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By its preliminary question referred to the Court of Justice in the case Volvo, C-30/20, the referring court was indenting to clarify whether Article 7(2) of the Brussels I bis Regulation has to be interpreted as establishing only the international jurisdiction of the courts of the Member State for the ‘place where the harmful event occurred or may occur’ or establishing also national territorial jurisdiction. This question arose in the context of the proceedings on a follow-on action, based on the Commission’s decision, by which the applicant claims damages for loss and damage caused by certain anticompetitive practices.

In his Opinion delivered this Thursday, Advocate General Richard de la Tour not only answers the preliminary question in the affirmative (points 35 to 48) but also addresses other issues pertaining to the jurisdictional side of the private enforcement of EU competition law.

On the one hand, Advocate General explains how one should precisely determine the place where the damage occurred in order to identify the court having jurisdiction under Article 7(2) of the Brussels I bis Regulation (points 49 to 111). As he acknowledges at point 70 of the Opinion, the finding that the damage occurred within the market affected by the anticompetitive practices, is not, on its own, sufficient to identify the court having territorial jurisdiction to hear an action pertaining to these practices. For this very reason, the Opinion provides a detailed guidance on how to identify a competent court.

On the other hand, AG Richard de la Tour examines whether and to what extent the Member States are authorized to concentrate jurisdiction for the actions on anticompetitive practices (points 112 to 130).

The Opinion can be consulted here (so far the English version is not available).

The latest edition of the Spanish journal La Ley (No 90 March 2021) contains an interesting article about the contract concluded by the European Commission with AstraZeneca for the provision of COVID-19 vaccines. It is authored by Sixto Sánchez Lorenzo, the renowned expert on private international law at the University of Granada. The author deals with the liability of AstraZeneca for the failure to deliver enough jabs, leaving aside possible tortious and product liability suits for the vaccines alleged side effects.

The author argues that the agreement is a binding contract subject to the condition that a vaccine will be developed by the pharmaceutical company. In his view, the Commission acted both as a party and as an agent for (“on behalf of”) the Member States, which are therefore also parties to the contract. This will give them standing in court should they intend to sue the company. According to Sixto Sánchez Lorenzo, the Member States could bring claims individually and need not necessarily act together.

As for jurisdiction, he notes the contract’s jurisdiction clause in favour of the Belgian courts. The author considers this clause to be binding under Art 25 Brussels Ibis Regulation. He puts emphasis on the civil and commercial nature of the agreement, which clearly brings it within the Regulation’s scope. The Commission Implementing Regulation, which allows Member States under certain conditions to restrict the export of vaccines, does not change this characterisation.

In case the choice-of-court agreement would be inexistent or invalid, the courts of the state of incorporation and headquarters (in this case: Sweden) would have general jurisdiction for any claim against the company (Art 4, 63 Brussels Ibis Regulation). The author also points to the jurisdiction of the courts at the place of contractual performance (Art 7(1)(b) Brussels Ibis Regulation). In the event of a collective action brought by the Commission and the Member States, he discusses a possible parallel to the Color Drack case, where the CJEU ruled that in case of multiple places of performance jurisdiction lies with the courts at the “principal place of delivery”. These questions are however merely speculative given the contract’s jurisdiction clause in favour of the Belgian courts.

Regarding the applicable law, the contract stipulates a choice of Belgian law, which the author considers binding according to Art 3 Rome I Regulation. By virtue of this choice-of-law clause, the Vienna Sales Convention (CISG) would govern the entire contractual relation (Art 1(1)(b) CISG), including with those States that have not signed the CISG (Malta and Ireland).

With respect to the substantive law, the crucial question of course is whether AstraZeneca is liable under the contract with the Commission and the Member States, or whether it can invoke the priority of other contracts it has entered into with other parties, such as the UK. Sixto Sánchez Lorenzo refers to Art 28 CISG and the Belgian lex fori for a solution. As he underlines, Belgian law allows a claim for specific performance, contrary to the general position of the Common law.

But what if the company cannot deliver because it cannot produce enough quantities of the vaccine? Sixto Sánchez Lorenzo outrightly discards the exception to liability under Art 79 CISG because the shortage of vaccine would be the result of the dealings of AstraZeneca and not of a force majeure. Rather, the likely solution would be a proportional or “pro rata” condemnation.

This is an insightful article written by one of the masters of the profession. It is possible that the question of liability for non-performance will remain theoretical given the recent banning of AstraZeneca in various Member States. But nevertheless, other suits may arise, for which the article provides useful information.

 

 

 

 

 

This Thursday, the Court of Justice delivered its judgment in the case Oeltrans Befrachtungsgesellschaft, C-73/20, on the interpretation of the Insolvency Regulation and the law applicable to detrimental acts. This judgment, pertaining to Articles 4(2)(m) and 13 of the Regulation No 1346/2000, completes therefore the case law constituted most notably by the judgment in the case Vinyls Italia, C-54/16.

Despite the fact that the recent judgment concerns the Regulation No 1346/200, which has been repealed by Regulation 2015/848, it is and will remain of relevance: the latter Regulation contains provisions that are equivalent to the aforementioned Articles 4(2)(m) and 13.

 

Legal and factual context

Oeltrans Befrachtungsgesellschaft and Tankfracht GmbH are both established in Germany and belong to the same group of companies.

An inland waterway contract exists between Tankfracht and E.A. Frerichs, established in the Netherlands. Under this contract, Tankfracht owes a payment of a fixed amount to E.A. Frerichs.

