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In [2019] EWHC 1095 (Ch) Media Saturn Holding v Toshiba et al, Barling J is concerned with stand-alone damages suits following the European Commission decision in COMP/39437 – TV and Monitor Tubes. None of the Defendants was an addressee of the Decision (some of their parent companies were). The claims are, therefore, “standalone” rather than “follow-on” actions, and the Decision is not binding on the court so far as the claims against the Defendants are concerned, as it would have been had the Defendants been addressees. Nevertheless, Claimants place considerable reliance upon the evidential effect of the Decision.

Claims are strike out and summary judgment application, intertwined with challenges to jurisdiction. These essentially relate to there being no arguable claim against the “anchor” defendants, particularly Toshiba Information Systems UK ltd – TIS.

At 114: Claimants refute the suggestion that the claim has been brought against TIS on a speculative basis in the hope that something may turn up on disclosure and/or simply to provide an anchor defendant for jurisdictional purposes. They point to the Commission’s finding, at Recital 595, that the cartel was implemented in the EEA through sales of cartelised CPTs that had been integrated into the finished products.

The substantive law issue of implementation of the cartel therefore is brought in not just to argue (or refute) summary dismissal, but also to shore (or reject) the jurisdictional claim under Article 8(1) Brussels 1a.

Barling J establishes as common ground (at 90) that ‘as a matter of law an entity can infringe Article 101(1) TFEU and Article 53 EEA if it participates in relevant cartel activity, in the sense of being a party to an agreement or concerted practice which falls within that Article, or if it knowingly implements a cartel to which it may not have been a party in that sense. [counsel for defendants] submitted that there is no arguable case that TIS had the requisite knowledge. However, what is sufficient knowledge for this purpose is not common ground’.

At 300 ff the most recent CJEU authority is discussed: C-724/17 Vantaan kaupunki v Skanska of March 2019.

This leads to a relevant discussion on ‘implementation’ of the cartel, which mutatis mutandis is also relevant to Article 7(2) (locus delicti commissi). At 117-118:

‘TIS [similar arguments are discussed viz other defendants, GAVC] was involved in activities which were important to the operation of the cartel from the Toshiba perspective. These included the manufacture of CTVs using the cartelised product acquired from an associated company which itself was one of the established cartelists, and the onward sale of the transformed product. TIS also had direct commercial dealings with the Claimants relating to bonuses on sales of, inter alia, the transformed products. In my judgment there is an arguable case that those activities amounted to the actus reus of participation in and/or implementation of the cartel. The available material is sufficient to preclude the summary disposal of that issue.’ 

At 139 ff much CJEU and national authority is discussed, viz a variety of the defendants, on the issue of ‘implementation’ for summary dismissal on substantive grounds, a discussion which then at 259 ff is applied to the jurisdiction issue. Reference is made to Brownlie v Four Seasons, to C-103/05 Reisch Montage and of course to C-352/13 CDC. At 273 Barling J distinguishes excellently in my view between predictability as part of the DNA of CJEU Brussels Ia case-law on the one hand, and its treatment (and rejection) as a stand-alone criterion on the other hand:

‘[argument of counsel] is in danger of treating the statement of the CJEU in Reisch Montage as adding a free-standing and distinct criterion of foreseeability to the preconditions of application expressly set out in Article 8(1). If that criterion were to be applied generally, and without reference to those express pre-conditions, there would be a risk of the EU law principle of legal certainty being compromised, instead of respected as Reisch Montage expressly requires. That case states that the special rule in Article 8(1) must be interpreted so as to ensure legal certainty. The special rule’s express precondition is that “the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments…” Therefore, by virtue of Reisch Montage, it is those words that must be interpreted strictly so as to respect legal certainty and thereby ensure foreseeability. In other words, foreseeability is inextricably linked to the closeness of the connection between the two sets of claims, and the criterion will be satisfied if a sufficiently close connection of the kind described in Article 8(1) exists.’

And at 276

‘It is correct that the anchor defendants were not addressees of the Decision and that there were no UK addressees. However, there is no reason why this should be significant. Article 8(1) is capable of applying in a competition claim regardless of whether a Commission infringement decision exists. What matters is that there is a claim that the anchor defendant is guilty of an infringement, and that the case against the non-anchor defendant is sufficiently “closely connected” to that claim within the meaning and for the purposes of Article 8(1). The fact that neither entity is an addressee of a Commission decision (if there is one) and that neither is the subject of any other regulatory process or civil claim relating to the cartel, is, if not immaterial, then of marginal relevance.’

For all anchor defendants the conclusion is that there is an arguable claim that they participated in and/or knowingly implemented the cartel. That strongly militates against the sole purpose of the (two sets of) proceedings being to oust the jurisdiction of the other EU courts. No abuse has occurred.

At 316 a final postscript is added suggesting summarily that the Supreme Court’s Vedanta might have an impact on the ‘abuse’ issue. The judgment concerned inter alia an alleged abuse of EU law in the context of the predecessor provision to Article 8(1). The Court gave consideration to the test for the “sole purpose” issue. At 317: Barling J: ‘I can see no basis on which my conclusions in that regard are affected by this decision.’

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.12.1.

Un enfant meurt tous les cinq jours tué par un parent. Trois inspections ont rendu, l’an dernier, un rapport pour chercher les causes à ses meurtres et émis trente-deux recommandations. Ce rapport, qui vient d’être publié, est dur, tant certaines défaillances des autorités publiques sont éloquentes.

