Flux européens

Lufthansa CityLine
Temps de travail : l’obtention d’une rémunération majorée pour le dépassement d’un certain nombre d’heures de travail ne peut défavoriser le travailleur à temps partiel

Zippo Manufacturing e.a. / Commission
Politique commerciale
Le Tribunal annule les droits de douane additionnels sur certains briquets en provenance des États-Unis 

Richard de la tour AG opined last Thursday in C‑566/22 Inkreal aka Inkreal s. r.  v Dúha reality s. r. o..

At issue is whether the sole use of international choice of court suffices to escalate a purely internal case to the ‘international’ level, hence within the reach of the Brussels Ia Regulation. The AG opined it does not. I don’t think he is right and I suspect the CJEU will not follow him.

FD, resident in Slovakia, as the assignor, and Dúha reality s. r. o., a company domiciled in Slovakia, as the assignee, concluded two loan agreements on 29 June 2016 and 11 March 2017 respectively. By means of a voluntary assignment agreement dated 8 December 2021, FD assigned the claims arising from those loan agreements to Inkreal, a company domiciled in Slovakia. In each of those agreements, the parties agreed that ‘any ambiguities or disputes arising from the agreement and in connection therewith shall be first resolved by negotiation aimed at reaching a solution acceptable for both parties. If the parties are unable to settle such a dispute, the dispute shall be settled by a court of the Czech Republic having substantive and territorial jurisdiction, in line with the [Code of Civil Procedure], as amended’. Following non-payment, Inkreal brought an action before the Czech courts, in application of the choice of court agreement.

(31) onwards the AG sides with that part of scholarship (most of the authors he refers to wrote in French or German, just a few in English and he seems to only cite Mankowski as holding opposite views; I am not saying that French or German scholarship ought not to be cited, far from it, it ought to much more frequently in all possible EU languages; yet there is more scholarship on the issue both by English scholars and by others writing in English) and national case-law which argues against Article 25 BIa catching such choice of court, alleging lack of ‘international’ element.

He develops five main reasons (see the Opinion for more detail) with often only one source for each.

1. (32).  The mere will of the parties in a purely internal situation must not suffice: existence of an international element has to be established according to “objective criteria”. I for one do not understand how party autonomy is not an “objective criterion”.
2. (33) ff Brussels Ia cannot have the effect of eliminating any distinction between the national and international rules of jurisdiction governed by EU law.  Four arguments to the contrary of a textual or teleological nature based on A25 BIa must in the AG’s view be dismissed. First, that non-EU domiciled parties can make valid choice of law for an EU court in his view is of no value; Second, the independence of the will of the parties cannot enables parties to “call into question the scope of that regulation, which is limited to international and not purely internal situations.” ( a clear circular argument);  Third, A25’s new lex causae rule for substantive validity of choice of court cannot rescue choice of court which does not initially engage with a ‘international’ situation (again circular); Fourth, the clear movement from Brussels I onwards towards supporting choice of court does not justify authorising the parties to derogate from national rules on jurisdiction without any limit or connecting factor. 
3. (38) The AG cites CJEU Owusu, Lindner and IRnova as confirming his view that “objective criteria” are required to support an international element (Owusu and IRnova) or the foreign nationality of the defendant (Lindner).
4. (40 ff) Rome I cannot be used as a benchmark, both because purely internal situations in Rome I remain subject to mandatory national provisions (see of course VinylsItalia) and because Rome I’s DNA is party autonomy which Brussels Ia’s Article 25 it is suggested is not. (Had he not lost me already, the AG would certainly have lost me here). The AG also refers in support to the 2005 Hague Choice of Court Convention and recitals in Council Decision 2014/887 (making the EU accede to that Convention and referring to links between both and one or two Hague anchors in Brussels Ia; but nowhere near the symmetry the AG suggests), opining that A1(2) Hague Convention somehow needs to be extended to Brussels Ia: that Article reads “a case is international unless the parties are resident in the same Contracting State and the relationship of the parties and all other elements relevant to the dispute, regardless of the location of the chosen court, are connected only with that State.” Extending A1(2) Hague 2005 to Brussels Ia in my view is a massive stretch of statutory construction.
5. Finally (43) the AG somewhat backtracks and suggests factors testifying to an international element “should be assessed by the court seised on a case-by-case basis in a flexible manner or according to a broad conception.”

