Flux européens

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I have of course reported on the lengthy jurisdictional battles (in which for the sake of clarity, I was instructed) surrounding the litigation, in England, following the collapse of the Fundão Dam in Southeast Brazil on 5 November 2015, chiefly here.

In Municipio de Mariana et al v BHP Group UK Limited and BHP Group Limited [2025] EWHC 3001 (TCC), Justice O’Farrell held last Friday in what by any measure is a groundbreaking business and human rights case, testifying in the process to the ability of the courts in England to deal with claims of this absolute magnitude (one will remember that the alleged impossibility for the English courts to try cases of this enormity was one of the arguments for Turner J, later overturned, to reject jurisdiction for the English courts).

[76] During case management hearings, it was agreed that the Court should determine key liability issues and significant defence issues at a first stage trial before considering the entitlement and quantum of any individual or group claims. Current judgment is the judgment on those key issues.

There has been a lot of primary analysis of the judgment over the weekend, and Jonathan McDonagh has complete yet concise overview of findings here.

This post, true to its host’s form, focuses on one important conflict of laws issue in the judgment.

The Rome II Regulation includes an “evidence and procedure carve-out”. On the other hand Article 15 Rome II includes within the scope of the applicable law identified by the Regulation (the ‘lex causae’), a number of subject-matter which national laws frequently consider to be part of that very procedural law.

Article 15’s specification of what is covered by the lex causae identified by Rome II includes “rules of prescription and limitation”.

The tension between the procedural carve-out and Article 15’s reference to ‘rules of prescription and limitation” makes an appearance in current claim by way of the precise way in which proceedings have been commenced.

The Claimants’ case [816] is that the Brazilian rules of prescription, which include Article 202 (I) of the Civil Code, provide that service of the claim form is the key procedural step required to stop time running. However, what amounts to proper service will be a question of procedural law.

[817] BHP’s case is that A15 Rome II sets out a non-exhaustive number of matters which must be determined in accordance with the law applicable to non-contractual obligations, which cannot constitute matters of procedure for the purpose of Article 1(3). [820] They argue Brazilian, not English, law applies to the question of whether the claim form contained sufficient information for the purposes of limitation.

In particular, defendants argue that the claim forms as issued by claimants, were not effective for proceedings to have ‘commenced’ as a matter of Brazilian law. In their view, the relevant section of the Brazilian Code of Civil Procedure (‘BCCP’), Article 319 BCCP, applies with respect to specification of the “factual and legal grounds of the claim” (Article 319(iii)), “the specified demand for relief” (Article 319(iv)), and “the value of the claim” (Article 319(v)). Defendants argue that this is required to enable the Defendants to provide a full answer and defence.

It is my view that Civil Procedure Rules – CPR on the required content of claim forms to effect service, must follow lex fori (or more precisely: must follow residual conflict of laws rules for procedural issues, which tends to lead to lex fori), even if the enquiry into the consequences of the claim form subsequently is relevant for limitation purposes.

The judge [821] holds

In my judgment, a distinction must be drawn between the substantive rules of prescription, which it is agreed are subject to Brazilian law by reason of Article 15(h), and the procedural rules for effecting valid issue and service of a claim in this jurisdiction, which should be characterised as procedural and therefore fall to be governed by English law, the Civil Procedure Rules 1998 (“the CPR”). There may be cases in which it is unclear whether a specified requirement falls into the category of substantive law or procedural/evidential law. This is not such a case.

and [825]

Even if the Brazilian rules on commencement of proceedings applied, there is no real dispute between the Brazilian law experts that, it is likely that the claim forms would be effective to stop time running.

In conclusion [830]

For the above reasons, regardless of whether English law or Brazilian law applies to the requirements for issue and service of the claim forms, they would be considered to be valid to stop time running for prescription on the date of issue.

It is a neat conflicts nugget in a judgment otherwise largely discussing liability under Brazilian law as the lex causae. BHP On Friday immediately announced in a statement to investors (by whom they are nota bene also being sued) that they intend to appeal.

Geert.

EU Private International Law, 4th ed, 2024, ia 4.82 ff.

 

[If you do use the blog for research, practice submission or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.]

I am grateful to Dr Elias Van Gool, postdoc in our department, for his analysis of ASLB we.are.nature.Brussels et al v Région de Bruxelles-Capitale.

Of note is that both Elias and I struggle to find the right terminology for the Dutch ‘verharding’: ie any method by which soil is made impenetrable, typically by concreting it over in the course of construction works. Elias has used the term ‘soil sealing’, any suggestions for improvement will be happily received.

