Flux européens

Openbaar Ministerie (Tribunal établi par la loi dans l’État membre d’émission)
DFON
Refus d’exécution d’un mandat d’arrêt européen : l’avocat général Rantos précise les critères permettant à une autorité judiciaire d’exécution d’apprécier le risque éventuel d’ingérence du pouvoir exécutif dans les affaires concernant les personnes recherchées

Fiat Chrysler Finance Europe / Commission, Irlande / Commission e.a
Aide d'État
Décision fiscale anticipative (tax ruling) : l’avocat général Priit Pikamäe propose à la Cour d'accueillir le recours introduit par l'Irlande et d’annuler la décision de la Commission déclarant l’aide mise à exécution par le Luxembourg en faveur de Fiat comme étant incompatible avec le marché intérieur

Openbaar Ministerie (Tribunal établi par la loi dans l’État membre d’émission)
DFON
Refus d’exécution d’un mandat d’arrêt européen : l’avocat général Rantos précise les critères permettant à une autorité judiciaire d’exécution d’apprécier le risque éventuel d’ingérence du pouvoir exécutif dans les affaires concernant les personnes recherchées

AB e.a. (Révocation d’une amnistie)
Espace de liberté, sécurité et justice
Le principe ne bis in idem ne s’oppose pas à l’émission d’un mandat d’arrêt européen contre les personnes accusées d’avoir enlevé le fils d’un ancien président slovaque

Stolichna obshtina, rayon "Pancharevo"
Citoyenneté européenne
Enfant mineur citoyen de l’Union dont l’acte de naissance établi par l’État membre d’accueil désigne comme ses parents deux personnes de même sexe : l’État membre dont il est ressortissant est obligé de lui délivrer une carte d’identité ou un passeport, sans requérir l’établissement préalable d’un acte de naissance par ses autorités nationales

On 1 December 2021, the HCCH held an online event focused on contemporary issues relating to the application of the 2005 Choice of Court Convention. The recordings are available at
https://www.youtube.com/watch?v=E1pVCqvmzyM&list=PLL3fQvUXrbUH0PwGssTjuJ55qOCiEcgNW

On 8 November 2021, the HCCH Working Group on Preventing and Addressing Illicit Practices in Intercountry Adoption met with a view to developing a Toolkit aimed at preventing and addressing illicit practices in intercountry adoptions made under the 1993 Adoption Convention.
The report of the Group is available at https://assets.hcch.net/docs/35d8530a-b5bd-4330-b2fc-abda099e7f6b.pdf

In a decision of 26 October 2021 (RG 20/04526), the ICCP applies Rome II to acts of unfair competition resulting from the use by a Polish company of a forbidden product to increase the longetivity of fresh fruit salads sold in France :

« Sur la responsabilité de la société FRUCTOFRESH
Sur la loi applicable
94-Conformément à l’article 6 du Règlement CE n° 864 /2007 sur la loi applicable aux obligations non contractuelles, dit Rome II, qui s’applique dans les situations comportant un conflit de lois, aux obligations non contractuelles relevant de la matière civile et commerciale « la loi applicable à une obligation non contractuelle résultant d’un acte de concurrence déloyale est celle du pays sur le territoire duquel les relations de concurrence ou les intérêts collectifs des consommateurs sont affectés ou susceptibles de l’être. »

95- En l’espèce, les actes de concurrence déloyales allégués concernent le territoire français de telle sorte que le droit français dont l’application est commandée par les dispositions du Règlement précité est en conséquence applicable ce que les parties ne contestent pas ».

Résumé : « A judgment from the Créteil Commercial Court of the 4th February 2020, which rejected the unfair competition claim brought by Déli, a French fresh fruits salad distributor against Fructofresh, a Polish company which distributes the same kind of products in France, was partially overturned by the Paris Court of Appeal.

After ascertaining that French law was applicable to these tort claims, the Court decided, based on the exhibits produced that there were enough serious, precise and concurrent elements that Fructofresh had added in their products, between 2013 and 2016, a preservative forbidden by European regulation which is known as velcorin. This preservative allowed said company to extend the preservation period of fruit salads from 10 to 14 days.

