Flux européens

O. G. (Mandat d’arrêt européen à l’encontre d’un ressortissant d’un État tiers)
Espace de liberté, sécurité et justice
La possibilité d’un refus d’exécution d’un mandat d’arrêt européen pour que la peine soit exécutée dans l’État membre de résidence doit également s’appliquer aux ressortissants de pays tiers

In Athenian Brewery and Heineken v Macedonian Thrace Brewery ECLI:NL:HR:2023:660, the Dutch Supreme Court is likely to refer to the CJEU on the approach to ‘relatedness’ in competition law cases, required to substantiate anchor jurisdiction. It is the Greek authorities that have held that  Heineken’s Greek daughter, in which it held close to 99% of shares, had infringed competition law.

Competition law works with an assumption of attributability of daughter undertakings’ infringements to their mother corporation: see CJEU ENI and recently C-377/20 SEN /AGCM. The SC now should like to ask the CJEU how that assumption relates to Article 8(1) Brussels Ia’s anchor defendant mechanism, which requires claims to be ‘closely related’, whether the case needs to be distinguished from CJEU CDC seeing as it is the Greek, not the EU competition authorities which held the infringement, and what impact the issue has on the assessment required per CJEU Universal Music and Kolassa.

An impending reference of note.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.13.1.

Competition law, jurisdiction
Dutch SC minded to refer to #CJEU on role of EU competition law's presumption of mother corp involvement in daughter's abuse of dominant position, for purposes of A8(1) BIa's anchor defendant mechanism, 'closely connected'https://t.co/Mum1uuMWzT

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

In ECLI:NL:GHAMS:2023:887 (parties names anonymised given the nature of the case; husband and wife have been divorced under civil law since 2018; the ex-husband is domiciled and lives in France; the ex-wife is also domiciled in France yet is habitually resident in Israel) the courts at Amsterdam held upon appeal that the mere rabbinical (Conference of European Rabbis) instruction for a husband to appear before the Amsterdam Beth Din so as to grant get to his wife, does not suffice to make Amsterdam either locus delicti commissi or locus damni.

The French courts have already granted damages to the wife on the basis of the husband’s continued refusal to engage with the Beth Din. Authority referred to viz A7(2) BIa includes CJEU Vereniging van Effectenbezitters, and leads the court to conclude that Amsterdam is not a new locus delicti commissi viz the husband’s continued refusal to engage with the religious courts, but rather a continuation of the same delicti commissi which led to the French allocation of damages [3.11]. [3.12] the wife’s Mozaik reference to CJEU Shevill is not accepted with reference to the possibility under Jewish law of other Beth Dins to have jurisdiction in the case.

On locus damni and per CJEU Universal Music, I understand the reluctance to identify Amsterdam as locus damni given the lack of links between the case and the parties, to The Netherlands. Per CJEU Ofab I would suggest however that a different outcome on locus delicti commissi could have been possible.

Geert.

EU Private International Law, 3rd ed. 2021, 2.432 ff.

Interesting judgment Amsterdam
A7(2) Brussels Ia

Rabbinical instruction for husband to appear before Amsterdam Beth Din to grant Get to his wife, does not suffice to make A'dam locus delicti commissi
No locus damni in A'dam, eitherhttps://t.co/hClfbCYVwe #lawandreligion

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

Commission / Pologne (Indépendance et vie privée des juges)
Principes du droit communautaire
État de droit : la réforme de la justice polonaise de décembre 2019 enfreint le droit de l’Union

Prise de fonctions de M. Vittorio Di Bucci, nouveau greffier du Tribunal

A late post on the Amsterdam courts’ injunction, in interlocutory proceedings, ordering Hammy Media to remove secretly filmed amateur adult content. The judgment will be of interest to both privacy lawyers and jurisdictional aficionados.

The court is not too bothered with a neat and exhaustive analysis of the jurisdictional issue. This could have brought it to a discussion of CJEU e-Date, Bolagsupplysningen, etc,  removal orders as also applied in the context of the right to be forgotten, and of course the complex relationship between Brussels Ia and the GDPR when it comes to jurisdiction.

