Flux européens

Pologne / Commission
Énergie
Le Tribunal annule la décision de la Commission approuvant la modification du régime dérogatoire d’exploitation du gazoduc OPAL

Pologne / Commission
Énergie
Le Tribunal annule la décision de la Commission approuvant la modification du régime dérogatoire d’exploitation du gazoduc OPAL

As I continue to dabble in research and talks about the innovation ‘principle’ (not in existence), and find myself in court (an attachment procedure following judgment in Israel) discussing the common law principle that ‘he who comes to equity must approach the court with clean hands’, the CJEU (General Court) yesterday in T-883/16 held Poland v EC a first test of the TFEU Energy title’s ‘principle of energy solidarity’. Note Poland’s litigant friends (Latvia; Lithuania), and the EC’s (Germany). This tells you something about energy security of supply on our Eastern borders.

Article 194 TFEU: ‘1. In the context of the establishment and functioning of the internal market and with regard for the need to preserve and improve the environment, Union policy on energy shall aim, in a spirit of solidarity between Member States, to:…’

The gas pipeline Ostseepipeline-Anbindungsleitung ﴾OPAL) is the terrestrial section to the west of the Nord Stream 1 gas pipeline. Its entry point is located in Germany and its exit point is in the Czech Republic. In 2009, the Bundesnetzagentur (BNetzA, the German regulatory authority) notified the Commission of two decisions that exempted the capacities for cross-border transmission of the planned OPAL pipeline from the application of the rules on third party access and tariff regulation laid down in Directive 2003/55. Those decisions concerned the shares belonging to the two owners of the OPAL pipeline. The same year, the Commission adopted a decision by which it requested the BNetzA to modify its decisions by adding certain conditions. Under those conditions, in particular, a dominant undertaking, such as Gazprom, could reserve only 50% of the cross-border capacities of the OPAL pipeline, unless it released onto the market a
volume of gas of 3 billion m³/year on that pipeline (‘the gas release programme’). In accordance with those three decisions of 2009, the capacities of the OPAL pipeline were exempted from the application of the rules on regulated third-party access and tariff regulation on the basis of Directive 2003/55. This decision was later (2016) slightly amended albeit not in substance.

Poland argue that the grant of a new exemption relating to the OPAL pipeline threatens the security of gas supply in the European Union, in particular in central Europe. Poland suggests that the 2016 decision breaches the principle of energy solidarity in that it enables Gazprom and undertakings in the Gazprom group to redirect additional volumes of gas onto the EU market by fully exploiting the capacities of the North Stream 1 pipeline. Taking into account the lack of significant growth in demand for natural gas in central Europe, according to Poland, that would, as its only possible consequence, influence the conditions of supply and use of transmission services on the pipelines competing with OPAL.

The General Court yesterday (the case no doubt may be appealed) held that the application of the principle of energy solidarity does not mean that the EU energy policy must never have negative impacts on the particular interests of a Member State in the field of energy. However, the EU institutions and the Member States are required to take into account, in the context of the implementation of that policy, the interests both of the European Union and of the various Member States and to balance those interests where there is a conflict. In neither the preparation of the 2016 decision nor its actual content is there any trace of the EC having considered the principle and its impact: the Decision is therefore annulled.

The case adds to the corpus of judgments where the CJEU is called upon to apply ‘principles’ and clearly emphasises preparatory due diligence, rather than second-guessing the actual application of the principle in substance.

Geert.

(Handbook of) EU Environmental Law (with Leonie Reins), 2017, Part I Chapter 2.

 

I reviewed Bobek AG Opinion in Case C-347/18 Salvoni v Fiermonte earlier. The referring court enquires whether the court of origin tasked with issuing the Article 53 Certificate (issued with a view to enabling swift recognition and enforcement) may, of its own motion, seek to ascertain whether the judgment whose enforcement is sought was issued in breach of the rules on jurisdiction over consumer contracts, so that it may, where appropriate, inform the consumer of any such breach and enable her to consider the possibility of opposing enforcement of the judgment in the Member State addressed.

The CJEU has entirely confirmed the AG’s Opinion (no English version at the time of posting): no such second-guessing of jurisdiction.

At 34 ff the Court points out an important distinction with certificates issued with a view to enforcing provisional measures: there, the court issuing the certificate does carry out jurisdictional review (whether the court ordering the measures  has jurisdiction as to the substance of the case).

