Flux européens

Bundesamt für Fremdenwesen und Asyl (Conversion religieuse ultérieure)
Espace de liberté, sécurité et justice ASIL
Une demande d’asile fondée sur une conversion religieuse intervenue après avoir quitté son pays d’origine ne peut être automatiquement rejetée comme abusive

Doctipharma
Agriculture
Vente à distance de médicaments sans prescription : la Cour précise les conditions dans lesquelles un État membre peut interdire un service de mise en relation de pharmaciens et de clients pour la vente en ligne de médicaments

Scandlines Danmark et Scandlines Deutschland / Commission, T-364/20 Danemark/Commission et T-390-20 Scandlines Danmark et Scandlines Deutschland/Commission
Aide d'État
Aides d’État : le Tribunal rejette les recours concernant le financement du projet de liaison fixe du détroit de Fehmarn entre le Danemark et l’Allemagne

Emiliou AG opined the day before yesterday in C‑339/22 BSH Hausgeräte GmbH v Electrolux AB. I flagged the case and discussed its context here.

The case in essence concerns two issues: the extent of the exclusive jurisdiction of the Article 24(4) court in infringement (as opposed to direct invalidity actions); and the question whether A24 works reflexively: ie whether the surrender of jurisdiction should also be applied in cases where the A24(4) court is not in an EU Member State.

The AG’s extensive contextualisation has the merit of summarising established authority on Article 24(4). This allows the AG for instance to reflect on the oddity of GAT v Luk. Despite the ‘object of the proceedings’ often being infringement of intellectual property rights, the CJEU held in that case that the moment the validity of the patent (or other relevant intellectual property rights) is at issue, exclusive jurisdiction of the A24(4) court is triggered. The CJEU rather unsuccessfully attempted to justify the distinction with its approach on the remainder of A24 eg in CJEU BVG.

The AG justifiably signals his disapproval with the fall-out of the GAT v Luk authority, seeing ia that (54)

the judgment in GAT makes the consolidation of infringement claims concerning the different ‘parts’ of a European patent before those courts an unattractive option. It encourages patent holders to start separate proceedings in the various States of registration of those ‘parts’ instead, since, at least, it is certain that the courts of those States are competent to rule on both the infringement and validity of ‘their part’ (as explained in points 26, 28 and 29 above). This creates, in turn, a risk that different courts take contradictory views on the same infringement dispute.

Also note (59) the strong rebuke of the GAT v LUK line in terms of the very nature of private international law

…such considerations do not reveal why, with respect to proceedings concerned with the registration or validity of patents, those courts should have jurisdiction to the exclusion of all others. In particular, the patent law of the State of registration is not so unique that only the courts of that State would have the ability to comprehend it. While it may be harder for them to do so, the courts of another Member State are perfectly capable of applying such a foreign law. To imply the contrary would be tantamount to questioning the very foundations of the Brussels regime (and the entire field of private international law). …

Ia (64) the AG however points out that unfortunately any call for the CJEU to reverse is futile seeing as Brussels Ia has codified it.

The extent of the exclusive jurisdiction of the Article 24(4) court in infringement proceedings.

Ia (37) the remaining unclarity therefore lies in the GAT v Luk consequences. National practice varies. Some courts practice a stay of the infringement proceedings until the A24(4) court holds on validity, and then insist on a return to the ‘infringement’ court: the “narrow reading” of GAT v LUK. Others carry out a complete referral of the case, including infringement, to the A24(4) court: the “broad” reading”.

In both of these scenarios the stay or referral decision is precarious (73) for there is no procedure under EU law for such referral or mutually respected temporary stay: there is no guarantee the court referred to will act as the first seized court might prefer.

The AG is in favour of the narrow reading: (69) this fits with the exceptional nature of A24; (71) it serves predictability (an echo of A24(2) in BVG): in the broad reading the reach of the jurisdiction of the court seized would depend on the invalidity  raised or not raised as a defence; (73) the possibility under national civil procedure rules to raise an invalidity defence even for the first time upon appeal would lead to a constant threat of torpedoing and once the proceedings stayed, the court first seized loses all grip on the claim and (74) by the time the case returns at all, claimant’s case in infringement proceedings started afresh may meet with statutes of limitation.

(77) ff bifurcation or as the AG calls it the ‘split’ in the proceedings is far from ideal, as (78) is the general implication of GAT v LUK that it forms an exception to the principle that points of defence ought not to impact on jurisdiction, or the reliance on national CPR, the delays etc. Yet the AG calls this route even if ‘less than ideal’, the ‘lesser of two evils’.

