Flux européens

FIGC et CONI
Concurrence
L’avocat général Spielmann estime que le droit de l’Union s’oppose à une réglementation qui ne permet pas aux juridictions nationales d’annuler des sanctions sportives illégales

Slagelse Almennyttige Boligselskab Afdeling Schackenborgvænge
Principes du droit communautaire
Interdiction de discrimination : la Cour de justice précise, en rapport avec la loi danoise en matière de logement public, les situations pouvant constituer une discrimination fondée sur l’origine ethnique

Sidi Bouzid
Espace de liberté, sécurité et justice
Protection internationale : le refus par le demandeur de son transfert dans un autre centre d’hébergement ne peut pas justifier le retrait du bénéfice de l’ensemble des conditions matérielles d’accueil

Amazon EU (Tarifs minimaux de livraison de livres)
Libre circulation des personnes
L’imposition, par une mesure nationale, de tarifs minimaux pour la livraison à domicile de livres doit être analysée à la lumière des règles en matière de libre circulation des marchandises

Storstockholms Lokaltrafik
Principes du droit communautaire
RGPD : en cas d’utilisation d’une caméra-piéton lors du contrôle de billets, certaines informations doivent être fournies immédiatement au passager concerné

SACD e.a.
La recevabilité d’une action en contrefaçon du droit d’auteur d’une œuvre collective doit garantir le respect du droit à une protection juridictionnelle effective, en ne rendant pas la procédure prévue inutilement complexe ou coûteuse

Hamoudi / Frontex
Action en dommages et intérêts contre Frontex en cas de renvoi sommaire : la Cour protège le droit à un contrôle juridictionnel effectif

WS e.a. / Frontex (Opération de retour conjointe)
Opérations de retour conjointes : l’arrêt du Tribunal rejetant le recours en indemnité d’une famille de réfugiés syriens contre Frontex après leur transfert de la Grèce vers la Turquie est annulé en grande partie

Commission / Pologne (Contrôle ultra vires de la jurisprudence de la Cour de justice par une cour constitutionnelle)
État de droit : la Cour constitutionnelle polonaise a manqué à plusieurs principes fondamentaux du droit de l’Union en méconnaissant la jurisprudence de la Cour de justice

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

Advocate-General Norkus’ approach in Case C-485/24 Locatrans Sarl v ES, which I reviewed here, focused on identifying a mutually agreed lex laboris and on the assistance the core DNA of the dispute, and the time that issue arose, may offer in identifying that mutual agreement.

The CJEU held last week. While it certainly may be said that the AG’s approach, in particular the reference to locus regit actum, is unorthodox and perhaps a touch convoluted, the CJEU’s approach is simply confusing as Ugljesa Grusic implies.

A reminder that the case formally concerns the Rome Convention, not the Rome Regulation however the provisions do not materially differ.

The novelty of the question in current case is the period of work to be taken into account in determining which law is applicable if the employee has worked for his or her employer in two separate stages: first, in several States and next, during the period preceding the end of the employment relationship, on a permanent basis in a single State, which parties clearly intend to be the new place of habitual performance.

The CJEU would seem to have sided with the French Government’s approach, that the most recent period of work could be taken into account in the use of the overall escape clause in Article 6, in order to determine, in the light of all of the relevant circumstances, the existence of closer connections with another country than that indicated by the other limbs of Article 6.

The CJEU as Ugljesa excellently summarises, holds that the change in habitual place of performance in its view makes the application of the ordinary test (identification of a habitual place of performance, which then leads to the lex causae) impossible; this then ordinarily triggers as a fall-back the law of the country of the engaging place of business.

However the Court then emphasises the core objective of the provisions on employment contracts: guaranteeing adequate protection for the employee, and the role of the escape clause in that respect: it must ensure that the law applied to the employment contract is the law of the country with which that contract is most closely connected (reference to CJEU Schlecker, [34]).

This then brings the last limb of Article 6(2) of the Rome Convention to the fore: where it is apparent from the circumstances as a whole that the contract of employment is more closely connected with another country, it is for the national court to disregard the connecting factors referred to in Article 6(2)(a) and (b) of the Rome Convention and to apply the law of that other country. The referring court is therefore invited seriously to consider the place where the employee has carried out his or her work on a permanent basis during the most recent period of the performance of his or her contract of employment, which place is intended to become a new habitual place of work, as the ‘proper law’ of the contract, for the Court holds, this is in line with the favor laboris objective. [61] the Court also suggests this assists with predictability however that, as Ugljesa also notes, would seem optimistic.

