Agrégateur de flux

Cumul idéal

Cumul idéal - Fraude fiscale

Fraude fiscale

Douanes

Pologne / Commission
Énergie
Le Tribunal annule la décision de la Commission approuvant la modification du régime dérogatoire d’exploitation du gazoduc OPAL

Pologne / Commission
Énergie
Le Tribunal annule la décision de la Commission approuvant la modification du régime dérogatoire d’exploitation du gazoduc OPAL

The HCCH is seeking to retain a Consultant who will conduct a study and draft a further Report on specific aspects relating to the HCCH’s ongoing legislative project on Tourists and Visitors.

Interested? For more information, follow this link to the vacancy announcement.

As I continue to dabble in research and talks about the innovation ‘principle’ (not in existence), and find myself in court (an attachment procedure following judgment in Israel) discussing the common law principle that ‘he who comes to equity must approach the court with clean hands’, the CJEU (General Court) yesterday in T-883/16 held Poland v EC a first test of the TFEU Energy title’s ‘principle of energy solidarity’. Note Poland’s litigant friends (Latvia; Lithuania), and the EC’s (Germany). This tells you something about energy security of supply on our Eastern borders.

Article 194 TFEU: ‘1. In the context of the establishment and functioning of the internal market and with regard for the need to preserve and improve the environment, Union policy on energy shall aim, in a spirit of solidarity between Member States, to:…’

The gas pipeline Ostseepipeline-Anbindungsleitung ﴾OPAL) is the terrestrial section to the west of the Nord Stream 1 gas pipeline. Its entry point is located in Germany and its exit point is in the Czech Republic. In 2009, the Bundesnetzagentur (BNetzA, the German regulatory authority) notified the Commission of two decisions that exempted the capacities for cross-border transmission of the planned OPAL pipeline from the application of the rules on third party access and tariff regulation laid down in Directive 2003/55. Those decisions concerned the shares belonging to the two owners of the OPAL pipeline. The same year, the Commission adopted a decision by which it requested the BNetzA to modify its decisions by adding certain conditions. Under those conditions, in particular, a dominant undertaking, such as Gazprom, could reserve only 50% of the cross-border capacities of the OPAL pipeline, unless it released onto the market a
volume of gas of 3 billion m³/year on that pipeline (‘the gas release programme’). In accordance with those three decisions of 2009, the capacities of the OPAL pipeline were exempted from the application of the rules on regulated third-party access and tariff regulation on the basis of Directive 2003/55. This decision was later (2016) slightly amended albeit not in substance.

Poland argue that the grant of a new exemption relating to the OPAL pipeline threatens the security of gas supply in the European Union, in particular in central Europe. Poland suggests that the 2016 decision breaches the principle of energy solidarity in that it enables Gazprom and undertakings in the Gazprom group to redirect additional volumes of gas onto the EU market by fully exploiting the capacities of the North Stream 1 pipeline. Taking into account the lack of significant growth in demand for natural gas in central Europe, according to Poland, that would, as its only possible consequence, influence the conditions of supply and use of transmission services on the pipelines competing with OPAL.

The General Court yesterday (the case no doubt may be appealed) held that the application of the principle of energy solidarity does not mean that the EU energy policy must never have negative impacts on the particular interests of a Member State in the field of energy. However, the EU institutions and the Member States are required to take into account, in the context of the implementation of that policy, the interests both of the European Union and of the various Member States and to balance those interests where there is a conflict. In neither the preparation of the 2016 decision nor its actual content is there any trace of the EC having considered the principle and its impact: the Decision is therefore annulled.

The case adds to the corpus of judgments where the CJEU is called upon to apply ‘principles’ and clearly emphasises preparatory due diligence, rather than second-guessing the actual application of the principle in substance.

Geert.

(Handbook of) EU Environmental Law (with Leonie Reins), 2017, Part I Chapter 2.

 

Panthéon-Assas (Paris 2) University will host a conference on November 21 on jurisdiction clauses: “La clause attributive de juridiction : de la prévisibilité au désordre”.