Finally the AG suggests (45 ff) that the CJEU should advice the referring court and ‘practice’ in general on the A25 conflit (viz the ‘international element’) mobile issue. When must the international nature of the situation be assessed: when the jurisdiction agreement is concluded or when the designated court is seised by the parties? Here he emphasises the contractual nature of the determination of jurisdiction (in direct contrast with his views above) and legal certainty rather than foreseeability, and suggests the international nature be assessed at the stage when the choice of court clause is agreed, not when the court is seised. That in my view undermines the core forum shopping intention of both Article 25 and Article 26 (voluntary appearance).

(49) the AG oddly backtracks again on this issue by suggesting that “it might be accepted that, in an internal situation with a prospect of becoming international, the parties [may] agree, when concluding their agreement, to designate a court of a Member State in sufficiently precise terms which express their intention  and provide for the exclusive jurisdiction of national courts where there is doubt as to the existence of a criterion requiring an international element.”  Rather than increasing legal certainty, that is bound to upend it IMHO.

The CJEU of course is not likely to entertain this last part of the Opinion.

In general, I believe it will have a more generous view of party autonomy and an eye on the interests of the European Judicial Area (per prof Dickinson), perhaps also as suggested by Matthew Hoyle, referring to Brussels Ia’s corrective mechanisms both for protected categories and ordre public (Article 45 BIa).

Geert. EU Private International Law. 4th ed. 2024, para 2.22 ff. https://twitter.com/GAVClaw/status/1713835285119648124

Ugljesa Grusic’s excellent post on  Sayn-Wittgenstein-Sayn v HM Juan Carlos Alfonso Victor Maria De Borbon y Borbon [2023] EWHC 2478 (KB) is prompting me to try and do something about the draft posts queue for the blog. Ugljesa has very good overview and this post can largely refer to his.

Nicklin J had earlier held that in [2022] EWHC 668 (QB) that in a former lover’s harassment case against the former King of Spain, Juan Carlos, the former King does not enjoy foreign sovereign immunity under the State Immunity Act 1978. That was overruled upon appeal [a Saint Nicholas gift for the King, held 6 December 2022 [2022] EWCA Civ 1595] for all pre-abdication conduct which the Court of Appeal held does fall under foreign sovereign immunity. The claim continued for the remainder and is ratione temporis subject to Brussels Ia (the EU jurisdictional rules for cases like this).

Collins Rice J in current judgment resoundingly held [303] ff against jurisdiction on the basis of the gateway for tort, and obiter blew the claim out off the water in many other ways:

My principal conclusion is that the High Court of England and Wales lacks jurisdiction to try this claim. That is because it has not been brought against the Defendant in his country of domicile, as is his default entitlement; and the Claimant has not satisfied me she has a good arguable case that her claim falls within an exception to that default rule. That in turn is because she has not sufficiently established that the ‘harmful event’ of which she complains – harassment by the Defendant – happened in England.

I am not satisfied either that the Defendant has, or should be deemed to have, submitted to the jurisdiction of the High Court by his own conduct of this litigation so far.

In the alternative, if I had been able to conclude that the High Court did have jurisdiction over this claim, I would have refused the Claimant’s application to amend her claim. This application was multifaceted; she wished to amend her claim in a number of respects and my reasons for refusing vary correspondingly. They include the inconsistency of her proposals with the decision of the Court of Appeal on the extent of the Defendant’s state immunity from suit; problems with the clarity, accuracy and consistency of the way she wanted to change her case; and the lack of good enough explanations for the timing of the changes she wanted to make. My conclusion in all the circumstances was that the changes did not introduce and express matters on which she would have a real prospect of succeeding at trial.

I would also have granted the Defendant’s application to strike out her claim. The claim did not comply with the rules of court applicable to the drafting of a harassment claim. As pleaded, I could not be satisfied that her statement of case disclosed reasonable grounds for bringing her claim as she did.

The Claimant has an account she wishes to give of her personal and financial history with the Defendant, and about the harm he has caused her peace of mind and personal wellbeing, and her business, social and family life. I take no view about that account as such. The only question for me has been whether the Claimant can compel the Defendant to give his side of the story to the High Court. My conclusion, as things stand, is that she cannot.

