Flux européens

Federatie Nederlandse Vakvereniging e.a.
SOPO
Les droits des travailleurs en cas de transfert d’entreprises peuvent être applicables lors de la conclusion d’un « pre-pack » suite à une faillite

Martinez Silva
Espace de liberté, sécurité et justice IMMI SESO
Le ressortissant d’un pays non UE, titulaire d’un permis unique de travail dans un État membre, bénéficie, en règle générale, des prestations de sécurité sociale prévues pour les ressortissants de cet État

W e.a.
Rapprochement des législations PROT
En l’absence de consensus scientifique, le défaut d’un vaccin et le lien de causalité entre celui-ci et une maladie peuvent être prouvés par un faisceau d’indices graves, précis et concordants

Mengesteab
Espace de liberté, sécurité et justice ASIL
L’avocat général Sharpston estime qu’un demandeur de protection internationale peut contester la décision d’un État membre de le transférer vers un autre État membre au motif que la « requête de prise en charge » envoyée par le premier État membre n’a pas été présentée dans les délais prescrits par le droit de l’Union

 

Less than two months after the AG Opined (see my report here), the Court of Justice has already held in C-249/16 Kareda v Stefan Benkö. The judgment follows Opinion to a tee albeit with a slightly more cautious link between Brussels I (jurisdiction) and Rome I /II (applicable law): at 32, with reference to the similarly cautious approach of the Court in Kainz.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2, Heading 2.2.11.2.9 .

I have reported before (search tag ‘CSR’ or ‘ATS) on the personal jurisdiction cases in US litigation. The United State Supreme Court this morning held in Bristol-Meyers Squibb, BMS for short. For background see earlier reporting in this post. California was held not to have jurisdiction for claims brought by non-residents. In her dissenting Opinion justice Sotomayor notes the important impact of the ruling, suggesting that a corporation that engages in a nationwide course of conduct cannot now be held accountable in a state court by a group of injured people unless all of those people were injured in the forum State.  Precedent evidently includes Bauman.

Judgment and opinion include many interesting takes on personal jurisdiction and how it should be managed.

Geert.

 

Si terrà a San Ginesio (Macerata), il 29 e il 30 settembre 2017, il tradizionale incontro dei dottorandi di ricerca in diritto internazionale, diritto internazionale privato e diritto dell’Unione europea, organizzato dalla Società Italiana di Diritto internazionale e dell’Unione europea e dal Centro italiano di studi gentiliani.

Ulteriori informazioni sono disponibili qui.

 

Comparative conflict of laws is often a useful source for exam (essay) questions. I used People of State of New York v. PriceWaterhouseCoopers, LLP, No. 3685N (N.Y. App. Div. May 23, 2017) to ask my students to surmise how an EU-base court would judge the issue raised.

Keith Goldberg over at LAw360 has the following great summary:

A New York appellate court [.. ] upheld a decision to force ExxonMobil’s outside auditor PricewaterhouseCoopers LLP to comply with New York Attorney General Eric Schneiderman’s demand for documents in his probe of whether the oil giant lied to investors about the climate change risks to its business.
The Appellate Division backed state Supreme Court Judge Barry Ostrager’s Nov. 26 order that PwC turn over documents related to its audit of Exxon subpoenaed by Schneiderman, saying the judge correctly held that New York law, not the law of Texas, where Exxon is headquartered, applies to questions of evidentiary privilege and that the Empire State doesn’t recognize accountant-client privilege.

Mr Ostrager’s decision is here – it has more choice of law considerations than the appelate court’s order. Eversheds have excellent analysis here of the overall issue of considering applicable law for privilege under the first and second restatement of the law. In the case at issue, ExxonMobil as well as the documents disclosure of which is sought (such as projected carbon costs and their application to Exxon’s capital allocation decisions, as well as documents provided to Exxon by PwC concerning the auditor’s role in compiling Exxon’s submissions about greenhouse gas emissions for the Carbon Disclosure Project, a nonprofit that collects information on greenhouse gas emissions) are based at Texas. But the trial is underway in New York.

Now, to the essay Q: how would an EU-based court hold on the issue? (For the purpose of last week’s exam I had a Belgian court rule on the issue, with the oil company based at Belgium, and the accountant at England, with the agreement between company and accountants subject to English law.

