Flux européens

Commission / Autriche (Indexation des prestations familiales)
Sécurité sociale des travailleurs migrants
L’adaptation des allocations familiales et de divers avantages fiscaux, accordés par l’Autriche en faveur des travailleurs, en fonction de l’état de résidence de leurs enfants est contraire au droit de l’Union

C-698/19 P & Sony Optiarc et Sony Optiarc America/Commission, C-699/19 P & Quanta Storage/Commission et C-700/19 P & Toshiba Samsung Storage Technology et Toshiba Samsung Storage Technology Korea/Commission
Concurrence
Entente sur le marché des lecteurs de disques optiques : la Cour annule partiellement la décision de la Commission mais maintient les montants des amendes infligées

Qualcomm / Commission
Concurrence
Abus de position dominante sur le marché des chipsets LTE : le Tribunal annule la décision de la Commission infligeant à Qualcomm une amende d’environ un milliard d’euros

The arbitration community in particular was eagerly awaiting judgment of the US Supreme Court in ZF Automotive v Luxshare. SCOTUS has now held that the use of the relevant US CPR rule, on assistance of foreign tribunals, does not apply to arbitration.

Matthias Lehmann reviews the judgment here and makes valid points on how the ruling could and perhaps should have gone the other way, particularly in light of the use of ‘international’ and ‘tribunal’. Whatever the merits of the finding, it confirms a limiting approach courts are taking in accepting discovery shopping. This is also testified eg by the Dutch courts’ approach in Kiobel, and the English courts’ approach in Akkurate and, in an alternative view, in Glaxo v Sandoz.

Geert.

Préfet du Gers et Institut National de la Statistique et des Études Économiques
DGEN
Conséquences du Brexit : les ressortissants britanniques qui jouissaient des droits attachés à la citoyenneté européenne ne bénéficient plus, après le retrait du Royaume-Uni de l’Union européenne, du droit de vote et d’éligibilité aux élections municipales dans leur État membre de résidence

I am in tidying up mode clearly for my goodness I have way too many windows open on various browsers. And as always: Bloggo, ergo sum. (Or at the least: when I blog and /or Tweet the cases seem more firmly lodged in my memory). In FDI v Barclays & Ors [2022] EWHC 391 (Ch) defendants applied successfully for a case management stay to allow for clarification of the position in parallel US multi-district litigation (‘MDL’) proceedings (started earlier) involving the LIBOR fixing rate scandal. The confusion seems to be about what US  jurisdictional decisions in those proceedings mean against at least some of the defendants in the UK proceedings.

The UK proceedings were started pre-Brexit. One assumes therefore that the decision takes full advantage of the wedge that exists between a procedural, case management stay and a full-blown jurisdictional decision. The latter surely needs to be discussed under Brussels Ia, including its Articles 33-34 forum non-type mechanism, lest  one were to argue res judicata which, if the US Proceedings have not moved beyond jurisdictional decisions, is unlikely.

The judgment also indicates that a further CMC – Case Management Conference will be held in October. One looks forward to further development there.

Geert.

#LIBOR fixing, successful application for case management stay to clarify relationship with US proceedings
Claims based on US State law of deceit and EN competition law

Oddly no consideration of A33-34 BIa

FDI v Barclays & Ors [2022] EWHC 391 (Ch) https://t.co/33oGvgTizQ

— Geert Van Calster (@GAVClaw) February 25, 2022

I tweeted on the case at the time I think and now bumped into it as per ‘too many open browser windows -syndrom’ ;-): Liman J’s January’s judgment in Suez Water New York v Dupont, Chemours et al serves as a good primer (Legally Blonde a strong second) to explain general (where the defendant is ‘at home’) and specific (based on the defendant’s contacts with the State) personal (as opposed to subject-matter) jurisdiction.

In the US (with slight variations in federal and State approaches), general personal jurisdiction over the defendant arises either because of its continuous and systematic business affiliations with the state (indisputably established in case of domicile in the State) or, in the case of foreign corporations (incl in the business and human rights context) where its activities make it ‘essentially at home’ in the State (Daimler v Bauman). Specific personal jurisdiction, aka ‘long arm’ jurisdiction, exercised against those ‘not at home’ in the State, requires contact with the State, typically through the (attempted) sale or supply of goods or services, the commitment of a wrongful act (tort) or Moçambique-type matters such as transactions involving real estate in the State.

