Flux européens

Haqbin
Espace de liberté, sécurité et justice
Un demandeur de protection internationale coupable d’un manquement grave au règlement du centre d’hébergement dans lequel il est accueilli ou d’un comportement particulièrement violent ne peut être sanctionné par le retrait du bénéfice des conditions matérielles d’accueil ayant trait au logement, à la nourriture ou à l’habillement

Organisation juive européenne et Vignoble Psagot
Rapprochement des législations
Les denrées alimentaires originaires des territoires occupés par l’État d’Israël doivent porter la mention de leur territoire d’origine, accompagnée, lorsque ces denrées proviennent d’une colonie israélienne à l’intérieur de ce territoire, de la mention de cette provenance

Junqueras Vies
Privilèges et immunités
Selon l’avocat général Szpunar, l’acquisition du mandat parlementaire des députés européens résulte du seul vote des électeurs et ne peut être subordonnée à l’accomplissement subséquent d’une quelconque formalité

The Court of Appeal in [2019] EWCA Civ 1708 has reversed [2018] EWHC 3308 (Ch) PrivatBank v Kolomoisky and Boholiubov et al which I reviewed here. When I tweeted the outcome on the day of release I said it would take a little while for a post to appear, which indeed it has. Do please refer to my earlier post for otherwise the comments below will be gobbledegook.

As a reminder: the High Court had set aside a worldwide freezing order (‘WFO’) granted earlier at the request of Ukraine’s PrivatBank, against Ihor Kolomoisky and Hennadiy Boholiubov – its two former main shareholders.

Fancourt J’s judgment implied in essence first of all, the Lugano Convention’s anchor defendant mechanism, concluding that ‘any artificial fulfilment (or apparent fulfilment) of the express requirements of Article 6.1 is impermissible, and this includes a case where the sole object of the claim against the anchor defendant is to remove the foreign defendant from the jurisdiction of domicile. Bringing a hopeless claim is one example of such abuse, but the abuse may be otherwise established by clear evidence. In principle, the fact that there is a good arguable case against the anchor defendant should not prevent a co-defendant from establishing abuse on some other ground, including that the “sole object” of the claim is to provide jurisdiction against a foreign domiciled co-defendant.‘

The English Defendants serving as anchor, were not considered legitimate targets in their own right and hence the ‘sole object’ objection was met. 

The Court of Appeal in majority (Lord Newey at 270 ff dissenting) disagreed and puts particular emphasis on the non-acceptance by Parliament and Council at the time of adoption of Brussels I, of an EC proposal verbatim to include a sole object test like was done in Article (then) 6(2) (it also refers to drafters and rapporteur Jenard making a bit of a muddle of the stand-alone nature, or not, of the sole object test). Following extensive consideration of authority it decides there is no stand-alone sole object test in (now) Article 8(1) Brussels I (or rather, its Lugano equivalent) but rather that this test is implied in the Article’s condition of connectivity: at 110: ‘we accept Lord Pannick’s analysis that, as shown by the references to Kalfelis and Réunion,..that the vice in using article 6(1) to remove a foreign defendant from the courts of the state of his domicile was met by a close connection condition.’

Obiter it held at 112 ff that even if the sole object test does exist, it was not met in casu, holding at 147 that the ability to obtain disclosure from the English Defendants provided a real reason for bringing these proceedings against them.

Fancourt J had also added obiter that had he accepted jurisdiction against the Switzerland-based defendants on the basis of the anchor mechanism, he would have granted a stay in those proceedings, applying the lis alibi pendens rule of Lugano reflexively, despite the absence of an Article 34 mechanism in Lugano. The Court of Appeal clearly had to discuss this given that it did accept jurisdiction against the Switserland-based defendants, and held that the High Court was right in deciding in principle for reflexive application, at 178: ‘This approach does not subvert the Convention but, on the contrary, is in line with its purposes, to achieve certainty in relation to jurisdiction and to avoid the risk of inconsistent judgments.’

