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Within the framework of the PAX 2.0 Project, Université Paris Dauphine will host the PAX Judicial Training, which will take place on 4-5 March 2024.

While the PAX Moot Court is oriented to students, the PAX Judicial Training is designed for judges and aspiring judges seeking to enhance their understanding of EU private international law.

Taking into account this year’s PAX Moot competition, whose case has been previously dealt with in this blog, judicial training will focus on international jurisdiction in cross-border civil disputes, provisional measures in EU private international law, legal capacity and parental authority and other EU private international law-related issues.

Registrations are open until 15 February 2024 at ramachandra.oviode-siou@dauphine.eu.

Speakers include Arnaud Raynouard, Marta Pertegás Sender, Vesna Lazić, Hélène van Lith, Boriana Musseva, Tsvetelina Dimitrova, Neža Pogorelčnik Vogrinc, Beatriz Añoveros Terradas, Jona Israël, Laura van Bochove, Thalia Kruger, Erlis Themeli and Duncan Fairgrieve.

The detailed programme is available here.

La décision de gel d’un bien meuble corporel se trouvant dans un autre État membre obéit au même régime que la saisie à visée confiscatoire d’un tel bien. L’appel n’est donc pas permis, seules pouvant être formées une requête en nullité et/ou une demande de restitution. Pour statuer sur la demande de restitution, la chambre de l’instruction doit démontrer à travers les mentions de son arrêt que le requérant a eu accès aux pièces utiles, notamment à la décision de gel, selon les formes officielles prévues à l’article 197 du code de procédure pénale, et pas seulement au certificat transmis aux autorités étrangères.

Sur la boutique Dalloz Droit et pratique des saisies et confiscations pénales 2024/2025 Voir la boutique Dalloz

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The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published. The following abstracts have been kindly provided by the editor of the journal.

G. Cuniberti, Time limitations affecting foreign judgments

The issue of time limitations affecting foreign judgments is addressed in remarkably different ways in comparative private international law. The primary reason is that enforcing States define the subject matter of limitations differently: they can focus on the foreign judgment itself, but also on the obligation vindicated before the foreign court, the exequatur judgment, or an autonomous obligation arising out of the foreign judgment in the forum. Additional layers of complexity are that rules of limitation can be characterised either as procedural or substantive in nature, and that foreign judgments losing enforceability should not be enforced. The question should therefore be asked whether this diversity is an impediment to the free circulation of judgments within the European Union, which should be remedied by some form of harmonisation.

J. Hoffmann, Jurisdiction of German courts for collective action against third country defendants

Collective action under the new German VDuG (Law on the Enforcement of Consumer Rights) allows the collective enforcement of similar claims of consumers. Such actions are not only relevant regarding domestic German defendants or those located within the EU but may also be of practical importance regarding third country defendants. This article discusses under which circumstances German courts have jurisdiction for such collective actions. It argues that the exclusive jurisdiction clause in § 3 VDuG does not preclude the application of the general jurisdiction rules of German law. Specific rules apply regarding claims stemming from violations of data protection law.

P.G. Picht and C. Kopp, Choice of law under the Rome I and Rome II regulations: current case law issues

The article deals with current choice of law issues in the practical application of the Rome I and Rome II Regulations. Despite the fact that the relevant provisions have been in existence for some time now, they still raise important and intricate questions. On the basis of recent German case law, the article examines three of these issues in more detail, namely (1) choice of law through litigation behaviour, (2) the exceptional admissibility of a choice of law in bilateral competition law infringement matters, and (3) the validity of choice of law clauses in general terms and conditions.

A. Schulz, Gender self-determination in Private International Law – Towards a new article 7a EGBGB

In August 2023 the German government proposed a draft bill for a “Gender Self-Determination Act” which will allow transgender, intersex and non-binary persons to change their legal gender by means of a simple self-declaration. While some of the details of the future Self-Determination Act are still being debated, less attention has been paid to the fact that the draft bill also contains a proposal for a conflict of laws rule which will determine the law applicable to a person’s gender in cross-border settings. According to Article 7a (1) Draft Introductory Act to the German Civil Code, a person’s gender will generally be governed by the law of the state of which the person is a national. However, according to Article 7a (2) Draft Introductory Act to the German Civil Code, a person residing in Germany may, for the purpose of changing their gender, choose German law. This article aims to take a first look at this draft conflict of laws rule and to illustrate some of the pending questions regarding the new rule.

J. Oster, Jurisdiction clauses in general terms and conditions in digital commerce

In its ruling of 24.11.2022 (Tilman SA ./. Unilever Supply Chain Company AG), the CJEU had to decide on the validity of a jurisdiction clause that was included in general terms and conditions to which the contract referred by the inclusion of a hypertext link. The Court held this to be in accordance with Article 23 para. 1 and 2 of the Lugano II Convention, even though the party against whom that clause operates had not been formally asked to accept those general terms and conditions by ticking a box on that website. The Court thus expanded its case-law on the inclusion of jurisdiction clauses in electronic contracts. The decision has a significant impact on the interpretation of Article 25 para. 1 and 2 Brussels Ia Regulation, which has the same meaning as Article 23 para. 1 and 2 of the Lugano II Convention.

