Flux européens

The Court of Justice delivered on 23 November 2023 its judgment in case C‑321/22 (ZL, KU, KM v Provident Polska S.A.), which is about Article 7 Directive 93/13 (notably):

“Article 7(1) of Directive 93/13, read in the light of the principle of effectiveness, must be interpreted as precluding a national law which, as interpreted in the case-law, requires, in order for a consumer’s action for a declaration that an unfair term in a contract concluded with a seller or supplier is unenforceable to be upheld, proof of an interest in bringing proceedings, where that interest is regarded as being absent where the consumer may bring an action for the recovery of sums unduly paid, or where the consumer may raise that unenforceability as part of his or her defence to a counter-claim brought against him or her by that seller or supplier on the basis of that term.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=280068&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=10873860

AG Campos Sánchez-Bordona delivered on 23 November 2023 his opinion in case C‑634/22, which is about Article 19 TEU and the abolition of a specialised Court (in that case a criminal one but the opinion seems equally applicable to a civil and commercial Court, hence its inclusion on this blog).

The opinion: “The second subparagraph of Article 19(1) TEU must be interpreted as meaning that it does not preclude a reform of the judicial system of a Member State according to which a specialised criminal court is abolished and its jurisdiction transferred to a different, ordinary, court, and which provides at the same time that the criminal cases being dealt with in the abolished court and in which a hearing has been held will continue to be heard by the formation that had jurisdiction until that time.

Nor does it preclude, in the context of that reform of the judicial system, the reassignment of the judges of the abolished court to other courts with the same rank, on the basis of objective criteria free of any suspicion of arbitrariness”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=juridiction%2Bp%25C3%25A9nale%2Bsuppression%2B&docid=280082&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=10883304#ctx1

The Court of Justice delivered on 16 November 2023 its judgment in case C‑497/22 (EM v Roompot Service BV), which is about Article 24 Brussels I bis.

The context: “On 23 June 2020, EM, made a booking, via the internet on the website of Roompot Service, for a bungalow at the Waterpark Zwartkruis holiday park, situated at Noardburgum (Netherlands), for the period from 31 December 2020 to 4 January 2021 for a group of nine people who were members of more than two different households.

7 The booking was for a total rental price of EUR 1 902.80, which EM paid in full, and included the provision of bed linen and cleaning at the end of the stay

8 The water park has bungalows located directly on a lake, each with a separate jetty. Boats and canoes can be hired for an additional charge.

9 Roompot Service informed EM by email, prior to arrival and at her request, that the waterpark was open during the period of her booking despite the COVID-19 pandemic, but that, due to the rules in force in the Netherlands, it was only possible for her to stay in the accommodation with her family and a maximum of two people from another household in one bungalow. Roompot Service also offered EM the opportunity to rebook her stay for a later date.

10 Since EM did not stay at the accommodation and did not rebook her stay, she was repaid the amount of EUR 300 by Roompot Service.

11 EM brought an action against Roompot Service before the Amtsgericht Neuss (Local Court, Neuss, Germany) seeking repayment of the remainder of the rental price, in the amount of EUR 1 602.80, plus interest and costs. Roompot Service contested the international jurisdiction of the German courts to hear such an action.

12 By judgment of 1 October 2021, the Amtsgericht Neuss (Local Court, Neuss) dismissed the action as unfounded.

13 EM lodged an appeal before the Landgericht Düsseldorf (Regional Court, Düsseldorf, Germany), the referring court.

14 That court is uncertain whether Netherlands courts have exclusive international jurisdiction to hear the case in the main proceedings on the basis of the first subparagraph of Article 24(1) of Regulation No 1215/2012”.

The decision: “The first subparagraph of Article 24(1) of Regulation (EU) No 1215/2012 […] must be interpreted as meaning that a contract concluded between an individual and a tourism professional by which the latter lets for short-term personal use holiday accommodation situated in a holiday park operated by that professional and including, in addition to the letting of that accommodation, the performance of a range of services in return for a lump sum, does not come within the concept of ‘tenancies of immovable property’ within the meaning of that provision”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=279761&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=10873860

AG Collins delivered on 16 November 2023 his opinion in joined cases C‑345/22 to C‑347/22 (Maersk A/S), which are about Article 25 Brussels I bis.

The context: “Each of these actions is a claim for damages on foot of the partial loss of goods transported by sea. They raise the issue as to the conditions under which a jurisdiction clause in a contract for the carriage of goods by sea evidenced by a bill of lading may be enforced against a third party that subsequently acquired those goods, thereby becoming a third-party holder of that bill of lading”.

