Agrégateur de flux

Holidays are over, it is time for all the services of the Court to resume full activity.

As regards private international law, September 2020 will start with the delivery, on Thursday 3, of the 1st Chamber (Bonichot, Safjan, Bay Larsen, Toader, Jääskinen) judgment in C-186/19, Supreme Site Services e.a.: a request for a preliminary ruling from the Netherlands on the
interpretation of Article 1(1), and Article 24(5) of the Brussels I bis Regulation.

The request was made in the course of an application brought by an international organisation for the adoption of interim measures to lift an interim garnishee order levied on an escrow account by his opponent. In support of its action, the organisation had relied on immunity from execution under international law. The referring court’s doubts on Article 1(1) of Brussels I bis stem from that fact.

AG Oe’s Opinion was delivered on 2 April 2020 (see here). He was asked to address only the questions on Article 1(1) of the Regulation.

On the same day, an order is expected in C-98/20, mBank, on Article 17(1)(c) and Article 18(2) of the same Brussels I bis Regulation. The request was referred by the Obvodní soud pro Prahu 8 (Czech Republic), who had doubts about the relevant date of domicile for the consumer section to apply.

On Thursday 10, AG Oe will deliver his Opinion on C-59/19,Wikingerhof. The request, from the Bundesgerichtshof, addresses the divide between Article 7(1) and (2) of the Brussels I bis Regulation. The question reads:

‘Is Article 7(2) … to be interpreted as meaning that jurisdiction for matters relating to tort or delict exists in respect of an action seeking an injunction against specific practices if it is possible that the conduct complained of is covered by contractual provisions, but the applicant asserts that those provisions are based on an abuse of a dominant position on the part of the defendant?’

It actually looks as a follow up to Brogsitter (C-548/12), except that this time the Grand Chamber will decide (Lenaerts, Silva de Lapuerta, Bonichot, Arabadjiev, Prechal, Safjan, Rodin, Xuereb, Rossi, von Danwitz, Toader, Šváby, Jürimäe, Lycourgos, Piçarra), and an AG’s Opinion has been deemed necessary.

On the same day, a hearing will take place on case C-709/19, Vereniging van Effectenbezitters: again a preliminary reference from the Netherlands, this time in relation to Article 7(2) of Brussels I bis, going to the core of the ‘holistic approach’. The Dutch referred four (de facto, five) questions to the CJEU:

‘1.   (a)   Should Article 7(2) … be interpreted as meaning that the direct occurrence of purely financial damage to an investment account in the Netherlands or to an investment account of a bank and/or investment firm established in the Netherlands, damage which is the result of investment decisions influenced by globally distributed but incorrect, incomplete and misleading information from an international listed company, constitutes a sufficient connecting factor for the international jurisdiction of the Netherlands courts by virtue of the location of the occurrence of the damage (‘Erfolgsort’)?

(b)   If not, are additional circumstances required to justify the jurisdiction of the Netherlands courts and what are those circumstances? Are the additional circumstances referred to [in point 4.2.2. of the request for a preliminary ruling] sufficient to found the jurisdiction of the Netherlands courts?

2. Would the answer to Question 1 be different in the case of a claim brought under Article 3:305a of the BW (Burgerlijk Wetboek: Netherlands Civil Code) by an association the purpose of which is to defend, in its own right, the collective interests of investors who have suffered damage as referred to in Question 1, which means, among other things, that neither the places of domicile of the aforementioned investors, nor the special circumstances of individual purchase transactions or of individual decisions not to sell shares which were already held, have been established?
3. If courts in the Netherlands have jurisdiction on the basis of Article 7(2) of the Brussels Ia Regulation to hear the claim brought under Article 3:305a of the BW, do those courts then, on the basis of Article 7(2) of the Brussels Ia Regulation, also have international and internal territorial jurisdiction to hear all subsequent individual claims for compensation brought by investors who have suffered damage as referred to in Question 1?
4. If courts in the Netherlands as referred to in Question 3 above have international, but not internal, territorial jurisdiction to hear all individual claims for compensation brought by investors who have suffered damage as referred to in Question 1, will the internal territorial jurisdiction be determined on the basis of the place of domicile of the misled investor, the place of establishment of the bank in which that investor holds his or her personal bank account or the place of establishment of the bank in which the investment account is held, or on the basis of some other connecting factor?’

In the light of the facts of the case (summary here), some of them might be declared inadmissible, though. The reference has been assigned to the 1st Chamber (Bonichot, Safjan, Bay Larsen, Toader, Jääskinen), with Judge Safjan as reporting judge. Mr. Campos Sánchez-Bordona is the designated AG.

One week later the 1st Chamber will read the judgments in C-540/19, Landkreis Harburg (Subrogation d’un organisme public au créancier d’aliments), on the Maintenance Regulation. AG Sánchez-Bordona’s Opinion was published on 18 June 2020 (see here). The question referred reads

‘Can a public body which has provided a maintenance creditor with social assistance benefits in accordance with provisions of public law invoke the place of jurisdiction at the place of habitual residence of the maintenance creditor under Article 3(b) of the European Maintenance Regulation  in the case where it asserts the maintenance creditor’s maintenance claim under civil law, transferred to it on the basis of the granting of social assistance by way of statutory subrogation, against the maintenance debtor by way of recourse?’.

