Flux européens

In Jaffe & Anor Greybull Capital LLP & Ors [2024] EWHC 2534 (Comm) one of the issues was the applicable law for misrepresentation about the source of funds being injected into a company. Cockerill J, applying Article 4 Rome II and referring to earlier judgments all reviewed on the blog, in the end [300] holds for German law:

In terms of direct damage, damage occurred when those misrepresentations took effect in the minds of those attending the meeting in Germany and were subsequently relied upon. The alleged key decisions were said to have been taken at the November meeting of Wirecard’s Management Board; and this seems to have taken place in Germany. The direct links to Germany are simply much stronger than any links to this jurisdiction.

This echoes Abu Dhabi Commercial Bank v Shetty’s ‘in the case of a misrepresentation or fraud, the locus damni is held to be the place where that misrepresentation is acted upon’ (not a direct quote, rather my summary at the time). I believe this is the right conclusion. It is a stronger justification than [299]’s inclusion of the place where the loss is ultimately held, for instance:

Overall – and despite the clear and careful arguments advanced for the Claimants, I conclude that the preferable analysis is that the applicable law is German Law. There are many immediate factors linking the case to Germany both in terms of direction, causation and ultimate feeling of the loss. By contrast Wirecard is forced to rely on the effects of Side Letter 7. But Side Letter 7 did not immediately cause Wirecard damage and would not inevitably do so. It took a further contingency (administration) and the application of the relevant rules to manifest the chargebacks. The links to England are too derivative (described by the Claimants in closing as manifesting at “the fourth and fifth stages” of the analysis) and too poorly evidenced.

Geert.

https://x.com/GAVClaw/status/1844671980462575965

 

I reported on the jurisdictional issues in the Brasilian orange juice cartel before. In Viegas & Ors v Estate of Jose Luis Cutrale & Anor [2024] EWCA Civ 1122 the Court of Appeal has now held on a claim amendment issue viz the continuing claim against some of the defendants (the claim against others having failed the jurisdictional test).

The issue of interest to the blog is first of all the situs of ‘choses in action’, that is, per P. Torreman’s Cheshire, North and Fawcett ‘the right of proceeding to obtain a sum of money or to claim damages’ or an enforcement right vis-a-vis an object (French: ‘une chose’ hence the odd use of ‘choses in action’ in the common law). That situs is fairly easily located if the enforcement relates to a physical object. Things are slightly more complicated when the object is immaterial, such as shares, or financial interests such as investments— which also incidentally explains why the issue often comes up in investment arbitration (the locus of the investment there, determining the applicability or not of a specific BIT or MIT).

In the case at issue, parties agreed on the situs: [77]

“It was common ground before us that the claims which the claimants are seeking to pursue are to be regarded as situate in this jurisdiction. In this connection, the defendants submitted that choses in action such as the claims “generally are situate in the country where they are properly recoverable or can be enforced” (see Dicey, Morris & Collins on the Conflict of Laws, 16th ed., at rule 136) and that the bringing of a claim in a particular jurisdiction reduces it into possession in that jurisdiction. The defendants relied in this respect on Trendtex Trading Corporation v Credit Suisse [1980] QB 629 (affirmed: [1982] AC 679), where Lord Denning MR said at 652:

“The right of action of Trendtex against C.B.N. was a chose in action. It was reduced into the possession of Trendtex by the issue of the writ in the High Court in England. It was situate in England.”

In the course of his oral submissions, [counsel for claimant] confirmed that he accepted that the claims which the claimants are seeking to advance in these proceedings are to be considered to be situate (sic) here.”

Further of interest to the blog is the standing of those claimants which are heirs of the original victims and the relevance of characterisation for same. 639 of the claimants listed across the claim forms bring claims as heirs on the basis that they are entitled to do so under Brazilian law. Some of these are expressly stated in the claim forms to be representing the estates of deceased persons, but in many other instances the claim forms simply give the claimants’ names. Three claimants were granted letters of administration in England and Wales on 11 July 2023, but that long post-dated the issue of the claim forms. None of the relevant claimants had obtained a grant of representation in England and Wales when the claims were instituted.

