Flux des sites DIP

Apologies for late reporting. Bot AG opined end of October in C‑210/16 Fansites. [The official name of the case is Unabhängiges Landeszentrum für Datenschutz Schleswig-Holstein v Wirtschaftsakademie Schleswig-Holstein GmbH, in the presence of Facebook Ireland Ltd, Vertreter des Bundesinteresses beim Bundesverwaltungsgericht. It’s obvious why one prefers calling it Fansites].

The Advocate-General summarises (para 2-3) the case as involving ‘proceedings between the Wirtschaftsakademie Schleswig-Holstein GmbH, a company governed by private law and specialising in the field of education (‘the Wirtschaftsakademie’), and the Unabhängiges Landeszentrum für Datenschutz Schleswig-Holstein, a regional data-protection authority in Schleswig-Holstein (‘ULD’) concerning the lawfulness of an order issued by the latter against the Wirtschaftsakademie requiring it to deactivate a ‘fan page’ hosted on the website of Facebook Ireland Ltd. The reason for that order was the alleged infringement of the provisions of German law transposing Directive 95/46. Specifically, visitors to the fan page were not warned that their personal data are collected by the social network Facebook (‘Facebook’) by means of cookies that are placed on the visitor’s hard disk, the purpose of that data collection being to compile viewing statistics for the administrator of the fan page and to enable Facebook to publish targeted advertisements.’

The case ought to clarify the extent of the powers of intervention of supervisory authorities such as ULD with regard to the processing of personal data which involves the participation of several parties (at 13). I had flagged earlier that this case is relevant to the jurisdictional and applicable law issues involving datr cookies.

Whatever the outcome of the case, its precedent value will be limited by the imminent entry into force of the new General Data Protection Regulation – GDPR. The GDPR clearly introduces a ‘one-stop principle’ with only one lead authority (in FB’s case, Ireland’s data protection agency) having the authority to act (see also the AG’s observation of same in para 103).

As prof Lorna Woods in excellent analysis observes, the issue comes down to the interpretation of the phrase from Art. 4(1)(a), ‘in the context of the activities of an establishment’. Dan Svantesson has most superb analysis of Article 4(1)(a) here, anyone interested in the issue will find his insight most helpful.

Now, the Advocate-General leans heavily on Weltimmo however I would suggest its precedent value for the Fanpages case is constrained. Weltimmo concerned a company set up in Slovakia but with no relevant activities at all in that Member State. Indeed as the Court itself observed (at 16-18) , the company was effectively male fide (my words, not the CJEU’s) moving its servers and creating fog as to its exact whereabouts. In other words a case of blatant abuse. There is no suggestion of abuse in Fanpages. Moreover according to the CJEU in C-230/14 Weltimmo the phrase ‘in the context of the activities of an establishment’ cannot be interpreted restrictively (AG’s reference in para 87), yet that CJEU holding in Weltimmo cross-refers to Google Spain in which the crucial issue was whether EU data protection laws apply at all. That is very different in Weltimmo and in Fanpages. That EU authorities have jurisdiction and that EU privacy law applies is not at issue.

There is sufficient argument to find in the Directive, even before its transformation into the GDPR, that in cases such as these the same processing operation ought to be governed by the laws of just one Member State. It would be good for the CJEU to recognise that even before the entry into force of the GDPR.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.8.2.5.

By the Permanent Bureau of the Hague Conference on Private International Law (HCCH)

Register your interest now at www.HCCH125.org, and receive all the latest information about the global conference “HCCH 125 — Ways Forward: Challenges and Opportunities in an Increasingly Connected World”.

This global conference gathers world-leading experts who will discuss the opportunities for, and challenges to, private international law. Through interactive “Davos Style” sessions, participants will not only hear from these experts, but can also participate actively in each session.

The key note speaker Prof Jürgen Basedow, emeritus at the Max Planck Institute for Comparative and International Private Law, will be joined by a stellar cast of confirmed moderators and speakers, including Sir Lawrence Collins, Lord Collins of Mapesbury; Professor Richard Fentiman; Professor Linda Silberman and many other distinguished authorities, hailing from practice, judiciary and government. The up-to-date list of all experts will be available soon on the website.

The event, which will be held in Hong Kong SAR, China, from 18 -20 April 2018, and is organised by the HCCH with the generous support of the Department of Justice of Hong Kong SAR, will give all participants the unique opportunity to hear from world-leading experts and contribute actively to a discussion of the future of private international law and the evolution of the Hague Conference on Private International Law, which celebrates its 125th Anniversary in 2018.

You can also keep up-to-date with the HCCH in its quasquicentennial year by following the Organisation’s dedicated Facebook (https://www.facebook.com/HCCH125/) and LinkedIn (https://www.linkedin.com/showcase/hcch-125/) pages.

I explained the issue in [2017] EWHC 3104 (Pat) Eli Lily v Genentech in my posting on Chugai v UCB. A defendant in a patent infringement case often tries to make the case that the suit is about patent infringement really: for this obliges the court per GAT v Luk to refer (only the) invalidity issue to the court with exclusive jurisdiction under Article 24(4) Brussels I Recast.

Here, Eli Lily seek a declaration of non infringement of a bundle of European patents held by Genentech, a US-incorporated firm.

Birss J in the case summarises all relevant precedent, including Chugai, to reach the conclusion that the suit can stay in the UK.

Of note is his holding on costs. The English courts do not just review whether the case is currently about validity but also what the likelihood is that it will become one on validity. For if it does later on, Birss J suggests ‘this entire exercise will have been something of a charade‘ (at 84). (Which is not quite the case: even if the validity issue needs to be temporarily outsourced to different courts, the infringement issue may later return to the courts of England).

On this point, Eli Lilly refuse to disclose whether they may seek a ruling on the validity of the patents: they would rather wait to see Genentech’s defence. Not an unacceptable position, but one, High Court does warn, which will have an impact on costs. At 87: ‘I am satisfied that these unusual circumstances mean that it would not be fair to pre-empt what each party may decide to do. There are sufficient uncertainties that the right thing to do is wait and see what happens. However in my firm but necessarily provisional view that wait should be at Lilly’s risk as to costs. If Genentech does counterclaim for infringement, and validity of the non-UK patents is put in issue (here or abroad) in response, then it is very likely that Lilly should bear the whole costs of this application even if they win it in its form today.‘

That latter point is interesting. It’s twice now this week that judgments come to my attention where jurisdictional considerations are clothed in costs implications.

Geert.

(Handbook of ) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.6.7.

As part of a research, financed by an Action Grant of the European Commission, on the amendments of the Brussels I-bis Regulation and the functioning in legal practice, questionnaire are available. The research is conducted by the Asser Institute (the Hague), Erasmus School of Law and the Leibniz Institute (Amsterdam). The researchers are extremely grateful if you could fill these out or forward these to others that might be interested.

The survey is available in Dutch, English, French and German.

