Agrégateur de flux

Thelen Technopark Berlin

Malgré le fait que la Cour ait déjà constaté que la réglementation allemande fixant des montants minimaux d’honoraires pour les prestations des architectes et des ingénieurs (HOAI) est contraire à la directive « services », une juridiction nationale, saisie d’un litige opposant des particuliers, n’est pas tenue, sur le seul fondement du droit de l’Union, de laisser inappliquée cette réglementation allemande

Wiener Landesregierung (Révocation d'une assurance de naturalisation)
Citoyenneté européenne
La révocation d’une assurance de naturalisation doit respecter le principe de proportionnalité lorsqu’elle empêche de recouvrer la citoyenneté de l’Union

This post was written by Amy Held and Matthias Lehmann.

Prima facie, it does not seem that anyone need be overly concerned about the post-Brexit relationship between the Rome II Regulation and English law.  However, such complacency overlooks the continued relevance of the Rome II Regulation, as part of UK domestic law, in the English courts by virtue of s 3(1) of the European Union Withdrawal Act 2018, as amended by reg 11 of the The Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc.) (EU Exit) Regulations 2019. These points were recently highlighted by the High Court of England and Wales in Fetch.AI Ltd v Persons Unknown [2021] EWHC 2254 (Comm).

Background

The First Applicant was an English-registered company which alleged that Persons Unknown had, without authorisation, accessed its account with the Binance Exchange and effected a series of transactions at an undervalue, thereby causing it loss in excess of USD 2.6 million.  Accordingly, the First Applicant sought several court orders in claims for, inter alia, breach of confidence. As the Respondents were without the English jurisdiction or were otherwise in an unknown location, the First Applicant also required permission to serve proceedings out of the jurisdiction under CPR rr 3.6 and 3.7.

As summarised in Altimo Holdings and Investment Ltd v Kyrgyz Mobile Tel Ltd [2011] UKPC 7; [2012] 1 W.L.R. 1804, applications to serve out are subject to a three-limb test.  Of these, limb two requires the applicant to show that there is a “good arguable case” against the foreign defendant that falls within the classes of case for which leave to serve out may be given, as set out in PD 6.B para 3.1.  In the present case, HHJ Pelling QC (‘the Judge’) was satisfied that there was a good arguable case for breach of confidence, and that the other limbs of the test were made out.  Permission was therefore granted.

In this post, we examine from an EU perspective the basis upon which the Judge concluded that, applying Rome II, that English law governed the claim. Our fuller analysis, encompassing an analysis of English substantive law, may be found in Amy Held & Matthias Lehmann, ‘Hacked crypto-accounts, the English tort of breach of confidence and localising financial loss under Rome II’ (2021) 10 JIBFL 708.

The Applicability of Rome II

The Judge referred to the Rome II Regulation (sometimes mistakenly as the “Rome Convention”), given its continued application in the UK pursuant to the EU Withdrawal Act 2018; and considered the bases upon which the English cause of action of breach confidence may properly fall within its scope.

The Judge first (correctly, it is submitted) rejected Article 6 Rome II, distinguishing Shenzhen Senior Technology Material Company Limited v Celgard LLC [2020] EWCA Civ 1293 on the basis that this earlier case concerned a claim for breach of confidence arising from an act of unfair competition within the scope of the Trade Secrets (Enforcement, etc) Regulations 2018.  The present case, however, did not concern unfair competition and, in the Judge’s view, Shenzhen Senior Technology Material Company did not form authority for the general proposition under English law and characterisation that all breach of confidence claims fall within Article 6.

The Judge then considered the general rule for tort/delict in Article 4, and found it encompassed a common law claim of breach of confidence.  In doing so, the Judge applied the English characterisation of breach of confidence as a common law tort, rather than the civilian characterisation as a privacy or personality rights falling within the exclusion in Article 1(2)(g) Rome II. 

Localisation

Having thus concluded that Article 4 of Rome II applied, the Judge considered the main issue to be identifying “the law of the country in which the damage occurs.”  In this respect, the Judge considered the decisive issue to be localising the relevant property, i.e., the cryptocurrency.  Citing Ion Science v Person Unknown (Unreported, 21 December 2020) (commentary in A Held, ‘Does situs actually matter when ownership to bitcoin is in dispute?’ (2021) 4 JIBFL 269), the Judge held that the cryptocurrencies were situate at the place where its owner is domiciled.  Given that the First Applicant was domiciled in England, the Judge concluded that the relevant property was situate in England. In his opinion, English law therefore governed the proposed claim. 

Analysis

There are at least two issues with this decision from the perspective of Rome II.

First, the approach taken by the Judge in localising loss by reference to the domicile of the owner is inherently circular: identifying the place of damage with the domicile of the owner of crypto assets begs the question of which law determines ownership over crypto assets. This question cannot be answered by referring (again) to the domicile of the owner without entering a vicious circle.

Second, the decision fails to consider the long-standing line of CJEU caselaw that deals specifically with the question of localising financial and/or pure economic damage under the Brussels Ibis Regulation and its predecessors which, pursuant to Recital 7 of Rome II, is to be followed when Rome II applies. As the CJEU ruled in Kronhofer, the ‘place where the damage occurred’ does not “refer to the place where the claimant is domiciled or where ‘his assets are concentrated’ by reason only of the fact that he has suffered financial damage there.” Although the CJEU has given some scope to consider the place of domicile of the injured party (e.g. in Kolassa and Löber), localising pure economic loss nevertheless entails a multifactorial approach taking into account all the facts of the case.

Conclusion

Fetch.AI demonstrates the potential trend for divergence between the CJEU and the English courts as to the application of EU instruments of private international law. As the decision shows, insufficient attention is given even to pre-Brexit decisions of the CJEU, notwithstanding that they are presently binding “retained case law” pursuant to s 6(3) of the European Union Withdrawal Act 2018 on courts in the UK, except the UK Supreme Court, the High Court of Justiciary in certain circumstances, and where Regulations otherwise provide (s 6(4) European Union Withdrawal Act 2018). Accordingly, greater attention should be paid by UK courts to both the express terms of EU instruments of private international law, and the case law of the CJEU on their interpretation.

I am hoping to tackle some of the pre-Christmas queue this week, kicking off with the Opinion (no English version available) of Pikamae AG in C-568/20 J v H Limited. The case concerns the enforcement of a 2019 decision of the England & Wales High Court [I believe that judgment is Arab Jordan Investment Bank Plc & Anor v Sharbain [2019] EWHC 860 (Comm). The dates do not quite correspond (6 days of) but the amounts and line of argument do].

Clearly the UK were still a Member State at the time. The English decision was based, in turn, on two Jordanian judgments of 2013. It had rejected, on the basis of the English common law (judgments issued outside the EU are not subject to EU recognition and enforcement rules), the arguments against enforcement in the UK. The judge subsequently issued an Article 53 Brussels Ia certificate.

The issue is not whether a judgment merely confirming a non-EU judgment, may be covered by Article 53 Brussels Ia. CJEU Owens Bank has already held they cannot (see Handbook, 3rd ed. 2021, 2.573). The issue is rather whether, exequatur having been abandoned in Brussels Ia, arguments as to whether the judgment in the State of origin be at all covered by Brussels Ia, may be raised by way of an Article 45 objection to recognition and enforcement.

CJEU Diageo Brands, among others, has confirmed the narrow window for refusal of recognition on the basis of ordre public. The AG suggests wrong decisions on the scope of application of BIa, leading to incorrect A53 certificates, may fall within that category. Far from upsetting the principle of mutual trust, he suggests it is a necessary ‘safety valve’, a “soupape de sécurité » (40) which assist with said mutual trust. The AG qualifies the opinion by suggesting the issuing of an A53 certificate for a judgment that merely enforces an ex-EU judgment, is a grave error in the scope of application of the Regulation.

Should the CJEU confirm, discussion of course will ensue as to what are clear errors in the scope of application, or indeed in the very interpretation of Brussels Ia.

Geert.

EU Private International Law, 3rd ed 2021, Heading 2.2.17.1.

Opinion Pikamae AG yday, #CJEU C-568/20
Member State court may refuse recognition of other MS (UK, pre #Brexit) High Court judgment if said judgment merely enforces judgment from a third State, Jordan. Brussels Ia Title 3 'judgments' must emanate from a MShttps://t.co/NkJ6zh9FU9

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

To conclude its current research project on the national rules on jurisdiction in civil and commercial matters over non-EU defendants, the Young Research Network of the EAPIL will host a conference in Dubrovnik on 14 and 15 May 2021 (currently planned as an in-person event).

The conference will highlight the findings of the research project and link them to the wider question of whether or not the Regulation should be extended to non-EU defendants. To this end, the panelists will include participants in the research project, other members of the Young Research Network as well as representatives of stakeholders such as the European Commission and the Hague Conference on Private International Law.

Attendance of the conference will be free of charge. Further information will soon be made available on this blog.

Par un arrêt du 9 décembre 2021, la Cour de justice se prononce sur la détermination du juge compétent dans une affaire dans laquelle à la suite de l’invalidation d’une mesure d’exécution forcée, son bénéficiaire s’est vu demander la restitution de la somme litigieuse.