The first instance judge had concluded that the heirs could not pursue their claims in this jurisdiction in the absence of grants of representation here. “Insofar as the claim is brought before the distribution of assets to the beneficiaries”, she said [198], “this stage is the administration of the estate and an English grant is required in order for the heirs to bring the claim and collect the assets on behalf of those entitled to the assets of the estate”. Claimants challenge the Judge’s conclusions. 

This issue is where characterisation comes in: assigning the situation to a specific legal category so as to apply the relevant connecting factor and consequently the correct jurisdictional and applicable law consequences. Characterisation is done by the lex fori (except of courts where it is harmonised, such as, not always successfully, in EU law or the Hague instruments). Reference is made in the judgment to professor Briggs’ ‘pigeon holing’ analogy: [82]

the available categories are those created by the common law rules of private international law; and the placing within one or more of them is done according by reference to the same rules – for those who find analogies helpful, English law designs the pigeonholes, and an English sorter decides which facts belong in which pigeonhole.

Claimants essentially argue that  what matters for the purpose of characterisation is that the heirs’ claims are not brought as representatives of the estate, but as personal claims of the heirs in respect of the deceased person’s losses. The mere fact that the claim is being pursued in England should not be treated as giving rise to an estate in England so that the pursuit of the claim would have to be treated as being the administration of the estate – which would have required an English grant of representation.

This led on appeal [90] ff to consideration of classic civil law v common law distinctions on the passing of an estate, the need for probate in England etc.

[118]

for the purposes of characterisation, the law of England and Wales distinguishes between, on the one hand, the administration of an estate and, on the other, succession. It is clear, too, that under the law of England and Wales “succession to the movables of an intestate is governed by the law of his or her domicile at the time of his or her death”. If, therefore, the relevant issue is one of succession, Brazilian law must be applicable. The deceased persons from whom the heirs claim to have inherited causes of action were domiciled in Brazil, the causes of action represent “movables” and [counsel for claimants] confirmed that the deceased persons did not make wills extending to those causes of action.

Newey LJ [120]:

In broad terms, it seems to me that, under the law of England and Wales, matters relating to the collection of a deceased person’s assets and the payment of debts are considered to relate to the “administration of estates” and the distribution of assets after that is considered to relate to “succession”.

and [123-124]

If, as I consider to be the case, the collection of a deceased person’s assets and the payment of debts must be distinguished from the distribution of assets after that, the question whether the heirs have title to sue must, I think, fall to be treated as one relating to the administration of the deceased persons’ estates rather than one of succession. While a person’s assets are immediately and automatically transmitted to his heirs under Brazilian law and, on the Judge’s findings, an heir can bring proceedings relating to the estate, an heir does not acquire an “individualised interest” until “sharing”. Up to that point, any claim that an heir makes is “in defence of the common patrimony”, “the common heritage” and “the whole inheritance” …. Heirs can doubtless be expected to bring proceedings in their own interests, but “the proceeds awarded to the heir in the legal proceedings will not be considered, automatically, as personal patrimony of that heir” (in [expert’s] words). A particular heir may find that the fruits of a claim pass to one or more other heirs or are used to discharge debts. It is only when the “sharing” is carried out that an heir obtains an “individualised” absolute interest in an asset which had belonged to the deceased person. It is only then, too, that in the eyes of English law there is “succession” rather than the “administration of estates”.

In the present case, there is no suggestion that any relevant cause of action of a deceased person has been the subject of a “sharing”. As matters stand, therefore, the heirs are, for the purposes of characterisation, to be viewed as seeking to administer the estates of the deceased persons, not as having succeeded to any causes of action of the deceased persons. It follows that Brazilian law is not applicable and that the heirs cannot advance the claims in this jurisdiction without obtaining letters of administration here.