The Court did not acknowledge Bharlev’s liability, another competitor, since there was no evidence of the product’s commercialisation. The Court acknowledged the discontinuance of Déli’s claims against the German distributor Drinkstar which sold the preservative to Fructofresh.

The court forbidden the Polish company to commercialise its products containing the prohibited preservative in France, and granted Déli’s claim for financial compensation which was calculated on the loss of profit during the dereferencing period by its client Pomona, which granted the tender to Fructofresh in 2016 ».

Source : https://www.cours-appel.justice.fr/paris/26102021-ccip-ca-rg-2004526-pratiques-anticoncurrentielles

In a decision of 19 October 2021 (RG 20/03074), the ICCP recalled Recital 13 Rome I, and applied its Article 3 in favour of French law (with URDG 758 as part of the contractual rules)

Résumé : « In this case, the ICCP-CA was seized of an appeal against a judgment of the Paris Commercial Court which had sentenced the Egyptian bank SAIB to carry out its obligation of counter-guarantee in favor of the British bank ABC. The British bank, first rank guarantor of an Egyptian importer CDCM, had paid to the French beneficiary Peugeot the amount of the unpaid invoices corresponding to the imported vehicles, and claimed the payment of said amount in execution of its counter-guarantee to the Egyptian bank.

The bank SAID refused to execute the payment, disputing the validity of the guarantee claim on the grounds that some invoices had already been paid and that the amount claimed was therefore incorrect.

The Court, in application of French law, the law chosen by the parties, and of the Uniform Rules of Guarantee on First Demand n° 758 to which the parties had referred to in their agreement, rejected SAIB bank’s exceptions of non-performance in application of the guarantee’s independence from the initial contract, which does not depend on the guarantee’s qualification of either a first demand guarantee or a stand-by letter of credit (SBLC), the Anglo-Saxon variation of the independent guarantee.

The Court held that the bank’s argument to refuse payment actually amounted to reintroduce into the debate, under the guise of the document’s conformity, the contract’s payment exceptions, which are not enforceable (§46).

The Court did not accept the exception of fraud, a new exception on appeal for which the conditions provided for in article 2321 of the French civil code were not met (§51). The decision of the first judges was therefore entirely confirmed »

Source: https://www.cours-appel.justice.fr/paris/19102021-ccip-ca-rg-2003074-jugement-du-tribunal-de-commerce-de-paris-execution-dune-contre

In a decision of 19 October 2021 (RG 20/02342), the ICCP made an interesting application of an accord procédural in favour of the lex fori, which bypasses the application of Rome I in the eyes of the Court.

Résumé : « In this case for liability due to the sudden termination of an established commercial relationship, the ICCP-CA decided that a company which executed a contract signed by its subsidiary after the latter’s liquidation had an established relationship for the entire duration of the commercial relationship. The durability of business was characterized by the continuation of a former relationship. The court ruled that, in consideration of the five year contractual relationship, the six month notice period was sufficient and therefore, there were no sudden termination.

In relation to the alleged termination of the exclusive commercial agency contract, the ICCP-CA held that the continuation of a commercial relationship established after the termination of the contract did not have as an effect to maintain the contractual exclusivity clause, unless ascertained otherwise by the parties, which was not demonstrated by them in this case, the company having terminated said clause before the term of the contract ».

Source: https://www.cours-appel.justice.fr/paris/19102021-ccip-ca-rg-2002342-contrat-distribution-exclusive

On 19 October 2021, HCCH organised an event to celebrate the 25th anniversary of the HCCH 1996 Child Protection Convention. The recordings are available here

Athena Capital Fund Sicav-Fis SCA & Ors v Secretariat of State for the Holy See [2021] EWHC 3166 (Comm) features as defendant the Secretariat of State of the Holy See  (not the Holy See itself), and relates to a fraud and embezzlement claim of property in Chelsea, London.

Defendant says that from the perspective of Claimants, the purpose and intention of bringing these proceedings is to try to influence the criminal process in Italy, and/or the publicity emanating from the criminal process.

