Flux européens

I have reported earlier on Deutsche Bank AG v Sebastian Holdings Inc & Alexander Vik [2017] EWHC 459 and Dennis v TAG Group [2017] EWHC 919 (Ch).

The Court of Appeal has now confirmed in [2018] EWCA Civ 2011 Vik v Deutsche Bank that permission for service out of jurisdiction is not required for committal proceedings since the (now) Article 24(5) rule applies regardless of domicile of the parties. See my posting on Dar Al Arkan and the one on Dennis .

Gross LJ in Section IV, which in subsidiary fashion discusses the Brussels issue, confirms applicability to non-EU domicileds however without referring to recital 14, which confirms verbatim that indeed non-EU domicile of the defendants is not relevant for the application of Article 24.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.6.8.

IR
SOPO
Le licenciement d’un médecin-chef catholique par un hôpital catholique en raison de son remariage après un divorce peut constituer une discrimination interdite fondée sur la religion

In this post I, unusually, offer questions rather than tentative answers. I hope you’ll enjoy the pondering and of course I have ideas of my own on all of these issues. Thank you Michiel Poesen for alerting me to Carles Puigdemont et al’s case in the Belgian civil courts.

The case is not about trying to employ the Belgian courts to have a Spanish Supreme Court judge removed from the case. (Contrary to what De Standaard report in their title – in an otherwise informative piece). Pablo Llarena had commented on the case (specifically: rejecting an argument raised by the defence) at an academic  conference. Rather, as I understand the case (public detail is scant), applicants suggest the alleged violation of impartiality infringes their right to such impartiality which in Belgium at least, is a civil right, constitutionally guaranteed.

The case therefore is one in tort. The exact request to the court is as yet unknown: provisional measures? damages? One assumes the very finding by a Belgian court of a finding of partiality and hence infringement of fundamental rights, will be employed in any future trials in Spain.

So far a little context. Here are the questions:

• What kind of law is engaged here?: is this private international law? Is it public international law? (see prof Hess’ contribution to the Recueil, on the private /public divide).
• Are the proceedings ‘international’ enough to trigger the application of private international law; are they simply ‘Spanish’ and what impact does that have on the jurisdiction  of the Belgian courts;
• Are such proceedings ‘civil and commercial’ within the meaning of the Brussels regime; specifically, what is the impact of a Supreme Court judge spending much of their time engaging in what has to be considered a ‘public’ function, now speaking at an academic conference. (Think Kuhn, Fahnenbrock etc.).
• If the Brussels I regime is triggered, what type of provisional measures is possible?
• If the Brussels I regime is triggered, how does Article 7(2) apply; where is the locus delicti commissi and where the locus damni; how does e-Date apply if at all;
• Along similar lines: how does applicable law apply given that defamation is exempt from Rome II; (see Belgium’s regime in Articles 99-100 WIPR in particular); and
• What is the impact, if any, of chances of enforcement of the judgment in Spain.

These are the issues I suspect will be of some relevance in the conflicts field. Happy pondering.

Geert.

 

Many of you will have already seen (e.g. via Giesela Ruehl) the German Supreme Court (Bundesgerichtshof – BGH)’s refusal to recognise and enforce a Polish judgment under the Brussels I Regulation (application was made of Brussels I but the Recast on this issue has not materially changed). The BGH argued that enforcement would violate German public policy, notable freedom of speech and freedom of the press as embodied in the German Constitution.

Giesala has the necessary background. Crux of the refusal seemed to be that the Court found that to require ZDF to publish by way of a correction /clarification (a mechanism present in all Western European media laws), a text drafted by someone else as its own opinion would violate ZDF’s fundamental rights.

Refusal of course is rare and in this case, too, one can have misgivings about its application. The case however cannot be decoupled from the extremely strong sentiment for freedom of speech under German law, for obvious reasons, and the recent controversy surrounding the Polish law banning the use of the phrase ‘Polish concentration camps’.

I am very pleased to have been given approval by professor Burkhard Hess to publish the succinct comment on the case which he had sent me when the judgment was issued. I have included it below.

Geert.

European private international law, second ed. 2016, Chapter 2, 2.2.16.1.1, 2.2.16.1.4

 

The German Federal Civil Court rejects the recognition of a Polish judgment in a defamation case under the Brussels I Regulation for violation of public policy

 

Burkhard Hess, Max Planck Institute Luxembourg

 

In 2013, the German broadcasting company ZDF (a public body) broadcast a film about Konzentrationcamps. In the film, it was (incorrectly) stated that Auschwitz and Majdanek were “Polish extermination camps”. Further to the protests made by the Polish embassy in Berlin, ZDF introduced the necessary changes in the film and issued an official apology. However, a former inmate of the KZ, brought a civil lawsuit in Poland claiming violation of his personality rights. With his claim he sought remedy in the form of the broadcasting company (ZDF) publishing on its Internet home page both a declaration that the history of the Polish people had been falsified in the film and a statement of apology. Ultimately, the Cracow Court of Appeal ordered the publication of the declaration on the company’s home page. While ZDF published the text on its website visibly for one month, it did not post it on its home page.