The appeal therefore fails, also nota bene on the question of whether the heirs should be given extension of time to obtain the required letters of administration.

I am not sure I agree. A cause of action of a deceased person, passed on to the heirs, is an asset, whether or not can successfully be acted upon. But I don’t suppose I had the benefit or all the expert evidence etc. Whatever the outcome, the case is an interesting example of the relevance of characterisation.

Geert.

https://x.com/GAVClaw/status/1844653916232774051

Commission / République tchèque (Éligibilité et qualité de membre d’un parti politique)
Citoyenneté européenne
Citoyenneté de l’Union : refuser aux citoyens de l’Union résidant dans un État membre sans en être ressortissants le droit de devenir membres d’un parti politique enfreint le droit de l’Union

I signaled the preliminary reference and background here and Kokott AG Opined end of September in C‑393/23 Athenian Brewery SA, Heineken NV v Macedonian Thrace Brewery SA.

Can a person damaged by an infringement of the competition rules sue the company which committed that infringement at the seat of its parent company in another Member State?

The case clearly has echoes of the economic unit theory in EU competition law see eg ENI. On the other hand the CJEU in a MOL v Mercedes Benz, in a judgment issued before the Opinion, did not resort to the economic unit theory in the inverse sense, holding that a mother corporation cannot simply claim its registered office as locus damni in Article 7(2) Brussels Ia jurisdiction when one of its subsidiaries suffered damage resulting from a breach of competition law. (The AG in Athenian Brewery only refers to the Opinion of Emiliou AG in MOL).

(37) ff the AG points to Article 8(1)’s condition of joinders being possible of there is a risk of irreconcilable judgments arising from diverging judgments on the same situation of law and fact, existing in all likelihood where mother and daughter have both been found to have infringed competition law. However less clear (41) is

whether a close connection within the meaning of Article 8(1) of the Brussels Ia Regulation may be present even if the joint liability of the parent company and the subsidiary for the infringement has not yet been established. This may arise in particular in the case of stand-alone actions, which, unlike follow-on actions, cannot be based on a (binding) decision of a competition authority, be this the Commission (Article 16(1) of Regulation No 1/2003) or a national authority (Article 9 of Directive 2014/104).

(43) ff

“the fact in support of the presumption of control that the parent company holds (almost) all of the capital in the subsidiary is such a strong indication of the existence of a close connection between the actions directed against the parent company and the subsidiary for the purposes of Article 8(1) of the Brussels Ia Regulation that no further evidence of the existence of that close connection is usually required (see in this regard section a). That interpretation does not infringe the requirement as to the foreseeability of the court having international jurisdiction… What is more, it ensures the practical effectiveness of Article 8(1) of the Brussels Ia Regulation without leaving open the possibility of the applicant’s being accused of abusive behaviour…”

The AG explains all these elements in turn and I agree with her analysis.  (60) for instance she supports the ‘good forum shopping’ implications of the anchor defendant mechanism:

 It is not a circumvention of the rule of jurisdiction for the injured party to sue the Greek subsidiary too in the place where the Netherlands parent company is domiciled and thereby to remove the former from the jurisdiction of the Greek courts. If, after all, the defendants are domiciled in different Member States, Article 8(1) of the Brussels Ia Regulation allows the applicant to select the place before the courts of which it brings its claim. That freedom of choice includes the possibility for the applicant to bring the dispute only before the court that best suits its interests.

I do wish the CJEU would also recognise the alternative: the misuse of forum shopping using A7(2)’s forum delicti rule, by corporations committing infringement of competition law, as I discuss ia here.

Geert.

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

I know I have Tweeted that I would add my tuppence on the Court of Appeal at The Hague on Wednesday reversing (English translation of the Court of Appeal here) the first instance judgment in Milieudefensie v Shell.