Instead, it identifies The Netherlands as a Member State with full jurisdiction as locus delicti commissi (ldc),  seemingly arguing [4.2] (it reasons are a bit muddled) that the use of a specific internet domain name to target Dutch customers, and the use of (whether not automatically translated) Dutch on that site, makes The Netherlands the (or perhaps: ‘a’?) ldc, which in one breath it mentions as meeting with the foreseeability requirement that is part of the general DNA of Brussels Ia. It supports its jurisdiction with a refernece to A79 GDPR’s ‘habitual residence’ of the data subject’s gateway as I discuss here.

Except for that material for which Hammy Media can show consent of all persons involved, the court then bans distribution of the material, worldwide as far as those resident in The Netherlands is concerned, and in The Nethelrands as far as the data subjects not resident in The Netherlands is concerned.

It does not specify why it introduces that distinction, although it is clearly linked to jurisdictional limitations it feels itself limited to.

Geert.

EU Private International Law, 3rd ed. 2021, 2.256.

Adult website ordered to remove secretly filmed and amateur nude content, unless it can show consent of all involved

Worldwide removal viz NL domiciled, NL removal viz non-NL doms

Jurisdiction based on A7(2) Brussels IA and A79 #GDPR

SEOK v Hammy Mediahttps://t.co/67YHgvCt5L

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

Gilles Cuniberti reviewed the CJEU’s judgment in C‑264/22 FGTI v Victoria Seguros here, and I agree the judgment in convoluted terms replies to a fairly obvious question. Obvious, for with Giles, I would suggest the

‘result of the subrogation is clearly to transfer to the Fund the rights of the victims. Subrogation does not establish new rights. It merely transfers existing rights from one person (the victim) to another (here the Fund).’ (The Fund is the French public body compensating the victims of certain torts, whereupon it is subrogated in the victim’s rights).

The CJEU much more verbosely comes to the same conclusion, without making reference to the potential complication signalled by Giles, with respect to a likely or at the least potential French judgment eg confirming a relevant settlement, which could lead to novatio arguments.

Geert.

#CJEU C‑264/22 FGTI v Victoria Seguros
Rome II
Lex causae (incl for rules on limitation) for action of third party subrogated to rights of injured party, v person who caused the damage is, in principle, that of the country in which that damage occurshttps://t.co/YYFUSlutB9

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

This post merely to cross-refer to my thoughts on Pikamäe AG’s Opinion in Joined Cases C 73/22P and C 77/22 P Grupa Azoty S.A. et al v European Commission, over at prof Peers’ EU Law Analysis blog.

Geert.

 

Infrastructure Services Luxembourg SARL ea v Kingdom of Spain [2023] EWHC 1226 (Comm) adds to the Smorgasbord of ECT ICSID (and other) award enforcement issues which I also signalled here, and links of course to CJEU Achmea, Komstroy and the like. (Note this point does not discuss the disclosure issues raised).

The Spanish Government is of course duty bound to fight all these awards (around 60 cases have been brought against it), and it is fighting the awards on many fronts (first by advocating for a different interpretation of the FET – Fair and Equitable Treatment standard in the ECT, further by trying internal ICSID or other review processes; subsequently by trying to have the awards annulled on a variety of grounds in the courts in ordinary of the curial seat; finally by resisting enforcement in the many jurisdictions where investors try to have the awards enforced.

The case at issue, in which Spain argues against registration of the relevant ICSID award, [56] deals with adjudicative jurisdiction: not jurisdiction for enforcement (compare the Australian decision in [2023] HCA 11, were recognition and enforcement were granted, but not execution). Fraser J first discusses Spain’s sovereign immunity argument, aptly summaring [57] ff the CJEU authority in Achmea and Komstroy. [67] he holds

Spain argued before me the questions of EU law set out above in a manner that elevated the status of these decisions of the CJEU, almost as though they were decisions of an over-arching international court that must bind all nations. For example, Spain referred to what it called “the international law aspects of the EU legal order” and also stated in its supporting documents for the application that “EU law is an inextricable part of international law.” There is no doubt that the law of the EU is correctly described as being international law, as self-evidently it governs relations between Member States which have collectively entered into international treaty obligations under the EU Treaties including the TFEU. Those treaty obligations have international effect and the institutions of the EU have primacy over domestic organs in certain important respects. However, as the claimants point out, this argument ignores the other aspects of international law that requires observance of existing express treaty obligations, and it also ignores the effect of Spain having pre-existing treaty obligations under other treaties such as the ICSID Convention and the ECT. The EU treaties do not trump these, nor do they override the relevant domestic law mechanism in the United Kingdom.

