Agrégateur de flux

Back in September, AG Rantos presented his Opinion in the case TOTO, C-581/20. As reported previously, at the request of the Court, the Opinion confined itself solely to the second preliminary question on the interpretation of Article 35 of the Brussels I bis Regulation.

In its judgment delivered today, the Court addresses all three preliminary questions of the referring court. These questions concern the concept of “civil and commercial matters” in the sense of Article 1(1) of the Brussels I bis Regulation (first preliminary question), subsequent application for provision/protective measures lodged before a court not having jurisdiction as to the substance of the matter (second preliminary question) and EU law- or purely national law- dependent modalities for ordering such measures (third preliminary question).

 

Factual background and context of preliminary questions

The questions referred for a preliminary ruling are raised in the context of a contract concluded between two Italian companies and the Director of a Polish central authority for road management/construction, acting in the name and on the behalf of the Polish State Treasury (in essence, the State itself; hereinafter referred to as “the public authority”). Under the said contract, concluded following a public procurement procedure, the companies are supposed to construct a public road in Poland.

The contract itself provides for some contractual penalties, in particular for its late performance by the companies. Guarantees are provided by a Bulgarian insurance company in order to cover the potential (non-)fulfillment of the obligations assumed by these companies.

Before a Polish court, the companies bring an action against the public authority for a negative declaration that, in substance, aims to oblige the defendant not to make use of the guarantees. The companies also request provisional/protective measures. Their request is rejected.

In parallel with the procedures pending before the Polish court, they apply for analogous measures before a Bulgarian court. The first instance court rejects the application. The second instance court orders the measures and the public authority brings an administrative appeal before the referring court, the Supreme Court of Cassation of Bulgaria.

In its administrative appeal, the public authority contests, in particular, the applicability of the Brussels I bis Regulation in the interim proceedings pending in Bulgaria. It argues that these proceedings do not fall within the scope of the concept of “civil and commercial matters” in the sense of Article 1(1) of the Regulation (first preliminary question). In its request for a preliminary ruling, the referring court also asks the Court to provide guidance as to the interpretation of Article 35 (second and third preliminary questions).

 

Concept of “civil and commercial matters” and its interplay with immunity from jurisdiction

Echoing the inquires of the public authority, by its first question the referring court seeks to establish whether the proceedings pending before the Bulgarian courts fall within the scope of the concept of “civil and commercial matters” and, as a consequence, within the scope of the Brussels I bis Regulation.

The Court answers this question in the affirmative: in particular, the Court reaffirms the finding made in its judgments in Rina, C-641/18 and Supreme Site, C-186/19, according to which a public purpose of certain activities (here, it seems: the conclusion of the contract for a construction of a public road and potentially its performance) does not, in itself, suffice to exclude a case from the scope of application of the Brussels I bis Regulation (paragraphs 39 and 41).

In its answer to the first preliminary question, the Court also clarifies further the interplay between that concept of “civil and commercial matters” and the immunity from jurisdiction.

In fact, under Article 393 of the Bulgarian Code of Civil Procedure (BCCP), the interim measures for securing a pecuniary claim brought against, inter alia, the State and public bodies are not permissible. For the Court, that provision seems to establish an immunity from jurisdiction in favour of some defendants: States and public authorities. However, referring the judgment in Supreme Site, C-186/19 on the immunity from execution (more precisely, its point 62, which refers to point 72 of the Opinion in that case), the Court indicates, in essence, that the immunity from jurisdiction does not automatically exclude an action brought before a national court from the scope of the concept of “civil and commercial matters” (paragraph 44).

(on a side note: conversely, if this is not the case and the Bulgarian provision does not provide for an immunity from jurisdiction, the provision in question may be potentially read as providing for a material immunity, on the level of substantive law; see also the third preliminary question outlined below; other residual interpretation could view the Bulgarian provision as providing for an immunity from jurisdiction departing from what is required under public international law, nothing, however, supports that reading of the provision at hand).

 

Subsequent application for provisional/protective measures

By its second preliminary question, the referring court seeks to establish whether a Bulgarian court not having jurisdiction as to the substance of the matter is precluded from pronouncing provisional/protective measures under Article 35 of the Brussels I bis Regulation in a situation where a Polish court having jurisdiction as to the substance of the matter has already given a ruling on an application for identical provisional/protective measures and rejected the application.