That is a finding which stretches the mutual trust principle far beyond Brussels /Lugano parties and in my view is far from clear.

However, having accepted lis alibi pendens reflexively in principle, the Court of Appeal nevertheless held it should not do so in casu, at 200 as I also discuss below: ‘the fact that consolidation was not possible was an important factor militating against the grant of a stay, when it came to the exercise of discretion as to whether to do so’.

Finally, stay against the English defendants was granted by the High Court on the basis of A34 BIa, for reasons discussed in my earlier post. On this too, the Court of Appeal disagreed.

Firstly, on the issue of ‘related’ actions: At 183: ‘The Bank argues that the actions are not “related” in the sense that it is expedient to hear and determine them together, because consolidation of the Bank’s claim with Mr Kolomoisky’s claim in the defamation proceedings would not be possible. It is submitted that unless the two actions can be consolidated and actually heard together, it is not “expedient” to hear and determine them together. In other words, the Bank submits that expediency in this context means practicability.’ The Court of Appeal disagreed: At 191: ‘The word “expedient” is more akin to “desirable”, as Rix J put it, that the actions “should” be heard together, than to “practicable” or “possible”, that the actions “can” be heard together. We also consider that there is force in Ms Tolaney’s point that, if what had been intended was that actions would only be “related” if they could be consolidated in one jurisdiction, then the Convention would have made express reference to the requirement of consolidation, as was the case in article 30(2) of the Recast Brussels Regulation.’

Further, on the finding of ‘sound administration of justice’: at 211:  ‘the unavailability in the Ukrainian court of consolidation of the Bank’s current claim with Mr Kolomoisky’s defamation claim remains a compelling reason for refusing to grant a stay. In particular, the fact that the Bank’s claim would have to be brought before the Ukrainian commercial court rather than before the Pechersky District Court in which the defamation proceedings are being heard means that if a stay were granted, the risk of inconsistent findings in these different courts would remain. Furthermore, we accept Lord Pannick’s overall submission that, standing back in this case, it would be entirely inappropriate to stay an English fraud claim in favour of Ukrainian defamation claims, in circumstances where the fraud claim involves what the judge found was fraud and money laundering on an “epic scale” ‘

Finally, at 213, ‘that the English claim against Mr Kolomoisky and Mr Bogolyubov and the English Defendants should be allowed to proceed, it inevitably follows that the BVI Defendants are necessary or proper parties to that claim and that the judge was wrong to conclude that the proceedings against the BVI Defendants should be set aside or stayed.’

One or two issues in this appeal deserve to go up to the CJEU. I have further analysis in a forthcoming paper on A34.

Geert.

(Handbook of) European Private International Law – 2nd ed. 2016, Chapter 2, Heading 2.2.14.5

 

 

In C-215/18 Libuše Králová v Primera Air Scandinavia, Saugmandsgaard ØE AG now unsurprisingly (following the CJEU predecent of Feniks and Flightright), advised that in a package of services acquired from a travel agent, where there is no direct agreement with the airline carrying out the flight part of the package, there is a ‘contract’ between the individual and the airline within the meaning of Article 7(1) BIa.

At 37 the AG emphasises the element of predictability on the part of the airline, who should not be surprised to be sued by the individual whom they agree with the travel agency to transport, both in the place of take-off and landing, per Zurich Insurance.

However unlike the Commission, the AG supports a less extensive interpretation of the consumer section. Package travel as defined in Directive 90/314, unlike simple tickets for transport only, are covered by the protective provisions of Article 17 ff BIa. Yet the AG proposes to extend that regime only to the direct relationship between the travel agent and the consumer, not the airline who merely carries out the transport side of the arrangement. At 48 ff the AG sets out his reasons for the limitation: the emphasis in the consumer section on the very consumer and professional party who concluded the contract (48-49); the distinction with Maletic since in the case at issue claimant is after the airline company only, not an in solidum finding against the agency and the airline (5-52); and of course the need for strict interpretation.

Note of course the different balance struck by the AG as opposed to e.g. the High Court in Bonnie Lackey.

