Flux européens

Neptune Distribution
Rapprochement des législations
La teneur en sodium des eaux minérales naturelles doit être calculée sur la base non seulement du chlorure de sodium, mais également du bicarbonate de sodium

WebMindLicenses
DFON
Le transfert du savoir-faire permettant l’exploitation du site érotique livejasmin.com de la Hongrie à Madère où un taux de TVA moins élevé s’applique ne constitue pas, en lui seul, une pratique abusive

SNCF / Commission
Aide d'État
Le Tribunal de l’UE confirme que les aides d’État d’un montant de 503 millions d’euros octroyées par la France à Sernam et approuvées sous conditions par la Commission dans une décision antérieure ont été mises en œuvre de manière abusive

Espagne / Commission
Aide d'État
Le Tribunal annule la décision de la Commission selon laquelle le régime espagnol de leasing fiscal constitue une aide d’État illégale

The CJEU (General Court) sided with Sweden in T-521/14, concerning the failure, by the Commission, to adopt measures concerning the specification of scientific criteria for the determination of endocrine-disrupting properties.

To improve the free movement of biocidal products in the EU, while ensuring a high level of protection of human and animal health and the environment, the EU adopted Regulation 528/2012 concerning the making available on the market and use of biocidal products. It sets out the active substances which, in principle, cannot be approved. They include active substances which, on the basis of criteria to be established, are regarded as having endocrine-disrupting properties which may be harmful to humans, or which have been designated as having those properties. It also provides that, by 13 December 2013 at the latest, the Commission was to adopt the delegated acts as regards the specification of the scientific criteria for the determination of endocrine-disrupting properties.

The EC cited criticism  following its presentation of draft scientific criteria, as well as the need to make the various possible solutions subject to an impact assessment. The CJEU first of all held that the Commission had a clear, precise and unconditional obligation to adopt delegated acts as regards the specification of the scientific criteria for the determination of the endocrine-disrupting properties and that that was to be done by 13 December 2013.

With respect to the impact assessment, the General Court finds that there is no provision of the regulation which requires such an impact analysis. What is more, even if the Commission ought to have carried out such an impact analysis, that does not in any way exonerate it, in the absence of provisions to that effect, from complying with the deadline set for the adoption of those delegated acts.

I like this judgment (it will no doubt be appealed by the EC). It reinforces the need to respect clearly defined dates and deadlines. And it takes a bit of the shine off impact assessments, the duration, extend, and lobbying of which can often lead to death by impact analysis.

Geert.

 

Air Canada / Commission
Concurrence
Le Tribunal annule la décision par laquelle la Commission a infligé des amendes d’un montant d’environ 790 millions d’euros à plusieurs compagnies aériennes pour leur participation à une entente sur le marché du fret aérien

Engagement solennel devant la Cour de justice de l’Union européenne d’un nouveau membre de la Cour des comptes européenne

Suède / Commission
Rapprochement des législations
En n’adoptant pas des actes concernant la spécification des critères scientifiques pour la détermination des propriétés perturbant le système endocrinien, la Commission a violé le droit de l’Union

Claudio Biscaretti di Ruffìa, Alberto Santa Maria, Le società estere, in Trattato Cicu-Messineo, Giuffrè, 2015, pp. XIV – 340, ISBN: 9788814209703, Euro 42.

Ulteriori informazioni sul volume sono reperibili al sito dell’editore. L’indice dell’opera è disponibile qui.

I have referred repeatedly in the past to an inevitable attraction which some find in harmonising private, incuding contract law, in the Member States. The Common European Sales Law (CESL) proposal is dead, and for good reason. Its demise however has not led to the European Commission leaving the path of harmonisation in contract law. The EC has now selected bits and pieces of the CESL approach which it reckons might pass Member States objections. The proposed ‘fully harmonised’ rules on e-commerce formally do not close the door on party autonomy in the contracts under their scope of application. Yet in forcing regulatory convergence top-down, the aim is to make choice of law for these contracts effectively nugatory.

The EC itself formulates it as follows (COM(2015)634, p.1:

“This initiative is composed of (i) a proposal on certain aspects concerning contracts for the supply of digital content (COM(2015)634 final), and (ii) a proposal on certain aspects concerning contracts for the online and other distance sales of goods (COM(2015)635 final). These two proposals draw on the experience acquired during the negotiations for a Regulation on a Common European Sales Law. In particular, they no longer follow the approach of an optional regime and a comprehensive set of rules. Instead, the proposals contain a targeted and focused set of fully harmonised rules.”