He then offers practical guidelines, seeking to give these a foundation in (88) the TRIPS Agreement, the finding in CJEU C‑365/88 Hagen that national CPR must not impact the effet utile of EU law, the TRIPS Agreement, Directive 2004/48, on the patent holder side the right to an effective remedy and, on the alleged infringer’s side, the rights of defence, both protected under Article 47 of the Charter.

(92) the AG suggests in particular that courts should only consider granting a stay where that challenge has a genuine prospect of success (taking into account the presumption of validity following the patent office’s assessment).

In general I have much sympathy for the AG’s narrow reading of GAT v LUK (and one would have hoped the review of Brussels Ia might trigger a proposal to solidify it in the Regulation). I am also genuinely curious to see how far the CJEU will go in picking up some of the guidelines.

The reflexivity issue.

The CJEU 3 judge chamber in IRNova f FLIR was very brief on this question and answered it promptly in the negative. The AG (97) agrees the answer is obvious in the sense that BIa cannot instruct third States courts to hear specific cases.

Unlike the AG however in my view the answer to the question that ‘in essence’ (98) is implied (whether A24(4) deprives Member State courts of the power to adjudicate the validity of third-State patents in the same way that those courts are deprived with respect to patents registered in other Member States) is, rebus sic stantibus, also obvious. Namely that unless the conditions of Articles 33-34 (the forum non conveniens “light” regime) are fulfilled, Article 4 domicile jurisdiction simply stands. Or as the Commission puts it (113), the Courts are “bound” to exercise A4 jurisdiction save in a narrow set of circumstances (i.e. the A33-34 set).

The AG (108) refers to IRNova to suggest A24-25 BIa cannot apply, as such, to dispute having connections of the kind envisioned therein with third States.

The AG posits ia that (117) BIa was not designed to take into account circumstances such as these and that the CJEU therefore should fill the gap. First of all I believe this is incorrect. A4 BIa arguably is a well documented express policy choice to accept EU courts jurisdiction in principle even over matters prima facie strongly linked with territory etc out off the EU. Further, that only A33-34 (and then only in the recital of the Regulation) entertain the possibility to take into account exclusive non-EU courts jurisdiction is a very strong a contrario statutory argument against CJEU freewheeling. The suggestion (118) borrowed from Briggs and Mills that “nothing in the wording of those provisions or in the related recitals indicates that they are meant to regulate exhaustively the possibility for Member State courts to decline jurisdiction in favour of the courts of third States”, echoes Ferrexpo and  imho is simply wrong, and neither Coreck Maritime (121) nor Mahamdia (122) have displaced Owusu.

The AG’s link (128) to public international law and the general appeal of the Moçambique rule are interesting but really just to remote in my view from Brussels Ia’s travaux and statutory provisions and the AG does not I believe properly present A33-34’s travaux or intention (139) ff.

The “implicit derogation from the mandatory effect of Article 4(1)” BIa which the AG posits (147) ff for both A24 and A25 (choice of court) jurisdiction, even construed as a “narrow discretion” (159) ff, is a most optimistic view on inviting the CJEU to rewrite Brussels Ia.

In conclusion, while the CJEU is likely to follow the AG on the narrow reading of A24(4), I would wager it will succinctly reject the arguably contra legem reflexive effect construction. But then as I have said before, I am not a betting man.

Geert.

EU Private International Law, 4th ed. 2024, 2.217 ff.

1/2 ! Emiliou AG on 'reflexive effect' of exclusive jurisdictional rule (EU courts declining jurisdiction where third States would have had exclusive jurisdiction, had they been in the EU)https://t.co/naD1t51NQb
C‑339/22 BSH Hausgeräte

— Geert Van Calster (@GAVClaw) February 22, 2024

I. (Vente d’une base de données)
Principes du droit communautaire
Selon l’avocat général Priit Pikamäe, une base de données à caractère personnel peut être, sous certaines conditions, vendue dans le cadre d’une procédure d’exécution forcée, même si les personnes concernées par ces données n’y ont pas consenti

Roumanie / Commission
Droit institutionnel
La décision d’enregistrer partiellement la proposition d’initiative citoyenne européenne (ICE) « Politique de cohésion pour l’égalité des régions et le maintien des cultures régionales » est confirmée par suite du rejet du pourvoi de la Roumanie

