Flux européens

In FX Claims v Natwest Markets ECLI:NL:RBAMS:2023:1789, the first instance court at Amsterdam has rejected jurisdiction against the non-Dutch incorporated defendants (from the UK, the US, and Switserland) in a follow-on cartel damages case triggered by the European Commission’s decisions re manipulation of Forex Trading (known as Three Way Banana Split, Essex Express, and Sterling Lads, after the chatrooms in which the rigging was organised).

Stichting FX Claims was established by the US law firm that acts as third party litigation funder.

[6.3] the jurisdictional analysis takes place under Brussels IA for the Dutch-incorporated anchor defendant, Lugano II (referred to by the court as EVEXII) for the Swiss-incorporated defendant, and residual Dutch rules for all the others. However other than for the anchor defendant, the test is always the same (Dutch residual PIL instructs (see the Dutch Supreme Court in ‘Moldavia’) the courts to assess the claims using EU rules and CJEU authority): whether the claims against all defendants are so closely connected so that the sound administration of justice suggests it is expedient to hear them together, unless the claim is solely brought for the purpose of taking the defendant concerned away from their natural, domicile jurisdiction. Claimant resorts ia to the economic unit theory from EU competition law (see eg CJEU ENI) to support its anchoring unto a Dutch corporate vehicle of Natwest.

However [6.19] the Dutch Natwest SPV at the time of the infringements was not a direct daughter of the Natwest vehicle to whom the EC Decisions were addressed, and the claimant’s attention to the anchor defendant’s activities in their claim, is far underdeveloped [6.20]. With both the legal and the factual circumstances of anchor defndant being so radically different to those of the other defendants, the court finds [6.23] that the claims against it or not ‘closely related’ let alone so closely related so as to trigger expediency of joinder.

[6.31] Claimant’s argument that the cartelists’ activities concerned the whole of the EEA, including The Netherlands, is found not to suffice to identify Handlungsort (locus delicti commissi) in The Netherlands, neither [6.36] to locate locus damni Erfolgort in The Netherlands (here the court referred to CJEU CDC, flyLAL, and Volvo Trucks: damage needs to be shown for each individual claimant) other than for 3 of the parties represented in the claim, who have their corporate domicile in The Netherlands.

[6.37] a call upon the effet utile of the Damages Directive 2014/104 is rejected for that Directive is held not to include jurisdictional rules.

Finally the Stichting [6.43] attempts to establish jurisdiction under the Dutch forum necessitatis rule, referring to the practical challenges in suing outside the EU, the impossibility for non-EU, including UK courts to refer if need be to the CJEU (compare, in subsidiary fashion, Butcher J in Mercedez-Benz), the high costs involved in claiming in the UK, and, again, the effet utile of the Damages Directive. None of these impress the court which, referring to the need to apply forum necessitatis strictly, referring to there not being a serious suggestion that no fair trial will be guaranteed in the UK, and to the absence in EU statutory law or CJEU authority of a rule that EU competition law claims ought to always be judged by a court in the EU.

The judgment illustrates that much as the anchor defendant mechanism offers interesting opportunities, it cannot be used opportunistically.

Geert.

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

1st instance Amsterdam rejects jurisdiction viz most defendants in financial services follow-on cartel damages claim
Claims v anchor defendant found not to be 'related'
Handlungsort, Erfolgort not in NL
No forum necessitatis

FX Claims v Natwest Markets eahttps://t.co/9dwpjVnRzG

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

In Mercedes-Benz Group AG & Anor v Continental Teves UK Ltd & Ors [2023] EWHC 1143 (Comm)  Butcher J set aside permission for service out of the jurisdiction (against EU-incorporated defendants) in a follow-on damages claim following the European Commission’s Hydraulic Braking system cartel findings.

The UK parties are the anchor defendants. Pre-Brexit, the case against the non-UK defendants would have been brought under A8(1) Brussels Ia and the abuse threshold per CJEU CDC would have undoubtedly not been met.

The attractive UK discovery rules were mentioned by claimants as an important reason to anchor the case in the UK. On that point [25] the judge held per Spiliada‘s instruction [as a general rule, the court will not be deterred from granting a stay or refusing permission to serve out simply because the claimant will be deprived of a ‘legitimate personal or juridical advantage’, such as damages on a higher scale or a more generous disclosure regime, unless it is shown through cogent evidence that there is a risk that substantial justice will not be done in the natural forum] that substantial justice could not be done in Germany, if it was an available forum.