In the case at issue, the judge concludes that claimant, who is seeking to recover the water remediation costs of PFAS, ‘forever chemicals’ pollution,  has made the requisite prima facie showing of personal jurisdiction over the original manufacturers (ia of ‘Teflon’ non-sticky pans) albeit just barely, accepting a prima facie link between those defendants’ marketing activities  in New York and the contamination. However the judge does not prima facie accept jurisdiction over the successor corporations, holding that under New York law, successor jurisdiction is appropriate only where a predecessor and successor remain one and the same after some corporate-restructuring event. If this trend continues, it would be a vindication for escaping environmental liabilities by the use of special purpose vehicles, including corporate restructuring.

The case in the end faltered on the basis of vagueness in the claim however I understand this can be remedied (and may have been done so on the meantime). Other courts will have different approaches and unfortunately the length of the judgment (which also discusses eg public nuisance claims) illustrates  the industry will battle liability to the end. Another sad, sad case-study for the late lessons from early warnings collection.

Geert.

Apple / EUIPO - Swatch (THINK DIFFERENT)
Propriété intellectuelle et industrielle
Apple et Swatch « THINK DIFFERENT »

The Court of Justice delivered last week (2 June 2022) its judgment in Case C‑196/21 (SR and alii), which is about the Service bis Regulation:

« Article 5(2) of Regulation (EC) No 1393/2007 […] must be interpreted as meaning that, where a court orders the transmission of judicial documents to third parties that apply for leave to intervene in the proceedings, that court cannot be regarded as being the ‘applicant’ within the meaning of that provision”.

Note : Article 5 Service bis Regulation states :

“1. The applicant shall be advised by the transmitting agency to which he forwards the document for transmission that the addressee may refuse to accept it if it is not in one of the languages provided for in Article 8.

2. The applicant shall bear any costs of translation prior to the transmission of the document, without prejudice to any possible subsequent decision by the court or competent authority on liability for such costs”.

Source: https://curia.europa.eu/juris/document/document.jsf;jsessionid=D6263372CF35902864FE65D23613F425?text=&docid=260188&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=4507548

The Court of Justice delivered last week (2 June 2022) its judgment in Case C‑617/20 (T.N. and alii), which is about the Succession Regulation:

“Articles 13 and 28 of Regulation (EU) No 650/2012 […] must be interpreted as meaning that a declaration concerning the waiver of succession made by an heir before a court of the Member State of his or her habitual residence is regarded as valid as to form in the case where the formal requirements applicable before that court have been complied with, without it being necessary, for the purposes of that validity, for that declaration to meet the formal requirements of the law applicable to the succession”.

Source: https://curia.europa.eu/juris/document/document.jsf;jsessionid=D6263372CF35902864FE65D23613F425?text=&docid=260184&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=4507548

‘Soonish’ was pretty accurate – I have been busy teaching LAW5478 at Monash. In Bourlakova v Bourlakov [2022] EWHC 1269 (Ch),  Trower J held ia against a stay of English proceedings on Article 34 Brussels Ia grounds. My paper on Article 33-34 is in the editorial stages at the Journal of Private International Law and the case will be included in its overview of the case-law so far. That case-law is predominantly English, perhaps a reflection of how (wrongly) English courts are convinced into thinking the Article 33-34 defence is another form of a forum non convenience objection to jurisdiction.

As in many of the cases (including Municipio de Mariana in which a Court of Appeal judgment ought to be delivered around June /July), the judge has to consider a mixed forum non conveniens (for the non-EU based defendants) and Article 33-34 (for the EU domicileds) defence. On top of that, there are applications for a  case-management  stay, and objections to valid service in Latvia. In other words, the classic ‘everything including the kitchen sink’ jurisdictional defence, leading to a judgment of over 400 paras long!

Jurisdiction in the case as far as Brussels Ia i concerned, is a combination of Article 4 and 8(1) – the Lugano Convention also has a calling.