WeAreNature.Brussels: Climate litigation leading to a construction and soil sealing moratorium protecting Brussels’ remaining greenfields

This guest post was authored by Dr Elias Van Gool, FWO Post-Doctoral Researcher in environmental law at KU Leuven.

In the global surge of strategic litigation relating to climate change, few decisions at the national level can today still be considered truly novel. The 29 October judgement by the French-speaking Brussels Court of First Instance, however, is remarkable and worth signaling to readers of this blog.

Claimants – NGOs WeAreNature.Brussels, Bruxelles Nature and 1,330 local residents – sued the Brussels Capital Region (hereafter ‘the Region’), alleging that it was liable for breaching its general duty of care, interpreted in light of established climate science and the Region’s climate change mitigation and adaptation responsibilities. In essence, the claimants argued that continued net increases in soil sealing, which threaten Brussels’ remaining greenfields and other  open spaces, prevent the Region from achieving its own, European and international legal obligations relating to climate change. Given the Region’s knowledge of this issue, its continued failure to adjust its spatial planning to reverse this trend, and the resulting harm Brussels residents will suffer, the claimants argue that the government’s conduct is tortious.

After establishing that all claimants have the necessary standing, the court agrees with them on the merits and rules that the Region’s conduct – in particular its spatial planning policy – indeed violates its duty of care in relation to climate mitigation and adaptation. In its reasoning, the court first refers to the 2023 Klimaatzaak appeal judgement, which had already held that the Brussels Region’s inadequate mitigation efforts breach the general duty of care as well as Articles 2 and 8 ECHR. The court then finds that the Region’s lack of a sufficient accounting of greenhouse gas emissions and removals from land-based carbon sinks on its territory, violates European law, in particular the carbon accounting and inventory requirements under LULUCF Regulation 2018/841/EU and Governance Regulation 2018/1999/EU. Finally, the court observes that the Region’s remaining open land and unsealed surfaces continue to disappear and that this is made possible by the Region’s current spatial planning, which the court indeed considers as obsolete for successful climate mitigation and adaptation.

The decision is notable for how it recognizes that both climate mitigation and adaptation depend on adequate spatial planning to preserve and strengthen nature-based solutions. The Region’s diminishing green areas do serve as carbon sinks, which to a limited extent help to abate global climate change. For residents, land use is of course even more directly important for adaptation purposes, where the causal link between the government’s conduct and resulting harm is undeniably much stronger. While the decision focuses on flood risks, local residents are also vulnerable to heat stress and to a lesser extent droughts. These are all risks green infrastructure and unsealed surface areas help to mitigate, especially in an urban environment.

The most remarkable aspect of this decision is of course the injunction: a judicial moratorium on further construction and soil-sealing activities. Comparative overviews suggest that this is truly a novelty in global climate litigation.

Nevertheless, it is worth emphasizing that this injunction is limited in several respects. First, it only applies to non-built-up areas of more than 0.5 hectares. Second, the moratorium is temporary, expiring either on 31 December 2026 or earlier if the region adopts a new Regional Spatial Plan (PRAS). Third, the court does not itself impose the moratorium but rather ‘orders the Region to take the necessary measures’ to implement it. As my colleagues De Clercq and Dethier point out, this indirect formulation can be explained by reference to both the separation of powers and the legal protection of property rights. Finally, the claimants have neither sought nor obtained a penalty payment, which could otherwise have been used to compel the Region to implement the moratorium.

To provide additional context, the Brussels Region currently lacks a government with no solution in sight, which is a situation that can impact the injunction’s implementation. Furthermore, the Region is facing a serious housing crisis and a dismal budget deficit. The latter is crucial, since a definitive change in spatial planning prohibiting construction or soil sealing in areas where this was previously allowed, will entitle affected landowners to compensation for planning damage. Conversely, the court’s injunction will not be suspended if the Region were to appeal (which in Belgium it can do as of right). It is therefore my expectation that the actual implementation of the injunction will, at best, remain limited to the rejection of individual permit requests for soil sealing and construction activities on the affected land areas. The claimants may, of course, return to court to seek penalty payments, should the Region fail to comply with the injunction. They may furthermore seek an extension of the moratorium beyond the end of 2026.

Notwithstanding these local contextual caveats, the court’s injunction stands and, from a comparative climate litigation perspective, can be regarded as breaking new ground [pun intended]. In this respect, the decision may ultimately prove to be at least as influential internationally as it is on the ground in Brussels itself.

Elias.

