Flux européens

Bobek AG opined about a little while ago in C-27/17 flyLAL. (Readers may also find my recent posting on NBK useful, re Article 7(5)).

AB flyLAL — Lithuanian Airlines (‘flyLAL’) operated flights from Vilnius airport in Lithuania until it was put into liquidation. According to flyLAL, its demise was caused by predatory (that is, below cost) pricing by the Latvian airline Air Baltic Corporation A/S (‘Air Baltic’). That predatory pricing was, it is alleged, part of an anticompetitive strategy agreed between Air Baltic and the operator of Starptautiskā lidosta Rīga (Riga international airport in Latvia, ‘Riga Airport’). Thus, Riga Airport and Air Baltic agreed to drastically reduce the prices paid by Air Baltic for services at Riga airport. The savings were then used by Air Baltic to finance the predatory pricing that drove flyLAL out of the market in Vilnius, Lithuania.

Can Air Baltic and Riga Airport for damages before the courts in Vilnius? The national court and parties refer to three alleged infringements of competition law: (i) abuse of dominance consisting in the system of reductions implemented by Riga Airport; (ii) an anticompetitive agreement between Riga Airport and Air Baltic; and (iii) abuse of dominance in the form of predatory pricing by Air Baltic. Those infringements, it is argued, were interrelated, forming part of a strategy to oust flyLAL from the market in Vilnius and move passengers to Riga airport to the benefit of both Riga Airport and Air Baltic.

There is a lot in the Opinion – among others because as the AG points out, the referring court’s description of the alleged infringement of competition law is not entirely clear. Bobek therefore sets out a set of variables. The Court itself is bound not to distinguish among quite so many. Of note are the AG’s suggestions

• that locus damni here is not place of financial loss, rather the place within the markets affected by the competition law infringement where the claimant alleges loss of sales.That suggestion in my view is helpful for neither the Regulation’s aim of predictability, nor the protection of those damaged by infringement of competition law (the latter not however a stated aim of the Regulation). Put differently: damage located in a Mozaik fashion assists the tortfeasor. The Advocate General reaches this conclusion after a thorough revisit of the initial Bier judgment (and Capotorti AG’s Opinion in same), ditto Marinari and Dumez France. Yet the continuing need to conceptualise the Court’s Bier rule illustrates again in my view the mistake made in that original judgment, to introduce a forum damni despite the utter lack of textual support for same.
• for locus delicti commissi with full jurisdiction, the AG distinguishes between Article 101 TFEU (as regards the alleged anticompetitive agreement between Air Baltic and Riga Airport, the place of the event giving rise to the harm (that is, the loss of sales by flyLAL), is the place of the conclusion of the agreement) and 102 TFEU (alleged predatory pricing by Air Baltic, the place of the event giving rise to the harm is the place where the predatory prices were offered and applied).  With respect to Article 101 TFEU, Bobek AG suggests this is identical to the Court’s judgment in CDC . I am not too sure but I am biased. As I noted above, in my view the Court should steer clear of an application of Article 7(2) which allows those infringing competition law to forum shop by manipulating the place of decision-making. In CDC the Court held that ‘the identification, in the jurisdiction of the court seised of the matter, of a specific event during which either that cartel was definitively concluded or one agreement in particular was made which was the sole causal event giving rise to the loss allegedly inflicted on a buyer’ cannot be ruled out. That implies that in other cases the identification of such singular event can be ruled out and that many places may be consider locus delicti commissi.  
• finally with respect to (now) Article 7(5), the activities of a branch. The AG does not specify what must be meant by a ‘branch’ – for the national court has already concluded there is such branch. The Advocate General here is perhaps unusually deferential to the factual finding. Whether there is a sufficient nexus between the activities of the branch and the dispute, in the case of tort-based claims requires the branch participate in at least some of the actions constituting the tort (at 137). Offering the fixed prices or otherwise having been instrumental in concluding contracts for services at those prices suffices. In such cases, the branch has again participated in the commission of an act that constitutes a necessary precondition for the abuse (at 142).