Butcher J overall [26] held that Germany is an available forum (in the case of the German defendants by reason of both A4 and A7(2) [locus delicti commissi] Brussels Ia, and in the case of the UK defendant by reason of the German forum connexitatis rules), with which the dispute has its closest and most real connexion, and which may be described as the natural forum for the present dispute.

The nature of the infringing conduct, causation and damage all overwhelmingly took place in Germany, witnesses largely have German as their mother tongue. [51] counsel for claimants makes an interesting point that matters of convenience ought not to weigh in favour of cartelists (essentially a nemo auditur application), however, the judge holds that ‘in relation to the matters which will be in issue, there has been no finding that Mercedes are right, or the Defendants wrong.

Further and importantly [albeit only as an additional argument: [57]: ‘I should state, however, that I do not regard this factor as decisive. My conclusion on the natural forum would have been the same without it’], [56] the judge with respect to applicable law points to the disadvantage of England and Wales given the impossibility to refer to the CJEU

While the courts of England and Wales are obviously very used to applying EU law, and until recently did so as being directly applicable, it is the case that since the UK’s withdrawal from the EU, UK courts cannot make preliminary references to the CJEU in respect of questions of the interpretation of EU law. While the Claimants say that a reference to the CJEU in respect of the interpretation of a Settlement Decision would be unusual, it cannot be said to be unprecedented.

Conclusion [58]

I am of the clear view that the forum with which the dispute has its closest and most real connexion is Germany, which is the natural forum for the dispute. The case has, in reality, very limited connexions with England and Wales, and it is not one, unlike very many which come before this court, where the parties have consensually chosen England and Wales as the forum for their disputes. The case has, by contrast, strong (and certainly much stronger) connexions with Germany.

Geert.

Jurisdiction refused
Follow on claim for damages viz EC Hydraulic Braking Systems cartel decision
Held forum non conveniens points to Germany

(pre Brexit jurisdiction would have been beyond doubt)

Mercedes-Benz v Continental Teves [2023] EWHC 1143 (Comm)https://t.co/e520HgxtvZ

— Geert Van Calster (@GAVClaw) May 16, 2023

WertInvest Hotelbetrieb
Environnement et consommateurs
L’obligation de réaliser une évaluation des incidences environnementales d’un projet d’aménagement urbain ne peut pas dépendre exclusivement de sa taille

AKM (Fourniture de bouquets satellitaires en Autriche)
Retransmission transfrontière de programmes par satellite : le principe de l’État d’émission s’applique également au fournisseur de bouquets satellitaires

I reported earlier on the jurisdictional issues in a case where PIFSS brings claims for sums totalling in the region of US$874 million, arising from the alleged corruption between 1994 and 2014 of its former Director General. In The Public Institution for Social Security v Al Wazzan & Ors [2023] EWHC 1065 (Comm), Henshaw J held early May that documents held in Switzerland must be disclosed, in application of disclosure rules under English civil procedure.

The disclosure concerns a large file of documents held by the Swiss Federal Prosecutor’s Office (SFPO)  arising from its investigations of Mr Al Rajaan and Ms Al Wazzan (Mr Al Rajaan’s widow) since 2012, and other documents held by Swiss-based entities or individuals, or located in Switzerland, or originating from and obtained under compulsion in Switzerland.

Disclosure was ordered, with a small caveat [161] which will see future specific measures (eg restriction of disclosure to counsel) be taken to ensure disclosure of the SFPO file documents to PIFSS does not create a risk of transmission to the State of Kuwait, which in turn might be viewed as sidestepping the State of Kuwait’s pending Mutual Legal Assistance (MLA) request to Switserland for the purpose of the continuing criminal proceedings in Kuwait.

