Droit international général

This post was written by Mathilde Codazzi, who is a doctoral student at the University Paris II Panthéon-Assas.

In a judgment of 22 November 2023, the French Supreme Court has ruled that a court is “deemed to be seized” under Article 16(a) of the Brussels II bis Regulation at the time which the document instituting proceedings is lodged with the court, irrespective of whether the applicant lacked diligence in the accomplishment of the required steps to serve the defendant.

Background

The parents of a child born in 2012 in France separated in 2014. The mother and the child lived in Germany from 2015 to 2018. The father brought an action before the Family Court of Nantes (juge aux affaires familiales) on 28 May 2019, two months before the mother and the child went back from France to Germany, for the purpose of deciding upon the terms and conditions of parental responsibility.

In December 2019, the Family Court issued a summon to the defendant’s address (the mother) in France for the hearing, which came back stating that the recipient was unknown at this address. In January 2020, the Court invited the plaintiff to serve the defendant for a hearing which was eventually postponed because of COVID. On 18 September 2020, the father eventually served the defendant notice of the act introducing the proceedings, as required by the Court.

On 17 March 2020, however, the defendant had seized the German court for the purpose of deciding upon parental responsibility.

The French Family court declined its jurisdiction on the ground that that German court had been seized first.

Court of Appeal

By a judgment of 25 October 2021, the Rennes Court of Appeal upheld the first instance court’s decision. It ruled that by failing to inform in due course the court registry of the defendant’s new address in Germany and the defendant of the ongoing proceedings against her before serving her, the applicant had been grossly negligent within the meaning of Article 16(a) of the Brussels II bis Regulation as he failed to take the required steps to serve the defendant. As a result, by the time the applicant served the defendant, the child’s habitual residence had been transferred to Germany and German courts were thus competent to rule on parental responsibility.

Judgment

The issue was therefore to determine whether the applicant’s failure to inform the court registry of the defendant’s new foreign address and the defendant of the pending proceeding before serving the document on the defendant is constitutive of a “failure to take the [required] steps” under Article 16(a) of the Brussels II bis Regulation.

By a judgment of 22 November 2023, the French Supreme Court overruled the Rennes Court of Appeal’s decision.

The Court first recalled that pursuant to Article 8 of the Brussels II bis Regulation, the competent courts in matters of parental responsibility are the courts of the Member State in which the child is habitually resident at the time the court is seized. The Court went on to rule that, according to Article 16(a) of the Regulation, a court is deemed to be seized upon accomplishment of only one formality: the filing of the document instituting proceedings. Therefore, the Rennes Court of Appeal, having noted that the applicant had filed the request then properly served the defendant, could not decline jurisdiction on the ground that the applicant had failed to take the required steps to serve the defendant.

The French Supreme Court also refused to stay the proceedings and refer the matter to the Court of Justice of the European Union for a preliminary reference as there was no reasonable doubt about the interpretation of Article 16(a) of the Brussels II bis regulation.

Assessment

The applicant having regularly lodged the document instituting proceedings with the court, the French court was already seized even though the defendant had not been served yet. This interpretation of Article 16(a) of the Brussels II bis Regulation is rather strict: the court is deemed to be seized as soon as the document instituting proceedings is regularly filed by the applicant, without the circumstances in which the required steps are then accomplished by the applicant being relevant for this purpose.

In a report presenting the judgment, the Court explained that the concept of negligence should be given an objective meaning, and be understood as an ‘omission’ to serve the document. The lower court had, in contrast, given the concept a subjective meaning focused on whether the plaintiff had been negligent.

Arguably, this interpretation remains relevant under the Brussels II ter Regulation, which applies since 1 August 2022, given that Article 17(a) of the latter text is basically identical to Article 16(a) of the Brussels II bis Regulation.

The Yearbook of Private International Law for 2022/2023 (volume XXIV) is out. It features the following contributions.

Doctrine

Elisabetta Bergamini, Raluca Bercea, Andreea Verteș-Olteanu, The Changing Scenario on Advance Directives between National Rules and Private International Law

Gerald Goldstein, Objective, Subjective and Imperative Localization in the Resolution of Conflict of Laws

Giesela Rühl, Man Yip, Success and Impact of International Commercial Courts – A First Assessment

Adam Samuel, A “Common Law” of International Arbitration? – In Memory of Claude Reymond

Sharon Shakargy, Un-Identifying Identification

Guojian Xu, Xin Cai, Recognition and Enforcement of Foreign Judgments in China – Legal Framework and Recent Developments

New Technologies and Private International Law

Andrea Bonomi, Blockchain and Private International Law – Some General Remarks

Narges Keshavarzbahadori, Due Process Requirements in Blockchain-based Arbitration

Marta Zamorska, Artificial Intelligence-Supported Arbitral Awards – A Pandora’s Box or the Future of International Commercial Arbitration?

Robert Walters, Harsha Rajwanshi, Reconciling “Confidentiality” in Data Protection, Cyber Security, Artificial Intelligence in International Arbitration

The French Draft Private International Law Code

Cyril Nourrissat, The Draft Code of French Private International Law

Dominique Bureau, Horatia Muir Watt, Codifying against the Clock… – On a French Project for the Codification of Private International Law

Marie Goré, Rules on Trust in the French Draft Code of Private International Law

Recognition of status filiationis within the EU and Beyond

Cristina González Beilfuss, Ilaria Pretelli, The Proposal for a European Regulation on Filiation Matters – Overview and Analysis

Tamir Boldbaatar, Batzorig Enkhbold, Surrogate Motherhood under Different Laws – Legal Arrangements and Challenges of Mongolia

Valentina Calderai, Rachele Zamperini, Surrogacy Contracts and the (In)Alienability of Fundamental Rights a View from Italy – On Case No 38162/2022 of the Corte di Cassazione

Helga Luku, Free Movement, Children’s Rights and National Identity in the EU Parenthood Proposal

Paulina Twardoch, Surrogacy Agreements from the Conflict-of-Laws Perspective Today and Tomorrow

Recent Developments in International Successions

Georges Khairallah, The New Right of Compensation under French International Succession Law – A Provision with an Uncertain Future

Eva Lein, Choice of English Succession Law and German Ordre Public

Andrea Bonomi, Revocation of the Will upon Marriage – Issues of Characterisation, Applicable Law, and Renvoi – An Italian Supreme Court’s Decision and Some Reflexions on the Potential Outcome under the European Succession Regulation

National Reports

Chukwuma Okoli, The Enforcement of Foreign Jurisdiction Clauses in Nigeria – A Critique of the Nigerian Court of Appeal’s Recent Restatement

Forum

Yves El Hage, “How to Locate a Cyber Tort?”

This case, C-632/22 – AB Volvo ./. Transsaqui SL, arises from a reference for a preliminary ruling of the Supreme Court of Spain (Tribunal Supremo). The core question is whether a claimant may serve process on a domestic subsidiary of a defendant in another Member State. In principle, the answer is simply no (absent special arrangements), because the subsidiary is a self-standing legal entity. If it is the foreign mother company that is the defendant, process must be served on her.

The reason to put this into question was the ECJ’s judgment of 6 October 2021, C-882/19 – Sumal. There, the Court held that private enforcement of cartel damages claims could be directed both at the parent company and its subsidiaries. To put it differently: The question was whether the effet utile of private enforcement of cartel damages would affect and alter the EU’s procedural law in order to facilitate service of process for the claimant beyond what is offered to the claimant under the EU’s Service Regulation. Therefore, the case must be seen in the context of a tension between strong policies of substantive law and the autonomous rationales of procedural law, not only in areas of the autonomy of the Member States’ procedural law but also in areas of the EU’s own procedural law. More often than not, this tension has been resolved in favour of the substantive policies. Not so here, according to the Advocate General’s Opinion, and this is to be welcomed.

The facts were (summarised) the following: During 2008 the claimant (Transsaqui SL, Spain) purchased two Volvo trucks. In its decision of 19 July 2016, the EU Commission found that a number of truck manufacturers had infringed Art. 101 TFEU and Art. 53 EEA by taking part in a cartel. Volvo was found to be one of the cartelists at the time. In July 2018, the claimant brought an action against Volvo at Valencia, Spain, claiming damages of approx. EUR 25,000.- Despite Volvo having its registered office in Gothenburg, Sweden, the claimant nevertheless indicated as Volvo’s address its subsidiary, Volvo Group España SAU in Spain (Madrid). The subsidiary refused acceptance of the documents sent by postal mail. In the following hearing before the court at Valencia (Juzgado de lo Mercantil nº 1), the claimant submitted that the defendant holds 100% of the share capital of its Spanish subsidiary and that mother and subsidiary should thus be treated as a single undertaking, according to the principles of competition law as established by the ECJ in Sumal. The court at Valencia indeed ordered service on the subsidiary on these grounds, but all attempts failed, as the subsidiary refused accepting the documents. On 26 February 2020, the court issued a default judgment ordering Volvo to pay the claimed (approx.) EUR 25,000.- plus interest and costs. The cost order was likewise served on the subsidiary, whereupon Volvo filed an application for revision of the judgment before the Tribunal Supremo (ATS nº13837/2022, de 7 octubre de 2022). This is the proceeding where the reference arose from. The Tribunal Supremo framed the question as follows: (1) Would Art. 47 of the EU Charter of Fundamental Rights, in conjunction with Art. 101 TFEU, allow at all such serving of process on the domestic subsidiaries in cartel damages cases? (2) If so, would Art. 53 of the EU Charter allow higher standards under the domestic law of the Member State as assessed by the Spanish Constitutional Court[1] for service of process?