Associació Catalana de Víctimes d’Organitzacions Terroristes (ACVOT)
Espace de liberté, sécurité et justice
L’avocat général Spielmann estime que la loi d’amnistie espagnole n’est pas contraire à la directive relative à la lutte contre le terrorisme

Sociedad Civil Catalana
L’avocat général Spielmann estime que certaines dispositions de la loi d’amnistie espagnole relatives à l’exonération de la responsabilité en matière de deniers publics pourraient être incompatibles avec le droit à une protection juridictionnelle effective

Oti
Autorisation de séjour dans l’Union à des fins de volontariat : un État membre ne peut pas imposer des conditions supplémentaires pour prouver l’existence de ressources suffisantes

PB Vi Goods
Agriculture
Une boisson sans alcool ne peut être vendue comme du gin

Commission / Hongrie (Matériaux de construction pour infrastructures critiques)
Libre circulation des marchandises
Libre circulation des marchandises : la procédure instituée par la Hongrie pour l’exportation des matières premières et des matériaux de construction enfreint le droit de l’Union

Tribunalul Galaţi
Libre circulation des personnes
Un juge accomplissant des tâches relevant d’un poste vacant au sein de sa juridiction, en plus de celles qui relèvent du poste pour lequel il a été nommé, n’a pas droit à une compensation nécessairement financière

[If you do use the blog for research, practice submission or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.]

Operafund Eco-Invest Sicav Plc & Anor v Spain [2025] EWHC 2874 (Comm)  is a truly exciting judgment for many reasons, most of all Pelling J’s entirely opposite view on the assignability of ICSID, ECT awards as compared to Stewart J in the Federal Court of Australia.

The latter, in Blasket Renewable Investments LLC v Kingdom of Spain [2025] FCA 1028, reviewed here by Claudia Wortmann, held [287] ff that neither under public international law (the ICSID Convention and the Energy Charter Treaty): [304] ff nor under domestic Australian law, there is a bar to the principle of assignment of ICSID and indeed ECT awards.

In current English case the claim is one for substitution as claimants, of Opera Fund Eco Invest Sicav Plc and Schwab Holding AG, by Blasket Renewable Investments LLC. The claim failed.

The judge first of all held that Spain is not estopped from making assignment objection in the English proceedings. Before a foreign judgment can give rise to an estoppel, the judgment must be capable of being registered in E&W and that is not currently the position in relation to the FCA proceedings: the order is not yet final under Australian law and Spain has not submitted to the Australian proceedings. The judgment in the FCA proceedings is not final or binding therefore which in and of itself rules out issue estoppel. An additional argument by Spain that there can be no issue estoppel on a point of law was correctly dismissed with reference [29] ia to SKAT v MCML 2025] EWCA Civ 371.

Next however the judge here diverges entirely from the approach in Australia on assignment. Stewart J at the FCA held that there is no basis in public international law to read into the ICSID Convention a prohibition on assignment, and neither is there in in Australian law. [His findings on public international law essentially mean that the notoriously dualist approach of the Australian courts is in fact of little relevance to the judgment].

I am inclined to agree, including with the arguments in his judgment concerning the object and purpose of the Convention. Stewart J [309] ff and Pelling J [42] ff come ia to a different conclusion on the meaning of ‘party’ in A 54(2) ICSID.

I understand Hanno Wehland’s argument, cited in the English judgment, that investment law is a particularly sensitive area closely linked to issues of sovereignty. I also appreciate that this makes assignment of the right to bring a claim as an investor (transfer of standing as it were) particularly problematic.

Yet that is in my view radically different at the enforcement stage where the award effectively has become a money judgment.

Permission to appeal in the English case would seem guaranteed, and in the Australian case it is one as of right (which Spain is yet to effect but has said it will). Upon appeal both judgments might be reversed, either still leading to an opposite approach in both courts or to alignment in either direction.

A judgment of most high relevance.

Geert.

High Court: ICSID, ECT awards are unassignable Exciting issues viz issue estoppel following foreign judgment (Spain not having submitted in the AUS proceedings) & treaty interpetation, customary international lawOperafund v Spain [2025] EWHC 2874 (Comm)www.bailii.org/ew/cases/EWH…

— Geert Van Calster (@gavclaw.bsky.social) 2025-11-11T22:19:41.389Z

When I reported Airgas USA v Universal Africa Lines ECLI:NL:HR:2025:1665 on BlueSky last Saturday,  it led to a rather wonderful reply which I am now definitely including in my conflict of laws slides.

A quick note on the judgment (Ekaterina Pannebakker meanwhile also looks at the background here) which for its Rome I discussion is fairly uncontroversial imo.

