Flux européens

Their relevance is of course insignificant in light of the dreadful events that  triggered the judgments, however I thought I would flag the private international law elements in this week’s four Dutch judgments following the criminal prosecution of the suspects (now culprits) in the downing of MH17.

The judgment against Mr Pulatov was the  only one to respond to defence arguments actually made: he was the only one to have been represented (the other judgments were held in absentia). The judges extrapolate his arguments to the  other defendants to ensure some kind of proper representation, however they also explore further elements not raised by Mr Pulatov in the other judgments. This includes precisely the private international law elements for, it seems, no private claim was attached to the prosecution of Mr Pulatov while it was against the other defendants.

In this post I take the judgment against Mr Dubinskiy as the relevant text (structure and content of the other 2 judgments are essentially the same).

[12.4.1] discusses the possibility of judging the civil leg of a criminal suit. That the crimes could be prosecuted in The Netherlands is established on the basis of international criminal law of course, which is not the area of this blog. Jurisdiction for the civil leg is justified by reference to this being accepted international practice. Support (not: legal basis per se) is found by the court in Article 7(3) Brussels Ia:

A person domiciled in a Member State may be sued in another Member State:

as regards a civil claim for damages or restitution which is based on an act giving rise to criminal proceedings, in the court seised of those proceedings, to the extent that that court has jurisdiction under its own law to entertain civil proceedings;

and in the similar regime under the Lugano Convention. The court rejects a potential (this judgment as noted was issued in absentia) lis pendens argument vis-a-vis proceedings  in the United States. The court remarks that these judgments had already been issued before the Dutch criminal prosecution was initiated; that therefore there are no concurrent proceedings unto which a lis pendens argument could be raised; and that the US judgments reached the same conclusion.

Res judicata of the US judgments is dismissed as an element which would impact the Dutch judgments at this stage. The court does point out that res judicata may return at the enforcement stage of the damages part of the judgments, in that the victims will not be entitled to double compensation. Note that the US judgments included punitive damages which as readers will know is also a complicating factor for enforcement in the EU.

At 12.14.2 the court then turns to applicable law, for which it of course applies Rome II. With reference to CJEU C-350/14 Lazar, it dismisses the ‘extraordinary suffering’ of the relatives of the victims as ‘indirect damage’ under Rome II, instead exclusively taking the direct damage (the passing away) of the victims on Ukrainian territory as determinant for locus damni.

Dutch law is held not to be ‘manifestly more closely connected’ per A4(3) Rome II, despite the majority of the victims being Dutch. The court in this respect refers firstly to the link with Ukraine not being accidental (such as might be the case in ‘ordinary’ mass claims) but rather directly linked to the hostilities in Ukraine), moreover to the need to guard what it calls the ‘internal harmony’ of the judgment seeing as there are also non-Dutch relatives involved. This I find a touch unconvincing, particularly seeing as the court itself in the same para, with reference to Jan von Hein in Callies’ 2nd ed. of the Rome Regulations commentary, refers to the need to consider A4(3)’s escape clause individually, not collectively.

Geert.

Links to all 4 judgments:

https://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBDHA:2022:12219

https://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBDHA:2022:12218

https://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBDHA:2022:12217

https://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBDHA:2022:12216

Note the conflict of laws element in the civil suit's part of yesterday's #MH17 judgment:
jurisdiction per A7(3) Brussels Ia; no lis pendens or res judicata viz earlier US judgments; application of Ukranian law per Rome II

