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Commission / Pologne (Indépendance et vie privée des juges)
Principes du droit communautaire
Avocat général Collins : la loi polonaise modifiant les règles d’organisation des juridictions de droit commun et de la Cour suprême viole le droit de l’Union

Commission / Pologne (Indépendance et vie privée des juges)
Principes du droit communautaire
Avocat général Collins : la loi polonaise modifiant les règles d’organisation des juridictions de droit commun et de la Cour suprême viole le droit de l’Union

On 2 November 2022, the UK Supreme Court delivered its judgment in The Soldiers, Sailors, Airmen and Families Association – Forces Help and another (Respondents) v Allgemeines Krankenhaus Viersen GmbH (Appellant).

The issue at stake was whether the Civil Liability (Contribution) Act 1978, which regulates whether a person liable from a damage may recover contribution from any other person liable, has overriding effect, and thus applies irrespective of the law governing the claim. The Rome II Regulation did not apply ratione temporis.

Background

Mr Roberts suffered brain damage at birth in the Viersen General Hospital (AKV) in Germany in June 2000. Mr Roberts claims that this occurred as a result of the negligence of the attendant midwife, who was employed by the Soldiers, Sailors, Airmen and Families Association Forces Help (SSAFA). He also sued the Ministry of Defence (MoD), which will indemnify SSAFA against any liability.

SSAFA and MoD have brought a claim against AKV for contribution if Mr Roberts’ claim against them succeeds. The basis for this contribution claim is the 1978 Act. The parties agree that the law governing the contribution claim is German law and under German law, the claim would be time-barred. However, if the 1978 Act has overriding effect and if SSAFA/MoD can show that AKV is liable under it, their contribution claim will be in time.

The High Court considered this issue as a preliminary issue before the rest of Mr Roberts’ claim is decided. The High Court decided that the 1978 Act does have overriding effect and therefore SSAFA/MoD’s contribution claim against AKV is not time-barred. The Court of Appeal agreed. AKV now appeals to the Supreme Court.

Judgment

The Court allowed the appeal on the grounds which were summarised in the Press Summary as follows.

The 1978 Act does not provide expressly that it has overriding effect. It does not provide that the 1978 Act applies irrespective of the foreign law otherwise applicable to the contribution claim. The question is whether such an intention must be implied from the provisions of the statute [38]. Three statutory provisions were identified variously by the Court of Appeal as supporting overriding effect: sections 1(6), 2(3)(c) and 7(3). The Supreme Court, however, considers these provisions equivocal. Their efficacy is not dependent upon overriding effect [39]-[48]. In particular, even in the absence of overriding effect, section 1(6) will be effective in many situations such as where the parties to the contribution claim are in a special relationship governed by the law of England and Wales [43].

Nothing in the admissible Parliamentary materials or the legislative history supports the view that the legislation was intended to have overriding effect [49] – [51]. However, the Bill was a Law Commission Bill and statements by the Commission in other reports suggest it was not intended to have overriding effect [52]-[55]. The weight of academic commentary strongly favours the view that the 1978 Act does not have overriding effect [73]-[79].

A line of authorities supports overriding effect. In a number of these cases overriding effect was assumed, was not directly in point and was not argued [56]-[60]. Arab Monetary Fund v Hashim (No 9) provides direct support for overriding effect, but the reasoning is open to the criticism that it is circular [61]-[68].

In coming to the conclusion that the 1978 Act was not intended to have overriding effect, the Supreme Court is influenced in particular by two considerations. First, there will be many situations in which a contribution claim will be governed by the law of England and Wales, notwithstanding the fact that the underlying liabilities are governed by a foreign law [82]. Secondly, it is difficult to see why Parliament should have intended to confer a statutory right of contribution whenever the party from whom contribution is sought can be brought before a court in this jurisdiction, regardless of the law with which the contribution claim has its closest connection. A failure of foreign law to provide for contribution claims is not a defect requiring remedy by legislation in this jurisdiction. Moreover, it would seem contrary to principle for the law of England and Wales to be applied if the contribution claim were most closely connected to a foreign system of law [83].

Assessment

Under the Rome II Regulation, the law governing the claim satisfied by a person liable to the victim also governs the right of that person to seek “compensation” from other persons liable to the victim of the same claim. The Rome II Regulation, however, did not apply in this case.

The judgement eventually concludes that German law should also apply to the contribution claim in a reasoning in three steps.

The first is that, although issues of contribution used to be perceived as issues of procedure, it is now widely considered in the British common law world that it is one of substance.

The second is that the issue should be characterised as closely analogous to a restitutionary or quasi-contractual claim, and that the applicable law should be the law with which this claim is the most closely connected. In the present case, given that the claims of each person liable to the victim was governed by German law, that law would be German law as well. But Lord Lloyd-Jones explains that this could have been otherwise if there had been a special relationship between the two liable persons.

The third is that the statutes with overriding effects should be identified by assessing whether the terms of the relevant legislation cannot be applied or its purpose achieved unless it is overriding, and the legislative policy would be so significant that the statute should override the application of foreign law.

The main difference between the English rule and the Rome II Regulation is now, it seems to me, that the English rule relies on a more flexible test which, in certain cases, could lead to the application of a law other than the law governing the claim of the victim. This was critical in this case, as a particular provision of the 1978 Act somewhat required that there be cases were the law of the claim of the victim would be different from the law governing the contribution claim.

Section 1(6) of the 1978 Act provides:

References in this section to a person’s liability in respect of any damage are references to any such liability which has been or could be established in an action brought against him in England and Wales by or on behalf of the person who suffered the damage; but it is immaterial whether any issue arising in any such action was or would be determined (in accordance with the rules of private international law) by reference to the law of a country outside England and Wales.