Consequently, the plaintiff sought the recognition of the Polish judgment in Germany under the Brussels I Regulation. However, the German Federal Court denied the request for recognition on the grounds that it would infringe on German public policy (article 34 No 1 Regulation (EU) 44/2001). In its ruling, the Court referred to the freedom of the press and of speech (article 5 of the Constitution) and to the case-law of the Constitutional Court. The Court stated that the facts had been incorrectly represented in the film. However, it held that, under German law, ordering a declaration of apology qualifies as ordering a declaration of opinion (Meinungsäusserung) and that, according to the fundamental freedom of free speech, nobody can be obliged to make a declaration which does not correspond to his or her own opinion (the right to reply is different as it clearly states that the reply is made by the person entitled to the reply). As a result, the Polish judgment was not recognized.

BGH, 19 July 2018, IX ZB 10/18, The judgment can be downloaded here.

To my knowledge, this is one of the very rare cases where a foreign judgment was refused recognition in Germany under article 34 no 1 of the Brussels I Regulation (now article 45 (1) (a) Brussels Ibis Regulation) because substantive public policy was infringed.

Speaking frankly, I’m not convinced by the decision. Of course, the text  which the ZDF, according to the Cracow court, had to make as its own statement represented a so-called expression of opinion. Its imposition is not permissible under German constitutional law: requiring the ZDF-television to making this expression its own would have amounted to an infringement of the freedom of speech as guaranteed by article 5 of the Constitution.

However, it corresponds to well settled principles of the recognition of judgments to substitute the operative part of the foreign judgment by a formula which comes close to it. This (positive) option is totally missing in the formalistic judgment of the Federal Civil Court. In this respect I’m wondering why the BGH did not simply order that the operative part of the Polish judgment as such was declared enforceable. My proposed wording of a declaration of enforceability would be drafted as follows: “According to the judgment of the Appellate Court of Krakow the ZDF is required to publish the following decision:…”

This solution would have solved the problem: No constitutional conflict would have arisen and the political issues would have mitigated. Seen from that perspective, the judgment appears as a missed opportunity.

Alpenrind e.a.
Libre circulation des personnes
Un travailleur détaché relève du régime de la sécurité sociale du lieu de travail lorsqu’il remplace un autre travailleur détaché, même si ces travailleurs n’ont pas été détachés par le même employeur

Juliana
SERV
Un véhicule qui n’est pas retiré officiellement de la circulation et qui est apte à circuler doit être couvert par une assurance responsabilité civile automobile même si son propriétaire, qui n’a plus l’intention de le conduire, a choisi de le stationner sur un terrain privé

Sometimes I post a little late. Rarely outrageously overdue. Yet Four Seasons Holdings Inc v Brownlie [2017] UKSC 80 needs to be reported on the blog for it is rather important, firstly, with respect to the topical interest in pursuing holding companies for actions (or lack fo them) committed by affiliated companies. And secondly, for jurisdiction in tort, to what degree jurisdiction on the basis of injury sustained abroad, can qualify as lasting damage in the UK. Findings on the latter issue were obiter therefore they need to be treated with caution.

All five judges issued a judgment, with a 3 to 2 majority eventually holding (again: obiter) that jurisdiction in tort in England against non-England based defendants, can go ahead on the basis of indirect damage – albeit in such cases it might still falter on forum non conveniens grounds.

Sumption J, outvoted on the indirect damage issue, wrote the most lengthy judgment.

I tweeted the ruling mid December. Students of international law will of course appreciate the personal background to the case, particularly if you have ever had the chance to be taught by prof Sir Ian Brownlie – Philippe Sands’ obituary is here.

Sir Ian died in a car ­accident while on holiday with his family in Egypt. His wife was also injured. She brought proceedings seeking: (i) damages for her own personal injuries, (ii) damages under the Law Reform (Miscellaneous Provisions) Act 1934 as Sir Ian’s executrix, and (iii) damages for her bereavement and loss of dependency under the Fatal Accidents Act 1976.

The First Defendant, Four Seasons Holdings Inc (“Holdings”), is the holding company of the Four Seasons hotel group. It is incorporated in British Columbia. The Second Defendant, Nova Park SAE (“Nova Park”) is an Egyptian company which was identified by Lady Brownlie’s solicitors as the owner of the hotel building. The case falls outside the Brussels I Recast Regulation therefore. However reference to Brussels and particularly of course to Rome II is made in the various judgments, for even though the English Courts do not decide jurisdiction on the basis of Brussels, they do have to apply Rome I or II if the suit qualifies as one in contract cq tort.