Deutsche Rentenversicherung Bund
Libre circulation des personnes
Prise en compte de périodes d’éducation accomplies dans un autre État membre lors du calcul d’une pension pour incapacité totale de travail

Direcţia pentru Evidenţa Persoanelor şi Administrarea Bazelor de Date
Citoyenneté européenne
Citoyenneté : le refus d’un État membre de délivrer à l’un de ses ressortissants, en plus d’un passeport, une carte d’identité ayant valeur de document de voyage, au seul motif qu’il est domicilié dans un autre État membre, est contraire au droit de l’Union

Papouis Dairies e.a. / Commission
Agriculture
Le Tribunal rejette un recours formé contre l’enregistrement de la dénomination « Halloumi » en tant qu’appellation d’origine protégée

PAN Europe / Commission
Agriculture
Produits phytopharmaceutiques : l’identification de certains risques liés à l’utilisation des insecticides n’exclut pas le renouvellement de l’approbation d’une substance active

X (Absence de motifs de résiliation)
Un travailleur engagé à durée déterminée doit être informé des motifs de résiliation avec préavis de son contrat de travail si cette information est prévue pour un travailleur à durée indéterminée

In Various parties obo minors v Anglo-American South Africa Limited and Others (2020/32777) [2023] ZAGPJHC 1474, the High Court of South Africa has refused to certify two class actions against Anglo American South Africa Limited (‘Anglo’). The proposed class action seeks monetary compensation for two classes from the Kabwe district in Zambia, who have been injured by lead exposure: children and women of childbearing age.

Kabwe is the capital of the Zambian Central Province and home to 225 000 people. Members of the proposed classes are estimated to make up approximately 140 000 members of this population. Kabwe is one of the most lead-polluted locations on the planet.

If forum non conveniens is now a classic hurdle for these kinds of cases in England and Wales (watch this space however for Lugano developments), then class certification presents itself in this judgment as a hurdle to an issue that in my view certainly should go to trial.

Windell J sets the scene [12]: (all footnotes in the quotes from the judgment have been omitted)

The application is unique. The applicants, who are citizens of Zambia and peregrini of this court (i.e, people neither domiciled nor resident in South Africa), are seeking redress in a South African Court, for a wrong committed in Zambia. They seek to hold Anglo liable for lead pollution that occurred during its involvement in the Mine from 1925 to 1974, beginning and ending 97 and 47 years ago respectively (the relevant period). The applicants’ cause of action is based on the tort of negligence. The parties agree that Zambian law will govern the substantive issues (the lex causae) and procedural matters will be governed by South African Law — the lex fori (the domestic law of the country in which proceedings are instituted).

[13] the main points of enquiry under Zambian law are laid out (and agreed)

The Zambian law mirrors the relevant English common law principles, which is part of Zambian law by virtue of section 2(a) of the English Law (Extent of Application) (Amendment Act 2011, Chapter 11). This means that English common law principles form part of Zambian law and are binding on Zambian courts, whereas the decisions of English courts are highly persuasive, even though not absolutely binding. Mr Musa Mwenye SC, the former Attorney General of Zambia, and the applicants’ Zambian law expert, opines that in deserving cases, Zambian courts may depart from English decisions if there are good and compelling reasons to do so but will not depart from established principles. The elements of the tort of negligence are therefore well-established. The Zambian Supreme Court has held that it requires proof of a duty of care; a breach of that duty through negligent conduct; actionable harm; a causal connection between the negligent conduct and the harm, involving both factual and legal causation; and damages.

[15] the criteria for the class action enquiry under South African law are listed:

In determining whether a class action is the appropriate procedural vehicle for the claims, the overarching requirement is the interest of justice (See Mukkadam v Pioneer Foods (Pty) Ltd. In Trustees for the time being of Children’s Resource Centre Trust and Others v Pioneer Foods (Pty) Ltd and Others (CRC Trust) the Supreme Court of Appeal (SCA) identified certain factors to be considered. First, there is a class or classes which are identifiable by objective criteria; Second, a cause of action raising a triable issue; Third, the right to relief depends upon the determination of issues of fact, or law, or both, common to all members of the class; Fourth, the relief sought, or damages claimed, must flow from the cause of action and be determinable and ascertainable; Fifth, if the claim is for damages, there is a suitable procedure for allocating the damages to members of the class; Sixth, the proposed representatives of the classes are suitable to be permitted to conduct the action and represent the class; Seventh, a class action is the most appropriate means of determining the claims of class members, given the composition of the class and the nature of the proposed action.

