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Etat

FIGC et Consorzio Ge.Se.Av.
Liberté d'établissement
Une fédération sportive nationale, telle que la Fédération italienne de football, peut être soumise aux règles de passation des marchés publics dès lors qu’elle exerce des activités d’intérêt général ayant un caractère autre qu’industriel ou commercial

Fussl Modestraße Mayr
Liberté d'établissement
L’interdiction de diffuser, dans le cadre des programmes de télévision allemands émis au niveau national, de la publicité au seul niveau régional pourrait être contraire au droit de l’Union

Commission / Hongrie (Valeurs limites - PM10)
Environnement et consommateurs
La Hongrie a enfreint les règles du droit de l’Union relatives à la qualité de l’air ambiant

We have previously reported on this case here. This is a collective redress action to seek damages resulting from the Volkswagen emission scandal (also known as Dieselgate).  Proceedings were commenced in the Netherlands against Volkswagen (Group) and involve other related parties such as Audi, Seat, Skoda, Porsche, Robert Bosch, importer(s) and dealers in the Netherlands and abroad. This action is made pursuant to the Dutch Collective Redress of Mass Damages Act (Wet afwikkeling massaschade in collectieve actie, WAMCA).

On 18 January 2021, a case management -pre-trial- hearing (regiezitting in Dutch) was held before the Amsterdam District Court. The purpose of this meeting was for all the parties involved to exchange views on “the desired sequence of subjects to be addressed in the initial phases of the WAMCA procedure”. This includes issues such as the jurisdiction of the Dutch court over the claims, the law that would be applicable to the case, the appointment of an Exclusive Representative Party, etc. For more information, click here.

As indicated before, one of the institutes / organisations seeking to be the exclusive representative in this collective redress action is Diesel Emissions Justice Foundation (DEJF).  The DEJF has stated that: “The [Amsterdam District Court] has indicated that a decision on the order of handling of [these] points can be expected on March 3.”

See also our previous posts: Mass Litigation in Times of Corona and Developments in the Netherlands, Jurisdiction over financial damages – the A-G Opinion in the Volkswagen Case before the CJEU (CJEU) and The VW NOx Emissions Group Litigation, [2019] EWHC 783(QB), and (some aspects of) CoL (UK).

Interestingly, the DEJF has reported about a recent case where a Spanish court ordered damages against Volkswagen. I transcribe the summary of the case provided on the DEFJ website: “25 January 2021 – A Madrid court has found Volkswagen guilty of the use of manipulated software, or “cheating software”. In proceedings brought by a Spanish consumer association against Volkswagen on behalf of 5,400 affiliated consumers, the judge awarded damages totalling € 16.3million for unfair commercial practices, amounting to an average of € 3,000 per consumer. The judge used a pragmatic method to determine this amount; half to compensate for the depreciation of the affected cars and the inconvenience of use of having to have the cars repaired, and the other half for “moral damage” as breach of confidence due to the advertised “green” image of these cars, the environmental damages and the impact on society.” The judgment is available here (in Spanish).

And let us not forget the significant judgment of the Court of Justice of the European Union (CJEU) of 17 December 2020 (Second Chamber): Criminal proceedings against X, Request for a preliminary ruling from the Juge d’instruction du tribunal de grande instance de Paris Case C-693/18 (in French, which was the language of the proceedings). See also here (in other languages but not yet in English). Although this case arises in the context of criminal proceedings, it provides support to the claims above and in establishing liability.

More information is available here.

The Court of First Instance of Thessaloniki ruled on 24 June 2020 that an application by a psychological (non biological) mother to recognize and declare enforceable a UK custody order concerning a child born by the applicant’s partner contravenes Greek public policy (Ruling No. 6175, unreported).

Facts

The applicant [A] is a woman of Greek and American nationality. Her partner was a woman of American nationality [P]. They registered their partnership in the UK on 20 August 2013. Nearly a month later, P. gave birth to a child. The partners married in January 2015.

A. filed an application for child custody and parenting arrangements order in the UK. The court granted the application, and ordered that the child stays with the psychological mother on the basis of previous decisions concerning parental responsibility rights issued in the same country. In addition, the court ordered that the child reside with A., and it issued an order to remove the child permanently to Greece. Finally, the same court arranged the contact rights of the biological mother [P]. The information given in the Greek judgment is that the UK order was issued by the High Court – Family Division in Chelmsford, and that it was final. A. filed an application for the recognition and enforcement of the UK order before the Court of First Instance in Thessaloniki.