M. Lieberknecht, Enforcement proceedings concerning frozen assets under the EU’s economic sanctions regime

In its Bank Sepah decision, the ECJ offers guidance on an issue of increasing importance: the legal status of frozen assets owned or controlled by persons on the EU’s sanction lists. Specifically, the ECJ weighs in on the fate of frozen assets in the context of enforcement proceedings. The Court adopts an extensive reading of the concept of freezing, which does not only rule out the recovery of assets for the benefit of the creditor but also bars mere protective measures such as seizure, which do not affect ownership rights in the asset. Considering the purpose of freezing orders, this extensive reading is not convincing. The Court’s second dictum, on the other hand, is all the more cogent. It states that the legal effects of a freezing order on enforcement proceedings are not affected by whether or not the creditor’s claim is related to the subject matter of the sanctions in question.

W. Hau, Having two bites at the same cherry? – On the recognizability of a preclusion based on the duty to concentrate claims in one lawsuit

Following an English lawsuit, the winning employee brings further proceedings in France with additional claims against his former employer. This strategy would not be permissible under either English or French procedural law. Nevertheless, the CJEU holds that the preclusive effect of the English decision is not to be recognized in France under the Brussels I Regulation (still applicable in the case). The opposing view expressed here is that only public policy permits refusal of recognition of such a preclusive effect of a foreign judgment.

P. Huber and L. Bernard, Objections to the claim itself and parallel (enforcement) proceedings in the European Union

What impact does it have, if an objection to the claim itself is raised in different member states of the European Union in order to stop one or several enforcement proceedings? This question arose in an Austrian proceeding. The OGH solely dealt with the question of jurisdiction for the Austrian enforcement proceeding. The case, however, raises further issues regarding the coordination of parallel proceedings which are discussed in this article.

E. Jayme and C.F. Nordmeier, Family and the law of torts – Private International Law and Legal Comparison – Conference of the German-Lusitanian Jurists’ Association, September 15th and 16th 2023, Heidelberg

Commission / Intel Corporation
Concurrence
L’avocate générale Medina propose à la Cour de confirmer que la Commission a appliqué de manière erronée le test AEC en ce qui concerne HP et Lenovo

Caixabank e.a. (Contrôle de transparence dans l’action collective)
Rapprochement des législations
Selon l’avocate générale Medina, la transparence des clauses « plancher » dans les contrats de prêt hypothécaire peut faire l’objet d’un contrôle dans le cadre d’une action collective

RTL Nederland et RTL Nieuws
Catastrophe du vol MH17 : la confidentialité de certaines informations concernant la sécurité aérienne est justifiée et proportionnée

Comune di Copertino
Libre circulation des personnes
Un travailleur qui n’a pas pu prendre tous ses jours de congé annuel payé avant de démissionner a droit à une indemnité financière

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

 

Introduction

In the final weeks leading up to Christmas in 2023, the District Court of Amsterdam referred a set of questions to the CJEU (DC Amsterdam, 20 December 2023, ECLI:NL:RBAMS:2023:8330; in Dutch). These questions, if comprehensively addressed, have the potential to bring clarity to longstanding debates regarding jurisdictional conflicts in collective actions. Despite being rooted in competition law with its unique intricacies, the issues surrounding the determination of online damage locations hold the promise of illuminating pertinent questions. Moreover, the forthcoming judgment is expected to provide insights into the centralization of jurisdiction in collective actions within a specific Member State, an aspect currently unclear. Recalling our previous discussion on the Dutch class action under the WAMCA in this blog, it is crucial to emphasize that, under the WAMCA, only one representative action can be allowed to proceed for the same event. In instances where multiple representative foundations seek to bring proceedings for the same event without reaching a settlement up to a certain point during the proceedings, the court will appoint an exclusive representative. This procedural detail adds an additional layer of complexity to the dynamics of collective actions under the WAMCA.

Following a brief overview of the case against Apple, we will delve into the rationale behind the court’s decision to refer the questions.

The claim against Apple

The claim revolves around Apple’s alleged anticompetitive behavior in the market for the distribution of apps and in-app products on iOS devices, such as iPhones, iPads, and iPod Touch. The foundations argue that Apple holds a monopoly in this market, as users are dependent on the App Store for downloading and using apps.

According to the foundations, Apple’s anticompetitive actions include controlling which apps are included in the App Store and imposing conditions for their inclusion. Furthermore, Apple is accused of having a monopoly on payment processing services for apps and digital in-app products, with the App Store payment system being the sole method for transactions.

The foundations argue that Apple charges an excessive commission of 30% for paid apps and digital in-app products, creating an unfair advantage and disrupting competition. They assert that Apple’s dominant position in the market and its behavior constitute an abuse of power. Users are said to be harmed by being forced to use the App Store and pay high commissions, leading to the claim that Apple has acted unlawfully. The legal bases of the claim are therefore abuse of economic dominance in the market (Article 102 TFEU) and prohibited vertical price fixing (Article 101 TFEU).