That is different for the UKSC authority in Micula. The judge here [79] concludes his recollection of the Micula principle with the observation that

The availability of defences to a foreign state faced with an application to register an arbitral award under the ICSID Convention is far narrower than those that would be available if an award were being enforced under the New York Convention.

[89] ff he further explains that the narrow set of grounds for refusal (immunity and, although he does not think these actually qualify as exception, lack of a written agreement to arbitrate and the validity of the Award itself) of an ICSID award, left open by the Supreme Court in Micula, and rejects them all. He does in my view considers this set too narrowly.

His conclusion [80]:

with the greatest of respect to the CJEU, it is not the ultimate arbiter under the ICSID Convention, nor under the ECT, and the difficulties in which Spain finds itself does not assist it here, given the United Kingdom’s own treaty obligations under the ICSID Convention, which are owed to all signatories of the ICSID Convention. The domestic mechanism established under the 1966 Act was enacted specifically in order to comply with these.

Obiter [81] ff he suggests the VCLT would lead to the same result, concluding on that point [87]

I consider that there is a clear conflict between the EU Treaties, as their application to international arbitration involving Member States has been decided by the CJEU and explained by Mr Baloch, and each (or more accurately both) of the ECT or the ICSID Convention. If intra-EU arbitration is contrary to EU law principles governing either primacy of the CJEU or EU principles generally, then this must (and can only) arise from the EU Treaties themselves. I cannot see how it can arise in any other way. Therefore, if that is the case, there must be a conflict. That conflict does not mean that the latter EU law principles as enunciated by the CJEU remove Spain from the ambit and scope of the ECT, or from the ICSID Convention. Spain’s arguments, as either amplified or further explained in submissions (including a letter to the court after distribution of the draft judgment) was that there was a conflict between articles 267 and 344 of the TFEU on the one hand, and article 26 of the ECT on the other. In those circumstances, Spain maintained that this conflict should be resolved in favour of the articles of the TFEU by what it called “the treaty conflict rule of EU primacy”. However, in my judgment that is simply a different way of Spain maintaining that both the ECT and the ICSID Convention – both of which clearly have signatories who are not Member States of the EU – should be interpreted by ignoring their clear terms regarding dispute resolution, in preference to granting the decisions of the CJEU complete primacy over those pre-existing treaty obligations of all states. I do not accept that is the correct approach, and I do not consider that such a result can be achieved by applying international law principles to conflicting treaty provisions.

His ‘overall conclusions’ on the EU law questions, are [88]

Question 1. Achmea arose out of the BIT between the Slovak Republic and Netherlands. Does Achmea‘s reasoning also apply to the ECT?

Answer: The reasoning in Achmea probably does also apply to the ECT, in terms of the applicability of EU law, as considered by the CJEU. This means that the CJEU would be most likely to reach the same conclusion on any EU law question referred to it under the ECT as it did under the BIT in the Achmea case. However, these are matters of EU law only. The conclusion does not “apply to the ECT” in the sense contended for by Spain. That conclusion is a purely EU law issue.

Question 2. Do TFEU Articles 267 and 344, as interpreted by the CJEU, have primacy over Article 26 of the ECT as a matter of international law?

Answer: No, they do not. Even if they did, this would go to the jurisdiction of the ICSID arbitral tribunal, and the ICSID Convention makes clear that this is a matter that is reserved to, and can only be resolved by, the procedure set down in the Convention, and not domestic law. This is helpfully stated in the commentary by Professor Schreuer on Article 54 which stated that “A domestic court or authority before which recognition and enforcement is sought is restricted to ascertaining the award’s authenticity. It may not re-examine the ICSID tribunal’s jurisdiction. It may not re-examine the award on the merits. Nor may it examine the fairness and propriety of the proceedings before the ICSID tribunal.” This passage was expressly approved by the Supreme Court in Micula at [68] which definitively states the approach under English law to this issue.

The answers to the series of questions that followed at sub-issues 2(a) to (e) are therefore of academic interest only and need not be addressed on this application.

