Flux européens

In MF Tel Sarl v Visa Europe Ltd [2023] EWHC 1336 (Ch), Marsh M admirably summarises the extensive authorities both English and CJEU (and almost all of them discussed on this blog) on ‘purely economic damage’, in the case at issue at the applicable law level with a view to identifying overcharging on card transaction services. The claim is non-contractual for claimant operated through a ‘sponsor’, RRS, a London-based bank.

[55] Visa’s primary case is that the direct damage occurred at the time when Visa messaged RRS with transaction amounts that are said to be incorrect. Visa invites the court to follow a line of cases dealing with negligent misstatement. In a case of negligent misrepresentation it is said the damage will occur at the place where the misstatement is received and relied upon (compare the discussion in Kwok v UBS). Visa’s alternative case is that direct damage occurred when RRS failed to collect an Optional Issuer Fee – OIF, as a result of the defendant’s inaccurate messaging, for onward transmission to the claimant in France. [57] On either case the defendant says that damage occurred in England being the “direct” damage resulting from the wrong and that the loss felt ultimately in the claimant’s bank account in France is indirect damage.

the judge [68-5] holds that

where the claim is for the non-receipt of OIFs, the wrong only has a direct economic effect upon the claimant by non-receipt of OIFs. That effect is likely to have been felt by the claimant in France. It is not at all obvious that the effect of the wrong as it resonated in financial terms should be seen as an indirect consequence of the previous events.

The case of course once again shows the intricate difficulty of the (in)direct damage distinction and I agree with Master Marsh  that certainly at the level of an application for strike-out, Visa’s arguments are not convincing to blow the suggestion of French law being the applicable law, out off the water.

Geert.

Failed application to strike out the applicable law part of a claim as being French law
Discussion on applicable law for purely economic damage, A4 Rome II, must go to trial

MF Tel Sarl v Visa Europe Ltd [2023] EWHC 1336 (Ch)https://t.co/AAQRDh4yrM

— Geert Van Calster (@GAVClaw) June 6, 2023

One my of students, Jules Culot, has excellent analysis of the recent Belgium Supreme Court’s turnaround (T BV v S-O GmbH – what is with the anonymisation?!) on Belgium’s rule for dispute resolution in the context of exclusive distribution agreements: see here. I am a great believer in progress via (acknowledged) assimilation and I am happy largely to refer to Jules.

As Jules notes, the Supreme Court has taken a similar approach as the final Court of Appeal ruling in the infamous Unamar case: the granted concessions for exclusive distribution are said primarily to safeguard “private interests” and consequently not to qualify as specific mandatory laws under Article 9(1) Rome I. It is by far certain that for national laws to qualify as lois de police or as the Belgians call it, lois d’application immédiate, they necessarily must safeguard general interests.

With our head librarian, Christoph Malliet, I share the frustration that the appealed judgment of the Antwerp Court of Appeal of 10 March 2021, is not available anywhere – but I shall not start raging about the so 1950s approach to publication of case-law in Belgium: I want to start the week-end later with positive vibes.

Geert.

EU Private International Law, 3rd ed. 2021, 3.88.

Great primer by @TheLegalSmeagol on the Belgian Supreme Court reversing half a century of authority on arbitration and exclusive distribution (re: lois de police, overriding mandatory law) https://t.co/ovCCgkG4M7 pic.twitter.com/JgwSkC8fXR

— Geert Van Calster (@GAVClaw) May 26, 2023

Google Ireland e.a.
Liberté d'établissement
Avocat général Szpunar : des plates-formes comme Google, Meta Platforms et Tik Tok ne peuvent se voir imposer des obligations supplémentaires dans un État membre autre que celui de leur siège que par des mesures prises au cas par cas

Commission / Amazon.com e.a.
Aide d'État
Décisions fiscales anticipatives : selon l’avocate générale Kokott, c’est à tort que la Commission a constaté que le Luxembourg avait accordé des aides d’État illégales à Amazon sous forme d’avantages fiscaux

