Flux européens

Hamoudi / Frontex
Droit institutionnel
Action en dommages et intérêts contre Frontex : l’avocat général Norkus analyse la répartition de la charge de la preuve en ce qui concerne l’existence d’un préjudice dans les affaires d’expulsions collectives

État belge (Preuve du lien de dépendance)
Citoyenneté européenne
Un ressortissant d’un pays tiers, parent d’un citoyen de l’Union, bénéficie d’un droit de séjour dérivé de plus de trois mois dans l’État membre d’accueil s’il apporte la preuve, d’une part, qu’il était à la charge de ce citoyen dans son pays d’origine à la date à laquelle il a quitté ce dernier et, d’autre part, qu’il est à la charge dudit citoyen à la date d’introduction de sa demande de carte de séjour, lorsque plusieurs années se sont écoulées entre ces deux dates

Sangas
Espace de liberté, sécurité et justice
L’État membre où réside une personne recherchée ne peut refuser l’exécution d’un mandat d’arrêt européen visant à assurer la présence de cette personne lors de la poursuite d’une procédure pénale

If you do use the blog for research or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.

Advocate-General Kokott opined last week in Joined Cases C-672/23 and C-673/23 Electricity & Water Authority of Government of Bahrain ea v Prismiian ea .

After her Opinion in Athenian Brewery, where the CJEU itself was less claimant friendly than the AG had opined,  it is the second Kokott AG Opinion on the use of anchor defendant mechanism in follow-on antitrust damages claims in quick succession.

Case C‑672/23 concerns the determination of the joint and several liability of the defendants for damage claimed as arising from an infringement of the prohibition on cartels under EU law in the form of a cartel in relation to underground and submarine cables and related products, works and services.  The claim in the main proceedings is directed not only against the companies mentioned in the relevant Commission Decision but also against other companies that fall into three groups of undertakings. These have at their centre Prysmian Cavi e Sistemi Srl, ABB AB and Nexans France SAS. Of all the defendants, only Draka Holding BV, which is a subsidiary of Prysmian Cavi e Sistemi and itself holds all of the shares in the capital of Prysmian Netherlands BV, is established in Amsterdam, Netherlands. All of the other defendant companies (collectively ‘Draka and others’) each have their registered office in other locations within and outside the Netherlands. Claimants in the main proceedings in this case, the Electricity & Water Authority of the Government of Bahrain and others (collectively ‘EWGB and others’), operate high-voltage networks in the Gulf States. Damage arguably took place outside the EEA.

Case C‑673/23 likewise concerns the determination of the joint and several liability of the defendants in the main proceedings at first instance for damage which is alleged to have arisen as a result of two infringements of the prohibition of cartels under EU law, in this case not established by the European Commission, rather by the Italian national competition authority. The claim in the main proceedings at first instance was directed not only against the companies mentioned in that decision but also against other companies that fall into two groups of undertakings. These have at their centre, on the one hand, Smurfit Kappa Italia SpA, and, on the other hand, Toscana Ondulati SpA. Of those defendants, only Smurfit International BV is established in Amsterdam, Netherlands. All of the other companies (collectively ‘Smurfit and others’) each have their registered office in other locations within and outside the Netherlands.

The questions referred are very detailed indeed (see (17) of the Opinion). They essentially request from the CJEU a roadmap to determine the justifiable use of the anchor mechanism in cases like these. Particularly after Athenian Brewery, national courts arguably have enough material to make that assessment themselves, however the courts at Amsterdam had of course referred these cases prior to Athenian Brewery having been held.

The AG first of all and succinctly recalls

• the principles of an ‘undertaking’ in EU antitrust law [(30):

“in order for it to be found that the parent company and the subsidiary company form an economic unit, the claimant must not only establish the economic, organisational and legal links between these companies, but also prove that there is a specific link between the economic activity of that subsidiary company and the subject matter of the infringement by the parent company”

• and the core application of A8(1) Brussels Ia in the antitrust context (32): (A8(1)’s condition of close relatedness is

“fulfilled where several undertakings that participated in an infringement of EU competition rules, established by a decision of the Commission, are the subject of claims based on their participation in that infringement, despite the fact that they participated in that infringement in different places and at different times” (reference to CJEU CDC); and

” The same is also true of claims based on a company’s participation in an infringement of the EU competition rules which are directed against that company and against its parent company and in which it is alleged that those companies together form one and the same undertaking” (reference to CJEU Athenian Brewery).