Geert.

(Handbook of) European private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.8.2.

Kanyeba
Transport
Lorsqu’un voyageur monte à bord d’un train sans billet, il conclut un contrat avec le transporteur

Flausch e.a.
Environnement et consommateurs
Quand le public n’est pas mis à même de participer effectivement à l’évaluation des incidences environnementales d’un projet, il ne peut se voir opposer un délai de recours contre la décision d’autorisation de celui-ci

ADDE / Parlement
Droit institutionnel
La décision du Parlement européen relative au financement du parti ADDE en 2015 est annulée pour défaut d’impartialité

La Cour de justice de l’Union européenne met en accès libre, sur son site Internet, des documents procéduraux et doctrinaux

Commission / Pologne (Indépendance des juridictions de droit commun)
Principes du droit communautaire
Les règles polonaises relatives à l’âge du départ à la retraite des juges et des magistrats du parquet, adoptées en juillet 2017, sont contraires au droit de l’Union

‘The race between technology and the law could be termed as a hare and tortoise race – As technology gallops, the law tries to keep pace.’ (see further below).

Thank you Daphne Keller for flagging CS (OS) 27/2019 Swami Ramdev et al v Facebook et al at the Delhi High Court on 23 October. Defendants are Facebook Inc, Google Inc, YouTube LLC, Twitter etc. The allegation of Plaintiffs is that various defamatory remarks and information including videos, found earlier to have been defamatory (a judgment currently before the Supreme Court without having been stayed), are being disseminated over the Defendants’ platforms.

At 6 Prathiba M Singh J summarises the parties’ position: None of the Defendants have any objection to blocking the URLs and disabling the same, insofar as access in India is concerned. However, all the Defendant platforms have raised objections to removal/blocking/disabling the impugned content on a global basis. On the other hand, the Plaintiffs argued that blocking merely for the Indian territory alone is not sufficient as the content would be accessible through international websites, which can be accessed in India. Thus, according to the Plaintiffs, for the remedy to be effective, a global blocking order ought to be passed.

Particularly in the review of plaintiff’s submission at 8 ff, the parallel is clear with the discussions on the role of intermediaries in Eva Glawischnig-Piesczek v Facebook. Reference of course is also made to Equustek and, at 64, to the CJEU in Google v CNIL. Facebook refers to the material difference between defamation laws across the globe: at 10: ‘Defamation laws differs from jurisdiction to jurisdiction, and therefore, passing of a global disabling order would be contrary to the principle of comity of Courts and would result in conflict of laws.’

At 44 ff Prathiba M Singh J extensively reviews global precedent, and, at 69, to Eva Glawischnig-Piesczek v Facebook. At 88 ff this leads justice Singh

• to uphold fairly straightforwardly the court’s power to order global delisting given the origin in India of the original act of uploading: ‘The act of uploading vests jurisdiction in the Courts where the uploading takes place. If any information or data has been uploaded from India on to a computer resource which has resulted in residing of the data on the network and global dissemination of the said information or data, then the platforms are liable to remove or disable access to the said information and data from that very computer resource. The removal or disabling cannot be restricted to a part of that resource, serving a geographical location.’
• and at 99, to make an effectiveness argument: ‘it is clear that any order passed by the Court has to be effective. The parties before this Court i.e. the platforms are sufficiently capable to enforce an order of global blocking. Further, it is not disputed that the platforms are subject to in personam jurisdiction of this Court.’
• finally, at 91: ‘The race between technology and the law could be termed as a hare
  and tortoise race – As technology gallops, the law tries to keep pace’. This does not imply the law simply laying down to have its belly rubbed. Exactly my sentiment in my post on the UK AI case.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.8.2, Heading 2.2.8.2.5

 

 

 

Commission / Pologne (Mécanisme temporaire de relocalisation de demandeurs de protection internationale)
Espace de liberté, sécurité et justice
L’avocate générale Sharpston propose à la Cour de juger que, en refusant de se conformer au mécanisme provisoire et temporaire de relocalisation obligatoire de demandeurs de protection internationale, la Pologne, la Hongrie et la République tchèque ont manqué à leurs obligations découlant du droit de l’Union

Thank you AKD for flagging the Dutch Hoge Raad (Supreme Court) reference to the CJEU in what at the Court is now known as case C-709/19 Vereniging van Effectenbezitters (VEB) v BP. The Hoge Raad’s decision is here, AKD have the questions in English.

