Flux européens

Article 1 of the following decision confirms the participation of Ireland to e-Codex: Commission Decision (EU) 2023/2099 of 28 September 2023 confirming the participation of Ireland in Regulation (EU) 2022/850 of the European Parliament and of the Council on a computerised system for the cross-border electronic exchange of data in the area of judicial cooperation in civil and criminal matters (e-CODEX system), OJEU L 241, 29.9.2023, p. 144

Source: http://data.europa.eu/eli/dec/2023/2099/oj

X v Y (*grumbles his usual grumble about anonymisation*) ECLI:NL:GHDHA:2023:1759  is an interesting judgment discussing, yet not determining, the extent of Rome I’s Article 18’s ‘burden of proof’ provision. Clearly the discussion has echoes for the similar provision in Article 22 Rome II.

Article 18 Rome I

Burden of proof

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

2.   A contract or an act 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 11 under which that contract or act is formally valid, provided that such mode of proof can be administered by the forum.

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.

The court first of all [5.6] justifiably confirms that A24(1) BIa does not stand in the way of its jurisdiction, which parties agreed to in a choice of court clause per A25 BIa: the claim concerns monies allegedly still owed on the transfer of a share of ownership in German real estate. It does not have rights in rem in that property as the object of the proceedings.

Choice of law was made for German law. The A18 Rome I issue is triggered by a declaration made by the claimant in the main proceedings, in front of a German notary. Claimant argues that statement was made to speed up the entry of the sale in the German land register, not to discharge the defendant in the main proceedings of the monies owed. The court [5.9] holds that German law as a result of A18 only determines the burden of proof and evidentiary value of that statement, to the degree German law has specific rules relating to the law of obligations generally or for the specific contract at issue.

On the facts, the court [5.16] holds that it need not determine the lex causae issue for evidentiary value under the Dutch ‘antikiesregel’ ―meaning the court being absolved of the proprio motu obligation to determine applicable law if the alternatives lead to the same result― for under neither laws the notarial statement has discharging effect. I for one am not convinced that the antikiesregel complies with the effet utile of EU private international law, but that is a different matter.

Geert.

Extent of A18 Rome I's burden of proof being subject to lex causae, v procedure being subject to lex fori (here: sale of ownership of German real estate, subject to German law as lex voluntatis)

Den Haag court in appeal, X v Y ECLI:NL:GHDHA:2023:1759 https://t.co/SXDUgdORYB

— Geert Van Calster (@GAVClaw) September 19, 2023

Changement du mode de publication du Journal officiel de l’Union européenne : comment consulter les informations relatives aux affaires introduites devant la Cour de justice ou le Tribunal ou clôturées par ces juridictions à partir du 1er octobre 2023 ?

La Quadrature du Net e.a. (Données personnelles et lutte contre la contrefaçon)
Rapprochement des législations
Avocat général Szpunar : la conservation et l’accès à des données d’identité civile couplées à l’adresse IP utilisée devraient être permis lorsque ces données constituent le seul moyen d’investigation permettant l’identification d’auteurs d’infractions exclusivement constituées sur Internet

Ryanair / Commission
Aide d'État
Aides d’État en faveur de SAS pendant la pandémie de Covid-19 : la Cour rejette définitivement les recours de Ryanair concernant les garanties de prêts mises en place par la Suède et le Danemark en avril 2020

Commission / Royaume-Uni (Marquage fiscal du gazole)
Fiscalité
La Cour de justice condamne le Royaume-Uni à une somme forfaitaire de 32 millions d’euros en ce qu’il n’a pas interdit l’utilisation de carburant marqué aux fins de la navigation de plaisance privée dans le délai imparti par la Commission

Espagne / Commission
Aide d'État
Le Tribunal annule la décision de la Commission déclarant illicite le régime fiscal espagnol de déduction des prises de participations indirectes dans des sociétés étrangères

Valve Corporation / Commission
Concurrence
Jeux vidéo en ligne : le Tribunal confirme que le géoblocage de clés d’activation pour la plate-forme Steam a enfreint le droit de la concurrence de l’Union

Entrée en fonctions de deux nouveaux membres du Tribunal de l’Union européenne
Entry into office of two new Members of the General Court of the European Union

In C-632/21 JF and NS v Diamond Resorts Europe Limited (Sucursal en España) (‘Diamond Resorts Europe) the CJEU has held that Article 6(2) Rome I on consumer contracts is exhaustive, preventing a consumer to shop for more favourable laws different from those of their habitual residence.