A lengthy opinion. And it all started with the fairly straightforward facts of Bier…

Geert.

(Handbook of) EU private international law), 2nd ed. 2016, Chapter 2, Heading 2.2.11.2

 

 

 

 

Once in a while I post on State Immunity, one of my favourites sub-themes in same being waiver of immunity, whether by contractual provision or following submission. [2018] EWHC 385 (Comm) certain underwriters at Lloyds et al v Syrian Arabic Republic et al is a good illustration of the latter. How does one serve a state which is evidently in times of political unrest? And has that State submitted to jurisdiction hence waived immunity?

Claimants’ claim in the United States District Court arose from the 1985 hijacking of EgyptAir flight 648 and the loss to which that gave rise.  Adam Johnson and colleagues at Herbert Smith alerted me to the case and their review is excellent. Henshaw J held the former issue (service) very practically: DHL evidence of documents having been delivered to the relevant ministry suffices, even if acceptance of the documents is refused.

Assessment of submission was relevant for there is no Treaty between the US and the UK on recognition and enforcement – hence common law applies. In the absence of any Convention or other instrument for mutual recognition of judgments, a foreign judgment in personam can be recognised only if it was delivered by a court which had jurisdiction according to English private international law.  That means that the defendant must either have (i) been present in the foreign jurisdiction when proceedings were commenced, (ii) claimed or counterclaimed in those proceedings, (iii) previously agreed to submit to the jurisdiction, or (iv) voluntarily have submitted himself to the overseas court’s jurisdiction (see Rubin and another v Eurofinance SA [2013] 1 AC 236 § 7).

In the present case (i)-(iii) do not apply, so Claimants must show that the Defendants submitted to the US court’s jurisdiction. Which Henshaw J held they had. Of particular note for this blog is that he (at 59) rejects much authority for CJEU precedent, particularly C-150/80 Elefanten Schuh, held under the Brussels Convention. Even if Elefanten Schuh were to apply, Henshaw J does not believe it would have led to a different outcome. At 66 follows an extensive list of arguments leading to a conclusion of submission, with particular emphasis on Notices of Appeal, each of which included a merit-based objection to the judgment appealed from but contained no assertion that the US courts lacked jurisdiction by reason of, or that the claims were barred by, sovereign immunity.  The simple fact is that Syria at no stage made any such challenge, save very late in the process.

The judgment therefore is interesting firstly for its discussion of CJEU weight in residual conflict of laws; secondly for the Court’s view on submission and sovereign immunity – in my view very much the right one.

Geert.

 

In [2018] EWHC 887 (Comm) Bankas Snoras v Antonov et al, Eggers DJ considers the extent of the typical undertaking by party having obtained a worldwide freezing order, to seek permission from the English court before enforcing the order outside England and Wales or seeking an order “of a similar nature”. The need for permission underlines the appreciation of the English courts that worldwide freezing orders require some careful handling viz third States.

I am happy to refer to RPC‘s analysis for the general issues. I just wanted to turn the attention of readers of this blog to para 65 of the judgment, which considers lis alibi pendens. The claims in England (based on Article 4 Brussels I Recast – domicile of the defendants) are not the only ones that have been introduced: Lithuanian courts are engaged, too. ‘The English Civil Claim is for the in personam remedy of compensation against Mr Antonov and Mr Baranauskas arising out of an alleged breach of their duties as directors, officers or shareholders of Snoras. By contrast, the Lithuanian Civil Claim is not based on alleged breaches of directors’ duties. Instead, there are two bases of claim in the Lithuanian Civil Claim, namely (1) a claim for in personam relief under the law of unjust enrichment because there was no commercial justification for the various transactions, seeking the reversal of that unjust enrichment; and (2) a claim for a declaration that the various transfer instructions were null and void and that Snoras remains the beneficial owner of the relevant assets; this is said to be a claim for an in rem (or proprietorial) remedy.’ (at 25)

There is partial overlap, nevertheless; it is also clear that the different formulation of the Lithuanian claims is to make them lis alibi pendens-proof. Nevertheless, Eggers DJ holds that the fact remains that there are differences in the formulation of the causes of action underlying the two sets of proceedings and, in addition, the Lithuanian Civil Claim seeks proprietary relief, as well as in personam relief. Article 29 Brussels I Recast is not mentioned but it is this article and analysis of same which is engaged.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Heading 2.2.14.

