Flux européens

Les Mousquetaires et ITM Entreprises / Commission
Concurrence
La Cour annule, partiellement, les arrêts du Tribunal et, en conséquence, les décisions de la Commission ordonnant des inspections dans les locaux de plusieurs entreprises françaises du secteur de la distribution en raison des soupçons de pratiques anticoncurrentielles

Prigozhina / Conseil
Relations extérieures
Le Tribunal annule les mesures restrictives appliquées à Mme Violetta Prigozhina, mère de M. Yevgeniy Prigozhin, dans le cadre de la guerre menée par la Russie contre l’Ukraine

Thank you Gilles Cuniberti for flagging and discussing the French Supreme Court’s judgment in JE and B v Barclay Pharmaceuticals [cross-referral to the English judgment makes this Barclay Pharmaceuticals v Mekni]. Much of this post is already included in prof Cuniberti’s posts.

The core of the case concerns the enforcement of an English judgment [Barclay Pharmaceuticals Ltd v Antoine Mekni and others, [2018] 6 WLUK 461] which, in assisting Barclay Pharmaceuticals with enforcement of an earlier established £8.7 million debt (since accrued with costs etc to about £12 million), had declaratorily held that a large number of bank accounts and other entities which for the most part purport to belong to parties other than Mr Mekni, are in truth owned by him. Mr Mekni did not appear in the English declaratory relief proceedings hence did not there object to jurisdiction.

The relevant issue in the French proceedings for the purposes of the blog, is first of all Article 24(3) Brussels Ia’s exclusive jurisdiction for ‘proceedings which have as their object the validity of entries in public registers’. As Gilles had earlier discussed, here the Supreme Court [5-6] held that an English judgment determining ownership in shares held in public registers, does not engage ‘the validity of entries in public registers’, for said exclusive jurisdiction, it holds, only extends to the formal validity of such entry, not to the ownership of the assets related to the entry.

As Gilles notes, it was possible for the SC succinctly to deal with the A24(3) argument for under the applicable French law relating to the type of corporation involved, whose shares were the object of the proceedings, the only impact of the (non-obligatory) registration was to create limited third party effect; registration has no bearing on the existence, validity and ownership of the shares. Professor Cuniberti justifiably signals that a distinction between substantive and formal validity may not always be easily made.

The second issue of note to the blog, is the issue of service. A43(1) BIa prescribes that

Where enforcement is sought of a judgment given in another Member State, the certificate issued pursuant to Article 53 shall be served on the person against whom the enforcement is sought prior to the first enforcement measure. The certificate shall be accompanied by the judgment, if not already served on that person.

Recital 32 adds

In order to inform the person against whom enforcement is sought of the enforcement of a judgment given in another Member State, the certificate established under this Regulation, if necessary accompanied by the judgment, should be served on that person in reasonable time before the first enforcement measure. In this context, the first enforcement measure should mean the first enforcement measure after such service

In the case at issue, service happened at 2:55 PM and enforcement at 3 PM. Does that leave a ‘reasonable time’? I share Gilles’ frustration that the SC [3] merely replied that French CPR does not require the SC to engage with grounds of appeal that are manifestly unarguable

En application de l’article 1014, alinéa 2, du code de procédure civile, il n’y a pas lieu de statuer par une décision spécialement motivée sur ces griefs qui ne sont manifestement pas de nature à entraîner la cassation.

The take-away from this is that the SC in the circumstances did not see a clear infringement of A43 juncto A53 BIa. That does of course leave a lot of speculation as to when the timing of service might lead to enforcement issues – crucial too, I would suggest, in case of provisional measures.

Geert.

 

Statistiques judiciaires 2022 : un contentieux marqué par les enjeux majeurs du monde contemporain (État de droit, environnement, protection de la vie privée à l’ère du numérique…) et par les mesures restrictives adoptées par l’Union européenne dans le cadre de la guerre en Ukraine

Stadt Frankfurt (Oder) et FWA
Rapprochement des législations
Politique de l’eau potable : selon l’avocate générale Medina, les États membres ont l’obligation de ne pas autoriser un projet susceptible d’entraîner une détérioration de la qualité d’une masse d’eau

Krajowa Rada Sądownictwa (Maintien en fonctions d’un juge)
Droit institutionnel
L’avocat général Rantos doute que le mécanisme d’autorisation par la KRS du maintien en fonction des juges polonais au-delà de l’âge du départ à la retraite offre des garanties suffisantes d’indépendance