[17] ff the judge discusses ‘submission’ aka voluntary appearance under Article 26 Brussels Ia and essentially held [42] that the former King’s reservation of his jurisdictional position (made within the PCR prescribed 14 days within acknowledgment of service) pending resolution of the state immunity issue was apparently intended to be comprehensive, rather than to have deliberately conceded anything.

I believe that finding is right in essence however there is also a clear warning here for defendants that if they wish to oppose jurisdiction they better be comprehensive about it from the start.

For the determination of locus delicti commissi and locus damni under Article 7(2) Brussels Ia, the judge holds [62] ff

In this case, the parties have proceeded on the basis that I must hold in mind both the autonomous (internationally consistent) meaning of the ‘place of the harmful event’ together with the guidance on that provided by the CJEU, and, at the same time, the function of national tort law in identifying the legally relevant ‘harm’ in the first place. Authority for that appears (in a non-defamation case) in the decision of the Supreme Court in JSC BTA Bank v Ablyazov & Anor [2020] AC 7272 per Lord Sumption and Lord Lloyd-Jones JJSC at [32]-[33]. Having confirmed that the expression ‘place where the harmful event occurred‘ required an autonomous interpretation, the judgment continues:

However, the requirement of an autonomous interpretation does not mean that the component elements of the cause of action in domestic law are irrelevant. On the contrary, they have a vital role in defining the legally relevant conduct and thus identifying the acts which fall to be located … In particular, whether an event is harmful is determined by national law.

Approaching the question of the special jurisdiction therefore requires considering the autonomous question of whether England is either the place of the ‘event giving rise to the damage’ or the place ‘where the damage occurs’; and the relevant ‘event’ and ‘damage’ are determined by English tort law. The latter requires consideration of whether the relevant components of an actionable tort, occurring in England, have been made out to the relevant standard.

A lot more can be said about this issue. The need for autonomous interpretation on the one hand (note [103] the reference to CJEU Melzer which IMHO can work both in the defendant’s and claimant’s favour), the role of the putative lex causae for Vorfrage and characterisation, and the role of the lex fori in same on the other are not easily reconciled.  And as I point out here, there is a lot that JSC BTA Bank did but also a lot it did not entertain.

Ugljesa is absolutely right in his post to refer, as the judge did in current case, to CJEU Shevill’s potential for national law to limit forum shopping possibilities, however the CJEU in Shevill (para 41) does also emphasise the Brussels’ regime’s effet utile (which nb also made it into ECHR Arlewin v Sweden and engages ia Article 6 ECHR):

The criteria for assessing whether the event in question is harmful and the evidence required of the existence and extent of the harm alleged by the victim of the defamation are not governed by the Convention but by the substantive law determined by the national conflict of laws rules of the court seised, provided that the effectiveness of the Convention is not thereby impaired.  (emphasis added)

Ugljesa finally is absolutely right in pointing to the lack of Rome II input into the extraterritoriality issue and this I suspect is but one element on which appeal may and can be sought.

Geert.

EU Private International Law, 4th ed. 2024, Heading 2.2.12.2

1/2 Following earlier only partially successful foreign sovereign immunity defence, former Spanish King Juan Carlos succeeds in Brussels Ia jurisdictional challenge to harassment claim
E&W held to be neither locus damni nor loci delicti commissi, nor centre of claimant's interest

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

https://bsky.app/profile/gavclaw.bsky.social/post/3kb3ifsvp742p

 

Verband Wirtschaft im Wettbewerb
Énergie
Les publicités pour les fours et les hottes doivent faire référence tant à la classe d’efficacité énergétique de ces produits qu’à la gamme des classes d’efficacité

The Court of Justice delivered today its judgment in case C‑21/22 (OP v Notariusz Justyna Gawlica), which is about the Succession Regulation:

“1. Article 22 of Regulation (EU) No 650/2012 […] must be interpreted as meaning that a third-country national residing in a Member State of the European Union may choose the law of that third State as the law governing his or her succession as a whole.