At 40 ff the Court also confirms that substantive consumer protection laws (such as Directive 93/13) do not transfer to the procedural /jurisdictional rules of Brussels Ia: an important conclusion overall.

Geert.

(Handbook of) European private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.8.2, Heading 2.2.16.

 

The CJEU today has held in C‑172/18 AMS Neve, confirming Szpunar AG’s Opinion which I briefly reviewed earlier. Eleonora Rosati has excellent analysis here and I am happy to refer entirely. As I note in my handbook, ‘targeting’, ‘directed at’ and ‘business models’ are a variety of jurisdictional triggers across EU law. The lack of uniform terminology does not assist the unsuspected reader or practitioner.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Heading 2.2.8.2.5; Heading 2.2.11.2.4 (quoted by the AG in his Opinion).

Commission / Italie (Bactérie Xylella fastidiosa)
Environnement et consommateurs
L’Italie a manqué à l’obligation lui incombant de mettre en place des mesures pour empêcher la propagation de la bactérie Xylella fastidiosa, qui peut entraîner la mort de nombreux végétaux, notamment les oliviers

Commission / Italie (Bactérie Xylella fastidiosa)
Environnement et consommateurs
L’Italie a manqué à l’obligation lui incombant de mettre en place des mesures pour empêcher la propagation de la bactérie Xylella fastidiosa, qui peut entraîner la mort de nombreux végétaux, notamment les oliviers

Verein für Konsumenteninformation
Rapprochement des législations
La possibilité de payer par prélèvement SEPA ne peut pas être subordonnée à une condition de domicile sur le territoire national

Verein für Konsumenteninformation
Rapprochement des législations
La possibilité de payer par prélèvement SEPA ne peut pas être subordonnée à une condition de domicile sur le territoire national

AW e.a. (Appels au 112)
Rapprochement des législations
Les entreprises de télécommunications doivent transmettre gratuitement à l’autorité traitant les appels d’urgence au 112 les informations permettant de localiser l’appelant

AW e.a. (Appels au 112)
Rapprochement des législations
Les entreprises de télécommunications doivent transmettre gratuitement à l’autorité traitant les appels d’urgence au 112 les informations permettant de localiser l’appelant

Salvoni
Espace de liberté, sécurité et justice
Lors de la délivrance du certificat relatif à force exécutoire d’une injonction de paiement définitive, le juge national ne peut pas vérifier d’office si les règles de compétence juridictionnelle ont été méconnues, même si un consommateur est concerné

Salvoni
Espace de liberté, sécurité et justice
Lors de la délivrance du certificat relatif à force exécutoire d’une injonction de paiement définitive, le juge national ne peut pas vérifier d’office si les règles de compétence juridictionnelle ont été méconnues, même si un consommateur est concerné

Many thanks Sofja Goldstein for alerting me a while back to the Hoge Raad’s decision to refer to the CJEU and what is now known to be Case C-186/19. The case concerns SHAPE’s appeal to a Dutch Court to lift the attachment aka ‘garnishment’ of a Belgian NATO /SHAPE escrow account by Supreme Services GmbH, a supplier of fuel to NATO troops in Afghanistan. As Sofja reports, in 2013, Supreme and Allied Joint Force Command Brunssum (JFCB), the Netherlands-based regional headquarters of NATO, set up an escrow bank account in Belgium with the goal of offsetting any contingent liabilities on both sides at the end of Basic Ordering Agreements (BOAs). Supreme Services in 2015 initiated proceedings against SHAPE and JFCB in the Netherlands arguing that the latter parties had not fulfilled their payment obligations towards Supreme. It also attached the account in Belgium.

SHAPE and JFCB from their side seized the Dutch courts for interim relief, seeking (i) to lift the attachment, and (ii) to prohibit Supreme from attaching the escrow account in the future.

The Supreme Court acknowledges the Dutch Courts’ principle jurisdiction at the early stages of the procedure on the basis of Article 35’s rule concerning provisional measures, yet at this further stage of the proceedings now feels duty-bound firstly under Article 27 of Brussels Ia to consider whether Article 24 paragraph 5 applies (Belgium being the place of enforcement of any attachment should it be upheld); further and principally, whether the Brussels I a Regulation applies at all given that SHAPE and NATO invoke their immunity (it is in my view unlikely that the invocation or not of an immunity defence may determine the triggering or not of Brussels Ia), this immunity interestingly being the result of a Treaty not between The Netherlands and NATO but rather resulting from the headquarter agreement between NATO and Belgium.