The jurisdictional conundrum

Apple Ireland functions as the subsidiary tasked with representing app suppliers within the EU. The international nature of the dispute stems from the users purportedly affected being located in the Netherlands, while the case is lodged against the subsidiary established in Ireland. The District Court of Amsterdam has opted to scrutinize the jurisdiction of Dutch courts under Article 7(2) Brussels I-bis Regulation. This provision grants jurisdiction to the courts of the place where the harmful event occurred or may occur, encompassing both prongs of the Bier paradigm. However, Apple contends that, within the Netherlands, the court would only possess jurisdiction under Article 7(2) Brussels I-bis Regulation with regard to users residing specifically in Amsterdam.

In the court’s view, the ascertainment of the Handlungsort should pertain only to allegations under Article 102 TFEU. In relation to Article 101 TFEU, the Netherlands was not considered the Handlungsort. This is due to the necessity of identifying a specific incident causing harm to ascertain the Handlungsort, and the absence of concrete facts renders it challenging to pinpoint such an event.

The court’s jurisdictional analysis commences with a reference to Case C?27/17 flyLAL-Lithuanian Airlines (ECLI:EU:C:2018:533), in which the CJEU established that the location of the harmful event in cases involving the abuse of a dominant position under Article 102 TFEU is closely linked to the actual implementation of such abuse. In the present case, the court observes that Apple’s actions, conducted through the Dutch storefront of the App Store tailored for the Dutch market, involve facilitating app and in-app product purchases. Acting as the exclusive distributor for third-party apps, Apple Ireland exerts control over the offered content.

Applying the criteria from flyLAL, the court concludes that the Handlungsort is situated in the Netherlands. However, the court agreed that the specific court within the Netherlands responsible for adjudicating the matter remains unspecified.

The court initiated its analysis of the Erfolgsort based on the established premise in CJEU case law which posits that there is no distinction between individual and collective actions when determining the location of the damage. The court clarified that the concept of the place where the damage occurs does not encompass any location where the consequences of the event may be felt; rather, only the damage directly resulting from the committed harm should be considered. Moreover, the court emphasized that when determining the Erfolgsort, there is no distinction based on whether the legal basis for the accusation of anticompetitive practices is grounded in Article 101 or Article 102 TFEU.

The court reiterated that the App Store with Dutch storefront is a targeted online sales platform for the Dutch market. Functioning as an exclusive distributor, Apple Ireland handles third-party apps and in-app products, contributing to an alleged influence of anticompetitive behavior in the Dutch market. It’s acknowledged that the majority of users making purchases reside in the Netherlands, paying through Dutch bank accounts, thus placing the Erfolgsort within the Netherlands for this user group. Nevertheless, the court reiterated that the particular court within the Netherlands tasked with adjudicating this case remains unspecified.

The questions referred

Despite the court having its perspective on establishing jurisdiction under Article 7(2) Brussels I-bis Regulation, it opted to seek clarification from the CJEU for the following reasons.

First, the court expresses reservations regarding the complete applicability of the flyLAL precedent to the current case. It emphasizes that the flyLAL case involved a precise location where the damage could be pinpointed. In contrast, the present case involves anticompetitive practices unfolding through an online platform accessible simultaneously in every location within a particular Member State and globally. The court is uncertain whether the nature of this online distribution makes a significant difference in this context, especially when considering whether the case involves a collective action.

Second, as mentioned above, the WAMCA stipulates that only a single representative action can be allowed to proceed for a given event. In situations where multiple representative foundations aim to commence legal proceedings for the same event without reaching a settlement by a specific stage in the proceedings, the court will designate an exclusive representative. In addition to that, Article 220 Dutch Code of Civil Procedure offers the opportunity to consolidate cases awaiting resolution before judges in various districts and involving identical subject matter and parties, allowing for a unified hearing of these cases.

Nevertheless, the court has reservations about the compatibility of relocating from the Erfolgsort within a Member State under the consolidation of proceedings, as Article 7(2) Brussels I-bis Regulation impacts the establishment of jurisdiction within that Member State. In questioning whether such relocation would run contrary to EU law, the court highlights the Brussels I-bis Regulation’s overarching objective of preventing parallel proceedings. This triggers a skepticism towards the interpretation that each District Court within the Netherlands would have competence to adjudicate a collective action pertaining to users situated in the specific Erfolgsort within their jurisdiction.

However, the court finds it necessary to refer these questions to the CJEU, considering that, in its assessment, the CJEU’s rationale in Case C?30/20 Volvo (ECLI:EU:C:2021:604) is not easily transposable to the current case. In Volvo, the CJEU permitted the concentration of proceedings in antitrust matters within a specialized court. This is not applicable here, as the consolidation of proceedings under the described framework arises from the efficiency in conducting the proceedings, not from specialization.

