Flux européens

MP
Espace de liberté, sécurité et justice
Selon l’avocat général Bot, l’inexistence de traitements psychologiques appropriés dans le pays d’origine d’une personne qui y a été torturée par le passé ne suffit pas pour que cette personne puisse revendiquer la protection subsidiaire

B
Citoyenneté européenne
Selon l’avocat général Szpunar, l’acquisition d’un droit de séjour permanent est une condition préalable pour qu’un citoyen de l’Union puisse bénéficier de la protection renforcée contre l’éloignement

In [2017] EWHC 2401 (Comm) Team Y&R v Ghossoub, Laurence Rabinowitz QC discussed a number of issues, most particularly anti-suit in the context of an exclusive jurisdictional clause (anti-suit not granted). He summarised the applications as follows:

‘The first application, brought by the claimants to the anti-suit claim, is for an interim injunction seeking to restrain Mr Ghossoub, the defendant to those proceedings, from pursuing related proceedings commenced by him in Hong Kong against four of those claimants until the trial of the anti-suit claim. The second application, brought by Mr Ghossoub as defendant to the anti-suit claim, seeks to set aside two orders made by the Court related to service on him of the anti-suit claim. The first, made by Phillips J dated 20 May 2015, granted permission to serve the anti-suit claim out of the jurisdiction. The second, made by HHJ Waksman QC sitting as a High Court judge dated 8 September 2016, granted permission to serve the claim form and other documents by an alternative method of service. The third application, brought by Mr Ghossoub as defendant to the defaulting shareholder claim, in effect mirrors his application in the anti-suit claim to set aside the service out and service by an alternative method orders.’

Anti-suit would be aimed at courts ex-EU hence the Brussels I antimony against them (per Gasser, among others) does not apply. Incidentally, I do not think that necessarily needs to exclude any EU /CJEU grip on the substantive issue at all: in the current, Recast Regulation, neither party needs to be domiciled in the EU for choice of court to be made in favour of a court established in the EU. This does create an EU interest in the issue of third-party impact of choice of court, and consequently on the use of anti-suit to support or reject such impact.

Now, at para 78 ff Mr Rabinowitz considers the issue of third parties. Not at issue is whether choice of court is binding upon, or may be invoked by such parties (in EU law considered eg in Refcomp, Profit Sim, Assens Havn, Leventis). Rather, whether an exclusive jurisdiction clause should be understood to oblige a contractual party to bring claims relating to the contract in the chosen forum even if the claim is one against a non-contracting party. This would support the idea of ‘one-stop shopping’ which is prevalent eg in English law albeit mostly vis-a-vis the various litigious relations between two and the same parties.

One can see merit in obliging parties bound by choice of court, to bring all related claims to one and the same court. Except of course, as Mr Rabinowitz points out, third parties are quite likely to be in a position to be able to bring the case before a different court, thus putting the contractual party at a disadvantage; moreover, even if the contractual party does bring the claim to the courts at England, these may not in fact have jurisdiction: in such circumstances, insisting on third-party proceedings to be brought before the English courts becomes silly. (My words, not Mr Rabinowitz’).

Taking these and also the entire contractual context into account, the High Court holds that choice of court in the contract at issue does not extend to claims against non-contracting third parties, and dismisses anti-suit.

Take your time to read the judgment: it gives very good context to what to some might seem like a very awkward starting point.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.9.

 

I reviewed the High Court’s decision in Lungowe here. The Court of Appeal has now confirmed jurisdiction against the non-UK based defendants on largely the same, if slightly more structured and expanded arguments as the High Court.  (Per Owusu, jurisdiction against the UK-based defendant is undeniable; the non-UK defendants need to be joined on the basis of residual English conflicts law).

Ekaterina Aristova has analysis of Simon LJ’s leading judgment here – I am happy to refer. Of particular note is the much more reserved approach of the Court of Appeal on the merits issue of the claim. As I noted in my review of Okpabi v Shell at the High Court, in that case Fraser J looked in serious detail into the issue of merits: not, I believe, justified at the jurisdictional stage. Appeal against Fraser J’s finding will be heard by the Court of Appeal.

Geert.

