Flux européens

L.R.
Espace de liberté, sécurité et justice
Une demande de protection internationale ne peut être rejetée comme irrecevable au motif qu’une demande d’asile antérieure présentée par le même intéressé a été rejetée par la Norvège

CNP
Espace de liberté, sécurité et justice
Litige transfrontalier entre un professionnel qui s’est vu transférer la créance d’une victime d’un accident de la circulation sur une entreprise d’assurances et cette entreprise : la Cour précise les règles de compétence juridictionnelle

Ryanair / Commission (Espagne; Covid-19)
Aide d'État
Le fonds de soutien à la solvabilité des entreprises stratégiques espagnoles qui connaissent des difficultés temporaires en raison de la pandémie de Covid-19 est conforme au droit de l’Union

Ryanair / Commission (TAP; Covid-19)
Aide d'État
La décision de la Commission déclarant l’aide du Portugal en faveur de la compagnie aérienne TAP compatible avec le marché intérieur est annulée car insuffisamment motivée

Ryanair / Commission (KLM; Covid-19)
Aide d'État
Le Tribunal annule la décision de la Commission approuvant l’aide financière des Pays-Bas en faveur de la compagnie aérienne KLM dans le contexte de la pandémie de Covid-19 pour insuffisance de motivation.

Asociaţia "Forumul Judecătorilor Din România"
Adhésion de nouveaux Etats
La Cour de justice se prononce sur une série de réformes roumaines relatives à l’organisation judiciaire, au régime disciplinaire des magistrats ainsi qu’à la responsabilité patrimoniale de l’État et à la responsabilité personnelle des juges à la suite d’une erreur judiciaire

The European Parliament Research Service released today a briefing on Access to Justice in environmental matters.

Context: “During the May plenary session, Parliament is due to vote on a report adopted by its Environment Committee, on a proposal aimed at ensuring EU compliance with its obligations as a party to the 1998 Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters”.

Extract: “In the European Green Deal communication, the Commission committed to consider revising the Aarhus Regulation. In October 2020, it adopted a proposal broadening the scope of the review procedure to include non-legislative acts of general scope (excepting those provisions of such acts for which EU law explicitly requires implementing measures at EU or national level), aligning references to environmental law with the convention’s requirements, and extending the time-frame for the administrative review process.

European Parliament position

Taking into account the ACCC advice from early 2021 on the Commission proposal, the report adopted on 23 April 2021 by Parliament’s Committee on the Environment, Public Health and Food Safety (ENVI) would open up the review mechanism to members of the public other than NGOs demonstrating sufficient interest or impairment of a right in accordance with the regulation. The Commission would specify by delegated act the criteria they need to fulfil. During the consideration of a request for review, third parties directly affected by the request (e.g. companies or public authorities) would be able to submit comments to the EU institution or body concerned. The report requires the Commission to adopt guidelines to facilitate the assessment of the compatibility of state aid with relevant provisions of EU law relating to the environment. To limit court proceedings costs, it insiststhat EU institutions and bodies make reasonable cost reimbursement requests when successful in litigation. It awaits a vote at the May plenary session. The vote would set Parliament’s position for negotiations with Council, which adopted its position in December 2020”.

Source: https://www.europarl.europa.eu/RegData/etudes/ATAG/2021/690593/EPRS_ATA(2021)690593_EN.pdf

On Access to Justice, the EU and the Aarhus Convention, see, for example, E. Guinchard and M.-P. Granger, Sisyphus in Luxembourg, in E. Guinchard and M-P Granger, “The New EU Judiciary”, Kluwer, December 2017. 375, spec. p. 377 in fine ff. (available at https://europeanciviljustice.files.wordpress.com/2021/02/sisyphus-in-luxembourg.pdf

The Court of Justice delivered today its judgment in case C–709/19 (Vereniging van Effectenbezitters v BP plc), which is about Article 7.2 Brussels I bis. The judgment is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version):

« L’article 7, point 2, du règlement (UE) no 1215/2012 […] doit être interprété en ce sens que la survenance directe, sur un compte d’investissement, d’un préjudice purement financier résultant de décisions d’investissement prises à la suite d’informations aisément accessibles sur le plan mondial, mais inexactes, incomplètes ou trompeuses provenant d’une société internationale cotée en bourse ne permet pas de retenir, au titre de la matérialisation du dommage, la compétence internationale d’une juridiction de l’État membre dans lequel est établie la banque ou l’entreprise d’investissement sur le registre de laquelle le compte est inscrit, lorsque ladite société n’était pas soumise à des obligations légales de publicité dans cet État membre ».

