Flux européens

Commission / Bulgarie (Double manquement - Pollution par les PM10)
Droit institutionnel
Le premier recours en double manquement de la Commission en matière de pollution atmosphérique est irrecevable

Towercast
Concurrence

L’interdiction d’abus de position dominante prévue par les traités permet un contrôle au niveau national et a posteriori d’une opération de concentration d’entreprises de dimension non communautaire

The CJEU last week held in C-177/22 JA v Wurth Automotive. The case concerns the consumer title of Brussels Ia, in particular a refinement of the CJEU  C-630/17 Milivojević and C-28/18  Petruchová case-law (involvement of people with a background in the sector), C-498/16 Schrems (evolvement of use from non-professional to professional or the other way around) and  CJEU C‑464/01 Gruber criteria (dual (non-)professional use).

Applicant in the main proceedings, whose partner is a car dealer and managing director of an online platform for the sale of motor vehicles, was mentioned on the homepage of that platform as the graphic and web designer, without actually having carried out that activity at the time of the facts in the main proceedings. At the request of the applicant in the main proceedings, the partner did some research and contacted the defendant in the main proceedings from his professional email address, in which he indicated a price offer for the purchase of a vehicle. It was stated in that email that the contract of sale was to be concluded on behalf of the applicant in the main proceedings, however a little while after the purchase the partner enquired (but was rebuffed) about the possibility to indicate the VAT amount of the invoice (typically only of interest to business buyers).

Firstly, in applying the consumer title, must account be taken of current and future purposes of the conclusion of that contract, and of the nature of the activity pursued by that person as an employed or self-employed person? As for the latter, the CJEU answer [27] is clearly ‘no’, with reference to Roi Land Investments. As for the former, whether the purpose for the use is current or planned in the future, per Milivojević [88-89], is held by the CJEU not to be of relevance. I would personally add to both Milivojević and Wurth Automotive that any such future use must have been somehow signalled to the business. While the CJEU in Schrems confirmed the possibility to lose the consumer status as a result of subsequent professional use, it has not held (and in my view ought not to) that an initial professional use later changed to non-professional use, may belatedly trigger the consumer section (it has of course supported the later ‘internationalisation’ of the contract per Commerzbank).

Next, what is the burden of proof on whom, and what needs to be proven, when a good or service has been procured for dual professional and non-professional use. Here, the CJEU [30] ff confirms that first of all the professional use or not of the good or service needs to be established on the basis of the objective elements of the file. Only if “that evidence is not sufficient, that court may also determine whether the supposed customer had in fact, by his or her own conduct with respect to the other party, given the latter the impression that he or she was acting for business purposes, such that the other party could legitimately have been unaware of the non-professional purpose of the transaction at issue” [32].

[36] “the impression created by the conduct of the person claiming the status of ‘consumer’….on the part of the other contracting party, may be taken into account to establish whether that person should be afforded the procedural protection laid down in Section 4 of that regulation.”

In the case at issue,

[38] inaction following the presentation of a contract identifying the buyer as a trader, can constitute evidence (but not of singlehandedly determinative value) that the applicant in the main proceedings could have created, on the part of the defendant in the main proceedings, the impression that she was acting for professional purposes;

[39] ditto the sale of the vehicle shortly after the conclusion of the contract and [40] the potential making of a profit, albeit that the latter would in the view of the CJEU ordinarily not be of great impact.

The CJEU finally is not prepared (despite a self-confessed [47] in Wurth Automotive] potential to read same in CJEU Gruber) to read a benefit of the doubt, in inconclusive cases, to the benefit of the alleged consumer, leaving that with reference to CJEU TOTO to national procedural law. Here I think the Court could have held against such benefit on the basis of Brussels Ia itself.

Geert.

EU private International Law, 3rd ed. 2021, 2.231 ff.