Consequently the same proposal reads in recital 49 ‘Nothing in this Directive should prejudice the application of the rules of private international law, in particular Regulation (EC) No 593/2008 of the European Parliament and of the Council and Regulation (EC) No 1215/2012 of the European Parliament and the Council‘: that is, respectively, Rome I and Brussels I Recast’.

Consequently and gradually, choice of law for digital B2C contracts becomes redundant, for the content of national law converges. Support for this in my view is not rooted in fact (the EC’s data on the need for regulation have not fundamentally changed since its doomed CESL proposal), neither is it a good development even for the consumer. National consumer law is able to adapt, often precisely to the benefit of the consumer, through national Statute and case-law. Turning the EU regulatory tanker is much more cumbersome. The circular economy, recently often debated, is a case in point. Many national authorities point to limitations in contract law (incuding warranty periods and design requirements) as an obstacle to forcing manufacturers, including for consumer goods, to adopt more sustainable manufacturing and distribution models. The EC’s current proposals do no meet those challenges, rather, they obstruct them.

Geert.

On 4 February 2016, the University Jean Moulin Lyon 3 will host a workshop on Global Phenomena and Social Sciences.

The event will feature five panels, which will address the topic, respectively, from the point of view of politics, business, economics, anthropology and law.

Among the speakers of the latter panel, Jean-Sylvestre Bergé (Univ. Jean Moulin Lyon 3) will talk of Border Crossing Phenomenon and the Law.

Further information in the flier of the initiative.

In Florin Lazar, a judgment rendered on 10 December 2015 (C-350/14), the ECJ clarified the interpretation of Article 4(1) of Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (Rome II).

Pursuant to this provision, the law applicable to a non-contractual obligation arising out of a tort is “the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur”.

The case concerned a traffic accident occurred in Italy, which resulted in the death of a woman. Some close relatives of the victim, not directly involved in the crash, had brought proceedings in Italy seeking reparation of pecuniary and non-pecuniary losses personally suffered by them as a consequence of the death of the woman, ie the moral suffering for the loss of a loved person and the loss of a source of maintenance. Among the claimants, all of them of Romanian nationality, some were habitually resident in Italy, others in Romania.

In these circumstances, the issue arose of whether, in order to determine the applicable law under the Rome II Regulation, one should look at the damage claimed by the relatives in their own right (possibly to be localised in Romania) or only at the damage suffered by the woman as the immediate victim of the accident. Put otherwise, whether the prejudice for which the claimants were seeking reparation could be characterised as a “direct damage” within the meaning of Article 4(1), or rather as an “indirect consequence” of the event, with no bearing on the identification of the applicable law.

In its judgment, the Court held that the damage related to the death of a person in an accident which took place in the Member State of the court seised and sustained by the close relatives of that person who reside in another Member State must be classified as “indirect consequences” of that accident, within the meaning of Article 4(1).

To reach this conclusion, the ECJ began by observing that, according to Article 2 of the Rome II Regulation, “damage shall cover any consequence arising out of tort/delict”. The Court added that, as stated in Recital 16, the uniform conflict-of-laws provisions laid down in the Regulation purport to “enhance the foreseeability of court decisions” and to “ensure a reasonable balance between the interests of the person claimed to be liable and the person who has sustained damage”, and that “a connection with the country where the direct damage occurred … strikes a fair balance between the interests of the person claimed to be liable and the person sustaining the damage”.

The Court also noted that Recital 17 of the Regulation makes clear that “in cases of personal injury or damage to property, the country in which the damage occurs should be the country where the injury was sustained or the property was damaged respectively”.

It follows that, where it is possible to identify the occurrence of direct damage, the place where the direct damage occurred is the relevant connecting factor for the determination of the applicable law, regardless of the indirect consequences of the tort. In the case of a road traffic accident, the damage is constituted by the injuries suffered by the direct victim, while the damage sustained by the close relatives of the latter must be regarded as indirect consequences of the accident.

In the Court’s view, this interpretation is confirmed by Article 15(f) of the Regulation which confers on the applicable law the task of determining which are the persons entitled to claim damages, including, as the case may be, the close relatives of the victim.

Having regard to the travaux préparatoires of the Regulation, the ECJ asserted that the law specified by the provisions of the Regulation also determines the persons entitled to compensation for damage they have sustained personally. That concept covers, in particular, whether a person other than the direct victim may obtain compensation “by ricochet”, following damage sustained by the victim. That damage may be psychological, for example, the suffering caused by the death of a close relative, or financial, sustained for example by the children or spouse of a deceased person.