These are, in a nutshell, the reasons why the District Court of Amsterdam decided to refer the following questions to the CJEU:

 Question 1

1. What should be considered as the place of the damaging action in a case like this, where the alleged abuse of a dominant position within the meaning of Article 102 TFEU has been implemented in a Member State through sales via an online platform managed by Apple that is aimed at the entire Member State, with Apple Ireland acting as the exclusive distributor and as the developer’s commission agent and deducting commission on the purchase price, within the meaning of Article 7, point 2, Brussels I bis? Is it important that the online platform is in principle accessible worldwide?
2. Does it matter that in this case it concerns claims that have been instituted on the basis of Article 3:305a of the Dutch Civil Code by a legal entity whose purpose is to represent the collective interests of multiple users who have their seat in different jurisdictions (in the Netherlands: districts) within a Member State under its own right?
3. If on the basis of question 1a (and/or 1b) not only one but several internally competent judges in the relevant Member State are designated, does Article 7, point 2, Brussels I bis then oppose the application of national (procedural) law that allows referral to one court within that Member State?

 Question 2

1. Can in a case like this, where the alleged damage has occurred as a result of purchases of apps and digital in-app products via an online platform managed by Apple (the App Store) where Apple Ireland acts as the exclusive distributor and commission agent of the developers and deducts commission on the purchase price (and where both alleged abuse of a dominant position within the meaning of Article 102 TFEU has taken place and an alleged infringement of the cartel prohibition within the meaning of Article 101 TFEU), and where the place where these purchases have taken place cannot be determined, only the seat of the user serve as a reference point for the place where the damage has occurred within the meaning of Article 7, point 2, Brussels I bis? Or are there other points of connection in this situation to designate a competent judge?
2. Does it matter that in this case it concerns claims that have been instituted on the basis of Article 3:305a of the Dutch Civil Code by a legal entity whose purpose is to represent the collective interests of multiple users who have their seat in different jurisdictions (in the Netherlands: districts) within a Member State under its own right?
3. If on the basis of question 2a (and/or 2b) an internally competent judge in the relevant Member State is designated who is only competent for the claims on behalf of a part of the users in that Member State, while for the claims on behalf of another part of the users other judges in the same Member State are competent, does Article 7, point 2, Brussels I bis then oppose the application of national (procedural) law that allows referral to one court within that Member State?

 [Translation from Dutch by the author, with support of ChatGPT]

Discussion

The CJEU possesses case law that could be construed in a manner conducive to allowing the case to proceed in the Netherlands. Notably, Case C?251/20 Gtflix Tv (ECLI:EU:C:2021:1036) appears to be most closely aligned with this possibility, wherein the eDate rule was applied to a case involving French competition law, albeit the CJEU did not explicitly address this aspect (though AG Hogan did). Viewed from this angle, the Netherlands could be deemed the centre of interests for the affected users, making it a potential Erfolgsort.

Regarding the distinction between individual and collective proceedings, the CJEU, in Cases C-352/13 CDC (ECLI:EU:C:2015:335) and C-709/19 VEB v. BP (ECLI:EU:C:2021:377), declined to differentiate for the purpose of determining the locus of damage. We find no compelling reason for the CJEU to deviate from this precedent in the current case.

The truly intricate question centers on the feasibility of consolidating proceedings in a single court. In Case C-381/14 Sales Sinués (ECLI:EU:C:2016:252), the CJEU established that national law must not hinder consumers from pursuing individual claims under the Unfair Contract Terms Directive (UCTD – 93/13) by employing rules on the suspension of proceedings during the pendency of parallel collective actions. However, it is unclear whether this rationale can be extrapolated to parallel concurrent collective actions.

Conclusion

This referral arrives at a good time, coinciding with the recent coming into force of the Representative Actions Directive (RAD – 2020/1828) last summer. Seeking clarification on the feasibility of initiating collective actions within the jurisdictions of affected users for damages incurred in the online sphere holds significant added value. Notably, the inclusion of both the Digital Services Act and the Digital Markets Act within the purview of the RAD amplifies the pertinence of these questions.

Moreover, this case may offer insights into potential avenues for collective actions grounded in the GDPR. Such actions, permitted to proceed under Article 7(2) Brussels I-bis Regulation, as exemplified in our earlier analysis of the TikTok case in Amsterdam, share a parallel rationale. The convergence of these legal frameworks could yield valuable precedents and solutions in navigating the complex landscape of online damages and collective redress.

Albert Henke (University of Milan), Marco Torsello (University of Verona) and Elena Zucconi Galli Fonseca (University of Bologna) edited a book titled International Commercial Courts. A Paradigm for the Future of Adjudication? with Edizioni Scientifiche Italiane.

International commercial courts are specialized judicial bodies designed to provide a forum for adjudicating complex cross-border business disputes efficiently and fairly for operators acting across different jurisdictions.

Based on the enriching experience of a webinar jointly organized by the Universities of Bologna, Milan, and Verona, this volume collects papers of renowned specialists in the field of cross-border dispute resolution, divided into three parts. The first part of the volume addresses the phenomenon of international commercial courts in the EU, with particular attention to the German, French, Dutch, and Italian experiences. The second part includes papers that shed light on the experience of extra-European countries, such as those of the Gulf area, Singapore, China, and the OHADA States. The third part of the volume compares the structure and functioning of international commercial courts with international commercial arbitration.