MÁV-START
Le repos journalier s’ajoute au repos hebdomadaire, quand bien même il précéderait directement ce dernier

Hengshi Egypt Fiberglass Fabrics et Jushi Egypt for Fiberglass Industry / Commission
Relations extérieures
Une subvention accordée par la Chine peut être imputée à l’Égypte en tant que pays d’origine ou d’exportation d’un produit frappé par des mesures compensatoires

Soriano v Forensic News LLC & Ors [2023] EWCA Civ 223 deals with the discipline an English court should hand out to defendants trying to use foreign proceedings and their discovery rules, to assist them in the defence of a claim (here a libel claim) in England and Wales. (Defendants’ attempt at dismissing jurisdiction had earlier failed).

In a joint and fairly succinct opinion, Voss MR, Carr LJ and Warby LJ dismiss the contention that the defendants should be served with an anti-suit injunction (also refused at first instance by Murray J a mere 20 days back; this was a most swift appeal) to restrain them from continuing US proceedings. These had been initiated in the District Court for the Southern District of New York (the DCSDNY) on 6 December 2022. Defendants seek an order there requiring HSBC USA to produce two very broad categories of banking documents relating to Mr Soriano’s companies. Defendants here, claimants in the US, rely in 28 USC §1782 (a so-called 1782 application) allowing a US court to provide assistance to an applicant in gathering evidence in support of legal proceedings in a foreign court. It provides that: “[t]he district court … may order [a person] to … produce a document or other thing for use in a proceeding in a foreign … tribunal”, and “[t]he order may be made … upon the application of any interested person”.

The Court of Appeal relied like the judge on the grounds per South Carolina Insurance Co v. Assurantie Maatschappij “De Zeven Provincien” NV [1987] 1 AC 24 to find that defendants were not guilty  of “conduct which [was] oppressive or vexatious or which [interfered] with the due process of the court” in seeking the US order.

In essence, the Court supports the lawful exercise of evidence gathering and does not easily decide that use of foreign proceeding for same be considered oppressive.

Geert.

Discovery forum shopping
Important, lightning fast unsuccessful appeal on approach to defendants using foreign courts to gather evidence to support their defence to litigation in E&W
No abuse found

Soriano v Forensic News & Ors [2023] EWCA Civ 223https://t.co/gq9nmzmf2H

— Geert Van Calster (@GAVClaw) March 1, 2023

The wide (even if not absolute: see Handbook 2.162 ff) catchment area of Article 24(1) Brussels Ia in the specific context of tenancies is contested, so much so that when the Brussels I Regulation was being revised, the Commission proposed to widen the existing, narrow exception for short-time holiday lets, to rental agreements concerning tenancies of premises for professional use. However it was not followed by Council or Parliament.

Despite this established application of A24(1), the appeal judges in X v Y  ECLI:NL:GHAMS:2023:306 (seriously why the need for anonymity) question its applicability to a claim in rent arrears with the rental agreement concluded by the tenant so as to let the rooms professionally. Parties have agreed choice of court and law for The Netherlands, despite the property being located in Austria (the judge tries to keep even that from public eyes yet it is given away in 3.10). The judges 3.10 mistakenly nota bene assume that non-exlusively expressed choice of court, is indeed non-exclusive (A25 BIa says otherwise).  The judge equally wrongly suggests that a claim for arrears without claims viz for instance enjoyment of the property, obligations vis-a-vis the neighbours etc., is not caught by A24(1).

Should anyone think CJEU C-73/77 Sanders v Van der Putte comes to the rescue, they are wrong. I know the CJEU itself sloppily summarised that  case [13] in C-280/90 Hacker as meaning that A24(1) ‘did not apply to a contract which concerned the operation of a business’. In reality, in Sanders the CJEU concluded that A24(1) was not engaged due to the claim relating to the lease by lessor to lessee of a usufruct on a retail business, with lessor itself renting the property from a third party (that was not involved in the proceedings): that claim simply did not relate to a ‘tenancy’ between parties.

The Dutch courts clearly do not have jurisdiction and whichever party in the Dutch proceedings has an interest in that being confirmed, should say so.

Geert.

EU Private International Law, 3rd ed. 2021, 2.174 ff.