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The 4th German-speaking Conference for Young Scholars in Private International Law will take place on 23 and 24 February 2023 at the Sigmund Freud University in Vienna.

The theme of the conference will be Deference to the foreign – Empty phrase or guiding principle of private international law?

Here’s the concept:

As part of the legal system, rules of private international law are bound by the principles of their national jurisdiction, but they also open up the national system to foreign rules. Is the claim of deference to the foreign merely an empty phrase or, at best, a working hypothesis, or can it serve as a meaningful guiding principle of private international law? Are there tendencies within or across specific areas of private international law to move away from deference to, and towards a general suspicion against, the foreign? To what extent does (mutual) trust become the basis of deference to the foreign in the process of internationalisation and Europeanisation? What, if any, is the relationship between deference to the foreign and the methods of private international law?

The organisers of the conference (Andreas Engel, Florian Heindler, Katharina Kaesling, Ben Köhler, Martina Melcher, Bettina Rentsch, Susanna Roßbach and Johannes Ungerer) are inviting contributions from all areas of private international law, including but not limited to contract and tort law, company law, family and succession law as well as international procedural law, international arbitration and uniform law.

The written contributions will be published in an edited conference volume. The conference will be held in German, but English presentations are also welcome. The call for papers will be released in spring 2022. Abstracts may be submitted until late Summer 2022.

Further information on the conference is available here.

Entrée en fonctions de trois nouveaux membres du Tribunal de l’Union européenne

Regione Puglia
Liberté d'établissement
Un État membre peut, dans les limites géographiques qu’il a fixées, octroyer à un même opérateur plusieurs permis de prospection, d’exploitation et d’extraction d’hydrocarbures, tels que le pétrole et le gaz naturel, pour des zones contiguës à condition de garantir à tous les opérateurs un accès non discriminatoire à ces activités et d’apprécier l’effet cumulé des projets susceptibles d’avoir un impact notable sur l’environnement

Allemagne - Ville de Paris e.a. / CommissionC-178/19 P Hongrie - Ville de Paris e.a./Commission
Environnement et consommateurs
La Cour annule l’arrêt du Tribunal sur l’annulation partielle du règlement de la Commission fixant des valeurs d’émissions pour les essais en conditions de conduite réelles des véhicules légers neufs

MIUR et Ufficio Scolastico Regionale per la Campania
DFON
Professeurs de religion catholique : la nécessité d’un titre d’aptitude délivré par une autorité ecclésiastique ne justifie pas le renouvellement de contrats à durée déterminée

The author of this post is Marco Buzzoni, Research Fellow at the Max Planck Institute Luxembourg.

On 21 December 2021, the Grand Chamber of the Court of Justice of the European Union (“CJEU”) handed out its much-anticipated judgment in Case C-251/20, Gtflix Tv v DR (“Gtflix Tv”), a case dealing with the interpretation of Article 7(2) of the Brussels I bis Regulation in the context of torts committed through an online publication. In this decision, the Court confirmed that the so-called ‘mosaic approach’ to jurisdiction first established in Shevill applies to an action seeking compensation for the harm allegedly caused by the placement of disparaging comments on the internet. Departing from the Opinion of AG Hogan issued on 16 September 2021 (on the Opinion, see more here), the CJEU held that the courts of each Member State in which those comments are or were accessible have jurisdiction to hear the case, provided that the compensation sought is limited to the damage suffered within the Member State of the court seised.

Far from putting an end to doubts concerning the allocation of jurisdiction under Article 7(2) Brussels I bis, however, the CJEU’s decision in Gtflix Tv will most likely revive the debates on the need to update the current jurisdictional framework applicable to online torts.

Background of the Case

Gtflix Tv — a company established in the Czech Republic and specialised in the production and distribution of adult audiovisual content — brought an action for interim measures (référé) against DR — a director, producer and distributor of similar content domiciled in Hungary — before the President of the tribunal de grande instance de Lyon (Regional Court, Lyon, France).

Before that court, the plaintiff sought the rectification and removal of disparaging comments allegedly made by DR on several websites and forums, and asked for a symbolic compensation for the economic and non-material damage caused to its reputation. The court of first instance dismissed the action for lack of jurisdiction, and the plaintiff appealed this decision before the cour d’appel de Lyon (Court of Appeal, Lyon). On appeal, the plaintiff increased to EUR 10,000 the provisional sum claimed as compensation for the damage suffered in France. On 24 July 2018, however, the Court of Appeal confirmed the dismissal for lack of jurisdiction. The plaintiff subsequently filed an application against the judgment with the French Cour de cassation (Court of Cassation, France), contending that French courts had jurisdiction based on Article 7(2) Brussels I bis.

By a decision dated 13 May 2020 (on this decision, see more here), the Court of Cassation held that the French courts lacked jurisdiction to hear claims seeking the removal and the rectification of the allegedly disparaging statements published on the internet, in light of the CJEU’s judgment in Bolagsupplysningen and Ilsjan. As to the remaining claim for compensation, however, the French court wondered whether the same solution should apply, given the “necessary link of dependence” between this action and the request for rectification and withdrawal. Hence, the Court of Cassation decided to stay the proceedings and referred the following question to the CJEU:

“Must Article 7(2) [Brussels I bis] be interpreted as meaning that a person who, considering that his or her rights have been infringed by the dissemination of disparaging comments on the internet, brings proceedings not only for the rectification of data and the removal of content but also for compensation for the resulting non-material and economic damage, may claim, before the courts of each Member State in the territory of which content published online is or was accessible, compensation for the damage caused in the territory of that Member State, in accordance with the judgment of 25 October 2011, eDate Advertising and Others (C‑509/09 and C‑161/10, EU:C:2011:685, paras 51 and 52), or whether, pursuant to the judgment of 17 October 2017, Bolagsupplysningen and Ilsjan (C‑194/16, EU:C:2017:766, para 48), that person must make that application for compensation before the court with jurisdiction to order rectification of the information and removal of the disparaging comments?”

CJEU’s Analysis

After a relatively lengthy summary of the general canons of interpretation that, according to the Grand Chamber, should guide the jurisdictional rules applicable to extra-contractual liability (paras 20-26), the Court began its decision by recalling the traditional solution according to which Article 7(2) grants jurisdiction to both the courts of the place “where the damage occurred and the place of the event giving rise to it” (para 27). The Court then underscored that the case at hand only required an assessment of whether the alleged damage occurred in France (para 28), and stated that, under existing precedent, parties who wish to vindicate violations of privacy and other personality rights through the internet (including defamation and harm to their commercial reputation) may either:

1. bring an action before the courts of each Member State in which content placed online is or has been accessible and seek compensation only in respect of the damage caused in the Member State of the court seised (Shevill);
2. seek compensation for all the damage allegedly suffered before the courts of the Member State in which the publisher of that content is established or before the courts of the Member State in which the plaintiff’s centre of interests is based (eDate Advertising); or
3. apply for the rectification of incorrect information and the removal of disparaging comments affecting their reputation, but only before the courts competent to rule on the entirety of the damage (Bolagsupplysningen and Ilsjan).

Having thus set the stage for its decision (paras 29-33), the CJEU went on to reject the idea that the “necessary link of dependence” between these claims weighed in favour of the exclusive jurisdiction of the courts competent to rule on the entire damage (paras 34-40). In this respect, the Court held, first of all, that while applications for rectification of information and removal of content are single and indivisible in nature and may therefore warrant the concentration of jurisdiction upon a limited number of courts, no such justification exists for claims of compensation (para 35). Secondly, the Court dismissed the argument that a “necessary link of dependence” exists between applications for injunctive relief and actions for damages, as “their purpose, their cause and their divisibility are different, and there is therefore no legal necessity that they be examined jointly by a single court” (para 36). Thirdly, the Court considered that a concentration of jurisdiction would not always serve the interests of the sound administration of justice (paras 37-40).

Finally, the Grand Chamber concluded its decision by rejecting the argument formulated by AG Hogan according to which, should the Court uphold the mosaic approach to jurisdiction inaugurated in Shevill, the reference to the place where the damage occurred should only be interpreted to cover the Member States where the publication in question is concretely “directed”. Citing its decisions in Pinckney and Hejduk, the Court held, however, the wording of Article 7(2) does not impose any additional condition regarding the determination of the competent court, and that such a restrictive approach could in some cases lead to the de facto exclusion of the option to bring proceedings before the courts of the place where the damage occurred.

Critical Assessment

Contrary to what a first reading of the judgment may suggest, the CJEU’s decision in Gtflix Tv does not simply uphold well-established solutions contained in the conspicuous body of case-law concerning the protection of privacy and personality rights. Indeed, a closer look at the Court’s reasoning reveals that the solution reached by the Grand Chamber was everything but a foregone conclusion.

