Flux européens

Three Opinions of Vlas AG at the Dutch Supreme Court dated 5 April 2024 but published today discuss issues of applicable law in competition follow-on cases. See also my earlier posts on Air Cargo and Palink. CJEU authority cited includes Concurrence, Nintendo, Tibor Trans, CDC, flyLAL.

ECLI:NL:PHR:2024:561 is the Palink case in the Truck Cartel: Uzdaroji Akcine Bendrove “Palink” et al v CNH Industrial NV et al

ECLI:NL:PHR:2024:370 concerns the Air Cargo cartel: KLM et al v Stichting Cartel Compensation – SCC; and

ECLI:NL:PHR:2024:369 is also an Air Cargo case, ‘Equilib’: KLM et al v Equilib Netherlands B.V.

In the Truck Cartel opinion which is a preliminary reference, the essence of the case is the impact of a single and continuous infringement on the application of A6 Rome II. A first issue is the date of application of Rome II: it applies (A31 juncto A32) to events giving rise to damage which occur (the events, NOT the damage) after 11 January 2009. The cartel at issue ran between 1997 and 2011. (4.6) the application of Dutch residual lex causae rules for the pre 2009 period and of the Rome II rules for the post 2009 period does not serve Rome II’s quest for predictability. The fissure between pre and post Rome II’s application ratione temporis in the case of a continuous tort is not solved by CJEU Homawoo as referenced ia in CJEU Nikiforidis. 

Vlas AG 4.8 cites Mankowski

The second remaining issue is whether the Rome II Regulation applies where a continuous tort was at stake, i.e. where a multiplicity of events giving rise to the damage have occurred, some before and some after 11 January 2009. There is a plethora of conceivable solutions: First, the last causal event matters. One would run into severe trouble in identifying which event is the last. Second, the first causal event matters. Third, the most relevant causal event matters. Fourth, all causal events are treated as equivalent, and it disqualifies for the purposes of applying the Rome II Regulation that one of them occurred before 11 January 2009. Fifth, all causal events are treated as equivalent, and it suffices for the application of the Rome II Regulation that one of them occurred on or after 11 January 2009.

If one is prepared to adopt as a general policy that the Rome II Regulation and its uniform rules should be applied to the widest possible extent, the fifth approach ought to be preferred.

and Fitchen (4.10)

(…) accordingly, for many years to come it may be that the applicable law in cross-border competition law claims brought after 11 January 2009 will still be wholly or partially governed by pre-Rome II methods of determining the applicable law. As such an outcome does not appear to accord with the general policy of increasing legal certainty in the context of cross-border claims, it is worth considering whether, in the circumstance that an infringement of competition law is alleged to be ongoing both before and after the temporal datum point of Rome II, it is wrong to split the ascertainment of the applicable law. Possibly the fact that the damage causing events of the competition law tort continue past the Rome II datum point should cause the alleged tort to be regarded as occurring continuously and to therefore legitimate the application of the Rome II Regulation to determine the applicable law for the entire claim? Though increasing legal certainty and simplifying the choice of law process for cross-border competition law claims, this suggestion has to contend with the principled objection that it would be an unfair departure from the general stance of Rome II of neutrality between claimant and defendant. This objection is possibly less convincing in the specific context of follow-on competition law claims as here the existence of an anti-competitive act is already established: in these cases such neutrality may be argued to perversely favour the wrongdoer. Considerations of principle aside, the most formidable obstacle to any suggestion that competition claims which straddle the temporal datum point should benefit from a single method of applicable law selection is Rome II itself: the text currently lacks any provision supporting retrospective temporal applicability whether immediate or deferred in time.

It is suggested that a case based upon increasing legal certainty can be made for a legislative amendment to address the problem of an absence of transitional provisions concerning the temporal applicability in Rome II for follow-on competition claims either by allowing a deferred form of retrospective temporal applicability after the effluxion of a certain period of time from 11 January 2009, or, by providing follow-on competition claims with a new specific regime which includes private international law measures more appropriate to this specific type of competition claim.