 

CJEU this AM C-177/22 Wurth Automotive
Jurisdiction for consumer contracts, Brussels Ia
Non-objection to proposed B2B contract, Qs from purchaser's partner (professionally active in sector concerned) re VAT on invoice, do feed into 'consumer' qualificationhttps://t.co/SSEVaWHQiP

— Geert Van Calster (@GAVClaw) March 9, 2023

Parveen v Hussain [2022] EWCA Civ 1434 (I am still in clearing the backlog mode) is an excellent illustration of this most peculiar of issues under conflict of laws, the issue of ‘Vorfrage’, with the Court of Appeal ending up recognising the second marriage of a Pakistani lady, but not her prior foreign divorce expressed by her first husband per Talaq.

The Court of Appeal held that the fact that that divorce is not entitled to recognition under the English rules, does not mean that the woman did not have the capacity to (re)marry: her previous divorce was effective under the law of Pakistan.

Moylan LJ summarises that the issue raised by the appeal is in essence the relationship between capacity to marry rules and divorce recognition rules. [7]:

[In England and Wales] “a person’s capacity to marry is governed by the law of their antenuptial domicile. The recognition of a divorce, whether obtained in “the British Islands” (section 44) or in a “country outside the British Islands” (section 45), is governed by the provisions of the [Family Law Act] FLA 1986. What happens when the two are in conflict? In other words, when a person, in this case the wife, has capacity to marry by the law of her antenuptial domicile, Pakistan, but her previous divorce is not entitled to recognition in England and Wales under the FLA 1986, is priority to be given to the law applicable to capacity to marry or to the law applicable to the recognition of divorces.”

After a first marriage in Pakistan, which ended in 2008 by husband Talaq, the wife remarried. The second husband commenced divorce proceedings in 2018. This led to the pronouncement of a Decree Nisi of divorce in 2019. In or about August 2020, the second husband applied for the Decree Nisi to be rescinded and for the Petition to be dismissed on the basis that the wife remained married to her previous husband at the date of her marriage to the  second husband. The husband then issued a nullity Petition in 2021 in which he contended that at “the time of the marriage the (wife) was already lawfully married”. The wife submits that her marriage to the husband is valid because she had capacity to marry under the law of Pakistan which recognised her divorce as having validly determined her previous marriage.

[22] Per Akhtar v Secretary of State for Work and Pensions [2022] 1 WLR 421:

“Validity of Marriage

[60] Under English rules of private international law: (a) the general rule is that the formal validity (i.e. the formalities) of a marriage is governed by the law of the country where the marriage was celebrated, Dicey at para 17R-001; and (b) the general rule is that capacity to marry (or essential validity) is governed by the law of each party’s antenuptial domicile, Dicey at para 17R-057 (now 17R-054). Bigamy is “a matter of capacity”, Dicey at para 17-082 (now 17-079).

[61] If a marriage is valid in respect of both form and capacity it will be recognised as valid under English law and, as a result, the parties will be recognised as having the status of husband or wife.”

‘Bigamy’ is qualified as a rule of capacity to marry (‘essential validity’ or what the civil law is likely to call substantive validity. Extensive review followed of various authorities,  including the well-known Schwebel v Ungar, with the Court of Appeal as in that latter case, giving priority to capacity to marriage. An ordre public exception was rejected on the basis of the wife at all relevant times having been domiciled in and lived in Pakistan. [89] “The public policy objectives would be sufficiently achieved by denying recognition of the divorce to the wife’s previous husband because of his connections with the UK.”

A super case to teach Vorfrage, qualification and ordre public.

Geert.

An excellent illustration of Vorfrage
Relationship between capacity to marry rules and divorce recognition rules
Moylan LJ giving priority to the former, referring ia to Schwebel v Ungar

Parveen v Hussain [2022] EWCA Civ 1434 https://t.co/Tb1jSeCs9P

— Geert Van Calster (@GAVClaw) November 7, 2022

I last updated the draft for this post in November….I am hoping somewhat to catch up with posts this week.

In Transworld Payment Solutions U.K. Ltd, Re [2022] EWHC 2742 (Ch) Freedman J refused an application to set aside an order to serve out of jurisdiction. Claimants’ case is that the E&W proceedings arise out of an alleged “VAT carousel fraud”, carried out in England and Wales, by English and Welsh companies. There are concurrent Curaçao proceedings.

