Flux européens

BRF et SHB Comercio e Industria de Alimentos / Commission
SANT
Le Tribunal rejette la demande formée par deux producteurs de viande brésiliens tendant à l’annulation du règlement ayant pour effet d’interdire, pour des motifs de santé publique, l’exportation, vers l’Union, de certains produits d’origine animale en provenance d’établissements appartenant auxdits producteurs

Infineon Technologies / Commission
Concurrence
Le Tribunal ordonne la réduction de près de 6 millions d’euros du montant de l’amende infligée à Infineon pour sa participation à une entente sur le marché des puces pour cartes qui passe de 82 784 000 à 76 871 600 euros

VQ / BCE
Politique économique
Le Tribunal rend ses quatre premiers arrêts portant sur des décisions de la Banque centrale européenne (BCE) infligeant des sanctions pécuniaires au titre de la surveillance prudentielle des établissements de crédit

Mr Villiers reacted to Villiers v Villiers [2020] UKSC 30 with a letter in the FT yesterday, set against the general background of ‘divorce tourism’ said to have been encouraged by the Supreme Court ruling last week. Ms Villiers now lives in England however the majority of the marriage was spent in Scotland which is also where divorce proceedings were issued.

Sales J for the majority summarises the legislative background at 8:

The national legislation governing jurisdiction in cross-border cases is primarily contained in the Civil Jurisdiction and Judgments Act 1982 (“the CJJA 1982”). That Act gave effect in domestic law to the [1968] Brussels Convention… [which] was amended on the association of Denmark, Ireland and the United Kingdom in 1978. It was replaced as the principal instrument governing jurisdiction in cross-border cases between member states of the European Union by [Brussels I] which in large part replicated the provisions of the Brussels Convention. The CJJA 1982 was amended to refer to and give effect in domestic law to the Brussels Regulation. The Brussels Regulation has been replaced by [Brussels Ia].

The Brussels Convention did not apply to issues of the status of natural persons, including marriage, nor to rights in property arising out of a matrimonial relationship (article 1(1)), but it did apply in respect of claims for maintenance. This was later carved out and titled into a separate Regulation, the Maintenance Regulation 4/2009. The UK until Brexit day chose to apply the Regulation intra-State, too, i.e. between the constituent parts of the Kingdom. 

Lord Sales posits that all in all, the application of the jurisdictional rules is ‘straightforward’ (at 25) however his needing 32 paras to set out the test somewhat belies that statement, as does Lord Wilson’s and Lady Hale’s lengthy dissent at 93 ff. (and Lady Black’s at

There is no forum non conveniens rule in the Maintenance Regulation. The CJEU held so in C-468/18 R v P and Lord Sales refers to that judgment.

The only viable route to a stay of the jurisdiction in principle of the English courts, the place of habitual residence of Mrs Villiers, the maintenance creditor, is via the ‘related actions’ gateway of A13 of the Regulation. Are the husband’s divorce proceeding in Scotland a “related action” for the purposes of A13? And, pursuant to that provision, should the English court decline jurisdiction in respect of the wife’s maintenance claim? At 45 Sales LJ holds that to be related actions, they must refer

‘primarily to maintenance claims of the kind to which the special regime in the Regulation applies. If the position were otherwise, and the word “actions” meant legal proceedings of any kind whatever, that would undermine the fundamental object of the Maintenance Regulation that a maintenance creditor has the right to choose in which jurisdiction to claim maintenance. On such a reading, there would be a substantial risk that this object of the Maintenance Regulation would be undermined by the commencement of proceedings by the maintenance debtor according to the jurisdictional provisions of instruments other than the Maintenance Regulation, laid down in pursuance of entirely different jurisdictional policies than that reflected in the Maintenance Regulation.’

At 48 he adds obiter (for the husband’s suit in Scotland here concerned the divorce and the divorce only) that contra to the likely position in Moore v Moore [2007] EWCA Civ 361, even a maintenance debtor’s claim for distribution of family property with an impact on maintenance, cannot be a related action for the purposes of A13: for it would hand the debtor a torpedo against the creditor’s Regulation-protected choice.

It is on the issue of related actions that Lord Wilson and Lady Hale disagree at 147 ff., with Lord Wilson adding an arguably stinging postscript at 172 ff. At 162 Lord Wilson refers to A13(2) as ‘the dog. The reference to “irreconcilable judgments” is no more than the tail.’ A wide interpretation therefore of A13 (Lady Black, consenting with Sales, at 85 puts more emphasis in the irreconcilability of the judgments).