This reading, the Court added, contributes to the objective set out in Recital 16 to ensure the foreseeability of the applicable law, while avoiding the risk that the tort or delict is broken up in to several elements, each subject to a different law according to the places where the persons other than the direct victim have sustained a damage.

On 9 December 2015, the European Commission presented two proposals aimed at the adoption of harmonised rules governing digital contracts, namely a proposal for a directive on certain aspects concerning contracts for the supply of digital content (COM (2016) 634 final), and a proposal for a directive on certain aspects concerning contracts for the online and other distance sales of goods (COM (2016) 635 final)

The proposed measures are meant to pursue one of the basic goals of the Commission’s Digital Market Strategy, ie to ensure better access for consumers and businesses to online goods and services across Europe.

To this end, the proposed directive on the supply of digital content lays down certain requirements “concerning contracts for the supply of digital content to consumers, in particular rules on conformity of digital content with the contract, remedies in case of the lack of such conformity and the modalities for the exercise of those remedies as well as on modification and termination of such contracts”, whereas the proposed directive on online sales of goods provides for rules “concerning distance sales contracts concluded between the seller and the consumer, in particular rules on conformity of goods, remedies in case of non-conformity and the modalities for the exercise of these remedies”.

The legal basis for both directives is Article 114 of the Treaty on the Functioning of the European Union, concerning the “approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market”.

As regards the coordination of the envisaged new directives with the existing rules of private international law that deal with digital contracts, the following remarks may be found in the Commission’s proposals and related texts.

In the explanatory memorandum accompanying the directive on the supply of digital content, the Commission observes that, “[t]ogether with the proposed new contract rules for the purchase of digital content as set out in this proposal, the existing rules on private international law establish a clear legal framework for buying and selling in a European digital market, which takes into account both consumers’ and businesses’ interests”.

As a consequence, “the proposal does not require any changes to the current framework of EU private international law, including to the Regulation (EC) No 593/2008 (Rome I)”. Recital 49 of the preamble reflects this assumption by stating that “[n]othing in this Directive should prejudice the application of the rules of private international law, in particular Regulation (EC) No 593/2008 of the European Parliament and of the Council and Regulation (EC) No 1215/2012 of the European Parliament and the Council”, ie the Brussels Ia Regulation.

A more detailed analysis of the private international law implications of the proposed new rules is provided in the memorandum relating to the directive on online sales of goods.

The Commission begins by noting that the proposal “is compatible with the existing EU rules on applicable law and jurisdiction in the Digital Single Market”. The Brussels Ia and Rome I Regulations “apply also in the digital environment”, “have been adopted quite recently and the implications of the internet were considered closely in the legislative process”.

As a matter of fact, “[s]ome rules take specific account of internet transactions, in particular those on consumer contracts”, and “aim at protecting consumers inter alia in the Digital Single Market by giving them the benefit of the non-derogable rules of the Member State in which they are habitually resident”. Since the proposal on online sales of goods “aims at harmonising the key mandatory provisions for the consumer protection, traders will no longer face such wide disparities across the 28 different legal regimes”.

As stated in the preamble of the proposed directive, “[e]xisting disparities may adversely affect businesses and consumers”, since, pursuant to the Rome I Regulation, “businesses directing activities to consumers in other Member States need to take account of the mandatory consumer contract law rules of the consumer’s country of habitual residence” and may thus “be faced with additional costs”. In these circumstances, “many businesses may prefer to continue trading domestically or only export to one or two Member States”. In addition, while consumers enjoy a high level of protection when they purchase online from abroad as a result of the application of the Rome I Regulation, “fragmentation also impacts negatively on consumers’ levels of confidence in e-commerce”.

In order to remedy those problems, “businesses and consumers should be able to rely on a set of fully harmonised, targeted rules for the online and other distance sales of goods”: uniform rules, the preamble goes on, “are necessary in relation to several essential elements of consumer contract law which under the current minimum harmonisation approach led to disparities and trade barriers across the Union”.

Here, too, in the Commission’s view, the existing rules on private international law establish a clear legal framework for buying and selling in a European digital market, and the legislative proposal does not require any changes to the Brussels Ia and Rome I Regulations. Accordingly, as indicated in Recital 37, nothing in the future directive should prejudice the application of the latter instruments.

Fútbol Club Barcelona / OHMI (Représentation du contour d'un écusson)
Propriété intellectuelle et industrielle
Le Tribunal rejette le recours du club de football de Barcelone qui souhaitait l’enregistrement comme marque communautaire des contours de son écusson

Aldricus is glad to host the following announcement, provided by Susanne Gössl (Univ. Bonn).

