Flux européens

ASG 2
Concurrence
Réparation du préjudice causé par une entente : une réglementation nationale empêchant une action groupée en recouvrement peut enfreindre le droit de l’Union

Engagement solennel de la présidente et des membres de la Commission européenne devant la Cour de justice de l’Union européenne

I reviewed the first instance judgment in Clifford Change v SocGen here. Soc Gen have unsuccessfully appealed, see Clifford Chance LLP & Anor v Societe Generale SA (Rev1) [2025] EWCA Civ 14, with Phillips LJ not taking up much space to do so.

Viz the question whether Clifford Change LLP was bound, he holds [46] that the pleaded basis of the core of SocGen’s appeal on this aspect is that the Judge erred as a matter of interpretation (emphasis in the original) of the Framework Agreements, asserting that the Judge failed to give effect to the true intention of the parties (ditto) to those agreements that all Clifford Chance entities would be bound by their terms. [47] ‘However, it is entirely clear that the Judge did not decide the question of whether CC LLP was bound by the Framework Agreements as a matter of interpretation, but on the basis that SocGen did not have a good arguable case that CC LLP was, or became, a party to them.’

In other words SocGen’s appeal was held to be questioning the judge’s factual findings on authority to bind parties, findings which it was not allowed to challenge in the appeal. Entirely obiter, Phillips LJ does review those findings [57] ff, holding obiter [60] that SocGen has failed to demonstrate that that evaluation was plainly wrong.

On Clifford Chance Europe being bound, the grounds of appeal are as follows ([65-66]):

SocGen first challenges the Judge’s assumption that there is no substantive claim against CC Europe. SocGen points out that the letter of claim addressed to CC Europe asserted a claim on the basis that CC Europe was the “dominus litis”, a French law claim based on the concept that CC Europe had a supervisory role in relation to the conduct of the Goldas Litigation by CC LLP. SocGen further emphasises that the Judge did not have evidence of French law in that regard, and that in any event the pleadings in the French proceedings have not closed. SocGen contends that if CC Europe wishes to obtain a negative declaration in respect of its liability for such a claim, it is contractually obliged to do so in France, where proceedings on the same issue are already underway.

The second challenge is to the Judge’s concern that staying CC Europe’s claim in this jurisdiction would lead to a multiplicity and/or a fragmentation of proceedings. SocGen points out that there is already and will continue to be a multiplicity of proceedings, pointing out that (i) that position was caused by the respondents’ decision to seek negative declarations in England when proceedings were being brought in France; and (ii) such multiplicity was foreseeable by the parties when (contrary to SocGen’s case) CC LLP was implicitly retained separately and on different terms as to governing law than had been agreed between CC Europe and SocGen.

However Phillips LJ holds [67] that the Judge was right to find that there are strong reasons not to stay CC Europe’s claim in E&W:

There is no doubt that SocGen’s primary and substantive claim is against CC LLP, being the firm that was retained in relation to the Goldas Litigation and whose actions or inactions are now alleged to have been negligent. That is apparent from the letter of claim addressed to CC Europe, all the faults and negligence alleged being those in the conduct of the Goldas Litigation by CC LLP. The Judge determined that England is the appropriate forum for determination of that dispute. I accept that the Judge may have gone too far in concluding (at this stage and on the evidence before him) that SocGen does not have a genuine claim against CC Europe under French law. But even if there is some parasitic claim against CC Europe based on a “supervisory” role (SocGen having failed to adduce any evidence as to the existence of such a claim, let alone to explain its nature and effect), it is plainly desirable that it be determined in the same proceedings as the dispute between SocGen and CC LLP, namely, in these proceedings in the appropriate forum. There are strong reasons why CC Europe should not be debarred from seeking a declaration together with CC LLP in England, the effect of staying its claim being to require CC Europe to defend itself separately in France in respect of the very actions of CC LLP which will be the subject of these proceedings.

The first hearing in Soc Gen’s French proceedings took place in March 2024. [68] the Court of Appeal suggests a possible course of action for the French Proceedings, both on behalf of SocGen and the French court itself:

It is true that the French proceedings may continue notwithstanding the Judge’s order, and that may be a result of Clifford Chance entities having bifurcated their contractual relations with SocGen and having then initiated proceedings in this jurisdiction. But that is not a sufficient reason to fragment these proceedings before the plainly appropriate forum. There must be a realistic expectation that SocGen, and indeed the French court, will be reluctant to duplicate in France proceedings in England as to the alleged negligent conduct by English solicitors of Commercial Court proceedings in London.