[111] ff upon claimant’s appeal to these cases, the judge considers many of the cases I refer to here, and finds them largely to plea in claimant’s favour.

A stinging rebuke follows [122-123]

What Spain’s main EU law argument amounts to is this, at its heart. Spain accepts that it is a party to the ICSID Convention; it accepts that it is a party to the ECT. It freely acceded to both of those treaties. There is no doubt that the ECT expressly incorporates the ICSID arbitration provisions within it, adopting international arbitration to resolve disputes between Contracting Parties (which includes Spain) and private international investors, who are resident or domiciled in other countries. Yet Spain relies upon its membership of the EU, the EU Treaties that created that union, and the strictures imposed on those Member States by the CJEU’s rulings on the EU Treaties. These rulings have determined – again, outlined here only in summary – that there can be no valid arbitration provision adopted by Member States which grants jurisdiction to any arbitral tribunal that may touch upon matters of EU law. This is due to the primacy of the CJEU to determine all such EU law matters. Therefore Spain argues that there can be no jurisdiction, even for a properly constituted ICSID arbitral tribunal, to determine any dispute under the ECT between Spain and an investor from any other state. This is the case regardless of whether that investor is within, or without, another Member State, although it runs both lines of argument in the alternative. It also argues that any ICSID award, such as the Award in this case, must therefore have been reached without jurisdiction and so cannot be a valid award; and/or that it has immunity from recognition in the courts of the United Kingdom for what may broadly be described as the same, or similar, reasons.

The logical consequence (or extension) of this argument for it to be correct is that these decisions of the CJEU must be taken as binding all the parties to the ECT and to the ICSID Convention – whether Member States of the EU or otherwise – and take priority over all other treaty obligations entered into by any other state, even those obligations assumed by treaty prior to the creation of the EU. What this would mean, were Spain to be correct (and I am confident that it is not correct) is that by reason of the terms of the EU Treaties, and by reason of the rulings of the CJEU and its supremacy over EU law matters, the EU and the CJEU would have unilaterally changed – if not removed – all the existing treaty obligations of all the Contracting Parties to the ICSID Convention. I know of no framework of international law in which such a position could be correct. I would go further and observe that it simply cannot be correct. It would mean that the existing treaty obligations of any Contracting Party to the ICSID Convention would have been changed, without any intention or involvement on the part of that Contracting Party, a sovereign nation, as a result of rulings by the CJEU. That is not a conventional analysis of how international obligations work, and I reject Spain’s arguments. This completes my consideration of what I consider is the longer route.

I myself have argued, based on the ECT’s travaux, that the applicable law clause of Article 26 ECT includes the application of EU (State Aid) law and must be so applied by arbitration Panels applying the ECT. However we are yet to hear from the Panel in that particular case.  I would suggest that is a neater way to go about the issue.

Geert.

1/2 Unsuccessful application to set aside registration of #ICSID Energy Charter Treaty #ECT award

Foreign Sovereign Immunity (and impact on jurisdiction) per CJEU Achmea; non disclosure

Infrastructure Services Luxembourg SARL ea v Kingdom of Spain [2023] EWHC 1226 (Comm)

— Geert Van Calster (@GAVClaw) May 25, 2023

In Boettcher v Xio (UK) LLP & Ors [2023] EWHC 801 (Comm)  Eggers DJ ultimately rejected ia a forum non conveniens challenge viz a claim for damages for misrepresentations allegedly made to induce claimant to enter into a contract of employment with the First Defendant. In his decision he considered ia the role to play for the application of the (retained) Rome II Regulation.

[109] There was substantial dispute between the parties as to whether the applicable law was English law in accordance with A12(1) Rome II (culpa in contrahendo), alternatively A4(1) Rome II  (on claimant’s case), or German law in accordance with A(1) (on defendants’ case).

[110] The judge holds there is a good arguable case (with final judgment on lex causae to be discussed at trial [110](4)) that English law is the applicable law, however I do not find his arguments very convincing. [110](1)

the damages claimed by Dr Boettcher for the alleged misrepresentations arose as a result of his entering into the contract of employment with Xio UK, in particular his claims for loss of earnings and damages for mental distress and/or disappointment and/or reputational damage. It was therefore his entry into the contract of employment with Xio UK, and his subsequent employment with Xio UK, in reliance on the alleged misrepresentations which constituted the relevant damage.