Applicants are British consumers resident in the UK who concluded, on 14 April 2008 and 28 June 2010 respectively, two timeshare contracts with Diamond Resorts Europe, an English company operating as a branch in Spain of the Diamond Resorts group. The accommodation subject to the timeshare is spread across the EU with focus on Spain. Applicants request invalidity of the contracts on the basis of the Spanish timeshare laws, which implement the relevant EU law at issue. They seize a Spanish court, claiming the proceedings have as their object a right in rem in immovable property (the jurisdictional echo of C-73/04 Klein v Rhodos Management already should have made them think otherwise imho). Defendants argue the claim concerns a right in personam which in consequence of Rome Convention’s and /or the Rome I Regulation’s provisions on consumer contracts, are subject to the laws of the habitual residence of the consumers, i.e. English law.

The CJEU first of all holds (para 55) that as a consequence of Articles 66(a) and 126 of the UK-EU Withdrawal Agreement, the Rome Regulation applies to one of the contracts only, the other one being subject to the Rome Convention. It also confirms (para 52) that despite the contracts having been concluded between UK parties, the contract is clearly ‘international’ given the presence of foreign elements.

Next, it confirms without much ado (para 70 ff) the contracts as consumer contracts, notes lex voluntatis as being English law, and in consequence of the consumer title, that lex voluntatis being the same lex contractus as would have applied in the absence of choice.

Importantly, with reference mutatis mutandis to CJEU Schlecker, and a clear hint as to the future reply in VK v N1,

“An interpretation whereby it would be possible to derogate from the conflict-of-law rules laid down by the Rome I Regulation for determining the law applicable to consumer contracts, on the ground that another law would be more favourable to the consumer, would necessarily seriously undermine the general requirement of predictability of the applicable law and, therefore, the principle of legal certainty in contractual relationships involving consumers” (para 75)

A further question on Article 9 overriding mandatory provisions is declared inadmissible for lack of any detail on the nature of the national laws, given by the referring court.

Geert.

New #CJEU judgment applicable law Rome I, re timeshare agreements and consumer law
C-632/21 Diamond Resorts Europehttps://t.co/IBmyg43pzM

— Geert Van Calster (@GAVClaw) September 14, 2023

ADDE e.a.
Espace de liberté, sécurité et justice FRON ASIL J-AI
Réintroduction de contrôles aux frontières intérieures : la directive « retour » s’applique à tout ressortissant de pays tiers entré sur le territoire d’un État membre sans remplir les conditions d’entrée, de séjour ou de résidence

Juan
L’interdiction de la double incrimination ne semble pas s’opposer à l’exécution d’un mandat d’arrêt européen contre le responsable d’un système pyramidal frauduleux mis en place en Espagne et au Portugal
The prohibition of double jeopardy does not appear to preclude the execution of a European arrest warrant against the person responsible for a fraudulent pyramid scheme set up in Spain and in Portugal

Belgique / Commission
Aide d'État
Tax rulings : les exonérations fiscales accordées par la Belgique à des sociétés faisant partie de groupes multinationaux constituent un régime d’aides illicite

The Court of Justice delivered a few days ago (14 September 2023) its judgment in case C‑632/21 (JF, NS v Diamond Resorts Europe Limited (Sucursal en España), Diamond Resorts Spanish Sales SL, Sunterra Tenerife Sales SL), which is about the applicability of Rome I and its Article 6:

“1. The provisions of [Rome I] are applicable, in the context of a dispute before a court of a Member State, to contracts the two parties of which are United Kingdom nationals, to the extent that those contracts have a foreign element.

2. Article 6(2) of Regulation No 593/2008 must be interpreted as meaning that:

–        where a consumer contract fulfils the requirements laid down in Article 6(1) of that regulation, the parties to that contract may, in accordance with Article 3 of that same regulation, choose the law applicable to that contract, provided, however, that that choice does not result in depriving the consumer concerned of the protection afforded to him or her by provisions that cannot be derogated from by agreement by virtue of the law which, in the absence of choice, would have been applicable on the basis of Article 6(1), which provides that such a contract is to be governed by the law of the country where the consumer has his or her habitual residence;

–        in view of the mandatory and exhaustive nature of that same Article 6(2), it is not possible to derogate from that provision for the benefit of legislation allegedly more favourable to the consumer”.

Source: https://curia.europa.eu/juris/document/document.jsf?mode=DOC&pageIndex=0&docid=277406&part=1&doclang=EN&text=&dir=&occ=first&cid=94681

The Court of Justice delivered a few days ago (14 September 2023) its judgment in case C‑821/21 (NM v Club La Costa (UK) plc, sucursal en España, CLC Resort Management Ltd, Midmark 2 Ltd, CLC Resort Development Ltd, European Resorts & Hotels SL), which is about Articles 18 and 63 Brussels I bis as well as Articles 3 and 6 Rome I:

“1. Article 18(1) of [Brussels I bis] must be interpreted as meaning that the expression ‘other party to a contract’, in that provision, must be understood as referring only to the natural or legal person who is a party to the contract in question and not to other persons, not parties to that contract, even if they are connected with that person.