In his Opinion, AG Rantos argued that in a situation described in the preliminary question the court not having jurisdiction as to the substance of the matter should not pronounce the provisional/protective measures and must decline jurisdiction.

By contrast, for the Court, a court of a Member State not having jurisdiction as to the substance of the matter, seized with a subsequent application for provisional/protective measures, is not obliged to declare that it lacks jurisdiction to rule on the application for the measures in question (paragraph 60).

 

Provisional/protective measures as a matter of procedural autonomy ?

By its third preliminary question the referring court seeks to establish whether the application for provisional/protective measures has to be examined in the light of EU law or purely in the light of the national law of the court seized with the application.

Interestingly, also this question is inspired by Article 393 of the BCCP, under which interim measures for securing a pecuniary claim brought against, inter alia, the State and public bodies are not permissible. Thus, applied in the proceedings before the Bulgarian courts, this provision has the potential of barring any application for interim measures against the public authority.

However, the referring court considers that examining the application for provisional/protective measures in the light of EU law would mandate it to benchmark the national provisions on such measures against the principle of effectiveness and, potentially, to disapply Article 393 of the BCCP (paragraph 25).

In other terms, the referring court seems to frame the question as one on the procedural autonomy and its limitations. If this assumption is correct, the provisions of the BCCP would govern the exercise of the right provided for in Article 35 of the Brussels I bis Regulation. Logically, it seems that the assumption is based on a consideration that the role of Article 35 of the Regulation goes beyond providing for an alternative forum before which an application for provisional/protective measures can be made: it provides an alternative “effective” forum or, if one would wish to go even further, it provides a right to request (and obtain) some minimal provisional/protective measures before a court not having jurisdiction as to the substance of the matter.

For the Court, this does not seem to be the case. Under Article 35 of the Regulation a court of a Member State not having jurisdiction as to the substance of the matter may order measures “available under the law of that Member State”. This provision ensures the availability of an alternative forum to the applicant, without guarantying that provisional/protective measures themselves will be also available to him/her (paragraph 64).

Before drawing a final conclusion on the merits of the aforementioned assumptions/consideration: while the issue pertaining to the principle of effectiveness (“principe d’effectivité”) has been directly invoked by the referring court, it is true that in the present case the Court has not been expressly called to pronounce itself on the effectiveness (“effet utile”) of Article 35 or on the right to effective judicial protection guaranteed under Article 47 of the Charter. Thus, at least for some it may be still a question of debate whether “effet utile” of Article 35 confines itself to the pure availability of an alternative forum. Either way, that debate could benefit from taking into account point 20 of the judgment in Bier, C-21/76 and point 49 of the judgment in AMS Neve e.a., where the Court considered that the effectiveness (“effet utile”) of these provision calls for their interpretation under which they do provide the alternative fora, that do not coincide with those available for the claimants under general rules of jurisdiction.

 

The judgment is available here (no English version so far).

Nord Stream 2 / Parlement et Conseil
Énergie
Selon l’avocat général Bobek, Nord Stream 2 AG peut contester devant les juridictions de l’Union la directive étendant le champ d’application de la directive gaz aux gazoducs reliant l’Union à des pays tiers

Parlement / Conseil (Siège de l’Autorité européenne du travail),affaires jointes C-59/18, Italie/Conseil et C-182/18, Comune di Milano/Conseil, et dans les affaires jointes C-106/19, Italie/Conseil et Parlement et
Droit institutionnel
Avocat général Bobek : la Cour n’est pas compétente pour connaître des décisions des représentants des États membres fixant les sites d’implantation des nouveaux sièges de l’Agence européenne des médicaments et de l’Autorité européenne du travail

Landespolizeidirektion Steiermark
Espace de liberté, sécurité et justice
Selon l’avocat général Saugmandsgaard Øe, un État membre confronté à des menaces graves persistantes pour l’ordre public ou la sécurité intérieure peut réintroduire des contrôles à ses frontières intérieures pour plus que seulement six mois

 Comparative Procedural Law and Justice (CPLJ) is a global project of the Max Planck Institute Luxembourg for Procedural Law, with the support of the Luxembourg National Research Fund (019/13946847), involving more than one hundred scholars from all over the world.