Justice Henshaw’s lengthy considerations do justice to two restraints on disclosure, under English CPR for use in English proceedings. The principal approach is [43 ff; and [47] in particular with reference to Bank Mellat v HM Treasury [2019] EWCA Civ 449] that questions of disclosure and inspection are part of the law of procedure and are therefore matters of English law as the lex fori ; duties of confidentiality (which, if breached, may result in sanction) arising under foreign law do not provide an automatic basis to withhold disclosure and inspection. They are a matter for the judge’s discretion, and disclosure is only not ordered where the party shows that the foreign law is regularly enforced, so that the risk of prosecution is real.

[51] the judge holds that comity considerations are an independent element to consider, and in the process refers to its neat definition in Dicey’s 16th ed § 7-002:

“The United [States] Supreme Court famously said in Hilton v Guyot, a case on the recognition of foreign judgments: “‘Comity,’ in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.”

An interesting judgment raising several relevant issues (including one side-issue on the tardiness of the Hague Taking of Evidence rules).

Geert.

Following part successful jurisdiction challenge ( https://t.co/wncyM6RxZ1) now issues of disclosure under English CPR of Swiss-held documents

Lex fori rules for procedure, but with assessment of prosecution risk under lex rei sitae (SW), and of comityhttps://t.co/UR87IVj4AE

— Geert Van Calster (@GAVClaw) May 9, 2023

Ryanair / Commission (Italie; régime d’aide; Covid-19)
Aide d'État
Le Tribunal annule la décision de la Commission approuvant une mesure d’aide consistant en des subventions versées par l’Italie à des compagnies aériennes italiennes dans le contexte de la pandémie de Covid-19

Emmentaler Switzerland / EUIPO (EMMENTALER)
Propriété intellectuelle et industrielle MARQ
Le terme « emmentaler » ne peut pas être protégé en tant que marque de l’Union européenne pour des fromages

Meta Platforms Ireland / Commission
Concurrence
Concurrence : le recours de Meta Platforms Ireland (groupe Facebook) contre une demande de la Commission visant la communication de documents identifiés par le biais de termes de recherche est rejeté

Regular readers will be aware that disciplining the use of the anchor defendant mechanism is not an easy task for a court to undertake (I have linked to one post yet the search tag ‘anchor’ will take you to plenty). The CJEU takes a restrictive view. Although in the case at issue Article 8(1) Brussels Ia does not formally apply (the mechanism does not apply to defendants domiciled outside the EU), instruction in Dutch residual rules is that they be applied as A8(1) would.

In Stichting Claim Gran Petro v Shell Netherlands, Shell Brasil and Raizen ECLI:NL:RBDHA:2023:7099, the Hague court of first instance did though refuse jurisdiction against the one Brazilian defendant (Raisen), anchored unto two Dutch Shell entities (Shell now having moved domicile exclusively to England was held [5.2] not to have relevance on account of the perpetuatio fori principle), citing abuse of the anchor defendant mechanism.

Shell have a majority share in Raisen. The claimants in essence called upon the corporate structure of Shell and, pro inspiratio, hoped to convince the court that the presumption of involvement of mother corporations in their daughter’s anti-competitive shenanigans might be enough to justify the relatedness of the claims. Such assumption exists in EU competition law (see eg CJEU ENI) however the court finds that claimants have not been able to prove a Brazilian equivalent.

The court refers ia to CJEU CDC v Azo Nobel et al to emphasize the condition that the anchor mechanism must not be intended merely to remove the defendant at issue from its natural domicile forum. [6.7] the court reports that the claimants acknowledge that Dutch jurisdiction is sought for reasons of  general tardiness of Brazilian proceedings. There is no suggestion that Raizen will not be willing to meet any future damages. Seeing as no presumption under Brazilian law of mother corporation involvement exists, and seeing as no proof of factual involvement of the Shell mother entities was furnished, [6.16] the court concludes that the anchor mechanism at issue is an abusive application and must not lead to jurisdiction.

Geert.

1/2 Follow-on competition law damages claim, after Brazilian competition commission finding of abuse
Held no jurisdiction against BRA corp controlled by Shell
Abuse of Dutch equivalent of anchor defendant mechanism, citing CJEU authority pro inspiratio

— Geert Van Calster (@GAVClaw) May 17, 2023

On 15 May an Antwerp justice of the peace (effectively a first instance judge in ia neighbourly disputes) has issued a common sense, no nonsense judgment against 3M’s pollution for its PFAS pollution of the soil around its manufacturing site at the Port of Antwerp. (For background to PFAS aka per and polyfluoroalkyl substances see also my earlier post on applicable law). PFAS produced there were mainly used in fire extinguishing foam.

