Flux européens

In Popescu v Essers the Antwerp Court of Appeal has confirmed jurisdiction in a claim by a Romanian driver against a Belgian-incorporated freight company, and applied Belgian labour law to the their contract.

The case echoes social dumping issues, relevant earlier posts on the blog include CJEU Gruber Logistics, and Altun. Outside of Brussels Ia and Rome I, CJEU AFMB and others is of note.

I do not have access  to the first instance judgment and the Court of Appeal’s judgment is a touch cryptic on a first issue of note which is the impact of the earlier decision by the Romanian courts and the extent of res judicata: I cannot say much about that for want of the first instance judgment and /or further info in the court of appeal’s judgment, however that issue seems to have engaged factual findings in the Romanian courts.

What is clear is that on the basis of Article 21 BIa, jurisdiction in the domicile of the employer was easily established [p.6].

With respect to applicable law and Rome I, the Court of Appeal refers to the CJEU in Koelzsch [42] holding “in so far as the objective of Article 6 of the Rome Convention is to guarantee adequate protection for the employee, that provision must be understood as guaranteeing the applicability of the law of the State in which he carries out his working activities rather than that of the State in which the employer is established. It is in the former State that the employee performs his economic and social duties and, as was noted by the Advocate General in point 50 of her Opinion, it is there that the business and political environment affects employment activities. Therefore, compliance with the employment protection rules provided for by the law of that country must, so far as is possible, be guaranteed.” (emphasis added by me, GAVC). The Court of Appeal also recalls the criteria of the CJEU in C-64/12 Schlecker, notes that the contract does not have a lex voluntatis (although the contract does refer to Romanian law in a number of instances) and holds p.12 ff that Belgium, not Romania was the place of habitual employment:

on-board diagnostics and trip reports reveal that most of Mr Popescu’s routes started from the corporation’s headquarters in Belgium, most of them to and fro Belgium’s neighbouring countries, and even if they were further afield, return was always to Belgium; no routes led him to and /or fro Romania;

dispatch for the routes was organised from Belgium, with largely the Belgian corporations of the group as the contracting party for the freight concerned;

the work tools, i.e. the trucks, even if they carried a Romanian number plate, were put at the the disposal of the drivers, and serviced, in Belgium, and (off)loading largely took place in Belgium.

Other factors pointing to Romania, were held not to displace the finding of Belgium as the place of employment: this includes Mr Popescu’s Romanian nationality and domicile; and his contract being subject to Romanian national insurance and income tax: these two latter elements, the Court held, simply reflect Mr Popescu’s domicile, not his place of employment.

The Court of Appeal also held [p.17-18] that it need not apply the posted workers Directive, with reference to CJEU FNV v Vanden Bosch, and that instead of a temporary posting there is a clear place of habitual employment with all the consequences of Rome I.

The remainder of the judgment then deals with the consequences of the application of Belgian law.

A case of note!

Geert.

Judgment (Court of Appeal in fact) is here https://t.co/JpvhwEBlzI h/t @jurinfo_eric) and analysis forthcoming on my blog. https://t.co/LWyYwbZ73B

— Geert Van Calster (@GAVClaw) June 27, 2023

G. K. e.a. (Parquet européen)
Espace de liberté, sécurité et justice
Enquêtes transfrontières menées par le Parquet européen : l’avocate générale Ćapeta suggère à la Cour de dire que le contrôle juridictionnel dans l’État membre du procureur européen délégué assistant devrait se limiter aux questions de procédure

Public.Resource.Org et Right to Know / Commission e.a.
Droit institutionnel
Selon l’avocate générale Medina, les normes techniques harmonisées européennes doivent être d’un accès libre et gratuit en raison de leur nature juridique particulière en tant qu’actes faisant partie du droit de l’Union

Commission / Hongrie (Déclaration d’intention préalable à une demande d’asile)
Espace de liberté, sécurité et justice
La Hongrie a indûment entravé la possibilité de présenter une demande d’asile

Allemagne / Pharma Mar et Commission
La Cour annule l’appréciation portée par le Tribunal quant à l’impartialité des experts de l’Agence européenne du médicament (EMA)

Pankki S
Toute personne a le droit de connaître la date et les raisons pour lesquelles ses données à caractère personnel ont été consultées

K.B. et F.S. (Relevé d’office dans le domaine pénal)
Protection des droits fondamentaux : le droit de l’Union ne s’oppose pas, en principe, à l’interdiction faite au juge national de relever d’office une violation de l’obligation d’informer rapidement un suspect de son droit de garder le silence

Repasi / Commission
Taxonomie : le Tribunal rejette comme irrecevable le recours d’un député européen contre le règlement de la Commission sur le caractère durable de certaines activités économiques liées au gaz fossile et à l’énergie nucléaire

Diamedica Therapeutics Inc v Pharmaceutical Research Associates Group BV NCC22/018 ECLI:NL:RBAMS:2023:2540 highlights the IMHO troubled Rome I implications for property rights as opposed to contractual rights. The judgment was issued by the NCC, the Netherlands Commercial Court. (The NCC origin also explains the judgment already being available in English).