Geert.

 

Royal Football Club Seraing
Arbitrage sportif : selon l’avocate générale Ćapeta, les sentences du Tribunal arbitral du sport doivent pouvoir faire l’objet d’un contrôle complet par les juridictions nationales afin de vérifier la compatibilité des règles de la FIFA avec le droit de l’Union

Ministarstvo financija (Bourse Erasmus+)
Citoyenneté européenne
Bourse Erasmus + : le montant versé à un étudiant ne doit pas être pris en compte pour le calcul de l’impôt sur le revenu du parent l’ayant à sa charge

MegaFon / Conseil
Relations extérieures
Guerre en Ukraine : le Tribunal confirme les mesures restrictives adoptées contre l’opérateur de téléphonie mobile russe MegaFon

Beevers Kaas
Concurrence
Droit de la concurrence et accords de distribution : le distributeur exclusif doit être protégé des ventes actives effectuées sur son territoire par tous les autres acheteurs du fournisseur

Mousse
Principes du droit communautaire
RGPD et transport ferroviaire : l’identité de genre du client n’est pas une donnée nécessaire pour l’achat d’un titre de transport

A quick note on Playtech Software ea v Games Global Ltd ea [2024] EWHC 3264 (Ch) in which Thompsell J discussed ia Rome II in an application for service out (of the jurisdiction). 

As confirmed by Arnold LJ in Shenzhen Senior Technology Material Co Ltd v Celgard, LLC [2020] EWCA Civ 1293 [51]  as a matter of English law, claims for breach of equitable obligations of confidence are not claims in tort: yet that does not rule out that under Rome II, they are non-contractual obligations whose lex causae is determined under that Regulation (see also Autostore).

Thompsell J in casu [100]:

Breach of confidence is a species of unfair competition within Article 6 of the Rome II Regulation and Article 6(2) applies because Playtech’s claims are concerned with alleged acts of unfair competition affecting exclusively the interests of a specific competitor. In these circumstances, Article 6(2) provides that “Article 4 shall apply“. The consequence is that Article 4, which is concerned with the law applicable to a non-contractual obligation arising out of a tort, applies to determine the applicable law. This is despite breach of confidence not being a claim in tort for the purposes of English law.

Note that Article 4 Rome II unlike Article 6, contains an overall escape clause. [103] with reference to Celgard, the judge confirms that under Article 4(1) the connecting factor is the direct damage caused by the wrongdoing. Whether the relevant acts also had an effect, and may be regarded as having been carried out, in the United Kingdom, is not the relevant factor.

The judge [106] upholds claimant’s argument that it is facing competition to its business, which it conducts in the UK, in relation to its sales from at least one game developed by defendant, that has a feature that has relied on its confidential information, allegedly spirited away by a former employee of one of Playtech’s sister companies. The direct damage therefore is held to have been suffered in the jurisdiction and the tort gateway (see also UKSC Brownlie) for jurisdiction satisfied.

Geert.

EU private international law, 4th ed 2024, Heading 4.6.2.

https://x.com/GAVClaw/status/1869462089934450944

Bindl / Commission
Droit institutionnel
Le Tribunal condamne la Commission à payer des dommages et intérêts à un visiteur de son site Internet de la Conférence sur l’avenir de l’Europe en raison du transfert de données à caractère personnel aux États-Unis

Loredas
Libre circulation des personnes
Aménagement du temps de travail : les employeurs domestiques doivent mettre en place un système permettant de mesurer la durée du temps de travail journalier de chaque employé de maison

Caisse d’allocations familiales des Hauts-de-Seine
Espace de liberté, sécurité et justice
Un État membre ne peut exclure du bénéfice d’allocations familiales le travailleur étranger dont les enfants, nés dans un pays tiers, ne justifient pas être entrés régulièrement sur son territoire

Ford Italia
Environnement et consommateurs
Responsabilité du fait des produits défectueux : un fournisseur peut être considéré comme producteur si son nom coïncide avec la marque apposée sur le produit par le fabricant

Kaduna
Espace de liberté, sécurité et justice
Protection temporaire pour les personnes déplacées en provenance d’Ukraine : un État membre qui a étendu cette protection à certaines catégories de personnes, au-delà de ce que requiert le droit de l’Union, peut leur retirer ladite protection sans attendre la fin de la protection temporaire accordée en vertu du droit de l’Union

Halmer Rechtsanwaltsgesellschaft
Libre circulation des capitaux
La participation d’investisseurs purement financiers dans une société d’avocats peut être interdite