Former Secretary General of the Hague Conference on Private International Law (HCCH), Hans van Loon, has just published an article on the HCCH and a Chinese translation of his inaugural lecture on the global horizon of private international law delivered at the 2015 Session of the Hague Academy:

– Hans van Loon, “At the Cross-roads of Public and Private International Law – The Hague Conference on Private International Law and Its Work”, in Collected Courses of the Xiamen Academy of International Law, Vol. 11, pp. 1-65, (Chia-Jui Cheng, ed.), Brill/Nijhoff, 2017 (available via Brill).

Contents:

1. Role and Mission of the Hague Conference on Private International Law
2. Origin and Development of the Hague Conference
3. The impact of Contemporary Globalisation
4. Hague Conventions Promoting Global Trade, Investment and Finance
5. Hague Conventions Promoting Administrative and Judicial Cooperation
6. Hague Conventions Promoting Personal Security and Protecting Families in Cross Border Situations
7. Outlook – (Potential) Significance of the Hague Conference and Its work for the Asia-Pacific Region.

– Chinese translation (by Prof. Zhang Meirong and Prof. Wu Yong) of Hans van Loon’s Inaugural Lecture, “The Global Horizon of Private International Law” given at the 2015 Session of the Hague Academy of International Law, Recueil des Cours, Vol. 380, in Chinese Review of International Law 2017, vol. 6, pp. 2-52, vol. 6), for more information see http://www.guojifayanjiu.org/.

Excerpt of table of contents:

Chapter I. The development of private international law against the backdrop of the evolving nation-State

1. Origins and early development of private international law
2. Birth of the Hague Conference on private international law
3. Establishment of the Hague Conference as an international organization – early innovations
4. Globalization – its effects on the nation-State

Chapter II. The impact of globalization on the development of private international law

1. Rising profile, proliferation of sources, new approaches
2. Commerce and trade: party autonomy within limits
3. Families and children: direct transnational institutional co-operation and interaction with human rights

Chapter III. Global challenges for private international law on the horizon

1. People on the move
2. Environment and climate change

Some general conclusions

For a long time, Japan refused to extend application of its antitrust laws to foreign cartels, even those with an impact on the Japanese market. Following a 1990 Study Group Report recommending adoption of the effects doctrine, the Japanese Fair Trade Commission has increasingly applied Japanese antitrust law extraterritorially, as Marek Martyniszyn reports in a helpful recent article. Now the Japanese Supreme Court has upheld a series of judgments from the Tokyo High Court, thereby effectively adopting the effects doctrine. The doctrine appears to go very far: according to the report, the cartel had reached its price-fixing agreement in Southeast Asia, and affected products had been purchased by Southeast Asian units and subcontractors rather than the Japanese companies themselves.
An earlier article, including more detailed comment on the decision by the Tokyo High Court is Tadashi Shiraishi, Customer Location and the International Reach of National Competition Laws, (2016) 59 Japanese Yearbook of International Law, 202-215 (published 2017) (SSRN). The author of the article was involved in the litigation.

By Emma van Gelder and Alexandre Biard, Erasmus University Rotterdam

(PhD and postdoc researchers ERC project Building EU Civil Justice)

On 13 December 2017, the European Commission published a report on the functioning of the Online Dispute Resolution (ODR) Platform for consumer disputes, and the findings of a web-scraping exercise of EU traders’ websites that investigated traders’ compliance with their information obligations vis-à-vis consumers.

In 2013, two complementary and intertwined legislative instruments – the Consumer ADR Directive (Directive 2013/11/EU) and the ODR Regulation (Regulation 524/2013) – were adopted to facilitate the out-of-court resolution of consumer disputes in the EU. Among other things, the Consumer ADR Directive has promoted a comprehensive landscape of high quality ADR bodies operating across the EU, and the ODR Regulation has established an ODR platform that offers consumers and traders a single point of entry for complaints arising out from online sales and services. The ODR platform is operational since 15 February 2016.

Data about claims lodged between 15 February 2016 and 15 February 2017 reveals:

• 1,9 million individuals visited the ODR platform, proving the considerable level of coverage and uptake of the platform, as well as a high level of awareness among consumers and traders;
• Consumers submitted more than 24,000 complaints via the ODR platform. Reasons for complaining included problems with the delivery of goods (21%), non-conformity issues (15%) and defective goods (12%). 1/3 of complaints related to cross-border issues;
• 85 % of cases were automatically closed within 30 days after submission, which is the deadline for consumers and traders to agree on a competent ADR body. A large number of traders ultimately did not follow through using the ODR platform. However, it appears that 40% of consumers were bilaterally contacted by traders to solve their problems outside the scope of the ODR platform. As the European Commission highlights, the ODR platform has thus behavioural effects on traders and ‘consumers’ mere recourse to the ODR platform has a preventive effect on traders that are more inclined to settle the dispute rapidly without taking the complaint to a dispute resolution body through the ODR platform workflow’;
• 9 % of complaints were not closed by the system, but refused by the trader. For 4% of them, parties both pulled backed before they reached an agreement with the ADR entity;2% of complaints were submitted to an ADR body. In half of these cases, the ADR body refused to deal with the case on procedural grounds (e.g. lack of competence or consumer’s failure to contact the trader first). In the end, only 1% of the cases reached an outcome via an ADR entity.

In parallel, the web-scraping exercise of 20,000 traders’ websites was conducted between 1 June and 15 July 2017. It aimed to investigate traders’ compliance with their information obligations, which include in particular the obligation to provide consumers with an easily accessible electronic link to the ODR platform on their websites, and an email address that consumers may use to submit complaint against them on the ODR platform. Key findings of can be summarized as follows:

• Only 28% of controlled websites included a link to the ODR platform. Compliance ultimately depended on traders’ size (e.g., 42% of large traders included a link vs. 14% of small traders), location (e.g., 66% of online traders located in Germany provided a link vs. 1% in Latvia), and sectors (e.g., 54% in the insurances sector vs. 15% of ‘online reservations of offline leisure’);
• 85% of investigated traders provided an email address;
• Accessibility to the ODR link appears still limited: for 82% of websites, the link to the ODR platform was included in the Terms & Conditions, which for consumers might be difficult to retrieve considering the risk of information overload.

The EU Commission now intends to take actions to solve the identified issues. In particular, it will cooperate with national authorities to solve technical issues, and maximize the use of the platform with the view to strengthening its contribution to the development of the Digital Single Market.

By Stephan Walter, Research Fellow at the Research Center for Transnational Commercial Dispute Resolution (TCDR), EBS Law School, Wiesbaden, Germany.

In light of the success of the first German conference for young PIL scholars, held in April 2017 in Bonn (see the recent announcement of the conference volume as well as the conference report), we would like to continue the academic and personal exchange with a second conference. It will take place on 4 and 5 April 2019 at the University of Würzburg (Germany). The key note will be given by Professor Jürgen Basedow (emeritus director at the Max Planck Institute for Comparative and International Private Law).

The conference theme will be

“Private International Law between Tradition and Innovation”
– German title: “IPR zwischen Tradition und Innovation” –

Today, anyone working on questions of private international law finds an area of law that is highly differentiated, shaped by theory, and characterized by a complex network of legal sources. It is up to young scholars in particular to question these structures, mechanisms and methods, which have been consolidated in over a hundred years of academic discourse and legal evolution. New political, social, and technological developments also provide an opportunity to take a fresh look at established approaches and possibly outdated solutions. In short, the relationship between tradition and innovation in private international law requires close scrutiny.