Firstly, the CJEU’s reliance on its precedents largely ignores AG Hogan’s observation that “[u]nder French law, disparagement does not fall within the scope of infringement of rights relating to the personality” (para 96 of the AG’s Opinion) and that, therefore, the place where the damage occurred should have been determined having regard to the CJEU’s case-law issued in the area of infringement of economic rights. Rather than a mere reiteration of the mosaic approach to jurisdiction, the Grand Chamber’s decision in Gtflix Tv may therefore be regarded as an extension of it to an area of the law where this solution did not obviously apply and to a context, that of internet jurisdiction, that the Court in Shevill had not specifically addressed.

Secondly, the Grand Chamber’s emphasis on the plaintiff’s option to bring an action before the courts of any place where the damage occurred (see paras 39 and 42) stands in stark contrast with some of the CJEU’s most recent decisions under Article 7(2) (on this point, see in particular cases Case C‑800/19, Mittelbayerischer Verlag KG, and C‑709/19, Vereniging van Effectenbezitters, both stressing the need to ensure the predictability of the jurisdictional rule applicable to extra-contractual liability). In this respect, it is rather telling that the Grand Chamber’s summary of the relevant canons of interpretation applicable to Article 7(2) Brussels I bis conveniently omits the oft-cited principle according to which derogations from the general rule set out in Article 4 Brussels I bis should be interpreted restrictively. Undoubtedly, this factor would have nudged against the confirmation of the mosaic approach ultimately upheld by the CJUE.

Finally, the reasons put forward by the Grand Chamber to reject a narrower interpretation of the term “accessibility” favoured by the AG are rather unpersuasive. On the one hand, in fact, the Court’s comparison between the wording of Article 7(2) and Article 17(1)(c) Brussels I bis is quite unconvincing, given the overwhelming weight played by judge-made rules in the law of extra-contractual jurisdiction. On the other hand, the extension of the solution adopted in Pinckney and Hejduk seems especially ill-suited to disputes where, by contrast to cases involving of the protection of copyright, the principle of territoriality does not appear to be particularly pregnant.

All in all, the CJEU’s judgment in Gtflix Tv highlights the need to revisit the jurisdictional provision set out in Article 7(2) Brussels I bis, specifically — but by no means exclusively — with regards to disputes sitting at the intersection of internet jurisdiction and personality rights. Admittedly, legislative reform represents a more palatable solution than the piecemeal approach based on case-law when it comes to the specific challenges posed by the impact of new technologies in this area of the law. In this respect, it will therefore be interesting to see how the Grand Chamber’s decision will be received in the context of the recent initiative promoted by the EU Commission to protect journalists and civil society against SLAPPs, as well as within the broader framework of the upcoming recast of Brussels I bis Regulation.

Les deux derniers mois de l’année 2021 ont été écourtés d’une dizaine de jours par la trêve de Noël mais ils n’en ont pas moins permis à la Cour européenne des droits de l’homme de livrer des arrêts et décisions de haute importance. On relèvera une série d’arrêts qui valident la politique sécuritaire de la France ; le retour d’arrêts de grande chambre relatifs à l’expulsion de délinquants étrangers gravement malades et à l’adoption de l’enfant à l’encontre des souhaits culturels et religieux de sa mère biologique ; l’adaptation du droit à la liberté d’expression aux outils de communication électroniques ; les droits des détenus ; les droits des avocats…

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LANCASTER UNIVERSITY LAW CONFERENCE
Lancaster University, U.K.
3rd June 2022
CONTEMPORARY CHALLENGES TO LAW AND CRIMINOLOGY

Call for Abstracts

After the grand success of our three annual international conferences in 2019, 2020 and 2021 we are happy to announce that we will be organizing this year’s annual international conference (virtual) on the broad theme ‘Contemporary Challenges to Law and Criminology’.

It is believed that law acts as a powerful tool for social change. In today’s world, most aspects of human behaviour are regulated by legal rules and principles. From policies affecting the poor to regulating economic and political agendas between powerful nations, law plays an important role in shaping the future for coming generations.

In addition, contemporary criminological issues question some of today’s most pressing social issues, from interpersonal violence, drugs misuse, to crimes against the environment. An unprecedented rise in exclusionary and punitive state policies and practices has produced high levels of contemporary issues in both law and criminology.

In the context of changing socio-political scenarios around the world, there is a need to reevaluate our understanding of applicability of legal rules that can bring about real change and provide opportunity for the betterment of everyone. The question of how to apply ‘law’ is now once again open for debate and we intend to discuss it from broad perspectives.

Lancaster University Law School invites proposals for individual contributions under the broad theme of ‘Contemporary Challenges to Law and Criminology’. The Conference invites academics, Masters, PhD students, early career researchers and practitioners for a one-day virtual conference.

Suggested topics under the theme ‘Contemporary Challenges to Law and Criminology’ for the
conference include, but are not limited to:

Law and Ethics in Business, Finance and Banking

Digital Justice

Social justice and Equality

The Environment and Eco systems

Gender and Sexuality

Drugs Policy, Practice and Usage

Abstracts of no more than 300 words and a short bio of 50 words should be sent to lawpgrconference@lancaster.ac.uk by 31st March 2022.

Selected presenters will be notified by 15th April 2022.

For any queries please contact: lawpgrconference@lancaster.ac.uk or visit

David Walker, Rapporteur of the 24th International Union of Judicial Officers (UIHJ) Congress, has edited the proceedings of the event. The book, published by Bruylant, is titled Cyberjustice, new Opportunities for the Judicial Officer and includes various contributions  (in English and French) dealing with Cyberjustice in line with the expectations of judicial officers. Many articles are dealing with international justice and enforcement (e.g. e-Codex, Hague Convention on Judgments, Service of documents Regulation…) under a digital perspective.

As explained in the foreword by Marc Schmitz, President of the UIHJ, the world is digitising and the current pandemic of COVID-19 even accelerates this process. The judicial officer must consider the digital evolution of justice not only as a challenge but as an opportunity. In particular digital enforcement and digital asset seizure will become common practice in the near future. In this context, there is a need to introduce rules on digital enforcement and seizure of digital assets. These rules need to be harmonised globally. Solutions at national level alone will not be sufficient. The digital world is cross-border. The UIHJ can be one of the pioneers and play a leading role in drafting position papers and making recommendations in the field of digitalisation of enforcement, such as a proposal for a World Code of Digital Enforcement.

The table of contents reads as follows:

Introduction by the President of UIHJ
Word of His Excellency Director General of Dubai Courts
Introduction by the General Reporter

Part I – Excellence and Innovation

Part II – New Technologies – Delivering Efficient Justice

Part III – New technologies and enforcement

Contributors include : Françoise Andrieux, Amna Al Owais, Massimiliano Blasone, Jackson Chen, Gary A. Crowe, Malone da Silva Cunha, Karolien Dockers, Sylvian Dorol, Robert W. Emerson, Luc Ferrand, Natalie Fricero, Patrick Gielen, Alex Irvine, Aída Kemelmajer de Carlucci, Martin Leyshon, Jorge Martinez Moya, Paula Meira Lourenço, Tereza Lungova, Orazio Melita, Yacob Mohamed Ahmed Abdullah, Jérôme Gérard Okemba Ngabondo, Luis Ortega, Guillaume Payan, Iva Peni, Neemias Ramos Freire, Teresa Rodríguez de las Heras Ballell, Dovilė Satkauskienė, Marc Schmitz, Risto Sepp, Rui Simao, Adrian Stoica, François Taillefer, Dimitrios Tsikrikas, Aranya Tongnumtago, Jos Uitdehaag, Sjef van Erp, Jona Van Leeuwen, Pimonrat Vattanahathai, Anna Veneziano, Elin Vilippus, David Walker, Vladimir Yarkov, Ning Zhao.

Full table of contents here and more information here.

Rescheduled: “The HCCH 2019 Judgments Convention: Prospects for Judicial Cooperation in Civil Matters between the EU and Third Countries” – Conference on 9 and 10 September 2022, University of Bonn, Germany

In preparation of the Conference on the HCCH 2019 Judgments Convention on 9/10 September 2022, planned to be taking place on campus of the University of Bonn, Germany, we are offering here a Repository of contributions to the HCCH 2019 Judgments Convention. Please email us if you miss something in it, we will update immediately…

Update of 12 January 2022: New entries are printed bold.

Please also check the “official” Bibliography of the HCCH for the instrument.

