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La Cour de justice de l’Union européenne (CJUE) apporte des précisions sur la question de la juridiction compétente dans l’Union lorsqu’un passager d’un avion subit un retard à l’arrivée, après avoir conclu un contrat avec une compagnie aérienne comprenant deux vols avec correspondance.

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Les sénateurs ont adopté le 21 mars 2018, en le modifiant, le projet de loi relatif à la protection des données personnelles, qui transpose le nouveau cadre juridique européen. 

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Une clause attributive de compétence conforme aux dispositions de l’article 25 du règlement Bruxelles I bis crée une compétence exclusive au profit de la juridiction désignée et prime la compétence spéciale de l’article 8, § 1, concernant la pluralité de défendeurs.

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Non lieu à renvoi

Non-lieu à renvoi

C‑64/17 Saey Home, is yet another illustration of, mercifully for us conflicts lawyers, even fairly sophisticated businesses often fail properly to conclude commercial agreements. Here: what is said to be a semi-exclusive concession agreement, was concluded verbally only.

Saey Home & Garden is a company with its registered office in Kortrijk (Belgium), which specialises in the manufacture and sale, inter alia, of kitchen equipment and utensils bearing the trademark ‘Barbecook’. That company does not have a branch or establishment in Spain. Lusavouga has its registered office in Cacia, Aveiro (Portugal). Its premises are in Portugal. Its network covers Spain, inter alia, where it has no branch or establishment. Parties to the main proceedings concluded a commercial concession agreement concerning the exclusive promotion and distribution (with the exception of one client) in Spain.

First up, has choice of court in favour of the courts at Kortrijk (referred to by its French synonym Courtrai, but then without the ‘r’ in referral documents and by the CJEU) been validly made if this choice was only included in the general terms and conditions included in the invoices? Hoszig (where a jurisdiction clause is stipulated in the general conditions, such a clause is lawful where the text of the contract signed by both parties itself contains an express reference to general conditions which include a jurisdiction clause) and Leventis (the purpose of the requirements as to form imposed by Article 25(1) is to ensure that consensus between the parties is in fact established) are the most recent CJEU precedent referred to. Both of them build on standing CJEU principle: one must not be overly formalistic when assessing the existence of agreement, but one must be certain that such agreement exists. While it is up to the national court to assess this in fact, the Court does indicate it is unlikely to be the case when no written agreement has been made (neither initially nor subsequently confirming an earlier verbal agreement) and all one has are the invoices.

Choice of court being unlikely, next up is the application of Article 7(1) to determine which court has jurisdiction to hear an application for damages relating to the termination of a commercial concession agreement concluded between two companies, each established and operating in a different Member State, for the marketing of goods on the domestic market of a third Member State in which neither of those companies has a branch or establishment.

Referring to Corman-Collins, the Court classifies concession agreements as being service contracts, which per Article 7(1) second indent, leaves to be determined the ‘place in
a Member State where, under the contract, the services were provided or should have been provided;’. Note: the place in a Member State. Not different places. Per Wood Floor Solutions, when there are several places of performance of the obligation characteristic of a contract for the supply of services the ‘place of performance’ must be understood as the place with the closest linking factor, which, as a general rule, will be at the place of the main provision of services. This place of ‘main provision’ follows from the provisions of the contract and, in the absence of such provision, of the actual performance of that contract and, where it cannot be determined on that basis, the place where the agent is domiciled (still per Wood Floor Solutions). This specific determination is left to the referring court.

One imagines different national courts may have treated all of this as acte clair – except perhaps for the peculiarity of Spain being a Member State where neither of the parties has either domicile or branch.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.1.

By the Permanent Bureau of the Hague Conference on Private International Law (HCCH)

From 13 to 15 March 2018, Members of the HCCH gathered in The Hague for the meeting of the Council on General Affairs and Policy. The Council was attended by 171 participants, representing 63 Members, one REIO and observers from four IGOs / eight NGOs.

The Council reviewed the work of the Organisation carried out during the previous year and charted the course for future work.