The AG then entertains the referring court’s question on whether the prospect of success of the claim against the anchor defendant must be taken into account. ‘Prospect of success’ is a better translation than the translation elsewhere in the Opinion of the questions referred, where the Dutch term ‘toewijsbaarheid’ is translated as ‘admissibility’. The referring court clearly seeks guidance on the relevance of the merits of the claim.

The AG concludes on this section

“account is to be taken of the prospects of success of the claim against the anchor defendant, but only as an indication that the claimant has not artificially fulfilled the conditions for that provision’s applicability, which may be true in the case of a manifestly unfounded claim.”

‘Prospect of success’ must be an echo of common law CPR (a ‘real issue to be tried’), although we do not quite know: the AG, as is her MO, refers to no scholarship in her Opinion.

On this point I do not think the authorities support the conclusions which the AG draws from it.  She writes (37)

“Article 8(1) of the Brussels I bis Regulation must not be abused by bringing a claim against several defendants for the sole purpose of removing one or more of them from the jurisdiction of the courts of the State in which that defendant or those defendants is or are domiciled. That would be the case if there were firm evidence to support the conclusion that the claimant artificially fulfilled, or prolonged the fulfilment of, the conditions for that provision’s applicability.” (references omitted)

References were to CJEU CDC, and what the AG writes (37) is correct.

However the AG then jumps to the claim being ‘manifestly unfounded’: (38)

“For that to be the case, however, it is not sufficient that the claim against the anchor defendant should (possibly) appear to be unfounded. Rather, the claim must be manifestly unfounded or contrived or be devoid of any real interest to the claimant at the time when it is brought.”

In the original German, the Opinion uses ‘unbegründet’, which clearly refers to substantial merit of the case, not procedural or other inadmissability (and indeed this is also how the referring court has intended its question).

In support of her position in (38) the AG refers (other than to her Opinion in Athenian Brewery and to Mengozzi AG in Freeport) to CJEU Reisch Montage para [33]. This CJEU para does not however talk about the claim being unfounded, manifest or not. Rather it is summary of the judgment, right before its operative part and it addresses procedural inadmissability (due to a pending bankruptcy proceeding). In Reisch Montage the CJEU does not address meritorious prospect of success at all.

Whether the likelihood of success of an action against a party before the courts of the State where it is domiciled (some kind of merits review, therefore) is relevant in the determination of whether there is a risk of irreconcilable judgments for the purposes of A8(1), was raised in Freeport but not answered by the CJEU, for such answer was eventually not necessary for the preliminary reference at issue.

The issue was discussed in England, pre Brexit. In the first instance judgment in Sabbagh v Khoury, Carr J’s extensive merits review hinged on the CJEU instruction ‘to take account of all the necessary factors in the case-file’ per CJEU Freeport at [41]. The Court of Appeal on majority confirmed the need for a rather extensive merits review.

I do not think this is what A8(1) either requires or indeed sanctions, and I agree with Lady Justice Gloster, who dissented in the Sabbagh appeal, [178]:

‘the operation of a merits test within Article [8](1) does give rise to risk of irreconcilable judgments, which can be demonstrated by reference to the present facts’,

and [179]

“the overwhelming tenor of the CJEU authorities is to emphasise the fundamental aim of eliminating, rather than simply reducing, a risk of irreconcilable judgments. This aim is achieved if Article [8](1) does not incorporate a merits test and is undermined if it does do so.”

Article 8(1)’s ‘so closely connected’ test clearly requires some appreciation of the facts and the legal arguments, as well as a certain amount of taking into account the defendant’s arguments, however only with a view to assessing relatedness with a view to avoiding irreconcilable judgments. This in my view does not amount to a merits test, whether a wide or a narrow (‘manifestly unfounded’) one and this remains an important difference with the common law ‘real issue to be tried’ requirement.