A most interesting to and fro of arguments and one which post Brexit will be recommended reading for the continuing application of the Maintenance Regulation in the EU.

Geert.

 

Maintenance regulation Brussels II, applied intra-State (UK) by incorporation by that Member State.
Application of lis alibi pendens. Non-existence of forum non conveniens. Distinction with matrimonial Regulation. https://t.co/AllsUqm05Q

— Geert Van Calster (@GAVClaw) July 1, 2020

 

In [2020] EWHC 1626 (TCC) Engie Fabricom, O’Farrell J essentially had to hold whether the primary activity at an energy from waste plant is power generation or waste treatment. The classification of waste to energy – W2E as either waste recovery (see Waste Framework Directive Recovery Annex, R1 ‘used principally as a fuel or other means to generate energy’) or waste disposal is a classic in EU waste law, with specific implications for shipments permits. It also of course has an impact on a Member State’s waste targets and renewable energy targets. Aside from the Waste Framework Directive, the Industrial Emissions Directive 2010/75 is also involved – although oddly no CJEU authority is mentioned in the judgment.

In the case at issue an interesting extra element is that the plant at issue received funding via the European Regional Development Fund ERDF (at 145) however ERDF funding was for the generation of electricity from the biodegradable part of waste based on advanced fluidised bed gasification technology, which at the time of the application was expected to be 84.65% of the fuel. However, subsequently the plant changed to use refuse derived fuel or RDF without any waste wood which reduced the biodegradable percentage of the waste to 50%.

At 149 Justice O’Farrell concludes that the primary activity at the Energy Works Hull facility is power generation, for the reasons listed there. Of particular relevance is her comment that ‘the plant was not developed or intended to be operated in furtherance of any particular waste or energy policy, although it was consistent with both policy initiatives.’

There is an interesting expert evidence issue to the case, as Gordon Exall discusses here. I am suspecting one or two of the issues involved could be chewed over upon appeal, with reference to CJEU case-law.

Geert.

Handbook of EU Waste law, OUP, second ed, 2015.

Refuse-derived fuel – RDF.
Whether the primary activity at an energy from waste plant is power generation or waste treatment.
Held: in casu: power generation.
Considers ia EU waste framework Directive and ERDF funding.
Impacts ia VAT and adjudication process. https://t.co/2FskpGblDj

— Geert Van Calster (@GAVClaw) June 25, 2020

The European Parliament (JURI Committee) has released a draft opinion with recommendations to the Commission on the Establishment of an EU Mechanism on Democracy, the Rule of Law and Fundamental Rights (PE652.513v01-00). You can read it here

AG Bobek delivered today his opinion in case C‑826/18 (LB, Stichting Varkens in Nood, Stichting Dierenrecht, Stichting Leefbaar Buitengebied v College van burgemeester en wethouders van de gemeente Echt-Susteren, joined parties: Sebava BV), which is about the Aarhus Convention and access to justice:

“(1) Article 6 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 […], Article 6 of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment […] and Article 24 of Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) confer full participation rights only to ‘the public concerned’ within the meaning of those instruments, but not to ‘the public’ at large.

(2) Neither Article 9(2) of the Aarhus Convention, nor Article 11 of Directive 2011/92, nor Article 25 of Directive 2010/75, nor Article 47 of the Charter of Fundamental Rights of the European Union, are opposed to the exclusion of ‘the public’ who do not fall within ‘the public concerned’ within the meaning of those instruments, from access to court.

(3) Article 9(2) of the Aarhus Convention, Article 11 of Directive 2011/92 and Article 25 of Directive 2010/75 preclude a condition in national law which makes the right of access to justice for ‘the public concerned’ within the meaning of those instruments dependent on prior participation in the procedures subject to Article 6 of the Aarhus Convention, Article 6 of Directive 2011/92, and Article 24 of Directive 2010/75”

Source: here

État du Grand-duché de Luxembourg (Droit de recours contre une demande d’information en matière fiscale)
DFON
Selon l’avocate générale Kokott, le destinataire, le contribuable et tous les autres tiers concernés doivent pouvoir soumettre à un contrôle juridictionnel une injonction de fournir des renseignements prise dans le cadre de l’échange international d’informations entre autorités fiscales

Thank you Maxime Barba for flagging the judgment in the Paris Court of Appeal Sodmilab et al. (Text of the judgment in Maxime’s post). The case concerns the ending of a commercial relationship. Part of the contract may be qualified as agency with lex causae determined under the 1978 Hague Convention. On this issue, the Court of Appeal confirmed French law as lex causae.