The case essentially seeks clarification of Kolassa, Universal Music and Lober, given the specifics in the VEB case as pointed out in the AKD summary: the case concerns a class action, not that of an individual shareholder; no prospectus was specifically addressed at Dutch investors, who instead feel they received incomplete and misleading information that was made public through press releases, websites and public statements by directors; finally the Dutch Supreme Court questions the CJEU on an e-Date accessibility type jurisdictional basis.

One to look out for.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2.7

 

This is a case with no immediate conflict of laws interests (jurisdiction for instance was not disputed), other than a helpful summary by Matthews J on the overall conduct of proceedings in civil law cases in England.

In [2019] EWHC 2656 (Ch) Paralel Routs v Fedotov, the claim is brought by the claimant, a company incorporated in the British Virgin Islands, but administered in Cyprus,  against the defendant, a Russian citizen, currently in prison in Russia. The defendant says that these proceedings have been brought as part of a process of so-called “corporate raiding” (“reiderstvo” in Russian) against him, by the claimant, at the instigation and direction of his former business associate.

Witnesses and evidence were the sticking point in the litigation, leading Matthews J to summarise the English law of civil proceedings, at 35 ff, concluding at 41:

‘decisions made by English civil judges are not necessarily the objective truth of the matter. Instead, they are the judge’s own assessment of the most likely facts based on the materials which the parties have chosen to place before the court, taking into account to some extent also what the court considers that they should have been able to put before the court but chose not to. And, whilst judges give their reasons for their decisions, they cannot and do not explain every little detail or respond to every point made.’

And at 95 ff just before conclusion, a robust defence of proper oral proceedings:

‘it is sometimes thought that the English procedural rules are too time-consuming and expensive to operate, without any corresponding advantage in terms of justice. But this is a case which amply illustrates the importance of procedural rules in ensuring a fair trial and the best opportunity to deliver a just result between the parties. This case illustrates the importance in particular of advance disclosure and production of documents in unredacted form, control by the court of expert evidence, and (at trial) cross-examination of witnesses, all properly pursued by a party’s lawyers. The persistence of the defendant’s legal team in enforcing these procedures has made all the difference in this case.

Geert.

 

 

In [2019] EWHC 2776 (Fam) Ali v Rodrigues, claimant appreciated that the date of petition to divorce and date of and English respectively Scottish decrees are highly important to the husband’s immigration status. One way in which a former EEA family member can retain right of residence is if the marriage exceeded 3 years.

The husband was in Pakistan from 10th January 2016 to 18th February 2016. A certificate of entitlement to a divorce was issued on 21st March 2016 and decrees nisi and absolute were pronounced in the Romford (England) Family Court on, respectively, 12th April and 27th May 2016. That was the English decree. On 14th December 2016, the Home Office notified the husband that it was revoking his residence card on the basis that he was no longer a family member of an EEA national. The wife remarried in 2016, following the English decree and has sponsored her second husband’s application for leave to remain. The husband petitioned for divorce in Scotland on 27th September 2016, three years and five months after the date of the marriage and at least two years and three months from the date of the separation. On 6th November 2017, the Edinburgh Sherriff Court and Justice of the Peace Court pronounced the decree absolute, which is the Scottish decree.

If the English decree stands, the marriage will have lasted less than 3 years. If the Scottish decree stands, 3 years will have been exceeded. The husband essentially argues that the English decree is tainted by irregularity of service upon him. Lieven J held that the English decree should stand, on the basis that when it comes to failures related to service, it is appropriate to look at the nature of what went wrong and where the prejudice, if any, lies (at 36 ff). The wife took reasonable steps; and there are indications that the husband was trying to avoid service.