[19] the conclusion is summarised:

Anglo opposes the application on various grounds. Some of the grounds are valid, while others are not. Hence, I will commence with the three issues that do not pose an insurmountable obstacle to the certification of the class action. They are:  Suitability of the class representatives; Commonality and the Funding Agreements. Following that, I will then determine whether there is a cause of action raising a triable issue, which aspect, in my view, is fatal to the application. Finally, I shall discuss ‘Anglo’s alternative case’ which includes the damages claims, the suitability of an opt-out procedure and the class definitions.

In this blog post, in line with the blog’s general interests (here: the business and human rights angle), I will focus on the ‘triable issue’ analysis seeing as it engages with quite a few cases previously reported on the blog.

I do however also want to draw readers’ attention to the discussion [44] ff of the funding arrangements in light of my research grant (and also here) (research now conducted by Charlotte de Meeûs), with as conclusion

[81] As remarked in the interlocutory application, this court, ‘as the guardian of the child’s best interests, has a heightened duty to scrutinise the funding arrangements. Because the purported claims of thousands of Zambian children may be rendered res judicata by an action in a foreign jurisdiction, it is the duty of the court to ensure that these claims are adequately pursued by way of funding arrangements that are not only sufficient, but that do not deliver extortionate profits for third party funders at the cost of the children and that insulates the classes and their lawyers from undue influence from Kabwe Finance.

[82] Anglo’s concerns are without merit because the necessary safeguards developed by our class action jurisprudence have been built into the proposed funding arrangements. First, the applicants have provided detailed disclosure of the funding arrangements, which is without a doubt among the most detailed and transparent disclosures of any class certification proceeding to date. Second, the terms of the relevant funding agreements are explicit that neither the funder nor LD will exercise control over the case, which is to be conducted by MM on the instructions of the class representatives. Third, the applicants are represented by experienced attorneys and independent advocates who are bound by ethical rules to represent the interests of their clients.

[83] Fourth, the funder is part of the Augusta Group, a leading third-party litigation funder with a well-established track record and reputation. That reputation creates its own safeguard. Abuses and underhanded dealings, of the kind that Anglo alleges, would be disastrous to its professional standing and credibility with the courts. Fifth, the funder is bound by the Association of Litigation Funders’ Code (ALF), which explicitly prohibits funder control of litigation and other abuses. AVL is a member of the ALF and the Code’s requirements have been explicitly incorporated in the Claim Funding Agreement, thereby making them contractually binding on the funder.

[84]       Anglo’s attempt to characterise the Code as inadequate protection ignores the history and significance of the Code, as well as the weight it has been given by courts in England and Wales. The significance of the Code was recently explained in Akhmedova:….

[85]       Sixth, the applicants are protected by the provisions of the CFA, particularly s 5 which gives them the right to seek the review of any terms of the contingency fee agreement and the fees. Seventh, in response to Anglo’s repeated claims that the settlement will be hijacked by funders and lawyers to the detriment of the class, applicants and prospective class members are afforded two critical layers of protection: If the class representatives object to any settlement proposal, they may refer a dispute to an independent senior counsel, in terms of the dispute resolution mechanisms in the Claim Funding Agreement. And the applicants and class members are further protected by the court, as the parties would have to seek judicial approval of any settlement, in terms of the procedures approved in the Nkala settlement judgment

 

On the applicants’ case for there being a ‘triable issue’, [86] ff

applicants seek redress in a South African court on the basis that Anglo was the parent company and head office of the Anglo group that oversaw, managed and/or advised the Mine from its headquarters in Johannesburg, within the jurisdiction of this court, during the relevant period. It is asserted that Anglo exercised control over the Mine through an ever-changing set of subsidiaries, and although its organisational structure is quite complex, the Mine was firmly a part of Anglo’s ‘group system’….

applicants contend that the question of whether and when a multinational parent company owes a duty of care in respect of the actions of a foreign subsidiary is well-settled in English law, and they are confident that there is sufficient evidence to prove that Anglo owed a duty of care to the members of the classes.

Applicants refer ia to Vedanta and Okpabi.

[89] even Anglo’s expert on English law is of the opinion that ‘an English court would likely determine that the duty of care alleged in the draft POC together with its supporting affidavit raises a real issue to be tried’. He further stated that ‘[I]t will be a question of fact and degree whether or not the evidence adduced demonstrates a sufficient level of knowledge, control, supervision and intervention for the purposes of attaching legal responsibility.’