Against this backdrop, we are inviting contributions that address the tension inherent in the conference theme, that question dated rules and methodological approaches, or that engage with new problems and challenges for PIL, such as mass migration, digitization, gender identities or modern forms of family. For this purpose, we understand PIL in a broad sense that includes questions of conflict of laws, international civil procedure, arbitration and uniform law.

Papers that are selected for presentation will be published in a conference volume by Mohr Siebeck. Presentations should take about 30 minutes and ideally be in German. The call for papers will be published in spring 2018.

Questions may be directed to ipr-nachwuchstagung@jura.uni-wuerzburg.de. For further information, please visit https://www.jura.uni-wuerzburg.de/lehrstuehle/rupp/tagungen/ipr_nachwuchstagung/.

In [2017] EWHC 2541 (IPEC) Pablo Star Media v Richard Bowen the issue was one over copyright infringement relating to a photograph of Dylan Thomas. Of interest to this blog is not the copyright issue or the height of damages relating to same – I am not a specialist in that area. (As far as the jurisdictional issues are concerned, there is a slightly muddled reference to the Brussels I Recast and various other Regulations including Regulation 542/2014 which I discussed here).

What did trigger my interest, though, is the ruling on costs.

At 33-34 Hacon J quotes the District Judge’s reasoning for obliging claimant (Pablo Star) to pay part of the defendant’s cost, despite having won the case. In that cost award, the District Judge scolds claimant for having initiated proceedings in Ireland as well as the UK, and for considering (or threatening, as the case may be) litigation in the US. The High Court at 38 and 41 leaves aside the proceedings in Ireland as a factor to consider, and now limits the reasoning for the award on cost to the potential proceedings in the US.

Now, costs determination largely is within the realm of national rules of civil procedure. Sometimes, EU and /or international law has a direct impact on cost determination, such as for instance in the case of Aarhus and environmental litigation; or, importantly for the case at issue, Directive 2004/48 on intellectual property rights enforcement (the enforcement Directive). This Directive provides in Article 14 on legal costs

‘Member States shall ensure that reasonable and proportionate legal costs and other expenses incurred by the successful party shall, as a general rule, be borne by the unsuccessful party, unless equity does not allow this.’

That Directive was applied in CJEU C-57/15 UVP v Telenet, expressly condemning Belgium’s restrictive regime on cost recovery in intellectual property cases. The High Court’s finding on cost may to my mind be at odds with that ruling.

More generally, the District Judge’s reference to claimant’s Irish proceedings contributing to the judge’s finding on cost, without a doubt is an infringement of the effet utile of the EU’s jurisdictional regimes. Claimant has a certain right to sue in Ireland and that possibility must in no way be disciplined.  Hacon J at the High Court, purposely or not, may have insulated himself from criticism at this point, by leaving the Irish proceedings outside the consideration and only referring to the threat of US proceedings as relevant for partially shifting costs to the plaintiff.

Absolute numbers in the case are not high. Yet the principle to my mind deserves right to appeal at the CA and, from there on, potentially to the CJEU.

Geert.

edited by Susanne Lilian Gössl, in Gemeinschaft m. Rafael Harnos, Leonhard Hübner, Malte Kramme, Tobias Lutzi, Michael Florian Müller, Caroline Sophie Rupp, Johannes Ungerer

More information at: https://www.mohr.de/en/book/politik-und-internationales-privatrecht-9783161556920

The first German conference for Young Scholars of Private International Law, which was held at the University of Bonn in spring 2017, provides the topical content for this volume. The articles are dedicated to the various possibilities and aspects of this interaction between private international law and politics as well as to the advantages and disadvantages of this interplay. “Traditional” policy instruments of private international and international procedural law are discussed, such as the public policy exception and international mandatory rules (loi de police). The focus is on topics such as human rights violations, immission and data protection, and international economic sanctions. Furthermore, more “modern” tendencies, such as the use of private international law by the EU and the European Court of Justice, are also discussed.

The content is in German, but abstracts are provided in English here:

“Presumed dead but still kicking” – does this also apply to traditional Private International Law?
Dagmar Coester-Waltjen

The opening address defines the concept of “traditional” private international law. Subsequently, it alludes to different possibilities politics have and had to influence several aspects of this area of law. Even the “classic” conflict of laws approach based on Savigny and others was never free from political and other substantive values, as seen in the discussion about international mandatory law and the use of the public policy exception. Moreover, the paper reviews past actual or presumable “revolutions” of traditional private international law, especially the so-called “conflicts revolution” in the US and, lately, the European Union. The author is critical with the term “revolution”, as many aspects of said “revolutions” should better be regarded as a shy “reform” and further development of aspects already part of the traditional private international law. Finally, the paper concludes with an outlook on present or future challenges, such as questions of globalisation and mobility of enterprises and persons, technical innovations and the delocalisation and diversification of connecting factors.

Politics Behind the “ordre public transnational” (Focus ICC Arbitral Tribunal)
Iina Tornberg

This paper examines transnational public policy as a conflict of laws phenomenon in international commercial arbitration beyond the legal framework of nation-state centered private international law. Taking account of the fact that overriding mandatory rules and public policy rules can be considered as general instruments of private international law to pursue political goals, this paper analyzes the policies according to which international arbitrators accept them as transnational ordre public. The focus is on institutional arbitration of the ICC (International Chamber of Commerce) International Court of Arbitration. ICC cases that involve transnational and/or international public policy are discussed.

Between Unleashed Arbitral Tribunals and European Harmonisation: The Rome I Regulation and Arbitration
Masud Ulfat

According to prevailing legal opinion, the European Union exempts the qualitatively and quantitatively highly significant field of commercial arbitration from its harmonisation efforts. Free from the constraints that the Rome I Regulation prescribes, arbitral tribunals are supposed to be only subject to the will of the parties when determining the applicable law. This finding is surprising given the express goals of the Rome I Regulation, namely the furtherance of legal certainty in the internal market and the enforcement of mandatory rules, in particular mandatory consumer protection laws. In light of these aims, the prevailing opinion’s liberal stance on the applicability of the Rome I Regulation in arbitral proceedings seems at least counterintuitive, which is why the article reassesses whether arbitral tribunals are truly as unbound as prevailing doctrine holds. In doing so, apart from analysing the Rome I Regulation with a view to its genesis and its position within the wider framework of EU law, the article will pay particular attention to the policy considerations underlying the Rome I Regulation.