(40) ff the AG then zooms in on some issues related to the prospect of success (in my opinion the CJEU will not follow on prospect of success and, practising judicial economy, will not entertain these questions).

As she notes, these questions are only raised viz the exercise of jurisdiction, and they are (43) “a complex legal question calling for in-depth examination” – a question which I suspect may be referred again if and when the Dutch courts do exercise jurisdiction. This includes [(44) ff) how attributability of damage to an adverse effect on competition in the internal market, must be interpreted where damage arguably occurred outside of the EEA, and the general issue of territorial scope of A101 TFEU. (In my view the answer may be much more straightforward perhaps than seemingly suggested in the submissions, by focusing on the claims essentially being in compensation for damage following breach of statutory duty). This section also discusses substantive issues of presumption of control in competition law.

(68) ff then returns to the issues of jurisdiction, addressing ia the topic of groups of undertakings, taking into account that in one of the cases it is the  downstream liability of a subsidiary company for an infringement committed by its parent company that is at stake. Intense reference here of course to CJEU Athenian Brewery.

(79) ff addresses the role of the foreseeability of the co-defendant’s being sued in the jurisdiction of the anchor defendant.

I wholly agree with the AG’s view (81) that “foreseeability is not.. an independent criterion that is examined alongside the other elements defining the fulfilment of the provision at issue.” And, (82)

there is no requirement under Article 8(1) of the Brussels I bis Regulation for the co-defendant him or herself to have specifically foreseen that he or she would be sued in the jurisdiction of the anchor defendant. Rather, abstract foreseeability, in the form of the ability of an informed and reasonable defendant to foresee before which courts he or she might be sued outside his or her State of domicile, is sufficient.

(83) a ‘close connection’ with the defendant, such as here through the group undertaking issue, is particularly relevant in this respect.

I have seen many instances recently where opposing counsel banks on lack of predictability to propose rejecting jurisdiction. I would welcome a finding by the CJEU that brings that interpretative rule back to its true nature.

(87) ff then addresses territorial jurisdiction under A8(1). Statutory interpretation as the AG argues, points to a strong yes (reference ia to FTI Touristik) as does linguistic comparison and the report Jenard, despite the CJEU not having yet ruled on the issue viz A8(1) specifically. If there are two anchor defendants in the same Member State, and subject to the effectiveness of EU jurisdictional law not being impaired, national CPR ought to be allowed to join the case against both, but only I assume in one of the courts where the conditions of A8(1) are fulfilled (see (97) “a court which considers itself to lack jurisdiction may take up the option to make a reference to another court available under its national procedural law, provided that the effective enforcement of the Brussels I bis Regulation is not restricted as a result”).

All in all a very relevant Opinion, CJEU judgment is one to watch!

Geert.

EU Private International Law, 4th ed. 2024, 2.516.

https://bsky.app/profile/gavclaw.bsky.social/post/3lm7gymxlkk24

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Parquet européen (Contrôle juridictionnel des actes de procédure)
Espace de liberté, sécurité et justice
Les actes de procédure du Parquet européen susceptibles d’affecter la situation juridique des personnes les contestant doivent pouvoir faire l’objet d’un contrôle juridictionnel