Things get messy however with the determination of that part of the contract that qualifies as distribution (a mess echoing DES v Clarins), and on the application of Rome II.

The Court of Appeal first (at 59) discusses the qualification of A442-6 of the French Code du commerce, on unfair trading practices (abrupt ending of a commercial relationship), dismissing it as lois de police /overriding mandatory law under Article 9 Rome I. As I noted in my review of DES v Clarins, this is a topsy turvy application of Rome I. The qualification as lois de police is up to the Member States, within the confines of the definition in Rome I. The Court of Appeal holds that A442-6 only serves private interests, not the general economic interest, and therefore must not qualify under Rome I. Hitherto much of the French case-law and scholarship had argued that in protecting the stability of private interests, the Act ultimately serves the public interest.

Next (as noted: this should have come first), the Court reviews the application of A4f Rome I, the fall-back position for distribution contracts – which would have led to Algerian law as lex causae. It is unclear (62 ff) whether the Court reaches its conclusion as French law instead either as a confirmation of circumstantial (the court referring to invoicing currency etc.) but clear choice of law under Article 3, or the escape clause under Article 4(3), for that Article is mentioned, too.

Rome I’s structure is quite clear. Why it is not properly followed here is odd. That includes the oddity of discussing French law under Article 9 if the court had already confirmed French law as lex causae under A3 or 4.

Finally, corners are cut on Rome II, too. Re the abrupt ending of the relationship (at 66ff). French law again emerges victorious even if the general lex locus damni rule leads to Algerian law. The court does not quite clearly hold that on the basis of Article 4(3)’s escape clause, or circumstantial choice of law per A14. The court refers to ‘its findings above’ on contractual choice of law, however how such fuzzy implicit choice under Rome I is forceful enough to extend to choice of law under Rome II must not be posited without further consideration. Particularly seeing as Article 6 Rome II excludes choice of law for acts of unfair trading.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2, Heading 2.2.11.2.9; Chapter 3, Heading 3.2.8, Heading 3.2.8.3; Chapter 4).

 

Anyone planning a conflict of laws course in the next term might well consider the succinct Council of Europe report on the application of islamic law in the context of the European Convention on Human Rights – particularly the case-law of the Court. It discusses ia kafala, recognition of marriage, minimum age to marry, and the attitude towards Shari’a as a legal and political system.

Needless to say, ordre public features, as does the foundation of conflict of laws: respect for each others’ cultures.

Geert.

 

 

On the last day of the Croatian Presidency of the Council of the EU, an important deal was concluded: “the Council Presidency and the European Parliament today reached a provisional agreement on two amended regulations, one on the taking of evidence and a second on the service of documents”.

Key points: “Changes in both regulations include the mandatory use of an electronic decentralised IT system, composed of interconnected national IT systems, for the transmission of documents and requests between member states. The draft regulations also task the Commission with the creation, maintenance and future development of a reference software which member states can choose to apply as their back end system, instead of a nationally-developed IT system.

Regarding the service of documents, under the draft new rules documents can be served electronically and directly on an addressee with a known address in another member state, when his or her express consent is given in advance. The service can be performed through qualified electronic registered delivery services or, under additional conditions, by e-mail.

The draft new rules also promote the use of videoconferencing or other distance communication technology in the taking of evidence which implies hearing a witness, party or expert present in another member state”.

Next step: “The provisional agreement now needs to be submitted for endorsement by EU member states’ ambassadors”

Source: here

See also, from the European Parliament, here

 

The Court of Justice delivered yesterday its judgment in case C‑380/19 (Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband eV v Deutsche Apotheker- und Ärztebank eG), which is about Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on consumer alternative dispute resolution:

“Article 13(1) and (2) of Directive 2013/11 […] are to be interpreted as meaning that a trader who provides in an accessible manner on his website the general terms and conditions of sales or service contracts, but concludes no contracts with consumers via that website, must provide in his general terms and conditions information about the ADR entity or ADR entities by which that trader is covered, when that trader commits to or is obliged to use that entity or those entities to resolve disputes with consumers. It is not sufficient in that respect that the trader either provides that information in other documents accessible on his website, or under other tabs thereof, or provides that information to the consumer in a separate document from the general terms and conditions, upon conclusion of the contract subject to those general terms and conditions”.