Esso Raffinage / ECHA
SANT
Dans le cadre de l’appréciation de la conformité des dossiers d’enregistrement d’une substance chimique au regard du règlement REACH, l’Agence européenne des produits chimiques doit s’en tenir aux procédures prévues par le règlement

K.A. e.a.
Justice et Affaires intérieures
Les demandes de regroupement familial doivent être prises en compte même si le ressortissant d’un pays non-UE, membre de la famille d’un citoyen de l’UE n’ayant jamais exercé sa liberté de circulation, est frappé par une interdiction d’entrée sur le territoire

Čepelnik
Liberté d'établissement
L’avocat général Wahl propose à la Cour de juger qu’une législation nationale imposant au destinataire d’un service de constituer une caution afin de garantir une amende qui pourrait être infligée au prestataire du service établi dans un autre État membre pour violation de la réglementation nationale du travail est contraire au droit de l’Union

In BDO Cayman v Argyle Funds, reported  by Harneys, the Grand Court of the Cayman Islands followed English and Australian authority in having an anti-suit injunction followed by a cost order against the party that had infringed choice of court. Costs including not just the domestic proceedings (that would be obvious) but also the foreign proceedings (here: in the US).

It is this type of measure which makes jurisdictions stand out and be noticed in civil procedure regulatory competition – not, as I flagged earlier, half-baked attempts to add some gloss via international business courts.

Geert.

 

I have flagged once or twice that the blog is a touch behind on reporting – I hope to be on top soon.

I blogged a little while ago that the Brussels Court of Appeal had sided with Facebook in their appeal against the Court of first instance’s finding of Belgian jurisdiction. I had earlier argued that the latter was wrong. These earlier skirmishes were in interim proceedings. Then, in February, the Court of First instance, unsurprisingly, reinstated its earlier finding, this time with a bit more substantial flesh to the bone.

First, a bit of Belgian surrealism. In an interlocutory ruling the court had requested FB to produce full copy of the Court of Appeal’s judgment upon which it relied for some of its arguments. Perhaps given the appalling state of reporting of Belgian case-law, this finding should not surprise. Yet it remains an absurd notion that parties should produce copies at all of Belgian judgments, not in the least copies of a Court of Appeal which is literally one floor up from the Court of first instance.

Now to the judgment. The court first of all confirms that the case does not relate to private international law for the privacy commission acts iure imperii (I summarise). Then follows a very lengthy and exhaustive analysis of Belgium’s jurisdiction on the basis of public international law. Particularly given the excellent input of a number of my public international law colleagues, this part of the judgment is academically interesting nay exciting – but also entirely superfluous. For any Belgian jurisdiction grounded in public international law surely is now exhausted regulated by European law, Directive 95/46 in particular.

In finally reviewing the application of that Directive, and inevitably of course with reference to Weltimmo etc. the Court essentially assesses whether Facebook Belgium (the jurisdictional anchor) carries out activities beyond mere representation vis-a-vis the EU institutions, and finds that it does carry out commercial activities directed at Belgian users. That of course is a factual finding which requires au faitness which the employees’ activities.

Judgment is being appealed by Facebook – rightly so I believe. Of note is also that once the GDPR applies, exclusive Irish jurisdiction is clear.

Geert.

 

 

 

Abel e.a. / Commission
Le Tribunal de l’UE rejette l’action en indemnité engagée par près de 1 500 personnes suite à l’adoption par la Commission d’un règlement de 2016 sur les émissions polluantes des véhicules

A short post (my diary is clearing up ever so slightly – I may finally have time for a proper cuddle of the blog next week onwards) to flag my Rotterdam colleague prof Xandra Kramer’s conference on International business courts, on 10 July.