The first part of the conference is dedicated to the factors of disorder, such as the application of the clauses in financial matters, the implications of personal data protection, and other limits to the clauses’ effectiveness. The second part will discuss ways to enhance the protection afforded to the parties by jurisdiction clauses.

The conference will take place in the Salle des Conseils, 12 place du Panthéon 75005, Paris.

Registration is open until November 8th.

The full programme is available here

 

 

written by Tobias Lutzi

Last week’s decision by the CJEU in Case C-172/18 AMS Neve has rightly received a lot of attention from IP lawyers (see the comments by Eleonora Rosati on IPKat; Terence Cassar et al. on Lexology; James Nurton on ipwatchdog.com; see also Geert van Calster on gavclaw.com). As it adds another piece to the puzzle of international jurisdiction for online infringements of IP rights, it also seems suitable for discussion on this blog.

The EU Framework of International Jurisdiction for Online Infringements of IP rights

The rules on international jurisdiction established by EU instruments differ depending on the specific type of IP right in question.

Jurisdiction for infringements of IP rights that are protected through national law (even where it has been harmonised by EU Directives) is governed by the general rule in Art 7(2) of the Brussels Ia Regulation. Accordingly, both the courts of the place of the causal event – understood as the place where the relevant technical process has been activated (Case C-523/10 Wintersteiger, [34]–[35], [37]) – and the courts of the place of the damage – understood as the place of registration (for trademarks: Wintersteiger, [28]) or access (for copyright: Case C-441/13 Hejduk, [34]), limited to the damage caused within the forum (Hejduk, [36]) – can be seised.

The wide range of courts that this approach makes available to potential claimants in internet cases has however been somewhat balanced out through an additional substantive requirement. Starting with Case C-324/09 L’Oréal, [64], the Court of Justice has repeatedly found an IP right in a given member state to be infringed only where the online activity in question had been directed or ‘targeted’ at consumers in that member state. The Court has also made clear, though, that this requirement is to be distinguished from the requirements for jurisdiction under Art 7(2) Brussels Ia, which could still be based on the mere accessibility of a website, regardless of where it was targeted (see Case C-170/12 Pinckney, [41]–[44]).

Turning to the second group of IP rights, those that are protected under ‘uniform’ EU instruments, the rules of the Brussels Ia Regulation are displaced by the more specific rules contained in the relevant instrument. Under Art 97(1) of the EU Trademark Regulation 207/2009 (now Art 125(1) of Regulation 2017/1001) for instance, jurisdiction is vested in the courts of the member state in which the defendant is domiciled; in addition, certain actions, including actions over infringements, can also be brought in the courts of the member state in which ‘the act of infringement’ has been committed or threatened pursuant to Art 97(5) (now Art 125(5)). While this latter criterion may have appeared to simply refer to the place of the causal event of Art 7(2) Brussels Ia in light of the Court of Justice’s decision in Case C-360/12 Coty Germany, [34] (an interpretation recently adopted by the German Federal Court (BGH 9 Nov 2017 – I ZR 164/16)), the Court of Justice had never specified its interpretation in cases of online infringements.

The Decision in AMS Neve

This changed with the reference in AMS Neve. The CJEU was asked to interpret Art 97(5) of Regulation 207/2009 in the context of a dispute between the UK-based holders of an EU trademark and a Spanish company that had allegedly offered imitations of the protected products to consumers in the UK (and elsewhere) over the internet. While the Intellectual Property and Enterprise Court (which is part of the High Court) had held that it had no jurisdiction because the ‘place of infringement’ referred to in Art 97(5) was the place in which the relevant technical process had been activated, i.e. Spain, ([2016] EWHC 2563 (IPEC)), the Court of Appeal (Kitchen LJ and Lewison LJ) was not persuaded that this conclusion necessarily followed from the CJEU’s case law and submitted the question to the CJEU for a preliminary ruling ([2018] EWCA Civ 86).