The Court of Appeal [[2015] EWCA Civ 665] had held that the jurisdictional gateways were not satisfied. There was no contract with Four Seasons Holdings, and given that Holdings was not the owner, there could be no claim in tort for vicarious liability.

David Hart QC has excellent (much more swift) analysis here and I am happy largely to refer. A few points of additional interest.

On the issue of suing holding companies, Sumption J writing at 14 ff dismisses service out of jurisdiction for there is no reasonable possibility of a claim succeeding: at 15:

‘there is no realistic prospect that Lady Brownlie will establish that she contracted with Holdings, or that Holdings will be held vicariously liable for the negligence of the driver of the excursion vehicle.’ That is because (at 14) it is entirely clear ‘that Holdings is a nontrading holding company. It neither owns nor operates the Cairo hotel, which has at all material times been owned by Nova Park, a company with no corporate relationship to any Four Seasons company. A Dutch subsidiary of Holdings called Four Seasons Cairo (Nile Plaza) BV entered into an agreement with Nova Park to operate the hotel on behalf of Nova Park, although at the material times the actual operator was an Egyptian subsidiary of Holdings, FS Cairo (Nile Plaza) LLC, which assumed the contractual obligations of the operator by assignment. Other subsidiaries of Holdings supplied advice and specific services such as sales, marketing, central reservations and procurement, and licensed the use by Nova Park of the Four Seasons Trade Mark’.

Judgment in Brownlie preceded the current cases referred to it on the subject of CSR and jurisdiction (see my previous postings on that, most recently Unilever). Yet it is clear that plaintiffs have to show much more than a corporate bloodline between mother companies and affiliated undertakings, for suits to have any chance of success.

The case could have ended here for all five judges agree on this point. Yet aware of the relevance of direction, discussion was continued obiter on the topic of suing in tort. Firstly it was clear that if a claim in tort could be brought in the English courts, it would be subject to Egyptian law per Article 4(1) Rome II. In the Court of Appeal, Arden LJ had taken analogy with that Article (and the whole Regulation)’s rejection of indirect damage as relevant for deciding lex causae. And of course Rome II’s stance on this point is influenced by the CJEU’s case-law going in the same direction, but then for jurisdiction, in Marinari and the like. Sumption J cites Canadian authority (Stephen Pittel has reference to it here) and is critical of too much emphasis put on a connection between jurisdiction and applicable law, for determining jurisdiction.

Big big pat on his back; readers of the blog know (see eg here) I am not at all enthused by too much analogy between jurisdiction and applicable law).

Sumption at 22

It is undoubtedly convenient for the country of the forum to correspond with that of the proper law. It is also true that both jurisdiction and choice of law can broadly be said to depend on how closely the dispute is connected with a particular country. But there is no necessary connection between the two. The Practice Direction contemplates a wide variety of connecting factors, of which the proper law is only one and that one is relevant only to contractual liabilities. For the purpose of identifying the proper law, “damage” is limited to direct damage because article 4 of Rome II says so in terms. It does this because there can be only one proper law, and the formulation of a common rule for all EU member states necessarily requires a more or less mechanical technique for identifying it. By comparison, indirect damage may be suffered in more than one country and jurisdiction in both English and EU law may subsist in more than one country.

Lady Hale is even more to the point at 49: ‘Applicable law and jurisdiction are two different matters. There is no necessary coincidence between the country with jurisdiction and the country whose law is applicable.‘

Yet for the case at hand ultimately Sumption J does curtail the relevance of indirect damage: at 23:

There is, however, a more fundamental reason for concluding that in the present context “damage” means direct damage. It concerns the nature of the duty broken in a personal injury action and the character of the damage recoverable for the breach. There is a fundamental difference between the damage done to an interest protected by the law, and facts which are merely evidence of the financial value of that damage. Except in limited and carefully circumscribed cases, the law of tort does not protect pecuniary interests as such. It is in general concerned with non-pecuniary interests, such as bodily integrity, physical property and reputation which are inherently entitled to its protection.

At 29 ff follows Sumption’s engagement with relevant CJEU authority, leading him eventually to reject indirect damage as a basis for jurisdiction. That same authority is also discussed by Lady Hale and more succinctly by the others, however they prefer to take the English law on this point in a different direction, particularly taking the CPR (the relevant English civil procedure rules) use of the word ‘damage’ at face value, meaning including indirect damage: residual English PIL therefore not determined by CJEU authority.

As noted in my introduction, even if jurisdiction can be established on the basis of indirect damage in England, forum non conveniens may still scupper jurisdiction eventually.

Geert.