The claim is one for revindication by PRA of documents and digital data pertaining to the clinical trials regarding a medicine developed by DiaMedica. The court held that whereas the contractual relationship between the parties is governed by the laws of the State of New York as the lex voluntatis (the law parties chose to apply to the contract), Dutch law governs the question whether a property right can be created on documents and data situated in the Netherlands.

In discussing the applicable law issues, the court in my view lacks the clarity of approach required in this area, particularly seeing as a State’s approach towards digital data clearly is an important element in the attractiveness of its contract law for the sector.

[4.5] the Court holds that per Article 3(1) Rome I, the lex voluntatis, the laws of New York, covers the interpretation of the agreement. This includes the existence of a right to suspend contractual obligations, here: whether PRA may retain the Documents or suspend surrendering the Documents in order to secure payment of its final invoice. It equally holds however that the existence of a property right (footnotes omitted)

is not a matter of contract but a matter of property law. The Rome I Regulation is not applicable. As there is no treaty or regulation guiding this issue, the rules of Dutch domestic private international law apply. Under Article 10:127(1) of the Dutch Civil Code (DCC) the property law regime relating to things, as a rule, is the law of the state in whose territory the thing is situated (the lex rei sitae). The ‘thing’ in question are the Documents which are situated in the Netherlands. Therefore, Dutch law governs the manner in which rights in rem arise, whether such rights can be created, and if so, what the requirements are for a transfer or creation of rights (Article 10:127(4) DCC). Also, the question whether a revindication claim can be initiated, and if so by whom, is governed by the lex rei sitae. Hence: Dutch law.

, leading to a finding in favour of DiaMedica on the basis of Dutch law.

The merits of the case are not of interest to this blog: the identification of applicable law to the property rights, is. The NCC’s analysis shows the difficulty with the in my view unsatisfactory, if seemingly solidly rooted (see the Guiliano-Lagarde Report most succinctly p.10; Dicey 33-033 and 33-054; other standard works pay less attention to the issue) conclusion that ‘property’ rights are not caught by the Regulation, only contractual rights. See here nota bene for an Opinion of Vlas AG for the Dutch Supreme Court, flagging that in restitution cases the analysis may be more complicated than the NCC in current case suggests.

In the discussion of digital assets in particular (see eg here re UNIDROIT work on same, and here for the UK Law Commission paper), the property rights element surely is essential. This in my view gives those States with lex voluntatis also covering the property aspects (such as arguably Belgium’s residual private international law rules) an edge when it comes to regulatory competition in the area.

Nota bene just this morning, professor Lehmann posted a paper on the wider issue, calling for people to drop focus on the property analysis. Rebus sic stantibus however, the issue of relevance in the case here, remains: parties in my view would do well to identify a lex contractus which encompasses property rights in party autonomy. Unusually perhaps and most probably not by design, this makes laws such as those of Belgium, a clear winner (whether as lex contractus for the whole contract of merely, by way of dépeçage, for the property aspects only).

Geert.

May personal data be subject to property rights?
Challenging 1st instance decision A'dam

Revindication of documents and data. Ownership over digital data in clinical trials
Held despite NY law as lex contractus per Rome I to be subject to NL property law https://t.co/pC6N9sAuZ3

— Geert Van Calster (@GAVClaw) April 28, 2023

Ligue des droits humains (Vérification du traitement des données par l’autorité de contrôle)
Selon l’avocate générale Medina, une personne concernée doit disposer d’un recours juridictionnel contre une autorité de contrôle indépendante lorsqu’elle exerce ses droits par l’intermédiaire de cette autorité

Friends of the Irish Environment (Possibilités de pêche supérieures à zéro)
Agriculture
Surpêche : l’avocate générale Ćapeta estime que le règlement de base relatif à la politique commune de la pêche impose au Conseil de fixer des limites de pêche à des niveaux durables à partir de l’année 2020