Not unlike arbitral tribunals, international commercial courts aim to provide a more predictable and consistent legal environment for international business transactions. This volume aims to provide a comparative overview of this emerging phenomenon. Only time will tell whether international commercial courts will establish themselves as relevant players in international dispute resolution.

The contributions featured in the book were authored by E.A. Ontanu, M. Lamandini, D. Ramos Muñoz, M. Stürner, A. Biard, X. Kramer, G. Antonopoulou, M.A. Lupoi, M. Torsello, G. Dimitropoulos, G.F. Bell, X. Qian, S. Mancuso, J. Monaci Naldini, and A. Tanzi.

More information available here.

Dans un arrêt rendu à l’unanimité le 12 décembre 2023, la Cour européenne des droits de l’homme considère qu’une sanction de travaux d’intérêts généraux pour des faits de violences sexuelles répétées expose la victime à un traitement inhumain et dégradant par ailleurs attentatoire au respect de sa vie privée et familiale. 

Sur la boutique Dalloz Droit de l’exécution des peines 2023/2024 Voir la boutique Dalloz

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Marco Buzzoni, Doctoral Researcher at the Luxembourg Centre for European Law (LCEL) and PhD candidate at the Sorbonne Law School, offers a critical analysis of some recent rulings by the Court of Justice of the European Union in matters of data protection.

In a series of three preliminary rulings issued on 14th December and 21st December 2023, the Court of Justice of the European Union (‘CJEU’) was called upon again to rule on the interpretation of Article 82 of the General Data Protection Regulation (‘GDPR’). While these rulings provide some welcome clarifications regarding the civil liability of data controllers, their slightly inconsistent reasoning will most likely raise difficulties in future cases, especially those involving cross-border processing of personal data.

On the one hand, the judgments handed down in Cases C-456/22, Gemeinde Ummendorf, and C-340/21, Natsionalna agentsia za prihodite, explicitly held that three elements are sufficient to establish liability under Article 82 GDPR. In so doing, the Court built upon its previous case law by confirming that the right to compensation only requires proof of an infringement of the Regulation, some material or non-material damage, and a causal link between the two. On the other hand, however, the Court seemingly swayed away from this analysis in Case C-667/21, Krankenversicherung Nordrhein, by holding that a data controller can avoid liability if they prove that the damage occurred through no fault of their own.

In reaching this conclusion, the Court reasoned that imposing a strict liability regime upon data controllers would be incompatible with the goal of fostering legal certainty laid out in Recital 7 GDPR. By introducing a subjective element that finds no mention in the Regulation, the Court’s latest decision is nonetheless likely to raise difficulties in cross-border cases by introducing some degree of unpredictability with respect to the law applicable to data controllers’ duty of care. In time, this approach might lead to a departure from the autonomous and uniform reading of Article 82 that seemed to have prevailed in earlier cases.

The Court’s Rejection of Strict Liability for Data Controllers

According to the conceptual framework laid out by the CJEU in its own case law, compensation under Article 82 GDPR is subject to three cumulative conditions. These include an infringement of the Regulation, the presence of some material or non-material damage, and a causal link between the two (see Case C-300/21, UI v Österreichische Post AG, para 32). In the cases decided in December 2023, the Court was asked to delve deeper into each of these elements and offer some additional guidance on how data protection litigation should play out before national courts.

In case C-456/22, the CJEU was presented with a claim for compensation for non-material damage filed by an individual against a local government body. The plaintiff alleged that their data protection rights had been breached when the defendant intentionally published documents on the internet that displayed their unredacted full name and address without their consent. Noting that this information was only accessible on the local government’s website for a short time, the referring court asked the CJEU to clarify whether, in addition to the data subject’s mere short-term loss of control over their personal data, the concept of ‘non-material damage’ referred to in Article 82(1) of the GDPR required a significant disadvantage and an objectively comprehensible impairment of personal interests in order to qualify for compensation. Rather unsurprisingly, the Court (proceeding to judgment without an Opinion) answered this question in the negative and held that, while Article 82(1) GDPR requires proof of actual damage, it also precludes any national legislation or practice that would subject it to a “de minimis threshold” for compensation purposes.

In doing so, the Court followed the road map outlined in UI v Österreichische Post AG, which had already held that the concept of damage should receive an autonomous and uniform definition under the GDPR (Case C-456/22, para 15, quoting Case C-300/21, paras 30 and 44) and should not be limited to harm reaching a certain degree of seriousness. Arguably, however, the Court also went beyond its previous decision by stating that the presence of an infringement, material or non-material damage, and a link between the two were not only “cumulative” or “necessary” but also “sufficient” conditions for the application of Article 82(1) (Case C-456/22, para 14). Remarkably, the Court did not mention any other condition that could have excluded or limited the data subject’s right to compensation. Taken literally, this decision could thus have been understood as an implicit endorsement of a strict liability regime under the GDPR.