Comune di Copertino
Libre circulation des personnes
Avocate générale Ćapeta : les États membres peuvent limiter la monétisation des jours de congé annuel payé non pris à la fin de la relation de travail

UFC - Que choisir et CLCV
Rapprochement des législations
Voyages à forfait et pandémie de Covid-19 : une réglementation nationale libérant temporairement les organisateurs de leur obligation de remboursement intégral en cas de résiliation n’est pas compatible avec le droit de l’Union

Austrian Airlines (Vol de rapatriement)
Transport
Pandémie de Covid-19 : un vol de rapatriement organisé dans le contexte d’une mesure d’assistance consulaire ne constitue pas un vol de réacheminement que le transporteur aérien effectif doit offrir aux passagers dont le vol a été annulé

Prestige and Limousine
Liberté d'établissement
La limitation du nombre de licences de services de véhicule de tourisme avec chauffeur dans l’agglomération de Barcelone est contraire au droit de l’Union

Aprile et Commerciale Italiana / EUIPO - DC Comics (Représentation d’une chauve-souris dans un cadre ovale)
Propriété intellectuelle et industrielle
Logo de Batman : les preuves présentées au Tribunal ne suffisent pas à démontrer que la marque de l’Union européenne représentant une chauve-souris dans un cadre ovale était dépourvue de caractère distinctif à la date du dépôt de la demande d’enregistrement

Shakutin / Conseil
Relations extérieures
Mesures restrictives à l’encontre de la Biélorussie : le Tribunal rejette le recours introduit par M. Aleksandr Vasilevich Shakutin contre les mesures restrictives qui lui ont été imposées

O. G. (Mandat d’arrêt européen à l’encontre d’un ressortissant d’un État tiers)
Espace de liberté, sécurité et justice
La possibilité d’un refus d’exécution d’un mandat d’arrêt européen pour que la peine soit exécutée dans l’État membre de résidence doit également s’appliquer aux ressortissants de pays tiers

In Athenian Brewery and Heineken v Macedonian Thrace Brewery ECLI:NL:HR:2023:660, the Dutch Supreme Court is likely to refer to the CJEU on the approach to ‘relatedness’ in competition law cases, required to substantiate anchor jurisdiction. It is the Greek authorities that have held that  Heineken’s Greek daughter, in which it held close to 99% of shares, had infringed competition law.

Competition law works with an assumption of attributability of daughter undertakings’ infringements to their mother corporation: see CJEU ENI and recently C-377/20 SEN /AGCM. The SC now should like to ask the CJEU how that assumption relates to Article 8(1) Brussels Ia’s anchor defendant mechanism, which requires claims to be ‘closely related’, whether the case needs to be distinguished from CJEU CDC seeing as it is the Greek, not the EU competition authorities which held the infringement, and what impact the issue has on the assessment required per CJEU Universal Music and Kolassa.

An impending reference of note.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.13.1.

Competition law, jurisdiction
Dutch SC minded to refer to #CJEU on role of EU competition law's presumption of mother corp involvement in daughter's abuse of dominant position, for purposes of A8(1) BIa's anchor defendant mechanism, 'closely connected'https://t.co/Mum1uuMWzT

— Geert Van Calster (@GAVClaw) April 28, 2023

In ECLI:NL:GHAMS:2023:887 (parties names anonymised given the nature of the case; husband and wife have been divorced under civil law since 2018; the ex-husband is domiciled and lives in France; the ex-wife is also domiciled in France yet is habitually resident in Israel) the courts at Amsterdam held upon appeal that the mere rabbinical (Conference of European Rabbis) instruction for a husband to appear before the Amsterdam Beth Din so as to grant get to his wife, does not suffice to make Amsterdam either locus delicti commissi or locus damni.

The French courts have already granted damages to the wife on the basis of the husband’s continued refusal to engage with the Beth Din. Authority referred to viz A7(2) BIa includes CJEU Vereniging van Effectenbezitters, and leads the court to conclude that Amsterdam is not a new locus delicti commissi viz the husband’s continued refusal to engage with the religious courts, but rather a continuation of the same delicti commissi which led to the French allocation of damages [3.11]. [3.12] the wife’s Mozaik reference to CJEU Shevill is not accepted with reference to the possibility under Jewish law of other Beth Dins to have jurisdiction in the case.

