Agrégateur de flux

On Thursday 14 October 2021 an online M-EPLI roundtable will take place on private international law issues relating to the recognition and enforcement of foreign (mostly US) punitive damages judgments in countries outside of Europe.

The event is organised by Lotte Meurkens and Cedric Vanleenhove and the Maastricht European Private Law Institute.

It is not frequent that a request for a preliminary reference on matters concerning civil and commercial litigation is assigned to the Grand Chamber. It has happened though already several times in relation to Article 7 (2) Brussels I bis Regulation (or the corresponding provisions in the previous instruments). It will happen again in case C-251/20, where the French Cour de Cassation asks for help to determine the place where the damage occurred and, consequently, the competent court to adjudicate on an action for damages due to disparagement.

The opinion of AG Hogan has just been published. Long, but easy to follow in spite of the absence of subheadings, it provides a rich and accurate overview of the case law of the Court in relation to the infringement of rights -privacy, copyrights, intellectual property- on the internet in order to address (see at 42)

“whether, in view of the reasons given by the Court to justify the exclusive jurisdiction of certain courts in relation to the deletion or rectification of disputed content [published on the internet], it would be appropriate also to recognise the exclusive jurisdiction of those same courts in relation to compensation”,

a point which

“implicitly raises the question of whether, in the judgment of 17 October 2017, Bolagsupplysningen and Ilsjan (C‑194/16, EU:C:2017:766), rather than simply distinguishing earlier case-law in this manner, the Court further intended to effect a complete reversal of its case-law and thus abandon the mosaic approach with regard to claims for damages as well” .

Spoiler: he believes it did not; also, that it should not; at most, he would agree to have the mosaic solution combined with the “focalization” criterion that has been used in certain areas (reference is made, among other, to Football Dataco and Others, C‑173/11, EU:C:2012:642).

I see no point in summarizing here the many arguments put forward by AG Hogan, among which the “dialogue” with AG Bobek; an assessment of the mosaic solution in case of SLAPP; the same, in the light of the main objectives of the Brussels I bis Regulation, as dealt with in the case law of the Court on Article 7(2); all this, with support of scholars’ views, English or French. The original is in English, thus easily accessible – easier, in any event, for those not reading French.

It should be born in mind, in addition, that, in fact, according to the AG

“the present case is not the right one for the Court to take a position on whether or not the mosaic approach should be maintained, refined or even abandoned. Indeed, in the case in the main proceedings, the applicant is alleging not that the contents in question would constitute acts of defamation, but that those would instead violate French law relating to acts of dénigrement, which is a form of malicious falsehood”,

rather belonging to the domain of unfair competition rules (under French law). Eventually, the AG addresses the question referred as one related to the materialization of a damage of a strictly economic nature. He elaborates from this perspective in points 98 and ff, to conclude with this proposal to the Court:

“Article 7(2) of Regulation No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that a claimant who relies on an act of unfair competition consisting in the dissemination of disparaging statements on the internet and who seeks both the rectification of the data and the deletion of certain content and compensation for the non-material and economic damage resulting therefrom, may bring an action or claim before the courts of each Member State in the territory of which content published online is or was accessible, for compensation only for the damage caused in the territory of that Member State. In order, however, for those courts to have the requisite jurisdiction it is necessary that the claimant can demonstrate that it has an appreciable number of consumers in that jurisdiction who are likely to have access to and have understood the publication in question.”

Which of the contents of the opinion will be taken up by the Court is difficult to say. As we know it, the Court tends to remain cautious. In relation to a provision as slippery as Article 7(2) Brussels I bis Regulation, an interpretation focused strictly in the circumstance of the case at hand seems advisable, no matter how frustrating this may be for scholars and practitioners, and how much such approach endangers the consistency of the application of the rule itself. In any event, judging from experience there is little doubt that requests on the same provision will continue to be addressed to Court as long as its text remains unchanged.

Commission / Belgique et Magnetrol International
Aide d'État
Exonérations fiscales accordées par la Belgique à des sociétés multinationales par la voie de rulings : la Commission a établi à juste titre l’existence d’un régime d’aides

Commission / Italie
Fiscalité
L’Italie a enfreint le droit de l’Union en exonérant des droits d’accise les carburants des bateaux de plaisance privés, affrétés et utilisés par les utilisateurs finaux pour des activités non commerciales

The second issue of 2021 of the Dutch journal Nederlands Internationaal Privaatrecht is published. This includes the following articles:

K. Henckel on Rechtskeuze in het ipr-arbeidsrecht: enkele gedachten over het begunstigingsbeginsel (in English Choice of Law in PIL labour law: Some Thoughts on the Principle of Favourability). This article is available open access here.

