Agrégateur de flux

On 22 June 2020, Parliament and Council negotiators reached a deal on the first EU-wide rules on collective redress.

The new rules introduce a harmonised model for representative action in all member states that guarantees consumers are well protected against mass harm, while at the same time ensuring appropriate safeguards from abusive lawsuits. The new law also aims to make the internal market function better by improving tools to stop illegal practices and facilitating access to justice for consumers.

The Representative Action Directive is a part of the New Deal for Consumers, launched in April 2018 by the European Commission, to ensure stronger consumer protection in the EU. It includes stronger consumer rights online, tools to enforce rights and compensation, penalties for violating EU consumer law and improved business conditions.

The main elements of the agreement are as follows.

1. Each Member State will name at least one qualified entity (an organisation or a public body) that will be empowered and financially supported to launch actions for injunction and redress on behalf of groups of consumers and will guarantee consumers’ access to justice.

2. On designation criteria for qualified entities, the rules distinguish between cross-border cases and domestic ones. For the former, entities must comply with a set of harmonised criteria. They have to demonstrate 12 months of activity in protecting consumers’ interest prior to their request to be appointed as a qualified entity, have a non-profit character and ensure they are independent from third parties whose economic interests oppose the consumer interest;

3. For domestic actions, member states will set out proper criteria consistent with the objectives of the directive, which could be the same as those set out for cross-border actions.

4. The rules strike a balance between access to justice and protecting businesses from abusive lawsuits through the Parliament’s introduction of the “loser pays principle”, which ensures that the defeated party pays the costs of the proceedings of the successful party-

5. To further avoid abusive lawsuits, Parliament negotiators also insisted that courts or administrative authorities may decide to dismiss manifestly unfounded cases at the earliest possible stage of the proceedings in accordance with national law.

6. Negotiators agreed that the Commission should assess whether to establish a European Ombudsman for collective redress to deal with cross-border representative actions at Union level.

7.  The scope of collective action would include trader violations in areas such as data protection, financial services, travel and tourism, energy, telecommunications, environment and health, as well as air and train passenger rights, in addition to general consumer law.

Parliament as a whole and the Council will now have to approve the political agreement. The directive will enter into force 20 days following its publication in the Official Journal of the EU. Member states will then have 24 months to transpose the directive into their national laws, and an additional six months to apply it.

Click here to access the procedure file.

On Tuesday, July 7, the Hamburg Max Planck Institute will host its second monthly virtual workshop in private international law, again in German. Eva-Maria Kieninger (Würzburg) will speak in German about climate change in private international law and procedure, followed by open discussion. All are welcome. More information and sign-up here.

While doing some research on the topic of the application of foreign law (frustrating: nothing has happened at the international level since the issue was given up at the Hague some years ago), I have come across some publications on related topics which I believe deserve attention. One of them is whether there is a human right of public access to legal information; scholars in favor even claim a UN Convention proclaiming it should be adopted .

Thanks to these readings I remembered a case of the European Court of Human Rights which, except I am mistaken, is largely unknown. The judgement, of 6 April 2004, corresponds to application no. 75116/01, Karalyos and Huber v. Hungary and Greece. Hungary was found to have failed to comply with Article 6 ECHR in a case for the compensation of damages: the contents of the foreign applicable law had not been established nine years after the claim was lodged; the proceedings were still pending at an early stage before the Hungarian courts. What is more relevant, the local courts had not taken the approppriate steps to ascertain the contents of the foreign law, nor applied national law instead – a possibility foreseen in section 5 § 1 of Hungarian Law-Decree no. 13 of 1979 on International Private Law.

I suggest you have a look, also on the lengh of proceedings where foreign law is applicable, to  Bekerman v. Liechtenstein, on application no. 34459/10  (although less representative than Karalyos).

I would disclose nothing new by asserting the potential of Article 6 ECtHR in the area. However, to infer a fundamental right of access to legal materials from the case law mentioned above would, to my mind, go too far. On the contrary, some consequences could definitly be drawn regarding the application of foreign law – and not only in Hungary. I am not aware it has happened. It would be great to have feedback, if someone knows better.

— Some readings on access to legal information as a right: Ginevra Peruginelli, ‘Law belongs to the people: access to law and justice’, [2016] 16(2) Legal Information Management 107 – quite short; Leesi Ebenezer Mitee, The Right of Public Access to Legal Information: A Proposal for Its Universal Recognition as a Human Right’ (2017) 18 German LJ 1429 – almost 70 pages.

Après neuf mois de travaux, les 150 citoyens tirés au sort pour la Convention citoyenne pour le climat ont remis leurs travaux. Ils préconisent l’adoption de 150 propositions, dont deux seraient soumises à référendum : le renforcement de la place de l’environnement dans la Constitution et la création d’un crime d’écocide. Le droit comme levier d’action pour sauver la planète.