NL v Kharchenko et alhttps://t.co/d1QZXZwG96

— Geert Van Calster (@GAVClaw) November 18, 2022

“From 9 to 11 November 2022, the First Meeting of the Special Commission (SC) on the Practical Operation of the 2000 Protection of Adults Convention was held in The Hague. […] The meeting resulted in the adoption of over 70 Conclusions & Recommendations […] Among other things, the SC confirmed that, in general, the Convention is operating smoothly and is fit for purpose. It also stressed the importance of seeing more States join the Convention. The SC also approved, in principle, the draft Practical Handbook, Implementation Checklist, and Country Profile under the 2000 Protection of Adults Convention, subject to their amendment in light of the latest comments by HCCH Members, the discussions that took place at the SC and their outcome, to be submitted for endorsement by the Council on General Affairs and Policy (CGAP). Delegates also discussed habitual residence, ex lege representation, instructions given and wishes made by an adult in anticipation of a future impairment, issues of recognition and enforcement, Central Authority co-operation, the use of existing recommended Model Forms, direct judicial communications, and possible amendments to the 2000 Protection of Adults Convention. The Conclusions & Recommendations adopted by the SC are available” at https://assets.hcch.net/docs/06db03d0-812c-42fb-b76d-4e6e05a91b3b.pdf.

Extract: “The SC recalled that the change of habitual residence is a question of fact which will be assessed by the competent authorities called upon to make a decision on this matter. The competent authority seised is the only one that has to determine the habitual residence of the adult and whether it has jurisdiction under the 2000 Convention. In this regard, the competent authority seised could consult, if necessary, the competent authorities of the former State of habitual residence, to obtain relevant information. For example, the competent authority seised can request information relevant to assess whether the habitual residence has changed, in order to determine if it can take jurisdiction under Article 5(2), or whether the former competent authority would continue to exercise jurisdiction under other grounds (e.g., Art. 7) or if it would be appropriate to request a transfer of jurisdiction under Article 8. Recalling Articles 32 and 34, the SC noted that cooperation can take place with a view to sharing information regarding the adult’s change of habitual residence. The SC further noted that this process should be conducted diligently and without delay. The SC reminded Contracting Parties that Article 29 generally provides Central Authorities with an opportunity to exchange information, including such information as may be relevant for the purposes of Article 5(2).

11 The SC noted that, where the habitual residence of the adult changes to another Contracting Party, the competent authorities of the new habitual residence will have primary jurisdiction. Through the

exchange of information under Articles 29 and 34, a competent authority may be alerted to the  change of residence of an adult, in order for this authority to determine whether it has jurisdiction to take measures of protection”

Source: https://www.hcch.net/en/news-archive/details/?varevent=884

Changmao Biochemical Engineering / Commission
Relations extérieures
Selon l’avocate générale Ćapeta, la Cour peut ne pas contrôler la conformité du règlement antidumping de base au regard du protocole d’accession de la Chine à l’OMC

ANTEA POLSKA e.a.
Liberté d'établissement
La protection de la confidentialité dans le domaine de la passation de marchés publics doit être mise en balance avec les exigences de transparence et d’une protection juridictionnelle effective

Volotea / Commission
Aide d'État
La Cour annule les deux arrêts du Tribunal ayant rejeté les recours de Volotea et d’easyJet contre la décision de la Commission concernant les aides d’État octroyées par l’Italie aux aéroports sardes

Pays-Bas / Commission
Aide d'État
Le Tribunal annule la décision de la Commission européenne validant la compensation pour la fermeture de centrales électriques au charbon opérant aux Pays-Bas

The Grand Chamber of the Court of Justice delivered today its judgment in case C‑646/20 (Senatsverwaltung für Inneres und Sport, Standesamtsaufsicht v TB, intervening parties: Standesamt Mitte von Berlin, RD), which is about Article 2(4) and Article 21 Brussels II bis and the concept of ‘judgment’: “Article 2(4) of Council Regulation (EC) No 2201/2003 […] must be interpreted, in particular for the purpose of the application of Article 21(1) of that regulation, as meaning that a divorce decree drawn up by a civil registrar of the Member State of origin, containing a divorce agreement concluded by the spouses and confirmed by them before that registrar in accordance with the conditions laid down by the legislation of that Member State, constitutes a ‘judgment’ within the meaning of Article 2(4)”.