I am marking these exams later this week and hope to read some or all of the following: reference to overall principle that procedure is subject to lex fori; that statement being of little use in a system (like the EU) that thrives on predictability: for what is procedure to one, is substantive law to another; arguments existing both pro this being procedure (closely tied up with evidence, clear links with public policy) as well as substantive (privilege despite its public nature also protecting private, including commercial interest; parties wishing to manage the issue of sensitive information and forum); need for autonomous interpretation and tendency within the EU to define the ‘scope of the law applicable’ (eg both in Rome I and II);  no trace in said Regulations of privilege being included in the scope of law applicable.

As always, I am hoping for students to surprise me. Undoubtedly they will.

Geert.

 

The CJEU held in C-185/15 Kostanjevec in October: I reported on the Opinion and the judgment then went under my radar.

On the issue of temporal applicability, the Court sides with the AG entirely, and I agree it should.

The Court then takes a firmly wide approach to the notion of ‘counterclaim’ in (now) Article  8(3): it is in the interests of the sound administration of justice that the special jurisdiction for counterclaims enables the parties, in the same proceedings and before the same court, to litigate all their claims against each other that have a common origin (at 37). In circumstances such as those of the main proceedings, the counterclaim for reimbursement on the ground of unjust enrichment must be regarded as arising from the leasing contract from which the lessor’s original action originated. The alleged enrichment in the amount of the sum paid in enforcement of the judgment that has since been set aside would not have taken place without that contract. (at 38).

‘Common origin’ of course is a notion which is difficult to decide in abstracto: despite the Court’s attempts to harmonise Article 8(3)’s approach, the potential for national courts to insert local approaches remain. Even the discussion of (now) Article 8(3) in the Jenard Report hinted at the provision being a difficult marriage between local civil procedure rules on the one hand and the need for European harmonisation on the other.

Geert.

(Handbook of) European Private International law, 2nd ed. 2016, chapter 2, Heading 2.2.11.1.a, Heading 2.2.21.3, Heading 2.1.1

It does not happen all that often: this is a call for assistance. Following a student’s Q re ‘habitual residence’ in Rome I, I have now noticed something I had not before (I more often than not use the English version of the Regulation in my teaching and practice): Article 6(1) on ‘consumer contracts’ uses the term ‘habitual residence’ ‘gewone verblijfplaats’ (defined, or not, for natural persons, in Article 19) in the introductory para (which identifies applicable law). However in littera a it then uses ‘domicile’ ‘woonplaats’: a term which is not otherwise used in Rome I and which is not defined by it.

A quick scan of other language versions (French, English, German) reveals no such error: they all use the equivalent of ‘habitual residence’ in both instances. Now, evidently the error must be pushed aside given the other language versions however: is any reader of the blog aware of a corrigendum ever published? For if it has, I cannot locate it.

Geert.

(Handbook of ) European Private International Law, 2nd ed. 2016, Chapter 3, Heading 3.2.5.

Stichting Brein
Liberté d'établissement
La fourniture et la gestion d’une plateforme de partage en ligne d’œuvres protégées telle que « The Pirate Bay » peut constituer une violation du droit d’auteur

TofuTown.com
Agriculture
Les produits purement végétaux ne peuvent pas, en principe, être commercialisés avec des dénominations qui, telles les dénominations « lait », « crème », « beurre », « fromage » ou « yoghourt », sont réservées par le droit de l’Union aux produits d’origine animale

Menini et Rampanelli
Rapprochement des législations
Le droit de l’Union ne s’oppose pas à une réglementation nationale qui prévoit, dans les litiges impliquant des consommateurs, qu’une médiation obligatoire soit menée avant tout recours juridictionnel

La Rivista Freedom, Security & Justice: European Legal Studies (su cui si veda questo post) e l’Osservatorio sullo Spazio europeo di libertà, sicurezza e giustizia presso il Dipartimento di Scienze Giuridiche dell’Università di Salerno organizzano un convegno dal titolo Il processo di integrazione europea tra limiti e antinomie: cittadinanza, immigrazione e identità nazionali. L’evento, realizzato in collaborazione con il Gruppo di interesse sui Diritti fondamentali e sulla cittadinanza nello spazio di libertà, sicurezza e giustizia della Società italiana di diritto internazionale e diritto dell’Unione europea (SIDI), è programmato per il mese di novembre 2017.