 

One can say many things about climate change litigation by individuals. (See my earlier piece on the Dutch Urgenda case). Many argue that the separation of powers suggest that governments, not judges, should be making climate policy. Or that international environmental law lacks the type of direct effect potentially required for it to be validly invoked by citisens. Others point to the duty of care of Governments; to binding – even if fluffy – climate change obligations taken on since at least the 1990s, and to the utter lack of progress following more than 25 years of international climate change law.

It is therefore no surprise to see that this type of litigation has now also reached the European Court of Justice: the text of the application is here, see also brief legal (by Olivia Featherstone) and Guardian background.

Like cases before it, colleagues shy of preparation materials for an international environmental law course, with comparative EU law thrown in, can use the case to hinge an entire course on.

As Olivia reports, the legal principles involved are the following:

The claimants state that EU emissions leading to climate change are contrary to:

• The principle of equality (Articles 20 and 21, EU Charter)
• The principle of sustainable development (Article 3 TEU, Article 11 TFEU)
• Article 37 EU Charter
• Article 3 UNFCCC
• The no harm principle in international law
• Article 191 ff TFEU (the EU’s environmental policy

One to watch.

Geert.

EU Environmental Law, with Leonie Reins, Edward Elgar, 1st ed. 2017, part I Chapter 2 in particular.

Thank you Pawel Sikora for flagging some time back, and subsequently analysing in detail (p.221 onwards) the decisions of the Polish Courts particularly at Reszow, on whether  arbitrated claims can be secured with a European account preservation order under Regulation 655/2014: not something I recall having been discussed elsewhere before. Article 2(2)(e) of the regulation explicitly states that “it does not apply to arbitration”: Brussels I- aficionados will be familiar with the expression.

The Courts discussed C-391/95 Van Uden in particular, with the Rzeszow Appellate Court holding that an EAPO may be granted for arbitrated claims. Using Van Uden language, in the Court’s view provisional measures such as freezing orders (which must be ordered by the courts in ordinary, not the arbitral panels) are not in principle ancillary to arbitration proceedings, but rather they are ordered in parallel to such proceedings and intended as measures of support.

Some might read in the judgment further encouragement for the EU to consider drafting an EU arbitration Regulation.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Heading 2.2.2.10.2.

Reminiscent of the decision in Yukos v Tomskneft, which concerned recognition of an arbitral award in Ireland even though there were no relevant assets to exercise enforcement against, the Irish Court of Appeal earlier this year in [2018] IECA 46 Albaniabeg v Enel upheld [2016] IEHC 139 Albaniabeg Ambient Sh.p.k. -v- Enel S.p.A. & Anor . (See my tweet below at the time – the case got stuck in my blog queue).

Thank you to Julie Murphy-O’Connor, and Gearóid Carey for flagging the case earlier in the year. The High Court had refused to grant plaintiff, Albaniabeg, liberty to serve out of the jurisdiction to seek to enforce a judgment of an Albanian court in Ireland against the two defendants, ENEL S.p.A. and ENEL Power S.p.A. (“ENEL”). The judgment therefore is ex-EU.

Enforcement proceedings were commenced in New York, The Netherlands, Luxembourg, France and Ireland in relation to the Judgment.  [I have not been able to locate outcome in those cases]. Notably no enforcement proceedings were brought in Italy. Presumably plaintiff’s motif is to obtain enforcement in one Member State, to ease the enforcement paths in other Member States (including Italy).

McDermott J at the High Court refused the application on the basis that the defendants had no assets within the jurisdiction and were not likely to have such assets in the near future. As the judge concluded that the plaintiff did not stand to gain any practical benefits if enforcement proceedings were to be commenced within this jurisdiction, he refused to grant them leave to serve such proceedings out of the jurisdiction on the defendants.

Hogan J at the Court of Appeal upheld. At 59 he notes ‘I should state in passing that it was not suggested that if an Irish court were to grant an order providing for the recognition or enforcement under own rules of private international law of the Albanian judgment, this then would be a “judgment” for the purposes of Article 2(a) of the Brussels Regulation (recast) which could then be enforced in other Member States under the simplified enforcement procedure provided for by Chapter III of that Regulation. As this point was not argued before us, it is not necessary to express any view on it.‘

In my Handbook I suggest such order is not a ‘judgment’ within the meaning of the Brussels I Recast Regulation.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.16.1.1.

 

Enforcement of an ex-EU judgment. Brussels I Recast does not apply. Had the Irish Court recognised: would that judgment be a judgment under the Recast?
Irish Court of Appeal Decision on Enforcement of Foreign Judgment https://t.co/nL3tSUs3It @MathesonLaw

— Geert Van Calster (@GAVClaw) April 3, 2018

I have reported earlier on the action of MNL Capital against the 2015 Belgian Vulture Fund Act (my EN translation here), on which I have a paper here. I then reported on a related action (where MNL were joined by Yukos).