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Alors qu’est célébrée le 20 juin la journée mondiale des réfugiés et que le dernier rapport du HCR, publié le 18 juin, fait état d’un nombre record de déplacements forcés dans le monde, les recommandations de Montréal, publiées le 8 juin dernier par l’OIM, entendent étoffer le cadre juridique de protection des migrants internationaux.

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Pourvoi c/ Cour d'appel de Pau, 28 novembre 2019

Pourvoi c/ Cour d'appel de Paris, 28 janvier 2020

Pourvoi c/ Cour d'assises de la Corse-du-Sud, 5 décembre 2019

Pourvoi c/ Cour d'appel de Bordeaux, 28 janvier 2020

Pourvoi c/ Cour d'appel de Colmar, 10 janvier 2020

Tribunal correctionnel de Briey, 12 mai 2020

Tribunal de commerce de Saint-Nazaire, 29 mai 2020

Pourvoi c/ Cour d'appel de Riom, 28 novembre 2019

Pourvoi c/ Cour d'appel de Rennes, 6 novembre 2019

Pourvoi c/ Cour d'appel de Douai, 13 et 28 mai 2020

Cour d'appel d'Amiens, 26 septembre 2019

Tribunal correctionnel de Valence, 9 juin 2020

Cour d'appel de Paris, 4 juin 2020

Acte clair is in the eyes of the beholder, I assume. However a confident judge would have sufficient CJEU authority to help them hold on the A24(1) BIa issues in C‑433/19 Ellmes Property Services in which Szpunar AG opined last week. (No EN version available at the time of publication of this post).

Do actions brought by a co-owner seeking to prohibit another co-owner from carrying out changes to his property subject to co-ownership, in particular to its designated use, arbitrarily and without the consent of the other co-owners, concern the assertion of a right in rem? In the negative, is the forum contractus per A7(1)(a) Brussels Ia the location of the property? The less clear issue in my view is the forum contractus element.

The location is Zell am Zee, contested use is, not surprisingly, tourist accomodation. Applicant in the national proceedings is an individual who lives in the apartment building. Defendant is a UK corporation who uses it for short-term lets despite the residential designation assigned to the building as a whole in the co-ownership agreement.

From CJEU authority including C-438/12 Weber v Weber it should be clear that other than the hardcore cases of ownership of real estate, the erga omnes v in personam character of rights in real estate depends on national law. The Advocate General in this respect points out that for the rights of co-owners in the case at issue to be rights in rem, Austrian law would have to be enable them to exercise these rights not just vis-a-vis the other co-owners, but also vis-a-vis third parties such as tenants. Whether this is the case in Austrian law has not been sufficiently explained in the reference, it seems.

For the impact of entry in the land register (where third parties can consult the co-ownership agreement), Szpunar AG reviews and contrasts C‑417/15 Schmidt v Schmidt, and C-630/17 Milivojević v Raiffeisenbank. Mere registration does not always entail erga omnes impact.

The Advocate General reminds us of the overall interpretation of Article 24, including the need for restrictive interpretation, and flags (with reference inter alia to the Handbook, p.73, for which I am, as always, sincerely humbled) that it is not just, or not even so much sound administration of justice which underlies A24. At least partially, Member States’ strategic interests are served by the issues listed in the Article.

Ellmes Property Services does not seem to raise additional issues such as we saw in C-25/18 Kerr. The Austrian courts could have dealt with this on their own, and seeing as the referring judge did not provide the kind of detail for the CJEU to judge, the AG’s suggestion is to leave it up to them to verify the erga omnes character.

That leaves (whether it will be needed depends on what the eventual insight will be on the erga omnes element), the forum contractus under A7(1). Parties differ as to the qualification of the contractual duty: is it a positive one (do!) or a negative one (must not!). The AG opts for the latter, with reference to CJEU 14/76 De Bloos: A7(1) refers to the contractual obligation forming the basis of the legal proceedings. I find the precedent value of De Bloos problematic in light of the many changes that have been made to Article 7 since, and in light of the engineering possibilities it hands to parties.

The AG advises that forum contractus will have to be determined by the Italian judge following the conflicts method per CJEU 12/76 Tessili v Dunlop, with little help from European harmonisation seeing i.a. as the initial co-ownership agreement dates back to 1978.

I am curious to see how far the Court will go in entertaining the issues at stake.

Geert.

(Handbook of) EU Private International Law, Chapter 2, Heading 2.2.6.1 (cited by the AG) and Heading 2.2.11.1.