The answer of the Court is that, for this provision to make sense, it must be possible that English law sometimes applies where foreign law governs the claim of the victim. The example given is a case where a special relationship existed between the two persons liable.

Les dommages susceptibles d’être indemnisés par le fonds de garantie des assurances obligatoires de dommages (FGAO) sont exclus de la compétence de la Commission d’indemnisation des victimes d’infraction (CIVI), peu important que le FGAO intervienne subsidiairement, en présence d’un assureur du responsable susceptible d’indemniser la victime.

Sur la boutique Dalloz Droit du dommage corporel. Systèmes d’indemnisation Voir la boutique Dalloz

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Par un arrêt du 7 décembre 2022, la première chambre civile fournit des précisions, en application du règlement Bruxelles I, sur les conditions de la prorogation de compétence dans l’Union et sur la notion d’ordre public international.

Sur la boutique Dalloz Droit et pratique de la procédure civile 2021/2022 Voir la boutique Dalloz

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I reported earlier on the ongoing collective claim against TikTok here. Thank you Xandra Kramer and Eduardo Silva de Freitas for signalling and discussing the first instance jurisdictional finding. I note already that the Court [5.28] has refused interim permission to appeal on the jurisdictional finding (as in i.a. the applicable law issue in Airbus). [5.22] it also refused a preliminary reference o the CJEU even though my concise discussion below already shows that more is at play here than the court has made out. TikTok will now first have to argue the case on the merits to then (presumably) appealing both substance and jurisdictional finding.

As I flagged earlier and as Xandra and Eduardo discuss, the issue here is firstly the relationship between GDPR and Brussels Ia at the jurisdictional level: I discuss that in this paper. Against TikTok Ireland, jurisdiction is established on the basis of A80 GDPR, with no further discussion of A79 (even if A80 partially refers to A79 for the action it establishes).

In my view the court quite carelessly muddles the various concepts used in A79-80, all too easily dismisses ia CJEU Schrems, does not clearly distinguish between assignment, subrogation, mandate etc., and certainly does not correctly delineates the authority which the collective organisations might have under the GDPR: for it is not at all clear that this authority, beyond injunctive relief,  includes a (collective) claim for damages.

[5.13] the court already announces that it may not in fact have jurisdiction for all individuals who are no longer habitually resident in The Netherlands, a concession which in my view in fact goes towards undermining its own reasoning.

[5.14] ff the court then reviews A4 and 7(2) BIa, as a supplementary jurisdictional ground for the GDPR related claims and as a stand-alone ground for the non-GDPR related claims. The court’s decision to apply CJEU Wikingerhof as leading to forum delicti and not forum contractus is in my view optimistic, and surely if A7(2) is at play then the CJEU’s authority ia in Schrems is, too. Yet the court [5.17] quite happily assimilates the harmed individuals’ COMI etc. with the collective organisation.

[5.19-20] the court summarily accepts jurisdiction against the other (non-EU) TikTok entities on the basis of Dutch residual rules for related cases.

Jurisdictional issues will most definitely return upon eventual appeal.

Geert.

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

 

 

Written by Eduardo Silva de Freitas (Erasmus University Rotterdam) & Xandra Kramer (Erasmus University Rotterdam/Utrecht University), members of the Vici project Affordable Access to Justice, financed by the Dutch Research Council (NWO), www.euciviljustice.eu.  

Introduction

On 9 November 2022 the District Court Amsterdam accepted international jurisdiction in an interim judgment in a collective action brought against TikTok (DC Amsterdam, 9 November 2022, ECLI:NL:RBAMS:2022:6488; in Dutch). The claim is brought by three Dutch-based representative organisations; the Foundation for Market Information Research (Stichting Onderzoek Marktinformatie, SOMI), the Foundation Take Back Your Privacy (TBYP) and the Stichting Massaschade en Consument (Foundation on Mass Damage and Consumers). It concerns a collective action brought under the Dutch collective action act (WAMCA) for the infringement of privacy rights of children (all foundations) and adults and children (Foundation on Mass Damage and Consumers). In total, seven TikTok entities are sued, located in Ireland, the United Kingdom, California, Singapore, the Cayman Islands and China. The claims are for the court to order that an effective system is implemented for age registration, parental permission and control, and measures to ensure that commercial communication can be identified and that TikTok complies with the Code of Conduct of the Dutch Media Act and the GDPR.

After an overview of the application of the WAMCA, which has been introduced in a different context on this blog earlier, we will discuss how the Court assessed the question of international jurisdiction.

The class action under the Dutch WAMCA

 Following case law of the Dutch Supreme Court in the 1980s concerning legal standing of representative organisations, the possibility to start a collective action was laid down in Article 3:305a of the Dutch Civil Code (DCC) in 1994. However, this was limited to declaratory and injunctive relief. Redress for compensation in mass damage cases was only introduced in 2005 with the enactment of the Collective Settlement of Mass Claims Act (Wet collectieve afwikkeling massaschade, WCAM). This collective settlement scheme enables parties to jointly request the Amsterdam Court of Appeal to declare a settlement agreement binding on an opt-out basis. The legislative gap remained as a collective action for compensation was not possible and such mass settlement agreement relies on the willingness of an allegedly liable party to settle.