Gli organizzatori hanno indetto un call for papers per ricevere e selezionare i contributi riguardanti il tema del convegno, da destinare in seguito al terzo fascicolo della Rivista. Gli interessati sono invitati ad inviare l’abstract del proprio contributo all’indirizzo slsg@unisa.it entro il 30 giugno 2017. L’abstract, in lingua italiana, inglese o spagnola, non dovrà superare i 9.000 caratteri (spazi inclusi).

Maggiori informazioni disponibili consultando la locandina della call for papers, reperibile qui.

 

The periodical Freedom, Security & Justice: European Legal Studies (also mentioned in this post) and the Observatory on the European area of freedom, security and justice of the Department of legal science of the University of Salerno organizes a conference called Il processo di integrazione europea tra limiti e antinomie: cittadinanza, immigrazione e identità nazionali (the process of European integration between limits and antinomies: citizenship, immigration and national identities). The event, achieved in collaboration with the Group of interest on fundamental rights and on immigration in the area of freedom, security and justice of the Italian society of International Law (SIDI-ISIL), is scheduled for November 2017.

The organizers have announced a call for papers in order to receive and select the papers regarding the topic of the conference, which will be later published in the third issue of the periodical. Whoever is interested in participating in the call for papers is invited to send the abstract of his or her paper to the address slsg@unisa.it within 30 June 2017. The abstract may be written in Italian, English or Spanish and must not exceed 9.000 characters (spaces included).

Further information may be found on the poster of the call for papers, available here.

The Gibraltar Betting and Gaming Association Limited et The Queen
Libre prestation des services
Le principe de libre prestation de services garanti par le droit de l’Union ne s’applique pas entre Gibraltar et le Royaume-Uni

From 18 September to 22 September 2017, the Department of Law of the University of Pavia, in cooperation with the Almo Collegio Borromeo and with the support of ELSA Pavia (European Law Students Association – Pavia Chapter), will host a Summer School in English on Dispute Resolution: A Multifaceted Approach. Further information can be found here.

Dal 18 al 22 settembre 2017, il Dipartimento di Giurisprudenza dell’Università di Pavia organizza insieme all’Almo Collegio Borromeo e con il supporto dell’associazione ELSA – Pavia (European Law Students Association – Pavia Chapter) una Summer School in inglese dal titolo Dispute Resolution: A Multifaceted Approach. Per maggiori informazioni consultare questa pagina.

Thank you very much indeed Sarah Venn and Emma Hynes both for flagging Garcia v BIH, Total Gabon and Sigma, [2017] EWHC 739 (Admlty), and (Emma) for providing me with copy (Bailii are not yet running it). This case is extremely suited to an oral exam of conflict of laws: in a written exam to many issues would have to be discussed. (Mine this term are mostly written. Hence I’ll run this piece early).

Claimant is a French national who worked as a professional diver offshore Gabon, West Africa, and suffered catastrophic brain injury which he blames on poor working practices on the second defendant’s site (Total Gabon), which is where he was working. He was employed by first defendant BIH, a UK based company, with choice of court and governing law made for English courts cq English law. First defendant is clearly domiciled in the UK and the Brussels I Regulation clearly applies to it. The third defendant Sigma, was contracted by Total Gabon. Claimant’s position is that he was deployed by BIH to work under the control of Sigma on the site which was, or should have been, supervised by Total Gabon. Total Gabon claim the contractual relationships between it and Sigma prevent a claim against the former.

BIH is small fish which may even have been struck off the company register. It is clear that plaintiff will not receive from BIH the amounts he needs for his constant medical care.

A default judgment was issued against BIG who did not engage with proceedings – at any rate jurisdiction against BIG per Owusu (with which readers of this blog are now ad nauseam familiar) could not be dismissed; . Total Gabon contest jurisdiction on the basis that England and Wales is not the appropriate forum.