European private international law, second ed. 2016, Chapter 8, Headings 8.3.1.1., 8.3.2

Yanukovych / Conseil
Relations extérieures
La Cour confirme le gel de fonds de M. Viktor Yanukovych, ancien président de l’Ukraine, et de son fils Oleksandr pour la période allant du 6 mars 2015 au 6 mars 2016

Istanbul Lojistik
Transport
La taxe hongroise sur les véhicules automobiles n’est pas compatible avec l’accord d’association CEE-Turquie

When the ‘Bolkestein’ Directive on the free movement of services was eventually adopted some years back, some of us referred to it as the ‘hairdressers’ Directive (no disrespect): the scope of application was so narrowed down that few professions seemed still to be covered by it. Similarly, the EU’s Succession Regulation Member States wanted to ensure that the recognition and enforcement of rules on succession /estate would not upset national property law on rules held dear, such as numerus clausus. The Regulation to that effect excludes from its scope of application ‘the nature of rights in rem; and any recording in a register of rights in immoveable or moveable property, including the legal requirements for such recording, and the effects of recording or failing to record such rights in a register.’

In C-218/16 Kubicka the Court of Justice held last week. Ms Kubicka wishes to include in her will a legacy ‘by vindication’, which is allowed by Polish law, in favour of her husband, concerning her share of ownership of the jointly-owned immovable property in Frankfurt an der Oder. She wishes to leave the remainder of the assets that comprise her estate in accordance with the statutory order of inheritance, whereby her husband and children would inherit it in equal shares.  She expressly ruled out recourse to an ordinary legacy (legacy ‘by damnation’), as provided for by Article 968 of the Civil Code, since such a legacy would entail difficulties in relation to the representation of her minor children, who will inherit, as well as additional costs. A notary’s assistant refused to draw up a will containing the legacy ‘by vindication’ stipulated by Aleksandra Kubicka on the ground that creation of a will containing such a legacy is contrary to German legislation and case-law relating to rights in rem and land registration.

In the present case, both the legacy ‘by vindication’, provided for by Polish law and the legacy ‘by damnation’, provided for by German law, constitute methods of transfer of ownership of an asset, namely a right in rem that is recognised in both of the legal systems concerned. Therefore, the direct transfer of a property right by means of a legacy ‘by vindication’ concerns only the arrangement by which that right in rem is transferred at the time of the testator’s death. It is not covered by the exception.

Member States and practitioners who suggested an interpretation of the exception beyond its limited scope, were therefore rebuffed. That is a good thing. Property law often for no apparent reason is considered immune from conflict of laws, both in terms of jurisdiction and applicable law. The CJEU’s judgment in Kubicka puts a hold to too wide an interpretation of the rei sitae exception.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 6, Heading 6.2.2.1.

Une réglementation qui prévoit, en tant que critère d’admission à l’école de police, une taille physique minimale indépendamment du sexe peut constituer une discrimination illicite envers les femmes
Une réglementation qui prévoit, en tant que critère d’admission à l’école de police, une taille physique minimale indépendamment du sexe peut constituer une discrimination illicite envers les femmes

Susan Finder has an absolutely indispensable post on two recent initiatives over at the Chinese Supreme Court.

Firstly, the Supreme People’s Court is working on a judicial interpretation of the rules on recognition and enforcement of civil and commercial judgments. This follows the first such recognition from a judgment originating in the United States, Liu Li v. Tao Li and Tong Wu (2015) Yue Wuhan Zhong Min Shang Wai Chu Zi No.00026 – see professor Clarke’s review here. The recent conference at Wuhan which I reported on at my Twitter feed, shows the intensity of engagement of China with the Hague Judgments project.

Next, the SPC is engaging with a multitude of stakeholders to consider setting-up specialist mediation centres, with the examples of Dubai’s DIFC and Singapore’s ICC in mind, to smoothen the participation of foreign governments and companies in China’s Belt and Road initiative. Susan has great review of the implications of same.

Don’t forget to look to the East: Exciting stuff happening there.

Geert.

 

I reported on Sharpston AG’s Opinion in C-413/15 Farrell just before the summer break. The case considers the C-188/89 Foster criteria on what constitutes an ’emanation from the state’, for Directives to potentially have direct effect in individuals’ relations with that body. The CJEU held last week, in Grand Chamber, and decided the criteria apply disjunctively, not conjunctively. It is sufficient that the private body concerned have special powers beyond those which result from the normal rules applicable to relations between individuals; it need not, additionally, be a body under control of the State.

The Irish legislature conferred on the MIBI (Motor Insurance Bureau of Ireland) special powers beyond those which result from the normal rules applicable to relations between individuals, in that, on the basis of that statutory provision, that private organisation has the power to require all those insurers to become members of it and to contribute funds for the performance of the task conferred on it by the Irish State.