Given irregularities in service the English decree is voidable, but not void in the discretionary opinion of the court: the consequences of setting aside the English decree would more severe than that of the Scottish decree’s invalidity. If the English decree does not stand, the wife’s second marriage would have been made at a time when the first marriage persisted. That would be a very serious impact on her, her second husband and the child.

Geert.

 

 

Rubik's Brand / EUIPO - Simba Toys (Forme d’un cube avec des faces ayant une structure en grille)
Propriété intellectuelle et industrielle
Le Tribunal confirme l’annulation de la marque de l’Union européenne constituée de la forme du « Rubik’s cube »

Commission / France (Dépassement des valeurs limites pour le dioxyde d’azote)
Environnement et consommateurs
La France a dépassé de manière systématique et persistante la valeur limite annuelle pour le dioxyde d’azote depuis le 1er janvier 2010

[2019] EWHC 2560 (Ch) Sterling v Rand concerns not so much the relationship between a Beth Din (a Jewish court) and the courts in ordinary, rather the implications for a Beth Din arbitral tribunal’s powers (here: power to transfer title in property) as a result of choice of curial law and choice of lex causae. On the various laws to be decided re arbitration, see here.

Ambrose DJ found Claimant was correct to argue that by agreeing to the application of Jewish law to the procedure of the arbitration (Jewish law as curial law), the Beth Din has power to order the transfer of the Property because Jewish law, which  gives the Beth Din power to make such an order. She dismissed the route taken by the claimant to come to this conclusion (he had suggested application of S48 of the 1996 Arbitration Act, a provision regarding remedies available in an arbitration governed by the Act), rather consequentially applying parties’ arbitration agreement. Parties had referred to the Judicial Division of the London Beth Din (Court of the Chief Rabbi) for a binding arbitration under the Arbitration Act 1996, as follows: 

“Re: Dispute over ownership of 4 Dunsmure Road N16 5PW I agree to the submission of this matter, including all claims and counterclaims arising in respect of it, to the Beth Din for a binding arbitration under the Arbitration Acts for the time being in force and under the following terms:

(1) The Beth Din will consist of three dayanim unless the parties agree to the substitute of a single dayan.

(2) The Beth Din’s rules of procedures are those of Jewish law.

(3) Each party to this matter shall have, by signing this document, indicated his assent to an arbitration under these terms. The Beth Din may continue the arbitration and conclude it ex parte if any party fails after receiving reasonable notice to attend any hearing.

(4) In the event that a vacancy arises in the Beth Din on account of the inability or refusal of any of its members to determine the arbitration, the Beth Din may appoint one or more of its own members to fill the vacancy, and may at its own discretion determine how the arbitration shall continue to be conducted. The Beth Din may determine that a single dayan may hear and receive evidence on behalf of the full Beth Din.…

(6) The Beth Din has the power to make both inter partes and ex parte orders from the day upon which all parties are sent the terms of this agreement until such time as the Beth Din is functus officio under Jewish law. The Beth Din has the power to make orders under Jewish law both as to its own costs, and as to the costs incurred by any party in participating, bringing or defending any claim or counterclaim. The Beth Din may make orders as to security for costs, and in respect of claims.…

(9) The Beth Din shall decide the matter under Jewish law incorporating such other laws as Jewish law deems appropriate.”

Under Jewish law, the Beth Din ordinarily has the power to order transfer of title.

Enforcement of the order was nevertheless dismissed for ordre public, following new evidence which had not been laid out to the Beth Din. At 83: ‘an order for specific performance would not be in the interests of justice, it could be contrary to public policy and it could damage the integrity (and reputation) of the Beth Din system.’

Geert.

