Flux européens

Last July, I posted about a joint webinar between the Singapore-based Asian Business Law Institute (ABLI) and the Permanent Bureau of the Hague Conference on Private International Law (HCCH) on the Choice-of-Court and Judgments Conventions. The two organizations return this year with their third joint session, this time on the 1965 Service Convention.

Titled Cross-border Commercial Dispute Resolution – HCCH 1965 Service Convention, the webinar will take place on Tuesday 27 June between 4 to 5:10pm (Singapore time) or 10 to 11:10am (CEST), and is expected to discuss, among others, the actual operation of the Service Convention in practice, how the Service Convention works with the other HCCH Conventions for cross-border dispute resolution, and Singapore’s accession to and upcoming implementation of the Service Convention.

Invited speakers include Sara Chisholm-Batten (Partner, Michelmores LLP), Melissa Ford (Secretary, HCCH), Delphia Lim (2Director, International Legal Division, Ministry of Law, Singapore), Professor Yeo Tiong Min (Singapore Management University), and Professor Yun Zhao (University of Hong Kong and Representative of Regional Office for Asia and the Pacific, HCCH).

For more information or to register, click here. Early bird discount is available until 28 May.

Queries about the webinar can be directed to Catherine of ABLI at info@abli.asia.

Geert.

 

EVH / Commission
Concurrence
Le recours du producteur d’électricité allemand EVH contre l’approbation par la Commission de l’achat d’actifs d’E.ON par RWE est rejeté

enercity / Commission
Concurrence
Le recours de la régie municipale allemande enercity contre l’approbation par la Commission de l’achat d’actifs de production d’E.ON par RWE est jugé irrecevable

BK et ZhP (Suspension partielle de la procédure au principal)
Droit institutionnel
Une demande de décision préjudicielle adressée à la Cour de justice n’empêche pas la juridiction de renvoi de poursuivre partiellement la procédure au principal

DC (Rétractation après l’exécution du contrat)
Rapprochement des législations
Défaut d’information sur le droit de rétractation : un consommateur est exonéré de toute obligation de paiement s’il se rétracte d’un contrat de service, conclu hors établissement, qui a déjà été exécuté 

TAP Portugal (Décès du copilote)
Transport

L’annulation d’un vol en raison du décès inopiné du copilote n’exonère pas la compagnie aérienne de son obligation d’indemniser les passagers

Bezirkshauptmannschaft Lilienfeld
Transport
Une entreprise de transport routier ne peut pas se décharger de sa responsabilité de respecter les temps de conduite et de repos des conducteurs en la transférant à une tierce personne

Inspecţia Judiciară
Relations extérieures
État de droit : l’organe en charge des procédures disciplinaires contre les juges doit être indépendant et impartial

Nicholls & Anor v Mapfre Espana Compania de Seguros y Reaseguros SA [2023] EWHC 1031 (KB) yet again discusses the evidence and procedure carve-out in Rome II and its relationship with A12 Rome II ‘scope of the law applicable’. In the absence of a possibility to refer to the CJEU, a Court of Appeal intervention might be useful.

Pandya v Intersalonika [2020] EWHC 273 (QB) held that proceedings were time-barred per Greek law (lex causae), where the claim form was issued in the E&W courts before expiry of Greek limitation period, but was not served until after that expiry. A narrow reading of the A1.3 carve-out was confirmed in Johnson v Berentzen [2021] EWHC 1042 (QB)) and in Bravo & Ors v Amerisur Resources Ltd (Re The Amerisur plc Putumayo Group Litigation) [2023] EWHC 122 (KB).

In Duffy v Achmea [2020] EWHC 3341 (QB) it was held that interim payments are within the evidence & procedure exception; in Troke v Amgen [2020] EWHC 2976 (QB) interest payments, ‘because they are discretionary under Spanish law (the lex causae)’, were held to fall under the A1.3 exclusion. Sedgwick v Mapfre concluded the same (albeit on better reasoning IMHO) That seems to also have been the approach in Woodward -v- Mapfre, unreported but referenced in current judgment by Spencer J.