 

I. Explanatory Reports

Garcimartín Alférez, Francisco;
Saumier, Geneviève „Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters: Explanatory Report“, as approved by the HCCH on 22 September 2020 (available here) Garcimartín Alférez, Francisco;
Saumier, Geneviève “Judgments Convention: Revised Draft Explanatory Report”, HCCH Prel.-Doc. No. 1 of December 2018 (available here) Nygh, Peter;
Pocar, Fausto “Report of the Special Commission”, HCCH Prel.-Doc. No. 11 of August 2000 (available here), pp 19-128

 

II. Bibliography

Badr, Yehya Ibrahim “The Hague 2019 Convention for the Recognition and Enforcement of Foreign Judicial Decisions: A Comparative Study”, International Journal of Doctrine, Judiciary, and Legislation (IJDJL) 2 (2021), pp. 427-468 (available here) Balbi, Francesca “La circolazione delle decisioni a livello globale: il rogetto di convenzione della Conferenza dell’Aia per il riconoscimento e l’esecuzione delle sentenze straniere” (Tesi di dottorato, Università degli Studi di Milano-Bicocca, 2019; available: here) Beaumont, Paul “Forum non Conveniens and the EU rules on Conflicts of Jurisdiction: A Possible Global Solution”, Revue Critique de Droit International Privé 2018, pp 433-447 Beaumont, Paul R. “Judgments Convention: Application to Governments”, Netherlands International Law Review (NILR) 67 (2020), pp 121-137 Beaumont, Paul;
Holliday, Jane (eds.) “A Guide to Global Private International Law”, Oxford 2022, forthcoming. Biresaw, Samuel Maigreg “Appraisal of the Success of the Instruments of International Commercial Arbitration vs. Litigation and Mediation in the Harmonization of the Rules of Transnational Commercial Dispute Settlement”, preprint (DOI:10.21203/rs.3.rs-953987/v1). Blanquet-Angulo, Alejandra “Les Zones d’ombre de la Convention de La Haye du 2 Juillet 2019”, Revue Internationale de Droit Comparé (RIDC), 73 (2021), pp. 53-71 Blom, Joost “The Court Jurisdiction and Proceedings Transfer Act and the Hague Judgments and Jurisdictions Projects”, Osgoode Hall Law Journal 55 (2018), pp 257-304 Bonomi, Andrea “European Private International Law and Third States”, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2017, pp 184-193 Bonomi, Andrea “Courage or Caution? – A Critical Overview of the Hague Preliminary Draft on Judgments”, Yearbook of Private International Law 17 (2015/2016), pp 1-31 Bonomi, Andrea;
Mariottini, Cristina M. “(Breaking) News From The Hague: A Game Changer in International Litigation? – Roadmap to the 2019 Hague Judgments Convention”, Yearbook of Private International Law 20 (2018/2019), pp 537-567 Borges Moschen, Valesca Raizer;
Marcelino, Helder “Estado Constitutional Cooperativo e a conficaçao do direito internacional privado apontamentos sobre o ’Judgement Project’ da Conferência de Haia de Direito Internacional Privado”, Revista Argumentum 18 (2017), pp 291-319

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Part 1: JCA 2020-04, pp. 40-45 (available here)

Part 2: JCA 2020-05, pp. 40-45 (available here)

Part 3: JCA 2020-06, pp. 42-49 (available here)

Part 4: JCA 2020-10, pp. 40-46 (available here)

Part 5: JCA 2020-11, pp. 35-41 (available here)

Part 6: JCA 2020-12, pp. 43-48 (available here)

Part 7: JCA 2021-02, pp. 50-56

Part 8: JCA 2021-04, pp. 45-51

Part 9: JCA 2021-07, pp. 46-53

Part 10: JCA 2021-09, pp. 40-46

Part 11: JCA 2021-10, pp. 48-54

  Taquela, María Blanca Noodt ; Abou-Nigm, Verónica Ruiz “News From The Hague: The Draft Judgments Convention and Its Relationship with Other International Instruments”, Yearbook of Private International Law 19 (2017/2018), pp 449-474 Teitz, Louise Ellen “Another Hague Judgments Convention? – Bucking the Past to Provide for the Future”, Duke Journal of Comparative & International Law 29 (2019), pp 491-511 Tian, Hongjun “The Present and Future of the Recognition and Enforcement of Civil and Commercial Judgments in Northeast Asia: From the Perspective of the 2019 Hague Judgments Convention”, Chinese Yearbook of Private International Law and Comparative Law 2019-01, pp. 300-317 Tian, Xinyue;
Qian, Zhenqiu;
Wang, Shengzhe “The Hague Convention on the Recognition and Enforcement of Foreign Judgments (Draft) and China’s Countermeasure – A Summary on the Fourth Judicial Forum of Great Powers”, Chinese Yearbook of Private International Law and Comparative Law 2018-01, pp. 377-388 Trooboff, Peter D.;
North, Cara; Nishitani, Yuko;
Sastry, Shubha; Chanda, Riccarda “The Promise and Prospects of the 2019 Hague Convention: Introductory Remarks”, Proceedings of the ASIL Annual Meeting 114 (2020), pp. 345-357 Tsang, King Fung;
Wong, Tsz Wai “Enforcement of Non-Monetary Judgments in Common Law Jurisdictions: Is the Time Ripe?”, Fordham International Law Journal 45 (2021), pp. 379-428 (available here) UIHJ (ed.);
Walker, David (dir.) “The HCCH 2019 Judgments Convention, adding essential components for an effective international legal framework on recognition and enforcement”, in UIHJ (ed.), David Walker (dir.), Cyberjustice, de nouvelles opportunités pour l’huissier de justice / Cyberjustice, New Opportunities for the Judicial Officer – XXIVe Congrès de l’Union Internationale des Huissiers de Justice – Dubai – 22 au 25 Novembre 2021, Bruxelles 2021, pp. 120-133 van der Grinten, Paulien;
ten Kate, Noura „Editorial: The 2019 Hague Judgments Convention”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 1-3 van Loon, Hans “Towards a global Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 4-18 van Loon, Hans “Towards a Global Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters”, Collection of Papers of the Faculty of Law, Niš 82 (2019), pp 15-35 van Loon, Hans “Le Brexit et les conventions de La Haye”, Revue critique de droit international privé (Rev. Crit. DIP) 2019, pp. 353-365 Viegas Liquidato, Vera Lúcia “Reconhecimento E Homologação De Sentenças Estrangeiras : O Projeto De Convenção Da Conferência da Haia”, Revista de Direito Brasileira 2019-09, pp. 242-256 Wagner, Rolf “Ein neuer Anlauf zu einem Haager Anerkennungs- und Vollstreckungsübereinkommen“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2016, pp 97-102 Wang, Quian “On Intellectual Property Right Provisions in the Draft Hague Convention on the Recognition and Enforcement of Foreign Judgments”, China Legal Science 2018-01, pp. 118-142 (available here) Wang, Yahan “No Review of the Merits in Recognizing and Enforcing Foreign Judgments”, China Journal of Applied Jurisprudence 2020-04, pp. 78-95 Weidong, Zhu “The Recognition and Enforcement of Commercial Judgments Between China and South Africa: Comparison and Convergence”, China Legal Science 2019-06, pp 33-57 (available here) Weller, Matthias “The HCCH 2019 Judgments Convention: New Trends in Trust Management?”, in Christoph Benicke, Stefan Huber (eds.), Festschrift für Herbert Kronke zum 70. Geburtstag, Bielefeld 2020, pp 621-632 Weller, Matthias “The 2019 Hague Judgments Convention – The Jurisdictional Filters of the HCCH 2019 Judgments Convention”, Yearbook of Private International Law 21 (2019/2020), pp 279-308 Weller, Matthias “Das Haager Übereinkommen zur Anerkennung und Vollstreckung ausländischer Urteile”, in Thomas Rauscher (ed.), Europäisches Zivilprozess- und Kollisionsrecht, Munich, 5th ed., forthcoming Weller, Matthias „Die Kontrolle der internationalen Zuständigkeit im Haager Anerkennungs- und Vollstreckungsübereinkommen 2019“, in Christoph Althammer/Christoph Schärtl (eds.), Festschrift für Herbert Roth, Tübingen 2021, pp. 835-855 Wilderspin, Michael;
Vysoka, Lenka “The 2019 Hague Judgments Convention through European lenses”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 34-49 Wu, Qiong “The Overview of the 22nd Diplomatic Session of the Hague Conference on Private International Law”, Chinese Yearbook of International Law 2019, pp. 337-338 Xie, Yili “Research on the Intellectual Property Infringment System of the Hague Judgments Convention”, China-Arab States Science and Technology Forum 2021-09, pp. 190-194 Xu, Guojian “Comment on Key Issues Concerning Hague Judgment Convention in 2019 “, Journal of Shanghai University of Political Science and Law 35 (2020), pp 1-29 Xu, Guojian “To Establish an International Legal System for Global Circulation of Court Judgments”, Wuhan University International Law Review 2017-05, pp 100-130 Xu, Guojian “Overview of the Mechanism of Recognition and Enforcement of Judgements Established by HCCH 2019 Judgments Convention”, China Journal of Applied Jurisprudence No. 2020-02, pp 65-77 Xu, Guojian “On the Scope and Limitation of the Global Circulation of Court Judgments: An Analysis on the Application Scope of the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Chinese Yearbook of Private International Law and Comparative Law 2019-01, pp. 269-299 Yekini, Abubakri