Source : https://curia.europa.eu/juris/document/document.jsf;jsessionid=AD7594B516888CAD5AB5EBC0D74BD409?text=&docid=241171&pageIndex=0&doclang=fr&mode=req&dir=&occ=first&part=1&cid=2130484

As I suggested when I reviewed the Advocate-General’s Opinion in C‑709/19 Vereniging van Effectenbezitters, the CJEU was likely to be much more succinct, which has proven true with the judgment this morning (no English version available as yet).

The CJEU ignored of course the AG’s calls fundamentally to reconsider the locus damni introduction in Bier. Yet it re-emphasised its willingness to reign in the repercussions of Bier, insisting places of jurisdiction under Article 7(2) Brussels Ia need to correspond to those with a certain link to the case. Its core reference throughout is its judgment in Lober, itself an odd case for the court did not assign territorial jurisdiction (an issue also sub judice in Volvo Trucks). Clearly Universal Music features heavily, too.

The Court’s instruction in Universal Music, that the mere presence of a bank account in which damages materialise, does not suffice to establish jurisdiction, is expanded in Vereniging van Effectenbezitters with the use of statutory reporting requirements: [35] For listed companies (clearly, an entry for distinguishing: how about those unlisted?), only the courts of the Member States in which they are under a statutory reporting duty with a view to its listing, are reasonably foreseeable to it, as places in which a market in its financial instruments may emerge.

The Court also adds [36] that the collective action nature of the suit is of no relevance. The referring court had asked whether in such suits the domicile of the aggrieved could be dropped as being relevant, however the CJEU insisted that domicile has no stand-alone relevance in purely financial damage at all, even in non-collective action.

To the degree that the existence of such statutory obligations is not exhaustively harmonised across the EU (on that subject, I am no expert), this opens op possibilities of course for Member States to assist its consumers with forum shopping, by expanding reporting requirements. (Albeit such extra requirements may themselves by vulnerable under free movement of establishment and /or services; but now my mind is racing ahead).

The Court’s limiting approach here is in stark contrast with the much wider consequences of its findings on jurisdiction viz material consumer products in  Volkswagen.

Geert.

EU Private International Law, 3rd ed. 2021, para 2.459

Luxembourg / Commission
Aide d'État
Absence d’avantage sélectif au profit d’une filiale luxembourgeoise du groupe Amazon : le Tribunal annule la décision de la Commission déclarant l’aide incompatible avec le marché intérieur

Moerenhout e.a. / Commission
Droit institutionnel
Le Tribunal annule, pour insuffisance de motivation, une décision de la Commission refusant l’enregistrement d’une proposition d’initiative citoyenne

Luxembourg / Commission
Aide d'État
Absence d’avantage sélectif au profit d’une filiale luxembourgeoise du groupe Amazon : le Tribunal annule la décision de la Commission déclarant l’aide incompatible avec le marché intérieur

Luxembourg / Commission
Tax rulings accordés par le Luxembourg aux sociétés du groupe Engie : le Tribunal constate l’existence d’un avantage fiscal

Bank Melli Iran
Libre circulation des capitaux
Avocat général Hogan : les entreprises iraniennes peuvent invoquer le droit de l’Union bloquant les sanctions secondaires américaines devant les juridictions des États membres

Commission / Grèce
Aide d'État
La Grèce a manqué à ses obligations en s’abstenant de récupérer des aides illégales versées aux agriculteurs grecs en compensation de mauvaises conditions climatiques

Bundesrepublik Deutschland (Notice rouge d’Interpol)
Principes du droit communautaire
Le principe interdisant le cumul des poursuites peut s’opposer à l’arrestation, dans l’espace Schengen et dans l’Union européenne, d’une personne visée par un signalement Interpol