This gap was closed when in 2019, after a lengthy legislative process, the Act on Redress of Mass Damages in a Collective Action (Wet afwikkeling massaschade in collectieve actie, WAMCA) was adopted. The WAMCA entered into force on 1 January 2020 and applies to mass events that occurred on or after 15 November 2016. The WAMCA expanded the collective action contained in Article 3:305a DCC to include actions for compensation of damage (Tillema, 2022; Tzankova and Kramer, 2021). While the WAMCA Act generally operates on an opt-out basis for beneficiaries represented by the representative organisation(s), there are exemptions, including for parties domiciled or habitually resident outside the Netherlands. In addition, the standing and admissibility requirements are relatively strict, and also include a scope rule requiring a close connection to the Netherlands. Collective actions are registered in a central register (the WAMCA register) and from the time of registration a three-months period starts to run (to be extended to maximum six months), enabling other claim organisations to bring a claim, as only one representative action can be brought for the same event(s). If no settlement is reached, an exclusive representative will be appointed by the court. Since its applicability as of 1 January 2020, 61 collective actions have been registered out of which 8 cases have been concluded to date; only a very few cases have been successful so far. These collective actions involve different cases, including consumer cases, privacy violations, environmental and human rights cases, intellectual property rights, and cases against the government. Over one-third of the cases are cross-border cases and thus raise questions of international jurisdiction and the applicable law.

As mentioned above, in the TikTok case eventually three Dutch representative foundations initiated a collective action against, in total, seven TikTok entities, including parent company Bytedance Ltd. (in the first action, the claim is only brought against the Irish entity; in the other two actions, respectively, six and seven entities are defendants). These are TikTok Technology Limited (Ireland), TikTok Information Technology Limited (UK), TikTok Inc. (California), TikTok PTE Limited (Singapore), Bytedance Ltd. (Cayman Islands), Beijng Bytedance Technology Co. Ltd. (China) and TikTok Ltd. (also Cayman Islands). The claim is, in essence, that these entities are responsible for the violation of fundamental rights of children and adults. The way in which the personal data of TikTok users is processed and shared with third parties violates the GDPR as well as the Dutch Telecommunications Act and Media Act. It is also claimed that TikTok’s terms and conditions violate the Unfair Contract Terms Directive (UCTD – 93/13/EEC) and the relevant provisions of the Dutch Civil Code.

International jurisdiction of the Amsterdam District Court

 The first stage of the proceedings, leading up to this interim judgment, deals with the international jurisdiction of the District Court of Amsterdam, as the TikTok entities challenge its international jurisdiction. TikTok requested the Court to refer preliminary questions to the CJEU but the Court refused this request, stating that the questions on (a) how the GDPR and Brussels I-bis Regulation regimes interact and (b) the applicability of Article 79(2) GDPR were deemed resolved.

Relevant jurisdiction rules

Considering the domicile of the defendant(s) and the alleged violation of the GDPR, both EU and Dutch domestic jurisdiction rules come into the picture. TikTok alleges that the Dutch courts do not have jurisdiction over this case under Article 79(2) GDPR. Moreover, TikTok alleges that, since Article 79(2) GDPR is a lex specialis in relation to the Brussels I-bis Regulation, the latter cannot be applied to override the jurisdictional rules set out in the GDPR. The three representative organisations argue that the Dutch courts have jurisdiction under both EU private international law rules and the Dutch Code of Civil Procedure (DCCP). Before delving into how the District Court of Amsterdam construed the interaction between the legislations concerned, we will describe the applicable rules on international jurisdiction for privacy violations. The alleged violations occurred, or the claims relate to violations occurring, after 25 May 2018, that is, after the entry into force of the GDPR. TikTok Ireland is a data controller subject to the GDPR. Under Article 79(2) GDPR the “data subjects” (those whose rights are protected by the GDPR) shall bring an action for the violation of their rights in either the courts of the Member State in which the data controller or processor is established or of the Member State in which the data subject has its habitual residence. Furthermore, Article 80(1) GDPR provides for the possibility of data subjects to mandate a representative body which has been properly constituted under the law of that Member State, has statutory objectives which are in the public interest, and is active in the field of the protection of data subjects’ rights and freedoms to file actions on their behalf under Article 79 GDPR.

The case also deals with non-GDPR-related claims, which triggers the application of the Brussels I-bis Regulation, at least as far as the entities domiciled in the EU are concerned. Article 7(1)(a) Brussels I-bis states that, for contractual matters, jurisdiction is vested in the Member State in which the contract is to be performed. More importantly for this case, with regards to torts, Article 7(2) provides jurisdiction for the courts of the place where the harmful event occurred or may occur. Finally, in relation to the TikTok entities that are not domiciled in the EU, the international jurisdiction rules of the Dutch Code of Civil Procedure (Articles 1-14 DCCP) apply. This is the case regarding both GDPR and non-GDPR-related claims. These Dutch rules are largely based on those of the Brussels I-bis Regulation and also include a rule on multiple defendants in Article 7 DCCP.

The claims against TikTok Ireland

The Amsterdam District Court starts its reasoning by addressing whether it has jurisdiction over TikTok Technology Limited, domiciled in Ireland, the entity that is sued by all three representative organisations. The Court states that Article 80(1) GDPR does not distinguish between substantive and procedural rights in granting the possibility for data subjects to mandate a representative body to file actions on their behalf under Article 79 GDPR. Therefore, actions brought under Article 80(1) GDPR can rely on the jurisdictional rule set out in Article 79(2) GDPR which allows for the bringing of actions before the courts of the Member State in which the data subject has its habitual residence. The Court further reasons that the word ‘choice’ enshrined in Recital 145 GDPR, when mentioning actions for redress, allows for the interpretation that it is up to the data subject to decide where she prefers to file her claim.  In the case at hand, since the data subjects concerned reside in the Netherlands, they can mandate a representative body to file claims before the Dutch courts.