Source: https://curia.europa.eu/juris/document/document.jsf?mode=DOC&pageIndex=0&docid=268381&part=1&doclang=EN&text=&dir=&occ=first&cid=367004

Yesterday (14 November 2022), Botswana acceded to the Hague Child Abduction, Adoption and Child Support Conventions, i.e. respectively: the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, the Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption, and the Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance. The Child Abduction Convention will enter into force for Botswana on 1 February 2023, the Adoption Convention on 1 March 2023 and the Child Support Convention on 16 November 2023.

Last month, on 4 October 2022, Cabo Verde acceded to the Hague Child Abduction and Child Protection Conventions, i.e. respectively the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction and the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children. The Child Abduction Convention will enter into force for Cabo Verde on 1 January 2023 and the Child Protection Convention on 1 August 2023.

Source: https://www.hcch.net/en/news-archive/details/?varevent=883 et https://www.hcch.net/en/news-archive/details/?varevent=877

In GW Pharma Ltd & Anor v Otsuka Pharmaceutical Co. Ltd [2022] EWCA Civ 1462, the Court of Appeal confirmed jurisdiction for the courts of England and Wales, confirming the first instance judgment which I reviewed here.

The first instance judgment dismissing GW Pharma’s application decided three issues: jurisdiction under the Moçambique principle, foreign act of state and a distinct application for a stay on forum non conveniens grounds.

Arguments on appeal are listed [20] ff:

GW Pharma’s grounds 1 and 2 address the Moçambique principle and its application. GW Pharma contend that the judge erred in applying an overly restrictive test for the purposes of the Moçambique principle and further erred in his application of that test to the facts.

Ground 3 addresses the foreign act of state doctrine, and the common law public policy exception. The submission is that the judge erred in law in holding that the act of state doctrine (or common law public policy) did not require the court to decline jurisdiction.

Ground 4 relates to forum non conveniens, contending that the judge erred in declining a stay on those grounds.

Otsuka’s case is that the judge was right for the reasons he gave but Otsuka also advances two additional points in support of the judge’s overall conclusion. The first point is that as well as the exception to the Moçambique rule based on whether a validity challenge is direct or not which the judge applied, there is a second exception – for claims which relate to a contract. This case would also fall within that exception. The second point is a submission that GW Pharma’s case would necessarily involve a country-by-country approach, contrary to the approach adopted by the English courts in related contexts (citing the Supreme Court in Unwired Planet v Huawei [2020] UKSC 37). The relevant principles ought not to be applied so as to prevent Otsuka from bringing its contractual royalty claim against GW Pharma in a single set of proceedings in GW Pharma’s home jurisdiction.

Birss LJ [26] notes, with common sense, that Brussels Ia authority still has relevance, despite the Regulation no longer applying

the fact the Regulation does not apply is a different thing from the question whether aspects of the thinking behind the Brussels Regulation may illuminate questions which do arise.

[29] the main point of UKSC Lucasfilm is summarised as the

modern trend [being] in favour of the enforcement of foreign intellectual property rights, particularly where there is no issue as to validity.

That modern trend of course provokes discussion as to when a claim engages validity as opposed to mere infringement, with Chugai a classic illustration. The judge here sometimes necessarily skates on thin ice for creative counsel may direct the end-result by claim formulation. Here Birss LJ offers a relevant distinction between direct challenges to the validity of a patent, as opposed to proceedings being ‘principally concerned with’ such challenges:

In Chugai there is reference to both the idea of whether a validity challenge is a direct one and also to whether proceedings are “principally concerned with” validity. These two expressions are performing different tasks and it is worth keeping them distinct. A claim consisting of nothing other than a claim for infringement, in which the defendant does not claim that the patent is invalid, but merely requires the court to ask itself, as a guide to construction, what would be the hypothetical consequences for validity if there was infringement, does not involve a direct challenge to validity. Such a claim is also not principally concerned with validity. On the other hand a claim consisting of nothing other than a request for revocation on the ground of invalidity or a declaration of invalidity would be a direct challenge to validity, and would be principally concerned with validity. However a claim raising multiple issues might well properly be said not to be principally concerned with validity, even if one of the subsidiary issues was a direct challenge to validity; but in such a case the court’s response would depend on the circumstances. The court might not decline jurisdiction over the dispute as a whole but might address individual issues separately. If the direct challenge only arises on a contingent basis then the right response might involve case management. Unlike the judge below, I would not describe this latter situation as one in which what was really a direct validity challenge was rendered not a direct challenge owing to its subsidiary nature in the action as a whole. The nature of the challenge is a direct one, but its status in the proceedings as a whole means that they are not principally concerned with it.

This is a discussion which to my mind is also useful for the A24(4) discussion in Brussels Ia, sub judice in BSH Hausgeräte v Electrolux.

[38] ff discusses the long standing exception to the Moçambique rule concerning contracts and equitable obligations. [40] There are said to be two questions in the present case about the contract exception. One is whether it depends on the existence of an exclusive jurisdiction clause in the contract  (answered [42] in the negative] and the other is about the extent of the exception itself. Would it, for example, allow the court to entertain a direct challenge to the validity of a foreign patent which the court would not have had jurisdiction to determine in the absence of the relevant contract (or equitable obligation)? : [43]:

In a way the question is whether the exception really is an exception to a rule that the court has no jurisdiction to determine a claim principally concerned with title (etc.) to foreign land or whether it is really just a manifestation of the proper application of the test for what it does or does not mean to say that a claim is principally concerned with title (etc.). Or putting it another way, can the court, when considering a contract claim, decide on title to foreign land, and by extension the validity of a foreign patent?

[46] that question is answered with reference to the classic in rem v in personam discussion that is part of the original Moçambique rule (and A24(1)BIa)

The contract exception does not allow the court to make a decision about the validity of a foreign patent in rem but it would allow the court to address the validity of a foreign patent in the course of making a decision concerning contractual rights in personam, assuming (such as if the Lear point does work in the way I have described) such a question was relevant to the contract decision.

[48] ff Lord Justice Birss summarises:

Bearing all this in mind, I would state the Moçambique rule as explained and formulated in Lucasfilm, and as it applies to patents in the following way:

First, in a case in which the courts of England and Wales have in personam jurisdiction over a defendant, then the courts have jurisdiction in proceedings for infringement of a foreign patent save where those proceedings are principally concerned with a question of the validity of that patent. The proceedings will not be principally concerned with validity only because the defendant, who does not claim that the patent is invalid, requires the court to ask itself as a guide to construction, what would be the hypothetical consequences for validity if there was infringement. However what the rule does not permit is a direct challenge to the validity of a foreign patent, and (subject to the exception below) the court has no jurisdiction to determine a claim that the foreign patent is invalid.

Second, this Moçambique principle is also subject to a contractual exception. If the case is one in which the court is asked to enforce a contract between the parties then in addition to questions of patent scope/infringement, if and only to the extent that questions of the validity of foreign patents need to be addressed in order to decide on the true nature and scope of the parties’ contractual obligations to one another, then the court can do so.

Applying this summary to the first instance judgment, that judgment is confirmed [60].

The third ground of appeal then invokes the foreign act of State doctrine, in that is is said that (certain) intellectual property rights may be said to depend on the grant or registration by the state. Birss LJ dismisses the argument [73] essentially by suggesting it harks back to bygone notions of intellectual property rights:

even absent the authorities I would hold that as a matter of principle the modern grant of a patent for an invention does not fit within the act of state doctrine as it stands today for two reasons. The first reason relates to the exercise of grant itself. The very word “grant” harks back to a past time, before the Statute of Monopolies 1623, when letters patent were granted on the whim of the Stuart monarchs (and similarly I suspect the Danish monarchy in Blad v Bamfield). Today there is no such condescension by the sovereign power in the grant of a patent by the Comptroller of the Patent Office. Once a properly constituted patent application has been examined and found to comply with the requirements of the law, the Comptroller is required by statute to grant the patent. The relevant words are in s18(4) of the Patents Act 1977 which provide essentially that if the applicant’s application is all in order then ‘the comptroller shall … grant him a patent.’ The second reason follows on from this and was given by Henry Carr J in Chugai at paragraph 68. He observed that once the patent had been granted, any party can challenge the validity of the patent and then can do so in a manner and on grounds which are quite different from an attempt to challenge legislation or government acts such as requisition.