The relevant clause in the bill of lading (transport of dangerous goods by sea) reads [2.1 of the judgment]

The law of The Netherlands, in which the Hague-Visby Rules are incorporated, shall apply. Nevertheless if the law of any other country would be compulsorily applicable, the Hague-Visby Rules as laid down in the Treaty of Brussels of 25th August 1924 and amended in the Protocol of Brussels of 23rd February 1968 shall apply, save where the Hamburg Rules of the UN Convention of the Carriage of Goods by Sea of 1978 would apply compulsorily, in which case the Hamburg Rules shall apply. If any stipulation, exception and condition of these conditions would be found inconsistent with The Hague-Visby Rules or Hamburg Rules, or any compulsory law, only such stipulation, exception and condition or part thereof, as the case may be, shall be invalid. In case of carriage by sea from or to a port of the USA, this Bill of Lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act of the United States, approved 16th April 1936, which shall be deemed to be incorporated herein, and nothing herein contained shall be deemed a surrender by the carrier of any of its rights or immunities or an increase of any of its responsibilities or liabilities under said Act. The provisions stated in said Act shall, except as may be otherwise specifically provided herein, govern before the goods are loaded on and after they are discharged from the ship and throughout the entire time the goods are in custody of the carrier. The carrier shall not be liable in any capacity whatsoever for any delay, non-delivery or mis-delivery, or loss of or damage to the goods occurring while the goods are not in the actual custody of the carrier.

Choice of court in the bill of lading is for the Netherlands. For choice of law, the Bill employs dépeçage: Dutch law was picked as the lex voluntatis (the law freely chosen by the parties), with one carve-out: for goods carried by sea from or to a port in the United States, the 1936 Carriage of Goods by Sea Act of the United States (COGSA) was chosen to apply. With COGSA the US implemented the 1924 Hague Rules. I understand that COGSA is considered lois de police in the US, for any goods carried by sea from or to a US port.

The appealing party argued [3.1.1] that because COGSA is only part of the law of a State and not all of it, the dépeçage or carve-out is invalid.

The Supreme Court suffices with holding [3.1.3] very sec that under Rome I parties may select parts only of a given State law to apply dépeçage-style. In my view that is clearly correct (and with Rob Rooman I expand on choice of law per Article 3 Rome I in a forthcoming chapter for Pietro Franzina’s Edward Elgar’s commentary on Rome I).

The dépeçage at issue is not redundant, despite parties’ clearly being aware that COGSA is lois de police (overriding mandatory law) in the US. With the clause the application of COGSA is extended even when, such as here, not a US but a Dutch court hears the case. 

The remainder of the (succinct) judgment deals with  issues of ius (alienum) novit curia under Dutch CPR.

Dépeçage does not often reach the courts and for that reason it is worthwhile reporting on it. 

Geert.

EU Private International Law, 4th ed. 2024, 3.37

 

 

Danemark / Parlement et Conseil (Salaires minimaux adéquats)
Politique sociale
La Cour confirme la validité d’une grande partie de la directive relative à des salaires minimaux adéquats dans l’Union européenne

In Case C‑398/24 [Pome], the CJEU yesterday held without AG Opinion.

Under Estonian law, choice of court is only valid in respect of disputes connected with the economic or professional activity of both parties to the agreement in question (in the case at issue, an agreement between two natural persons concerning the transfer of half the share of the equity in a flat, and the coinciding monies owed by the acquiring party to the other; neither of them seemingly professionally engaged in real estate.

The question referred is essentially whether Brussels Ia tolerates

a condition, imposed by the national law of the Member State whose court has been designated by the parties to an agreement as having jurisdiction, according to which an agreement conferring jurisdiction entered into by natural persons is valid only if the dispute at issue is connected with the economic or professional activity of those parties, amounts to a ground for the agreement being ‘null and void as to its substantive validity’, within the meaning of [Article 25 Brussels Ia]

[27] the CJEU with reference to Lastre points out the limited reach of Article 25’s lex fori prorogati rule:

the first sentence of Article 25(1) of Regulation No 1215/2012 merely lays down a conflict-of-law rule by specifying which national law is applicable as regards the question whether, notwithstanding the fact that all the conditions of validity laid down in that article are satisfied, such an agreement may be null and void on other substantive grounds under that national law

[32] The lex fori prorogati rule only “covers the general grounds for an agreement being null and void that may have an impact on a contractual relationship, namely – in particular – those which vitiate consent, such as error, deceit, violence or fraud, and incapacity to contract”. By contrast [35] the Estonian rule at stake “does not constitute one of the general grounds for [contractual] invalidity”, rather [37] undermines the respect for “the autonomy of the parties..the effectiveness of exclusive choice-of-court agreements” which are clearly essential to Brussels Ia. Ad nauseam, [39]

to impose a condition under national law, which renders an agreement conferring jurisdiction invalid if the dispute is not connected with the economic or professional activity of the parties to the agreement, would be contrary to those parties’ freedom of choice’ (reference here to Refcomp).