At the end of May the Belgian Constitutional Court, ruling 61/2018, rejected an MNL challenge to the Act, which was based inter alia on an alleged infringement of the Brussels I Recast Regulation: at A.23.2: MNL argued that Belgium cannot across the board reject vulture funds activities (I agree) based on an absolute ordre public argument against them: MNL suggested this entails a one-sided reading of ordre public in favour of foreign entities refusing to honour their debt.

Due in large part to the peculiarities of constitutional review in Belgium, the Court at B.15.4 looked at the argument purely from a non-discrimination point of view: creditors who have obtained a foreign judgment against a State are no better or worse off than those having obtained such ruling from a Belgian court.

In essence therefore the arguments on the basis of EU law are left entirely unanswered.

Geert.

(Handbook of) EU Private International Law, Chapter 2, Heading 2.2.16, Heading 2.2.16.1.4.

Thank you Brick Court and Stewarts, among other, for flagging Vattenfall et al v Prysmian et al in which the High Court dismissed a call for summary judgment on the grounds of lack of jurisdiction.

A classic case of follow-up damages litigation in competition law, here in the high voltage power cables cartel, fines for which were confirmed by the CJEU early July. Core to the case is the application of Article 8(1)’s anchor defendants mechanism. Only two of the defendants are UK incorporated companies – UK subsidiaries of companies that have been found by the European Commission to have infringed EU competition law.

Authority cited includes of course CDC, Roche Nederland and Painer, and Cooper Tyre (sale of the cartelised products can amount to implementation of the cartel). Vattenfall confirms that for the English courts, ‘knowingly implementing’ the cartel has a low threshold.

At 89 ff the Court refers to the pending case of (what I now know to be) C-724/17 Skanska Industrial Solutions e.a.: Finnish Courts are considering the application for cartel damages against parent companies on acquiring cartelist subsidiaries, had dissolved them. Relevance for Vattenfall lies with the issue of knowledge: the Finnish courts wonder what Article 101 TFEU has to say on the degree of knowledge of the cartelist activities, relevant for the liability of the parent company. An application of fraus, or abuse in other words. Elleray DJ however, did not consider the outcome of that reference to be relevant for the case at hand, in its current stage of procedure.

Geert.

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

 

 

Motor insurance cases in Ireland keep on giving the CJEU opportunity to refine and re-emphasise the lack of horizontal direct effect of Directives. This time it is C-122/17 Smith v Meade.

I apologise to the readers if this sounds gobbledygook: [EU law tutorial] in short: one of the issues of the penetration of EU law into national legal orders, is whether individuals can, against other individuals (hence ‘horizontal’ relations), call upon rights given to them by EU ‘secondary’ law (as opposed to primary law, which mainly consists of the Treaties), particularly in the case of Directives, which unlike Regulations require Member States’ implementing measures.

The CJEU’s long-standing case-law answers this question in the negative (Marshall): mostly because it argues that any other conclusion would cancel out the Treaty-sanctioned difference between Regulations and Directives. The Court does do it utmost to assist individuals seeking to rely on EU law against national law: Directives can be called upon against the Member State and ’emanations from the state’ and the latter notion is stretched as much as possible (that was also the issue in Farrell); national law needs to as much as possible be interpreted to reflect the intention of the EU Directive, even if this requires setting aside long-standing interpretation of national law (Marleasing) – but this does not extend to interpretation contra legem (ex multi: Dominguez);  and if all else fails, the State owes its citisens compensation (Frankovich).  [EU law tutorial ends].

In the case at hand, the CJEU recalls all of the above succinctly, and confirms the absence of an overall possibility of relying on a directive in the sphere of relationships between private persons. EU law does not oblige a national court (question to EU institutional law experts: may a Member State ‘gold plate’ and do so anyway, even if this route might be unavailable to individuals in other Member States) to set aside in a horizontal relationship, national provisions that are incompatible with the Directive, and the contractual provisions between private individuals as a result of that national law.

The Irish Court’s referral to Luxembourg may seem odd given the established principles. Yet the Court of Justice does stretch its own case-law on these issues, ever so slowly while sticking to the Marshall principle. As a result national courts feel encouraged to ask the Court just where the boundaries lie.

Geert.

The answer of the Court in full:

EU law, in particular Article 288 TFEU, must be interpreted as meaning that a national court, hearing a dispute between private persons, which finds that it is unable to interpret the provisions of its national law that are contrary to a provision of a directive that satisfies all the conditions required for it to produce direct effect in a manner that is compatible with that provision, is not obliged, solely on the basis of EU law, to disapply those provisions of national law and a clause to be found, as a consequence of those provisions of national law, in an insurance contract.