This is not said in so many words in the Judgment however the presence of an anchor defendant per Article 4 Brussels I Recast, is of no relevance where the co-defendants are not domiciled in the EU. The regulation cannot be used to justify such anchor, residual conflicts rules take over.

Jervis Kay QC AR considers many cases which I have reported on before: VTB, Owusu, Lungowe, Spiliada. Lungowe in particular is considered by Mr Kay, including the issue of abuse of the use of anchor defendants and (at 23 in fine) the acknowledgment, implicitly (I wrote it explicitly in my review of the case) that of course EU precedent in this respect is pro inspiratio only.  Applying English residual conflicts rules, the judge then reviews whether there is a serious case (‘a real prospect of succeeding’) that could be made against Total Gabon, either one in tort or one in contractual liability. He found there is such real prospect, for both, but especially for tort.

However the case eventually (access to justice issues in Gabon were not flagged neither discussed) stumbles on the question whether the English courts would be the most appropriate forum: it is found they are not. Inspiration is found especially in Erste Group Bank [2015] EWCA Civ 379, a case in which forum non conveniens was applied even against an England-domiciled defendant because there had already been submission to Russian jurisdiction. In Garcia, the Court applies Erste per analogiam: the parallel, Mr Kay suggests, is that the case against the first defendant has effectively been wrapped up. The spectre of competing judgments therefore, Mr Kay holds, does not arise (at 36) and England is therefore not the appropriate forum. If the case is appealed I would imagine this altogether brief consideration of appropriateness and the parallel seen with Erste, I would imagine would be its Achiless heel.

(One of the considerations which defendant, per VTB, considers, is that as a rule of thumb, Gleichlauf is to be preferred (I have often found this a less attractive part of the Supreme Court’s ruling). Which is why defendant considers Rome II: if the English courts were to hear the case, they would have to apply Rome II even if their jurisdiction is a result of residual English conflicts rules).

An alternative action for Mr Garcia, one imagines, would have been (or perhaps it still is) to use Total France SA as anchor in France, to try and have the subsidiary’s actions assigned to it: a more classic CSR case.

Anyways, I think you will agree that one could have a good chinwag on this judgment at oral exam.

Geert.

Si svolgerà a Milano, il 26 giugno 2017, un convegno dal titolo L’evoluzione della disciplina della crisi di impresa dell’Unione Europea – Il Regolamento (UE) 848/2015 e la proposta di direttiva UE per l’armonizzazione da parte degli Stati membri della disciplina di alcuni aspetti delle procedure di insolvenza.

Intervengono Stefania Bariatti (Univ. Milano), Giorgio Corno (avvocato in Monza), Giacomo D’Attorre (Universitas Mercatorum), Patrizia De Cesari (Univ. Brescia), Giovanni La Croce (ODCEC Milano), Caterina Macchi (Tribunale di Milano), Galeazzo Montella (avvocato in Milano), Gaetano Presti (Univ. Cattolica di Milano), Patrizia Riva (Univ. Piemonte Orientale), Luciano Panzani (Corte di Appello di Roma).

Maggiori informazioni a questo indirizzo.

This post could have also carried the title ‘Pro real seat theory. Bud is it?’ [Polbud, Probud, you see…], but with all the Brexit shenanigans going on on Twitter I am somewhat running dry of pun headlines.

I do indeed wonder the following: Kokott AG Opined in C-106/16 Polbud on 4 May, Gillis Lindemans pondered the Opinion (in Dutch) early May – I’have had the Opinion and one or two other things on my mind since.

As Ms Kokott summarises, the present request for a preliminary ruling concerns Polbud’s plan to change its legal form to that of a private limited liability company governed by Luxembourg law. Since Luxembourg, like all other Member States, requires as a condition of incorporation and continued existence under national law that companies have a statutory seat in national territory, such a plan necessarily entails the transfer of Polbud’s statutory seat. Indeed, this appears to have been achieved inasmuch as Consoil was entered in the Luxembourg Companies Register. It must now be clarified, in essence, whether the freedom of establishment precludes that arrangement. What sets the situation in this case apart is the fact that, according to the information contained in the request for a preliminary ruling, the cross-border conversion is not accompanied by a change to the centre of the company’s commercial activities. The referring court asks whether, in that context, the freedom of establishment is applicable (third question), whether that freedom has been restricted (first question) and, if so, whether that restriction is justifiable (second question).