The opinion: “(1) Article 25(1) of Regulation (EU) No 1215/2012 […] must be interpreted as meaning that a jurisdiction clause agreed between a carrier and a shipper which is incorporated in a bill of lading is enforceable against a third-party holder of the bill of lading if, on acquiring that bill, it succeeded to the shipper’s rights and obligations. It is for the court seised of the matter to answer that question in accordance with national substantive law as established by applying its rules of private international law. The rule in that provision that the substantive validity of a jurisdiction clause is to be assessed in accordance with the law of the Member State of the court or courts designated in that clause does not govern the enforceability of a jurisdiction clause incorporated in a bill of lading against a third-party holder of that bill.

(2) Article 25(1) of Regulation No 1215/2012 must be interpreted as precluding national legislation under which a third party to a contract for the carriage of goods by sea concluded between a carrier and a shipper that acquires the bill of lading evidencing that contract is subrogated to all the shipper’s rights and obligations, with the exception of the jurisdiction clause incorporated therein, which is enforceable against it only where it negotiated that clause individually and separately”.

The source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=279783&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=10873860

The Court of Justice delivered on 9 November 2023 its judgment in case C‑598/21 (SP, CI v Všeobecná úverová banka a.s.), which is about Article 7 Directive 93/13 (notably):

“Article 3(1), Article 4(1), Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, read in the light of Articles 7 and 38 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding national legislation under which the judicial review of the unfairness of an acceleration clause contained in a consumer credit agreement does not take account of the proportionality of the option given to the seller or supplier to exercise his or her right under that clause, in the light of criteria relating, in particular, to the extent of the consumer’s failure to fulfil his contractual obligations, such as the amount of the instalments which have not been paid in relation to the total amount of the credit and the duration of the contract, and to the possibility that the implementation of that clause may result in the seller or supplier being able to recover the sums due under that clause by selling, without any legal process, the consumer’s family home”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=279485&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=10873860

AG Pikamäe delivered on 26 October 2023 his opinion in joined cases C‑554/21, C‑622/21 and C‑727/21 (Hann-Invest), which are about Article 19 TEU:

“The second subparagraph of Article 19(1) of the Treaty on European Union must be interpreted as not precluding national rules and practices which, at the deliberation stage of court proceedings at second instance concerning a dispute that has been the subject of a decision by the judicial panel seised, provide for:

–      the referral to an enlarged formation by the president of the court or the president of a specialised section, in the light of that decision and where the consistency of the court’s case-law may be or is being undermined, for the purpose of the adoption, by majority vote, of a common position as to the general and abstract interpretation of the applicable legal rule, previously a matter of debate between the parties, which the formation initially seised must take into account for the purpose of resolving the dispute as to the substance;

–      the informing of the president of the court or the president of a specialised division, by a judge responsible for monitoring the case-law of the court, in a situation where the consistency of that case-law may be or is being undermined because the formation seised has maintained its original decision and, pending the adoption of the abovementioned legal position, the suspension of that formation’s decision ruling on the dispute and its notification to the parties”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=279141&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=10873860

United Parcel Service / Commission
Droit institutionnel
Fin de l’accord de fusion UPS-TNT : l’irrégularité commise par la Commission n’est pas la cause déterminante du prétendu manque à gagner d’UPS et ne justifie donc pas de l’indemniser

Commission / Danemark (Durée maximale de stationnement)
Transport
Manquement d’État : la Cour rejette le recours de la Commission contre le Danemark concernant la durée maximale de stationnement sur les aires d’autoroute

G. K. e.a.
Espace de liberté, sécurité et justice COJP
Parquet européen : la Cour clarifie l’exercice du contrôle juridictionnel des mesures d’enquêtes transfrontières par les juges nationaux

GN (Motif de refus fondé sur l’intérêt supérieur de l’enfant)
Espace de liberté, sécurité et justice
Mandat d’arrêt européen : la remise d’une personne recherchée ne peut être refusée au seul motif qu’elle est la mère d’enfants en bas âge

Krajowa Rada Sądownictwa (Maintien en fonctions d’un juge)
Droit institutionnel
Système judiciaire polonais : une formation de jugement de la chambre de contrôle extraordinaire et des affaires publiques de la Cour suprême ne constitue pas un tribunal indépendant et impartial, établi préalablement par la loi

Royal Antwerp Football Club
Libre circulation des personnes

Football : les règles de l’UEFA et de l’URBSFA sur les « joueurs formés localement » pourraient être contraires au droit de l’Union