The Court of Justice has indeed confirmed these doubts and, held that the ‘place of infringement’ in Art 97(5) must be understood as ‘the Member State within which the consumers or traders to whom that advertising and those offers for sale are directed are located’ (AMS Neve, [65]). To arrive at this conclusion the Court had to drastically limit the scope of the relevant section in Coty (see AMS Neve, [44]) and to extend the substantive criterion of ‘targeting’ established in L’Oréal (which the Court has since relied on in numerous contexts, typically involving internet activities: see Case C-191/15 VKI, [43], [75]–[77]) to the question of international jurisdiction, at least as far as the Trademark Regulation is concerned.

In addition to improving the protection of trademark owners (see AMS Neve, [59] and [63]), the decision seems to rely on two considerations.

First, unlike a general instrument on jurisdiction such as the Brussels Ia Regulation, Regulation 207/2009 defines itself the relevant infringements (in Art 9), which include acts of advertising and offers for sale (see AMS Neve, [54]). Therefore, even though the wording of Art 97(5) does not make any reference to a requirement of targeting (as Eleonora Rosati rightly notes), there may at least be some indirect reference to the concept.

Second, and more importantly, Art 97 is followed by Art 98, which specifies the territorial scope of jurisdiction based on Art 97; it distinguishes between full jurisdiction (of the courts of the member state of the defendant’s domicile, Art 98(1)) and territorially limited jurisdiction (of the courts of the place of infringement, Art 98(2)). This distinction, which is reminiscent of the Court’s decision in Case C-68/93 Shevill and the following case law, indeed seems to provide a strong argument not to limit Art 97(5) to the place of the causal act, where a territorial limitation would make rather little sense.

Still, it seems questionable if the Court’s decision in AMS Neve does not run counter to the idea of vesting jurisdiction in clearly identifiable courts so as to reduce the risk of irreconcilable decisions. As the Court acknowledges (see AMS Neve, [42]), its interpretation of Art 97(5) allows the holder of an EU Trademark to bring multiple actions against an alleged online infringer, which would not fall under constitute lis pendens as they would concern different subject matters (i.e. infringements in different member states).

The Court of Justice appears to have attached more significance to these concerns when interpreting Art 8(2) Rome II in Joined Cases C-24/16 and C-25/16 Nintendo, which similarly refers to the country ‘in which the act of infringement was committed.’ In this regard, the court had explained that

the correct approach for identifying the event giving rise to the damage is not to refer to each alleged act of infringement, but to make an overall assessment of that defendant’s conduct in order to determine the place where the initial act of infringement at the origin of that conduct was committed or threatened. (Nintendo, [103])

It is unfortunate that this reasoning has not been extended to Art 97(5) of the Trademark Regulation.

Hier, le Conseil constitutionnel a eu à examiner une question prioritaire de constitutionnalité relative à l’utilisation de la visioconférence devant la chambre de l’instruction.

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Action civile

As my fellow editor Thalia Kruger has already signaled earlier, the final conference for the EU-funded IC2BE project on the cross-border enforcement of claims in the EU will take place in Antwerp (Belgium) on 21 and 22 November 2019. The conference will try to assess how the European framework of cross-border enforcement can be made more coherent and effective. In particular, the conference will discuss the application of the Regulations on the European Enforcement Order, the European Payment Order, the European Small Claims Procedure and the Account Preservation Order in various Member States as well as by the Court of Justice of the EU. This event brings together high-level practitioners from the European Commission, the CJEU as well as from Member State courts and authorities with distinguished scholars from across the EU.

The case law database of the IC2BE project is available here.

The current programme looks as follows:

Day 1, 21 November 2019

• 12.30-13.45 Registration and light lunch
• 13.45 Welcome (Johan Meeusen, University of Antwerp)

Section 1: Survey and Evaluation (Chair Stefania Bariatti, University of Milan)

• 14.00-14.30 IC2BE: Research Methodology, Key Findings and Best Practices (Jan von Hein, University of Freiburg)
• 14.30-15.00 CJEU case law on Cross-Border Enforcement (Veerle Van Den Eeckhout, Max Planck Institute Luxembourg)
• 15.00-15.30 Discussion
• 15.30-16.00 Coffee Break
• 16.00-17.30 Country reports Belgium (Fieke van Overbeeke, University of Antwerp), The Netherlands (Alina Ontanu, Erasmus University Rotterdam), Poland (Agnieszka Guzewicz and Agnieszka Lewestam-Rodziewicz, University of Wroc?aw), Spain (Samia Benaissa Pedriza, University of Complutense, Madrid)
• 17.30-18.00 Discussion

