Flux européens

The Belgian Council of State (the highest administrative court) has annulled the Flemish waste agency’s export permit in the so-called ‘Slufter’ case, involving large quantities of toxic dredging spoil (for the aficionados: classified as EURAL 17 05 05*; ia with heavy doses of tributyltin – TBT) dredged from the port of Antwerp. The case made by applicants was that the waste would be disposed of in the port of Rotterdam’s ‘slufter’ by way of mere dumping, as opposed to processing ‘at home’ in the Flemish region.

At issue was Article 11 of the Waste shipments Regulation 1013/2006, which allows Member States of export to object to planned shipments of waste destined for disposal. Applicants’ case was that the Flemish waste agency – OVAM should have disallowed the shipment on the basis of the proximity and the self-sufficiency principles. OVAM however pointed out that even if in optimal circumstances, processing in Flanders could lead to higher rates of recovery of the waste, much of it would still simply have to be landfilled. Importantly, it preferred disposal in the Slufter on the basis that the logistics chain was much shorter: load up, transport, dump. As opposed to load up, transport to processing facility for partial recovery (involving three separate processes); load-up of the solid waste left; transport and dump.

The Council of State ruled at the end of May that this decision by OVAM, in particular the reliance of the extent of the logistics chain, lacks proper assessment of the Best Available Technologies for dredging spoil, hence leading to insufficient assessment of the proximity and self-sufficiency principles. The ruling is relevant also with a view to the remainder of the spoil that will continue to be dredged.

For easy of reference (for those wishing to locate copy of the ruling): case numbers are 238220 -238224 included).

Geert.

Uber France
Rapprochement des législations ETAB SERV MARI
Selon l’avocat général Szpunar, les États membres peuvent interdire et réprimer pénalement l’exercice illégal de l’activité de transport dans le cadre du service UberPop sans notifier au préalable le projet de loi à la Commission

Jean-Sylvestre Bergé, Genevieve Helleringer, Operating Law in a Global Context – Comparing, Combining and Prioritising, Edward Elgar, 2017, pp. 256, ISBN 9781785367328, GBP 80

Lawyers have to adapt their reasoning to the increasingly global nature of the situations they deal with. Often, rules formulated in a national, international or European environment must all be jointly applied to a given case. This book seeks to make explicit the analysis the lawyer engages in every time he or she is confronted by the operation of several laws in different contexts. This reasoning is organised according to a basic three-step approach, consisting of the comparison (Part 1), combination (Part 2) and, finally, ordering or ‘prioritization’ (Part 3) of the methods and solutions of national, international and European law to be used to solve the case. The book conveys in detail how the law is operated through a wide range of concrete examples cutting across domains including criminal law, contract law, fundamental rights, internal market, international trade and procedure. This book focuses on the needs of a global lawyer who must reach conclusions in a pluralistic context. Illustrations from the domestic case law of the UK, Germany, Belgium, Italy, Spain, France and the US are used to demonstrate how lawyers can combine different contexts to improve their legal reasoning. Operating Law in a Global Context will appeal to lawyers in these jurisdictions and beyond, as well as to students training to practice in a global environment.

A website has recently been launched in the framework of the EU-funded Jean Monnet Module on European Civil Procedure in a Comparative and Transnational Perspective taught by Professor Albert Henke at the University of Milan. Its purpose is “to keep academics, professionals, students and all those involved in cross-border litigation in Europe updated about current trends and recent developments in legislation, case law and literature in this area, as well as to create an open educational resource”. The website is called European Civil Procedure, and can be found here. 

È da qualche tempo accessibile on-line un sito web realizzato nell’ambito del modulo Jean Monnet su European Civil Procedure in a Comparative and Transnational Perspective di cui è titolare, all’Università Statale di Milano, il prof. Albert Henke. Il sito si rivolge a quanti si occupano di diritto processuale civile internazionale da studiosi, professionisti e studenti, e si propone di fornire aggiornamenti sugli sviluppi normativi, giurisprudenziali e di dottrina in questa materia, oltre che fungere da risorsa formativa aperta. Il sito si chiama European Civil Procedure e si trova a questo indirizzo.