Advocate General Szpunar rightly referred to the principle under the EU Service Regulation that a defendant domiciled in another Member State must imperatively be served in that Member State (ECJ, judgment of 19 December 2012, C-325/11 – Alder, para. 25). National law cannot deviate from this principle by offering options for substituted service. Further, according to the Opinion, Article 101 TFEU as much as Article 47 of the Charter do not call into question this principle. Thus, primary EU law (in this constellation) does not set aside the EU’s secondary law on service. This is all the more true as the judgment in Sumal relates to substantive (competition) law, whereas the Service Regulation forms part of the EU’s legislation on judicial cooperation in civil matters, i.e. is procedural law. Very rightly, the Advocate General underlined that service of process is a “sensitive issue” and that the defendant’s right to be heard and to defend must be carefully protected, and it is carefully protected, as Articles 45(1)b and 46 of the Brussels Ibis Regulation show. Indeed, “attenuating the provisions of [the Service Regulation] by allowing for the service of a document on another (legal) person (in casu a subsidiary) could ultimately amount to a lack of mutual trust in judicial cooperation. Mutual trust implies and is based on the assumption that procedural requirements – especially those stemming directly from EU law (in casu [the Service Regulation] – have been complied with and fulfilled when proceedings have been initiated” (para. 53).

There is nothing to add. It would be a strange result if the EU’s own law on service of process turned out to be “ineffective” under Article 101 TFEU for pursuing cross-border cartel damages claims. If that were the case, the same would probably have to be assumed for claims of consumers under EU consumer law and other areas of EU law implementing strong policies, which would push the Service Regulation into absurdity. Even if one considered to limit the impact of substantive policies on service to cartel damages proceedings  (in light of the case of Sumal), the extended possibilities of service would depend on rather complex considerations on substantive antitrust law, and the stage of proceedings for service are certainly not the right place to address these. Translation costs cannot be an argument. They are part of the balancing approach under the Regulation, and Article 8 (of the then applicable EU Service Regulation 1393/2007; now Article 9 of the Regulation 2020/1784) does not require translation under all circumstances but merely gives the defendant the right to reject acceptance of an untranslated document. In the case at hand, the claimant never had attempted to serve in Sweden based on documents in Spanish, nor did the claimant make any submissions as to the precise costs. Thus, the Opinion upholds and strengthens the “autonomy” of EU procedural law, and, as I said at the beginning, that must be welcomed.

On an abstract level, it is interesting to note that the concept of mutual trust, as employed by the Advocate General, does not only speak to the Member States amongst each other applying EU law on judicial cooperation but also to the EU itself vis-à-vis its Member States (as has been argued elsewhere, in other contexts, by the author of these lines), including its Court of Justice, and this Court must keep in mind predictability and reliability of agreed secondary legislation. “Adding to the provisions of [the EU Service Regulation] a combined reading of Article 101 TFEU and Article 47 of the Charter would, in my view, not serve judicial cooperation, but constitute a small but significant step to de facto eradicating it” (para. 53 in fine). In my view as well.

 

[1]      The Tribunal Supremo explicitly refers to STC nº 91/2022, de 11 de julio 2022 (BOE núm. 195 de 15 de agosto de 2022) – Iveco S.p.A where the Constitutional Court held that Iveco SpA’s right to effective judicial protection had been infringed because service had not been effected at Iveco SpA’s registered office in Italy, but had been attempted at the registered office of its subsidiary in Spain, Iveco España, SL.

The Tug of War over Online Gambling

Many Member States try to limit gambling through strict prohibitions, with the sole exclusion for governmental monopolies.

Malta, however, has a burgeoning online gambling industry with pan-European reach, which it deems to be protected by the freedom of services enshrined in primary EU law.

The island state resists the enforcement of judgments from courts in other Member States that take a different view; to this end, it even plans to adopt an explicit legislative provision prohibiting the enforcement of such judgments by Maltese courts (see here). [image from freepik]

The Recent Episodes in Austria

Meanwhile, gamblers in Austria who have lost money have found a lucrative alternative. Instead of bringing their claims themselves, they sell and assign them to a Swiss company, which then tries to enforce these claims before Austrian courts. This raises the question of the latters’ international jurisdiction.

In a number of decisions, the Austrian Supreme Court (OGH) has answered it in the affirmative (22 June 2023, 27 June 2023, and 25 September 2023). The reasons are of general interest; inter alia because they add a further aspect to the complex discussion on the localisation of financial loss under Article 7 No 2 of the Brussels I bis Regulation (see already here and here).

Consumer Protection is Out

To the uninitiated, Article 18 Brussels I bis seems to provide a basis of jurisdiction for the gamblers’ claims. Yet in the eyes of the Austrian Supreme Court, this provision is inapplicable because the plaintiff is not asserting his own claims, but assigned ones. This is in line with the case law of the CJEU, who excluded assigned claims from the scope of the consumer protection provisions (see the Schrems case, C-498/16, paras 42–49).

Choice of Forum

Another potential stumbling block could be a clause contained in the contracts between the gamblers and the operator according to which all disputes should be decided by the courts of Malta. The Austrian Supreme Court rightly denies any effects of this clause against the Swiss litigation vehicle. As the CJEU had ruled in DelayFix (C-519/19, para 42), such a clause produces effects only between the parties to the initial agreement.

Where Are Gambling Contracts Performed?

We are getting closer to the meat of the case, which is Art 7 Brussels Ibis. First, the contractual head of jurisdiction under Article 7 No 1 Brussels I bis needs to be analysed. Undoubtedly, the parties had entered into a contract, more precisely a service contract in the (European-autonomous) sense of lit. b. But where was the service to be performed?

The Austrian Supreme Court locates the place of performance within the meaning of Article 7 No 1 lit b Brussels I bis in the state of the service provider, i.e. in Malta. The courts there would also have jurisdiction to hear claims for the restitution of money paid under the gambling contracts. Hence, this head of jurisdiction does not allow a claim in Austria.

Where does Gambling Damage Occur?

This brings us to the last and thorniest question, whether the tort/delict jurisdiction under Art 7 No 2 Brussels Ibis points to Austria.

Two of the decisions try to reach this result by a rather classic localisation exercise. Citing the CJEU’s decision in Kolassa (C-375/13), they deem the habitual residence of the victim as the place of damage, provided another element of the case takes place there. The fact that the gambler held an account in Malta was considered irrelevant since the final damage of the gambler materialised in Austria.

Yet then, these decisions add a very different element, namely the violation of the Austrian gambling laws. The decision of 22 June 2023 phrases it in the following way:

Above all, however, the damage materialised in Austria because the damage asserted results from alleged violations of Austrian gambling law by the defendant and therefore from violations of Austrian public policy rules.

Yet the decision of 25 September 2023 follows a different line of thought. It does even attempt a classic localisation approach, but puts the violation of public law at the centre of its reasoning. In its own words:

The breach of duty relevant to the damage is located in Austria, which is why the international jurisdiction of the court of first instance for the tortious claims for damages asserted is to be affirmed pursuant to Article 7 No 2 Brussels I bis Regulation.

Assessment

The quoted passages merit criticism. A breach of duties, even under public policy rules, does not amount to a damage. The violation of rules is actually a tortious act that causes the damage, but not the damage itself. The two must be distinguished.

The Austrian Supreme Court may have been led astray by some utterances of the CJEU in the VEB decision, which referred, in determining jurisdiction under Article 7 No 2 Brussels I bis, to the place where a securities issuer company had to comply with statutory reporting obligations (VEB v BP C-709/19 para 359). Yet this was done to ensure the foreseeability of the competent court, not to locate the damage itself.

The violation of a state’s public policy provisions therefore does not allow its courts to exercise jurisdiction. The damage under Article 7 No 2 Brussels I bis must still be determined by localising a loss. Following the Kolassa reasoning, the country of the habitual residence of the gambler can be used under the condition that another element of the case takes place there. This other element could be the payment from the account of a bank established there, as the CJEU had ruled. Unfortunately, the Austrian Supreme Court did not make any determinations in this regard, but it may be assumed that the gamblers’ banks were established in Austria. Arguably, this would provide a sufficient reason to locate the damage there, without the need to refer to the Austrian public policy provisions on gambling.

— Thanks to Paul Eichmüller, Felix Krysa and Verena Wodniansky-Wildenfeld for reviewing this post.

By Biset Sena Günes, Senior Research Fellow at the Max Planck Institute for Comparative and International Private Law, Hamburg

Recently, on 25 October 2023, the Austrian Supreme Court (‘OGH’) [2 Ob 179/23x, BeckRS 2023, 33709] ruled on whether a jurisdiction clause included in the terms of purchase (‘ToP’) was valid when a written contract made reference to the website containing the ToP but did not provide the corresponding internet link. The Court held that such a clause does not meet the formal requirements laid down under Article 25 of the Brussels I (recast) Regulation and, hence, is invalid. The judgment is undoubtedly of practical relevance for the conclusion of international commercial contracts that make reference to digitally available general terms and conditions (‘GTCs’), and it is an important follow-up to the decisions by the Court of Justice of the European Union (‘CJEU’) in the cases of El Majdoub (C-322/14, available here) and Tilman (C-358/21, available here).