On locus damni and per CJEU Universal Music, I understand the reluctance to identify Amsterdam as locus damni given the lack of links between the case and the parties, to The Netherlands. Per CJEU Ofab I would suggest however that a different outcome on locus delicti commissi could have been possible.

Geert.

EU Private International Law, 3rd ed. 2021, 2.432 ff.

Interesting judgment Amsterdam
A7(2) Brussels Ia

Rabbinical instruction for husband to appear before Amsterdam Beth Din to grant Get to his wife, does not suffice to make A'dam locus delicti commissi
No locus damni in A'dam, eitherhttps://t.co/hClfbCYVwe #lawandreligion

— Geert Van Calster (@GAVClaw) April 28, 2023

Commission / Pologne (Indépendance et vie privée des juges)
Principes du droit communautaire
État de droit : la réforme de la justice polonaise de décembre 2019 enfreint le droit de l’Union

Prise de fonctions de M. Vittorio Di Bucci, nouveau greffier du Tribunal

A late post on the Amsterdam courts’ injunction, in interlocutory proceedings, ordering Hammy Media to remove secretly filmed amateur adult content. The judgment will be of interest to both privacy lawyers and jurisdictional aficionados.

The court is not too bothered with a neat and exhaustive analysis of the jurisdictional issue. This could have brought it to a discussion of CJEU e-Date, Bolagsupplysningen, etc,  removal orders as also applied in the context of the right to be forgotten, and of course the complex relationship between Brussels Ia and the GDPR when it comes to jurisdiction.

Instead, it identifies The Netherlands as a Member State with full jurisdiction as locus delicti commissi (ldc),  seemingly arguing [4.2] (it reasons are a bit muddled) that the use of a specific internet domain name to target Dutch customers, and the use of (whether not automatically translated) Dutch on that site, makes The Netherlands the (or perhaps: ‘a’?) ldc, which in one breath it mentions as meeting with the foreseeability requirement that is part of the general DNA of Brussels Ia. It supports its jurisdiction with a refernece to A79 GDPR’s ‘habitual residence’ of the data subject’s gateway as I discuss here.

Except for that material for which Hammy Media can show consent of all persons involved, the court then bans distribution of the material, worldwide as far as those resident in The Netherlands is concerned, and in The Nethelrands as far as the data subjects not resident in The Netherlands is concerned.

It does not specify why it introduces that distinction, although it is clearly linked to jurisdictional limitations it feels itself limited to.

Geert.

EU Private International Law, 3rd ed. 2021, 2.256.

Adult website ordered to remove secretly filmed and amateur nude content, unless it can show consent of all involved

Worldwide removal viz NL domiciled, NL removal viz non-NL doms

Jurisdiction based on A7(2) Brussels IA and A79 #GDPR

SEOK v Hammy Mediahttps://t.co/67YHgvCt5L

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

Gilles Cuniberti reviewed the CJEU’s judgment in C‑264/22 FGTI v Victoria Seguros here, and I agree the judgment in convoluted terms replies to a fairly obvious question. Obvious, for with Giles, I would suggest the

‘result of the subrogation is clearly to transfer to the Fund the rights of the victims. Subrogation does not establish new rights. It merely transfers existing rights from one person (the victim) to another (here the Fund).’ (The Fund is the French public body compensating the victims of certain torts, whereupon it is subrogated in the victim’s rights).

The CJEU much more verbosely comes to the same conclusion, without making reference to the potential complication signalled by Giles, with respect to a likely or at the least potential French judgment eg confirming a relevant settlement, which could lead to novatio arguments.

Geert.