[90] ff the case for the applicants is further explained: that over the course of its almost 50-year involvement in the Mine’s affairs, Anglo negligently breached its duty of care by, inter alia, failing to conduct the necessary investigations on the impact of lead pollution on the surrounding communities by taking common sense measures, such as long-term sampling of air, water, soil and vegetation and monitoring the health impacts on the local communities in Kabwe [91]; Anglo’s negligence therefore caused or materially contributed to the existing levels of lead pollution in Kabwe and the resulting actionable harm. It is alleged that Anglo acted negligently in at least five material respects: it failed to investigate; it failed to protect; it failed to cease and relocate; it failed to remediate; and it failed to warn [92].

The judge however sides with Anglo’s arguments, outlined [98] ff. In effect Anglo lays all blame with ZCCM, ‘the obvious culprit’ [100], a Zambian state-owned entity and its predecessors in title who it is said at all times from 1905 to 1994 owned and operated the Mine.

Anglo also refer to the Zambia state-controlled Nchanga Consolidated Copper Mines Ltd (NCCM), established January 1970. It argues [105] that following the closure of the Mine in 1994, and in accordance with Zambian legislation enacted in 2000, ZCCM retained all historical liabilities associated with the Mine. It held the legal responsibility to address the environmental and health impacts on Kabwe residents and became responsible for the remediation and rehabilitation of the Mine. In the 2000s, the World Bank and the Zambian government attempted on multiple occasions to assist ZCCM in remediating the Mine’s surroundings. These efforts it is said are ongoing, but they have been largely unsuccessful to date.

[106] Anglo argue that ZCCM’s negligence and omissions is an unforeseeable intervening event (novus actus interveniens), that absolves Anglo of all liability.

 

The test at certification stage is “not a difficult hurdle to cross” ([113], with reference to authority) yet Windell J concludes the case is both factually and legally hopeless.

“Factually hopeless” 

[117] ff the judge takes issue with applicants’ so-called ‘Broken Hill attitude’ in support of their argument against Anglo. In doing she, she focuses it seems on the much troubled history of Broken Hill, NSW. Australian readers and students of mine sadly will be very familiar with that name and with the 1893 report.

In essence, the judge dismisses relevance of the 1893 Report [120] referring to the unlikelihood, in her view, of Anglo’s knowledge of the report:

Anglo was only established in 1917. There is not any evidence that the Report came to the attention of Anglo at any point (including between 1925 and 1974). The applicants do not explain how an entity, established 24 years after the Report was published, located in a different country and on a different continent, and in an age of basic forms of communication technology, came to know of this Report. In these circumstances, it cannot be suggested that Anglo had knowledge of the harms set out in the Report.

And [121] the judge refers to alleged levels of nuance in the report.

Applicants’ suggestion [119] that Anglo knowing of the issues will be further established following discovery and further research is not further entertained. That would seem an extraordinary lack of engagement with the evidence. All the more so as it would seem that applicants’ reference to a ‘Broken Hill attitude’, which the judge dismisses, is not their shorthand for a particular safety attitude linked to the NSW mine and the 1890s reporting. Rather a reference to an internal Anglo document commissioned in the 1970s with the very title ‘Broken Hill attitude’, that is: Broken Hill, Kabwe. The ‘attitude’ of lack of regard, and of neglect, is one that is signalled in an internal Anglo document, not catch phrased by applicants.

Anglo’s novus actus interveniens argument referred to above, prima facie sits uneasy with the material contribution element of the law of causation and simply cannot be dealt with at this interlocutory stage.

The judge moreover arguably overlooks applicants ‘modicum of common sense’ [119]. It is, with respect, absurd to suggest there is no prima facie proof of Anglo’s historic knowledge of the harm of lead and more specifically knowledge of harm to the historical Kabwe community. Knowledge of the “adit to alloy” so to speak harm associated with all aspects of lead is historically exceedingly well established. Anglo’s approach to it at a mine in which it was clearly involved for a long period, cannot be readily dealt with at certification stage.

The judge concludes [128] that before the early 1970s, there is no evidence to imply that Anglo was specifically aware of the risks that lead pollution posed to the historical Kabwe community.

The contentions and counterarguments about what ought to have taken place from an engineering point of view to mitigate the risk, in my view are to be discussed at trial, not at certification stage, and the judge’s suggestions [134] ff that at trial applicants would not fair better would seem to exceed the prima facie level required at certification stage (as well as sitting uneasily with the Supreme Court finding in Okpabi).