Factual Background and Procedure

A German company and an Austrian company concluded a service agreement in which the German company (‘the service provider’) undertook to provide the engineering plans for a product to the Austrian party (‘the client’). The Austrian party sent its order to the service provider on a written form which stated (in translation): ‘we order in accordance with the terms of purchase known to you (available on our website) and expect your confirmation by email immediately’. The order specified the client’s place of business as the place of delivery. The German party subsequently signed and returned the same document, ticking its relevant parts and naming it as the ‘order confirmation’. This confirmation was also in written form. The ToP – which were not attached to the contract, but which were available on the client’s website – contained a jurisdiction clause conferring jurisdiction on the Austrian courts for the resolution of disputes arising from the parties’ contract. The clause also allowed the Austrian party to sue in another competent court and was thus asymmetric. The ToP additionally included a clause defining the place of performance for the delivery of goods or for the provision of services as the place specified by the client in the contract.

Upon a disagreement between the parties due to the allegedly defective performance of the service provider, the Austrian party brought proceedings against its contracting partner before the competent district court of Vienna, Austria, in reliance on the jurisdiction clause. The defendant successfully challenged the jurisdiction of the court by claiming that the clause did not meet the formal requirements of Article 25 of the Brussels I (recast) Regulation. Upon appeal, this issue was not addressed, but the judgment was nevertheless overturned as, in the court of appeals’ view, the first instance court was competent based on the parties’ agreement as to the place of performance. According to the court, the parties’ numerous references to the place of business of the client should be understood as an agreement on the place of performance within the meaning of Article 7 of the Brussels I (recast) Regulation, even though the defendant argued that the engineering plans were actually drafted at their place of business and not that of the client. The defendant appealed against the judgment before the Austrian Supreme Court.

The Issue at Stake and the Judgment of the Court

As could be easily identified from the facts and the parties’ dispute, the main question in this case is whether the formal requirements of the Brussels I (recast) Regulation, and in particular its demand of ‘written form’, could be satisfied by a simple reference to a website where the party’s ToP – including the jurisdiction clause – could (allegedly) be retrieved, hence allowing the court to conclude that parties indeed reached an agreement as to jurisdiction.

The Court answered the first question in the negative and found the jurisdiction clause invalid. This is because the ‘written form’ requirement under Article 25(1) (a) of the Brussels I (recast) Regulation is met only if the contract expressly refers to the GTCs containing a jurisdiction clause and if it can be proved that the other party actually received them. According to the Court’s reasoning, the mere reference to the website did not make the jurisdiction clause (or the ToP, in general) accessible to the other contracting party in a reproducible manner; this is unlike the case of a written contract providing a specific link (as in Tilman) or the case of ‘click-wrapping’ (as in El Majdoub), as those are contractual constellations sufficiently establishing that the parties had access to the terms of the agreement (paras 19–20 of the judgment).

General Assessment in Light of the Case Law of the CJEU

Choice-of-court agreements are undoubtedly an important part of today’s highly digitalised business environment, and it is to be expected that they will be found in digitally available GTCs. Yet in practice their validity is often challenged by one of the parties. The Court of Justice has indeed had to deal with such issues in the past, and the present case gives us cause to briefly revisit those rulings.

In El Majdoub (commented before on blogs, here and here), the CJEU had to decide on the question of whether a ‘click-wrap’ choice-of-court clause included in the GTCs provided a durable record which was to be considered as equivalent to a ‘writing’ under the then current Article 23(2) of the Brussels Regulation. In the El Majdoub case, a sales contract was concluded electronically between the parties by means of ‘click-wrapping’, i.e. in order to conclude the agreement, the buyer had to click on a box indicating acceptance of the seller’s GTCs. The GTCs – which containing the agreement as to jurisdiction – were available in that box via a separate hyperlink that stated ‘click here to open the conditions of delivery and payment in a new window’. Although this window did not open automatically upon registration to the website and upon every individual sale, the CJEU found that such a clause provided a durable record as required by Article 23(2) of the Brussels I Regulation since it gave the buyer the possibility of printing and saving the GTCs before conclusion of the contract. This holding should be welcomed as the CJEU gave its blessing to the already existing and much-used practice of ‘click-wrapping’ in the digital business environment, and the Court thus showed its support for the use of technology in contractual practices (in line with aims previously stated in the Commission Proposal (COM(1999) 348 Final)). The Court’s conclusion is, of course, limited in the sense that it only confirms that the ‘click-wrapping’ method provides a durable record of the agreement; there is no analysis as to the requirement of a ‘consensus’ on jurisdiction between the parties in the case of digital contracts. Since the buyer had to accept the terms before the purchase, the Court took this as a consent and did not address the issue (see, similarly, van Calster and Dickinson and Ungerer, LMCLQ 2016, 15, 18–19). It should, in this regard, be observed that establishing the existence of such an agreement is the purpose of the form requirements, a fact confirmed by the case law of the Court, see, e.g. Salotti, para 7 (C-24/76, available here). Still, one should admit that questions as to the existence of consent would probably not be much of an issue in the ‘click-wrapping’ context, especially in B2B cases, as the ‘click’ concludes the agreement – unless, of course, there are other circumstances (e.g. mistake) that affect the quality of consent (see, similarly, van Calster on Tilman).

In the later case of Tilman (previously commented on PIL blogs on a couple of occasions, see the comments by Pacula, by Ho-Dac, and by Van Calster, here and here), the situation was more complex. There was a written agreement between the parties in which the GTCs – which for their part contained an agreement as to jurisdiction in favour of English courts – were referred to by provision of the link to the website where they could be accessed. In other words, there was no ‘click-wrap’ type of agreement; rather, it was a written agreement specifying the link (i.e. the internet address) of the website on which the GTCs could be retrieved. The CJEU then had to deal with the question of whether this manner of incorporating a jurisdiction clause satisfies the conditions of Article 23(1) and (2) of the Lugano II Convention, which are identical to Article 23(1) and (2) of the Brussels I Regulation. The Court answered this question in the affirmative and expanded the possibility of making reference to GTCs by inclusion of the link in written contracts because, in the Court’s view, making those terms accessible to the other party via a link before the conclusion of the contract is sufficient to satisfy formal requirements, especially when the transaction involves commercial parties who can be expected to act diligently. There is no further requirement of actual receipt of those terms. This, again, is a modern and pragmatic approach that simplifies commercial contractual practice, and it is a ruling that should be welcomed. However, it is unfortunate that the Court did not address the technical details in the facts of the case; namely, the link did not open the GTCs directly and instead opened a page on which the GTCs could be searched for and downloaded (see, Summary of the Request for Preliminary Ruling, para 14, available here). This is a point which may give rise to questions as to the proper incorporation of GTCs into a contract (in this regard, see also Finkelmeier, NJW 2023, 33, 37; Capaul, GPR 2023, 222, 225) or as to the existence of consent (on further thoughts as regards the question of consent in both of the CJEU cases, see van Calster). The facts of the case also leave room for a different interpretation in other circumstances, such as when the link refers to a homepage, the link is broken, or the website has been updated (see, in this regard, Finkelmeier, 37; Capaul, 225, and also Krümmel, IWRZ, 131, 134).

In the present case before the Austrian Supreme Court, we encounter yet a different scenario in which there is definitely room for different interpretations. Again, there is a written contract which makes reference to GTCs and which states that they are available on the client’s website. But here, the client did not supply the service provider with the hyperlink address creating accessibility to the GTCs. And the Court rightly held that the CJEU’s conclusion in Tilman should not be understood as saying that a general reference to GTCs in the contract will always be sufficient to prove they have been made available. In the Austrian Court’s understanding, the mere reference to the existence of the GTCs was not sufficient so as to constitute their proper inclusion into the contract and to prove consensus between the parties in a clear and precise manner (paras 19–20 of the judgment). One could, of course, always argue in favour of a further relaxation of the form requirements, especially when the transaction involves commercial parties who should act diligently when entering into contracts. But it is obvious that in a case in which the written contract does not even provide the necessary link, it will be a burden for the counterparty to search the website and retrieve the actual version of the referenced GTCs before entering into the contract, whereas the other party would unduly benefit from being able to fulfil her/his obligation by making a mere reference to the existence of the GTCs. Hence, it is good that the Austrian court did not further extend Tilman’s already broad interpretation.

Conclusion

Despite being an important part of cross-border commercial practice, choice-of-court agreements often become the source of an additional dispute between the parties in terms of their existence and validity. In the vast majority of cases, these disputes are complex. This is probably even more the case with the increasing use of technology in contracting. All these cases are indeed good examples of such disputes. But they can only be seen as new and different additions to the jigsaw puzzle rather than the final pieces. More cases with even more complex scenarios will likely follow, as contracting practices continue to develop along with technological advancements.

Postscript: The Place of Performance

Having found the jurisdiction clause invalid, the Court would have had to determine the place of performance of the contract as another basis for special jurisdiction under the Regulation. A decision on this latter issue was deferred, however, since the Court had already referred a similar question on the determination of the place of performance to the CJEU in a different proceeding (OGH, decision of 13 July 2023, 1 Ob 73/23a) concerning a service contract.