Vlas AG then himself opposes the fissure or ‘split’ (4.11), citing predictability and legal certainty. However unlike Mankowski he does not propose that author’s ‘5th solution’ per above, rather, (4.13) he suggests the residual rules should apply seeing as the continuous event started pre Rome II’s ratione temporis scope. This he argues will serve predictability and unity of lex causae, albeit he concedes that unity will be achieved at the national as opposed to the EU level. The general absence of retroactive effect of EU PRivIL rules is cited, justifiably IMO, in support. (4.14) he argues against referral to the CJEU, not because the issue is acte clair, rather because in his view under the Dutch residual rules, too, claimants may make choice of law for the lex fori, just as they can under A6(3) RII. In other words he does not think there is an interest in requesting the view from the CJEU. The AG then further discusses the exercise by claimants under A6(3) Rome II (and the residual Dutch rules), opining that it need not be the claimant whose interests have been affected in various countries, just as long as markets have been affected in various countries. He also sees no reason (and I agree; the AG uses ia linguistic comparison) that this should be any different where the claims have been acquired by litigation vehicles. In the air cargo cartel SCC and Equilib cases, which are an application for annulment, Rome II does not feature ratione temporis however in accordance with Dutch authority, A6 Rome II is used pro inspiratio. Here the determination of ‘markets affected’ is an issue. With reference to the travaux and a wide variety of scholarship, the AG suggests ‘the law of the state on whose market the victim was affected by the anti-competitive practice’ ought to be the lex causae, leading to Mozaik of course, with then the subsequent discussion of A6(3)b. In both cases, the AG proposes that the judgment appealed be annulled on the issue of validity of assignment.

Others no doubt will have more analysis. These are highly relevant opinions.

Geert.

EU Private International Law, 4th ed. 2024, 4.53 ff.

https://x.com/GAVClaw/status/1793671819590766990

 

 

A bit of a late reblog but for archival etc purposes see my post with Elijah Granet on ECtHR Executief van de Moslims van België v Belgium , re unstunned slaughter, freedom of religious expression and animal welfare over at the Oxford Human Rights Blog here in four languages.

The CJEU held succinctly yesterday and without AG Opinion in Case C-222/23 Toplofikatsia Sofi. The Bulgarian rule according to which all Bulgarian nationals have a permanent domicile in Bulgaria even if they move to a different Member State, undermines the effet utile of Brussels Ia despite that Regulation leaving the determination of domicile of natural persons to the Member States: [60]:

in so far as national legislation automatically links [the concept of domicile] to a permanent, mandatory and sometimes fictitious address registered for any national of the Member State concerned, such legislation undermines the effectiveness of Regulation No 1215/2012, since it amounts to replacing the domicile criterion, on which the rules of jurisdiction laid down by that regulation are based, with the criterion of nationality.

Article 21 TFEU (non-discrimination and citisenship) need not be separately addressed in light of the BIa finding.

Orders for payment against a debtor suspected of being domiciled elsewhere in EU yet also domiciled in Bulgaria according to the formal presumption, may of course (and only) be issued by a Bulgarian court on the basis of A7(1) or indeed any other jurisdictional gateway other than A4,  5 and 6 BIa.

Geert.