An interesting example of public /private international law overlap.

Geert.

 

 

 

Like quite a few of the Opinions and Judgment in my recent blog posts, Szpunar AG’s recent Opinion in C-555/18 KHK v BAC (*mutters his usual rant on the idiocy of the parties’ anonimisation rule*) was issued just before many of us took a short summer break. Carlos Santaló Gorisseemingly did not and I am happy to refer in the main to his analysis.

The Advocate General refers first of all to the infamous decision in 125/79 Denilauler, excluding ex parte provisional or protective measures from enforcement under the then Brussels Convention. The European Account Preservation Order Regulation 655/2014 was intended to fix this particular chink in the European civil procedure armour. Which national decisions fit with its definition of ‘authentic instrument’ is the subject of current proceedings, and Szpunar AG as Carlos reports takes a balanced approach between facilitating free movement without assisting abuse.

Of note is that the EAPO Regulation hitherto has received very little practice. Clarification of its precise scope is crucial.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.15, Heading 2.2.16.1.1.

 

Szpunar AG Opined in C-468/18 R v P that in the absence of formal provisions to that effect, the Maintenance Regulation 4/2009 cannot be interpreted to include a forum non conveniens rule.

The referring court is asking, in essence, whether Article 3(a) and Article 5 of Regulation 4/2009 must be interpreted as meaning that they preclude a court of a Member State with jurisdiction to hear an action relating to a maintenance obligation brought against a defendant who is habitually resident in that Member State or who has entered an appearance before that court from declining to exercise that jurisdiction on the grounds that such a claim is ancillary to a claim relating to parental responsibility, within the meaning of Article 3(d) of that regulation, and that the court with jurisdiction to hear the latter claim would be better placed, having regard to the best interests of the child, to adjudicate on those claims.

The Court’s first Advocate-General clearly and succinctly lays out the relevant principles and reference is best made to the Opinion. It is particularly at 83, including in relevant footnote, that he points out the consequences of the EU’s approach to distribution of jurisdiction: unless a Regulation (such as in Brussels IIa; or now also Brussels Ia) includes a forum non rule, forum non must not apply.

Geert.

 

 

In C-451/18 Tibor v DAF Trucks the CJEU has confirmed its CDC case-law on locus damni for end-users affected by a cartel. Truck distribution arrangements were such that Tibor (of Hungary) could not buy directly from DAF Trucks NV (of The Netherlands), one of the truck manufacturers held by the EC to have infringed Article 101 TFEU. Rather, it had to go via local Hungarian dealers (and leasing companies).

Tibor-Trans claims that the Hungarian courts derive their international jurisdiction from Article 7(2) Brussels Ia per CDC according to which, in the case of an action for damages brought against defendants domiciled in various Member States as a result of a single and continuous infringement of Article 101 TFEU and of Article 53 of the EEA Agreement, which has been established by the Commission, in which the defendants participated in several Member States, at different times and in different places, each alleged victim can choose to bring an action before the courts of the place where its own registered office is located.

DAF Trucks submits, first, that the collusive meetings (hence the locus delicti commissi) took place in Germany, which should entail the jurisdiction of the German courts and, second, that it never entered into a direct contractual relationship with Tibor-Trans, with the result that it could not reasonably expect to be sued in the Hungarian courts.

The Court dismisses the latter argument: those infringing competition law must expect to be sued in markets affected by anti-competitive behaviour (at 34, with reference to fly-LAL). That Tibor did not have a contractual relation with DAF Trucks is irrelevant as the increase in price clearly has been passed on by the frontline victims of the cartel: the dealers (at 31).

The case does leave open the unresolved issue of the CJEU’s identification of registered office as locus damni (see my comments in my review of CDC). Given that Tibor Trans would seem to have purchased all its trucks in Hungary, neither does not the judgment shed light on the distributive impact of locus damni or my suggestion that for competition law, markets where the anti-competitive behaviour is rolled-out should qualify as locus delicti commissi (alongside the place of the meetings where infringement of competition law is decided).

Geert.