The Applicable Law in Arbitration Proceedings – A responsio
Reinmar Wolff

Sect. 1051 German Code of Civil Procedure (ZPO) concisely determines the rules under which the arbitral tribunal shall decide on substance. The article discusses two unwritten limits to the law thus defined that are often postulated, namely the Rome I Regulation and transnational public policy. The Rome I Regulation does not apply in arbitral proceedings since it depends on the chosen dispute resolution mechanism if and which law applies. The law explicitly allows for arbitral decisions on the basis of non-state regulations or even ex aequo et bono. It thereby demonstrates that arbitration is not comprehensively bound by law. There are no gaps in protection, and be it only because the arbitral award is subject to a public policy examination before enforcement. Consistent application throughout the Union would be out of reach for the Rome I Regulation in any event if for no other reason than the fact that it is superseded by the European Convention in arbitral proceedings. Similarly, transnational public policy – which is little selective – does not restrict the applicable law in arbitral proceedings, as the implication would otherwise be that the arbitral tribunal is being called upon to defend something like the international trade order by applying transnational public policy. The party agreement, as the only source of the arbitral tribunal’s power, is no good for this purpose. The arbitral tribunal is rather no more required to test the applicable law for public policy violations under sect. 1051 ZPO than the state court has to test its lex fori. Sufficient protection is again accomplished by the subsequent review of the arbitral award for public policy violation on the recognition level. In contrast to current political tendencies, arbitration ultimately requires more courage to be free, including when determining the applicable law.

How Does the ECJ Constitutionalize the European PIL and International Civil Procedure? Tendencies and Consequences
Dominik Düsterhaus

Politics and law naturally coincide in the deliberations of the highest courts, both at national and international levels. Assessing the relationship of politics and private international law in the EU thus requires us to look at how the Court of Justice of the European Union as the supreme interpreter deals with the matter. In doing so, this contribution portrays three complementary avenues of what may be called the judicial constitutionalisation of EU private international law, i.e. the implementation of principles and values of EU integration by means of a purposive interpretation of the unified private international law rules. It is submitted that, in order to avoid uncertainty such an endeavour should be accompanied by an intensified dialogue with national courts via the preliminary ruling procedure.

Proceedings in a Foreign forum derogatum, Damages in a Domestic forum prorogatum – Fair Balancing of Interests or Unjustified Intrusion into Foreign Sovereignty?
Jennifer Antomo

Parties to international commercial contracts often agree on the exclusive jurisdiction of a certain state’s courts. However, such international choice of court agreements are not always respected by the parties. Remedies, such as anti-suit injunctions, do not always protect the party relying on the agreement from the consequences of being sued in a derogated forum. The article examines its possibility to claim damages for the breach of an international choice of court agreement.

Private International Law and Human Rights – Questions of Conflict of Laws Regarding the Liability for “Infringements of Human Rights”
Friederike Pförtner

The main conflict between private international law (PIL) and the enforcement of human rights through civil litigation consists in the existence of the principle of equality of all the jurisdictions in the world on the one hand and the efforts of some states to create their own human rights due diligence rules for domestic corporations on the other hand. Basically, the principle of equality of jurisdictions has to be strictly defended. Otherwise, PIL is in danger of being excessively used or even misused for policy purposes. However, due to the importance of the state’s duty to protect human rights an exception of the principle of equality of jurisdictions might be indicated either by creating a special conflict of laws’ rule or by using mandatory rules or even if there is no other way by referring to the public policy exception. Thus, the standards for liability of a corporation’s home state can be applied in the particular case concerned. Nevertheless, in the highly controversial issue of transnational violations of human rights the means of PIL mentioned above have to be used very carefully and only in extreme cases.

Cross-Border Immissions in the Context of the Revised Hungarian Regulation for Private International Law
Réka Fuglinszky

This paper has a focus on cross-border nuisances from the perspective of the private international law legislation of an EU Member State with external Community borders. The new Hungarian Act XXVIII of 2017 on the Private International Law from 4 April 2017 gives rise to this essay. The article sketches the crucial questions and tendencies regarding jurisdiction (restriction of the exclusive venue of the forum rei sitae); applicable law (unity between injunctions and damage claims) and the problem of the effects of foreign administrative authorization of industrial complexes from the viewpoint of European and Hungarian PIL.

Long Live the Principle of Territoriality? The Significance of Private International Law for the Guarantee of Effective Data Protection
Martina Melcher

According to its Article 3, the new General Data Protection Regulation (GDPR) (EU) 2016/679 applies to the processing of personal data in the context of the activities of an establishment of a controller or a processor in the EU as well as (under certain conditions) to the processing of personal data of data subjects who are in the EU by a controller or a processor not established in the EU. Given that the GDPR contains public and private law, Article 3 must be qualified not only as a rule of public international law, but also as a rule of private international law (PIL). Unfortunately, the PIL nature of Article 3 and its predecessor (Article 4 Data Protection Directive 95/46/EC) is often overlooked, thus (erroneously) limiting the impact of these rules to questions of public law. Besides this relative ignorance, Article 3 GDPR presents further challenges: First, as a special PIL rule it sits uneasily in the context of the general EU PIL Regulations, in particular Rome I and II, and the interaction with these regulations demands further attention. Second, its overly broad scope of application conflicts with the principle of comity. In view of these issues, it might be preferable to incorporate a general (two-sided) PIL rule on data protection into the Rome Regulations. Such a rule could determine the law applicable by reference only to the place where the interests of the data subjects are affected. Concerns regarding potential violations of the EU fundamental right to data protection due to the application of foreign substantive law could be effectively addressed by public policy rules.

Economic Sanctions in Private International Law
Tamás Szabados

Economic sanctions are an instrument of foreign policy. They may, however, affect the legal – first of all contractual – relations between private parties. In such a case, the court or arbitral tribunal seised has to decide whether to give effect to the economic sanction. It is private international law that functions as a ‘filter’ or a ‘valve’ that transmits economic sanctions having a public-law origin to the realm of private law. The uniform application of economic sanctions would be desirable in court proceedings in order to ensure a uniform EU external policy approach and legal certainty for market players. Concerning EU sanctions, uniformity has been created through the application of EU Regulations as part of the law of the forum. Uniformity is, however, missing among the Member States when their courts have to decide whether to give effect to sanctions imposed by third states. When deciding about non-EU sanctions, private law and private international law cannot always exclude foreign-policy arguments.

With the end of the year fast approaching, here is a quick round-up of news from New Zealand:

• The New Zealand Parliament recently passed the Private International Law (Choice of Law in Tort) Act 2017. The Act introduces new torts choice of law rules and abolishes the common law rule of double actionability. The Act is closely modelled on the Private International Law (Miscellaneous Provisions) Act 1995 (UK), with some notable exceptions. A copy of the Act is available here (and see here for its legislative history).
• In Brown v New Zealand Basing Ltd [2017] NZSC 139, the Supreme Court determined whether age discrimination provisions in New Zealand employment legislation applied to Cathay Pacific pilots based in Auckland. The employment contract, expressed to be governed by the law of Hong Kong, provided for a mandatory retirement age of 55. Pursuant to the Employment Relations Ac 2000 (NZ), however, the pilots could not be required to retire until they had reached the age of 65. The pilots brought a personal grievance claim against their employer, a Hong Kong based subsidiary of Cathay Pacific, in reliance on the Act. As many readers will be aware, this is not the first time that the cross-border effect of the airline’s retirement age provisions has been the subject of litigation. In Lawson v Serco Ltd (Crofts) [2006] UKHL 3, [2006] 1 All ER 823, the House of Lords held that the right not to be unfairly dismissed under the Employment Rights Act 1996 (UK) applied to UK-based pilots of Cathay Pacific. But unlike the UK Act, the New Zealand Act does not contain an equivalent to s 204(1), which provides that it is immaterial for the purposes of the Act “whether the law which (apart from this Act) governs any person’s employment is the law of the United Kingdom … or not”. The Court held unanimously that the Act applied to the plaintiffs’ claim. A copy of the judgment is available here.
• The New Zealand Law Commission has called for submissions on its Issues Paper Dividing Relationship Property – Time for Change? (IP41, 16 October 2017). Part L of the paper deals with cross-border matters affecting relationship property. The paper forms part of the Commission’s review of the Property (Relationships) Act 1976.