A further and important piece in the jigsaw that is direct effect. Next up no doubt: what exactly are the boundaries of ‘special powers’. Conflicts lawyers may recognise some of the discussions surrounding ‘civil and commercial’.

Geert.

 

Thank you Jeffrey Neuburger for flagging Wiseley v Amazon. Jeffrey has excellent overview and analysis so I will suffice with identifying a few tags: the issue of click-wrap agreements (when does one agree to GTCs contained in pop-ups and hyperlinks and the like); application of a putable law to a contract (the von Munchausen or ‘bootstrap’ principle); comparative dispute resolution law: how would EU law look at the issues? Have fun.

Geert.

 

I do not habitually report on the week ahead at the CJEU. I do frequently tweet and Link one specific cases where a Hearing or Opinion AG is planned. This week however offers a great tableau of core issues of EU law: one could hinge an entire course simply on the cases this week: thank you Stefaan Van der Jeught for collating:

C-409/16 Kalliri considers minimum height requirements for police officers: acceptable discrimination? (Judgment WED). C-65/16 Istanbul Lojistik: Hungarian toll on HGVs in transit: compatible with the EU-Turkey Association Agreement? (Judgment Thurs). C-383/16 Vion Livestock: Which rules for transport of life animals ex-EU (also judgment Thurs; one or two recent precedents here). C-522/16 A is particularly intriguing and relevant: can a company with constant exposure to customs law, hide behind (and escape additional duties) its having obtained the green (tax and customs law) light from customs law experts, when a corporate structure turns out to be questionable? This judgment (also due on Thursday) may have considerable relevance for EU law generally, and corporate due diligence in compliance. Also for Thursday: C-281/16 Vereniging Hoekschewaards Landschap, on the classification of a habitat site and finally C-598/16 P Yanukovych, Ukraine’s former president who opposes the freezing of his assets in the EU.

Have a good week! Geert.

This posting is really addressed to those with more of a full-time interest in competition law than yours truly. Particularly in the extraterritorial effect of same. In  [2017] EWHC 2420 (Ch) Emerald Supplies et al v British Airways defendants contend that as a matter of law there can be no claim for damages arising from the cartel at issue insofar as it affected freight charges between the EU and third countries on flights before 1 May 2004. That was the date on which air transport between the EU and third countries was brought within the regime implementing the EU competition rules set out in Regulation 1/2003.

Rose J after careful analysis sides with the defendants and rejects reference to the CJEU, citing acte clair (enough analysis of the CJEU on the same and related issues- I believe she is right). Happy reading.

Geert.

 

The precise application of the Brussels I Recast’s exclusive jurisdictional rules, remains a balancing exercise. Being an exception to the Regulation’s’ overall preference for the domicile of the defendant, they have to be given a narrow reading. On the other hand, they serve what the Regulation sees as being important purposes of preference of one particular jurisdiction over another, hence the exception cannot be so narrowly construed as to lose purpose. In C-341/16 Hanssen, the CJEU held last week and confirmed Saugmansgaard ØE AG’s Opinion of the summer.

Does an action seeking an order requiring the person formally registered as proprietor of a Benelux mark to make a declaration to the OBPI that she has no entitlement to the mark and that she waives registration as the proprietor of that mark, fall within the scope of Article 24(4) of Brussels I Recast? No, it does not:  the main proceedings in this case do not relate to the validity, existence or lapse of the trade mark or an alleged right of priority by reason of an earlier deposit. They are solely concerned with whether the proprietor of the contested mark is Ms Prast-Knipping or Hanssen Beleggingen, which must be determined on the basis of the legal relationship existing between the parties concerned: Hanssen Beleggingen submits that, as a result of a chain of transfers of the contested mark, it has become the actual proprietor of the rights to the contested mark. Existence etc. of the trademark is not at issue.

The question of the individual estate to which an intellectual property right belongs is not, generally, closely linked in fact and law to the place where that right has been registered (at 37): hence the raison d’être of Article 24(4) is not engaged.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.6, Heading 2.2.6.7

 

I have often argued that the European Commission and by extension the EU’s Insolvency Regulation is wrong in taking as a starting point that forum shopping in insolvency matters as a rule needs to be discouraged. This aversion towards forum shopping is one of the main reasons for the UK and other Member States to keep Schemes of Arrangement and other restructuring devises well out off the reach of the Regulation. (The Brussels I recast for instance allows for much more strategic choice of court use).