Chief Appeals Officer e.a.
Libre circulation des personnes
Libre circulation : la mère d’un travailleur migrant de l’Union peut, dès lors qu’elle est à la charge de ce travailleur, demander une prestation d’assistance sociale sans que cette demande remette en question son droit de séjour

European Superleague Company
Concurrence

Les règles de la FIFA et de l’UEFA sur l’autorisation préalable des compétitions de football interclubs, telle que la Superleague, violent le droit de l’Union

International Skating Union / Commission
Concurrence

Les règles de l'International Skating Union sur l’autorisation préalable des compétitions de patinage de vitesse sur glace violent le droit de l'Union

BMW Bank
Environnement et consommateurs
Un consommateur qui conclut un contrat de leasing automobile sans obligation d’achat ne dispose pas d’un droit de rétractation

My thoughts on the Court of Appeal’s finding in Zubaydah v FCO are here. I am pleased to have played a role for claimant’s lawyers, pro bono, in the proceedings before the UK Supreme Court, which held today in Zubaydah (Respondent) v Foreign, Commonwealth and Development Office and others (Appellants).

The issue in the appeal is whether the law applicable under sections 11 and 12 of the Private International Law (Miscellaneous Provisions) Act 1995 (“PILA”) to torts alleged to have been committed by two of the UK’s security agencies  is the law of England and Wales or the law of each of the six countries in which the claimant alleges he was unlawfully detained and tortured by the CIA. The High Court had held for the latter, which follows from the generally applicable lex loci damni rule. The Court of Appeal reversed, holding for the former on the basis of the small window to displace the general rule and this finding has now been confirmed by the Supreme Court.

The relevant PILA sections read as follows

“11. Choice of applicable law: the general rule.

(1) The general rule is that the applicable law is the law of the country in which the events constituting the tort or delict in question occur.

(2) Where elements of those events occur in different countries, the applicable law under the general rule is to be taken as being—

(a) for a cause of action in respect of personal injury caused to an individual or death resulting from personal injury, the law of the country where the individual was when he sustained the injury;

(b) for a cause of action in respect of damage to property, the law of the country where the property was when it was damaged; and

(c) in any other case, the law of the country in which the most significant element or elements of those events occurred.

(3) In this section “personal injury” includes disease or any impairment of physical or mental condition.”

“12. Choice of applicable law: displacement of general rule.

(1) If it appears, in all the circumstances, from a comparison of—

(a) the significance of the factors which connect a tort or delict with the country whose law would be the applicable law under the general rule; and

(b) the significance of any factors connecting the tort or delict with another country,

that it is substantially more appropriate for the applicable law for determining the issues arising in the case, or any of those issues, to be the law of the other country, the general rule is displaced and the applicable law for determining those issues or that issue (as the case may be) is the law of that other country.

(2) The factors that may be taken into account as connecting a tort or delict with a country for the purposes of this section include, in particular, factors relating to the parties, to any of the events which constitute the tort or delict in question or to any of the circumstances or consequences of those events.”

Two background documents are of particular relevance: ‘LCR’ = the Law Commission Report December 1990; and ‘JCP’ =  the Joint Consultation Paper 1984. The LCR [2.6] ff had justified its proposal for amendment to the English prior rule of double actionability for torts, by suggesting it does away with 3 main challenges of the double actionability rule:

• • • its anomalous character (it was said to give too much weight to English and Scots law as lex fori, contrary to the UK’s general happiness to apply foreign law);
    • its injustice in terms of giving an advantage to the wrongdoer (the victim’s burden of proof under the double actionability rule is particularly heavy); and
    • the uncertainty and speculative implication NOT in the rule but in a relevant exception, Boys v Chaplin [1971] AC 356.

[54] The approach to be adopted when considering whether the general rule is displaced pursuant to section 12 was considered by the Court of Appeal in VTB Capital plc v Nutritek International Corpn [2012] EWCA Civ 808 and in current case Lord Lloyd-Jones and Lord Stephens for the majority [54] ff summarise the four principles that follow from that case.

Note that [62] the Supreme Court criticises parties’ agreement that the determination of the defendants’ appeal did not require any consideration of the potential application of section 14 PILA (the ordre public correction):

We consider that there is an artificiality about deciding which law governs the liability in tort of the UK Services without considering public policy considerations under section 14 of the PILA. Although, we express no view on the matter, there is scope for suggesting, for example, that on the presumed facts of this case, it is a constitutional imperative that the applicable law in relation to the tort of misfeasance in public office in relation to the acts and omissions of the UK Services should be the law of England and Wales. However, we have been presented with a preliminary issue on sections 11 and 12 of the PILA and must seek to address it solely on that basis. We conclude this part of the judgment by observing that, depending on the outcome of the appeal, it may be necessary for a court to consider the impact, if any, of section 14 of the PILA at a later stage of these proceedings.