CPLJ is envisioned as a comprehensive study of comparative civil procedural law and civil dispute resolution schemes in the contemporary world. It aims at understanding procedural rules in their cultural context, as well as at highlighting workable approaches to the resolution of civil disputes.

In this framework, the Max Planck Institute Luxembourg for Procedural Law will host its 7th CPLJ Webinar on 21 October 2021, 3:00 – 5:30 pm (CEST)

The programme reads as follows:

Chair, Enrique Vallines (Max Planck Institute Luxembourg)

3:00 pm Shahla Ali (University of Hong Kong)

Transcending Generalisations in Comparative Law Research – East Asian Perspectives in a Global Context

3:30 pm Discussion

4:00 pm Intermission

4:15 pm Eduardo Oteiza (National University of La Plata)

Who knew only his Bible knew not his Bible: Thoughts from Latin America

4:45 pm Discussion

5:30 pm Closing of the event

The full programme is available here.

For more information and to register, see here.

(Image credits:  Rijksmuseum, Amsterdam)

 

A (Franchissement de frontières en navire de plaisance)
Espace de liberté, sécurité et justice
Un État membre peut obliger, sous peine de sanctions, ses ressortissants à être munis d’une carte d’identité ou d’un passeport valide lorsqu’ils voyagent vers un autre État membre, indépendamment du moyen de transport utilisé et de l’itinéraire

Sumal
Concurrence
La victime d’une infraction au droit de la concurrence de l’Union commise par une société mère peut demander à la filiale de cette dernière la réparation des dommages qui en découlent

Consorzio Italian Management e Catania Multiservizi et Catania Multiservizi
Droit institutionnel
La Cour précise sa jurisprudence « Cilfit » concernant les situations dans lesquelles les juridictions nationales statuant en dernier ressort ne sont pas soumises à l’obligation de renvoi préjudiciel

LU
Espace de liberté, sécurité et justice
L’application du principe de reconnaissance mutuelle aux sanctions pécuniaires s’oppose à ce que l’autorité d’exécution remette en cause la qualification juridique donnée par l’autorité d’émission à l’agissement sanctionné

W. Ż. (Chambre de contrôle extraordinaire et des affaires publiques de la Cour suprême - nomination)
Principes du droit communautaire
Les mutations non consenties d’un juge vers une autre juridiction ou entre deux sections d’une même juridiction sont susceptibles de porter atteinte aux principes d’inamovibilité et d’indépendance des juges

Sigma Alimentos Exterior / Commission,dans les affaires jointes C-51/19 P World Duty Free Group/Commission et
Aide d'État
La Cour rejette les pourvois contre les arrêts du Tribunal confirmant la qualification du régime fiscal espagnol d’amortissement de la survaleur financière (goodwill) d’aide d’État incompatible avec le marché intérieur

Les traités n’interdisent pas au Conseil d’attendre, avant d’adopter la décision portant conclusion par l’Union de la convention d’Istanbul, le « commun accord » des États membres, mais cette institution ne saurait modifier la procédure de conclusion de cette convention en subordonnant cette conclusion à la constatation préalable d’un tel « commun accord »

This post was contributed by Thomas Mastrullo, who is an Associate Professor at the University of Luxembourg.

In a judgment of 3 March 2021, the French Court of Cassation allowed an appeal against the judgment of a court of appeal which had refused to declare the enforceability in France of a foreign decision rendered in insolvency proceedings by simply invoking a previous decision of the foreign court without analysing its content, nor finding that it was irreconcilable with the decision the enforcement of which was sought in France.

Decisions of the Court of Cassation on the enforcement of foreign decisions in insolvency proceedings are not frequent, which makes this decision interesting.

Background

In this case, the insolvency practitioner of insolvency proceedings opened in Germany had requested that a decision of the bankruptcy court of Ansbach – ordering the payment of a certain sum of money to the former manager of the debtor company – be declared enforceable in France. The application for enforceability was accepted by a declaration of the registrar, but rejected by the Court of Appeal. The insolvency practitioner appealed to the Court of Cassation. In particular, he criticised the Court of Appeal for refusing to declare the enforceability by simply referring – without any analysis – to an earlier decision of the Ansbsach District Court.