This, I would suggest, is plainly wrong. The alleged misrepresentations are the delictus committi; the formation of the contract (held with reference to Dicey 35-026 to have taken place in England) is the fallout of the delict. Yet it does not constitute its ‘direct damage’. The damage, as also seemingly formulated in the claim, are loss of earnings and damages for mental distress and/or disappointment and/or reputational damage. Seeing as claimant’s earlier employment for which he left currently litigated one, was overwhelmingly connected to Germany, where he also seems to have the core of his financial interests (the location of claimant’s bank account is too readily dismissed [110](2) as not being relevant), Germany would seem to have a lot going for it in terms of the lex causae, or at the very least a Mozaik of German (for loss of earnings) and English law (for mental distress), which I do not see readily displaced by English law as one applicable law under Article 4(3) Rome II.

Article 12’s culpa in contrahendo rule is correctly held [110](3) not to apply to relevant parties.

There are other factors that led to the forum non challenge not succeeding, however I do indeed think that the applicable law issue requires further consideration at trial.

Geert.

Failed jurisdictional challenge ia on forum non conveniens grounds, with consideration ia of Rome II applicable law

Boettcher v (Xio (UK) LLP & Ors [2023] EWHC 801 (Comm)https://t.co/dE6jE9mJfV

— Geert Van Calster (@GAVClaw) May 3, 2023

In FX Claims v Natwest Markets ECLI:NL:RBAMS:2023:1789, the first instance court at Amsterdam has rejected jurisdiction against the non-Dutch incorporated defendants (from the UK, the US, and Switserland) in a follow-on cartel damages case triggered by the European Commission’s decisions re manipulation of Forex Trading (known as Three Way Banana Split, Essex Express, and Sterling Lads, after the chatrooms in which the rigging was organised).

Stichting FX Claims was established by the US law firm that acts as third party litigation funder.

[6.3] the jurisdictional analysis takes place under Brussels IA for the Dutch-incorporated anchor defendant, Lugano II (referred to by the court as EVEXII) for the Swiss-incorporated defendant, and residual Dutch rules for all the others. However other than for the anchor defendant, the test is always the same (Dutch residual PIL instructs (see the Dutch Supreme Court in ‘Moldavia’) the courts to assess the claims using EU rules and CJEU authority): whether the claims against all defendants are so closely connected so that the sound administration of justice suggests it is expedient to hear them together, unless the claim is solely brought for the purpose of taking the defendant concerned away from their natural, domicile jurisdiction. Claimant resorts ia to the economic unit theory from EU competition law (see eg CJEU ENI) to support its anchoring unto a Dutch corporate vehicle of Natwest.

However [6.19] the Dutch Natwest SPV at the time of the infringements was not a direct daughter of the Natwest vehicle to whom the EC Decisions were addressed, and the claimant’s attention to the anchor defendant’s activities in their claim, is far underdeveloped [6.20]. With both the legal and the factual circumstances of anchor defndant being so radically different to those of the other defendants, the court finds [6.23] that the claims against it or not ‘closely related’ let alone so closely related so as to trigger expediency of joinder.

[6.31] Claimant’s argument that the cartelists’ activities concerned the whole of the EEA, including The Netherlands, is found not to suffice to identify Handlungsort (locus delicti commissi) in The Netherlands, neither [6.36] to locate locus damni Erfolgort in The Netherlands (here the court referred to CJEU CDC, flyLAL, and Volvo Trucks: damage needs to be shown for each individual claimant) other than for 3 of the parties represented in the claim, who have their corporate domicile in The Netherlands.

[6.37] a call upon the effet utile of the Damages Directive 2014/104 is rejected for that Directive is held not to include jurisdictional rules.

Finally the Stichting [6.43] attempts to establish jurisdiction under the Dutch forum necessitatis rule, referring to the practical challenges in suing outside the EU, the impossibility for non-EU, including UK courts to refer if need be to the CJEU (compare, in subsidiary fashion, Butcher J in Mercedez-Benz), the high costs involved in claiming in the UK, and, again, the effet utile of the Damages Directive. None of these impress the court which, referring to the need to apply forum necessitatis strictly, referring to there not being a serious suggestion that no fair trial will be guaranteed in the UK, and to the absence in EU statutory law or CJEU authority of a rule that EU competition law claims ought to always be judged by a court in the EU.