Kočner / Europol
Principes du droit communautaire
Avocat général Rantos : Europol et un État membre dans lequel s’est produit un dommage en rapport avec un traitement illicite de données peuvent être solidairement responsables

Silver e.a. / Conseil
Citoyenneté européenne
Rejet définitif des recours de citoyens britanniques contestant la perte de leurs droits de citoyens de l’Union en conséquence du Brexit

Thermalhotel Fontana
Sécurité sociale des travailleurs migrants
La libre circulation des travailleurs s’oppose à la réglementation d’un État membre conditionnant une indemnisation à l’imposition d’une mesure de confinement par ses propres autorités administratives

Bank M. (Conséquences de l’annulation du contrat)
Rapprochement des législations
Le droit de l’Union ne s’oppose pas à ce que, en cas d’annulation d’un contrat de prêt hypothécaire entaché de clauses abusives, les consommateurs demandent à la banque une compensation allant au-delà du remboursement des mensualités versées

In Kvist v GippsAero Pty Ltd & Anor [2023] VSC 275, Dixon J refused an application for forum non conveniens in a judgment that is good material for the comparative conflict of laws binder.

On 14 July 2019, at Storsandskar near Umeå in Sweden, a small plane being used for skydiving crashed, resulting in the deaths of the pilot and all eight passengers on board. Claimants are relatives of some of the victims of the crash, and they claim damages from the defendants for negligence. None of the claimants reside in Australia. Apart from 2, who are American, all claimants are Swedish. Defendants are incorporated in Australia and carry on business in Gippsland, Victoria. The first defendant (Gippsareo) manufactured the Airvan GA8-TC 320 in 2012. Second defendant GA8 Airvan holds the ‘Type Certificates’ that certify the Airvan meets the requisite standards for airworthiness. Certificates were issued to the second defendant by the Australian Civil Aviation Safety Authority, the European Safety Authority, and the US Federal Aviation Authority in respect of the aircraft.

Gippsaero sold the Airvan to a Swedish company, GCC Capital, a financier, on 17 May 2013. The parent companies of GCC Capital AB were placed in liquidation on 2 December 2021. At the time of the crash, the Airvan was owned by a Swedish company called Skydive Umea AB (a customer of GCC Capital). Skydive Umea AB was placed in liquidation on 5 October 2022. It held, apparently, a policy of insurance in respect of the plane. The Airvan was being used by Umeå Parachute Club from Umeå airport in Sweden. The Umeå Parachute Club is a non-profit association.

An earlier Swedish claim (seemingly wrongly invoking the Montreal Convention) was withdrawn, meaning there are no competing Swedish proceedings afoot. Claimants allege the defendants were negligent in failing to include critical information in an operating manual supplied with the aircraft at the time of purchase and in failing to ensure the aircraft was suitable for parachuting operations. Passengers in the aircraft moving rearwards preparing to skydive altered the weight distribution in the aircraft in a manner that required a critical response from the pilot, a response the pilot did not adequately provide.

[11-12] the Australian proceedings are used to take advantage of common law discovery rules. Preliminary expert evidence indicates an Australian judgment might not be enforceable in Sweden (odd, I find) however could be used for evidentiary purposes in subsequent Swedish proceedings.

[19] ff the factors suggesting forum non are listed. This includes the suggestion that Victoria is a clearly inappropriate forum because the lex loci delicti indicates that the lex causae is Swedish law. This is directly contradicted by claimants [32] ff,  who argue the lex loci delicti is Victoria.

The judge discusses [42] ff, insisting ia [46] that the distinction between the English ‘more appropriate forum’ test [the away forum being a more appropriate forum, GAVC]  and the ‘clearly inappropriate forum’ test applicable in Australia [whether the home, Australian forum is clearly inappropriate, GAVC] is important. [56] ia evidentiary advantages to claimant are listed as kosher for jurisdictional purposes. [78] Swedish ‘advice’ that Swedish law will be the lex causae is dismissed, seemingly for it was utterly incomplete and without much justification. [82] the Airvan was built in Australia and intended for worldwide use. All of the manuals and certifications originated from Australia and have just been adapted where required to ensure registration was permissible in Europe or America, wherever the aircraft might be. [84] The relevant actions of the defendants were antecedent to the sale and to the characteristic of the sale on which the defendants rely for their contentions. The aircraft was designed, the manual was written, and in relevant respects, the fit out of the aircraft was set, well before the sale of the Airvan to Sweden.