In a situation such as that at issue in the main proceedings, a party adversely affected by the incompatibility of national law with EU law or a person subrogated to the rights of that party could however rely on the case-law arising from the judgment of 19 November 1991, Francovich and Others (C‑6/90 and C‑9/90, EU:C:1991:428), in order to obtain from the Member State, if justified, compensation for any loss sustained.

 

I have been posting a series of comments in recent weeks, with more on the way, on cases that caught my attention pre-exam period. They were all candidates for exam questions except much as I would want to, I can only subject my students to that many developments in conflict of laws. Another one in this series of ‘overdue’ postings: [2018] EWHC 335 (Comm) Yukos v Merinson. 

From Salter DJ’s summary of the facts: (excuse their length – this is rather necessary to appreciate the decision)

_____________The defendant was employed by the first claimant under a contract of employment governed by Dutch law. Various proceedings were commenced before the Dutch courts by the defendant and entities within the claimant group in relation to the defendant’s employment. The parties reached terms of settlement of those proceedings, which were embodied in a settlement agreement executed by the parties and subject to the exclusive jurisdiction of the Dutch courts. The settlement agreement was in turn approved by the Dutch courts, with the effect that it became a “court settlement” within the meaning of article 2 of Brussels I Recast. Subsequently, upon certain additional facts as to the defendant’s conduct being learnt by the claimants, they brought a claim against the defendant in England, where the defendant was then domiciled, seeking damages for losses allegedly suffered as a result of the defendant’s breach of duties under his employment contract (“the damages claims”) and a declaration that the settlement agreement did not bar the damages claims, alternatively an order that the settlement agreement should be annulled under Dutch law on the grounds of error and/or fraud (“the annulment claims”). The defendant applied for a declaration that the courts of England and Wales had no jurisdiction to try the claims brought and an order that the claim form be set aside, on the grounds that all of the claims fell within the settlement agreement conferring exclusive jurisdiction on the Dutch courts, which therefore had exclusive jurisdiction by operation of Article 25 Brussels I Recast, and (1) in respect of the annulment claims, Article 25 could not be overridden by Articles 20(1) and 22(1) requiring proceedings to be brought in the courts of the state of the defendant’s domicile at the time of issue of the claim form, since those claims were not “matters relating to [an] individual contract of employment” within the meaning of Article 20(1); (2) in respect of all claims, Article 23(1) allowed the rule in Articles 20(1) and 22(1) to be departed from, since the settlement agreement had been entered into after the dispute had arisen; and (3) the settlement agreement being a juridical act of the Dutch courts, the English courts were precluded by Article 52 from reviewing its substance in respect of the annulment claims and, the settlement agreement also being a court settlement, the English courts were required by Articles 58 and 59 to recognise and enforce it unless it was manifestly contrary to public policy._______________

All in all, plenty of issues here, and as Salter DJ was correctly reassured by counsel for the various parties, not any that the CJEU has had the opportunity to rule on. Four issues were considered:

1. Are the Damages Claims and/or the Annulment Claims “matters relating to [an] individual contract of employment” within the meaning of Article 20(1)?>>>Salter DJ’s Answer: 25 ff: YES. His main argument: the Settlement Agreement set out the terms on which Mr Merinson’s contract of employment came to an end. In so doing, it also varied the terms of that contract of employment. The terms of the Settlement Agreement now form part of the contractual terms on which Mr Merinson was employed, and which govern the rights and liabilities arising out of the employment relationship between him and the Yukos Group. In my view this finding should not have been made without considering the lex causae of the employment contract: Rome I in my view should have been engaged here.

2. If so, is the Settlement Agreement “an agreement .. entered into after the dispute has arisen” within the meaning of Article 23(1)?>>>Answer (on the basis of extensive reference to Brussels Convention and Regulation scholarship):  a dispute will have “arisen” for the purposes of these Articles only if two conditions are satisfied: (a) the parties must have disagreed upon a specific point; and (b) legal proceedings in relation to that disagreement must be imminent or contemplated. Salter DJ correctly emphasises the protective policy which underlies these provisions, however I am not confident he takes that to the right conclusion. Common view on the protective regime is that when parties have had the privilege of legal advice, they can be assumed to have been properly informed: the position of relative weakness falls away.