The Hague Conference Experts’ Group on the electronic Apostille Programme (e-APP) and New Technologies met last week (3 to 6 May 2021). The Group endorsed key principles and good practices for Contracting Parties in the implementation of the e-APP. They may be found in Annex 1 to the Report from the Chair on the Experts’ Group on the e-APP and New Technologies, made available today at https://assets.hcch.net/docs/b94fadf7-ba82-42d9-bdbb-f8088b040273.pdf

This post is my tuppenny worth on the European Commission’s Assessment on the application of the United Kingdom of Great Britain and Northern Ireland to accede to the 2007 Lugano Convention. These are my considered but of course not my exhaustive initial thoughts. For excellent review of the legal status quo, see Andrew Dickinson’s ‘Realignment of the Planets – Brexit and European Private International Law’ in IPRax 2021/3.

The background. 

In June 2020, Michel Barnier reportedly commented ‘Do we really want the UK to remain a centre for commercial litigation for the EU, when we could attract these services here?’. This illustrated what has been clear now for quite a while: legal services contribute directly to GPD, mostly as a result of law firms’ turnover and, more recently,  via the financial performance of third-party financing. More importantly, they have an impact on the reputation of a country. Courts’ know-how, speed and general performance are a particularly relevant factor here. Therefore the legal sector acts as one factor in attracting foreign direct investment, as the rise of  international commercial courts shows.

The quote also illustrates however that the European Commission and the Member States were keenly aware of the impact of Brexit on judicial co-operation. Throughout the process, this included early EU flags that, should judicial co-operation fail to be included in the EU-UK Trade and Co-operation Agreement – TCA, it should not be assumed that the EU would support UK Lugano membership. Scholarship, too, warned of the inferiority of Lugano viz Brussels IA, and the particular weakness of Lugano States only having to take  ‘due account’ (Article 1 Protocol 2 Lugano 2007) of CJEU case-law on Lugano.

As readers will be aware, the TCA as eventually negotiated includes precious little on judicial co-operation in civil and commercial matters. A Hard Brexit in this area, therefore. Amidst the many issues that needed to be discussed in the TCA, judicial co-operation did not make the grade. This was not a big surprise. As Peter Bert signalled from the start, judicial co-operation barely featured in the negotiation mandate on the EU side, and on the UK side the Government kept largely schtum about the issue.

The lack of provision in the TCA put back into the spotlights the UK’s April 2020 application to join Lugano. Of note is as I have signalled before, that the UK could accede to Lugano, bypassing EU approval , if it were to become a fully fledged EFTA Member State (A70(1)a Lugano). That of course is not the route the UK has followed in its disentanglement from the EU. Under A72 Lugano therefore accession requires consent from the current Lugano States, consent which they ‘endeavour to give’ at the latest within one year after the invitation to do so by the Depository (i.e., Switserland). 

The flip-flop? 

It is reporting in the Financial Times which subsequently put things into a bit of a spin, whether as a result of misinformation or lobbying, I cannot say. On the day of an important meeting of the relevant Working Party, the FT first reported the EC would support Lugano Membership – contrary to what the vast majority of observers had assumed. By the afternoon a U-turn in reporting was made, suggesting additionally that a split had emerged among the Member States. That split is simply not there, or not to a sufficient degree (see below re the voting procedure).

The morning’s reporting of white smoke made the lack of EC support look like a surprise or indeed a disappointment. Clearly it could not have been the former: most of us had assumed the EC would not support the application.

That leaves the feeling of disappointment. Quite aside from one’s view on Brexit as a whole, for legal practice clearly a continuing umbilical cord between the UK and the Brussels Regime in its widest form (BIa, Rome I and II etc etc) would have been most preferable. Lugano would have been a second best. I remind readers that Lugano not only lacks a unified solid judicial oversight. It also lags behind Brussels Ia in important aspects (Lugano 2007 instead mirrors Brussels I, Regulation 44/2001).

The reasoning.