 

“Legally hopeless”

[145] ff the applicants’ legal arguments, too, are held not to be sufficient in most succinct manner. In essence, the judge dismisses the relevance of ‘current’ authorities such as Vedanta etc. She distinguishes it as follows [148]

to establish that Anglo owed a duty of care 50 years and more ago to the proposed class members currently living in the Kabwe district, this court must be satisfied that there is prima facie evidence to find that between almost 100 and nearly 50 years ago, Anglo must have foreseen that the current community, not the historical community, would suffer harm from lead released into the environment by the Mine during the relevant period.

Relevant authority in the judge’s view is rather Cambridge Water [1994] 2 A.C. 264.

One imagines English tort lawyers will have a lot to say on the most concise (8 paras) discussion of the common law duty of care authority, that leads the judge to her finding that the case is legally untenable.

 

I understand permission to appeal is being sought, as it should.

Geert.

The judgment denying class certification in claim against Anglo American on behalf of Zambian claimants re lead pollution in Kabwe, Zambia is now here https://t.co/N9m9HEZZih

Appeal likely

Held [117] ff case is factually and legally flawed
More on the blog soon (eg re funding) pic.twitter.com/tF9kojek7A

— Geert Van Calster (@GAVClaw) January 31, 2024

Bytedance / Commission
Règlement sur les marchés numériques : la demande de ByteDance (TikTok) de suspendre la décision de la Commission la désignant comme contrôleur d'accès est rejetée

I realise Lent has not even kicked off (it does next Wednesday, Valentine’s day) yet the judicial year already has seen a miraculous resurrection. In Skatteforvaltningen v MCML Ltd [2024] EWHC 148 (Comm) (MCML are formerly known as ED&F Man Capital Markets) SKAT did exactly what I suggested they do namely to amend their claim against these defendants to one for deceit.

(I dare say the did not do it upon the blog’s instruction; otherwise a charitable donation might be in order; note here btw for my review of the UKSC judgment in same.)

As Bright J summarises [5], SKAT’s claims at the start of current proceedings were advanced on the basis that the defendants had acted fraudulently. Such claims were, in general (and along with other causes of action), for the tort of deceit. However, in relation to ED&F Man, SKAT did not allege fraud/deceit but only negligent misrepresentation.

[7] On 5 December 2022, SKAT issued fresh proceedings in which ED&F Man was the sole Defendant. SKAT now alleged that ED&F Man knew that the representations in the Tax Vouchers were false or was reckless. SKAT’s claim in these fresh proceedings is for deceit, just as the initial claim against the other defendants which unlike that against ED&F Man, did survive Dicey Rule 3 /the foreign revenue rule.

In my review of the Court of Appeal judgment, under the title “Skat v Solo Capital Partners. When faced with Dicey rule 3, I’ll see your tax claim and raise it to a fraud one.”, I concluded

The title of this piece of course hints at the relevance of claim formulation. It is also exaggerated: SKAT cannot conjure up fraud elements out of nowhere to reinvent a tax claim as one in mere tortious and fraudulent misrepresentation. However it is clear that in cases that are somewhat murky, claim formulation will be crucial to navigate Dicey Rule 3.

I did not suggest that such claim reformulation ought to be tried in the current case for, well, SKAT it would have seemed have spent their powder. Yet this is exactly what SKAT now have done (and given the size of the claim, who can blame them for trying). Yet prima facie the hurdles for such new attempt seem quite formidable:

[33] ff issue estoppel: the arguable identical issue being tried formulated [43]  by defendant’s counsel as “… whether SKAT’s claims for compensation for making tax refunds it was not obliged to make was a foreign revenue claim for the purpose of Dicey Rule 3, now Dicey Rule 20.” That the claim is now in deceit and not negligence arguably does not change that (in light of claimant being the same, and having their cake and eating it).

The judge sees that differently: [48]: “mere similarity and/or a possible inference or deduction is not sufficient to bring into play the doctrine of issue estoppel.”

[50] Henderson v Henderson abuse of process: the fraud claim if it was to be brought at all, could and should have been brought earlier. The discussion on this is lengthy. For their to be abuse, it is necessary both (a) that the claimant could have raised the matter in the earlier proceedings and (b) that the claimant should have done so. A claimant is not lightly to be deprived of the possibility of a genuine claim. Some kind of harassment or serious prejudice is required, and the judge did not find that infringement of the Aldi joinder rule suffices.