Tudmur
Espace de liberté, sécurité et justice
Politique d’asile : la suspension unilatérale des mesures de transferts de demandeurs d’asile par un État membre responsable ne justifie pas à elle seule le constat de défaillances systémiques

Mironovich Shor / Conseil
Relations extérieures
Déstabilisation de la Moldavie : le Tribunal confirme les mesures restrictives adoptées contre M. Shor et Mme Tauber pour l'organisation de manifestations violentes

TP / Commission
Marché publics
Pour exclure une société des procédures de passation de marchés publics et d’octroi de subventions de l’Union, l’ordonnateur doit évaluer le comportement de l’opérateur mis en cause de manière concrète et individualisée

I reviewed and criticised the successful first instance forum non conveniens challenge by Dyson viz a claim allegations of forced labour at Dyson’s Malaysian Supplier, here.

That finding was today resoundly overturned by the Court of Appeal in Dhan Kumar Limbu & others v Dyson Technology Limited and others [2024] EWCA Civ 1564.

The issues at stake were expertly discussed this week in an online EAPIL seminar called by prof Ugljesa Grusic at the occasion of Dr Ekaterina Aristova’s excellent OUP volume Tort Litigation Against Transnational Corporations.

The first instance judge concluded that Malaysia was the more appropriate forum for the claims to be heard and that there was no real risk of the claimants being unable to access justice there.

[4] Popplewell LJ confirms standing authority that the Court of Appeal only interferes in such exercise, necessarily fact and view driven as it is, and absent some procedural unfairness or irregularity, where the lower court has made an error of principle, such as taking into account irrelevant matters or failing to take into account relevant matters, or has reached a conclusion which exceeds the generous ambit within which reasonable disagreement is possible and so is plainly wrong.

[22] Summarises what is needed: for a ‘service in’ case (here: against those defendants with domicile in the jurisdiction), the burden is on the defendant to show that there is another available forum which is clearly and distinctly more appropriate. The burden reflects the fact that in such a case the claimant has served the defendant as of right which is an advantage which will not lightly be disturbed (reference to Spiliada). In a service out case (here against the non-E&W domiciled defendants), the burden is on the claimant to show that England is clearly the appropriate forum. In both cases appropriate forum means that in which the case may be tried more suitably for the interests of all the parties and the ends of justice (reference ia to Lungowe v Vedanta [66]).

The various factors going into this exercise are listed [22-23]

In determining the appropriateness of the forum, the court looks at connecting factors to determine with which forum the action has the most real and substantial connection (Spiliada at p. 478A). These include not only factors affecting convenience or expense, but also other factors such as governing law, the place where the parties reside or carry on business, and where the wrongful acts and harm occurred (Spiliada p. 478A-B, Vedanta at [66]). The risk of multiplicity of proceedings giving rise to a risk of inconsistent judgments is only one factor, although a very important one (Vedanta at [69]). In applying these connecting factors to cases involving multiple defendants, their relative status and importance in the case should be taken into account, such that greater weight is given to the claims against those who may be described as a principal or major party or chief protagonist: JSC BTA Bank v Granton Trade Limited [2010] EWHC 2577 (Comm) per Christopher Clarke J at [28].

23. For both service in and service out cases, if the court concludes that the foreign court is more appropriate by reference to connecting factors, applying the relevant burden of proof, the court will nevertheless retain jurisdiction if the claimant can show by cogent evidence that there is a real risk that it will not be able to obtain substantial justice in the appropriate foreign jurisdiction (Vedanta at [88]). Cogent evidence does not mean unchallenged evidence (Vedanta at [96]). This is often conveniently treated as a second stage in the analysis because it usually calls for an assessment of different evidence, but it does not involve a different question: if there is a real risk of denial of justice in a particular forum it is unlikely to be an appropriate one in which the case can most suitably be tried in the interests of the parties and for the ends of justice: Vedanta at [88]. In this case the parties and the Judge adopted that two-stage approach, labelling the first stage as “appropriate forum” and the second stage as “access to justice”. I will adopt the same structure, whilst keeping in mind that second stage factors may also be relevant to the first stage in what is juridically a single holistic exercise in seeking to identify where the case can most suitably be tried in the interests of the parties and for the ends of justice.