The Supreme Court of Canada has granted leave to appeal in Sinclair v Venezia Turismo. In light of the test for obtaining leave and the relatively low number of cases in which leave is granted, this offers at least some suggestion that the top court is interested in considering the legal issues raised in the case.

The case has factual similarities to the Brownlie litigation in England. The plaintiffs, residents of Ontario, were injured on a gondola ride in Venice, Italy. They are suing in tort in Ontario. Three Italian corporations challenged the Ontario court’s jurisdiction. At first instance the judge held Ontario had jurisdiction but on appeal the Court of Appeal for Ontario held that it did not. The key issues, at least thus far, have been whether the plaintiffs could establish a “presumptive connecting factor” (PCF) between those corporations and Ontario and if so, whether that presumption had been rebutted. Common law Canada considers that a contract made in the forum that is connected to a tort that happens elsewhere is a PCF to the forum. It is relevant here because the plaintiffs made some of the arrangements for their trip to Italy with other parties through contracts made in Ontario. In the Court of Appeal, two judges found the PCF was not established while the third found that it was. All three found that if it was established, it had been rebutted by the corporations: the connection to Ontario was insufficient.

More information is available here.  The written legal arguments by the parties for and against leave should end up posted on that site and they should be an interesting read.  As is the practice in Canada, no reasons are provided by the court for the granting of leave. The decision below is here. It contains discussion of the key precedents on jurisdiction.

The Court of Justice delivered yesterday its judgment in case C‑531/22 (Getin Noble Bank S.A.), where it has, once more, defended the right of the national judge to, ex officio, examine the potential unfairness of a clause in a contract concluded by a consumer (Directive 93/13).

The decision is available in all EU languages, albeit not in English. Here is the French version:

“1) L’article 6, paragraphe 1, et l’article 7, paragraphe 1, de la directive 93/13/CEE du Conseil, du 5 avril 1993, concernant les clauses abusives dans les contrats conclus avec les consommateurs, doivent être interprétés en ce sens que : ils s’opposent à une réglementation nationale prévoyant qu’une juridiction nationale ne peut procéder d’office à un examen du caractère éventuellement abusif des clauses figurant dans un contrat et en tirer les conséquences, lorsqu’elle contrôle une procédure d’exécution forcée fondée sur une décision prononçant une injonction de payer définitive revêtue de l’autorité de la chose jugée :

– si cette réglementation ne prévoit pas un tel examen au stade de la délivrance de l’injonction de payer ou

– lorsqu’un tel examen est prévu uniquement au stade de l’opposition formée contre l’injonction de payer concernée, s’il existe un risque non négligeable que le consommateur concerné ne forme pas l’opposition requise soit en raison du délai particulièrement court prévu à cette fin, soit eu égard aux frais qu’une action en justice entraînerait par rapport au montant de la dette contestée, soit parce que la réglementation nationale ne prévoit pas l’obligation que soient communiquées à ce consommateur toutes les informations nécessaires pour lui permettre de déterminer l’étendue de ses droits.

2) L’article 3, paragraphe 1, l’article 6, paragraphe 1, l’article 7, paragraphe 1, et l’article 8 de la directive 93/13 doivent être interprétés en ce sens que : ils ne s’opposent pas à une jurisprudence nationale selon laquelle l’inscription d’une clause d’un contrat au registre national des clauses illicites a pour effet que cette clause soit considérée comme étant abusive dans toute procédure impliquant un consommateur, y compris à l’égard d’un autre professionnel que celui à l’encontre duquel la procédure d’inscription de ladite clause à ce registre national avait été engagée et lorsque la même clause ne présente pas un libellé identique à celui enregistré, mais revêt la même portée et produit les mêmes effets sur le consommateur concerné ».

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=281795&pageIndex=0&doclang=fr&mode=req&dir=&occ=first&part=1&cid=4026751

Co-edited  by Rishi Gulati and Philippa Webb, the Special Issue of the King’s Law Journal, Volume 34, Issue 3 on “The Legal Accountability of Transnational Institutions: Past, Present and Future” is now out. The 9 articles in this Special Issue are authored by leading experts on the accountability of public international organisations (IOs), MNCs, as well as NGOs.

The Introduction is open access and discusses what may be learnt by comparing the legal accountability of IOs, MNCs and NGOs. In addition to the Introductory article by Rishi Gulati and Philippa Webb, the Special Issue consists of the following contributions. Assessing the Accountability Mechanism of Multilateral Development Banks Against Access to Justice: The Case of the World Bank (Edward Chukwuemeke Okeke); Holding International Organizations Accountable: Recent Developments in U.S. Immunities Law (David P. Stewart); Protecting Human Rights in UN Peacekeeping: Operationalising Due Diligence and Accountability (Nigel D. White); Nature and Scope of an International Organisation’s Due Diligence Obligations Under International Environmental Law: A Case Study of the Caribbean Development Bank (S. Nicole Liverpool Jordan); Civil Liability Under Sustainability Due Diligence Legislation: A Quiet Revolution? (Youseph Farah, Valentine Kunuji & Avidan Kent); Accountability of NGOs: The Potential of Business and Human Rights Frameworks for NGO Due Diligence (Rosana Garciandia); Arbitrating disputes with international organisations and some access to justice issues (August Reinisch); Transnational Procedural Guarantees – The Role of Domestic Courts (Dana Burchardt).

The graduate resesarch programme DynamInt (Dynamic Integration Order) of Humboldt University is inviting international PostDocs to apply for a short-term (3 to 6 months), fully paid research stay in Berlin.

The PostDoc is supposed to pursue her/his research project in the field of European Law. She/he is also expected to interact with the group of young researchers, who all work on their dissertation projects within the thematic framework of harmonization and plurality tendencies in the EU

More information are available here.

 

The United Nations Agenda 2030 with its 17 Sustainable Development Goals (SDGs) seems to have a blind spot for the role of private and private international law. That blind spot is beginning to be closed. A collective volume with global outlook published in 2021 addressed “the private side of transforming our world”: each of the 17 SDGs was discussed in one chapter of the book devoted to the specific relevance of private law and private international law. In 2022, the IACL-ASADIP conference in Asunción, Paraguay discussed sustainable private international law with regard to Latin America; the contributions published in 2023 in a special issue of the University of Brasilia Law Journal – Direito.UnB., V.7., N.3 (2023).

In this occasion the focus is on Asia. The Chinese Journal of Transnational Law invites submissions for its Vol. 2 Issue 2, to be published in 2025, engaging critically with the functions, methodologies and techniques of private international law in relation to sustainability from an Asian perspective, as well as in relation to the actual and potential contributions of private international law to the SDGs in Asia.

Contributions should focus on Asian perspectives, either addressing a specific global challenge through the lens of the relevant normative framework of a particular country, sub-region, or community/ies in Asia; or ‘glocalising’ the challenge, analysing specific issues affecting concrete contexts in the region in relation to the global objectives included in the UN 2030 Agenda.

Topics could include, but are not limited to:

• Relationships between the international and the domestic, or/and the public and the private in the pursue of the UN Agenda 2030 in Asia
• Sustainability in global supply/value chains and private international law in Asia
• Intra-regional (South-South) migration in Asia and private international law (focus on specific kinds of migration, such as labour migration, climate change migration, forced displacement, refugees, etc)
• Clean energy in Asia and private international law
• Decent work (and economic growth) in Asia, and of Asian workers beyond Asia, and private international law
• Sustainable consumption and production in Asia and private international law (focus on a specific sector, such as apparel, food, agricultural products, etc)
• Gender equality in Asia and private international law
• Sustainable Asian cities and communities and private international law
• Establishment and proof of personal identity in Asia; portability across borders of identity documents in Asia and beyond
• (Non-) recognition of foreign child marriages and forced marriages in and from Asia
• Availability and sustainable management of water (and sanitation) in Asia and the role of private international law
• Private international law and cross-border environmental damage/ adverse effects of climate change/ loss of biodiversity from an Asian perspective.

Note: The issue of transnational access to justice in relation to sustainable development has been considered extensively, including from an Asian perspective, so we suggest interested contributors to refrain from submitting contributions based exclusively on SDG 16.

An abstract of 500-800 words should be submitted by 20 Feburary 2024 to PIL.sustainability.CJTL@ed.ac.uk and CJTL.Editor@whu.edu.cn (please send the abstract to both email addresses). Please include the contributor’s last name in the email title. Selected contributors will be invited to submit a draft paper by 1 October 2024 in advance of a hybrid conference at Wuhan University in November 2024 . The submission of the full article through the journal’s homepage: https://journals.sagepub.com/home/ctl is required by 1 March 2025. Accepted articles will be published online first as advanced articles. Contributors may choose between: Research articles (up to 11,000 words inclusive of footnotes) or short articles (up to 6,000 words inclusive of footnotes). The special issue will be published in September 2025.

Those interested may contact the guest editors Verónica Ruiz Abou-Nigm, Ralf Michaels and Hans van Loon at PIL.sustainability.CJTL@ed.ac.uk.

Within the framework of the PAX 2.0 Project, Université Paris Dauphine will host the PAX Judicial Training, which will take place on 4-5 March 2024.