As to the non-GDPR-related claims and GDPR violations that also qualify as tortious conduct, the District Court considered first whether the case concerned contractual matters, to decide whether Article 7(1) or Article 7(2) Brussels I-bis Regulation applies. For this purpose, the District Court relied on the rule established by the CJEU in Wikingerhof v. Booking.com (Case C-59/19, ECLI:EU:C:2020:95), according to which a claim comes under Article 7(2) when contractual terms as such and their interpretation are not at stake, but rather the application of legal rules triggered by the commercial practices concerned – or, in other words, contractual “interpretation being necessary, at most, in order to establish that those practices actually occur”. Given that, in this case, the question is whether TikTok’s terms and conditions are abusive under both the UCTD and the DCC, the claim was deemed to fall under Article 7(2) Brussels I-bis Regulation.

Next, the District Court assesses whether the criteria for establishing jurisdiction under Article 7(2) are met. For this purpose it refers to the CJEU ruling in eDate Advertising and Others (Case C-509/09, ECLI:EU:C:2011:685). In this case the CJEU ruled that, when it comes to “publication of information on the internet” that triggers an “adverse effect on personality rights”, the habitual residence of the victim being his centre of interests can be regarded as the place in which the damage occurred. The District Court rightfully ruled that since the rights of TikTok users that have their habitual residence in the Netherlands had been violated through online means, the Netherlands can be regarded as the place in which the damage occurred.

The Court confronts TikTok’s argument that, since Article 79(2) GDPR is a lex specialis in relation to the Brussels I-bis Regulation, the latter cannot be applied to override the jurisdictional rules set out in the GDPR. As per the Court, the rules on conflict of jurisdiction established by the Brussels I-bis Regulation are general in nature and, as such, cannot be derogated from other than by explicit rules. Hence, the Court interprets Recital 147 GDPR – which states that the application of the Brussels I-bis Regulation should be without prejudice to the application of the GDPR – as being unable to strip away the applicability of the Brussels I-bis Regulation. In the Court’s understanding, Recital 147 GDPR points to the complementarity of the GDPR in relation to the Brussels I-bis Regulation, and both regimes coexist without hierarchy. Therefore, according to the Court, the GDPR is not a lex specialis in relation to the Brussels I-bis Regulation. Furthermore, the Court notes that, under Article 67 Brussels I-bis Regulation, its regime is without prejudice to specific jurisdictional rules contained in EU legislation on specific matters. While the relationship between the jurisdiction rules of the GDPR and the Brussels I-bis Regulation is not wholly undisputed, in the present case the provisions do not contradict each other, while at the same time in this case also non-GDPR issues are at stake.

The claims against non-EU based TikTok entities

Having established international jurisdiction in the case against TikTok Ireland, the Amsterdam District Court rules on its international jurisdiction in relation to the other TikTok entities sued by two of the foundations. As no EU rules or international convention applies, the Dutch jurisdiction rules laid down in Articles 1-14 DCCP apply. Article 7(1) DCCP contains a rule for multiple defendants and connected claims similar to that in Article 8(1) Brussels I-bis. The Court considers that both legal and factual aspects are closely intertwined in this case. The claims concern several different services, not only the processing of data, and all defendants are involved in the provision of these services. The claims are therefore so closely connected that it is expedient that they are dealt with in the same proceedings.

Outlook

TikTok attempted to appeal this interim judgment on international jurisdiction. Under Article 337(2) DCCP, it is at the court’s discretion to grant leave to appeal interim decisions when the appeal is not filed against the final judgment at the same time. In this case, the Court did not find sufficient reasons to allow for such appeal. The case will now proceed on other preliminary matters, including the admissibility of the claim under the WAMCA, and (if admissible) the appointment of the exclusive representative. For this purpose, at the end of its judgment the Court orders parties to provide security as to the financing of the case, which requires submitting to the Court a finance agreement with the third-party financer. After that, assuming that no settlement will be reached, the case will proceed on the merits. It may well be that either of the parties will appeal the final judgment, and that on that occasion TikTok will raise the jurisdictional question again.

To be continued.

L’arrêt Spasov c/ Roumanie, rendu en pleine Saint-Nicolas, pourrait passer pour un arrêt d’espèce, empreint d’un certain exotisme. Il constitue, en réalité, une nouvelle pierre à l’édifice des relations entre la Cour européenne des droits de l’homme et le droit de l’Union que la Cour s’efforce de bâtir.

Sur la boutique Dalloz Les grands arrêts de la Cour de justice de l’Union européenne Voir la boutique Dalloz

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On 24 November 2022, the Court of Justice delivered an interesting judgment on the validity of a digital jurisdictional clause, i.e. the general terms and conditions containing the clause was accessible from a hypertext link mentioned in the written contract (C-358/21, Tilman, already commented here by Krzysztof Pacula and here by Geert Van Calster). In a nutshell, the Court held that such a clause is valid based on the formal requirements laid down in the Lugano II Convention (and, by analogy, in Brussels I bis Regulation) ensuring the parties’ consent to the clause, without the need for a click-wrapping system. Here lies the very point that differentiates the present case from previous ones (in particular C-322/14, Jaouad El Majdoub).