Source: here

Commission / Hongrie (Accueil des demandeurs de protection internationale)
Espace de liberté, sécurité et justice
Selon l’avocat général Pikamäe, la Hongrie a manqué à ses obligations découlant du droit de l’Union pour une partie substantielle de sa législation nationale en matière de procédures d’asile et de retour des ressortissants de pays tiers en séjour irrégulier

Ministerio Fiscal (Autorité susceptible de recevoir une demande de protection internationale)
Espace de liberté, sécurité et justice
Les autorités juridictionnelles devant statuer sur le placement en rétention d’un ressortissant d’un pays tiers en situation irrégulière peuvent recevoir une demande de protection internationale et doivent informer l’intéressé des modalités concrètes d’introduction d’une telle demande

France / Parlement
Droit institutionnel
Le Parlement européen était en droit d’adopter à Bruxelles, en deuxième lecture, le budget de l’Union pour 2018

A e.a. (Éoliennes à Aalter et à Nevele)
Environnement et consommateurs
Un arrêté et une circulaire qui fixent les conditions générales pour la délivrance de permis d’urbanisme aux fins de l’implantation et de l’exploitation d’éoliennes doivent eux-mêmes faire l’objet d’une évaluation environnementale préalable

Varhoven kasatsionen sad na Republika Bulgaria
Libre circulation des personnes
Un travailleur a droit, pour la période comprise entre son licenciement illégal et la réintégration dans son ancien emploi, aux congés annuels payés ou, au terme de sa relation de travail, à une indemnité en substitution de tels congés non pris

Thank you Gaetan Goldberg for flagging that the French Supreme Court has confimed on 19 June last, jurisdiction of the French Data Protection Agency (‘DpA’), CNIL for issuing its fine (as well as confirming the fine itself) imposed on Google for the abuse of data obtained from Android users. The Court was invited to submit preliminary references to the CJEU on the one-stop shop principle of  the GPDR, but declined to do so.

Readers of the blog know that my interest in the GDPR lies in the jurisdictional issues – I trust date protection lawyers will have more to say on the judgment.

With respect to the one stop shop principle (see in particular A56 GDPR) the Court held at 5 ff that Google do not have a ‘main establishment’ in the EU at least not at the time of the fine complained of, given that the Irish Google office (the only candidate for being the ‘main establishment) at least at that time did not have effective control over the use and destination of the data that were being transferred – US Google offices pulling the strings on that decision. A call by the CNIL under the relevant EU procedure did not make any of the other DPAs come forward as wanting to co-ordinate the action.

On the issue of consent the SC referred to CJEU Cc-673/17 Planet49 and effectively held that the spaghetti bowl of consent, ticking and unticking of boxes which an Android user has to perform to link a Google account to Android and hence unlock crucial features of Android, do not amount to consent or proper compliance with GDPR requirements.

Geert.

French SC confirmation of French DPA fine in #Android data case
On jurisdiction, rejects application of #GDPR one stop shop principle on the basis that #Google's Irish representation does not have decision power over use of the data
See 3 ff of judgmenthttps://t.co/ZVAuZnjznd https://t.co/Jqz7Mm2nfl pic.twitter.com/WBAhjdudVJ

— Geert Van Calster (@GAVClaw) June 19, 2020

A short update on the Prestige litigation. I reported earlier on the disclosure order in the recognition leg of the case. In that review I also listed the issues to be decided and the preliminary assessment under Title III Brussels Ia. That appeal is to be heard in December 2020 (see also 21 ff of current judgment). In The London Steam-Ship Owners’ Mutual Insurance Association Ltd v Spain (M/T “PRESTIGE”) [2020] EWHC 1582 (Comm) Henshaw J on 18 June held on yet another set of issues, related to arbitration and State Immunity.

He concluded after lengthy analysis to which it is best to refer in full, that Spain does not have immunity in respect of these proceedings; that the permission to serve the arbitration obligation our of jurisdiction, granted earlier to the Club should stand; and that the court should appoint an arbitrator.

I am pondering whether to add a State immunity chapter to the 3rd ed. of the Handbook – if I do, this case will certainly feature.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.1, Heading 2.2.11.2, Heading 2.2.16.

The EU Commission is organising a consultation on whether the EU should accede to the Judgments Convention. Responses to the questionnaire may be submitted until 5 October 2020.

If you are interested, see here