That judgment had imposed CO2 reduction emissions targets on Shell. (In my post on the first instance judgment I focus on the applicable law, Article 7 Rome II issue; that issue was not appealed).

I then however read my learned colleague and academic neighbour Quinten Jacobs’ most excellent thread on the case and, being a firm believer in progress by assimilation, I am most pleased he has accepted to turn that thread into a post, below (my contribution merely consisted of editing).

*  * * * * * *

 

Quick recap: In 2021, the District Court in The Hague ruled upon Milieudefensie’s claim which is based on the overall (tortious) duty of care (A6:162 Dutch Civil Code) that Shell must reduce its CO2 emissions by 45% by 2030 compared to 2019 levels. This was unprecedented. For the first time outside the context of an environmental permit, a court imposed reduction obligations on a private company. Shell argued that this ruling would force the company to halt investments and sell off assets, and it appealed the decision.

In its judgment, the Court of Appeal in The Hague first fairly succinctly summarised  the scientific evidence on climate change, referencing the Greenhouse Gas Protocol, reports from the IPCC, and the IEA. The court also covered several legal instruments, such as the UN Climate Convention, the Kyoto Protocol, the Paris Agreement, and the EU’s Fit for 55 initiative. Additionally, it cited the non-binding “expression of principles” in which the Dutch government and Shell agreed on Shell’s ambition to reduce CO2 emissions by 3.9 megatons.

The ruling then examines the climate targets Shell set for itself over the years, from 1986 to 2024. Notably, Shell’s self-imposed goals frequently shift, sometimes based on emissions, and at other times based on a percentage of its spending on emission-free products.

One interesting point is admissibility. The Court of Appeal confirmed the first instance judgment that “collective claims are inadmissible insofar as they serve the interests of the global population.” However, the interests of current and future generations of Dutch citizens and residents of the Wadden area were deemed “sufficiently similar.” The court found it undesirable that only individual citizens would have to file claims separately.

Shell’s argument that the claim  is a “political issue” does not, according to the Court of Appeal, prevent the claim from being admissible seeing as the claimants—several NGOs—are seeking to assert a “legal duty” allegedly violated by Shell.

On the substantive issues: According to Milieudefensie and other claimants, Shell breaches the “general duty of care,” a duty to act “in a manner befitting society,” which depends on the circumstances of each case. This is akin to what Belgium once called “a bonus pater familias”, now referred to as “a prudent and reasonable person” [in the common law known as the Man on the Clapham Omnibus] and as noted in the case at issue grounded in Article 6:162 of the Dutch Civil Code. Specifically, Shell is accused of violating this standard by infringing on human rights.

One key question is whether protection against dangerous climate change should be regarded as a human right, specifically under the right to life (Article 2 of the ECHR) and the right to privacy (Article 8 of the ECHR). Referring to the Dutch Supreme Court’s Urgenda judgment, the very recent Swiss climate ruling by the European Court of Human Rights- Verein KlimaSeniorinnen Schweiz and Others v. Switzerland , and judgments in Pakistan, Colombia, Brazil, and India (Ranjitsinh and Others/Union of India and Others), as well as UN reports and resolutions, the Court of Appeal concluded [7:17] that

“there can be no doubt that protection from dangerous climate change is a human right.”

This is as such not unexpected yet important to see it confirmed by the Court of Appeal. Additionally and importantly, the court reasoned [7.17] that it is

“primarily up to legislators and governments to take measures to minimise dangerous climate change. That being said, companies, including Shell, may also have a responsibility to take measures to counter dangerous climate change.”

Shell and Milieudefensie have jumped on different sections of that sentence to declare victory.