(Handbook of) European Private International Law. 2nd ed. 2016, Chapter 2, Heading 2.2.12, Heading 2.2.12.1

In C-421/18 Saugmansdgaard ØE opined (Opinion a yet available in a handful of languages only, not including English) on the issue of ‘civil and commercial’ (last reviewed by the Court in Buak) and ‘contract’ (within Article 7(1) Brussels Ia.

At issue was the relationship between a France-domiciled practising lawyer, registered with the Dinant (Belgium) Bar, and that Bar. Maître JN, now a very occasional practitioner it seems, had been refusing to pay his Bar Membership fees even after the Bar council had reduced them to the level of insurance premiums paid by it to the insurance company running the collective professional insurance scheme.

The referring court at Namur had not in fact asked the CJEU about the interpretation of ‘civil and commercial’. It was the EC’s comments which triggered Saugmansdgaard ØE’s review of that issue (albeit he insists the final call is up to the referring court). He refers to the public interest duties carried out by the Bar Council (in particular, ensuring the public’s trust in the proper representation before the judicial authorities), and the authority entrusted to the Council by Belgian’s code of civil procedure (particularly at 34). At 35 ff he then considers whether in its collection of the Bar fees set by and due to it by the registered lawyers, the Council acts in the exercise of that authority, and decides it does not: the fees are determined by the general council of the Bar and in the main represent the professional insurance fees.  That is all the more made clear by the fact that in the case of maître JN the Bar had reduced the fees to the exact amount paid to the insurance company.

The dispute therefore he advices is about pennies, not power.

Turning to the issue of ‘contract’ reference is made ia to the recent CJEU decision in Kerr. Particularly at 81 ff the Advocate General emphasises the specificities of the case: the solicitor in question had effectively retired yet chose to continue to pay Bar membership fees. In contrast to for instance Austro-Mecana and more in line with Kerr (and in contrast also one could argue with fully practising lawyers) the voluntary character of the relationship is core.

Geert.

 

i reviewed [2017] EWCA Civ 1609 Koza v Akcil in my post here. The case concerns the application of Article 24(2) of the Brussels I Recast Regulation, which assigns exclusive jurisdiction to the Courts of the Member State of the seat in matters relating to the life and death of companies and of the validity of decisions made by their organs:

in proceedings which have as their object the validity of the constitution, the nullity or the dissolution of companies or other legal persons or associations of natural or legal persons, or of the validity of the decisions of their organs, the courts of the Member State in which the company, legal person or association has its seat. In order to determine that seat, the court shall apply its rules of private international law;

Referring particularly to C-144/10 BVG and to C-372/07 Hassett, the Court of Appeal found that the case as a whole fundamentally concerns one and the same issue of the validity of decisions of the organs of the company, Koza Ltd, an English subsidiary of a Turkish company.

At 33, Lord Sales writes for the consensus opinion:

the Court of Appeal held that article 24(2) of the Recast Regulation required the court to “form an overall evaluative judgment as to what the proceedings are principally concerned with” (para 46). But this approach had the effect of expanding the application of article 24(2) (ex article 22(2) of Regulation No 44/2001), contrary to the guidance in the Hassett case and the BVG case, rather than narrowing its application, as the Court of Justice had been at pains to do in its judgments in those cases.

At 34:

it is the guidance in paras 22-25 of the Hassett judgment which is relevant, to the effect that a mere link between a claim which engages article 24(2) and one which does not is not sufficient to bring the latter within the scope of that provision

Further authority was sought in particular from Schmidt v Schmidt (C-417/15) which I reviewed here, and EON Czech Holding AG v Dědouch (C-560/16), my review here. Acte clair – no reference to the CJEU required. Conclusion, at 43: ‘the English courts cannot assert jurisdiction over Koza Altin [Turkey] and the trustees in relation to that claim in the present proceedings on the basis of  [A24(2)], and their appeal in that regard should be allowed.’ However: at 44: given that Turkey is not an EU Member State, the English courts may be able to assert jurisdiction over them by means of a provision in residual English PIL.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.6, Heading 2.2.6.5.

 

The Nyrstar business was created on 31 August 2007 by combining the zinc and lead
smelting and alloying operations of Zinifex Limited and Umicore NV/SA. Nyrstar is a global multi-metals business, with a market leading position in zinc and lead, and growing positions in other base and precious metals. It is one of the world’s largest zinc smelting companies based on production levels. The Nyrstar business has mining, smelting and other operations located in Europe, the Americas and Australia and employs approximately 4,200 people. The ultimate group Parent is incorporated in Belgium and has corporate offices in Zurich, Switzerland.