3. Further, is the English court, in any event, precluded from entertaining the Annulment Claims by Chapter IV of the Recast Judgments Regulation? >>>The issue of court settlements was specifically considered in the Brussels Convention, and the Jenard Report, given their importance in Dutch and German practice. In C-414/92 Solo Kleinmotoren the CJEU (at 17) held ‘to be classified as a “judgment” within the meaning of the Convention, the act must be that of the court belonging to a Contracting State and ruling on its own authority on points in dispute between the parties.’: considering Dutch expert evidence on the issue, the decision here is that despite the limited authority under Title III Brussels I Recast for other Courts to refuse to recognise a court settlement (ordre public in essence), it is not a ‘judgment’. Salter DJ concludes on this point that normal jurisdictional rules to challenge the settlement apply. At 81 he suggests, provisionally, that ‘it would nevertheless be open to this court in those circumstances to case manage the enforcement application and the set-aside action, so that they are dealt with together, the result of the action determining the enforcement application. Fortunately, I am not required to wrestle with those practical complexities in order to determine the present application, and I make no decision one way or another on any of these matters. There is no application before me to enforce the Dutch Court Settlement, merely an application for a declaration that the court “has no jurisdiction to try the Claimants’ claims”.‘

This insight into the case-management side of things, however, does highlight the fact that the findings on the jurisdiction /enforcement interface appear counterintuitive. Particularly in cases where the English courts would not have jurisdiction viz the settlement, but would be asked to enforce it – which they can only refuse on ordre public grounds, the solution reached would not work out at all in practice.

4. And finally what are the consequences, as regards jurisdiction, of the decisions on the first three of these issues?>>>Held: the English court, as the court of the Member State in which Mr Merinson was domiciled at the date this action was commenced, has jurisdiction in relation to all of the claims made in the present action.

There is much more to be said on each of the arguments – but I must not turn the blog into a second Handbook, I suppose.

Geert.

 

 

Thank you Brodies for flagging [2018] CSOH 25 George Docherty et al a while ago – I was not sure whether I might use the case for exam purposes. C-350/14 Lazar was among the precedents cited by  Lord Tyre to decide the application ratione temporis of the Rome II Regulation.

Article 31 Rome II states that the Regulation applies to “events giving rise to damage which occur after its entry into force”. The date of entry into force, according to article 32, was 11 January 2009. The reference in article 31 to “events giving rise to damage” is not necessarily easy to determine. Lord Tyre at 31 clarifies things by suggesting the Article is ‘clearly linked to the distinction drawn in article 4(1) between three separate concepts, namely (i) the event giving rise to the damage; (ii) the damage; and (iii) the indirect consequences of the event. In the present case, the damage consisted of the deceased’s illness and death. The indirect consequences are the losses suffered by the deceased’s relatives. The event giving rise to all of this was exposure to asbestos’: this occurred before the entry into force of the Regulation.

Had it occurred after, the Court would have applied Rome II for the UK has opted to apply the Regulation’s Article 25(2) provision for Member States with internal conflicts of laws, to apply the Regulation to these conflicts: The Law Applicable to Non-Contractual Obligations (Scotland) Regulations 2008 (SI 2008/404) provide (reg 3) that the Regulation shall apply in the case of conflicts between the laws of different parts of the UK as it applies in the case of conflicts between the laws of other countries. SI 2008/2986 contains an equivalent provision for England, Wales and Northern Ireland.

Accordingly what the applicable law would be under the Regulation is not addressed, neither is the pursuers’ submission that any choice of English law by virtue of article 4(1) should be displaced by applying article 4(3) and holding that the delict is manifestly more closely connected with Scotland.

Residual conflict of laws applies and at 17 ff the judge applies pre-1995 common law, leading to the lex loci delicti. However these rules do not provide a clear identification of the lex loci delicti where the harmful event occurs in one jurisdiction (Scotland) but the harm, consisting of physical injury, occurs in another (England). Reviewing authority, Lord Tyre eventually holds (at 23) that the presence of asbestos dust in an employee’s lungs does not of itself constitute injury, and (subject to the Scottish statutory provisions regarding pleural plaques) no cause of action arising out of negligent exposure arises until it does. At 24:  since injury is an essential ingredient of an actionable wrong, and since injury obviously cannot take place until after the breach of duty has occurred, the place of the harmful event (or locus delicti) is where the injury takes place and not, if different, where the antecedent negligent act or omission occurred.

Conclusion: lex causae is English law. The case is a good illustration of the difficulties that remain in applying what seem prima facie fairly understandable concepts to the average lawyer.

Geert

A post more meant to refer the readers to resources rather than to add much analysis myself. I have of course earlier posted on the ‘Hague Judgments Convention’. Things have not stood still since.

A first interesting resource is the April 2018 study prepared for the European Parliament. I am pleased the stellar team of colleagues who compiled the study, although overall (in my view a tad too) optimistic on the project, did not whitewash the difficulties involved in the process. The additional layer of complexity, were the EU to accede to the eventual (if any) Convention, was highlighted as a cause for concern.

Next up, the May 2018 documents published on the HCCH gateway, including a new draft Convention and a preliminary draft explanatory report. Each and every one of the articles of the Draft can be the subject of very extensive analysis indeed – one need only look at the Chapters on jurisdiction in the books on EU private international law, to appreciate the level of complexity; and of course the every so slight or not so slight differences between the ‘Brussels regime’ and the ‘Hague process’. I trust one or two of my colleagues are devoting their summer writing up just such an analysis.