If you do use the blog for research or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.] SD Rebel v Elise Tankschiffahrt [2025] EWHC 376 (Admlty) is a classic case to consider the impact of anti-suit injunctions issued post Brexit by the English courts, upon ongoing proceedings in a court in the EU. Defendant did not enter an appearance, having withdrawn legal representation in light of the ongoing Dutch proceedings. The history of the case is summarised [3]: On 14 November 2023 salvage services were provided by the VB REBEL to the STELA at Scheurhaven, which is part of the Port of Rotterdam complex in the Netherlands. At the conclusion of the services, the Master of the STELA signed a “Certificate of Safe Delivery” which stipulated that any dispute arising out of the provision of salvage services would “be settled in London, in accordance with English law”. Notwithstanding that stipulation, on 24 January 2024, Elise Tankschiffahrt KG as owner of the STELA commenced proceedings in the Rotterdam District Court seeking a declaration that the services provided did not amount to salvage and, in the alternative, for the Dutch Court to determine the salvage award. To commence proceedings in Rotterdam was an apparent breach of the jurisdiction agreement in the Certificate of Safe Delivery. The claimants therefore issued these proceedings in England and, on 20 February 2024, applied for an anti-suit injunction. On 21 March 2024, Andrew Baker J granted the application and made an anti-suit injunction against Elise Tankschiffahrt KG. Because neither the charterer of the STELA, Beresina UG, nor the operator of the VB Rebel, Boluda Towage Rotterdam BV, were parties to the jurisdiction agreement, he set aside service of the Claim Form in respect of the claims made by Boluda and in respect of the claims made against Beresina UG. He gave a fully reasoned judgment, reported under the neutral citation number [2024] EWHC 1329 (Admlty). [4]

The remaining defendant has defied the anti-suit injunction. It has continued its claim in the Netherlands. On 23 October 2024, the Rotterdam District Court gave an interim judgment in which it declared its competence to adjudicate upon the claim. I have not been supplied with the judgment itself. But in a witness statement of 4 February 2025 from Mr John Strange of Penningtons Manches Cooper, the claimants’ solicitors, I have been informed that the reasoning was that the jurisdiction agreement was not enforceable on the ground that it was “too vague as it specified the jurisdiction as ‘London’ rather than the English courts”.

Relevant Dutch judgment is Elise Tankshiffahrt AG and Beresina UG v SD Rebel BV and Boluda Towage Rotterdam BV ECLI:NL:RBROT:2024:10435. In that judgment, the Rotterdam court held it has jurisdiction on the basis of Article 4 Brussels Ia despite aforementioned clause in the certificate of safe delivery: “Any dispute arising out of the services performed by the tug, will be settled in London, in accordance with English law.” The Rotterdam court held that this clause is neither valid choice of court in accordance with A8(2) of the Dutch CPR, nor a valid arbitration clause in accordance with A1074 of the Dutch CPR. [4.6] it argued that for both, the clause needs to be ‘sufficiently clear and specific’ and that [4.5] the clause at issue simply refers to a place, not a medium: whether in courts in ordinary or indeed arbitration. I am not privy to submissions in the case and I do not know how extensively the issue was argued. Of note is all lack of reference to either the Hague Choice of Court Convention, Brussels Ia (with A25 arguably not covering choice of court away from the EU) or the 1958 New York Convention. [4.7] The Dutch court holds that the requirement of clarity and specificity is a procedural requirement covered by Dutch CPR as the lex fori, and not a substantive requirement in which English law as the putative lex causae can have a say (the court oddly refers to A3 and 10 Rome I, despite A1(2)e excluding choice of court and arbitration agreement from its scope of application). The court also [4.9] rejects a lis pendens stay on the basis of Dutch residual rules, and, summarily, an A33 Brussels Ia stay, with reference to the English claim form having been issued after the Dutch courts had been seized. At the time of posting the Dutch finding on the merits had not yet been published. Back then to the English judgment: [53] Davison AR like his Dutch colleague seems to have overlooked A1 Rome I’s exclusion of choice of court and applies English law as the putative law to the (alleged) choice of court agreement. [54] he holds Masters of vessels must, in the ordinary course, sign many documents of a commercial nature such as bills of lading, statements of fact, certificates of compliance etc. Mr Soukup would be no exception. The working languages of VTS Rotterdam and VTS Antwerp are English and Dutch. I find it hard to accept (especially without hearing from him and having his evidence tested in cross-examination) that Mr Soukup did not, in fact, understand what he was signing. But if that was the case, he should have made a proper enquiry, not a casual one. And having failed to do so, he and his principal are bound by the content of the document he signed. [55] deals with the alleged lack of certainty in the clause The document is clear (as Andrew Baker J has already found [this is in 2024] EWHC 1329 (Admlty): the interim ASI, GAVC]). It provides for English law and jurisdiction in London. On any reasonable interpretation that means the courts in London, including this court. A final anti-suit injunction is made, as is an award for the salvage services. Clearly the judgment will clash with the eventual Dutch judgment and how that in turn will be resolved, will be one to watch. Geert. https://bsky.app/profile/gavclaw.bsky.social/post/3ljz5hc2xss2j https://x.com/GAVClaw/status/1899016175897510296