In its Communication to the EP and the Member States, as Peter Bert reports, the EC’s core reasoning is

“For the European Union, the Lugano Convention is a flanking measure of the internal market and relates to the EU-EFTA/EEA context. In relation to all other third countries the consistent policy of the European Union is to promote cooperation within the framework of the multilateral Hague Conventions. The United Kingdom is a third country without a special link to the internal market. Therefore, there is no reason for the European Union to depart from its general approach in relation to the United Kingdom. Consequently, the Hague Conventions should provide the framework for future cooperation between the European Union and the United Kingdom in the field of civil judicial cooperation.”

The Commission specifically refers to the example of Poland as the direction of travel (closer integration with the EU), and to Lugano being a flanking measure of the Internal Market. The 1968 Brussels Convention quite clearly shows the DNA and the narrative of market integration. The development of the EU judicial area in the meantime has moved along in the direction of the EU citisen, rather than merely corporations, as consumers of EU judicial co-operation. Yet without Lugano States being part of the much wider judicial co-operation agenda of the EU proper, it is not absurd to suggest that Lugano 2007’s narrative is more closely aligned with market  integration than it is with ever deeper integration.

At the time of Poland‘s accession to Lugano, this was indeed clearly also linked to its impending membership of the EU, as also noted by David Lock QC, relevant UK Minister at the time. For current candidates, one could think e.g. of Georgia, and the Balkan countries, as stronger candidates for Lugano membership than the UK. Clearly, however, they may bump into opposition by the non-EU Lugano States.

The victims.

The general narrative, to which I subscribe, is that it is not Business to Business contracts, and the litigation by big business cases that will be much hit by this hard Brexit in judicial co-operation. They will turn to arbitration, they will agree exclusive choice of court (covered by the 2005 Hague Convention), and if need be they will simply absorb being litigated in, or having to litigate in the EU. Likewise, many UK judgments in standard business cases will find little difficulty, if some delay, in enforcement in the EU.

Rather: SMEs (lest they too enter into exclusive choice of court agreements per Hague 2005; and they will be less likely to be able to absorb the cost of parallel litigation), consumers and employees, travellers (including in direct action versus the insurer), and claimants in corporate due diligence cases will find it much harder to have a smooth judicial process between the UK and the EU. Consumers domiciled in the EU will still be able to sue UK corporations in the EU, provided they meet the Pammer Alpenhof criteria under the relevant Section of Brussels Ia; and employees carrying out their duties here, likewise will be able to sue a UK employer in the EU. Yet with the distinct possibility of parallel UK proceedings, and subsequent difficulties in having a European judgment enforced, there will be many a freezing effect on proactive judicial action by these protected groups. Clearly and mutatis mutandis, the same categories in the UK will see a major judicial protection avenue fall away, as non-EU cq non-Lugano domiciled consumers, employees and small insureds do not enjoy the protection of the relevant Sections in BIa cq Lugano.

A distinct category of claimants that will be hit, are those which recently have enjoyed the reigning in of forum non conveniens in business and human rights cases particularly under Lugano (where Owosu’s rejection of forum non rules) and even under Brussels Ia (where A33-34 does create some obstacles). Without Lugano, forum non in these cases will once again come to the fore, although recent Court of Appeal and Supreme Court authority on duty of care may alter that fear. 

The voting procedure and future options.

Greg Callus suggests a number of future options here. I have made the following admittedly lame football comparison: If BIa is the Champions League, then Lugano is the Premier League and the Hague Judgments Convention the Ruritanian Boy Scouts football conference. That is because the 2019 Convention does not impact on forum non theories of the signatory States; is a long, long way off entry into force (albeit as noted the EC signals it might speed up the accession process); has such a huge amount of exceptions, reservations and open questions, counsel will drive an entire tank company through it; and, like all Hague instruments, lacks a harmonising court with authority over interpretation.

The Lugano Convention encourages consent within a year of notification. Absence of an answer in other words simply continues a status of lack of consent.

An important final word on the voting procedure: it is NOT the case that the final word on the current initiative lies with the Member States under qualified majority – QMV voting. An EU yes to Switserland, the depository, requires a Council Decision with QMV. However that requires a COM proposal for such decision. This, the European Commission clearly is not willing to put forward. Article 241 TFEU enables Council to request the EC to put forward a proposal for decision. Yet to amend that proposal (which would have to be the case here, seeing as the EC will not propose consent), unanimity is required.