[89] The judge concludes that at this point [for the purposes of the forum non analysis, GAVC] he is satisfied that the substantive law of the (Australian) forum is the lex causae.

A good illustration of the role of the likely lex causae in forum non.

Geert.

Claimants allege defendants' negligence in failing to include critical information in operating manual at time of purchase and in failing to ensure the aircraft was suitable for parachuting operations.
Lively lex causae discussions expected at trial. https://t.co/pkRAibZMNd

— Geert Van Calster (@GAVClaw) June 5, 2023

In MF Tel Sarl v Visa Europe Ltd [2023] EWHC 1336 (Ch), Marsh M admirably summarises the extensive authorities both English and CJEU (and almost all of them discussed on this blog) on ‘purely economic damage’, in the case at issue at the applicable law level with a view to identifying overcharging on card transaction services. The claim is non-contractual for claimant operated through a ‘sponsor’, RRS, a London-based bank.

[55] Visa’s primary case is that the direct damage occurred at the time when Visa messaged RRS with transaction amounts that are said to be incorrect. Visa invites the court to follow a line of cases dealing with negligent misstatement. In a case of negligent misrepresentation it is said the damage will occur at the place where the misstatement is received and relied upon (compare the discussion in Kwok v UBS). Visa’s alternative case is that direct damage occurred when RRS failed to collect an Optional Issuer Fee – OIF, as a result of the defendant’s inaccurate messaging, for onward transmission to the claimant in France. [57] On either case the defendant says that damage occurred in England being the “direct” damage resulting from the wrong and that the loss felt ultimately in the claimant’s bank account in France is indirect damage.

the judge [68-5] holds that

where the claim is for the non-receipt of OIFs, the wrong only has a direct economic effect upon the claimant by non-receipt of OIFs. That effect is likely to have been felt by the claimant in France. It is not at all obvious that the effect of the wrong as it resonated in financial terms should be seen as an indirect consequence of the previous events.

The case of course once again shows the intricate difficulty of the (in)direct damage distinction and I agree with Master Marsh  that certainly at the level of an application for strike-out, Visa’s arguments are not convincing to blow the suggestion of French law being the applicable law, out off the water.

Geert.

Failed application to strike out the applicable law part of a claim as being French law
Discussion on applicable law for purely economic damage, A4 Rome II, must go to trial

MF Tel Sarl v Visa Europe Ltd [2023] EWHC 1336 (Ch)https://t.co/AAQRDh4yrM

— Geert Van Calster (@GAVClaw) June 6, 2023

One my of students, Jules Culot, has excellent analysis of the recent Belgium Supreme Court’s turnaround (T BV v S-O GmbH – what is with the anonymisation?!) on Belgium’s rule for dispute resolution in the context of exclusive distribution agreements: see here. I am a great believer in progress via (acknowledged) assimilation and I am happy largely to refer to Jules.

As Jules notes, the Supreme Court has taken a similar approach as the final Court of Appeal ruling in the infamous Unamar case: the granted concessions for exclusive distribution are said primarily to safeguard “private interests” and consequently not to qualify as specific mandatory laws under Article 9(1) Rome I. It is by far certain that for national laws to qualify as lois de police or as the Belgians call it, lois d’application immédiate, they necessarily must safeguard general interests.

With our head librarian, Christoph Malliet, I share the frustration that the appealed judgment of the Antwerp Court of Appeal of 10 March 2021, is not available anywhere – but I shall not start raging about the so 1950s approach to publication of case-law in Belgium: I want to start the week-end later with positive vibes.

Geert.

EU Private International Law, 3rd ed. 2021, 3.88.

Great primer by @TheLegalSmeagol on the Belgian Supreme Court reversing half a century of authority on arbitration and exclusive distribution (re: lois de police, overriding mandatory law) https://t.co/ovCCgkG4M7 pic.twitter.com/JgwSkC8fXR

— Geert Van Calster (@GAVClaw) May 26, 2023

Google Ireland e.a.
Liberté d'établissement
Avocat général Szpunar : des plates-formes comme Google, Meta Platforms et Tik Tok ne peuvent se voir imposer des obligations supplémentaires dans un État membre autre que celui de leur siège que par des mesures prises au cas par cas

Commission / Amazon.com e.a.
Aide d'État
Décisions fiscales anticipatives : selon l’avocate générale Kokott, c’est à tort que la Commission a constaté que le Luxembourg avait accordé des aides d’État illégales à Amazon sous forme d’avantages fiscaux