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By Olivia Tambou

On 12-14 October 2020, the 2nd international Open Search Symposium (OSSYM 2020) will be hosted by the CERN (Geneva). The event is organised by the Open Search Foundation, which militates for the creation of an independent, free and self-determined access to information on the Internet.

You may participate to the Symposium in different ways: with scientific papers, sharing of practical experiences or by introducing concepts and positions during presentations and in the different interactive sessions. Full papers and abstracts presented at the OSSYM 2020 will be published in online proceedings following the event. Interested contributors should send their extended abstract (1 page) or full paper (4-6 pages) for any poster or oral presentation until 6 July 2020 at the following address: https://indico.cern.ch/e/ossym-2020.

Key legal questions to be addressed in the context on the Symposium could be: Competition law, data security/cybersecurity law, General Data Protection Regulation, ePrivacy Regulation, national vs. European law, Private international law, EU copyright legislation, liability, traceability of intellectual property rights and ownership by individuals, organisations and SMEs/corporates, data governance issues, as well as the fairness of digital platform and more globally fundamental rights issues including freedom of expression and protection against hate speech, and interaction with future rules on European digital single market, etc.

Note that the Symposium will be held either at physical meeting or as web-based conference (the final decision is to be taken in July). Registration will open on 16 July 2020 and close on 28 September 2020 (or when maximum number of participants is exceeded).

More information on this event is available here.

In Alexander Brothers Ltd (Hong Kong SAR) v Alstom Transport SA & Anor [2020] EWHC 1584 (Comm) Cockerill J discussed inter alia (at 177 ff) the impact of EU law on the ordre public assessment for potential refusal of recognition of an arbitral award under section 103 of the 1980 New York Convention.

CJEU authority are C-126/ 97 Eco Swiss (concerning EU competition law) and C-168/ 05 Claro (unfair terms in consumer contracts). At 183 Cockerill J does not suggest the CJEU authority should no longer stand. Indeed she suggests obiter that there is no reason to suggest the CJEU’s line of reasoning should not apply to wider issues than just competition law or consumer law. However, the burden of proof of showing that particular parts of EU law are of a nature to justify the ordre public exception, lies upon the party objecting to recognition. In casu Alstom have fallen short of that duty. Yes, there is scant reference to anti-corruption in the private sector; and yes there is EU money laundering law. However (at 186) ‘the EU has, in general terms, set its face against corruption. But aside from the area of money laundering it has not put in place mandatory laws or rules. In the context of international corruption of the kind in focus here it has left it to the individual member states to adopt what measures seem good to them. There is, in short, no applicable mandatory rule or public policy.’

An interesting discussion.

Geert.

Application for refusal of #arbitration award under New York Convention section 103: ordre public. Alternatively, issue estoppel, or failure of full and frank disclosure: all dismissed.
Cockerill J discussing ia C-126/ 97 Eco-Swiss. https://t.co/YF0dB6lVah

— Geert Van Calster (@GAVClaw) June 18, 2020

AG Manuel Campos Sánchez-Bordona delivered yesterday his opinion in case C‑540/19 (WV v Landkreis Harburg), which is about the Maintenance Regulation. Should the opinion be endorsed by the Court of Justice, the decision will be of great practical importance. The opinion is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version:

« L’article 3, sous b), du règlement (CE) no 4/2009 […] doit être interprété en ce sens qu’un organisme public qui a fourni des prestations d’aide sociale à un créancier d’aliments et qui s’est subrogé légalement dans la créance alimentaire peut réclamer cette dette à la personne qui est tenue de la payer, au moyen d’une action récursoire, devant les juridictions de l’État où le créancier a sa résidence habituelle ».

Source : here

AG Szpunar delivered yesterday his opinion in case C‑433/19 (Ellmes Property Services Limited v SP), which is about Brussels I bis. The opinion is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version:

« 1) L’article 24, point 1 [Bruxelles I bis] doit être interprété en ce sens qu’une action d’un copropriétaire tendant à la cessation de l’usage touristique d’un appartement par un autre copropriétaire, au motif que cet usage ne correspond pas à celui convenu dans le contrat de copropriété, ne relève de cette disposition que si cet usage est opposable à l’égard de tous. Il appartient au juge national d’effectuer les ultimes vérifications à cet égard.