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Thank you to everyone who responded to the call for paper. For those who were not yet ready, the deadline has been extended to May 17.

Cour d'appel de Lyon, chambre sociale A, 6 mars 2019

Pourvoi c/ Cour d'appel de Paris, pôle 2, chambre 7 des appels correctionnels, 2 novembre 2018

Pourvoi c/ Cour d'appel de Paris, chambre de l'instruction, pôle 7, 25 mars 2019

Pourvoi c/ Cour d'appel de Versailles, 12e chambre, 6 novembre 2018

Pourvoi c/ Tribunal d'instance de Colombes, 29 mars 2019

Pourvoi c/ Cour d'appel de Paris, pôle 8, chambre 2, 9 novembre 2018

Pourvoi c/ Cour d'appel de Paris, pôle 7, 2e chambre de l'instruction, 28 février 2019

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This year’s Forum Conveniens Annual Lecture at the University of Edinburgh will be held on Wednesday, 29 May 2019, 5.30 – 7 pm. The speaker is Prof. Marta Pertegás Sender, Maastricht University/ University of Antwerp , on the topic: “A New Judgments Convention in Times of Decaying Multilateralism?”.

The venue is Raeburn Room, Old College, South Bridge, Edinburgh, EH8 9YL.

The event is free but registration is required at https://forumconveniens2019.eventbrite.co.uk

The Mexican Academy of Private International and Comparative Law (AMEDIP) will be holding its XLII Seminar entitled “Towards an International Judicial Law ” at the Escuela Judicial del Estado de México in Toluca (Mexico) from 13 to 15 November 2019.

The seminar will focus on the draft National Code of Civil and Family Procedure and the draft National Law on Private International Law. The latter is an initiative of AMEDIP and has been drafted by professors Dr. Leonel Pereznieto Castro, Dr. Jorge Alberto Silva and Lic. Virginia Aguilar. These are two significant pieces of legislation and the seminar will analise how they would interact if they were passed by the Mexican Congress.

Potential speakers are invited to submit a paper in Spanish, English or Portuguese by 5 July 2019. Papers must comply with the criteria established by AMEDIP and will be evaluated accordingly. Selected speakers will be required to give their presentations preferably in Spanish as there will be no interpretation services but some exceptions may be made by the organisers upon request.

The final programme of the seminar will be made available at the end of October.

There is a registration fee of 300 Mexican pesos (approx. 14 Euros) for students and 800 Mexican pesos (approx. 37 Euros) for the general public. For speakers, the organisers will provide transportation from Mexico City and will cover hotel costs in Toluca.

For more detailed information (incl. convocation), see www.amedip.org.   Any queries, as well as registration requests, may be directed to asistencia@amedip.org.

Many thanks to the staff at Leuven’s law library for writing up six extremely useful Google ‘hacks’ for legal research, which I am pleased to post as a guest blog.

As law librarians of KU Leuven, we help students and professionals with their research on a daily basis. A big part of research is – of course – Google, but for some topics and broad searches, Google will come up with 2 million relevant results, making it hard to see the forest for the trees. These six hacks will help you Google more efficiently and find what you’re looking for quicker.

The most commonly known hack – but also one of the most useful ones to alleviate research frustration – is the ‘search within a site’ hack. By typing site:[the website you want to search in] before or after your keywords, you will only get results from within that particular site. This is especially useful for websites with limited or difficult native search tools.

As for our second hack, we would like to remind you of the wildcard: *. Using the asterisk to find missing words is useful if you would like to look up a quote but do not remember the exact wording. The wildcard has another great use: you can easily include words in two different spellings in your search results by searching, for example, organi*ations.

Another way to look up quotes, this time if you do have the exact wording and are trying to find out the source, is by putting your words between quotation marks. This hack will make sure you only get results that quote the exact phrase you’re searching.

Our fourth Google hack is one to help you filter out particular words. By using the – or hyphen symbol directly in front of said word, you will get results that do not include it. The hyphen symbol is essentially the same as the Boolean “NOT”.

Let’s say you know a specific file is available online, but your basic keyword search does not turn it up? To solve this problem, use our fifth hack: the filtype:[filetype you’re looking for, eg. doc] string in combination with your keywords.

Last but not least, our final hack will make it easier to search for different aspects of law from a specific country. By using the site:[country code] string, you only turn up results with URL’s that have the specific country code you are looking for as a domain extension. This works, for example, to help you search more efficiently for fields of law in the Netherlands vs Belgium.

These six hacks are easy tricks to level up your research skills and make sure you do not spend as much time combing through pages of Google results. There is definitely more where this came from! For specific questions, involving Google or not, the librarians at the KU Leuven Libraries Law are always at your service.

(These hacks were originally posted in the context of a “Google hacks week” on the KU Leuven Libraries Law’s different social media platforms: Twitter, Instagram and Facebook.)

La chambre criminelle rejette le pourvoi dans lequel le requérant invoquait le défaut de motivation de la peine de travail d’intérêt général au regard de sa situation personnelle. En effet, le prononcé d’une telle peine étant subordonné à l’accord préalable de l’intéressé, il implique nécessairement la prise en compte de la gravité des faits, de la personnalité de leur auteur et de la situation personnelle de celui-ci.

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