I unfortunately am already expected elsewhere hence I will not be able to ask this question in person, hence here’s one for someone else out there to ask: why are all these States busying themselves touting ad hoc special courts – when what they really ought to be doing is making their civil procedure system as a whole more attractive? : for surely it is not only the English language that attracts litigation to London.

A conference warmly recommended!

Geert.

 

Ministerio Fiscal
DFON
L’avocat général Saugmandsgaard Øe propose à la Cour de déclarer que même les infractions pénales qui ne sont pas d’une particulière gravité peuvent justifier un accès aux métadonnées de base des communications électroniques pourvu que cet accès ne porte pas une atteinte grave à la vie privée

OTP Bank et OTP Faktoring
Environnement et consommateurs
Selon l’avocat général Tanchev, une mesure législative adoptée par un État membre en réponse à un arrêt de la Cour de justice concernant le caractère abusif de clauses contractuelles non claires peut faire l’objet d’un contrôle juridictionnel

K.
Citoyenneté européenne
La nécessité d’une restriction de la liberté de circulation et de séjour d’un citoyen de l’Union ou d’un membre de sa famille, soupçonné d’avoir participé, dans le passé, à des crimes de guerre, doit être évaluée au cas par cas

For background to this week’s SCOTUS ruling in  Jesner v Arab Bank see my earlier posting. Bastian Brunk has early reflection here, with good summary of the Court’s majority (as well as dissenting) opinion.

Human rights litigation under ATS is not dead. Yet it is clear it is not going to be routine, either. I find the judgment not surprising. While one could certainly from a political point of view bemoan that ATS is not providing the avenue to hold corporate excess to account,  SCOTUS have a point when

• they emphasise the foreign policy intentions of the ATS when it was originally drafted. Hence the need not to ignore the same foreign policy implications 2 centuries on. Hence also my stance on JASTA.
• they highlight the continuing de lega lata situation on corporate culpability under international law: the default position remains that corporations are not subjects of public international law. Yes there are hard-core exceptions – and these may be further developing. And yes, plenty over the past 20 years have tried to  change that status quo. Finally the Court could have flagged more of those attempts that raise serious doubt over the position. However it is hardly the role of the US Supreme Court single-handedly to force the hand of the league of nations.
• separation of powers in the US, too, demands Congress intervene should it want the Statute’s causes of action to be broadened.

All in all a ruling very much in Montesquieu’s spirit. Students of public international law in particular should read the judgment with care: there is plenty in there to chew over.

Geert.

(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 8, Heading 8.2.

Positive harmonisation follow-up ia to Polbud – my review of which here https://bit.ly/2Jyxzob

Corporate Finance Lab

Yesterday, the European Commission launched two proposals for new rules on the cross-border mobility and digital registration of companies. The rules are intended to make it easier for companies to merge, divide or move within the European Union, as well as to prevent social dumping, tax evasion and other forms of abuse.

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Messi Cuccittini / EUIPO - J-M.-E.V. e hijos (MESSI)
Propriété intellectuelle et industrielle
Lionel Messi peut enregistrer sa marque « MESSI » pour des articles et des vêtements de sport

ANGED
Liberté d'établissement
Les impôts régionaux qui grèvent en Espagne les grands établissements commerciaux sont compatibles avec le droit de l’Union

Senetic / EUIPO - HP Hewlett Packard Group (hp)
Propriété intellectuelle et industrielle
Hewlett Packard peut enregistrer les lettres HP comme marque de l’Union

Caisse régionale de crédit agricole mutuel Alpes Provence / BCE
Politique économique
Le Tribunal de l’UE déclare qu’une même personne ne peut pas occuper à la fois le poste de président du conseil d’administration et de « dirigeant effectif » dans les établissements de crédit soumis à la surveillance prudentielle

MP
Espace de liberté, sécurité et justice
Une victime de tortures passées dans son pays d’origine peut bénéficier de la « protection subsidiaire » si elle encourt un risque réel de privation intentionnelle de soins adaptés à son état de santé physique ou mentale dans ce pays