#CJEU C‑264/22 FGTI v Victoria Seguros
Rome II
Lex causae (incl for rules on limitation) for action of third party subrogated to rights of injured party, v person who caused the damage is, in principle, that of the country in which that damage occurshttps://t.co/YYFUSlutB9

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

This post merely to cross-refer to my thoughts on Pikamäe AG’s Opinion in Joined Cases C 73/22P and C 77/22 P Grupa Azoty S.A. et al v European Commission, over at prof Peers’ EU Law Analysis blog.

Geert.

 

Infrastructure Services Luxembourg SARL ea v Kingdom of Spain [2023] EWHC 1226 (Comm) adds to the Smorgasbord of ECT ICSID (and other) award enforcement issues which I also signalled here, and links of course to CJEU Achmea, Komstroy and the like. (Note this point does not discuss the disclosure issues raised).

The Spanish Government is of course duty bound to fight all these awards (around 60 cases have been brought against it), and it is fighting the awards on many fronts (first by advocating for a different interpretation of the FET – Fair and Equitable Treatment standard in the ECT, further by trying internal ICSID or other review processes; subsequently by trying to have the awards annulled on a variety of grounds in the courts in ordinary of the curial seat; finally by resisting enforcement in the many jurisdictions where investors try to have the awards enforced.

The case at issue, in which Spain argues against registration of the relevant ICSID award, [56] deals with adjudicative jurisdiction: not jurisdiction for enforcement (compare the Australian decision in [2023] HCA 11, were recognition and enforcement were granted, but not execution). Fraser J first discusses Spain’s sovereign immunity argument, aptly summaring [57] ff the CJEU authority in Achmea and Komstroy. [67] he holds

Spain argued before me the questions of EU law set out above in a manner that elevated the status of these decisions of the CJEU, almost as though they were decisions of an over-arching international court that must bind all nations. For example, Spain referred to what it called “the international law aspects of the EU legal order” and also stated in its supporting documents for the application that “EU law is an inextricable part of international law.” There is no doubt that the law of the EU is correctly described as being international law, as self-evidently it governs relations between Member States which have collectively entered into international treaty obligations under the EU Treaties including the TFEU. Those treaty obligations have international effect and the institutions of the EU have primacy over domestic organs in certain important respects. However, as the claimants point out, this argument ignores the other aspects of international law that requires observance of existing express treaty obligations, and it also ignores the effect of Spain having pre-existing treaty obligations under other treaties such as the ICSID Convention and the ECT. The EU treaties do not trump these, nor do they override the relevant domestic law mechanism in the United Kingdom.

That is different for the UKSC authority in Micula. The judge here [79] concludes his recollection of the Micula principle with the observation that

The availability of defences to a foreign state faced with an application to register an arbitral award under the ICSID Convention is far narrower than those that would be available if an award were being enforced under the New York Convention.

[89] ff he further explains that the narrow set of grounds for refusal (immunity and, although he does not think these actually qualify as exception, lack of a written agreement to arbitrate and the validity of the Award itself) of an ICSID award, left open by the Supreme Court in Micula, and rejects them all. He does in my view considers this set too narrowly.

His conclusion [80]:

with the greatest of respect to the CJEU, it is not the ultimate arbiter under the ICSID Convention, nor under the ECT, and the difficulties in which Spain finds itself does not assist it here, given the United Kingdom’s own treaty obligations under the ICSID Convention, which are owed to all signatories of the ICSID Convention. The domestic mechanism established under the 1966 Act was enacted specifically in order to comply with these.

Obiter [81] ff he suggests the VCLT would lead to the same result, concluding on that point [87]