As a group of doctoral and post-doctoral students with a keen interest in private international law (PIL), we are trying to improve the exchange between young scholars in this field. To further this aim, we have undertaken to organize a conference for all German-speaking young scholars (ie doctoral and post-doctoral students) with an interest in private international law.

PIL is understood broadly, including international jurisdiction and procedure, ADR, uniform and comparative law, as long as there is a connection to cross-border relationships.

The conference – which we hope to develop into a recurring event – will take place at the University of Bonn on 6 and 7 April 2017. It will be dedicated to the topic Politics and Private International Law (?) [Politik und Internationales Privatrecht (?)]. 

Choice-of-law rules established in continental Europe have since Savigny traditionally been regarded as ‘neutral’ as they only coordinate the law applicable in substance. However, the second half of the last century was marked by a realisation that choice-of-law rules may themselves promote or prevent certain substantial results. In the US, this has led to a partial abolishment of the classic understanding of the conflict of laws, and to its replacement by an analysis of the particular governmental interests concerned. Other legal systems have also seen traditional choice-of-law rules changed or limited by governmental or other political interests. The conference is dedicated to discussing the different aspects of this interplay between private international law and politics as well as their merits and demerits.

We welcome contributions which focus on classic political elements of private international law, such as lois de police, ordre public or substantial provisions within choice-of-law systems, but also comparisons to methodical alternatives to PIL or contributions discussing more subtle political influences on seemingly neutral choice-of-law rules. Examples range from the ever increasing influence of the European Union over national or international political agendas to questions of ‘regulatory competition’ (which may be relevant in establishing a national forum for litigation or arbitration) or other regulatory issues (such as the regulation of the allegedly international internet). By the same token, international family law and questions of succession are constantly increasing in relevance, the current growth of international migration making it a particularly important field for governmental regulation.

We are glad to announce that Professor Dagmar Coester-Waltjen (University of Göttingen) has accepted our invitation to inaugurate our conference on 6 April 2017. The afternoon will be dedicated to academic discourse and discussion and conclude with a dinner. The conference will continue on 7 April. We plan to publish all papers presented in a conference volume.

We intend to accommodate 6 to 10 papers in the conference programme, each of which will be presented for half an hour, with some additional room for discussion. We will publish a Call for Papers in early 2016 but invite everyone interested to note down the conference date already and consider their potential contributions to the conference topic (in German language).

Questions may be directed at Dr. Susanne L. Gössl, LL.M (sgoessl(at)uni-bonn.de).

For further information please see here.

Chris Thomale, Mietmutterschaft – Eine international-privatrechtliche Kritik, Mohr Siebeck, 2015, ISBN 9783161542398, pp. 154, Euro 34.

[Dal sito dell’editore] Die rechtliche Behandlung der Leihmutterschaft beschäftigt in wachsendem Maße Gerichte und Normsetzer auf allen Ebenen. Dabei berühren sich familienrechtliche mit international-privatrechtlichen, kollisionsrechtliche mit prozessrechtlichen sowie einfachrechtliche mit grundrechtlichen und unionsrechtlichen Anwendungsproblemen. Dieser Oberfläche der rechtspositiven Debatte liegen jedoch rechtsethische, rechtstheoretische und vor allem rechtspolitische Fragestellungen zugrunde, die sich erst aus der Regulierungsperspektive eines äußeren Betrachters und hypothetischen Rechtsetzers beurteilen lassen. Chris Thomale bemüht sich darum, beide Herangehensweisen zusammenzuführen, um die internationale Leihmutterschaft einer umfassenden Fundamentalkritik zu unterziehen.

Maggiori informazioni a questo indirizzo.

Il Dipartimento di Giurisprudenza dell’Università di Catania organizza il 9 dicembre 2015 un incontro di studio sul tema Genitorialità, problematiche acquisite all’estero.

L’incontro, presieduto da Tommaso Auletta (Univ. Catania) ed introdotto da Pasquale Pirrone (Univ. Catania), ospiterà le relazioni di Roberto Baratta (Univ. Macerata) su Diritti fondamentali e riconoscimento dello status filii in casi di maternità surrogata, e Giulia Rossolillo (Univ. Pavia) in tema di Riconoscimento di adozioni sconosciute all’ordinamento nazionale. Interverranno, tra gli altri, Adriana Di Stefano e Rosario Sapienza (entrambi Univ. Catania).

Maggiori informazioni nella locandina reperibile qui.