2) L’article 7, point 1, sous a), de ce règlement doit être interprété en ce sens que, dans le cas où l’usage convenu dans le contrat de copropriété n’est pas opposable à l’égard de tous, une telle action relève de la notion de « matière contractuelle » au sens de cette disposition. Dans ces conditions, l’obligation contractuelle litigieuse consiste en une obligation de ne pas faire et, plus précisément, de ne pas modifier, d’une manière non conforme au contrat de copropriété, l’affection d’un bien dans le lieu où celui-ci se situe. Pour vérifier si le lieu d’exécution de cette obligation correspond au lieu où se situe l’appartement soumis au régime de copropriété, il appartient au juge national de déterminer ce lieu d’exécution conformément à la loi régissant cette obligation, selon les règles de conflit de la juridiction saisie ».

Source : here

On 28 May 2020, the German Federal Court of Justice (BGH) decided to refer a question for a preliminary ruling to the ECJ regarding Articles 80 and 84 of the General Data Protection Regulation (GDPR). The case, brought by consumer protection groups, is about the alleged violation, by the operator of a social network, of the obligation to inform users about the scope and purpose of the collection and use of their data.

Background

The Irish-based defendant, Facebook Ireland Limited, operates the “Facebook” social network. On the internet platform of this network there is an “app center” in which the defendant makes free online games of other providers accessible to the users of its platform. In November 2012, several games were offered in this app center, for which the following information could be read under the button “Play now”: “Clicking on Play game above gives this application: your general information, your email address, about you, your status. This application may post on your behalf, including your score and more.” In one game, the notice ended with the phrase: “This application may post information on your status, photos, and more on your behalf”.

The plaintiff is the umbrella organization of the consumer centers of the Federal states. It claims, among other, that the presentation of the information under the “Play now” button in the app center is improper, including from the point of view of the legal requirements for obtaining effective data protection consent from the user. It considers itself entitled to enforce injunctive relief by bringing an action before the civil courts in accordance with the relevant German rules on unfair competition and consumer protection.

In the first instance, the district court ordered the defendant to refrain from presenting games on its website in an app center in such a way that users of the internet platform, by clicking a button such as “play game”, allow the game operator to use personal data stored there, and is authorized to transmit (post) information on behalf of the user (LG Berlin, 28 October 2014, 16 O 60/13). The defendant’s appeal was unsuccessful (Kammergericht Berlin, 22 September 2017, 5 U 155/14). The defendant has filed a second appeal with the BGH.

The question

The question referred to the ECJ focuses on whether the criteria set out in Chapter VIII of the GDPR, in particular in Article 80(1) and (2) and in Article 84(1), conflict with national rules granting to competitors and associations, institutions and bodies authorized under national law, the right to sue before the civil courts for infringements under the GDPR regardless of the violation of specific rights of individual data subjects, and without any mandate from a data subject.

This question is controversial in the case law of the lower courts and in legal literature. Some consider that the GDPR contains a final regulation for the enforcement of the data protection provisions made in this Regulation, and that associations are therefore only authorized to bring proceedings under the conditions of Article 80 of the GDPR (which have not been met in the case at hand). According to others, the GDPR is not exhaustive, hence associations continue to be authorized to try and enforce injunctive relief in case of an alleged violation of personal data protection rules, independently of any infringement of specific rights of individual data subjects, and without the need of a mandate from a data subject.

The Court of Justice ruled in Fashion ID that the provisions of Directive 95/46/EC (the Data Protection Directive), which was in force until the General Data Protection Regulation became applicable on 25 May 2018, do not preclude associations from having legal standing. However, this decision does not indicate whether this right to bring an action remains in force under the GDPR.