Thank you Debra Dandeneau for flagging the US Bankruptcy Court, Southern District of New York’s decision in Ocean Rig. The Court essentially argues that to use forum shopping in a restructuring /insolvency case is absolutely acceptable provided it is done in good faith, particularly with a view to maximizing chances of survival and /or maximal recovery by the creditors. Note that the Court, in determining COMI for the various companies in the group, pays specific attention to the ascertainability, by third parties, of COMI.

A judgment to be applauded. And this posting, incidentally, is the 500th on this blog. To 1000 and beyond!

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 5, Heading 5.1, Heading 5.4.6.

Twitter injunctions – Twinjunctions if you like, rather like Facebook or Google Removal orders, provide classic scenarios for the consideration of the territorial scope of injunctive and enforcement proceedings. Michael Douglas has great review of [2017] NSWSC 1300 X v Twitter. On 28 September 2017, the Supreme Court of New South Wales awarded its final injunction with global reach, directed towards Twitter Inc (based at CAL) and its Irish counterpart, Twitter International Company.

Plaintiff requested removal of tweets and accounts, and also requested ia that Twitter disclose information relating to the identity of a troll, flagging a potential action against that person for breach of confidence. Twitter refused, appealing to its privacy policy. The eventual injunction went very far indeed, as Michael details. Of the issues under discussion, of interest to this post are the jurisdiction to grant injunctive relief against foreign defendants who do not appear; and the appropriateness of injunctions expressed to operate ‘everywhere in the world’.

Now, what is refreshing about Pembroke J’s review of the issues is his non-doctrinal analysis of the issue of jurisdiction. He emphasises that there is a long history of courts of equity making in personam orders that are intended to operate extra-territorially (the Court’s jurisdiction is one in equity); (at 40) that Twitter unlike other defendants may disagree with the ruling but will not seek to avoid its social responsibility; that there is a public interest in issuing the worldwide order (and in enforcing it: Pembroke J flags that there are Australia-based assets against which enforcement may be sought); and that given his experience with Twitter, it can be expected to use its best endeavours to give effect to the proposed orders, despite its objection that it is not feasible to pro-actively monitor user content.

Eventually of course the trouble with such an assessment, without consideration of wider issues of public and private international law, is that the issuing, or not, of orders of this kind by the courts, depends on the defendant’s attitude towards compliance. That is hardly a solution serving equal access to the law or indeed equity.

Geert.

 

 

Thank you Stephen Pittel for alerting me to 2017 SCC 34 Google Inc. v Equustek Solutions Inc. – alternative review ia here, and apologies for my late reporting: the case came to my attention late June. I have of course posted before on various aspects of worldwide removal and other orders, particularly in the context of the EU’s ‘right to be forgotten’.

Equustek sued Datalink for various intellectual property violations and found alleged insufficient co-operation from Google in making it difficult for users to come across Datalink’s offerings. Google seemingly did not resist jurisdiction, but did resist the injunction and any ex-Canada effect of same.

The majority in the case however essentially applied an effet utile consideration: if as it found it did, it has in personam jurisdiction over defendant, an extraterritorial reach is not problematic if that is the only way to make the order effective. An order limited to searches or websites in Canada would not have addressed the harm: see Stephen’s verbatim comment (referring to para 38 of the judgment).  Google was ordered to de-index globally.

Dissenting opinions suggested Datalink could be sued in France, too, however this I suppose does not address the effet utile consideration of the majority.

Geert.

 

 

 

As Bot AG put it, Joined Cases C-24 and 25/16 Nintendo v Big Ben gave the Court an opportunity to  determine the territorial scope of a decision adopted by a court of a Member State in respect of two co-defendants domiciled in two different Member States concerning claims supplementary to an action for infringement brought before that court.

The case concerns the relation between Brussels I and Regulation 6/2002 – which was last raised in the recent BMW case, particularly as for the former, the application of Article 6(1) (now 8(1))’s rule on anchor defendants. And finally the application of Rome II’s Article 8(2): the identification of the ‘country in which the act of infringement was committed’. In this post I will focus on the impact for Brussels I (Recast) and Rome II.

The Landgericht held that there had been an infringement by BigBen Germany and BigBen France of Nintendo’s registered Community designs. However, it dismissed the actions in so far as they concerned the use of the images of the goods corresponding to those designs by the defendants in the main proceedings.