Thank you to both Patrick Wauthelet and Arie van Hoe for forwarding a copy of the judgment of the Brussels commercial court in Parfip. Please pop me an e-mail should you like a copy. The judgment is textbook application of CJEU precedent, including of course Eurofood and Interedil. Fully respecting the presumption of individual COMI in the case of a group of companies, the judgment refers to ia German and French precedent in rebuking the presumption. Not only were the companies effectively run from Brussels, notwithstanding non-Belgian seat for some of them; to third parties it was also clear that this was the case.

The judgment also confirms a narrow interpretation of the exception for ‘credit institutions’.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 5, Heading 5.6.1.2.Heading 5.6.1.2.4.

Aarhus, Access to Environmental Information Directive. Review of Henney [2017] EWCA Civ 844 .

 

UK Human Rights Blog

Department for Business, Energy and Industry Strategy v. Information Commissioner and Henney [2017] EWCA Civ 844 , 29 June 2017 – read judgment

As many will know, there are two different systems of freedom of information, the first and better known, the Freedom for Information Act 2000, and the second, the Environmental Information Regulations 2009. From the perspective of the inquirer (Mr Henney, here), the EIRs are the more favourable, and it was the differences between the systems which gave rise to this long-running dispute to do with energy Smart Meters.

The appeal went in favour of Mr Henney, and the Information Commissioner who had ruled in his favour. But the ultimate case is not resolved, as I shall explain.

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Yesterday in Case C-436/16 Leventis the Court of Justice summarily confirmed the principle of privity of choice of court under the Brussels I Recast. I have looked at this issue before e.g. when I discussed Refcomp and Profit Sim. The tos and fros between the various parties in the case meant they were acquainted with each other in the courtroom and in arbitration panels. It also meant that actions, settlements etc. between one of them and a third party necessarily impacted commercially on the other.

However the Court of Justice essentially held that such a close, voluntary or not, relationship between the two parties does not mean that a jurisdiction clause in a contract between two companies can be relied upon by the representatives of one of them to dispute the jurisdiction of a court over an action for damages which aims to render them jointly and severally liable for supposedly tortious acts carried out in the performance of their duties. The Court simply noted that the referring national court had given no indication of choice of court made between the parties as to the latter issue, employing the classic (now) Article 25 set of criteria.

Of note is that unlike other cases such as Goldman Sachs v Novo Banco, there did not seem to be any kind of theory in relevant national law which would have led to imputability (or potential to call upon) choice of court to a third party under the given circumstances.

Geert.

(Handbook of) European private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.9.7.

End of exam season (sadly not yet of marking marathon). In the next few weeks I shall be posting on judgments issued a little or longer while ago, which I was pondering to use in exams. (I did for some of them).

In [2017] EWHC 1216 (Pat) Chugai Pharmaceutical v UCB the issue at stake was to what degree a suit seeking to establish absence of liability under a patent license, in reality provokes argument on the validity of the patent. Carr J has excellent overview of review of precedent, much of which has passed in one way or another on this blog. Please do refer to judgment for proper reading.

Claimant (“Chugai”) seeks a declaration against the Defendants (collectively “UCB”) that it is not obliged to continue to pay royalties under a patent licence (“the Licence”) granted by the First Defendant (“UCB Pharma”).  UCB Pharma is a Belgian company with an English branch which entered into the Licence with Chugai in respect of a portfolio of patents. Chugai claims that its products, which are, in part, manufactured and sold in the USA, fall outside the scope of the claims of the Patent concerned. Accordingly, Chugai seeks a declaration that it owes no royalties for the manufacture and sale of these drugs manufactured after a certain date.