 

Touristic Aviation Services
Transport
Droits des passagers aériens : le manque de personnel aéroportuaire pour le chargement des bagages qui a causé un retard important du vol peut constituer une « circonstance extraordinaire »

Hocinx
Libre circulation des personnes
Égalité de traitement : le travailleur frontalier doit bénéficier des mêmes avantages sociaux que les travailleurs résidents

Asociaţia "Forumul Judecătorilor din România" (Associations de magistrats)
Principes du droit communautaire
État de droit : le droit de l’Union n’impose pas de conférer aux associations professionnelles de magistrats le droit de contester des décisions liées à la nomination des procureurs

Ryanair / Commission
Aide d'État
Le Tribunal annule la décision de la Commission autorisant une aide à la restructuration en faveur de la compagnie aérienne charter Condor

Izuzquiza e.a. / Parlement
Droit institutionnel
Transparence : le Parlement européen doit donner accès, dans l'intérêt du contrôle public, à des informations relatives à un député européen condamné en justice

Mirin
Citoyenneté européenne
Selon l’avocat général Richard de la Tour, le refus d’un État membre de reconnaître les changements de prénom et de genre acquis dans un autre État membre est contraire aux droits des citoyens de l’Union

NADA e.a.
Principes du droit communautaire
La Commission d’arbitrage autrichienne compétente en matière de lutte contre le dopage n’est pas habilitée à soumettre des questions à la Cour de justice

A quick flag of the letter before action in Ali Hussein Julood v BP, a claim relating to gas flaring in Iraqi oil fields. BP is likely to contest jurisdiction under forum non conveniens (a reminder that such defence would be impossible under Lugano and very narrow under Brussels Ia). Information to date is vague however one imagines applicable law may be argued under Article 7 Rome II (and contested by BP as Maran did in Begum v Maran), giving claimants the choice between lex loci delicti commissi or lex locus damni, with for the former the discussion whether it is BP’s company policy with respect to flaring etc that is the real locus delicti.

Geert.

EU Private International Law, 4th ed. 2023, 4.56 ff.

A7 Rome II applicable law (and likely jurisdictional challenge) claxon
LBA Letter before action issued, flaring overseas https://t.co/SZzdbwHgte

— Geert Van Calster (@GAVClaw) April 23, 2024

I have a great interest in claim formulation as a means to forum shop as both my clients and my students know. Despite the post being way behind my signalling of the case on Twitter /X, I do want briefly to flag X v Horsedeals BV et al ECLI:NL:RBOVE:2023:3987 for it shows the limits to what one can do with creative claim formulation. Claimant claims to be the owner of various shipments of stud sperm and aims to obtain various injunctions for (re)sale etc of the shipments, as well as a block on the enforcement of a French judgment in which it was ordered to provide relevant information. All of this is related to allegations of fraud in the horse market. The judge holds that the claim for negative declaration in tort against a France-domiciled defendant is in reality a claim for ownership of the sperm at issue for which there is no A7(2) gateway in The Netherlands. Similarly the court holds that alleged future damage following the enforcement of a French judgment cannot ground an A7(2) claim to halt that enforcement in light of Title III Brussels Ia.

Geert.

Claim formulation: limits to engineering
Interesting first instance judgment rejecting jurisdiction, holding claim for negative declaration in tort in reality is claim for ownership
No A7(2) BIa gateway

X v Horsedeals BV et al (re https://t.co/RBvfubQLO8)https://t.co/U6nMW5egVs

— Geert Van Calster (@GAVClaw) October 12, 2023

20e anniversaire de l’adhésion de 10 États à l’Union européenne

The CJEU held last week in Joined Cases C‑345/22 and C‑347/22 Maersk A/S v Allianz Seguros y Reaseguros SA and Case C‑346/22 Mapfre España Compañía de Seguros y Reaseguros SA v MACS Maritime Carrier Shipping GmbH & Co.

The case concerns enforceability of choice of court (in the cases at issue: pro a court in England) included in bills of lading against third party holders of the bills. Each case was brought prior to Brexit Implementation day and as a result of the UK-EU Withdrawal Agreement (A127(3)) fully subject to Brussels Ia. Mukkarum Ahmed had earlier signalled Collins AG’s Opinion in which his scholarship was justifiably cited.