2. Article 75 of Regulation No 650/2012, read in conjunction with Article 22 of that regulation, must be interpreted as not precluding – where a Member State of the European Union has concluded, before the adoption of that regulation, a bilateral agreement with a third State which designates the law applicable to succession and does not expressly provide for the possibility of choosing another law – a national of that third State, residing in the Member State in question, from not being able to choose the law of that third State to govern his or her succession as a whole”

Source: https://curia.europa.eu/juris/document/document.jsf?mode=DOC&pageIndex=0&docid=278536&part=1&doclang=EN&text=&dir=&occ=first&cid=283716

AG De La Tour delivered today his opinion in case C‑566/22 (Inkreal s. r. o. v Dúha reality s. r. o.), which is about Article 25 Brussels I bis:

“Article 25 of Regulation (EU) No 1215/2012 […] must be interpreted as meaning that in a purely internal situation, it is not applicable based solely on the fact that the parties domiciled in the same Member State have designated a court or courts of another Member State to settle any disputes between them which have arisen or which may arise”.

Source: https://curia.europa.eu/juris/document/document.jsf?docid=278538&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=220250

KBC Verzekeringen
Rapprochement des législations
Un vélo à assistance électrique ne relève pas de l’obligation d’assurance des véhicules automoteurs car il n’est pas actionné exclusivement par une force mécanique

Sofatutor
Approximation of laws
Le droit du consommateur de se rétracter d’un abonnement souscrit à distance, initialement gratuit et reconduit automatiquement, est garanti une seule fois

Ascenza Agro et Industrias Afrasa / Commission
Agriculture
Le Tribunal rejette le recours contre le non-renouvellement de l’approbation de la substance active chlorpyriphos-méthyl, utilisée dans des produits phytopharmaceutiques

Article 1 of the following decision confirms the participation of Ireland to e-Codex: Commission Decision (EU) 2023/2099 of 28 September 2023 confirming the participation of Ireland in Regulation (EU) 2022/850 of the European Parliament and of the Council on a computerised system for the cross-border electronic exchange of data in the area of judicial cooperation in civil and criminal matters (e-CODEX system), OJEU L 241, 29.9.2023, p. 144

Source: http://data.europa.eu/eli/dec/2023/2099/oj

X v Y (*grumbles his usual grumble about anonymisation*) ECLI:NL:GHDHA:2023:1759  is an interesting judgment discussing, yet not determining, the extent of Rome I’s Article 18’s ‘burden of proof’ provision. Clearly the discussion has echoes for the similar provision in Article 22 Rome II.

Article 18 Rome I

Burden of proof

1.   The law governing a contractual obligation under this Regulation shall apply to the extent that, in matters of contractual obligations, it contains rules which raise presumptions of law or determine the burden of proof.

2.   A contract or an act intended to have legal effect may be proved by any mode of proof recognised by the law of the forum or by any of the laws referred to in Article 11 under which that contract or act is formally valid, provided that such mode of proof can be administered by the forum.

Article 22 Rome II

Burden of proof

1.   The law governing a non-contractual obligation under this Regulation shall apply to the extent that, in matters of non-contractual obligations, it contains rules which raise presumptions of law or determine the burden of proof.

2.   Acts intended to have legal effect may be proved by any mode of proof recognised by the law of the forum or by any of the laws referred to in Article 21 under which that act is formally valid, provided that such mode of proof can be administered by the forum.

The court first of all [5.6] justifiably confirms that A24(1) BIa does not stand in the way of its jurisdiction, which parties agreed to in a choice of court clause per A25 BIa: the claim concerns monies allegedly still owed on the transfer of a share of ownership in German real estate. It does not have rights in rem in that property as the object of the proceedings.

Choice of law was made for German law. The A18 Rome I issue is triggered by a declaration made by the claimant in the main proceedings, in front of a German notary. Claimant argues that statement was made to speed up the entry of the sale in the German land register, not to discharge the defendant in the main proceedings of the monies owed. The court [5.9] holds that German law as a result of A18 only determines the burden of proof and evidentiary value of that statement, to the degree German law has specific rules relating to the law of obligations generally or for the specific contract at issue.

On the facts, the court [5.16] holds that it need not determine the lex causae issue for evidentiary value under the Dutch ‘antikiesregel’ ―meaning the court being absolved of the proprio motu obligation to determine applicable law if the alternatives lead to the same result― for under neither laws the notarial statement has discharging effect. I for one am not convinced that the antikiesregel complies with the effet utile of EU private international law, but that is a different matter.

Geert.