While the PAX Moot Court is oriented to students, the PAX Judicial Training is designed for judges and aspiring judges seeking to enhance their understanding of EU private international law.

Taking into account this year’s PAX Moot competition, whose case has been previously dealt with in this blog, judicial training will focus on international jurisdiction in cross-border civil disputes, provisional measures in EU private international law, legal capacity and parental authority and other EU private international law-related issues.

Registrations are open until 15 February 2024 at ramachandra.oviode-siou@dauphine.eu.

Speakers include Arnaud Raynouard, Marta Pertegás Sender, Vesna Lazić, Hélène van Lith, Boriana Musseva, Tsvetelina Dimitrova, Neža Pogorelčnik Vogrinc, Beatriz Añoveros Terradas, Jona Israël, Laura van Bochove, Thalia Kruger, Erlis Themeli and Duncan Fairgrieve.

The detailed programme is available here.

The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published. The following abstracts have been kindly provided by the editor of the journal.

G. Cuniberti, Time limitations affecting foreign judgments

The issue of time limitations affecting foreign judgments is addressed in remarkably different ways in comparative private international law. The primary reason is that enforcing States define the subject matter of limitations differently: they can focus on the foreign judgment itself, but also on the obligation vindicated before the foreign court, the exequatur judgment, or an autonomous obligation arising out of the foreign judgment in the forum. Additional layers of complexity are that rules of limitation can be characterised either as procedural or substantive in nature, and that foreign judgments losing enforceability should not be enforced. The question should therefore be asked whether this diversity is an impediment to the free circulation of judgments within the European Union, which should be remedied by some form of harmonisation.

J. Hoffmann, Jurisdiction of German courts for collective action against third country defendants

Collective action under the new German VDuG (Law on the Enforcement of Consumer Rights) allows the collective enforcement of similar claims of consumers. Such actions are not only relevant regarding domestic German defendants or those located within the EU but may also be of practical importance regarding third country defendants. This article discusses under which circumstances German courts have jurisdiction for such collective actions. It argues that the exclusive jurisdiction clause in § 3 VDuG does not preclude the application of the general jurisdiction rules of German law. Specific rules apply regarding claims stemming from violations of data protection law.

P.G. Picht and C. Kopp, Choice of law under the Rome I and Rome II regulations: current case law issues

The article deals with current choice of law issues in the practical application of the Rome I and Rome II Regulations. Despite the fact that the relevant provisions have been in existence for some time now, they still raise important and intricate questions. On the basis of recent German case law, the article examines three of these issues in more detail, namely (1) choice of law through litigation behaviour, (2) the exceptional admissibility of a choice of law in bilateral competition law infringement matters, and (3) the validity of choice of law clauses in general terms and conditions.

A. Schulz, Gender self-determination in Private International Law – Towards a new article 7a EGBGB

In August 2023 the German government proposed a draft bill for a “Gender Self-Determination Act” which will allow transgender, intersex and non-binary persons to change their legal gender by means of a simple self-declaration. While some of the details of the future Self-Determination Act are still being debated, less attention has been paid to the fact that the draft bill also contains a proposal for a conflict of laws rule which will determine the law applicable to a person’s gender in cross-border settings. According to Article 7a (1) Draft Introductory Act to the German Civil Code, a person’s gender will generally be governed by the law of the state of which the person is a national. However, according to Article 7a (2) Draft Introductory Act to the German Civil Code, a person residing in Germany may, for the purpose of changing their gender, choose German law. This article aims to take a first look at this draft conflict of laws rule and to illustrate some of the pending questions regarding the new rule.

J. Oster, Jurisdiction clauses in general terms and conditions in digital commerce

In its ruling of 24.11.2022 (Tilman SA ./. Unilever Supply Chain Company AG), the CJEU had to decide on the validity of a jurisdiction clause that was included in general terms and conditions to which the contract referred by the inclusion of a hypertext link. The Court held this to be in accordance with Article 23 para. 1 and 2 of the Lugano II Convention, even though the party against whom that clause operates had not been formally asked to accept those general terms and conditions by ticking a box on that website. The Court thus expanded its case-law on the inclusion of jurisdiction clauses in electronic contracts. The decision has a significant impact on the interpretation of Article 25 para. 1 and 2 Brussels Ia Regulation, which has the same meaning as Article 23 para. 1 and 2 of the Lugano II Convention.

M. Lieberknecht, Enforcement proceedings concerning frozen assets under the EU’s economic sanctions regime

In its Bank Sepah decision, the ECJ offers guidance on an issue of increasing importance: the legal status of frozen assets owned or controlled by persons on the EU’s sanction lists. Specifically, the ECJ weighs in on the fate of frozen assets in the context of enforcement proceedings. The Court adopts an extensive reading of the concept of freezing, which does not only rule out the recovery of assets for the benefit of the creditor but also bars mere protective measures such as seizure, which do not affect ownership rights in the asset. Considering the purpose of freezing orders, this extensive reading is not convincing. The Court’s second dictum, on the other hand, is all the more cogent. It states that the legal effects of a freezing order on enforcement proceedings are not affected by whether or not the creditor’s claim is related to the subject matter of the sanctions in question.

W. Hau, Having two bites at the same cherry? – On the recognizability of a preclusion based on the duty to concentrate claims in one lawsuit

Following an English lawsuit, the winning employee brings further proceedings in France with additional claims against his former employer. This strategy would not be permissible under either English or French procedural law. Nevertheless, the CJEU holds that the preclusive effect of the English decision is not to be recognized in France under the Brussels I Regulation (still applicable in the case). The opposing view expressed here is that only public policy permits refusal of recognition of such a preclusive effect of a foreign judgment.

P. Huber and L. Bernard, Objections to the claim itself and parallel (enforcement) proceedings in the European Union

What impact does it have, if an objection to the claim itself is raised in different member states of the European Union in order to stop one or several enforcement proceedings? This question arose in an Austrian proceeding. The OGH solely dealt with the question of jurisdiction for the Austrian enforcement proceeding. The case, however, raises further issues regarding the coordination of parallel proceedings which are discussed in this article.

E. Jayme and C.F. Nordmeier, Family and the law of torts – Private International Law and Legal Comparison – Conference of the German-Lusitanian Jurists’ Association, September 15th and 16th 2023, Heidelberg

Written by Eduardo Silva de Freitas (Erasmus University Rotterdam), member of the Vici project Affordable Access to Justice, financed by the Dutch Research Council (NWO), www.euciviljustice.eu.  

 

Introduction

In the final weeks leading up to Christmas in 2023, the District Court of Amsterdam referred a set of questions to the CJEU (DC Amsterdam, 20 December 2023, ECLI:NL:RBAMS:2023:8330; in Dutch). These questions, if comprehensively addressed, have the potential to bring clarity to longstanding debates regarding jurisdictional conflicts in collective actions. Despite being rooted in competition law with its unique intricacies, the issues surrounding the determination of online damage locations hold the promise of illuminating pertinent questions. Moreover, the forthcoming judgment is expected to provide insights into the centralization of jurisdiction in collective actions within a specific Member State, an aspect currently unclear. Recalling our previous discussion on the Dutch class action under the WAMCA in this blog, it is crucial to emphasize that, under the WAMCA, only one representative action can be allowed to proceed for the same event. In instances where multiple representative foundations seek to bring proceedings for the same event without reaching a settlement up to a certain point during the proceedings, the court will appoint an exclusive representative. This procedural detail adds an additional layer of complexity to the dynamics of collective actions under the WAMCA.

Following a brief overview of the case against Apple, we will delve into the rationale behind the court’s decision to refer the questions.

The claim against Apple

The claim revolves around Apple’s alleged anticompetitive behavior in the market for the distribution of apps and in-app products on iOS devices, such as iPhones, iPads, and iPod Touch. The foundations argue that Apple holds a monopoly in this market, as users are dependent on the App Store for downloading and using apps.

According to the foundations, Apple’s anticompetitive actions include controlling which apps are included in the App Store and imposing conditions for their inclusion. Furthermore, Apple is accused of having a monopoly on payment processing services for apps and digital in-app products, with the App Store payment system being the sole method for transactions.

The foundations argue that Apple charges an excessive commission of 30% for paid apps and digital in-app products, creating an unfair advantage and disrupting competition. They assert that Apple’s dominant position in the market and its behavior constitute an abuse of power. Users are said to be harmed by being forced to use the App Store and pay high commissions, leading to the claim that Apple has acted unlawfully. The legal bases of the claim are therefore abuse of economic dominance in the market (Article 102 TFEU) and prohibited vertical price fixing (Article 101 TFEU).

The jurisdictional conundrum

Apple Ireland functions as the subsidiary tasked with representing app suppliers within the EU. The international nature of the dispute stems from the users purportedly affected being located in the Netherlands, while the case is lodged against the subsidiary established in Ireland. The District Court of Amsterdam has opted to scrutinize the jurisdiction of Dutch courts under Article 7(2) Brussels I-bis Regulation. This provision grants jurisdiction to the courts of the place where the harmful event occurred or may occur, encompassing both prongs of the Bier paradigm. However, Apple contends that, within the Netherlands, the court would only possess jurisdiction under Article 7(2) Brussels I-bis Regulation with regard to users residing specifically in Amsterdam.

