Agrégateur de flux

On 12 May, 2021, Advocate General Hogan delivered his opinion in Case C‑124/20 Bank Melli Iran v. Telekom Deutschland GmbH on the interpretation of the EU blocking statute (Regulation 2271/96 of 22 November 1996 protecting against the effects of the extraterritorial application of legislation adopted by a third country).

The context of the case was the newly reinstated sanctions of the U.S. against Iran. The main issue raised in the case was that of the impact of Article 5 of the blocking statute on the right of EU businesses to terminate private contracts.

Article 5 reads:

No person referred to in Article 11 shall comply, whether directly or through a subsidiary or other intermediary person, actively or by deliberate omission, with any requirement or prohibition, including requests of foreign courts, based on or resulting, directly or indirectly, from the laws specified in the Annex or from actions based thereon or resulting therefrom.

Persons may be authorised, in accordance with the procedures provided in Articles 7 and 8, to comply fully or partially (…).

The German branch of Bank Melli Iran had entered into a framework contract with Telekom Deutschland GmbH which allowed Bank Melli to group all its company connections at various sites in Germany under one contract. In the context of this contractual relationship, Bank Melli ordered different services which formed the exclusive basis of its internal and external communication structures in Germany and were therefore indispensable to its business activities.

After the Trump administration decided that the U.S. would withdraw from the 2015 Joint Comprehensive Plan of Action aimed at controlling Iran’s nuclear programme and lifting economic sanctions against Iran, the U.S. reinstated sanctions against Iran in 2018.

In November 2018, ten days after the new U.S. sanctions entered into force, Telekom Deutschland GmbH terminated its contract with Bank Melli. It gave similar notice to four other German based entities with connections with Iran.

Bank Melli brought proceedings against Telekom Deutschland GmbH in a German court based on the infringement of the EU blocking statute and requesting performance of the contract.

The most far reaching proposition of A.G. Hogan is to consider that the effet utile of Article 5 of the Blocking Statute requires a redistribution of the burden of proof. He opined that private parties terminating contracts in circumstances where they might be subject to foreign sanctions should have a duty to demonstrate that they did not do so because of the said sanctions.

Article 5 would therefore establish a duty to give the reasons for terminating the contract. Article 5 would also require that the reason be precise and objective, so that it could be verified that it was not to comply with the foreign sanction legislation.

AG Hogan explained:

89. (…) it (…) follows from the uncompromising terms of the first paragraph of Article 5 of the EU blocking statute that – in principle, at least – an undertaking seeking to terminate an otherwise valid contract with an Iranian entity subject to the US sanctions must demonstrate to the satisfaction of the referring court that it did not do so by reason of its desire to comply with those sanctions.

Should the CJEU follow A.G. Hogan, a first consequence would be that persons subject to the EU regulation could not rely on their freedom of terminate contracts without giving reasons under the law governing the contract. Article 5 of the blocking statute would establish an obligation to give a reason for terminating, or refusing to enter into, a contractual relationship with a person sanctioned by the relevant foreign legislation.

A second consequence would be that contractual clauses granting broad discretion to a contractual party to terminate the contract on vague regulatory grounds would be unenforceable. A.G. Hogan explained:

In particular, in my view, a person referred to in Article 11 of that statute should not be able to invoke a termination clause for force majeure to justify the termination of the contractual relationship without at least demonstrating that the event constituting force majeure is unrelated to the US sanctions legislation listed in the annex to that statute.

Article 5 does not provide sanctions for the obligations that it establishes.

A.G. Hogan concluded that, in principle, it was for each Member State to lay down sanctions for infringements of the provision, and that their margin of discretion would be wide as far as punitive sanctions are concerned.

However, he opined that the margin of discretion of Member States would be very limited for civil sanctions, and that they would be bound to provide full effect to the provision by offering remedies which would put right-holders in the situation they would have been in in the absence of that unlawfulness.