The confirmation of Shell’s responsibility brings the court to discuss ‘indirect horizontal effect of human rights’ [7.18] ff. Human rights traditionally apply to relations between individuals and the state (so-called ‘vertical applicability’, not between private parties (‘horizontal applicability’) It is generally not possible, for example, to sue a neighbor for their alleged violation of one’s freedom of religious expression (unless a crime such as hate speech is committed). However, the court noted—correctly, in line with accepted legal principles—that human rights can also apply “horizontally,” for instance, between a citizen and a corporation. This can occur via “general private law principles,” such as the duty of care, with human rights considerations incorporated into these broad and general standards.

The court [7.24] identified several factors to determine whether a company breaches this “social standard of care” [which seems to be posited by the Court as that special form of the general duty of care: duty of care, with human rights considerations incorporated, GAVC]:

the seriousness of the threat posed, the contribution to its emergence, and the capacity to contribute to addressing it.

The court referenced several “informal and non-binding agreements” that detail companies’ responsibilities regarding climate, such as the UNGP, OECD guidelines, and ISO guidelines, which Shell has endorsed. [7:26] Even if public regulations do not explicitly compel them to do so, particularly those companies whose products contribute to the climate problem are still expected to help mitigate it.

The Court of Appeal concluded on the issue [7:27]

In summary, the court of appeal is of the opinion that companies like Shell, which contribute significantly to the climate problem and have it within their power to contribute to combating it, have an obligation to limit CO2 emissions in order to counter dangerous climate change, even if this obligation is not explicitly laid down in (public law) regulations of the countries in which the company operates. Companies like Shell thus have their own responsibility in achieving the targets of the Paris Agreement.

The next question is whether a court can impose additional reduction obligations beyond existing legislation.

In this context it is usual to recall the summary by the Court [3.5] of ‘scope emissions’, with reference to the global accounting ‘GHG Protocol’:

– scope 1: direct emissions from installations that are owned or controlled in full or in part by the company;

– scope 2: indirect emissions from third-party installations from which the company purchases electricity, steam or heat for its business activities;

– scope 3: other indirect emissions not included in scope 2 generated in the company’s value chain, including emissions generated from the use or consumption of products the company supplies to third parties, such as other organisations or consumers.

The court observed [7:28] that “a considerable amount of new climate legislation” has been enacted, some after the initial ruling. It cited the updated EU-ETS system, which already covers a significant portion of Shell’s so-called scope 1 and 2 emissions, [7:35] placing them almost entirely beyond the reach of the first instance court’s reduction order. Furthermore, a significant portion of its European scope 3 emissions will fall under the EU-ETS-2 system introduced in 2023. Due to two other directives, CSRD and CSDDD, Shell must also develop a climate transition plan aligned with the Paris Agreement.

Is this sufficient? Not entirely, according to the Court of Appeal [7:53]. These measures are “not exhaustive,” and the duty of care could still lead to a tailored reduction order, though existing legislation should be considered in assessing this duty.

The key question is whether the court imposes a reduction order on Shell. This requires a “threat of a breach of a legal duty.” Regarding scope 1 and 2 emissions, the court was brief: [7:64] no reduction order is imposed, as Shell had largely achieved the 45% reduction target compared to 2019 by the end of 2023 and committed to continue these efforts. There is no “threat of a breach” of a legal duty.

For the remaining scope 3 emissions, the court noted a consensus that emissions must be reduced by a net 45% by 2030 to keep global warming below 1.5°C. However, the court found it could not  specify a particular reduction obligation for Shell Applying a general standard of -45% to Shell is [7:75] “not sufficiently case-specific” [the original Dutch text uses ‘fijnmazig’, best translated by ‘tailored’ in this case, GAVC] given evidence that reduction paths vary by sector and country, as indicated by reports from the IEA and the European Commission. The Court of Appeal [7:75] uses the simple example that

if Shell starts supplying gas to a company that previously obtained its energy from coal (which necessarily comes from a supplier other than Shell), this will lead to an increase in Shell’s scope 3 emissions, but on balance may lead to lower global CO2 emissions. It follows from that example alone that applying the general standard to Shell of a 45% reduction by the end of 2030 (or 35% or 25% in the alternative and further alternative claims) is not sufficiently case-specific.