Day 2, 22 November 2019

Section 1 (continued) (Chair Agnieszka Frackowiak-Adamska, University of Wroc?aw)

• 9.00-10.00 Country Reports Germany (Tilman Imm, University of Freiburg), France and Luxembourg (Carlos Santaló Goris, Max Planck Institute Luxembourg), Italy (Valeria Giugliano, University of Milan)
• 10.00-10.15 Discussion
• 10.15-10.45 Coffee Break

Section 2: Perspectives (Chair Francesca Villata, University of Milan)

• 10.45-11.15 Towards a more coherent EU framework for cross-border enforcement (Burkhard Hess, Max Planck Institute, Luxembourg)
• 11.15-11.35 Making cross-border enforcement more effective for creditors (Gilles Cuniberti, University of Luxembourg)
• 11.35-11.55 Ensuring an adequate protection of debtors, in particular consumers, in cross-border enforcement (Fernando Gascón Inchausti, Complutense University, Madrid)
• 11.55-12.15 Third-state relations and cross-border enforcement after “Brexit” (Paul Beaumont, University of Stirling)
• 12.15-12-30 Comment by CJEU judge Camelia Toader
• 12.30-13.00  Discussion
• 13.00-14.00 Lunch
• 14.00-14.20 Technological progress and alternatives to the cross-border enforcement of small claims (Giesela Rühl, Friedrich-Schiller University Jena)
• 14.20-14.40 Improving access to information about cross-border enforcement (Xandra Kramer, Erasmus University Rotterdam)
• 14.40-15.00 Discussion

Section 3: Stakeholders’ views (Chair Carmen Otero, Complutense University, Madrid)

• 15.00-16.00 Stakeholder panel discussion
  • Ilse Couwenberg of the Belgian Court of Cassation,
  • Dr. Bartosz Sujecki, lawyer, Utrecht
  • Dr. Katarzyna Guzenda, German-Polish Center for Consumer Information, Brandenburg (Germany)
  • Patrick Gielen, huissier (Belgium)
• 16.00-16.15 Break

Section 4: Policy (Chair Marta Requejo, CJEU, Référendaire Cabinet de l’Avocat Général M. Campos Sánchez-Bordona)

• 30-17.30 Policy makers

• • Dr. Andreas Stein, European Commission, DG Justice, Head of Unit
  • Paulien van der Grinten, Ministry of Justice of The Netherlands
  • European Parliament, Legal Affairs Committee (tbc)
• 17.30-18.00 Discussion and closing remarks (Chair Thalia Kruger, University of Antwerp)

See here for further details on registration, which is free (only the dinner is to be paid by attendees). Antwerp is close to Brussels and Amsterdam and can easily be reached by train from either of those cities.

National seminars will also take place in the participating countries. See here for the dates.

The HCCH just released a short documentary on the adoption of the 2019 HCCH Judgments Convention.

Shot during the 22nd Diplomatic Session of the HCCH, which took place in June / July 2019, this documentary gives unprecedented insights into the finalisation of the negotiations of this game changing treaty. Follow the delegates during the negotiations and join them at the ceremonial signing of the Convention on 2 July 2019.

This documentary is also a unique opportunity to hear the Secretary General, Dr Christophe Bernasconi; the Chair of the Commission of the Diplomatic Session on the Judgments Convention, David Goddard QC; as well as H. E. Maria Teresa Infante, Ambassador of the Republic of Chile to the Kingdom of the Netherlands; and Professor Elizabeth Pangalangan, University of the Philippines, share first hand their experiences and impressions during the Diplomatic Session, and explain the key elements of the 2019 HCCH Judgments Convention as well as the benefits it will offer.