By the end of 2010, Oeltrans Befrachtungsgesellschaft pays to E.A. Frerichs, ‘on the order of Tankfracht’, the sum owed by this company under the inland waterway contract.

Following the opening in Germany of the insolvency proceedings in relation to Oeltrans Befrachtungsgesellschaft, its liquidator brings an application for repayment on that amount with interests, on the ground that the transaction should be set aside by virtue of insolvency.

After a lapse of a certain amount of time, the regional court finds against E.A. Frerichs under German law, in accordance with the form of order sought by the liquidator. Next, deciding on appeal brought by E.A. Frerichs, the second instance court, also on the basis of German law, varies the decision of the regional court and dismisses the application on the basis of the plea that it was timebarred. Finally, by its appeal on a point of law (Revision), Oeltrans Befrachtungsgesellschaft seeks to have the decision of the regional court reinstated by the referring court.

 

Questions/issues raised by the request for a preliminary ruling

At the outset, the referring court explains that, under German insolvency law, the payment made by Oeltrans Befrachtungsgesellschaft is voidable.

However, under Article 13 of the Regulation No 1346/2000, its Article 4(2)(m) does not apply where the person who benefited from an act detrimental to all the creditors provides proof that the said act is subject to the law of a Member State other than that of the State of the opening of proceedings and that law does not allow any means of challenging that act in the relevant case.

Invoking that provision, E.A. Frerichs contends that the contested payment is to be assessed under Netherlands law. Under this law, the payment is said not to be voidable.

Faced with this contention, the referring court indicates that, under the Rome I Regulation, the inland waterway contract is governed by Netherlands law. For the referring court, the issue to be determined is thus whether the law applicable to a contract under this Regulation also governs, in the context of Article 13 of the Regulation No 1346/2000, the payment made by a third party in performance of a contracting party’s contractual payment obligation.

The referring court considers that it is facing a question on the scope of the lex contractus in the context of insolvency proceedings: under Article 12(1)(b) of the Rome I, the law applicable to the contract also governs the performance of the obligations laid down in that contract. The question remains whether this is still the case in the context of insolvency proceedings. If the creditor’s claim is satisfied not by the other party to the contract but, as in the present case, by a third party, the question arises all the more as to whether the lex contractus applies.

Additionally, the referring recognizes the existence of a doctrinal debate as to whether the law applicable to the performance of a contractual obligation is determined by reference to the contract or separately to the act of performance.

Ultimately, the referring court addresses a following question to the Court of Justice: are Article 13 the Regulation No 1346/2000 and Article 12(1)(b) of the Rome I Regulation to be interpreted as meaning that the law applicable to a contract under the latter Regulation also governs the payment made by a third party in performance of a contracting party’s contractual payment obligation?

 

The judgment and the reasoning of the Court

In this case, decided without an Opinion from the Advocate General, the Court answered in affirmative the question of the referring court.

To reach that answer, the Court referenced its case law according to which Articles 4 and 13 of the Regulation No 1346/2000 constitute a lex specialis in relation to the Rome I Regulation and must be interpreted in the light of the objectives pursued by the former Regulation (paragraphs 25, 26 and 30).

Having set such starting point for its reasoning, the Court proceeded to interpret the Regulation No 1346/2000 in order to address the question whether a payment made in performance of a contractual obligation is governed by the law applicable to that contract. At paragraphs 31 to 34, it based its finding according to which a payment made (also by a third party) in performance of a contracting party’s contractual obligations is governed by the lex contractus by the considerations on the (legitimate) expectations of the party to the contract having received the payment.

At paragraphs 35 to 38, the Court explained that this finding is corroborated by Article 12(1)(b) of the Rome I Regulation.

Ultimately, the Court ruled that the answer to the preliminary question is that Article 13 of the Regulation No 1346/2000 and Article 12(1)(b) of the Rome I Regulation must be interpreted to the effect that the law applicable to the contract on the basis of the latter Regulation governs also the payment made by a third party in performance of a contracting party’s contractual obligations where, in the context of insolvency proceedings, this payment is contested as an act detrimental to all the creditors.

A cursory first reading of the judgment might lead some to conclude that the Court drew a finding of a general nature from Article 12(1)(b) of the Rome I Regulation, according to which the performance of a contractual obligation is generally (and in EU private international law in particular) governed by the law applicable to the contract that constitutes the base of this obligation. Thus, the reference to Article 12(1)(b) of the Rome I Regulation in the Court’s answer would simply mirror the preliminary question, as formulated by the referring court (both Article 13 of the Regulation No 1346/2000 and Article 12(1)(b) of the Rome I Regulation being invoked in this question). Others may see this reference as implying that the conflict of laws rules of the latter Regulation are still of relevance in the context of insolvency proceedings. It is yet to be seen which alternative will be supported by a more refined lecture of the judgment.

The judgment can be consulted here.

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Transport
Le simple déroutement d’un vol vers un aéroport proche n’ouvre pas droit à une indemnisation forfaitaire

23 teams from al over the globe are participating in the Pax Moot that is currently ongoing (from 21 to 23 April). The case concerns private international law aspects of the race to a Covid vaccine. It involves the application of various EU and international instruments.

Spectators are welcome at the semifinals and finals on Friday 23 April. You can join by first logging into your own Zoom account and then clicking the link on the schedule to the relevant session. After the final round Ms Pia Lindholm of the European Commission will address the students. Then the winners of the written rounds, the oral rounds and the best pleader will be announced.