The court acknowledged that as a major oil company, Shell has a “special responsibility,” but its product mix does not reflect the global product range, making an individual reduction order inappropriate.

[7:82] ff the Court then discusses whether a sectoral reduction target for the oil and gas portfolio is possible. Both Milieudefensie and Shell have enlisted experts who have written reports on this. According to the court, [7:91] “no sufficiently unequivocal conclusion can be drawn from all these sources regarding the required reduction in emissions from the combustion of oil and gas on which to base an order by the civil courts against a specific company.”

The contested assumptions, including the percentages from the IEA, call for “great caution in elevating numbers based on these reports to a legal norm.” It also plays a role that Milieudefensie itself contradicts or qualifies those numbers. According to the court [7:96] the available data do not provide “sufficient support”  to oblige Shell to reduce its CO2 emissions by a certain percentage in 2030.  Therefore, Milieudefensie’s claims are dismissed.

Obiter, the court went on to consider [7.97] ff whether scope 3 reduction obligations would be ‘effective’. Shell argued that if it complied with the reduction order by ceasing sales of fossil fuels from other producers, those companies would simply continue supplying fossil fuels to other buyers, with another company taking over Shell’s trading activities.

Both parties submitted reports from climate scientists on this reasoning. The court concluded that it had not been demonstrated that a reduction obligation imposed on a single company would positively impact the fight against climate change. There was no proven causal link between restricting sales and a reduction in emissions. The court found the “signaling function” of such an order “too speculative.” Core is [7:106]:

The district court rejected Shell’s contention that an obligation to reduce its scope 3 emissions by a certain percentage is not effective on the basis that any reduction in greenhouse gas emissions has a positive effect on combating climate change (paragraph 4.4.49 of the district court’s judgment). This consideration is correct in itself and is also in line with what the Supreme Court considered in the Urgenda judgment (legal ground 5.7.7 and 5.7.8). However, this does not mean that a reduction obligation imposed on a specific company will have such a positive effect, especially if this reduction obligation can also be realised by selling less fossil fuels. After all, in that scenario, the specific company would only disappear from the value chain and the (already produced) fossil fuels would still reach the end consumer via another intermediary. There may be a causal relationship between a production limitation and emission reduction, as assumed by the district court (cf. section 4.4.50 of the district court’s judgment), but Milieudefensie et al. have failed to put forward sufficient grounds to assume that in this case a causal relationship (also) exists between a sales limitation and emission reduction.

This is what Geert referred to as the ‘drug dealer defence’. [And note the obiter and cautious opening which the Court leaves for production obligations, GAVC].

This appears to be a significant barrier for future climate litigation. If only one party is brought before the court, Shell’s argument—that other companies will simply take over its role—could always come into play.

The court’s conclusion: Shell has a responsibility in the climate transition, but this does not translate into a specific reduction order. A single reduction target of 45% for one company is too general, and it has not been demonstrated that such an order would effectively lower (global) emissions. Or, in the Court’s words [7:111]:

While it follows from the foregoing that Shell may have obligations to reduce its scope 3 emissions, this cannot lead to the award of Milieudefensie et al.’s claims on this point. The court of appeal has come to the conclusion that Shell cannot be bound by a 45% reduction standard (or any other percentage) agreed by climate science because this percentage does not apply to every country and every business sector individually. The court has answered in the negative the question whether a sectoral standard for oil and gas can be established on the basis of scientific consensus. This entails that based on the available climate science, it cannot be said that a 45% reduction obligation (or any other percentage) applies to Shell in respect of scope 3. In addition, it could not be established that an obligation on Shell to reduce its scope 3 emissions by a certain percentage is effective, so that, at any rate, Milieudefensie et al. have no interest in their scope 3 claim.