For its jurisdictional challenge, defendant argues [81] i) The claim was not a “civil and commercial matter” within the meaning of A1(1) BIa; ii) one of the claimants was not a party to the relevant Sale and Purchase Agreement (SPA) and could not rely upon it [this was summarily dealt with [88] by suggesting an amendment of claim] and, more forcefully, (iii) Defendant was not a party to the SPA for the purposes of A25 BIa.

Salzedo J justifiably in my view held [84] that

whether the claim is a civil or commercial matter does not turn on the subjective intentions of the claimant as to the ultimate effect that a claim might have on its interests, but on an objective reading of the claim itself and the relief that it seeks from the court. On that basis, it is a claim for declarations against the Defendant concerning the Defendant’s entry into commercial transactions with the Claimants.

and that the transaction was not entered into by the Defendant in the purported exercise of public powers: [86]

The Transaction was one that any private person could have entered into if it had the requisite funds. Nothing that was essential to the Transaction required sovereign powers to enter it and nothing that the Defendant did or purported to do was in the exercise of public authority.

As for the defendant not being a party to the SPA, the context here is whether a party involved in the signing accepted the SPA and its choice of court as an agent of the defendant. The judge, confirming the parties’ consensus, points out that that agency issue befalls to be addressed by English law. It is not said why that is the case however it is of course the result of the amended A25 – as others before it, however, the court does not complete the lex fori prorogati analysis with the recital 20 in fine mandated renvoi. On the agency issue the judge holds there is a good arguable case that the relevant agent did bind the defendant.

Next [103] ff follows a CPR-heavy discussion on the amendment of the claim form, seeing as the claimants erroneously assumed [120] that BIa was not engaged as the Vatican is not party to Brussels Ia. At [123] the conclusion is that the claim form may be amended and that defendants’ time spent in dealing with the service out issues under the common law (a wasted exercise as BIa applied), may be met in the costs order.

Once the A25 point rejected, there would have been a most narrow window for any kind of stay, yet the defendants try anyways, with [129] a series of abuse and case management arguments. One particularly poignant one is that the proceedings would interfere with a criminal proceeding. After discussion the judge [159] dismisses the idea on the facts, seeing as none of the declarations sought would involve any assertion as to what does or does not amount to criminality as a matter of the law of the Vatican State.

[163] ff discusses the abuse of process issue which the defendants, I understand, presented more or less as being integrated into the criminal procedure element, discussed above. That was wise, for abuse of process, while entertained among others in Vedanta, is arguably noli sequitur in a BIa claim. [Support for the alternative view here was sought [172ff] in Messier-Dowty v Sabena SA[2000] 1 WLR 2040]

The case-management stay proper is discussed 192 ff with reference ia to Municipio, and Mad Atelier. The judge in current case is very aware of not re-introducing through the back door what CJEU Owusu shut the front door on. He summarily discussed the possibility anyway, only to reject it.

An interesting case.

Geert.

1/2 Jurisdiction. Fraud, embezzlement re investments by the Holy See.
Held claim is within scope of Brussels Ia; A25 choice of court applies despite claimants' late recourse to that ground; no stay on grounds that proceedings would interfere with foreign criminal proceeding. pic.twitter.com/7OXCsiOkUJ

— Geert Van Calster (@GAVClaw) December 1, 2021

Bitar v Banque Libano-Francaise S.A.L. [2021] EWHC 2787 (QB) discusses whether a Lebanese bank could be considered to have ‘directed’ its activities at the UK under the CJEU Pammer Alphenhof criteria, thus triggering the consumer section of the (acquired) EU Brussels Ia Regulation.

Kent DJ held it had: claimant’s arguments are at [29] ff, purporting to build evidence of a chain of marketing aimed at the expat Lebanese community. They show the importance of information put on websites, often made to look more glamorous by the addition of elements such as links to England and London in particular.  The judge is on point I find where he dismisses the singular relevance of the use of English etc in a world where every Tom Dick and Harry put that on their website. However he does conclude [65]

the website pages to which I have referred which were visible from the United Kingdom do indeed give the impression to a fair-minded observer—and I would say quite a strong impression—that the Bank was interested in obtaining custom from the expatriate Lebanese community in whichever part of the world not insignificant numbers of those who can be treated as falling within that expression were gathered and that in 2014 did include England. 