La finale du concours « European Law Moot Court » aura lieu demain à la Cour de justice de l'Union européenne à Luxembourg

Wojewoda Mazowiecki
Citoyenneté européenne
Avocat général Richard de la Tour : le droit de l’Union impose à un État membre de reconnaître le mariage entre personnes de même sexe conclu dans un autre État membre et non la transcription de l’acte de mariage dans un registre d’état civil

Commission / Hongrie (Droit de fournir des services de médias dans une radiofréquence)
Rapprochement des législations
Selon l’avocat général Rantos, la Hongrie a violé le droit de l’Union en refusant le renouvellement du contrat de Klubrádió portant sur l’utilisation de la fréquence 92,9 MHz et en l’excluant de l’appel d’offres relatif à ladite fréquence

Alchaster II
Mandats d’arrêt émis par le Royaume-Uni : un durcissement des conditions de libération conditionnelle ne s’oppose pas, en principe, à la remise de la personne recherchée

[If you do use the blog for research or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.]

In Commercial Bank of Dubai v Al Sari [2025] EWHC 400 (Comm) Foxton J discusses at length the identification of the lex causae in a claim that certain of the defendants maliciously prosecuted two sets of DIFC Proceedings.

The losses claimed are legal fees in respect of various proceedings as well as losses alleged to have been suffered from a delay in recovering certain assets.

Claimants contend that the effect of A4(1) Rome II is that the claims for malicious prosecution of relevant DIFC Proceedings are governed by UAE law, or alternatively involve a series of claims, governed, inter alia, by UAE and English law, and that the claims for malicious prosecution of another set of DIFC Proceedings are likewise governed by English law and/or UAE law. In the alternative, by way of a new argument, they contend that UAE law applies as between some parties by virtue of A4(2) Rome II.

It is common ground that the law of the DIFC does not recognise a tort of malicious prosecution of civil claims.

[14] the judge refers to the need consistently to apply concepts in Rome I/II with the same concepts in  Lugano Convention, Brussels Ia although he also, and much justifiably (as I have repeatedly stated) urges caution in doing so for “the cases disclose consideration in the former context of issues which do not seem to be directly germane to the latter.”

[15] Claimants refers to many authorities

“in which the claimant contended it had made what proved to be a worthless, or at least insufficiently valuable, investment in reliance on negligent advice or inaccurate statements. The obvious tension in these cases is whether the place of damage is where the “defective” transaction is irreversibly entered into, the place from which funds are advanced to make it, or where the flaws in the investment subsequently manifest themselves or crystallise (for example through on-sale of the investment at a reduced value).”

The authorities referred to are Kwok Ho Wan v UBS AG [2022] EWHC 245 (Comm), which in turn cited CJEU Kronhofer, CJEU Kolassa, CJEU Universal Music, CJEU Löber v Barclays Bank Plc, CJEU Vereniging van Effectenbezitters v BP. Cockerill J in Kwok suggested that the overall thrust of the CJEU jurisprudence favoured the place of the manifestation of damage, rather than the place of the transaction which led to the damage, as the relevant place for jurisdiction purposes – this was confirmed upon appeal [2023] EWCA Civ 222 where at [33], Sir Geoffrey Vos MR emphasised that the CJEU authorities which the Judge had said were “not entirely clear” reflected their particular facts, and should not be construed as a statute ([33]). The Court of Appeal doubted that there was “a rule that is universally applicable to financial loss cases”. 

Clearly therefore the ‘fact pattern’ [21] needs to be taken into account and specific consideration is made of “two cases which were not defective investment cases, but cases in which a legal wrong had caused the defendant to incur various heads of costs. Those might be said to be closer to the fact pattern here.”: MX1 Limited v Farahzad, and W Nagel v Pluczenik.