Grounds of appeal are listed [30]. I will not rehash all of the grounds or their discussion (the judgment is succinct yet all of the paras count really), rather highlight the IMO most relevant ones:

[34]: the Judge failed to take any account of the important connecting feature that D1 and D2 are domiciled in England and have been served here as of right. The domicile of the parties was not one of the Judge’s headings and did not feature in his conclusory paragraphs.

This is an important confirmation of the principle as it also exists in EU law: suing a defendant in their domicile as of right, must be given its proper weight in a forum non balancing exercise, and note Popplewell LJ’s reference to EU law:

[34] The reason it is an important connecting factor in relation to jurisdiction is because presence here is the basis for establishing the court’s jurisdiction, and domicile here connotes a degree of permanence and allegiance to the country’s institutions, including its courts, which means that the party can reasonably expect, and be expected, to meet claims against it in such courts in the absence of sufficient countervailing factors. That is why within the EU domicile remains the foundational factor for allocating jurisdiction in civil and commercial matters, subject to derogations.

[36] the argument that the weight placed on the UK domiciled defendants, be neutralised by the non-UK domicile of the other defendants, fails, ! however with in my view important instruction for future challenges: Lord Justice Popplewell holds that “the reality is that Dyson UK is the principal protagonist and Dyson Malaysia a more minor and ancillary defendant to the claim against D1 and D2.”

That evidently may be a factor to take into account where the UK anchor defendant is not the main protagonist.

[38] Viz the ‘centre of gravity’ of the claim (not a separate part of the test, rather a clerical trick as it were to rank arguments), this is held to be

an allegation of a failure occurring amongst the management in England and is alleged primarily to have occurred in England, although it will also focus to some extent on conduct in Malaysia. The complaints made by Mr Hall were made to Dyson UK and the alleged failure to take steps to act on them is primarily a failure of English personnel in England. The unjust enrichment of D1 and D2 ultimately took effect in England at their centre of trading, and the proprietary remedies claimed are of property rights over profits and products located in this country.

This latter element is also a response to TWAIL arguments which I flag here in my review of Dr Aristova’s jurisdictional analysis (she discusses them extensively in her volume).

[42] ff an error of principle was also found in the judge’s finding that there was a real risk of irreconcilable findings in relation to pending [GAVC now discontinued; note [43] the flag that discontinuation may have been motivated by strategic considerations in current appeal] defamation proceedings even if the current proceedings proceed in England on the basis that it was most unlikely that the High Court would case manage the proceedings to avoid or reduce the risk of such a possibility. Plainly, there would have been a plain likelihood of the English courts so coordinating.

[47] The fact that litigation will be coordinated and conducted from one of the two rival fora, irrespective of the forum in which the litigation takes place, is held to be a significant connecting factor with that forum. Note of course that this may give unscrupulous defendants forum management possibilities.

[49] ff the judge’s acceptance of and reliance on material support offered by defendants for the trial in the alternative forum, is frankly demolished, starting with the observation

I start with the Undertakings. In the experience of the court they are unprecedented, and the researches of counsel have not identified anything similar (we were referred to Société Nationale Industrielle Aerospatiale v Lee Kui JAK [1987] AC 871, an anti-suit injunction case, in which the undertakings were not remotely comparable). As a mechanism for ensuring that the impoverished claimants are thereby enabled to meet disbursements necessary to conduct the claims in Malaysia, they seem to me to suffer from six serious flaws….

for these six flaws the reader of this post best read the judgment, starting with the observation of an obvious conflict of interest.

[59-60] considerable emphasis on equality of arms both in legal representation (note the reference to Tesla rather than the ordinarily intuitive ‘Rolls Royce’ comparison) and in terms of witnesses’ online translation needs.

Having found the judge’s approach suffering from serious issues of principle, the Court of Appeal then makes it own brief assessment [63] ff. Funding, domicile of the parties, practical convenience are all found to be in favour of E&W. Applicable law leads to Malaysian law (presumably because parties agree), with the Court holding that is nevertheless not particularly onerous for the English courts to apply.

Overall, a resounding victory for claimants with however as I point out above, one or two risk factors carefully to manage for future reference: if arguably not of such nature as to displace the reconfirmed solid right to claim in the defendant’s place of domicile.

Geert.

EU private international law, 4th ed. 2024, Chapter 7.

https://x.com/GAVClaw/status/1867545272261521803

Nemzeti Földügyi Központ
Libre circulation des capitaux
Droits d’usufruit sur des terres agricoles en Hongrie : le droit de l’Union ne s’oppose pas à la réinscription de tels droits conformément à un arrêt de la Cour de justice, même si leur inscription initiale était illégale