The judge adds

1. 1. 1. In reaching this conclusion, I principally have in mind that the court must be cautious about shutting litigants out of their right to justice. The need for caution features prominently in several of the authorities in this area (see paragraph 55 above), and is also required by article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
      2. However, it also seems to me relevant that the case SKAT wishes to bring is one of fraud. The general interests of justice, and the wider interests of society as a whole, are not well served if serious financial fraud is not brought to light. If fraud has been committed, the fraudsters should be exposed.

These latter comments of course do not displace the more detailed analysis of the authorities in the previous paras.

The judge refused permission to appeal which the defendants may of course still seek direct from the Court of Appeal. I would have thought there are some unresolved issues of law at stake here.

Geert.

Surprising resurrection of claim earlier dismissed on jurisdictional grounds
New, requalified claim survives estoppel, Aldi, Henderson v Henderson arguments
Background https://t.co/B5DeTbSxqw

Skatteforvaltningen v MCML Ltd [2024] EWHC 148 (Comm)https://t.co/LPY8pd3wzt

— Geert Van Calster (@GAVClaw) February 2, 2024

 

First Advocate General Szpunar today opined in C‑633/22 Real Madrid Club  de Fútbol, AE v EE, Société Éditrice du Monde SA. The case was triggeredy a Le Monde article which claimed that Real Madrid Club de Fútbol had retained the services of Dr. Fuentès, the head of a blood-doping ring previously uncovered in the cycling world.

Le Monde later published Madrid’s reaction of denial but refused to retract the piece. Spanish courts imposed a damages and costs award of close to  €400,000, and a lower award on the journalists involved.

The Court of Appeal at Paris refused to recognise let alone enforce the judgment, referring to French ordre public. It concluded that the orders to pay an exceptional amount made against a journalist and a media organisation could not fail to have a deterrent effect on their involvement in the public discussion of matters of community interest such as to curtail the media’s ability to perform its information and monitoring role, meaning that the recognition or enforcement of the judgments pronouncing those penalties would be at variance to an unacceptable degree with French international public policy by interfering with freedom of expression.

Real Madrid submit, in essence, that a review of the proportionality of damages may only be undertaken where those damages are punitive in nature and not compensatory; that, by substituting its own assessment of the harm for that of the court of origin, the Court of Appeal had reviewed the foreign judgment, in breach of Articles 34(1) and 36 of the Brussels I Regulation; that it did not take account of the seriousness of the wrongs accepted by the Spanish court; that the economic situation of persons on whom a financial penalty is imposed is not a relevant criterion in assessing whether the penalty was disproportionate; that the assessment of proportionality should not be carried out by reference to national standards.

Colleagues with much greater authority on SLAPPs will no doubt have more impactful analysis soon: this post is a heads-up.

CJEU authority includes of course Krombach, Trade Agency, Meroni and Diageo, as well as Charles Taylor Adjusting aka Starlight Shipping, EcoSwiss and Renault. The AG (50) points out that the relevant authorities hitherto have engaged with procedural law ordre public exceptions, rather than substantive rules such as here fundamental rights.

(48) ff he discusses parties’ right under Article 6 ECHR and 47 of the Charter, to have a judgment enforced abroad. (60) ff follows discussion of the principle of mutual trust (which earlier today also featured in Inkreal).

(77) ff he discusses the authorities (see both blog posts referred to above and Handbook 4th ed. 2.619 ff) and highlights the existence of freedom of expression as a fundamental EU, as opposed ‘simply’ national right within the realm of EU ordre public. (142) ff discusses the issue of punitive awards and (159) ff the freezing effect of awards such as the one at issue. He comes to the conclusion that refusal of recognition not just can but must happen where the freezing effect of a libel award endangers participation in the public debate, linked to the financial absorption capacity of both the outlet and journalist concerned:

“un État membre dans lequel est demandée l’exécution d’une décision rendue dans un autre État membre, portant sur une condamnation d’une société éditrice d’un journal et d’un journaliste pour l’atteinte à la réputation d’un club sportif et d’un membre de son équipe médicale par une information publiée dans ce journal, doit refuser ou révoquer une déclaration constatant la force exécutoire de cette décision lorsque l’exécution de celle-ci conduirait à une violation manifeste de la liberté d’expression garantie à l’article 11 de la charte des droits fondamentaux.” (emphasis added)