In the court’s view, the ascertainment of the Handlungsort should pertain only to allegations under Article 102 TFEU. In relation to Article 101 TFEU, the Netherlands was not considered the Handlungsort. This is due to the necessity of identifying a specific incident causing harm to ascertain the Handlungsort, and the absence of concrete facts renders it challenging to pinpoint such an event.

The court’s jurisdictional analysis commences with a reference to Case C?27/17 flyLAL-Lithuanian Airlines (ECLI:EU:C:2018:533), in which the CJEU established that the location of the harmful event in cases involving the abuse of a dominant position under Article 102 TFEU is closely linked to the actual implementation of such abuse. In the present case, the court observes that Apple’s actions, conducted through the Dutch storefront of the App Store tailored for the Dutch market, involve facilitating app and in-app product purchases. Acting as the exclusive distributor for third-party apps, Apple Ireland exerts control over the offered content.

Applying the criteria from flyLAL, the court concludes that the Handlungsort is situated in the Netherlands. However, the court agreed that the specific court within the Netherlands responsible for adjudicating the matter remains unspecified.

The court initiated its analysis of the Erfolgsort based on the established premise in CJEU case law which posits that there is no distinction between individual and collective actions when determining the location of the damage. The court clarified that the concept of the place where the damage occurs does not encompass any location where the consequences of the event may be felt; rather, only the damage directly resulting from the committed harm should be considered. Moreover, the court emphasized that when determining the Erfolgsort, there is no distinction based on whether the legal basis for the accusation of anticompetitive practices is grounded in Article 101 or Article 102 TFEU.

The court reiterated that the App Store with Dutch storefront is a targeted online sales platform for the Dutch market. Functioning as an exclusive distributor, Apple Ireland handles third-party apps and in-app products, contributing to an alleged influence of anticompetitive behavior in the Dutch market. It’s acknowledged that the majority of users making purchases reside in the Netherlands, paying through Dutch bank accounts, thus placing the Erfolgsort within the Netherlands for this user group. Nevertheless, the court reiterated that the particular court within the Netherlands tasked with adjudicating this case remains unspecified.

The questions referred

Despite the court having its perspective on establishing jurisdiction under Article 7(2) Brussels I-bis Regulation, it opted to seek clarification from the CJEU for the following reasons.

First, the court expresses reservations regarding the complete applicability of the flyLAL precedent to the current case. It emphasizes that the flyLAL case involved a precise location where the damage could be pinpointed. In contrast, the present case involves anticompetitive practices unfolding through an online platform accessible simultaneously in every location within a particular Member State and globally. The court is uncertain whether the nature of this online distribution makes a significant difference in this context, especially when considering whether the case involves a collective action.

Second, as mentioned above, the WAMCA stipulates that only a single representative action can be allowed to proceed for a given event. In situations where multiple representative foundations aim to commence legal proceedings for the same event without reaching a settlement by a specific stage in the proceedings, the court will designate an exclusive representative. In addition to that, Article 220 Dutch Code of Civil Procedure offers the opportunity to consolidate cases awaiting resolution before judges in various districts and involving identical subject matter and parties, allowing for a unified hearing of these cases.

Nevertheless, the court has reservations about the compatibility of relocating from the Erfolgsort within a Member State under the consolidation of proceedings, as Article 7(2) Brussels I-bis Regulation impacts the establishment of jurisdiction within that Member State. In questioning whether such relocation would run contrary to EU law, the court highlights the Brussels I-bis Regulation’s overarching objective of preventing parallel proceedings. This triggers a skepticism towards the interpretation that each District Court within the Netherlands would have competence to adjudicate a collective action pertaining to users situated in the specific Erfolgsort within their jurisdiction.

However, the court finds it necessary to refer these questions to the CJEU, considering that, in its assessment, the CJEU’s rationale in Case C?30/20 Volvo (ECLI:EU:C:2021:604) is not easily transposable to the current case. In Volvo, the CJEU permitted the concentration of proceedings in antitrust matters within a specialized court. This is not applicable here, as the consolidation of proceedings under the described framework arises from the efficiency in conducting the proceedings, not from specialization.

These are, in a nutshell, the reasons why the District Court of Amsterdam decided to refer the following questions to the CJEU:

 Question 1

1. What should be considered as the place of the damaging action in a case like this, where the alleged abuse of a dominant position within the meaning of Article 102 TFEU has been implemented in a Member State through sales via an online platform managed by Apple that is aimed at the entire Member State, with Apple Ireland acting as the exclusive distributor and as the developer’s commission agent and deducting commission on the purchase price, within the meaning of Article 7, point 2, Brussels I bis? Is it important that the online platform is in principle accessible worldwide?
2. Does it matter that in this case it concerns claims that have been instituted on the basis of Article 3:305a of the Dutch Civil Code by a legal entity whose purpose is to represent the collective interests of multiple users who have their seat in different jurisdictions (in the Netherlands: districts) within a Member State under its own right?
3. If on the basis of question 1a (and/or 1b) not only one but several internally competent judges in the relevant Member State are designated, does Article 7, point 2, Brussels I bis then oppose the application of national (procedural) law that allows referral to one court within that Member State?

 Question 2

1. Can in a case like this, where the alleged damage has occurred as a result of purchases of apps and digital in-app products via an online platform managed by Apple (the App Store) where Apple Ireland acts as the exclusive distributor and commission agent of the developers and deducts commission on the purchase price (and where both alleged abuse of a dominant position within the meaning of Article 102 TFEU has taken place and an alleged infringement of the cartel prohibition within the meaning of Article 101 TFEU), and where the place where these purchases have taken place cannot be determined, only the seat of the user serve as a reference point for the place where the damage has occurred within the meaning of Article 7, point 2, Brussels I bis? Or are there other points of connection in this situation to designate a competent judge?
2. Does it matter that in this case it concerns claims that have been instituted on the basis of Article 3:305a of the Dutch Civil Code by a legal entity whose purpose is to represent the collective interests of multiple users who have their seat in different jurisdictions (in the Netherlands: districts) within a Member State under its own right?
3. If on the basis of question 2a (and/or 2b) an internally competent judge in the relevant Member State is designated who is only competent for the claims on behalf of a part of the users in that Member State, while for the claims on behalf of another part of the users other judges in the same Member State are competent, does Article 7, point 2, Brussels I bis then oppose the application of national (procedural) law that allows referral to one court within that Member State?

 [Translation from Dutch by the author, with support of ChatGPT]

Discussion

The CJEU possesses case law that could be construed in a manner conducive to allowing the case to proceed in the Netherlands. Notably, Case C?251/20 Gtflix Tv (ECLI:EU:C:2021:1036) appears to be most closely aligned with this possibility, wherein the eDate rule was applied to a case involving French competition law, albeit the CJEU did not explicitly address this aspect (though AG Hogan did). Viewed from this angle, the Netherlands could be deemed the centre of interests for the affected users, making it a potential Erfolgsort.

Regarding the distinction between individual and collective proceedings, the CJEU, in Cases C-352/13 CDC (ECLI:EU:C:2015:335) and C-709/19 VEB v. BP (ECLI:EU:C:2021:377), declined to differentiate for the purpose of determining the locus of damage. We find no compelling reason for the CJEU to deviate from this precedent in the current case.

The truly intricate question centers on the feasibility of consolidating proceedings in a single court. In Case C-381/14 Sales Sinués (ECLI:EU:C:2016:252), the CJEU established that national law must not hinder consumers from pursuing individual claims under the Unfair Contract Terms Directive (UCTD – 93/13) by employing rules on the suspension of proceedings during the pendency of parallel collective actions. However, it is unclear whether this rationale can be extrapolated to parallel concurrent collective actions.

Conclusion

This referral arrives at a good time, coinciding with the recent coming into force of the Representative Actions Directive (RAD – 2020/1828) last summer. Seeking clarification on the feasibility of initiating collective actions within the jurisdictions of affected users for damages incurred in the online sphere holds significant added value. Notably, the inclusion of both the Digital Services Act and the Digital Markets Act within the purview of the RAD amplifies the pertinence of these questions.

Moreover, this case may offer insights into potential avenues for collective actions grounded in the GDPR. Such actions, permitted to proceed under Article 7(2) Brussels I-bis Regulation, as exemplified in our earlier analysis of the TikTok case in Amsterdam, share a parallel rationale. The convergence of these legal frameworks could yield valuable precedents and solutions in navigating the complex landscape of online damages and collective redress.

Albert Henke (University of Milan), Marco Torsello (University of Verona) and Elena Zucconi Galli Fonseca (University of Bologna) edited a book titled International Commercial Courts. A Paradigm for the Future of Adjudication? with Edizioni Scientifiche Italiane.

International commercial courts are specialized judicial bodies designed to provide a forum for adjudicating complex cross-border business disputes efficiently and fairly for operators acting across different jurisdictions.

Based on the enriching experience of a webinar jointly organized by the Universities of Bologna, Milan, and Verona, this volume collects papers of renowned specialists in the field of cross-border dispute resolution, divided into three parts. The first part of the volume addresses the phenomenon of international commercial courts in the EU, with particular attention to the German, French, Dutch, and Italian experiences. The second part includes papers that shed light on the experience of extra-European countries, such as those of the Gulf area, Singapore, China, and the OHADA States. The third part of the volume compares the structure and functioning of international commercial courts with international commercial arbitration.