Eventually however the judge does not follow Troke or Sedgwick, holding [30] that  the recovery of interest provided for by Spanish law under Article 20 of the Spanish Insurance Act is, pursuant to Rome II and as a matter of European law, substantive, not procedural. In essence, the relevant foreign law rate of interest is said to be a matter of clear relevance to the remedy (financial compensation) to which the claimant is entitled, being intrinsically connected or linked to the award of financial compensation.

His reference [30](1) to the suggestion that A12′ applicable law provisions needs to be construed widely and A1’s carve outs narrowly, is wrong in my opinion. [31] He clearly suggests he might have referred to the CJEU had that been possible (although I do not necessarily agree that the CJEU would then have looked for a ius commune approach across the EU).

Even though he finds fault with the application of the rules by the lower courts, his calculation of awards are the same and the appeal fails.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 4.8.

Evidence & procedure carve-out under the Rome II Regulation
Recovery of interest held NOT to be substantive right, lex causae, rather procedural remedy, subject to lex fori

Nicholls ea v Mapfre Espana Compania de Seguros y Reaseguros [2023] EWHC 1031 (KB)https://t.co/ZF8dGQvEjf

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

Ryanair / Commission (Lufthansa ; COVID-19)
Aide d'État
Le Tribunal annule la décision de la Commission qui approuve la recapitalisation de Lufthansa par l’Allemagne, d’un montant de 6 milliards d’euros, dans le contexte de la pandémie de Covid-19

Commune d'Ans
Avocat général Collins : une entité publique peut, dans certaines conditions, interdire à ses agents le port de tout signe visible de convictions politiques, religieuses ou philosophiques sur leur lieu de travail

This short post on Agora v SPA Italiana Lastre ECLI:FR:CCASS:2023:C100265 at the French SC could suffice with referring to para 2.331 of the Handbook. That para asks exactly the question on which the SC has now referred to the CJEU:

The insertion into the Regulation of the lex fori prorogati rule often does not assist. In particular, where parties expressly make choice of court non-exclusive (non-exclusive choice of court), or where they designate a plurality of specifically identified courts, the lex fori prorogati is not immediately ascertainable.[1] Neither is it in the event of so-called ‘unilateral’ or ‘one-sided’ choice of court, which I review below. In my opinion, therefore, at the very least for these cases which are not solved with the new lex fori prorogati rule, parties are best advised to continue to (or start to) make separate and express choice of law for unilateral and non-exclusive choice of law.

[1]               An argument also made by counsel for the defendants in Commerzbank Aktiengesellschaft v Liquimar Tankers Management Inc [2017] EWHC 161 (Comm).

Please refer to François Mailhé’s post who has background to the issues here, referring ia to Banque de Rothschild. Note that Mary Keyes edited a whole volume on asymmetric aka hybrid aka unilateral choice of court.

Like François I do not think the CJEU will entertain all the questions referred. I cannot imagine it finding the very acceptability of unilateral choice of court to be covered by Article 25. That is simply not within the Article’s remit. (The CJEU might make an exception for the issue in those consumer contracts not covered by the protective regime of Brussels Ia, eg pure contracts of transport; here it might refer to secondary EU consumer law on unfair terms).

I do also wonder whether the Court will say anything about recital 20’s odd inclusion of renvoi, and whether parties may take away the uncertainty by designating a specific lex causae for the choice of court clause, and in doing so may also exclude renvoi (the answer to both in my view should be ‘yes’).

Geert.

EU Private International Law, 3rd ed. 2021, 2.331.