Henshaw J in  DVB Bank SE v Vega Marine Ltd & Ors [2020] EWHC 1494 (Comm) (a substantively straightforward case on sums loaned) made some important observations on the benefits of summary judgment as opposed to a default judgment in the context of recognition and enforcement.

This a few days before publication of the thesis of Vincent Richard on the very topic.

There is no doubt the English courts have jurisdiction per a valid choice of court clause under A25 BIa. Claimants are pressing for summary judgment, citing

• Brexit. The Withdrawal Agreement extends EU law in civil procedure to proceedings issued before the end of the transition period, however claimants express anxiety over the speed of Greek enforcement proceedings given courts’ shutdown in the Covid19 era. At 61: ‘Greek counsel has advised the Claimants that the Greek courts shut down earlier this year for an indefinite period, so that obtaining an enforcement order in Greece would be likely to be delayed;’.
• More crucially however, Henshaw J notes at 61, correctly, that even under BIa, default judgments are more vulnerable:

there is a risk that an enforcement order based on a simple default judgment, even if obtained before 31 December 2020, might be set aside on public policy grounds. Greek counsel advised that the Greek courts would be much less likely to refuse to recognise and enforce a reasoned English judgment following a hearing on the merits.

Summary judgment was given against the defendants.

Geert.

Summary judgment granted.
Hanshaw J holding ia that for enforcement purposes both before and after Brexit (ordre public arguments in State of enforcement), summary judgment is to be preferred over default judgment. https://t.co/iS9Jhgjdp8

— Geert Van Calster (@GAVClaw) June 10, 2020

Mercredi, la commission des lois de l’Assemblée a adopté une proposition de loi créant une nouvelle mesure de sûreté visant les sortants de prison condamnés pour terrorisme. Une mesure de sûreté proche d’une peine, nouvelle étape d’un durcissement de la justice antiterroriste.

en lire plus

Today, AG Szpunar delivered his Opinion in the case of Ellmes Property Services, C-433/19, on the interpretation of Article 24(1) and Article 7(1)(a) of the Brussels I bis Regulation. This case arose from the following facts:

Both parties are co-owners of a house situated in Zell am See, Austria. The applicant, who is the owner of apartment No 10, has his home address at this location. The defendant company, which is the owner of apartment No 20, has its registered office in the United Kingdom. It uses its apartment, which was designated for residential purposes, for tourist purposes by regularly letting it out to holiday guests.

In his action brought before the Bezirksgericht Zell am See (District Court, Zell am See), Austria, the applicant seeks to prevent the use of the apartment for tourist purposes, contrary to its designated use and arbitrarily in the absence of consent of the other co-owners, which interferes with the applicant’s rights of co-ownership. He relied on the jurisdiction referred to in the first alternative in the first subparagraph of Article 24(1) of the Brussels Ia Regulation. The defendant objected on the basis of the lack of local and international jurisdiction.

The court of first instance declined local and international jurisdiction. In its view, the dispute relating to a private-law use agreement between co-owners did not directly concern their rights in rem. The court of second instance allowed the applicant’s appeal and rejected the defence of lack of local and international jurisdiction. It held that the designated use of a property subject to co-ownership was based on the private-law agreement between the co-owners (usually laid down in the co-ownership agreement). The designation for a specific use and the adherence to the use thus defined was one of the absolutely protected rights in rem of a co-owner. The defendant lodged an appeal with the Austrian Oberster Gerichtshof (Supreme Court) against that decision.

In this context, the Austrian Supreme Court referred to the ECJ the following questions:

(1) Is the first alternative in the first subparagraph of Article 24(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (‘Brussels Ia Regulation’) to be interpreted as meaning that actions brought by a co-owner seeking to prohibit another co-owner from carrying out changes to his property subject to co-ownership, in particular to its designated use, arbitrarily and without the consent of the other co-owners, concern the assertion of a right in rem?

(2) If the first question should be answered in the negative:
Is Article 7(1)(a) of the Brussels Ia Regulation to be interpreted as meaning that the actions referred to in paragraph 1 concern contractual obligations to be performed at the location of the property?