Geert.

EU private international law, 3rd ed. 2021, Heading 2.2.9.2.7, 2.270 ff

Bitar v Banque Libano-Francaise [2021] EWHC 2787 (QB) (20 October 2021)
Unsuccessful application for finding of lack of jurisdiction
Application of retained EU law on consumer contracts, Brussels Ia
Whether Bank 'directed' its activities at the UKhttps://t.co/bLQ9dfI2AV

— Geert Van Calster (@GAVClaw) October 25, 2021

Chowdhury v PZU SA [2021] EWHC 3037 (QB) is worth a brief post on the determination of ‘domicile’ for the purposes of the insurance title of Brussels Ia (the very same Title and provisions which I discuss in Betty Tattersal). Ritchie J discusses whether the claimant was ‘resident’ in England and Wales for despite the insurance section talking of ‘domicile’, the Regulation refers for that notion to the residual rules of the Member States; and in England and Wales, domicile for natural persons, for private international law purposes, is determined by their ‘residence’.

The judge held, having summarised all relevant authority, that the earlier finding of residence absolutely stands [72]:

Claimant was a British citizen, with a British passport, who grew up in Worthing and was educated in England, worked in England, had his parents and family in England, had his friends in England, had rented flats in London, in Earls Court and in Putney, had his benefits paid in England, had his property by way of clothes and personal items in England and kept some of those at his parents’ house in Worthing, in his own room there.

That he gave up his rental accommodation in England was entirely due to him seeking medical treatment in Germany on account of the very tort he is suing for. Clearly that could not dislodge his English residence, despite the most likely temporary impact on physical stays in England.

Geert.

Chowdhury v PZU SA [2021] EWHC 3037 (QB) (12 November 2021)
Brussels Ia, jurisdiction under the insurance title, road accident in Poland.
Whether claimant was 'resident' in the UK (held affirmatively).#travellawhttps://t.co/238oD8hIhE

— Geert Van Calster (@GAVClaw) November 13, 2021

I am slowly getting through the in-tray with back cases, looking in this post at the UKSC judgment in Kabab-Ji SAL (Lebanon) v Kout Food Group [2021] UKSC 48. There is plenty of analysis on the case already out there, among Gilles Cuniberti and a team of CMS lawyers. I previously discussed the judgment appealed.

The SC dismissed the appeal and the judgment therefore stands: parties’ choice of English law for the underlying contract was found to also be an express choice of the law governing the arbitration agreement. I suggested that finding was optimistic on the facts of the case. Moreover it would seem at odds with the separability line previously towed by the English courts: there may be perfectly valid reasons for having a different lex causae for the underlying contract, the arbitration clause, the lex arbitri and indeed the lex curia. Identity should not be too readily assumed. The SC however would seem to have been swayed by the New York Convention’s call for straightforwardness in enforcement (here lies as the SC notes a difference with previous case-law which concerned the pre-enforcement stage).

Not only is the UKSC approach at odds with the French SC, as I noted in my review of the Court of Appeal judgment. I am also not convinced that for the enforcement stage the SC should insist one keeps things simple whilst at many other stages through its authority it encourages often convoluted argument.

Geert.

 

Giles Cuniberti on Kabab-Ji SAL (Lebanon) v Kout Food Group [2021] UKSC 48
For my review of the Court of Appeal judgment, and the conflicting French view, see https://t.co/xk2iONVqIt
Re governing law of an #arbitration agreement https://t.co/hnnLZzyxpt

— Geert Van Calster (@GAVClaw) October 28, 2021

 

Engagement solennel devant la Cour de justice de l’Union européenne de deux nouveaux membres de la Cour des comptes européenne

Servizio Elettrico Nazionale e.a.
Concurrence
L’avocat général Rantos précise les critères pour qualifier d’abusive une exploitation de position dominante en matière de pratiques d’éviction

Heslop v Heslop & Anor [2021] EWHC 2957 (Ch) essentially queries whether Deceased testator actually had any estate or interest in Jamaican Property which she could pass by will.