Bypassing the sluggish criminal law and public law investigations and enquiries, and in view of alarming levels of PFAS found in the family’s blood, two immediate neighbours at the site claim against 3M on the basis of what is effectively common law nuisance. Such a claim is one of strict liability: it does not seek to establish fault or negligence, rather it aims at addressing the imbalance in proprietary enjoyment.

The judgment reminds us that the historic roots of many an environmental law (think Rylands v Fletcher (1868) LR 3 HL 330 and later Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 1 All ER 53 ) are still good law despite the overwhelming body of local, regional, federal, EU and international environmental statutory laws.

3M (other than to internal civil procedure rules on the court’s jurisdiction) referred ia to its environmental permit and to its use of ‘state of the art environmental technologies; to the distinction between the statutory remediation duty on the one hand and the liability for pollution, on the other; to its voluntary phasing out of PFAS at the site, and to the soil remediation (negotiated with /imposed by the Flemish authorities) it will carry out ia on the claimants’ property ; to the inconclusiveness of data on long-term health impact; and to the need to at the least stay the case in light of ongoing criminal and public law investigations.

The judge held that claimants’ individual rights exist independently of public and criminal procedures and may be enforced separately, and that all four elements for the laws of nuisance are present:

Neighbourliness (the only element not contested by 3M);

Nuisance. For the existence of nuisance, the judge referred ia to statements aka ‘extrajudicial confessions’ made by 3M executives during hearings in the Flemish Parliament;

Excessive nuisance. The nuisance is also held to be excessive, with simple reference ia to clearly abnormal PFAS readings in claimants’ blood;

Attributable to 3M. Here, too, the judge holds straightforwardly: ia mapping ordered by the Flemish Government shows a clear concentration of PFAS on the sites run by 3M.

The judge concludes with a provisional statement of €2,000 damages for the reduced enjoyment by claimants of their property.

The judgment does not indicate the parameters to be used for final determination of damages. Early commentary on the judgment indicates a number of open questions, such as the parameter within which claimants can be considered to be ‘neighbours’, etc. It is clear that 3M will not just appeal, but will generally continue its approach of litigating each and every claim (of note is that Belgium’s collective proceedings provisions are not optimal, and moreover difficult to apply to common law nuisance cases) with convoluted legal reasoning and much distinguishing. Yet the judgment is appealing in its straightforwardness and no doubt inspiring to the many proceedings which, sadly, are en route in this sad episode of industrial ‘innovation’.

Geert.

Vereerd me in het gezelschap van @omgevingsrecht te vinden in @vrtnws berichtgeving over #3M https://t.co/sXXjZq0rYh

— Geert Van Calster (@GAVClaw) May 17, 2023

 

Last July, I posted about a joint webinar between the Singapore-based Asian Business Law Institute (ABLI) and the Permanent Bureau of the Hague Conference on Private International Law (HCCH) on the Choice-of-Court and Judgments Conventions. The two organizations return this year with their third joint session, this time on the 1965 Service Convention.

Titled Cross-border Commercial Dispute Resolution – HCCH 1965 Service Convention, the webinar will take place on Tuesday 27 June between 4 to 5:10pm (Singapore time) or 10 to 11:10am (CEST), and is expected to discuss, among others, the actual operation of the Service Convention in practice, how the Service Convention works with the other HCCH Conventions for cross-border dispute resolution, and Singapore’s accession to and upcoming implementation of the Service Convention.

Invited speakers include Sara Chisholm-Batten (Partner, Michelmores LLP), Melissa Ford (Secretary, HCCH), Delphia Lim (2Director, International Legal Division, Ministry of Law, Singapore), Professor Yeo Tiong Min (Singapore Management University), and Professor Yun Zhao (University of Hong Kong and Representative of Regional Office for Asia and the Pacific, HCCH).

For more information or to register, click here. Early bird discount is available until 28 May.

Queries about the webinar can be directed to Catherine of ABLI at info@abli.asia.

Geert.