I was delighted to learn something I had not been aware of in Szpunar AG’s Opinion in C-467/16 Brigitte Schlömp: namely the slightly diverging approach to the notion of ‘court’ in Brussels cq Lugano.

The AG also opines on the question of lis alibi pendens, suggesting (at 48) that since the conciliation procedure before the Behörd constitutes an integral part of proceedings before a(n) (ordinary) court, the moment of seizure of the Schlichtungsbehörde is the determining moment under the lis alibi pendens provisions of Articles 27 and 30 of the Lugano II Convention. [He also refers to [2014] EWHC 2782 (Ch) Lehman Brothers Finance AG v Klaus Tschira Stiftung GmbH & Anor  which followed the same approach].

Is the Swiss ‘Schlichtungsbehörde’ or conciliation authority, intervening in disputes between local councils and relatives with respect to maintenance and social care payments, a ‘court’ under Lugano?

Ms Schlömp, who resides in Switzerland, is the daughter of Ms H.S., who receives supplementary social assistance from the Landratsamt Schwäbisch Hall (administrative authority of the district of Schwäbisch Hall) in Germany because of her care requirements. Under German law (indeed similarly in many a Member State), benefits handed out by social welfare bodies, are claim back from children of recipients, subject to ability to pay. To assert its claim for recovery, the German welfare body lodged an application for conciliation in regard to Ms Schlömp with the conciliation authority (‘Schlichtungsbehörde’), competent under Swiss law. What follows is a series of procedures left, right, even centre. Their exact order is outlined by the AG, they matter less for this post: what is relevant to my own insight, is whether a Schlichtungsbehörde under Swiss law is covered by the term ‘court’ within the scope of Articles 27 and 30 of the Lugano II Convention.

Here comes my moment of surprise: at 58: ‘the concept of ‘court’ in the Lugano II Convention differs from that in Regulations No 44/2001 and No 1215/2012, as that Convention contains an article which has no parallel in the latter two instruments: Article 62 of the Lugano II Convention states that the expression ‘court’ is to include any authorities designated by a State bound by that convention as having jurisdiction in the matters falling within the scope of that convention.’ Like in recent case-law under the Brussels I Recast, bodies which prima facie are outside the judicial system, may be considered ‘courts’. A confirmation of the functional as opposed to the formal classification approach.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.16.1.1.

Thank you Tom Whitton and Helen Kavanagh  for flagging Algeco Scotsman PIK SA [2017] EWHC 2236 (Ch). Algeco has COMI in Luxembourg.  This was clear when the relevant scheme of arrangement (‘SAR’) was being discussed. To manage potential problems at the jurisdictional stage, Hildyard J at 22 lists the precautions the company and the majority of the lenders took:

‘Accepted by the relevant 75 per cent or more, was first, the amendment of the governing law clause in the PIK Loan Agreement to change the governing law from New York law to English law; secondly, the amendment of the jurisdiction clause to submit the parties to the non-exclusive jurisdiction to the courts of England; and thirdly, a waiver of any restrictions under the PIK loan agreement so as to permit the company to take all steps necessary to confirm or establish sufficient connection with England including, if appropriate, to take steps to ensure that its COMI is in England.’

When the unsuspected reader sees ‘COMI’ of course (s)he is forgiven for immediately pondering application of the EU’s Insolvency Regulation – quod certe non: for it is clear (ia as a result of schemes of arrangement not being included in relevant Annex) that SARs fall under company law. Hildyard J’s jurisdictional kick-off at 43 is telling: ‘Dealing first with jurisdiction, the primary question is whether this Luxembourg company, the subject of the scheme, is a qualifying company so to be subject to section 895 of the Companies Act’. Idem at 45.

At 47 the High Court then applies the jurisdictional test viz the Brussels I Recast Regulation arguendo: if it were to apply (which the English Courts have taken no definitive stance on), would an English court have jurisdiction? Yes, it is held: under Article 8 (anchor defendants) and under Article 25 (choice of court).

Yet this in my view is where recourse to SARS in the English courts continues to be exposed: loan agreements and facilities agreements now routinely adopt choice of court and law in favour of English courts and ditto law. Yet where they do not, or did not, the ‘willing’ creditors consent to a change in the agreement in favour of the English courts, with the unwilling creditors left behind. Whether this holds scrutiny under Rome I is far from certain. As for Article 8, its use here may be seen as a form of abuse, disciplined under the Regulation.

Hildyard J considers the case one of ‘good forum shopping’ (at 57-58), with reference to Apcoa which I review here. The concerns above continue in my view to highlight weaknesses in the construction, which so far have not led to any collapse of this restructuring tourism. At 58 the High Court emphasises that there are cases of inappropriate forum shopping in this context (one of that includes haste) yet the role of Rome I in this context has so far played little of a role.

It is noteworthy that in my view (and I so testified in re Apcoa) even a wrong view of the English courts on Rome I’s impact, would not suffice for jurisdictions outside of the UK to refuse to recognise the scheme under Brussels I – all with the huge Brexit caveat evidently.

Geert.

(Handbook of) EU Private International Law, 2nd edition 2016, Chapter 5.

Appreciation of the title of this piece of course depends on how one as an individual likes Bauhaus, or not. A November 2017 European Parliament Study on looted works of art and cultural goods is something of  a treasure trove for public and private international lawyers alike. The study looks at substantive law on the issue in the Member States (not the cup of tea for this blog) but kicks off with good overview of the challenges of sovereign immunity; applicable law (particularly with respect to choice of law; with inspiration being sought in the Belgian Private International Law Act, Article 90 (lex furti as a principle – the place from which the object was removed, but with corrections), and the issue of the application of foreign public international law by the courts.

Parliament is quite active on this issue. In May 2016 it had already published a study with more focus on the specific issue of art looted in times of conflict, and alternatives to court litigation but nevertheless with a short forray into conflict of laws (and reference to one or two interesting national cases).

Together the two studies are a good exercise for the conflicts mind.

Geert.

On 3 and 4 December 2017, the 11th “Luxemburger Expertenforum” on the development of EU law took place at the Court of Justice of the European Union. This forum is a workshop that is organised regularly by the German members of the Court of Justice (including the members of the European Court [formerly of First Instance] and the Advocates General); it is presided by the President of the CJEU, Koen Lenaerts, and attended by non-German members of the Court as well (although the discussions at the meeting are held in German).