Conclusion on this ground [75]

on grounds of authority and principle, I agree with the judge below that the act of state doctrine is not relevant to the analysis of the court’s jurisdiction in this case.

The first instance judge’s finding on forum non is also confirmed and the appeal therefore dismissed.

I do not know whether, if sought, permission to appeal to the Supreme Court will be granted, but it seems unlikely. The appeal judgment in my view includes important instruction in particular on the ‘principally concerned with’ issue however it largely applies existing UKSC authority.

Geert.

EU Private International Law, 3rd ed. 2021, 2.196 ff.

Court of Appeal rejects appeal against finding of jurisdiction in foreign #patent case
Rule in Moçambique confirmed as not engaged
See here https://t.co/hHZdeXVpCb for first instance judgment

GW Pharma v Otsuka Pharmaceutical Co. Ltd [2022] EWCA Civ 1462 https://t.co/GLsmtCRNtZ

— Geert Van Calster (@GAVClaw) November 8, 2022

Senatsverwaltung für Inneres und Sport
Espace de liberté, sécurité et justice
Reconnaissance automatique des divorces extrajudiciaires : un acte de divorce établi par l’officier d’état civil d’un État membre, qui comporte un accord de divorce conclu par les époux et confirmé par ceux-ci devant cet officier en conformité avec les conditions prévues par la réglementation de cet État membre, constitue une décision au sens du règlement Bruxelles II bis

Szpunar AG opined a few weeks back in C-423/21 Grand Production v GO4YU  ea. The case involves a variety of issues related to streaming and VPNs, many of which concern telecoms law yet one is of interest to the blog: namely the question whether

in the event of an allegation of infringement of copyright and related rights guaranteed by the Member State of the court seised, that court has jurisdiction only to rule on the damage caused in the territory of the Member State to which it belongs – because the territoriality principle precludes domestic courts from having jurisdiction to determine and examine the facts in relation to foreign acts of infringement – or can or must that court also rule on offences committed outside that territory (worldwide), as alleged by the author whose rights were allegedly infringed?

It transpires from the Opinion however that the case in the national court does not involve one for damages, yet rather one for a temporary injunction prohibiting distribution. To the degree this is aimed at the Serbian defendants at issue, these are domiciled outside the EU and hence not subject for actions in tort, to Brussels Ia. Against the Austrian defendants, the case is subject to full jurisdiction under A4 forum re, hence not triggering the full or partial jurisdictional issues of the relevant CJEU case-law (Bolagsupplysningen etc.).

The AG suggests inadmissibility of the Brussels Ia question.

Geert.

Opinion first Advocate General Szpunar this morning on VPNs, #copyright and platform streaming, including the jurisdictional aspects: forum delicti under A7(2) Brussels Ia

Grand Production v GO4YU eahttps://t.co/D7Uaor19wO

— Geert Van Calster (@GAVClaw) October 20, 2022

Advocate General Szpunar delivered today his opinion in Case C‑651/21 (М. Ya. M.), which is about the Succession Regulation and a declaration of waiver of succession made by an heir in the Member State of his habitual residence, with a subsequent registration of that declaration, at the request of another heir, with the court of another Member State.

Suggested decision: “1) Article 13 of Regulation (EU) No 650/2012 […] does not preclude, after an heir has had registered with a court of the Member State in which he or she is habitually resident his or her acceptance or waiver of the succession of a deceased person who was habitually resident in another Member State at the time of death, another heir from subsequently requesting registration of that declaration in the latter Member State.