Agora v SPA Italiana Lastre

French SC refers to the Court of Justice of the EU on the application of A25 Brussels Ia's lex fori prorogati rule, in the event of hybrid aka asymmetric choice of court

(Effectively referring (2.331) of the 3rd ed of the Handbook). https://t.co/tHJVnTCLii

— Geert Van Calster (@GAVClaw) April 18, 2023

Luxembourg / Commission
Aide d'État
Décisions fiscales anticipatives : selon l’avocate générale Kokott, la Commission a constaté à tort que le Luxembourg a accordé au groupe Engie des aides d’État illicites sous forme d’avantages fiscaux

Österreichische Post (Préjudice moral lié au traitement de données personnelles)
La simple violation du RGPD ne fonde pas un droit à réparation

Österreichische Datenschutzbehörde
Principes du droit communautaire
RGPD : le droit d’obtenir une « copie » des données à caractère personnel implique qu’il soit remis à la personne concernée une reproduction fidèle et intelligible de toutes ces données

BCE / Crédit lyonnais
Politique économique
La Cour confirme le refus de la BCE d’exclure aux fins du calcul du ratio de levier de Crédit lyonnais 34 % de ses expositions sur la Caisse des dépôts et consignations

Agenția Națională de Integritate
Lutte contre la corruption : le droit de l’Union ne s’oppose pas à ce qu’une personne se voit interdire toute fonction publique élective pendant trois ans si elle a violé les règles relatives aux conflits d’intérêts en exerçant une telle fonction

Boughajdim v Hayoukane [2022] EWHC 2673 (Fam) is a good case to illustrate qualification as an essential part of the private international law exercise. I had the case as one of the many open windows on my desktop. Despite my tardiness in reporting, I still do so, seeing as it is exam season and students are likely to start grapling with the course materials.

Core question is whether the Petitioner’s (the wife) divorce petition should be allowed to proceed in E&W, based on a marriage that has been recognised by the Moroccans court and registered in Morocco pursuant to legislation designed to provide retrospective recognition of marriage in that jurisdiction. The retrospective element is the result of the (alleged) spouses, of which the husband has dual Moroccan-UK citisenship, becoming aware that the absence of a marriage certificate was precluding an application for British Citizenship for one of their children.

The wife argues that the lex loci celebrationis in this case is Morocco, that the formal validity of the marriage falls to be determined by reference to the local form under Moroccan law and that this court is dealing with a valid foreign marriage, acknowledged as such by a foreign court and affirmed following failed proceedings by the husband for perjury and on appeal. By contrast, the husband contends that a proper analysis of the lex loci celebrationis means that the formal validity of the marriage falls to be determined by reference to the domestic Marriage Acts. In this context, he submits that the Moroccan marriage cannot be recognised as valid in E&W either as to form or as to capacity, the husband submitting in respect of the latter that the law governing questions of capacity is, in any event, the law of the husband’s domicile, under which law the husband did not validly consent to the marriage. Finally, the husband argues, in any event, that in the context of the special character of marriage there are cogent reasons for refusing to recognise the Moroccan marriage on the ground of public policy.

There is a convoluted procedural background to the case which this post does not engage with, for it is not relevant to the outcome of current judgment. (This also includes nb a number of res judicata elements, held [98], arising out of concurrent Moroccan proceedings.  Clearly, whether or nor there was a valid marriage at all is of relevance for all sorts of reasons, including financial ones.

[85] English law [like much of the world, GAVC] distinguishes between the form of the marriage (formal validity), which is governed by the lex loci celebrationis and the questions of capacity to marry to marry (essential validity, aka material or substantive validity). It is well settled that in English PIL the question of the capacity to marry is determined by the law of the party’s antenuptial domicile (Dicey Rule 75; note the contrast with continental Europe which tends to opt for lex patriae). Note however that what part of the validity question is a formal one and what part a substantive one, is not unequivocally clear. In E&W, there is no authority that conclusively answers the question of which system of law will govern the question of consent to marriage, i.e. whether consent is a matter of form governed by the lex loci celebrationis or a matter of capacity governed by the law of domicile.[86]

MacDonald J holds [90]

that the lex loci celebrationis in this case is the Kingdom of Morocco. I am further satisfied, on the facts as I have decided them, that the parties complied with the local form in the lex loci celebrationis sufficient for the court to be satisfied that it is dealing with a valid marriage having regard to the principle of locus regit actum. Further, I am satisfied that the husband has not demonstrated to the satisfaction of the court in this case that grounds exist for refusing to recognise the Moroccan marriage on the basis of public policy. In the circumstances, I am satisfied that the wife’s petition can proceed.