Irreconcilability of Decisions under the Brussels I Regulation

It is true that the enforcement of a decision can sometimes be excluded because of the existence of an earlier decision. But some conditions must be fulfilled.

For the enforcement of judgments, Regulation (EC) No 1346/2000 on insolvency proceedings refers to Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Regl. No 1346/2000, Art. 25. – Regulation No 1346/2000 actually refers to the Brussels Convention, the provisions of which are reproduced identically in Regulation (EC) No 44/2001). And Article 34(4) of Regulation (EC) No 44/2001 provides that a judgment shall not be recognised – and thus shall not be enforceable – only if “it is irreconcilable with an earlier judgment given in another Member State or in a third State involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State addressed”. As a consequence, a national judge cannot refuse to recognise and enforce a judgment merely by noting the existence of an earlier judgment: such a refusal demands that the earlier judgment was given “between the same parties” in a dispute “involving the same cause of action” as the judgment for which recognition is sought, that it is able of being recognised in the Member State concerned and that the two judgments are irreconcilable.

Therefore, by merely referring to the judgment of the Ansbach District Court, the Court of Appeal “deprived its judgment of a legal basis”, i.e. did not examine fully whether the requirements of the applicable provision were fulfilled. As the Court of Cassation states, under Article 25 of Regulation (EC) No 1346/2000 and Article 34(4) of Regulation (EC) No 44/2001, the Court of Appeal could not simply refer to the earlier decision without “analysing” its content or “establishing its irreconcilability” with the decision the enforceability of which was sought in France.

Even if it seems self-evident, this reminder of the national judge’s role in the recognition and enforcement of decisions related to insolvency proceedings is welcome.

In any case, one can wonder if the existence of an earlier irreconcilable judgment from the same Member State as the judgment the recognition and enforceability of which is sought, as in the present case, is effectively able to prevent such recognition. Indeed, in the Salzgitter judgment of 26 September 2013, the Court of Justice ruled that Article 34 (4) of the Brussels I Regulation doesn’t cover irreconcilable judgments given by courts of the same Member State.

The long-awaited Rome II Study commissioned by the European Commission, evaluating the first ten years of the application of the Rome II Regulation on the applicable law to non-contractual obligations, has been published. It is available here. The Study was coordinated by BIICL and Civic and relies on legal analysis, data collection, a consultation of academics and practitioners, and national reports by rapporteurs from the Member States. The extensive study which also includes the national reports, discusses the scope of the Regulation and the functioning of the main rules, including the location of damages under Art. 4 Rome II, which is problematic in particular in cases of prospectus liability and financial market torts. As many of our readers will know, one of the issues that triggered debate when the Rome II Regulation was negotiated was the infringement of privacy and personality rights, including defamation, which topic was eventually excluded from the Regulation. While it has been simmering in the background and caught the attention of the Parliament earlier on, this topic is definitely back on the agenda with the majority opinion being that an EU conflict of laws rule is necessary.

Three topics that the European Commission had singled out as areas of special interest are: (1) the application of Rome II in cases involving Artificial Intelligence; (2) business and human rights infringements and the application of Art. 4 and – for environmental cases – Art 7; and (3) Strategic Lawsuits against Public Participation (SLAPPs). For the latter topic, which is currently also studied by an expert group installed by the European Commission, the inclusion of a rule on privacy and personality rights is also pivotal.

The ball is now in the court of the Commission.

To be continued.

On 4 October 2021, the Judicial Committee of the Privy Council held in Convoy Collateral Ltd (Appellant) v Broad Idea (Respondent) (British Virgin Islands) that the House of Lords’ decision in Siskina (Owners of cargo lately laden on board) v Distos Cia Naviera SA [1979] AC 210 (“The Siskina”) and the Privy Council decision in Mercedes Benz AG v Leiduck [1996] AC 284 were wrongly decided.

The first few sentences of Lord Leggatt in Convoy say it all:

1. In his dissenting judgment in Mercedes Benz AG v Leiduck [1996] AC 284 at p 314D, Lord Nicholls of Birkenhead said:

“The law took a wrong turning in The Siskina, and the sooner it returns to the proper path the better.”