108. Accordingly, I consider that, in the event of a breach of a provision prescribing a rule of conduct which must be complied with on a continuing basis (such as here), the national courts are required to order the infringer to put an end to the breach, on pain of a periodic penalty payment or other appropriate sanction, since only then can the continuing effects of the unlawfulness committed be brought to an end and compliance with EU law fully guaranteed.

The conclusions are long and address a number of other issues.

A.G. Hogan concluded by the following summary:

1) The first paragraph of Article 5 of Council Regulation (EC) No 2271/96 … is to be interpreted as not applying only where an administrative or judicial authority of a country whose laws and regulations are listed in the annex to that regulation has addressed, directly or indirectly, some instructions to a person referred to in Article 11 of that regulation. The prohibition contained in this provision accordingly applies even in the event that an operator complies with such legislation without first having been compelled by a foreign administrative or judicial agency to do so.

2) The first paragraph of Article 5 of Regulation No 2271/96 is to be interpreted as precluding an interpretation of national law under which a person referred to in Article 11 of that regulation may terminate a continuing contractual obligation with a contracting party named on the Specially Designated Nationals and Blocked Persons List held by the US Office of Foreign Assets Control, without ever having to justify its decision to terminate those contracts.

3) The first paragraph of Article 5 of Regulation No 2271/96 is to be interpreted as meaning that, in the event of a failure to comply with the provisions of that article, the national court seised by a contracting party subject to primary sanctions is required to order a person referred to in Article 11 of that regulation to maintain that contractual relationship, even though, first, the second paragraph of Article 5 should be interpreted restrictively, secondly, such an injunction measure is liable to infringe Article 16 of the Charter of Fundamental Rights of the European Union and, thirdly, such a person is therefore liable to be severely penalised by the authorities responsible for applying one of the laws referred to in the annex to that regulation.

Non lieu à envoi

The Conference “the Office of the Judge and the Conflict-of-Law Rule” (L’office du juge et la règle de conflit de lois) will be held on Monday 17 May 2021 (in French) and will be streamed live via the Cour de cassation website and social media networks.

This Conference is part of the Lecture Series “Thinking about the office of the judge” (Penser l’office du juge) – 2020-2021 (directed by Sylvie Perdriolle, Honorary President of the Chamber, Sylvaine Poillot-Peruzzetto, Judge at the French Cour de cassation, and Lukas Rass-Masson, professor at the University of Toulouse 1 Capitole).

The programme is as follows:

5:00 p.m. – The Office of the Judge and the Nature of the Conflict-of-Law Rule
Nicolas Nord, Secretary General of the International Commission on Civil Status, Co-chairman of the China Section of the Société de législation comparée
Gian Paolo Romano, Professor at the University of Geneva, Co-director of the Yearbook of International Private Law

5:40 p.m. – The Office of the Judge and the European Conflict-of-Law Rule
Lukas Rass-Masson, Professor at the University of Toulouse I Capitole, Director of the European School of Law Toulouse

6:05 p.m. – The Office of the Judge and the Application of the Conflict-of-Law Rule
François Mélin, Judge at the Court of Appeal of Paris

18:30 p.m. – Discussion

Moderators:
François Ancel, President of the International Commercial Chamber of the Paris Court of Appeal
Gustavo Cerqueira, Professor at the University of Nîmes, France

For several years, Greek scholars and practitioners had no access to a periodical in Greek specialized in Private International Law and International Civil Litigation.

Upon the initiative of Prof. Vrellis, a Private International Law Review [Κοινοδίκιον = Koinodikion] was published biannually between 1995-2003. Since then, conflict of laws issues were hosted in law reviews which were concerned generally with civil, commercial and civil procedure law.

Those days are now over! A new quarterly has just been launched by Sakkoulas Publications. ‘Lex & Forum’ is a brand new review, focusing on civil and commercial cross border matters from a European or international perspective.

Lex & Forum will host articles, notes, comments and book reviews in Greek and major European languages; it will publish rulings of international and national courts alike, not limited to the Greek legal order; finally, it will cover developments and report on news in the field of Private International Law.