 

EVH / Commission
Concurrence
Le recours du producteur d’électricité allemand EVH contre l’approbation par la Commission de l’achat d’actifs d’E.ON par RWE est rejeté

enercity / Commission
Concurrence
Le recours de la régie municipale allemande enercity contre l’approbation par la Commission de l’achat d’actifs de production d’E.ON par RWE est jugé irrecevable

BK et ZhP (Suspension partielle de la procédure au principal)
Droit institutionnel
Une demande de décision préjudicielle adressée à la Cour de justice n’empêche pas la juridiction de renvoi de poursuivre partiellement la procédure au principal

DC (Rétractation après l’exécution du contrat)
Rapprochement des législations
Défaut d’information sur le droit de rétractation : un consommateur est exonéré de toute obligation de paiement s’il se rétracte d’un contrat de service, conclu hors établissement, qui a déjà été exécuté 

TAP Portugal (Décès du copilote)
Transport

L’annulation d’un vol en raison du décès inopiné du copilote n’exonère pas la compagnie aérienne de son obligation d’indemniser les passagers

Bezirkshauptmannschaft Lilienfeld
Transport
Une entreprise de transport routier ne peut pas se décharger de sa responsabilité de respecter les temps de conduite et de repos des conducteurs en la transférant à une tierce personne

Inspecţia Judiciară
Relations extérieures
État de droit : l’organe en charge des procédures disciplinaires contre les juges doit être indépendant et impartial

Nicholls & Anor v Mapfre Espana Compania de Seguros y Reaseguros SA [2023] EWHC 1031 (KB) yet again discusses the evidence and procedure carve-out in Rome II and its relationship with A12 Rome II ‘scope of the law applicable’. In the absence of a possibility to refer to the CJEU, a Court of Appeal intervention might be useful.

Pandya v Intersalonika [2020] EWHC 273 (QB) held that proceedings were time-barred per Greek law (lex causae), where the claim form was issued in the E&W courts before expiry of Greek limitation period, but was not served until after that expiry. A narrow reading of the A1.3 carve-out was confirmed in Johnson v Berentzen [2021] EWHC 1042 (QB)) and in Bravo & Ors v Amerisur Resources Ltd (Re The Amerisur plc Putumayo Group Litigation) [2023] EWHC 122 (KB).

In Duffy v Achmea [2020] EWHC 3341 (QB) it was held that interim payments are within the evidence & procedure exception; in Troke v Amgen [2020] EWHC 2976 (QB) interest payments, ‘because they are discretionary under Spanish law (the lex causae)’, were held to fall under the A1.3 exclusion. Sedgwick v Mapfre concluded the same (albeit on better reasoning IMHO) That seems to also have been the approach in Woodward -v- Mapfre, unreported but referenced in current judgment by Spencer J.

Eventually however the judge does not follow Troke or Sedgwick, holding [30] that  the recovery of interest provided for by Spanish law under Article 20 of the Spanish Insurance Act is, pursuant to Rome II and as a matter of European law, substantive, not procedural. In essence, the relevant foreign law rate of interest is said to be a matter of clear relevance to the remedy (financial compensation) to which the claimant is entitled, being intrinsically connected or linked to the award of financial compensation.

His reference [30](1) to the suggestion that A12′ applicable law provisions needs to be construed widely and A1’s carve outs narrowly, is wrong in my opinion. [31] He clearly suggests he might have referred to the CJEU had that been possible (although I do not necessarily agree that the CJEU would then have looked for a ius commune approach across the EU).

Even though he finds fault with the application of the rules by the lower courts, his calculation of awards are the same and the appeal fails.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 4.8.

Evidence & procedure carve-out under the Rome II Regulation
Recovery of interest held NOT to be substantive right, lex causae, rather procedural remedy, subject to lex fori

Nicholls ea v Mapfre Espana Compania de Seguros y Reaseguros [2023] EWHC 1031 (KB)https://t.co/ZF8dGQvEjf

— Geert Van Calster (@GAVClaw) May 5, 2023

Ryanair / Commission (Lufthansa ; COVID-19)
Aide d'État
Le Tribunal annule la décision de la Commission qui approuve la recapitalisation de Lufthansa par l’Allemagne, d’un montant de 6 milliards d’euros, dans le contexte de la pandémie de Covid-19