Agrégateur de flux

On 7 July 2020, the Members of the Committee on Legal Affairs will vote on the provisional agreement resulting from the interinstitutional negotiations on representative actions for the protection of the collective interests of consumers. The text is available here.

Here are some points of interest (and a few on-the-spot comments).

1. The resulting document will be a directive not intended to replace the enforcement mechanisms contained in previous legal acts listed in Annex I, among which the GDPR.

2. The Directive will cover both domestic and crossborder infringements, in particular when consumers affected by an infringement live in one or several Member States other than the Member State where the infringing trader is established.

3. As announced in the Commission’s proposal (referred to here), the Directive should not affect the application of nor establish rules on private international law regarding jurisdiction, the recognition and enforcement of judgments or applicable law (NoA: how long have academics and the CJEU, AGs included, been warning about the PIL rules being utterly inadequate for collective redress? Apparently not enough).

4. Qualified entities should be allowed to bring representatives actions in the Member State where they have been designated as well as in another Member State.

5. When a qualified entity brings a representative action in another Member State than the one of its designation, that action should be considered a cross-border action.

6. When a qualified entity brings a representative action in the Member State where it is designated, the action is considered a domestic representative action even if that action is brought against a trader domiciled in another Member State or even if consumers from several Member States are represented within that action. (NoA: if I am understanding this correctly, the action against a trader domiciled in another Member State is domestic for the purposes of the Directive, although from a PIL perspective it is definitely not domestic).

7. Principle of origin: for the purpose of cross-border representative actions, qualified entities should comply with the same criteria across the Union. It should be for the designating Member State to ensure that the qualified entity designated for the purpose of cross-border representative actions fulfils the criteria, to assess whether it continues to comply with them and, if necessary, to revoke the designation of the qualified entity.

8. Legal standing: Member States should ensure that cross-border representative actions can be brought in their courts (or administrative authorities) by qualified entities designated for the purpose of such representative actions in another Member State.

9. Qualified entities from different Member States should be able to join forces within a single representative action in front of a single forum, subject to relevant rules on competent jurisdiction (NoA: usually who the claimant is has no impact on jurisdiction, so the caveat has to refer to something different. In any event, is this a lost opportunity to reflect on extended rules for related claims?).

10. The mutual recognition of the legal standing of qualified entities designated for the purpose of cross-border representative actions should be ensured

11. When bringing a representative action, the qualified entity should provide sufficient information on the consumers concerned by the action to the court or the administrative authority. The information should allow the court (or the administrative authority) to establish its jurisdiction and the applicable law.

12. Cooperation and exchange of information between qualified entities from different Member States have proven to be useful in addressing in particular cross-border infringements (NoA: has it?). There is a need for continuing and expanding the capacity-building and cooperation measures to a larger number of qualified entities across the Union in order to increase the us representative actions with cross-border implications.

13. The Commission should draw up a report, accompanied if appropriate by a relevant proposal, assessing whether cross-border representative actions could be best addressed at Union level by establishing an European Ombudsman for collective redress (NoA: not sure what his/her role would be).

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

Peer Zumbansen edited The Many Lives of Transnational Law – Critical Engagements with Jessup’s Bold Proposal, published by Cambridge University Press.

The blurb reads:

In 1956, ICJ judge Philip Jessup highlighted the gaps between private and public international law and the need to adapt the law to border-crossing problems. Today, sixty years later, we still ask what role transnational law can play in a deeply divided, post-colonial world, where multinationals hold more power and more assets than many nation states. In searching for suitable answers to pressing legal problems such as climate change law, security, poverty and inequality, questions of representation, enforcement, accountability and legitimacy become newly entangled. As public and private, domestic and international actors compete for regulatory authority, spaces for political legitimacy have become fragmented and the state’s exclusivist claim to be law’s harbinger and place of origin under attack. Against this background, transnational law emerges as a conceptual framework and method laboratory for a critical reflection on the forms, fora and processes of law making and law contestation today.

The individual contributions are authored by Stephen Minas, Christopher A. Whytock, Thomas Schultz, Niccolò Ridi, Karsten Nowrot, Gregory Shaffer, Carlos Coye, Francis Snyder, Zhouke Hu, Lili Ni, Florian Grisel, Bryan Horrigan, Shahla Ali, Paul Schiff Berman, Antoine Duval, Ivana Isailovic, A. Claire Cutler, Jothie Rajah, Natasha Affolder, Larry Catá Backer, Prabhakar Singh, Ralf Michaels and Vik Kanwar.

The book’s table of contents can be found here. For further information see here.

Par une décision du 15 mai 2020, publiée au JOUE du 26 juin, le CEPD a adopté une nouvelle version de son règlement intérieur, qui reprend largement les dispositions d’une précédente version.

en lire plus

A new book (in Spanish) on surrogacy in private international law and comparative law, edited by the indefatigable Mercedes Albornoz, and freely available online.

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

Protection des consommateurs (surendettement)

Référé – Mesures d'instruction