This impression was further strengthened by the judgment handed down in Case C-340/21, where the Court was asked to weigh in on the extent of a data controller’s liability in case of unauthorised access to and disclosure of personal data due to a “hacking attack”. In particular, one of the questions referred to the CJEU touched upon whether the data controller could be exempted from civil liability in the event of a personal data breach by a third party. Contrary to the Opinion delivered by AG Pitruzzella, who argued that the data controller might be exonerated by providing evidence that the damage occurred without negligence on their part (see Opinion, paras 62-66), the CJEU ignored once more the question of the data controller’s fault and rather ruled that the latter should establish “that there [was] no causal link between its possible breach of the data protection obligation and the damage suffered by the natural person” (Case C-340/21, para 72).

A few days later, however, the CJEU explicitly endorsed AG Pitruzzella’s reading of Article 82 GDPR in Case C-667/21. In a subtle yet significant shift from its previous reasoning, the Court there held that the liability of the data controller is subject to the existence of fault on their part, which is presumed unless the data controller can prove that they are in no way responsible for the event that caused the damage (Case C-667/21, holding). To reach this conclusion, The Court relied on certain linguistic discrepancies in Article 82 of the GDPR and held, contrary to the Opinion by AG Campos Sánchez-Bordona, that a contextual and teleological interpretation of the Regulation supported a liability regime based on presumed fault rather than a strict liability rule (Case C-667/21, paras 95-100). Formulated in very general terms, the holding in Case C-667/21 thus suggests that a controller could be released from liability not only if they prove that their conduct played no part in the causal chain leading to the damage but also — alternatively — that the breach of the data subject’s rights did not result from an intentional or negligent act on their part.

Lingering Issues Surrounding the Right to Compensation in Cross-Border Settings

According to the CJEU, only a liability regime based on a rebuttable presumption of fault is capable of guaranteeing a sufficient degree of legal certainty and a proper balance between the parties’ interests. Ironically, however, the Court’s approach in Case C-340/21 raises some significant methodological and procedural questions which might lead to unpredictable results and end up upsetting the parties’ expectations about their respective rights and obligations, especially in cases involving cross-border processing of personal data.

From a methodological perspective, the CJEU’s latest ruling does not fit squarely within the uniform reading of the GDPR that the Court had previously adopted with respect to the interpretation of Article 82 GDPR. In the earlier cases, in fact, the CJEU had consistently held that the civil liability requirements laid out in the Regulation, such as the notion of damage or the presence of an actual infringement of data protection laws, should be appreciated autonomously and without any reference to national law (on the latter, see in particular Case C-340/21, para 23). On the other hand, however, the Court has also made clear that if the GDPR remains silent on a specific issue, Member States should remain free to set their own rules, so long that they do not conflict with the principles of equivalence and effectiveness of EU law (on this point, see eg Case C-340/21, para 59).

Against this backdrop, the Court’s conclusion that the civil liability regime set up by the legislature implicitly includes the presence of some fault on the defendant’s part begs the question of whether this requirement should also receive a uniform interpretation throughout the European Union. In favour of this interpretation, one could argue that this condition should be subject to the same methodological approach applicable to the other substantive requirements laid out in Article 82 GDPR. Against this position, it could nonetheless be pointed out that in the absence of explicit indications in this Article, the defendant’s fault should be assessed by reference to national law unless another specific provision of the Regulation (such as Articles 24 or 32 of the GDPR) specifies the degree of care required of the data controller or processor. In the context of cross-border cases, the latter interpretation would thus allow each Member State to determine, based on their own conflict-of-laws rules, the law applicable to the defendant’s duty of care in cases of violations of data protection laws. If generalised, this approach might in time lead to considerable fragmentation across the Member States.

In addition to these methodological difficulties, the Court’s decision in Case C-340/21 also raises some doubts from a procedural point of view. In holding that the data controllers’ liability is subject to the existence of fault on their part, the CJEU calls into question the possible interaction between national court proceedings aimed at establishing civil liability under Article 82 GDPR and administrative decisions adopted by data protection authorities. With respect to the latter, the CJEU had in fact ruled in Case C-683/21, Nacionalinis visuomenés sveikatos centras, that Article 83 GDPR must be interpreted so that an administrative fine may be imposed pursuant to that provision “only where it is established that the controller has intentionally or negligently committed an infringement referred to in paragraphs 4 to 6 of that article” (Case C-683/21, holding). In other words, national supervisory authorities are also called upon to assess the existence of fault on the part of the data controller or processor before issuing fines for the violation of data protection laws.