“Une telle violation existe lorsque l’exécution de ladite décision engendre un effet dissuasif potentiel s’agissant de la participation au débat sur un sujet d’intérêt général tant des personnes visées par la condamnation que d’autres sociétés de presse et journalistes dans l’État membre requis. Un tel effet dissuasif potentiel se manifeste lorsque la somme globale dont le paiement est demandé est manifestement déraisonnable au regard de la nature et de la situation économique de la personne concernée. Dans le cas d’un journaliste, l’effet dissuasif potentiel se présente, en particulier, lorsque cette somme correspond à plusieurs dizaines de salaires minimums standard dans l’État membre requis. Dans le cas d’une société éditrice d’un journal, l’effet dissuasif potentiel doit s’entendre comme une mise en danger manifeste de l’équilibre financier de ce journal. Le juge de l’État membre requis peut tenir compte de la gravité de la faute et de l’étendue du préjudice uniquement pour déterminer si, en dépit du caractère a priori manifestement déraisonnable de la somme globale d’une condamnation, celle-ci est appropriée pour contrecarrer les effets des propos diffamatoires.”

Of much note in the context of the EU’s discussions on a SLAPP Directive.

Geert.

EU Private International Law, 4th ed, 2024, 2.619 ff.

Opinion now here https://t.co/jRgZ6ej23U
citing ia @ProfPech, @CunibertiGilles, @burkhard_hess, @Maxime_Barba https://t.co/KJgqOtk80R

— Geert Van Calster (@GAVClaw) February 8, 2024

As I had half hoped, half predicted, the CJEU today held differently than its AG had opined in C‑566/22 Inkreal aka Inkreal s. r.  v Dúha reality s. r. o..: 

an agreement conferring jurisdiction by which the parties to a contract who are established in the same Member State agree on the jurisdiction of the courts of another Member State to settle disputes arising out of that contract is covered under Article 25 Brussels Ia, even if that contract has no other connection with that other Member State.

The Court cites in support:

[15] ff: statutory wording: [17]: “the wording of [A25(1)] does not preclude an agreement conferring jurisdiction, by which the parties to a contract who are established in the same Member State agree on the jurisdiction of the courts of another Member State to settle disputes arising out of that contract, from being covered under that provision, even if that contract has no other connection with that other Member State.”

[18] ff: context: ‘civil matters having cross-border implications’ (recital 3) and ‘cross-border litigation’ (recital 26) are mentioned yet the ‘international element’ required is not defined. As the CJEU had already held in C-280/20, ZN v Generalno konsulstvo na Republika Bulgaria v grad Valensia, Kralstvo Ispania [the Bulgarian consulate], an equivalent concept must be used as in the order for payments Regulation. That defines the equivalent concept of ‘cross-border litigation’ as ‘one in which at least one of the parties is domiciled or habitually resident in a Member State other than the Member State of the court seised’. In current case [23] the parties to that dispute are established in a Member State other than the Member State of the court which was seised on the basis of the agreement conferring jurisdiction at issue. Moreover, [24] a question relating to the determination of international jurisdiction clearly arises in the case, more specifically whether the courts having jurisdiction to settle this dispute are those of the Czech Republic, or those of the Slovak Republic as the Member State in which the two parties are established.

Further, [26], the interpretation of A25 must also be carried out in the light of the objectives of respecting the autonomy of the parties and enhancing the effectiveness of exclusive choice-of-court agreements, as referred to in recitals 15, 19 and 22 BIa.

Moreover, [27] ff, both predictability and legal certainty, core BIa objectives, are served by the inclusion of choice of court such as in the case at issue. [29] jurisdiction can readily be considered and [30] the possibility of concurrent proceedings is minimised. [31] should choice of court in these circumstances not be valid, BIa is likely not to apply and the application of residual national PIL is likely to lead to conflicting decisions. [32] ff for courts to have to consider additional elements capable of demonstrating the cross-border impact of the dispute concerned, would create uncertainty rather than remedy it.

[35] application of BIa here also demonstrates mutual trust and increased access to justice.

Finally [36] a parallel with the Hague Choice of Court Convention clearly was not sought, quite the contrary, BIa expressly not including a similar provision illistrates its diverging intention.

An excellent judgment echoing many of my earlier expressed sentiments on the issue and arguments.

Geert.

EU Private International Law, 4th ed. 2024, 2.30.

In line with my expectation (see https://t.co/rIoSYfk1qS), the CJEU has not followed its AG on the 'international' element required to enable choice of (foreign) court under A25 Brussels Ia
C-566/22 Inkreal https://t.co/k94JgtdT2G

— Geert Van Calster (@GAVClaw) February 8, 2024

 

Real Madrid Club de Fútbol
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