In conclusion

I return to my Barnier quote above: ‘Do we really want the UK to remain a centre for commercial litigation for the EU, when we could attract these services here?’ Free movement of judgments simply is too big a cherry to have the UK pick it in the absence of a more overall framework for judicial co-operation in civil and commercial matters. I fear the fall-out for the categories listed above, might not be enough to make the EC and indeed enough Member States deviate from the Brexit negotiation mandate, which continues to cast a long shadow over this particular initiative.

Geert.

EU private international law, 3rd ed. 2021, Heading 1.7.

At issue in Skatteforvaltningen (The Danish Customs And Tax Administration) v Solo Capital Partners LLP & Ors [2021] EWHC 974 (Comm)  is ‘Dicey Rule 3’ which states that “English courts have no jurisdiction to entertain an action: (1) for the enforcement, either directly or indirectly, of a penal, revenue or other public law of a foreign State; or (2) founded upon an act of state“. The assertion of such claims is an extension of a sovereign power of taxation and, per Lord Keith of Avonholm in Government of India v Taylor [1955] A.C. 491, 511: “an assertion of sovereign authority by one State within the territory of another, as distinct from a patrimonial claim by a foreign sovereign, is (treaty or convention apart) contrary to all concepts of independent sovereignties“.

By its claims, SKAT (Danish customs and excise) seeks the return of amounts it says it was wrongly induced to pay out as tax refunds.

Brussels Ia and Lugano (the latter viz a number of defendants domiciled in Lugano States) feature in the discussion because SKAT argue that [22] ‘: (i) this is a ‘civil and commercial matter’, not a ‘revenue, customs or administrative matter’, under A1(1) BIa; and (ii) it is therefore not possible to invoke Dicey Rule 3 to dismiss its claims against Brussels-Lugano defendants, because to do so would be to decline to exercise a jurisdiction conferred by the Brussels-Lugano regime otherwise than in accordance with its rules.’

If the argument were upheld, any claims falling within Dicey Rule 3 would proceed against Brussels-Lugano defendants while being dismissed against other defendants. 

Dicey Rule 3 is not a jurisdictional rule: it is a substantive rule of English law. Yet SKAT’s argument in my view essentially means that an application of Dicey Rule 3 to the matter, would deprive A1(1) BIa of its effet utile.

Logically the BIa /Lugano argument would have had to have been considered first. Baker J does the opposite (his thinking process, unlike writing up, may of course first have considered the BIa argument) and holds at 120 after thorough consideration of the authorities on Dicey Rule 3, that the rule applies: SKAT’s claims seek indirectly to enforce in E&W, Danish revenue law.

In an interesting Coda at 121 ff, he also considers obiter the argument that, in essence, was that in line with a long public international law history, the cross-border recovery of tax refunds wrongfully procured is seen as or assumed to be a matter of revenue law requiring to be dealt with (if at all) by supranational legal instrument. Refence here is made ia to 1925 League of Nations reports.

Justice Baker starts [132] the BIa /Lugano argument along familiar lines: need for autonomous interpretation. QRS 1 ApS et al v Frandsen [1999] EWCA Civ 1463 is English authority under the Brussels Convention, and CJEU C-49/12 Sunico (to which both the AG and the CJEU refer in C-73/19 Belgische Staat v Movic BV et al) CJEU authority.

[142] In Sunico, the CJEU considered claims brought by HMRC alleging missing trader VAT carousel frauds. The substantive claims, for damages at common law for an alleged tortious conspiracy to defraud, were pursued in E&W against defendants domiciled in Denmark. HMRC also brought ancillary  proceedings in Denmark to attach assets with a view to enforcing any damages judgment obtained in England. Those Danish proceedings were objected to on the basis that they were a ‘revenue [etc] matter’ excluded from BI.