The Siskina

In The Siskina, the House of Lords held that English courts have no power to grant freezing orders (Mareva injunctions, at the time) unless it is ancillary to a cause of action, in the sense of a claim for final, substantive relief which the court has jurisdiction to grant.

In other words, English courts, and courts of common law jurisdictions following the English common law, would only grant freezing injunctions if they had jurisdiction on the merits.

In contrast, the mere presence of assets within the jurisdiction was not an autonomous ground for granting freezing injunctions. Despite scholarly opinions to the contrary, such as the comments of Lord Collins in a case note in the Law Quarterly Review:

“Common sense would suggest that if proceedings are pending in one country, and the defendant’s assets are situate in another country, the plaintiff ought to be able to obtain protective or interim relief by way of attachment in the latter country. That is indeed the law in most countries …” L. Collins, “The Siskina again: an opportunity missed” (1996) 112 LQR 8

Convoy

Broad Idea is a company incorporated in the BVI. Dr. Cho is a shareholder and director of Broad Idea. In February 2018, Convoy applied to the BVI court for freezing orders against Broad Idea and Dr. Cho in support of anticipated proceedings against Dr Cho in Hong Kong. Convoy also sought permission to serve Dr. Cho out of the jurisdiction. Following a hearing held without notice to Broad Idea and Dr. Cho, the BVI court granted freezing orders restraining them from disposing of or diminishing the value of certain of their respective assets and gave permission to serve Dr. Cho out of the jurisdiction. Convoy commenced proceedings against Dr. Cho (but not Broad Idea) in Hong Kong shortly thereafter. The freezing orders issued against Dr. Cho by the BVI court and the order granting permission to serve Dr Cho out of the jurisdiction were subsequently set aside in April 2019 on the basis that the court did not have jurisdiction to make them. In the meantime, Convoy had made a further application for a freezing order against Broad Idea in support of the Hong Kong proceedings against Dr. Cho.

In July 2019, the judge continued the freezing order against Broad Idea indefinitely on the basis that the principle enunciated in TSB Private Bank International SA v Chabra [1992] 2 All ER 245 applied in the circumstances and that Broad Idea’s assets were at risk of dissipation. Broad Idea’s appeal against the judge’s decision was allowed by the Court of Appeal. Convoy then appealed to the Judicial Committee of the Privy Coucil.

The issues were:

(i) whether the BVI court has jurisdiction and/or power to grant a freezing order where the respondent is a person against whom no cause of action has arisen, and against whom no substantive proceedings are pursued, in the BVI or elsewhere, and if so
(ii) whether any such jurisdiction and/or power extends to the granting of a freezing order in support of proceedings to which that person is not a party.

Lord Leggatt concluded for the majority:

It is necessary to dispel the residual uncertainty emanating from The Siskina and to make it clear that the constraints on the power, and the exercise of the power, to grant freezing and other interim injunctions which were articulated in that case are not merely undesirable in modern day international commerce but legally unsound. The shades of The Siskina have haunted this area of the law for far too long and they should now finally be laid to rest.

Sir Goeffrey Vos wrote a minority opinion.

A Civil Law Perspective

Many lawyers from the civil law tradition found the Siskina quite remarkable. This is because, in most civil law jurisdictions, the proposition that protective measures could produce any extraterritorial effect has always been highly controversial. So, the idea that any other court than the court of the place where the assets might be situated could have jurisdiction to order, or supervise, their freezing, bordered the unthinkable.

True, protective measures in the civil law tradition are typically provisional attachments, which act in rem, while interim injunctions are equitable remedies which act in personam. But I would argue that this is a quite formalistic distinction. There is no fundamental reason why an in rem remedy could not reach assets situated abroad, and be enforced there.

If that is correct, then the issue is how to define the (extra) territorial reach of freezing injunctions/attachements. Jurisdiction on the merits is certainly a very reasonable one.

But, clearly, the location of the assets does also appear as a very reasonable ground for granting jurisdiction to freeze/attach them, if only for efficiency purposes (speed, in particular).