This year’s forum was divided into four parts. It started on Sunday evening with a dinner speech by the protestant Bishop of Berlin-Brandenburg, Markus Dröge, who looked back at the 500 year anniversary of the reformation and reflected upon the relationship between the church(es) and the state(s) under domestic and European laws. The latter topic was also the general subject of Monday’s first morning session, which was titled “Constitutional challenges at the workplace”. In this session, which was chaired by Advocate General Juliane Kokott, the tensions between an employee’s right to exercise his or her religious freedom and the employer’s desire for a neutral and harmonious working environment were discussed. Moreover, the speakers looked at the implications of a case pending before the CJEU for the impact of the Anti-Discimination Directives on employees working in hospitals or schools run by churches (C-68/17). The topics were approached from a constitutional perspective by Monika Hermanns, judge at the German Constitutional Court, and Rüdiger Stotz, General Director at the CJEU and a member of the working group on EU law set up by the Conference of European Churches. Inken Gallner, judge at the Federal Labour Court, and Felix Hartmann, professor of labour law at the Free University of Berlin, added both practical and academic views from the perspective of labour law. Matthias Bartke, a social-democratic member of the German parliament, commented both on matters of politics and policy.

The second session was chaired by chamber president Thomas von Danwitz and devoted to a subject dear to readers of our blog: “Mutual trust and mutual recognition – are the structural principles of EU law still valid?”. This question was approached from various angles: Dirk Behrendt, senator of justice of Berlin and a member of the German Green party, gave an overview over Berlin court practice concerning the recognition and enforcement of foreign judgments. Tim Eicke, a British judge at the European Court of Human Rights in Strasbourg, looked at the implications of the European Convention on Human Rights for mutual recognition between the EU member states. Harald Dörig. judge at the Federal Administrative Law Court, analysed the principle of mutual trust (or rather the lack thereof) in the field of migration and asylum law. Yvonne Ott, judge at the German Constitutional Court, and Alexandra Jour-Schröder, director for criminal justice at the European Commission, discussed tensions between European law on arrest warrants and domestic constitutional guarantees. After the short speeches, Jan von Hein, professor at the University of Freiburg, opened the discussion with a survey on the current state of play with regard to European civil procedure.

During lunch, Luxembourg’s Minister of Foreign Affairs, Jean Asselborn, gave a speech on current challenges facing the EU and its member states, in particular with regard to migration politics (you may read the text of his speech here).

The third and final session was chaired by Alfred Dittrich, judge at the European Court, and dealt with the issue of whether and under which conditions national tax exemptions may qualify as prohibited subsidies under the TFEU. The speakers of this panel were Rudolf Mellinghoff, the president of the Federal Tax Court, Johannes Laitenberger, the General Director of the DG Competition, Kirsten Scholl from the German Ministry of Economics, Johanna Hey, professor at the University of Cologne, and Ulrich Soltész, lawyer at Gleiss Lutz in Brussels. Different views on the relationship between EU law on subsidies and domestic laws on taxation gave rise to an open and fruitful discussion.

Thank you Dan Svantesson for sharing preparatory work for a February 2018 conference on access to digital evidence in the cloud. The document, written by a group which comprises academia, relevant companies (including Apple, Google, Facebook and Microsoft) as well as regulators (including the EC and the USDJ), at this stage does not offer solutions. Rather, it sets out principles along which a future framework could be set out, including the concept of data control (not to be confused with data controller) and actual provision of service.

One of the issues to look out for is how a future international approach to access and jurisdiction in criminal matters may differ from courts’ and regulators’ approach in civil jurisdiction (including data protection and privacy).

Geert.

For those able to read Portuguese, two new books have been recently released, as a result of theses defended earlier this year at the Universities of Coimbra and Lisbon.

English abstracts provided by the Authors read as follows (more info, respectively, here and here):

AFONSO PATRÃO, Freedom of Choice in Mortgage and a Reinforcement of International Cooperation

Abstract: This dissertation concerns the implementation of a European mortgage market, identifying obstacles to its accomplishment and offering solutions to overcome them.

Considering statistical data that indicate national compartmentalisation of mortgage markets (as land security rights are essential for internal credit but, internationally, less than 1% of all international credit involves mortgages), we start by justifying the inclusion of international mortgages within the scope of European Treaties, demonstrating that the European Union objectives include the free movement of land security rights.

Next, we identify obstacles to the acceptance, by lenders, of land security rights on immovable property in other Member States. These barriers, potentially contrary to European law, must be correctly understood in order to arrive at accurate solutions. As such, in Part I, we deal with the mandatory submission of land property rights and land registry to lex situs, analysing its purpose; we demonstrate substantial differences in European mortgage and land registry laws; we scrutinise the execution of a mortgage on a plot situated in another Member State; and we highlight the complexity of setting up a mortgage in a foreign country.

In Part II, we assess the proposals which have so far been offered as solutions. In particular, we discuss the feasibility of unifying or harmonising mortgage laws; the introduction of Eurohypothec as an additional optional legal regime; the securitisation of granted mortgage loans; and the establishment of the country of origin principle. The analysis concludes that standing proposals do not adequately solve the issue at hand.

Solutions are offered in Part III of the dissertation. The first suggestion is to recognise party autonomy in mortgages (conferring the right to choose the applicable law to land security rights), in harmony with the movement of dépeçage of private international law on property rights and with the purpose of European integration. We demonstrate that, provided that adequate precautions are taken, there is no reason for the obligatory application of lex situs.

In addition, we advocate strengthening of international cooperation in the field of mortgage constitution — especially between notaries of the country where the contract is concluded and registrars of the Member State where the plot is located.

These recommendations are designed to be introduced in a European Regulation, considering that they would be a factor in dismissing barriers on the free movement of capital.

JOÃO GOMES DE ALMEIDA, Divorce in Private International Law

Abstract: The cross-border movement of people is an increasingly widespread reality, due mainly to technological progress. Within the European Union this phenomenon is also enhanced by the freedom of movement of persons, goods, services and capital. Nowadays, it is no longer unusual to find couples of different nationalities, couples with one or more common nationalities that habitually reside in a State that is not one of the States of their nationalities and even couples, with or without a common nationality, that do not habitually reside in the same State. And it appears that this trend will only grow stronger in the future. In brief, transnational family relationships – family relationships that are connected to more than one sovereign State – are increasingly common.

Of the various kinds of transnational family relationships, the present dissertation focuses on the transnational divorce. Divorce is the dissolution of marriage. As such, it is a significant event in the lives of the spouses, as it extinguishes the marital bond, terminating the family relationship that arose from marriage. Transnational divorce raises specific questions: in which sovereign State must the applicant initiate the divorce proceedings? Which law applies to a transnational divorce? Is it possible for a foreign judgment on transnational divorce to be recognised and produce its effects in the same way as a domestic judgment? These specific questions are answered, respectively, by the rules on jurisdiction, applicable law and recognition of foreign judgments.

These questions, although different, cannot be considered as totally unrelated. They are interconnected. The specific connections between the rules on jurisdiction, on applicable law and on recognition of foreign judgments on divorce justify a joint analysis, so that one does not lose sight of these connections and is able to avoid incoherent solutions. The present dissertation is a study of the issues raised by the Private International Law aspects of divorce law, from the perspective of Portuguese law.