The process is to be continued for we are not there just yet.

Geert.

 

Does a Member State have any obligation at all, either generally or in case-specific circumstances, to provide guidance as to when a product derived from Waste lubricating oil – ‘WLO’ has or has not achieved end-of-waste status through either re-refining or reprocessing? And in the case at issue, was the UK’s Environment Agency correct in its classification of the treated WLO as still being waste, specifically: did the Agency unfairly favour waste oils recovery over material recycling?  These were the issues in [2018] EWHC 1983 (Admin) Protreat v Environment Agency in which Williams J evidently looked primarily to EU Waste law, the Waste Framework Directive 2008/98 in particular.

Among the many points of factual discussion is a review of the Member States’ duties under the Waste hierarchy: Protreat argue (at 67) that the Environment Agency, ‘as an emanation of the State, is under a duty proactively to direct its resources and use its powers to seek to ensure the result required by the Waste Directive. It is submitted, too, that the result required includes “the management of waste in accordance with the waste hierarchy set out in Article 4 of the Waste Directive”. According to the Claimant, this requires the Defendant to perform its functions, so far as possible, to ensure that waste oil treatments higher in the waste hierarchy “are more attractive than treatments lower in the hierarchy”‘.

Williams J is entirely correct at para 71 ff to hold that the hierarchy does not imply that its strict application in all circumstances is not always justified: indeed the hierarchy instruct first and foremost the best environmental outcome in specific circumstances.

That in and of itself makes regulatory guidance difficult to issue – and EU law in general does not impose any obligation to do so: at 81: ‘the terms of Article 6 and, in particular, paragraph 4 thereof, do not support the contention that the Directive imposes upon Member States a specific obligation to provide end-of-waste guidance whether in relation to the products of re-refining or the products of any other process of conversion of waste. The power to decide end-of-waste status “case by case in accordance with the case-law” would, no doubt, permit a regulator to issue guidance. I am not persuaded, however, that this language can be the vehicle for the creation of a specific obligation to issue guidance.’ (Sir Wyn also referred to Article 4 and Article 21 to support that analysis).

Reference to Luxembourg was requested but declined.

Geert.

 

R O
Espace de liberté, sécurité et justice
Selon l’avocat général Spuznar, la décision du RoyaumeUni de quitter l’Union européenne de doit pas avoir d’incidence sur l’exécution d’un mandat d’arrêt européen qu’il a émis

Renckhoff
Liberté d'établissement
La mise en ligne sur un site Internet d’une photographie librement accessible sur un autre site Internet avec l’autorisation de l’auteur nécessite une nouvelle autorisation de cet auteur

When is a court ‘seized’ under EU civil procedure /private international law? The question is highly relevant in light of the application of the lis alibi pendens principle: the court seized second in principle has to cede to the court seized first. Williams J in [2018] EWHC 2035 (Fam) Gondrom v Gondrom notes the limited attempt at harmonisation under EU law and hence the need for the lex fori to complete the procedural jigsaw. [Please note whan I wrote the post, the judgment was up on BAILII – but when I posted it it was no longer so included – I hope it is back up by the time readers see this post].

On 8 July 2016 Mrs Gondrom issued a divorce petition out of the Bury St Edmunds Divorce Unit seeking a divorce from Mr Gondrom). On 16 August 2016 the husband issued a divorce petition against the wife out of the Munich Family Court. On the 22 August 2016 the husband filed an acknowledgement of service to the wife’s petition asserting that the German court was first seized because it was ‘not accepted England is first seized, owing to failures to comply with art. 16 and 19 of Council Regulation (EC 2201/2003) and relevant articles of the EC Service Regulation (EC 1393/2007).

At issue were two considerations: whether seizure of the English courts had been effected; and whether the wife’s issuing of the petition on 8 July 2016 an abuse of process on the basis that the wife did not at that time consider the marriage to have irretrievably broken down but was issuing a petition simply to secure the English jurisdiction in the event that a divorce was needed? This latter element amounts to disciplining a form of fraus, on which I have reported before – eg here that there is very little EU law.

In Regulation ‘Brussels IIa’ (2201/2003) – concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, as in the other Regulations, ‘seising of a Court’ is defined as:

1. A court shall be deemed to be seised: 

(a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent;

or

(b) if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the applicant has not subsequently failed to take the steps he was required to take to have the document lodged with the court.

These ‘steps required’ are not further defined under EU law and hence rest with national law. Under relevant English law, Williams J held that the husband was aware of the wife’s petition before it was validly served on him, and that this was enough for the English courts to have been validly seized.

Geert.