Under the Moçambique rule (after British South Africa Co v Companhia de Moçambique [1893] AC 602) an English court will not, as a matter of its own limits to jurisdiction, by and large determine matters of title to foreign land. The purpose of the rule is the maintenance of comity and the avoidance of conflict with foreign jurisdictions. The rule has been discussed on the blog before and it finds its EU equivalent of course in Article 24  Brussels Ia.

After considering the rule and the facts of the case, Dray DM holds it is not triggered here for [51-52]

the relief sought (across the two claims) is relief of an in personam nature in a dispute between the two central protagonists, the Second Defendant (the asserted trustee) and the Claimant (the asserted beneficiary) under the asserted trust. The fact that the land in question is situated in Jamaica does not preclude this court from having jurisdiction to hear the claim. The proceedings do not involve any determination of rights in rem. They do not assert a property right which is by its nature enforceable against third parties and they do not purport to bind strangers/third parties. For instance, no possession order, effective against the world at large, is sought (and none could be granted by this court). Neither is any order directed to the Jamaican Land Registry claimed (ditto). The court is only asked to resolve a dispute between those before it, the proceedings being based on an alleged personal (trust) relationship between the Claimant and the Defendants.

Obiter he then [57ff] considers forum non conveniens (argued in fact by neither parties), with the complication [63] that the two claims before the court have not been consolidated and are thus separate claims, albeit proceeding together, and that the first claim was commenced before the end of the Brexit transition period whereas the second claim was commenced afterwards. The judge holds (again: obiter) [68] (seeing also that no consolidation has been sought) that the former claim needs to be assessed viz BIa and the latter viz the post-Brexit rules, [74 ff] that under BIa A24 is not engaged for the same reason as the Moçambique rule, and [72] that if it had been, he would have been minded to follow (with all the necessary caveats  Kennedy v National Trust for Scotland‘s reflexive application.

Geert.

EU Private International Law, 3rd ed. 2021, para 2.208.

1/2 Moçambique rule re jurisdiction for title to foreign land does not apply to in personam orders viz
trustees of a trust of foreign land
Obiter consideration of forum non, reflexive application A24 BIa, and on joining a pre-#Brexit with a post-Brexit claim under the #WA

— Geert Van Calster (@GAVClaw) November 13, 2021

Dyson e.a. / Commission
Droit institutionnel
Consommation énergétique des aspirateurs cycloniques sans sac : le Tribunal rejette la demande de réparation du préjudice allégué par Dyson

Mann v Towarzystwo Ubezpieczen Inter Polska SA & Ors [2021] EWHC 2913 (QB) showcases the recalcitrance which parties can still demonstrate to object to service despite the EU Service Regulation 1393/2007, should they have the obstinance, and deep enough pockets, to do so. Daniel Matchett reviews the case here and I am happy to refer.

Master Thornett at 5 is particularly on point when he refers to the need, particularly for professional defendants, to seek advice on E&W CPR early:

I do not find Mr Grochowalski’s emphasis upon the First Defendant being a small niche company in the Polish insurance market and as had no previous experience of a claim against it brought in another jurisdiction relevant. I am satisfied that such a company could and should taken reliable advice to understand about the English proceedings from service in May 2017 if not previously upon their notification by the Claimants’ solicitors. This could have been done by a variety of means…

Of additional note to Daniel’s assessment I find is the jurisdictional challenge dismissed seemingly by Master Brown in 2017 for reasons I understand of the tardiness of the objection, and the unsuccessful current attempt to resurrect it in this later application. One assumes claimant may have argued the contract was a consumer contract, allowing her (and now that she has sadly passed away, her husband) from pursuing the case in her own domicile.  An objection to jurisdiction which, going by the little the judgment reveals of the contractual circumstances, may have had some merit had it been brought earlier (I emphasise however I do not have much to go by here).

Geert.

Ia re Service Regulation 1393/2007
Mann v Towarzystwo Ubezpieczen Inter Polska SA & Ors [2021] EWHC 2913 (QB) (01 November 2021)https://t.co/hELuzC3gkG
via @IMTravelLawyer https://t.co/zKRjQodDsZ

— Geert Van Calster (@GAVClaw) November 17, 2021