Like Ugljesa, I would suggest that the law of the intended new habitual place of work should apply as the objectively applicable law under Article 6(2)(a), rather than under the escape clause. This would serve party autonomy, predictability and favor laboris (seeing as the place is mutually agreed) more than the use of the escape clause, the position of which I feel is overpromoted with current judgment.

Geert.

EU Private International Law, 4th ed 2024, 3.39 ff.

Applicable law, cross-border employmentRome ConventionCJEU C‑485/24 Locatrans curia.europa.eu/juris/docume…Court does not seem to follow AG gavclaw.com/2025/09/09/l…CJEU zooms in difficulties of lex voluntatis, focuses on place of business through which employee was engagedMore soonish

— Geert Van Calster (@gavclaw.bsky.social) 2025-12-11T09:49:25.652Z

Barón Crespo / Parlement
Régime de pension complémentaire : les recours de 405 anciens députés européens ou de leurs ayants droit contre la réduction de moitié de leur pension complémentaire sont rejetés

Locatrans
Convention de Rome du 19 juin 1980
Travail dans plusieurs pays : la Cour précise la détermination de la loi applicable en cas de changement du lieu de travail habituel

Ryanair / Commission (TAP ; aide à la restructuration)
Aide d'État
Le recours de Ryanair contre la décision de la Commission approuvant une aide à la restructuration d’un montant de 2,55 milliards d’euros que le Portugal a accordée à TAP est rejeté

Intel Corporation / Commission
Concurrence
Marché des microprocesseurs : le Tribunal confirme la décision de 2023 de la Commission contre Intel mais réduit le montant de l'amende d’environ 140 millions d’euros

I know we all got pretty excited (if not in the least enthusiastic) by the Grand Chamber ruling in Apple last week. However there was another Private International ruling which involved President Lenaerts (I mention that because he is an authority on PrivIntLaw and my predecessor in the chair here at Leuven).

In Case C‑279/24 AY v Liechtensteinische Landesbank (Österreich) AG, the Court held that the consumer section of Rome I does not apply to a contract concluded between a consumer and a bank where the conditions set out in that provision were not met on the date on which that contract was concluded, but are subsequently met.

In the case at issue, on the date on which the contract concerned was concluded, the Austrian bank concerned was not pursuing its commercial or professional activities in the country where the consumer had his or her habitual residence, and was not directing them to that country. The conditions set out in A6(1)(a) or (b) Rome I were not met therefore. It is only later that this was the case: AY took part in an event organised in Padua (Italy) by an Italian investment company (‘the Padua event’), during which the managing director of that company presented a fund whose portfolio also included ETNs – exchange trade notes, for which AY had earlier opened an account. An employee of the bank also took part in that event in order to introduce the bank to the investors in attendance. Had AY only then opened his account, it would have been a consumer contract.

The CJEU emphasised [33] Rome I’s foreseeability pedigree, [37] legal certainty, and [34] ff party autonomy.

Note the difference with CJEU Commerzbank where, for the jurisdictional angle to consumer contracts, the emergence of an ‘international’ element post contract formation did not stand in the way of the deployment of EU PrivIntLaw.

Geert.

 

 

Boothnesse
Avocate générale Medina : en vertu de l’accord de commerce et de coopération entre l’Union européenne et le Royaume-Uni, la règle de la spécialité est une garantie procédurale essentielle pouvant être invoquée et sa mise en application contrôlée

Mio e.a.
Libre circulation des personnes
La protection d’objets utilitaires par le droit d’auteur est soumise aux mêmes exigences que pour d’autres objets

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

I reviewed Sánchez-Bordona AG’s Opinion in Case C-34/24 Stichting Right to Consumer Justice v Apple here.

The CJEU held yesterday and did not follow its AG. In doing so it gave collective action under WAMCA a boost. This is not something many will object to. However in my view its judgment is fairly clearly contra legem and I do not think it is a good idea for the CJEU effectively to legislate in this way.

The Court held that Dutch foundations can consolidate their collective claim in just one court in The Netherlands, despite the absence of a clear ex ante procedural rule in Dutch civil procedure providing for same.

The foundations at issue are procedural vehicles, created to bring a class action suit in the name of both identified and unidentified victims of alleged abuse of dominant position by Apple with its fee structure for App Store.

With its judgment, the Court decided not to follow the Opinion of its Advocate General. He had suggested the Court stick to what is a more literal reading of the EU rules on jurisdiction. This Opinion implied that

unless the Dutch rules clearly provide for such consolidation for instance for all breaches of competition law (clearly sanctioned by CJEU Volvo) – which they do not (Dutch lawyers will be better placed to explain why this change has not been made in the context of WAMCA); or

unless the court in the case at issue finds that a multitude of claims brought in various Dutch court – which they had not – must be consolidated in one court on the basis of Dutch civil procedure rules,

, the Court should follow the implications of the actual wording of the EU rule at issue.