UCB alleges that, although framed as a claim for a declaration relating to a contract, a part of these proceedings, in substance, concerns not only the scope but also the validity of the Patent. UCB submits that the validity of a US patent is non-justiciable, since the English court has no power to determine the validity of a foreign patent. Accordingly, it submits that those parts of Chugai’s pleading which are said to raise issues of invalidity fall outside the subject matter jurisdiction of the English court.

European private international law as readers will know lays greats emphasis on exclusive jurisdiction in the case of validity of patents. The CJEU’s holding in C-4/03 Gat v Luk that nullity actions against a national part of a certain European patent can only be conducted in the jurisdiction for which that patent was registered, regardless of whether the nullity argument is raised in the suit or by way of defence, is now included verbatim in Article 24(4) Brussels I Recast. The EU’s take is rooted in the idea that the grant of a national patent is “an exercise of national sovereignty” (Jenard Report on the Brussels Convention (OJ 1979 C59, pp 1, 36)). The rule therefore engages the Act of State doctrine, and suggests that comity requires the courts of States other than the State of issue, to keep their hands off the case.

Particularly in cases where defendant is accused of having infringed a patent, this rule gives it a great possibility to stall proceedings. Where the action is ‘passive’, with plaintiff aiming to establish no infringement, the argument that the suit really involves validity of patent is less easily made.

The possibility of ‘torpedo’ abuse, coupled with less deference to the jurisdictional consequences of the Act of State doctrine [particularly its contested extension to intellectual property rights], means the English courts in particular are becoming less impressed with the exclusivity. Where the EU Regulation applies, they do not have much choice. Carr J refers to [2016] EWHC 1722 (Pat) Anan where claimant sought to carve out issues of validity by seeking a declaration that the defendant’s acts infringed a German patent “if the German designation is invalid (which is to be determined by the German courts)“.  EU law meant this attempt could not be honoured. Carr J however suggests that EU rules have no direct application in the present case because the Patent at stake is a United States patent. That is not quite spot on, for under the amended lis alibi pendens rule of the Brussels I Recast, reflexive effect is suggested for the Regulation’s exclusive jurisdictional rules, leaving a Member State court in a position (not: under an obligation) to give way to pending litigation in third countries. (In the case at hand there was no such litigation pending elsewhere).

Allow me to lean on 20 Essex Street’s conclusion in their review of the case: Carr J held that the case before him was not a direct challenge to validity. He accepted Chugai’s submissions that its claim was contractual. Disputed parts of the patent were incidental to the essential nature of its claim, which was a claim for determination of its royalty obligations. In his view, this claim fell within the exclusive jurisdiction clause, in favour of the English courts, which parties had agreed.

Essential reading for IP litigators.

Geert.

 

Congregación de Escuelas Pías Provincia Betania
Aide d'État
Les exonérations fiscales dont jouit l’Église catholique en Espagne peuvent constituer des aides d’État prohibées si et dans la mesure où elles sont octroyées pour des activités économiques

Perhaps it’s the warm weather or the balmy number of exams I am having to compile this term, but my imagination was running dry. One more exam to compose and it is for my American University summer law school students. A course on EU integration. Scratching my head on trying to find yet another variation on the direct effect theme, Advocate General Sharpston came to the rescue. So far I have only seen the press release (the Opinion itself is not on Curia yet) in C-413/15 Farrell which considers the C-188/89 Foster criteria on what constitutes an ’emanation from the state’. From the press release:

‘Ever since the Court developed the doctrine of the direct effect of directives and rendered it applicable to ‘vertical’ disputes between the individual and the State, but declined to extend that doctrine ‘horizontally’ to cover disputes between private parties, it has been essential to know what are the boundaries of ‘the State’ for the purposes of applying that doctrine. In its judgment in Foster, the Court set out a series of tests for determining the types of bodies that might be treated as ‘the State’ or, although it did not use that expression in its judgment, ‘an emanation of the State’ in that context. It did so by reference to existing case-law, which included a reference to the body in question having ‘special powers’.’

The focus of the Opinion is on those ‘special powers’.