I consider that there is a clear conflict between the EU Treaties, as their application to international arbitration involving Member States has been decided by the CJEU and explained by Mr Baloch, and each (or more accurately both) of the ECT or the ICSID Convention. If intra-EU arbitration is contrary to EU law principles governing either primacy of the CJEU or EU principles generally, then this must (and can only) arise from the EU Treaties themselves. I cannot see how it can arise in any other way. Therefore, if that is the case, there must be a conflict. That conflict does not mean that the latter EU law principles as enunciated by the CJEU remove Spain from the ambit and scope of the ECT, or from the ICSID Convention. Spain’s arguments, as either amplified or further explained in submissions (including a letter to the court after distribution of the draft judgment) was that there was a conflict between articles 267 and 344 of the TFEU on the one hand, and article 26 of the ECT on the other. In those circumstances, Spain maintained that this conflict should be resolved in favour of the articles of the TFEU by what it called “the treaty conflict rule of EU primacy”. However, in my judgment that is simply a different way of Spain maintaining that both the ECT and the ICSID Convention – both of which clearly have signatories who are not Member States of the EU – should be interpreted by ignoring their clear terms regarding dispute resolution, in preference to granting the decisions of the CJEU complete primacy over those pre-existing treaty obligations of all states. I do not accept that is the correct approach, and I do not consider that such a result can be achieved by applying international law principles to conflicting treaty provisions.

His ‘overall conclusions’ on the EU law questions, are [88]

Question 1. Achmea arose out of the BIT between the Slovak Republic and Netherlands. Does Achmea‘s reasoning also apply to the ECT?

Answer: The reasoning in Achmea probably does also apply to the ECT, in terms of the applicability of EU law, as considered by the CJEU. This means that the CJEU would be most likely to reach the same conclusion on any EU law question referred to it under the ECT as it did under the BIT in the Achmea case. However, these are matters of EU law only. The conclusion does not “apply to the ECT” in the sense contended for by Spain. That conclusion is a purely EU law issue.

Question 2. Do TFEU Articles 267 and 344, as interpreted by the CJEU, have primacy over Article 26 of the ECT as a matter of international law?

Answer: No, they do not. Even if they did, this would go to the jurisdiction of the ICSID arbitral tribunal, and the ICSID Convention makes clear that this is a matter that is reserved to, and can only be resolved by, the procedure set down in the Convention, and not domestic law. This is helpfully stated in the commentary by Professor Schreuer on Article 54 which stated that “A domestic court or authority before which recognition and enforcement is sought is restricted to ascertaining the award’s authenticity. It may not re-examine the ICSID tribunal’s jurisdiction. It may not re-examine the award on the merits. Nor may it examine the fairness and propriety of the proceedings before the ICSID tribunal.” This passage was expressly approved by the Supreme Court in Micula at [68] which definitively states the approach under English law to this issue.

The answers to the series of questions that followed at sub-issues 2(a) to (e) are therefore of academic interest only and need not be addressed on this application.

[111] ff upon claimant’s appeal to these cases, the judge considers many of the cases I refer to here, and finds them largely to plea in claimant’s favour.

A stinging rebuke follows [122-123]

What Spain’s main EU law argument amounts to is this, at its heart. Spain accepts that it is a party to the ICSID Convention; it accepts that it is a party to the ECT. It freely acceded to both of those treaties. There is no doubt that the ECT expressly incorporates the ICSID arbitration provisions within it, adopting international arbitration to resolve disputes between Contracting Parties (which includes Spain) and private international investors, who are resident or domiciled in other countries. Yet Spain relies upon its membership of the EU, the EU Treaties that created that union, and the strictures imposed on those Member States by the CJEU’s rulings on the EU Treaties. These rulings have determined – again, outlined here only in summary – that there can be no valid arbitration provision adopted by Member States which grants jurisdiction to any arbitral tribunal that may touch upon matters of EU law. This is due to the primacy of the CJEU to determine all such EU law matters. Therefore Spain argues that there can be no jurisdiction, even for a properly constituted ICSID arbitral tribunal, to determine any dispute under the ECT between Spain and an investor from any other state. This is the case regardless of whether that investor is within, or without, another Member State, although it runs both lines of argument in the alternative. It also argues that any ICSID award, such as the Award in this case, must therefore have been reached without jurisdiction and so cannot be a valid award; and/or that it has immunity from recognition in the courts of the United Kingdom for what may broadly be described as the same, or similar, reasons.