The judgment illustrates that much as the anchor defendant mechanism offers interesting opportunities, it cannot be used opportunistically.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.13.1.

1st instance Amsterdam rejects jurisdiction viz most defendants in financial services follow-on cartel damages claim
Claims v anchor defendant found not to be 'related'
Handlungsort, Erfolgort not in NL
No forum necessitatis

FX Claims v Natwest Markets eahttps://t.co/9dwpjVnRzG

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

In Mercedes-Benz Group AG & Anor v Continental Teves UK Ltd & Ors [2023] EWHC 1143 (Comm)  Butcher J set aside permission for service out of the jurisdiction (against EU-incorporated defendants) in a follow-on damages claim following the European Commission’s Hydraulic Braking system cartel findings.

The UK parties are the anchor defendants. Pre-Brexit, the case against the non-UK defendants would have been brought under A8(1) Brussels Ia and the abuse threshold per CJEU CDC would have undoubtedly not been met.

The attractive UK discovery rules were mentioned by claimants as an important reason to anchor the case in the UK. On that point [25] the judge held per Spiliada‘s instruction [as a general rule, the court will not be deterred from granting a stay or refusing permission to serve out simply because the claimant will be deprived of a ‘legitimate personal or juridical advantage’, such as damages on a higher scale or a more generous disclosure regime, unless it is shown through cogent evidence that there is a risk that substantial justice will not be done in the natural forum] that substantial justice could not be done in Germany, if it was an available forum.

Butcher J overall [26] held that Germany is an available forum (in the case of the German defendants by reason of both A4 and A7(2) [locus delicti commissi] Brussels Ia, and in the case of the UK defendant by reason of the German forum connexitatis rules), with which the dispute has its closest and most real connexion, and which may be described as the natural forum for the present dispute.

The nature of the infringing conduct, causation and damage all overwhelmingly took place in Germany, witnesses largely have German as their mother tongue. [51] counsel for claimants makes an interesting point that matters of convenience ought not to weigh in favour of cartelists (essentially a nemo auditur application), however, the judge holds that ‘in relation to the matters which will be in issue, there has been no finding that Mercedes are right, or the Defendants wrong.

Further and importantly [albeit only as an additional argument: [57]: ‘I should state, however, that I do not regard this factor as decisive. My conclusion on the natural forum would have been the same without it’], [56] the judge with respect to applicable law points to the disadvantage of England and Wales given the impossibility to refer to the CJEU

While the courts of England and Wales are obviously very used to applying EU law, and until recently did so as being directly applicable, it is the case that since the UK’s withdrawal from the EU, UK courts cannot make preliminary references to the CJEU in respect of questions of the interpretation of EU law. While the Claimants say that a reference to the CJEU in respect of the interpretation of a Settlement Decision would be unusual, it cannot be said to be unprecedented.

Conclusion [58]

I am of the clear view that the forum with which the dispute has its closest and most real connexion is Germany, which is the natural forum for the dispute. The case has, in reality, very limited connexions with England and Wales, and it is not one, unlike very many which come before this court, where the parties have consensually chosen England and Wales as the forum for their disputes. The case has, by contrast, strong (and certainly much stronger) connexions with Germany.

Geert.

Jurisdiction refused
Follow on claim for damages viz EC Hydraulic Braking Systems cartel decision
Held forum non conveniens points to Germany

(pre Brexit jurisdiction would have been beyond doubt)

Mercedes-Benz v Continental Teves [2023] EWHC 1143 (Comm)https://t.co/e520HgxtvZ

— Geert Van Calster (@GAVClaw) May 16, 2023

WertInvest Hotelbetrieb
Environnement et consommateurs
L’obligation de réaliser une évaluation des incidences environnementales d’un projet d’aménagement urbain ne peut pas dépendre exclusivement de sa taille

AKM (Fourniture de bouquets satellitaires en Autriche)
Retransmission transfrontière de programmes par satellite : le principe de l’État d’émission s’applique également au fournisseur de bouquets satellitaires

I reported earlier on the jurisdictional issues in a case where PIFSS brings claims for sums totalling in the region of US$874 million, arising from the alleged corruption between 1994 and 2014 of its former Director General. In The Public Institution for Social Security v Al Wazzan & Ors [2023] EWHC 1065 (Comm), Henshaw J held early May that documents held in Switzerland must be disclosed, in application of disclosure rules under English civil procedure.