At first glance, the CJEU’s decision in Case C-340/21 fosters some convergence between the private and public remedies set out in the GDPR. In reality, however, this interpretation might potentially create more hurdles than it solves. Indeed, future litigants will likely wonder what deference, if any, should be given to a supervisory authority’s determinations under Article 83 GDPR within the context of parallel court proceedings unfolding under Article 82. In a similar context, the Court has already held that the administrative remedies provided for in Article 77(1) and Article 78(1) GDPR may be exercised independently and concurrently with the right to an effective judicial remedy enshrined in Article 79 GDPR, provided that national procedural rules are able to ensure the effective, consistent and homogeneous application of the rights guaranteed by the Regulation (see Case C-132/21, Nemzeti Adatvédelmi és Információszabadság Hatóság v BE). Should the same principles apply to actions brought under Article 82 GDPR? If so, should the same rule also extend to conflicts between national court proceedings and decisions issued by foreign supervisory authorities (and vice-versa), even though each of them might have a different understanding of the degree of protection afforded by the Regulation?

Despite the CJEU’s laudable attempt to strike a balance between the interests of personal data controllers and those of the individuals whose data is processed, it is not certain that the Court has fully assessed all the consequences of its decision. Ultimately, in fact, the choice to reject a strict liability rule could lead not only to unequal protection of individual rights within the EU but also to major uncertainties for economic operators regarding the extent of their own liability under the GDPR.

I am much annoyed one has to refer to cases like these yet again as X v Y (see also here, also on Article 22 Rome II). I understand the need for anonymisation in this particular case, ECLI:NL:PHR:2023:1114, which concerns the liability of a Dutch mother, guardian of a (young) adult son with mild autism and ADHD and a number of mental health challenges, who stabbed and otherwise attacked a Russian (immaterial to the attack) boy living in Germany but holidaying with his family in Crete. Yet some kind of acronym might be helpful.

At any rate, the interest of this tragic case for the blog lies in Advocate General Vlas discussing Rome II particularly the evidence and procedure carve-out as qualified by Article 22 Rome II’s inclusion of the burden of proof in the lex causae:

Article 22 Rome II

Burden of proof

1.   The law governing a non-contractual obligation under this Regulation shall apply to the extent that, in matters of non-contractual obligations, it contains rules which raise presumptions of law or determine the burden of proof.

2.   Acts intended to have legal effect may be proved by any mode of proof recognised by the law of the forum or by any of the laws referred to in Article 21 under which that act is formally valid, provided that such mode of proof can be administered by the forum.

Parties agree Greek law is the lex causae. Dutch law applies procedurally as the lex fori, with the A22 Rome II caveat. (3.25) the AG cites the relevant burden of proof issue in the Greek Civil Code: Article 923:

 “Whoever has the supervision of a person under age or of a person placed under judicial assistance is liable for the damage that such persons unlawfully cause to a third party, unless he proves that he has exercised properly the duty of supervision or that the damage could not have been avoided. (…)”. (…)’

(3.26) the AG summarises the implications of A22 as follows (translated by me, and omitting his references (ia to prof Peters, Magnus/Mankowski/Queirolo, Kramer, and Bart-Jan van het Kaar) 

In brief, it follows from A22(1) Rome II that the lex causae applies to the burden of proof. A22 concerns substantive issues of the law of evidence, such as the distribution of the burden of proof. It does not concern issues relating to the formal elements of the burden of proof, such as admissibility and the appreciation of evidence. These issues are subject (see A10:3 Dutch Civil Code) to Dutch law as the lex fori.

A relevant consideration, one will have to wait and see whether the Supreme Court itself will engage with the A22 issue, which is only a small part of the appeal.

Geert.

EU Private International Law, 4th ed 2024, 4.79 ff.

X v Y (parental responsibility). Vlas AG (of the Supreme Court of The Netherlands) ia on the evidence and procedure carve-out and Article 22 Rome II.https://t.co/OGt1m04LPx

— Geert Van Calster (@GAVClaw) January 17, 2024

In a previous post, I presented the traditional approach of the French Supreme Court in civil and criminal matters (Cour de cassation) on the applicable law to the time limit to enforce foreign judgments, which was confirmed by a judgment of 11 January 2023. But the central issue addressed by this judgment was whether the action to seek a declaration of enforceability of a foreign judgment (exequatur) was itself governed by any time limit.

Background

The case was concerned with an acte de défaut de biens issued by a Swiss authority. This peculiar act of Swiss law is a public document issued by a Swiss enforcement authority (office des poursuites) when a debtor was unable to meet its debts. The acte is an enforceable title, which as such can be enforced in other European States under the Lugano Convention.

In this case, the creditor had sought a declaration of enforceability in France of an acte de défaut de biens 15 years after it was issued in Lausanne. The debtor argued that the action to seek the declaration was time barred. The lower court had ruled that it was not, on the ground that the time limit to enforce an acte de défaut de biens was 20 years under Swiss law. In contrast, the debtor argued that the French time limit of 10 years should have been applied.

Judgment

The case raised the novel issue of the time limit to seek a declaration of enforceability, which is distinct from the issue of the time limit to actually enforce a foreign judgment in France, on the basis of such declaration.

Time Limit to seek exequatur

The Court de cassation ruled that there is no applicable time limit to seek exequatur in France. The rule is formulated in general terms, by referring to exequatur. The applicability of the Lugano Convention, and the fact that the Swiss judgment was to be declared enforceable, and not granted exequatur, is not mentionned, and seems irrelevant for the court.