The Ruling

The Court of Thessaloniki began by acknowledging its jurisdiction and venue for the case at hand. It then entered into an analysis of the public policy defence, culminating in the conclusion, that the forum judge is obliged to defend national public policy, while at the same time demonstrating respect towards the state’s international obligations. To that end, a proportionality test of the domestic public policy with Article 8 ECHR standards is imperative. Following the above introduction, the court rushed to declare that same-sex marriage, and any subsequent relations emanating thereof are not allowed in Greece.

Public Policy

The first point raised by the court was a contradiction of the English order with established perceptions of Greek family law. By invoking Article 33 Greek Civil Code, i.e. the public policy defence in domestic Private International Law, the court held that Greek family law grants parental responsibility rights to the mother, if the child was born out of wedlock. In addition, the court stated that in the given situation, it was the biological mother who should be granted custody rights.

The second point raised by the court referred to the fundamental choice made by the domestic legislator and the Supreme Court, i.e. the prohibition of same-sex marriage. The public policy defence is the guarantor of this premise: Hence, an ontological change of a legal relationship within the country of destination, caused by the recognition of a foreign decision, affects state sovereignty. For a domestic standpoint, it is not acceptable to grant maternity rights to two women. It is also unbearable for the court that the birth of the child is a product of a same-sex marital relationship, which does not produce any legal effects in Greece.

In addition, the court held that the best interests of the child may not guarantee the preservation of a parental relationship with the biological mother, the latter being a situation not protected under Greek law. The bond worthy of protection emanates from constitutional provisions (equality / personality rights), the Fundamental Rights Charter, EU and ECHR standards. Consequently, the court ruled that the recognition and enforcement of the UK order would distort the legal pace of the country, because it is contrary to core domestic values and perceptions.

Assessment

The judgment follows a hard line under the strong influence of the harsh position taken by the Greek Supreme Court against same-sex couples. The factual situation is obviously not shaking the court’s foundation; even the best interests of the child did not motivate the court to soften its position. Hence, the child will have two mothers in the UK, and no mother in Greece.

What is also striking is the omission of the court to approach the matter from its European point of view. Out of the abundant material of legal scholarship, European and domestic case law concerning the matter, I will focus on the Coman case, which decided as follows:

In a situation in which a Union citizen has made use of his freedom of movement by moving to and taking up genuine residence, in accordance with the conditions laid down in Article 7(1) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, in a Member State other than that of which he is a national, and, whilst there, has created or strengthened a family life with a third-country national of the same sex to whom he is joined by a marriage lawfully concluded in the host Member State, Article 21(1) TFEU must be interpreted as precluding the competent authorities of the Member State of which the Union citizen is a national from refusing to grant that third-country national a right of residence in the territory of that Member State on the ground that the law of that Member State does not recognise marriage between persons of the same sex.

The case, of course, was not concerned with recognition of foreign judgments, but the rationale seems to make it relevant in this respect as well.

There are two more instances available for the applicant to alter the landscape. A first sign of progress has been already reported. It will be interesting to follow the developments and to report in due time.

Mateusz Grochowski (European University Institute) and Katarzyna Południak-Gierz (Jagiellonian University) have posted EU Private International Law in Internet-Related Disputes: The Polish Case Law Approach on SSRN.

The abstract reads:

The paper examines the way Polish courts apply EU private international law (EU PIL) rules in the disputes concerning online context. The analysis seeks, in particular, to better understand the patterns recurring in the judicial reasoning and to map the typical circumstances of internet-related disputes pled before Polish courts. The paper attempts to cluster the existing case law and to trace the use made of EU PIL and CJEU decisions by Polish judges. It also aims to identify how the courts perceive specificity of internet-related disputes from the perspective of conflict of laws and how they understand specific goals of EU PIL (especially consumer protection). The text delves also into the cases where – despite encountering transnational elements – courts did not address conflict of laws issues. It attempts to indicate the most common instances of such omission and hence, to elucidate further the possible barriers to full application of EU PIL.

Chambre de l'instruction de la Cour d'appel de Rennes, 22 janvier 2021

Chambre de l'instruction de la Cour d'appel de Paris du 14 janvier 2021

Tribunal judiciaire de Draguignan, 26 janvier 2021

Pourvoi c/ chambre de l'instruction de la Cour d'appel de Versailles du 4 décembre 2020

Pourvoi c/ Cour d'appel d'Aix-en-Provence du 30 novembre 2020

Pourvoi c/ chambre de l'instruction de la Cour d'appel de Lyon, 26 novembre 2020

This post has been in my draft folder a long time for First Advocate General Szpunar opined Mid-October in C-469/19 All in One Star Ltd. Still worth a flag, with the CJEU presumably soon issuing judgment. The case concerns the refusal of German authorities to enter a branch of a UK-incorporated company, in the German commercial register.  C-106/16 Polbud is the most recent major case on the issue.