[31] ff the judge concludes, with reference (like Kockerill J in Kwok) to prof Dickinson, both his Rome II contribution in Dicey (with the use of ‘reversability’), and [35] his chapter in the Gedächtnisschrift for Professor Jonathan Fitchen : 

“The central submission of this chapter is that the concept of ‘damage’ within EU private international law is an active one which fixes upon the way in which the relevant event brings about its (claimed) effects upon the victim by adversely affecting a legally protected interest of that person to which the claim relates. This opens up the possibility of classifying different kinds of legally protected interests with a view to developing autonomous approaches for locating interference with them”.

[36] the judge then also links this to a ‘rights based’ approach to applicable law for torts, and for torts generally:

The assistance to be derived from the nature of the legally protected right as a relevant factor when identifying what constitutes direct and immediate damage and where it is suffered, coheres with wider right-based tort scholarship (e.g. Robert Stevens, Torts and Rights (2007)).

[37] “Approached from this perspective, the tort of malicious prosecution addresses the very specific interest of not being harassed by bad faith litigation before the sovereign court of a particular state.”

The judge continues (and readers might want to read those passages in full) with further underpinning of the argument that the legal costs etc suffered, all are indirect, consequential damage, and concludes [40] “Applying Article 4(1) to this singular tort, I am satisfied that the place of the invasion of the protected legal interest (and, in this case, of the primary or direct loss) is the DIFC.”

[41] ff Discussion of the fall-back A4(2) option leads to an interesting discussion of on-shore UAE law as a territorial unit per A25 Rome II and a conclusion [48] that A4(2) is engaged so far as the parties habitually resident in Sharjah and Dubai are concerned. [51] ff recourse to A4(3) is discussed ia with recourse to Owen v Galgay and I think (but have to say the judgment by this stage is not entirely clear) that the judge holds that A4(3) operates to displace the A4(2)  presumption viz those parties where it was engaged (reference to Marshall v MIB), [60] ultimately making DIFC law the applicable law for all claims.

I wonder whether the ‘rights based’ approach to purely economic loss will get much traction. Prof Dickinson’s ‘reversability’ approach seems by now to be firmly anchored in English law.

Geert.

EU Private International Law, 4th ed. 2024, Chapters 2 and 4.

Extensive discussion under the assimilated Rome II Regulation identifying the applicable law (held: DIFC) for tort of malicious prosecutionPurely economic loss claxonCommercial Bank of Dubai v Al Sari [2025] EWHC 400 (Comm) http://www.bailii.org/ew/cases/EWH…

— Geert Van Calster (@gavclaw.bsky.social) 2025-03-10T09:07:52.373Z

 

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Commission / Italie (Traitement des eaux urbaines résiduaires)
Environnement et consommateurs
Traitement des eaux urbaines résiduaires : la Cour impose des sanctions financières à l’Italie pour n’avoir pas respecté ses obligations en matière de collecte et de traitement pour quatre agglomérations

UBS Group et UBS / Commission (Obligations d’État européennes)
Concurrence

Entente dans le secteur des obligations d'État européennes : le Tribunal confirme pour l’essentiel la décision de la Commission 

UBS Group et UBS / Commission (Obligations d’État européennes)
Concurrence
Entente dans le secteur d'obligations d'État européennes : le Tribunal confirme pour l’essentiel la décision de la Commission

Engagement solennel de deux membres de la Commission européenne

[If you do use the blog for research or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.]

I earlier reviewed the jurisdictional ruling in the claim brought by ia members of the Brasilian Quilombola community against Norsk Hydro related corporations. The pleadings this month on the merits reminded me to follow-up on the case and introduced me to a judgment of last May, which I had missed. Hence apologies for late reporting.