AG Szpunar, after scrutinizing the conditions, relevant case law and the purpose of Article 24(1), held that the application of that provision requires a right in rem which in turn necessitates an erga omnes effect of the underlying legal relationship of the co-owners regulating the modalities of the use of that co-ownership. Whether there was such an erga omnes effect in the concrete case at hand is to be determined by the national court according to the applicable national law. If there is no erga omnes effect, Article 7 (1) (a) will have to be applied to the applicant’s claim in question. This would mean that the national court will have to resort to the law governing that claim in order to determine its place of performance.

The Opinion is available in French [original language] and, inter alia, in German but not yet in English.

 

 

Elections

The University of Rijeka, Faculty of Law announced a call for application to the newly opened position of assistant, funded by the Croatian Science Foundation. It is a full-time position for the duration of the project (approximately 4 years) which is focused on research rather than teaching. The candidate will be expected to complete the doctoral studies conducing research on the various aspects of cross-border enforcement in EU under the mentorship of Professor Ivana Kunda, the Head of the Chair of International and European Private Law. Good command of English is required as well as certain level of Croatian. The call was announced yesterday and remains opened for 30 days.

The details of the call are available here, and questions could be addressed to ikunda@pravri.hr.

Ryanair Designated Activity Company
Espace de liberté, sécurité et justice
Un membre de la famille d’un citoyen de l’Union qui n’a pas la nationalité d’un État membre mais qui est titulaire d’une carte de séjour permanent est dispensé de l’obligation d’obtenir un visa pour entrer sur le territoire des États membres

Commission / Hongrie (Transparence associative)
Libre circulation des capitaux
Les restrictions imposées par la Hongrie au financement des organisations civiles par des personnes établies en dehors de cet État membre ne sont pas conformes au droit de l’Union

In Senior Taxi Aereo Executivo LTDA & Ors v Agusta Westland S.p.A & Ors [2020] EWHC 1348 (Comm) Waksman J discusses the same issues which I analysed in my review of Sabbagh v Koury (and he refers to that case at 51 ff). Proceedings arise out of the fatal crash of an Agusta Westland AW 139 twin turbine helicopter on 19 August 2011, during a flight from the Petrobras P-65 offshore oil platform in the Atlantic, west of Rio de Janeiro, to Macae Aerodrome in Brazil.

First and third defendant are an Italian company. Second defendant, AgustaWestland Ltd is an English company and the anchor defendant per A8(1) Brussels IA. At 32:

‘Defendants’ contention is that in order for Article 8 (1) to apply at all, the claim against the anchor defendant must at least be a sustainable one. I described this as “the Merits Test”. For present purposes, the requirement of sustainability can be equated with “viability”, “a real prospect of success”, a “serious issue to be tried” or a “good arguable case”. Neither party sought to argue that any fine point of distinction between these various expressions was relevant here.’

Reisch Montage and Freeport of course are CJEU authority referred to. As is Kolassa for the CJEU consideration of ‘merits review’ (particularly there: taking account of both defendant and claimant’s arguments) under A25 and A26 BIA) and CDC for the CJEU’s most recent proper discussion of the issue (at 86 Waksman J suggest CDC is not a ruling on the merits issue).

At 65 ff Waksman J follows the majority in Kabbagh, and not the dissent of Lady Justice Gloster – I as noted was more enclined to agree with her. Having confessed to his preference for there being a merits test, he then seeks to distinguish the CJEU in Reisch by focusing on the CJEU there finding on the basis of a ‘procedural bar’ in the Member State of the anchor defendant. At 83:

‘I do not find the reasoning of the CJEU here persuasive and I consider that the decision should be distinguished if possible. It can be distinguished because it is very clear from the judgments that the focus was on a national rule as to admissibility of the claim. Even allowing for differences of language, the expression “procedural bar” is not apt to include a lack of any substantive merit. Reisch is not therefore an obstacle to deciding that there is a Merits Test.’