Claimants are Mrs Loudmila Bourlakova and two companies of which she is the ultimate beneficiary, one of which (Hermitage One Limited (“H1”)) is incorporated in the Isle of Man and the second of which (Greenbay Invest Holdings Limited (“Greenbay”)) is incorporated in the Seychelles.  First defendant is Oleg Bourlakov, who died on 21 June 2021, which was after the commencement of these proceedings but before the applications to challenge jurisdiction had been made. The major part of his and his family’s wealth derived from the acquisition and subsequent sale of Novoroscement OJSC, a major Russian cement producer, which was sold for US$1.45 billion in 2007. Both Bourlakovi are or were Ukrainian, Russian and Canadian nationals. At the material time they were both domiciled in Monaco, although during the course of their marriage they had lived in a number of other jurisdictions including Canada.

Claimants allege that, since late 2017, there had been an irretrievable breakdown in marital relations. Divorce proceedings were initiated by Mrs Bourlakova in Monaco in 2018. It was common ground in the Monaco divorce proceedings that the law governing the matrimonial property regime is Ukrainian law and the Ukrainian concept of community property applied to the marriage. The Monegasque courts remained seised of the divorce proceedings at the time of Mr Bourlakov’s death.

Second to fourth defendants were all involved in the provision of fiduciary corporate services and advice to Mr Bourlakov, together with companies and foundations owned or controlled by him. Domicile for these is England, Cyprus or Switzerland. Fifth defendant, domiciled in Israel, somehow got caught up in the proceedings through a family trust, and is pursuing alternative litigation in England. Sixth defendant is a German qualified lawyer domiciled in Latvia, other defendants (family members ) are domiciled at Estonia or (companies) Panama.

The essence of the allegations is that Mr Bourlakov and his advisers conspired to reduce the share of the ex-wife in the matrimonial estate.  Mr Bourlakov and Mrs Bourlakova have never lived in England and the alleged partnership at the heart of the dispute is unrelated to England, did not operate here and is not governed by English law. None of the underlying assets which the claimants believe form part of Mr Bourlakov’s estate are located in England (or even held through English companies). Neither though, does Monaco (the alternative forum suggested in the jurisdictional objection) feature in the factual matrix.  One of the defendants is domiciled in England and one or two relevant meetings were held in England.

Divorce proceedings were commenced in Monaco and Mr Bourlakov and his advisers filed criminal proceedings there against Mrs Bourlakova on the basis of alleged breach of trust, concealment and money-laundering.  As is often the case in continental European proceedings, a civil claim there was lodged with an investigating judge, which will eventually lead to a court required to rule on the civil claim as well as the criminal one. Mr Bourlakov’s compaint has led to nought however Mrs Bourlakova’s counterclaim is still pending there in some, disputed form, as are Mr Bourlakov’s estate proceedings.

There is an extraordinarily complex web of issues to be held under English and EU jurisdictional rules but I shall limit this post to the Article 34 stay application – which was held obiter.

The judge [292] firstly notes, as noted obiter (for the A34 defence was raised too late), with reference ia to CJEU Aertssen,  that the defendants had not properly established that the Monaco criminal proceedings, viewed from the pont of Monegasque criminal procedure, were an “action pending before the court of a third state” for the purposes of A34 at the time the current proceedings were commenced.

[294] ff also discuss, equally obiter, whether any related third state action must fall within the scope of BIa for A34 to apply at all. [298] ff in that respect refer to two cases in which it was accepted that the court must be satisfied that the proceedings pending in the foreign jurisdiction, as well as the English proceedings, fall within the scope of BIa. However, in neither [BB Energy (Gulf) DMCC v Al Amoudi, WWRT Ltd v Tyshchenko, both engaged with the insolvency exclusion of BIa] was there a judicial decision on the point.

[312] Trower J also notes that A34 ‘accepts more risk of an irreconcilable judgment than article 30’, despite the reference in the recitals to flexibility. ‘Related’ actions are also discussed with reference to Viegas, and the judge [330] ff suggests he would not have ordered a stay on five further grounds, some of them related it seems to the ‘sound administration of justice’ requirement (and cited, too, for the refusal of a case management stay).

A complex web of findings and claims, with the A34 discussion showing that much is still outstanding on its application. I do not yet know whether permission to appeal has been sought and if so, on what grounds.

Geert.