The Facts

A dispute arose between Tilman, a Belgian-based company and one of its clients, Unilever, established in Switzerland, concerning unpaid invoices. Unilever challenged the international jurisdiction of the Belgian courts seized by Tilman, relying on a jurisdiction clause in favour of the English court. This clause appeared in Unilever General Terms and Conditions (GTC) but these were not directly attached to the main contract; instead, they were only accessible on the Internet via a hypertext link mentioned in the contract. Plus, the hypertext link did not directly give access to the GTC but to a website, access to which allows those general terms and conditions to be viewed.

Before the Belgian Court of cassation, Tilman invoked a violation of the formal requirements of the Lugano II Convention – which corresponds to Article 23 of Regulation 44/20021 Brussels I – with regard to the jurisdictional clause and, therefore, the invalidity of the clause for lack of informed consent on its part.

The Issue at Stake

In this context, the Belgian court asked the Court of justice whether, under Article 23, §1, a) and §2, of the Lugano II Convention, consent to a jurisdiction clause can be deduced from a hyperlink inserted in a written contract, without any ‘obligation’ to click on that link.

The Court answered positively, confirming that business life is increasingly digital, including in its ‘legal dimension’, and that the main principles of contract law must thus adapt to it. This is the case of consent which is seen as genuine even in the digital sphere.

 The Court of Justice Reasoning

The decision of the Court of justice provides for a three-steps response.

First, (Non-)Impact of Brexit

Since the jurisdictional clause was stipulated in favour of the English court, the Court could not ignore the question of the geographical and temporal scope of the Lugano II Convention. After Brexit, the United Kingdom was refused access to the Lugano Convention (see also here and here). The applicable instrument for assessing the validity of the clause could be determined either at the date of its conclusion or at the date of the judicial proceedings. Since the issue at stake here was Brexit, i.e. the modification in time of the scope of application of EU law (including the Lugano II Convention), the Court of Justice chose the second option (for a discussion on this question, see here).

The Court rules that the legal action – the jurisdiction clause producing effects only on the date of the judicial proceedings (see Case Sanicentral, 25/79, point 6) – was brought before 31 December 2020, the termination date of the transitional period provided for in Article 126 of the UK withdrawal agreement. The latter text maintains the application of Union law, including the law on judicial cooperation in civil matters and the international agreements such as the Lugano II Convention. Therefore, the convention is applicable in the present case. The issue will be more difficult in the future (cf. here about a Swiss decision refusing the application of the Convention); in particular, the 2005 Hague Convention on Choice of Court Agreements should be considered.

Second, Analogy with the Interpretative Framework of the “Brussels Regime”

As regards the interpretation of the Lugano II Convention, the Court recalls, in a very classical way, that it must follow the principles laid down by the previous caselaw concerning the provisions at issue contained in other instruments, including the Brussels Convention and the Brussels I and Ia Regulations, insofar as these provisions are drafted in similar terms.

Third, Condition of Validity of a Jurisdiction Clause in the Digital Ecosystem

In order to be valid, a jurisdiction clause must be concluded, inter alia, “in writing or orally with written confirmation” (Article 23, §1). The objective is to ensure that the parties’ consent to the clause is genuine. In case of a dispute, the assessment is left to the court on the basis of this EU substantive rule. In the context of the information society and e-commerce, proof of consent may also be based on “electronic means which provides a durable record of the agreement”. This is an expression of the principle – which is becoming more and more widespread in comparative and EU contract law – of assimilating electronic transmission to written form, with a view to simplifying the conclusion of online contracts. However, according to European caselaw, this does not imply that the clause conferring jurisdiction and the GCT mentioning it are “actually” recorded permanently by the parties (see point 44 of the judgment). This nuance is crucial. In order for electronic transmission to offer the same guarantees as the paper format, in particular as regards evidence, there mere “possibility” to save and print the information before the conclusion of the contract is seen as sufficient.

In the present case, the Court of Justice notes that the jurisdiction clause is stipulated in the GTC explicitly mentioned in the written contract concluded between the parties. This procedure complies with EU law, but it must be ensured that the GTC containing the jurisdiction clause have actually been “communicated” to the contracting party, here Tilman, the Belgian company. This is in principle the case, according to previous case law, “if that information is accessible by means of a screen”. Here, the written contract provided for a hypertext link to an Internet site where the general conditions could be accessed. It is therefore necessary, according to the Court, “that hypertext link functions and can be activated by a party exercising ordinary diligence”. The Court adds that it “equates a fortiori to evidence of communication of that information”.

This analysis is relevant, but it is unclear why it is an a fortiori reasoning. Viewing general conditions on a screen expresses the fact that digital access is effective. This is not the case in the presence of a hypertext link, as long as it has not been clicked on. And then, a key practical issue is how to prove that the link does not function: by taking a photo of the screen (screenshot) which displays an ‘error message’ after the hyperlink has been clicked on?

According to the Court, it is irrelevant that Tilman, the co-contractor, did not have a box to tick on the page of the website to express acceptance of those terms and conditions, nor that the page containing those terms and conditions did not open automatically when the website was accessed. The Court implicitly applies here a proportionality test between the requirement of informed consent and the objective of not hindering commercial exchanges. It is therefore up to the party who is invited to consult the GTC online to do so. A “click” and a reading online, on a screen, are no more demanding in a hyperconnected society than reading a paper document in an annex to a contract.

Finally, the Court allows itself an obiter dictum by referring to points b) and c) of Article 23, §1, in order to clearly situate the case in “international trade”. For the record, these provisions validate jurisdiction clauses concluded in a form consistent with international commercial practice, reinforcing the private autonomy of the economic operators. I am not convinced however that this adds anything to the interpretation and especially that it corresponds (i.e. using a hypertext link to refer to the GTC including a court agreement) to the very concept of usage of international trade. But this is an open question.