The Landgericht ordered BigBen Germany to cease using those designs throughout the EU and also upheld, without territorial limitation, Nintendo’s supplementary claims seeking that it be sent various information, accounts and documents held by the defendants in the main proceedings, that they be ordered to pay compensation and that the destruction or recall of the goods at issue, publication of the judgment and reimbursement of the lawyers’ fees incurred by Nintendo be ordered (‘the supplementary claims’).

As regards BigBen France, the Landgericht held that it had international jurisdiction in respect of that company and ordered it to cease using the protected designs at issue throughout the EU. Concerning the supplementary claims, it limited the scope of its judgment to BigBen France’s supplies of the goods at issue to BigBen Germany, but without limiting the territorial scope of its judgment. It considered the applicable law to be that of the place of infringement and took the view that in the present case that was German, Austrian and French law.

BigBen France contends that the German courts lack jurisdiction to adopt orders against it that are applicable throughout the EU: it takes the view that such orders can have merely national territorial scope. Nintendo ia takes the view that German law should be applied to its claims relating to BigBen Germany and French law to those relating to BigBen France.

Taking into account the objective pursued by Article 6(1) of Regulation No 44/2001, which seeks inter alia to avoid the risk of irreconcilable judgments, the existence of the same situation of fact must in such circumstances — if proven, which is for the referring court to verify, and where an application is made to that effect — cover all the activities of the various defendants, including the supplies made by the parent company on its own account, and not be limited to certain aspects or elements of them. If I understand this issue correctly (it is not always easy to see the jurisdictional forest for the many IP trees in the judgment), this means the Court restricts the potential for the use of anchor defendants in Article 8(1).

As for the application of Article 8(2) Rome II, at 98 and following inter alia analysis of the various language versions of the Article, the CJEU equates the notion ‘country n which the act of infringement is committed’ with the locus delicti commissi:  ‘it refers to the country where the event giving rise to the damage occurred, namely the country on whose territory the act of infringement was committed.‘ At 103: ‘…where the same defendant is accused of various acts of infringement falling under the concept of ‘use’ within the meaning of Article 19(1) of Regulation No 6/2002 in various Member States, the correct approach for identifying the event giving rise to the damage is not to refer to each alleged act of infringement, but to make an overall assessment of that defendant’s conduct in order to determine the place where the initial act of infringement at the origin of that conduct was committed or threatened.’

At 108 the Court rules what this means in the case at issue: ‘the place where the event giving rise to the damage occurred within the meaning of Article 8(2) of [Rome II] is the place where the process of putting the offer for sale online by that operator on its website was activated’.

At 99 however it warns expressly that this finding must be distinguished as being issued within the specific context of infringement of intellectual property rights: Regulation 6/2002 as well as Rome II in its specific intention for IP rights, aims to guarantee predictability and unity of a singly connecting factor. This is a very important caveat: for while this approach by the CJEU assists with predictability, it also hands means for applicable law shopping and, where the Court’s approach for locus delicti commissi in IP infringement extended to jurisdiction, for forum shopping, too.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2; Chapter 3.

 

Hang on a minute. Were not the EU and its Member States supposed to be precaution obsessed? Don’t the EU and its Member States alike adopt bans on all things GMO for no other reason than that they simply do not want them? How then can the CJEU hold in C-111/16 Fidenato that Member States do not have the option of adopting, in accordance with Article 54 of Regulation 178/2002, the EU’s general food safety law, interim emergency measures solely on the basis of the precautionary principle?

The reason lies in pre-emption, aka exhaustion, and in the balance between EU and national risk management which EU law strikes in the specific field of GM cultivation. Of note is that in the meantime most biotech companies have given up on cultivation of GM varieties in the EU.

As extremely well summarised by Bobek AG in his Opinion in the case, the formulation of the relevant EU legislation is such as to provide that post EU authorisation (here: of genetically modified maize MON 810) Member States may only take emergency measures where the continued cultivation of the approved products is ‘likely to constitute a serious risk’. While the precautionary principle may play its role fully at the level of the EU’s risk management preceding authorisation, and indeed post such authorisation, too, Member States are given less leeway in their national emergency measures. In prescribing these rules, the EU safeguards the harmonised approach to the GM varieties at issue.

(Mr Fidenato nb is something of a cause celebre among the GM community). Please note, again, that the case concerns the growing (‘cultivation’) of GM crops. Not the import, export or use of products containing GM.

Finally it is important to point out that the Court does not equate precaution with the absence of science. It is the degree of scientific certainty here which is relevant, not the absence ‘v’ presence thereof.

Geert.

Entrée en fonctions d’un nouveau Membreau Tribunal de l’Union européenne