Defendants raise a forum non conveniens jurisdictional defence. They submit that the Curaçao court is presently seised as to the issue as to whether the companies were effectively parties to a number of settlement agreements, and the effect of the same.  These Settlement Agreements are subject to Curaçao law and contain a Curaçao jurisdiction clause (which is not exclusive).  They also submit that the fraud claims will be determined as part of the applications for negative declarations in the Curaçao Proceedings.  The Claimants dispute that the fraud claims or the full scope of the fraud claims will be determined in the Curaçao Proceedings.

There are significant areas of dispute between the parties as regards what is in issue in the Curaçao Proceedings. The issue that is of most interest to the blog, is the consideration of applicable law under Rome II. [79] Freedman J notes “VTB [VTB Capital Plc v Nutritek International Corp [2013] UKSC 5] ,was a case where English law (used as a shorthand to refer to the law of England and Wales) was the proper law of the tort, but where the majority of the court nonetheless stayed the action in favour of the matter being more appropriately litigated in Russia.”

A first issue is the catchment area of Rome II’s ‘non-contractual obligations’, to typically common law equitable wrongs including dishonestly assisting breach of trust/fiduciary duty. [83] the judge holds with reference to Dicey, Morris and Collins 16th Ed. that they likely do. [84] The most likely lex causae following Rome II is English law and  ‘(I)t seems unlikely that Article 4(3) would apply given the closer connection of any tort or delict with England and Wales rather than with Curaçao or any other country. ‘

The issues will be further discussed at trial and one imagines both Rome I and Rome II will return there. But for now, jurisdiction is going ahead.

Geert.

Largely unsuccessful application for forum non conveniens (viz: Curacao) set-aside of permission to serve out of jurisdiction
Considers ia applicable law Rome II viz deceit, conspiracy, equitable wrongs

Transworld Payment Solutions [2022] EWHC 2742 (Ch) https://t.co/ly6m6XRFsN

— Geert Van Calster (@GAVClaw) November 7, 2022

The first instance court of Gelderland held in X v Lufthansa that the latter’s limitation to objecting to territorial jurisdiction within The Netherlands, rather than to jurisdiction of the Dutch courts as such, amounts to submission under A26 BIa, leaving the Dutch courts to decide on territorial jurisdiction with reference to internal Dutch civil procedure rules (CPR).

The remainder of the judgment then agrees with Lufthansa on the basis of Dutch CPR identifying the defendant’s office or branch as the territorially relevant factor, leaving Gelderland without jurisdiction. The court seemingly rejected itself as forum contractus, holding that CJEU C-204/08 Rehder v Air Baltic does not apply due to the flight in current case not being intra-EU (final destination being Baku). I would have expected the court to consider C-20/21 LOT Polish Airlines, where the final destination equally was outside the EU.

I do not know what claimant argued (forum contractus one assumes, perhaps locus damni per A7(2) BIA?), at any rate it is wrong to hold that a limitation of jurisdictional objection to internal distribution, implies submission per A26 BIa, for those heads of jurisdiction which assign jurisdiction territorially, not just nationally. That includes A7 forum contractus and forum delicti.

Geert.

 

I should really keep this for exam purposes
First instance Gelderland holds opposition to court's territorial jurisdiction, not to NL jurisdiction as a whole, does not obstruct A26 Brussels Ia submission
Ahum…

X v Lufthansa ECLI:NL:RBGEL:2023:900https://t.co/QS53WEXmSp

— Geert Van Calster (@GAVClaw) March 4, 2023

Royal Antwerp Football Club
Libre circulation des personnes
Football : selon l’avocat général Szpunar, les règles de l’UEFA relatives aux joueurs formés localement sont partiellement incompatibles avec le droit de l’Union