 

In [2019] EWHC 2717 (QB) Sadik v Sadik, the claim is one in libel. Claimant is a businessman and philanthropist who lives in Dubai and spends 30 to 35 days in London each year. Claimant and Defendant are brother and sister in law .Defendant has a house in Kuwait with her husband. Until at least 19 September 2017 she lived in London, whilst also maintaining a house in Kuwait.

Defendant is prepared to accept for the purposes of this application that the relevant date for determining domicile is the date proceedings were commenced, ie 26 September 2017: see inter alia JSC BTA Bank v Mukhtar Ablyazov. (Upheld on Appeal). Should no domicile in the UK (or another EU /Lugano State) be upheld, forum non conveniens kicks in.

The UK Defamation Act 2013 (the DA 2013) was entered precisely to address libel tourism in the UK. It reads in relevant part (Section 9)

 “Action against a person not domiciled in the UK or a Member State etc 

(1) This section applies to an action for defamation against a person who is not domiciled 

(a) in the United Kingdom; (b) in another Member State; or (c) in a state which is for the time being a contracting party to the Lugano Convention.

(2) A court does not have jurisdiction to hear and determine an action to which this section applies unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement.

(3) The references in subsection (2) to the statement complained of include references to any statement which conveys the same, or substantially the same, imputation as the statement complained of.

(4) For the purposes of this section –(a) a person is domiciled in the United Kingdom or in another Member State if the person is domiciled there for the purposes of the Brussels Regulation; (b) a person is domiciled in a state which is a contracting party to the Lugano Convention if the person is domiciled in the state for the purposes of that Convention.”

Defendant says that the Claimant cannot possibly satisfy the test in s 9(2). That is because Claimant in her view does not complain of any publication within this jurisdiction. She submits that s 9 implicitly requires the words complained of to have been published in England and Wales: ‘of all the places in which the statement complained of has been published…’. In effect, she says that s 9 means that this court does not have jurisdiction to hear a claim against a defendant not domiciled in the jurisdiction (or within a Brussels/Lugano state) for a claim in respect of solely foreign publication. In the alternative, if is necessary for the court to compare jurisdictions to determine which is the most appropriate forum for trial Defendant submits that the burden is on the Claimant to demonstrate that England and Wales is clearly the most appropriate forum, and there is no realistic prospect of him being able to discharge that burden. She points in particular to the fact that both of the parties are based in the Middle East, as are all of the publishees of the What’sApp Messages concerned, save for one, who is based in the United States.

Claimant submits that Defendant has submitted to the jurisdiction and so can no longer dispute the Court’s jurisdiction under s 9 of the DA 2013, or otherwise. Further or alternatively, he submits that provision is of no assistance because she was domiciled within the jurisdiction at the relevant time.

At 55 Knowles J holds that failure by a defamation defendant to follow the procedure in Part 11 of the civil procedure rules, for contesting jurisdiction under s 9 does not mean that her right to make a jurisdictional challenge under that section has been waived. ‘Section 9(2) is in mandatory form. Where the defendant is not domiciled within one of the specified jurisdictions then s 9(2) provides (emphasis added), ‘A court does not have jurisdiction to hear and determine an action to which this section applies unless …’. In my judgment jurisdiction under s 9 cannot be conferred by waiver, submission or consent. It is concerned with the subject matter of the suit and not with personal jurisdiction over the defendant.’ In the DA 2013 Parliament in other words inserted mandatory rules on jurisdiction which are not within the remit of party autonomy.

At 60 ff then follows the analysis of ‘domicile’ for natural persons under English law (following Article 62 Brussels Ia’s deference to national law), leading to a conclusion of domicile in the UK at the relevant time.

The remainder of the case discusses grounds for summary dismissal on the grounds of substantive English libel law.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.10

In [2019] EWHC 2426 (Comm) AMP Advisory & Management Partners AG v Force India Formula One Team Ltd (in liquidation), Moulder J leads a most complete and interesting analysis of the formation or not of a contract, oral or written, under English law. I keep this post short for it is mostly intended for library purposes and for the benefit of my comparative law colleagues, who are best served by simple reference to the judgment.

Geert.