A difficultly is [100] that neither party contends for a marriage ceremony, or any other celebratory event, on an ascertainable date or at an ascertainable place giving rise to a marriage. The wife relies on the operation of a retrospective statute in a foreign jurisdiction as having constituted a valid marriage. There was no ‘marriage ceremony or other similar celebration’: then wat is the locus celebrationis? [105] The existence of a course of conduct by which some but not all of the legal steps necessary to conclude a marriage in a jurisdiction in which a ceremony is not required might, depending on the facts of the case, also assist in identifying whether there is a lex loci celebrationis and its location in a case concerning the operation of retrospective marriage legislation. Here, the judge decides that in 2000, on the balance of probabilities, the husband proposed marriage to the wife in Morocco, that there was an engagement party held, that there was a dowry agreed and paid and that the wife and husband considered themselves to be engaged and were to be married.

[114] ff the judge holds Moroccan formal procedure (including an element of service) following the retrospective Act, was properly complied with.

[139] ff and much more briefly, consent by both parties is established.

Finally [148] the ordre public exception looks at the consequences in England and Wales of recognising the decision of a foreign court that a marriage subsists as the result of retrospective legislation in respect of a British Citizen domiciled in E&W. [149] The Judge holds that the marriage to which the husband now objects arose by operation of law as the result of legal proceedings in respect of which, as the court has found, he was aware, in which he was represented, in which he had the opportunity to make representations and in which he did make, albeit cursory, representations objecting to the relief sought by the wife.

In conclusion, an earlier pronounced stay on the divorce petition was lifted.

A good case to illustrate qualification and its consequences.

Geert.

In Autostore Technology AS v Ocado Group Plc & Ors [2023] EWHC 716 (Pat), Claimant AutoStore is a Norwegian company, pioneer in automated warehouse technology. First defendant develops automated systems for use in large scale grocery businesses.  The second defendant is a joint venture between the first defendant and Marks & Spencer. Ocado is a former customer of AutoStore’s.

Ocado’s defences include that the patents were invalid due to prior non-confidential disclosures to two parties based in Russia, including EVS, a company based in St Petersburg, and Russia’s central bank.

‘Matter made available to the public’ is part of the ‘state of the art’ condition for patents (in the UK: s.2(2) of the 1977 Act). It may affect the novelty or obviousness of a patent: Subsections 2(1) and (2) of the Patents Act 1977 (“the 1977 Act”) provide:

“2. (1) An invention shall be taken to be new if it does not form part of the state of the art.

(2) The state of the art in the case of an invention shall be taken to comprise all matter (whether a product, a process, information about either, or anything else) which has at any time before the priority date of that invention been made available to the public (whether in the United Kingdom or elsewhere) by written or oral description, by use or in any other way.”

In support of their case of lack of novelty and inventive step Ocado rely on alleged prior disclosures to the Russian entities which Autostore say were made in confidence and could not therefore be part of the state of the art.

The section of the judgment that is of relevance to the blog (other than the brief reference to the TRIPS agreement [256]), is the qualification of the obligation not to disclose matter to the public, as (non)contractual, and the subsequent application of Rome II.  Hacon J summarises the issues [263] ff

Where a party relies on an express contractual restriction on the foreign disclosure of information, the effect of the alleged contract will be assessed according to the applicable law.  The party asserting the contractual restriction is obliged to plead the existence, the circumstances of formation and the relevant terms of the contract.  An English court seised will apply Rome I to determine which foreign law governs the contract.  The court will then decide whether, according to that law, there was an express term of confidentiality as alleged and whether its effect was to restrict the use of the information in issue.

The position is not so straightforward where it is said that a party in a foreign context was restrained from using information under an obligation that was not contractual – what an English court would recognise as an equitable obligation.

Rome II does not expressly recognise equitable obligations as a separate category. Clearly however they may still qualify as ‘non-contractual’.