General Assessment

This solution must be approved for at least three reasons.

Firstly, outside the digital paradigm, economic operators are supposed to be aware of the GTC of the contract and in particular of the jurisdictional clause they contain. Indeed, the GTC are an important criterion for the financial balance of the commercial agreement.

Secondly, in line with its previous case law, the Court of justice follows a different analysis of contractual consent in B2B contracts than in B2C relationships. The formal requirements laid down in EU secondary law on B2C distance contracts cannot be transposed, by analogy, to the B2B context (see point 37, C-322/14, Jaouad El Majdoub).

Thirdly, the Court’s reading of Article 23(2) is part of a more global European political and legislative context: that of the emerging ‘digital by default principle’. In the e-Government strategy, it means that delivering services digitally is the preferred option through a single contact point (see here). According to the European Commission, the same should progressively apply in the judicial cooperation in civil matters. In its 2020 Communication on Digitalisation of justice in the European Union, the Commission proposed to make “the digital channel the default option in EU cross-border judicial cooperation” (point 3.2 and see here for an update on the topic). Reading this ambition for EU Civil Justice together with the “Brussels/Lugano Regime” (as interpreted in the present case), it shows that the EU legal system is working on providing a coherent framework for international economic exchanges in the digital ecosystem.

Le Conseil d’État précise les conditions permettant de déroger à l’interdiction de destruction d’espèces protégées pour la réalisation d’un projet d’intérêt public majeur.

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The Institute for Private International and Comparative Law of the University of Cologne (Professor Mansel) is looking to appoint one Research Assistant (Wissenschaftliche/r Mitarbeiter/in) on fixed-term contracts for 2 years, from March 2023, with contract extension possible, based in Cologne. This is a part-time position (19.92 hrs./week), possibility of PhD is given. In case of a post-doc application, it can be extended to a full-time position (39.83 hrs./week) within short time, provided that the requirements are met. A German state law examination (1. Prüfung) with clearly above-average grades and a command of written and spoken German are required. In addition, knowledge of Dutch, Italian, Spanish or French is an advantage, but not a requirement. Remuneration is based on pay group 13 TV- L.

The University of Cologne promotes equal opportunities and diversity in its employment relationships. Women are expressly invited to apply and will be given preferential treatment in accordance with the LGG NRW. Applications from severely disabled persons are very welcome. They will be given preferential consideration if suitable for the position.

Interested candidates are invited to send their detailed application including the usual documents in a single .pdf file by January 11, 2023 to ipr-institut@uni-koeln.de, for the attention of Professor Mansel.

A request for a preliminary ruling from the Areios Pagos (Greece) is pending before the Court of Justice in the case of Charles Taylor Adjusting and FD against Starlight Shipping Company and Overseas Marine Enterprises INC (C-590/21, Charles Taylor Adjusting). The summary of the request in English and other languages can be downloaded here. The questions focus on the interpretation of the Brussels I Regulation:

Is the expression ‘manifestly contrary to public policy’ in the EU and, by extension, to domestic public policy, which constitutes a ground for non-recognition and non-enforcement pursuant to point 1 of Article 34 and Article 45(1) of Regulation No 44/2001, to be understood as meaning that it extends beyond explicit anti-suit injunctions prohibiting the commencement and continuation of proceedings before a court of another Member State to judgments or orders delivered by courts of Member States where: (i) they impede or prevent the claimant in obtaining judicial protection by the court of another Member State or from continuing proceedings already commenced before it; and (ii) is that form of interference in the jurisdiction of a court of another Member State to adjudicate a dispute of which it has already been seised, and which it has admitted, compatible with public policy in the EU? In particular, is it contrary to public policy in the EU within the meaning of point 1 of Article 34 and Article 45(1) of Regulation No 44/2001, to recognise and/or declare enforceable a judgment or order of a court of a Member State awarding provisional damages to claimants seeking recognition and a declaration of enforceability in respect of the costs and expenses incurred by them in bringing an action or continuing proceedings before the court of another Member State, where the reasons given are that: (a) it follows from an examination of that action that the case is covered by a settlement duly established and ratified by the court of the Member State delivering the judgment (or order); and (b) the court of the other Member State seised in a fresh action by the party against which the judgment or order was delivered lacks jurisdiction by virtue of a clause conferring exclusive jurisdiction?

If the first question is answered in the negative, is point 1 of Article 34 of Regulation No 44/2001, as interpreted by the Court of Justice of the European Union, to be understood as constituting a ground for non-recognition and non-enforcement in Greece of the judgment and orders delivered by a court of another Member State (the United Kingdom), as described under (I) above, where they are directly and manifestly contrary to national public policy in accordance with fundamental social and legal perceptions which prevail in Greece and the fundamental provisions of Greek law that lie at the very heart of the right to judicial protection (Articles 8 and 20 of the Greek Constitution, Article 33 of the Greek Civil Code and the principle of protection of that right that underpins the entire system of Greek procedural law, as laid down in Articles 176, 173(1) to (3), 185, 205 and 191 of the Greek Code of Civil Procedure cited in paragraph 6 of the statement of reasons) and Article 6(1) of the [European Convention on Human Rights], such that, in that case, it is permissible to disapply the principle of EU law on the free movement of judgments, and is the non-recognition resulting therefrom compatible with the views that assimilate and promote the European perspective?

The request having been lodged in September 2021, the file seems ripe to be addressed by the Court. More information will follow when available.