2. Article 63(1) and (2) of Regulation No 1215/2012 must be interpreted as meaning that the determination, in accordance with that provision, of the domicile of the ‘other party to a contract’, within the meaning of Article 18(1) of that regulation, does not constitute a limitation of the choice which the consumer may make under that Article 18(1). In that regard, the clarifications provided in Article 63(2) concerning the concept of ‘statutory seat’ constitute autonomous definitions.

3. Article 3 of [Rome I] must be interpreted as not precluding a choice-of-law clause in the general terms and conditions of a contract or in a separate document to which that contract refers and which has been provided to the consumer, provided that that clause informs the consumer that he or she enjoys, in any event, under Article 6(2) of that regulation, the protection afforded to him or her by the mandatory provisions of the law of the country in which he or she has his or her habitual residence.

4. Article 6(1) of Regulation No 593/2008 must be interpreted as meaning that where a consumer contract fulfils the requirements set out in that provision and in the absence of a valid choice of law applicable to that contract, that law must be determined in accordance with that provision, which may be relied on by both parties to that contract, including the professional, notwithstanding the fact that the law applicable to the contract in accordance with Articles 3 and 4 of that regulation may be more favourable to the consumer”

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=277408&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=1961282

The Court of Justice delivered a few days ago (14 September 2023) its judgment in case C‑393/22 (EXTÉRIA s.r.o. v Spravime, s.r.o.), which is about Article 7(1)(b) Brussels I bis.

Decision: “Article 7(1)(b) [Brussels I bis] must be interpreted as meaning that a contract to enter into a future contract relating to the future conclusion of a franchise agreement which provides for an obligation to pay a contractual penalty based on non-performance of that contract to enter into a future contract, the breach of which serves as a basis for a claim, does not fall within the concept of a contract for the ‘provision of services’ within the meaning of that provision. In such a case, jurisdiction over a claim on which that obligation serves as a basis is determined, in accordance with Article 7(1)(a) of that regulation, by reference to the place of performance of that obligation”.

Facts: “The applicant in the main proceedings, which provides consultancy services in the field of occupational safety and health, and the defendant in the main proceedings concluded, on 28 June 2018, a contract to enter into a future contract relating to the future conclusion of a franchise agreement (‘the contract to enter into a future contract’) which would enable the defendant in the main proceedings to operate and manage franchised branches of the applicant in the main proceedings in Slovakia. That contract to enter into a future contract contained, in addition to the obligation to conclude that contract in the future, certain contractual terms and conditions and an undertaking on the part of the defendant in the main proceedings to pay an advance of EUR 20 400, exclusive of value added tax, and, in the event of failure to comply with that obligation, a contractual penalty equal to the amount of that advance (‘the contractual penalty’).

6 That advance, the purpose of which was not only to guarantee that obligation but also to preserve the confidentiality of all the information contained in that contract to enter into a future contract relating to the franchise concept of the applicant in the main proceedings, had to be paid within 10 days of the signing of that contract to enter into a future contract. In addition, the latter gave the applicant in the main proceedings the right to withdraw if the defendant in the main proceedings did not pay it the agreed fee within the prescribed period.

7 The contract to enter into a future contract provided for the application of Czech law, without any agreement on jurisdiction having been concluded.

8 Alleging that the defendant in the main proceedings had failed to fulfil its obligation to pay the advance in question, the applicant in the main proceedings withdrew from the contract to enter into a future contract and claimed payment of the contractual penalty.

9 To that end, it brought a European order for payment procedure before the Okresní soud v Ostravě (District Court, Ostrava, Czech Republic).

10 By order of 17 December 2020, that court dismissed the plea of lack of jurisdiction of the Czech courts raised by the defendant in the main proceedings and held that it had jurisdiction to hear the dispute at issue on the basis of Article 7(1)(a) of the Brussels I bis Regulation, since that dispute concerned the performance of an obligation, within the meaning of that provision, namely the obligation to pay the contractual penalty, which had to be performed at the place where the applicant in the main proceedings had its registered office.

11 In the appeal against that order, the defendant in the main proceedings invoked the jurisdiction of the Slovak courts on the ground that the obligation secured by that contractual penalty, which admittedly had its source in the contract to enter into a future contract, was nevertheless linked to the place of production and delivery of the goods under the franchise agreement which was to be concluded.