The AG takes us through relevant precedent (readers of the blog will have seen my reviews at the time of judgment): one is best left to simply read her Opinion.  Ms Kokott concludes that the freedom of establishment provided for in Articles 49 and 54 TFEU only applies to an operation whereby a company incorporated under the law of one Member State transfers its statutory seat to another Member State with the aim of converting itself into a company governed by the law of the latter Member State, in so far as that company actually establishes itself in the other Member State, or intends to do so, for the purpose of pursuing genuine economic activity there.

In other words she most  definitely proposes a test along the lines suggested by Darmon AG in Daily Mail, but rejected by La Pergola AG in Centros. So far, so good: AG’s often propose a change of tack, most famously Poiares Maduro in Cartesio. Except, Ms Kokott suggests the Opinion is a simple confirmation of the CJEU’s case-law on the issue: no change of tack. Simply confirmation ex multi. That now does leave me puzzled: the Opinion walks and talks like confirming old precedent; but it does not, surely?

Geert.

(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 7.

The CJEU held yesterday in Case C-296/16P Dextro Energy (text of judgment available in French and German only at the time of posting), an appeal against the General Court’s ruling in T-100/15. The General Court had declined to annul the European Commission Regulation which refused to authorise certain health claims made on foods, other than those referring to the reduction of disease risk and to children’s development and health. Dextro Energy had wanted to include health claims such as  ‘glucose supports normal physical activity’ and ‘glucose contributes to normal muscle function’. The EC had refused: citing (in Regulation 1215/8)

‘Pursuant to Articles 6(1) and 13(1) of Regulation … No 1924/2006 health claims need to be based on generally accepted scientific evidence. Authorisation may also legitimately be withheld if health claims do not comply with other general and specific requirements of Regulation … No 1924/2006, even in the case of a favourable scientific assessment by [EFSA]. Health claims inconsistent with generally accepted nutrition and health principles should not be made. [EFSA] concluded that a cause and effect relationship has been established between the consumption of glucose and contribution to energy-yielding metabolism. However, the use of such a health claim would convey a conflicting and confusing message to consumers, because it would encourage consumption of sugars for which, on the basis of generally accepted scientific advance, national and international authorities inform the consumer that their intake should be reduced. Therefore, such a health claim does not comply with point (a) of the second paragraph of Article 3 of Regulation … No 1924/2006 which foresees that the use of claims should not be ambiguous or misleading. Furthermore, even if the concerned health claim was to be authorised only under specific conditions of use and/or accompanied by additional statements or warnings, it would not be sufficient to alleviate the confusion of the consumer, and consequently the claim should not be authorised.’

The General Court performed its standard review in the face of a wide discretionary room for manoeuvre for the EC, and decided the EC had not exceeded its authority in holding as it did – even in the face of more lenient EFSA recommendations. The Court of Justice has now entirely sided with the General Court. The Judgment is a good reminder of aforementioned standard test (no de novo or merits review; annulment in the event of manifest transgression of power or error in judgment only), and readers best refer to reading the judgment itself.

10One consideration however, I should like to highlight: Dextro Energy had suggested the health claims needed to be assessed in light of the target group (determined in the product’s advertising), which, it was suggested, were physically active people for whom consumption of the glucose tablets in question is not harmless. The Court rejected this approach: the population as a whole, for whom the product is available, are the group which the EC justifiably seeks to protect. The manufacturer’s target group is not the relevant group to consider (do bear in mind that this is a product which is widely available and not restricted in any way at points of sale):

At 76-77: si les allégations de santé en cause étaient autorisées, elles s’adresseraient à la population en général, pouvant ainsi encourager la consommation de sucres par les personnes autres que les hommes et les femmes bien entraînés. Dans ces conditions, le Tribunal n’a pas commis d’erreur de droit lorsqu’il a rejeté, au point 57 de l’arrêt attaqué, l’argument de Dextro Energy, selon lequel c’était le groupe cible qui importait aux fins de l’appréciation des allégations de santé en cause.

Geert.