The judgment is of interest for the application ia of Rome II‘s rules on statutes of limitation and the burden of proof viz aspects of that statute of limitation. The court is most succinct on it [5.29]: (my translation)

Statutes of limitation are governed by the law applicable to the claim, in this case Brazilian law. The court will therefore assess the defense of prescription under Brazilian (substantive) law, also with respect to the burden of proof. This concerns a material aspect of the law of evidence that the court considers is subject to the lex causae, Brazilian law. (emphasis added)

The para caught my attention for corporate defendants have been known to make a spiel about the implication of the evidence and procedure carve-out in Rome II and its interplay with both Article 15’s ‘scope of the law applicable’ and Article 22’s specific provision for the burden of proof. I am not privy to how extensively the issue was argued in the case at issue.

Here, the court held [5.31] that Norsk Hydro had the burden of proof to show knowledge of the damage, its cause and those responsible for it with a view to the statute of limitation beginning to run, leading to a discussion on whether the pollution was a continuous or single event. As a result of the discussion, [5.36] only a few events were held to be past the statute of limitation.

The judgment does not address substantive reversal of the burden of proof issues under Brasilian environmental law: that I imagine might have been at issue in this month’s heairings.

Geert.

The Dutch SC has today held that it is minded to refer to the CJEU on a variety of issues relating to Rome II’s applicable law rule for (follow-on damages claims) related to competition law infringement. The case is related to the air cargo cartel referral which I flag here and is a follow-up to the Opinion of the AG at the SC, which I discuss here.

The decision to refer is not definitive yet seeing as the judgment was held on a (intra-Netherlands) preliminary reference. Parties are now given the opportunity to comment on the intention to refer.

The SC first of all refers to the questions it has today already sent up to the CJEU, namely whether continuous infringement leads to one albeit diverse claim as opposed to various albeit related claims. I briefly discuss these here. [4.2.8] clearly a qualification as one claim much facilitates the determination of applicable law and therefore arguably also the enforcement of EU competition law (reference to C-605/21 Heureka v Google).

It then addresses Rome II’s scope ratione temporis and the consequential conflit mobile which I discuss in my earlier post. Unlike its AG (who opined that there is no material difference in outcome hence no need to request an academic opinion, as it were, from Luxembourg), the SC does feel that this question needs to be referred to the CJEU, seeing as it held on yet another question referred to it that the Dutch residual rules do not lead to the outcome suggested by the AG.

Finally, the court intends to ask the CJEU to clarify Article 6(3) a (‘markets affected’ and b (conditions for claimant’s choice of law) Rome II, part of the complex layer of rules on the lex causae for follow-on (and stand alone) claims: in particular, the meaning of ‘markets affected’ and the conditions for choice of law which claimants may exercise.

As I discuss inter alia in this paper, Article 6 frankly is a mess, flying directly in the face of predictability so coveted by EU private international law.

[4.6.6] the SC refers to a perceived need for consistency between Article 6 Rome II and Article 7(2) Brussels Ia (e.g. in Volvo), a need which in my opinion is neither as established nor as obvious as the SC sees it.

This will be a very important case for the application of Rome II Article 6.

Geert.

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

Palink.Dutch SC minded to refer to CJEU on the scope ratione temporis of Rome II (conflit mobile arising from continuous infringement of competition law; follow-on damages)ECLI:NL:HR:2025:414lnkd.in/eXyB3JTABackground here lnkd.in/emyQYWpG

— Geert Van Calster (@gavclaw.bsky.social) 2025-03-21T12:26:03.537Z

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https://x.com/GAVClaw/status/1903054432079647053

 

 

 

I discussed Vlas AG (at the Dutch Supreme Court)’s opinion in the Air Cargo case here. The Dutch Supreme Court today has decided to refer to the CJEU. The specific questions referred, concern the (effet utile of) the EU’s rules on effective enforcement of EU competition law and the qualification of continuous infringement of competition law as leading to one claim per victim, with multiple heads of damages, or rather one claim per infringement, each single handedly qualifying as a separate entitlement for damages.

The difference is relevant to conflict of laws given the ‘conflit mobile’. If the claims are separate, Rome II with its complex rule for competition law damages in Article 6, ratione temporis only applies to some of the claims. I discuss in my previous post how that leads to a complicated patchwork of applicable law.