[73] the Court of Appel was held to have been correct in rebuking the first instance judge for focusing too much on the role of the CIA

The required focus is on the torts committed by the defendants or those for whom they are responsible. Instead, the Court of Appeal considered, the judge had focused on the overall conduct of the CIA. In our view, there is force in this criticism.

[74] ff discusses the treatment by the first instance judge of factors relevant in displacing the locus damni general rule: (1) First, the claimant had no control over his location and in all probability no knowledge of it. (2) So far as the UK Services were concerned, the claimant’s location from time to time was irrelevant and may well have been unknown. (3) The claimant had been rendered to the Six Countries precisely because this would enable him to be detained and tortured outside the laws and legal systems of those countries.  The Supreme Court agrees with the Court of Appeal’s finding that the judge had wrongly applied the relevance of these factors. Those finding fault with the Supreme Court’s approach may find this too much of a factual analysis rather than a point of law I imagine (as indeed Lord Sales does to some degree in his dissent).

[80] the Court of Appeal itself is then held to have fallen short of the proper exercise in applying s12:

It seems to us, however, that the Court of Appeal has also fallen into error in relation to the required focus under section 12 of the PILA on the torts committed by the defendants. Section 11(1) provides that the general rule is concerned with “the country in which the events constituting the tort … in question occur”. Similarly, section 12 refers to “the significance of the factors which connect a tort … with the country whose law would be the applicable law under the general rule” and with “another country”. In our view, the Court of Appeal, in approaching the section 12 exercise, interpreted the scope of the relevant torts too narrowly in that it equated the torts in question with the conduct of the UK Services which is alleged to be wrongful.

Rather than conflating the conduct of the UK Services with the torts,

The Court of Appeal should have focused on the torts alleged against the UK Services for which the defendants are said to be vicariously responsible

leading [82] ff the SC itself completing the s12 exercise.

The significance of the connection between the torts and each of the Six Countries arising from the claimant’s detention there and the infliction of his injuries there is held to be massively reduced by the factors discussed in [92] ff:

reasonable expectations and involuntary presence [93];

the security services’ indifference as to where the claimant was held and them never expecting or intending to have their conduct judged by reference to the laws of the places where he was held [94];

the insulated environments within which claimant was held and where he could be denied any access to the local law (alleged to apply in Moziak fashion by the defendants) or recourse to local courts [95], countries which in effect were insulated form the courts [97];

the sheer number of black sites in which the claimant was held diminishes the significance of the law of any one of them, and moreover it would be impossible for him to establish where he sustained which injury [96];

[98] ff conversely, the strong factors connecting the torts to the UK:

the alleged vicarious liability of the UK Government [99];

the relevant acts and omissions of the UK Services in requesting information from the CIA were more likely than not to have taken place in England, and were likely committed by the UK Services for the perceived benefit of the United Kingdom [100]; and

the actions were taken by UK executive agencies acting in their official capacity in the purported exercise of powers conferred under the law of England and Wales [101].

Lord Sales dissented, pointing also to the Court of Appeal and the High Court simply disagreeing on the weight to be given to the various factors, and in his own analysis of those factors he reaches the conclusion that the Mozaik of the 6 laws should apply.

It is rare for an applicable law issue in tort to be discussed to such extent by the Supreme Court and the judgment carries great relevance.

Geert.

Illegal rendition, applicable law, displacement of the ordinary lex loci damni rule
More soon (and background here https://t.co/dYdGJILOJ2)
Pleased to have played a small (pro bono) role in the appeal with the SC. https://t.co/szromMgIQp

— Geert Van Calster (@GAVClaw) December 20, 2023

 

 

JPMorgan Chase e.a. / Commission
Concurrence
Concurrence en matière de produits dérivés de taux d’intérêt libellés en euros : le Tribunal rejette en grand partie les recours de JPMorgan Chase et de Crédit agricole

Banque postale / CRU
Politique économique
Calcul des contributions ex ante au Fonds de résolution unique pour 2021 : le Tribunal annule la décision du Conseil de résolution unique visant certaines banques françaises et allemande pour insuffisance de motivation

Ryanair et Malta Air / Commission
Aide d'État
Aides d’État dans le contexte de la pandémie de Covid-19 : le Tribunal annule les décisions de la Commission approuvant les aides financières de la France en faveur d’Air France et d’Air France-KLM