  “The Hague Judgments Convention and Commonwealth Model Law – A Pragmatic Perspective”, Oxford 2021. Yeo, Terence “The Hague Judgments Convention – A View from Singapore”, Singapore Academy of Law Journal (e-First) 3rd August 2020 (available here) Yuzhakov, D.A. “Legal Regulation of the Procedures for Enforcement of Decisions of Foreign Courts in Economic Disputes”, Urgent Issues of the Entrepreneurship Law, Civil Litigation and Arbitration (Perm State University) No. 4 (2021), pp. 119-123 (available here) Zasemkova, Olesya Fedorovna “ ‘Judicial Convention’ as a New Stage in the Recognition and Enforcement of Foreign Judgments”, Lex Russica 2019-10, pp. 84-103 (available here) Zasemkova, Olesya Fedorovna “Recognition and Enforcement of Foreign Judgments in the Context of the Adoption of the « Judicial Convention » 2019”, in Zhuikov V.M., Shchukin A.I. (eds.), Liber Amicorum Natalia Ivanovna Marysheva, pp. 196-211 Zhang, Chunliang;
Huang, Shan “On the Common Courts Rules in Hague Judgments Convention – China’s way for the Judicial Assistance under Belt and Road Initiative”, Journal of Henan University of Economics and Law 2020-05, pp. 103-113 Zhang, Lizhen “On the Defamation Problem in the Hague Judgments Project: Ever In and Now out of the Scope”, Wuhan University International Law Review 2019-01, pp. 41-58 (available here) Zhang, Wenliang “The Finality Requirement of Recognition and Enforcement of Foreign Judgments”, Wuhan University Law Review 2020-02, pp. 19-38 Zhang, Wenliang; Tu, Guangjian “The Hague Judgments Convention and Mainland China-Hong Kong SAR Judgments Arrangement: Comparison and Prospects for Implementation”, Chinese Journal of International Law 20 (2021), pp. 101-135 Zhang, Wenliang;
Tu, Guangjian “The 1971 and 2019 Hague Judgments Conventions: Compared and Whether China Would Change Its Attitude Towards The Hague”, Journal of International Dispute Settlement (JIDS), 2020, 00, pp. 1-24 Zhang, Zhengyi;
Zhang, Zhen “Development of the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters and Its Implication to China”, International and Comparative Law Review 2020, pp. 112-131 Zhao, Ning “Completing a long-awaited puzzle in the landscape of cross-border recognition and enforcement of judgments: An overview of the HCCH 2019 Judgments Convention”, Swiss Review of International and European Law (SRIEL) 30 (2020), pp 345-368 Zirat, Gennadii “Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters: A new Contribution of the Hague Conference on Private International Law to the Unification of International Civil Procedure” Ukrainian Journal of International Law 2020-03, pp. 105-112 (available here)

 

III. Recordings of Events Related to the HCCH 2019 Judgments Convention

HCCH “HCCH a|Bridged: Innovation in Transnational Litigation – Edition 2021: Enabling Party Autonomy with the HCCH 2005 Choice of Court Convention”, 1 December 2021 (full recording available here) UIHJ; HCCH “3rd training webinar on the Hague Conventions on service of documents (1965) and recognition and enforcement of judgements (2019)”, 15/18 March 2021 (full recording available here in French and here in English) ASADIP; HCCH “Conferencia Internacional: Convención HCCH 2019 sobre Reconocimiento y Ejecución de Sentencias Extranjeras”, 3 December 2020 (full recording available here and here) ASIL “The Promise and Prospects of the 2019 Hague Convention”, 25-26 June 2020 (full recording available here and here) JPRI; HCCH; UNIDROIT; UNCITRAL “2020 Judicial Policy Research Institute International Conference – International Commercial Litigation: Recent Developments and Future Challenges, Session 3: Recognition and Enforcement of Foreign Judgments”, 12 November 2020 (recording available here) University of Bonn; HCCH “Pre-Conference Video Roundtable on the HCCH 2019 Judgments Convention: Prospects for Judicial Cooperation in Civil and Commercial Matters between the EU and Third Countries”, 29 October 2020 (full recording available here) Department of Justice Hong Kong; HCCH “Inaugural Global Conference – 2019 HCCH Judgments Convention: Global Enforcement of Civil and Commercial Judgments”, 9 September 2019 (recording available here) HCCH “22nd Diplomatic Session of the HCCH: The Adoption of the 2019 Judgments Convention”, 2 July 2020 (short documentary video available here)

 

The post below was written by Matthias Lehmann, who is Professor of Private International Law at the University of Vienna. It is the fourth contribution to the EAPIL on-line symposium on the ruling of the Court of Justice in the case Hrvatske Sume d.o.o. Zagreb v BP Europa SE. The previous posts were authored by Peter Mankowski, Adrian Briggs and Bernard Haftel. 

Readers are encouraged to share their views by making comments to the posts. Those wishing to submit longer contributions for publication are invited to get in touch with the managing editor of the blog, Pietro Franzina, at pietro.franzina@unicatt.it.

The CJEU decision already reviewed in this blog-post is more than doubtful from a comparative law viewpoint. It ignores the fact that in some legal systems a claim for unjust enrichment may be based on a tort. This is the case, for instance, in German law, where the unlawful interference with another’s rights may lead to a so-called Eingriffskondition (unjust enrichment based on intervention) under sec. 812(1) of the German Civil Code (BGB). It is also true in Swiss law, English law and in the law of most U.S. states, which equally allow restitutionary claims in cases of torts. Even though these are not EU Member States, their laws may apply to claims brought under the Brussels Ibis Regulation. These legal systems illustrate that the gamut of unjust enrichment may cover facts that also sound in tort. Comparative law is infinitely richer than the CJEU accepts. To say that a claim for restitution is never based on a harmful event reminds of the attitude of Palmström in Christian Morgenstern’s poem “The Impossible Fact“: “that which must not be, cannot be”.

A natural reading of the term “quasi-delict” in Art 7(2) Brussels Ibis suggests that it would cover claims for restitution in case of wrongs. The CJEU has chosen a different path by excluding these claims from the scope of the provision altogether.  This follows from a purist understanding of the term “unjust enrichment” which, according to the CJEU, should not overlap with any other legal category. This is remarkable given that the term “unjust enrichment” does not even feature in the Regulation. It is also astounding that the CJEU adopts quite a different approach with regard to Art 7(1) Brussels Ibis: The Court expressly recognises that this head of jurisdiction, which does not even provide an open-ended term like “quasi-contractual”, covers an unjust enrichment claim that “is closely linked to a pre-existing contractual relationship between the parties” (para 51). In effect, while being very open-minded with regard to Art 7(1), the Luxembourg judges are particularly narrow-minded with regard to 7(2). It is the old Kalfelis mistake again: giving priority to contract over tort in matters of jurisdiction.

The CJEU’s grammatical argument for this narrow-mindedness is the mention of “harm” – via the expression “harmful event” – in Art 7(2) Brussels Ibis. From the  provision’s use of this term, the Court concludes that unjust enrichment is excluded because it is not based on the harm of the victim, but on the enrichment of the other party. Yet this ignores that Art 7(2) Brussels Ibis uses the expression “harmful event” not as a definitional element for tort/delict or quasi-delict, but as part of the connecting factor to determine the competent court for those claims. The difference is important because even in case of unjust enrichment a harm may exist. This is illustrated by unjust enrichment based on intervention (Eingriffskondiktion): German law expressly provides that the unjust enrichment in these cases must be “at the cost” (auf Kosten) of the victim. This is merely another way of saying that the victim must suffer a loss, or “harm”.

Thus, the existence of a claim for unjust enrichment does not mean that a place where the harmful event occurred cannot be identified. Retaining the place of harm as the decisive criterion for determining the competent court over claims of Eingriffskondiktion and similar restitutionary claims for torts also makes sense: It offers the victim the benefit of having the same court deciding on the tort and related claims, which is exactly what Art 7(2) Brussels Ibis aims at by mentioning “quasi-delicts”. Using the place of the harmful event as the connecting factor in these cases also does not violate the legal nature of unjust enrichment claims, but merely illustrates the different focus of procedural and substantive law.

One could, however, save the reasoning of the CJEU by creative interpretation. A case could be made for contending that the CJEU did not want to exclude claims such as those mentioned under German, English, Swiss or U.S. state law from the scope of Art. 7(2) Brussels Ibis because it did not rule on them, but on a different type of claims under Croatian law. Arguably, the CJEU adopted an autonomous understanding of “unjust enrichment” independent of national or comparative law, which does not cover cases that require harm as a condition for a restitutionary claim. If in the future the Court would be faced with such a claim, it could allege that this situation was not the same as that of the Hvratske Šume ruling because the latter only concerned “unjust enrichment” in an autonomous European sense. This would then pave the way for qualifying the particular cases of Eingriffskondiktion and similar claims as being “quasi-delicts”.

Even if this creative-restrictive reading of the CJEU’s ruling were rejected, one must not overestimate its impact. The result of excluding cases involving unjust enrichment from Art 7(2) Brussels Ibis do not seem disastrous: The claimant will have to use the base rule of Art 4 Brussels Ibis and sue the defendant at the place of its domicile. This will in most cases coincide with the place where the defendant has acted, and thus with part of the Art 7(2) jurisdiction. And even if not, the place of domicile of the defendant will often be the place where the enrichment has taken place. The domicile of the enriched party could thus function as a kind of “default head of jurisdiction” for unjust enrichment claims.