[42] over and above the principle of party autonomy, the Estonian rule also infringes the core objective of legal certainty:

the legal certainty ensured by Regulation No 1215/2012 would be compromised if it were possible, for a national legislature, to lay down additional conditions of validity pertaining to agreements conferring jurisdiction themselves and insisting in particular on the existence of a connection with the type of activity of the parties to the dispute.

The CJEU’s emphatic support for party autonomy also means it did not entertain the referring court’s suggestions on recital 20’s renvoi rule (with Estonian residual private international law, like many Member States, declaring Rome I to be applicable despite its exclusion of choice of court agreements, hence making the lex (voluntatis) contractus applicable to the question of substantive validity of choice of court).

The judgment is yet again solid evidence of the status of party autonomy as a foundational principle under Brussels Ia.

Geert.

EU private international law, 4th ed. 2024, 2.343 ff.

The CJEU held last Thursday in C-682/23 E.B. sp. z o.o. v K.P. sp. z o.o. (my usual grumble on anonymisation: there is exactly zero reason to anonymise names in a bog standard B2B litigation fought in open court).

E.B. (the principal) and E. PL. (the service provider) are two companies incorporated under Polish law. They contracted on 24 March and 24 July 2017 two contracts for construction work in Poland. With effect from 4 March 2017, E. PL. subcontracted with E. S.A., a company incorporated under Romanian law. On 10 July 2017, E. S.A., in turn, concluded a subcontract with K.P., yet another company incorporated under Polish law. This contract contains a jurisdiction clause under which ‘any dispute shall be resolved by the court within whose jurisdiction the contracting party has its registered office’. The clause does not specify the exact scope of the term ‘contracting party’. This is the clause at the centre of the case.

The four contracts referred to above all have Polish law as lex contractus by way of lex voluntatis.

K.P. then allegedly misperformed under the subcontract leading to E.S.A having a €3 million plus claim against K.P. This claim was assigned by agreement of 16 December 2021, concluded between E. S.A. and E.B. and with the participation of E. PL. E.B. took that claim in what it said is both contractual liability and liability in tort, to the Romanian court which it said had jurisdiction in its capacity as the court within whose jurisdiction E. S.A. had its registered office.

K.P. argued lack of jurisdiction for the Romanian court, suggesting a tortious claim did not engage the choice of court and per A7(2) Ia should be heard in Poland as locus delicti commissi. As for contractual liability, K.P. argued that E.B. could not, as a third party to the subcontract in question, rely on the jurisdiction clause at issue.

To question before the CJEU is whether the assignee of a claim arising from a contract, has the right to enforce the jurisdiction clause in that contract against the original party to the contract, if the assignment contract has, in accordance with the national law applicable to the substance of the dispute, transferred the claim and its ancillary rights, but NOT the obligations arising from the contract.

The CJEU up to [40], referring to previous case law (including Maersk, of course), firstly postulates a ius commune rule (supported by the principles of predictability, certainty and good administration of justice of Brussels Ia) that in any case there is enforceability under Article 25 if rights AND obligations have been assigned.

It then [41] ff concludes that it is however also compatible with A25 BIa if a national regulation such as, in this case, Polish private law, as applied by Polish case law, includes enforceability by the assignee of the jurisdiction agreement against the original contracting party, even if the assignment transfers rights only and not obligations, and even if the other, originally contracting party did not consent to the assignment in general or to the assignment of the choice of forum in particular. Except if the original contracting parties expressly agreed that such assignment could not result in the enforceability of the choice of court clause.

The judgment reemphasises the incomplete assignment picture under EU private international law which I also flagged for a planned talk at the Asser institute last week.

Geert.

EU private international law, 4th ed. 2024, 2.373 ff.

Imagens Médicas Integradas
Concurrence
Selon l’avocate générale Medina, le respect au droit à la protection des données à caractère personnel n’exige pas l’autorisation préalable d’une autorité judiciaire dans des enquêtes sur la concurrence

Tuleka
Voyages à forfait : en cas d’exécution incorrecte du contrat, le voyageur peut être intégralement remboursé, même si certains services lui ont été fournis

A succinct note on Transworld Payment Solutions UK Ltd & Anor v First Curacao International Bank NV & Anor [2025] EWHC 2480 (Ch) in which Leech J held on both limitation issues under Rome II v the former English rules and the statutory intervention by the  FLPA (Foreign Limitation Periods Act) 1985.