Relevant Spanish law is not amongst those national laws which accept with relative ease that choice of court and law has binding effect on third party acquirers of the bill, seeing as it provides:

In Section XI( of the preamble to Ley 14/2014 de Navegación Marítima (Shipping Law 14/2014) of 24 July 2014 (BOE No 180 of 25 July 2014, p. 59193; ‘the LNM’) it states:

‘… [Chapter I of Title IX] contains the special rules of jurisdiction and competence and, proceeding on the basis of the preferential application in this matter of the rules in international agreements and the law of the European Union, seeks to prevent the abuses identified, by declaring void clauses which provide for submission to a foreign jurisdiction or to arbitration abroad, contained in contracts for the use of a ship or in ancillary shipping contracts, if those clauses have not been individually and separately negotiated. …’

 Under Article 251 of the LNM, headed ‘Effectiveness of transfer’:

‘Delivery of a bill of lading shall have the same effects as delivery of the goods represented by the bill, without prejudice to the criminal and civil actions open to a person who has been unlawfully dispossessed of those goods. The acquirer of the bill of lading shall acquire all the transferor’s rights and actions over the goods, with the exception of agreements on jurisdiction and arbitration, which shall require the consent of the acquirer in accordance with Chapter I of Title IX.’

The first paragraph of Article 468 of the LNM, entitled ‘Clauses on jurisdiction and arbitration’, which appears in Chapter I of Title IX of that law, provides:

‘Without prejudice to the provisions of the international agreements applicable in Spain and to the rules of EU law, clauses which provide for submission to a foreign jurisdiction or to arbitration abroad, contained in contracts for the use of a ship or in ancillary shipping contracts, shall be void and deemed not to exist if those clauses have not been individually and separately negotiated.

Relevant authority is of course CJEU C‑387/98 Coreck Maritime) where the Court held that a jurisdiction clause incorporated in a bill of lading may be relied on against a third party to that contract if that clause has been adjudged valid between the carrier and the shipper and provided that, by virtue of the relevant national law, the third party, on acquiring the bill of lading, succeeded to the shipper’s rights and obligations.

CJEU DelayFix as Collins AG put it (45) “appears to adopt the same approach when, citing paragraph 65 of the judgment in CDC Hydrogen Peroxide, which in turn refers to paragraph 30 of the judgment in Coreck, it refers to ‘national substantive law’”.

The CJEU in the cases at issue firstly [48] holds

.. although it is clear from [A25(1) BIa] that the substantive validity of a jurisdiction clause is to be assessed in the light of the law of the Member State of the court or courts designated by that clause, the fact remains that the enforceability of such a clause against a third party to the contract, such as a third-party holder of the bill of lading, is concerned not with the substantive validity of that clause, as the Advocate General observed in points 54 to 56 of his Opinion, but with its effects, the assessment of which necessarily comes after the assessment of its substantive validity, that latter assessment having to be carried out by reference to the relationship between the original parties to the contract.

[50] with reference to Case 71/83 Tilly Russ and C‑543/10 Refcomp (itself borrowing from Correck Maritime, see above), the Court also reminds us

a jurisdiction clause incorporated in a bill of lading may be relied on against a third party to the contract if that clause has been adjudged valid between the shipper and the carrier and provided that, by virtue of the relevant national law, the third party, on acquiring the bill of lading, succeeded to the shipper’s rights and obligations. In such a case, there is no need for the court seised of the matter to ascertain whether that third party agreed to that clause [emphasis added]

In other words in such case the important step of establishing factual consent, ordinarily always required for choice of court under A25, is no longer needed.

Further, [56], does A25 BIa preclude the Spanish legislation at issue “under which a third party to a contract for the carriage of goods concluded between a carrier and a shipper, who acquires the bill of lading evidencing that contract and thereby becomes a third-party holder of that bill of lading, is subrogated to all of the shipper’s rights and obligations, with the exception of those arising under a jurisdiction clause incorporated in the bill of lading, where that clause is enforceable against that third party only if the third party has negotiated it individually and separately”?