The disclosure concerns a large file of documents held by the Swiss Federal Prosecutor’s Office (SFPO)  arising from its investigations of Mr Al Rajaan and Ms Al Wazzan (Mr Al Rajaan’s widow) since 2012, and other documents held by Swiss-based entities or individuals, or located in Switzerland, or originating from and obtained under compulsion in Switzerland.

Disclosure was ordered, with a small caveat [161] which will see future specific measures (eg restriction of disclosure to counsel) be taken to ensure disclosure of the SFPO file documents to PIFSS does not create a risk of transmission to the State of Kuwait, which in turn might be viewed as sidestepping the State of Kuwait’s pending Mutual Legal Assistance (MLA) request to Switserland for the purpose of the continuing criminal proceedings in Kuwait.

Justice Henshaw’s lengthy considerations do justice to two restraints on disclosure, under English CPR for use in English proceedings. The principal approach is [43 ff; and [47] in particular with reference to Bank Mellat v HM Treasury [2019] EWCA Civ 449] that questions of disclosure and inspection are part of the law of procedure and are therefore matters of English law as the lex fori ; duties of confidentiality (which, if breached, may result in sanction) arising under foreign law do not provide an automatic basis to withhold disclosure and inspection. They are a matter for the judge’s discretion, and disclosure is only not ordered where the party shows that the foreign law is regularly enforced, so that the risk of prosecution is real.

[51] the judge holds that comity considerations are an independent element to consider, and in the process refers to its neat definition in Dicey’s 16th ed § 7-002:

“The United [States] Supreme Court famously said in Hilton v Guyot, a case on the recognition of foreign judgments: “‘Comity,’ in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.”

An interesting judgment raising several relevant issues (including one side-issue on the tardiness of the Hague Taking of Evidence rules).

Geert.

Following part successful jurisdiction challenge ( https://t.co/wncyM6RxZ1) now issues of disclosure under English CPR of Swiss-held documents

Lex fori rules for procedure, but with assessment of prosecution risk under lex rei sitae (SW), and of comityhttps://t.co/UR87IVj4AE

— Geert Van Calster (@GAVClaw) May 9, 2023

Ryanair / Commission (Italie; régime d’aide; Covid-19)
Aide d'État
Le Tribunal annule la décision de la Commission approuvant une mesure d’aide consistant en des subventions versées par l’Italie à des compagnies aériennes italiennes dans le contexte de la pandémie de Covid-19

Emmentaler Switzerland / EUIPO (EMMENTALER)
Propriété intellectuelle et industrielle MARQ
Le terme « emmentaler » ne peut pas être protégé en tant que marque de l’Union européenne pour des fromages

Meta Platforms Ireland / Commission
Concurrence
Concurrence : le recours de Meta Platforms Ireland (groupe Facebook) contre une demande de la Commission visant la communication de documents identifiés par le biais de termes de recherche est rejeté

Regular readers will be aware that disciplining the use of the anchor defendant mechanism is not an easy task for a court to undertake (I have linked to one post yet the search tag ‘anchor’ will take you to plenty). The CJEU takes a restrictive view. Although in the case at issue Article 8(1) Brussels Ia does not formally apply (the mechanism does not apply to defendants domiciled outside the EU), instruction in Dutch residual rules is that they be applied as A8(1) would.

In Stichting Claim Gran Petro v Shell Netherlands, Shell Brasil and Raizen ECLI:NL:RBDHA:2023:7099, the Hague court of first instance did though refuse jurisdiction against the one Brazilian defendant (Raisen), anchored unto two Dutch Shell entities (Shell now having moved domicile exclusively to England was held [5.2] not to have relevance on account of the perpetuatio fori principle), citing abuse of the anchor defendant mechanism.