As for the latter, the FLPA [103, with reference to Dicey] adopted the general principle that the limitation period of the lex causae are to be applied to actions in England, as opposed to the previous more complex distinction [101] between  procedural and substantive limitation rules and the distinction between rights and remedies. However the judgment is not very clear on what the discussion implies in casu and I have not managed to extract the relevance here despite multiple readings of the judgment.

On applicable law to the claim, here the issue [749 ff] is whether A12 applies at all (readily accepted [751] following defendant’s correct submission [750]) and if so, whether A12(1) did not lead to a putative lex contractus, hence effectively resurrecting A4’s lex locus damni as a result of A12(2). The judge summarily holds for the putative lex contractus, Curacao law, also dismissing the attempt at fog (did party so and so actually become a party to contract such and such) seeing as A12(1) clearly holds that the actual conclusion of a contract is not relevant.

Geert.

Ia issues of limitation periods viz Rome II and application of A12 Rome II: culpa in contrahendoTransworld Payment Solutions UK Ltd & Anor v First Curacao International Bank NV & Anor [2025] EWHC 2480 (Ch)www.bailii.org/ew/cases/EWH…

— Geert Van Calster (@gavclaw.bsky.social) 2025-10-02T07:20:26.163Z

Iberia Líneas Aéreas de España (Notion de "bagages")
Transport
Responsabilité des transporteurs aériens : les animaux de compagnie ne sont pas exclus de la notion de « bagages »

AirHelp Germany (Avion frappé par la foudre)
Transport

Un impact de foudre sur un avion peut constituer une circonstance extraordinaire

[If you do use the blog for research, practice submission or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.]

The CJEU this morning kicked open a door already so wide open in in Case C‑540/24 Cabris Investments v Revetas Capital Advisors, I hope no one was walking behind it for they would have been brutally knocked out.

On 6 May 2020, Cabris Investments and Revetas Capital Advisors, companies both established in the UK, entered into a consultancy contract, which was accompanied by a letter, both of which contained a jurisdiction clause worded

‘This contract and the relationship between the parties shall be governed by and construed in accordance with Austrian law. The Handelsgericht Wien [(Commercial Court, Vienna, Austria)] shall have exclusive jurisdiction over any disputes arising out of or in connection with this agreement or its enforcement or validity.’

On 30 June 2023, Cabris brought an action before the Commercial Court, Vienna) to seek fulfillment of a contractual payment obligation under that contract relating to the role of CFO. Revetas challenge the international jurisdiction of the referring court, arguing that, since BIA has not been applicable in respect of legal relationships involving the UK since the end of the transition period provided for in the Withdrawal Agreement, A25 BIa, as interpreted in Inkreal  is not applicable.

The referring court has doubts

first as to whether A25 BIa and the Inkreal principles remain applicable viz choice of court concluded during the transition period between two parties having their head offices in the UK, which designates a court of a Member State to hear their dispute, where that court has been seised after both UK withdrawal and the end of the transition period, and the contractual relationship underlying the dispute has no connection with that Member State.

Second, if the CJEU were to conclude that A25 does not apply in such a situation, whether the Brussels Convention, and in particular A17 and 18, or, failing that, the British-Austrian Convention, is applicable. According to the referring court, the answer to that question depends on whether A68 and 69 BIa definitively repealed those two conventions. That court is of the view that the principles of public international law governing the termination of treaties and the fact that those various legal instruments govern related matters support the interpretation that the applicability of those conventions, as regards legal relationships involving the UK, is precluded

Third, whether A50(3) TEU and A82(1)(b)(i) of Part 4 of the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019 of 4 March 2019  preclude the Brussels Convention from applying in general.

These are scholarly exciting questions and the referring Austrian court referred to following long list of verbosely formulated questions, after having given the UK-EU Withdrawal Agreement context: 

‘(1)      Is [A25 BIa to be interpreted as meaning that an agreement conferring jurisdiction in which the contracting parties, who are domiciled in the [UK] and therefore (now) in a third State, agree that the courts of a Member State of the [EU] are to have jurisdiction over disputes arising under that contract, falls within the scope of that provision, even if the underlying contract has no further connection with that Member State chosen as the place of jurisdiction? Do the underlying principles of [Inkreal] therefore also apply in the same way if the date of conclusion of a jurisdiction agreement between two parties domiciled in the UK still falls within the period before the end of the [Brexit transition period] on 31 December 2020, but the action was only brought after Brexit took effect? This is taking into account the fact that the contractual situation between these (now) third-country nationals has no further connection to the chosen [EU] Member State (see, however, Recitals 13 and 14 of [that regulation]) and, in addition, A50(3) TEU … generally excludes the applicability of the European treaties for the [UK] after Brexit.