(2) Article 13 of Regulation No 650/2012 must be interpreted as not precluding a co-heir other than the person who made the declaration of waiver in the Member State of his or her habitual residence from informing the court dealing with the succession of the existence of that declaration”.

Source: https://curia.europa.eu/juris/document/document.jsf?mode=DOC&pageIndex=0&docid=268184&part=1&doclang=EN&text=&dir=&occ=first&cid=195575

PACCAR e.a.
Concurrence ENTR POSI
La production de « preuves pertinentes », au sens du droit de l’Union, recouvre les documents qu’une partie peut être amenée à créer par l'agrégation ou la classification d'informations, de connaissances ou de données en sa possession

Commission / Valencia Club de Fútbol
Aide d'État
Décision concernant une aide d’État octroyée par l’Espagne au Valencia CF annulée par le Tribunal : la Cour rejette le pourvoi de la Commission

The Court of Justice (Grand Chamber) delivered yesterday its judgment in case C‑873/19 (Deutsche Umwelthilfe eV v Bundesrepublik Deutschland, joined party: Volkswagen AG), which is about the Aarhus Convention and access to justice in environmental matters:

“1. Article 9(3) of the Convention on access to information, public participation in decision-making and access to justice in environmental matters, signed in Aarhus on 25 June 1998 and approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding a situation where an environmental association, authorised to bring legal proceedings in accordance with national law, is unable to challenge before a national court an administrative decision granting or amending EC type-approval which may be contrary to Article 5(2) of Regulation (EC) No 715/2007 of the European Parliament and of the Council of 20 June 2007 on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information.

2. Article 5(2)(a) of Regulation No 715/2007 must be interpreted as meaning that a defeat device can be justified under that provision only where it is established that that device strictly meets the need to avoid immediate risks of damage or accident to the engine, caused by a malfunction of a component of the exhaust gas recirculation system, of such a serious nature as to give rise to a specific hazard when a vehicle fitted with that device is driven. Furthermore, the ‘need’ for a defeat device, within the meaning of that provision, exists only where, at the time of the EC type-approval of that device or of the vehicle equipped with it, no other technical solution makes it possible to avoid immediate risks of damage or accident to the engine, which give rise to a specific hazard when driving the vehicle”.

Source: https://curia.europa.eu/juris/document/document.jsf?docid=268044&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=280104

Ferriera Valsabbia et Valsabbia Investimenti / Commission
Concurrence
Le Tribunal confirme les sanctions allant de 2,2 à 5,1 millions d’euros infligées par la Commission à quatre entreprises pour leur participation à une entente sur le marché italien des ronds à béton

Minority SafePack - one million signatures for diversity in Europe / Commission
Droit institutionnel
Le Tribunal confirme la communication de la Commission refusant d’entreprendre les actions demandées dans l’initiative citoyenne européenne « Minority SafePack - one million signatures for diversity in Europe »

Fiat Chrysler Finance Europe / Commission
Aide d'État
« Tax rulings » : la Cour juge que le Tribunal a confirmé à tort le cadre de référence retenu par la Commission pour l’application du principe de pleine concurrence aux sociétés intégrées au Luxembourg, en omettant de tenir compte des règles spécifiques mettant en œuvre ce principe dans cet État membre

Staatssecretaris van Justitie en Veiligheid (Examen d’office de la rétention)
Justice et Affaires intérieures
Le juge national est tenu de vérifier de sa propre initiative la légalité d’une mesure de rétention prise à l’égard d’un ressortissant étranger en séjour irrégulier ou d’un demandeur d’asile

Deutsche Umwelthilfe (Réception des véhicules à moteur)
Environnement et consommateurs
Les associations de protection de l’environnement agréées doivent pouvoir contester en justice une réception CE par type de véhicules équipés de « dispositifs d’invalidation » susceptibles d’être interdits