Jeanne Huang University of Sydney Law School

Both Russia and Ukraine are member states of the 1965 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention (HSC)). After Russia occupied the Autonomous Republic of Crimea and its capital city, Sevastopol, and exercised control over certain areas of Ukraine (the “Occupied Areas”), Ukraine filed a declaration (“Ukraine’s Declaration on Crimea”) under the HSC. It states that, as a result of Russia’s occupation, implementing the HSC in the Occupied Areas is limited, that the procedure for service and relevant communication is determined by the Central Authority of Ukraine, and that documents or requests issued by the Russian and related illegal Authorities in the Occupied Areas are null and void and have no legal effect.

In 2016, Russia declared (“Russia’s Declaration on Crimea”) that Ukraine’s Declaration on Crimea is based on “a bad faith and incorrect presentation and interpretation of facts and law” under the HSC and other Hague Conventions. Thus far, Estonia, Finland, Germany, Latvia, Lithuania, and Poland have each made declarations supporting Ukraine’s and announcing that they will not engage in any direct interaction with the Authorities in the Occupied Areas and will not accept any documents or requests emanating from or through such Authorities. The conflicting Declaration made by Ukraine and Russia, respectively, brings challenges for serving a defendant residing in the Occupied Areas—the scope of which has expanded during the recent military conflict—in civil and commercial cases when the defendant neither appoints an agent in the forum nor waives service. On one hand, neither Ukraine nor Russia permit service by postal channels (mail) under HSC Article 10(a). On the other, service via the Ukrainian Central Authority in the Occupied Areas is unguaranteed as indicated in Ukraine’s Declaration on Crimea; however, Ukraine and its supporting states do not recognize service conducted by the Russian Central Authority. A practical question for litigators is how to conduct service of process in the Occupied Areas?

This post suggests that the legal effects of service conducted by the Russian Central Authority under the HSC on a defendant in the Occupied Areas should be recognized for two reasons. Firstly, the Ukraine and its supporting states’ declarations under the HSC are interpretative declarations rather than reservations (the same is true of the Russian declaration). Secondly, the Namibia Exception can provide certainty and predictability for litigators in international civil and commercial cases and should be applied to service conducted by the Russian Central Authority in the Occupied Areas.

Legal Dilemmas for the HSC
The competing declarations on Crimea do not identify the HSC provision pursuant to which they are made, nor do they specify the provisions whose legal effect they purport to modify. Arguably, no provision of HSC provides a legal basis for either declaration on Crimea.

1. Provisions for the Designation and Function of a Central Authority

Ukraine’s Declaration on Crimea provides that documents or requests made by Russia or a related authority in the Occupied Areas are void. HSC Articles 2–17 do not provide a basis for the declaration, because the purported invalidity of service conducted by the Russian Central Authority does not directly relate to the designation or function of the Ukrainian Central Authority. It is also likely beyond the scope of HSC Article 18, which allows each contracting state to designate other Authorities and determine their competence. A counterargument may be that Russia’s invasion violated Ukraine’s sovereignty, so Ukraine can invoke Article 18 and claim that Russia and relevant local authorities are illegal and that the documents or requests issued by them are void. Ukraine’s territorial sovereignty over the Occupied Areas is, however, an incidental question to the validity of the documents or requests issued by Russia and the relevant local authorities. Importantly, the HSC does not contain a compromissory clause. This distinguishes it from treaties such as the United Nations Convention on the Law of the Sea under which, in some circumstances, tribunals can determine incidental questions “when those issues must be determined in order for the . . . tribunal to be able to rule on the relevant claims.”

For the same reasons, Russia’s Declaration on Crimea lacks a clear basis in HSC Articles 2-18.

2. Provision for Dependent Territories

Article 29 allows a state to extend the application of the HSC to territories “for the international relations of which [the declaring state] is responsible.” The meaning of this language is not clear. Article 56(1) of the European Convention on Human Rights (ECHR) includes a similar phase. Article 56(1) is the so-called “colonial clause,” which prevents the automatic application of the ECHR to non-metropolitan territories and empowers a metropolitan state to declare its application. In 1961, the European Commission extended Article 56(1) to “dependent territories irrespective of domestic legal status.” The concept of dependent territories under the ECHR has been defined by almost exclusive deference to a member state’s unilateral Article 56(1) declaration. In Quark Fishing Ltd. v. United Kingdom, for example, Protocol No. 1 was held inapplicable to a fishing vessel under a Falklands flag because the UK declaration only extended the ECHR, not Protocol No. 1, to islands that belonged to Falkland Islands (Islas Malvinas) Dependencies.

However, the ECHR’s deferential approach should not apply to HSC Article 29. Argentina is not a member state of the ECHR and the court in Quark Fishing relied on the fact that there was no dispute that the islands were a “territory” within the meaning Article 56(1). As an HSC member state, however, Argentina declared its opposition to the UK’s extension of the HSC to the Falkland Islands, relying on a UN resolution noting a dispute between the two states about sovereignty over the islands. Due to the unclear relationship between Article 29 and international law on the occupation or succession of territories, Article 29 may not serve as a legal basis for the Declarations on Crimea.

Legal Effect of the Declarations
The Vienna Convention on the Law of Treaties (VCLT) and the Guide to Practice on Reservations to Treaties adopted by the International Law Commission divide declarations formulated by a state under a treaty into reservations and interpretative declarations. A reservation is intended to exclude or modify the legal effect of certain provisions of a treaty, while an interpretative declaration is purported to specify or clarify their meaning or scope. Putting aside whether they are affirmatively authorized by the HSC, the Declarations on Crimea should be presumptively permissible. This is because reservations are generally permissible unless an exception under the VCLT is triggered, so interpretative declarations should also be presumptively permissible.