12 By an order of 16 February 2021, the Krajský soud v Ostravě (Regional Court, Ostrava, Czech Republic), as the court of appeal, upheld the decision at first instance, holding that the subject matter of the action was the right to payment of the contractual penalty on account of non-compliance, by the defendant in the main proceedings, of the terms of the contract to enter into a future contract and was therefore not related to the production or delivery of goods, so that Article 7(1)(b) of the Brussels I bis Regulation did not apply. Accordingly, jurisdiction should be determined in accordance with Article 7(1)(a) of that regulation, under which the court having jurisdiction is the court for the place of performance of the obligation in question, and that place must be determined in accordance with the law of the court seised, in the present case Czech law.

13 The defendant in the main proceedings brought an appeal on a point of law against that order before the Nejvyšší soud (Supreme Court, Czech Republic), the referring court, claiming that the nature of the right to payment of the contractual penalty had not been correctly assessed.

14 Referring to the Court’s settled case-law on the interpretation of the concept of ‘matters relating to a contract’ (judgments of 17 June 1992, Handte, C‑26/91, EU:C:1992:268, paragraph 15, and of 15 June 2017, Kareda, C‑249/16, EU:C:2017:472, paragraph 30), that court concludes that the dispute before it, concerning entitlement to payment of the contractual penalty, has its origin in the contract to enter into a future contract, so that that dispute falls within the concept of ‘matters relating to a contract’ within the meaning of Article 7(1) of the Brussels I bis Regulation.

15 Since, according to that court, that right is not linked to the production or delivery of goods, the application of the first indent of Article 7(1)(b) should be ruled out from the outset.

16 It is then necessary to determine whether it is not a right relating to a ‘provision of services’ within the meaning of the second indent of Article 7(1)(b) thereof.

17 The referring court points out that there are two possible solutions for the purposes of determining the court with international jurisdiction, namely one would be to classify the contract to enter into a future contract as an autonomous contract, and the other would be to determine the nature of the rights resulting from the contract to enter into a future contract on the basis of the nature of the contract to be concluded.

18 In the light of the Court’s case-law, the mere conclusion of a contract to enter into a future contract does not constitute a provision of services, within the autonomous meaning of EU law as a contract involving the performance of an activity by means of positive acts for the benefit of another person in return for remuneration (see, to that effect, judgments of 23 April 2009, Falco Privatstiftung and Rabitsch, C‑533/07, EU:C:2009:257; of 14 July 2016, Granarolo, C‑196/15, EU:C:2016:559; and of 25 March 2021, Obala i lučice, C‑307/19, EU:C:2021:236), so that the Nejvyšší soud (Supreme Court) is inclined to conclude that that contract to enter into a future contract does not fall within the scope of the second indent of Article 7(1)(b) of the Brussels I bis Regulation.

19      Consequently, in accordance with Article 7(1)(c) thereof, according to which Article 7(1)(a) applies if Article 7(1)(b) does not apply, the court with jurisdiction should be determined by reference to the place of performance of the obligation in question.

20 In so far as the Court has not yet expressly addressed the question whether a pactum de contrahendo can be classified as a ‘contract for services’, there is reasonable doubt as to the correct interpretation of Article 7(1)(b) of the Brussels I bis Regulation.

21 In those circumstances, the Nejvyšší soud (Supreme Court) decided to stay proceedings and to refer the following question to the Court for a preliminary ruling:

‘Must Article 7(1)(b) of [the Brussels I bis] Regulation be interpreted as meaning that the concept “contract for the provision of services” also includes a contract to enter into a future contract (pactum de contrahendo), in which the parties undertook to enter into a future contract that would be a contract for the provision of services, within the meaning of that provision?’”

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=277414&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=2440337

NADA e.a.
Principes du droit communautaire PDON
Lutte contre le dopage et protection des données : l’avocate générale Ćapeta considère qu’une autorité nationale de lutte contre le dopage qui publie sur Internet des données à caractère personnel d’un sportif professionnel dopé ne viole pas le RGPD 

TGSS (Refus du complément de maternité)
Discrimination fondée sur le sexe en Espagne : les pères de deux enfants ou plus contraints d’aller en justice pour bénéficier d’un complément à leur pension d’invalidité ont droit à une indemnisation supplémentaire

Tuk Tuk Travel
Rapprochement des législations PROT
Résiliation de voyages à forfait en cas de circonstances exceptionnelles : une juridiction nationale peut, sous certaines conditions, informer d’office le voyageur de son droit de résiliation sans frais

Volkswagen Group Italia et Volkswagen Aktiengesellschaft
Espace de liberté, sécurité et justice
Le principe ne bis in idem s’applique aux sanctions infligées en matière de pratiques commerciales déloyales qualifiées de sanctions administratives de nature pénale