Not unlike arbitral tribunals, international commercial courts aim to provide a more predictable and consistent legal environment for international business transactions. This volume aims to provide a comparative overview of this emerging phenomenon. Only time will tell whether international commercial courts will establish themselves as relevant players in international dispute resolution.

The contributions featured in the book were authored by E.A. Ontanu, M. Lamandini, D. Ramos Muñoz, M. Stürner, A. Biard, X. Kramer, G. Antonopoulou, M.A. Lupoi, M. Torsello, G. Dimitropoulos, G.F. Bell, X. Qian, S. Mancuso, J. Monaci Naldini, and A. Tanzi.

More information available here.

Marco Buzzoni, Doctoral Researcher at the Luxembourg Centre for European Law (LCEL) and PhD candidate at the Sorbonne Law School, offers a critical analysis of some recent rulings by the Court of Justice of the European Union in matters of data protection.

In a series of three preliminary rulings issued on 14th December and 21st December 2023, the Court of Justice of the European Union (‘CJEU’) was called upon again to rule on the interpretation of Article 82 of the General Data Protection Regulation (‘GDPR’). While these rulings provide some welcome clarifications regarding the civil liability of data controllers, their slightly inconsistent reasoning will most likely raise difficulties in future cases, especially those involving cross-border processing of personal data.

On the one hand, the judgments handed down in Cases C-456/22, Gemeinde Ummendorf, and C-340/21, Natsionalna agentsia za prihodite, explicitly held that three elements are sufficient to establish liability under Article 82 GDPR. In so doing, the Court built upon its previous case law by confirming that the right to compensation only requires proof of an infringement of the Regulation, some material or non-material damage, and a causal link between the two. On the other hand, however, the Court seemingly swayed away from this analysis in Case C-667/21, Krankenversicherung Nordrhein, by holding that a data controller can avoid liability if they prove that the damage occurred through no fault of their own.

In reaching this conclusion, the Court reasoned that imposing a strict liability regime upon data controllers would be incompatible with the goal of fostering legal certainty laid out in Recital 7 GDPR. By introducing a subjective element that finds no mention in the Regulation, the Court’s latest decision is nonetheless likely to raise difficulties in cross-border cases by introducing some degree of unpredictability with respect to the law applicable to data controllers’ duty of care. In time, this approach might lead to a departure from the autonomous and uniform reading of Article 82 that seemed to have prevailed in earlier cases.

The Court’s Rejection of Strict Liability for Data Controllers

According to the conceptual framework laid out by the CJEU in its own case law, compensation under Article 82 GDPR is subject to three cumulative conditions. These include an infringement of the Regulation, the presence of some material or non-material damage, and a causal link between the two (see Case C-300/21, UI v Österreichische Post AG, para 32). In the cases decided in December 2023, the Court was asked to delve deeper into each of these elements and offer some additional guidance on how data protection litigation should play out before national courts.

In case C-456/22, the CJEU was presented with a claim for compensation for non-material damage filed by an individual against a local government body. The plaintiff alleged that their data protection rights had been breached when the defendant intentionally published documents on the internet that displayed their unredacted full name and address without their consent. Noting that this information was only accessible on the local government’s website for a short time, the referring court asked the CJEU to clarify whether, in addition to the data subject’s mere short-term loss of control over their personal data, the concept of ‘non-material damage’ referred to in Article 82(1) of the GDPR required a significant disadvantage and an objectively comprehensible impairment of personal interests in order to qualify for compensation. Rather unsurprisingly, the Court (proceeding to judgment without an Opinion) answered this question in the negative and held that, while Article 82(1) GDPR requires proof of actual damage, it also precludes any national legislation or practice that would subject it to a “de minimis threshold” for compensation purposes.

In doing so, the Court followed the road map outlined in UI v Österreichische Post AG, which had already held that the concept of damage should receive an autonomous and uniform definition under the GDPR (Case C-456/22, para 15, quoting Case C-300/21, paras 30 and 44) and should not be limited to harm reaching a certain degree of seriousness. Arguably, however, the Court also went beyond its previous decision by stating that the presence of an infringement, material or non-material damage, and a link between the two were not only “cumulative” or “necessary” but also “sufficient” conditions for the application of Article 82(1) (Case C-456/22, para 14). Remarkably, the Court did not mention any other condition that could have excluded or limited the data subject’s right to compensation. Taken literally, this decision could thus have been understood as an implicit endorsement of a strict liability regime under the GDPR.

This impression was further strengthened by the judgment handed down in Case C-340/21, where the Court was asked to weigh in on the extent of a data controller’s liability in case of unauthorised access to and disclosure of personal data due to a “hacking attack”. In particular, one of the questions referred to the CJEU touched upon whether the data controller could be exempted from civil liability in the event of a personal data breach by a third party. Contrary to the Opinion delivered by AG Pitruzzella, who argued that the data controller might be exonerated by providing evidence that the damage occurred without negligence on their part (see Opinion, paras 62-66), the CJEU ignored once more the question of the data controller’s fault and rather ruled that the latter should establish “that there [was] no causal link between its possible breach of the data protection obligation and the damage suffered by the natural person” (Case C-340/21, para 72).

A few days later, however, the CJEU explicitly endorsed AG Pitruzzella’s reading of Article 82 GDPR in Case C-667/21. In a subtle yet significant shift from its previous reasoning, the Court there held that the liability of the data controller is subject to the existence of fault on their part, which is presumed unless the data controller can prove that they are in no way responsible for the event that caused the damage (Case C-667/21, holding). To reach this conclusion, The Court relied on certain linguistic discrepancies in Article 82 of the GDPR and held, contrary to the Opinion by AG Campos Sánchez-Bordona, that a contextual and teleological interpretation of the Regulation supported a liability regime based on presumed fault rather than a strict liability rule (Case C-667/21, paras 95-100). Formulated in very general terms, the holding in Case C-667/21 thus suggests that a controller could be released from liability not only if they prove that their conduct played no part in the causal chain leading to the damage but also — alternatively — that the breach of the data subject’s rights did not result from an intentional or negligent act on their part.

Lingering Issues Surrounding the Right to Compensation in Cross-Border Settings

According to the CJEU, only a liability regime based on a rebuttable presumption of fault is capable of guaranteeing a sufficient degree of legal certainty and a proper balance between the parties’ interests. Ironically, however, the Court’s approach in Case C-340/21 raises some significant methodological and procedural questions which might lead to unpredictable results and end up upsetting the parties’ expectations about their respective rights and obligations, especially in cases involving cross-border processing of personal data.

From a methodological perspective, the CJEU’s latest ruling does not fit squarely within the uniform reading of the GDPR that the Court had previously adopted with respect to the interpretation of Article 82 GDPR. In the earlier cases, in fact, the CJEU had consistently held that the civil liability requirements laid out in the Regulation, such as the notion of damage or the presence of an actual infringement of data protection laws, should be appreciated autonomously and without any reference to national law (on the latter, see in particular Case C-340/21, para 23). On the other hand, however, the Court has also made clear that if the GDPR remains silent on a specific issue, Member States should remain free to set their own rules, so long that they do not conflict with the principles of equivalence and effectiveness of EU law (on this point, see eg Case C-340/21, para 59).

Against this backdrop, the Court’s conclusion that the civil liability regime set up by the legislature implicitly includes the presence of some fault on the defendant’s part begs the question of whether this requirement should also receive a uniform interpretation throughout the European Union. In favour of this interpretation, one could argue that this condition should be subject to the same methodological approach applicable to the other substantive requirements laid out in Article 82 GDPR. Against this position, it could nonetheless be pointed out that in the absence of explicit indications in this Article, the defendant’s fault should be assessed by reference to national law unless another specific provision of the Regulation (such as Articles 24 or 32 of the GDPR) specifies the degree of care required of the data controller or processor. In the context of cross-border cases, the latter interpretation would thus allow each Member State to determine, based on their own conflict-of-laws rules, the law applicable to the defendant’s duty of care in cases of violations of data protection laws. If generalised, this approach might in time lead to considerable fragmentation across the Member States.

In addition to these methodological difficulties, the Court’s decision in Case C-340/21 also raises some doubts from a procedural point of view. In holding that the data controllers’ liability is subject to the existence of fault on their part, the CJEU calls into question the possible interaction between national court proceedings aimed at establishing civil liability under Article 82 GDPR and administrative decisions adopted by data protection authorities. With respect to the latter, the CJEU had in fact ruled in Case C-683/21, Nacionalinis visuomenés sveikatos centras, that Article 83 GDPR must be interpreted so that an administrative fine may be imposed pursuant to that provision “only where it is established that the controller has intentionally or negligently committed an infringement referred to in paragraphs 4 to 6 of that article” (Case C-683/21, holding). In other words, national supervisory authorities are also called upon to assess the existence of fault on the part of the data controller or processor before issuing fines for the violation of data protection laws.