First instance Amsterdam postponing decision on A24(1) BIa 'tenancy' jurisdiction
Landlord domiciled in NL, tenants in DE, house in AT
Claim for late rent and related penalties
Court minded to uphold choice of court for NL courtshttps://t.co/iGRAYzz3Cw

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

Fenix International
Fiscalité TVA
Plateformes en ligne et collecte de la TVA : le Conseil n’a pas outrepassé les limites de son pouvoir d’exécution en précisant que le gestionnaire d’une plateforme, telle que Only Fans, est présumé être le prestataire des services fournis

This post to flag my analysis of SAS Saloni France v SAS Nexity Logement, Tribunal de Commerce de Paris, 19ème chambre, 14 December 2022, over at Lexis Nexis arbitration. It is a rare application by a French court of first
instance, of the fairly recently introduced theory of unforeseeability (imprévision) in the context of the price spike in energy costs, transport and packaging as a result particularly of the Russian war in Ukraine.

Geert.

 

 

 

 

Harris ea v Environment Agency [2022] EWHC 2606 (Admin) I fear is another case I let slip on the blog. It is a judgment which discusses to right to an effective remedy following the earlier finding in Harris & Anor v Environment Agency [2022] EWHC 2264 (Admin) that the Agency’s allowing water extraction in three Sites of Special Scientific Interest was in breach of retained EU law, namely Article 6(2) Habitats Directive (measures designed to prevent the deterioration of habitats and species) and of the equally retained EU law precautionary principle.

The issue at stake in current case is the appropriate remedy, a classic challenge in judicial review cases in instances where the authorities have been found in breach of an obligation of effort rather than one of result. Those of us involved in climate litigation will appreciate the difficulty.

The Agency suggests the finding that there was a breach is enough of a remedy. Claimants disagree, seeking an order in the nature of [2018] EWHC 315 (Admin) which the Agency says must be distinguished on the grounds that the regulatory requirements relevant to that order, they argue, is more prescriptive.

Johnson J holds [7] that ‘the claimants have not just a presumptive common law right to a remedy, but also a statutory right’, given Article 19(1) TEU’s right to an effective remedy. A mandatory order that the Environment Agency must formulate a plan is issued [10], a plan which must be produced within 8 weeks [13]; that deadline has passed at the time of posting], disclose that plan to claimants [17] and with the precise formulation of the order [26] being

“The defendant shall, by 4pm on 7 December 2022, provide to the claimants details of the measures it intends to take to comply with its duties under Article 6(2) of the Habitats Directive (“Art 6(2)”) in respect of The Broads Special Area of Conservation. The details shall include an indication as to the time by which the defendant intends to have completed those measures. It shall also include, so far as practicable, the scientific and technical basis for the defendant’s assessment of the measures that are necessary to comply with Art 6(2).”

More on the nature of the kind of orders judges may give to authorities is currently discussed in a wide range of environmental law, including climate law litigation. It is an interesting application of the nature of judicial review and trias politica..

Geert.

Monash University, Law 5478 Strategic and Public Interest Litigation.

Remedy under common law when public authority has been found to have acted illegally
A6(2) EU Habitats law, water extraction
Agency ordered to produce plan & its legal, science basis, within 8 weeks

Harris ea v Environment Agency [2022] EWHC 2606 (Admin)https://t.co/6OKSKh7caJ pic.twitter.com/SKjEnpnQF0

— Geert Van Calster (@GAVClaw) October 19, 2022

A bit of a late follow-up to a 1 November Tweet but hey ho, I have been a tad busy and it is nevertheless good to still have the post up.

East-West Logistics Llp v Melars Group Ltd [2022] EWCA Civ 1419 is a good reminder of the importance of ascertainability by third parties for determination of a corporation’s Centre of Main Interests – COMI. The appeal against Miles J’s finding in [2021] EWHC 1523 (Ch) was rejected and Malta as place of COMI confirmed.

The Company was incorporated in the British Virgin Islands -BVI and entered into a charterparty with the Petitioner in December 2011 for a shipment to Turkmenistan. The address of the Company in the charterparty was stated to be in the BVI. The charterparty contained a clause providing for disputes to be resolved by arbitration in London under English law. Following a disputed shipment, the Petitioner tried to but failed to launch LCIA arbitration (the tribunal holding it did not have jurisdiction), followed by successful proceedings in BVI resulting in a judgment in default against the company, which the latter later managed to have set aside. Without notifying the Petitioner, the Company had in the meantime moved its place of incorporation, and hence its registered office, to Malta.