Quinten.

 

 

NetCologne / Commission
Concurrence
Contrôle des concentrations : le Tribunal confirme la décision de la Commission autorisant l'acquisition par Vodafone des activités de télécommunications de Liberty Global en Allemagne, en République tchèque, en Hongrie et en Roumanie

Administration of the State Border Guard Service of Ukraine / EUIPO (RUSSIAN WARSHIP, GO F**K YOURSELF)
Propriété intellectuelle et industrielle
Propriété intellectuelle : le signe figuratif constitué par la phrase « RUSSIAN WARSHIP, GO F**K YOURSELF » en russe et en anglais ne peut être enregistré en tant que marque de l’Union européenne

Chiquita Brands / EUIPO - Compagnie financière de participation (Représentation d’un ovale bleu et jaune)
Propriété intellectuelle et industrielle
Le Tribunal confirme que l’ovale bleu et jaune de Chiquita Brands ne peut pas bénéficier d’une protection en tant que marque de l’Union européenne pour les fruits frais

Engagement solennel devant la Cour de justice de l’Union européenne de trois nouveaux membres de la Cour des comptes européenne

Kinsa
Aide à l’entrée irrégulière fournie dans un but humanitaire : l’avocat général Richard de la Tour juge la directive 2002/90 valide et précise les conditions de l’incrimination en droit de l’Union et en droit national

Burdene
Espace de liberté, sécurité et justice
Indemnisation des victimes de la criminalité violente : l’exclusion automatique de certains membres de la famille de la victime d’un homicide ne garantit pas une indemnisation « juste et appropriée »

Wizz Air Hungary / Commission (TAROM II; Covid-19)
Aide d'État
Aide d’État : le Tribunal rejette le recours de Wizz Air au sujet d’une aide accordée par la Roumanie à la compagnie aérienne nationale TAROM pour compenser les dommages subis en raison de la pandémie de Covid-19

Crédit agricole et Crédit agricole Corporate and Investment Bank / Commission
Concurrence
Les banques Crédit agricole et Credit Suisse ont participé à un cartel dans le secteur des obligations suprasouveraines, des obligations souveraines et des obligations d’organismes publics libellées en dollars US (« SSA Bonds »)

Many thanks to Marta Pertegás for flagging Medeon Sarl v Siem Industries S.A. ECLI:NL:GHDHA:2024:1248, in which the Gerechtshof Den Haag (upon appeal in summary proceedings) confirmed recognition and enforcement of a High Court (London) default order for payment.

Exclusive choice of court for the English courts had been made by the parties in a Bond Transfer and Purchase Agreement – BTPA.

(Both parties are domiciled at Luxembourg. That the case contained enough ‘international’ elements was not at issue, see the limitations on this point in A1(2) of the 2005 Hague Choice of Court Convention and see CJEU Inkreal’s reference to same).

Medeon’s grounds for refusal of recognition were all held to fail:

• [6.8] ff:  re A8(4) a Hague Convention: “Recognition or enforcement may be postponed or refused if the judgment is the subject of review in the State of origin or if the time limit for seeking ordinary review has not expired.”

The Court held that  A13(3) 2 of the English Civil Procedure Rules (CPR)’s ‘In considering whether to set aside or vary a [default] judgment (…), the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.” (emphasis added) clearly does not include a time limit yet clearly must be made timely.

A passing reference was made to English authorities seemingly referred to by Medeon. However the Dutch court generally held that it would be ‘unreasonable’ (6.11) to deny the enforceability to Siem, seeing as Medeon had all manner of time and options to introduce an opposition to the default order, even alongside negotiations on the amounts due. Its failure to do so must have consequences. Nemo auditur proprium turpitidnimen allegans, in other words.