Over the course of the last decades the European legislature has adopted a total of 18 Regulations in the area of private international law (including civil procedure). The resulting substantial degree of legislative unification has been described as the first true Europeanisation of private international law and even as a kind of “European Choice of Law Revolution”. However, until today it is largely unclear whether the far-reaching unification of the “law on the books” has turned private international law into a truly European ”law in action”: To what extent is European private international law actually based on uniform European rules common to all Member States rather than on state treaties or instruments of enhanced cooperation? Is the way academics and practitioners analyse and interpret European private international law really different from previously existing domestic approaches to private international law? Or is the actual application and interpretation of European private international law rather still influenced or even dominated by national legal traditions, leading to a re-fragmentation of a supposedly uniform body of law?

To answer these and related questions Jürgen Basedow (MPI Hamburg), Jan von Hein (University of Freiburg), Eva-Maria Kieninger (University of Würzburg) and Giesela Rühl (University of Jena) kindly invite you to the conference “How European is European Private International Law?”. that will take place on 2 and 3 March 2018 in Berlin. Bringing together academics and practitioners from all over Europe the conference will provide a platform to shed light on the present lack of „Europeanness“of European private international law and to discuss how European private international law can become more truly European in the future.

More information is available on the conference website and on the conference flyer. Please register by 1 February 2018.

The programme reads as follows:

Friday, 2 March 2018

9.00 am    Registration

9.30 am    The Europeanisation of Private International Law

• Prof. Dr. Dr. h.c. Jürgen Basedow, MPI Hamburg (Germany)
• Prof. Dr. Giesela Rühl, University of Jena (Germany)
• Dr. Andreas Stein, Head of Unit, DG Justice and Consumers, European Commission

1st Part: Europeanness of Legal Sources

10.00 am   The relationship between EU and international Private International Law instruments

• Speaker: Prof. Pietro Franzina, Università degli Studi di Ferrara (Italy)
• Commentator: Prof. Dr. Dr. h.c. Jürgen Basedow, MPI Hamburg (Germany)

10.45 am    Discussion

11.15 am     Coffee break

11.45 am     The relationship between EU and Member State Private International Law

• Speaker: Prof. Johan Meeusen, Universiteit Antwerpen (Belgium)
• Commentator: Prof. Dr. Jan von Hein, University of Freiburg (Germany)

12.30 pm    Discussion

1.00 pm      Lunch break

2nd Part: Europeanness of Actual Court Practice

2.00 pm     The application of European Private International Law and the ascertainment of foreign law

• Speaker: Prof. Marta Requejo Isidro, MPI Luxembourg (Luxembourg)
• Commentator Prof. Paul Beaumont, University of Aberdeen (United Kingdom)

2.45 pm     Discussion

3.15 pm      Coffee break

3.45 pm      The application of European Private International Law and the role of national judges

• Speaker: Prof. Agnieszka Frackowiak-Adamska, University Wroclaw (Poland)
• Commentator: Prof. Michael Hellner, Stockholms Universitet (Sweden)

4.30 pm     Discussion

5.00 pm     The application of European Private International Law and the role of national court systems

• Speaker: Prof. Xandra Kramer, Universiteit Rotterdam (Netherlands)
• Commentator: Prof. Pedro de Miguel Asensio, Universidad Complutense de Madrid (Spain)

5.45 pm     Discussion

6.15 pm     End of day 1

7.30 pm     Reception and conference dinner

Saturday, 3 March 2018

3rd Part: Europeanness of Academic Discourse and Legal Education

8.30 am       National styles of academic discourse and their impact on European Private International Law

• Speaker: Prof. Sabine Corneloup, Université de Paris/Sorbonne (France)
• Commentator: Prof. Dário Moura Vicente, Universidade de Lisboa (Portugal)

9.15 am     Discussion

9.45 am     Coffee break

10.15 am    Overriding mandatory laws, public policy and European Private International Law

• Speaker: Prof. Marc-Philippe Weller, University of Heidelberg (Germany)
• Commentator: Prof. Stephanie Francq, Université Catholique de Louvain (Belgium)

11.00 am     Discussion

11.30 am     Legal education and European Private International Law

• Speaker: Prof. Thomas Kadner Graziano, Université de Genève (Switzerland)
• Commentator: Prof. Gilles Cuniberti, Université de Luxembourg (Luxembourg)

12.15 pm     Discussion

12.45 pm     Lunch break

2.00 pm      The future of European Private International Law in theory and practice

• Opening statement: Karen Vandekerckhove, Former Head of Unit, DG Justice and Consumers, European Commission
• Discussants: Prof. Paul Beaumont, Prof. Gilles Cuniberti, Prof. Dr. Eva-Maria Kieninger Prof. Johan Meeusen, Prof. Marta Requejo Isidro

4.00 pm     Concluding remarks

• Prof. Dr. Jan von Hein, University of Freiburg (Germany)

4.15 pm     End of conference

The Hague Academy has long offered three week summer courses in private international law. Beginning in 2019, it will also offer winter courses in January.

This is mainly because universities in the southern hemisphere are teaching during the months of July and August, when the Academy’s courses are taking place, which makes it difficult for their students to come to The Hague during that period. On the other hand, their vacation period during the southern summer will allow these students to come to the Academy in January without conflicting with their academic year. The winter courses were therefore created in the first instance with students from this part of the world in mind.

However, these students are not the only ones for whom the courses are designed. Doctoral students, from whichever part of the world they may come, are not generally required to be present at their university at all times. Therefore, those from the northern hemisphere can also attend these courses every January. In such a case, they will have an additional opportunity to meet distinguished professors from various countries, as well as other doctoral students from other parts of the world, and to benefit from exchanges in the common interest of their doctoral research work. As it does during the summer, the Academy will facilitate these exchanges with the assistance of a teacher who will be put in charge of organising and channelling them.

As for the rest, the organisation of the courses and their publication, seminars, directed studies and diploma will be exactly the same as in the summer. The only difference is that the distinction between a public international law period and a private international law period has been abolished in favour of a single three-week period of “international law”, taking into account the general trends in the development of the subject.

Registrations will open from 3 January 2018.

Further information at
https://www.hagueacademy.nl/programmes/winter-courses/

The program for January 2019 is here.

by Antonella Nolten, Research Fellow at the EBS Law School, Wiesbaden, Germany.

On 22 November 2017 the Academy of European Law (ERA) hosted a conference on the recent developments on the Proposal for a Digital Content Directive in Brussels.

After welcoming remarks by Dr. Angelika Fuchs, Prof. Bénédicte Fauvarque-Cosson, University Paris II – Panthéon-Assas, chaired the first panel on the scope of the Directive. To begin with, Prof. Fauvarque-Cosson reminded the participants of the past developments in European contract law, mentioning the UPICC, the Principles of European Contract Law, and the CESL. The challenges these projects had to face clearly showed that for most member states contract law represented the heart of their legal traditions, and member states were therefore reluctant towards radical changes.

Evelyne Gebhardt, MEP, Co-rapporteur for the IMCO and JURI Committees, explained the position of the IMCO/JURI joined committee after the vote on 21 November 2017. In order to ensure updates for consumers and interoperability, a sensible inclusion of embedded digital content (EDC) was proposed. The scope of the Directive was extended to also include OTTs (Over-the-top content) in order to ensure remedies and conformity rights in this field. The overall objective were a high level of consumer protection and to anticipate rules for digital content on a European scale in order to prevent deviating national legislation.