[270 ff] Hacon J justifiably rejects Ocado’s assertion that Rome I and II dovetail. It is beyond doubt that not all obligations that are not contractual, must necessarily be covered by Rome II and vice versa.  Likewise, the overall application of Rome II clearly may imply non-contractual obligations that are putative. Meaning for the purposes of the application of Rome II, one may have to pretend for the time being that there are non-contractual obligations at play and that these are covered by Rome II, only for the so identified substantive lex causae to decide that there are not, after all, any non-contractual obligations at play.

Re the alleged disclosures made by the Bank, [276 ff] AutoStore’s primary contention is that the hypothetical breach of the alleged equitable obligation of confidence is correctly categorised as a culpa in contrahendo within the meaning of A12 Rome II, seeking support ia in CJEU Ergo. [286] It argues the respective obligations of confidentiality arose in the context of negotiations (with the Russian companies) which ultimately led to the conclusion of the Distribution Agreement governed by Norwegian law.  Consequently, the same law applies to the obligations of confidentiality.

However upon consideration the judge holds [298] – with much support found in prof Dickinson’s Rome II volume and his contribution on Rome II in Dicey’s 16th ed – that A12 does not apply to the alleged disclosures by the Bank, seeing as in his view A12 does not apply to third parties to the contractual negotiations, even agents of the contracting parties. There were no negotiations between AutoStore and the Bank and AutoStore for its own reasons wanted to ensure that any agreement reached would be with EVS and not the Bank.

Instead, [324] ff, the lex causae is held to have arisen out of an act of unfair competition within the meaning of A6 of Rome II. That is important, for Article 6 does not have an escape clause like Article 4(3).

Here, the judge’s reasoning is under par.

Oddly for instance he holds A6(2) is not engaged ia [335] ‘because the Bank is not a competitor of AutoStore’s’ yet he nevertheless applies A6(1): ‘the law applicable to a putative obligation of confidence on the Bank was the law of the country where competitive relations or the collective interests of consumers are, or are likely to be, affected.’: this is not convincing.

Reference is then made by the judge to CJEU Verein für Konsumenteninformation v Amazon EU Sàrl , CJEU Volkswagen and to Celgard, and to the Mozaikbetrachtung present in particular in the latter case. However he then [351] holds that ‘attention must be paid to the hypothesis posited in this case. It is that the Bank was about to make Bank Bot Designs public or had already done so’, subsequently linking that [353] to the procedural relief Autosore would have hypothetically sought for the potential breach, in, the judge holds, Russia. Conclusion [354]: ‘Of the laws made applicable under art.6(1) of Rome II to apply to the question of confidentiality, the one that would have mattered on the hypothesis raised would have been Russian law.’ That link to procedural relief to me comes out of nowhere.

As for the relationship with EVS, [301] the question arises as to whether AutoStore and EVS contemplated a contractual relationship at the relevant times. The judge [302] holds that a theoretical possibility of the purchase of goods or services or of some other contractual relationship does not suffice to trigger A12: commercial parties are almost constantly on the look-out for such relationships. [322] after having considered the various arguments the judge holds that A12 is engaged vis-a-vis EVS, yet that the putative law of the contract cannot be determined by A12(1), hence requiring the application of A12(2)(a). The applicable law is the law of the country in which damage would hypothetically have occurred, here, it is held, Russia.

Applicable law for both claims having been held to be Russian law, the remainder of the judgment then deals with evidence of that law and the conclusion [396] that the information was disclosed without imposing any obligation of confidence on either EVS or the Bank.

As noted the A6 analysis in my view is appealable. For both the A6 and the A12 analysis it is also a pity and concern to see, once again, the English courts (chicken and egg-wise led of course by counsels’ probable absence of presentation of same) lack of engagement on issues of both acquired and retained EU conflict of laws, with scholarship outside of the UK and /or other than written in English.

Geert.

Equitable obligations of confidence (in context of patent DNI Denial of Infringement): whether covered by retained Rome I or Rome II (or neither)
More on the blog when I find time

Autostore Technology AS v Ocado Group Plc & Ors [2023] EWHC 716 (Pat)https://t.co/ixzMwrPqJH

— Geert Van Calster (@GAVClaw) April 15, 2023

M. Vittorio Di Bucci a été nommé Greffier du Tribunal par la Conférence plénière