Jurisdiction and the internet is a topic which has featured once or twice on this blog recently (and in a  paper which I have already referred to in those earlier postings). Belgian’s Supreme Court in ordinary (the Hof van Cassatie /Cour de Cassation) employed the objective territoriality principle in a case with roots going back to 2007 (the fraudulent purchase of and subsequent failure to pay for electronic equipment from a shop in Dendermonde, Belgium), Yahoo! was requested to hand over the IP addresses associated with e-mail accounts registered to Yahoo!’s e-mail service. Yahoo! Inc, domiciled in California, refused to comply, triggering fines under criminal law.

Responding to Yahoo!s claims that Belgium was imposing its criminal laws extraterritorially, the Court of Appeal had held that Yahoo! is territorially present in Belgium, hereby voluntarily submitting itself to the jurisdiction of the Belgian authorities: it takes an active part in economic life in Belgium, among others by use of the domain name http://www.yahoo.be, the use of the local language(s) on that website, pop-up of advertisements based on the location of the users, and accessibility in Belgium of Belgium-focussed customer services (among others: a ‘Belgian’ Q&A, FAQ, and post box). [Notice the similarity with the Pammer /Alpenhof criteria]. The Court of Appeal had suggested that the accusations of extraterritoriality could only be accepted had there been a request for the handover of data or objects which are located in the USA, with which there is no Belgian territorial link whatsoever, and if the holder of these objects or data is not accessible in Belgium (either physically or virtually).

The Supreme Court on 1 December (not yet published in relevant databases – I have a copy for interested readers) confirmed all of the Court of Appeal’s arguments, essentially linking them to the objective territoriality principle. Yahoo! actively directs its activities towards consumers present in Belgium.

Even though the case involves a criminal proceeding, the Court’s judgment inevitably (not necessarily justifiably) will be used as further support for the Belgian tussle with Facebook.

Geert.

Anche quest’anno, la Società Italiana di Diritto Internazionale e di Diritto dell’Unione europea (SIDI) ha indetto un bando di concorso per il conferimento del premio “Riccardo Monaco” – istituito dalla famiglia per onorare la memoria dell’insigne giurista, socio fondatore e primo Presidente della SIDI – per una tesi di dottorato su aspetti giuridici e dell’integrazione europea e una tesi di dottorato su aspetti giuridici delle organizzazioni internazionali.

Il termine per la presentazione della domanda scade il 4 marzo 2016.

Maggiori informazioni sono reperibili a questo indirizzo.

I have earlier referred to Shell’s arguments in appeal (in Dutch) on the specific issue of jurisdiction, which may be found here .  Judgment in fact, as I reported, generally was quite comforting for Shell (and other holding companies in similar situations) on the issue of substantive liability.

However on jurisdiction, the Dutch court’s approach of joinders under residual national jurisdictional rules, was less comforting. The rules on joinders, otherwise known as ‘anchor defendants’, in the Brussels regime (Brussels I as well as the Recast) do not apply to defendants domiciled outside of the EU. Consequently national rules of civil procedure decide whether an action against a daughter company, established outside of the EU, can be successfully anchored to an action against the mother company (against which jurisdiction is easily established per Article 4 of the Recast, Article 2 of the former Regulation). In first instance, the Court at The Hague ruled in favour of joining a non-EU defendant to a case against its mother company in The Netherlands.

In its submission, Shell (with reference to relevant national case-law) borrows heavily from CJEU case-law on what was Article 6(1) (now Article 8(1)), suggesting that Dutch residual law was meant to apply as a mirror the European regime, with one important difference: precisely the issue that under the Dutch regime, none of the parties need to be domiciled in The Netherlands. Any jurisdictional rule which leads the Dutch courts to accept jurisdiction against one defendant, even if that anchor defendant is not domiciled in the country, can lead to others being drawn into the procedure. This means, so Shell suggests, that the Dutch rule (Article 7(1) of the Dutch code of civil procedure) is more in need of precautions against abuse, than the equivalent European rule.

As part of the efforts to avoid abuse, the Dutch courts need to make a prima facie assessment of the claims against the anchor defendant: for if those claims are spurious, anchoring other claims to such loose ground would be abusive. On this point, the Court of Appeal will have to discuss the corporate veil, piercing it, Chandler v Cape etc. Shell’s submission does not in fact argue why piercing needs to be assessed by the lex causae (here: Nigerian law as the lex loci damni) and not, for instane, by the lex fori. I doubt the Court of appeal will raise it of its own accord. (See here for a consideration of the issues in an unrelated area and further pondering here).

A little bird tells me that judgment will be issued on 18 December. I may or may not be able to review that before the Christmas break. In the negative, it will have to be an Epiphany posting. (Potentially in more than one meaning of the word).

Geert.