The Declarations on Crimea are best understood as interpretative declarations for the following reasons.

First, the question of territorial application is not part of the functioning ratione materiae of the HSC. The subject matter of the Convention is service. HSC Article 29 allows member states to determine the territorial application of the Convention, suggesting that the Convention does not require its application to be extended to the entire territory of a member state.

Second, a declaration purporting to exclude or extend the application of a treaty as a whole to all or part of its territories without modifying its legal effect is not a reservation. The contents of the respective Declaration on Crimea made by Russia and Ukraine show that both countries seek to clarify the application of the HSC as a whole to the Occupied Areas.

Third, none of the declarants explicitly indicates that the Declaration on Crimea is a condition for them to ratify or continue as a member of the HSC. Consequently, they are not conditional interpretative declarations that should be treated as reservations.

Finally, a reservation would modify the legal effect of the HSC, applying between the reserving state and another state if the latter has not objected within twelve months after it was notified, which is not the case here. It is impossible for other state to tacitly accept the conflicting declarations.

Therefore, because the Declaration on Crimea made by Ukraine, its supporting states, and Russia, respectively, are interpretative declarations rather than reservations, they do not exclude or modify the legal effect of the HSC. Neither do they alter the treaty relations between the declarants and the majority of HSC member states that have not expressed a view on these Declarations.

The Namibia Exception
The VCLT does not provide a timeline for a state to accept another state’s interpretative declaration. However, private parties in international litigation require certainty about service of process in Ukraine under the HSC. The courts of HSC member states should not recognize only the Ukrainian Central Authority for service in Occupied Areas just because their governments are politically aligned with Ukraine. Instead, for the reasons set out below, the Namibia Exception protecting the rights and interests of people in a territory controlled by non-recognized government should be extended to service conducted by the Russian Central Authority and local authorities in the Occupied Areas under the HSC.

The “Namibia Exception” comes from the Legal Consequences for States of the Continued Presence of South Africa in Namibia Notwithstanding Security Council Resolution case. That decision provides that the non-recognition of a state’s administration of a territory due to its violation of international law should not result in depriving the people of that territory of any advantages derived from international cooperation. The courts of HSC member states should recognize not only the Ukrainian Central Authority for service in the Occupied Areas, but also service conducted by the Russian Central Authority and local authorities in the Occupied Areas under the HSC.

First, service under the HSC concerns private rights. Service of process aims to ensure that a defendant is duly informed of a foreign litigation against it. When the defendant resides in the Occupied Areas, service conducted by the Russian Central Authority under the HSC should belong to the realm of the de facto government. Recognizing the conduct of de facto government does not necessarily lead to de jure recognition (e.g., Luther v. Sagor [1921] 3 KB 532 (Can.)).

Second, service through the Russian Central Authority is the only realistic way to serve a defendant in the Occupied Areas who has no agents in a foreign forum, given that Ukraine made a reservation on service by postal channels under HSC Article 10. Ukraine might be advised to withdraw this reservation during war time.

Third, non-recognition of service conducted by the Russian Central Authority in the Occupied Areas would lead to unjust consequences for Ukrainian people in the Occupied Areas who have to comply with the Russian legal order.

A concern is that applying the Namibia Exception to service of process conducted by the Russian Central Authority may harm Ukrainians in the Occupied Area when they are likely not in a position to defend themselves in a court in the United States, China or other foreign countries. The concern is not a good reason to reject the Namibia Exception because it can be addressed by the foreign courts using legal aids, remote hearing, forum non convenience, temporary stay, or other case management methods.

Recommendations for HSC Member States
The HSC Special Commission is a group of experts designated by member states to discuss issues with the practical operation of the Convention. It has issued recommendations for HSC member states regarding the meaning of “civil or commercial matters”, service by electronic means, and other matters. It should publish a recommendation to assist member states in adopting a consistent response to the conflicting Declarations on Crimea.

The legal nature of Ukraine’s and Russia’s Declarations on Crimea are different. Ukraine’s Declaration on Crimea is an amplifying interpretative declaration, which intends to address new events not covered by a treaty. Russia’s invasion created such an event: the Ukrainian Central Authority can no longer effectuate service in the Occupied Areas. In contrast, Russia’s Declaration on Crimea is an interpretation contra legem. This is because Russia’s occupation of Ukraine violated international law on the prohibition of the unlawful use of force, which is contrary to the principle of good faith. Although states are free to decide whether to acknowledge Russia’s interpretation contra legem, the International Court of Justice has rendered a decision condemning Russia’s invasion of Ukraine. Although it does not bind all states, it shows that the international community considers the invasion as a violation of international law. The Special Commission should take this opportunity to assist member states in adopting consistent approaches to apply the HSC to serve defendants in Ukrainian territory occupied by Russia.

See Full text here

As announced on this blog, the 9th Journal of Private International Law conference will be hosted by the Yong Pung School of Law, Singapore Management University from 3 to 5 August 2023.

A reminder that the deadline to submit abstracts is Friday 16 December 2022 at jpil2023@smu.edu.sg. The Call for Papers is available here.

More information on the conference and the related registration can be found here.

Par un arrêt du 30 novembre 2022, la Cour de cassation se prononce sur la détermination de la résidence habituelle, au sens du règlement Bruxelles II bis, d’un couple de ressortissants belges souhaitant divorcer et ayant des biens et des intérêts à la fois en Belgique et en France.

Sur la boutique Dalloz Code du divorce et de la liquidation 2023, annoté et commenté Voir la boutique Dalloz

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