The Opinion follows the (slow) progress of positive harmonisation of EU company law, with Directive 2017/1132 core to the questions. The AG opined that that Directive does not preclude a national provision under which the managing director of the company has to provide an assurance that there is no barrier to his personal appointment under national law in the form of a prohibition, ordered by a court or public authority, on practising his profession or trade. However he suggests the Treaty provisions on free movement oppose the authorities of destination requesting the director provide assurances that a notary, a representative of a comparable legal advisory profession or a consular officer has confirmed such absence of obstacle to him.

The AG was asked by the CJEU not to discuss the other question: whether a Member State may insist upon indication of the amount of share capital or a comparable capital value, for a branch of a limited liability company with registered office in another Member State to be entered in the commercial register. Presumably because the answer is clearly ‘No’ in light of earlier case-law.

Clearly following Brexit (the TCA as far as I am aware has no straight free movement principles for corporations) the issue will be different for UK corporations however it will continue to present itself in light of the intra-EU competition in corporate law.

Geert.

EU Private international law, 3rd ed 2021, Chapter 6.

ICMY: Opinion Szpunar AG in All in One Star Ltd: Inbound free movement of corporations, further extension of Centros and Inspire Art case-law https://t.co/19bHt9w5U5 (no EN text available).
Re refusal to enter a branch of a company registered in the UK in DE commercial register.

— Geert Van Calster (@GAVClaw) October 15, 2020

Consob
Liberté d'établissement
Une personne physique soumise à une enquête administrative pour délit d’initié a le droit de garder le silence lorsque ses réponses pourraient faire ressortir sa responsabilité pour une infraction passible de sanctions administratives présentant un caractère pénal ou sa responsabilité pénale

The Universidade Portucalense, based in Porto, and its Research Center, in collaboration with the Universities of Vigo, Malaga, Salamanca and Granada as well as with the Federal University of Rio de Janeiro, organise an International Congress on Civil Procedural Law titled The Challenges of Sustainable Global and Digital Development, to be held on 20 and 21 May 2021, in virtual format.

The concept is as follows:

The pandemic caused by COVID-19 exposed the world to the positive and negative aspects of globalization; it also made evident the need for States to prepare for the challenges of global development; and, well, it showed us that the application and use of new technologies are fundamental. All these phenomena, of a transversal nature, are the motto of this Congress and motivate the study of procedural matters in the global and digital era, with a view to a result process.

In this context and also in the light of the United Nations 2030 Agenda Sustainable Development Goals, in particular those for promoting the rule of law at national and international level and ensuring equal access to justice for all, it is current and it is of practical and academic interest in critical analysis and the presentation of innovative proposals for procedural solutions that are part of this orientation. Above all, pay attention to the importance of consumer relations in sustainable development and in disputes with consumers.

This Congress aims to bring together researchers and professionals who, through their scientific studies and practical experiences, can contribute to the analysis of the impact of global and digital sustainable development in matters of procedural law, especially in civil proceedings, without excluding the application of the process to various branches of law.

Those interested in presenting a paper at the conference are invited to submit their abstracts on any of the following ‘thematic lines’: Transnational and European Civil Procedure. Global development process and challenges; Civil Procedure in the Digital Age – Challenges of technological development; Sustainable Consumption and Process.

The deadline for submissions is 28 February 2021.

See here for more information.

By Magdalena Lagiewska, University of Gdansk

This post reviews the symposium issue of the American Journal of International Law Unbound on “Global Labs of International Commercial Dispute Resolution”. This issue includes an introduction and six essays explaining the current changes and developments in the global landscape for settling international commercial disputes. The multifarious perspectives have been discussed to show tendencies and challenges ahead.

Overall, the AJIL Unbound special issue is, without doubt, one of the most impactful contributions on changes in international commercial dispute resolution landscape. It is a successful attempt and a fascinating analysis of recent developments in this field. This is certainly a must-read for anyone interested in reshaping the landscape of dispute resolution worldwide. Beyond the theoretical context, it includes many practical aspects and provides new insight into the prospects of its development and potential challenges for the future. I highly recommend it not only to the researchers on international commercial dispute resolution, but also to legal practitioners—lawyers, arbitrators, and mediators among others. Below, I have outlined each of the symposium’s contributions.