Jeremy Rollson, Microsoft, praised the work of the Commission and the European Parliament. With regard to platforms, he proposed a modernization of the scope. Since the release of the proposal in 2015 by the commission, the technology had already gone through major changes. As various forms of OTTs existed, it proved hard to find a one size fits all model, however it were necessary to agree on certain principles. Rollson outlined the difficulties businesses were facing, because many different legal instruments had to be considered. He suggested a targeted scope in order to ensure the applicability of the rules.

The question, which rules should apply to embedded digital content, was addressed by Prof. Karin Sein, University of Tartu, Estonian EU Presidency Team. After having explained the advantages and disadvantages of the different approaches, she reported on the council’s opinion to exclude embedded digital content from the scope of the Digital Content Directive. This solution offered the upside that from a consumer’s perspective it was easily understandable, that the rules for goods also applied to smart goods. The overall goal was to achieve a future-proof solution, which was at the same time easily understandable for the average consumer.

In the following discussion Evelyne Gebhardt disagreed with Prof. Sein on the topic of embedded digital content and presented the European Parliament’s opinion to extent the scope of the directive to EDC. The European Parliament preferred the split approach. This approach offered the main advantage that it were not up to the consumer to define where the product’s defect lay, but the supplier had to determine whether the defect touched the digital content or the good itself. Prof. Sein replied that, overall, it was less relevant, where the rules were installed, since this was only a question of technique. Nevertheless, the installation of specific rules remained the main objective. Prof. Staudenmayer, Head of Unit – Contract Law, DG Justice, European Commission, agreed and added the main requirements of the rule were that it needed to be forward-looking and at the same time practical for consumers. Prof. Fauvarque-Cosson highlighted the different scope of the Digital Content Directive in contrast to the CESL, as the scope was limited to B2C-contracts and moreover the territorial scope covered domestic as well as cross-border contracts.

Prof. Karin Sein introduced the audience to the second panel’s focus on conformity criteria, remedies and time limits. Agustín Reyna, BEUC, compared the specifications of the conformity criteria in the Commission’s proposal to the Council’s proposal and the IMCO/JURI report. During the upcoming Trilogues he would expect an agreement on a balance between objective and subjective criteria. He pointed to the possible conflicts between contractual disclaimers (subjective) and consumer expectations (objective). He praised the amendment in Art. 6a (5), which introduced specific rules for updates for digital content or digital services. In his opinion the relation between third party rights and copyright issues needed further clarification.

Staudenmayer added to the discussion on the inclusion of updates that consumers needed to be informed about possible updates as well as a right to terminate. The topic, whether the consumer should be able to keep the old version, was discussed controversially. With regard to the remedies package, Staudenmayer justified the facilitation of the right of termination by stating that most suppliers also preferred a termination of the contract, caused by the fact that they did not want to invest in a bad product and rather develop a new one. On the other hand consumers also profited, as the easier termination gave an incentive to suppliers to develop good products. Regarding the reversal of burden of proof, he reported on the commission’s reason to not imply a time limit, since digital content was not subject to wear and tear. However, as the council and the European Parliament supported a time limit for the burden of proof, a discussion on how long this period will be and when it should start is expected. To conclude, Staudenmayer emphasized the transition our economy is undergoing as it is turning towards a digital economy and reminded the participants of the importance of promoting this change in order to stay competitive on a global scale.

Panel II ended with a Round Table on the topic “Balancing the interest of suppliers and consumers? Watering down full harmonization?”. Fauvarque-Cosson explained the historic development from a preference for minimum to a preference for maximum harmonization and indicated that recently some member states saw the subsidiarity principle endangered. Therefore she suggested more targeted rules as a substitute for full harmonization. Concerning updates, Anna Papenberg, stated that updates could often be very burdensome and consumers needed access to previous versions. Prof. Schulte-Nölke referred to the suggestion of the ELI regarding embedded digital content, which proposed that in this case hard- and software should be subject to remedies and the consumer should be allowed to cherry-pick a system. The Round Table ended with the conclusion that defining a targeted scope could lead to similar results as full harmonization.

After a short lunch break, Stephen Deadman, Facebook Global Deputy Chief Privacy Officer reported on “Data and its role in the digital economy”. He stated that in the future, as part of a new wave of innovation, people would be made aware of the value of their data with the aim of empowering people in their life by using their data. In his opinion data driven innovation and privacy should become mutually enforcing. He underlined that data were not to be classified as a currency, as it were neither finite nor exclusive. In fact, data were superabundant and, by using data, people did not give up data.

Romain Robert, Legal Officer, Policy & Consultation Unit, EDPS, presented the “Interaction of the GDPR, the e-Privacy legislation and the Digital Content Directive”. He stressed the EDPS’s opinion that data were significantly different from money as a counter performance. He referred to the EDPS opinion from April 2017 on the proposed Directive and explained the position, why the term “data as a counter performance” should be avoided. Differences between the Digital Content Directive and the GDPR arose with regard to the definition of personal data. In the EDPS opinion almost all data provided by the consumer would be considered as personal data.

Insight on the topic “Data as a price under contract law?” was provided by Prof. Hans Schulte-Nölke, University of Osnabrück and the Radboud University Nijmegen. In his opinion the Digital Content Directive was not properly coordinated with the GDPR. He pointed to a conflict between contract law and the GDPR, as under data protection law personal data were protected as a fundamental right, whereas in contract law personal data could be considered as a counter-performance for a service. Hence under contract law the contract was the reason for the right to exchange, thus for what had been exchanged under the contract. Therefore the supplier had a right to keep the counter performance after proper performance of the contract. Meanwhile the GDPR granted a right to withdraw consent at any time (Art. 7 (3) GDPR). How can a balance be achieved in a way that, on the one hand, contract law is interpreted in the light of the GDPR and, on the other hand, considering the principle that GDPR supersedes contract law, but contract law purposes are still met. He came to the conclusion the GDPR should not hinder contract law. Further, he raised the question, whether a counter performance could be assumed, in the case that a supplier gathered more information than the amount that were necessary for the performance of the service.

“Provision of data and data processing under the proposed regime” was the subject of the Round Table at the end of the conference day. Jeremy Rollson drew the attention to his opinion that data were neither comparable to oil nor to a currency, but without doubt very valuable. Robert Reyna agreed and further elaborated that the idea of “data as a counter performance” put suppliers in a very strong position, as they could determine, which data to label as a counter performance and which to label a necessity for the contract. A solution to balance this power of determination could be a presumption in consumer law. Anna Papenberg specified that a consumer could not give away personal data, but, more specifically, the exploitation rights of data. The fact that consumers did not give up data, but that their data was being used, were not the same as a counter performance, added Stephen Deadman. It was agreed on the necessity to limit the power of the supplier in order to define, which data counted as counter performance and which was necessary for the execution of the contract. The event ended with warm words of thanks to the organizers and speakers for a highly interesting conference day.