It recognised the very good progress made on the Judgments Project and mandated the Permanent Bureau to continue preparations for a Fourth and final Special Commission meeting in May 2018. The Council asked the Permanent Bureau to make arrangements for the preparation of a Diplomatic Session in mid-2019.

The Council also welcomed the work of the Experts’ Group on Parentage / Surrogacy and instructed the Permanent Bureau to convene two more meetings of this group. The Experts’ Group will report to Council at its 2019 Meeting.

The Council invited the Members to provide the Permanent Bureau with comments and a list of additional issues to be addressed in the finalised Report on the Tourists and visitors Project. Following a meeting of an Experts’ Group, the finalised Report of the Consultant and the Experts’ Group’s Conclusions and Recommendations will be submitted to the Members before the end of 2018, for consideration by the Council at its 2019 Meeting.

The Draft Practical Guide to Family Agreements under the Hague Conventions will be submitted to the Council at its meeting in 2019.

Furthermore, the Council mandated its Chair to advise the Netherlands Standing Government Committee on Private International Law that it recommends the reappointment of the Secretary General for a further term of five years.

The full Conclusions & Recommendations are available in English and French.

For further information, see https://www.hcch.net/en/governance/council-on-general-affairs.

Please note that the meetings above-mentioned are open only to delegates or experts designated by the Members of the Hague Conference, invited non-Member States and International Organisations that have been granted observer status.

Bail rural

Copropriété

Copropriété

De Capitani / Parlement
Droit institutionnel
Le Parlement européen doit en principe donner accès, sur demande précise, aux documents concernant les trilogues  en cours

In [2017] EWHC 3512 (Comm)  National Bank of Kazakhstan v Bank of New York Mellon, Article 7(5) makes a rarish appearance, as does (less rarely) Article 30. Popplewell J summarises the main facts as follows.

‘The Second Claimant is the Republic of Kazakhstan (“ROK”). The First Claimant is the National Bank of Kazakhstan (“NBK”). The Defendant is a bank incorporated in Belgium with a branch in, amongst other places, London. Through its London branch it provides banking and custody services to NBK in respect of the National Fund of Kazakhstan (“the National Fund”), pursuant to a Global Custody Agreement dated 24th December 2001, (“the GCA”). The National Fund has been the target of proceedings brought by Mr. Anatolie Stati and others, (“the Stati Parties”), who are seeking to enforce a Swedish arbitration award against ROK for a sum, including interest and costs, in excess of US$ 500 million. The Stati Parties obtained attachment orders from the Dutch court and the Belgian court, which were served on the Defendant (“BNYM”). BNYM, after taking legal advice, decided to freeze all the assets comprising the National Fund, which it holds under the GCA, on the basis that it was bound to comply with the Belgian and Dutch orders, breach of which would expose it to the risk of civil liability for the amount of the Stati Parties’ claims and criminal liability in Belgium and the Netherlands.’

Effectively therefore the London Branch of a Belgian domiciled bank, has frozen claimant’s assets which it holds in London (although the exact situs is disputed), on the basis that it wishes to prevent exposure to BE and NL criminal proceedings.

Parties arguments on jurisdiction are included at 41 and 42 of the judgment. Core to the Brussels I Recast jurisdictional discussions is Article 7(5) which provides

“A person domiciled in a Member State may be sued in another Member State: […]

(5) as regards a dispute arising out of the operations of a branch, agency or other establishment, in the courts for the place where the branch, agency or other establishment is situated;’

Beyond Case 33/78 Somafer, to which the High Court refers, there is little CJEU precedent – C‑27/17 flyLAL is currently underway. Popplewell J at 53 refers to Lord Phillips’ paraphrasing of Somafer in [2003] EWCA Civ 147  as a requirement of ‘sufficient nexus’ between the dispute and the branch as to render it natural to describe the dispute as one which has arisen out of the activities of the branch.