If [the Court] rejects the application of [A25] in the third-country scenario in question, the following further questions arise:

(2)      Is [A68 BIa] to be interpreted as meaning that it has definitively repealed [the Brussels Convention] – including in proceedings relating to the [UK] (taking into account Brexit) – so that recourse to this Convention is currently no longer possible for a Member State of the [EU]?

(3)      Are [A69 BIa] in the version of [List 3] and [A55 Brussels Convention], 13th indent, to be interpreted as meaning that they have also definitively repealed the [British-Austrian Convention], so that in proceedings relating to the [UK] (taking into account Brexit), recourse to that international treaty … is no longer possible? This is also taking into account the fact that, pursuant to [A70(1) BIa], the conventions referred to in [A69] of [that regulation] retain their validity for those areas of law to which the regulation does not apply. Can [a] treaty concluded with [Austria] that has already been declared “superseded” by primary law in the past be declared retroactively applicable again between those states after Brexit (so-called “revival of an international treaty”) pursuant to Article 70(1) of [that regulation] with regard to the [UK]?

If so: Would such a “revival” also apply within the scope of application of [A56 Brussels Convention], which is similar in this respect?

(4)      Is [A50(3)] TEU to be interpreted as meaning that it also precludes the application or “revival” of [A 17 and 18 Brussels Convention] in relation to the [UK] (taking into account Brexit) if, in proceedings initiated in Austria, two litigants domiciled in the [UK] are facing each other who have agreed in their contract – concluded on 6 May 2020 – that the Handelsgericht Wien (Commercial Court, Vienna) has exclusive jurisdiction? Does the provision in [A50(3)] TEU take precedence over [A66 Brussels Convention], according to which the Brussels Convention “[is concluded] for an unlimited period”?

(5)      [(a)]      Should [the Court] come to the conclusion that the Brussels Convention also takes precedence in the sense of [Q]uestions 2 to 4 above in relation to the [UK], the question arises: Does the fundamental primacy of the Brussels Convention preclude an arrangement in the [UK] according to which recourse to the Brussels Convention is also expressly excluded with regard to jurisdiction agreements that were concluded prior to Brexit taking effect (see the UK provision under Section 82(1)(b)(i) of the “Regulations 4-25 Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019 (SI 2019/479)”, which [was] valid until 29 February 2024 and is obviously still applicable here, as the action was brought on 30 June 2023)?

[(b)]      If not: When examining the validity of a jurisdiction agreement concluded on 6 May 2020 (i.e. before Brexit) between two British companies with the choice of an Austrian forum, is an Austrian court nevertheless bound by this exclusion of application of the Brussels Convention – standardised in the [UK] – pursuant to Section 82(1)(b)(i) of Regulations 4-25 Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019 (SI 2019/479), in particular due to the primacy of primary law, which would in principle prevent effective enforcement in the United Kingdom ([t]he last question assumes, for the purposes of [Q]uestion 3), the expiry of the [British-Austrian Convention]?’

 

The CJEU, without AG Opinion, cut the conversation short:

[31] a choice of court clause must be assessed as at the date on which the legal proceedings are brought (reference ia to CJEU Tilman);

[35] A25 BIa clearly applies regardless of the domicile of the parties;

[37] despite BIa serving internal market objectives, BIa emphasises in recital 14 that ‘to respect the autonomy of the parties, certain rules of jurisdiction in this Regulation should apply regardless of the defendant’s domicile’ – ditto [43] another clear support by the CJEU of party autonomy as a strong driving principle of EU PrivIntLaw.

[40] the ‘international element required to trigger BIa is very widely interpreted (reference ex multi to Inkreal);

[47-48] that choice of court was concluded during the transition period and that that court is seised of a dispute after the end of that period, is not capable of altering the answer to be given to the present question: the Withdrawal Agreement does not govern such a situation, and notwithstanding ex-EU domicile of the parties to a dispute, A25 explicitly covers such situation.

The remainder of the questions therefore, are not entertained……

Geert.

EU Private International Law, 4th ed. 2024, 2.311 ff.