The damage done by the CJEU is thus rather small in practical terms. It will mainly concern cases in which the party having borne the loss from an unjust enrichment is not the claimant, but the defendant. A case in point is a claim for a negative declaration that no unjust enrichment claim exists. Following the CJEU approach in Folien Fischer, such a claim could be brought at the domicile of the party that is alleging or likely to allege the unjust enrichment, i.e., at the domicile of the party that has suffered rather than benefitted from such enrichment. But this awkward result is the product of the CJEU allowing claims for negative declarations under the Brussels Ibis regime rather than a problem specific to unjust enrichment.

Many thanks to Amy Held, Felix Krysa and Verena Wodniansky-Wildenfeld for their comments on the draft post.

The post below was written by Bernard Haftel, who is Professor of Private International Law at the University of Sorbonne Paris Nord.

This is the third contribution to the EAPIL online symposium on the ruling of the Court of Justice in the case Hrvatske Sume d.o.o. Zagreb v BP Europa SE. The previous posts were authored by Peter Mankowski and Adrian Briggs. 

Readers are encouraged to share their views by making comments to the posts. Those wishing to submit longer contributions for publication are invited to get in touch with the managing editor of the blog, Pietro Franzina, at pietro.franzina@unicatt.it.

It is not my habit to say good things about the decisions of the Court of Justice, but for this New Year, let’s say that this will count as a good resolution.

So let’s be clear : the decision in Hrvatske Sume d.o.o. Zagreb v BP Europa SE on 9 December 2020 seems to be not only a good decision on the very issue at hand, but also indicative of a return to some general orthodoxy, or so we hope (but perhaps this is again the optimism of the beginning of the year speaking).

The solution – which consists in treating claims based on unjust enrichment as being, in principle, neither contractual nor tortious, and therefore subject only to the forum of the defendant’s domicile – seems to us to be in line with the concepts of contractual and tortious matters provided for by the Regulation, with the aims pursued by its rules and with the general logic of the Brussels “system”.

I/ On a conceptual level

On a conceptual level, the question was whether the claim for unjust enrichment corresponded to the central concepts of “matters relating to a contract” or “matters relating to tort, delict or quasi-delict”. In accordance with the Kalfélis case law[1], the Court of Justice recalls that matters relating to tort, delict or quasi-delict are subsidiary, covering “any claim which seeks to establish the liability of a defendant and which is not related to contractual matters”. The result was that it was necessary to consider the contractual characterisation beforehand. Does unjust enrichment imply a ‘legal obligation freely entered into by one person in relation to another and on which the claimant’s action is based’? (ECJ 20 janv. 2005, Engler, Case C-27/02, ECJ 14 mai 2009, Ilsinger, Case C-180/06) The Court answers in the negative. More precisely, the Court answers that this is not in principle the case. Unjust enrichment does not in principle imply a contractual basis. In the case under review, the unjust enrichment resulted from the execution of a court decision that was subsequently declared invalid. However, the Court rightly adds, quoting Advocate General Saugmandsgaard Oe, that in some cases enrichment may well have a strong link with a contract. The idea of unjust enrichment is indeed broad and can cover unjust enrichment in the strict sense, but also what french law calls répétition de l’indu (restitution of undue payment) or restitutions following the annulment of a contract. However, it is clear that when unjust enrichment is closely linked to a contract, and typically when it is the consequence of an annulment, the action is contractual in nature (The judgment cites the Profit Investment SIM judgment of 20 April 2016 (Case C 366/13) on pt. 40 in this regard).

The fact remains that unjust enrichment is not, as a matter of principle, contractual in nature outside these cases.

Does this mean that it is a tort, delict or quasi-delict ? This is to question the second criterion laid down by the Kalfélis judgment: for a non-contractual action to fall within the scope of delictual or quasidelictual matters, it must still be an action for liability. In the French version, the term “responsabilité” is used. Coming from the Latin “respondere”, it implies that a person is called upon to answer for the harmful consequences of his actions, whether intentional (delict) or unintentional (quasi-delict). The English word “liability”, coming from the French “lier”, ie bind, goes in the same direction. It involves establishing that a person is bound by his or her actions and must repair the harmful consequences. All the language versions point in the same direction: matters relating to tort, delict or quasi-delict presuppose an act that has caused damage, which the purpose of the liability action is to repair.

The Court rightly points out that none of these elements are present in the case of an action for unjust enrichment. It is almost the opposite.The act which gives rise to unjust enrichment is generally not an act of the defendant, but of the plaintiff.  In principle, it is not the defendant who is at the origin of the unjust enrichment, but the plaintiff who has enriched him. This fact, then, has not caused damage but, on the contrary, an advantage to the defendant who is then sued for unjust enrichment. Finally, and logically as a consequence of the above, the object of the action is not to call the defendant to account for his actions but to invite him to return the advantage he has received without cause.

Conceptually, and regardless of the language version, unjust enrichment is therefore logically not part of the concept of “tort, delict or quasi-delict”.

II/ On a teleological level

As we know, it is often less conceptual rigour than functional appropriateness that guides the Court of Justice, especially when it is called upon to clarify its qualifications.

The uniform interpretation praised by the Court of Justice is based not so much on conceptual rigour – which in any case would have no real basis in the absence of a sufficiently developed uniform substantive law – as on the aims and objectives of the regulation whose interpretation is at issue.

From this point of view, the solution adopted also appears satisfactory, in two respects.

Firstly, because the criterion applied to torts, delicts and quasi-delicts is simply not applicable to unjust enrichment. Under the terms of Article 5§3, now 7§2, the criterion of jurisdiction is the place where the harmful event occurred. In a case of unjust enrichment, there is no harmful event. There is no event causing damage, but only an event causing enrichment, which will usually be the act of the plaintiff. There is no damage either, but an enrichment, which is not only conceptually the opposite of damage but, moreover, is not materially locatable. Since the criterion is thus inapplicable, the corresponding qualification is for this reason alone manifestly inadequate.

Secondly, the solution here is at odds with that adopted in matters of conflict of laws. In this area, unjust enrichment, like quasi-contracts in general, is a matter for extra-contractual matters and the Rome II Regulation. The idea of consistent interpretation set out in point 7 of the preamble to the Rome I and Rome II Regulations could thus have led to unjust enrichment being placed in the field of Article 7§2. However, on the one hand, the terminology is different, the Rome II Regulation speaking of “non-contractual obligations” while the Brussels Regulations speak of “tort, delict or quasi-delict”. On the other hand, and above all, the consequences of the qualification are not the same. In matters of conflict of laws, the Rome II Regulation provides for specifically appropriate criteria (or at least specifically designed for such cases), which is not the case in matters of jurisdiction. Above all, in matters of jurisdiction, as the judgment under review illustrates, it is quite possible not to qualify at all, because of the general ground of jurisdiction constituted by the defendant’s domicile. Obviously, nothing similar is possible in matters of conflict of laws.

III/ On a systemic level

Finally, the solution also appears satisfactory on a more general level. Not only does the solution highlight the autonomy of the qualifications adopted in the field of conflict of laws and jurisdiction (CJEU 16 Jan. 2014, Kainz, Case C-45/13, CJEU, 28 July 2016, Case C-191/15, VKI c/ Amazon EU), which is an excellent point, but, above all, it restores to its rightful place the principle ground of jurisdiction : the defendant’s domicile.

The Court of Justice systematically repeats that the forum of the defendant’s domicile is the principle, to which the other grounds of jurisdiction, in particular those of Article 7, are only exceptions, which are by nature subject to strict interpretation. This is what led the Court, initially at least, to leave the actio Pauliana unqualified (ECJ, 26 march 1992, Case C-261/90, Reichert II. In a contractual context, the Court now decides that the actio Pauliana falls within the scope af article 7§1, see CJEU, 4 oct. 2018, Feniks, Case C-337/17). However, in recent years, although it has continued to repeat like a mantra that the alternative grounds of jurisdiction in Article 7 are merely derogations from the principle of the forum of the defendant’s domicile, implying a particularly close link, the Court of Justice has tended to extend the scope of these derogations, in particular to matters relating to tort, delict or quasi-delict. For instance, it has ruled that an action seeking to deny liability falls within the scope of Article 7§2 (CJEU, 25 oct. 2012, Case C-133/11, Fischer), as does an action for an injunction in which a consumer protection association sought to prohibit a trader’s use of unfair terms in contracts with consumers (ECJ, 1st oct. 2002, Case C-167/00, Henkel). However, strictly speaking, none of these actions “sought to bring into play the liability of the defendant”.

It is therefore a return to a certain orthodoxy that the judgment under review implies. A return to the idea that the defendant’s forum is a principle; a principle from which the alternative grounds of jurisdiction in Article 7 derogate only if there is a sufficiently close link between the alternative forum and the dispute, which is clearly not the case in matters of unjust enrichment. On a systemic level, the solution appears equally justified.

So how did we get a decision of the CJEU satisfactory in all respects? In Luxembourg, Santa Claus was obviously two weeks early.

 

[1] ECJ 27 Sept. 1988, Case 189/87, Kalfélis, ECR 1988, p. 5565, the decision already seemed to find that unjust enrichment was excluded from Article 5§3. The principle is regularly recalled, see recently, e.g., CJEU, 28 Jan. 2015, Kolassa, Case C-375/13, CJEU, 24 Nov. 2020, Wikingerhof, C 59/19.