In its ruling the Court emphasised that consolidating the claims in one court will make it more efficient to perform the often complex factual and economic analysis required to judge complicated competition law cases like the one at issue. It also highlighted that Apple can hardly be surprised to be sued in one court in The Netherlands given its marketing of the App Store across The Netherlands collectively (as Giles Cuniberti notes, this specific focus on the Dutch market may mean the authority of the judgment does not stretch to cases where such national marketing focus is absent).

I get both elements. However they are de lege ferenda, not de lege lata. Article 7(2) clearly allocates territorial jurisdiction, not just national jurisdiction, to the place of individual harm which must therefore be identified. Should this be considered to go against the interest of the sound administration of justice, then the Regulation ought to be amended (which it has not, despite repeated opportunity to do so, and despite it having been considered in the specific context of collective action, without it actually having been amended).

Note that [64-65] emphasis on ‘unidentified but identifiable’ echoes the requirement of individual harm emphasised also in CJEU Mittelbayerisher Verlag:

As is apparent from the request for a preliminary ruling, under Netherlands law, a foundation or association which brings a representative action acts as an independent promoter of the interests of persons who, although not referred to individually, have similar interests. Those applicants thus exercise their own right, namely the right to represent and defend the collective interests of a ‘strictly defined group’ which brings together unidentified but identifiable persons, namely users, whether consumers or professionals, who have purchased apps created by developers on the App Store NL to which those persons had access by means of their Apple ID associated with the Netherlands and whose domicile or registered office is likely, for the majority of those users, to be located throughout the territory of that State.

That group must be determined in a sufficiently precise manner to enable interested persons to express their position on the outcome of the proceedings concerned and, where applicable, to receive compensation. In that regard, the Netherlands Government stated, at the hearing, that the outcome of a representative action for the defence of the collective interests of unidentified but identifiable persons is binding on the persons established in the Netherlands who belong to that group and who have not expressed their intention to refrain from participating in those proceedings.

[66] the CJEU notes

a court cannot be required, for the purpose of determining its territorial jurisdiction to hear such an action, on the basis of the place where the damage occurred, within the meaning of Article 7(2) of Regulation No 1215/2012, to identify, for each alleged victim taken individually, the precise place where the damage that may have been suffered occurred, since those victims are not identified individually at the time when that court ascertains whether it has jurisdiction; nor can it be required to identify one or some of those victims.

With respect, that puts the horse before the cart. If such determination cannot be done, then one may simply have to conclude that there cannot be locus damni jurisdiction under Article 7(2), instead turning to locus delicti commissi. However in view of its answer to the locus damni issue, the Court did not reply to the question on the location of the harmful event /locus delicti commissi.

This is a question which is of equally general importance to the effective implementation of competition law and as I discuss in my previous post, could do with clarification. That the Court did not entertain it is an important missed opportunity.

Further, in various places in the judgment the CJEU pushes the ‘sound administration of justice’ as a foundational principle of Brussels Ia. As I argue here, there is in fact little support in the Regulation de lege lata that this principle is core to the Regulation’s jurisdictional matrix. The CJEU clearly pushes it as one.

Overall there will be few who will have sympathy for an economic player the size of Apple who now can more realistically be sued in one court rather than claimants having to first bring the claim across the whole of The Netherlands. In that respect the judgment echoes an earlier one brought against Volkswagen in the context of the Dieselgate scandal. In that judgment, the Court allowed individual, second hand  purchasers of a defective car to sue the manufacturer effectively in their individual place of domicile. In that case therefore Volkswagen was inconveniently forced to defend the claim in a multitude of jurisdictions.

The inconvenience for Apple in current case is that it is being sued in one place by a more sophisticated claimant. However the danger in my opinion lies in the Court effectively applying the law with the perceived unpopularity or sophistication of one of the parties in mind. If current EU procedural law turns out to be ineffective in holding big business to account, then that law must be changed by the legislator. I do not think the Court must do it in the legislator’s stead, in cases where the law’s express provisions are clear.

Geert.

Russmedia Digital et Inform Media Press
Libre circulation des personnes

Protection des données : l’exploitant d’un site de marché en ligne est responsable du traitement des données à caractère personnel contenues dans les annonces publiées sur sa plateforme

Stichting Right to Consumer Justice et Stichting App Stores Claims
Espace de liberté, sécurité et justice
Les juridictions néerlandaises sont compétentes pour connaître d’une action représentative portant sur un comportement prétendument anticoncurrentiel d'Apple concernant son App Store destinée au marché des Pays-Bas