[144] The CJEU concluded at [41]-[43], essentially, that because the claim was framed in tort and not as a claim under a tax law, the proceedings were a ‘civil and commercial matter’ and not a ‘revenue [etc] matter’ for the purpose of Article 1(1) of the Brussels Regulation, so long as “the commissioners were in the same position as a person governed by private law in their action against Sunico and the other non-residents sued in the High Court of Justice” (ibid at [43]).

At 149 Baker J concedes that the decision of the Court of Appeal in Frandsen was incorrect per Sunico, however then holds that the result would be the same: the classification of proceedings as a ‘civil and commercial matter’ or a ‘revenue [etc] matter’ for the purpose of applying the Brussels-Lugano regime does not touch the question whether Dicey Rule 3 applies so as to defeat the claim. He suggests [149] a search for the lex causae under Rome II would be largely irrelevant for per A16 Rome II Dicey Rule 3 qualifies as lois de police, and finds support for his view that despite scholarly suggestion (i.a. by prof Briggs), Frandsen must not be displaced, in The Law Debenture Trust Corporation [2017] EWHC 655 (Comm) [and in Andrew Dickinson’s reporting on same], in which the English Act of State doctrine was upheld despite Rome II’s classification of the matter as civil and commercial.

At 165 ff he, somewhat superfluously still considers the more recent CJEU authority of Buak and the aforementioned Movic, and decides at 174 that per BUAK and Movic (on the use of evidence etc.) that SKAT was neither attempting nor able to change the rules of the litigation game, either as to the substantive rules of law that would apply in determining its claims, or as regards the procedural rules applicable in the litigation, or as regards the status or effect of any of the evidence it might deploy or disclose. SKAT was not by this litigation pursuing public law proceedings, in which liabilities are determined as if this were a judicial review of SKAT’s actions, decisions or exercise of public law powers.

Yet that the matters are of a civil and commercial nature, in the end does not matter at all: [176]

To the extent that SKAT relied on the Brussels-Lugano regime as the basis for this court having jurisdiction over the Brussels-Lugano defendants that have been sued, including it may be for serving proceedings out of the jurisdiction, in my judgment it was right to do so. But its having been entitled to do so did not oust or disapply Dicey Rule 3 in respect of those defendants.

Using prof Dickinson’s words (26-27), there is a dissonance here between Brussels Ia and the applicable law. One that, I would suggest, endangers the effet utile of Brussels Ia. Dicey Rule 3’s character as a substantive rather than a jurisdictional rule, does not to my mind save that.

Geert.

EU Private International Law, 3rd ed. 2021, para 2.28 ff.

Skatteforvaltningen (Danish HMRC) v Solo Capital Partners eaors [2021] EWHC 974 (Comm) (27 April 2021)
Whether qualification as 'civil and commercial' under BIa, Lugano, displaces Dicey Rule 3 (foreign revenue claims are not entertained by E&W courts) https://t.co/vGFGel6RSw pic.twitter.com/7txUPRx90U

— Geert Van Calster (@GAVClaw) April 29, 2021

Advocate General Tanchev delivered today his opinion in case C‑791/19 (European Commission v Republic of Poland), which is about the Rule of Law and the disciplinary regime for judges (including “allowing […] the content of judicial decisions to be treated as a disciplinary offence”):

“I propose that the Court should:

(1) declare that by allowing […] the content of judicial decisions to be treated as a disciplinary offence; by failing to guarantee […] the independence and impartiality of the Disciplinary Chamber; by granting [….] the President of the Disciplinary Chamber the power to designate the competent disciplinary court of first instance in cases concerning ordinary court judges; by granting […] the Minister for Justice the power to appoint a Disciplinary Officer of the Minister for Justice and by providing […] that activities related to the appointment of ex officio defence counsel and that counsel’s taking up of the defence do not have a suspensive effect on the course of the proceedings and […] that the disciplinary court is to conduct the proceedings despite the justified absence of the notified accused or his or her defence counsel, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU;

(2) declare that, by allowing the right of national courts to make a reference for a preliminary ruling to be limited by the possibility of the initiation of disciplinary proceedings, the Republic of Poland has failed to fulfil its obligations under the second and third paragraphs of Article 267 TFEU”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=240848&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=262087