The judgment corresponds to the 3rd Chamber (Prechal, Lenaerts, Rossi, Biltgen, Wahl), with Ms. Rossi as reporting judge.

Albeit not directly on PIL issues: several hearings will take place in relation to the independence of the judiciary in Poland. AG Bobek will publish as well his Opinion on several cases regarding Romania, also connected to the independence of judges.

Recently, a (widely reported in the media) request for a PPU has been filed by the Rechtbank Amsterdam under Council Framework Decision 2002/584/JHA; thr underlying question is whether (all) Polish judges do still qualify as such for the purposes of the Framework Decision. If they don’t: should a similar conclusion apply to civil cooperation matters?

It is not per se unheard of for European conflict of laws developments to be referred to in other jurisdictions. In Bauer v QBE Insurance [2020] WADC 104 however the intensity of reference to CJEU authority and EU conflicts law is striking and I think interesting to report.

The context is an application to serve out of jurisdiction – no ‘mini trail’ (Melville PR at 20) therefore but still a consideration of whether Western Australia is ‘clearly an inappropriate forum’ in a case relating to an accident in Australia following an Australian holiday contract, agreed between a German travel agent and a claimant resident (see also below) in Germany but also often present in Australia – which is where she was at the time the contract was formed. Defendant contests permission to serve ia on the basis of an (arguable) choice of court and governing law clause referring exclusively to Germany and contained in defendant’s general terms and conditions.

Two other defendants are domiciled in Australia and are not discussed in current findings.

In assessing whether the German courts have exclusive jurisdiction and would apply German law, the Australian judge looks exclusively through a German lens: what would a German court hold, on the basis of EU private international law.

Discussion first turns to the lex contractus and the habitual residence, or not, of claimant (who concedes she is ‘ordinarily’, but not habitually resident in Germany) with reference to Article 6 Rome I’s provision for consumer contracts. This is applicable presumably despite the carve-out for ‘contracts of carriage’ (on which see Weco Projects), seeing as the contract is one of ‘package travel’. Reference is also then made to Winrow v Hemphill.  Melville PR holds that claimant’s habitual residence is indeed Germany particularly seeing as (at 38)

she returned to Germany for what appears to be significant and prolonged  treatment after the accident rather going elsewhere in the world and after only apparently having left her employment in Munich in 2014, is highly indicative of the fact the plaintiff’s state of mind was such that she saw Germany as her home and the place to return to when things get tough, a place to go to by force of habit.

Discussion then turns to what Michiel Poesen has recently discussed viz contracts of employment: qualification problems between contract and tort. No detail of the accident is given (see my remark re ‘mini-trial’ above). Reference to and discussion is of Rome II’s Article 4. It leads to the cautious (again: this is an interlocutory judgment) conclusion that even though the tort per Article 4(3) Rome II may be more closely connected to Australia, it is not ‘manifestly’ so.

Next the discussion gets a bit muddled. Turning to jurisdiction, it is concluded that the exclusive choice of court is not valid per Article 25 Brussels Ia’s reference to the lex fori prorogati.

• Odd is first that under the lex contractus discussion, reference is made to Article 6 Rome I which as I suggested above presumably applies given that the carve-out for contracts of carriage does not apply to what I presume to be package travel. However in the Brussels Ia discussion the same applies: contracts of carriage are excluded from Section 4’s ‘consumer contracts’ unless they concern (as here) package travel.
• Next, the choice of court is held to be invalid by reference to section 38(3) of the German CPR, which to my knowledge concerns choice of court in the event neither party has ‘Gerichtsstand’ (a place of jurisdiction’) in Germany.  Whatever the precise meaning of s38(3), I would have thought it has no calling as lex fori prorogati viz A25 BIa for it deals with conditions which A25 itself exhaustively harmonises (this argument might be aligned with that of defendant’s expert, Dr Kobras, at 57). Moreover,  the discussion here looks like it employs circular reasoning: in holding on the validity of a ‘Gerichtsstand’, the court employs a rule which applies when there is no such ‘Gerichtsstand’.
• Finally, references to CJEU Owusu and Taser are held to be immaterial.

In final conclusion, Western Australia is not held to be a clearly inappropriate forum. The case can go ahead lest of course these findings are appealed.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2.

Dernier épisode en date pour la plateforme de réservation hôtelière Expédia dans l’affaire l’opposant au ministre de l’Économie et des finances, la Cour de cassation a rejeté le déséquilibre significatif comme effet cumulé des clauses de parité et de la dernière chambre disponible figurant dans les contrats de participation d’une propriété proposés par la plateforme aux hôteliers.

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Dans un arrêt du 16 juillet (aff. jtes C‑133/19, C‑136/19 et C‑137/19), la CJUE a précisé les conséquences procédurales de l’acquisition de la majorité en cours d’instance par un mineur auteur d’une demande de regroupement familial. Elle a en particulier considéré que le recours contre le rejet d’une telle demande ne peut pas être déclaré irrecevable au seul motif que l’enfant est devenu majeur au cours de la procédure juridictionnelle.

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