In C-365/05, the Court had already held that Ireland had not properly implemented Directive 90/232. the question now before the court si whether the Motor Insurers’ Bureau of Ireland (MIBI) is an emanation of the State, engaging therefore vertical direct effect. The Irish High Court held it does. The Irish Supreme Court now asks whether the Foster criteria need to be applied cumulatively. Sharpston AG clearly suggests they do not, indeed that they are not limitative either: see the text for more detail of the criteria examined by Ms Sharpston.

Now, once the full text is out, one can of course chew over this a bit more. But for an introductory course, the press release suffices.

Geert.

 

A short post to flag a paper which I co-authored with Virginia Sanfelice and Dr Leonie Reins. We look at how international environmental law principles have been applied in Latin-American courts. The aim of this paper is first and foremost to open up these cases for wider scholarly analysis (which is why we e.g. use an Annexed overview of the cases), with preliminary analysis thrown in.

Springer Nature have provided us (much gracias) with the following Open Access link which I am happy to share. Happy analysing.

Geert.

Farrell
Rapprochement des législations SERV
L’avocat général Sharpston précise les critères permettant d’établir ce qu’il convient d’entendre par « émanation de l’État » afin de déterminer contre quel organisme un particulier peut agir lorsqu’une directive de l’Union n’a pas été transposée correctement en droit national

Unibet International
Libre prestation des services
La réglementation hongroise sur l’autorisation des jeux de hasard en ligne n’est pas compatible avec le principe de la libre prestation des services

Federatie Nederlandse Vakvereniging e.a.
SOPO
Les droits des travailleurs en cas de transfert d’entreprises peuvent être applicables lors de la conclusion d’un « pre-pack » suite à une faillite

Martinez Silva
Espace de liberté, sécurité et justice IMMI SESO
Le ressortissant d’un pays non UE, titulaire d’un permis unique de travail dans un État membre, bénéficie, en règle générale, des prestations de sécurité sociale prévues pour les ressortissants de cet État

W e.a.
Rapprochement des législations PROT
En l’absence de consensus scientifique, le défaut d’un vaccin et le lien de causalité entre celui-ci et une maladie peuvent être prouvés par un faisceau d’indices graves, précis et concordants

Mengesteab
Espace de liberté, sécurité et justice ASIL
L’avocat général Sharpston estime qu’un demandeur de protection internationale peut contester la décision d’un État membre de le transférer vers un autre État membre au motif que la « requête de prise en charge » envoyée par le premier État membre n’a pas été présentée dans les délais prescrits par le droit de l’Union

 

Less than two months after the AG Opined (see my report here), the Court of Justice has already held in C-249/16 Kareda v Stefan Benkö. The judgment follows Opinion to a tee albeit with a slightly more cautious link between Brussels I (jurisdiction) and Rome I /II (applicable law): at 32, with reference to the similarly cautious approach of the Court in Kainz.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2, Heading 2.2.11.2.9 .

I have reported before (search tag ‘CSR’ or ‘ATS) on the personal jurisdiction cases in US litigation. The United State Supreme Court this morning held in Bristol-Meyers Squibb, BMS for short. For background see earlier reporting in this post. California was held not to have jurisdiction for claims brought by non-residents. In her dissenting Opinion justice Sotomayor notes the important impact of the ruling, suggesting that a corporation that engages in a nationwide course of conduct cannot now be held accountable in a state court by a group of injured people unless all of those people were injured in the forum State.  Precedent evidently includes Bauman.

Judgment and opinion include many interesting takes on personal jurisdiction and how it should be managed.

Geert.

 

Si terrà a San Ginesio (Macerata), il 29 e il 30 settembre 2017, il tradizionale incontro dei dottorandi di ricerca in diritto internazionale, diritto internazionale privato e diritto dell’Unione europea, organizzato dalla Società Italiana di Diritto internazionale e dell’Unione europea e dal Centro italiano di studi gentiliani.

Ulteriori informazioni sono disponibili qui.