European Private International, 3rd ed. 2021, Heading 2.2.15.3.2, para 2.539 ff

Unsuccessful application for an Article 34 'forum non conveniens light' application in light of Monaco criminal proceedings.
Review on the blog soonish (it's busy here @MonashLawSchool)

Bourlakova v Bourlakov [2022] EWHC 1269 (Ch)https://t.co/zYJiztXQFm

— Geert Van Calster (@GAVClaw) May 26, 2022

Louboutin (Usage d’un signe contrefaisant sur un marché en ligne)
Propriété intellectuelle et industrielle
Vente en ligne d’escarpins Louboutin contrefaits : selon l’avocat général Szpunar, la spécificité du mode de fonctionnement d’Amazon ne permet pas de conclure à l’usage d’un signe au sens du droit de l’Union

Daimler (Responsabilité des constructeurs de véhicules munis de dispositifs d’invalidation)
Environnement et consommateurs
Dispositifs d’invalidation illicites dans les véhicules diesel : l’avocat général Rantos estime que l’acheteur d’un véhicule équipé d’un tel dispositif doit se voir reconnaître un droit à réparation contre le constructeur automobile

FCC Česká republika
Environnement et consommateurs
La seule prolongation de la durée d’exploitation d’une décharge de déchets ne constitue pas une modification substantielle de l’autorisation d’installation

Get Fresh Cosmetics
Rapprochement des législations
Bombes de bain effervescentes : les États membres peuvent, sous certaines conditions, restreindre la distribution de produits cosmétiques susceptibles, parce qu’ils en ont l’apparence, d’être confondus avec des denrées alimentaires et d’entraîner des risques pour la santé

HK/Danmark et HK/Privat
Principes du droit communautaire
Une limite d’âge prévue par les statuts d’une organisation de travailleurs pour être éligible au poste de président de celle-ci relève du champ d’application de la directive « antidiscrimination »

Regulation (EU) 2022/850 of the European Parliament and of the Council of 30 May 2022 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), and amending Regulation (EU) 2018/1726, has been published at the OJEU, L 150, 1.6.2022, p. 1.

Source: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2022.150.01.0001.01.ENG&toc=OJ%3AL%3A2022%3A150%3ATOC

Prigozhin / Conseil
Relations extérieures
Le Tribunal confirme les mesures restrictives adoptées par le Conseil à l’encontre de l’homme d’affaires russe Yevgeniy Viktorovich Prigozhin, en raison de la situation en Libye

T-510/17 & Del Valle Ruiz e.a./Commission et CRU, T-523/17 & Eleveté Invest Group e.a./Commission et CRU, T-570/17& Algebris (UK) et Anchorage Capital Group/Commission et T-628/17 & Aeris Invest/Commission et CRU
Politique économique
Les recours visant à l’annulation du dispositif de résolution de Banco Popular et/ou de la décision de la Commission l’approuvant sont rejetés dans leur intégralité

The Hague Special Commission on the Practical Operation of the 2007 Child Support Convention and 2007 Maintenance Obligations Protocol was held from 17 to 19 May 2022. The meeting resulted in the adoption of over 80 Conclusions & Recommendations, released this week.

“Among other things, HCCH Members and Contracting Parties:

Confirmed that the Convention and Protocol are fit for purpose and reaffirmed their global scope;

Discussed effective access to legal assistance for children, including children studying abroad, for the recovery of maintenance obligations arising from a parent-child relationship;

Emphasised that the right of the child to child support takes precedence over the right of the debtor to privacy in financial matters;

Discussed the enforcement of child support against the debtor’s assets located in another State;

Discussed that child support can be established without necessarily establishing parentage;

Discussed the non-disclosure of personal information when the health, safety or liberty of a person involved in child support recovery could be jeopardised;

Discussed the use of secure means of communication for the recovery of child support, including the iSupport electronic case management and secure communication system for the recovery of cross-border maintenance under the EU 2009 Maintenance Regulation and the 2007 HCCH Child Support Convention;

Reaffirmed their commitment towards the abolition of cheques in their international transfer of maintenance funds;

Took note of the Report of the International Transfer of Maintenance Funds Experts’ Group which highlighted the potential benefits of the Universal Postal Union’s Postal Payment Services Agreement of 6 October 2016 as a cost-effective way to transfer maintenance funds internationally”.

Source: https://www.hcch.net/en/news-archive/details/?varevent=859

The conclusions and recommendations may be found at https://assets.hcch.net/docs/ee328db7-1d7a-4e8a-b765-2e35e937a466.pdf.