 

[If you do use the blog for research, practice submission or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.]

What is the forum contractus in an action for recovery of a consumer’s claim arising from a contract of carriage by air, acquired by a trader by way of assignment? Contracts solely for transport famously are excluded from the consumer title of the Regulation, and cases like C‑913/19 CNP and C‑393/20 T.B. and D. have not brought much clarification on forum contractus in cases of assignment. Choice of court on the basis of A25 (such as was at issue in in Ryanair v DelayFix) would not seem to have been on the horizon oddly (the referral decision does not specify why not) and of course the European Commission Proposal for a Regulation on the law applicable to the third-party effects of assignments of claims might have been able to have helped however as Marco Pasque reports on this very day, it has been withdrawn!

In De Bloos [13[ the CJEU held that

‘for the purpose of determining the place of performance within the meaning of Article 5 (now A7(1) Brussels Ia, GAVC] … the obligation to be taken into account is that which corresponds to the contractual right on which the plaintiff’s action is based’.

The question which arises in Case C‑551/24 Deutsche Lufthansa AG v AirHelp Germany GmbH in which the Court held this morning, is whether the dispute at issue concerns the recovery of a claim arising from the assignment agreement  which assigned the claim to claimant, or the contract for the provision of services: in the present case, a contract of carriage by air. (An additional question on A7(5) branch jurisdiction was [30] declared inadmissible for lack of detail given by the referring court).

The confusion among the Polish courts (and they are far from alone!) is a result of the confusion following De Bloos. As I already noted in my review of CJEU Bosworth, it would be good for the Court to clarify whether De Bloos is still good authority, given the many textual changes and case-law considerations of (now) Article 7(1).

[36] the core question is

whether the fact that a claim, arising from the performance of a contract of carriage by air concluded between a consumer and a trader, has been transferred by that consumer to a company specialising in the recovery of air passengers’ claims is such as to preclude the application of the second indent of [A7(1)(b) BIa] in order to determine which court has jurisdiction to hear a claim for compensation brought by the assignee against the air carrier.

[37] (unlike in the case of protected categories), the rule of special jurisdiction laid down A7(1)(b) is not intended to protect the weaker party in a contractual relationship. That that rule was not established in the light of the status of the contracting parties, but is based on the existence of a close connection between the court seised and the contract concerned. In those circumstances, the Court holds that the fact that the consumer’s claim for compensation has been transferred to a trader has no bearing on the application of that rule.

[38]: see similarly in CJEU Ofab and CDC: in the context of a dispute concerning claims relating to tort, delict or quasi-delict, the transfer of claims by the initial creditor cannot, by itself, have an impact on the determination of the court having jurisdiction. [40] A dispute concerning the recovery of a claim arising from the performance of a contract for the provision of services continues to have a close connection (which the court points out is the raison d’être of A7(1)) with the place of performance of the obligation in question, namely the place in a Member State where, under that contract, the services were provided or should have been provided, within the meaning of the second indent of A7(1)(b), even though that claim has been transferred to a third party.

Therefore C-20/21 LOT Airlines comes into play: the place of departure of a flight corresponds to one of the main places of provision of the services which are the subject of that contract and therefore ensures the close connection required by the rules of special jurisdiction set out in A7(1) between that contract and the court which has territorial jurisdiction over that place. The Polish courts appear to have jurisdiction to hear the action in the main proceedings [42] and [44-45}neither the particular features of the assignment agreement at issue nor the absence of a contractual link between the parties to the dispute are such as to call that jurisdiction into question:

First, the fact that, as is apparent from the order for reference, under the terms of the assignment agreement at issue, the assigning consumer does not transfer, under Polish law, his or her procedural rights to the assignee trader is not relevant for the application of the rule of jurisdiction laid down in the second indent of [A7(1)(b)]. That rule is based on the obligation in question, that is to say, the subject matter of the dispute, determined by that of the contract concerned, since the assignment agreement confers standing to bring proceedings solely on the assignee.

Second, as regards the fact that the parties in the main proceedings are not directly bound by a contract, … it should be observed that, in so far as the assignment agreement confers on the assignee the rights enjoyed by the assignor in relation to the carrier and therefore the right to bring proceedings for the recovery of the claim arising from the contract of carriage by air, that fact is also not such as to preclude the application of the rule of jurisdiction laid down in that provision.

The judgment makes much sense. Assignment does not change the nature of the claim nor its forum contractus. This assists the defendant with predictability and it would serve no Brussels Ia-relevant purpose to change the equation for claimant and defendant alike simply because the claim has been assigned.

Geert.