La 4e directive (UE) 2015/849 ne s’oppose pas à ce que l’auteur de l’activité criminelle qui a généré les capitaux blanchis puisse également être l’auteur de l’infraction de blanchiment de capitaux.

Sur la boutique Dalloz Code pénal 2022, annoté Voir la boutique Dalloz

en lire plus

La Cour de justice de l’Union européenne apporte trois utiles précisions à la possibilité offerte par le règlement successions pour les juridictions de l’État membre de résidence habituelle du défunt de décliner leur compétence en faveur des juridictions de l’État membre de nationalité du défunt.

Sur la boutique Dalloz Code civil 2022, annoté Code de procédure civile 2022, annoté Droit des successions Successions et libéralités 2021 Droit des successions et des libéralités Voir la boutique Dalloz

en lire plus

The federal courts of appeal are split over whether state or federal law governs claims brought under the Foreign Sovereign Immunities Act, which waives sovereign immunity for foreign entities in certain cases. Sometimes, this is an outcome-determinative question.

In the case of Cassirer v. Thyssen-Bornemisza Collection Foundation, the heirs of a Holocaust survivor are seeking to recover a painting by French impressionist Camille Pissarro that was stolen by the Nazis in 1939. The 1897 painting is currently on display in the Thyssen-Bornemisza Museum, a Spanish state museum in Madrid. The U.S. Court of Appeals for the Ninth Circuit ruled against the heirs, saying that federal law called for the application of Spanish law, which allows the holder of stolen property to obtain title through the doctrine of adverse possession. The heirs claim California law, which never allows the holder of stolen property to obtain good title, applies. 

Last week, the U.S. Supreme Court agreed to resolve the question. The pleadings are available on SCOTUSBlog here; more coverage of this interesting issue will follow.

Only one judgment on PIL matters, namely the one in C-581/20, TOTO (first chamber: judges Bonichot, Bay Larsen, Safjan, Jääskinen and Toader, the latter as reporting judge) is scheduled so far for publication in October 2021. It will happen next Wednesday. In addition, two opinions are expected towards the end of the month.

Case C-581/20

The Varhoven kasatsionen sad (Bulgaria) referred the following questions to the Court of Justice:

1) Is Article 1 of [the Brussels I bis Regulation] to be interpreted as meaning that a case such as that described in this order for reference must be regarded in whole or in part as a civil or commercial matter within the meaning of Article 1(1) of that regulation?

2) After the right to make an application for provisional/protective measures has been exercised and the court having jurisdiction as to the substance of the matter has already ruled on that application, is the court seised of an application for interim relief on the same basis and under Article 35 of [the Brussels I bis Regulation] to be regarded as not having jurisdiction from the point at which evidence is produced that the court having jurisdiction as to the substance of the matter has given a ruling on that application?

3) If it follows from the answers to the first two questions referred that the court seised of an application under Article 35 of [the Brussels I bis Regulation] has jurisdiction, must the conditions for the ordering of protective measures under Article 35 of [the Brussels I bis Regulation] be interpreted independently? Should a provision which does not allow a protective measure to be ordered against a public body in a case such as the present one be disapplied?

In the case at hand, the State Treasury – Director-General for National Roads, Poland – commissioned the Italian companies Toto S.p.A Costruzioni Generali and Vianini Lavori S.p.A. to construct the S-5 expressway. Pursuant to clause 20.6 of the contract, the parties agreed on the jurisdiction of the Polish courts. Under the contract, guarantees were provided to ensure the fulfilment of the obligations. Furthermore, another guarantee was issued by an insurance company (ZD ‘Euroins’ AD) to secure payment of a contractual penalty in case of failure to complete the construction works in time.

Toto S.p.A Costruzioni Generali and Vianini Lavori S.p.A. brought actions in Poland against the State Treasury, seeking a declaration that the defendant is not entitled to demand payment of the contractual penalty agreed in the contract, since the conditions for such payment are not met. The Italian companies requested as well an interim measure obliging the defendant to refrain, in particular, from making use of guarantee provided by ZD ‘Euroins’ AD.