As mentioned in the introduction by Anthea Roberts [1], instead of the previous bipolarity and centralization around New York and London, international commercial dispute resolution is facing a new process of decentralization and rebalancing. Today, we are all witnessing the adaptation to a new reality and the COVID-19 pandemic is speeding up the entire process. “New legal hubs” and “one-stop shops” for dispute resolution are springing up like mushrooms in Eurasia and beyond. Therefore, due to the competitiveness between the “old” and “new” dispute resolution institutions, these new bodies are more innovative and thus are expected to attract more and more interested parties.

The main aim of this symposium was to outline the new challenges of the international commercial dispute resolution mechanism around the world. New dispute resolution centres not only influence on the current landscape, but also they offer “fresh insight” in this field.

The first essay by Pamela K. Bookman and Matthew S. Erie, entitled “Experimenting with International Commercial Dispute Resolution” [2], pays attention to the new phenomena on emerging “new legal hubs” (NLHs), international commercial courts and arbitral courts worldwide. This new tendency has recently appeared in China, Singapore, Dubai, Kazakhstan and Hong Kong. All of these initiatives affect the international commercial dispute settlement landscape and increase the competitiveness among these centres. Those centres bravely take advantage of “lawtech” and challenge themselves. As a result, they are experimenting with legal reforms and some institutional design to attract more interested parties and to become well-known platforms providing high-quality dispute resolution services. The Authors set forth the challenges and threats that may exist in this respect. They also provide an insightful analysis of the impact of these new initiatives on the international commercial dispute resolution, international commercial law, and the geopolitics of disputes.

Further, Giesela Rühl’s contribution focuses on “The Resolution of International Commercial Disputes – What Role (if any) for Continental Europe?” [3]. The author pays attention to the Netherlands, which took the initiative to establish a new court exclusively devoted to international cases, and Germany and France, which took more skeptical efforts to establish international commercial chambers both before and after the Brexit referendum in 2016. Rühl believes that the far-reaching reform should be implemented at the European level. Therefore, she advocates the establishment of a common European Commercial Court. This seems to be an interesting approach that would certainly strengthen Europe’s position in the global dispute resolution landscape.

Julien Chaisse and Xu Qian outline the importance and key features of the recently established China International Commercial Court (CICC) [4]. Given its foundation, this court should operate as a “one-stop shop” combining litigation, arbitration, and mediation. It is dedicated to solving Belt and Road Initiative (BRI) related disputes. The Authors point out that this court is much more akin to a national court than a genuine international court. Therefore, they challenge its importance with respect to BRI-related disputes and attempt to determine whether the Court will play a significant role in the international dispute settlement landscape. These considerations are especially important given the primary sources in Chinese which bring the reader closer to Chinese legislation.

The following essay, by Wang Guiguo and Rajesh Sharma, addresses the International Commercial Dispute Prevention and Settlement Organization (ICDPASO) established in 2019 [5]. It is another global legal hub that offers “one-stop” services in China. At first glance, the ICDPASO seems to be an interesting body with an Asian flavour, however, the Authors shine a spotlight on some practical challenges ahead and its limited jurisdiction. This body differs significantly from the aforementioned CICC. Whether the ICDPASO will be a game-changer in the BRI-related disputes and will influence importantly on international dispute resolution landscape seems to be a melody of the future. It is ultimately too soon to answer those questions now, but it is certainly worthwhile to watch this institution.

Further, S.I. Strong brings attention to the actual changes in international commercial courts in the US and Australia [6]. Although Continental Europe, the Middle East, and Asia try to reshape the current international dispute resolution landscape, common law jurisdictions, such as the United States and Australia, are less inclined to changes in establishing international courts specialized in cross-border disputes. Compared to the US, Strong believes that Australia has made more advanced efforts to establish such courts. Nevertheless, aside from the traditional international commercial courts, the newly emerging international commercial mediation services are gaining popularity, most notably due to the entry into force of the UN Convention on International Settlement Agreements Resulting from Mediation (the Singapore Convention).

Last but not least, Victoria Sahani contribution’s outlines third-party funding regulation [7]. While third-party funding remains a controversial issue in litigation or arbitration, whether domestic or international, it is becoming much more popular globally. There are already over sixty countries experimenting with regulatory questions about third-party funding. In this case, we also deal with some “laboratories” that try out different methods of regulation.

The entire symposium is available here.