And at 85:

‘that the reasoning of the court in Reisch was concerned more with what it simply saw as an illegitimate incursion of a domestic procedural rule (a bankrupt cannot without more be sued in ordinary litigation) into the operation of Article 6 (1). That, in and of itself decided the point. It was a question of form and not substance. But the Merits Test is a matter of substance.

Held: there is a Merits Test which must be satisfied before A8(1) can be invoked. That merits test is not met in casu.

A8(1)’s ‘so closely connected’ test clearly requires some appreciation of the facts and the legal arguments, as well as a certain amount of taking into account the defendant’s arguments. Yet this in my view does not amount to a merits test, and ‘sustainability’, “viability”, “a real prospect of success”, a “serious issue to be tried” or a “good arguable case” may well be synonyms – but there are not the same as an A8(1) merits test.

One to watch upon appeal.

Geert.

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

Includes challenge of the A8(1)BIa anchor jurisdiction.

Re fatal crash of Agusta Westland AW 139 helicopter on 19 August 2011, during a flight from the Petrobras P-65 offshore oil platform in the Atlantic, west of Rio de Janeiro, to Macae Aerodrome in Brazil. https://t.co/de4okNUMkY

— Geert Van Calster (@GAVClaw) June 13, 2020

On 26 May 2020, the European Commission launched a public consultation on cross-border investment within the EU.

Why this initiative?

First, the Commission is currently working on a new regulatory framework for intra-EU investments in order to make the internal market more attractive for foreign investors. The main objective of the future legislation will be to better protect and facilitate cross-border investments (see communication COM/2020/102, A New Industrial Strategy for Europe).

Second, following the Achmea judgment of the European Court of Justice (Case C-284/16), an agreement for the termination of intra-EU bilateral investment treaties has recently been adopted by a broad majority of Member States. At the same time, many investors but also arbitration practitioners have raised concerns because of this brutal change in the regulatory framework. They principally  invoke the loss of effective enforcement of their rights within the EU.

The main topics of the consultation are as follows: the first section contains some general questions aimed at gaining inputs on respondents’ familiarity with cross-border investments and linked issues; the second seeks feedback from stakeholders on rules to protect intra-EU investments; the third invites views on enforcement of intra-EU investment protection rules, including dispute resolution mechanisms and remedies when issues related to cross-border investments arise; the fourth section contains some general questions to assess the overall EU investment protection framework (as presented in section two and three); the fifth section seeks views of stakeholders on measures to facilitate and promote cross-border investment.

The consultation is open until 8 September 2020 and can be found here.

A short note on Public Joint Stock Company (Rosgosstrakh) v Starr Syndicate Ltd & Ors [2020] EWHC 1557 (Comm) just to illustrate the complications for recognition and enforcement in the absence of a near-automated process such as under Brussels IA (the Hague Judgments Convention is meant to lubricate the process internationally). Claimant applies for summary judgment on its claim for recognition and enforcement of three judgments obtained in its favour in the Russian courts in 2015 and 2016.

Moulder J first discussed the issue of lack of jurisdiction for the Russian courts and she finds at 93 after consideration that the discussions to and fro, and the evidence of Russian experts for each of the parties, necessitates proper discussion with oral evidence of the contractual construction, under Russian law, of the relevant choice of court clauses. Of course under BIa and other regimes operating with a certain amount of mutual trust, second-guessing jurisdiction is not part of the assessment.

Next, the allegations of bias are also discussed, with at 126 ia reference to an interference by President Putin, and at 138 a solid set of reasoning for Moulder J to dismiss the potential for summary judgment on this point, too. Of course bias is an ordre public issue which even under BIa’s rules for recognition of judgments from other Member States, might justify refusal of recognition.

Geert.

 

Application for summary judgment re recognition and enforcement of 3 Russian judgments refused.
I.a. allegations of bias require proper assessment. https://t.co/nfVLicgsQQ

— Geert Van Calster (@GAVClaw) June 17, 2020