From a technological standpoint, geography is largely irrelevant. Data flows through the internet without regard for political borders or territories. Services, communication, and interaction can occur online between persons who may be in different countries. Illegal activities, like hacking, cyberespionage, propagating terrorist propaganda, defamation, revenge porn, and illegal marketplaces may all be remotely targeted and accessed from various countries. As such, the internet has created an interesting and complex set of challenges for the concept of jurisdiction and conflicts of law. This title takes a comparative approach covering the EU, UK, US, Germany, and China.

Broken into four parts, this book delves into the notion of jurisdiction as it relates to the internet. Part I focuses on the different meanings of the concept of jurisdiction, from a legal and historical perspective, and distinguishing between the different branches of government. It will highlight the challenges created by the internet, including social media and cloud computing. Part II analyses criminal jurisdiction, in regards to both jurisdictions in cybercrime cases and jurisdictional issues relating to criminal investigations (access to the cloud) and enforcement. Part III examines jurisdiction and applicable law in civil and commercial matters, such as e-commerce B2B and B2C contracts, torts typically occurring online, and online defamation and privacy infringement. Finally, Part IV looks at regulatory jurisdiction, examining the power of the executive (whether an arm of government or independent regulator) to apply and enforce national law. It will look at aspects like the provision of online audio-visual media services and online gambling services, both of which are heavily regulated, but which can be easily provided remotely from different jurisdictions. The book concludes by analysing how the concept of jurisdiction should be adapted to ensure the rule of law by nation states and prevent international conflicts between states.

Here’s the link to the book: https://global.oup.com/academic/product/internet-jurisdiction-law-and-practice-9780198806929?cc=gb&lang=en&

Julia Hörnle, Professor of Internet Law, CCLS, Queen Mary University of London[1]

It is now well known that internet users are widely tracked and profiled by a range of actors and the advancements in data science mean that such tracking and profiling is increasingly commercially profitable[2]. This raises difficult questions about how to balance the value of data with individual privacy. But since there is no point in having privacy (or data protection) rights if no redress can be found to vindicate them, it is even more important to investigate how internet users can obtain justice, if their privacy has been infringed. Given the power of Big Tech Companies, their enormous financial resources, cross-jurisdictional reach and their global impact on users’ privacy, there are two main litigation challenges for successfully bringing a privacy claim against Big Tech. One is the jurisdictional challenge of finding a competent court in the same jurisdiction as the individual users.[3] Secondly, the challenge is how to finance mass claims, involving millions of affected users. In privacy claims it is likely that there is significant user detriment, potentially with long-term and latent consequences, which are difficult to measure. This constellation provides a strong argument for facilitating collective redress, as otherwise individual users may not be able to obtain justice for privacy infringements before the courts. In privacy infringement claims these two challenges are intertwined and present a double-whammy for successful redress. Courts in a number of recent cases had to grapple with questions of jurisdiction in consumer collective redress cases in the face of existing provision on consumer jurisdiction and collective redress, which have not (yet) been fully adapted to deal with the privacy challenges stemming from Big Tech in the 21st century.

In Case C-498/16 Max Schrems v Facebook Ireland[4] the Court of Justice of the EU in 2018 denied the privilege of EU law for consumers to sue in their local court[5] to a representative (ie Max Schrems) in a representative privacy litigation against Facebook under Austrian law. By contrast, courts in California and Canada have found a contractual jurisdiction and applicable law clause invalid as a matter of public policy in order to allow a class action privacy claim to proceed against Facebook.[6] In England, the dual challenge of jurisdiction and collective actions in a mass privacy infringement claim has presented itself before the English Courts, first in Vidal-Hall v Google before the Court of Appeal in 2015[7] and in the Supreme Court judgment of Google v Lloyd in November 2021[8]. Both cases concerned preliminary proceedings on the question of whether the English courts had jurisdiction to hear the action, ie whether the claimant was able to serve Google with proceedings in the USA and have illustrated the limitations of English law for the feasibility of bringing a collective action in mass-privacy infringement claims.

The factual background to Vidal- Hall and Lloyd is the so-called “Safari workaround” which allowed Google for some time in 2011-2012 to bypass Apple privacy settings by placing DoubleClick Ad cookies on unsuspecting users of Apple devices, even though Safari was trying to block such third party cookies, used for extensive data collection and advertising. The claimants alleged that this enabled Google to collect personal data, including sensitive data, such as users’ interests, political affiliations, race or ethnicity, social class, political and religious beliefs, health, sexual interests, age, gender, financial situation and location. Google additionally creates profiles from the aggregated information which it sells. The claim made was that Google as data controller had breached the following data protection principles set out in the Data Protection Act 1998 Schedules 1 and 2: 1st (fair and lawful processing), 2nd (processing only for specified and lawful purposes) and 7th (technical and organizational security measures). In particular, it was alleged that Google had not notified Apple iPhone users of the purposes of processing in breach of Schedule 1, Part II, paragraph 2 and that the data was not processed fairly according to the conditions set out in Schedules 2 and 3.

Vidal-Hall[9] concerned the first challenge of jurisdiction and in particular whether the court should allow the serving of proceedings on the defendant outside the jurisdiction under the Civil Procedure Rules[10]. For privacy infringement, previous actions had been brought under the cause of action of breach of confidence[11], which is a claim in equity and, thus it was unclear whether for such actions jurisdiction lies at the place of where the damage occurs. The Court of Appeal held that misuse of private information and contravention of the statutory data protection requirements was a tort and therefore, if damage had been sustained within England, the English courts had jurisdiction and service to the USA (California) was allowed.

The second hurdle for allowing the case to proceed by serving outside the jurisdiction was the question of whether the claimant was limited to claiming financial loss or whether a claim for emotional distress could succeed. The Court of Appeal in Vidal-Hall decided that damages are available for distress, even in the absence of financial loss, to ensure the correct implementation of Article 23 of the (then) Data Protection Directive, and in order to comply with Articles 7 and 8 of the Charter of Fundamental Rights of the EU. The Court therefore found that there was a serious issue to be tried and allowed service abroad to proceed, at which point the case settled.

The more recent English Supreme Court judgment in Lloyd concerned the second challenge, collective redress. As pointed out by Lord Leggatt in the judgment, English procedural law provides for three different types of actions: Group Litigation Orders (CPR 19.11), common law representative actions, and statutory collective proceedings under the Competition Act 1998. Their differences are significant for the purposes of litigation financing in two respects: first the requirement to identify and “sign-up” claimants and secondly, the requirement for individualized assessment of damages. Since both these requirements are expensive, they make collective redress in mass privacy infringement cases with large numbers of claimants impractical.

Group actions require all claimants to be identified and entered in a group register (“opt-in”) and are therefore expensive to administer, which renders them commercially unviable if each individual claim is small and if the aim is to spread the cost of litigation across a large number of claimants.

English statutory law in the shape of the Competition Act 1998 provides for collective proceedings before the Competition Appeal Tribunal in competition law cases only.[12] Since the reforms by the Consumer Rights Act in 2015, they can be brought under an “opt-in” or “opt-out” mechanism. Opt-out means that a class can be established without the need for affirmative action by each and every member of the class individually. The significance of this is that it is notoriously difficult (and expensive) to motivate a large number of consumers to join a collective redress scheme. Human inertia frequently prevents a representative claimant from joining more than a tiny fraction of those affected. For example, 130 people (out of 1.2-1.5 million) opted into the price-fixing case against JJB Sports concerning replica football shirts.[13] Likewise, barely 10,000 out of about 100,000 of Morrison’s employees joined the group action against the supermarket chain for unlawful disclosure of private data on the internet by another employee.[14] Furthermore, s.47C (2) of the Competition Act obviates the need for individual assessment of damages, but limits the requirement to prove damages to the class as a whole, as an aggregate award of damages, as held by Lord Briggs in Merricks v Mastercard[15]. However no such advanced scheme of collective redress has yet been enacted in relation to mass privacy infringement claims.

While the Supreme Court held that Mr Lloyd’s individual claim had real prospect of success, the same could not necessarily be said of everyone in the class he represented. This case was brought as a representative action where Mr Lloyd represented the interests of everyone in England and Wales who used an iPhone at the relevant time and who had third party cookies placed by Google on their device. One of the interesting features of representative actions is that they can proceed on an opt-out basis, like the collective actions under the Competition Law Act. Common law representative actions have been established for hundreds of years and have now been codified in CPR Rule 19.6: “Where more than one person has the same interest in a claim by or against one or more of the persons who have the same interest as representatives of any other person who have that interest”. Thus representative actions are based on the commonality of interest between claimants. The pivotal issue in Lloyd was the degree of commonality of that interest and in particular, whether this commonality must extend to the losses, which claimants have suffered, and proof of damages.