The video is now available on the HCCH’s YouTube channel (https://youtu.be/DTlle58s64s).

 

This is a reminder that the Permanent Bureau of the Hague Conference on Private International Law (HCCH) seeks high-achieving interns for January to July 2020.

An internship with the HCCH offers a unique opportunity to deepen the knowledge of private international law, better understand how the HCCH functions, and contribute to the work of the Organisation.

Interested? Then lodge your application by Monday 30 September 2019.

For more information, including the application requirements, check out the HCCH website at: https://www.hcch.net/en/recruitment/internships#legal.

Ils ont présenté leur demande mercredi 4 septembre devant le TASS de Paris, demandant le paiement de leurs cotisations sociales par leur employeur, l’État, en infraction depuis près de vingt ans en ne payant pas les cotisations patronales pour ces collaborateurs occasionnels du service public dont il requiert les services.

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A bit more than a year ago, I posted here & here about a Greek ruling on the non-recognition of an Egyptian notarized talaq divorce. The same court rendered mid-July a new judgment related to the same case; this time recognition was granted! It is the first decision of this nature in Greece, which will hopefully pave the path for the future.

Apostolos Anthimos

THE FACTS

There is no need to repeat the facts which are already reported in my previous posts (see links above). There are however some novelties: The application for recognition concerned indeed the divorce between the same parties, as in the first case; however, this time the request referred to a judgment of the Abdeen Court of 1st Instance, which rectified the divorce issued before the notary public. In particular, the divorce was previously registered as of a revocable nature [revocable repudiation]. Given that the waiting period had expired, and the husband did not ask for his wife’s return in the marital home, a new application was filed before the Abdeen court, aiming at the rectification of the registration, i.e. from revocable to an irrevocable divorce.

THE RULING

The court began with an analysis of the pertinent provisions, i.e. Article 780 Code of Civil Procedure, which is the rule for the recognition of foreign judgments issued in non-contentious proceedings, also covering foreign legal instruments. It first underlined the obvious difficulties in accepting a divorce by repudiation, which clearly violates the equality of sexes. However, and this is the novelty of the ruling, recognition may not be denied, if the applicant is the wife; otherwise, the public policy defence would cause unfair solutions in concreto.

The court entered then into the facts of the case. It first considered the Egyptian decision as similar to a Greek final and conclusive judgment. It then examined whether the foreign court applied the proper law. In this context, it made reference to Article 16, in conjunction with Art. 14.2 Greek Civil Code, which enumerates three options: The law of common nationality; the law of the last common residence; and the law with which the parties are in the closest possible connection. Since Cairo was the last common residence, the application of Egyptian law was the proper solution.

Coming back to the public policy issue, the Thessaloniki Court reiterated that the general approach goes indeed towards a public policy violation, given that repudiation runs contrary to the European Convention of Human Rights. However, in the case at hand, the applicant has fully accepted the dissolution of her marriage in this fashion; moreover, she was the one seeking the rectification in Egypt, and filing for the recognition of the talaq in Greece. A dismissal of the application would lead to an absurd situation, i.e. the existence of a marriage which none of the spouses wishes to maintain. In addition, forcing the applicant to initiate divorce proceedings in Greece would be costly and time-consuming.

For all the reasons aforementioned, the Thessaloniki court granted the application.

[CFI Thessaloniki, 17/07/2019, Nr. 8458/2019, unreported].

COMMENTS

The ruling of the Thessaloniki court is very welcome for the following reasons, which I listed in my last year’s post:

1. It bypassed an Athens Court of Appeal judgement from the ‘90s, which ruled out any attempt to recognize a talaq, even if requested by the spouse.
2. It took a firm stance, triggered by a 2016 ruling of the Supreme Court’s Full Bench [Areios Pagos 9/2016], stating that the public policy clause is not targeting at the foreign legislation applied in the country of origin or the judgment per se; moreover, it focuses on the repercussions caused by the extension of its effects in the country of destination.
3. It made clear reference to the futility of fresh divorce proceedings in Greece, which would cause significant costs to the applicant and prolong the existence of a marriage no longer desired by any of the parties involved.