Les Mousquetaires et ITM Entreprises / Commission
Concurrence
La Cour annule, partiellement, les arrêts du Tribunal et, en conséquence, les décisions de la Commission ordonnant des inspections dans les locaux de plusieurs entreprises françaises du secteur de la distribution en raison des soupçons de pratiques anticoncurrentielles

Prigozhina / Conseil
Relations extérieures
Le Tribunal annule les mesures restrictives appliquées à Mme Violetta Prigozhina, mère de M. Yevgeniy Prigozhin, dans le cadre de la guerre menée par la Russie contre l’Ukraine

Thank you Gilles Cuniberti for flagging and discussing the French Supreme Court’s judgment in JE and B v Barclay Pharmaceuticals [cross-referral to the English judgment makes this Barclay Pharmaceuticals v Mekni]. Much of this post is already included in prof Cuniberti’s posts.

The core of the case concerns the enforcement of an English judgment [Barclay Pharmaceuticals Ltd v Antoine Mekni and others, [2018] 6 WLUK 461] which, in assisting Barclay Pharmaceuticals with enforcement of an earlier established £8.7 million debt (since accrued with costs etc to about £12 million), had declaratorily held that a large number of bank accounts and other entities which for the most part purport to belong to parties other than Mr Mekni, are in truth owned by him. Mr Mekni did not appear in the English declaratory relief proceedings hence did not there object to jurisdiction.

The relevant issue in the French proceedings for the purposes of the blog, is first of all Article 24(3) Brussels Ia’s exclusive jurisdiction for ‘proceedings which have as their object the validity of entries in public registers’. As Gilles had earlier discussed, here the Supreme Court [5-6] held that an English judgment determining ownership in shares held in public registers, does not engage ‘the validity of entries in public registers’, for said exclusive jurisdiction, it holds, only extends to the formal validity of such entry, not to the ownership of the assets related to the entry.

As Gilles notes, it was possible for the SC succinctly to deal with the A24(3) argument for under the applicable French law relating to the type of corporation involved, whose shares were the object of the proceedings, the only impact of the (non-obligatory) registration was to create limited third party effect; registration has no bearing on the existence, validity and ownership of the shares. Professor Cuniberti justifiably signals that a distinction between substantive and formal validity may not always be easily made.

The second issue of note to the blog, is the issue of service. A43(1) BIa prescribes that

Where enforcement is sought of a judgment given in another Member State, the certificate issued pursuant to Article 53 shall be served on the person against whom the enforcement is sought prior to the first enforcement measure. The certificate shall be accompanied by the judgment, if not already served on that person.

Recital 32 adds

In order to inform the person against whom enforcement is sought of the enforcement of a judgment given in another Member State, the certificate established under this Regulation, if necessary accompanied by the judgment, should be served on that person in reasonable time before the first enforcement measure. In this context, the first enforcement measure should mean the first enforcement measure after such service

In the case at issue, service happened at 2:55 PM and enforcement at 3 PM. Does that leave a ‘reasonable time’? I share Gilles’ frustration that the SC [3] merely replied that French CPR does not require the SC to engage with grounds of appeal that are manifestly unarguable

En application de l’article 1014, alinéa 2, du code de procédure civile, il n’y a pas lieu de statuer par une décision spécialement motivée sur ces griefs qui ne sont manifestement pas de nature à entraîner la cassation.

The take-away from this is that the SC in the circumstances did not see a clear infringement of A43 juncto A53 BIa. That does of course leave a lot of speculation as to when the timing of service might lead to enforcement issues – crucial too, I would suggest, in case of provisional measures.

Geert.

