goldas Litigation by CC LLP. The Judge determined that England is the appropriate forum for determination of that dispute. I accept that the Judge may have gone too far in concluding (at this stage and on the evidence before him) that SocGen does not have a genuine claim against CC Europe under French law. But even if there is some parasitic claim against CC Europe based on a “supervisory” role (SocGen having failed to adduce any evidence as to the existence of such a claim, let alone to explain its nature and effect), it is plainly desirable that it be determined in the same proceedings as the dispute between SocGen and CC LLP, namely, in these proceedings in the appropriate forum. There are strong reasons why CC Europe should not be debarred from seeking a declaration together with CC LLP in England, the effect of staying its claim being to require CC Europe to defend itself separately in France in respect of the very actions of CC LLP which will be the subject of these proceedings.

The first hearing in Soc Gen’s French proceedings took place in March 2024. [68] the Court of Appeal suggests a possible course of action for the French Proceedings, both on behalf of SocGen and the French court itself:

It is true that the French proceedings may continue notwithstanding the Judge’s order, and that may be a result of Clifford Chance entities having bifurcated their contractual relations with SocGen and having then initiated proceedings in this jurisdiction. But that is not a sufficient reason to fragment these proceedings before the plainly appropriate forum. There must be a realistic expectation that SocGen, and indeed the French court, will be reluctant to duplicate in France proceedings in England as to the alleged negligent conduct by English solicitors of Commercial Court proceedings in London.

Geert.

 

Royal Football Club Seraing
Arbitrage sportif : selon l’avocate générale Ćapeta, les sentences du Tribunal arbitral du sport doivent pouvoir faire l’objet d’un contrôle complet par les juridictions nationales afin de vérifier la compatibilité des règles de la FIFA avec le droit de l’Union

Ministarstvo financija (Bourse Erasmus+)
Citoyenneté européenne
Bourse Erasmus + : le montant versé à un étudiant ne doit pas être pris en compte pour le calcul de l’impôt sur le revenu du parent l’ayant à sa charge

MegaFon / Conseil
Relations extérieures
Guerre en Ukraine : le Tribunal confirme les mesures restrictives adoptées contre l’opérateur de téléphonie mobile russe MegaFon

Beevers Kaas
Concurrence
Droit de la concurrence et accords de distribution : le distributeur exclusif doit être protégé des ventes actives effectuées sur son territoire par tous les autres acheteurs du fournisseur

Mousse
Principes du droit communautaire
RGPD et transport ferroviaire : l’identité de genre du client n’est pas une donnée nécessaire pour l’achat d’un titre de transport

A quick note on Playtech Software ea v Games Global Ltd ea [2024] EWHC 3264 (Ch) in which Thompsell J discussed ia Rome II in an application for service out (of the jurisdiction). 

As confirmed by Arnold LJ in Shenzhen Senior Technology Material Co Ltd v Celgard, LLC [2020] EWCA Civ 1293 [51]  as a matter of English law, claims for breach of equitable obligations of confidence are not claims in tort: yet that does not rule out that under Rome II, they are non-contractual obligations whose lex causae is determined under that Regulation (see also Autostore).

Thompsell J in casu [100]:

Breach of confidence is a species of unfair competition within Article 6 of the Rome II Regulation and Article 6(2) applies because Playtech’s claims are concerned with alleged acts of unfair competition affecting exclusively the interests of a specific competitor. In these circumstances, Article 6(2) provides that “Article 4 shall apply“. The consequence is that Article 4, which is concerned with the law applicable to a non-contractual obligation arising out of a tort, applies to determine the applicable law. This is despite breach of confidence not being a claim in tort for the purposes of English law.

Note that Article 4 Rome II unlike Article 6, contains an overall escape clause. [103] with reference to Celgard, the judge confirms that under Article 4(1) the connecting factor is the direct damage caused by the wrongdoing. Whether the relevant acts also had an effect, and may be regarded as having been carried out, in the United Kingdom, is not the relevant factor.

The judge [106] upholds claimant’s argument that it is facing competition to its business, which it conducts in the UK, in relation to its sales from at least one game developed by defendant, that has a feature that has relied on its confidential information, allegedly spirited away by a former employee of one of Playtech’s sister companies. The direct damage therefore is held to have been suffered in the jurisdiction and the tort gateway (see also UKSC Brownlie) for jurisdiction satisfied.

Geert.

EU private international law, 4th ed 2024, Heading 4.6.2.

https://x.com/GAVClaw/status/1869462089934450944

Bindl / Commission
Droit institutionnel
Le Tribunal condamne la Commission à payer des dommages et intérêts à un visiteur de son site Internet de la Conférence sur l’avenir de l’Europe en raison du transfert de données à caractère personnel aux États-Unis