 

• [6.13] ff: re A9 (c) Hague Convention:  [recognition may be refused if] “the document which instituted the proceedings or an equivalent document, including the essential elements of the claim,….i)  was not notified to the defendant in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant entered an appearance and presented his case without contesting notification in the court of origin, provided that the law of the State of origin permitted notification to be contested..”:

Here the Court held that the part of a form prescribed by the English CPR rules which had not been duly notified to Siem to an agent’s address in London (identified in the BTPA) – but it was notified in Luxembourg, was not a relevant form for the Hague Convention-instructed notification of the document instituting the proceedings: this, it held, is the claim form, which was duly notified to Medeon in Luxembourg (permission for service out for that was not required seeing as there is exclusive choice of court for England).

 

• [6.18] ff the Court held that ordre public was not engaged and neither was the principle of compensation only for actual damages suffered: [6.22] Medeon’s arguments would require the type of révision au fond [6.21] which is proscribed by the Convention.

 

A good example of the impact of the Convention. Clearly, pre-Brexit this procedure would have been a lot more straightforward.

Geert.

 

 

Commission / Intel Corporation
Concurrence
La Cour de justice confirme l'annulation, par le Tribunal, de la décision de la Commission constatant un abus de position dominante de la part d’Intel et lui imposant une amende de 1,06 milliard d'euros

Kwantum Nederland et Kwantum België
Principes du droit communautaire
Propriété intellectuelle : les États membres sont tenus de protéger les œuvres d’art sur le territoire de l’Union, indépendamment du pays d’origine de ces œuvres ou de la nationalité de leur auteur

Kolin Inşaat Turizm Sanayi ve Ticaret
Liberté d'établissement
Les opérateurs économiques d’un pays tiers n’ayant pas conclu d’accord international avec l’Union en matière de marchés publics ne peuvent pas se prévaloir de l’égalité de traitement dans ce domaine

A resolution from the European Parliament on the policy implications of the development of virtual worlds was published last Thursday at the OJEU (the resolution itself is from January). It contains a few parts on private international law:

“Private international law

13. Stresses that certain traditional territorial principles on applicable law and jurisdiction might prove inadequate to virtual worlds, whose non-territoriality is enabled by the use of decentralised technologies such as blockchain, and give rise to problems when it comes to ensuring the applicability of EU law and the protection of the rights of consumers and businesses;

14. Notes more specifically that, since anyone anywhere in the world can access virtual worlds, the ‘mosaic criterion’ established by the Court of Justice of the European Union, by which the injured party may seek compensation in the courts of the countries where at least a part of the harm occurred, might not hold; recalls, however, that the Court established an additional criterion whereby injured parties can claim compensation through the courts of the country in which they have their main interest and affirms that the codification of this criterion into the Brussels I Regulation could be considered;

Read more: Virtual worlds and Private International Law

15. Observes that the definition of ‘consumer’ in the Brussels I Regulation is currently based on a direct contractual relationship, which is missing for instance between the issuer of a non-fungible token (NFT) and the purchaser when the NFT is put on a secondary market; notes that, consequently, in the event of a dispute with the issuer, the final purchaser would be deprived of the jurisdictional treatment that the Brussels I Regulation grants to consumers;

16. Calls on the Commission to take into account these and other potentially problematic situations and to assess the appropriateness of the existing provisions of private international law applicable in the EU, proposing appropriate amendments, where necessary, to guarantee that citizens and businesses do not have to systematically litigate in foreign courts or under foreign laws in order to enforce their rights, thus making sure that their rights under the EU regulatory framework are fully guaranteed, while bearing in mind the risk of forum shopping, in particular on the part of non-EU companies”.

Source: Policy implications of the development of virtual worlds – civil, company, commercial and intellectual property law issues – European Parliament resolution of 17 January 2024 on policy implications of the development of virtual worlds – civil, company, commercial and intellectual property law issues (2023/2062(INI)), OJ C, C/2024/5720, 17.10.2024, ELI: http://data.europa.eu/eli/C/2024/5720/oj

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