Here, the CJEU [58] repeats that if “third-party holders of bills of lading  [are]…subrogated [under the relevant applicable law] to all of the rights and obligations of the shippers concerned…there is no need to ascertain whether each of those third parties actually accepted those clauses.”

[59] The relevant Spanish law in essence has the effect that the acquirer of the bill of lading acquires all of the transferor’s rights and actions over the goods, with the exception of jurisdiction clauses, which under that Spanish law require the actual consent of the acquirer. The result of the Spanish law is that those clauses are to be void and deemed not to exist if they have not been individually and separately negotiated. This, the CJEU holds [60] circumvents A25 as interpreted in Coreck Maritime, Tilly Russ, Refcomp etc. and cannot be so allowed. The national court is instructed as a result of the primacy of EU law to interpret the Spanish law as much as possible in line with the Regulation (reference [63] ex multi to CJEU Bezirkshauptmannschaft Hartberg-Fürstenfeld) and if no such interpretation other than one contra legem is possible, [65] to disapply the national rule seeing as A25 BIa as a provision in a Regulation (cf. a Directive) is directly applicable.

In conclusion:

1.      Article 25(1) [BIa]

must be interpreted as meaning that the enforceability of a jurisdiction clause against the third-party holder of the bill of lading containing that clause is not governed by the law of the Member State of the court or courts designated by that clause. That clause is enforceable against that third party if, on acquiring that bill of lading, it is subrogated to all of the rights and obligations of one of the original parties to the contract, which must be assessed in accordance with national substantive law as established by applying the rules of private international law of the Member State of the court seised of the dispute.

2.      Article 25(1) [BIa]

must be interpreted as precluding national legislation under which a third party to a contract for the carriage of goods concluded between a carrier and a shipper, who acquires the bill of lading evidencing that contract and thereby becomes a third-party holder of that bill of lading, is subrogated to all of the shipper’s rights and obligations, with the exception of those arising under a jurisdiction clause incorporated in the bill of lading, where that clause is enforceable against that third party only if the third party has negotiated it individually and separately.

An important judgment for the transport sector specifically and for the meaning of ‘substantive validity’ in A25 BIa.

Geert.

EU private international law, 4th ed. 2024, 2.373 ff.

CJEU Maersk

‘substantive validity’ in A25(1) BI encompasses defect in consent in choice of court btw the original contracting parties but not its applicability or enforceability against third partieshttps://t.co/o1K6dPDF1z

for context @mukarrumahmed https://t.co/rlD4bOlUVk

— Geert Van Calster (@GAVClaw) April 25, 2024

FIFA
Espace de liberté, sécurité et justice
Avocat général Szpunar : certaines règles de la FIFA en matière de transfert de joueurs peuvent s’avérer contraires au droit de l’Union

M.N. (EncroChat)
Espace de liberté, sécurité et justice
EncroChat : la Cour de justice précise les conditions de la transmission et de l’utilisation de preuves dans les affaires pénales revêtant une dimension transfrontalière

Procura della Repubblica presso il Tribunale di Bolzano
Rapprochement des législations
Vie privée et poursuite d’infractions graves : le juge chargé d'autoriser l'accès à des relevés téléphoniques pour identifier les auteurs d'une infraction, pour la poursuite de laquelle la loi nationale prévoit un tel accès, doit être habilité à refuser ou à restreindre cet accès

La Quadrature du Net e.a. (Données personnelles et lutte contre la contrefaçon)
Rapprochement des législations
Lutte contre les infractions pénales et ingérence dans les droits fondamentaux : une autorité publique nationale chargée de la lutte contre les contrefaçons commises en ligne peut accéder à des données d’identification à partir d’une adresse IP

A further effort in tackling the blog queue. Those with an interest in the application of Rome II to purely economic damage will be interested in Uzdaroji Akcine Bendrove “Palink” et al v CNH Industrial NV et al ECLI:NL:RBAMS:2023:7093 and most probably will have seen my Tweet on the case at the time (January 2024).