 

Statistiques judiciaires 2022 : un contentieux marqué par les enjeux majeurs du monde contemporain (État de droit, environnement, protection de la vie privée à l’ère du numérique…) et par les mesures restrictives adoptées par l’Union européenne dans le cadre de la guerre en Ukraine

Stadt Frankfurt (Oder) et FWA
Rapprochement des législations
Politique de l’eau potable : selon l’avocate générale Medina, les États membres ont l’obligation de ne pas autoriser un projet susceptible d’entraîner une détérioration de la qualité d’une masse d’eau

Krajowa Rada Sądownictwa (Maintien en fonctions d’un juge)
Droit institutionnel
L’avocat général Rantos doute que le mécanisme d’autorisation par la KRS du maintien en fonction des juges polonais au-delà de l’âge du départ à la retraite offre des garanties suffisantes d’indépendance

MÁV-START
Le repos journalier s’ajoute au repos hebdomadaire, quand bien même il précéderait directement ce dernier

Hengshi Egypt Fiberglass Fabrics et Jushi Egypt for Fiberglass Industry / Commission
Relations extérieures
Une subvention accordée par la Chine peut être imputée à l’Égypte en tant que pays d’origine ou d’exportation d’un produit frappé par des mesures compensatoires

Soriano v Forensic News LLC & Ors [2023] EWCA Civ 223 deals with the discipline an English court should hand out to defendants trying to use foreign proceedings and their discovery rules, to assist them in the defence of a claim (here a libel claim) in England and Wales. (Defendants’ attempt at dismissing jurisdiction had earlier failed).

In a joint and fairly succinct opinion, Voss MR, Carr LJ and Warby LJ dismiss the contention that the defendants should be served with an anti-suit injunction (also refused at first instance by Murray J a mere 20 days back; this was a most swift appeal) to restrain them from continuing US proceedings. These had been initiated in the District Court for the Southern District of New York (the DCSDNY) on 6 December 2022. Defendants seek an order there requiring HSBC USA to produce two very broad categories of banking documents relating to Mr Soriano’s companies. Defendants here, claimants in the US, rely in 28 USC §1782 (a so-called 1782 application) allowing a US court to provide assistance to an applicant in gathering evidence in support of legal proceedings in a foreign court. It provides that: “[t]he district court … may order [a person] to … produce a document or other thing for use in a proceeding in a foreign … tribunal”, and “[t]he order may be made … upon the application of any interested person”.

The Court of Appeal relied like the judge on the grounds per South Carolina Insurance Co v. Assurantie Maatschappij “De Zeven Provincien” NV [1987] 1 AC 24 to find that defendants were not guilty  of “conduct which [was] oppressive or vexatious or which [interfered] with the due process of the court” in seeking the US order.

In essence, the Court supports the lawful exercise of evidence gathering and does not easily decide that use of foreign proceeding for same be considered oppressive.

Geert.

Discovery forum shopping
Important, lightning fast unsuccessful appeal on approach to defendants using foreign courts to gather evidence to support their defence to litigation in E&W
No abuse found

Soriano v Forensic News & Ors [2023] EWCA Civ 223https://t.co/gq9nmzmf2H

— Geert Van Calster (@GAVClaw) March 1, 2023

The wide (even if not absolute: see Handbook 2.162 ff) catchment area of Article 24(1) Brussels Ia in the specific context of tenancies is contested, so much so that when the Brussels I Regulation was being revised, the Commission proposed to widen the existing, narrow exception for short-time holiday lets, to rental agreements concerning tenancies of premises for professional use. However it was not followed by Council or Parliament.

Despite this established application of A24(1), the appeal judges in X v Y  ECLI:NL:GHAMS:2023:306 (seriously why the need for anonymity) question its applicability to a claim in rent arrears with the rental agreement concluded by the tenant so as to let the rooms professionally. Parties have agreed choice of court and law for The Netherlands, despite the property being located in Austria (the judge tries to keep even that from public eyes yet it is given away in 3.10). The judges 3.10 mistakenly nota bene assume that non-exlusively expressed choice of court, is indeed non-exclusive (A25 BIa says otherwise).  The judge equally wrongly suggests that a claim for arrears without claims viz for instance enjoyment of the property, obligations vis-a-vis the neighbours etc., is not caught by A24(1).