At 54 he holds there is such nexus in the case at issue, particularly given the management of the frozen assets by the London branch, and the very action by that branch to freeze them. This is quite a wide interpretation of Article 7(5) and not one which I believe is necessarily supported by the exceptional nature of Article 7.

As to whether the English and Belgian proceedings are ‘related’, providing an opportunity for the English proceedings to be halted under Article 30 of the Recast, the High Court refers at 57 ff to C-406/95 The Tatry to hold that there is no risk of conflicting decisions in this case: the argument specifically being that even if the issues addressed are the same, they are addressed in the respective (English, Dutch, Belgian) proceedings under different applicable laws (in each case the lex fori on sovereign immunity). I do not find that very convincing. The risk of irreconcilable outcome is the issue; not irreconcilability or not of reasoning. In the same para 60 in fine in fact Popplewell J advances what I think is a stronger argument: that the issue whether the National Fund was used or intended to be used for commercial purposes, requires to be determined or addressed in the English proceedings, with the result that there is no risk of conflict.

Article 30 not being engaged for that reason, obiter then follows an interesting discussion on whether there can be lis alibi pendens if the court originally seized had no jurisdiction under the Regulation: here: because the Belgian and Dutch proceedings are arbitration proceedings.

Does Article 30 apply to Regulation claims where there was a related action in a Member State in which the related action did not itself come within the Regulation? Referring to the new Article 34 lis alibi pendens rule for proceedings pending ex-EU, ex absurdum, would there not be an odd lacuna if Article 34 required a stay where there were related non-Regulation foreign proceedings in a third party State and the position were not to be the same for equivalent foreign proceedings in a Member State? I do not believe there would be such lacuna: the Article 34 rule applies to concurrent proceedings which are in fact in-Regulation, except international comity requires the EU to cede to foreign proceedings with a strong (typically exclusive) jurisdictional call. For intra-EU proceedings, the comity argument holds no sway – mutual trust does.

Like Poplewell J however I reserve final judgment on that issue for another occasion.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.11, Heading 2.2.14.

Le principe de l’indépendance des juges ne s’oppose pas à l’application aux membres de la Cour des comptes portugaise de mesures générales de réduction salariale liées à des contraintes d’élimination d’un déficit budgétaire excessif ainsi qu’à un programme d’assistance financière de l’Union.

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Par trois arrêts du 20 mars 2018 concernant l’Italie, la Cour de justice de l’Union européenne (CJUE) a assoupli sa jurisprudence relative au principe ne bis in idem. 

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Concurrence déloyale ou illicite

Thank you Andreas Christofides for flagging Aristou v Tesco Personal Finance, a case which engaged Article 7(2) and, I presume, Article 7(1) Brussels I Recast: forum delicti cq forum contractus. I tried to obtain copy of judgment but failed. It might not have helped me much anyway for I assume it was drafted in Greek.

For the facts of the case please refer to the link above. From Andreas’ description of the case I am assuming the Cypriot court firstly must have decided there was a contract between claimant and the UK bank, per Handte; that this was a service contract; and that per 7(1)b second indent, that service was provided in the UK. And that for the application of Article 7(2) both locus delicti commissi and locus damni were also the UK. (The court may in doing so have referred to Universal Music: not just location of the bank account in the UK but other factors, too).

Any Greek readers, in possession of the judgment: please correct if need be.

Geert.

(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2.7; Heading 2.2.11.1.b.

Un recours ayant pour objet le contrôle du caractère raisonnable de la contrepartie que l’actionnaire principal d’une société est tenu de verser aux actionnaires minoritaires de celle-ci en cas de transfert obligatoire de leurs actions à cet actionnaire principal, relève de la compétence exclusive des tribunaux de l’État membre sur le territoire duquel cette société est établie.

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Pourvoi c/ Cour d'appel de Riom, chambre correctionnelle, 22 février 2017

Pourvoi c/ Chambre de l'instruction de la cour d'appel de Limoges, 12 octobre 2017

Pourvoi c/ Cour d'appel de Bordeaux - 6e chambre, 06 février 2018