Shell have a majority share in Raisen. The claimants in essence called upon the corporate structure of Shell and, pro inspiratio, hoped to convince the court that the presumption of involvement of mother corporations in their daughter’s anti-competitive shenanigans might be enough to justify the relatedness of the claims. Such assumption exists in EU competition law (see eg CJEU ENI) however the court finds that claimants have not been able to prove a Brazilian equivalent.

The court refers ia to CJEU CDC v Azo Nobel et al to emphasize the condition that the anchor mechanism must not be intended merely to remove the defendant at issue from its natural domicile forum. [6.7] the court reports that the claimants acknowledge that Dutch jurisdiction is sought for reasons of  general tardiness of Brazilian proceedings. There is no suggestion that Raizen will not be willing to meet any future damages. Seeing as no presumption under Brazilian law of mother corporation involvement exists, and seeing as no proof of factual involvement of the Shell mother entities was furnished, [6.16] the court concludes that the anchor mechanism at issue is an abusive application and must not lead to jurisdiction.

Geert.

1/2 Follow-on competition law damages claim, after Brazilian competition commission finding of abuse
Held no jurisdiction against BRA corp controlled by Shell
Abuse of Dutch equivalent of anchor defendant mechanism, citing CJEU authority pro inspiratio

— Geert Van Calster (@GAVClaw) May 17, 2023

On 15 May an Antwerp justice of the peace (effectively a first instance judge in ia neighbourly disputes) has issued a common sense, no nonsense judgment against 3M’s pollution for its PFAS pollution of the soil around its manufacturing site at the Port of Antwerp. (For background to PFAS aka per and polyfluoroalkyl substances see also my earlier post on applicable law). PFAS produced there were mainly used in fire extinguishing foam.

Bypassing the sluggish criminal law and public law investigations and enquiries, and in view of alarming levels of PFAS found in the family’s blood, two immediate neighbours at the site claim against 3M on the basis of what is effectively common law nuisance. Such a claim is one of strict liability: it does not seek to establish fault or negligence, rather it aims at addressing the imbalance in proprietary enjoyment.

The judgment reminds us that the historic roots of many an environmental law (think Rylands v Fletcher (1868) LR 3 HL 330 and later Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 1 All ER 53 ) are still good law despite the overwhelming body of local, regional, federal, EU and international environmental statutory laws.

3M (other than to internal civil procedure rules on the court’s jurisdiction) referred ia to its environmental permit and to its use of ‘state of the art environmental technologies; to the distinction between the statutory remediation duty on the one hand and the liability for pollution, on the other; to its voluntary phasing out of PFAS at the site, and to the soil remediation (negotiated with /imposed by the Flemish authorities) it will carry out ia on the claimants’ property ; to the inconclusiveness of data on long-term health impact; and to the need to at the least stay the case in light of ongoing criminal and public law investigations.

The judge held that claimants’ individual rights exist independently of public and criminal procedures and may be enforced separately, and that all four elements for the laws of nuisance are present:

Neighbourliness (the only element not contested by 3M);

Nuisance. For the existence of nuisance, the judge referred ia to statements aka ‘extrajudicial confessions’ made by 3M executives during hearings in the Flemish Parliament;

Excessive nuisance. The nuisance is also held to be excessive, with simple reference ia to clearly abnormal PFAS readings in claimants’ blood;

Attributable to 3M. Here, too, the judge holds straightforwardly: ia mapping ordered by the Flemish Government shows a clear concentration of PFAS on the sites run by 3M.

The judge concludes with a provisional statement of €2,000 damages for the reduced enjoyment by claimants of their property.

The judgment does not indicate the parameters to be used for final determination of damages. Early commentary on the judgment indicates a number of open questions, such as the parameter within which claimants can be considered to be ‘neighbours’, etc. It is clear that 3M will not just appeal, but will generally continue its approach of litigating each and every claim (of note is that Belgium’s collective proceedings provisions are not optimal, and moreover difficult to apply to common law nuisance cases) with convoluted legal reasoning and much distinguishing. Yet the judgment is appealing in its straightforwardness and no doubt inspiring to the many proceedings which, sadly, are en route in this sad episode of industrial ‘innovation’.

Geert.

Vereerd me in het gezelschap van @omgevingsrecht te vinden in @vrtnws berichtgeving over #3M https://t.co/sXXjZq0rYh

— Geert Van Calster (@GAVClaw) May 17, 2023