The Dutch Supreme Court (the referring court oddly calling claimants “claimanten” in Dutch; my Dutch colleagues will correct me however surely this is a novel Anglicism and one which must be firmly stopped and pronto; what’s wrong with *eisers*?) has been seized with a preliminary reference on the application of Article 6 Rome II.

That Article identifies the applicable law for infringement of competition law and acts restricting free competition and it is a calamitous statutory provision.

Article 6. Unfair competition and acts restricting free competition

1.   The law applicable to a non-contractual obligation arising out of an act of unfair competition shall be the law of the country where competitive relations or the collective interests of consumers are, or are likely to be, affected

2.   Where an act of unfair competition affects exclusively the interests of a specific competitor, Article 4 shall apply

3. | (a) | The law applicable to a non-contractual obligation arising out of a restriction of competition shall be the law of the country where the market is, or is likely to be, affected. | (b) | When the market is, or is likely to be, affected in more than one country, the person seeking compensation for damage who sues in the court of the domicile of the defendant, may instead choose to base his or her claim on the law of the court seised, provided that the market in that Member State is amongst those directly and substantially affected by the restriction of competition out of which the non-contractual obligation on which the claim is based arises; where the claimant sues, in accordance with the applicable rules on jurisdiction, more than one defendant in that court, he or she can only choose to base his or her claim on the law of that court if the restriction of competition on which the claim against each of these defendants relies directly and substantially affects also the market in the Member State of that court.

4.   The law applicable under this Article may not be derogated from by an agreement pursuant to Article 14.

A first question referred relates to the qualification of infringement of competition law, Article 101 TFEU (prohibition of cartels) in particular  as a singular, continuous event or rather a chain of new events: if it is a simple and continuous unlawful conduct it would lead to separate claims for damages at the time the damage is suffered; the alternative is that it results in a single claim for damages per victim, consisting of various damage items.

The conflicts relevance also kicks in ratione temporis viz the singular /continuous qualification: what is the decisive point in time for determining the applicable conflict rule?

Furthermore, the first instance court has referred on A6(3)(a) Rome II. Should the determination of the applicable law be based on the country where the first purchaser of the truck to which the claim relates is established (also in the case of transport services)? Or must this be connected to the place where the truck or transport service was purchased? Or does another criterion apply?

If it is held that competitive conditions have been affected at least throughout the internal market, how can A 6(3) b Rome II be applied (choice of law by claimant for the lex fori: “the person seeking compensation for damage who sues in the court of the domicile of the defendant, may instead choose to base his or her claim on the law of the court seised”)?

With regard to Article 6(3)(b) Rome II, the court asks the Supreme Court whether a choice of law for the lex fori can be made if the following requirements are met: that the market is or is likely to be affected in more than one country; that one of the defendants be brought before the court of his place of residence; that the market in the Member State of that court is directly and significantly affected by the restriction of competition.

Or does the (additional) requirement that the consequences for the victim must have occurred in different countries, including (in this case) the Netherlands, also apply to the application of Article 6(3)(b) of Rome II?

This will be an interesting SC judgment on one of the most dense Rome II Articles. Will the SC at its turn refer to the CJEU?

Geert.

EU Private International Law, 4th ed. 2024, 4.53 ff.

Truck cartel, applicable law
First instance Amsterdam refers to Dutch Supreme Court for clarification of A6 Rome II: applicable law for competition law infringement

UZDAROJI AKCINE BENDROVE "PALINK" et al v CNH INDUSTRIAL N.V., et al https://t.co/ezzYWT1SAC

— Geert Van Calster (@GAVClaw) January 17, 2024

Schrems (Communication de données au grand public)
Principes du droit communautaire
Avocat général Rantos : l’expression publique de son orientation sexuelle par l’utilisateur d’un réseau social rend cette donnée « manifestement publique », sans pour autant autoriser son traitement à des fins de publicité personnalisée