Should anyone think CJEU C-73/77 Sanders v Van der Putte comes to the rescue, they are wrong. I know the CJEU itself sloppily summarised that  case [13] in C-280/90 Hacker as meaning that A24(1) ‘did not apply to a contract which concerned the operation of a business’. In reality, in Sanders the CJEU concluded that A24(1) was not engaged due to the claim relating to the lease by lessor to lessee of a usufruct on a retail business, with lessor itself renting the property from a third party (that was not involved in the proceedings): that claim simply did not relate to a ‘tenancy’ between parties.

The Dutch courts clearly do not have jurisdiction and whichever party in the Dutch proceedings has an interest in that being confirmed, should say so.

Geert.

EU Private International Law, 3rd ed. 2021, 2.174 ff.

First instance Amsterdam postponing decision on A24(1) BIa 'tenancy' jurisdiction
Landlord domiciled in NL, tenants in DE, house in AT
Claim for late rent and related penalties
Court minded to uphold choice of court for NL courtshttps://t.co/iGRAYzz3Cw

— Geert Van Calster (@GAVClaw) February 14, 2023

Fenix International
Fiscalité TVA
Plateformes en ligne et collecte de la TVA : le Conseil n’a pas outrepassé les limites de son pouvoir d’exécution en précisant que le gestionnaire d’une plateforme, telle que Only Fans, est présumé être le prestataire des services fournis

This post to flag my analysis of SAS Saloni France v SAS Nexity Logement, Tribunal de Commerce de Paris, 19ème chambre, 14 December 2022, over at Lexis Nexis arbitration. It is a rare application by a French court of first
instance, of the fairly recently introduced theory of unforeseeability (imprévision) in the context of the price spike in energy costs, transport and packaging as a result particularly of the Russian war in Ukraine.

Geert.

 

 

 

 

Harris ea v Environment Agency [2022] EWHC 2606 (Admin) I fear is another case I let slip on the blog. It is a judgment which discusses to right to an effective remedy following the earlier finding in Harris & Anor v Environment Agency [2022] EWHC 2264 (Admin) that the Agency’s allowing water extraction in three Sites of Special Scientific Interest was in breach of retained EU law, namely Article 6(2) Habitats Directive (measures designed to prevent the deterioration of habitats and species) and of the equally retained EU law precautionary principle.

The issue at stake in current case is the appropriate remedy, a classic challenge in judicial review cases in instances where the authorities have been found in breach of an obligation of effort rather than one of result. Those of us involved in climate litigation will appreciate the difficulty.

The Agency suggests the finding that there was a breach is enough of a remedy. Claimants disagree, seeking an order in the nature of [2018] EWHC 315 (Admin) which the Agency says must be distinguished on the grounds that the regulatory requirements relevant to that order, they argue, is more prescriptive.

Johnson J holds [7] that ‘the claimants have not just a presumptive common law right to a remedy, but also a statutory right’, given Article 19(1) TEU’s right to an effective remedy. A mandatory order that the Environment Agency must formulate a plan is issued [10], a plan which must be produced within 8 weeks [13]; that deadline has passed at the time of posting], disclose that plan to claimants [17] and with the precise formulation of the order [26] being

“The defendant shall, by 4pm on 7 December 2022, provide to the claimants details of the measures it intends to take to comply with its duties under Article 6(2) of the Habitats Directive (“Art 6(2)”) in respect of The Broads Special Area of Conservation. The details shall include an indication as to the time by which the defendant intends to have completed those measures. It shall also include, so far as practicable, the scientific and technical basis for the defendant’s assessment of the measures that are necessary to comply with Art 6(2).”

More on the nature of the kind of orders judges may give to authorities is currently discussed in a wide range of environmental law, including climate law litigation. It is an interesting application of the nature of judicial review and trias politica..

Geert.

Monash University, Law 5478 Strategic and Public Interest Litigation.

Remedy under common law when public authority has been found to have acted illegally
A6(2) EU Habitats law, water extraction
Agency ordered to produce plan & its legal, science basis, within 8 weeks

Harris ea v Environment Agency [2022] EWHC 2606 (Admin)https://t.co/6OKSKh7caJ pic.twitter.com/SKjEnpnQF0

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