The first issue contains an article by the Greek Judge at the CJEU, Michail Vilaras, and an extensive focus on judicial cooperation after Brexit, reflecting a webinar, organized earlier this year. The issue also comes with comments on recent rulings rendered by the CJEU (namely C-500/18, Reliantco, C-774/19, Personal Exchange, and C-272/18, VKI), as well as by Greek courts (among them, Supreme Court No 662/2020, and Court of Appeal of Piraeus No 120/2021, reported in this blog here, and here), UK courts [High Court of Justice, Gategroup Guarantee, EWHC 304(Ch)2021], and Swiss courts (Bezirksgericht Zürich, 24 February  2021).

The first issue contains an introductory note drafted by the scientific directors, Mr Arvanitakis, Ordinary Professor at the law faculty of the Aristotle University, Thessaloniki, and Mr Kranis, former Vice President of Areios Pagos, the Hellenic Supreme Court, and ex Vice Minister of Justice. The team of editors consists of academics, judges, staff members of the Ministry of Justice, lawyers, and Phd candidates in the field.

In response to the EU Commission’s formal refusal to allow the UK to accede to the Lugano Convention, a coalation between several NGOs and legal scholars, lead by the European Coalition for Corporate Justice (ECCJ) has issued an open letter, calling upon the EU to reverse this decision. In essence, they argue that a full return to the common-law rules on jurisdiction, including the forum non conveniens doctrine, will reduce access to the UK courts in cases of corporate human-rights abuses, which has only recently been rendered much more attractive by the UK Supreme Court’s decisions in Vedanta v Lungowe [2019] UKSC 20 and Okpabi v Shell [2021] UKSC 3.

The full letter can be found here. It is still open for signatures (via e-mail to christopher.patz[at]corporatejustice.org).

On 17 May 2021 (from 5 to 7 pm CET), the French Supreme Court in civil and criminal matters (Cour de cassation) will host an online seminar (in French) on the respective roles of the court and the parties in the application of conflict-of-laws rules (L’office du juge et la règle de conflit de lois).

The chairmen are François Ancel (President of the International Commercial Chamber of the Paris Court of Appeal, ICCP-CA) and Gustavo Cerqueira (Professor at the University of Nîmes).

Speakers include Gian-Paolo Romano (Professor at the University of Geneva and co-director of the Yearbook of International Private Law), Nicolas Nord (Associate Professor at the University fo Strasbourg and Secretary General of the ICCS), Lukas Rass-Masson (Professor at the University of Toulouse 1, Director of the European school of law Toulouse) and François Mélin (Counsellor at the Paris Cour of Appeal).

The seminar will be streamed live on the website of the French Supreme Court (here).

It is part of a conference series dedicated to the office (role) of courts in different legal contexts and from a multidisciplinary approach.

The Department of Juridical Sciences of the University of Bologna (Italy), Ravenna Campus, is organising a Summer School on Transnational jurisdiction: current issues in civil and commercial matters. This will be held in Ravenna (and online) between 19-23 July 2021.

Given the growing relevance of cross-border litigation, the Summer School is looking to address a variety of issues from a comparative perspective combining theoretical and practical approaches. The topics address issues of jurisdiction, various aspects of private international law (e.g. cross-border service of documents, taking of evidence, arbitration agreements, Brexit, applicable law in non-contractual obligations, corporate social responsibility), available remedies, and the harmonisation of procedural rules.

The Director of the School, Prof. Michele Angelo Lupoi, has invited experts from different jurisdiction (see here) to lecture on several aspects of private international and procedural law. The programme of the Summer School is available here.

The Summer School is aimed at law students as well as law graduates and law practitioners who want to obtain a specialised knowledge in the complex and fascinating area of international civil procedure.

The lectures are likely to be held in a hybrid form – in presence and online – in respect of the applicable rules and advice.

More information about the Summer School and the registration can he found here.

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