The actual question referred enquires with the CJEU on whether continuous infringement leads to one albeit diverse claim as opposed to various albeit related claims, but adds ‘with a view to determining applicable law’. It will be interesting to see therefore how intensively the CJEU will engage with the Rome II issues on the specific case, which however is likely to be joined with the other case in which the SC is minded to refer and which I discuss here.

Geert.

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

Lufthansa ea v SCC eaDutch Supreme Court refers to CJEU re qualification of continuous infringement of competition law, follow-on damages claimsWhether one albeit diverse claim as opposed to various albeit related claimsRelevant viz applicable law, Rome II.deeplink.rechtspraak.nl/uitspraak?id…

— Geert Van Calster (@gavclaw.bsky.social) 2025-03-21T11:47:13.510Z

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Statistiques judiciaires 2024 : augmentation importante tant des affaires introduites devant la Cour de justice que des affaires clôturées par l’institution dans son ensemble

In IDBI Bank Ltd v Axcel Sunshine Ltd & Anor [2025] EWHC 442 (Comm) claimant is an Indian bank which, at the relevant times, operated outside India via a branch in the Dubai International Financial Centre – DIFC. Defendants are a company incorporated and registered in the British Virgin Islands, and a company incorporated and registered in India.

Second defendant argues ia that a relevant letter of comfort must not be enforced seeing as its performance would contravene Indian law.

Persey J discussed among others therefore whether an English court should disregard a letter of comfort due to A3(3) or A9(3) of the assimilated Rome I Regulation. These are the Articles which in the case of Article 3(3)  give priority to domestic law in a ‘purely domestic’ contract subject to a third country law:

Where all other elements relevant to the situation at the time of the choice are located in a country other than the country whose law has been chosen, the choice of the parties shall not prejudice the application of provisions of the law of that other country which cannot be derogated from by agreement.

and in the case of Article 9(3):

Effect may be given to the overriding mandatory provisions of the law of the country where the obligations arising out of the contract have to be or have been performed, in so far as those overriding mandatory provisions render the performance of the contract unlawful. In considering whether to give effect to those provisions, regard shall be had to their nature and purpose and to the consequences of their application or non-application.

In the case of Article 3(3), domestic law trumping lex voluntaris is mandatory, while in the case of Article 9(3), the override is optional, at the discretion of the court.

As for Article 3(3), the judge refers in particular to Banco Santander Totta. It was there held that for Art 3(3) to apply, all elements of a claim needed to be within the other country. [105]

In the present case there are elements with connections to the BVI and Dubai, such that Art 3(3) does not apply. Thus, for example, the CFA was entered into by the Bank’s Dubai branch office, the LoC was addressed to the Bank’s Dubai branch office, Axcel was incorporated in the British Virgin Islands, Axcel was required to repay its loan to an account in Dubai, and the facilities under the CFA were used by Siva to repay the debt owed by WinWind (a Finnish company), and thereby to discharge the WinWind Guarantee and Facility (both contracts being governed by English law). The same discharge was used by Siva to obtain the discontinuance of the WinWind Proceedings (before the English court).

([106] the judge doubts very much whether the contended effect of Indian regulation is what defendant purports it to be).

As for A9(3), [108]

I am satisfied that Article 9(3) also does not apply in this case. It is only applicable where the obligations ‘have to be‘ performed in a country where performance would be unlawful. As I have already observed above, performance under clause 3 ought to have taken place in Dubai, not India. Had performance been required to take place in India, the FEMA Regulations are not regarded by India as crucial to safeguarding its public interests. [the judge refers here to expert evidence]

Moreover, obiter [109] even had Article 9(3) applied, the judge would have used his discretion not to grant priority to the Indian rules:

In circumstances where the Indian Courts would enforce the guarantee and/or a judgment of this Court, I am satisfied that there is no basis for giving Siva relief under Art 9(3).

This judgment is a good illustration of what Articles 3(3) and 9 might lead to – although not on the facts of the case.

Geert.

Handbook of EU Private International LAw, 4th ed. 2024, 3.73 ff.

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