Lord Leggatt in Lloyd emphasized the spirit of flexibility of representative actions. Previous caselaw in the Court of Appeal had held that it was possible for claimants to obtain a declaration by representative action, which declares that they have rights which are common to all of them, even though the loss and amount of damages may vary between them.[16] He held that a bifurcated approach was permissible: a representative action can be brought seeking a declaration about the common interests of all claimants, which can then form the basis for individual claims for redress. Lord Leggatt held that, depending on the circumstances, a representative action could even be brought in respect of a claim for damages, if the total amount of damages could be determined for the class as a whole, even if the amount for each individual claimant varied, as this was a matter which could be settled between the claimants in a second step. He held that, therefore, a representative action can proceed even if a claim for damages was an element of the representative action, as in Lloyd.

Lord Leggatt found that the interpretation of what amounts to the “same interest” was key and that there needed to be (a) common issue(s) so that the “representative can be relied on to conduct the litigation in a way which will effectively promote and protect the interests of all the members of the represented class.”[17] The problem in Lloyd was that the total damage done to privacy by the Safari workaround was unknown.

Lord Leggatt saw no reason why a representative action for a declaration that Google was in breach of the Data Protection Act 1998, and that each member was entitled to compensation for the damage suffered as a consequence of the breach, should fail. However, commercial litigation funding in practice cannot fund actions seeking a mere declaration, but need to be built on the recovery of damages, in order to finance costs. In order to avoid the need for individualised damages, the claim for damages was formulated as a claim for uniform per capita damages. The problem on the facts of this case was clearly that the Safari workaround did not affect all Apple users in the same manner, as their internet usage, the nature and amount of data collected, as well as the effect of the data processing varied, all of which required individualised assessment of damages.

For this reason, the claimant argued that an infringement of the Data Protection Act 1998 leads to automatic entitlement to compensation without the need to show specific financial loss or emotional distress. This argument proved to be ultimately unsuccessful and therefore the claim failed. The Court examined Section 13 of the Data Protection Act 1998, entitling the defendant to compensation for damage, but the court held that each claimant had to prove such damage. The level of distress varied between different members of the represented class, meaning that individual assessment was necessary.

The claimant sought to apply the cases on the tort of misuse of private information by analogy. In this jurisprudence the courts have allowed for an award of damages for wrongful intrusion of privacy as such, without proof of distress in order to compensate for the “loss of control” over formerly private information.[18] Lord Leggatt pointed out that English common law now recognized the right to control access to one’s private affairs and infringement of this right itself was a harm for which compensation is available.

However in this particular case the claim had not been framed as the tort of misuse of private information or privacy intrusion, but as a breach of statutory duty and Lord Leggatt held that the same principle, namely the availability of damages for “loss of control” did not apply to the statutory scheme. He pointed out that it may be difficult to frame a representative action for misuse of private information, as it may be difficult to prove reasonable expectations of privacy for the class as a whole. This may well be the reason that the claim in this case was based on breach of statutory duty in relation to the Data Protection Act. Essentially the argument that “damages” in Section 13 (1) included “loss of control” over private data was unsuccessful. Both Article 23 of the Data Protection Directive and Article 13 made a distinction between the unlawful act (breach of data protection requirements) and the damage resulting, and did not conceive the unlawful act itself as the damage. Furthermore, it was not intended by the Directive or the Act that each and every contravention led to an entitlement to damages. He held that “loss of control” of personal data was not the concept underlying the data protection regime, as processing can be justified by consent, but also other factors which made processing lawful, so the control over personal data is not absolute.

Furthermore, it did not follow from the fact that both the tort of misuse of private information and the data protection legislation shared the same purposes of protecting the right to privacy under Article 8 of the European Convention of Human Rights that the same rule in respect of damages should apply in respect of both. There was no reason “why the basis on which damages are awarded for an English domestic tort should be regarded as relevant to the proper interpretation of the term “damage” in a statutory provision intended to implement a European directive”.[19] He concluded that a claim for damages under Section 13 required the proof of material damage or distress. He held that the claim had no real prospect of success and that therefore no permission should be given to serve proceedings outside the jurisdiction (on Google in the US).

This outcome of Lloyd raises the question in the title of this article, namely whether the cross-border battle on collective actions in mass privacy infringement cases against Big Tech has been lost, or whether on the contrary, it has just begun. One could argue that it has just began for the reason that the facts underlying this case occurred in 2011-2012, and therefore the judgment limited itself to the Data Protection Act 1998 (and the then Data Protection Directive 1995/46/EC). Since then the UK has left the EU, but has retained the General Data Protection Regulation[20] (“the UK GDPR”) and implemented further provisions in the form of the Data Protection Act 2018, both of which contain express provisions on collective redress. The GDPR provides for opt-in collective redress performed by a not-for-profit body in the field of data protection established for public interest purposes.[21] This is narrow collective redress as far removed from commercial litigations funders as possible. Because of the challenge of financing cross-border mass-privacy infringements claims, this is unlikely to be a practical option. The GDPR makes it optional for Member States to provide that such public interest bodies are empowered to bring opt-out collective actions for compensation before the courts.[22] These provisions unfortunately do not add anything to common law representative actions or group actions under English law. As has been illustrated above, representative actions can be brought on an “opt-out” basis, but have a narrow ambit in that all parties must have the same interest in the claim and Lloyd has demonstrated that in the case of distress this communality of interest may well defeat a claim. For group actions the bar of communality is lower, as it may encompass “claims which give rise to common or related issues of fact or law”[23]. But clearly the downside of group actions is that they are opt-in. Therefore, while English law recognizes collective redress, there are limitations to its effectiveness.

The Data Protection Act 2018 imposes an obligation on the Secretary of State to review the provision on collective redress, and in particular, consider the need for opt-out collective redress, and lay a report before Parliament. This may lead to Regulations setting out a statutory opt-out collective redress scheme for data protection in the future.[24] This Review is due in 2023.

Thus, the GDPR and the Data Protection Act 2018 have not yet added anything to the existing collective redress. It can only be hoped that the Secretary of State reviews the collective redress mechanisms in relation to data protection law and the review leads to a new statutory collective redress scheme, similar to that enacted in respect of Competition Law in 2015, thereby addressing the challenge of holding Big Tech to account for privacy infringement.[25]

However the new data protection law has improved the provision of recoverable heads of damage. This improvement raises the question, if the issues in Lloyd had been raised under the current law, whether the outcome would have been different. The Data Protection Act 2018 now explicitly clarifies that the right to compensation covers both material and non-material damage and that non-material damage includes distress.[26] Since non-material damage is now included in the Act, the question arises whether this new wording could be interpreted by a future court as including the privacy infringement itself (loss of control over one’s data). Some of the arguments made by Lord Leggatt in Lloyd continue to be relevant under the new legislation, for example that the tort of statutory breach is different from the tort of misuse of private information and that not each and every (minor) infringement of a statute should give raise to an entitlement for damages. Nevertheless it is clear from the new Act that non-material damage is included and that non-material damage includes distress, but is wider than distress. This means that claimants should be able to obtain compensation for other heads of non-material damage, which may include the latent consequences of misuse of personal information and digital surveillance. There is much scope for arguing that some of the damage caused by profiling and tracking are the same for all claimants. A future representative action in an equivalent scenario may well be successful. Therefore, the battle for collective action against Big Tech companies’ in privacy infringement cases may just have begun.

[1] J.hornle@qmul.ac.uk

[2] Shoshana Zuboff The Age of Surveillance Capitalism (2018)

[3] See further J. Hörnle, Internet Jurisdiction Law & Practice (OUP 2021)

[4] ECLI:EU:C:2018:37; discussed further in J. Hörnle fn 1 Chapter 8

[5] Ie the courts of the consumer’s domicile, if the business directed their activities to that state, Art 17 and Art 18 (1) Brussels Regulation on Jurisdiction (EU) 1215/2021

[6] In Re Facebook Biometric Information Privacy Litigation 185 F.Supp.3d 1155 (US District Court N.D. California 2016) and Douez v Facebook [2017] SCC 33; discussed further in J. Hörnle fn 1 Chapter 8

[7] [2016] QB 1003

[8] [2021] 3 WLR 1268

[9] [2015] 3 WLR 409 (CA)

[10] CPR PD 6B para.3.1(9)

[11] Campbell v MGN Ltd [2004] 2 WLR 1232 (HL)

[12] Section 47B

[13] The Consumers Association v JJB Sports Plc [2009] CAT 2

[14] Various Claimants v WM Morrisons Supermarkets Plc [2017] EWHC 3113 (QB)

[15] [2021] Bus LR 25, para 76

[16] David Jones v Cory Bros & Co Ltd (1921) 56 LJ 302; 152 LT Jo 70

[17] Paras 71-74

[18] by Mann J affirmed in the Court of Appeal Gulati v MGN Ltd [2017] QB 149

[19] Para 124

[20] Regulation (EU) 2016/679, L119, 4 May 2016, p. 1–88

[21] Art 80 (1)

[22] Arts 79 and 80 (2) in relation to effective judicial remedies

[23] CPR Part 19- Group Litigation Orders, Rules 19.10, 19.11

[24] ss. 189-190

[25] The current government, however seems to march in the opposite direction, see Consultation on reform of data protection law https://www.gov.uk/government/consultations/data-a-new-direction

[26] S. 168 (1)