The Polish court considered the applications for an interim measure unfounded. The companies applied then to the Sofia City Court for an interim measure in connection with the actions brought before the District Court of Warsaw. The Sofia City Court rejected that application. The Sofia Court of Appeal reversed the decision and issued an attachment order against the receivable of the Ministry of Finance, Director-General for National Roads and Motorways, Poland, arising from the guarantees above mentioned.

The State Treasury of Poland appealed against the Supreme Court of Cassation (Bulgaria), which is the referring court in the main proceedings.

AG Rantos was asked to provide an opinion on the second question. It was published the 9th of September and can be consulted here – no English translation so far.

Case C-421/20

AG Szpunar’s opinion in C-421/20, Acacia, is due on 28 October. The request comes from the Oberlandesgericht Düsseldorf (Higher Regional Court Düsseldorf, Germany). It focuses on the interpretation (application?) of Article 82(5) of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (CDR), whereby “Proceedings in respect of the actions and claims referred to in Article 81(a) and (d) may also be brought in the courts of the Member State in which the act of infringement has been committed or threatened.”

According to Article 81(a) and (d), “The Community design courts shall have exclusive jurisdiction: (a) for infringement actions and – if they are permitted under national law – actions in respect of threatened infringement of Community designs; … (d) for counterclaims for a declaration of invalidity of a Community design raised in connection with actions under (a)”.

The questions referred read as follows

1) In proceedings for an infringement of Community designs, can the national court dealing with the infringement proceedings having international jurisdiction pursuant to Article 82(5) of the CDR apply the national law of the Member State in which the court dealing with the infringement proceedings is situated (lex fori) to subsequent claims in relation to the territory of its Member State?

2) If Question 1 is answered in the negative: Can the ‘initial place of infringement’ for the purposes of the CJEU judgments in Cases C 24/16, C 25/16 (Nintendo v BigBen) regarding the determination of the law applicable to subsequent claims under Article 8(2) of [the Rome II Regulation] also lie in the Member State where the consumers to whom internet advertising is addressed are located and where goods infringing designs are put on the market within the meaning of Article 19 of the CDR, in so far as only the offering and the putting on the market in that Member State are challenged, even if the internet offers on which the offering and the putting on the market are based were launched in another Member State?

The case concerns a car manufacturer (the claimant in the main proceedings), who is, inter alia, the registered holder of Community design No 001598277-0002 (‘the Registered Design’). The defendant, an Italian company, manufactures rims for motor vehicles in Italy and sells them throughout the European Union. In Germany, it markets rims under the name ‘WSP Italy’, including the ‘Neptune GT’ model. The claimant considers that the distribution of the rims in Germany by the defendant constitutes an infringement of its Registered Design, whereas the defendant invokes the repair clause in Article 110 of the Council Regulation on Community Designs.

The Landgericht (Regional Court) ordered the defendant – geographically limited to the Federal Republic of Germany – to cease and desist, to provide information, to return documents and to surrender items for the purpose of destruction, and established the defendant’s obligation to pay damages. It based its international jurisdiction on Article 82(5) of the Community Design Regulation, assumed that the defendant had infringed the Registered Design, and applied German law to the subsequent claims asserted (damages, information, rendering of accounts, return of documents and surrender of items for the purpose of destruction) in accordance with Article 8(2) of the Rome II Regulation.

The defendant brought an appeal against that judgment. It continues to rely in particular on Article 110 of the CDR. In addition, it takes the view that under Article 8(2) of the Rome II Regulation Italian law is applicable to the subsequent claims asserted by the claimant

The case has been assigned to the fifth chamber (judges Regan, Lenaerts, Ilešič, Jarukaitis, Lycourgos, the latter as judge-rapporteur).

Case C-498/20

The opinion of AG Campos Sánchez-Bordona on C-498/20, BMA Nederland, is expected on the same day. The questions referred concern jurisdiction in tort matters in relation to a Peeters-Gatzen action, with an association defending collective interests intervening. The sixth chamber (Bay Larsen, Jääskinen and Safjan as reporting judge) will adjudicate.

Le Contrôleur européen de la protection des données accueille le paquet législatif relatif à la lutte contre le blanchiment de capitaux et le financement du terrorisme, sous réserves de suivre quelques recommandations.

Sur la boutique Dalloz Code de la protection des données personnelles 2021 Voir la boutique Dalloz

en lire plus