On 19 July 2016 the Petitioner then presented a winding up petition in London based upon its BVI judgment debt. The Petition alleged that COMI of the Company was in the UK, citing pro UK as COMI [11] (prima facie rather flimsily) that i) the six commercial contracts concluded by the Company of which the Petitioner was aware (including its own charterparty) were in the English language, were governed by English law and had arbitration clauses providing for arbitration in London; and ii) the Company participated in the LCIA arbitration in London and was represented by a London firm (or firms) of solicitors. Against Malta as COMI, it suggested i) the Company did not actually have an office there, its registered office address being that of a Cypriot law firm providing company administration services; ii) the Company did not have any employees or conduct any business in Malta; iii) the Company’s sole director was a nominee who was a Swiss national, resident in South Africa; and iv) the Company’s sole shareholder and principals were Russian.

Baister J made a winding-up order, citing [20] the forum shopping background and the corporation not much being involved in physical, rather virtual trade, deciding ‘ by a narrow margin and with misgivings, that on balance the greater use of English law for contracts, the greater use of London as a seat of arbitration, the actual recourse to or forced involvement in legal proceedings here and the consequential use of English lawyers makes the UK, on the balance of probabilities, the main centre of those interests. The company’s affairs seem to have been conducted in this country more than in Switzerland [SW plays a role because of a Swiss national, GAVC],  certainly as far as contractual and litigation interests were concerned, although it is, I accept, hard to be precise.”

That judgment was overruled on appeal, with Miles J concluding ‘that Judge Baister had erred in principle in three ways in his approach to the determination of the Company’s COMI. The first was in relation to the importance of the presumption in Article 3(1), the second was in relation to the concept of ascertainability, and the third was in failing to distinguish between matters of administration of the company’s interests and matters going to the operation of its business.’

Upon further appeal, Lewison LJ agreed with Miles J. [46] ‘lack of evidence that the debtor actually carries out any activities at the place of its registered office does not allow the court to ignore or disregard the legal presumption under Article 3(1).’

He is right! [47] ‘The court must be alert to detect fraudulent or abusive forum shopping by purported changes of COMI by a debtor’ however ‘the question in such cases is whether the move of COMI is real or illusory. It is not whether the move of the debtor’s registered office is real or illusory.’

[63] “the court should not invent a hypothetical “typical” third party creditor with “average” or “normal” characteristics, and form a view on what might (or might not) have been apparent to that creditor in the course of a notional dealing by him with the company. Neither the EU Regulation nor the jurisprudence of the CJEU refer to the concept of a “typical” creditor, but refer instead, and more generically, to “creditors” or “third parties”.”

[80] “none of the factors relied upon by the Petitioner were, individually or collectively, sufficient to establish that the Company actually conducted the administration of its interests on a regular basis in England (or any other particular location) so as to displace the presumption in favour of Malta under Article 3(1).”

One’s intuition in a case like this may be not to have much sympathy for a corporation engaging in COMI /seat forum shopping. However that intuition is not reflected in the Regulation’s presumptive treatment of incorporation as COMI.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 5.6.1.

Centre of main interests determination under EU #Insolvency Regulation 2015/848
Unsuccessful appeal against confirmation of COMI as Malta, not E&W
Discussion of 'third party ascertainability'

East-West Logistics Llp v Melars Group Ltd [2022] EWCA Civ 1419https://t.co/CZhTRhtybC

— Geert Van Calster (@GAVClaw) November 1, 2022

I am hoping for a few gaps in yet again a mad diary this week, to catch up on quite a few developments I tweeted on earlier. First up is judgment in C‑147/21 Comité interprofessionnel des huiles essentielles françaises (CIHEF) et al v Ministre de la Transition écologique ea. The case concerns the possibility for Member States to adopt restrictive measures on commercial and advertising practices for biocidal products. It is a good illustration of the mechanism of precaution or pre-emption in EU law, and of the classic application of Article 36 TFEU’s exceptions to free movement of goods.

Applicants contest the French restriction of commercial practices such as discounts and rebates, as well as advertising, for two specific biocides categories: rodenticides and insecticides. The secondary law benchmark is Biocidal Products Regulation 528/2012.