The logical consequence (or extension) of this argument for it to be correct is that these decisions of the CJEU must be taken as binding all the parties to the ECT and to the ICSID Convention – whether Member States of the EU or otherwise – and take priority over all other treaty obligations entered into by any other state, even those obligations assumed by treaty prior to the creation of the EU. What this would mean, were Spain to be correct (and I am confident that it is not correct) is that by reason of the terms of the EU Treaties, and by reason of the rulings of the CJEU and its supremacy over EU law matters, the EU and the CJEU would have unilaterally changed – if not removed – all the existing treaty obligations of all the Contracting Parties to the ICSID Convention. I know of no framework of international law in which such a position could be correct. I would go further and observe that it simply cannot be correct. It would mean that the existing treaty obligations of any Contracting Party to the ICSID Convention would have been changed, without any intention or involvement on the part of that Contracting Party, a sovereign nation, as a result of rulings by the CJEU. That is not a conventional analysis of how international obligations work, and I reject Spain’s arguments. This completes my consideration of what I consider is the longer route.

I myself have argued, based on the ECT’s travaux, that the applicable law clause of Article 26 ECT includes the application of EU (State Aid) law and must be so applied by arbitration Panels applying the ECT. However we are yet to hear from the Panel in that particular case.  I would suggest that is a neater way to go about the issue.

Geert.

1/2 Unsuccessful application to set aside registration of #ICSID Energy Charter Treaty #ECT award

Foreign Sovereign Immunity (and impact on jurisdiction) per CJEU Achmea; non disclosure

Infrastructure Services Luxembourg SARL ea v Kingdom of Spain [2023] EWHC 1226 (Comm)

— Geert Van Calster (@GAVClaw) May 25, 2023

In Boettcher v Xio (UK) LLP & Ors [2023] EWHC 801 (Comm)  Eggers DJ ultimately rejected ia a forum non conveniens challenge viz a claim for damages for misrepresentations allegedly made to induce claimant to enter into a contract of employment with the First Defendant. In his decision he considered ia the role to play for the application of the (retained) Rome II Regulation.

[109] There was substantial dispute between the parties as to whether the applicable law was English law in accordance with A12(1) Rome II (culpa in contrahendo), alternatively A4(1) Rome II  (on claimant’s case), or German law in accordance with A(1) (on defendants’ case).

[110] The judge holds there is a good arguable case (with final judgment on lex causae to be discussed at trial [110](4)) that English law is the applicable law, however I do not find his arguments very convincing. [110](1)

the damages claimed by Dr Boettcher for the alleged misrepresentations arose as a result of his entering into the contract of employment with Xio UK, in particular his claims for loss of earnings and damages for mental distress and/or disappointment and/or reputational damage. It was therefore his entry into the contract of employment with Xio UK, and his subsequent employment with Xio UK, in reliance on the alleged misrepresentations which constituted the relevant damage.

This, I would suggest, is plainly wrong. The alleged misrepresentations are the delictus committi; the formation of the contract (held with reference to Dicey 35-026 to have taken place in England) is the fallout of the delict. Yet it does not constitute its ‘direct damage’. The damage, as also seemingly formulated in the claim, are loss of earnings and damages for mental distress and/or disappointment and/or reputational damage. Seeing as claimant’s earlier employment for which he left currently litigated one, was overwhelmingly connected to Germany, where he also seems to have the core of his financial interests (the location of claimant’s bank account is too readily dismissed [110](2) as not being relevant), Germany would seem to have a lot going for it in terms of the lex causae, or at the very least a Mozaik of German (for loss of earnings) and English law (for mental distress), which I do not see readily displaced by English law as one applicable law under Article 4(3) Rome II.

Article 12’s culpa in contrahendo rule is correctly held [110](3) not to apply to relevant parties.

There are other factors that led to the forum non challenge not succeeding, however I do indeed think that the applicable law issue requires further consideration at trial.

Geert.

Failed jurisdictional challenge ia on forum non conveniens grounds, with consideration ia of Rome II applicable law

Boettcher v (Xio (UK) LLP & Ors [2023] EWHC 801 (Comm)https://t.co/dE6jE9mJfV

— Geert Van Calster (@GAVClaw) May 3, 2023