This article discusses the preferential law approach that is enshrined in Article 8(1) Rome I Regulation. This provision limits the effects of a choice of law in the sense that the choice may not deprive the employee of the protection afforded to him by the mandatory provisions of the law that would have applied in the absence of a choice. It is generally accepted that the law that is most favourable to the employee merits application. The determination of this preferential law requires a comparison between the chosen law and the law that would have applied in the absence of such a choice. The article examines the method of comparison used throughout Dutch case law which shows that a preferential law approach is rarely applied. Instead, the majority of judgments apply the mandatory provisions of the objectively applicable, Dutch, law without further explanation. Since the application of the preferential law approach seems to be plagued by ambiguity, this article questions the desirability and practical feasibility of the comparison between the chosen law and the mandatory provisions of the law that would have applied in the absence of such a choice.

L.C.J. van Apeldoorn on Erkenning van internationale rechtspersonen in het Nederlandse privaatrecht (in English, Recognition of International Legal Persons in Dutch Private Law)

This article examines the grounds for the recognition of the legal personality of international legal persons in Dutch private law, focusing in particular on foreign states and international organizations. Based on an analysis of the decision of the Dutch Hoge Raad (Supreme Court) in UNRRA/Daan, it is argued that the legal personality of international organizations is recognised by means of the (analogous) application of a rule, codified in Article 10:119 of the Dutch Civil Code, according to which the legal personality of a corporation depends on its personal law. When considering the personal law of international organisations, which is public international law including the terms of the founding treaty, decisive is not whether the organisation is an international legal person, but whether it is granted, on the basis of public international law, legal personality in the legal orders of its member states. The rule governing the recognition of the legal personality of international organisations is not applicable to foreign states because public international law does not imply or require that states are afforded legal personality in municipal law. Rather, it is argued, the legal personality of foreign states is recognised on the basis of an unwritten rule of Dutch private international law, originating in international comity, that attributes legal personality to foreign states. The application of this rule coincides in practice with the application of another rule also originating in comity, requiring as a matter of public international law that foreign states are granted standing to be party to legal proceedings before municipal courts.

C. Okoli on An analysis of the Nigerian Court of Appeal’s decisions on Foreign Choice of Court Agreements in the year 2020

In Nigeria valid commercial contracts between parties are treated as sacrosanct and binding by Nigerian courts. It is however uncertain (unlike in the European Union) whether a valid foreign choice of court agreement, which is a term of the parties’ contract, will be enforced by Nigerian courts. In this connection, the decisions of Nigerian courts are not consistent. Nigerian courts have applied three approaches to the enforcement of foreign choice of court agreements – ouster clauses, the Brandon test, and the contractual approach. This article analyses the approach of Nigerian appellate courts to the enforcement of foreign choice of court agreements in light of three Court of Appeal decisions delivered in the year 2020.

Stuij on Iura novit curia en buitenlands recht. Een rechtsvergelijkend en Europees perspectief (in English Iura Novit Curia and Foreign Law. A Comparative and European Law Perspective) – PhD dissertation Erasmus University Rotterdam

The thesis was defended on 29 April 2021. The analysis is centred around the Latin legal maxim iura novit curia in relation to the application of foreign law in civil proceedings. The thesis is a result of a comparative research into Dutch, German, and English law, as well as European law. The European dimension focuses on the influence of the ECHR – in particular Article 6 – and Article 47 of the EU Charter of Fundamental Rights, as well as the influence that the EU law can have on national procedural law. The author analyses, evaluates and recommends several approaches to the problem of foreign law in civil litigation. From a supranational perspective, he concludes that parties should have the option to waive the applicability of foreign law, unless compelling interests are at stake. He also discusses the conditions under which the judges are authorized to require the parties to cooperate. Within this framework a proposal is made not to establishing a general duty to apply conflict of laws and foreign law ex officio at supra- or international level. If the application of the law has to be strengthened, the emphasis must be placed on knowledge of foreign law (novit). This means that strengthening access to foreign law should be prioritised, and preferably through an instrument that combines different ways of providing information, so as to be sufficiently effective. In this context attention can be given to the different phases of research into the content of foreign law and to the various actors that play a role in this.

More information about this NIPR issue can be found here.

Les juridictions françaises n’ont pas porté une atteinte disproportionnée à la liberté d’expression en condamnant pour provocation à la haine raciale un élu qui avait mis six semaines à supprimer de son mur Facebook des messages haineux publiés sur son mur Facebook par un tiers. 

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La Cour de justice de l’Union européenne apporte trois précisions sur la directive 2013/32/UE du 26 juin 2013 relative à des procédures communes pour l’octroi de la protection internationale. 

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