As for the first category, commercial practices such as discounts, price reductions, rebates, the differentiation of general and specific sales conditions, the gift of free units or any equivalent practices, the Court, also seeking report in the AG’s Opinion, held [33] that the Regulation’s definitions of ‘making available on the market’ and ‘use’ of biocidal products are as such sufficiently broad to cover commercial practices linked to the sale of those products, however [34] that the Regulation does not seek to harmonise the rules relating to commercial practices linked to the sale of biocidal products.

That leaves the classic CJEU Case 8/74 Dassonville test (all measures of a Member State which are capable of hindering, directly or indirectly, actually or potentially, trade within the European Union are to be considered as measures having an effect equivalent to quantitative restrictions within the meaning of that provision), tempered by Joined cases C-267/91 and C-268/91 Keck et Mithouard : there is no direct or indirect hindrance, actually or potentially, of trade between Member States, in the event of:

• the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements [[39] of current judgment the CJEU confirms this is the case here]
• on condition that those provisions apply to all relevant traders operating within the national territory [41 held to to be the case here] and that they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States [[42] held to have to be judged by the national court but 43 ff strongly suggested to be the case here (i.e. there not being distinctive affectation of domestic cq imported products)].

Should the national court decide that (unlike what the CJEU indicates) the French measures are not selling arrangements, carved out from Article 34’s scope altogether, the CJEU [48] ff holds that the French measures most likely  (the final arbiter will be the French judge) enjoy the protection of both Article 36 TFEU’s health and life of humans exception, and the Court’s Cassis de Dijon-inserted ‘overriding reason in the public interest’ aka the rule of reason aka the mandatory requirements exception: strong indications are that the measures are justified by objectives of protection of the health and life of humans and of the environment, that they are suitable for securing the attainment of those objectives and that they do not not go beyond what is necessary in order to attain them. The referring court will have to confirm.

As for the French obligations relating to advertisements addressed to professionals (which includes in particular adding a specific statement), here the Court holds [60] ff that the Regulation does exhaustively harmonise the  wording of statements on the risks of using of biocidal products which may appear in advertisements for those products. This precludes the relevant French rules.

[68] ff however the French prohibition of advertising addressed to the general public, is held not to have been regulated by the Regulation, with the Court coming to the same conclusions as above, viz Article 34’s selling arrangements carve-out and, subsidiarily, Article 36 TFEU’s and the rule of reason exceptions.

A final check therefore is to be done by the referring court however it seems most likely the French restrictions will be upheld.

Geert.

EU Environmental Law, 2017, Chapter 17, p.308 ff.

The Biocides judgment is now here https://t.co/shbrzHqfzA, #neonicotinoids here https://t.co/o6zK33JHHe https://t.co/tjwfrI7Nil

— Geert Van Calster (@GAVClaw) January 20, 2023

Bank M. (Conséquences de l’annulation du contrat)
Rapprochement des législations
Avocat général Collins : à la suite de l’annulation d’un contrat de prêt hypothécaire en raison de la présence de clauses abusives, les consommateurs peuvent faire valoir à l’encontre des banques des prétentions allant au-delà du remboursement de la prestation monétaire ; les banques non

China Chamber of Commerce for Import and Export of Machinery and Electronic Products e.a. / Commission
Relations extérieures
Contestation antidumping : l’avocate générale Medina suggère à la Cour de reconnaître la qualité pour agir de la China Chamber of Commerce en tant qu’association représentative

Asociaţia "Forumul Judecătorilor din România"
Principes du droit communautaire
Selon l’avocat général Emiliou, une procédure de promotion des juges fondée sur une évaluation de leur travail et de leur conduite par une commission composée du président et de juges de la cour de rang supérieur compétente est compatible avec le droit de l’Union

Chief Appeals Officer e.a.
Principes du droit communautaire
Avocate générale Ćapeta : la mère d’un travailleur mobile de l’Union peut demander une prestation sociale sans que cette demande remette en question son droit de séjour

Lufthansa Technik AERO Alzey
Espace de liberté, sécurité et justice
La Cour précise la notion de « circonstances exceptionnelles » permettant à l’autorité judiciaire compétente de suspendre l’exécution d’une décision certifiée en tant que titre exécutoire européen