Extent of A18 Rome I's burden of proof being subject to lex causae, v procedure being subject to lex fori (here: sale of ownership of German real estate, subject to German law as lex voluntatis)

Den Haag court in appeal, X v Y ECLI:NL:GHDHA:2023:1759 https://t.co/SXDUgdORYB

— Geert Van Calster (@GAVClaw) September 19, 2023

Changement du mode de publication du Journal officiel de l’Union européenne : comment consulter les informations relatives aux affaires introduites devant la Cour de justice ou le Tribunal ou clôturées par ces juridictions à partir du 1er octobre 2023 ?

La Quadrature du Net e.a. (Données personnelles et lutte contre la contrefaçon)
Rapprochement des législations
Avocat général Szpunar : la conservation et l’accès à des données d’identité civile couplées à l’adresse IP utilisée devraient être permis lorsque ces données constituent le seul moyen d’investigation permettant l’identification d’auteurs d’infractions exclusivement constituées sur Internet

Ryanair / Commission
Aide d'État
Aides d’État en faveur de SAS pendant la pandémie de Covid-19 : la Cour rejette définitivement les recours de Ryanair concernant les garanties de prêts mises en place par la Suède et le Danemark en avril 2020

Commission / Royaume-Uni (Marquage fiscal du gazole)
Fiscalité
La Cour de justice condamne le Royaume-Uni à une somme forfaitaire de 32 millions d’euros en ce qu’il n’a pas interdit l’utilisation de carburant marqué aux fins de la navigation de plaisance privée dans le délai imparti par la Commission

Espagne / Commission
Aide d'État
Le Tribunal annule la décision de la Commission déclarant illicite le régime fiscal espagnol de déduction des prises de participations indirectes dans des sociétés étrangères

Valve Corporation / Commission
Concurrence
Jeux vidéo en ligne : le Tribunal confirme que le géoblocage de clés d’activation pour la plate-forme Steam a enfreint le droit de la concurrence de l’Union

Entrée en fonctions de deux nouveaux membres du Tribunal de l’Union européenne
Entry into office of two new Members of the General Court of the European Union

In C-632/21 JF and NS v Diamond Resorts Europe Limited (Sucursal en España) (‘Diamond Resorts Europe) the CJEU has held that Article 6(2) Rome I on consumer contracts is exhaustive, preventing a consumer to shop for more favourable laws different from those of their habitual residence.

Applicants are British consumers resident in the UK who concluded, on 14 April 2008 and 28 June 2010 respectively, two timeshare contracts with Diamond Resorts Europe, an English company operating as a branch in Spain of the Diamond Resorts group. The accommodation subject to the timeshare is spread across the EU with focus on Spain. Applicants request invalidity of the contracts on the basis of the Spanish timeshare laws, which implement the relevant EU law at issue. They seize a Spanish court, claiming the proceedings have as their object a right in rem in immovable property (the jurisdictional echo of C-73/04 Klein v Rhodos Management already should have made them think otherwise imho). Defendants argue the claim concerns a right in personam which in consequence of Rome Convention’s and /or the Rome I Regulation’s provisions on consumer contracts, are subject to the laws of the habitual residence of the consumers, i.e. English law.

The CJEU first of all holds (para 55) that as a consequence of Articles 66(a) and 126 of the UK-EU Withdrawal Agreement, the Rome Regulation applies to one of the contracts only, the other one being subject to the Rome Convention. It also confirms (para 52) that despite the contracts having been concluded between UK parties, the contract is clearly ‘international’ given the presence of foreign elements.

Next, it confirms without much ado (para 70 ff) the contracts as consumer contracts, notes lex voluntatis as being English law, and in consequence of the consumer title, that lex voluntatis being the same lex contractus as would have applied in the absence of choice.

Importantly, with reference mutatis mutandis to CJEU Schlecker, and a clear hint as to the future reply in VK v N1,

“An interpretation whereby it would be possible to derogate from the conflict-of-law rules laid down by the Rome I Regulation for determining the law applicable to consumer contracts, on the ground that another law would be more favourable to the consumer, would necessarily seriously undermine the general requirement of predictability of the applicable law and, therefore, the principle of legal certainty in contractual relationships involving consumers” (para 75)

A further question on Article 9 overriding mandatory provisions is declared inadmissible for lack of any detail on the nature of the national laws, given by the referring court.

Geert.

New #CJEU judgment applicable law Rome I, re timeshare agreements and consumer law
C-632/21 Diamond Resorts Europehttps://t.co/IBmyg43pzM

— Geert Van Calster (@GAVClaw) September 14, 2023