French scholars debated which law should apply to the determination to the time limit to seek exequatur of a foreign judgment. But none of them had considered the possibility that there might be none. Certainly, by ruling that there is no time limit to seek exequatur of a foreign judgment in France, the court implicitly ruled that the issue is governed by French law.

In a context where the time limit applicable to the enforcement of the foreign judgment is provided by the law of the State of origin (as it is under Swiss law), the practical consequence of having no time limit to seek exequatur is limited. The creditor has no particular incentive to wait to seek exequatur, since it does not impact the time limit to enforce the judgment, which is running.

But the French rule is different. The applicable time limit to enforce a foreign judgment in France is the French 10 year time limit, and it starts running from the French exequatur decision. This means that any creditor with a foreign judgment the time limit of which is about to expire may seek exequatur in France and get a new 10 year period to enforce in France. In the foreign time limit was already quite long (for instance, 30 years in Luxembourg), the result could be to offer the possibility to the creditor to enforce the judgment for a remarkably long time period (40 years).

Should the Rule Be Different Under the European Law of Judgments?

The Lugano Convention and EU regulations on foreign judgments are silent on the time limit to seek exequatur (including, obviously, the Brussels I bis Regulation, which does not provide for any exequatur). Does that mean that there should be none, or that the issue is governed by national law? If it is governed by national law, it would seem, however, that too short a time period might not comport with the European freedom of circulation of judgments. In contrast, it is hard to criticise the French rule in that respect.

The Croatian Academy of Science and Art organises the roundtable titled “Private international law and global trends“, which will be held on Monday, 22 January 2024, at 11 h, in the premises of the Faculty of Law in Zagreb in Cirilometodska street, 4 (due to ongoing renovation of the Academy’s building which suffered damage in the earthquake of 2020, as visible in the photo when expanded). Attendance is open to all, but your intention to join should be communicated to Ms. Muhek at zmuhek@hazu.hr.

The programme includes the following topics:
Prof. Dr. Ines Medic, University of Split, Faculty of Law
Challenges of globalization of private international law for national judiciary

Prof. Dr. Ivana Kunda, University of Rijeka, Faculty of Law
Have frontier digital technologies surpassed the boundaries of private international law?

Prof. Dr. Mirela Zupan, Assoc. Prof. Dr. Paula Poretti, Jura Golub, University of J. J. Strossmayer in Osijek, Faculty of Law
Foreign public documents in the digital age

Asst. Prof. Dr. Danijela Vrbljanac, University of Rijeka, Faculty of Law
Breach of personal data in private international law

Asst. Prof. Dr. Tena Hosko, University of Zagreb, Faculty of Law
Protection of workers in private international law

Assoc. Prof. Dr. Dora Zgrabljic Rotar, University of Zagreb, Faculty of Law
The effect of the Hague Judgments Convention of 2019 on the recognition and enforcement of foreign court decisions in the Republic of Croatia

The proceeds from the conference will be edited by Prof. Dr. Mirela Zupan and published in a book within the series Modernisation of Law whose general editor is Academy Member Prof. Dr. Jakša Barbic.

Kaili / Parlement et Parquet européen
Droit institutionnel
Levée de l’immunité parlementaire : le recours de Mme Eva Kaili contre la demande de la cheffe du Parquet européen et la décision de la présidente du Parlement est rejeté

On Tuesday, February 6, 2024, the Hamburg Max Planck Institute will host its 41st monthly virtual workshop Current Research in Private International Law at 11:00-12:30 (CET). Heinz-Peter Mansel (Universität zu Köln) will speak, in German, about

Supply Chains and Conflict of Laws – Selected Issues

The presentation will be followed by an open discussion. All are welcome. More information and sign-up here.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

As announced on this blog, registrations for the EAPIL Winter School, which is taking place in Como between 12 and 16 February 2024, will close on 25 January 2024

Organised by the University of Insubria, in cooperation with the Jagiellonian University in Kraków, the University of Murcia and the University of Osijek, this year’s edition of the Winter School will be devoted to Personal Status and Family Relationships.

The detailed programme can be found here.

The School is aimed primarily at law graduates, law practitioners and PhD candidates with an interest in private international law, EU law and human rights law.

Those interested in attending the School are invited to submit their application through this form before 25 January 2024. The admission fees amount to 250 Euros.

For information: eapilws@gmail.com.

The Max Planck Institute for Social Anthropology in Halle (Saale), Germany, is advertising two PhD positions in Private Law within the context of a research project on “Cultural Diversity in
Private Law” lead by Dr Mareike Schmidt.

More information can be found here.

Österreichische Datenschutzbehörde
Principes du droit communautaire
Une commission d’enquête parlementaire doit en principe respecter le règlement général sur la protection des données

Intervyuirasht organ na DAB pri MS (Femmes victimes de violences domestiques)
Espace de liberté, sécurité et justice
Violences faites aux femmes : la Cour précise les conditions pour bénéficier de la protection internationale