Its debt is now being restructured using an English scheme of arrangement, with a variety of new companies being formed as corporate vehicles for same. Readers of the blog will not be surprised: this is a classic example of regulatory (restructuring) competition, which I regularly report on the blog (most recently: New Look, with further references there).

In [2019] EWHC 1917 (Ch) re NN2 Newco limited and Politus BV, Norris J applies the now estblished jurisdictional test, with one or two points of attention. Against the scheme company jurisdiction is straightforward: this is England incorporated. Against the scheme creditors, English courts apply the jurisdictional test viz the Brussels Ia Regulation arguendo: if it were to apply (which the English Courts have taken no definitive stance on), would an English court have jurisdiction?

At 11: viz the Notes:

They are now governed by English law (in place of New York law). Clause 12.06 of the governing Indenture now reads:- “The courts of England and Wales shall have jurisdiction to settle any disputes that arise out of or in connection with the Indenture, the Notes and the Guarantees, and accordingly any legal action or proceedings arising out of or in connection with the Indenture the Notes and the Guarantees (“Proceedings”) may be brought in such courts. The courts of England and Wales shall have exclusive jurisdiction to settle any Proceedings instituted by [NNH or NN2]… in relation to any Holder or the Trustee on behalf of the Holders (“Issuer Proceedings”). [NNH and NN2], each of the Guarantors, the Trustee and each Holder (each, “a Party”) irrevocably submit to the jurisdiction of such courts and agree that the courts of England and Wales are the most appropriate and the most convenient courts to settle Issuer Proceedings and accordingly no party shall argue to the contrary. Notwithstanding the foregoing, this section 12.06 shall not limit the rights of… each of the Holders to institute any Proceedings against [NNH and NN2] in any other court of competent jurisdiction, nor shall the taking of Proceedings in one or more jurisdictions preclude the taking of proceedings in any other jurisdiction….”

This is an asymmetric jurisdiction clause. The English Courts have jurisdiction over all disputes and the parties agree that they are the most convenient forum and submit to the jurisdiction of the English courts. NNH and NN2 are bound to use the English courts if they sue the Holder of a Note, because the English courts have exclusive jurisdiction in such a case. But the Holder of a Note can also sue NNH and NN2 in any Court that otherwise has jurisdiction, so the English courts have a non-exclusive jurisdiction in such a case.

At 13:

The original governing law of the Existing Bonds was English law. But the holders voted to amend the jurisdiction clause in the Trust Deed to provide: “The courts of England and Wales shall have exclusive jurisdiction to settle any disputes that arise out of or in connection with the Trust Deed and the Bonds, and accordingly any legal action or proceedings arising out of or in connection with the Trust Deed and the Bonds (“Proceedings”) may be brought in such courts. [NNV and NN2] and the Trustee (in its own capacity as such and on behalf of the Bondholders) irrevocably submit to the jurisdiction of such courts and waive any objection to Proceedings in such courts whether on the ground of venue or on the ground that the Proceedings have been brought in an inconvenient forum. Notwithstanding the foregoing, Belgian courts have exclusive jurisdiction over matters concerning the validity of decisions of the Board of Directors of NNV of the general meeting of shareholders of NNV and of the general meeting of Bondholders.”

This is a symmetrical jurisdiction clause with a “carve out” for specific proceedings.”

At 18 ff the details of the scheme are outlined. It involves Trafigura financial instruments, Trafigura now being Nyrstar’s controlling shareholder. At 31 ff jurisdiction is discussed. There is no abusive forum shopping (per Codere; which I reference here). The usual Article 8 and Article 25 routes are discussed. With respect to Article 25, the English jurisdiction clauses in the Existing Notes and the Politus Facility are asymmetric; however Norris J at 41 (with reference to authority) does not see that as an obstacle seeing as Article 25 covers both symmetric and asymmetric choice of court.

A final hurdle is whether any order sanctioning the scheme is likely to be effective or whether it is apparent even at this stage that the scheme will not be recognised in other relevant jurisdictions even if sanctioned: this will eventually be settled at the sanctioning hearing however Norris J already indicates that it is unlikely that expert evidence will yield surprising (objectionable) results.

Scheme meetings may therefore be convened.

Geert.

(Handbook of) EU Private International Law, 2nd edition 2016, Chapter 2, Chapter 5.