At first glance, the CJEU’s decision in Case C-340/21 fosters some convergence between the private and public remedies set out in the GDPR. In reality, however, this interpretation might potentially create more hurdles than it solves. Indeed, future litigants will likely wonder what deference, if any, should be given to a supervisory authority’s determinations under Article 83 GDPR within the context of parallel court proceedings unfolding under Article 82. In a similar context, the Court has already held that the administrative remedies provided for in Article 77(1) and Article 78(1) GDPR may be exercised independently and concurrently with the right to an effective judicial remedy enshrined in Article 79 GDPR, provided that national procedural rules are able to ensure the effective, consistent and homogeneous application of the rights guaranteed by the Regulation (see Case C-132/21, Nemzeti Adatvédelmi és Információszabadság Hatóság v BE). Should the same principles apply to actions brought under Article 82 GDPR? If so, should the same rule also extend to conflicts between national court proceedings and decisions issued by foreign supervisory authorities (and vice-versa), even though each of them might have a different understanding of the degree of protection afforded by the Regulation?

Despite the CJEU’s laudable attempt to strike a balance between the interests of personal data controllers and those of the individuals whose data is processed, it is not certain that the Court has fully assessed all the consequences of its decision. Ultimately, in fact, the choice to reject a strict liability rule could lead not only to unequal protection of individual rights within the EU but also to major uncertainties for economic operators regarding the extent of their own liability under the GDPR.

I am much annoyed one has to refer to cases like these yet again as X v Y (see also here, also on Article 22 Rome II). I understand the need for anonymisation in this particular case, ECLI:NL:PHR:2023:1114, which concerns the liability of a Dutch mother, guardian of a (young) adult son with mild autism and ADHD and a number of mental health challenges, who stabbed and otherwise attacked a Russian (immaterial to the attack) boy living in Germany but holidaying with his family in Crete. Yet some kind of acronym might be helpful.

At any rate, the interest of this tragic case for the blog lies in Advocate General Vlas discussing Rome II particularly the evidence and procedure carve-out as qualified by Article 22 Rome II’s inclusion of the burden of proof in the lex causae:

Article 22 Rome II

Burden of proof

1.   The law governing a non-contractual obligation under this Regulation shall apply to the extent that, in matters of non-contractual obligations, it contains rules which raise presumptions of law or determine the burden of proof.

2.   Acts intended to have legal effect may be proved by any mode of proof recognised by the law of the forum or by any of the laws referred to in Article 21 under which that act is formally valid, provided that such mode of proof can be administered by the forum.

Parties agree Greek law is the lex causae. Dutch law applies procedurally as the lex fori, with the A22 Rome II caveat. (3.25) the AG cites the relevant burden of proof issue in the Greek Civil Code: Article 923:

 “Whoever has the supervision of a person under age or of a person placed under judicial assistance is liable for the damage that such persons unlawfully cause to a third party, unless he proves that he has exercised properly the duty of supervision or that the damage could not have been avoided. (…)”. (…)’

(3.26) the AG summarises the implications of A22 as follows (translated by me, and omitting his references (ia to prof Peters, Magnus/Mankowski/Queirolo, Kramer, and Bart-Jan van het Kaar) 

In brief, it follows from A22(1) Rome II that the lex causae applies to the burden of proof. A22 concerns substantive issues of the law of evidence, such as the distribution of the burden of proof. It does not concern issues relating to the formal elements of the burden of proof, such as admissibility and the appreciation of evidence. These issues are subject (see A10:3 Dutch Civil Code) to Dutch law as the lex fori.

A relevant consideration, one will have to wait and see whether the Supreme Court itself will engage with the A22 issue, which is only a small part of the appeal.

Geert.

EU Private International Law, 4th ed 2024, 4.79 ff.

X v Y (parental responsibility). Vlas AG (of the Supreme Court of The Netherlands) ia on the evidence and procedure carve-out and Article 22 Rome II.https://t.co/OGt1m04LPx

— Geert Van Calster (@GAVClaw) January 17, 2024

In a previous post, I presented the traditional approach of the French Supreme Court in civil and criminal matters (Cour de cassation) on the applicable law to the time limit to enforce foreign judgments, which was confirmed by a judgment of 11 January 2023. But the central issue addressed by this judgment was whether the action to seek a declaration of enforceability of a foreign judgment (exequatur) was itself governed by any time limit.

Background

The case was concerned with an acte de défaut de biens issued by a Swiss authority. This peculiar act of Swiss law is a public document issued by a Swiss enforcement authority (office des poursuites) when a debtor was unable to meet its debts. The acte is an enforceable title, which as such can be enforced in other European States under the Lugano Convention.

In this case, the creditor had sought a declaration of enforceability in France of an acte de défaut de biens 15 years after it was issued in Lausanne. The debtor argued that the action to seek the declaration was time barred. The lower court had ruled that it was not, on the ground that the time limit to enforce an acte de défaut de biens was 20 years under Swiss law. In contrast, the debtor argued that the French time limit of 10 years should have been applied.

Judgment

The case raised the novel issue of the time limit to seek a declaration of enforceability, which is distinct from the issue of the time limit to actually enforce a foreign judgment in France, on the basis of such declaration.

Time Limit to seek exequatur

The Court de cassation ruled that there is no applicable time limit to seek exequatur in France. The rule is formulated in general terms, by referring to exequatur. The applicability of the Lugano Convention, and the fact that the Swiss judgment was to be declared enforceable, and not granted exequatur, is not mentionned, and seems irrelevant for the court.

French scholars debated which law should apply to the determination to the time limit to seek exequatur of a foreign judgment. But none of them had considered the possibility that there might be none. Certainly, by ruling that there is no time limit to seek exequatur of a foreign judgment in France, the court implicitly ruled that the issue is governed by French law.

In a context where the time limit applicable to the enforcement of the foreign judgment is provided by the law of the State of origin (as it is under Swiss law), the practical consequence of having no time limit to seek exequatur is limited. The creditor has no particular incentive to wait to seek exequatur, since it does not impact the time limit to enforce the judgment, which is running.

But the French rule is different. The applicable time limit to enforce a foreign judgment in France is the French 10 year time limit, and it starts running from the French exequatur decision. This means that any creditor with a foreign judgment the time limit of which is about to expire may seek exequatur in France and get a new 10 year period to enforce in France. In the foreign time limit was already quite long (for instance, 30 years in Luxembourg), the result could be to offer the possibility to the creditor to enforce the judgment for a remarkably long time period (40 years).

Should the Rule Be Different Under the European Law of Judgments?

The Lugano Convention and EU regulations on foreign judgments are silent on the time limit to seek exequatur (including, obviously, the Brussels I bis Regulation, which does not provide for any exequatur). Does that mean that there should be none, or that the issue is governed by national law? If it is governed by national law, it would seem, however, that too short a time period might not comport with the European freedom of circulation of judgments. In contrast, it is hard to criticise the French rule in that respect.

The Croatian Academy of Science and Art organises the roundtable titled “Private international law and global trends“, which will be held on Monday, 22 January 2024, at 11 h, in the premises of the Faculty of Law in Zagreb in Cirilometodska street, 4 (due to ongoing renovation of the Academy’s building which suffered damage in the earthquake of 2020, as visible in the photo when expanded). Attendance is open to all, but your intention to join should be communicated to Ms. Muhek at zmuhek@hazu.hr.

The programme includes the following topics:
Prof. Dr. Ines Medic, University of Split, Faculty of Law
Challenges of globalization of private international law for national judiciary

Prof. Dr. Ivana Kunda, University of Rijeka, Faculty of Law
Have frontier digital technologies surpassed the boundaries of private international law?

Prof. Dr. Mirela Zupan, Assoc. Prof. Dr. Paula Poretti, Jura Golub, University of J. J. Strossmayer in Osijek, Faculty of Law
Foreign public documents in the digital age

Asst. Prof. Dr. Danijela Vrbljanac, University of Rijeka, Faculty of Law
Breach of personal data in private international law

Asst. Prof. Dr. Tena Hosko, University of Zagreb, Faculty of Law
Protection of workers in private international law

Assoc. Prof. Dr. Dora Zgrabljic Rotar, University of Zagreb, Faculty of Law
The effect of the Hague Judgments Convention of 2019 on the recognition and enforcement of foreign court decisions in the Republic of Croatia

The proceeds from the conference will be edited by Prof. Dr. Mirela Zupan and published in a book within the series Modernisation of Law whose general editor is Academy Member Prof. Dr. Jakša Barbic.

On Tuesday, February 6, 2024, the Hamburg Max Planck Institute will host its 41st monthly virtual workshop Current Research in Private International Law at 11:00-12:30 (CET). Heinz-Peter Mansel (Universität zu Köln) will speak, in German, about

Supply Chains and Conflict of Laws – Selected Issues

The presentation will be followed by an open discussion. All are welcome. More information and sign-up here.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

As announced on this blog, registrations for the EAPIL Winter School, which is taking place in Como between 12 and 16 February 2024, will close on 25 January 2024

Organised by the University of Insubria, in cooperation with the Jagiellonian University in Kraków, the University of Murcia and the University of Osijek, this year’s edition of the Winter School will be devoted to Personal Status and Family Relationships.

The detailed programme can be found here.

The School is aimed primarily at law graduates, law practitioners and PhD candidates with an interest in private international law, EU law and human rights law.

Those interested in attending the School are invited to submit their application through this form before 25 January 2024. The admission fees amount to 250 Euros.

For information: eapilws@gmail.com.